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HomeMy WebLinkAboutR33- Economic Development Agency CITY OF SAN BERNARDINO ORIGINAL ECONOMIC DEVELOPMENT AGENCY FROM: Emil A.Marzullo SUBJECT: San Bernardino Auto Center Association - Interim Executive Director Development Financing and Participation Agreement and an Assignment of Deposit to develop and construct a free standing electronic DATE: May 11,2010 reader board sign at the San Bernardino Auto Center(Southeast Industrial Park Redevelopment -..-_Project Area)---------------------- Synot)sis of Previous Commission/Council/Committee Action(s): On February 18,2010,the Redevelopment Committee Members Johnson,Baxter and Brinker unanimously voted to recommend that the Community Development Commission consider this action for approval. On April 28, 2010, the City of San Bernardino Planning Commission completed review of the project with its approval of Conditional Use Permit No. 10-06, a proposal to replace the existing non-functional sign with the a new electronic message sign. Recommended Motion(s): ----------------------------- --------------------------------------- ------------------------------------- (Community Development Commission) Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute a Development Financing and Participation Agreement by and between the San Bernardino Auto Center Association and the Agency and approve an Assignment of Deposit for a certain reader board sign (Southeast Industrial Park Redevelopment Project Area) Contact Person(s): Don Gee Phone: (909)663-1044 South East Industrial Park 3rd Project Area(s): Redevelopment Project Area Ward(s): _ Supporting Data Attached: 0 Staff Report 0 Resolution(s)0 Agreement(s)/Contract(s) O Map(s)❑ Letter(s) FUNDING REQUIREMENTS: Amount: $ 850,000.00 Source: Agency Administrative Fund Budget Authority: FY 2009-2010 Redevelopment Agency Budget Signature: Iff Fiscal Review: Emil A.Marzu o; ecutive Director Lori PaoKno-VKry, Intes ministrative Services Director .t7 Commission/Council Notes: i<D IN-��d��'�� --------------------------- ---' -------'-----' ------------- P:wsendar\Comm Dr con,n,i»wmcoD 20ww5-17-10 sa AUm Center A"rnm SR.EOCR COMMISSION MEETING AGENDA Meeting Date: 05117/2010 Agenda Item Number: ° 33 ECONOMIC DEVELOPMENT AGENCY STAFF REPORT SAN BERNARDINO AUTO CENTER ASSOCIATION - DEVELOPMENT FINANCING AND PARTICIPATION AGREEMENT AND AN ASSIGNMENT OF DEPOSIT TO DEVELOP AND CONSTRUCT A FREE STANDING ELECTRONIC READER BOARD SIGN AT THE SAN BERNARDINO AUTO CENTER (SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA) BACKGROUND: The Redevelopment Agency of the City of San Bernardino ("Agency") has been intensively involved with a number of new and used vehicle dealerships, vehicle parts and suppliers, and vehicle service and repair facilities during this economic recession to address the significant negative impact on city revenues that the loss of business and jobs in this industry has created. Recently, the Agency has worked with the San Bernardino Auto Center Association ("Association") to create a Property Business Improvement District ("PBID") in the Auto Center adjacent to the I-215 Freeway for the purposes of funding and financing certain enhancements to the Auto Center and to provide a method to maintain and market the Auto Center and its vehicle sales. After the successful election to create the PBID, the property assessments will be placed on the property owner's property tax bills for the coming year and the Association will begin spending its assessment money to improve their sites and businesses. One of the PBID functions was the marketing and the advertising for the Auto Center and its dealerships, a critical element of its immediate and long-term success and sustainability. One primary source and method of marketing and advertising would be the use of the freeway reader board sign, but the sign is no longer functional. The replacement of the old freeway reader board sign was one of the projects on the PBID's to-do list, but the cost of the new sign would exceed the maximum assessment that can be levied by the PBID. The Agency and the Association explored several alternate methods of financing to develop and construct a new freeway reader board sign that would provide immediate advertising and marketing for current and prospective new dealerships looking to locate in the Auto Center. CURRENT ISSUE: Efforts by the Association to replace the existing non-functional sign have been met with difficulties due to the overall climate of the financial credit market. The Agency will facilitate the transaction between Citizens Business Bank (`Bank") and the Association by depositing an $850,000 Certificate of Deposit ("CD") in an escrow account as collateral for the loan to construct the new sign. Following payment and completion of the 10-year term of the loan, the CD will be released back to the Agency. In return for this loan guarantee, the Agency will retain rights to advertise community/city events (a minimum of 6 minutes per hour) on the new sign and will receive a 2%credit fee from the Association on the $850,000 CD. The attached Development Financing and Participation Agreement ("Agreement") will formalize these terms between the Agency and the Association. ------------------------- ------------------------------------------------ PWge Womm Nv CommisslonWW201M5-I]-10 SB Aub Cema Agamem SR do COMMISSION MEETING AGENDA Meeting Date: 05/17/22010 Agenda Item Number: .933 Economic Development Agency Staff Report San Bernardino Auto Center Association Page 2 In the event of default on the loan to Citizens Business Bank, the CD will be forfeited in an amount equal to the then outstanding loan balance and the Agency would take possession of the $850,000 sign, become the successor to the Association with regards to the License Agreement with the City and would be able to operate the sign and retain any advertising revenues it could obtain to make up for the lost CD. While pursuing this financing method with the Agency, the Association submitted for design review of the sign through Development Services. A public hearing was held on April 26, 2010 where the Planning Commission unanimously approved the sign plans, subject to conditions of approval and standard requirements, under Conditional Use Permit No. 10-06. Following this approval, the Association and its contractor, Young Electric Sign Company, will submit detailed shop and engineering drawings for the issuance of construction permits through the Building Division. The sign (plans are attached as Exhibit "E" to the License Agreement) is a freestanding double faced electronic message sign with a LED display. The height of the proposed sign is 75 feet. The sign's display area contains approximately 841 square feet, with dimensions of 29 feet by 29 feet. The sign will replace the existing free standing Center sign at its current location, within the median of Auto Center Drive near its intersection with Camino Real. The replacement sign will utilize an existing and continued operation of the sin within the License Agreement with the City for the construction p g median. I In summary, for a new reader board sign to be installed to replace the non-functional one, the Association will borrow $850,000 from the Bank and repay the loan from the increased vehicle sales and advertising revenues. The Agency would provide a loan guarantee by pledging an $850,000 CD to the Bank,thereby lowering the interest cost to the Association. ENVIRONMENTAL IMPACT: The project is exempt from the California Environmental Quality Act under Section 15302, as a replacement or reconstruction of an existing structure. FISCAL IMPACT: Account Budgeted Amount: $850,000 Balance as o£ May 12, 2010 Balance after approval of this item: $0.00 RECOMMENDATION: That the Community Development Commission adopt the attached Resolution. Emil 6'a o, Interim Executive Director ------------------------------------ ------- ---------- ---------- PUgemsWommDev ComminionWOC]oi=5-n-IUSeAUWCemerAymmemSK COMMISSION MEETING AGENDA Meeting Date: 05117/2010 Agenda Item Number: P33 I RESOLUTION NO. COPY 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF 3 THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT 4 AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE A DEVELOPMENT FINANCING AND PARTICIPATION 5 AGREEMENT BY AND BETWEEN THE SAN BERNARDINO AUTO 6 CENTER ASSOCIATION AND THE AGENCY AND APPROVE AN ASSIGNMENT OF DEPOSIT FOR A CERTAIN READER BOARD SIGN 7 (SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA) 8 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") has 9 the authority to undertake redevelopment activities in the South East Industrial Park Redevelopment 10 Project Area (the "Project Area") pursuant to the duly adopted redevelopment plan for the Project; 11 and 12 WHEREAS, the Agency has engaged the San Bernardino Auto Center Association 13 ("Association")to revitalize the San Bernardino Auto Center and to retain and enhance vehicle sales © 14 in the City, a source of general fund revenue to the City; and 15 WHEREAS, the Agency proposes to enter into a certain transaction as further described in 16 the Development Financing and Participation Agreement (the "Agreement"), as attached hereto as 17 Exhibit "A" together with an $850,000 Assignment of Deposit ("Deposit") in the form as attached 18 to the Agreement in furtherance of the redevelopment powers of the Agency within the Project 19 Area; and 20 WHEREAS, the Agency intends to utilize the Deposit as a loan guaranty for a Citizens 21 Business Bank loan to the Association in an amount equal to $850,000 for the purchase and 22 installation of a new freeway reader board sign to replace the current non-functional reader board 23 sign; and 24 WHEREAS, it is in the best interests and in furtherance of the redevelopment goals of the 25 Agency within the Project Area for this Commission to approve the documents as attached to this 26 Resolution and the transactions as contemplated therein. © 27 28 I PUVeMaxUtesoWtiomW.ewlmiquVAIg05.1]-10 SB Amo Cemer-Oev<bpmem Fiiuncing&PVnicipation Agrzemcm COC 0.ew EOC OI NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 2 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 3 FOLLOWS: 4 Section 1. The Commission hereby finds and determines that the recitals to this 5 Resolution as set forth above are true and correct in all respects. 6 Section 2. The Commission hereby authorizes the Interim Executive Director of the 7 Agency, or such other designated representative of the Agency, to do any and all things and take 8 any and all actions as may be deemed necessary or advisable to effectuate the purposes of the 9 Agreement together with the Deposit, including making non-substantive modifications to the 10 Agreement together with the Deposit for the Association's purchase and installation of the freeway 11 reader board sign. The Commission further authorizes the deposit of fund equal to $850,000 subject 12 to the Assignment of Deposit as set forth in the Agreement. 13 Section 3. This Resolution shall take effect from and after its date of adoption by this Q14 Commission. 15 16 17 19 20 21 22 23 24 25 26 Q27 28 2 PUyenEazWesolmionsUlewlulionsVAlObS-I]-10 SDA ,.Csnierp 1., enl F...nd,&P._,,On A,rt.m.m CDC R..EOc I RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING 2 THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO 3 EXECUTE A DEVELOPMENT FINANCING AND PARTICIPATION 4 AGREEMENT BY AND BETWEEN THE SAN BERNARDINO AUTO CENTER ASSOCIATION AND THE AGENCY AND APPROVE AN 5 ASSIGNMENT OF DEPOSIT FOR A CERTAIN READER BOARD SIGN (SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA) 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 8 Development Commission of the City of San Bernardino at a meeting 9 thereof, held on the day of 2010, by the following vote to wit: 10 Commission Members: Aves Nays Abstain Absent I1 MARQUEZ — 12 DESJARDINS — 13 BRINKER — — 14 SHORETT — 15 KELLEY — 16 JOHNSON — 17 MC CAMMACK — 18 19 Secretary 20 The foregoing Resolution is hereby approved this day of 12010. 21 22 23 Patrick J. Morris, Chairperson Community Development Commission 24 of the City of San Bernardino 25 Approved as to Form: 26 © 27 By. gency C nsel 28 3 PUg<ntlasat 1utionsUow1,ouuuU01=S 17-10 58 Auto Ccm<r-Dowlopmem Fiiuncin8&Psnicipariun Ayrtemem CDCM1m.doc © I EXHIBIT "A" 2 DEVELOPMENT FINANCING AND PARTICIPATION AGREEMENT 3 4 5 6 7 8 9 10 11 12 13 ® 14 15- 16 17 18 19 20 21 22 23 24 25 26 Q27 28 4 PUVndasa WionsUew tions4 01010 5-17.1 0 SB Nub Cents-D Ie Mem Finning k Pnsmplion Veemem CDC Bao . DEVELOPMENT, FINANCING AND PARTICIPATION AGREEMENT THIS DEVELOPMENT, FINANCING AND PARTICIPATION AGREEMENT (this "Agreement"), dated as of May 17, 2010 (the "Effective Date"), is executed by and between the San Bernardino Auto Center Association, a California corporation (the "Association" or the "Borrower"), and the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"), with reference to the following facts. The term "Party" when used in this Agreement shall mean either the Association or the Agency and the term "Parties" when used in this Agreement shall collectively mean the Association and the Agency. RECITALS A. The City of San Bernardino owns and retains a right-of-way interest in the Property (as defined below) which Property is located in the City of San Bernardino, County of San Bernardino, State of California. B. Citizens Business Bank, a national banking association (the "Lender"), as lender, intends to make a loan to the Association, in an amount not to exceed Eight Hundred and Fifty Thousand Dollars ($850,000) (the "Loan") the proceeds of which shall be used by the Association to design, to construct and to complete the Sign at the Property. The Loan shall be secured by the assignment and pledge from the Agency to the Lender of an Agency certificate of deposit in the approximate amount of Eight Hundred and Fifty Thousand Dollars ($850,000) (the "Certificate of Deposit"), pursuant to an assignment of deposit account (the "Assignment of Deposit Account") to be executed by and between the Agency and the Lender. The Loan shall not be secured by the Property or by the Sign. C. The Agency intends to execute the Assignment of Deposit Account and to assign and to pledge to the Lender the Certificate of Deposit to secure the Loan made by the Lender to the Association provided: (i) the Association executes, delivers and performs the terms, covenants and conditions of this Agreement, (ii) the Association now and hereafter owns and will continue to own the Sign free and clean of any liens, encumbrances, security interest or deed of trust (except for the perfected security interest created by the Security Agreement (as defined below) encumbering the Property, including the Sign)). D. In consideration for the Agency's willingness to assign and to pledge to the Lender the Agency's interest in the Certificate of Deposit pursuant to the Assignment of Deposit Account, the Agency will require the Association, without limitation, to do the following, subject to the terms, covenants and conditions of this Agreement: (i) to pay the monthly Fee (as defined below) for the Term (as defined below), (ii) to install and to maintain the Sign, at no cost or expense to the Agency, for the Term, and(iii)to use the Sign to display various community-oriented messages and information announcements, and to promote the overall positive image of the City, without any cost or charge to the Agency, for the Term. E. The Association, without limitation, is willing to do the following, subject to the terms, covenants and conditions of this Agreement: (i) to pay to the Agency the monthly Fee for the Term, (ii) to install and to maintain the Sign, at no cost or expense to the Agency, for the Term, and (iii) to permit the Agency to use the Sign to display various community-oriented messages and information 1 P UP WA,W&Alt met VM&ABUhmem,I "S Am MIDAS-17-10 SB Auto Crna-OFD A�tlx announcements, and to promote the overall positive image of the City, without any cost or charge to the Agency, for the Term. F. The Association acknowledges and understands that the Agency would not be willing to assign and to pledge its interest in the Certificate of Deposit to the Lender to secure the obligations of the Association under the Loan unless the Association agreed, without limitation, subject to the terms, covenants and conditions of this Agreement: (i) to pay to the Agency the monthly Fee for the Term, (ii) to install and to maintain the Sign, at no cost or expense to the Agency, for the Term, and (iii) to permit the Agency to use the Sign to display various community-oriented messages and information announcements, and to promote the overall positive image of the City, without any cost or charge to the Agency, for the Term. G. The Association intends to execute, to deliver and to perform under this Agreement under the other Documents(as defined below)to which it is a Party.. NOW THEREFORE IN CONSIDERATION OF THE RECITALS SET FORTH ABOVE AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE ASSOCIATION AND THE AGENCY HEREBY COVENANT AND AGREE AS FOLLOWS: ARTICLE 1 DEFINITIONS Initially capitalized terms in this Agreement shall have the meaning provided for in the preamble of this Agreement, in the recitals to this Agreement, in this Article 1 and in this Agreement: Advertisement. "Advertisement' means the Association Advertisement and the Agency Advertisement. Ate. "Agency" means the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic, its successor and assigns. Aeencv Advertisement. "Agency Advertisement' means the content and the display by the Agency of messages on the Sign in compliance with all applicable Governmental Permits, all applicable Governmental Requirements and as required by all applicable Governmental Authorities. The Agency may use its allotment of time for various community-oriented messages, information announcements, and to promote the overall positive image of the City. Agency Documents. "Agency Documents" mean this Agreement, the Security Agreement, the Notice of Agreement, UCC financing statements, amendments, continuation statements, and/or terminations, and any other instrument, document, agreement, guaranty, UCC financial statements and/or certificate now or hereafter executed by the Association and/or by the Agency, and delivered by the Association to the Agency at the request of the Agency, in connection with the transactions contemplated in this Agreement and/or in the Security Agreement, as amended from time to time. 2 P UgeMss\Agenda AIt¢meulSNgmdn A,unhmenls ymus-Amend 3010W5-17-10 SB auto Gmv-DFP Ag ruem Lac Agency Loan Liability. "Agency Loan Liability" means the liability of the Agency to the Lender upon the occurrence of: (i) an event of default by the Borrower under the Loan Documents, or (ii) an event of default by the Agency under the Assignment of Deposit Account. Upon the occurrence of an event of default under the Loan Documents, the Lender shall have the right, but not the obligation, without limitation, to take and to off set against the Certificate of Deposit in accordance with and pursuant to the Assignment of Deposit Account. Agreement. "Agreement" means this Agreement executed by and between the Association and the Agency, as amended from time to time. Architect. "Architect" means any architect who has been retained by the Association to prepare the Plans. Assignment of Deposit Account. "Assignment of Deposit Account" means the Assignment of Deposit Account, of even date herewith (including the Insert To Assignment of Deposit Account, of even date herewith), executed by and between the Agency, as grantor, and the Lender, as lender, as amended from time to time. In the Assignment of Deposit Account, the Agency, as grantor, without limitation, granted, assigned, pledged and transferred to the Lender the Certificate of Deposit to secure the Loan Obligations under the Loan Documents on the condition that the Borrower use the Loan . Proceeds under the Loan Documents to remove an existing sign, to design, to construct, to install, and to purchase the Sign from the Contractor for the Purchase Price. The Assignment of Deposit Account is attached hereto and incorporated herein by this reference as Exhibit"B". Association. "Association" means the San Bernardino Auto Center Association, a California corporation. Association Advertisement. "Association Advertisement" means the content and the display by the Association of messages on the Sign, as approved in writing by the Agency and by the City, and in compliance with all applicable Governmental Permits, all applicable Governmental Requirements and as required by all applicable Governmental Authorities. Association Closing Costs. "Association Closing Costs" mean the following: (i) costs to obtain a survey in connection with the Sign, the Project and/or the Property, (ii) all engineering costs and fees and all costs and fees incurred to obtain the legal description for the Property, (iii) all architect fees, (iv) all application, approval, conditional use, permit and other Governmental Permit fees, (v) the Fee for the first month, (vi) all recording costs and filing fees, (vii) all reasonable escrow fees customarily charged by the Escrow Holder in connection with the closing of a similar escrow in the City, and (viii) all other fees, costs and charges incurred in connection with: (a) the removal of the existing sign at or adjacent to the Property, the design, the construction,the installation, the completion and the purchase of the Sign, (b) the legal description for the Property, (c) the payment of all delinquent taxes and assessments relating to and/or affecting the Sign, the Project and/or the Property, (d)the Escrow and the Close of Escrow. Association Obligations. "Association Obligations" means the obligations of the Association under the Agency Documents. Borrower. "Borrower" means the San Bernardino Auto Center Association, a California corporation. 