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HomeMy WebLinkAbout03- Development Department D E 10L O P R E N T D E P A R T M I T OF THE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTIOR From: KENNETH J. HENDERSON Subject: MILLENNIUM SENIOR Executive Director HOUSING PROJECT Date: May 19, 1993 ------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s): On June 1, 1992 the Community Development Commission authorized $1,543,220 to finance a multi-family senior citizen oriented housing complex. On March 7, 1992 the Community Development Commission approved $200,000 in bond proceeds for bridge demolition and removal. The Commission subsequently approved an additional $100,000 for certain cost overruns and conditions imposed by various City Departments. ------------------------------------------------------------------------------- Recommended Motion(s): (Community Development Commission) MOTION: That the Community Development Commission authorize the Chairman and the Executive Director to execute a Loan Agreement between the Redevelopment Agency, Cliff Carel and Associates and Escrow Funding Service for financial assistance in an amount not to exceed $1,543,220 to facilitate the construction of a forty-five (45) unit senior citizen housing complex. 4a Administrator KENNETH J. HEND RSON Executive Director --------------------------------------------------------- ---------------- Contact Person(s): Kenneth Henderson/Ed Flores Phone: 5081 Project Area(s): Central City Project Ward(s): One (1) Supporting Data Attached: Staff Report FUNDING REQUIREMENTS: Amount: $ 1.543.220 Source: Low/Mod Funds Budget Authority: Approved June 1 1992 Commission/Council Notes: ------------------------------------------------------------------------------ © KJH:DRE:elf:2550B COMMISSION MEETING AGENDA Meeting Date: 5/24/1993 Agenda Item Number- D E V F T, O P M E N T D E P A R T M E N T THE CITY OF SAN BERNARDINO STAFF REPORT Millennium Senior Housing Project On June 1, 1992, at the specific recommendation of the Housing Committee, the Community Development Commission authorized $1,543,220 in Agency monies to finance a multi-family senior citizen oriented housing complex. This project, consisting of forty five (45) units and commonly known as the "Millennium", will be constructed by Cliff Carel and Associates. In addition to submitting plans for plan check by Planning and Building Services (8-10 weeks), all that remains to effectuate construction financing for this project is for the Community Development Commission to authorize execution of the loan agreement between the Redevelopment Agency and Cliff Carel and Associates and Escrow Funding Service (please see attached loan agreement). The Millennium loan agreement includes the following salient deal points: * Loan amount of $1,543,220. * Loan to bear interest at a rate of 9% annually. * Loan due and payable eighteen (18) months from date of loan closing. * 1.5% loan origination fee assessment (approximately $23,148) * Loan proceed disbursement is contingent upon an approved Conditional Use Permit being issued by the City and developer in a position to pull building permits. * Agency to retain fund disbursement firm (Escrow Funding Service), to handle all construction progress payments. From the date of loan agreement execution, the developer has indicated that construction should commence within sixty (60) days, and that the Millinnium senior citizen apartment complex should be completed ten (10) months from the commencement of construction. Based upon the previous actions of both the Housing Committee and Community Development Commission, and because the loan agreement is consistent with the purpose and intent of said actions, staff recommends adoption of the form motion. UA46M KENNETH J. HENDERSON, Executive Director Development Department ------------------------------------------------------------------------------- KJH:DRE:elf:2550B COMMISSION MEETING AGENDA Meeting Date: 5/24/1993 Agenda Item Number: 3 AGREEMENT TO BE PROVIDED PRIOR TO THE COMMUNITY DEVELOPMENT COMMISSION MEETING 3 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 LOAN AGREEMENT (MILLENNIUM MANOR SENIOR HOUSING PROJECT) By and Among REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO and ESCROW FUNDING SERVICE a California corporation and CLIFF R. CAREL & ASSOCIATES a California limited partnership O TABLE OF CONTENTS Pace RECITALS 1 Section 1. Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2 . Public Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 3. Release of DDA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 4 . Construction Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Section 5. Duties of Disbursing Agent, Construction Loan Funding Procedure. . . . . . . . . . . . . 10 Section 6. Construction of the Millennium Manor Project. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 section 7. Compliance with Community Redevelopment Law; Income and Rental Price Limitations. . . . . . . . 14 Section 8. Redeveloper's Responsibilities. . . . . . . . . . . . . . . . . . . 17 Section 9. Certain Sales or Transfers of the Millennium Manor Project. . . . . . . . . . . . . . . . . . . . . . . . 20 Section 10. Notice of Sales and Transfers. . . . . . . . . . . . . . . . . . . . 20 Section 11. Further Encumbrances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 12. Compliance with State Laws. . . . . . . . . . . . . . . . . . . . . . . 21 Section 13 . Plans and Specifications. . . . . . . . . . . . . . . . . . . . . . . . . 21 Section14. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 15. Obligation to Obtain Financing. . . . . . . . . . . . . . . . . . . 24 Section 16. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 17 . Applicability of Laws and Litigation Costs. . . . . . . 25 Section 18. Nondiscrimination and Related Covenants. . . . . . . . . . 26 Section 19. Successors and Assigns; Assignment. . . . . . . . . . . . . . . 28 Section 20. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Section 21. Entire Agreement; Amendment. . . . . . . . . . . . . . . . . . . . . . 31 Section 22. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Section 23 . Section Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 24. Meaning of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 25. Indemnification. . . . . . . . . 32 Section 26. Effective Date of This Agreement; Execution; Term of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 EXHIBIT "A" - Legal Description EXHIBIT "B" - Scope of Development EXHIBIT "C" - Promissory Note EXHIBIT "D" - Deed of Trust EXHIBIT "E" - Disbursing Agent Fees EXHIBIT "F" - Escrow Funding Service Agreement EXHIBIT "G" - Line-Item Budget EXHIBIT "H" - Certificate of Completion - i - o SBEOOOOI/DOC/681/df 05/20/93 305 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO LOAN AGREEMENT (MILLENNIUM MANOR SENIOR HOUSING PROJECT) This Loan Agreement (the "Agreement") is entered into this day of , 1993, by and among the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic duly organized and existing pursuant to the Community Redevelopment Law of the State of California (hereinafter referred to as the "Agency") , Cliff R. Carel & Associates, a California limited partnership (hereinafter referred to as the "Redeveloper") , and Escrow Funding Service, a California corporation (hereinafter referred to as the "Disbursing Agent") and is entered into by the parties hereto with reference to the following facts: RECITALS WHEREAS, the Agency is authorized and empowered by the Community Redevelopment Law, Chapter 1 of Division 24 of the California Health and Safety Code, as amended (the "Law") , to permit owner participation in the redevelopment of real property; to enter into agreements for the acquisition, disposition and development of property or to otherwise assist in the redevelopment of real property within a redevelopment project area conforming with a redevelopment plan adopted for such area; to acquire real and personal property in redevelopment project areas; to receive consideration for the provision of redevelopment assistance; to make and execute contracts and other instruments necessary or convenient to the exercise of its - 1 - © 1 powers; and to incur indebtedness to finance or refinance redevelopment projects; and WHEREAS, in furtherance of the objectives of the Law, pursuant to Ordinance No. 3571 of the City of San Bernardino, California (the "City") , adopted May 3 , 1976, the City and the Agency have approved and adopted the Redevelopment Plan for the Central City Project (the "Redevelopment Plan") ; and WHEREAS, on December 20, 1982, the Agency entered into a Disposition and Joint Development Agreement (the "Disposition and Joint Development Agreement") with the Redeveloper for the sale to and the development by the Redeveloper of Parcels 2, 3 , 4, 5 and 9 of Parcel Map No. 7140, as more fully described in the Disposition and Joint Development Agreement; and WHEREAS, a First Amendment to the Disposition and Joint Development Agreement between the Agency and the Redeveloper was executed on March 4, 1983 (the "First Amendment to the Disposition and Joint Development Agreement") ; and WHEREAS, a Second Amendment to the Disposition and Joint Development Agreement between the Agency and the Redeveloper was executed on February 5, 1985 (the "Second Amendment to the Disposition and Joint Development Agreement") (the Disposition and Joint Development Agreement, together with the First Amendment to the Disposition and Joint Development Agreement and the Second Amendment 2 SBEO'm01 OOCNI to the Disposition and Joint Development Agreement, shall be collectively hereinafter referred to as the "DDA") ; and WHEREAS, there were certain events which prevented full performance by the Redeveloper under the DDA, including but not limited to the Redeveloper not fully completing the Project, as defined in the DDA, within the time frames set forth in the DDA, the nonpayment by Redeveloper of in lieu tax payments during periods of delay, and the inability to complete of the storm drain from the easterly portion of Lots 2 and 4 to Waterman Avenue; and WHEREAS, notwithstanding any overriding reasons for impossibility of performance under the DDA, the Agency will excuse any non-performance by the Redeveloper under the DDA and release the Redeveloper from liability for such non-performance, and the Redeveloper will excuse any non-performance by the Agency under the DDA and release the Agency from liability for such non-performance; and WHEREAS, a portion of the Project was originally to have been constructed on Parcel 9 as defined in the DDA; and WHEREAS, the Department of the Navy and the Department of the Army previously entered into a lease agreement with the City, whereby the Navy and the Army acquired a 30-foot easement on Parcel 9 and thus causing Parcel 9 to be undevelopable and not within the control of the Agency; and - 3 - seEOmoimcwi 3 MRY 21 '93 NN:EI4RM P•2 WHEREAS, the Redeveloper and the Agency intend that the DOA be voided, nullified and fully extinguished, and that this Agreement supersede and replace the DDA in its entirety; and WHEREAS, pursuant to the provisions of the Redevelopment Plan, the Agency deems it desirable to cause the construction of a forty-five (45) unit low and moderate income senior citizens apartment complex consisting of forty-three (43) one bedroom units and two (2) studio units on that certain property as legally described in Exhibit "A" attached hereto (the "Property") , which development is more fully described in the Scope of Development attached hereto as Exhibit "B" and incorporated herein by this reference, and which is to be designated as