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HomeMy WebLinkAboutCDC/2010-17 1 2 3 4 5 6 7 RESOLUTION NO. CDC/2010-17 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING FUNDING EQUAL TO $1,218,372 PURSUANT TO THE FORMATION OF THE AUTO CENTER PROPERTY AND BUSINESS IMPROVEMENT DISTRICT ("DISTRICT") AND FUNDING THE OPERATIONS AND ACTIVITIES OF THE DISTRICT (SOUTHEAST INDUSTRIAL PARK AND IVDA REDEVELOPMENT PROJECT AREAS) WHEREAS, the Community Development Commission of the City of San Bernardino (the 8 "Commission") as the governing body of the Redevelopment Agency of the City of San Bernardino 9 (the "Agency") is authorized under Health and Safety Code Section 33000, et seq., to cause the 10 Agency to issue and to make loans to finance certain activities within the City of San Bernardino 11 (the "City"); and 12 WHEREAS, the laws of the State of California provide that cities may form a Property and 13 Business Improvement District ("PBID") pursuant to the Property and Business Improvement 14 District Law of 1994 (the "PBID Law") for the purposes of and pursuant to the provisions of the 16 15 PBID Law; and 17 WHEREAS, the City received a petition from the requisite number of property owners as required by Section 36621(a) of the PBID Law requesting that the City initiate proceedings for the 18 formation of the Auto Center Property and Business Improvement District (the "District") for the 19 area generally bounded by Show Case Drive and Century Avenue on the north, EI Camino Real on 20 the east, Show Case Drive on the south and Auto Plaza Drive on the west, which area is generally 21 22 known and referred to as the "San Bernardino Auto Center"; and 23 WHEREAS the Mayor and Common Council of the City approved the formation of said 24 PBID at a public hearing on April 6, 2009; and 25 WHEREAS, the City has requested that the Agency assist the City with the financing of the 26 District, and the Commission on behalf of the Agency seeks to assist the City with such financing 27 by providing a loan (the "Loan") to the San Bernardino Auto Center, a non-profit mutual benefit 28 corporation (the "Corporation"), to fund the undertaking of additional security patrols, enhanced 1 P:\Agendas\Resolutions\Resolutions\2010\04-05-10 Auto Center PBID Financing CDC ResQ,doc CDC/2010-17 1 security measures, enhanced maintenance measures, increased landscaping features, enhanced 2 marketing activities, improved signage and street lighting, graffiti removal, and other similar 3 activities and matters and capital improvements as may be permitted under the PBID Law and all as 4 set further forth in the Management District Plan as accepted and approved by the City; and 5 WHEREAS, the Loan shall be evidenced by a note (the "Note attached hereto as Exhibit 6 "A") made by the Corporation to the Agency, and the District assessment shall be recorded against 7 each parcel of the District in the records of San Bernardino County as set forth in the Engineer's 8 Report as approved by the Mayor and Common Council pursuant to a Resolution of Formation as 9 adopted on April 6, 2009; and 10 WHEREAS, as provided for in that certain Auto Center Property and Business Improvement 11 12 13 14 15 16 17 District Waiver and Indemnification Agreement (the "Indemnification Agreement" in the form as attached hereto as Exhibit "B"), by and among Clifford R. Cummings, a married man ("Clifford Cummings"), Barbara B. Cummings, a married woman ("Barbara Cummings"), TTL, LLC, a California limited liability company ("TTL"), and D.T.M. Land Company, LLC, a California limited liability company ("DTM") (Clifford Cummings, Barbara Cummings, TTL and DTM (collectively referred to as the "PBID Owners") and Agency, the PBID Owners shall indemnify, without limitation, the Agency and the City in connection with the District and the Loan. 18 19 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 20 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 21 FOLLOWS: 22 Section 1. The Commission hereby finds that the recitals set forth above are true and correct 23 in all respects. 24 Section 2. On April 6, 2009, the Mayor and Common Council of the City of San Bernardino 25 ("Council") conducted a public hearing relating to the formation of the PBID pursuant to the 26 petition and, after the canvass of votes and reported by the City Clerk at said public hearing, duly 27 adopted the Resolution of Formation to provide for the formation of the District and to approve the 28 method levying the assessments upon the properties within the District all as further provided in the 2 P:\Agendas\Resolutions\Resolutions\201O\04-05-1O Auto Center PBJD Financing CDC Reso.doc CDC/2.010-17 1 Engineer's Report as attached to said Resolution of Formation. 2 Section 3. The Commission hereby acknowledges that the purposes of the District as 3 formed by the City shall include, but not be limited to, the undertaking of additional security patrols, 4 enhanced security measures, increased landscaping features, improved signage and street lighting, 5 graffiti removal, and other similar activities and matters and capital improvements all as may be 6 permitted under the PBID Law and as further set forth in the Management District Plan and the 7 Engineer's Report. The boundaries of the District are generally described as follows: Show Case 8 Drive and Century Avenue on the north, El Camino Real on the east, Show Case Drive on the south 9 and Auto Plaza Drive on the west, which area is generally known and referred to as the "San 10 Bernardino Auto Center." 11 Section 4. Assessments of the District shall be levied on the real property, and not on the 12 13 14 15 16 17 businesses, within the District which assessments shall be due and payable in the same manner as with other real property general taxes, special property taxes and other assessments as provided in Section 36631, et seq., of the PBID Law and in the dollar amounts as set forth in the Engineer's Report. Section 5. The Commission hereby approves the Loan by the Agency to the PBID in 18 accordance with the terms and conditions of the Note with any and all changes approved by the 19 Interim Executive Director of the Agency and Agency Counsel. The Note shall be executed by the 20 Corporation and said Corporation shall provide the governance of the District as required pursuant 21 to Section 36650, et seq., of the PBID Law. The Loan shall be repaid to the Agency, without 22 interest, from the collection of the assessments to be levied against the participating properties 23 within the District on the dates and in the amounts as provided in the Note. The Commission further 24 authorizes and directs the funding of an amount not to exceed $1,218,372 as the Loan to the 25 Corporation for the undertaking of the purposes of the District as set forth in the Management 26 District Plan and the Engineer's Report. 27 Section 6. The Commission hereby approves the Promissory Note as attached hereto as 28 Exhibit "A". the together with the Indemnification Agreement as attached to this Resolution as 3 P:\Agendas\Resolutions\Resolutions\201 0\04-05-1 0 Auto Center PBID Financing CDC Reso.doc CDC/2,OlO-17 1 Exhibit "B". The Chairman, Interim Executive Director and Secretary are hereby authorized to 2 enter into and execute the Agreement with any changes as may be approved by the Chairman or 3 Interim Executive Director with the concurrence of Agency Counsel. 4 Section 7. The Chairman, Interim Executive Director, Secretary, Agency Counsel and any 5 and all other officers of the Agency are hereby authorized and directed, for and in the name and on 6 behalf of the Agency, to do any and all things and take any and all actions, including execution and 7 delivery of any and all assignments, certificates, requisitions, agreements, notices, consents, 8 instruments of conveyance, warrants and other documents, which they, or any of them, may deem 9 necessary or advisable in order to consummate the transaction contemplated herein. Whenever in 10 this Resolution any officer of the Agency is authorized to execute or countersign any document or 11 take any action, such execution, countersigning or action may be taken on behalf of such officer by 12 any person designated by such officer to act on his or her behalf in the case such officer shall be 13 absent or unavailable. The Commission hereby appoints the Chairman and Interim Executive 14 Director as agents of the Agency for purposes of executing any and all documents and instruments 15 which any officer of the Agency is authorized to execute hereunder. 16 17 Section 8. The City will rely upon the Corporation to provide the governance of the District as required pursuant to Section 36650, et seq., of the PBID Law, and such Corporation shall provide all reports, take actions and comply with the PBID Law and shall be responsible to implement the Management District Plan to the satisfaction of the City. 18 19 20 21 Section 9. The improvements and activities to be provided in the District will be funded by 22 the Loan and the repayment thereof through the levy of the assessments within the District to thus 23 repay the Loan in the dollar amounts representing the assessments to be levied in each year as are 24 set forth as to each property as provided in the Engineer's Report. The revenue from the levy of 25 assessments within the District shall not be used to provide improvements or activities outside the 26 District or for any purpose other than the purposes specified in the Resolution of Formation for the 27 repayment of the Loan. Section 10. This Resolution shall become effective immediately upon its adoption. 28 4 P:\Agendas\Resolutions\Resolutions\2010\04-05-1O Auto Center PBID Financing CDC Reso.doc CDC/2.01O-17 1 2 3 4 5 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING FUNDING EQUAL TO $1,218,372 PURSUANT TO THE FORMATION OF THE AUTO CENTER PROPERTY AND BUSINESS IMPROVEMENT DISTRICT ("DISTRICT") AND FUNDING THE OPERATIONS AND ACTIVITIES OF THE DISTRICT (SOUTHEAST INDUSTRIAL PARK AND IVDA REDEVELOPMENT PROJECT AREAS) 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 7 Development Commission of the City of San Bernardino at a j oint regular meeting 8 thereof, held on the 5th day of April 9 Commission Members: Ayes Nays 10 MARQUEZ X - 11 DES JARDINS X 12 BRINKER X 13 SHORETT X 14 KELLEY X 15 JOHNSON X - 16 MC CAMMACK 17 18 ,2010, by the following vote to wit: Abstain Absent ~ --- ~.........., ) "'" d.. . .,. Secretary 19 The foregoing Resolution is hereby approved this ~ 77t day of April ,2010. 