3 P AVeM AyeMa Attadmen¢tAYoda AtWhrntouUVpntsAm 20=5-17-10SB Arno Co >.D"AgttmnOd (^ Certificate of Deposit. "Certificate of Deposit" means the Certificate of Deposit, Certificate of Account Number (To Be Determined), in the possession of the Lender and in the approximate principal amount of Eight Hundred Fifty Thousand Dollars ($850,000) together with: (i) all interest, whether now accrued or hereafter accruing, (ii) all additional deposits hereafter made to the certificate of deposit account, (iii) any and all proceeds from the Certificate of Deposit account, and (iv) all renewals, replacements, extensions, and substitutions of the foregoing. Certificate of Deposit Set Off Amount. "Certificate of Deposit Set Off Amount" means the amount of the Certificate of Deposit that has been taken and set off by the Lender, from time to time, as provided for in and as a result of an event of a default under the Loan Documents. Change Order. "Change Order" means a signed written order, either from the Association to the Contractor, or from the Contractor to the Association, or from a subcontractor to the general contractor, directing an addition, deletion or revision to the Plans, the Project's scope of work, or an adjustment in the Construction Contract relative to time, cost or any other matter. Cam. "City"means the City of San Bernardino, State of California. Close of Escrow; Closing: Closing Date. "Close of Escrow", "Closing", "Closing Date" mean the date when: (i) the Escrow Holder is in receipt of the Loan Proceeds, or any portion thereof that is to be disbursed by the Lender to the Escrow Holder, (ii) the Escrow Holder is in receipt of the Association Closing Costs, the one (1) month Fee, and all other monies needed to Close Escrow, (iii) ® the Escrow Holder has received the Notice of Agreement, as mutually executed and acknowledged by the parties thereon, in recordable form, which shall be recorded by the Escrow Holder with the Recorder's Office one (1) business day after the Closing, (iv) the related executed Escrow documents of the Parties, (v) the final closing statement as mutually executed by the Parties, and (vi) the Escrow Holder is in a position to comply with the final written escrow closing instructions from the Parties, and to cause the Notice of Agreement to be recorded in the Recorder's Office. Completion Date. "Completion Date" means the date that the Project is to be completed and accepted by the Association, by the Agency and by all appropriate Governmental Authorities. The Project must be completed by the Association on or before 90 calendar days following the Effective Date, unless mutually extended by the Parties, in writing. Construction Contract. "Construction Contract" means the general construction contract or contracts between the Association and the Contractor in connection with the construction by the Contractor of the Project for the Association that has or have been submitted by the Association to and approved by the Agency. Contractor. "Contractor" means Young Electric Sign Company, the general contractor or contractors who has or have been retained by the Association to construct the Project at the Property. Contractor Obligations. "Contractor Obligations" means the obligations of the Contractor under the Construction Contract. Cost Breakdown. "Cost Breakdown" means the itemized cost breakdown that the Association has submitted to, and that has been approved by, the Agency showing all direct and indirect 4 P UyerduUyeMe AttrAmems\AgeM3 AuWMMt$\A9=S-Amend 20IMOS-17-10 SB Auto Cana.D"ApebneN.dm construction costs and expenses required for the completion of the Project in accordance with the Plans, and this Agreement,as set forth in Exhibit"C" attached to this Agreement. County. "County" means the County of San Bernardino, State of California. Documents. "Documents" mean the Agency Documents, the Loan Documents and the Project Contracts, or any one of them. Effective Date. "Effective Date" means the date after the conclusion of a public hearing by the governing board of the Agency for the approval of this Agreement when each of the following events have occurred: (i)the governing board of the Agency has approved its approving resolution containing the finding required by Health and Safety Code Section 33433, and (ii) this Agreement has been fully executed by the Association and by the Agency. Environmental Laws. "Environmental Laws" mean all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability of standards of conduct concerning any hazardous substance, as later defined, or pertaining to occupational health or industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of © 1980 ( CERCLA ) [ se" " 42 USC Section 9601 et .]; the Resource Conservation and Recovery Act of q 1976("RCRA") [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33 USC Section 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act ("HMTA") [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C Section 25280 et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C Section 25249.5 et seq.] the Porter-Cologne Water Quality Act [Water Code Section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water,or land use. (ii) "hazardous substances"includes without limitation: those substances included within the definitions of "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminate" in CERCLA, RCRA, TSCA, HMTA, or under any other environmental law; and 5 P V4 ms\ pg MurMiemMpy AN hM1 AAymnLAmend 3010-05-17-1059N o Cana-DR Are doc `s^ those substances listed in the United States Department of Transportation (DOT) \r Table [49 CFR 172.1011, or by the EPA, or any successor agency, as hazardous substances [40 CFR Part 302]; and other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and any material, waste, or substance that is: (1) a petroleum or refined petroleum product, (2) asbestos or asbestos-containing materials, (3) polychlorinated biphenyl, (4) designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317, (5) a flammable explosive, (6) a radioactive material,or III (7) lead and/or lead-based paint. © Escrow. "Escrow" means the escrow created with Chicago Title Company, or any other escrow company acceptable to both the Agency and the Association, in connection with and relating to the design, the construction, the development, the completion and/or the purchase of the Sign at the Property in accordance with this Agreement. Escrow Holder. "Escrow Holder"means the escrow officer at the Title Company who is administering the Escrow for the Parties. Event of Default. "Event of Default' means the occurrence of any one (1) or more of the events of default described in Section 7 of this Agreement. Fee. "Fee" means the monthly fee to be paid by the Association to the Agency for the Term. In consideration, without limitation, for the grant, the transfer, the assignment and the pledge by the Agency to the Lender of the Certificate of Deposit, as adjusted from time to time, to secure the Loan Obligations under the Loan Documents, in accordance with the Assignment of Deposit Account, commencing on the first day of the term of the Note and monthly thereafter for the remaining Term, as extended from time to time by the Agency, the Association shall pay to the Agency the sum of two percent (2%) annual percentage rate of the outstanding Principal of the Loan, as adjusted from time to time. Governmental Authorities. "Governmental Authorities" mean: (i) the United States, (ii) the state, county, city or other political subdivision in which the Property is located, (iii) all other governmental or quasi-governmental authorities, boards, bureaus, agencies, commissions, departments, administrative tribunals, and other instrumentalities or authorities, and (iv) all judicial authorities and 6 PW8enE"\AS<Ma AnachmemsUyenda Auachments Gm,-Ammo 3010\051P10S9 Auto Cmun DFPAy rut,ol Ecc ^" public utilities having or exercising jurisdiction over the Association, over the Contractor, over the i.. Project, for the Sign, over the Project,over the Property and/or over the Advertisement. Governmental Permits. "Governmental Permits" mean all permits, approvals, licenses and authorizations now or hereafter issued by all Governmental Authorities for or in connection with the removal of the existing sign at or adjacent to the Property, the design, the construction, the improvement, the development, the use, the ownership, the operation, the Advertisement, the maintenance, or the repair of the Property and/or of the Sign, including removal permits, grading permits, foundation permits, building permits, utility permits, electricity permits, water use permits, sewer permits, tentative subdivision map approvals, zone changes, zone variances, conditional use permits, including, without limitation, Conditional Use Permit No. 00-27, amendments to conditional use permits, including, without limitation, Amendment No. 10-06 to Conditional Use Permit No. 00- 27,use permits,temporary certificates of occupancy, final certificates of occupancy and Advertisement permits and licenses. Governmental Requirements. "Governmental Requirements" mean all existing and future laws, ordinances, rules, regulations, orders, and requirements of all Governmental Authorities applicable to the Association, to the Contractor, to the Agency, to the Project, to the Sign, to the Property and/or to the Advertisement, including those respecting the removal of the existing sign, the design, the construction, the improvement, the development, the use, the ownership, the operation, the maintenance, and/or the repair of the Sign, of the Project and/or of the Property. Improvements. "Improvements" mean all existing and future buildings, structures, improvements, and fixtures on, at, upon, above, or under to the Property, including, without limitation, © the Sign. Laws. "Laws" mean all federal, state, municipal and local laws, statutes, ordinances, codes, regulations,rules and orders, now or hereafter in effect, as amended from time to time. The Laws shall include, without limitation, the general plan, all building codes, the Governmental Requirements and the"Environmental Laws." Lender. "Lender" means the Citizens Business Bank, a national association, its successors and assigns. License. "License" means that certain license created in the License Agreement. License Agreement. "License Agreement', dated as of February 19,2002 by and between the City and the Association wherein the City, without limitation, granted to the Association the right to construct a sign at the Property and to exercise certain advertising rights. License Obligations. "License Obligations" mean the obligations of the respective parties under the License Agreement. Loan. "Loan" means the loan made from the Lender to the Borrower, in the amount not to exceed Eight Hundred and Fifty Thousand Dollars ($850,000). The Loan is evidenced by the Note, and is subject to and secured by the Loan Agreement and by the Assignment of Deposit Account. 7 PUy du\AWW&Anxhmemss Stnda Anrthmems%A&^u%Amed20IMS-1Ll0SBAulo C=tu-DHAWw.[da Loan Agreement. "Loan Agreement" means the Business Loan Agreement, of even date herewith (including the Insert to the Loan Agreement, of even date herewith), executed by and between the Borrower, as borrower, and the Lender, as lender, as amended from time to time. Loan Documents. "Loan Documents" mean the Note, the Loan Agreement, the Assignment of Deposit Account, and all other instruments, documents, agreements, guaranties, UCC financing statements, amendments, continuation statements, terminations or certificates now or hereafter executed by the Borrower, in connection with the Loan and/or with the transactions contemplated therein, and delivered to the Lender at the Lender's request in connection with the Loan, and all extensions, renewals, modifications, replacements and substitutions of such instruments, documents, agreements, guaranties and/or certificates. Loan Obligations. "Loan Obligations" mean the monetary and/or non-monetary obligations under the Loan Documents. Loan Proceeds. "Loan Proceeds" mean the loan proceeds from the Lender under the Loan Documents which shall be used in their entirety by the Borrower to remove an existing sign, to design, to construct, to install and to purchase the Sign. The Loan Proceeds shall not exceed the sum of Eight Hundred and Fifty Thousand Dollars ($850,000). In the event the Purchase Price is greater than the Loan Proceeds provided by the Lender to the Association under the Loan Documents, the Association shall pay the difference between the Purchase Price and the Loan Proceeds. Maturity Date. "Maturity Date" means the maturity date stated and provided for in the Note, as © such maturity date may be extended in accordance with the terms of the Note. Note. "Note" means: (i) the promissory note in the amount not to exceed Eight Hundred and Fifty Thousand Dollars ($850,000) executed by the Borrower in favor of the Lender evidencing the Loan; as extended, renewed, replaced, substituted, modified and/or restated from time to time, and (ii) any additional notes now or hereafter executed by the Borrower in favor of the Lender that recite that they are secured by the Loan Agreement and by the Assignment of Deposit Account, as extended, renewed, replaced, substituted, modified and/or restated from time to time. Notice of Agreement. "Notice of Agreement" means the Notice of Agreement, of even date herewith, as executed and acknowledged by the Agency and by the Association. The Notice of Agreement shall be in recordable form and is to be recorded in the Recorder's Office. . Obligations. "Obligations" mean the Agency Obligations, the Agency Loan Liability, the Association Obligations, the Loan Obligations,the Project Obligations and the License Obligations. Person. "Person" means any natural person or any entity, including any corporation, partnership, joint venture, limited liability company, trust, unincorporated organization, trustee, or Governmental Authority. Plans. "Plans" means the final plans and specifications for the Sign that have been submitted by the Association to and approved by the Agency and the City, as such plans and specifications may be modified in accordance with the terms of this Agreement. 8 P UymtluUyerda anvlimemsNyeMa Muchm ,Mye ,A.a M301 NS-17-10 yB auie Cana-DN Ay, . © Preliminary Report. "Preliminary Report means the preliminary report in connection with, relating to and affecting the Property, as issued by the Title Company in favor of the Agency, Order No. 910091741-K26. The Agency may accept or reject the Preliminary Report,in its sole discretion. Principal. "Principal" means the outstanding principal amount of the Loan, evidenced by the Note, as adjusted from time to time. The Principal of the Loan made by the Lender to the Borrower may not exceed Eight Hundred and Fifty Thousand Dollars($850,000). Proiect. "Project' means all of the work of investigation, the removal of an existing sign from the Property, the design, the construction, the improvements, the modifications that the Association proposes to construct on the Sign on the Property as described in the Plans together with all related onite and offsite improvements. The Project generally consists of the construction of the Sign on the Property for the Purchase Price. The Project is described in Exhibit "Daa attached hereto and incorporated herein by this reference. Proiect Contracts. "Project Contracts"mean the following: (i) The Construction Contract. (ii) If the Association has not retained a single general Contractor and will he completing the Project as an owner/builder, each contract that the Association proposes to enter into with any trade contractor completing a portion of the Project or supplier providing equipment or materials to the Project. © Proiect Costs. "Project Costs" mean the costs incurred by the Association to remove the existing sign from the Property, the costs to design, to construct and to complete the Sign at the Property. Project Contractor. "Project Contractor" means the Person entering into a Project Contract with the Association. Proiect Obligations. "Project Obligations" mean the monetary and/or non-monetary obligations of the Project Contractor under the Project Contracts. Properv. "Property" means the real property, the Improvements,the Sign and the Project. The Property is owned by the City and is located in the City of San Bernardino, County of San Bernardino,. State of California. The legal description of the Property is attached hereto and incorporated herein by this reference as Exhibit"A". Purchase Price. "Purchase Price" means the price that the Association will pay to the Contractor for the removal of the old sign from the Property, and for the design, for the construction, for the development and for the installation by the Contractor of the Sign on the Property. In the event the Purchase Price exceeds Eight Hundred and Fifty Thousand Dollars ($850,000), the Association will pay the difference between the Purchase Price and the Loan Proceeds received from the Lender under the Loan Documents. The Association will use the Loan Proceeds to pay for the Purchase Price of the Sign. 9 P AyeMas:AIWM AlbcM1memsUyeMa NI¢M1me msl A,,mlx Ammd301015 I'II SB Arno Crn>.DFP ApemmvC ® Recordation Date. "Recordation Date" means the date of recordation by the Agency of the Notice of Agreement in the Recorder's Office. Recorder's Office. "Recorder's Office" means the Office of the County Recorder for the County of San Bernardino, State of California. Sign. The Sign means the sign structure constructed and completed by the Association at the Property. The Sign Plans are attached hereto and incorporated herein by this reference as Exhibit"E". Term. "Term" means the term of this Agreement. The Term of this Agreement shall commence on the Effective Date of this Agreement and shall expire on the Maturity Date of the Note, as extended, renewed, replaced, substituted, modified and/or restated from time to time, unless sooner terminated in accordance with this Agreement or extended by the Parties, in writing. Title Company. "Title Company" means Chicago Title Company, or any other title insurance company acceptable to the Agency, in its sole discretion. ARTICLE 2 ESCROW AND CONDITIONS PRECEDENT 2.1 Opening and Closing of Escrow. (a) The closing of the transactions contemplated in this Agreement relating to the Project at the Property shall take place through the Escrow to be administered by the Escrow Holder, by an escrow department of the Title Company, or through such other escrow or title insurance company mutually agreed upon by the Agency and by the Association. The Escrow shall be deemed open (the "Opening of Escrow") upon the receipt by the Escrow Holder of a fully executed copy of this Agreement. The Escrow Holder shall promptly confirm to the Parties the escrow number and the title insurance order number assigned to the Escrow. (b) If the Close of Escrow fails to occur within ninety (90) calendar days after the Effective Date,then, in such event, this Agreement shall terminate upon the receipt by the Escrow Officer from a Party of the election by such Party to terminate this Agreement. Upon receipt by the Escrow Holder of such written notice from a Party, this Agreement shall terminate and no Party shall have any further rights or remedies under this Agreement. The Association shall pay to the Escrow Holder an amount equal to the customary and reasonable escrow cancellation charges charged by the Escrow Holder for a similar Escrow in the City, without further or separate instruction to the Escrow Holder, and the Parties shall each be relieved and discharged from all further responsibility or liability under this Agreement provided no party is in default under this Agreement. 2.2 Escrow Instructions. This Agreement also constitutes escrow instructions of the Parties to the Escrow Holder. Additionally, the Association and the Agency each agree to execute the customary supplemental escrow instructions of the Escrow Holder in the form provided by the Escrow Holder to its clients in similar real property escrow transactions administered by it in the City. In the �} event of a conflict between the additional terms of such customary supplemental escrow instructions of 777 ter+ the Escrow Holder and the provisions of this Agreement, this Agreement shall supersede and be 3 P\Age�ge aAtlaNnwtaUg MU[SmWa\ Ip Am NIMS-17-10 SB AU10 Cwg -DR Ayament dot controlling. Upon any termination of this Agreement or cancellation of the Escrow (except for a C termination resulting from the default of the Agency under this Agreement), the Association shall be solely responsible for the payment of the escrow cancellation costs of the Escrow Holder, the Escrow Holder shall forthwith return all monies, as provided in this Agreement, and documents, less only the Escrow Holder's customary and reasonable escrow cancellation fees and expenses, as set forth herein. 2.3. Closing Obligations of the Association. On or before 12:00 noon on the business day preceding the Closing Date unless indicated otherwise, the Association shall deliver to the Escrow Holder, unless indicated to be delivered directly to the Agency, originals or copies of the following documents, other items and monies: (a) two (2) duplicate originals of the closing statement in connection with this Escrow,as duly executed by the Association; (b) evidence of the existence, organization and authority of the Association and of the authority of persons executing documents on behalf of the Association reasonably satisfactory to the Escrow Holder and to the Title Company; (c) two(2) duplicate originals of this Agreement, as executed by the Association; (d) two (2) originals of the Security Agreement, as executed by the Association; ® (e) one (1) original of the Notice of Agreement, as executed and acknowledged by the Association; (f) any other instruments, documents, agreements, UCC-1 Financing Statements, records, fees and funds required to be delivered to the Escrow Holder or to the Agency under the terms of this Agreement, which have not been previously delivered. 