Millennium Manor Senior Housing Project (the "Millennium Manor Project") ; and WHEREAS, the Redevsloper has requested the Agency to exercise certain redevelopment powers, pursuant to the Community Redevelopment Law, and to assist the Redeveloper with respect to undertaking the Millennium Manor Project; and WHEREAS, it is proposed that the Agency assistance with respect to the development of the Millennium Manor Project will consist of the provision of a construction financing loan in the amount of One Million Five Hundred Forty-Three Thousand Two Hundred Twenty Dollars ($1, 543,220) (the "Construction Loan") ; and WHEREAS, the proceeds of the Construction Loan shall be used to fund the construction costs of the Millennium Manor Project as well as related costs and the Construction Loan shall be evidenced by a Promissory Note (the "Promissory Note") executed by the Redeveloper in favor of the Agency and secured by a Deed of Trust (the "Deed of Trust'$) ; and WHEREAS, the Agency intends to assist the Redeveloper in completing the Millennium Manor Project to the extent that the Agency shall provide the Construction Loan pursuant to the terms hereof; and WHEREAS, the Agency and the Redeveloper intend to retain the services of Escrow Funding Services (the "Disbursing Agent") for the administration of the Construction Loan and other duties, with the costs, fees and payments for such service to be paid as provided in this Agreement; and WHEREAS, the development of the Millennium Manor Project will benefit the Project Area subject to the Redevelopment Plan (the "Project Area") by providing senior citizen housing to the community and the City thereby eliminating blighting conditions within and adjacent to the Property; and WHEREAS, the Millennium Manor Project will facilitate development of the Property in a manner consistent with the Redevelopment Plan and help encourage economic growth and revitalization in and around the Property and the Project Area; and 5 SBEO`OBBIID 1 WHEREAS, the Agency deems it desirable to utilize its low and moderate income housing funds for the purposes of providing the Construction Loan; and WHEREAS, the Redeveloper has demonstrated to the satisfaction of the Agency its commitment to undertake and cause the completion of the Millennium Manor Project. NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: Section 1. Defined Terms. All terms not otherwise defined herein shall have the same meaning as used in the Community Redevelopment Law, Health and Safety Code Section 33000, et sec . (the "Law") . The recitals are by reference incorporated herein and made a part of this Agreement. Section 2 . Public Purpose. The Agency and the Redeveloper agree that the completion of the Millennium Manor Project shall be undertaken for the common benefit of the parties hereto and the residents of the City in order to eliminate blight within the City and areas adjacent to the Project Area. The Agency and the Redeveloper further agree that the development of the Millennium Manor Project shall not only eliminate blight on the Property, but will also assist in creating an environment which will encourage and facilitate the elimination of blight within the Project Area and in neighborhoods in proximity to the Project Area. Therefore, the 6 - seEOnaoinoc<ei G 4 completion of the Millennium Manor Project will be of benefit to the Project Area, and will help improve, upgrade and revitalize, both economically and physically, a portion of the City located within the Project Area that manifests itself as a blighted area. In addition, the Millennium Manor Project will provide an affordable residential base to persons and households who may be presently residing in the Project Area and in other redevelopment project areas of the Agency. Section 3 . Release of DDA. The Agency hereby excuses any and all non-performance by the Redeveloper under the DDA and releases the Redeveloper from any and all liability for such non- performance, and the Redeveloper hereby excuses any and all non- performance by the Agency under the DDA and releases the Agency from any and all liability for such non-performance. The DDA shall hereby be considered by the parties hereto to be voided, nullified and fully extinguished, and the parties hereto hereby agree that this Agreement shall supersede and replace the DDA in its entirety. Section 4 . Construction Loan. The Agency hereby agrees that in order to assist the Redeveloper in the development of the Millennium Manor Project, the Agency shall provide the construction Loan in an amount equal to one Million Five Hundred Forty-Three Thousand Two Hundred Twenty Dollars ($1, 543 ,220) as evidenced by the Promissory Note attached hereto as Exhibit "C" and incorporated herein by this reference and secured by the Deed of Trust attached hereto as Exhibit "D" and incorporated herein by this reference. ® — 7 — seEamo�uoceci a The interest rate on the Construction Loan shall be nine percent (98) per annum (the "Interest Rate") , fixed for the term of the Construction Loan, provided, however, that if the Construction Loan is not repaid in full, plus all accrued interest, upon the expiration of the term of the Construction Loan, then the Redeveloper will be deemed in default and the Agency shall have the right to foreclose on the Millennium Manor Project pursuant to the terms of the Deed of Trust and the interest rate after the expiration of the term of the Construction Loan shall be twelve percent (12%) per annum on any unpaid principal and interest (the "Default Rate") . Interest shall accrue at the Interest Rate on that portion of the proceeds of the Construction Loan which have been deposited into the Construction Loan Account as defined in section 5 hereof from the date of deposit of such proceeds by the Agency into the Construction Loan Account until the outstanding principal balance as deposited, plus all accrued and unpaid interest thereon is paid in full, except upon the expiration of the term of the Construction Loan in which case interest shall accrue at the Default Rate on the entire principal and interest amount of the Construction Loan which has been deposited in the Construction Loan Account from the date of expiration of the term of the Construction Loan until the outstanding principal balance, plus all accrued and unpaid interest are paid in full. All payments made by the Redeveloper under the terms of the Construction Loan shall first be applied to the payment of accrued and unpaid interest and then to the payment of principal. 8 SBEO'BOOI�DOCWI The term of the Construction Loan shall be eighteen (18) months from the date of approval of this Agreement and any disbursed proceeds representing the principal balance, and any accrued interest thereon shall be due and payable in full on said eighteen (18) month maturity date which date shall be November 22 , 1994. The Construction Loan shall be due and payable, both as to principal and accrued and unpaid interest, prior to maturity from the first moneys realized upon the earlier of (i) eighteen (18) months from the date of this Agreement, (ii) upon any refinancing of the Millennium Manor Project equal to or greater than the principal and interest then owed on the outstanding balance of the Construction Loan, or (iii) upon a sale of the Millennium Manor Project and shall be paid as a first priority claim against all net proceeds of such sale until the Construction Loan, including accrued interest, shall have been paid in full. In partial consideration of the Agency's provision of the Construction Loan, the Redeveloper agrees to pay to the Agency a loan origination fee equal to one and one-half percent (1-1/2%) of the principal amount of the Construction Loan which amount shall be Twenty Three Thousand One Hundred Forty Eight Dollars ($23 , 148) and which amount shall be paid in cash prior to the funding of all or any portion of the Construction Loan. The Redeveloper hereby further agrees to obtain from any available source of funds of either the Redeveloper or any other 9 - SBEOWOINOC661 third party such moneys as may be necessary to complete the construction of the Millennium Manor Project, fulfill the financial obligations of the Redeveloper pursuant to this Agreement, repay the principal portion of the Construction Loan plus any accrued interest as required under this Agreement and to pay all required fees, including, but not limited to, those of the City and those of the Agency, all required schools fees and taxes and any and all permanent loan fees associated with any permanent financing of the Millennium Manor Project. The Agency shall have the right from time-to-time, upon reasonable notice, to review the books and records of the Millennium Manor Project and/or the Redeveloper regarding the finances of the Millennium Manor Project. Section 5. Duties of Disbursing Agent Construction Loan Funding Procedure. (a) The Agency and the Redeveloper agree to retain the services of the Disbursing Agent, and the Disbursing Agent agrees to perform such services as provided in this Agreement. (b) The parties hereto agree that the fees, costs and payments of the Disbursing Agent, as set forth in Exhibit "E" attached hereto and made a part hereof, shall be paid by the Agency. 10 - SBEO'BO]I�1 (c) The Disbursing Agent shall be responsible for the administration of the Construction Loan and other duties as provided in this Section 5 and shall cause the extension of an Escrow Funding Service Agreement substantially in the form of Exhibit "F" attached hereto and incorporated herein by this reference. (d) The proceeds of the Construction Loan shall be disbursed in the manner as hereinafter set forth after the Redeveloper has provided the Agency with an endorsement or title policy in a policy amount equal to the principal amount of the Construction Loan from a title insurance company acceptable to the Agency, in favor of the Agency showing fee simple title in the Property in the name of the Redeveloper and the lien free status of the Property except for this Agreement and the Deed of Trust having been duly recorded as a first lien against the Property. (e) The Disbursing Agent shall make disbursements to the Redeveloper for the costs of the Millennium Manor Project based upon written progress requests of the Redeveloper (the "Progress Payment Requests") , to be submitted and certified as to correctness by the Redeveloper to the Disbursing Agent. For each Progress Payment Request submitted by the Redeveloper to the Disbursing Agent, the Disbursing Agent shall insure that the Progress Payment Requests are in compliance with the Line-Item Budget attached hereto as Exhibit "G" and made a part hereof (the "Line-Item Budget") . The parties hereto agree that there shall be no transfer of funds between 11 SBEO'0001➢ t o established line-items. Upon receipt of a Progress Payment Request, the Disbursing Agent shall thereafter request that the Agency make a deposit into the Construction Loan Account (the "Construction Loan Account") in an amount equal to the Progress Payment Request of the Redeveloper. Deposit requests received by the Agency in said manner shall be paid in one or more checks of the Agency to the Disbursing Agent for deposit into the Construction Loan Account and for subsequent disbursement to the Redeveloper, material suppliers, contractors, subcontractors or other laborers or materialmen. (f) Such Progress Payment Requests shall include only those approved construction expense items of the Millennium Manor Project as shown on the Line-Item Budget. Such Progress Payment Requests as may have been submitted and accepted by the Disbursing Agent shall not exceed the Line-Item Budget as attached to