HomeMy WebLinkAbout1992-5343
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RESOLUTION NO. 5343
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, APPROVING A CERTAIN OWNER
PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND EMBLEM DEVELOPMENT
CORPORATION
WHEREAS, the City of San Bernardino, California (the
is a municipal corporation and a charter city duly
9 created and existing pursuant to the Constitution and the laws of
10 the State of California; and
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13 City of
WHEREAS, the Community Development Commission of the
San Bernardino (the "Commission") on behalf of the
14 Redevelopment Agency
of the city of San Bernardino (the
"Agency"), is a redevelopment agency, a public body, corporate
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16 and politic of the State of California, organized and existing
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pursuant
Division 24)
to
the
Community
Law
(Part
1
of
Redevelopment
commencing with Section 33000 of the Health and
19 Safety Code of the State of California (the "Act"); and
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WHEREAS, the City and the Commission have previously
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22 approved and adopted the Redevelopment Plan for the State College
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Redevelopment proj ect Area
Plan"); and
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(the "State College Redevelopment
WHEREAS, in connection with the implementation of the
27 State College Redevelopment Plan, the Agency has received a
28 request from Emblem Development Corporation (the "Participating
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1 Owner") to assist in the development of a certain low- and
2 moderate-income housing project (the "Project") to be located
3 near the intersection of 4th Avenue and Kendall Road, which is
4 within the Project Area subject to the Redevelopment Plan; and
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6 WHEREAS, the Agency deems it desirable to assist the
7 Participating Owner in the development of the Project to the
8 extent that the Agency shall provide a loan to the Participating
9 Owner for the costs of construction of the improvements
10 comprising the Project; and
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12 WHEREAS, the amount of the Agency assistance shall be
13 in an amount not to exceed $472,000 and shall be repaid upon the
14 sale of individual lots which comprise the Project; and
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16 WHEREAS, the Project involves the development of fifty-
17 nine (59) detached single family dwelling units to be occupied by
18 low and moderate income families which in turn will improve
19 housing opportunities within the Project Area; and
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23 the Agency and the Participating Owner, a copy of which is
24 attached hereto as Exhibit "A" and incorporated herein by this
25 reference which sets forth the terms of the Agency's assistance.
WHEREAS, the Agency at this time deems it desirable to
approve that certain Owner Participation Agreement by and between
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1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF
2 THE CITY OF SAN BERNARDINO, CALIFORNIA, DOES HEREBY FIND,
3 RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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5 section 1. The Commission hereby approves the Owner
6 Participation Agreement, a copy of which is attached hereto as
7 Exhibit "A" and incorporated herein by this reference.
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9 section 2. The Commission hereby authorizes the
10 Chairman and Secretary to execute the Owner Participation
11 Agreement on behalf of the Agency with any such non-substantial
12 changes as may be approved by the Executive Director of the
13 Agency and Agency Counsel.
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1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, CALIFORNIA, APPROVING A CERTAIN OWNER
2 PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO AND EMBLEM DEVELOPMENT CORPORATION
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Section 3.
This Resolution shall take effect upon
5 its adoption.
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I HEREBY CERTIFY that the foregoing Resolution was duly
8 adopted by the Community Development Commission of the City of
9 San Bernardino at a
10 thereof, held on the
Regular
meeting
8
day of
September
11 1992, by the following vote, to wit:
12
13 commission Members:
AYES
NAYS
ABSTAIN
ABSENT
14 ESTRADA
REILLY
15 HERNANDEZ
MAUDSLEY
16 MINOR
POPE-LUDLAM
17 MILLER
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x
-X
-X
x
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-X
I J AL . Jr(~l.l\t.-
~etary
Kenneth J. Henderson;
The foregoing resolution i ereby approved this
day of September
. comb, Chairman
Community Development Commission
of the City of San Bernardino
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Approved as to form and legal
:: By: ~
~gency Counsel
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content:
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
2 CITY OF SAN BERNARDINO )
3 I, Kenneth J. Henderson Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
4 CERTIFY that the foregoing and attached copy of Community
Development commission of the City of San Bernardino Resolution
5 No. 5343 is a full, true and correct copy of that now on
file in this office.
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IN WITNESS WHEREOF, I have hereunto set my hand and
7 affixed the official seal of the Community Development Commission
of the City of San Bernardino this 8 day of
8 September , 1992.
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~lt~
Secretary of he
Community . Development
Commission of the City of San
Bernardino
1 EXHIBIT "A"
ioNi:1l-...JiIlI
2 OWNER PARTICIPATION AGREEMENT
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SBEOOOOl-46/DOC/601/1w
08/25/92 430
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RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
SABO & GREEN,
a Professional Corporation
suite 400
6320 Canoga Avenue
Woodland Hills, California 91367
(Space Above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
OWNER PARTICIPATION AGREEMENT
(EMBLEM DEVELOPMENT CORPORATION)
'_.
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
EMBLEM DEVELOPMENT CORPORATION,
a California corporation
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EXHIBIT A
TABLE OF CONTENTS
C ~
I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement . . . . . . . . . . . 1
B. [102] The Redevelopment Plan . . . . 2
C. [103] The site . . . . . . . . . . . . . 2
D. [104] Parties to the Agreement . . . . . . . . . 2
1. [105] The Ag~ncy . . . . . . . . . . . . 2
2. [106] The Participant . . . . . . . . . 3
3. [107] Prohibition Against Change in
Ownership, Management and
Control of the Participant . . . . . . 3
4. [108] Benefit to Project Area . . . . . 5
II. [200] AGENCY ASSISTANCE
A. [201] Improvement of the Site . . . . . . . . . . 5
III. [300] IMPROVEMENT OF THE SITE
A. [301] Improvement by Participant . . . . . . . . 6
1. [302] Scope of Development . . . . . . . 6
2. [303] Cost of Construction . . . . . . . 6
'- 3. [304] Construction Schedule . . . . . . 6
4. [305] Bodily Injury and
Property Damage Insurance . . . . . . 7
5. [306] City and Other Governmental
Agency Permits . . . . . . . . . . . . 8
6. [307] Rights of Access . . . . . . . . . . . 9
7. [308] Local, State and Federal Laws . . . . 9
8. [309] Antidiscrimination During
Construction . . . . . . . . . . . . 10
B. [310] Taxes, Assessments, Encumbrances
and Liens . . . . . . . . . . . . . . . . 10
C. [311] Prohibition Against Transfer of
the Site, the Buildings or
Structures Thereon and Assignment
of Agreement . . . . . . . . . . . . . . 10
D. [312] Promissory Note; Deed of Trust . . . 11
1. [313] Promissory Note . . . . . . . . 11
2. [314] Deed of Trust . . . . . . . . . 11
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E. [315] Mortgage, Deed of Trust, Sale
C and Lease-Back Financing;
Rights of Holders . . . . . . . . . . . . 12
1. [316] No Encumbrances Except Mortgages,
Deeds of Trust or Sale
and Lease-Back for Development . 12
2. [317] Holder Not Obligated to
Construct Improvements . . . . . . . 13
3. [318] Notice of Default to Mortgagee
or Deed of Trust Holders;
Right .to Cure . . . . . . . . . . . 13
4. [319] Failure of Holder to
Complete Improvements . . . . . 14
5. [320] Right of Agency to CUre Mortgage
or Deed of Trust Default . . 15
F. [321] Right of Agency to Satisfy Other
Liens On The site . . . . . . . . . . 16
G. [322] RepaYment of Note and Partial Releases
of Deed of Trust . . . . . . . . . . . . 16
IV. [400] USES OF SITE; AFFORDABILITY COVENANTS
A. [401] Uses - Covenants Running with the Land 18
B. [402] Maintenance of the site . . . . . . . . . 21
C. [403] Effect of Violation of the Terms
and provisions of this Agreement
After Completion of Construction . . . . 22
V. [500] GENERAL PROVISIONS
A. [501] Notices, Demands and Communications
Between the Parties . . . . . . . . . . . 23
B. [502] Conflicts of Interest; Nonliability . . . 23
C. [503] Enforced Delay; Extension of
Times of Performance . . . . . . . . . . 24
D. [504] Inspection of Books and Records . . . 25
VI. [600] DEFAULTS AND REMEDIES
A. [601] Defaults - - General . . . . . . 25
B. [602] Legal Actions . . . . . . . . . . 25
1. [603] Institution of Legal Actions . . . . 26
2. [604] Applicable Law . . . . . . . . . . . 26
3. [605] Acceptance of Service of Process . . 26
C. [606] Rights and Remedies are CUmulative . . . 27
D. [607] Inaction Not a Waiver of Default . . . . 27
E. [608] Remedies . . . . . . . . . . . . 27
r 1. [609] Damages . . . . . . . . . . . . . . 27
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VII. [700]
A.
[701]
[702]
B.
VIII. [800]
IX. [900]
A.
[901]
SPECIAL PROVISIONS
Submission of Documents to
Agency for Approval . . . . . . . . .
Successors in Interest . . . . .