2.4. Closing Obligations of the Agency. On or before 12:00 noon on the business day preceding the Closing Date, the Agency shall deliver to the Escrow Holder originals or copies of the following documents and other items: (a) two (2) duplicate originals of the Closing Statement, as duly executed by the Agency; (b) evidence of the existence, organization and authority of the Agency and of the authority of persons executing documents on behalf of the Agency reasonably satisfactory to the Escrow Holder and to the Title Company; (c) two (2)duplicate originals of this Agreement, as executed by the Agency; (d) one (1) original of the Notice of Agreement, duly executed and acknowledged by the Agency; (e) two (2) originals of the Assignment of Deposit Account, as executed and acknowledged by the Agency; 11 PV. WuU aNirA SVMF aAtWWMIMpmm Am"20IM5-17-10 SB Am0 Cerra-DFP Agamem do (f) two (2)originals of the Security Agreement,duly executed by the Agency; and (g) any other instruments, documents, agreements or funds required to be delivered by the Agency under the terms of this Agreement or as otherwise required by the Escrow Holder or by the Title Company in order to Close the Escrow, which have not previously been delivered. 2.5. Agency's Conditions Precedent to the Close of Escrow. The Agency's obligation to Close the Escrow shall be conditioned upon the fulfillment of the following conditions precedent, all of which shall be satisfied, or waived in writing, prior to the Close of Escrow: (a) The Association shall not have defaulted on any material term of this Agreement to be performed by the Association hereunder, and each representation and warranty made by the Association in this Agreement shall remain true and correct. (b) The Agency's approval of the Preliminary Report, of the Survey, if applicable„ of the legal description for the Property and/or the Plans. (c) The Agency's approval of any notice of change in representation or warranty given by the Association pursuant to Section_5.1(a)hereof. (d) [Intentionally Omitted]. © (e) The Association shall have executed and acknowledged the Notice of Agreement, in such form as to allow for the recordation by the Escrow Holder in the Recorder's Office. (f) The Borrower shall have executed one (1) original of the Note and shall have delivered such Note to the Escrow Holder. (g) The Borrower and the Lender shall have executed one (1) original of the Business Loan Agreement and shall have delivered the executed and original Business Loan Agreement to the Escrow Holder. (h) The Lender shall have executed two (2) originals of the Assignment of Deposit Account and shall have delivered each original Assignment of Deposit Account to the Escrow Holder. The Assignment of Deposit Account must be in recordable for recordation by the Escrow Holder in the { Recorder's Office. i (i) The Lender shall have delivered the Loan Proceeds to the Escrow Holder, as j required by this Agreement. Q) The Association shall have delivered the Fee for one (1) month, the Association Closing Costs and all other fees, costs and expenses in connection with the Close of Escrow, to the Escrow Holder. 12 P U,mdmeAyenta AmNmem,1A,m 1.An.hnmmsV.gnnsAmend 30I M-11-10 11 Aum Inver-Ill Ayrtmem Eoc (k) The Association shall have deposited all other funds, monies, instruments, documents, agreements and/or certificates to be deposited by the Association to the Escrow Holder or to the Agency in accordance with this Agreement. (l) All Governmental Permits have been issued in connection with the Project and paid for by the Association. (m) The Association has completed the construction of the Sign, the Agency, the City and all applicable Governmental Authorities have approved the final construction of the Sign, and the Sign is in compliance with all Governmental Requirements, with all Governmental Permits and will all applicable Laws. (n) The Association must have prepared and delivered to the Escrow Holder, and the Agency must have approved: the UCC-1 Financing Statement to be filed by the Escrow Holder in the Office of the Secretary of State for the State of California, and (ii) UCC-1 Financing Statement Fixture Filing(the"Fixture Filing")to be recorded by the Escrow Holder in the Recorders Office. 2.6. The Association's Conditions Precedent to the Close of Escrow. The Association's obligation to Close the Escrow shall be conditioned upon the fulfillment of the following conditions precedent, all of which shall be satisfied, or waived in writing, prior to the Close of Escrow: (a) the Agency has accepted the condition of title of the Property and the legal description for the Property prior to the Close of Escrow. (b) the Agency shall not be in default of any material term of this Agreement to be performed by the Agency hereunder and each representation and warranty of the Agency made in this Agreement shall remain true and correct. (c) the Agency shall be satisfied with, or waive satisfaction of, each of the conditions precedent set forth in Section 2.5. I (d) the Agency shall have executed two (2) originals of this Agreement and one (1) original of the Assignment of Deposit Account, and shall have executed and acknowledged, where appropriate, one (1) original of the Notice of Agreement, in recordable form for the recordation by the Escrow Holder in the Recorder's Office one (1) business day after the Closing Date, and two (2) originals of the Security Agreement. The Escrow Holder shall be in receipt of the executed and/or acknowledged agreements provided for in this Section 2.6(d). (e) the Agency shall have deposited any other funds, monies, instruments, documents, agreements and/or certificates to be deposited by the Agency to the Escrow Holder in accordance with this Agreement. (f) the Lender shall have executed one (1) original of the Business Loan Agreement and two (2) originals of the Assignment of Deposit Account, and shall have delivered to the Escrow Holder each original and executed agreement. 13 P IAyeMUNgvds AvA eooNAgeMe Atotdwum ,,00tt,Am dWIM5-17-105B Auto Cmin-DFP Ayrcemml Eoc (g) the Lender must have deposited, or must be in a position to deposit, the Loan -- Proceeds to the Escrow Holder, as required by this Agreement. 2.7. Distribution of Agreements and Loan Proceeds after the Closing Date by the Escrow Holder. The Escrow Holder shall deliver to the Agency and to the Association the following instruments, documents, agreements, certification and statements, within three (3) business days following the Close of Escrow: (a) the Escrow Holder shall deliver to the Agency the following: (i)one(1) original of the Security Agreement, (ii) one (1) certified and conformed executed copy of the Notice of Agreement, as recorded, in the Recorder's Office, (iii) one (1) original of this Agreement, (iv) one (1) original of the Assignment of Deposit Account, (v) one (1) executed copy of the Note, (vi) one (1) executed copy of the Business Loan Agreement, (vii) one (1) executed original of the final and mutually executed closing statement prepared by the Escrow Holder in connection with this Escrow, (viii) one (1) certified copy of the UCC-1 Financing Statement from the Office of the California Secretary of State and one certified of the Fixture Filing from the Recorders Office, (ix) one (1) copy of all other instruments, agreements, documents, statements, or certificates prepared by the Escrow Holder in connection with this Escrow or in connection with the Close of Escrow. (b) the Escrow Holder shall deliver to the Association the following: (i) one (1) original of the Security Agreement, (ii) one (1) certified and conformed executed copy of the Notice of Agreement, as recorded, in the Recorder's Office, (iii) one (1) mutually executed original of this © Agreement, (iv) one (1) mutually executed copy of the Assignment of Deposit Account, (v) one (1) executed copy of the Note, (vi) one (1) executed original of the Business Loan Agreement, (vii) one (1) executed original of the final and mutually executed closing statement prepared by the Escrow Holder in connection with this Escrow, (viii) one (1) certified copy of the UCC-I Financing Statement from the Office of the California Secretary of State and one certified of the Fixture Filing from the Recorders Office, and (ix) one (1) copy of all other instruments, agreements, documents, statements,or certificates prepared by the Escrow Holder in connection with this Escrow or in connection with the Close of Escrow. (c) The Escrow Holder shall disburse the Loan Proceeds, or any portion thereof, to the Contractor, by wire transfer, as provided below: (i) The Escrow Holder shall wire transfer the Loan Proceeds to the Contractor one (1) business day after the Close of Escrow provided the Sign has been constructed in its entirety and has been approved by the Agency, by the City and by all other applicable Governmental Authorities. (ii) In the event that the Sign is partially completed on the Close of Escrow, and such partial completion has been accepted by the Agency, by the City and by all other applicable Governmental Authorities, the Escrow Holder shall disburse to the Contractor, by wire transfer, that portion of the Loan Proceeds, as instructed in writing by the Agency and by the Association,to pay for such partial construction. (iii) In the event that the Sign is partially completed on the Close of Escrow, and either the Agency and/or the Association fail or refuse to approval a partial disbursement 14 P WV kAgm&Aucnmemsftema Aiu memsUymmsM 10im➢ i7.w S6 AuoCanty-DPP Ap m.E¢ �^ of the Loan Proceeds to the Contractor on the Closing Date, the Escrow Holder shall hold the Loan Proceeds in the Escrow and shall make one (1) or more disbursement of the Loan Proceeds, or any portion thereof, to the Contactor, by wire transfer, after the Close of Escrow, as instructed by the Agency and by the Association, in writing. 2.8. Satisfaction of Conditions. Where satisfaction of any of the foregoing conditions requires action by the Agency or by the Association, each Party shall use its diligent best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of any of the foregoing conditions requires the approval of a Party, such approval shall be in such Party's sole and absolute discretion. Either Party may waive any of the conditions set forth in this Agreement, but any such waiver shall be effective only if contained in a writing signed by the applicable Party and delivered to the Escrow Holder. ARTICLE 3 DISBURSEMENT OF LOAN PROCEEDS 3.1 Allocation of Loan Proceeds and Disbursements. The Loan Proceeds shall be wire transferred from the Lender to the Escrow Holder and received by the Escrow Holder at least one (1) business day prior to the Close of Escrow. The Escrow Holder shall disburse the Loan Proceeds, or © any portion thereof, by wire transfer,to the Contractor, as follows: (a) The Escrow Holder shall wire transfer the Loan Proceeds to the Contractor one (1) business day after the Close of Escrow provided the Sign has been constructed in its entirety and has been approved by the Agency,by the City and by all other applicable Governmental Authorities. (b) In the event the Sign is partially completed on the Close of Escrow, and such partial completion has been accepted by the Agency, by the City and by all other applicable Governmental Authorities, the Escrow Holder shall disburse to the Contractor, by wire transfer, one (1) businecc day after the Close of Escrow, that portion of the Loan Proceeds, as instructed in writing by the Agency and by the Association,to pay for such partial construction of the Sign. (c) In the event the Sign is partially completed on the Close of Escrow, and either the Agency and/or the Association fail or refuse to approval a partial disbursement of the Loan Proceeds to the Contractor one (1) business day after the Closing Date, the Escrow Holder shall hold the Loan Proceeds in the Escrow and shall make one (1) or more disbursement of the Loan Proceeds, or any portion thereof, to the Contactor, by wire transfer, one (1) business day after the receipt by the Escrow Holder of a mutually executed instruction. 3.2 Use of Loan Proceeds. The Loan Proceeds shall be used by the Borrower to pay for the Purchase Price of the Sign. All Loan Proceeds received by the Borrower shall be held by the Borrower in trust and shall be applied solely for the purposes for which such Loan Proceeds have been © disbursed under the Documents. The Agency shall have no obligation to monitor or to verify the use or application of any Loan Proceeds disbursed by the Escrow Holder. 15 PUgmduUyeM,M�Wmm�sUgeMa A,uc�men�Mgntlf-Amend MIU5-17 IOSB U,1 C.,n DR Ag m 1 1dog [� 3.3 Additional Disbursement Requirements. Prior to one (1) or more disbursements by �✓ the Escrow Holder of the Loan Proceeds, or any portion thereof, as instructed in writing by the Agency and by the Association, after the Close of Escrow, the Association shall provide the Agency with such lien releases, receipts, invoices, certifications, and substantiating documentation as the Agency may require. If required by the Agency, at the time each request for a disbursement is submitted to the Escrow Holder, the Association shall deliver to the Agency a copy of the Cost Breakdown showing: (i)the percentage of completion and total amount which has been disbursed on account of each of the Line Items prior to such disbursement request, and (ii) the percentage of completion and total amount which has been disbursed and which is to be disbursed on account of each of the Line Items as of the date of such disbursement request, including the payments that are the subject of request. 3.4 Retention. At such time as the Escrow Holder has disbursed ninety percent (901/0) of the total Loan Proceeds allocated to those Line Items established to pay for the direct costs of completing the Project (the "Direct Construction Costs"), if applicable, the Association and the Agency shall instruct and cause the Escrow Holder to retain out of the undisbursed Loan Proceeds allocated to such Line Items a retention amount equal to ten percent (10%) of the total Loan Proceeds allocated for payment of the Direct Construction Costs (such amount retained by the Escrow Holder is referred to collectively as the "Retention Amount"). The Association and the Agency shall instruct and cause the Escrow Holder to disburse the Retention Amount upon the Agency's receipt and approval of the following, if specifically requested by the Agency: (i) a permanent and unconditional certificate of occupancy for the Project issued by the appropriate Governmental Authority, or other appropriate certificate that the Project has been completed, is approved by all Governmental © Authorities and is operational, (ii) an as-built survey of the Property prepared and certified by a licensed engineer or surveyor acceptable to the Agency, (iii) evidence that the Sign has been completed in accordance with the Plans, in compliance with the Laws, all Governmental Requirements and all other requirements of the Documents, and (iv) evidence that all applicable Governmental Permits have been issued in connection with the Sign. The Association and the Agency shall instruct and cause the Escrow Holder to release the portion of the Retention Amount attributable to a specific Line Item, provided that: (a) the Agency has received evidence acceptable to the Agency that the work which is the subject of such Line Item has been completed by the Association in accordance with the Plans, with the Laws, with the Governmental Requirements and all other requirements of the Documents, (b) the Agency has received evidence acceptable to the Agency that the work which is the subject of such Line Item has been completed free of all mechanic's lien claims, (c) the Lender has not declared an Event of Default to exist based on an uncured breach of any of the Loan Documents by the Borrower, the Agency has not declared an Event of Default under the Agency Documents, subject to any applicable cure period, and (d) the Agency has determined in its good faith business judgment that such release will not adversely affect the Project, the Property or the Agency's interests in Agency documents. 3.5 Deposit of Additional Funds by the Association. If the Agency at any time determines that the undisbursed Loan Proceeds are not sufficient to pay for all remaining costs, whether such deficiency results from changes in the Plans or any other cause, the Association shall deliver to the Agency an amount equal to such deficiency as determined by the Agency within ten (10) business days after the Agency's request for such funds. 3.6 Reliance by the Agency. The .Agency may conclusively presume that all requests, statements, information, certifications, and representations, whether written or oral, submitted or made 16 P\AgeMu\Agende Aou,WemdA,,, aAuah—.XA,—ts-Amend 2010951]-1058 Auto Cwta.DH Agrtemery doc by the Association, the Contractor, and the Architect, or any of such parties, or any of their respective agents, to the Agency in connection with the Documents are true and correct, and the Agency shall be entitled to rely thereon, without investigation or inquiry of any kind by the Agency, in requesting the disbursement by the Escrow Holder of the Loan Proceeds, or any portion thereof, and the taking or the refraining from taking any other action in connection with the Documents,or any one of them. 3.7 Storage of Materials. If (i) the Association requests disbursements from the Loan Proceeds to pay for the costs of any materials or supplies that have not yet been incorporated in the Project (collectively, the "Materials"), and (ii) such request is approved by the Agency, in its discretion, then the Association shall cause each disbursement request submitted to the Escrow Holder for such Materials to be accompanied by all of the following (each of which shall be acceptable to the Agency) if specifically requested by the Agency: (a) Evidence that the Materials are securely stored on the Property with adequate safeguards to prevent loss,theft or damage; (b) If the Agency has agreed to permit the Materials to be stored at an offsite location, (i)evidence that the Materials are securely stored and have been segregated at such offsite location with adequate safeguards, as required by the Agency, to prevent loss, theft, damage or commingling with other materials or property, and (ii)a written agreement by the supplier or other custodian of the Materials acknowledging the Agency's security interest in the Materials and agreeing that the Agency may enter on the property of such supplier or custodian at any reasonable time to © inspect or remove the Materials; (c) Evidence that at the time of the requested disbursement, the Materials will be subject to the first-priority lien of the Agency's security interest under the Agency Documents; (d) Evidence that the Materials are insured under policies of insurance as required by Section 4.13 below containing a lender's loss payable endorsement naming the Agency as loss payee and as an additional insured; and (e) Evidence that the Materials conform to the requirements of the Plans. Nothing contained in this Section constitutes or shall be construed as an agreement by the Agency to make any disbursements for the cost of the Materials that have not yet been incorporated into the Project, unless the Agency has otherwise agreed to do so in writing. 3.8 Reallocation of Line Items. The proceeds of the Loan allocated to each of the line items (the "Line Items") shown in the Cost Breakdown may not be reallocated to any other Line Item without the Agency's prior written approval. Without limiting the generality of the preceding sentence, if the Agency approves the reallocation of Loan Proceeds from one Line Item to any other Line Item, such reallocation shall be subject to the Association's satisfaction of the following conditions, in addition to such other conditions as may be required by the Agency in its sole and absolute discretion: (a) The Agency shall have received (i) a written request from the Association specifying (A) the amount to be reallocated, (B) the Line Item from which the funds are to be drawn (the"Source Line Item"), (C) the Line Item to which the funds are to be reallocated (the"Transfer Line Item"), and (ii)any supporting documents as may be required by the Agency; and 17 PNgetqulAyeMa An&AmemsWgcnda AttachmentM ml Amend 301MS-17-10$B AWOCmer-D""mml dx �* (b) The funds to be reallocated shall be necessary to cover a deficiency, as `•/ determined by the Agency, in the amount remaining undisbursed in the Transfer Line Item for completion of the work which is the subject of the Transfer Line Item; and (c) The Agency shall have determined that the amount remaining in the Source Line Item, after the requested reallocation of funds, is sufficient to pay for completion of the work that is the subject of the Source Line Item; and Nothing contained in the Documents, including this Agreement, shall be deemed or construed to require the Agency to approve the reallocation of any Loan Proceeds among the Line Items. 3.9 Agency's Approval of Construction Documents. If and to the extent that the Association has not delivered to the Agency and obtained the Agency's approval of the final Plans,the Project Contract, the Cost Breakdown, and the Govemmental Permits (including building permits) required for construction of the Project (such items are referred to collectively as the "Construction Documents"), or any of such Construction Documents, as of Effective Date of this Agreement, then within ten(10) days after the Agency's request therefor, the Association shall provide the Agency with complete Construction Documents, each of which shall be acceptable in form and substance to the Agency in its good faith business judgment. The ten (10) day period provided for in this Section 3.09 shall not be subject to extension as a result of any grace or cure period contained in any of the other Agency Documents. 