this Agreement as Exhibit "G" either in whole or on a line-item basis. Payment of any cost overruns on a particular line-item or the modification of the line-item dollar amounts may only be made by the Disbursing Agent with the prior written consent of the Agency. (g) The Redeveloper shall provide the Disbursing Agent with a current accounting schedule of expenditures denoting each line-item for which a Progress Payment Request has been submitted. Such schedule of expenditures shall include any estimates, invoices, agreements or contracts to evidence the actual dollar amount to be paid to any subcontractor, labor contractor, vendor or supplier. — 12 — saEO�omi�"ocvei (h) Payments shall be made by the Agency for only those line-items included on a Progress Payment Request which have attached thereto evidence satisfactory to the Disbursing Agent of the actual dollar amount to be paid or which has been paid to any subcontractor, labor contractor, vendor or supplier. (i) In addition to the above-listed duties and responsibilities, the Disbursing Agent shall be responsible for insuring that all work performed on the Millennium Manor Project does not exceed the Line-Item Budget and that all materials ordered for the Millennium Manor Project are delivered. Additionally, the Disbursing Agent shall also be responsible for conducting on-site inspections of the Millennium Manor Project, and for reviewing the books and records of the Millennium Manor Project and/or the Redeveloper regarding the finances of the Millennium Manor Project. Section 6. Construction of the Millennium Manor Project. The Redeveloper shall undertake or cause to be undertaken the acquisition, construction and installation of the private improvements and public improvements comprising the Millennium Manor Project. The Redeveloper shall be responsible for the payment of any and all fees and assessments that may be levied against the Millennium Manor Project or the Property or which may be required in connection with the construction of the private or public improvements which comprise the Millennium Manor Project. The Redeveloper shall commence construction of such public and private — 13 — saenmonmcw� improvements prior to sixty (60) days from the date of execution of this Agreement and shall complete such construction within ten (10) months of commencement of construction subject to any extensions by mutual written consent of the parties hereto. Section 7 . Comoliance with Community Redevelopment Law; Income and Rental Price Limitations. The Redeveloper shall impose by recorded documents satisfactory to the Agency the following restrictions on the Millennium Manor Project which shall remain in effect for the duration of the Redevelopment Plan which is presently May 3 , 2021. (1) Twenty (20) units shall be reserved as very low income one- bedroom units for a household of one (1) whose income does not exceed fifty percent (50%) of area median income for a household size of one (1) whose rent (rent shall include rent plus additional amounts for storage and parking, but shall not include telephone or utilities) shall not exceed twenty-five percent (25%) of actual gross monthly income. (2) Twenty-one (21) units shall be reserved as low income one- bedroom units for a household of one (1) whose income does not exceed eighty percent (80%) of area median income for a household size of one (1) whose rent (rent shall include rent plus additional amounts for storage and parking, but — 14 — seEOwmi�mcae� shall not include telephone or utilities) shall not exceed twenty-five percent (258) of actual gross monthly income. (3) Four (4) units, which may or may not be those referred to in (1) and (2) above, shall be rented to handicapped individuals; such units rented to the handicapped may be separately reserved units provided that four (4) units shall be exclusively for handicapped applicants on an as available basis and not rented to non-handicapped persons until similar sized units within the complex are occupied and rented; rental of units reserved for handicapped occupants must evidence a good faith effort to solicit handicapped tenants prior to being rented to non- handicapped tenants; "handicapped" as used herein shall mean individuals who are either entirely bedridden or who have lost the use of one or more arms or legs or are confined to a wheelchair for all ambulatory access. Redeveloper must demonstrate through appropriate written materials and other documentation reasonably acceptable to the Agency such good faith efforts to solicit handicapped tenants as required by this Agreement. (4) No person under the age of sixty-two (62) (a "Senior Citizen") shall be permitted to reside in any unit, except that where more than one (1) person resides in a unit, one of the occupants must be a Senior Citizen and each other — 15 — seeomoi�"ocwi resident in the same unit must be a "Qualified Permanent Resident". To be a "Qualified Permanent Resident, a person must meet each of the following requirements: (A) Was forty-five (45) years of age or older, or was a spouse, cohabitant, or person providing primary physical or economic support to the Senior Citizen. (B) Has an ownership interest in, or is in expectation of an ownership interest in, the unit. (C) Was residing with the Senior Citizen prior to the death, hospitalization, or other prolonged absence of, or the dissolution of marriage with, the Senior Citizen. (5) Temporary residency, as a guest of a Senior Citizen, shall be permitted by a person of less than forty-five (45) years of age for periods of not less than sixty (60) days in any year. (6) Upon the death or dissolution of marriage, or upon hospitalization, or other prolonged absence of the Senior Citizen, any Qualified Permanent Resident shall be entitled to continue his or her occupancy, residency or use of the unit. — 16 — saEOwmi�nawi In addition to the foregoing the Redeveloper agrees to be bound by all limitations to be established by the Agency and/or any Covenants, Conditions and Restrictions as may be imposed by the Agency applicable to the Property, as to income limits and occupancy requirements for the Property. Section 8. Redeveloper's Responsibilities. During each month of the lease-up of the Millennium Manor Project and until full occupancy, the Redeveloper shall for each month thereof submit to the Agency written verification that the Redeveloper is in full compliance with the Community Redevelopment Law and the terms of this Agreement and that the tenants of the Millennium Manor Project, if any, are in compliance with the low and moderate income requirements, rental rates, and age limitations of this Agreement. Upon achieving full occupancy of the Millennium Manor Project and annually thereafter, the Redeveloper and any and all subsequent owners or successors in interest shall submit to the Agency written verification that the tenants of the Millennium Manor Project are in compliance with the low and moderate income requirements, rental rates, and age limitations of this Agreement. A substantial portion of the consideration which supports the agreement as herein contained of the Agency to assist in the redevelopment of the Property is the agreement of the Redeveloper to complete the Millennium Manor Project as set forth in the Scope of Development attached hereto as Exhibit "B", including the construction of the public improvements and private improvements within the specified period, all as - 17 - SBWO i�l evidenced by the issuance of a Certificate of completion in the form attached hereto as Exhibit "H" , subject to any extensions as mutually agreed upon by the Parties hereto. However, the foregoing responsibility of the Redeveloper shall be subject to the following limitations: By reason of acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the Government of the United States or of the State of California or any department, agency, political subdivision, court or official of any of them, or any civil or military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; volcanoes; hurricanes; tornados; storms; floods; washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions; breakage or accident to machinery; partial or entire failure of utilities; or any cause or event not reasonably within the control of the Redeveloper, the Redeveloper is unable in whole or in part to carry out any one or more of its agreements or obligations contained in this Agreement, the Redeveloper shall, for the time of said delay or such longer period as shall be agreed in writing by the Agency, not be deemed in default pursuant to Section 20 hereof by reason of not carrying out said agreement or agreements or performing said obligation or obligations during the continuance of such inability. The Redeveloper shall make reasonable efforts to remedy with all reasonable dispatch the cause or causes preventing it from carrying out its agreements; provided, that the settlement of strikes, - 18 - SSEO`M01�I lockouts and other industrial disturbances shall be entirely within the discretion of the Redeveloper, and the Redeveloper shall not be required to make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is in the judgment of the Redeveloper unfavorable to the Redeveloper. The completion and operation of the Millennium Manor Project by the Redeveloper shall substantially assist the Agency to implement the Redevelopment Plan. Therefore, the Redeveloper will take all reasonable steps to enable the Millennium Manor Project to be completed within ten (10) months of the date of execution of this Agreement. The Agency has relied upon such representations in determining the amount of the Construction Loan that would be warranted under the circumstances to encourage the construction of the Millennium Manor Project. For the purposes hereof, completion of the Millennium Manor Project shall mean the date on which the Agency approves the issuance of a Certificate of Completion and which Certificate of completion shall be substantially in the form attached hereto as Exhibit "H" , certifying that the construction of the Millennium Manor Project has been completed and that operations as contemplated by the construction of the Millennium Manor Project by the Redeveloper have commenced. 