20 21 22 23 ~~~ trick J. orris, Chai~ Community Development Commission of the City of San Bernardino 24 Approved as to Form: 25 By: ~~1j 26 ~el 27 28 5 P:\Agendas\Resolutions\Resolutions\20 1 0\04-05-1 0 Auto Center PBID Financing CDC Reso.doc cnC/2010-17 1 EXHIBIT "A" 2 3 4 5 6 AUTO CENTER PROPERTY AND BUSINESS IMPROVEMENT DISTRICT WAIVER AND INDEMNIFICATION AGREEMENT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 P:\Agendas\Resolutions\Resolutions\20 10\04-05-10 Auto Center PBID Financing CDC Reso.doc CDC/2010-17 1 2 3 4 5 6 7 8 9 10 11 EXHIBIT "B" FORM OF PROMISSORY NOTE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 P:\Agendas\Resolutions\Resolutions\201 0\04-05-1 0 Auto Center PBID Financing CDC Reso.doc CDC,/ZOlO-17 AUTO CENTER PROPERTY AND BUSINESS IMPROVEMENT DISTRICT WAIVER AND INDEMNIFICATION AGREEMENT THIS AUTO CENTER PROPERTY AND. BUSINESS IMPROVEMENT DISTRICT WAIVER AND INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of February 19, 2010, is entered into by and between Clifford R. Cummings, a married man, and Barbara B. Cummings, a married woman, husband and wife (collectively, the "Cummings"), the owners of the Toyota Dealership (as defined below) and of the Scion Dealership (as defined below), TTL, LLC, a California limited liability company ("TTL"), the owner of the TTL Property (as defined below) which TTL Property is being leased by TTL, as landlord, to Inland Empire Service Center (as defined below), as tenant, pursuant to the Lease (as defined below), and D.T.M. Land Company, LLC, a California limited liability company (the "DTM"), the owner of the DTM Property (as defined below) which DTM Property is the site where the Nissan Dealership (as defined below) is owned and operated by Nissan of Fontana, Inc., a California corporation ("Nissan") (the Cummings, TTL and DTM shall singularly be referred to as a "PBID Owner" and shall collectively be referred to as the "PBID Owners") and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"). In this Agreement, the Agency or the PBID Owners, or anyone of them, may singularly be referred to as a "Party" and may collectively be referred to as the "Parties." RECITALS WHEREAS, the Cummings, as owners of the Cummings Property (as defined below), TTL, as owner of the TTL Property which TTL Property is leased by TTL, as landlord, to the Inland Empire Service Center, as tenant, to permit the Inland Empire Service Center, without limitation, to conduct and to operate the San Bernardino Mitsubishi Service Center (as defined below), and DTM, as owner of the DTM Property and the site where the Nissan Dealership is owned and operated by Nissan, need funds for marketing, public security, safety and enhanced maintenance purposes in connection with the operation of the Toyota Dealership, of the Scion Dealership, of the Nissan Dealership and of the San Bernardino Mitsubishi Service Center. Each automobile dealership and the San Bernardino Mitsubishi Service Center are located in the City of San Bernardino, County of San Bernardino, State of California. Inland Empire Service Center owns and operates the San Bernardino Mitsubishi Service Center at the TTL Property pursuant to the Authorized Service Center Agreement (as defined below). WHEREAS, the PBID Owners desire to create the PBID (as defined below), with the assistance and cooperation of the Agency and the City. WHEREAS, the PBll Owners intend the Borrower (as defined below) to manage and to administer the day-to-day business operations and affairs of the PBID for the benefit of the PBID Owners, to obtain the PBID Loan (as defined below) from the Agency, and to use the proceeds from the PBID Loan to perform and to provide the PBID Services (as defined below) to the PBID Owners. WHEREAS, the Borrower shall at all times be controlled by the PBID Owners, and each of them, until the Indebtedness (as defined below) has been paid to the Agency by the Tax Assessor (as defined below) from the Annual Assessments Payments (as defined below) collected by the Taxing Assessor from the PBID Owners. 4831-0065-3827.3 1 P:\A.gendas\Agenda Attachments\Agenda Attachments\Agreements\20 1 a\PBrD Waiver and Indemniflcation Agreement.doc CDC/2010-17 WHEREAS, the PBID Owners agree to pay each Annual Assessments Payment (as defined below) to the Tax Assessor in the manner provided for in this Agreement. WHEREAS, the Indebtedness under the Note (as defined below) shall be repaid only from the Annual Assessments Payments paid by the PBID Owners to the Tax Assessor.. WHEREAS, the Agency is willing to make the PBID Loan to the Borrower in accordance with terms, covenants and conditions of the Note and of this Agreement. WHEREAS, the PBID Owners understand that the Agency and the City shall have no liability or obligation in connection with the following: (i) the creation, the existence, the rejection, the administration, the maintenance, the expiration and/or the termination of the PBID; (ii) the PBID, or (iii) the performance or the non-performance of the PBID Services by the Borrower, by the Agency or by the City for the benefit of the PBID Owners, or anyone of them. NOW THEREFORE, in consideration of the foregoing Recitals, and for such other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the PBID Owners and the Agency agree as follows: 1. Recitals. The matters set forth in the Recitals of this Agreement are true and correct, are material inducements that caused the Parties to execute and to deliver this Agreement, and are incorporated herein by this reference as if fully set forth in this Section 1. 2. Definitions. The initially capitalized terms defined herein shall have the meanings provided for in the preamble of this Agreement, in the Recitals or in Section 2 of this Agreement. If one or more initially capitalized terms in this Agreement are not defined in the preamble to this Agreement, in the Recitals or in Section 2 of this Agreement, the initially capitalized term or terms shall have the meaning provided for in the Note. Annual Assessments Payment. The "Annual Assessments Payment" shall mean the amount of $304,593, in the aggregate, together with any late fees or interest assessed by the Tax Assessor (as defined below) to be paid by the PBID Owners from each of their respective PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor, commencing with the Second Fiscal Year for a period of four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $1,218,372, together with any late fees or interest assessed by the Tax Assessor. The PBID Owners shall timely pay their respective PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor, commencing with the Second Fiscal Year and for a period of four (4) consecutive Fiscal Years thereafter, as follows: (i) in one (1) lump sum on or before December 10 of each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, but before the last day on which each payment may be paid by each PBID Owner to the Tax Assessor without penalty or interest, or (ii) in two equal payments of $152,296.50 each, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, on or before December 10 and April 10, of each Fiscal Year, but before the last day on which each payment may be paid by each respective PBID Owner to the Tax Assessor without penalty or interest. Annual Assessments Revenues. The "Annual Assessments Revenues" shall collectively mean each PBID Owner's Proportionate Annual Assessments Payment paid, or to be paid, to the Tax Assessor, each Fiscal Year commencing with the Second Fiscal Year for a period of four (4) 4831-0065-3827.3 2 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/2Q10-17 consecutive Fiscal Years thereafter. Each Annual Assessments Revenues paid by the PBID Owners to the Tax Assessor shall be in the amount of $304,593, together with any late fees or interest assessed by the Tax Assessor, for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $1,218,372, together with any late fees or interest assessed by the Tax Assessor. The Annual Assessments Revenues collected by the Tax Assessor, and no other taxes, assessments, revenues or amounts, shall be used to pay to the Agency the Annual Assessments Payment, or any portion thereof, in accordance with the Note. Each PBID Owner's Proportionate Annual Assessments Payment shall be paid by the respective PBID Owner to the Tax Assessor in one (1) lump sum or in two (2) equal installments commencing with the 2010/2011 Fiscal Year through and including the 2013/2014 Fiscal Year. Annual Assessments. Each PBID Owner's Proportionate Annual Assessments Payment is calculated by the City and/or by the Tax Assessor based upon each PBID Owner's special benefit received from the identified services and activities performed and provided by the Borrower on behalf of the PBID and their relative cost. These Annual Assessments are assessments for the services and activities performed and provided by the Borrower which confer special benefits upon the real property owned by the PBID Owners in the PBID for which the services and activities are provided. The Annual Assessments are based upon the estimated expenses the PBID Owners in the PBID will pay for these services. Each PBID Owner's Proportionate Annual Assessments Payment in the PBID is as follows: (i) $21,662.50 for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $86,650, together with late fees and interest charged by the Tax Assessor, assessed against the Toyota Dealership and/or against the underlying real property located at S Show Case Drive, San Bernardino, California, APN: 0141-251-55, (ii) $43,325.25 for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $173,301, together with late fees and interest charged by the Tax Assessor, assessed against the Toyota Dealership and/or against the underlying real property located at 735 Show Case Dr N, San Bernardino, California, APN: 0141-251-59, (iii) $43,325.25 for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $173,301, together with late fees and interest charged by the Tax Assessor, assessed against the Scion Dealership and/or against the underlying real property owned by the Cummings, (iv) $65,474.50 for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $261,898, together with late fees and interest charged by the Tax Assessor, assessed against the TTL Property and/or the operation of the San Bernardino Mitsubishi Service Center, and (v) $130,805.50 for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $523,222, together with late fees and interest charged by the Tax Assessor, assessed against the Nissan Dealership and/or the DTM Property. Each PBID Owner's Proportionate Annual Assessments Payment amount will appear as a line item on its annual San Bernardino County real property tax bills. Authorized Service Center Ae:reement. The "Authorized Service Center Agreement" shall mean the Authorized Service Center Agreement, dated December 1, 2009, by and between Mitsubishi Motors North America, Inc., a California corporation, and the Inland Empire Service Center. Pursuant to the Authorized Service Center. Agreement, without limi tion: (i) Mitsubishi Motors North America, Ine permits the Inland Empire Service Center to opentf the San Bernardino Mitsubishi Service Center at the TTL Property, and (ii) the Inland Empire SeD i :; Center repairs and services Mitsubishi and/or other vehicles and sells Mitsllbishi parts and acces~( ;es. Pursuant to the Authorized Service Center Agreement, the San Bernardino Mitsubishi Service (: lter is an authorized 4831-0065-3827.3 3 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/~OlO-17 service center of Mitsubishi Motors North America, Inc and is operated by the Inland Empire Service Center at the TTL Property. Bankruotcv Court. The "Bankruptcy Court" shall mean the United States Bankruptcy Court Central District of California. Borrower. The "Borrower" shall mean the San Bernardino Auto Center, a California non-profit mutual benefit corporation, organized under the laws of the State of California, acting for and on behalf of the PBID. The Borrower will run the day-to-day operations of the PBID and will, without limitation, annually review the PBID budgets and file annual reports with the Agency. The Borrower shall pay the Indebtedness in accordance with the Note. The Borrower shall be controlled by the PBID Owners until the Indebtedness is paid in full to the Agency from the Annual Assessments Revenues paid by the PBID Owners to the Tax Assessor. City. The "City" shall mean the City of San Bernardino. County. The "County" shall mean San Bernardino County. Cummine:s. The "Cummings" shall collectively mean Clifford R. Cummings, a married man, and Barbara B. Cummings, a married woman, husband and wife, including the heirs, administrators or executors of the Cummings, or either of them. Cummine:s Loan. The "Cummings Loan" shall mean one or more loans now or hereafter made by a lender to the Cummings or to a corporation, partnership, limited liability company, association, trust, or to any other person or entity controlled, directly or indirectly, by the Cummings. The Cummings Loan shall also include, without limitation, any loan secured, in whole or in part, by the Toyota Dealership, or any portion thereof, by the Scion Dealership, or any portion thereof, and/or by the Cummings Property, or any part thereof or interest therein, as amended from time to time. Cummine:s Prooerty. The "Cummings Property" shall mean the following real property, buildings, structures, fixtures and improvements, now or hereafter owned by the Cummings, in fee, located in the City of San Bernardino, County of San Bernardino, State of California: (i) S Show Case Drive, San Bernardino, California, APN: 0141-251-55, the site where the Toyota Dealership is located, (ii) 735 Show Case Dr N, San Bernardino, California, APN: 0141-251-59, the site where the Toyota Dealership is located, and (iii) 650 Auto