ENTIRE AGREEMENT, WAIVERS
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
Time for Acceptance
ATTACHMENT NO. 1 - LEGAL DESCRIPTION
ATTACHMENT NO. 2 - SCOPE OF DEVELOPMENT
ATTACHMENT NO. 3 - SCHEDULE OF PERFORMANCE
ATTACHMENT NO. 4 - PROMISSORY NOTE SECURED BY DEED OF TRUST
ATTACHMENT NO. 5 - DEED OF TRUST WITH ASSIGNMENT OF RENTS
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SBEOOOOl-46/DOC/601/1w
08/28/92 400
OWNER PARTICIPATION AGREEMENT
THIS AGREEMENT IS ENTERED INTO this 1ST
day of
SEPTEMBER
, 1992, by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO (the "Agency") and EMBLEM DEVELOPMENT
CORPORATION, a California corporation (the "Participant"). Agency
and Participant hereby agree as follows:
I.
[100]
SUBJECT OF AGREEMENT
A.
[101]
PurDose of Aareement
The purpose of this Agreement is to effectuate the
Redevelopment Plan for the State College Redevelopment Project (the
"Project") by providing for Agency assistance to Participant for
C the improvement of the Site, which is located in and will benefit
the State College Redevelopment Project Area (the "Project Area")
of the Project. The completion of the improvements on the Site
pursuant to this Agreement is in the vital and best interests of
the City of San Bernardino, California (the "City") and the health,
safety and welfare of its residents, and in accord with the public
purposes and provisions of applicable state and local laws and
requirements under which the proj ect has been undertaken. The
Community Development Commission, acting on behalf of the Agency,
has determined that the uses contemplated by this Agreement will
benefit the low- and moderate-income housing needs of the City and
the Project, and has authorized the use of funds from the Agency's
Low- and Moderate-Income Housing Fund.
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B.
[102]
The Redevelooment Plan
The Redevelopment Plan was approved by ordinance of the
Common Council of the City of San Bernardino; said ordinance and
the Redevelopment Plan as so approved (the "Redevelopment Plan")
are incorporated herein by reference.
C.
[103]
The site
/
The Site is that certain real property generally located
near the intersection of Kendall Road and 4th Avenue in the City of
San Bernardino designated as Tract No. 14715 and as more fully
described in the "Legal Description of the Site", which is attached
hereto as Attachment No. 1 and is incorporated herein by this
reference.
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D.
[104]
Parties to the Aareement
1.
[105]
The Agencv
The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
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existing under Chapter 2 of the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, gt~.)
The principal office of the Agency is located at 201 North "E"
Street, San Bernardino, California 92401.
"Agency" , as used in this Agreement, includes the
Community Development Commission of the City of San Bernardino, the
Economic Development Agency of the City of San Bernardino, the
r- Redevelopment Agency of the ci ty of San Bernardino, and any
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assignee of or successor to their rights,
responsibilities.
powers and
2.
The Participant
[106]
The principal office and mailing address of the
Participant for purposes of this Agreement is 9922 Walker street,
suite "JII, Cypress, California 90630, Attn: Philip Walsh.
The Participant qualifies as an owner participant
pursuant to the Redevelopment Plan and rules promulgated pursuant
thereto pertaining to owner participation.
3.
Prohibition Aaainst Chanae in OWnershiD.
[107]
Manaaement and
Control
of
the
ParticiDant
The qualifications and identity of the Participant are of
particular concern to the Agency.
It is because of those
qualifications and identity that the Agency has entered into this
Agreement with the Participant.
No voluntary or involuntary
successor in interest of the Participant shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
The Participant shall not assign all or any part of this
Agreement or any rights hereunder without the prior written
approval of the Agency, which approval the Agency may grant,
withhold or deny at its discretion. In the event of such transfer
or assignment: (1) the assignee shall expressly assume the
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obligations of the Participant pursuant to this Agreement in
writing satisfactory to the Agency; (2) the original Participant
shall remain fully responsible for the performance and liable for
the obligations of the Participant pursuant to this Agreement; and
(3) any guarantees provided to assure the performance of the
Participant's obligations under this Agreement shall remain in full
force and effect.
In the absence of specific written agreement by the
Agency, no such transfer, assignment or approval by the Agency
shall be deemed to relieve the Participant or any other party from
any obligation under this Agreement.
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All of the terms, covenants and conditions of this
~ Agreement shall be binding upon and shall inure to the benefit of
the Participant and the permitted successors and assigns of the
Participant. Whenever the term "Participant" is used herein, such
term shall include any other permitted successors and assigns as
herein provided.
The restrictions of this section 107 shall terminate and
be of no further force and effect upon paYment in full of the Note
(as hereinafter defined). Nothing in this Section 107 shall act to
restrict the sale of completed residential units developed on the
site to qualified purchasers if said sales are otherwise in
compliance with the terms of this Agreement.
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4. [1.08]
Benefit to Pro;ect Area
Agency has
determined that the development of
the
property in accordance with this Agreement will eliminate blight
and provide needed low- and moderate-income housing to the Project
Area which is needed due to the insufficiency of such housing
within the Project Area.
II. [200]
AGENCY ASSISTANCE
A.
[201.]
ImDrovement of the Site
Agency agrees to provide $472,000
(the "Agency
Assistance") as an interim construction loan, the proceeds of which
are to be used for the improvement of the Site by Participant. The
Agency Assistance, together with a loan origination fee, shall be
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reflected in a Promissory Note in favor of Agency, as provided in
Section 31.2 hereof, and shall be secured by a Deed of Trust as
provided in Section 31.4 hereof. The Agency Assistance shall be
subject to the following:
1.. The funds representing the Agency Assistance shall
be made available only upon receipt by the Participant of all
necessary entitlements and permits as provided in Section 306
hereof, and at such time as the Agency has received an executed
original of this Agreement, the Promissory Note and the Deed of
Trust.
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2. Upon disbursement, the funds shall be placed in a
construction fund to be used by Participant solely for the purposes
of causing the improvement of the site.
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III. [300] IMPROVEMENT OF THE SITE
A. [301] ImDrovement bv ParticiDant
Participant and Agency aqree that the central purpose of
this Agreement is to provide for the construction on the Site of
fifty-nine (59) detached single family homes in a manner consistent
with the Redevelopment Plan.
All of said homes will be a
mediterranean stucco style with a tile roof and will be constructed
with a full range of amenities, as described in the Scope of
Development (see section 302).
Said homes, together with
appurtenant improvements, shall be referred to herein as
"Participant Improvements".
1.
[302]
ScoDe of DeveloDment
The site shall be developed by participant as provided in
'- the "Scope of Development", which is attached hereto as Attachment
No. 2 and is incorporated herein.
2.
[303]
Cost of Construction
The cost of constructing all Participant Improvements
shall be borne by Participant.
The Agency shall have no
obligations, other than as expressly set forth herein, with respect
to the funding of the Participant Improvements.
3.
[304]
Construction Schedule
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Upon execution of this Agreement, Participant will
promptly begin and diligently prosecute to completion the
construction of the Participant Improvements. Participant shall
begin and complete all construction and development of the
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Participant Improvements within the times specified in the
"Schedule of Performance" which is attached hereto as Attachment
No. 3 and incorporated herein. Participant shall strictly conform
to all time requirements and limitations set forth in this
Agreement.
4.
[305]
Bodilv' Iniurv
and
ProDertv Damaae
Insurance
Participant shall defend, assume all responsibility for
and hold the Agency, the City and their respective officers, agents
and employees, harmless from all claims or suits for, and damages
to, property and injuries to persons, including accidental death
(including attorneys' fees and costs), which may be caused by any
of Participant · s acti vi ties under this Agreement, whether such
activities or performance thereof be by the Participant or anyone
directly or indirectly employed or contracted with by Participant
and whether such damage shall accrue or be discovered before or
after termination of this Agreement. Participant shall take out
and maintain a comprehensive liability and property damage policy
in the amount of One Million Dollars ($1,000,000) combined single
limit pOlicy, including contractual public liability, as shall
protect Participant, City and Agency from claims for such damages
until two (2) years after the paYment in full of the Note.
Participant shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on a
r' form of the insurance carrier setting forth the general provisions
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of the insurance coverage. This countersigned certificate shall
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Dame 'the Clt:y and A9M"Y aDd t:.beir ~.epe~lve Offloere, a.en'te, IIDCl
employee. a. a4d.Uaonal1naure4. under the pOlloy. .. cert:ifiaat:.
~ \11. in.uranoe our!.. ahall ccmtain. Rat.ent. of obligat:lcm on
'the part ot 'the carrier = notify City and the A,enor of any
..'tari.1 chanqe, oancalla'tlon or tenlinat.lon of 'the GOv.rave a1:
1....t 'thirty (30) claYtl in a&tvanee ot 'the ettective cla1:e of any auch
_tar!al change, oanoellat.ion or 'termination. Covezoa..,e prcwicled
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hm:.\lDd.er by Part:1clpant 1Ibel1 be prl..ry lrunarance anel not
con1;ribGtln9 vlth any ineurance a.lnoift.4 by _enoy = City, an4
tbe policy ehall COI'l"in auch an endor....nt. The inauranoe pollay
OJ: t:be oert.it ica'te of iDwrance .all con'ta1n a wa1 VC' of
aub:rogatioD for 'tIl. !>>enafit of the city and Agency.