19 - SBEO'OWI�1 Section 9. Certain Sales or Transfers of the Millennium Manor Protect. The Redeveloper hereby covenants and agrees not to sell, transfer or otherwise dispose of the Property or the Millennium Manor Project located thereon prior to the completion of the Millennium Manor Project and repayment in full of the Construction Loan without obtaining the prior express written consent of the Agency which consent shall be at the sole discretion of the Agency. Any purchaser shall take the Millennium Manor Project subject to this Agreement as to low and moderate income requirements, rental rates, and age limitations and subject to the annual reporting requirement of Section 8 hereto, for the duration of the Redevelopment Plan. These covenants shall run with the land and be binding upon any subsequent purchaser or owner of the Millennium Manor Project. Section 10. Notice of Sales and Transfers. Notwithstanding the foregoing, and for the term of this Agreement, the Redeveloper agrees to notify the Agency in writing of any sales or transfers of any portion of the Property or the Millennium Manor Project prior to the consummation of such sale and/or transfer, which notice shall contain the name, address and formal description of the entity so acquiring interests in the Millennium Manor Project or the Property. Section 11. Further Encumbrances. The Redeveloper shall not create, place or permit to be created or placed, or though any act or failure to act, acquiesce in the placing of, or allow to 20 - SBEO'9WI�I remain, any mortgage, trust deed, pledge, lien (statutory, constitutional or contractual) , security interest, encumbrance or charge, or conditional sale or other title retention agreement which may in any way compromise the rights of the Agency under this Agreement, without the prior written consent of the Agency. Section 12 . Compliance with State Laws. The Redeveloper shall comply with all applicable State laws in connection with the construction of the public improvements and the private improvements which comprise the Millennium Manor Project, and Redeveloper shall be solely responsible for determining which laws apply to the Millennium Manor Project, and shall indemnify and hold harmless the Agency for any non-compliance with applicable laws, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim of non-compliance, or any action or proceeding brought thereon. Section 13 . Plans and specifications. The Redeveloper agrees that the plans and specifications to be prepared for the acquisition, construction and installation of the improvements comprising the Millennium Manor Project shall be submitted to the appropriate department of the City for approval prior to commencement of construction; provided, however, that said plans and specifications shall be in all respects in accordance and in conformity with this Agreement and all appropriate plans or building standards of the City. In the event said plans and specifications 21 - SBEO' 1�1 are not reasonably acceptable to such department of the City and in compliance with this Agreement, then, in such event, the Redeveloper agrees to amend or modify said plans and specifications or to submit such further or additional plans and specifications as may reasonably be required by the appropriate department of the City. The plans and specifications approved by the appropriate department of the City shall not be amended or modified in any material respect subsequent to such date of approval without the prior written approval of either or both the City or the Agency, as applicable. Section 14 . Remedies. In the event the Redeveloper breaches any of its covenants or obligations under this Agreement, the Redeveloper shall, at the option of the Agency and upon demand by the Agency to the Redeveloper, immediately repay to the Agency all amounts due and owing under the Construction Loan. In addition, the Agency shall have the right to foreclose on the Property in accordance with the Deed of Trust. It is understood and acknowledged by the parties hereto that the low and moderate income requirements, rental rates and age limitations, and the annual reporting requirements of this Agreement will run with the land and be fully enforceable against the Redeveloper and any successors or assigns for the life of the Redevelopment Plan unless the Redeveloper or such successor or assign is sooner released in writing from ongoing compliance by the Agency. As a further and cumulative remedy, the Redeveloper, for itself, legal representatives, successors and assigns, agrees that the Agency, its successors and assigns, shall - 22 - seEOamrmc.ai have the right and power to institute and prosecute any proceeding at law or in equity to enforce any covenants and agreements herein contained and to enjoin the threatened or attempted violation thereof by the Redeveloper, legal representatives, successors, tenants and assigns and/or to collect damages from the aforesaid, whomsoever of which may violate said covenants and agreements; and in addition, the Redeveloper for itself, legal representatives, successors and assigns does hereby grant the Agency such right and power to institute and prosecute such proceedings. The remedies for the benefit of the Agency set forth in this Section 14 shall be in addition to any and all other remedies available to the Agency under this Agreement or as a matter of law. The parties acknowledge and agree that the Agency may exercise any and all legal and equitable remedies available to the Agency under the laws of the State of California to enable the Agency to exercise the rights of the Agency hereunder and to enforce the provisions of this Agreement including, but not limited to, those which are contained in this Section 14. The Redeveloper further agrees to pay upon written demand of the Agency all costs, fees and expenses of the Agency including, but not limited to, attorneys' fees, court costs and costs attributable to Agency Staff time, incurred in connection with any enforcement by the Agency of the provisions of this Section 14 or the 23 - SBEO'OBOI�i seeking of any remedies legally available to the Agency related to this Agreement. In the event the Agency breaches any of its covenants or obligations under this Agreement, the Redeveloper may exercise all legal and equitable remedies available to the Redeveloper under the laws of the State of California. Section 15. Obligation to Obtain Financing. The Agency shall have no obligation or commitment to provide any form of financial assistance to the Redeveloper in connection with the Property or the completion of the Millennium Manor Project, except as is specifically provided in this Agreement. Section 16. Notices. All notices and demands of any kind which any party hereto may be required to serve upon any other party under the terms of this Agreement shall be served in writing on such other party by personal service or by leaving a copy of such notice or demand at the address hereinafter set forth, whereupon service shall be deemed complete and notices and demands shall be deemed to have been received on the date of such personal service; or by mailing a copy thereof by certified or registered mail, postage prepaid, airmail if the address is outside the State in which the same is mailed, with return receipt requested, addressed as follows: 24 - SBEO'BOBINOC191 If to the Agency: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, California 92401-1507 Attention: Executive Director With a copy to: Sabo & Green 6320 Canoga Avenue Suite 400 Woodland Hills, California 91367 Attention: Timothy J. Sabo If to the Redeveloper: Cliff R. Carel & Associates 144 East Third Street San Bernardino, California 92401 Attention: Cliff R. Carel If to the Disbursing Agent: Escrow Funding Service 670 North Arrowhead Avenue, Suite "A" San Bernardino, California 92401 Attention: John Sessions In case of service by mail, service shall be deemed complete and notices and demands shall be deemed to have been received at the expiration of the third calendar day after the date of mailing, notwithstanding any other date for receipt set forth on any return receipt or the failure of any party to receive a return receipt. The addresses to which notices and demands may be delivered or sent may be changed from time to time by service of notice as hereinabove provided by any party upon the other party. Section 17. Applicability of Laws and Litigation Costs. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Should any action be brought in any court of competent jurisdiction, the prevailing party in such action shall be entitled to reimbursement by the other party for all - 25 - seEOnmi�mcwi reasonable attorney's fees, court costs and other costs related to such litigation. Section 18. Nondiscrimination and Related Covenants. The Redeveloper agrees that, in addition to the other provisions set forth in this Agreement, every conveyance of the Property, in whole or in part to the extent as permitted pursuant to this Agreement, shall, in addition to any other covenants, contain covenants on the part of the Redeveloper, for itself, its successors and assigns of the Property and which covenants shall be covenants running with the land and shall bind the Redeveloper, its successors and assigns and all persons claiming under or through it to effectuate the following: (a) That the work of the redevelopment of the Property or part or parts thereof as in this Agreement provided shall be implemented as intended by this Agreement. (b) 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, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises to be conveyed, nor shall the Redeveloper or any grantees or any persons claiming under or through the Redeveloper establish or permit any such practice or practices of discrimination or segregation with reference to the selection, - 26 - SBEO`BBBINOC681 4 location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the premises to be conveyed. (c) That, after the satisfactory completion of the Millennium Manor Project made necessary by this Agreement, the Property shall be devoted to the uses specified in this Agreement and consistent with the Redevelopment Plan and shall not, in whole or in part, be devoted to any other use or used for any other purposes. (d) That such agreements and covenants shall run with the land, and shall inure to the benefit of and be enforceable by the Agency, its successors and assigns. Furthermore, it is intended and agreed that the covenants contained in subsection (b) of this Section 18 shall remain in effect without limitation as to time. (e) Such agreements and covenants shall run in favor of the Agency for the entire period during which such agreements shall remain in force and effect without regard to whether the Agency has at any time been, remains, or is an owner of any land or interest therein to which these covenants relate. In the event of any breach, the Agency shall have the right to exercise all the rights and remedies available at law or in equity to enforce the curing of such breach. (f) That no portion of the Millennium Manor Project or the Property shall be sold or used by any tax-exempt entity for the 27 — seeomo�nocaei Z) a duration of the Redevelopment Plan without written consent of the Agency. (g) That the low and moderate income requirements, rental rates and age limitations, and the annual reporting requirements of this Agreement will run with the land for the duration of the life of the Redevelopment Plan. It is the intent hereof that the provisions of subsections (a) through (g) , inclusive, hereof shall survive the termination of the other operative provisions of this Agreement and as may additionally be required by the Constitution and laws of the State of California and the Law. Section 19 . Successors and Assigns; Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. The Redeveloper shall not assign, transfer or in any manner hypothecate any or all of the rights and obligations of the Redeveloper under this Agreement or with respect to the Property without the prior written approval and consent of the Agency. Section 20. Events of Default. "Event of Default" wherever used in this Section, means any one of the following events (whatever the reason for such Event of Default and whether it shall — 28 — saEOnooinocvei .