Center Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-61, and the site where the Scion Dealership is located. DTM. DTM shall mean D.T.M. Land Company, LLC, a California limited liability company. DTM owns in fee the DTM Property which is the site of the Nissan Dealership owned and operated by Nissan. DTM Loan. The "DTM Loan" shall mean one or more loans now or hereafter made by a lender to DTM or to a corporation, partnership, limited liability company, association, trust, or to any other person or entity controlled, directly or indirectly, by DTM. The DTM Loan shall also include, without limitation, any loan secured, in whole or in part, by the Nissan Dealership, or any part thereof, and/or by the DTM Property, or any part thereof or interest therein, as amended from time to time. 4831-0065-3827.3 4 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreemenls\20I O\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 DTM Prouertv. The "DTM Property" shall mean the real property, buildings, structures, fixtures and improvements, now or hereafter owned in fee by DTM, located in the City of San Bernardino, County of San Bernardino, State of California and the site where the Nissan Dealership is located. The DTM Property is located at 735 Show Case Dr S, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-74. Fiscal Year. The "Fiscal Year" shall mean a fiscal year for the County. For purposes of this Agreement and the Note, the Second Fiscal Year shall mean the 2010/2011 Fiscal Year for the County. Each PBID Owner shall pay its respective PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor commencing with the 2010/2011 Fiscal Year and for a period of four (4) consecutive Fiscal Years thereafter with each such Annual Assessments Payment to be paid by each PBID Owner to the Tax Assessor through the 2013/2014 Fiscal Year, unless the PBID is terminated by the PBID Owners prior to the Maturity Date ofthe Note, or extended by the Parties. Indebtedness. The "Indebtedness" shall mean the Principal, all accrued and unpaid interest at the Interest Rate, any and all late fees and interest assessed by the Tax Assessor, and all other fees, charges, sums and amounts (including, without limitation, all attorneys' fees, court costs and expenses) due and payable by the Borrower under the Note. The Indebtedness shall be repaid only from the Annual Assessments Revenues that have been paid by the PBID Owners to the Tax Assessor. The Tax Assessor shall pay to the Agency the Annual Assessments Revenues, or any portion thereof, paid by the PBID Owners and collected by the Tax Assessor, in the manner and subject to the terms, covenants and conditions of the Note and this Agreement. Inland Emuire Service Center. The "Inland Empire Service Center" shall mean the Inland Empire Service Center, a California corporation. The Inland Empire Services Center, as tenant, leases the TTL Property, from TTL, as landlord, and conducts and operates the San Bernardino Mitsubishi Service Center pursuant to the Authorized Service Center Agreement. Interest Rate. The "Interest Rate" shall mean zero percent (0%) per annum and shall accrue on the outstanding principal balance of the Note subject to the terms, covenants and conditions of the Note. Late Chan!e. The "Late Charge" shall mean zero percent (0%) on the payment due and owing by the Borrower to the Agency under the Note, subject to any applicable cure period(s) in the Note. Laws. The "Laws" shall mean all applicable federal, state, municipal and local laws, statutes, codes, ordinances, regulations, rules, orders and judgments, now or hereafter in effect, as amended from time to time. Lease. The "Lease" shall mean the Lease Agreement, dated December 10, 2009 by and between TTL, as landlord, and the Inland Empire Service Center, as tenant, wherein TTL leases the TTL Property to the Inland Empire Service Center in accordance with its terms, covenants and conditions, as amended from time to time. Maturity Date. The "Maturity Date" shall mean December 31, 2014. 4831-0065-3827.3 5 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreernents\2010\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 MitsubishiJ'M:azda Dealership. The "Mitsubishi/Mazda Dealership" shall mean the Mitsubishi/Mazda Dealership that was formerly owned and operated by Southern Automotive Marketing. TTL, as landlord, leased the TTL Property to Southern Automotive Marketing, as tenant, pursuant to the Southern Automotive Marketing Lease. Southern Automotive Marketing filed the Southern Automotive Marketing Bankruptcy Proceedings and the Southern Automotive Marketing Lease was terminated by Southern Automotive Marketing in the Southern Automotive Bankruptcy Proceedings. Southern Automotive Marketing has no right, title or interest in the TTL Property, or any part thereof or interest therein, in the Southern Automotive Marketing Lease, and/or in the Mitsubishi/Mazda Dealership. Nissan Dealership. The "Nissan Dealership" shall mean the Nissan Dealership owned and operated by Nissan on the DTM Property, including, without limitation, all real and personal property, vehicles, trucks, equipment and/or inventory, now or hereafter, owned by Nissan, located on the DTM Property and/or used in connection with or relating to the Nissan Dealership and/or the Nissan franchise. Note. The Note shall mean the Auto Center Property and Business Improvement District Revenues Promissory Note, of even date herewith, executed by the Borrower in favor of the Agency. PBID. The "PBID" shall mean the Auto Center Property and Business Improvement District. The PBID is designed to improve and convey special benefits to the PBID Owners within the PBID. The Borrower, for and on behalf of the PBID Owners in the PBID, will provide services and activities, including, without limitation, marketing, public security, safety, and enhanced maintenance activities not provided by the Agency or by the City to the PBID Owners in the PBID. The PBID shall be created effective February 2, 2009 and shall expire on December 31, 2014, unless sooner terminated or extended by the PBID Owners. PBID Loan. The "PBID Loan" shall mean the loan made by the Agency to the Borrower for and on behalf of the PBID in a principal amount not to exceed the Principal. The Borrower shall use the PBID Loan proceeds to provide marketing, public security, safety, and enhanced maintenance activities for the direct benefit only of the PBID Owners in the PBID. The PBID Loan can be disbursed to the Borrower in one (1) or more advances with the last advance to be made by the Agency to the Borrower no later than December 31, 2013. The PBID Loan is not a revolving loan and any amount of the PBID Loan repaid by or for the Borrower shall not be reborrowed by the Borrower from the Agency. The PBID Loan is evidenced by the Note and the Borrower shall cause the Tax Assessor to pay to the Agency from the Annual Assessments Revenues collected by the Tax Assessor from the PBID Owners, or anyone of them, the principal amount disbursed by the Agency to the Borrower, any late fees or interest imposed or assessed by the Tax Assessor in connection with any delinquent PBID Owner's Annual Assessments Payment, any accrued and unpaid interest at the Interest Rate, if any, and any other fees, charges, amounts and/or sums due and payable under the Note. The PBID Loan shall be paid by the Tax Assessor to the Agency only from the Annual \ssessments Revenues, or any portion thereof, collected by the Tax Assessor from the PBID Owne' or anyone of them, in the manner and subject to the terms, covenants and conditions of the"lte. 4831-0065-3827.3 6 P:\A.gendas\Agenda Attachments\. ,da Attachments\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 PBID Owners. The "PBID Owners" shall collectively mean the following owners of the improved real property located within the PBID: (i) the Cummings who own the Toyota Dealership, (ii) the Cummings who own the Scion Dealership, (iii) DTM who owns the DTM Property which is the site where the Nissan Dealership is owned and operated by Nissan, and (iv) TTL who owns the TTL Property which TTL Property is the site where the San Bernardino Mitsubishi Service Center is located. PBID Owner's Proportionate Annual Assessments Payment. The PBID Owner's Proportionate Annual Assessments Payment shall mean that portion of the Annual Assessments Payment to be paid by each PBID Owner to the Tax Assessor for each Fiscal Year. PBID Services. The "PBID Services" shall mean the services and activities provided by the Borrower to and for the benefit off each PBID Owner in the PBID, including, without limitation, marketing, public security, safety, and enhanced maintenance and marketing activities not provided by the Agency or by the City to the PBID Owners in the PBID. Principal. The "Principal" shall mean one (1) or more advances made by the Agency to the Borrower during the Term of the Note in a principal amount not to exceed $1,218,372, in the aggregate. The PBID Loan is not a revolving loan and the Borrower has no right to reborrow any amount of the PBID Loan that has been repaid to the Agency. The Borrower shall pay the Indebtedness in accordance with the Note. San Bernardino Mitsubishi Service Center. The "San Bernardino Mitsubishi Service Center" shall mean the San Bernardino Mitsubishi Service Center owned and operated by the Inland Empire Service Center at the TTL Property in accordance with the Authorized Service Center Agreement. TTL, as landlord, leases the TTL Property to the Inland Empire Service Center, as tenant, pursuant to the Lease. The Inland Empire Service Center services and repairs, without limitation, vehicles and trucks at the San Bernardino Mitsubishi Service Center. Scion Dealership. The "Scion Dealership" shall mean the Scion Dealership owned by the Cummings and all real property, buildings, structures, improvements, fixtures, vehicles, trucks, inventory, equipment and all other personal property however designated, now or hereafter located at 650 Auto Center Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-61, including, without limitation, all real and personal property, now or hereafter, owned by the Cummings, located on the Cummings Property, or any part thereof, and/or used in connection with or relating to the operation of the Scion Dealership and/or of the Scion franchise. Southern Automotive Marketin2:. "Southern Automotive Marketing" shall mean Southern Automotive Marketing, Inc., a California corporation. Southern Automotive Marketing filed the Southern Automotive Marketing Bankruptcy Proceedings with the Bankruptcy Court. Southern Automotive Marketin2: Bankruptcv Proceedin2:s. The "Southern Automotive Marketing Bankruptcy Proceedings" shall mean the Chapter 11 Case Bankruptcy Proceedings (subsequently converted to a Chapter 7 Case) filed by Southern Automotive Marketing in the Bankruptcy Court on May 20, 2009, and all pleadings, motions:c orders, plans, agreements, proceedings and/or matters, now or hereafter, in connection with and/or relating to In re: Southern Automotive Marketing, Inc., Case No. 6:09-bk-20734-BB. 4831-0065-3827.3 7 P:\Agenrlas\Agenda Attachments\Agenda Attachments\Agreements\20 1 O\PBID Waiver and Indemnification Agreement.doc CDC'/2010-17 State. The "State" means the State of California. Tax Assessor. shall mean the real estate tax assessor for the County of San Bernardino, State of California, or any other governmental authority or entity (including, without limitation, the City), who from time to time will determine, will assesses, will invoice to and/or will collect from the PBID Owners the Annual Assessments Payments to be paid each Fiscal Year by the PBID Owners to the Tax Assessor, in accordance with this Agreement and with the Note. Term. The "Term" shall mean the term of the Note commencing on the date of the Note and continuing thereafter until the Maturity Date, subject to the terms, covenants and conditions of the Note. TTL Loan. The "TTL Loan" shall mean one or more loans now or hereafter made by a lender to TTL, to Inland Empire Service Center and/or to a corporation, partnership, limited liability company, association, trust, or to any other person or entity controlled, directly or indirectly, by TTL and/or by Inland Empire Service Center. The TTL Loan shall also include, without limitation, any loan secured, in whole or in part, by the San Bernardino Mitsubishi Service Center, or any portion or part thereof, and/or by the TTL Property, or any part thereof or interest therein. TTL Property. The "TTL Property" shall mean the improved real property located at 645 Auto Center Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-60. TTL owns the TTL Property in fee. Inland Empire Service Center, as tenant, leases the TTL Property from TTL, as landlord, pursuant and in accordance with the Lease, and the Inland Empire Service Center owns and operates the San Bernardino Mitsubishi Service Center at the TTL Property pursuant to the Authorized Service Center Agreement. Tovota Dealership. The Toyota Dealership shall mean the Toyota Dealership and all real property, structures, buildings, improvements, fixtures, equipment, inventory, trucks, vehicles and all other personal property however designated now or hereafter located at S Show Case Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-55, and located at 735 Show Case Dr N, City of San Bernardino, County of San Bernardino, State of California, APN: 0141- 251-59, including, without limitation, all real and personal property, now and hereafter, owned by the Cummings, located on the Cummings Property, or any part thereof, and/or used in connection with or relating to the operation of the Toyota Dealership and/or ofthe Toyota franchise. 