Participant. 8hall furniah or GaU.. 'to be furnube4 to
_.ney avidenoe uti.factory to Agenoy t:hat any aoDtI:'aotor with
Wbem 1t baa contracted tor the performance of vork on i;he site or
otbar vi.. purauant t.a 'thie Agreement carrie. woJ:ker.' compen.a'tlon
inauranca a. r-.qu1re4 by law.
5. [30aJ eitv .n~ ot:h.r Govern.anbl ~.n~ PanlU:.
Bafore tun41n; of 'the Agency A.a1.tance OJ: any p~ion
~.raof aml/or c01IDencamem of the .articipant. Iaprov_nt. or
~er ocnstruction or development. ot any bu114in..,a, a1;ruct.ures or
other work. of illpJ:ov_ent upon 'tbII siu, Participant aha11, at. lta
own .xpen.., aecure OJ: oau.. to be ..cured any an4 all perala. for
all Ilec.eaary off-aite 1mprovemen~. which ..1' be required ~ the
C1 ~y or .nl' other 9oven.ant.al _'laney havin; juriadict.lon over .Qch
cOn8t.rQc~ion, devalopment or work.
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Nothing contained in this Agreement shall be deemed to be an
approval by the City of any application or permit required to be
obtained by Participant from the City.
6.
[307]
Riahts of Access
For the purpose of assuring compliance with this
Agreement, representatives of Agency and the City shall have the
right of access to the Site, without charges or fees, at normal
construction hours during the period of work for the purposes of
this Agreement, including, but not limited to, the inspection of
the work being performed in constructing the improvements, so long
as they comply with all safety rules.
Such representatives of
Agency or of the City shall be those who are so identified in
r"" wri ting by the Executive Director of Agency. Agency shall hold the
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Participant harmless from any bodily injury or related damages
arising out of the activities of Agency and the City as referred to
in this Section 307 and resulting from the gross negligence or
willful misconduct of the City or Agency. This Section 307 shall
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not be deemed to diminish or limit any rights which the City or
Agency may have by operation of law irrespective of the Agreement.
7.
[308]
Local. State and Federal Laws
Participant shall carry out the construction of the
Participant Improvements and all related activities on the site in
conformity with all applicable laws, including all applicable
federal and state labor standards; provided, however, Participant
<:: and its contractors, successors, assigns, transferees, and lessees
are not waiving their rights to contest any such laws, rules or
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standards.
Participant and its contractors and sub-contractors
shall pay prevailing wages to all employees on the project.
8.
[309]
Antidiscrimination Durina Construction
Participant, for itself and successors and assigns,
agrees that in the construction of the improvements provided for in
this Agreement, Participant shall not discriminate against any
employee or applicant for employment because of race, color, creed,
religion, age, sex, marital status, handicap, national origin or
ancestry.
B.
[310]
Taxes. Assessments. Encumbrances and Liens
Prior to payment in full of the Note, Participant shall
not place or allow to be placed on the site or any part thereof any
mortgage, trust deed, encumbrance or lien other than as expressly
allowed by section 315 or any other provisions of this Agreement.
Participant shall remove or have removed any levy or attachment
made on any of the site or any part thereof, or assure the
satisfaction thereof wi thin a reasonable time but in any event
prior to a sale thereunder.
C.
[311]
Prohibition Aaainst Transfer of the Site. the
Buildinas or Structures thereon and Assianment
of Agreement
Prior to payment in full of the Note, Participant shall
not, except as permitted by this Agreement, without the prior
written approval of Agency, make any total or partial sale,
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transfer, conveyance, assignment or lease of whole or any part of
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the Site or of the buildings or structures on the Site. This
prohibition shall not be deemed to prevent a transfer expressly
permi tted pursuant to Section 107 of this Agreement, or the
granting of temporary or permanent easements or permits to
facilitate the development of the site.
D. [312] Promissory ~ote: Deed of Trust
1. [313] Promissory Note
Participant shall execute a Promissory Note (the "Note")
in favor of the Agency in the form of Attachment No. 4 which is
incorporated herein, evidencing the Agency's loan to the
Participant of an amount equal to $472,000 for the purpose of
assisting in the construction of the Site. Participant agrees to
pay to Agency a loan origination fee of one and one-half percent
(1.5%) of the principal amount of the loan, which fee is in the sum
of $7,080.00, to be paid in cash at the time of funding of the loan
and not out of loan proceeds. The principal amount of the Note
shall be $479,080. The outstanding balance of the Note shall bear
interest from the time of funding until repaYment in full equal to
the prime interest rate plus two as in effect on the date of
funding.
2. [314] Deed of Trust
To secure said loan and Note, Participant shall execute
a Deed of Trust in the Form of Attachment No.5.
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B.
[315]
lIort:.cmae. "ad a~ IJ.'rwIt. &.1. and La-..-BIlek
Pinancina: Riah~. o~ ReIder.
1.
[31']
lIa hemabrl1llc.. 1hre.9t:. Merta-... Dead.
at 'Rr\1.~ or Sale and Laa..-Back ~or
Davel~.nt:
>>articipan1: intend. to obtain, and avency acp:... tberet.o,
. con.1:rUction loan in the approxllaa'te _oun't of e5,V53,128.
Agency a;r.a. 'that it. Deed of Trut llhall be .ubordlna't. 'to ~.
lien of .aid con.truct.ion loan providing (i) the amount. of .aid
11en doe. not exceed $5,153,128 and (il) Agency ha. approved the
uraa of ..14 cona'trUct1on loan and deed of trlWt, Which approval
llbell not be \Jl\l".a.onably withh.ld. Particlpant Mall not. .n'ter
ift'to any other conveyance or lien for financinv vltbou't til. prior
written appl"OVal of Agency, ~ich approval Avency agre.. 'to giy. if
any .\lob oonveyanoe or 11en for f lnancinv ia 'liven to a I>>ank,
.avlllg. aDd loan a..ocia'tion, or other similar lending lnat.ltution
and the i;en\s of .ald financing are reaaonably acceptable to
ACJency. Approval of .uch o'ther conveyance or 11en for flnanoin'l J:Jy
~e Agency ahall not oona'tlt.ut. a .ubOrdination of the D.-d of
1'rlWt to .uch conveyance or lien. The fora of approval by Atfancy
&hall be in writing whioh nt.reno.. 'thi. Sect.lon 315, ex.cuted by
'tha Bxec:utl ve Director of the Agency. %n the event. that the Atf8l\oy
~all. 'to aooapt or rejec't .\loh lender in vri'tin9 wl'tbin ~ift:een
(15) days after wr1:tt:en notice . thereof i. reoeived by the A981\CY,
.uoh len4.r ahall be 4e...d approved.
- 12 -
r
'-'
,....,
'-'
,F-"'~"
'-
2.
[317]
Construct
Holder Not
Obliaated
to
ImDrovements
The holder of any mortgage or deed of trust authorized by
this Agreement shall not be obligated by the provisions of this
Agreement to construct or complete the Participant Improvements or
to guarantee such construction or completion.
Nothing in this
Agreement shall be deemed to construe, permit or authorize any such
holder to devote the Site to any uses or to construct any
improvements thereon, other than those uses or Participant
Improvements provided for or authorized by this Agreement.
3.
Notice of Default to Mortaaqee or Deed of
Trust Holders: Riaht to CUre
[318]
With respect to any mortgage or deed of trust granted by
Participant as provided herein, whenever Agency shall deliver any
notice or demand to Participant wi th respect to any breach or
default by Participant in completion of the construction of the
Participant Improvements, Agency shall at the same time deliver to
each holder of record of any mortgage or deed of trust authorized
by this Agreement a copy of such notice or demand.
Each such
holder shall (insofar as the rights of Agency are concerned) have
the right, at its option, within thirty (30) days after the receipt
of this notice, to cure or remedy or commence to cure or remedy any
such default and to add the cost thereof to the mortgage debt and
the lien of its mortgage.
Nothing contained in this Agreement
shall be deemed to permit or authorize such holder to undertake or
<:: continue the construction or completion of the Participant
Improvements (beyond the extent necessary to conserve or protect
- 13 -
c
the Participant Improvements or construction already made) without
first having expressly assumed the Participant's obligations to
Agency by written agreement satisfactory to Agency. The holder, in
that event, must agree to complete, in the manner provided in this
Agreement, the Participant Improvements to which the lien or title
of such holder relates, and submit evidence satisfactory to Agency
that it has the qualifications and financial responsibility
necessary to perform such obligations.
4.
[319]
Failure
of
Holder
to
ComDlete
ImDrovements
In any case where, thirty (30) days after default by the
Participant in completion of construction of Participant
Improvements under this Agreement, the holder of any mortgage or
<~
deed of trust creating a lien or encumbrance upon the Site or any
part thereof has not exercised the option to construct or if it has
exercised the option and has not proceeded diligently with
construction, Agency may purchase the mortgage or deed of trust by
paYment to the holder of the amount of the unpaid mortgage or deed
of trust debt, including principal and interest and all other sums
secured by the mortgage or deed of trust. If the ownership of the
site or any part thereof has vested in the holder, Agency, if it so
desires, shall be entitled to a conveyance from the holder to
Agency upon paYment to the holder of an amount equal to the sum of
the following:
{---
'''"-'
a.