-3 Q be voluntary or involuntary, or be effectual by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body superior to the Agency) : (a) The failure by the Redeveloper to repay the Construction Loan in full, plus interest, upon the earlier of (i) the expiration of the term of the Construction Loan, (ii) upon any refinancing of the Millennium Manor Project equal to the principal and interest then owed on the outstanding balance of the Construction Loan, or (iii) upon a sale of the Millennium Manor Project; or (b) The failure by the Redeveloper to comply with the low and moderate income requirements, rental rates or age limitations of this Agreement; or (c) The failure by the Redeveloper to complete the Millennium Manor Project within the time period set forth in Section 6 hereto, or the failure of the Redeveloper to use its own funds to complete Millennium Manor Project cost overruns; or (d) Default in the performance, or breach, of any provision of this Agreement by the Redeveloper, and continuance of such Default or breach for a period of thirty (30) calendar days after the Agency has given notice as specified in Section 16, and 29 SBEO`aD01�t requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (e) The entry of a decree or order by a court having jurisdiction in the premises adjudging the Redeveloper bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Redeveloper under the Federal Bankruptcy Act or any other applicable federal or state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Redeveloper or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) calendar days; or (f) The institution by the Redeveloper of proceedings to be adjudged bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Act or any other applicable federal or state law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Redeveloper or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay — 30 — sesonaoinocei its debts generally as they become due, or the taking of corporate action by the Redeveloper in furtherance of any such action. Section 21. Entire Agreement; Amendment. Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporary agreements and understandings. The parties intend this Agreement to be the final expression of their agreement with respect to the terms hereof and a complete and exclusive statement of such terms. No modification, amendment or waiver of any term hereof shall be binding unless executed in writing by any party or parties to be bound thereby. This Agreement may be amended from time-to-time as deemed necessary by the parties hereto upon written instruments duly approved and executed by the parties hereto. Any such amendments or modifications shall be valid, binding and legally enforceable only if in written form and executed by both the Redeveloper and the Agency after the same have been duly approved and authorized for execution. Section 22 . Severability. Each and every section of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which 31 - 59E0`QWIIDOOWI it is invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. Section 23 . Section Headings. The headings of the several sections of this Agreement are inserted solely for convenience of reference, and are not a part of and are not intended to govern, limit or aid in the construction of any term or provision hereof. Section 24. Meaning of Terms. Where the context so requires, the use of the masculine gender shall include the feminine and the neuter gender, and the singular shall include the plural and vice versa. Section 25. Indemnification. It is understood and agreed that no official, employee or agent of the Agency shall be personally liable to the Redeveloper or to anyone else as to any obligation or obligations under the terms of this Agreement. The Redeveloper shall save the Agency, and all parties in privity to it, harmless from all claims, demands, causes of action, expenses, and liability of whatsoever kind or nature which may arise out of, because of, concerning, or incident to the performance of the Redeveloper under this Agreement, including all court actions, costs and expenses and attorney's fees relative to the Agency being a party to this Agreement as may be initiated by the Redeveloper or any third — 32 — seEOmo�ma.wei party for any reason whatsoever, including any claims for damages or with respect to personal injuries on the Property. Section 26. Effective Date of This Agreement; Execution; Term of Agreement. This Agreement shall not be effective for any purpose whatsoever or binding and enforceable upon the Agency until such time as this Agreement has been approved pursuant to official action of the Agency in accordance with a duly adopted and approved Agency resolution authorizing the Chairman and Secretary of the Agency to execute this Agreement on behalf of the Agency. This Agreement may be executed in original counterparts, each of which shall be deemed to be an original for all purposes, and such counterparts shall constitute one and the same instrument. This Agreement shall remain in full force and effect until all of the obligations hereunder have been satisfied in full. — 33 — seeomoi�nocsei IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the year and day first hereinabove written. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: (SEAL) By: Secretary Approved as to Form: By: Agency Attorney "REDEVELOPER" CLIFF R. CAREL & ASSOCIATES a California limited partnership BY: "DISBURSING AGENT" ESCROW FUNDING SERVICES a California corporation BY: - 34 - seEOmoimcwi STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 35 SBEO'mBI�l STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) - 36 - SBEOm 1�1 0 STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) — 37 — SBEO o1w 1 EXHIBIT "A" Legal Description Parcel 3 of Parcel Map No. 9122, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 69 of Parcel Maps Page 1 and 2 , records of said County and State. Exhibit A - 1 seEOmnoaaei EXHIBIT "B" Scope of Development The Millennium Senior Housing Project The Millennium Senior Housing Project will consist of 45 total units located on a 1. 6 acre site in San Bernardino. There will be forty- three (43) one-bedroom units and two (2) studio units. The project will also feature a 3 ,974 square foot Community/Activity Center which will include a mini-market, warming kitchen, office/reception area, lounge, and meeting room. A common laundry room will also be provided. The one-bedroom units are 517 square feet in size and the studio units are 440 square feet. All units will be handicapped- adaptable. Additional features include complete energy-efficient kitchens, stackable washer/dryer in each unit, limited access card-controlled security gates, ample interior storage, outdoor BBQ/dining area, panic button protection, and fire sprinklers. Vehicular access is provided from 3rd Street into perimeter parking which will consist of forty-five (45) covered parking spaces, nine (9) guest spaces, and one (1) bus space. The project is designed to provide a sense of security to residents and to encourage social interaction in the courtyards and open areas throughout the project. Exhibit B - 1 saEOm 1 1 3 EXHIBIT "C" Promissory Note 1993 $1, 543 ,220 For value received, the undersigned, Cliff R. Carel & Associates, a California limited partnership, hereby unconditionally promises to pay to the Redevelopment Agency of the City of San Bernardino (the "Agency") at 201 North "E" Street, Third Floor, San Bernardino, California 92401-1507 the principal sums of not to exceed ONE MILLION FIVE HUNDRED FORTY-THREE THOUSAND TWO HUNDRED TWENTY DOLLARS ($1, 543, 220) (the "Loan") with interest thereon. This Note hat been issued, executed and delivered in connection with the financing of a redevelopment project involving the construction of a forty-five (45) unit low and moderate income senior citizens apartment complex on certain real property pursuant to a loan agreement heretofore entered into by and among the Agency, Escrow Funding Service and Cliff R. Carel & Associates (the "Agreement") . Pursuant to the Agreement, the Agency has agreed to make the Loan in the principal amount of not to exceed One Million Five Hundred Forty-Three Thousand Two Hundred Twenty Dollars ($1, 543, 220) subject to the conditions precedent set forth in the Agreement, and the undersigned has agreed to repay the Loan as evidenced by this Note in accordance with and under the terms provided in the Agreement and as hereinafter set forth. The interest rate on the Loan shall be nine percent (9%) per annum (the "Interest Rate") , fixed for the term of the Loan. Interest shall accrue at the Interest Rate on that portion of the proceeds of the Loan which have been deposited into the Construction Loan Account as defined in Section 5 of the Agreement from the date of deposit of such proceeds by the Agency into the Construction Loan Account until the outstanding principal balance as deposited, plus all accrued and unpaid interest thereon is paid in full, except upon the expiration of the term of the Loan in which case interest shall accrue at the rate of twelve percent (12%) per annum on the entire principal and interest amount of the Loan which has been deposited in the Construction Loan Account from the date of expiration of the term of the Loan until the outstanding principal balance, plus all accrued and unpaid interest are paid in full. Exhibit C - 1 saEOnmimoceoi This Note shall be repaid to the Agency as follows: upon the earlier of (i) eighteen (18) months from the date of the Agreement, (ii) upon any refinancing of the Millennium Manor Project, as defined in the Agreement, equal to the principal and interest then owed on the outstanding balance of the Construction Loan, as defined in the Agreement, or (iii) upon a sale of the Millennium Manor Project, and shall be paid as a first priority claim against all net proceeds of such sale until the Construction Loan, including accrued interest, shall have been paid in full. This Note may be paid in whole or in part at any time prior to the maturity date hereof at the option of the undersigned and without any penalty or premium whatsoever due as a result thereof; provided, however, that any such payment or payments in part shall not postpone or delay the remaining principal payments due and payable hereunder. Any such partial prepayments shall be credited and applied towards the unpaid principal balance. All payments of principal and interest on this Note shall be made in lawful money of the United States of America payable to the Agency at the San Bernardino Redevelopment Agency, 201 North "E" Street, Third Floor, San Bernardino, California 92401-1507 . If a default in connection with the payment of the principal of this Note shall have occurred and this Note shall have been presented to an attorney for collection, or if suit is filed hereon, or proceedings are had in bankruptcy, probate, receivership, reorganization, arrangement or other judicial proceedings for the establishment or collection of any amount required hereunder, or any amount payable or to be payable hereunder is collected through any such proceedings, the undersigned agrees to pay to the holder hereof all reasonable costs of collection including, but not limited to, attorney's fees and expenses and all costs of any legal proceedings. If an event of default shall have occurred hereunder or under the Agreement or the principal and accrued interest is not timely repaid to the holder hereof, the principal and accrued interest then due and payable but which is delinquent and has not so been paid by the undersigned shall bear interest from the date such payment was due on the total payment amount then due and owing until paid at a rate of twelve percent (12%) per annum. This Note is secured by a Deed of Trust executed contemporaneously herewith and the Agency is entitled to the benefit and security of the Deed of Trust. The obligation of the undersigned to make or provide for the payment required hereunder shall be absolute and unconditional, and the undersigned shall make or provide for such payment without abatement, diminution or deduction regardless of any cause or circumstances whatsoever including, without limitation, any defense, set-off, recoupment or counterclaim which the undersigned may have or assert against the Agency or any other person. Exhibit C - 2 SBEO`BBBIIW 1 The undersigned and all endorsers or guarantors hereof expressly waive demand and presentment for payment, notice of nonpayment, protest, notice of protest, notice of dishonor, bringing of suit, and diligence in taking any action to collect any amounts called for hereunder and in the handling of properties, rights or collateral at any time existing in connection herewith. If the prescribed date of payment hereunder is a Saturday or Sunday or legal holiday at the location of the principal office of the Agency, such payment shall be due and payable on the next succeeding business day. This Note has been issued, executed and delivered in the State of California and shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, the undersigned have caused this Note to be executed as of this day of , 1993 . CLIFF R. CAREL & ASSOCIATES, a California limited partnership By Its Exhibit C - 3 SBEOq 1�1 �3 EXHIBIT "D" Deed of Trust and Assignment of Rents RECORDING REQUESTED BY: Redevelopment Agency of the City of San Bernardino WHEN RECORDED MAIL TO: SABO & GREEN, A Professional Corporation 6320 Canoga Avenue, Suite 400 Woodland Hills, California 91367 (Space above for Recorder's Use) This DEED OF TRUST AND ASSIGNMENT OF RENTS entered( reinafter on referred to as such or as the "Mortgage") , , 1993, by and among CLIFF R. CAREL & ASSOCIATES, a California limited partnership (hereinafter referred to as the "Trustor") , whose address is 144 East Third Street, San Bernardino, California 92401, ESCROW FUNDING SERVICE (hereinafter referred to as the "Trustee") , whose address is 670 North Arrowhead Avenue, Suite "A", San Bernardino, California 92401 and the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic (hereinafter referred to as the "Beneficiary") . W I T N E S S E T H GRANTING CLAUSE 1. 