3. Representations. Warranties and Covenants. (a) Each PBID Owner represents, warrants and covenants to the Agency that: (i) it is duly organized or formed, as the case may be, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, and has all requisite power and authority to execute, deliver and perform its obligations under this Agreement, or in the case of the Cummings are individuals who are competent and who have all requisite power and authority to execute, to deliver and to perform the obligations under this Agreement, (ii) the execution, the delivery and the performance by such PBID Owner of this Agreement has been duly authorized by all necessary action of such PBID Owner and does not and will not contravene the terms of the articles or certificate of incorporation, certificate of organization or bylaws, or other applicable organizational documents, of such PBID Owner, or result in a breach of or constitute a default under any material lease, deed of trust, mortgage, instrument, document, contract or other agreement to which such PBID Owner is a 4831-0065-3827.3 8 P:\Agendas\Agenda Attachments\Agencla Attachments\Agreernents\20I O\PBID Waiver and Indemnification Agreement.doc CDciz010-17. party or by which it or its properties may be bound or affected; or violate any provision of any Law or the like binding on or affectmg such PBID Owner, (iii) this Agreement is the legal, valid and binding obligation of such PBID Owner enforceable against such PBID Owner in accordance with its terms, (iv) to the best of the PBID Owner's knowledge, there is no claim, defense, counterclaim or set-off which could be asserted by or is available to such PBID Owner against the Agency or against the City, (v) the PBID Owners, and each of them, have requested the Agency and the City to assist the PBID Owners in the creation of the PBID, without the Agency or the City incurring any liability or obligation in connection with the filing, the petitioning, the creation, the existence, the administration, the termination or the expiration of the PBID, (vi) the PBID Owners, and each of them, have requested the Agency and the City to nominate and to appoint the Borrower to administer and to manage the PBID and to perform and to provide the PBID Services to the PBID Owners located within the PBID, without the Agency or the City incurring any liability or obligation in connection therewith, (vii) the PBID Owners control and manage the Borrower, (viii) such PBID Owner will timely pay its PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor in accordance with this Agreement and with the Note, (ix) the PBID Services to be performed and provided by the Borrower have not been performed or provided to any PBID Owner by the Agency, by the City, by the Borrower or by any other governmental authority, person or entity and (x) such PBID Owner shall comply with all applicable Laws. (b) The Cummings represent, warrant and covenant to the Agency that: (i) the Cummings own the Toyota Dealership and the Scion Dealer~hip, (ii) the Cummings own, and will continue to own in fee simple the underlying improved real property in connection with the Toyota Dealership and with the Scion Dealership, (iii) the Cummings are not in default under the Cummings Loan and the Cummings will not be in default under the Cummings Loan while the Indebtedness remains unpaid, and (iv) the transactions contemplated by the Note and this Agreement do not violate, and will not constitute an event of default under, the Cummings Loan. ( c) DTM represents, warrants and covenants to the Agency that: (i) DTM is the owner of the DTM Property, (ii) the DTM Property is the site where the Nissan Dealership is owned and operated by Nissan, (iii) DTM is not in default under the DTM Loan and DTM will not be in default under the DTM Loan while the Indebtedness remains unpaid, and (iv) the transactions contemplated by the Note and this Agreement do not violate, and will not constitute an event of default under, the DTM Loan. (d) TTL represents, warrants and covenants to the Agency that: (i) Inland Empire Service Center is the owner and operator of the San Bernardino Mitsubishi Service Center pursuant to the Authorized Service Center Agreement, (ii) Inland Empire Service Center has all requisite power and authority to execute, to deliver and to perform its obligations under the Lease and under the Authorized Service Center Agreement, (iii) the execution, the delivery and the performance of the Lease and the Authorized Service Center Agreement have been duly authorized, by all necessary action of Inland Empire Service Center and do not and will not contravene the terms of the articles of incorporation, bylaws, or other applicable organizational documents, of Inland Empire Service Center, or result in a breach of or constitute a default under any material lease, deed of trust, mortgage, instrument, document, contract or other agreement to which Inland Empire Service Center is a party or by which it or its properiies may be bound or affected; or violate any provision of any Law or the like binding on or affecting Inland Empire Service Center, (iv) the Lease and the Authorized Service Center Agreement are the legal, valid and binding obHgations of Inland Empire Service Center 4831-0065-3827.3 9 P:\Agendas\Agenda Attachments\Agenda Attachrnents\Agreements\20 lO\PBll Waiver and Indemnification Agreementdoc CDC'/2QIO-17 enforceable against Inland Empire Service Center in accordance with their terms, (v) TTL owns, and will continue to own in fee simple the TTL Property, (vi) TTL and/or Inland Empire Service Center is not in default under the TTL Loan and TTL and/or Inland Empire Service Center will not be in default under the TTL Loan while the Indebtedness remains unpaid, (vii) the transactions contemplated by the Note and by this Agreement do not violate, and will not constitute an event of default under, the TTL Loan, (viii) the Southern Automotive Marketing Lease has been terminated by the Bankruptcy Court in the Southern Automotive Marketing Bankruptcy Proceedings, and (ix) Southern Automotive Marketing has no right, title or interest in the Southern Automotive Marketing Lease, in the TTL Property, or any part thereof or interest therein, in the possession of the TTL Property, or in the Mitsubishi/Mazda Dealership. The representations and warranties made in this Agreement shall survive the execution, the performance, the expiration and the early termination of this Agreement. 4. Payment of the Annual Assessments Payment. (a) Each PBID Owner shall timely pay its PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor commencing with the Second Fiscal Year and continuing annually thereafter through the 2013/2014 Fiscal Year, unless sooner terminated by the PBID Owners. (b) Each PBID Owner shall timely pay its PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor for four (4) consecutive Fiscal Years, commencing with the Second Fiscal Year, as follows: (i) in one (1) lump sum on or before December 10 of each Fiscal Year, but before the last day on which such payment may be paid by each PBID Owner to the Tax Assessor without penalty or interest, or (ii) in two (2) equal payments of the PBID Owner's Proportionate Annual Assessments Payment due and owing by such PBID Owner for each Fiscal Year, on or before December 10 and April 10 of each Fiscal Year, but before the last day on which each payment may be paid by each respective PBID Owner to the Tax Assessor without penalty or interest. (c) The PBID Owners, in the aggregate, shall pay to the Tax Assessor the Annual Assessments Payment in the amount of $304,593 for each Fiscal Year commencing with the Second Fiscal Year and continuing annually thereafter through and including the 2013/2014 Fiscal Year, together with any other late fees or interest assessed by the Tax Assessor. The PBID Owners shall pay the Annual Assessments Payment together with any late fees and interest assessed by the Tax Assessor to the Tax Assessor for four (4) consecutive Fiscal Years, commencing with the Second Fiscal Year and annually thereafter through the 2013/2014 Fiscal Year, as follows: (i) in one (1) lump sum on or before December 10 of each Fiscal Year, but before the last day on which such payment may be paid by the PBID Owners to the Tax Assessor without penalty or interest, or (ii) in two (2) equal payments of$152,296.50 each due and owing by the PBID Owners for each Fiscal Year, on or before December 10 and April 10 of each Fiscal Year, but before the last day on which each payment may be paid by the PBID Owners to the Tax Assessor without penalty or interest. (d) The Indebtedness shall be paid by the Tax Assessor to the Agency from the Annual Assessments Revenues collected by or for the Tax Assessor from the PBID-0wners, or any one of them, during each Fiscal Year, beginning with the 2010/2011 Fiscal Year and annually thereafter through and including the 2013/2014 Fiscal Year. 4831-0065-3827.3 10 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\2010\PBlD Waiver and Indemnification Agreement.doc CDC/2010-17 (e) Within thirty (30) calendar days from receipt by the Tax Assessor of one (1) lump sum payment from the PBID Owners, or anyone of them, of the Annual Assessments Revenues in the amount of $304,593, or any lesser amount thereof, together with all late charges and interest assessed by the Tax Assessor, the Tax Assessor shall pay to the Agency such Annual Assessments Revenues, or any lesser amount, collected by or for the Tax Assessor from the PBID Owners, or any one of them, for that Fiscal Year. (f) Within thirty (30) calendar days from receipt by the Tax Assessor of an installment of such Annual Assessments Revenues for a given Fiscal Year in the amount of $152,296.50 each, or any lesser amount thereof, together with all late charges and interest assessed by the Tax Assessor, the T?X Assessor shall pay to the Agency each such installment, or any lesser amount, collected by the Tax Assessor from the PBID Owners, or anyone of them, for that Fiscal Year. (g) For the Term of the Note, within thirty (30) calendar days from the receipt by the Tax Assessor of any delinquent Annual Assessments Revenues, or any lesser amount, due and payable by one or more PBID Owners, the Tax Assessor shall pay to the Agency such delinquent Annual Assessments Revenues collected by or for the Tax Assessor from the PBID Owners, or any one of them, together with late fees and interest assessed by the Tax Assessor. (h) The Indebtedness shall be paid in accordance with the Note to the Agency at 201 North "E" Street, Suite 301, San Bernardino, CA 92401-1507, or at such other address as is designated by the Agency in a notice to the Borrower and to the Tax Assessor given as provided for in this Note. (i) On the Maturity Date, the outstanding Indebtedness shall be due and payable from the Annual Assessments Revenues paid by the PBID Owners to, and collected by, the Tax Assessor. 