The unpaid mortgage or deed of trust debt at the
time title became vested in the holder (less all approp~iate
- 14 -
c
credits, including those resulting from collection and application
of rentals and other income received during foreclosure
proceedings);
b. All expenses with respect to foreclosure;
"
c. The net expense, if any ( exclusive of general
overhead), incurred by the holder as a direct result of the
subsequent management of the Site or part thereof;
d. The costs of any Participant Improvements made by
such holder; and
'--
e. An amount equivalent to the interest that would have
accrued on the aggregate of such amounts had all such amounts
become part of the mortgage or deed of trust debt and such debt had
continued in existence to the date of payment by Agency; less
.
f. Any income derived by the lender from operations
conducted on the Site (the receipt of principal and interest
payments in the ordinary course of business shall not constitute
income for the purposes of this subsection f).
5.
[320]
Riaht of Aaencv to CUre Mortgaae or Deed
of Trust Default
In the event of a mortgage or deed of trust default or
breach by Participant prior to the completion of any part thereof
and the holder of any mortgage or deed of trust has not exercised
- 15 -
c:: its option to complete construction, Agency may cure the default.
In such event, Agency shall be entitled to reimbursement from
Participant of all proper costs and expenses incurred by Agency in
curing such default, and such costs and expenses shall be included
as part of the Note under Section 313.
.'
F.
Right of Aaencv to satisfY Other Liens On The
site
Prior to the completion of the Participant Improvements,
[321]
and after Participant has had written notice and has failed after
a reasonable time, but in any event not less than fifteen (15)
days, to challenge, cure, adequately bond against, or satisfy any
liens or encumbrances on the Site which are not otherwise permitted
under this Agreement, Agency shall have the right but not the
obligation to satisfy any such liens or encumbrances and to include
the cost thereof as part of the Note under section 313.
G.
[322]
ReDavment of Note and Partial Releases of Deed
of Trust
Participant shall repay the Note from the proceeds of the
sales of the individual residences (or lots) to be constructed by
Participant. ~gency agrees to place a partial reconveyance of deed
of trust in the escrow for each residence sold, with a demand upon
escrow for $8,120, plus accrued interest thereon from the date of
the Note, plus any additional charges or amounts owing under the
terms of this Agreement, the Note and/or the Deed of Trust, if any,
which additional charges or amounts shall be allocated equally
r-
'-
between the remaining unsold residential lots.
- 16 -
c
",,-.
Upon repayment in full of all sums owed under the Note,
this Agreement or the Deed of Trust, Agency agrees to reconvey the
Deed of Trust. Upon either the recording of a reconveyance of the
full Deed of Trust or upon recording of the last partial
reconveyance of the Deed of Trust relating to the last of the
fifty-nine residences to be sold, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest
in the site or the Participant Improvements shall not, as a result
of such ownership, lease or acquisition, incur any obligation or
liability under this Agreement except that such party shall be
bound by the covenants set forth in Section 401 of this Agreement,
which shall be applicable, each according to its terms.
Regardless of Participant's ability to complete
construction of the Participant Improvements or to sell the
completed residential units, Participant agrees to repay the Note
in full within three (3) years of the date of execution of this
Agreement. A failure to do so within thirty (30) days of Agency's
written demand shall constitute a material breach of this Agreement
and shall entitle Agency to declare all sums owed under the Note
to be immediately due and payable, to foreclose upon the Deed of
Trust as to any then unsold residential units or lots, and/or to
exercise any other remedies available under this Agreement, the
Deed of Trust or at law or in equity.
- 17 -
-I--_._~.._.._...._-- -. .....- ... -.-. - - _.- ..... .....-..... -
I"""
'--'
IV. [400]
USES OF SITE; AFFORDABILITY COVENANTS
A.
[401]
Uses - Covenants Runnina With the Land
Participant covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
site or any part thereof, that for a period of ten (10) years
commencing on the date of the issuance by City of the Certificate
of Occupancy on the last of the fifty-nine residences to be
constructed by Participant, all of the fifty-nine single family
residences to be constructed on the Site will be devoted to and
available for sale solely to persons or families with an income
which are low and moderate to very low, as those terms are defined
in Health and Safety Code Sections 50093 (low and moderate income)
and 50105 (very low income), with sales costs of each residential
~- unit to be at an affordable housing cost (as such term is defined
""'"'"'
in Health and Safety Code Section 50052.5).
The foregoing covenant shall run with the land for ten
(10) years commencing on the date that the City issues the
Certificate of Occupancy on the last of the fifty-nine residences.
The Participant further covenants and warrants that
Participant shall develop improvements on the site in accordance
with the Scope of Development. Participant covenants to develop
the site in conformity with all applicable laws. The covenants of
this paragraph shall run with the land.
~i':'''''''"'''_
Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
"-
- 18 -
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against or segregation of any person or group of persons on account
of race,
color,
creed,
religion,
sex, marital status
,
age,
handicap, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoYment of the Site, nor
shall Participant itself or any person claiming under or through it
establish or permit any such practice or practices of
/
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Site. The foregoing covenants shall
run with the land.
All deeds, leases or contracts pertaining to the Site
shall contain or be subject to substantially the following
nondiscrimination or non-segregation clauses:
1. In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through them, that there
.
shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex,
marital status, age, handicap, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or
enjoYment of the land herein conveyed, nor shall the grantee
himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
r-. location, number, use or occupancy of tenants, lessees, subtenants,
~
- 19 -
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c
sublessees or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
2 . In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through him or her, that
this lease is made and accepted upon and subject to the following
conditions: "There shall be no discrimination against or
segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, handicap, age,
ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or
any person claiming under or through him or her, establish or
permit any such practices or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, sublessees, subtenants or vendees
in the premises herein leased."
3. In contracts: "There shall be no discrimination
against or segregation of, any person, or group of persons on
account of race, color, creed, religion, sex, marital status, age,
handicap, ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such
"-'
practice or practices of discrimination or segregation with
- 20 -
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<~
.,-
'-
r-
"-
-..I-------~-_._.... .. .---... -.......
reference to the selection, location, number use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the
premises."
B.
[402]
Maintenance of the site
Participant shall, until sale of all of the fifty-nine
residential units, maintain any of the Participant Improvements
which remain unsold and all other improvements on the site and
shall keep the Site free from any accumulation of debris or waste
materials.
Participant further agrees to maintain the Site in a neat
and attractive manner until construction of the improvements
described in this Agreement is complete so as not to, in the
reasonable determination of an appropriate officer of the City, be
a public nuisance, or be detrimental to the health, safety and
welfare of the public, or impair value of property within one
thousand (1,000) feet of the Site, and agrees that in the event
Participant fails to do so, Agency may enter upon the Site for the
purposes of performing necessary and desirable maintenance, that
Participant will be responsible for the cost of any such
maintenance undertaken by Agency, which shall be paid within thirty
(30) days after receipt by Participant of written demand therefor.
- 21 -
c
C. [403] Effect of violation of the Terms and
provisions of this Aareement After Comoletion
of Construction
The covenants established in this Agreement shall,
without regard to technical classification and designation, be
binding for the benefit and in favor of Agency, its successors and
assigns, as to those covenants which are for its benefit. The
covenants contained in this Agreement shall remain in effect until
the termination date of the Redevelopment Plan unless an earlier
date is specified. The covenants against racial discrimination
shall remain in perpetuity.
.....
Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the
land, for and in its own rights and for the purposes of protecting
the interests of the communi ty and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided. The
Agreement and the covenants shall run in favor of the Agency,
without regard to whether Agency has been, remains or is an owner
of any land or interest therein in the site or in the Project Area.
Agency shall have the right, if the Agreement or covenants are
breached, to exercise all rights and remedies, and to maintain any
actions or suits at law or in equity or other proper proceedings to
enforce the curing of such breaches to which it or any other
beneficiaries of this Agreement and covenants may be entitled.
- 22 -
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v.
[500]
GENERAL PROVISIONS
A.
[501]
Notices. Demands and Communications Between
the Parties
Written notices, demands and communications between
Agency and Participant shall be sufficiently given if delivered by
hand (and a receipt therefor is obtained or is refused to be given)
or dispatched by registered or certified mail, postage prepaid,
return receipt requested, to the principal offices of Agency and
Participant. Such written notices, demands and communications may
be sent in the same manner to such other addresses as such party
may from time to time designate by mail as provided in this
Section 501.
"-
Any wri tten notice, demand or communication shall be
/~-*'''-
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B.
[502]
Conflicts of Interest: Nonliability
No member, official or employee of Agency or the City
shall have any personal interest, direct or indirect, in this
\
Agreement. No member, official or employee shall participate in
any decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested. No
member, official or employee of Agency or the City shall be
C personally liable to Participant, or any successor in interest, in
the event of any default or breach by Agency or Participant, or for
- 23 -
c
any amount which may become due to Participant or its successor or
on any obligations under the terms of this Agreement.