1 Grant. To secure the full and timely payment of the Indebtedness and the full and timely performance and discharge of the Obligations, the Trustor has CONVEYED AND WARRANTED, and by these presents does CONVEY AND WARRANT, unto the Trustee the Mortgaged Property, as defined herein, subject, however, to the Permitted Encumbrances, as defined herein, TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee, forever, and the Trustor does hereby bind himself, his successors and assigns to warrant and forever defend the title to the Mortgaged Property unto the Trustee against every person whomsoever lawfully claiming or to claim the same or any part thereof; provided, however, that if the Trustor shall pay (or cause to be paid) the Indebtedness as and when the same shall become due and payable and shall perform and discharge (or cause to be performed and discharged) the Obligations on or before the date same are to be performed and discharged, then the liens, security interest, estates and rights granted by the Note, as defined herein, and this Mortgage Exhibit D - 1 seeowo�mocui �.J shall terminate; otherwise, same shall remain in full force and effect. ARTICLE II DEFINITIONS 2 . 1 Definitions. As used herein, the following terms shall have the following meanings: "Agreement" shall mean that certain Loan Agreement dated as of , 1993 by and between the Redevelopment Agency of the City of San Bernardino, Escrow Funding Service and Cliff R. Carel & Associates. "Beneficiary" shall mean the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic, or any successor or assign. "Buildings" shall mean any and all buildings, open parking areas and other improvements, and any and all additions, alterations, or appurtenances thereto, which may be situated upon the Land, as defined herein, after completion of the Project in accordance with the provisions of the Agreement. "City" shall mean the City of San Bernardino, California, or any successor. "Event of Default" shall mean any happening or occurrence described in Article VI hereinbelow. "Fixtures" shall mean all materials, supplies, equipment, apparatus and other items which shall be attached to, installed in or used in connection with (temporarily or permanently) the Land or any Buildings which may be erected in accordance with the provisions of the Agreement. "Governmental Authority" shall mean any and all courts, boards, agencies, commissions, offices or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or hereafter in existence. "Impositions" shall mean all real estate and personal property taxes, water, gas, sewer, electricity and other utility rates and charges, charges for any easement, license or agreement maintained for the benefit of the Mortgaged Property, and all other taxes, charges and assessments and any interest, costs or penalties with respect thereto, of any kind and nature whatsoever which at any time prior to or after the execution hereof may be assessed, levied or imposed upon the Mortgaged Property or the Rents, as defined herein, or the ownership, use, occupancy or enjoyment thereof. Exhibit D - 2 seEOmoUDaCwi "Indebtedness" shall mean the principal and all other amounts, payments and premiums due under and secured by the Note and this Mortgage. "Land" shall mean the real estate or interest therein described in Exhibit "A" attached hereto, and all rights, titles and interest appurtenant thereto. "Leases" shall mean any and all leases, subleases, licenses, concessions or other agreements (written or verbal) , now or hereinafter in effect which grant a possessory interest in and to, or the right to use, the Mortgaged Property, save and except any and all leases, subleases or other agreements pursuant to which the Trustor is granted a possessory interest in the Land. "Legal Requirements" shall mean (i) any and all present and future judicial decisions, statutes, rulings, rules, regulations, permits, certificates or ordinances of any Governmental Authority in any way applicable to the Trustor or the Mortgaged Property, including the ownership, use, occupancy, operation, maintenance, repair or reconstruction thereof, (ii) the Trustor's presently or subsequently effective bylaws and articles of incorporation, partnership, limited partnership, joint venture, trust or other form of business association (if either, both or all be any of same) , (iii) any and all Leases and (iv) any and all Leases and other contracts (written or oral) of any nature by which the Trustor or any guarantor thereof may be bound. "Mortgaged Property" shall mean the Land, Buildings, Fixtures as defined herein, And Rents together with (i) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances in anyway appertaining thereto, and all right, title and interest of the Trustor in and to any streets, ways, alleys, strips or gores of land adjoining the Land or any part thereof; (ii) all additions, appurtenances, substitutions, replacements and reversions thereof and thereto and all reversions and remainders therein; (iii) all of the Trustor' s right, title and interest in and to any award, awards, remuneration, settlements or compensation heretofore made or hereafter to be made by any Governmental Authority to the present or any subsequent owner of the Land, Buildings, Fixtures or Personalty, including those for any vacation of, or change of grade in, any streets affecting the Land; and (iv) any and all other security and collateral of any nature whatsoever, now or hereafter given for the repayment of the Indebtedness or the performance and discharge of the Obligations. As used herein, the term "Mortgaged Property" shall be expressly defined as meaning all, or where the context permits or requires, any portion of the above and all or, where the context permits or requires, any interest therein. "Note" shall mean the Promissory Note, dated as of the date hereof, executed by the Trustor and payable to the order of the Exhibit D - 3 seeomoi�mcae, Beneficiary in the principal amount of not to exceed, One Million Five Hundred Forty-Three Thousand TWO Hundred Twenty Dollars ($1, 543 ,220) , and payable as provided therein. "Obligations" shall mean any and all of the covenants, warranties, representations and other obligations (other than to repay the Indebtedness) made or undertaken by the Trustor or others to the Beneficiary, the Trustee or others as set forth in the Agreement, the Note and this Mortgage. "Permitted Encumbrances" shall mean the outstanding liens, easements, restrictions, security interests and other matters (if any) as permitted by the Agreement and the lien and security interests created by the Note and this Mortgage. "Project" shall mean the construction of a forty-five (45) - unit low and moderate income senior citizens apartment complex on the Land to be financed in part with the Loan secured by this Mortgage and as more fully described in the Agreement. "Rents" shall mean all of the rents, revenues, income proceeds, profits and other benefits paid or payable by parties to the Leases other than the Trustor or using, leasing, licensing, possessing, operating from, residing in, selling or otherwise enjoying the Mortgaged Property. "State" shall mean the State of California. "Trustee" shall mean Escrow Funding Service or its successors. "Trustor" shall mean Cliff R. Carel & Associates, a California limited partnership or its successor. 2 .2 Interpretation. Where the context so requires the use of the masculine gender shall include the feminine and neuter genders, and the singular number shall include the plural and vice versa. 2 .3 Title Headings. The titles and headings of the Articles and Sections of this Mortgage have been inserted for convenience of reference only and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof and shall never be considered or given any effect in construing this Mortgage or any provision hereof or in ascertaining intent, if any question of intent should arise. Exhibit D - 4 58EOtOro1N 1 ARTICLE III REPRESENTATIONS AND WARRANTIES The Trustor hereby unconditionally warrants and represents to the Beneficiary as follows: 3 . 1 Validity of Loan Instruments. The Note and this Mortgage constitute the legal, valid and binding obligations of the Trustor and others obligated under the terms of the Note and this Mortgage, in accordance with their respective terms. 3.2 Title to Mortgaged Property and Lien_ of this Instrument. The Trustor has good and marketable title to the Land (in fee simple) , free and clear of any liens, charges, encumbrances, security interests and adverse claims whatsoever except the Permitted Encumbrances. This Mortgage constitutes a valid, subsisting deed of trust on the Land in accordance with the terms hereof. ARTICLE IV AFFIRMATIVE COVENANTS The Trustor hereby unconditionally covenants and agrees with the Beneficiary as follows: 4 . 1 Payment and Performance. The Trustor will pay the Indebtedness, as and when called for in the Note and this Mortgage and on or before the due date thereof, and will perform all of the Obligations in full and on or before the dates same are to be performed. 4. 2 Compliance With Legal Requirements. The Trustor will promptly and faithfully comply with, conform to and obey all present and future Legal Requirements. 4 .3 Payment of Impositions. The Trustor will duly pay and discharge, or cause to be paid and discharged, the Impositions not later than the due date thereof, or the day any fine, penalty, interest or cost may be added thereto or imposed, or the day any lien may be filed, for the nonpayment thereof (if such day is used to determine the due date of the respective item) ; provided, however, that the Trustor may, if permitted by law and if such installment payment would not create or permit the filing of a lien against the Mortgaged Property, pay the Impositions in installments whether or not interest shall accrue on the unpaid balance of such Impositions. 4.4 Repair. The Trustor will keep the Mortgaged Property in good condition and repair. 4. 