5. Default. An event of default (a "Default") shall occur whenever: (i) one or more of the PBID Owners fails to pay the PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor, or fails to pay any other sum, amount or payment, in accordance with and as required by this Agreement, subject to any applicable cure period, if any, (ii) one or more of the PBID Owners breaches any other covenant, promise or obligation in this Agreement, the Note and/or in any other instrument, document and/or agreement, now or hereafter, evidencing, securing, guaranteeing, hypothecating, relating to, or in connection with, the transactions contemplated in this Agreement, subject to any applicable cure period, (iii) has made a representation or warranty to the Agency that is or becomes false or misleading, (iv) one or more of the PBID Owners is insolvent, fails to pay its debts as they come due, makes an assignment for the benefit of creditors, or files a bankruptcy proceeding, or has a bankruptcy proceeding filed against it. Upon the occurrence of a Default, the Agency may, at its option, declare the Indebtedness under this Note to be immediately due and payable, regardless of the Maturity Date, subject to any cure periods provided for in the Note and in this Agreement, if any (collectively, the "Default Payment Amount"), and the Tax Assessor shall immediately pay to the Agency the Default Payment Amount from the Annual Assessments Revenues collected from the PBID Owners, or anyone of them. 6. Remedies. Upon the occurrence of a Default under this Agreement, and in addition to any other remedies that the Agency and/or the City may have under this Agreement, at law or in equity, the Agency and/or the City may: (i) terminate this Agreement, without having any further 4831-0065-3827.3 11 P:\Agendas\Agenda Attachments\Agenda Attachrnents\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 liability or obligation to the PBID Owners, or to anyone of them, or to the Borrower, (ii) the Agency and/or the City may institute legal action to cure, to correct or to remedy any default under this Agreement, or to obtain any other remedy consistent with the purposes of this Agreement and allowed at law and in equity, subject to the provisions of Section 9.21. Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, located within the City of San Bernardino, or in the Federal District Court, Riverside Branch of the Central District of California. In the event that any legal action is commenced by the Agency and/or by the City against the PBID Owners, or anyone of them, service of process on the PBID Owners, or anyone of them, shall be made by personal service upon the PBID Owners, or anyone of them, at the address provided for in Section 9.17 of this Agreement for each such PBID Owner, in the manner as required by the laws of the State of California. Unless a remedy is held to be exclusive in this Agreement, the remedies provided for in this Agreement shall be cumulative and in addition to any other remedies available to the Agency and/or to the City under this Agreement, at law or in equity. 7. Termination. The Agency and/or the City shall also have the right, but not the obligation, to terminate this Agreement immediately at any time, in the exercise of its sole discretion, upon written notice from the Agency and/or the City to each PBID Owner of such termination of this Agreement (the "Termination Notice Letter") at the address provided for in this Agreement for each PBID Owner. This Agreement shall immediately terminate unless a later date for the effective date of the termination of this Agreement is provided for in the Termination Notice Letter. Upon the effective date of the termination of this Agreement, the Agency and the City shall have no further duty or obligation to the PBID Owners, or anyone of them, or to the Borrower. 8. Indemnification. Each PBID Owner hereby agrees to indemnify, defend, protect and hold harmless the Agency ,and the City from and against and all actions, causes of actions, claims, demands, damages, losses, liabilities, judgments, obligations, proceedings, suits, fees, penalties, fines, costs and expenses (including, without limitation, attorneys' fees, court costs and expert witness fees, now or hereafter existing, known or unknown, conditional or unconditional, of any kind or nature, in connection with, relating to, arising from the following: (i) any and all loss or destruction of or damage to the Toyota Dealership, to the Scion Dealership, to the Nissan Dealership, to the San Bernardino Mitsubishi Service Center, to the PBID, or any portion thereof, to any buildings, structures, signs, improvements, fixtures, personal property, inventory, vehicles, trucks, equipment or any other personal property, of any nature whatsoever, now or hereafter located on or within the PBID, in connection with this Agreement, (ii) any injuries to, or death of any person or persons resulting from the acts or omissions of any PBID Owner, of the Borrower, or of any agent, employee, contractor or subcontractor of any PBID Owner or of the Borrower, or of any other entity or individual, (iii) the acts or omissions of any PBID Owner, of the Borrower and/or of any other entity or individual under this Agreement, (iv) the failure by the PBID Owners, or anyone of them, to payor to remit to the Agency, upon written demand from the Agency to the PBID Owners, of all Annual Assessments Payments, or any portion thereof, that have been paid by the PBID Owners, or anyone of them, to the Tax Assessor, but which have wrongfully been delivered, received or returned by or on behalf of the Tax Assessor, by or on behalf of the City and/or by or on behalf of any other individual, entity or governmental authority, to the PBID Owners, or to anyone of them, or the failure by the PBID Owners, or anyone of them, to pay to the Agency and/or to the City any monetary amounts due under this Agreement, including, without limitation, reasonable attorneys' fees, court costs and expert witness fees, (v) any representation or warranty made by any PBID Owner under this Agreement is or becomes false or is or becomes materially misleading when made or thereafter, (vi) the default by any PBID Owner or the Borrower under the Note and/or this Agreement, (vii) the failure by any PBID Owner or the Borrower 4831-0065-3827.3 12 P:\Agendas\Agenda Anachments\Agenda Attachments\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 to comply with all Laws in accordance with this Agreement, (viii) any claims that the creation of the PBID, the execution of the Note and/or of this Agreement and/or the performance by the Borrower of this PBID Services is an event of default under the Cummings Loan, under the TTL Loan and/or under the DTM Loan (singularly, the "Claim" and collectively, the "Claims"); provided, however, the PBID Owner shall not be liable to the Agency and/or to the City for any of the Claims which are caused by the sole negligence or willful acts or omissions of the Agency and/or of the City. This indemnification provision shall survive the execution, the delivery, the performance, the expiration and the termination of this Agreement. The indemnification obligations provided herein are several, and no PBID Owner shall be responsible for the acts, the omissions, the obligations, the representations or the warranties of any PBID Owner irrespective of the provisions of this Section 8. 9. General Provisions. 9.1 Authoritv. Each signatory of this Agreement represents that such signatory is duly authorized to execute this Agreement on behalf of the Party for which such signatory executes this Agreement. Each Party represents that it has the appropriate legal authority to enter into this Agreement and to perform all obligations under this Agreement. 9.2 Amendment. This Agreement may be amended or modified only by a written agreement executed by each of the Parties to this Agreement which amendment or modification must be approved by the governing board for the Agency. 9.3 Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, except for its conflicts of law rules. Any suit, action or proceeding brought under the scope of this Agreement shall be brought and maintained to the extent allowed by law in the County of San Bernardino, State of California. 9.4 Headinl!:s. The paragraph headings used in this Agreement are intended for convenience only and shall not be used in interpreting this Agreement or in determining any of the rights or obligations of the Parties to this Agreement. 9.5 Construction and Interpretation. This Agreement has been arrived at through negotiations and each Party has had a full and fair opportunity to revise the terms of this Agreement. As a result, the normal rule of construction that any ambiguities are to be resolved against the drafting Party shall not apply in the construction or interpretation of this Agreement. Further, the singular form shall include the plural, the masculine shall include the feminine, and vice versa. 9.6 Entire Al!:reement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any and all prior oral or written agreement, understanding or representation relating to the subject matter ofthis Agreement. 9.7 Partial Invaliditv. If, after the date of execution of this Agreement, any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. 9.8 Successors and Assil!:ns. This Agreement shall be binding on and inure to the benefit of the heirs, devisees, administrators, executors, personal representatives, trustees, spouses, successors and assigns of the respective Parties to this Agreement. The PBID Owners, of anyone of them, may not assign or delegate their right, title and interests in or obligations under this Agreement 4831-0065-3827.3 13 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\20 1 a\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 without the written consent of the Agency which consent shall not be unreasonably withheld, delayed or conditioned by the Agency. The Agency may assign and delegate its rights, title, interest and obligations in, to and under this Agreement without obtaining the prior consent of the PBID Owners, or anyone of them. 9.9 Waivers. Waiver of any breach or default hereunder shall not constitute a continuing waiver or a waiver of any subsequent breach either of the same or of another provision of this Agreement and forbearance to enforce one or more of the remedies provided in this Agreement shall not be deemed to be a waiver of that remedy. 9.10 Attornevs' Fees and Costs. The prevailing Party in any litigation or other action to enforce or interpret this Agreement shall be entitled to reasonable attorneys' fees, court costs, expert witnesses' fees, costs of suit and other and necessary disbursements in addition to any other relief deemed appropriate by a court of competent jurisdiction. The costs, salary and expenses of the City Attorney for the City and members of his office in enforcing this Agreement shall be considered as reasonable "attorneys' fees" for purposes of this Section 9.10. Any such action or proceeding must be commenced in the Superior Court for the County of San Bernardino, San Bernardino District, State of California. 9.11 Necessary Actions. Each Party agrees to execute and deliver additional agreements, documents and instruments and to take any additional actions as may be reasonably required to carry out the purposes of this Agreement. 9.12 Representations and Warranties. Each representation and warranty contained herein or made pursuant hereto shall be deemed to be material and to have been relied upon and shall survive the execution, the delivery, the performance, the expiration or the termination of this Agreement. 