Participant represents and warrants that it has not paid
or given, and shall not payor give, any third party any money or
other consideration for obtaining this Agreement.
/
C.
[503]
Enforced Delav:
Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
.~~
war; insurrections; floods; earthquakes; fires; casualties; acts of
God; acts of the public enemy; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather;
acts or omissions of another party; acts or failures to act of the
City or any other public or governmental agency or entity (other
than the acts or failures to act of Agency which shall not excuse
performance by Agency); or any other causes beyond the control or
without the fault of the party claiming an extension of time to
perform.
Notwithstanding anything to the contrary in this
Agreement, an extension of time for any such cause shall be for the
period of the enforced delay and shall commence to run from the
time of the commencement of the cause, if notice by the party
claiming such extension is sent to the other party within thirty
(30) days of the commencement of the cause. Times of performance
I"""""
'-
- 24 -
c
under this Agreement may also be extended in writing by the mutual
agreement of Agency and Participant.
Participant is not entitled pursuant to this section 503
to an extension of time to perform because of past, present, or
future diff icul ty in obtaining sui table temporary or permanent
financing for the site.
D.
[504]
InsDection of Books and Records
Agency has the right at all reasonable times to inspect
the books and records of Participant pertaining to the site as
pertinent to the purposes of this Agreement. Participant has the
right at all reasonable times to inspect the public records of
Agency pertaining to the Site as pertinent to the purposes of the
Agreement.
VI. [600]
DEFAULTS AND REMEDIES
A.
[601]
Defaults - - General
Subject to the extensions of time set forth in
Section 503, failure or delay by any party to perform any term or
provision of this Agreement consti tutes a defaul t under this
Agreement.
The party who so fails or delays must immediately
commence to cure, correct, or remedy such failure or delay, and
shall complete such cure, correction or remedy with diligence.
The injured party shall give written notice of default to
the party in default, specifying the default complained of by the
,""-'
'''"-'
injured party.
Except as required to protect against further
- 25 -
damages, and except for Sections 317 and 319 of this Agreement, the
r-
'~ injured party may not institute proceedings against the party in
default until thirty (30) days after giving such notice. Failure
or delay in giving such notice shall not constitute a waiver of any
default, nor shall it change the time of default.
B.
[602]
Leqa1 Actions
1.
[603]
Institution of Leqa1 Actions
In addition to any other rights or remedies hereunder,
Agency or Participant may institute legal action to cure, correct
or remedy any default, to recover damages for any default, or to
obtain any other remedy consistent wi th the purpose of this
Agreement. Any legal actions initiated pursuant to this Agreement
or otherwise with respect to this subject matter must be instituted
in the Superior Court of the County of San Bernardino, State of
California, or in an appropriate municipal court in that county.
2.
[604]
Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3.
[605]
Acceptance of Service of Process
In the event that any legal action is commenced by any
party against another party, service of process on such party shall
be made by personal service upon such party or in such other manner
as may be provided by law, and shall be valid whether made within
or without the State of California.
.---
- 26 -
C.
[606]
Riahts and Remedies are Cumulative
c
Except as otherwise expressly stated in this Agreement,
the rights and remedies of the parties are cumulative, and the
exercise by any party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any
other default by any other party.
D.
[607]
Inaction Not a Waiver of Default
Any failures or delays by any party in asserting any of
its right and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies, or deprive
any party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
E.
[608]
Remedies
1.
[609]
Damaaes
.
Prior to the payment in full of all sums due under the
Note, if either Participant or Agency defaults with regard to any
of the provisions of this Agreement, the non-defaulting party shall
serve written notice of such default upon the defaulting party. If
the default is not cured or if a cure has not been commenced and is
being diligently pursued to completion by the defaulting party
within thirty (30) days after service of the notice of default, the
defaulting party shall be liable to the other for any damages
caused by such default, and the non-defaulting party shall have the
po#'~
\.-
- 27 -
right to seek specific performance and such other remedies as are
c
available in law or equity.
VII. [700]
SPECIAL PROVISIONS
A.
[701]
Submission of Documents to Aaencv for Apnroval
Whenever this Agreement requires Participant to submit
any document to Agency for approval, which shall be deemed approved
if not acted on by Agency within the specified time, said document
shall be accompanied by a letter stating that it is being submitted
and will be deemed approved unless rejected by Agency within the
stated time.
If there is not a time specified herein for such
Agency action, Participant may submit a letter requiring Agency
approval or rejection of documents within thirty (30) days after
submission to Agency or such documents shall be deemed approved.
B.
[702]
Successors in Interest
The terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be binding upon and inure to
.
the benefit of the heirs, executors, administrators, successors and
assigns of Participant.
VIII. [800]
ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in four (4) duplicate
originals, each of which is deemed to be an original.
This
Agreement includes Attachments 1 through 5, which together with
this Agreement constitute the entire understanding and agreement of
the parties.
'-'
- 28 -
c
No private entity shall be deemed to be a third party
beneficiary with respect to any provisions of this Agreement.
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements among the parties or their
predecessors in interest with respect to all or any part of the
subject matter hereof.
All waivers of the provisions of this Agreement must be
in writing by the appropriate authorities of the Agency and
Participant, and all amendments hereto must be in writing by the
appropriate authorities of Agency and Participant, except that the
Executive Director of Agency may agree to non-substantive changes
hereto with concurrence by Agency Counsel.
Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of
and bind the party he purports to represent.
'-
IX. [900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [901] Time for AcceDtance
This Agreement, when executed by Participant and
delivered to Agency, must be authorized, executed and delivered by
Agency on or before thirty (30) days after signing and delivery of
this Agreement by Participant or this Agreement shall be void,
except to the extent that Participant shall consent in writing to
a further extension of time for the authorization, execution and
- 29 -
c
,,,,...
'-"
,-...
\.--
delivery of this Agreement. The date of this Agreement shall be
the date when it shall have been signed by the Agency as evidenced
by the date first above shown.
/
- 30 -
,.-
'-
.,i'P,.:"",~
.,,-
c
IN WITNESS WHEREOF, Agency and Participant have executed
this Agreement on the day and date first above shown.
"Agency"
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
/ By:
W.R. Holcomb
Chairman
APPROVED AS TO FORM AND
LEGAL CONTENT:
BY~ounsel
By:
Kenneth J. Henderson
Secretary
~
"Participant"
EMBLEM DEVELOPMENT CORPORATION,
a California corporation
--------.y
By:'(---~r tc,J I;/~L
By: '
Title: i./IZ G J / LJcs- A..I 7--
.
8800\0001 \DOC\601
0II2IJ92 400
- 31 -
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t""''''
'~
STATE OF CALIFORNIA
)
) ss.
)
COUNTY OF SAN BERNARDINO
On this day of , 1992, before me, the
undersigned, a Notary Public in and for the State of California,
personally appeared W.R. HOLCOMB and KENNETH J. HENDERSON
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons who executed this
instrument as the Chairman and Secretary , respectively, of the
REDEVELOPMENT AGENCY OF THE CITY/ OF SAN BERNARDINO and acknowledged
to me said Agency executed it.
Signature of Notary Public
( SEAL)
c
c
t"""""
.,-
STATE OF CALIFORNIA
COUNTY OF 5iJf./ !It/W/I/U)/NO
)
) ss.
)
On this I.1:l.. day of JeffC:/118-E1Z-, 1992, before me, the
undersigned, a NO~PUblic,.~n and for the State of california,
personallyappeare It/I' W Wllifd- and ~ , known
to me~~oved to me on the basis of satisfactory evidence) to be
the /~e/V! of EMBLEM DEVELOPMENT CORPORATION, a
Californ1a corporation, and acknowledged to me that they executed
said instrument on behalf of said corporation.
(l C-- I?~.L--
Signature of ~otary Public
(SEAL)
OFFICIAL SEAL
Carmen B. Flores
fMY """-IC . CAUFOANIA
GIWIGI COUN1'Y
... ...... ...... 011. ,.. ,.
c
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
'-
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ATT. 1 - Page 1
c
ATTACHMENT NO. 1
THE ~D REFERRED TO IN THIS REPORT IS SITUATED IN THE COUNTY OF SAN BERNARDINO,
STATE OF CAlIFORNIA, AHD IS DESCRIBED AS fOLLOWS:
Tentat1ve Tract No. 14715, unrecorded, being a Subdivision of:
#
'arcel A:
i''^""' That portion of the West one-hal f of the Southwest one-quarter of Section 16,
\~ Town~htp 1 north, Range 4 west, San Bernardino Base and Meridian. tn the County
01 San Bernard1no, State of Cal1forn1a, 1n Rancho Nuscup1abe, un-surveyed,
part~y w1th1n and partly without the County of San Bernardino, described as
1011INs:
8eg1nn1ng at a point 1n the Westerly 11ne of said Section 16, 430 feet North of
the 4ntersectlon with the Northerly boundary of kendall Dr1ve; thence East 300
f.et~ the North 195 feet; thence West 300 feet to the West 11ne of Section 16:
thente South along the West l1ne 195 feeti to the point of beginnlng.- -
'arc.1 B:
.