5 Insurance. To the extent not in conflict with the insurance requirements of any lender providing any form of Exhibit D - 5 saEOmonmcan J construction or permanent financing with respect to the Mortgaged Property, the Trustor will obtain and maintain insurance upon and relating to the Mortgaged Property insuring against personal injury and death, loss by fire and such other hazards, casualties and contingencies as are normally and usually covered by extended coverage policies in effect in the State an such other risks as may be specified by the Beneficiary, from time to time, all in such amounts and with such insurers of recognized responsibility as are acceptable to the Beneficiary. 4 .6 Inspection. The Trustor will permit the Trustee and the Beneficiary, and their agents, representatives and employees, to inspect the Mortgaged Property at all reasonable times. 4.7 Hold Harmless. Upon an Event of Default hereunder or under the Agreement, the Trustor will have the obligation to defend and hold the Beneficiary harmless to the extent as provided in the Agreement. 4 .8 Agreement. The Trustor will comply fully with and perform each and all of his covenants, obligations and agreements set forth in the Agreement. ARTICLE V NEGATIVE COVENANTS The Trustor hereby covenants and agrees with the Beneficiary that, until the entire Indebtedness shall have been paid in full and all of the Obligations shall have been fully performed and discharged: 5. 1 Use Violations. The Trustor will not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, the Mortgaged Property in any manner which (i) violates any Legal Requirement, (ii) may be dangerous unless safeguarded as required by laws, (iii) constitutes a public or private nuisance or (iv) makes void, voidable or cancelable, or increases the premiums of, any insurance then in force with respect thereto. 5.2 Waste. The Trustor will not commit or permit any waste of the Mortgaged Property. 5. 3 Further Encumbrances. The Trustor will not create, place or permit to be created or placed, or through any act or failure to act, acquiesce in the placing of, or allowed to remain, any mortgage, pledge, lien (statutory, constitutional or contractual) , security interest, encumbrance or charge, or conditional sale or other title retention agreement which may in any way compromise the rights of the Beneficiary under this Deed of Trust. Exhibit D - 6 seEOmonuocx� 3 5.4 No Sales or Other Transfers. Except as otherwise provided in Section 3 of the Agreement, the Trustor will not sell, transfer or otherwise dispose of the Mortgaged Property prior to the repayment of the Indebtedness. ARTICLE VI EVENTS OF DEFAULT The term "Event of Default", as used in the Note and this Mortgage, shall mean the occurrence or happening, at any time and from time to time, of any one or more of the following: 6. 1 Payment of Indebtedness. If the Trustor shall fail, refuse or neglect to pay, in full, the Indebtedness as and when the same shall become due and payable, whether at the due date thereof stipulated in the Note and this Mortgage, or at a date fixed for prepayment, or by acceleration or otherwise. 6.2 Default Under The Agreement. If any Event of Default shall occur, as the same is defined in Section 20 of the Agreement. 6. 3 Foreclosure of Other Liens. If the holder of any lien or security interest on the Mortgaged Property institutes foreclosure or other proceedings for the enforcement of its remedies thereunder. ARTICLE VII REMEDIES UPON EVENTS OF DEFAULT 7. 1 Remedies. If an Event of Default shall occur, the Beneficiary may, at the Beneficiary's election and by or through the Trustee or otherwise exercise any or all of the following rights, remedies and recourses: (a) Acceleration: Declare the principal balance, and any accrued but unpaid portion of the Indebtedness to be immediately due and payable, without further notice, presentment, protest, demand or action of any nature whatsoever (each of which hereby is expressly waived by the Trustor) , whereupon the same shall become immediately due and payable. (b) Entry on Mortgaged Property: Enter upon the Mortgaged Property and take exclusive possession thereof and of all books, records and accounts relating thereto. (c) Operation of Mortgaged Property: Hold, lease, manage, operate or otherwise use or permit the use of the Mortgaged Property, either itself or by other persons, firms or Exhibit D - 7 ssEO=1m 1 entities, in such manner, for such time and upon such other terms as the Beneficiary may deem to be prudent and reasonable under the circumstances. Apply all Rents and other amounts collected by the Trustee in connection therewith in accordance with the provisions of Section 7 .7 below. (d) Foreclosure and Sale: Sell or offer for sale the Mortgaged Property in such portions, order and parcels as the Beneficiary may determine, with or without having first taken possession of same, to the highest bidder at public auction. Any such auction shall be conducted pursuant to Sections 2924a-2924c and 2924f-2924h of the California Civil Code. (e) Trustee or Receiver: Upon, or at any time after, commencement of foreclosure of the lien and security interest provided for herein or any legal proceedings hereunder, make application to a court of competent jurisdiction as a matter of strict right and without notice to the Trustor or regard to the adequacy of the Mortgaged Property for the repayment of the Indebtedness, for appointment of a receiver of the Mortgaged Property and the Trustor does hereby irrevocably consent to such appointment. (f) other: Exercise any and all other rights, remedies and resources granted under the Note and this Mortgage or now or hereafter existing in equity, at law, by virtue of statute or otherwise. 7. 2 Separate Sales. The Mortgaged Property may be sold in one or more parcels and in such manner and order as the Trustee, in its sole discretion, may elect. 7.3 Remedies Cumulative. Concurrent and Non-Exclusive.le Beneficiary shall have all rights, remedies and recourses granted in the Note and this Mortgage and available at law or equity and such remedies shall be non-exclusive. 7 .4 Release of and Resort to Collateral. The Beneficiary may release, regardless of consideration, any part of the Mortgaged Property without as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interest created in or evidenced by the Note and this Mortgage. 7 .5 Waiver of Redemption Notice and Marshalling of Assets. To the fullest extent permitted by law, the Trustor hereby irrevocably and unconditionally waives and releases (i) all benefits that might accrue to the Trustor by virtue of any present or future law exempting the Mortgaged Property from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment, (ii) all notices of any Event of Default (except as Exhibit D - 8 SBW"1�1 may be provided for . in Section 7 . 1 above) or of the Trustee's election to exercise or its actual exercise of any right, remedy or recourse provided for under the Note and this Mortgage and (iii) any right to a marshalling of assets or a sale in inverse order of alienation. 7 . 6 Discontinuance of Proceedings. In case the Beneficiary shall have proceeded to invoke any right, remedy or recourse permitted under the Note and this Mortgage and shall thereafter elect to discontinue or abandon same for any reason, the Beneficiary shall have the unqualified right to do so and, in such an event, the Trustor and the Beneficiary shall be restored to their former positions with respect to the Indebtedness, the Obligations, the Note and this Mortgage, the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of the Beneficiary shall continue as if same had never been invoked. 7 .7 application of Proceeds. The proceeds of any sale of, and the Rents and other amounts generated by the holding, leasing, operation or other use of, the Mortgaged Property shall be applied by the Beneficiary (or the receiver, if one is appointed) to the extent that funds are so available therefrom in the following order of priority: (a) first, to the payment of the costs and expenses of taking possession of the Mortgaged Property and of holding, using, leasing, repairing, improving and selling the same, including, without limitation, (i) the trustee's and receivers' fees, (ii) court costs, (iii) attorneys' and accountants' fees, (iv) costs of advertisement, and (v) the payment of any and all Impositions, liens, security interests or other rights, titles or interests equal or superior to the lien and security interest of this Mortgage (except those to which the Mortgaged Property has been sold subject to and without in any way implying the Beneficiary' s prior consent to the creation thereof) ; (b) second, to the payment of all amounts, other than the principal balance of the Indebtedness, which may be due to the Beneficiary under the Note and this Mortgage; (c) third, to the payment of the outstanding principal balance of the Indebtedness; (d) fourth, to the extent funds are available therefor out of the sale proceeds or the Rents and, to the extent known by the Beneficiary, to the payment of any indebtedness or obligation secured by a subordinate deed of trust on or security interest in the Mortgaged Property; and (e) fifth, to the Trustor. Exhibit D - 9 SBEO=INO L 7 .8 Notice to the Agency. The Beneficiary shall give prompt written notice of any Event of Default under Article VI hereof and the remedy taken pursuant to Section 7 . 1 hereof. ARTICLE VIII CONDEMNATION 8. 1 General. Immediately upon obtaining knowledge of the institution of any proceeding for the condemnation of the Mortgaged Property, other than a condemnation initiated by the City or the Beneficiary, the Trustor shall give written notice to the Trustee and the Beneficiary of such fact. The Trustor shall then, if requested by the Beneficiary, file or defend his claim thereunder and prosecute same with due diligence to its final disposition and shall cause any awards or settlements to be paid over to the Beneficiary for disposition pursuant to the terms of this Mortgage. If the Mortgaged Property is taken or diminished in value, or if a consent settlement is entered, by or under threat of such proceeding, the award or settlement payable to the Trustor by virtue of his interest in the Mortgaged Property shall be, and by these presents is, assigned, transferred and set over unto the Beneficiary to be held by it, in trust, subject to the lien and security interest of this Mortgage, and disbursed as the interests of the parties shall appear. ARTICLE IX CONCERNING THE TRUSTEE 9. 1 No Liability. The Trustee shall not be liable for any error of judgment or act done by the Trustee in good faith, or be otherwise responsible or accountable under any circumstances whatsoever, except for the Trustee' s negligence or bad faith. The Trustee shall not be personally liable in case of entry by it, or anyone entering by virtue of the powers herein granted it, upon the Mortgaged Property for debts contracted or liability or damages incurred in the management or operation of the Mortgaged Property. The Trustee shall have the right to rely on any instrument, document or signature authorizing or supporting any action taken or proposed to be taken by it hereunder, believed by it in good faith to be genuine. The Trustee shall be entitled to reimbursement for expenses incurred by it in the performance of its duties hereunder and to reasonable compensation for its services hereunder as shall be rendered. The Trustor will, from time to time, pay the compensation due to the Trustee hereunder and reimburse the Trustee for, and save it harmless against, any and all liability and expenses which may be incurred by it in the performance of its duties. 9. 