3.10. Disbursement by Lender of Loan Proceeds. The Association shall require the Lender Q to disburse the Loan Proceeds to the Escrow Holder, no later than one (1) business day prior to the Close of Escrow,in the following manner: (a) If one (1) business day prior to the Close of Escrow the Project has been fully designed, constructed, developed, and completed by the Association, if all approvals from all Governmental Authorities have been obtained, and if all conditions precedent in this Agreement to the Close of Escrow have occurred or been waived, the Association shall instruct the Lender to disburse the amount of the Loan Proceeds incurred or paid by the Association to design, to construct,to develop and to complete the Project. Should the Project Costs be greater than the Loan Proceeds, the Association shall immediately pay to the Escrow Holder the difference between the Project Costs and the Loan Proceeds. (b) If one (1) business day prior to the Close of Escrow the Project has been partially designed, constructed, developed, completed by the Association, if all approvals from all Governmental Authorities have been obtained, and if all conditions precedent in this Agreement to the Close of Escrow have occurred or been waived,the Association shall instruct the Lender to disburse to the Escrow Holder from the Loan Proceeds, the amount of that portion of the Project Costs that have either been paid or incurred by or for the Association in connection with the Project. Should the Project Cost, at the time of the completion and the approval of the Project, be greater than the Loan Proceeds, the Association shall immediately pay to the Escrow Holder the difference between the Project Costs and the Loan Proceeds. 18 P UycMaz\AyeMa M6.m.\AytM.AnaIhmm¢\Aym A.Ind 20i0W5-17-1058 Aulu C.1c-DFV Ay .a .dog ARTICLE 4 ASSOCIATION'S COVENANTS AND AGENCY'S RIGHTS Association agrees that it shall comply with the following covenants and that the Agency shall have the following rights,privileges and remedies: 4.1 Commencement of Construction. The Association shall commence construction of the Project as soon as reasonably practicable after the Effective Date, and in any event within ten (10) calendar days after the Effective Date, and shall thereafter diligently prosecute construction in a good and workmanlike manner in accordance with the Plans. Without limiting the immediately preceding sentence, the Project shall incorporate all reasonable recommendations contained in any soil, engineering, or seismic report prepared by or for the benefit of the Association. The Association shall not commence any activity on the Property prior to the Effective Date which may result in any mechanic's lien or similar lien gaining priority over the lien of the Security Agreement. 4.2 Completion. The Association shall complete construction of the Project on or before the Completion Date. For purposes of this Section, the Association shall be deemed to have achieved completion of the Project when: (i)the appropriate Governmental Authorities have issued a final and unconditional certificate of occupancy for the Project, or other appropriate certificate, together with all other Governmental Permits that may be required in order to allow occupancy of the Project, (ii)the Project and all other onsite improvements, including driveways, lighting and landscaping, have been completed in accordance with the Plans, (iii)all utility services for the Project have been completed and are in full operation, (iv) all offsite improvements, including sidewalks, curbs, curb cuts, sewers, drainage facilities, and traffic controls, have been completed in accordance with the requirements of all Governmental Authorities, (v) the conditions to the release of the Retention Amount under the Agency Documents have been satisfied, and (vi) the Agency's receipt and approval of the following, if specifically requested by the Agency: (a) a permanent and unconditional certificate of occupancy for the Project issued by the appropriate Governmental Authority, (b)an as-built survey of the Property prepared and certified by a licensed engineer or surveyor acceptable to the Agency, and (c)evidence that the Project has been completed in accordance with the Plans, the Laws, all Governmental Requirements, and the Documents,. 4.3 Permits and Notices. The Association shall deliver to the Agency complete and accurate copies of all Governmental Permits and all material notices, requests, and demands received by Association from the Contractor, from any Governmental Authority, or from any of the parties to the Project Contracts, promptly upon the Association's receipt of such permits, notices,or other items. 4.4 Bonds. If specifically required by the Agency prior to the Effective Date, the Association, at its expense, shall obtain a labor and materials payment bond and a performance bond for the Contractor naming the Agency as a co-obligee. Such bonds: (i) shall be satisfactory to the Agency in form, substance, and amount, and (ii) shall be written by a corporate surety acceptable to the Agency. Prior to the commencement of construction of the Project, the Association shall cause the Construction Contract to be filed and shall cause the labor and materials payment bond to be recorded in the Recorder's Office. `.r 19 F Uye1WYNymdc MxAmenisUµadv Al.h.tMUtl Am.d 201M5.17.I0 58♦ C -DPAgamM.drc Q 4.5 Change Orders. The Association shall not alter, amend, modify or supplement any construction document, including the Plans and the Construction Contract, except pursuant to a Change Order that complies with the requirements of this Agreement. All Change Orders: (i)shall be in writing, numbered in sequence, dated, and signed by the Association and the Contractor, (ii) shall comply with all Governmental Requirements, and (iii) shall contain a statement of(a)any increase or decrease in the Cost Breakdown resulting from the Change Order, and (b)the aggregate amount of all increases and decreases in the Cost Breakdown as a result of the current Change Order and all previous Change Orders. All Change Orders shall be submitted to the Agency within five (5) business days after execution of the Change Order by the Association and shall be subject to the Agency's review and approval. Upon the Agency's review of the executed Change Order, the Agency shall have the right to require the Association to deposit additional funds to the Escrow Holder pursuant to this Agreement. Upon the Agency's request, the Association shall provide the Agency with evidence that all Change Orders have been approved by all Persons whose approval the Agency determines is necessary or appropriate under applicable Governmental Requirements, any recorded document affecting the Property, the Project Contract, the surety bond or other any document relating to the Sign, the Project and/or the Property. The Agency shall use its good faith efforts to approve or disapprove all Change Orders within a reasonable period of time after the Agency's receipt of such Change Order and any additional information requested by the Agency under this Section(which period of time shall not be less than ten (10) business days); provided, however, that the Agency shall have the right to analyze and to consult with construction or other experts with respect to the effect of any Change Order, and such ten-day period shall be extended for a reasonable time if required by the Agency in connection with any such analysis or consultation. Within three (3) business days after the Agency's © request following the Agency's receipt of any Change Order, the Association shall deliver to the Agency such plans, specifications, drawings, and other supporting or explanatory information as the Agency may reasonably designate in order to enable the Agency to evaluate any Change Order. The Agency shall have no duty to approve or disapprove any Change Order unless the Agency has received all information required by this Section together with evidence that all other approvals of the Change Order requested by the Agency pursuant to this Section have been given. If the Agency determines that any Change Order may result in an increase in the cost of the Project as shown in the Cost Breakdown, within ten (10) business days after the Agency's request, the Association shall deliver to the Escrow Holder an amount equal to such increase, which amount shall be paid by the Association to the Escrow Holder to pay for the increase in the cost of the Project. 4.6 Project Contracts. If specifically required by the Agency with respect to any Project Contract or Project Contractor, the Association shall obtain the Agency's prior written approval of such Project Contract and Project Contractor. If the Agency has not specifically requested the right to approve a Project Contract or Project Contractor in advance, the Association shall submit the Project Contract and the name of the Project Contractor to the Agency, upon the Agency's request, within two (2) business days after the later of such request or the Association's execution of the Project Contract, and each such Project Contract (including the Project Contractor named therein) shall be subject to the Agency's approval. All Project Contracts that are executed by the Association and that do not require the Agency's prior written approval shall contain a provision that the Project Contract is subject to and conditioned on the approval by the Agency. © 4.7 Construction Information. From time to time and within ten (10) business days after the Agency's request, the Association shall furnish the Agency with the following information: (i) a complete, accurate, and current list stating (a)the name, address, and telephone number of each 20 P'Agenda Agenda MaOmemAAgeMa ARUhmenlMU 1,- cnd 2010105.I7.10 SB. %o Cella-DFP Aye .nt doc p contractor, subcontractor and material supplier retained by the Association or by Contractor in III connection with the construction of the Project, and (b)the total amount payable by the Association or Contractor under each Project Contract and each subcontract executed by the Contractor (the "Subcontracts") and the amount which has been paid under each such contract as of the date of such list, (ii) complete and accurate copies of all existing Project Contracts and Subcontracts, (iii) a statement showing any revisions to the Cost Breakdown and any amounts due and unpaid for each Line Item in the Cost Breakdown, as revised, and (iv) a construction progress schedule showing the projected sequence and completion date for all uncompleted work on the Project. i 4.8 Preliminary Notices. The Association shall deliver complete and accurate copies of all preliminary notices received by the Association, including all preliminary notices delivered to the Property or addressed to the Association, to the Agency, or to the Escrow Holder promptly upon the i Association's receipt of such preliminary notices. 4.9 Inspection. The Agency shall have the right at all reasonable times to enter upon and ' inspect the Project and/or the Property and to contact any Person supplying labor, materials, services, or equipment to the Project and/or to the Property to verify information disclosed by the Association or the Contractor to the Agency, to obtain information relating to the Project and/or to the Property, or for any other reasonable purpose relating to the Agency Documents, and the Association authorizes each such Person to provide such information to the Agency. j 4.10 Right to Stop Work If the Agency determines that any portion of the Project does not conform in any material respect to the Plans, is not in compliance with the Laws or the requirements of the Documents, or any one of them, the Agency shall have the right: (i)to require the Association and the Contractor to stop work on such portion of the Project and to correct the non-conforming matter as soon as reasonably practicable, and (ii)to instruct and to cause the Escrow Holder to withhold any or all further disbursements from the Loan Proceeds relating to such portion of the Project until the matter has been corrected. No such action by the Agency shall affect the Association's obligation to complete the Project on or before the Completion Date. The Association, at its expense, shall take all actions that may be reasonably necessary to correct any non-conforming matter within the time period reasonably specified by the Agency or, if no time period is specified,as soon as reasonably practicable. 4.11 Lien Claims, Stop Notices. The Association shall promptly pay and discharge all claims and liens for labor, services, materials and equipment furnished in connection with the construction of the Project and/or the development of the Property. The Escrow Holder shall have the right to withhold the Loan Proceeds pursuant to any stop notice or bonded stop notice that is served on the Escrow Holder in connection with the Loan Proceeds, on the Agency in connection with the Agency Documents and/or the Project Contracts. Within ten (10) days after service of any such stop notice on the Agency,on the Escrow Holder or the recordation of any mechanic's lien or other similar i lien against the Property, then the Association shall do one of the following: (i) shall cause the claim evidenced by the stop notice or lien to be paid in full out of the Association's own funds and not out of the Loan Proceeds and thereby cause such stop notice or lien to be released and discharged, (ii) shall deliver to the Agency or record, as appropriate, a surety bond complying with all applicable Governmental Requirements which is sufficient to release such stop notice or lien, or (iii) shall make such other arrangements as may be acceptable to the Agency for the payment of the claim evidenced by the stop notice or lien and the protection of the Agency and the Property from the effect of the stop v notice or lien. 21 P wHeWa"yMa nnacM1 ns VWA AlachmemsWp TsAmend 201=5.17-10 s9 Arno Cave.DR A®eanem dM 4.12 Conditional Purchases. The Association shall not obtain any materials, furnishings, fixtures, equipment, or items of personal property for or in connection with the development, use, or operation of Sign, the Project and/or the Property under any security agreement, lease, conditional sale agreement, or other agreement by which any Person retains a security interest in or right to remove or repossess such property after incorporation in or delivery to the Sign, to the Project and/or to the Property. 4.13 Insurance. The Association at its expense shall at all times maintain in full force: (i) builder's all-risk insurance covering the Project and all materials stored on the Property, together with such endorsements as the Agency may require, including vandalism, malicious mischief, earthquake, and flood coverage, (ii) upon completion of the Project, fire and extended coverage all risk insurance covering the Project and its contents and the Property, together with such endorsements as the Agency may require, including vandalism, malicious mischief, earthquake, and flood coverage, (iii) commercial general liability insurance, and (iv) such other types of insurance as may from time to time be required by the Agency, including business interruption insurance, rental loss insurance, construction defects insurance, and workers' compensation insurance. The policies of insurance described in this Section, including the amounts, form, coverage, deductibles, endorsements, insurer and loss payable and cancellation provisions, shall be acceptable to the Agency. The Agency's approval of any insurance policy under this Section shall not constitute a representation by the Agency as to the solvency of any insurer or the sufficiency of any insurance policy. The Association shall also comply, without limitation, with the insurance provisions in the Security Agreement. © 4.14 ]Intentionally Omitted] 4.15 Books and Records. The Association shall keep and maintain, and shall cause the Contractor to keep and maintain, complete and accurate books and records relating to the design, planning, construction, development, use, operation, or maintenance of the Project and/or of the Property at their respective principal places of business, and the Association shall not remove its books and records from such location without the Agency's prior written consent. The Agency shall have access to such books and records at all reasonable times for the purposes of examination, inspection, verification, copying and for any other reasonable purpose. Such books and records shall contain a complete and accurate record of all costs incurred and payments made in connection with the development, use, and operation of the Project and/or of the Property and shall include all Plans, Governmental Permits, Project Contracts, accounting information, and other plans, drawings, and specifications relating to the Project and/or to the Property. The Association authorizes the Agency, at its option but without any obligation of any kind to do so, to respond to and to answer, in such manner and to such extent as the Agency determines to be appropriate, requests for information regarding the Project and/or the Property, including information concerning the status of the Loan and disbursements thereunder and information concerning the Association and its relationship with the Agency, if such requests are made by the Contractor or by other Project Contractors, by the Architect, by the tenants under any Leases, if any, by the sureties under any bonds relating to the Property, or by any other Person supplying labor, material, services, or equipment to the Property. 1 4.16 No Duty to Inspect. The Agency shall have no obligation to supervise or to inspect the development of the Project and/or of the Property or to examine any of the Association's or the ® Contractor's respective books and records relating to the Project and/or to the Property. All such inspections and examinations by the Agency, including the Agency's review and approval of the Plans, 22 P Ugcwms ge Mutl MsUgeM M�g, tis nd 2GIM5-17-I4 SS toC -DR Agee dx the Construction Contract, the Cost Breakdown, Project the Contracts, and the Change Orders, shall be '..r for the Agency's sole benefit and not for the benefit of the Association, of the Contractor, of any Person supplying labor, materials, services, or equipment to the Property, or of any other Person. No inspection of the Project by the Agency shall constitute or be construed as a representation or determination by the Agency that the Project complies with the Plans, the Laws, the Documents, the Governmental Permits, or the Governmental Requirements or that the Project is or will be free from defective work or materials. 4.17 No Liability by the Agency. The Association shall have the sole responsibility for all aspects of the Association's business and the development of the Project and/or of the Property, including: (i) the quality, suitability and adequacy of the Plans and all Change Orders, (ii)the suitability, adequacy, and accuracy of the Cost Breakdown, (iii)the inspection and supervision of construction of the Project, (iv)the qualifications, financial condition and performance of all architects, engineers, contractors, subcontractors, material suppliers, consultants, sureties, bonding companies, property managers and other Persons supplying labor, materials, services, or equipment to the Property, including the Contractor and other Project Contractors and the Architect, (v) the accuracy of all applications for disbursement of the Loan Proceeds to the Escrow Holder, (vi) the proper application of all disbursements of the Loan Proceeds to the Escrow Holder, (vii)the suitability, adequacy, enforceability, and validity of the Construction Contract and all other Project Contracts, and (viii)the conformance of the Project with the Plans, the Laws, all Change Orders, the Documents, or any one of them, the Governmental Permits, and the Governmental Requirements and the existence or non-existence of any defective work or materials in the Project. The Association agrees that the Agency shall not be directly or indirectly liable or responsible in any way or under any circumstances Q to the Association or to any other Person for any or all of the matters described in clauses (i) through (viii) of this Section, and the Agency owes no duty of care to protect the Association against negligent, faulty, inadequate or defective workmanship or materials in connection with the construction of the Project. 4.18 Notice of Completion. The Association shall sign and record a notice of completion for the Project in the Recorder's Office as soon as permitted under applicable Law. Upon the Agency's request, the Association (i) shall sign and record a notice of cessation of labor and such other similar notices or documents as the Agency may reasonably require to protect its interest in connection with the Agency Documents, and (ii) shall provide the Agency with a copy of all notices recorded pursuant to this Section certified by the Recorder's Office. 4.19 Surveys; Plans. If specifically required by the Agency, upon the Agency's request, the Association shall furnish the Agency with: (i) a survey showing the legal description, boundary lines, and total area of the Property, (ii)upon completion of the Project or the completion of foundations for the Project, a survey showing that the Project or such foundations, whichever is applicable, (a) are located entirely within the boundary lines of the Property, (b) do not encroach on any easements or rights of way, (c) do not violate any covenants, conditions or restrictions applicable to the Property, and (d) do not violate any Governmental Requirements; and (iii)at any time following commencement of the construction of the Project (including upon completion of the Project), complete and accurate as- built plans and specifications for the Project which have been approved by all Persons identified in this Agreement. All surveys furnished by the Association shall be prepared and certified by a licensed engineer or surveyor acceptable to the Agency. 