That portion of the West one-half of the Southwest one-quarter of Sectlon 16,
Town'h1p 1 North, Range 4 West, San Bernardino Base and Merldlan, unsurveyed 1n
the ianeho Huscup1abe, partly within and partly without the County of San
8ern.rd1no, descr1bed IS follows:
leg1_n1ng at a paint 1n the West l1ne of SI1d Sect10n 16, 100 feet North of the
1ntetsectlon w1th tbe North line of Kendall Drlve. thence East 660 feet, more or
leiS; to the West l1ne of Road Improvement Dtstr1ct No. 38: thence North along
the West 11ne of sa1d Road Improvement 01str1ct, 33D feet; the West 660 feet.
mor.~or less, to the West 11ne of said Section 16; thence South along said West
11ne:330 feet to the p01nt of beginning.
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(LEGAL ~ESCRIPTION CONTINUED ON NEXT PAGE)
ATT. 1 - Page 1
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Page 3
(LEGAL DESCRIPTION CONTINUED)
Excepting therefrom that portion described as follows:
.
Beginning at a point on the west line of said Section 16, 184.70 feet north of
its intersection with the north ltne of Kendall Drive; thence north along said.
west l1ne of sa1d Section 16. 115.42 feeti thence south 60. 261 east, parallel
to and 260 feet from perpendtcularl~ northeasterly, the northerly right of way
of Kendall Drive, 405 feet, more or less. to the southerly 11ne of that parcel
of and conveyed to Frank R. Hardy by Grant Deed Recorded December 2, 1837. in
Book 1226. of Off1c1al Records.. Page 270; thence westerly along said southerly
line to . p01nt in said line that 15 160 feet northerly measured at right angles
from the north line of Kendall Drive; thence north 60. 26; west along' 11ne
that 15 parallel to and 160 feet from, perpendicularlY northeasterly, the
northerly right of way line of Kendall Drtve. to the point of beginning.
Also excepting therefrom that portion described as follows:
.lg1nn1ng at the 1ntersection of the west l1ne of said Seetion 16 with the
southwesterly l1ne of the San Bernardino County Flood Control District's 100
Foot R1ght of Way, which right of way is Recorded in Book 1968 of Official
Records, Page 210; thence south 60. 26' east along said southwesterly l1n.
lS9.S7 feet to the south line of said property; thence south 89. 36' west along
said south line 146.90 feet to the southwest corner of said property; thence
north O. 241 west along the said west ltne 84.70 feet to the point of beginning.
. Also except'ng therefrom that portion described as follows:
8egtnning at the tntersection of the west l1ne of said Section 16 with the
northeasterly ltne Of said San Bernardtno County Flood Control District's 100
Foot R1eht Of Way; thence north O. 24. west along said west l1ne 115.55 feet;
thence by a 200 foot rad1us curve to the left from a tangent bear1nt of south O.
24' east for a d1stance of 209.56 feet to a point on said northeasterly l1ne
which p01nt 1s south 60. 26; .ast 115.55 feet from sa1d 'ntersect1on; thence
north 60. 26' west 115.55 feet to the potnt of beginning.
'arcel C:
Parcel No.1:
That portion of the west one-half of the southwest one-quarter of Sectton 16,
TownShip 1 north, Range. wlst, San Bernardino ease and Meridian, unsurveyed 1n
the Rancho Muscup1abe, 1n the County of San Bernardino, State of Cal'fornia,
described as follows:
,
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(LEGAL DESCRIPTION CONTINUEO ON NEXT PAGE)
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(LEGAL DESCRIPTION CONTINUED)
, Beginning at,a point 921 feet north and 300 feet east of the intersection of the
west line of said Sect10n 16, and northerly line of Kendall Drive; thence east
360 feet, more or less, to a point on the west line of the Parcel conveyed to
Orpha Hornady, a Widow, by Deed Recorded April 16, 1941, 1n Book 1473, Page 386
Official Records; thence south parallel to the west line of said Section. 491 ·
feet, more or less, to a point on ,the north line Of a Parcel conveyed to Frank
R. Hardy, by Deed Recorded January 28, 1948, in Book 1226, Page 270, Official
RecordS: thence west along the north lien of Hardy Parcel 360 feet, more or
less, to a point, 300 feet easterly of the west line of said Section 16; thence
north to the point of beginning.
Parcel No.2:
That port10n of the west one-half of the southwest one-quarter of Section 16.
Township 1 north, Range 4 west, (unsurveyed) in the Rancho Muscupiabe, as per
plat thereof Retorded 1n Book 7 of Maps, Page 23, Records of said County, 1f
Settion ltnes were extended acroSS said Rancho, described as followS:
Beginning at a point tn the west line of Fourth Avenue, as located by Deed
Rccorded March 23. 1927. in Book 212. Page 174, Official Records, 767.5 feet
south of its intersection with the south l\ne of -A- Street, as shown on Map of
tract No. 1748, Arrowhead Suburban Fanns Tract .E-, as per Plat thereof Recorded
tn Book 25 of Maps, Page 59, Records of said County; thence south along the west
l1ne of Fourth Avenue, 190.5 feeti thence west 640 feet: thence north 190.5
feet; thence east to the place of beginning.
Parcel No.3:
That portion of west one-half of the southwest one-quarter of Section 16,
township 1 north. Range ~ west. SAn Bernardino Base and Mertdian. 1n RanchO
Muscupiabe, unsurveyed, described as follows:
BeginnIng at a poInt In the west line of said sectIon 16. 921 faet north of Its
intersection with the northerly line of Kendall Dr1ve; thence east 639 feet to a
poInt In the westerly line of Road 01strlct Improvement NO. 38; thence north
along saId west lIne 60 feet. ~re or less. to a poInt 300 feet south 0" 24'
west of the south 11ne of -A. Street; thence west parallel with the south l1ne
of .ald "A" Street 639 feet. more or less, to the west line of .ald Section 16;
thence .outh along said west line of Section 16, 60 feet, more or less, to the
po1nt of beg1nn,ng. .
(LEGAL DESCRIPTION CONTINUED ON NEXT PAGE)
ATT. 1 - Page 3
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(LEGAL DESCRIPTION CONTINUED)
Excepting that portion of the west one-half of the southwest one-quarter Of
Section 16, Township 1 north, Range 4 west, San Bernard1no Base and Meridian,
Rancho Muscupiabe, described as follows:
Beginning at a point in the west line of said Section 16, 921 feet north of the
intersection with the northerly line of Kendall Drive; thence east 300 feet;
,thence north 60 feet, more or less, to a point 300 feet south O. 24' west of the
'south line of MAM Street (now known as 42nd Street); thence west parallel with
the south lien of said 42nd Street 300 feet to the west line of said Sect10n 16;
thence south along said west line 60 feet, .ore or less. to a point of
beginn1ng.
Parcel D:
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That portion of the southwest one-quarter of Section 16, Township 1 north, Range
4 west, San Bernardino Base and Meridian. 1n the Rancho Muscupiabe. in the
County of San Bernardino, State of California, unsurveyed, described as
follows:
Beginning at a point 1n the west 11ne of 4th Avenue, 958 feet south of its
intersection with the south 11ne of .A. Street; thence south along said west
line of 4th Avenue, 63.5 feet; thence west to the west line of Road District
Improvement No. 38; thence north along said Road District Improvement Line, 63.5
feet; thence east to the point of beginning.
,parctl E:
Parcel No.1:
Portion of the west one-half of the southwest one-quarter of Section 16.
TownShip 1 north, Range 4 west. San Bernardino Base and Meridian, unsurveyed, 1n
the Ranchyo Muscupiabe being partly within and partly outside the City of San
Bernardino, described as follows:
Beginning at the intersectton of the north 11ne of Kendall Drive, as now
located, and the west l1ne of Road Improvement District No. 38; thence
northwesterly along said north l1ne 75 feet; thence north parallel to said west
l1ne of Road Improvement District No. 38 to the south l1ne of property conveyed
to Frank A. Hardy, by Deed Recorded September 2, 1937 1n Book 1226, Page 270,
Off1ctal Recordi; thence east along the south line of said Hardy Land to the
west l1ne of sa1d Road Improvement District No. 38; thence south along sa1d l1ne
481 feet. more or less, to the p01nt of beginning.
Excepting therefrom that portion of sa1d land lying southerly and southwesterly
of the southerly southwesterly 11en of the land conveyed to the San Bernardino
County flood Control District. by Deed Dated February 26, 1942 and Recorded
Mlrch 3, 1942 1n Book 15Z5, Page 106, Off1ctal RecDrds.
(LEGAL DESCRIPTION CONTINUED ON NEXT PAGE)
ATT. 1 - Page 4
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515370-90
Page 6
(LEGAL DESCRIPTION CONTINUED)
Parcel No.2:
Portion of the west one-half of the southwest one-quarter of Sectton 16.
Township 1 north. Range 4 west, San Bernardino Base and Meridian, if said
Sectton lines were extended across ,the Rancho Muscujpiabe, be1ng partly w1thin
and partly outside of the City of San Bernard1no, County of San Bernardino.