2 Retention of Moneys. All moneys received by the Trustee shall, until used or applied as herein provided, be held in Exhibit D - 10 SBEOb 11W( 1 D trust for the purposes for which they were received, but need not be segregated in any manner from any other moneys (except to the extent required by law) , and the Trustee shall be under no liability for interest on any moneys received by it hereunder. 9. 3 Successor Trustees. The Trustee may resign by the giving of notice of such resignation in writing to the Beneficiary. If the Trustee shall die, resign or become disqualified from acting in the execution of this trust or shall fail or refuse to execute the same when requested by the Beneficiary so to do, or if, for any reason, the Beneficiary shall prefer to appoint a substitute trustee to act instead of the aforenamed Trustee, the Beneficiary shall have full power to appoint a substitute trustee and, if preferred, several substitute trustees in succession who shall succeed to all the estate, rights, powers and duties of the aforenamed Trustee, said substitution to be made in the manner provided by the laws of the State, as the same may be from time to time amended and supplemented. 9.4 Succession Instruments. Any new Trustee appointed pursuant to any of the provisions hereof shall, without any further act, deed or conveyance, become vested with all the estates, properties, rights, powers and trusts of its predecessor in the rights hereunder with like effect if originally named as Trustee herein; but nevertheless, upon the written request of the Beneficiary or of the successor Trustee, the Trustee ceasing to act shall execute and deliver and instrument transferring to such successor Trustee, upon the trusts herein expressed, all the estates, properties, rights, powers and trusts of the Trustee so ceasing to act, and shall dully assign, transfer and deliver any of the property and moneys held by such Trustee to the successor Trustee so appointed in its place. ARTICLE X MISCELLANEOUS 10. 1 Survival of Obligations. Each and all of the obligations shall survive the execution and delivery of the Note and this Mortgage, and the consummation of the Loan called for therein, and shall continue in full force and effect until the Indebtedness shall have been paid in full. 10. 2 Further Assurances. The Trustor, upon the request of the Trustee or the Beneficiary, will execute, acknowledge, deliver and record and/or file such further instruments and do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of the Note and this Mortgage and to subject to the liens and security interests thereof any property intended by the terms thereof to be covered thereby, including but not limited to any renewals, additions, substitutions, replacements or appurtenances to the then Mortgaged Property. Exhibit D — 11 seeommm 1 J 10. 3 Recording and Filing. Upon the occurrence of an Event of Default as specified in the Agreement, the Trustor shall cause the Note and this Mortgage and all amendments and supplements thereto and substitutions therefor to be recorded, filed, rerecorded and refiled in such manner and in such places as the Trustee or the Beneficiary shall reasonably request pursuant to the Agreement, and will pay all such recording, filing, rerecording and refiling taxes, fees and other charges. 10.4 Notices. All notices or other communications to be given or made hereunder shall be in writing and shall be deemed to be properly given or made if sent registered mail, return receipt requested, postage prepaid, addressed as follows: Beneficiary: Executive Director Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, California 92401-1507 Trustor: Cliff R. Carel & Associates 144 East Third Street San Bernardino, CA 92401 Trustee: Escrow Funding Service 670 North Arrowhead Avenue Suite "A" San Bernardino, CA 92401 Any such addresses may be changed at any time upon written notice of such change sent, as provided above in this Section, to the other parties. 10. 5 No Waiver. Any failure by the Trustee or the Beneficiary to insist, or any election by the Trustee or the Beneficiary not to insist, upon strict performance by the Trustor of any of the terms, provisions or conditions of the Note and this Mortgage shall not be deemed to be a waiver of same or of any other term, provision or condition thereof, and the Trustee or the Beneficiary shall have the right at any time or times thereafter to insist upon strict performance by the Trustor of any and all of such terms, provisions and conditions. 10. 6 Beneficiary's Right to Perform the obligations. If the Trustor shall fail, refuse or neglect to make any payment or perform any act required by the Note and this Mortgage, then at any time thereafter and without notice to or demand upon the Trustor and without waiving or releasing any other right, remedy or recourse the Beneficiary may have because of same, the Beneficiary may (but shall not be obligated to) make such payment or perform such act for the account of and at the expense of the Trustor, and shall have the Exhibit D — 12 SBEOw in L right to enter the Land for such purpose and to take all such action thereon and with respect to the Mortgaged Property as it may deem necessary or appropriate. The Trustor shall indemnify the Beneficiary for all losses, expenses, damage, claims and causes of action, including reasonable attorneys' fees, incurred or accruing by reason of any acts performed by the Beneficiary pursuant to the provisions of this Section 10. 6 or by reason of any other provision in the Note and this Mortgage. All sums paid by the Beneficiary pursuant to this Section 10.6, and all other sums expended by the Beneficiary to which it shall be entitled to be indemnified, together with interest thereon at the rate specified in the Note from the date of such payment or expenditure, shall constitute additions to the Indebtedness, shall be secured by the Note and this Document and shall be paid by the Trustor to the Beneficiary upon demand. 10.7 Covenants Running with the Land. All obligations contained in the Note and this Mortgage and all covenants, obligations and agreements set forth in the Agreement are intended by the parties to be, and shall be construed as, covenants running with the Mortgaged Property. 10.8 Successors and Assigns. All of the terms of the Note and this Mortgage shall apply to, be binding upon and inure to the benefit of the parties thereto, their respective successors, assigns, heirs and legal representatives, and all other persons claiming by, through or under them. 10.9 Severability. If any Article or Section of this Mortgage shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining Articles and Sections shall not in any way be affected or impaired. 10. 10 Entire Agreement and Amendments. The Note and this Mortgage contain the entire agreements between the parties relating to the subject matter hereof and thereof and all prior agreements relative thereto which are not contained herein or therein are terminated. The Note and this Mortgage may be amended, revised, waived, discharged, released or terminated only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party. 10. 11 Counterparts. This Mortgage may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument and each of which shall be, and shall be deemed to be, an original. 10. 12 Governing Law. This Mortgage shall be governed by and construed in accordance with the laws of the State of California. Exhibit D - 13 SHEOm im l 10. 13 Subrogation. If any or all of the proceeds of the Note have been used to extinguish, extend or renew any indebtedness heretofore existing against the Mortgaged Property, then, to the extent of such funds so used, the Indebtedness and this Mortgage shall be subrogated to all of the rights, claims, liens, titles and interest heretofore existing against the Mortgaged Property to secure the indebtedness so extinguished, extended or renewed and the former rights, claims, liens, titles and interest, if any are not waived but rather are continued in full force and effect in favor of the Beneficiary and are merged with the lien and security interest created herein as cumulative security for the repayment of the Indebtedness and the satisfaction of the Obligations. 10. 14 Third Party Beneficiary. Notwithstanding anything to the contrary hereunder, the Redevelopment Agency of the City of San Bernardino shall be deemed a third party beneficiary of this Mortgage for the purpose of enforcing its remedies under the Agreement. IN WITNESS WHEREOF, the Trustor has executed this Deed of Trust and Assignment of Rents this day of 1993 . TRUSTOR CLIFF R. CAREL & ASSOCIATES, a California limited partnership By Its Exhibit D - 14 saEOmonnocwi 0 STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) Exhibit D - 15 seEOmo„ , EXHIBIT "A" to Deed of Trust (Legal Description of Land) Parcel 3 of Parcel Map No. 9122 , in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 69 of Parcel Maps Page 1 and 2 , records of said County and State. Exhibit D - 16 SBEO`9W1�1 EXHIBIT "E" Disbursing Agent Fees Exhibit E — 1 SHEOnom�ocwei 7 EXHIBIT "F" Escrow Funding Service Agreement Exhibit F — 1 saeawaoi�oocsei EXHIBIT "G" Line-Item Budget Exhibit G - 1 SBEOIDBBI➢ 1 EXHIBIT "H" When Recorded, Mail to: CERTIFICATE OF COMPLETION We, , Chairman and Secretary of the Redevelopment Agency of the City of San Bernardino hereby certify as follows: By its Resolution No. adopted and approved 199_, the Redevelopment Agency of the City of San Bernardino has resolved as follows: Section 1. The improvements [or that certain portion of the improvements described as ] required to be constructed in accordance with that certain Loan Agreement (the "Agreement") dated 1993, by and among the Redevelopment Agency of the City of San Bernardino, Escrow Funding Service and Cliff R. Carel & Associates, a California limited partnership (the "Redeveloper") on that certain real property more fully described in Exhibit "A" attached hereto and incorporated herein by this reference have been completed in accordance with the provisions of said Agreement. Exhibit H - 1 59EO`0011 1 Section 2 . This Certificate of Completion shall constitute a conclusive determination of satisfaction of the agreements and covenants contained in the Agreement with respect to the obligations of the Redeveloper, and its successors and assigns, to construct the improvements and the dates for the beginning and completion thereof; provided, however, that the Agency may enter the Property for purposes of enforcing any covenant of the Agreement and shall have the right to offset such expenditures against sums otherwise due to the Redeveloper under the Agreement. Said Agreement is an official record of the Redevelopment Agency of the City of San Bernardino and a copy of said Agreement may be inspected in the office of the Secretary of the Redevelopment Agency of the City of San Bernardino located at 201 North "E" Street, Third Floor, San Bernardino, California 92401-1507 during regular business hours. Section 3 . The real property to which this Certificate of Completion pertains is more fully described in Exhibit "A" attached hereto. DATED AND ISSUED this day of 199_. Chairman of the Redevelopment Agency of the City of San Bernardino (SEAL) Secretary of the Redevelopment Agency of City of San Bernardino Exhibit H - 2 SBEO`NOI�1 e� o STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared I personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) Exhibit H - 3 SEEON I\O Wt EXHIBIT "A" (Legal Description) Parcel 3 of Parcel Map No. 9122, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 69 of Parcel Maps Page 1 and 2 , records of said County and State. Exhibit H - 4 SREOm 1m 1