23 P Au MF 8wp is-Amend 20 1 M5-17.10 se/ tGCana.DPAy mm Eoc 4.20 Signs: Publicity. At the Agency's request, the Association shall install such signs on the Property as the Agency may reasonably designate identifying the Agency. The Association shall obtain for the Agency's benefit all permits and approvals, if any, required for the installation of such signs. Such signs shall be installed at such locations as reasonably may be designated by the Agency, provided that such signs do not unreasonably interfere with the construction of the Project. The Association shall take such actions as may be necessary or appropriate to protect such signs from removal, damage or destruction. The Agency shall have the right to prepare and release a general announcement relating to the construction of the Project and to the financial arrangements of the Project in such form as the Agency considers newsworthy or of public interest. Such announcement may be released to news media and other sources of public communication, may include the principal amount of the Loan, the Association's name, and a general description of the Property, but such announcement shall not include any confidential information concerning the Project, the Property, the Loan, the Association or any of its principals. 4.21 Compliance with Applicable Laws. The Association shall at all times comply with and keep in effect all Governmental Permits. The Association shall at all times cause the Project, the Property and all advertising displayed at the Property, to comply with: (i) all Governmental Requirements, (ii) the Laws, (iii) all requirements and orders of all judicial authorities that have jurisdiction over the Project and/or over the Property, and (iv)all covenants, conditions, restrictions and other matters of record affecting the Property. 4.22 Governmental Agencies. The Association shall at all times comply with: (i)all O Governmental Requirements and all Governmental Permits, (ii) all commitments and agreements between the Association and all Governmental Authorities assisting in the construction, the sale, the lease or the financing of the Project, and (iii) the terns of all applicable Governmental Requirements governing such assistance. 4.23 Taxes. The Association shall pay or cause to be paid when due all foreign, federal, state, and local taxes, assessments, and charges of all Governmental Authorities now or hereafter levied on the Association or the Property, including all income, franchise, personal property, real property, excise, withholding, sales and use taxes. The.Association shall have the right to contest payment of any tax, assessment, or charge described in this Section, provided that: (i)appropriate contest proceedings are promptly and in good faith commenced and diligently prosecuted by the Association, and (ii) a bond is posted or other appropriate action is taken to prevent such tax, assessment, or charge from becoming a lien on the Property or the other assets of the Association. 4.24 Cooperation. The Association shall at all times cooperate with the Agency in order to ensure that the Project and/or the Property is developed in accordance with the requirements of the Documents. Upon the Agency's request, the Association: (i) shall execute such further documents and instruments and perform such further acts as may be required by the Agency to carry out the terms and conditions of the Documents, and (ii) shall assign to the Agency as additional collateral for the performance by the Association of the Association's Obligations, such further rights, privileges, permits, licenses, approvals, contracts, agreements, reports, and other documents relating to the Property as the Agency may require. i © 4.25 Notice of Adverse Changes. The Association shall immediately notify the Agency in s writing of the following matters, if and to the extent that the Association has knowledge of such matters: (i) any matter or occurrence causing an increase in the total cost of development of the 24 Pwkmasswy.m.nnacM1memsUeem.n�uummuw�n,-a.ma zaimos-iz-io se auo cemu-on A�yee .e Project and/or of the Property as shown in the Cost Breakdown, (ii) any matter or occurrence causing a material delay or interruption in the development of the Project and/or of the Property, (iii)any material adverse change in the financial condition of the Association, any of the guarantors, if any, or the Contractor, (iv) any material adverse change in the Project and/or in the Property, and (v) any Event of Default under the Documents. Within three (3) business days after the Agency's request, the Association shall deliver to the Agency such further information as the Agency may request that is available to Association concerning any matter described in any notice provided to the Agency under this Section. 4.26. Maintenance of the Property. (a) Commencing on the Effective Date until the Maturity Date of the Note, as such Note may be extended, renewed, replaced, substituted, modified and/or restated from time to time, the Association covenants and agrees for itself, its successors and assigns, to maintain the Property consistent with the maintenance level of a first class auto center commercial sign or as shall be reasonably required by other auto center commercial signs in the metropolitan areas of the City, as approved by the Agency, in its sole discretion, and in compliance with all Laws. The Association covenants and agrees that for itself, its successors and assigns, to maintain the Property in a good condition free from any accumulation of debris or waste material, subject to normal construction job- site conditions, and shall maintain in a neat, orderly, healthy and good condition the landscaping required to be planted in accordance with the Agreement, the scope of development and/or the schedule of performance, during and after the completion of the Project. In the event the Association, or its successors or assigns, fails to perform the maintenance as required herein, the Agency shall have Q the right, but not the obligation, to enter the Property and undertake, such maintenance activities. In such event, the Association (or such successor as may then own the Property) shall reimburse the Agency for all reasonable sums incurred by it for such maintenance activities. The covenant of this Section shall run with the land. (b) Commencing on the Effective Date until the Maturity Date of the Note, as such Note may be extended, renewed, replaced, substituted, modified and/or restated from time to time, the Association, for itself, its successors and assigns, hereby covenants and agrees that: (1) The Property shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. In the event that at any time following the Effective Date of this Agreement there is an occurrence of an adverse condition on any area of the Property in contravention of the general maintenance standard described above (a "Maintenance Deficiency"), the Agency shall notify the Association in writing of the Maintenance Deficiency and give the Association thirty (30) calendar days from receipt of such notice to cure the Maintenance Deficiency as identified in the notice. In the event the Association fails to cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may conduct a public hearing following transmittal of written notice thereof to the Association ten (10) calendar days prior to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency exists and whether the Association has failed to comply with the provision of this Section 4.26(b)(1). If upon the conclusion of a public hearing, the Agency makes a finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the general maintenance standard, as described above, thereafter, the Agency shall have the right to enter the Property and to 25 P WVMmUgcnda AaaOmemsNA,Ma AITrthman[Mgrmts-Amend 201 MS.17.10 SB A10 Q ,-DFP Ay w.dw perform all acts necessary to cure the Maintenance Deficiency, or to take other action at law or �► equity that the Agency may then have in order to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a Maintenance Deficiency on the Property authorized by this Section shall become a lien on the Property. If the amount of the lien is not paid within thirty (30) calendar days after written demand for payment by the Agency to the Association, the Agency shall have the right to enforce the lien in the manner as provided in Section 4.26(b)(3). (2) Graffiti, as this term is defined in Government Code Section 38772, which has been applied to any exterior surface of a structure or improvement on the Property which is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Association by either painting over the evidence of such vandalism with a paint which has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water as appropriate. In the event that such graffiti may become visible from an adjacent or contiguous public right-of-way but is not removed within seventy-two (72) hours following the time of such application, the Agency shall have the right to enter the Property and remove the graffiti without notice to the Association. Any sum expended by the Agency for the removal of such graffiti from the Property authorized by this Section 4.26(b)(2) shall become a lien on the Property. If the amount of the lien is not paid within thirty (30) calendar days after written demand for payment by the Agency to the Association, the Agency shall have the right to enforce its lien in the manner as provided in Section 4.26(b)(3). (3) The Association hereto further mutually understands and agrees that the rights conferred upon the Agency under this Section 4.26 expressly include the power to establish and to enforce a lien or other encumbrance against the Property, or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c in the amount reasonably necessary to restore the Property to the maintenance standard required under Section 4.26(b)(1) or Section 4.26(b)(2), including attorneys' fees and costs of the Agency associated with the abatement of the Maintenance Deficiency or removal of graffiti and the collection of the costs of the Agency in connection with such action. The provisions of this Section 4.26 shall be a covenant running with the land, and shall be enforceable by the Agency. Nothing in the foregoing provisions of this Section 4.26 shall be deemed to preclude the Association from making any alteration, addition or other change to any structure or improvement or landscaping on the Property, provided that such changes comply with applicable zoning and building regulations of the City. 4.27 Obligation to Refrain from Discrimination. The Association covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property, or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of age, disability, sex, marital status, race, color, religion, creed, national origin or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof-, nor shall the Association, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the 26 P Wge nU pM A�m MgmaAtu mem,Wgmu Amend 30IM5-17-10 Sg Auto Demo.DR AWm Jx selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees of the Property,or any part thereof. The covenant of this Section shall run with the land in perpetuity. 4.28. Form of Nondiscrimination and Nonseare¢ation Clauses. The Association covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property, or any part thereof, that the Association, such successors and such assigns, shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, on the basis of age, disability, sex, marital status, race, color, religion, creed, ancestry or national origin of any person, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436. All deeds, leases or contracts pertaining thereto shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of age, disability, race, color, creed, religion, sex, marital status, national origin, or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the _! grantee or any person claiming under or through it, establish or permit any such practice or practices of © discrimination or segregation with reference to the selection, location,,number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." (b) In leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and !, subject to the following conditions: That there shall be no discrimination against or segregation of any ! person or group of persons, on account of age, disability, race, color, creed, religion, sex, marital status, national origin, or ancestry, including all other protected classes of persons and groups of 1 persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of I. discrimination or segregation with reference to the selection, location, number, use, or occupancy, of I tenants lessees, sublessee, subtenants, or vendees in the premises herein leased." t (c) In contracts: "There shall be no discrimination against or segregation of any f person or group of persons on account of age, disability, race, color, creed, religion, sex, marital status, national origin, or ancestry, including all other protected classes of persons and groups of persons as may be considered as such by any local, State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or ? © any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the premises herein transferred." The foregoing 27 P.AgeM vWa Atlaehmen1MgeMa AttxhmemaAg/ An 20t=5.11-I0 SB Amu Cwm -DR Ap Mm.tloc provision shall be binding upon and shall obligate the contracting party or parties and any ♦ / subcontracting party or parties, or other transferees under the instrument. The covenant of this Section 4.04 shall run with the land in perpetuity. ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS 5.1 Representations, Warranties and Covenants of the Agency. (a) Representations, Warranties and Covenants by the Agency. The Agency hereby makes the following representations, warranties and covenants and acknowledges that the execution and performance of this Agreement by the Association has been made in material reliance by the Association on such representations, warranties and covenants: (1) Warranties True. Each and every undertaking and obligation of the Agency under this Agreement shall be performed by the Agency timely when due; and that all representations and warranties of the Agency under this Agreement shall be true in all material respects at the Closing as though they were made at the time of Closing. (2) Due Oreanization. The Agency is a community redevelopment agency, duly formed and operating under the laws of California. The Agency has the legal power, right and authority to enter into this Agreement, including the exhibits thereto, and to execute the O instruments, documents, and agreements referenced herein, and to consummate the transactions i contemplated hereby. I (3) Requisite Action. The Agency has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement, including the exhibits thereto, and the instruments, documents and agreements referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (4) Enforceabiliri. The persons executing any instruments for or on behalf of the Agency have been authorized to act on behalf of the Agency and that this Agreement is valid and enforceable against the Agency in accordance with its terns and each instrument to be executed by the Agency pursuant hereto or in connection therewith will, when executed, be valid and enforceable against the Agency in accordance with its terms. No approval, consent, 3. order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by the j Agency. If the Agency becomes aware of any act or circumstance which would change or render incorrect, in whole or in part, any representation or warranty made by the Agency under this Agreement whether as of the date given or any time thereafter through the Closing Date and whether or not such representation or warranty was based upon the Agency's knowledge and/or belief as of a certain date,the Agency will give immediate written notice of such changed fact or circumstance to the �j Association, but such notice shall not release the Agency of its liabilities or obligations with respect thereto. 28 P UyentluUyeMa MaNmwsUymtla A..hm.,ogm A.d 201 M5-1]-105B Amo C.-O A®Ym. All representations and warranties contained in this Section 5.1(a) are true and correct on the date hereof and on the Closing Date and the Agency's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement shall survive the execution and delivery of this Agreement and the Close of Escrow. (b) Representations. Warranties and Covenants by the Association. The Association hereby makes the following representations, warranties and covenants and acknowledges that the execution of this Agreement by the Agency has been made in material reliance by the Agency on such representations, warranties and covenants: (1) Warranties True. Each and every undertaking and obligation of the Association under this Agreement shall be performed by the Association timely when due; and that all representations and warranties of the Association under this Agreement and its exhibits shall be true in all material respects at the Closing as though they were made at the time of Closing. (2) Due Organization. The Association is a duly organized and validly existing California corporation. The Association has the legal right, power and authority to enter into this Agreement, including the exhibits thereto, and the instruments, documents and agreements referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement, including the exhibits thereto, and the instruments, documents and agreements referenced herein on behalf of the Association hereby represent and © warrant that such persons have the power, right and authority to bind the Association. (3) Requisite Action. The Association has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement, including the exhibits thereto, and the instruments, documents and agreements referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required. (4) Binding Agreement. This Agreement, including there exhibits thereto, is, and all agreements, instruments and documents to be executed by the Association pursuant to this Agreement shall be, duly executed by and are or shall be valid and legally binding upon the Association and enforceable in accordance with their respective terms. (5) No Breach. Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument or other obligation to which the Association is a party or by which the Association may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to the Association, to the Project and/or to the Property. (6) Title. The City owns and retains a right-of-way that constitutes the Property. The City has granted and transferred to the Association rights pursuant to that certain License Agreement for the installation and operation of a reader board sign. The legal description for the Property is true and correct and is attached hereto as Exhibit "A" to this Agreement. 29 P1 Pnd&s�Fy AnaNmemsS gy AttmhmmisUgm AmeW$0101051]10SBAmo Cm1a DPPAvm midm /^ (7) No Litigation. There are no pending or, to the best of the Association's v knowledge, threatened claims, actions, allegations or lawsuits of any kind, whether for personal injury, property damage, property taxes or otherwise, that could materially and adversely affect the value or use of the Property or prohibit the construction and development of the Project at the Property, nor to the best of the Association's knowledge, is there any governmental investigation of any type or nature pending or threatened against or relating to the Project and/or to the Property or the transactions contemplated hereby. (8) Operation and Condition Pending Closing. Commencing on the Effective Date of this Agreement through and including the Term, the Association will continue to manage, to operate and to maintain the Property in a first class commercial condition. (9) Governmental Permits and Entitlements. The Association shall obtain all Governmental Permits and entitlements from the Governmental Authorities, at its sole cost and expenses, prior to the Close of Escrow. (10) Loan Proceeds. The Association shall use the Loan Proceeds to remove the existing sign at or adjacent to the Property, to design, to construct, to develop, to complete and to purchase the Project. At the instruction of the Association to the Lender, the Loan Proceeds shall be delivered to the Escrow Holder no later than one (1) business day prior to the Close of Escrow. In the event the Project Costs are greater than the Loan Proceeds, the © Association shall immediately pay to the Escrow Holder the difference between the Project Costs and the Loan Proceeds. (11) Plans. The Plans have been approved, or, prior to the commencement of the construction of the Project by the Association, the Plans shall be approved by (i)the Association, (ii) Contractor, (iii) the Agency, (iv) the City, and by (v) all other Persons whose approval is required under all Governmental Requirements, any recorded document affecting the Property,the Project Contracts, surety bond, or other agreement relating to the Property. (12) Compliance with the Applicable Laws. The Plans, the removal of the existing sign from the Property, the design, the construction, the completion, the use, the operation, the maintenance and the Advertisement by the Association, at, relating to, or in connection with the Project shall comply with (i) all Governmental Requirements, (ii) all Governmental Permits, (iii) all applicable Laws, and (iv) all covenants, conditions, restrictions and matters of record affecting the Property. (13) Ownership Of The Sign. Upon the Completion Date and continuing thereafter for the Tenn, the Association shall own the Sign free and clean of any mechanic's liens, encumbrances, security interests, mortgages, deeds of trust (except for the perfected security interest created in the Security Agreement encumbering the Sign), adverse interests or other liens of any nature whatsoever. (14) Fee. Commencing on the first day of the term of the Note and monthly thereafter for the remaining Term, as extended from time to time, the Association shall pay the Fee to the Agency. 