$tate of California, as per map Recorded in Book' 7 of Maps. Page 23, 1n the
Office of the County Recorder of said County. described as follows:
Beginning at a p01nt on the north line of Kendall Drive, 75 feet measured along
the said north line fram tts intersection with the west line of Road Improvement
Dtstrict No. 38; thence westerly along the north l1ne of Kendall Drive. 60 feet:
thence north parallel with the west line of said Road Improvement District No.
38 to the south l1ne of Property conveyed to Frank A. Hardy by Deed Recorded
September 2, 1937. 1n Book 1226, Page 270. Official Records; thence east along
the south l1ne of said Hardy land to the west line of Tract conveyed to Luther
. .Lofgren; thence south along the west line of said Lofgren Land to the point af
'beginn1ng.
Except therefrom that portion of sa1d land lying sautherly and southwesterly of
the southerly and southwesterly 11ne of the land conveyed to San Bernardino
COunty Flood Control, by Deed Recorded December 20. 1940, in Book 1446, Page
.225, Official Records.
Parcel No.3:
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That portion of the west one-half of the southwest one~quarter of section 16,
. Township 1 north, Range 4 west, San Bernard1no Base ~nd Mer1d1an, 1n the Rancho
Muscup1abe (unsurveyed) described as follows:
Beg1nn1ng at a point on the north line Kendall Drive. 135 feet measured
northwesterly along the said north 11ne fram its tntersection with the west l1ne
of Road Improvement D1strict No. 38; thence westerly along the north l1ne of
Kendall Dr1ve 50 feet; thence north parallel with the west line of said Road
Improvement District No. 38. to the south line of property conveyed to Frank A.
Hardy, by Deed Recorded September 2, 1937 1n Book 1226, Page 270, Off1clal
Records; thence east along the south 11ne of satd Hardy Land to the west l1ne of
Tract conveyed to Edward M. Burdick and Ruth C. Burdick. by Deed Recorded March
10, 1939, 1n Book 1332, Page 399. Offic1al Records; thence south along the west
l1ne of said Burdick Land to the point of beginning.
Excepting therefrom that port1on of said land lying southerly and southWesterly
of the southerly and southwesterly l1ne of the land conveyed to the San
Bernard1nD County flood Control D1str1ct, a Body Corporate and Pol1t1c. by Deed
Recorded December 16. 1941. 1n Book 1509, Page 289, Off1c'al RecordS.
(LEGAl DESCRIPTION CONTINUED ON NEXT PAGE)
ATT. 1 - Page 5
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(LEGAL DESCRIPTION CONTINUED)
Parcel No.4:
That portion of the west one-half of the southwest one-quarter of Section 16,
township 1 north, Range 4 west, San Bernardino Base and Meridian, as the lines
of the Government Survey may be extended across the Rancho Muscupiabe as per Map
_ecarded in Book 7 of Maps, Page 23; Records of said County, described as
follows:
.
Commenc1ng at a point on the northeasterly line 01 the San Bernardino County
flood Control District Right of Way 185 feet northwesterly along said
Aortheasterly line fram its intersection with the west line of Road District
Improvement No. 38, for the point of beginning; thence north 87.08 feet MIL to a
point which 1s due east of a point in the west 11ne of said Section 100 feet
north of the intersect10n of the northeasterly l1ne of Kendall Drive and the
west line of sa1d Section, thence west 150.96 feet, more or less, to its
intersection w1th the northeasterly l1ne of the San Bernardino County Flood
Control Qistr1ct Right of Way Line, thence south 60. 26' elst 174.04 feet, more
or less, along Slid right of way to the point of beg1nning; and adjacent areas.
. ATT. 1 - Page 6
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ATTACHMENT NO. 2
I.
SCOPE OF DEVELOPMENT
GENERAL DESCRIPTION
The site is specifically described in the Legal
Description (Attachment NO.1) pursuant to section 103 of this
Agreement.
II. DEVELOPMENT
/
Participant shall develop the site by constructing homes
of varying square footage based upon the following floor plans:
1- 1,200 sq. ft.
2- 1,299 sq. ft.
3- 1,320 sq. ft.
2 br./2 bath - 1 story;
3 br./2 bath - 1 story;
3 br./den/2 bath - 1 story
Each home shall have full amenities and shall include the
following: drapes, security system, garage door opener, microwave
oven and trash compactor. Participant agrees to expend a
construction cost of approximately $4S.0qper square foot for each
residence, exclusive of fees, off-siteIiiiprovements, engineering or
loan costs. In addition, Participant agrees to construct such off-
site improvements as are required by the Tentative or Final Map on
the site or are otherwise required by City ordinance or regulation.
All of the improvements to be provided by the Participant
on the site constitute the "Participant Improvements."
The Participant shall commence and complete the
Participant Improvements by the respective times established
therefor in the Schedule of Performance (Attachment NO.3).
III. DEVELOPMENT STANDARDS
The Participant Improvements shall be developed in
accordance with applicable building and safety codes.
IV. DEMOLITION AND SOILS
Participant assumes all responsibility for surface and
subsurface conditions at the Site, and the suitability of the site
for the Participant Improvements. If the surface and subsurface
conditions are not entirely suitable for such development and use,
Participant shall at its cost take all actions necessary to render
the site entirely suitable for such development. Participant has
undertaken all investigation of the site it has deemed necessary
and has not received or relied upon any representations of Agency,
the City, or their respective officers, agents and employees.
Participant shall undertake at its cost all demolition required in
~, connection with the development of Participant Improvements.
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ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
1. Execution of AaJ;eement bv
Aaencv. Agency shall approve
and execute this Agreement, and
shall deliver one (1) copy
thereof to Participant.
2. Comolete Construction. /
Participant shall complete
construction of the Participant
Improvements and obtain
certificates of Occupancy on
each of the fifty-nine (59)
residential units.
Not later than thirty (30) days
after the date of execution and
submission of two (2) copies of
this Agreement to Agency by
Participant.
Not later than THREE YEARsfrom the
effective date of this
Agreement.
ATT. 3 - Page 1
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ATTACHMENT NO. 4
PROMISSORY NOTE SECURED BY DEED OF TRUST
$479,080.00
Place:
Redevelopment Agency
201 North "E" street
Third Floor
San Bernardino, CA 92401
Date:
FOR VALUE RECEIVED, the undersigned promises to pay to
the Redevelopment Agency of the Ci ty of San Bernardino (the
"Agency") or its successors, the sum of Four Hundred Seventy Nine
Thousand Eighty Dollars ($479,080.00), and to pay interest on the
unpaid principal amount of this Note which has been funded from the
date hereof, at the rate per annum equal to two points over Bank of
America's published prime rate, as adjusted from time to time,
until paid. PaYment of interest and principal shall be made as
follows:
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1. The Agency shall be paid from the escrow for the
sale of each of the fifty-nine residential units to be constructed
on the site [as defined in that certain Owner Participation
Agreement executed in connection herewith (the "Agreement")] the
principal sum of $8,120, plus accrued interest, plus any other sums
coming due under this Note, the Agreement or the Deed of Trust
securing this Note (the "Deed of Trust"), with such other sums
being equally allocated among any remaining unused residential
units.
2. The Agency shall deposit into the escrow for the
sale of any such residential unit a partial reconveyance of the
Deed of Trust, sufficient to release the Agency's interest in said
residential unit and its lot, which partial reconveyance shall be
held in escrow by the escrow holder until the Agency has been paid
the sums provided in Paragraph 1 above.
3. Regardless of the completion or sale of the
residential units, the full amount of all unpaid principal and
interest under this Note shall become due and payable three (3)
years from the date of the Agreement.
4. A failure to pay any sum provided for in this Note
when due or a material breach of this Note, the Agreement or the
Deed of Trust, shall constitute a breach hereof and shall entitle
the Agency to declare all sums due hereunder immediately due and
payable and to pursue all remedies available under this Note, the
Agreement or the Deed of Trust.
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All payments due under this Note shall be made in lawful
money of the United states at the principal office of the Agency,
201 North "E" street, City Hall Annex, San Bernardino, CA 92401-
1507, or at such other place as may from time to time be designated
by the Agency in writing.
Notwi thstanding any language herein to the contrary, this
Note shall become immediately due and payable in the amount of all
unpaid principal, with interest, upon any transfer in violation of
the Agreement of title of the property described in the Deed of
Trust to any person, firm or corporation other than the undersigned
and except as provided in said Deed of Trust, whether such transfer
of title be voluntary, involuntary, or by operation of law.
The undersigned reserves the right to prepay at any time
all or any part of the principal amount of this Note without the
payment of penalties or premiums. All payments on this Note shall
be applied first to the interest due on the Note and then to the
principal due on the Note, and the remaining balance shall be
applied to late charges, if any.
IN THE EVENT the undersigned shall fail to pay the
payments when due, and if such failure be subsisting thirty (30)
days thereafter, the unpaid principal amount of this Note, together
with accrued interest and late charges, shall become due and
payable, at the option of the Agency, wi thout notice to the
undersigned. Failure of the Agency to exercise such option shall
not constitute a waiver of such default. If the payments on this
Note are not paid within ten (10) days of the due date, the
undersigned shall pay to the Agency a late charge of 4% on the
amount past due and remaining paid. If this Note be reduced to
judgment, such judgment shall bear the statutory interest rate on
judgments.