9.13 Compliance with Laws. In performing their respective obligations under this Agreement, the Parties shall comply with and conform to all applicable Laws. 9.14 Third Party Beneficiaries. Except for the City, this Agreement shall not create any right or interest in any non-Party or in any member of the public as a third party beneficiary. The City is not a party to this Agreement but the City shall have the right to enforce this Agreement in the event the Agency does not enforce the terms, covenants and/or conditions of this Agreement. 9.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 9.16 Conflicts of Interest; No Individual Liability. No official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any official or employee of the Agency participate in any decision relating to this Agreement which affects such official's or employee's pecuniary interest in any corporation, partnership, limited liability company, or association in which such official or employee is directly or indirectly interested. No official or employee of the Agency shall be personally liable in the event of a breach of this Agreement by the Agency. 4831-0065-3827.3 14 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 9.17 Notices. All notices, requests, demands or other communications required or permitted under this Agreement shall be in writing unless provided otherwise in this Agreement and shall be deemed to have been duly given and received on: (i) the date of service if served personally or served by facsimile transmission on the Party to whom notice is to be given at the address or addresses as provided below, (ii) on the first business day after mailing, if mailed or dispatched by Federal Express, U.S. Express Mail, or other similar overnight courier service, postage prepaid and addressed as provided below, or (iii) on the third (3rd) business day after mailing if mailed to the Party to whom notice is to be given by first class mail, registered or certified, postage prepaid, addressed as follows: To the Agency: Redevelopment Agency of the City of San Bernardino Attn.: Emil A. Marzullo, Interim Executive Director 201 North "E" Street, Suite 301 . San Bernardino, California 92401 Phone: (909) 663-1044 Fax: (909) 663-2294 With a copy to: Lewis Brisbois Bisgaard & Smith LLP Attn.: Timothy J. Sabo 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Phone: (909)-387-1130 Fax: (909) 387-1138 To the PBID Owners: Clifford R. Cummings Barbara B. Cummings 735 Show Case Drive N San Bernardino, California 92408 TTL, LLC 645 Auto Center Drive San Bernardino, California 92408 D.T.M. Land Company, LLC Attn.: David A. Marvin 9440 Autoplex Drive Montclair, California 91763 9.18 Broker. Each Party will defend, indemnify, and hold the other Party harmless from any claim, loss, or liability made or imposed by any other Party claiming a commission or fee in connection with this transaction and arising out of that Party's own conduct. 9.19 Cumulative Remedies. No failure on the part ofthe Agency to exercise, and no delay in exercising any right, remedy, power or privii ege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such rig' remedy, power or privilege preclude any other or further exercise thereof or the exercise of any otk) right, remedy, power or privilege. The rights and remedies under this Agreement are cumulative 3i'! not exclusive of any rights, remedies, powers and privileges that may othen\ise be available to the j' <:;ncy under this Agreement, at law or in equity. 4831-0065-3827.3 15 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\2010\PBID Waiver and Indernnificatic ]eement.doc CDC/2010-17 9.20 Governine: Law. This Agreement shall be governed and construed III accordance with the laws of the State ofCalifomia. 9.21 Several Liability Only. The obligations of the PBID Owners are several, and no PBID Owner shall be responsible for the acts, the omissions, the obligations, the representations or the warranties of any other PBID Owner, including, without limitation, the failure of another PBID Owner to pay its PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor. Nothing in this Agreement and no action by the PBID Owners under this Agreement shall be deemed to constitute the PBID Owners as a partnership. END OF PAGE 4831-0065-3827.3 16 P:\Agendas\Agenda Attachrnents\Agenda Attachments\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 IN WITNESS WHEREOF, the Borrower has executed this Auto Center Property and Business Improvement District Waiver and Indemnification Agreement as of the date first written above. AGENCY Date: ~ .,..~It () Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic .~ dZ -'~ By: Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: By: C~~ Agency C sel By: By: By: Name: Title: TTL, LLC, a California limited liability company ~lf 1JJuat-- r t.:6I~t /l~ (9GA&J2 ~n tYJ {hi 46JB}{." By: Name: Title: 4831-0065-3827.3 17 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\2010\PBID Waiver and Indemnification Agreement.doc CDC/2010-17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 EXHIBIT "B" FORM OF PROMISSORY NOTE 20 21 22 23 24 25 26 27 28 7 P:\Agendas\Resolutions\Resolutions\2010\04-05-10 Auto Center PBID Financing CDC Reso.rloc CDC/2010-17 AUTO CENTER PROPERTY AND BUSINESS IMPROVEMENT DISTRICT REVENUES PROMISSORY NOTE Date: February 19,2010 $1,218,372 San Bernardino, California THE UNDERSIGNED, THE SAN BERNARDINO AUTO CENTER, a California non-profit mutual benefit corporation (the "Borrower") for and on behalf of the AUTO CENTER PROPERTY AND BUSINESS IMPROVEMENT DISTRICT (the "PBID"), promises to pay to the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic (the "Agency"), or order, or to the Agent's assignee, the Principal (as defined below), all accrued and unpaid interest at the Interest Rate (as defined below), and all other amounts, charges and fees (including, without limitation, reasonable attorneys' fees, court costs and expenses), in lawful money of the United States, in accordance with and subject to the terms, covenants and conditions of this Auto Center Property and Business Improvement District Revenues Promissory Note (the "Note"). 1. Definitions. The initially capitalized terms defined herein shall have the following meanings where appearing in this Note. Annual Assessments Payment. The "Annual Assessments Payment" shall mean the amount of $304,593, in the aggregate, together with any late fees or interest assessed by the real estate tax assessor for the County of San Bernardino, State of California (the "Tax Assessor") to be paid by the PBID Owners from each of their respective PBID Owner's Proportionate Annual Assessments Payment, commencing with the Second Fiscal Year for a period of four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $1,218,372, together with any late fees or interest assessed by the Tax Assessor. The PBID Owners shall timely pay their respective PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor commencing with the Second Fiscal Year and for a period of four (4) consecutive Fiscal Years thereafter, as follows: (i) in one (1) lump sum on or before December 10 of each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, but before the last day on which each payment may be paid by each PBID Owner to the Tax Assessor without penalty or interest, or (ii) in two equal payments of$152,296.50 each, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, on or before December 10 and April 10, of each Fiscal Year, but before the last day on which each payment may be paid by each respective PBID Owner to the Tax Assessor without penalty or interest. Annual Assessments Revenues. The "Annual Assessments Revenues" shall collectively mean each PBID Owner's Proportionate Annual Assessments Payment paid, or to be paid, to the Tax Assessor, each Fiscal Year commencing with the Second Fiscal Year for a period of four (4) consecutive Fiscal Years thereafter. Each Annual Assessments Revenues paid by the PBID Owners to the Tax Assessor shall be in the amount of $304,593, together with any late fees or interest assessed by the Tax Assessor, for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, and in the aggregate amount not to exceed $1,218,372, together with any late fees or interest assessed by the Tax Assessor. The Annual Assessments Revenues collected by the Tax Assessor, and no other taxes, assessments, revenues or amounts, shall be used to 4835-5786-1381.2 1 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\2010\PBID Promissory Note.doc CDC/2010-17 pay to the Agency the Annual Assessments Payment, or any portion thereof. Each PBID Owner's Proportionate Annual Assessments Payment shall be paid by the PBID Owner to the Tax Assessor in one (1) lump sum or in two (2) equal installments commencing with the 2010/2011 Fiscal Year through and including the 2013/2014 Fiscal Year. Annual Assessments. Each PBID Owner's Proportionate Annual Assessments Payment is calculated by the City and/or by the Tax Assessor based upon each PBID Owner's special benefit received from the identified services and activities by the Borrower on behalf of the PBID and their relative cost. These Annual Assessments are assessments for the services and activities which confer special benefits upon the real property owned by the PBID Owners in the PBm for which the services and activities are provided. The Annual Assessments are based upon the estimated expenses the PBID Owners in the PBID will pay for these services. Each PBID Owner's Proportionate Annual Assessments Payment in the PBID is as follows: (i) $21,662.50 for each Fiscal Year commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $86,650, together with late fees and interest charged by the Tax Assessor, assessed against the Toyota Dealership and/or against the real property located at S Show Case Drive, San Bernardino, California, APN: 0141-251-55, owned by the Cummings, (ii) $43,325.25 for each Fiscal Year commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $173,301, together with late fees and interest charged by the Tax Assessor, assessed against the Toyota Dealership and/or against the real property located at 735 Show Case Dr N, San Bernardino, California, APN: 0141-251-59, owned by the Cummings, (iii) $43,325.25 for each Fiscal Year commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $173,301, together with late fees and interest charged by the Tax Assessor, assessed against the Scion Dealership and/or the real property located at 650 Auto Center Drive, San Bernardino, California, APN: 0141-251-61, owned by the Cummings, (iv) $65,474.50 for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $261,898, together with late fees and interest charged by the Tax Assessor, assessed against the TTL Property and/or the operation of the San Bernardino Mitsubishi Service Center, and (v) $130,805.50 for each Fiscal Year, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in the aggregate amount not to exceed $523,222, together with late fees and interest charged by the Tax Assessor, assessed against the DTM Property and/or against the Nissan Dealership. Each PBID Owner's Proportionate Annual Assessments Payment amount will appear as a line item on its annual San Bernardino County real property tax bills. Authorized Service Center Ae:reement. The "Authorized Service Center Agreement" shall mean the Authorized Service Center Agreement, dated as of December 1,2009, by and between Mitsubishi Motors North America, Inc., a California corporation, and Inland Empire Service Center. Pursuant to the Authorized Service Center Agreement, without limitation: (i) Mitsubishi Motors North America, Inc permits the Inland Empire Service Center to operate the San Bernardino Mitsubishi Service Center at the TTL Property, and (ii) the Inland Empire Service Center repairs and services Mitsubishi and/or other vehicles and sells Mitsubishi parts and accessories. Pursuant to the Authorized Service Center Agreement, the San Bernardino Mitsubishi Service Center is an authorized service center of Mitsubishi Motors North America, Inc. and is operated by the Inland Empire Service Center at the TTL Property. Bankruptcy Court. The "Bankmptcy Court" shall mean the United States Bankruptcy Court Central District of California. 