30 P UApndwAgemla AnaduncrosUgenda AdmchmmOUy(mts'Amend 201 MS-Il-10 SB Amo CwYa-0W A®ancY.doc (15) Agency Advertisement. From the Effective Date of this Agreement through and including the Term, as extended from time to time, the Agency shall have the right, title, interest and license to use the Sign to display the Agency Advertisement, at no cost or charge to the Agency. All representations and warranties contained in this Section 5.1(b)(2) are true and correct on the date hereof and on the Closing Date and the Association's liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. ARTICLE 6 TERM, FEE PAYMENT AND AGENCY LICENSE 6.1 Term. The Term of this Agreement shall commence on the Effective Date and terminate on the Maturity Date of the Note, as extended, renewed, replaced, substituted, modified and/or restated from time to time, unless sooner terminated under this Agreement. 6.2 Sien Installation. (a) The Association agrees to install and to maintain in good condition, at its sole cost and expense, the Sign from the Close of Escrow for the remaining Term, visible to motorists on I- 215, as approved by the Agency, by the City and by other applicable Governmental Authorities, in their sole discretion, and in compliance with all applicable Governmental Permits and all applicable Governmental Requirements. (b) The Association represents and warrants to the Agency that: (i) the removal of the existing sign from the Property, the design of the Sign, the installation, the construction, the completion, the final approval, the maintenance, the use and the operation of the Sign shall comply with all applicable Governmental Permits, with all applicable Governmental Requirements and as required by all applicable Governmental Authorities, from the Effective Date of this Agreement through the remaining Term, and (ii) the content and the display of all messages by the Association on the Sign must be approved by the Agency and by the City, from time to time, and must comply with all applicable Governmental Permits, with all applicable Governmental Requirements and as required by all other applicable Governmental Authorities, from the Effective Date of this Agreement through the remaining Tenn. (c) The Agency and the City shall have no responsibility whatsoever, without limitation, for the selection of the Contractor, nor any responsibility that the finished Sign, as approved by the Association, by the Agency, by the City and/or by all other applicable Governmental Authorities, complies with the Plans, with the applicable Governmental Permits and with all applicable Governmental Requirements. 6.3 Use by the Agency of the Sign. From the Effective Date of this Agreement through the remaining Term,the Association shall permit the Agency to use the Sign, in the following manner: (a) The Agency shall be permitted the right to use the Sign for a minimum of six (6) minutes per every hour of airtime, or as required by applicable Governmental Permits and applicable 31 P�p�m�V�Aft�m��g�aMt�h�m$�"�AmW20lM5-17 I OSB�WCWa-DPA�� i Requirements, whichever allows the greater usage per eve ry hour of airtime, without any fees, costs or charges to the Agency. (b) The Agency may use its allotment of time for various community-oriented messages, information announcements, and to promote the overall positive image of the City, with the exception of any"direct competitors"of the Association. (c) In the event the Agency does not have a sufficient number of community- oriented announcements, informational messages, or positive image advertisements to use the I Agency's entire minutes of time allotted, the Agency may, at its option and sole discretion, relinquish its rights to any or all of the unused portion of the Agency's allocated time to the Association for its usage as the Association deems fit and proper provided such usage by the Association shall comply with all applicable Governmental Permits and all Applicable Requirements. The Agency will not sell or otherwise allow any of its allotted time to be used by any other Person without the prior written consent of the Association which consent may be given or withheld in the reasonable discretion of the Association. (d) All uses of the Sign by the Agency will be submitted by the Agency to the Association. The Agency may submit its messages and announcements to the Association, or designee, for re-programming of the sign, as necessary, without any cost, charge or fee to the Agency. 6.4 Fee. Commencing on the first day of the term of the Note and monthly thereafter for the remaining Term, the Association shall pay the Fee to the Agency at the address provided for in Section 8.9 of this Agreement. ARTICLE 7 DEFAULT AND REMEDIES 7.1 Events of Default. The Agency, at its option, may declare the Association to be in default under this Agreement and the other Agency Documents upon the occurrence of one(1) or more of the following events that constitute an"Event of Default": (a) The failure by the Association to pay the Fee or to pay any monetary obligation under the Agency Documents when due; provided, however, the Association shall have ten (10) calendar days to cure any monetary default, or the failure by the Borrower to pay any monetary obligations under the Loan Documents, subject to any applicable cure period; or (b) The failure by the Association to perform or to observe any non-monetary obligation under the Agency Documents when due, where such failure continues for thirty (30) calendar days after written notice thereof from the Agency to the Association; provided, however, if the nature of such default is such that the same cannot reasonably be cured within a thirty (30)calendar day period, the Association shall not be deemed in default under the Agency Documents if the Association shall commence such cure within such thirty (30) calendar day period and shall thereafter diligently pursue such cure to completion. Such default must be cured by the Association no later than © sixty (60) calendar days after the date that the written notice from the Agency has been delivered and has been received by the Association; or 32 P wpWnU ge &AltltBmpMSUVe AerM1iwntlAgmisAmod MIN5-17-105BA w a.DPP AWttm tErc © (c) The failure by the Borrower to perform or to observe any non-monetary obligation under the Loan Documents when due, subject to any applicable cure periods; or (d) Any representation or warranty made by the Borrower or by the Association in the Documents,or any one of them, is false or misleading when made; or (e) The transfer, the conveyance, the granting of a deed of trust, mortgage, security encumbrance or other lien b the City in connection with the Property, or the interest assignment, e y Y g transfer, the conveyance, the granting of a deed of trust, mortgage, security interest, assignment, encumbrance or other lien by the Association affecting, in connection with or relating to the Sign. (f) Any default under the remaining Documents, or any one of them, subject to any applicable cure period; or (g) If construction of the Project is discontinued or there is cessation of work on the Project for a total period of more than fifteen (15) calendar days after the Agency becomes aware of the cessation of work for any reason that is within the reasonable control of the Association or any Project Contractors, or if construction of the Project otherwise fails to progress continuously in a manner reasonably satisfactory to the Agency; or (h) If(i)the Contractor (a) commits a material breach of the Construction Contract and fails to cure such breach within the time periods, if any, allowed for cure under the Construction Contract; or (b)otherwise ceases to act as the general contractor for the Project; and (ii)the © Association fails to retain a new general contractor reasonably acceptable to the Agency under a new general construction contract approved by the Agency within thirty (30) calendar days after such uncured breach or termination of the Construction Contract. (i) The set-off by the Lender of the Certificate of Deposit Account Set Off Amount under the Loan Documents as a result of a default thereunder. 7.2 Remedies. Upon the Agency's election to declare the Association to be in default under the Agency Documents pursuant to Section 7.1 above, the Association shall be deemed to be in default under the Agency Documents, and the Agency shall have the right to do any or all of the following: (a) Acceleration. The Agency shall have the right to declare: (i) any or all of the Association Obligations to be immediately due and payable, under the Agency Documents, (b) Remedies Under Other Agency Documents. The Agency may exercise any or all rights and remedies that the Agency may have under any or all of the Agency Documents and applicable law and equity; (c) Entry by the Agency. The Agency may enter the Property and take any or all actions that the Agency determines to be necessary or appropriate to complete construction of the Project; p (d) Completion of the Project. If the Agency elects to complete the Project pursuant to Section 7.2(c) above, the Agency shall have the right to do any or all of the following: (i) direct 33 P UyeMazUygMe NuNmenlsNgerEe Au.h.0 \"m .Am 201=5-19.10 SB Aub Cm -DFP Ay memE¢ completion of the Project in accordance with the Plans, modified to any extent that the Agency determines to be necessary or appropriate, (ii) discontinue at any time any work on the Project commenced by the Agency, (iii) retain architects, engineers, contractors and others to famish labor, services, materials and equipment in connection with the construction of the Project; (iv) exercise the Association's rights under any contract or agreement relating to the Property, including the Project Contracts, (v) pay, settle or compromise any or all bills, claims, demands, liens, encumbrances, security interests, charges, premiums, taxes, and assessments relating to the Property, and (vi) undertake any othe r act with respect to th e completion of the Project that the Agency determines to be necessary or appropriate. (e) Appointment of a Receiver. The Agency shall have the absolute and unconditional right to apply to any court having jurisdiction and obtain the appointment of a receiver or receivers of the Property. The Association irrevocably and unconditionally consents to such appointment and agrees that the Agency shall have the right to obtain such appointment: (i) without notice to the Association or to any other Person, (ii) without regard to the value of the Property or any other collateral securing the Agency Obligations, and (iii) without acceleration of the Agency Obligations or commencement of foreclosure proceedings under the Security Agreement. The Association agrees that any such receiver or receivers shall have such powers, rights and authority as may be requested by the Agency in order to exercise the Agency's rights under the Agency Documents, including the Agency's right to complete the Project pursuant to Section 7.2 above; (f) Disbursement of Funds. The Agency may advance its own funds for the ® payment of any or all of the costs and expenses incurred in connection with the completion of the Project pursuant to Section 7.2(d) above. If the Agency advances its own funds for payment of any such costs and expenses, such advance shall constitute a loan by the Agency to the Association. Such loan shall be payable by the Association on the Agency's demand, shall bear interest at the interest rate applicable to principal under the Note, and shall be secured by the Security Agreement; and (g) Assignment of Governmental Permits, Licenses and Other Agreements. Upon the occurrence of an Event of Default under this Agreement, and upon three (3) calendar days' prior written notice from the Agency to the Association and as specified in such written notice, the Association shall assign to the Agency all right, title and interest of the Association in, to and under any Governmental Permits, any licenses and/or under any other instrument, documents and/or agreement affecting or relating to the Sign, including, without limitation, the control, the use and/or the operation of the Sign from the Association to the Agency, any advertising, or the maintenance and/or the repair of the Sign from the Association to the Agency. The Agency shall have no duty to assume any obligation and liability of the Association in connection with the Sign without the prior written consent of the Agency; and (h) Termination. The Agency may immediately terminate this Agreement upon written notice from the Agency to the Association. 7.3 No Liability by Agency. Nothing contained in Section 7.2(d) above shall be deemed to obligate the Agency to complete the Project, and the Agency's exercise of any or all of its rights and remedies under Section 7.2(d) above shall not render the Agency directly or indirectly liable to the Q Association or any other Person for the completion of the Project or the manner or quality of construction of the Project. 34 P U8o \AFWA Anahn SV4a MucMwn\Ag Am "IN"7-10 M Nuo Cava-DIT N�Eoc © ARTICLE 8 MISCELLANEOUS 8.1 Relationship of Parties. Nothing contained in the Agency Documents shall (i)constitute or be construed as the formation of a partnership or joint venture between the Agency and the Association or any Person, or (ii) constitute or be construed as the creation of any confidential or fiduciary relationship of any kind between the Agency and the Association or any other Person, or (iii) result in the Agency being deemed to be a manager, controlling person, or other business associate or participant of any kind in the conduct of the Association's business or affairs, including the design, construction, improvement, development, use, ownership, operation, maintenance, or repair of the Project and/or of the Project and/or of the Property. The Agency shall not be deemed to be, nor do the Agency or the Association intend that the Agency shall ever become, a partner,joint venturer, trustee, fiduciary, manager, controlling person, or other business associate or participant of any kind in the business or affairs of the Association, whether as a result of the Agency Documents or any of the transactions contemplated by the Agency Documents. 8.2 Indemnification. The Association shall indemnify, defend, at its sole cost and expense with legal counsel acceptable to the Agency in it sole discretion, and hold the Agency and its officers, directors, agents, employees, representatives, shareholders, affiliates, successors and assigns (collectively, the "Indemnified Parties") harmless from and against any and all claims, demands, damages, liabilities, actions, causes of action, suits, costs, and expenses, (collectively, the "Claims") ® including attorneys' fees and costs, arising directly or indirectly out of or relating to any or all of the following: (i) Association's breach of any of the Association Obligations, representations or warranties under the Agency Documents, (ii) any act or omission by the Association, (iii) any act or omission by the Contractor, by the Architect, by any surety or bonding company, or by any other Person providing labor, services, materials or equipment in connection with the design, construction, improvement, development, use, ownership, operation, maintenance, or repair of the Project and/or of the Property, (iv)Association's use and occupancy of the Project and/or of the Property or any other activity or thing allowed or suffered by the Association to be done on or about the Project and/or the Property, (v)any claims for commissions, finder's fees or brokerage fees arising out of the Agency Documents or the transactions contemplated by the Agency Documents, (vi) the Agency's exercise of any or all of the Agency's rights or remedies under and in accordance with the Agency Documents, (vii) any claim or cause of action of any kind by any Person that would have the effect of denying the Agency the full benefit or protection of any provision of the Agency Documents, and (viii) the Agency's use and/or display of the Agency Advertisement is not in compliance with applicable Laws or Governmental Permits. The Indemnified Parties' right to indemnification under this Section shall not directly or indirectly be limited, prejudiced, impaired or eliminated in any way by any finding or allegation that the conduct of any Indemnified Party in connection with the Claims is active, passive or subject to any other classification or that any Indemnified Party is directly or indirectly responsible under any theory of any kind, character or nature for any act or omission by the Association or by any other Person. Notwithstanding anything to the contrary contained in this Section,the Association shall not be obligated to indemnify any Indemnified Party for any liabilities resulting from the gross negligence or intentional tortuous conduct of such Indemnified Party that such Indemnified Party is determined by the final judgment of a court of competent jurisdiction to have committed. The Association's obligation to indemnify the Indemnified Parties under this Section shall survive the execution the delivery, the performance, the termination or the expiration of the Agency Documents 35 PUyeMazUyeMa Aaa emelAyeMa Al memsUVMm Am 20IMS-11-10 SBA 0 Cmta D"Age tCx and the release and discharge of the Security Agreement. This Section 8.2 shall survive the execution, the delivery,the performance,the expiration or the termination of this Agreement. 8.3 Power of Attorney. The Association irrevocably appoints the Agency, with full power of substitution, as Association's attorney-in-fact, coupled with an interest, with full power, in the Agency's own name or in the name of the Association: (i) to take any or all of the actions specified in Section 7.1 above with respect to the Property following the occurrence and during the continuance of an Event of Default, and (ii)to sign and record notices of completion, notices of cessation of labor, and any other similar notice or document that the Agency determines to be necessary or appropriate to protect its interest in connection with the Association Obligations and the Agency Documents. The Agency shall have the right to exercise the power of attorney granted in this Section directly or to delegate all or part of such power to one or more agents of the Agency. Nothing contained in the Agency Documents shall be construed to obligate the Agency to act on behalf of the Association as attomey-in-fact. 8.4 Actions. Whether or not an Event of Default has occurred, the Agency shall have the right, but not the obligation, to commence, appear in,or defend any action or proceeding that affects or which the Agency determines may affect (i) the Property and/or the Project, (ii) Association's or the 7 Agency's respective rights or obligations under the Agency Documents, (iii) the Association Obligations, or (iv) the disbursement of any Loan Proceeds in the possession of the Escrow Holder. Whether or not an Event of Default has occurred, the Agency shall at all times have the right to take j any or all actions that the Agency determines to be necessary or appropriate to secure performance of any or all contracts for the development of the Project and/or of the Property or to protect the Agency's interest in connection with the Association Obligations and the Agency Documents. 8.5 Attorneys' Fees and Costs and Other Expenses. Upon the Agency's demand, the Association shall reimburse the Agency for all costs and expenses, including attorneys', accountants', consultants', and expert witnesses' fees and costs, but excluding ordinary overhead expenses of the Agency's regular business premises and salary expenses for the Agency's clerical and supervisory personnel, that are incurred by the Agency, whether before or after an Event of Default, in connection with any or all of the following: (i)the negotiation, documentation, management, servicing, or administration of the Agency Documents, including(a)the cost of any architect,engineer, inspector,or other consultant retained by the Agency in connection with the Agency's inspection of the Project, the review of the Plans or any Change Orders, or the exercise of the Agency's rights under the Agency Documents, and (bi) all costs and expenses, including attorneys' fees and costs, incurred in connection with the Agency's review, preparation, analysis, or negotiation, as applicable, of any of the further documents or other matters that are contemplated by the Agency Documents or that the Agency has the right to require, review or approve pursuant to the Agency Documents and the Project Contracts, (ii) the exercise of any or all of the Agency's rights and remedies under the Agency Documents, including attorneys' fees and costs incurred in connection with any out-of-court workout, loan restructure, or settlement relating to the Project and/or to the Property or the Agency Documents, (iii) the enforcement of any or all of the Association Obligations or any other obligation of any Person liable to the Agency in connection with the Agency Documents, whether or not any legal proceedings are instituted by the Agency, (iv) the preservation, the protection, the maintenance or the defense of the Project and/or of the Property, (v) the sale or the disposition of the Property or any other collateral securing any or all of the Association Obligations, (vi) the defense of any action or proceeding by the Association, any of the Guarantors, if any, or any other Person relating to the Association Obligations 36 P NyeMssNyeMe AIIe[M1.Ul IeMa AM1adunemMlA A—e 201=1-17-10 SS Aulo Cmla-DFP A,rt..t Cec and/or to the Agency Documents,(vii)the commencement and prosecution of any action or proceeding with respect to any or all of the matters described in this Section, including without limitation an action for relief from any stay, injunction or similar order or enactment arising under any federal or state bankruptcy, insolvency or similar law. The Association's obligation to reimburse the Agency under this Section shall include payment of interest on all amounts expended by the Agency from the date of expenditure at the rate of interest applicable to principal under the Note. Without limiting any of the terms of this Section, the Association agrees that the Agency shall be entitled to retain such attorneys as the Agency may select in its sole and absolute discretion. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered "attorneys' fees" for purposes of this Section. 8.6 Loan Fees. All fees payable to the Agency under the Agency Documents shall be nonrefundable, and shall be deemed fully earned by the Agency upon the execution of the Agency Documents. 8.7 No Third Party Beneficiaries. The Agency Documents are entered into for the sole protection and benefit of the Agency, the Association, and their respective permitted successors and assigns. No other Person shall have any rights or causes of action under the Agency Documents. Without limiting the generality of this Section, the Agency shall not owe any duty of any kind to any Person providing labor, materials, services, or equipment in connection with the Project and/or with the Property: (i)to apply any proceeds under the Agency Documents to the payment of any claim held by such person or entity, or (ii)to exercise or to refrain from exercising any right or remedy of the © Agency in connection with the Agency Documents. 1 8.8 Agency Documents. The form and substance of all agreements, documents, instruments and/or certificates that the Association is required to deliver to the Agency under this Agreement shall be subject to the Agency's approval. 8.9 Notices. All notices and demands by the Agency to the Association or by the Association to the Agency under this Agreement shall be in writing and shall be effective on the earliest of: (i) personal delivery, (ii) three (3) days after deposit in first-class or certified United States mail, postage prepaid, addressed to the respective Party at the address provided below, (iii)one (1) business day after deposit with a reputable nationally recognized overnight delivery service, delivery charges prepaid, addressed to the respective Party at the address provided below, and (iv) if notice is sent by facsimile transmission to the respective Party's facsimile number as provided below, on the first (I") business day after the date on which the Party's facsimile transmitting equipment issues a confirmation record of receipt of such notice by the other Party's facsimile equipment. The Association's and the Agency's respective addresses set forth in this Agreement may be changed by written notice given to the other Party in accordance with this Section. The Parties' addresses, telephone numbers and facsimile numbers are as follows: Agency: Redevelopment Agency of the City of San Bernardino 201 North"E" Street, Suite 301 San Bernardino,California 92401 Telephone: (909) 663-1044 Facsimile: (909) 888-9413 Attention: Interim Executive Director 37 P Agenda Ape a Autlments%AgcMa AnachmentsVgm Amend 201 M5d7.10 sB Am Gmr-BrP Aye mdo with a copy to: Lewis Brisbois Bisgaard& Smith LLP 650 Hospitality Lane, Suite 600 San Bernardino,California 92408 Telephone: (909) 387-1130 Facsimile: (909) 387-1138 Attn: Timothy J. Sabo Association: San Bernardino Auto Center 180232-C Lemon Dr,#120 Yorba Linda, CA 92886 Attn: Cathleen McCarthy with a copy to: 8.10 Severability. If any provision of the Agency Documents shall be held by any court of competent jurisdiction to be unlawful, voidable, void, or unenforceable for any reason, such provision shall be deemed to be severable from and shall in no way affect the validity or enforceability of the remaining provisions of the Agency Documents, 8.11 Interpretation. Whenever the context of this Agreement reasonably requires, all words © used in the singular shall be deemed to have been used in the plural, and the neuter gender shall be deemed to include the masculine and feminine gender, and vice versa. For purposes of this Agreement, all references to the Property or to the Project shall be deemed to refer to all or any part of the Property or of the Project, respectively. The headings to sections of this Agreement are for convenient reference only, and they do not in any way define or limit any of the terms of this Agreement and shall not be used in interpreting this Agreement. For purposes of this Agreement, the term "including" shall be deemed to mean "including without limitation," and the term "document' shall be deemed to include all written contracts,commitments, agreements, and instruments. 8.12 Time of the Essence. Time is of the essence in the performance of each provision of the Agency Documents by the Association. 8.13 Amendments. The Agency Documents may be modified-only by a written agreement signed by the Association and by the Agency. 8.14 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which together shall constitute one and the same document. 8.15 Entire Agreement. The Agency Documents contain the entire agreement concerning the subject matter of the Agency Documents and supersede all prior and contemporaneous negotiations, agreements, statements, understandings, terms, conditions, representations and warranties, whether oral or written, between the Agency and the Association concerning the Association Obligations and the Agency Documents. \r/ 38 P nn.hm.m V�,a mmd 20IM5-17-10 sea .C.e-Dt n�m eoc 8.16 No Waiver by the Agency. No waiver by the Agency of any of its rights or remedies in connection with the Association Obligations or of any of the terms or conditions of the Agency Documents shall be effective unless such waiver is in writing and signed by the Agency. Without limiting the generality of this Section, (i) no delay or omission by the Agency in exercising any of its rights or remedies in connection with the Association Obligations and/or in connection with the Agency Documents shall constitute or be construed as a waiver of such rights or remedies, (ii) no waiver by the Agency of any default by the Association under the Agency Documents or consent by the Agency to any act or omission by the Association shall constitute or be construed as a waiver of or consent to any other or subsequent default, act or omission by the Association, (iii)no disbursement of any of the proceeds by the Agency under the Agency Documents following any Event of Default shall constitute or be construed as a waiver of such Event of Default or obligate the Agency to make any other disbursement under the Agency Documents, (iv)no acceptance by the Agency of any late payment, partial payment, or late or defective performance of any of the Association Obligations by the Association shall constitute a waiver by the Agency of any of the terms of the Agency Documents or the right to require prompt payment and performance strictly in accordance with the Agency Documents with respect to such late or partial payment or such late or defective performance or any other payment or performance of any of the Association Obligations, (v) no acceptance by the Agency of any payment or performance following any notice of default that has been given or recorded by the Agency shall constitute a waiver of the Agency's right to proceed with the exercise of its remedies with respect to any Association Obligations under the Agency Documents that have not been paid or performed in full, and (vi)no acceptance by the Agency of any partial payment or performance shall constitute a waiver by the Agency of any of its rights or remedies relating to any Association © Obligations under the Agency Documents that have not been paid or performed in full. 8.17 Cumulative Remedies. No right or remedy of the Agency under this Agreement or the other Agency Documents shall be exclusive of any other right or remedy under the Agency Documents or to which the Agency may be entitled. The Agency's rights and remedies under the Agency Documents are cumulative and in addition to all other rights and remedies that the Agency may have under any other document with the Association or any other Person and under applicable law. The Agency shall have the right to exercise any one (1) or more of its rights and remedies in connection with the Association Obligations at the Agency's option and in its sole and absolute discretion, without notice to the Association or any other Person (except as otherwise expressly required by law or under the Agency Documents), and in such order as the Agency may determine in its sole and absolute discretion. 8.18 Approvals by the Agency. Whenever(i) the terms of the Agency Documents grant the Agency the right to consent to or approve any transaction or matter, (ii) the Agency is authorized or empowered under the Agency Documents to make a determination with respect to any transaction or matter, or(iii) the Agency Documents provide that any document or other item must be approved by or acceptable to the Agency, then except as otherwise expressly provided in the Agency Documents, (a) the Agency shall have the right to grant or withhold such approval or consent and make such determination in its sole and absolute discretion, and (b) the form and substance of such document or other item must be satisfactory to the Agency in its sole and absolute discretion. Whenever the terms of the Agency Documents require the Agency's consent to or approval of any transaction, matter or document, such consent or approval shall not be deemed to be effective unless it is set forth in a written instrument executed by the Agency or the Agent's authorized representative. 39 v wynw„wy wnn n,,,.m.uy.ma aunmon,w�,m,snm<na zoiow<-i�.�a se nmoCmw OPPA� m.dm 1" 8.19 Joint and Several Liability. Each Person signing this Agreement as the Association �r shall be jointly and severally liable to the Agency for the performance of the Association's Obligations under the Agency Documents. If the Association consists of more than one Person, the occurrence of any Event of Default with respect to any one or more of such Persons shall constitute an Event of Default and entitle the Agency to exercise its rights and remedies under Section 7.2 above. 8.20 Assignment. The Association shall not assign, encumber, or otherwise transfer any or all of the Association's rights in the Property, in the Project, in the Agency's Advertisement, under the Agency Documents, whether voluntarily, involuntarily, or by operation of law, without the Agency's prior written consent, which consent may be withheld in the Agency's sole and absolute discretion. Any purported assignment, encumbrance or transfer by the Association in violation of this Section shall be void. The Association acknowledges and agrees that the Agency's agreement to execute and to perform under the Assignment of Deposit Account, and to enter into the Agency Documents are based in material part on the Agency's reliance on the Association's particular financial condition, credit history, character, experience, ability, skill, and reputation, as represented by the Association to the Agency. 8.21 Applicable Law; Jurisdiction. The Agency Documents shall be governed by and construed in accordance with the laws of the State of California. The Association consents to personal jurisdiction over the Association by the courts of the State of California and agrees that service of process on the Association may be effected by certified or registered mail, return receipt requested, directed to the Association at the address shown in the Security Agreement. This Agreement is secured by the Security Agreement. Any suit, action or proceeding brought under the scope of this © Agreement shall be brought and maintained to the extent allowed by law in the County of San Bernardino, State of California. 8.22. Compliance with Laws. In performing their respective obligations under this Agreement,the Parties shall comply with and conform to all applicable Laws. 8.23 Further Acts. The Parties agree to execute such instruments and to perform such further acts as may be reasonably necessary to carry out the purposes and intent of this Agreement. 8.24 Conflict of Interest. No member, official, officer, or employee of the Agency shall have any direct or indirect interest in this Agreement, the Project or the Property nor shall such Parties participate in any decision relating to this Agreement, the Project or the Property where such participation is prohibited by law. The Parties represent and warrant that they do not have knowledge of any such conflict of interest. 8.25 Limitation on Liability. No member, official, officer, employee, or agent of the Agency shall be personally liable for any default or breach by the Agency under this Agreement. 8.26 Enforced Delay: Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to the force majeure including, without limitation, events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy; epidemics, quarantine restrictions, freight embargoes or lack of transportation, weather-caused delays, inability to secure necessary labor, materials or tools, 40 PIAgcaduAgenda Atla mentMgtt a chmenls\Ag-,,Am-d 3010105-1]-10 SBA C.a-D"Apeunemd- delays of any contractors, subcontractor or supplier, which are not attributable to the fault of the party i claiming an extension of time to prepare or acts or failure to act of any public or governmental agency or entity, or any delay caused by a third party, including, without limitation, independent vendors and suppliers, whose performance is not within the control of the Association. An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the party seeking to invoke such force majeure provision has duly given written notice to the other party within ten (10) calendar days of the date that the force majeure event has occurred specifying (i) the date from which the enforced delay shall commence and the actual or the expected final date, as applicable, for which an enforced delay extension of time of performance is then being sought, and (ii) the detailed description of the particular circumstances, events, facts or occurrences which have give rise to the force majeure. In no event, however, shall the extension to perform exceed ninety(90) calendar days from the receipt by the Agency of such written notice from the Association, without the prior written approval of the Agency. The Parties hereto expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of any of them which may have provided a basis for entering into this Agreement and which occur at any time after the execution of this Agreement, are not force majeure events and do not provide any Party with grounds for asserting the existence of a j delay in the performance of any covenant or undertaking which may arise under this Agreement. Each Party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such Party under this Agreement, but that such inconvenience or hardship is not a force majeure event and does not excuse the performance by Q such Party of its obligations under this Agreement. 8.27 No Consequential Damages. The Agency shall not be responsible to the Association under this Agreement for any damages relating to special damages, loss of revenue, loss of profit, operating costs or business interruption losses, or any other consequential damages, regardless of cause, including breach of contract, negligence, strict liability or any other cause. 8.28 Survival. All terms and conditions in this Agreement, which represent continuing obligations and duties of the Parties and have not been satisfied prior to the Close of Escrow shall survive Close of Escrow, and shall continue to be binding on the respective obligated Party in accordance with their terms. All covenants, representations and warranties that are intended by the Association and by the Agency in this Agreement to survive the Close of Escrow shall survive the Close of Escrow. 8.29. Recitals. The Recitals in this Agreement are true and correct and are incorporated herein by this reference. 8.30 Successors. Subject to the restrictions contained in the Agency Documents,the Agency Documents shall be binding upon and inure to the benefit of the Agency and the Association and their respective permitted successors and assigns. 41 PUgeMaz�AgeMa AttacM1men�sUgeMa Artxh.e.0 11-Amend WIWU 17-10 S6 M.Cmia DFP A�doc © IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first set forth above. ASSOCIATION San Bernardino Auto Center Association, a California corporation Date: By: Name: Title: AGENCY Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic Date: By: © Emil A. Marzullo, Interim Executive Director Approved as to Form and Legal Content: By: Agency-Coupki 42 PV�entlnswgentla Anetlunemswy<rda AnecLmemswrynnnAmeM?OIOWS-It-lO SB Amofmm DFPAgeememE EXHIBIT "A" Legal Description SEE ATTACHED 43 P VS<MUUVM Anuhme tMSB eABwhM1 teUSmusAm dMIM5-I1-10 SB AWO CM -DfP Aptt mOx Exhibit"A" Legal Description All that portion of Auto Center Drive as shown on Parcel Map No.9713, in the City of San Bernardino, County of San Bernardino, State of California,as per plat recorded in Book 106 of Parcel Maps, Pages 91 to 93 inclusive, records of said county, being more particularly described as follows: Commencing at the centerline Intersection of Auto Center Drive and Camino Real; Thence South 89 042'38"West, along the cenledine of Auto Center Drive, a distance of 30.04 feet to the TRUE POINT OF BEGINNING; Thence South 02°32'36"West, and parallel to the centerline of Camino Real, a distance of 40.05 feet to a point on the easterly prolongation of the Northerly line of Parcel 6 of said parcel map; Thence South 89°42'38"West, parallel to and 40 feet Southerly of the centerline of Auto Center Drive, a distance of 50.00 feet to a point on the northerly line of said Parcel 8; Thence North 00°17'22"West, a distance of 80.00 feet to a point on the Southerly line of Parcel 9 of said parcel map; Thence North 89°42'38"East, parallel to and 40 feet Northerly of the centerline of Auto Center Drive, a distance of 53.96 feet, Thence South 02°32'36"West, and parallel to the centerline of Camino Real a distance of 40.05 feet to the TRUE POINT OF BEGINNING Contains 0.01 acres, more or less. See attached hereto and made a part hereof. Ludwig Engineering, Inc. Prepared by me or under my supervision AL L S o�hylpTT TS ` ¢ o 4 A Ply No. 8919 a -ti 5�( Q EzD.f2-3f-l0 c Scoff Sturm, P.L.S. 8549 Date q 2~ Expires 12-31-10 �i OF CA1-'LFOP 2Z:Wty sICUENTSISBEDAISBEDAsign legal.wpd PARCEL NAP NO. 9713 RECORDED IN BOOK 106. PAGES 91-93. D�pL LANO T SlU'4i��9 n PLS No. 5549 a EKp.12-31-10 N� � 0 9�OF CALZF�? 4—IS-1 30 ' 30 ' I PARCEL 9 PM 9713 PMB 108/91-93. 53.96' N89 '42'38"E 3 AUTO CENTER 3 om DRIVE N J N ; Q o TPOS POC m � - - - cu m 30.04 :° Sag '42-38-W 11v Z Iq o m 0 Q I 50.00 ' S89 '42'38"W PARCELS PM 9713 PMB 108/91-93. GRAPHIC SCALE 1"=20' 0 20 40 65 0 EXHIBIT "B" Assignment of Deposit Account 44 P Au Mw\AVe aAttdM is\AgeWa Mt ChmmtMU tm Amend 2010105-I]-10 SB Auto Ceme DPP Awcemem drc ruyT—va—amv Oe:teal CBB TRI CITY 909 888 8936 P.008 DRAFT CITIZENS 80SINX89 SANX AaWawir+it, ASSIGNMENT OF DEPOSIT ACCOUNT fiaMwxea h the boxes above are for Lenders ors all r arM oe not am R Or�papb�y of We Oowrend to ury paNWU teen or INm._ I MY coral above Lren hS been emked CIM braid lowd wyitow . ` Grantor dsek-ON part Lander: clhwr anwte Ori i 701 North M"ee Awnaae 04terlo,CA 01764462- I (600190040]0 MIS A881GNNM"Of DEPDStr ACCOUNT 41hd 2010, is meat and executed WareeeJoaor h�'Onneer)mO CMmm Bwbeaa buAr(R*."rlj „ ASS"bWiT. For mluab a corhadcratbn.Grantor-Signs and Brenta W Lander a secur0y knerect In are CotlebWl,Ind Wag without andlntlon the osposit accounts d"Cribed below.to Sore at kXWednM and sg mat Lander"h"o the rights stated In"a Aprersne t with respect to the CofatereL N addIdon to alt other dote,which Lender may rase by law, i COLLATPAAL 0116MPTION. Tito word'CoNatener moans the following described deposal etoourn('ALCOUAC): i CO AGKpmd Numbar�with Lender with an approxhrwb tvelmS of 0a60,000.0a I together war (A) ap InIoreat. n aoandd of hereafter amuInp; (B) ON additional deposits hereafter node bat Aft nt: (C) any I and as praasds ham are Account amf (D) IN renewals,repbmmewb end abatle+tlorve for any of Ora fcnfgoi q, RIGHT OF SETOPF. To the extant pemaaed ty appficable law,Leda reserves a right at setoff M all Granters acewme with Lander(whether dreraMO,savY9a or sans.nor acmurd). This Includes of accosts Orama holds)piny with anions also an ed accpmb Grantor, may. open In the hulas. Mmwover,act does not Include.any IPA or Keogh awamh,a any bust eoo Uft for which asWff would be prelaathd by law. Grantor authorises Lander.to the e>aont pw~by nootorble law.to Charge or setoff ail eum a+dng on the indebtedness egalrat any and an audh e000unh, a. GRANYOR'0 RM"*M rArONB ANO WARRANTIES WITH RESPECT TO THE COLLATERAL With raspat be aw Cobtaral,Grantor mph son" and plonasee to Lender Ohs[ Ownership Grantor Is the lawful owror of the Collateral free and des of an bans.Liam,enwrnbmntea,ON Claims except as daclwad to grid aowWed by Land-in wNtlnp. Right to Orard Smifty Interact Grantor has the full right,power.and authority b arse Into this Agreement and to aedpn the CoNlaral to Leander. Ne Pdor Asaigrenan. Grantor has not previously granted s as=*Interest in the Collateral to any other credltor. No Fuller Transfer. GranW amo not fall assign,encumber,a etherwlse dispose of any of Grauofa rights In the Cdbtersl esmpt as provided In this Agreement. No DefauMS. There as no defaNts reWanp to the Cagaterel,and ahem are no oMSeM or catmbrcbkm to the sells. Granter WIO able end promptly m evayddng requxed of Granter under Ina barns,conditions, pon,"s, and ardomerds Contained In a rotating to Me Cceslural Preoaeds. Any and as replacement or renewal onnehwias. hnoumame, or aha bamhts or precetda related to ate Coan" that are received by Grantor ahaa be hold by Grantor In trust for Lender and hhmediatey Nee be dellvtmd by Grantor to Lander to be held as pan of Ore Conataral, Validity; Binding MOVE This Apreanam Is blydmg upon to d rantoh a ssora and Resigns all is log ily entorceave in Rowrd ace with Its tattns. AF F(nmdag Statements. Grantor auManabs Lender to ate a UOC fnard staternml,or aftematieft,a copy of this Agra mad to parfm Lenders seariy Inteaost, At Lenders request, Grantor b 0y+gibes to sign OR other docurmerds that are necessary to perfect, protect,and continue Lander-efcudy interest In the ntor will pay as slhp foes,title transfer leee,and char fees acct Costa involvad u leas prohibaad by law or unless Larder Is r"Wred 0law to pay such foes all