In no event shall the total interest and late charge
payable hereunder exceed the maximum amount of interest permitted
under the usury laws of the State of California.
If suit is instituted by the Agency to recover on this
Note, the undersigned agrees to pay all costs of such collection
including reasonable attorney's fees and court costs.
THIS NOTE is secured by a Deed of Trust of even date,
duly filed for record in the office of the County Recorder of the
County of San Bernardino, state of California.
DEMAND, protest and notice of demand and protest are
hereby waived and the undersigned hereby wai ves, to the extent
authorized by law, any and all homestead and other exemption rights
which otherwise would apply to the debt evidenced by this Note.
ATT. 4 - Page 2
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IN WITNESS WHEREOF, THIS NOTE has been duly executed by
the undersigned, as of its date.
EMBLEM DEVELOPMENT CORPORATION
By:
Title:
ATT. 4 - Page 3
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ATTACHMENT NO. 5
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
)
)
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
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Deed of trust made on , 1992, by EMBLEM
DEVELOPMENT CORPORATION, hereinafter called "Trustor," whose
address is , to FIRST AMERICAN TITLE
COMPANY, hereinafter referred to as "Trustee" , whose business
address is 323 Court Street, San Bernardino, California 92401, in
favor of the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
hereinafter referred to as "Beneficiary", whose business address is
201 North "E" Street, Third Floor, San Bernardino, California
92401.
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
,~ San Bernardino, State of California, described as follows:
"""-
That certain property located in the City of
San Bernardino, County of San Bernardino, State of california, more
particularly described as:
together with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and profits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under that certain
OWner Participation Agreement and payment of the indebtedness
evidenced by a Promissory Note executed by Trustor in the principal
sum of Four Hundred Seventy Nine Thousand Eighty Dollars
($479,080.00), payable to Beneficiary or order and each extension
thereof, both executed in connection with this Deed of Trust; and
performance of each agreement to Trustor incorporated herein by
reference or contained herein.
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ATT. 5 - Page 1
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A.
To protect the security of this Deed of Trust, Trustor agrees:
1. To maintain the property in good condition and
repair; not to remove or demolish any building or improvement
thereon; to complete promptly in workmanlike manner any improvement
hereafter constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is damaged or
destroyed, and to pay when due all costs incurred therefor or in
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereof or any act upon
the property in violation of law or of covenants, conditions or
restrictions affecting the property.
2. To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
sum.
3. To pay (a) at least ten (10) days before
delinquency, all taxes and assessments affecting the property, all
assessment upon water company stock, and all rents, assessments and
'- charges for water appurtenant to or used in connection with the
property; (b) when due, all encumbrances, charges and liens, with
interest, on the property or any part thereof, which appear to be
prior or superior hereto; and (c) all costs, fees and expenses of
this trust.
4. If Trustor fails to make any paYment or to do any
act as herein provided, then Beneficiary or Trustee (but without
obligation so to do, and with or without notice to or demand upon
Trustor, and without releasing Trustor from any obligation hereof)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon the property for such
purpose; (b) appear in or commence any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; (c) pay, purchase, contest, or compromise
any encumbrance, charge or lien that, in the judgment of either,
appears to be superior hereto; and in exercising any such power,
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys' fees.
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5 . To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with interest from
date of expenditure at the annual rate of two percentage points
over Bank of America's published prime rate.
ATT. 5 - Page 2
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B.
It is mutually agreed that:
1. Any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice. /
2. The acceptance by Beneficiary of any paYment less
than the amount then due shall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the entire sum then due or of Beneficiary's right either to
require prompt paYment of all sums then due or to declare default.
The acceptance of paYment of any sum secured hereby after its due
date will not waive the right of Beneficiary either to require
prompt paYment when due of all other sums so secured or to declare
default for failure so to pay. No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
3. At any time or from time to time, without liability
therefor and with or without notice, upon written request of
Beneficiary and presentation of this deed and the secured note for
endorsement, and without effecting the personal liability of any
person for paYment of the indebtedness secured hereby or the effect
of this deed upon the remainder of the property, Trustee may
reconvey any part of the property, consent to the making of any map
or plat thereof, join in granting any easement or join in any
extension agreement or any agreement subordinating the lien or
charge thereof.
4. Upon written request of Beneficiary stating that all
sums secured hereby have been paid, surrender of this deed and the
note to Trustee for cancellation and retention, and paYment of its
fees, Trustee shall reconvey, without warranty the property then
held hereunder. The reci tals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
designated in such reconveyance as "the person or persons legally
entitled thereto. II In addition, Trustor will be making paYments on
the Promissory Note from the sale of fifty-nine (59) residential
units to be constructed by Trustor or the lots pertaining thereto.
Beneficiary agrees to provide Trustor with partial reconveyances of
this Deed of Trust, or to instruct Trustee to do so, in connection
with the sale of such units or lots providing the conditions of
Section 322 of the Agreement are met. A partial reconveyance with
respect to any such unit or lot shall release only the lien against
such unit or lot and shall not act to release or impair the lien of
this Deed of Trust against any units or lots as to which partial
reconveyances have not been issued.
ATT. 5 - Page 3
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5. Trustor may give such notice to Beneficiary at any
time before there is a Trustee' s sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment t~ the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
6. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default in payment of any amount secured by this deed of
trust, Trustor or such owner shall pay to Beneficiary in advance on
the first day of each month a reasonable rental for the premises so
occupied. On failure to pay such reasonable rental, Trustor or
such owner may be removed from the premises by summary
dispossession proceedings or by any other appropriate action of
proceeding.
7. If default is made in payment of any indebtedness or
in performance of any agreement hereby secured, then Beneficiary,
with or without notice to Trustor, may declare all sums secured
hereby immediately due and payable by instituting suit for the
recovery thereof or for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall also deposit with Trustee this deed, the secured
note, and all documents evidencing expenditures secured hereby.
8. Should Trustor, without the consent in writing of
Beneficiary, voluntarily sell, transfer or convey his interest in
the property or any part thereof, or if by operation of law, it be
sold, transferred or conveyed, then Beneficiary may, at its option,
declare all sums secured hereby immediately due and payable.
Consent to one such transaction shall not be deemed to be a waiver
of the right to require such consent to future or successive
transactions.
9. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful money of the united
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
ATT. 5 - Page 4
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announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
10. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to ,-payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at two percentage points over Bank of America's published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
11. Before Trustee's sale, Beneficiary may rescind such
notices of default and of election to cause the property to be sold
by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
,-. declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
12. Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
13. If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
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14. All leases nor or hereafter affecting the property
are hereby assigned and transferred to Beneficiary by Trustor.
Trustor hereby covenants that none of such leases will be modified
or terminated without the written consent of Beneficiary.
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ATT. 5 - Page 5
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15. When requested to do so, Trustor shall give such
further written assignments of rents, royalties, issues and
profits; of all security for the performance of leases; and of all
money payable under any option to purchase, and shall give executed
originals of all leases, now or hereafter on or affecting the
property.
16. Trustor reserves the right, prior to any default in
paYment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor's right to collect such~oneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
default hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in cOllecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
17. without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, may release any person now or
hereafter liable for performance of such obligation, and may extend
the time for paYment or performance, accept additional security,
and alter, substitute or release any security.
18. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys' fees in a reasonable sum, to be fixed by the court.
19. No remedy hereby given to Beneficiary or Trustee is
exclusive of any other remedy hereunder or under any present or
future law.
20. The pleading of any statute of limitations as a
defense to any and all obligations secured by this deed is hereby
waived, to the full extent permissible by law.
21. In the event of default in the payment of any
indebtedness secured hereby, and if such indebtedness is secured at
any time by any other instrument, Beneficiary shall not be
obligated to resort to any security in any particular order; and
ATT. 5 - Page 6
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the exercise by Beneficiary of any right or remedy with respect to
any security shall not be a waiver of or limitation on the right of
Beneficiary to exercise, at any time or from time to time
thereafter, any right or remedy with respect to this deed.
22. Trustor shall, upon request made by Beneficiary,
furnish the Beneficiary with annual statements covering the
operations of the property.
23. Beneficiary may collect a "late charge" not to
exceed an amount equal to four percent (4%) on the amount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
24. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, successors in interest, and
assiqns. The term "Beneficiary" means the owner and holder,
including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
25. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below.
MAILING ADDRESSES FOR NOTICES:
EMBLEM DEVELOPMENT CORPORATION
as Trustor:
ATT. 5 - Page 7
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Executed at San Bernardino, California, on the date first
above written.
EMBLEM DEVELOPMENT CORPORATION
as Trustor
By:
Title:
ATT. 5 - Page 8
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STATE OF CALIFORNIA
)
) SSe
)
COUNTY OF
On this day of , 1992, before me, the
undersigned, a Notary Public in and for the State of California,
personally appeared and ,
known to me (or proved to me on the basis of satisfactory evidence)
to be the of EMBLEM DEVELOPMENT CORPORATION a
California corporation, and acknowledged to me that they executed
said instrument on behalf of sa~d corporation.
Signature of Notary Public
(SEAL)
ATT. 5 - Page 9