4835-5786-1381.2 2 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\20 I D\PBID Promissory Note. doc CDC/2010-17 Borrower. The "Borrower" shall mean the San Bernardino Auto Center, a California non-profit mutual benefit corporation, organized under the laws of the State of California, acting for and on behalf of the PBID. The Borrower will run the day-to-day operations of the PBID and will, without limitation, annually review the PBID budgets and file annual reports with the Agency. The Borrower shall pay the Indebtedness in accordance with this Note. The Borrower shall be controlled by the PBID Owners until the Indebtedness is paid in full to the Agency from the Annual Assessments Revenues paid by the PBID Owners to the Tax Assessor. City. The "City" shall mean the City of San Bernardino. County. The "County" shall mean San Bernardino County. Cummines. The "Cummings" shall collectively mean Clifford R. Cummings, a married man, and Barbara B. Cummings, a married woman, husband and wife, including the heirs, administrators or executors of the Cummings, or either of them. DTM. "DTM" shall mean D.T.M. Land Company, LLC, a California limited liability company. DTM owns in fee the DTM Property and owns and operates the Nissan Dealership at the DTM Property. DTM Property. The "DTM Property" shall mean the real property, buildings, structures, fixtures and improvements, now or hereafter owned in fee by DTM, located in the City of San Bernardino, County of San Bernardino, State of California and the site where the Nissan Dealership is located. The DTM Property is located at 735 Show Case Dr S, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-74. Fiscal Year. The "Fiscal Year" shall mean a fiscal year for the County. For purposes of this Note, the Second Fiscal Year shall mean the 2010/2011 Fiscal Year for the County. The PBID Owners shall pay the PBID Owner's Proportionate Annual Assessments Payment to the Tax Assessor commencing with the 2010/2011 Fiscal Year and for a period of four (4) consecutive Fiscal Years thereafter with each such Annual Assessments Payment to be paid by the PBID Owners to the Tax Assessor through the 2013/2014 Fiscal Year, unless the PBID is terminated by the PBID Owners prior to the Maturity Date of this Note, or extended. Indebtedness. The "Indebtedness" shall mean the Principal, all accrued and unpaid interest at the Interest Rate, any and all late fees and interest assessed by the Tax Assessor, and all other fees, charges, sums and amounts (including, without limitation, all attorneys' fees, court costs and expenses) due and payable by the Borrower under the Note. The Indebtedness shall be repaid only from the Annual Assessments Revenues that have been paid by the PBID Owners to the Tax Assessor. The Tax Assessor shall pay to the Agency the Annual Assessments Revenues, or any portion thereof, paid by the PBID Owners and collected by the Tax Assessor, in the manner and subject to the terms, covenants and conditions of this Note. Inland Empire Service Center. The "Inland Empire Service Center" shall mean the Inland Empire Service Center, a California corporation. The Inland Empire Service Center, as tenant, leases the TTL Property from TTL, as landlord, pursuant to the Lease, and conducts and operates the San Bernardino Mitsubishi Service Center pursuant to the Authorized Service Center Agreement. 4835-5786-1381.2 3 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\201 D\PBll Promissory Note.doc CDC/2010-17 . . Interest Rate. The "Interest Rate" shall mean zero percent (0%) per annum and shall accrue on the outstanding principal balance of the Note subject to the terms, covenants and conditions of the Note. Late Charge. The "Late Charge" shall mean zero percent (0%) on the payment due and owing by the PBID to the Agency under this Note, subject to any applicable cure period(s) in this Note. Laws. The "Laws" shall mean all applicable federal, state, municipal and local laws, statutes, codes, ordinances, regulations, rules, orders and judgments, now or hereafter in effect, as amended from time to time. Lease. The "Lease" shall mean the Lease Agreement, dated December 10, 2009 by and between TTL, as landlord, and the Inland Empire Service Center, as tenant, wherein TTL leases the TTL Property to the Inland Empire Service Center in accordance with the terms, covenants and conditions of the Lease, as amended from time to time. Maturitv Date. The "Maturity Date" shall mean December 31, 2014. Nissan Dealership. The ''Nissan Dealership" shall mean the Nissan Dealership owned and operated by Nissan of Fontana, Inc., a California corporation ("Nissan") on the DTM Property, including, without limitation, all real and personal property, vehicles, trucks, equipment and/or inventory, now or hereafter, owned by Nissan, located on the DTM Property, used in connection with and/or relating to the Nissan Dealership and/or the Nissan franchise. PBID. The "PBID" shall mean the Auto Center Property and Business Improvement District. The PBID is designed to improve and convey special benefits to the PBID Owners within the PBID. The Borrower, for and on behalf of the PBID Owners in the PBID, will provide new services and. activities, including, without limitation, public security and safety, enhanced maintenance and marketing activities not provided by the Agency or by the City to the PBID Owners in the PBID. The PBID shall be created effective February 2, 2009 and shall expire on December 31, 2014, unless sooner terminated or extended by the PBID Owners. PBID Loan. The "PBID Loan" shall mean the loan made by the Agency to the Borrower for and on behalf of the PBID in an amount not to exceed the Principal. The Borrower shall use the PBID Loan proceeds to provide public security and safety, enhanced maintenance and marketing activities for the benefit only of the PBID Owners in the PBID. The Loan can be disbursed to the Borrower in one (1) or more advances with the last advance to be made by the Agency to the Borrower no later than December 15,2013. The PBID Loan is not a revolving loan and any amount of the Loan repaid by the Borrower shall not be reborrowed by the Borrower from the Agency. The PBID Loan is evidenced by this Note and the Borrower shall cause the Tax Assessor to pay to the Agency from the Annual Assessments Revenues collected by the Tax Assessor from the PBID Owners, or anyone of them, the principal amount disbursed by the Agency to the Borrower, any late fees Of interest imposed or aSSt ;;:ed by the Tax Assessor in connection with any delinquent PBID Owner's Annual Assessments P:~ nent, any accrued and unpaid interest at the Interest Rate, if any, and any other fees, charges, amr1ts and/or sums due and payable under this Note. The PBID Loan shall be paid by the Tax AssessCli '0 the Agency only from the Aruma] Assessments Revenues, or any 4835-5786-1381.2 4 P:\Agendas\Agenrla Attachments\Agenda Attachments\Agreeme ~010\PBID Promissory Note.doc CDC/2010-17 portion thereof, collected by the Tax Assessor from the PBID Owners, or anyone of them, in the manner and subject to the terms, covenants and conditions of this Note. PBID Owners. The "PBID Owners" shall collectively mean the following owners of the improved real property located within the PBID: (i) the Cummings who own the Toyota Dealership in City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251- 55 and 0141-251-59, (ii) the Cummings who own the Scion Dealership in the City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-61, (iii) DTM who owns the DTM Property in the City of San Bernardino, County of San Bernardino, State of California, APN: 0141- 251-74, and (iv) TTL who owns the land in the City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-60 where the San Bernardino Mitsubishi Service Center is located. The San Bernardino Mitsubishi Service Center is owned and operated by Inland Empire Service Center. PBID Owner's Proportionate Annual Assessments Payment. The PBID Owner's Proportionate Annual Assessments Payment shall mean that portion of the Annual Assessments ' Payment to be paid by a PBID Owner to the Tax Assessor for each Fiscal Year commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter. PBID Services. The "PBID Services" shall mean the services and activities provided by the Borrower to and for the benefit of each PBID Owner in the PBID, including, without limitation, marketing, public security, safety, and enhanced maintenance and marketing activities not provided by the Agency or by the City to the PBID Owners in the PBID. Principal. The "Principal" shall mean one (1) or more advances made by the Agency to the Borrower during the Term of the Note in a principal amount not to exceed $1,218,372, in the aggregate. The PBID Loan is not a revolving loan and the Borrower will have no right to reborrower any amount of the PBID Loan that has been repaid by the Borrower to the Agency. San Bernardino Mitsubishi Service Center. The "San Bernardino Mitsubishi Service Center" shall mean the San Bernardino Mitsubishi Service Center owned and operated by the Inland Empire Service Center at the TTL Property pursuant to and in accordance with the Authorized Service Center Agreement. Scion Dealership. The "Scion Dealership" shall mean the Scion Dealership owned and operated by the Cummings and all real property, buildings, structures, improvements, fixtures, vehicles, trucks, inventory, equipment and all other personal property however designated, now or hereafter located at 650 Auto Center Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-61, including, without limitation, all real and personal property, now or hereafter, owned by the Cummings, located at 650 Auto Center Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-61, and/or used in connection with and/or relating to the operation of the Scion Dealership and/or of the Scion franchise. Second Fiscal Year. The "Second Fiscal Year" shall mean the 2010/2011 Fiscal Year of the County. State. The "State" means the State of California. 4835-5786-1381.2 5 P:\;\gendas\Agenda Attachments\A~enda Attachments\Agreements\20 I O\PBID Promissory Note.doc CDC/2010-17 Tax Assessor. The "Tax Assessor" shall mean the real estate tax assessor for the County of San Bernardino, State of California, or any other governmental authority or entity (including, without limitation, the City), who from time to time will determine, will assess, will invoice to and/or will collect from the PBID Owners the Annual Assessments Payments to be paid each Fiscal Year by the PBID Owners to the Tax Assessor, commencing with the Second Fiscal Year and for four (4) consecutive Fiscal Years thereafter, in accordance with this Agreement and with the Note. Term. The "Term" shall mean the term of this Note commencing on the date of the execution of this Note and continuing thereafter until the Maturity Date, subject to the terms, covenants and conditions of this Note. Tovota Dealership. The Toyota Dealership shall mean the Toyota Dealership owned and operated by the Cummings and all real property, structures, buildings, improvements, fixtures, equipment, inventory, trucks, vehicles and all other personal property however designated now or hereafter located at S Show Case Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-55, and located at 735 Show Case Dr N, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-59, including, without limitation, all real and personal property, now or hereafter, owned by the Cummings, located on the Cummings Property, or any part thereof, and/or used in connection with or relating to the operation of the Toyota Dealership and/or of the Toyota franchise. TTL. "TTL" shall mean TTL, LLC, a California limited liability company. TTL owns in fee the TTL Property and leases the TTL Property to Inland Empire Service Center, as tenant, pursuant to the Lease. TTL Pronertv. The "TTL Property" shall mean the real property, buildings, structures, fixtures and improvements located at 645 Auto Center Drive, City of San Bernardino, County of San Bernardino, State of California, APN: 0141-251-60. TTL owns the TTL Property in fee. Inland Empire Service Center, as tenant, leases the TTL Property from TTL, as landlord, pursuant and in accordance with the Lease, and Inland Empire Service Center owns and operates the San Bernardino Mitsubishi Service Center at the TTL Property pursuant to the Authorized Service Center Agreement. 