boars. Grantor irrevocably appoints Leader to execute dpwnierts,neoeseory he translar W6 If there Is•dehWt Lander may fie 0 copy of als Agreement S a 7nandn0 stotemeht. U 1 Grantor dirges Grace's name or addreaa,or the name err address of my Person lh'annirg a sacudy Interest under this AP"rrtrn clang",Grantor will parrpay notify Ore Larder of such change. LENDERS RIGHTS AND OBLIGATI(M WrrN RESPECT TO THE COLLATERAL Wnhe this Agroentnt k b bffeot,Larder may rotwn the rINhW to poseenion of the Collateral, togeNN with any and all o0da ce of the CMBteral,such S welikatea or passbooks, This Aproomant will remain W affect unto (a)avert no longer Is tidy IndebWdnaas awkg to Laden, (b)fa Owl obggabene "Killed by the Agri new have been hAfif ed:and (c)Grantor.In wraing,half requested from Lander a rebaeo of Ale Agravrert LENDER'S EVENDrfURES. K any action or Wocaeding is commenced that wound matrlany effect Landers Interest in Ma Conateel or R Grantor refs to conwly wb any provision of this Agroomem a any PAWW DopJnwas, InaludIng out not aralhd to Grantors AIAxe to died"or pay when due any amounts Grantor to required to disdverge or pay under this Agrearam or any Ranted beanunt s, Larder do GWW O b~may(drt shad not be OW194W b)Wk.cry actin that Under dairm a0propakN,IndWbp but not pmaed to discaogkg a paeing OR taxes,lam,aeouray InWersts,enpenbrmees an other dalrra,at any erne WAW or(dawn on err Catbbrat and paykq as Cosh ter traukg,tNintahing and Preserving the Collateral. As such sxpancitu nts 4 wred Of pad by Leda to ouch papules will cam bar Interest at , as rap charged uWa the note fan the date incurred or paid by Lander W the date of repayment by Grardor. Aft such io"pl as will becom a i Part of ate kxWWk M An,at Leaders option,610 W be Priem W amend; R) be 800 to Este balams ott a NOW and be-pporlbned among and be MOW with Any Installmalt rveYf^onta to Irl due dupnp&Ma (1) the Emm of airy appfceblo Infursalca pofcy;or (2) the I arse-ua-'solo OB:6B CBB TRI CITY 909 BBB 8935 P.009 ASSIGNMENT OF DEPOSIT ACCOUNT D R A F T Loan No: 88 (Caftitnued) Ppa 2 r.moMnp teen of rho Note;a (C4) W treated as a baboon payment which wit be due W pay"at Am NoMY matudty, The Aaheareaa Sao Will seal payment of Nexe amorrnm. &Irh npht SW be N WeRtI n to all DOW e4ft artd rwTediea b which Le 4" ftwy,be wow sipon Dofaut LfherTATgWB ON =JGATIONa OF LBtDM Larder roof use ordinary, reasonable ore In the phyatoa pralemationn And me" of any oartlfiwro w P2ubooa for the Cat ffbi l but asi new Ito other abip W to protect the COVAWW a he value. N pWaiW.but wiNOUt i IN11Iebm. Lander ehol haw W responsibility (A) fa the odieaen a praealan Of arty Nwne M tie CoiMeret (B) fa ft praarbtlm Of rights Wallost helium,Of VAR COAMW AmAw"Were regal the Odataeapnae (0) for leaning She Grantor abau ay of the above,MhW W il not Ladar hie ma bated to have knowMega a 21101,"MMM. DEFAULT. Each Of the hanoving ahW aometue,An Event of Oofil under this Agreanont Paymerd Win& Grants falls to make my payment when due under the Irdeawnwa. Delmer Doteaha. Grantor falls to comely with or to perform any or"tens,obligation.Lrowrant of condition contahad In this Apreemam ter ! in any of the Related Docunm a of b comply,with a to pirbfm any tenth. ODgpetbn, ootenent or eandden contained N any other apnaanent between Linder end Grantor. Flue atetamma. Any wmmty,ropresantarl or statement made or"staid to Leader by Grantor or an GnAhWa behalf under this AW"men:or the Ramrod Dowmanm Is fame or mlFaadkp N any material respect,mlttha ape w At the ffios made a Ranmhld a b0C*r1es late a mMemdig at any ulna theraAw. l DNMhO CONOWN 300 s mm Apwomem a arty of tie Retied Doamwnm aloes,to be N full force ant All(kntlud.np failure of any command!document At cril a read end peneeted weeny merest or Yen)At my are And for my reran. � Death or vacnoney- The death of Granter,ac Ineowency of Grantor,the eppoirabnor t of a reaNar for any part a GrmWa apperty.any I assortment fa we bmdh of creditors.my type of cmdlty wodoM or the aanererrerrAm of arty proceeding under wry MvMUptoy, a irmolveney Inv,by or aortat Grantor Cradllor a FaReft" PrweWlpt Commartfament of faecbaFe a forfeiture proceedlps. wfehor by IDmdd pooeetal satiiatp, rhime"don a ant dither method by any avalaw of Grantor or by any QOn' metal apanN' aphid Any wilamml se"Ng as Indebmdresm. This Indudm a gmO6hOant of any of GrandWs aocoul"AMV deposit accounts,with WAer. Nowewr.that Ewe or 00*9 SW riot apply It them Is a good faith dfapue by Getna AS to sue Validity w reawmdaran Of the"M which a the Oasts Of the venter,a iwfaaaa proo aft ant N Graver ghes Leda written rnoae of the aedea or rode*"proomodkp W deposits with tender ) manna w a survey bed for tiro On"ta or forfeiture proceeding, N an amount determined by LWa.in ITS sole dkaetau.as being An adogursm reserve w bond forte d'aplo. Ewes Meeting Guarantor. Any of the preoedirq evants ex:ours with reapW to Any gu mnw,a loner,sufdty,or accommodation part/ of arty of rte hdaaadhws or guarantor,endosar,worry.or A2aaro0etlon party tam a Incompetent or remla s a disputes the ! vagalry of.or labmiy under,any Guaranty of trio Ird6ae0mes, sr, Advise Change. A material atlwree ohaga aowrs N Gramoes fnnxde condition, Leda believes the prospect of payment w podamanae of that Indebtedness Is Impaired. I IS 601113•-6aa ley d sa JN Mass - ^^- sFS 1 De.Pravkbna ti any default aNaath a:dafaul{ - pgmO:Am sae It may no Seed t Grantor,Afar Larder send'when notice to Granter demon"wre of such daaA (1) ores rte detain[within fi (15)days:w (2) m the Sure requires more pan fifteen(ta) days, muneduttety mioelvs mpg which Lender doeme N Landevi dIChOW to be satklant to cure the default W ter0aRer oantlnuaa era compbtea all reasonable and eac essory steps suffiolml to XT"armpmrtoe AS awn sue reaswudy pracgaw. ir (o RIGNTB AND RENEM ON DEFAULT. Upon the owureme of m Evem of Dafaum,or in my time,thereafter,Lmdar may axero.&y aria or more of the blo4V rights and le edles,In addition to any di is or remedies that may be ewieble at mw.N equity.or othawmm! Ace6l rw Itdebuchvil Lander may deUwo all Indebtedness of Grantor to Larder immetlmtoly due and payeWc,wmea nonce of my kbtd to Grata. Application at Amount Ptocaeda. Larder may Who directly M funds in tine Acwum and apply Mom to the Indebtedness If to Account is 6ubi6at tp an early withdrawal penalty,that Penalty Shall W deducted horn the Adweh before Its appOwtiat to to IndWmdneEa,whethor tic Account Is with Le der or acme otter Instikkut. Any aKasa fells remaining after oppacaim of the Account proceada to the IndWtodMw will be paid to Grants As the knereem of Griner my appear Gretna agreos,to the adah pmNtled by Ipso,to pay cony I deficiency aRa Walton of the proceeds of Ne Account to am Indebtodrsas. Lester also Wulf haw All the epro of s secured poly under the CWtonta Urufdrm Commercial COCK even if the Account Is not otherwise a 44W to Sect Code conom irg security Interests. W the paNa.to Utu Ag,"merk agree that the povlsbr s of the Cads diNng rights to a secured party Shall rdne(heleas be a pan of tuts Agreement. Trusts Phil. Linda may effect transfer of site upon sale of alf as part of the COmeerei. For this paposc, Grenlcr Im vomhly appoints tender AS Grantors atomeyan-fact to execute mdo samenm,saepnmems W Instruments N the name of Grantor and each of twin(if I more than me)As V"be necessary or ralmorabie. Geer Rlyb And Ron"". Linde whit have And may exwdw any w all of the riahm and remedies of a soured credor undor Ne prwhft.of the Colffomm uruerm canewdal Coon,at law.h equity,or chemise. - Had by op;l cattle law,tmldv ,obtain.judgment f;n At, dailbdet-, mail Ang due Eidimm of Remedies. Eaoopt a may be pohlbise by epigosma law, al of Lerhdars agree and remedies, whet»awt.:Nd by this Agraa"rm a by any ahor wrldrg,shag be amuladve W nay be exa isM singuledy a wnwr huty. Eferdon by Lastly a Ptete arty Military,shall not axelude pUra At.a my Other remedy,W an election to make extendlWra9 or to take action to perform an obllpatm of Grantor under Nls ApreeneM aW Grenmra fdurs to pedant, Aid not afadt LwwWs right to dedmm a daeat will exercise ire mr eda6 Cumeahe Remedies. All of Landees rights and aemedhat,wtedn"evideraad by this AWoome n a by wry oNe wrtI g. shat be aenutadve and may be exercised AV."w corrxtrtenify. Eecdon by Lender mpuaw e my remedy shot rrot exride lumut d my other ! remedy,And W aladtion to Melva a pea9Mw Or e We adlan b perform an Meow of Gnerox undo this Agleam t,After Gilmore tanve to perform,shill nil aterA Laruders tOht b dedero 0 cheat W b exartlse ifa remedies. MAR-02-2010 08:58 CBB TRI CITY 909 888 8936 P.OfO + i ASSIGNMENT OF DEPOSIT ACCOUNT Loan fia' 118 (Continued) DRAFT Pap. 3 M6CBLAtMOUa pll(WIMrla The fouovNW misoel4newn lowefaa rs a part of a"Agraemmt I Amax smas. Tvis Agreement maader wish any 0.Mead Doamen-ft coraft"a to orate aMSrstlndim and aprwrhWa a ti Par*" .,a dho nal"M sot foist In title Aproertam. No alteration of a amandrmm 10 tees Ag"MInt Sivas M Mecthv unless g'nn In t'riima rW Igned by 6a party a pwd"seWnt to be chaNed or band by one atMOtlon or amwrldInanrL. j L"Iden "M o�eroaa.hoserod In monneeilon wM�e ortom and of ft Aaneetanl LarWar ma a apnaan do Id haft anfm this AposmeL and Gndoe anal flay to coo, and sageness of rx h Moofternent. Casa and wowsa a Mode Lades" anwney4' lebs and legal ex, . wheater or not Nara Is a aw Ile trWh+dig 80mrloy► face and 101101 oaphsea fW 6anfmPtcy G(c/a br,�O griflorts to MM pay m o�ourt oo ens heir,u my a bdir'a by ft cour)artuaalao Poai-ft/tlP^arM onla0tlW1 MY Capdom 1lydnpA Caption headrgf In NIe Apreem m ere br mnwrenae plapoess oray and all trot to be used 10 ktwv*a date tfe V,A*m of this Agn eM't 60remfff9 Lsw. This Agmemem WW be gaternrbd by federal law Applicabe to LwKI t sock W as*atom not prenapte0 by halal bat,the taws of to Sian of Callefda p4ro M repmd a tis cohrlicia of law proYNkes. This AgnMnem has been ecesphd by Larder W the Spas i of Csprmnls Chow of Vemw. If Ware is a lawsuit Grarmer apes upon Lendees toclueat to amrM to the ar WCUon of the aoam of San 86"ah fno I Coln{y,those Of CaBema. peal.Pair menb. Any monies Lender Psye becal of an 4131nted Praiefaneo dabs In G W WB Denbuptcy will becomo a part of the IMOt miens,sod,at L~s option,anal be payable by Gnnror as prmmed In time AgnsommIL r No Waiver by Lender. Lendm shat not be ceaned to how waved arty ripnm under W4 Ag wnent unlen cud+walvw is glwn in writing and.ilma by Lender. No deeY or dmeseo On the lam of Landes M eset" any dam dW opora10 w e wgKw of such right a any over right. A Wsha by LanOw Of 0 prowalon of this AW"er MMI not pr*sdm or constitute a w Ww of Loodeft mow otherwise, to damrsi ablec wmpgemro with that provision or My other provision of 6M AareaMnl No prior wvINAW by Landon, nor MY lamas Of i dealing belmeen Land,and Onrdet.Ghee Wnst hna a welaa of MY or Lwdm'a d"a of any of GraMOh obligations as any hYan transactions. wheMwr the mraant of I~Is regWrad under Wk AgmemanL pre granting of ouch oordent by LWOW Nary IrMixge Mirk not oandwte condmirg consent to WbAMIMI Irsnnaec wlwe vmh--am is mpJrad and N e cases such corysu may be Wwood or withhold In fie sde disuegon of Lander. # 7 r NWas. Any r,bw naubed to be ghee uWer Wm Agreement shag be given In wtMna,and she be effective when emm0y des+ored, p N when aebaey remised by teW,aesinmhfe(anew wrovae taqukad by fat,xmm•d•P�d with a haftwlly laooRdaed m'ermlght aeurier. 0 -xn If hallBa when deposited N the United 6Ma ma,es Ilnt Mass,cattlned W MOA& d m ll copal°pnWb,directed b the addteaaaf dose Mar the bogmnirg of this Agreprutt Any Party"Y 00agc he addrwa for ne600e under ads AGeamdk by OykV loo written notice to We~part".specifying that the Wpoo,d We ndke Is W charge hie pertye e6dreae. Fa notice purposes Will apasa e reap Lender Mtom+d at W mras of Gramo's maetm addreae. Urals oarrwlas prwimd a regWned by taw,If tlwn Is more Wen off Grarmor.My notice Chan by Lender to ArlY Gfanee U deemed M be notice even W am Waraces. Power d Aderney. Granbu tpraby appdnta Lender es MOW and tawNl Mtaney4~brrrocsbty.with tali power o1 auba6aam to 00 fire bflowlng: (t) f7 dement, eaaad. mxlw, flOr11Pl fat, we etW rKOYw all easel a man%a other PropamY wfdon meY now a her era became due.owlrg w peysde from the CafhrorW, (2) W exeate,sign end ondase emy and ag ctakro,IMbumenm,raeipb, rdmM,drtfn a wo,snm tall in payment for the Co W"; (3) W savle or compromise any and all tldmt atiskg undw the C0110W , and In ter plow and Meetl of Gnarl W=9011le W OePxr M mkeeo+red settemem for We deim;and (4) W file any claim w claims or W We any action or Instivrie or mks,Pat an any DrooeedmW.oldret in ion own name of In the mama of Grantor,a 00-wlSe,which in the dapedaq of Lender may seem to be nw.oseery or oh lesble. This Poorer N gwen es SCMAY fur the IndobmdIM,and the authority hereby raMerrod a and song be trr sup able and alas remain In 111 force end dfmct gat fahmn0od by Lend-. Wahar of Co-0bigoe- Boyce Grantor bnvocablY vrsives, dsdMms and retlrglAehm all claim AyMn't each odor person Wlnkll Grantor hall W WoWd other-Ise here by Also of payment of ors IrWealedr*s or Wry pet Nenet.spocMc Wly thdadbg but not M,O W ire rglaa M Indemn kY.ppnbbUlw a axarw*dw. Lierorabihtty. If a met of empmom)uMddfon ode My provision el ties Agr"nm m to be leegal, Invalid, a urenWa'eama es W cry dm,snapos,that"nor all"set mako too offending 15MVISM 1110921,hnaiW,w dxe+dorcesbte as W any oWa_dramamnca. If leasab. tie offending pxovmlon$her bo wrolidened mddfwd w that k becomes lope,valid and ardaraesble. m tho offsrxhrq"Asian wool m M modokd,It chat be considrod.oalated from this Lv kss on ru all regWmd by mw.the IAaaality.imramdity,or uMmfweaabiny of any prwiskn of this Areamont shall net otoct�.Validity or enforceability of toy other provision of this Agreemem. 6uaeseam and Awiyne. Subject W any IWAmd_ atnmd in d a A on transfer of Grantor's kmreat, this Ape-rent shah bo bin*e upon and inure to to baeet of On pleas, iheb 510e0esen and $eslprc N awrhaWp of the Collateral becomes noted In a person other than Grantor.Lender.wYWOUt max W e#eoer,may deal wish G~6 SuoWesora with mleranm W onto Apvenrara and One m06t%adraas W way of hrboaenon a extelfabn wnhaut relaasi g Granter from hie obtgallwu of IN%Agreement or labety grader thc Indebtedness. BWVIYM of Rh,"Motiem and Warmnt10s. All rapreaaaesoM.wwrdnfca,and agreements made by Grantor In this Agreement shall Mxylva fie exemsem and delivery of this Agnernas,'roll be mnminuhg N Mtums and Mee remain In NI farce and effect until such tim as Grantan Indebtedness fish be paid In fun. Time is M the 6ssaea. none is of era essence In the prfo mance of L48 AgneWmnf. I WaNe Jury. To the extent paredaed by"MRsabe Law,am send"W tMS Agreement hereby wsfve fits tight to My jury trial In ary action, Ptooes ilmv,a pwraaralMm woWM M any Party"What ally afar Party. OEFtSfION3. The followkng upil lxe0 words and arms"I saw she following meenhga when used M then Agreemonl Union epedlcady eased W On contrary.W WMence s W dollar enamm Shell moan emoWti N 1 041 many of theXAlted Stases c(AMWIM Wards and terms used In the 9VAN drag htduM1 the PkrnM,end to plural dW include tla ekgclar,a the Wrest may TWOM. Words and torma not Marwiso dated N pas Agra n mt ahafl hero the mew*W sarlbAed W each to i In hie Uniltrrn Comaerdd Code mc,Mt The word'Admunr means fie deposit Sxaea desamed in lhe'Cdeeral 130 cdplbn'section. Agmmont The word'Agreenom'means this Aigov hero of Oepoan Aswrmt as 6115 A"FMmA of DePONt A.occaa Wray be enhondad or OWCAd from time W tine,togeNa wish al Merlons MW Sehed0se Wise ad to thh Aeslgnrrarht of 06poek Aoaxad from hoe b gene. I Ifacma+r. The word'Borrowee I", Aeeln-asaye and includes am co-dpars and canakaa Nadn9 6a Nom and 21 tMY saowaom L NAR-02-2010 08:69 CBB TR1 CITY 909 686 6936 P.011 i • i ASSIGNMENT OF DEPOSIT ACCOUNT DRAFT Loan No:88 (CWttinuMQ Pape 4 and mgnR . Ceamwai, Ths word'Cdawar nmana W at Grnrf es rpfn. two end ermrer In and to W ime Collamrm m deaomed In dw Collsww Dwripdon"at on of this AWftm m. DdWIL The woM'DsfW memo dw Oaf"set forth In due Agnm w 1 In the"COW Ned'DafauK'. bent of Oshua. The words"Evora Of DMaulr mean my of Oro ovenm of dafinet sat forth In!ds Apbarrrart N Om dalma seoam of IT" Apmarr" DrnAOr. The werd'Gf nr 'rneam JaelfCaat►0w /� without� O. Ivan Ord G1 w o!Me Note. *mI yuerenmr, ervWW. nmty, of ao=nT*d000n party m !Wooer. k-kdkq lodfemddasa. The word'Irldebeeonw'moerre the indebmdneeee e0denmo by the Nom or Reword Doom,arft Inwrdrlg all "WW and Imemtt ta0etha with 211 aawr 4WWAedroas end them wW W which Grantor h maparoww~tMC A rOOMMU or under ury of I by ed 0oo1mmma i L"Jer. Thar wad RWndef means Cwmns Stmt,*"Gank its sucCaefae am A>s!Pm. NAk Tlm word ONOW rn a " Nom easaAed by In too pndpel wnmm of 8850.000.110 demd FaAAmrlcid, 2010, wpoew with sg renawW of,04vulans of. nvdkaaohs�v*W Of.udmoadgd"Of, 8nd sabsbtuaons for�llrs rot Or oredt tt agreement AD I ,1 RrabO Oowm,,ft TM WMda 'Rdaled Doctnwrm' mom an ppmismy noma, aeCR eprearronb, Mn agreemrnb, emMermental agreemarfa,setuny oreemenm.morlpagoa,deedS of Mot seventy daadf, w0eeral mongepm,*M as COW hmsuftwft agreement I and dom men%,whotler now or hemat er oxlating."OPAW in Connection with lM Indebteoness. GRANTOR HAS READ AND UNDERSTOOD All THE PROMOM OF THIS ASSIGMMT Of OEPDSR ACCOUNT AND AOREES TO ITS l TERMS. THIS AOREEIadtT IS DATED 2910. ! ORANTOR: I, X LENDER: CfrMENS BUSINESS BANK X rrr ( 1 I DRAFT INSERT TO ASSIGNMENT OF DEPOSIT ACCOUNT (SAN BERNARDINO AUTO CENTER$850,000 LOAN) THIS INSERT TO DEPOSIT ACCOUNT, dated 2010, by and between the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic ("Grantor'), as grantor, and Citizens Business Bank ("Lender"), as lender, is attached to and made a part of the Assignment of Deposit Account, dated , 2010, by and between Grantor, as grantor, and Lender, as lender. I. "CD Account Number with Lender with an approximate balance of$850,000.00." 2. "Collateral" 3. "and, as a result thereof," 4. "Grantor may cure defaults by itself or through its authorized agents." 5. ", or one(1) business day after being" 6. "or three (3)business days after being" © 7. "Until the Indebtedness is paid in full," 4817-0073-1347.1 ] DRAFT IN WITNESS WHEREOF, Grantor and Lender have executed this Insert to Assigunent of Deposit Account as of the date first written above. GRANTOR Name: Title: Date: LENDER: CITIZENS BUSINESS BANK By: Authorized Signor 4817-00734397.1 2 EXHIBIT"C" Cost Breakdown (On File with the Agency Secretary) 45 P+Agent pMa A�uMmrne`AgeMa AnazAmemslggrm�sAmnNMIQbS I]10 SB Auto COI,DFP Agrzementd EXHIBIT "D" The Project 46 P�AIPNaS geMa AtlaAmmv A,eM AllaeNmen,,'Ay ,Amend2010W5.17.10 Mq .Cm,OFP Apamem Ecc San Bernardino Auto Center EXIIIf3IT"n" Electronic Freeway Sign Specifications The Project Scope of Work (1) New sign shall be the same height and occupy approximately the same area (projections, overhangs etc.) as the existing sign currently occupies. New sign pole cover will be slightly shifted from existing pole cover location to accommodate installation of new larger main pipe structure and footing along with reusing existing 48" pipe structure as a secondary support. New main larger pipe and footing shall be installed next to existing 48" pipe and shall take the place of existing secondary small pipe and footing that currently exists. (2) Includes old sign removal, secondary small pipe and footing removal, new sign fabrication, installation, shop drawings, electrical line drawings, structural engineering, new main steel pipe structure, certified welding, footing, concrete, LED display, sales tax, and prevailing wage for on site work. Sign Specifications (1) Entire sign to be constructed of.090 Aluminum over steel structure. (2) City logo and individual identification letters "Welcome to San Bernardino"and "Auto Center"to be internally illuminated with "Sloan"white L.E.D.'s. (3) Pole cover and cabinet surfaces to be a texcoat finish. (4) Includes all wiring inside the sign including but not limited to all sub panels and wiring from existing high voltage feed. Also including reusing and hooking up to existing phone line and converting to DSL. (5) Includes removal of old sign and small secondary steel pipe structure and footing as mentioned and disposing of. (6) Includes removal of soil from new footing and returning ground area to original condition following completion of installation. LED Specifications (1) Two LED single face RGB message centers mounted in a double face cabinet. The displays shall be constructed of green, and blue Nichia LEDs, and red Avago LED's clustered into pixels and arrayed into a matrix display. The display will conform to the following specifications: (2) General Specifications: (a) Double face display (b) Physical Pixel Pitch: 25mm (1) (c) Matrix: 336 pixels high by 336 pixels long PHYSICAL. NO PIXEL SHARING. (d) Pixel configuration: 3 LEDs/pixel(1 red, 1 blue, 1 green) (e) Total#of Pixels: 225,792 (f) Total#of LEDs: 677,376 (g) Approximate Cabinet size: 29'0"x 29'0" (h) Wattage per pixel: .15 watts (i) Frame Rate: 30 frames per second 6) Image Processing: 19 bit (k) Color Processing: 14 bit (I) Intensity. 10,000 nits minimum (m)Dimming levels: 1024 (10 bit) (n) Horizontal Viewing: 140' (±70*) (o) Vertical Viewing: 65° (p) # Colors:4.3 trillion colors fa Diode Density: 4,652 mete?/432 fooe (r) Power usage of each display shall not exceed.15 watts per pixel (s) Must be UL orETL listed (t) Modular design for ease of maintenance (u) Serviceability from the front with module removable through the use of captive screws (v) Cabinet color shall be according elevation. (w)Injection molded louvers shall provide shading from the sun, thus increasing contrast ratio and producing maximum color contrast. (x) Life time (half bright) shall be at a minimum of 100,000 hours guaranteed. EXHIBIT "E" Sign Plans 47 P Up mApMa AitxA msU s AnachmemsUgmis•A MIbas-17-10 SB AmnC.-DPP ABrtema t _ � 1r +rte 3 -�S r 1 WELCOME TO P. SAN BERNARDINOw LL' i ' _III��.� !•' �=��h � ���r d �`�-,�� _� T0.; AUTO CENTER .Y �1 yy i MANUFACTURE_&INSTALL(7)ONE D/F PYLON DISPLAY { `( fif?Gid P a � .4 10 u � o a a � A q,7 l F � 111 4 ' I IJ - - n V a for J - r