2. Interest. Commencing on the date ofthis Note, interest shall accrue at the Interest Rate on the outstanding Principal of this Note until the Maturity Date or the date that the Indebtedness is paid in full by under this Note to the Agency, whichever occurs last. Interest shall be computed based on a 365/366 day year and the actual number of days elapsed. 3. Pavment of the Indebtedness. (a) The Indebtedness shall be paid by the Tax Assessor to the Agency from the Annual Assessments Revenues collected by the Tax Assessor from the PBID Owners, or anyone of them, during each Fiscal Year, beginning with the 2010/2011 Fiscal Year and annually thereafter through and including the 2013/2014 Fiscal Year. (b) Within thirty (30) calendar days from receipt by the Tax Assessor of one (1) lump sum payment from the PBID Owners, or anyone of them, of the Annual Assessments Revenues in the amount of $304,593, or any lesser amount thereof, the Tax Assessor shall pay to the Agency 4835-5786-1381.2 6 P:\Agendas\Agenda Attachments\Agenda Attachments\Agreements\20 1 O\PBID Promissory Note.doc CDC/2010-17. such Annual Assessments Revenues, or al?Y lesser amount, collected by the Tax Assessor from the PBID Owners, or anyone of them, for that Fiscal Year. (c) Within thirty (30) calendar days from receipt by the Tax Assessor of an installment of such Annual Assessments Revenues for a given Fiscal Year in the amount of $152,296.50 each, or any lesser amount thereof, the Tax Assessor shall pay to the Agency each such installment, or any lesser amount, collected by the Tax Assessor from the PBID Owners, or anyone of them, for that Fiscal Year. (d) For the Term of this Note, within thirty (30) calendar days from the receipt by the Tax Assessor of any delinquent Annual ,Assessments Revenues, or any lesser amount, due and payable by one or more PBID Owners, the Tax Assessor shall pay to the Agency such delinquent Annual Assessments Revenues collected by the Tax Assessor from the PBID Owners, or anyone of them, together with late fees and interest assessed by the Tax Assessor. (e) The Indebtedness shall be paid in accordance with this Note to the Agency at 201 North "E" Street, Suite 301, San Bernardino, CA 92401-1507, or at such other address as is designated by the Agency in a notice to the Borrower given as provided for in this Note. (f) On the Maturity Date, the outstanding Indebtedness shall be due and payable from the Annual Assessments Revenues paid by the PBID Owners to, and collected by, the Tax Assessor. 4. Representations and Warranties. The Borrower represents and warrants to the Agency that: (i) the Borrower is duly organized or formed, as the case may be, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, and has all requisite power and authority to execute, deliver and perform its obligations under this Note, (ii) the execution, delivery and performance by the Borrower of this Note has been duly authorized by all necessary action of the Borrower and does not and will not contravene the terms of the articles or certificate of incorporation, or bylaws, or other applicable organizational documents, of the Borrower, or result in' a breach of or constitute a default under any material lease, instrument, contract or other agreement to which the Borrower is a party or by which it or its properties may be bound or affected; or violate any provision of any law, rule, regulation, order, judgment, decree or the like binding on or affecting the Borrower, (iii) this Note is the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, and (iv) to the best of the Borrower's knowledge, there is no claim, defense, counterclaim or set-off which could be asserted by or is available to the Borrower against the Agency. 5. Prepayment. This Note may be prepaid by the Borrower, at any time, in whole or in part, without premium or penalty, as long as any principal prepayment is accompanied by a payment of interest accrued to the date of prepayment on the amount prepaid, if any, and any and all late charges or other amounts then owed by the Borrower hereunder, if any. 6. Application of Payments. Each payment under this Note shall be credited first to: (i) any attorneys' fees and court costs, any late charges and interest thereon, (ii) all accrued and unpaid interest, if any, and then to (iii) Principal then due and payable under this Note. 4835-5786-1381.2 7 P:lAgendaslAgenda AttachmentslAgenda AttachmentslAgreements\2010lPBID Promissory Note. doc CDC/2010-17 7. Conditions Precedent. The Agency shall have no duty or obligation to execute, deliver or perform under this Note until all conditions precedent provided for in this Note have been fully performed and satisfied by or for the Borrower (or have been expressly waived in writing by the Agency). 8. Notice. Any notice required to be provided in this Note shall be given in writing and shall be sent (i) for personal delivery by a delivery service that provides a record of the date of delivery, the individual to whom delivery was made, and the address where delivery was made, (ii) by first-class certified United States mail, postage prepaid, return receipt requested, or (iii) by a nationally recognized overnight courier service, marked for next day business delivery. All notices shall be addressed to the party to whom such notice is to be given at the address stated below or to such other address as a party may designate by written notice to the other. All notices shall be deemed effective on the earliest of (a) actual receipt, (b) rejection of delivery, (c) if sent by certified mail, the second day on which regular United States mail delivery service is provided after the day of mailing or, if sent by overnight delivery service, on the next day on which such service makes next-business day deliveries after the day of sending. The address for the Borrower and for the Agency shall be as follows, subject to any written notice of a change of address by one party to the other: Address For the Agency: Redevelopment Agency ofthe City of San Bernardino Attention: Emil A. Marzullo, Interim Executive Director 201 North "E" Street, Suite 301 San Bernardino, California 92401 Telephone: (909) 663-1044 Fax: (909) 663-2294 With a copy to: Lewis Brisbois Bisgaard & Smith LLP Attention: Timothy J. Sabo 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Telephone: (909) 387-1130 Fax: (909) 387-1138 Address For Borrower: San Bernardino Auto Center Attention: Cathleen McCarthy 10832 C Lemon Drive PMB 120 Y orba Linda, California 92886 Telephone: (714) 878-4848 9. Default. Subject to Section 7 of this Note, and any applicable cure period(s) provided for in this Note, a default shall occur whenever the Borrower: (i) fails to pay to the Agency any sum due under this Note when it becomes due and payable, (ii) breaches any other covenant, promise or obligation in this Note or any other instrument, document and/or agreement, now or hereafter, evidencing, securing, guaranteeing, hypothecating, relating to, or in connection with, the transaction contemplated in this Note, (iii) has made a representation or warranty to the Agency that is or becomes false, (iv) the Agency is not timely paid from the Tax Assessor the AImual Assessments Payments collected by the Tax Assessor from the PBID Owners, or anyone of them, (v) one or more of the PBTD Owner's fails to pay to the Tax Assessor its PBID Owner's Proportionate Annual Assessments Payment, or any portion thereof, or (vi) the PBID is tem1inated (singularly and collectively, a 4835-5786-1381.2 8 P;\Agendas\Agenda Attachments\Agenda Attachments\Agreements\20 1 O\PBID Promissory Note.doc CDC/2010-17 "Default"). Upon the occurrence of a Default, the Agency may, at its option, declare the Indebtedness under this Note to be immediately due and payable, regardless of the Maturity Date, subject to any cure periods provided for in this Note, if any (collectively, the "Default Payment Amount"), and the Tax Assessor shall immediately pay to the Agency the Default Payment Amount from the Annual Assessments Revenues collected from the PBID Owners, or anyone of them. 10. Unsecured Promissory Note. This Note is unsecured, and is not secured by any real or personal property of any nature whatsoever. The Indebtedness under this Note shall be paid by the Tax Assessor only from the Annual Assessments Revenues collected by the Tax Assessor from the PBID Owners, or anyone of them. 11. Modification. This Note may not be modified, amended, waived or extended, changed, discharged or terminated orally or by any act on the part of the Agency or of the Borrower, but only by an agreement in writing signed by the Agency and the Borrower. 12. Headines. The headings of this Note are for purposes of reference only and shall not limit or otherwise affect the meaning thereof. 13. Interpretation. Common nouns and pronouns shall be deemed to refer to the masculine, feminine, neuter, singular and plural, as the identity of the person or entity may in the context require. 14. Governine Law. This Note shall be governed by and construed in accordance with the laws of the State of California. 15. No Waiver; Cumulative Remedies. No failure on the part of the Agency to exercise, and no delay in exercising any right, remedy, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, remedy, power or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights and remedies under this Note are cumulative and not exclusive of any rights, remedies, powers and privileges that may otherwise be available to the Agency under this Note, at law or in equity. 16. Entire Aereement. This Note contains the entire agreement of the Borrower with respect to the subject matter hereof. 17. Severabilitv. Whenever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under all applicable laws and regulations. If, however, any provision of this Note shall be prohibited by or invalid under any such law or regulation in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such law or regulation, or, if for any reason it is not deemed so modified, it shall be ineffective and invalid only to the extent of such prohibition or invalidity without affecting the remaining provisions of this Note, or the validity or effectiveness of such provision in any other jurisdiction. 18. Judicial Proceedines and Attornevs' Fees. If either party hereto files any action or brings any action or proceeding against the other arising out of this Note, then as between the Agency and the Borrower, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the Court, in such action or proceeding or in 4835-5786-1381.2 9 P:\Agendas\Agenda Attachments\Agenrla Attachments\Agreements\20 IO\PBID Promissory Note,doc CDC/2010-17 a separate action or proceeding brought to recover such attorneys' fees. The costs, salary and expenses of the City Attorney for the City and members of his office in enforcing this Note shall be considered as "attorneys' fees" for purposes of this Section. Any such action or proceeding must be commenced in the Superior Court for the County of San Bernardino, San Bernardino District, State of California. 19. Enforcement Costs. All reasonable out-of-pocket costs incurred by the Agency in the enforcement of this Note shall be added to the amounts due under this Note. 20. Assie:nment. This Note may be assigned by the Agency but not by the Borrower, without the prior written consent of the Agency which consent may be given or withheld by the Agency in it sole and absolute discretion. No consented to assignment by the Borrower shall relieve the Borrower from any of its obligations or liabilities hereunder. The terms, covenants and conditions of this Note shall be binding upon, and inure to the benefit of, the successors and assigns of Agency and the Borrower. END OF PAGE 4835-5786-1381.2 10 P: \Agendas\Agenda Attachments\Agenda Attachments\Agreements\20 1 O\PBrD Promissory Nate. doc CDC/2010-17 IN WITNESS WHEREOF, the Borrower has executed this Auto Center Property and Business Improvement District Revenues Promissory Note as of the date first written above. BORROWER By: $ Name: Title: 4835-5786-1381.2 11 P:\Agendas\Agenda Attachrnents\Agenda Attachments\Agreements\2010\PBID Promissory Note.doc