HomeMy WebLinkAbout13- Development Department Dr, VELOPMENT DEPARTME �
OF THE CITY OF SAN BERNARDINO
REQUEST FOR COMMISSION/COUNCIL ACTION
FROM: KENNETH J. HENDERSON SUBJECT: CAMDEN DEVELOPMENT
Executive Director ASSISTANCE AGREEMENTS
DATE: February 15, 1994
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Synopsis of Previous Commission/Council/Committee Action(s):
On September 7, 1993, the Commission conceptually approved an off site improvement cost reimbursement in
the maximum amount of$650,712,plus an interim construction loan of$600,000 on specified terms secured by
a junior deed of trust and the developer's personal guarantee.
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Recommended Motion(s):
(Community Development Commission)
MOTION: That the Community Development Commission authorize the Executive Director to execute
assistance agreements with Camden Development,Ltd., as drafted by Agency Special Counsel;
further that the Executive Director be authorized to execute such other documents as are required
to carry out the terms of the agreements and be authorized to make such non-substantive
corrections in the agreements as are approved by Agency Counsel; and further, that the Economic
Development Agency budget of 1993-1994 be amended to provide an additional $1,250,712 to
be used for assistance to the University Village Shopping Center development.
Adrr strator KEN NE H J. HE&DERSON
Executive Director
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Contact Person(s): Kenneth J. Henderson/John Hoeger Phone: 5081
Project Area(s): State College (SC) Ward(s): Five (5)
Supporting Data Attached: Staff Report; Owner Participation Agreement
FUNDING REQUIREMENTS: Amount: $1.250.712 Source: State College Project Area
Budget Authority: Approved 09/07/93
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Commission/Council Notes:
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KJH:JBH:lag:camdenl.cdc COMMISSION MEETING AGENDA
MEETING DATE: 02/21/1994
Agenda Item Number: I
DEN . LOPMENT DEPARTN NT
STAFF REPORT
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Camden Development Assistance Agreements
As approved in concept by the Commission on September 7, 1993, counsel has drafted the
attached documents to provide Agency assistance to Mr. Ari Miller, Sole Proprietor of
Camden Development Limited. The documents provide for assistance in the construction of
University Village, a retail convenience center to be located on the northerly corner of
University Parkway and the I-215 freeway.
PROJECT DESCRIPTION
The Project: University Village Shopping Center is a retail convenience center located on 10
acres at the northeast corner of University Parkway and the I-215 Freeway, in the State
College Project Area. The project contains 52,000 square feet of retail space, including 6
outparcels for 4 restaurants, a service station, one freestanding retail building, and three retail
tenant buildings; all as shown on the attached site plan.
Off-site Improvements: Off-site improvements are improvements outside the property line of
the project in the public right of way. They include removal and reconstruction of street
improvements, sidewalks, curbs and gutters. Also included are street lights, street signs,
fencing, landscaping, public utility undergrounding, a traffic signal, utility extensions and
associated City plan check and inspection fees. All allowed off-site improvement costs are
delineated on the attached schedule totaling $650,712.
Phase I Improvements: Phase I consists of the six pad sites in the front portion of the project.
That is, the restaurants, the gas station/mini-mart, and one freestanding build-to-suit building.
Also included in Phase I are the on-site parking and landscaping improvements for the first
part of the project, including landscaping and bank stabilizing improvements for the hillside
area on the site.
Phase II Improvements: Phase II consists of the three rear multi-tenant retail buildings and
the remaining parking, landscaping and the hillside improvements.
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KJH:JBII:lag:camdenLcdc COMMISSION MEETING AGENDA
MEETING DATE: 02/21/1994
Agenda Item Number: /_
DEVELOPMENT DEPAK_ _,ENT STAFF REPORT
Camden Development Assistance Agreement
February 15, 1994
Page Number -2-
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DEAL POINTS
The basic deal points are as follows:
1. Developer will install improvements on the following schedule:
1.1 Completion of grading within one (1) year.
1.2 Completion of off-site improvement installation within two (2) years.
1.3 Completion of Phase I improvements (both on and off-site) within four (4) years.
1.4 Completion of all project improvements within five (5) years.
2. Developer to construct all improvements in accordance with plans approved by the City
of San Bernardino and by the Agency, all in a accordance with Conditional Use Permit
No. 91-45, approved by the City's Planning Commission on July 7th, 1992.
3. Developer will comply with prevailing wage requirements as required by law and will
submit certified payrolls for off-site improvement work.
4. Developer will record CC&R's acceptable to the City Attorney to secure the developer's
performance and to give the Agency and the City the right to enter the property for
maintenance of landscaping and parking areas and to the lien property for costs
involved.
5. Developer will employ or make demonstrated, measurable good faith efforts to employ
15% minority-owned firms and 5% women-owned firms as subcontractors. Similarly,
the developer will employ or make demonstrated, measurable good faith efforts to
employ 15% locally owned firms as subcontractors. If developer fails to meet the
employment goals, it will provide documentation of efforts appropriate and adequate to
meet goals. Adequacy of the documentation will be determined at the sole discretion of
the Agency. Minimum documentation of efforts will include but not be limited to:
5.1 Identify and select specific items of the project for which the contract will be
awarded to be performed by minority/women/local owned businesses.
5.2 Advertisement not less than 10 days before award of bid in one local daily
newspaper, three or more local weekly minority oriented publications, and at
minority contracting centers.
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KJH:JBH:1ag:camden1.cdc COMMISSION MEETING AGENDA
MEETING DATE: 02/21/1994
Agenda Item Number: _
DEVELOPMENT DEPAR- -/IENT STAFF REPORT
Camden Development Assistance Agreement
February 15, 1994
Page Number -3-
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5.3 Written notice of interest to minority, women, and locally owned businesses on
file with the State Department of Transportation and on file with the City of San
Bernardino.
5.4 Documented follow up of initial solicitations of interest by contacting enterprises
to determine with certainty whether the enterprises are interested in performing
specific items of the project.
5.5 Evidence Developer requested assistance from minority, women, and local
business community organizations; minority, women and local contractor groups;
local, state, or federal minority and women business assistance offices; or other
organizations that provide assistance in the recruitment and placement of minority,
women, or local business enterprises, if any are available.
5.6 Evidence Developer negotiated in good faith with the minority, women, or local
business enterprises, and did not unjustifiably reject as unsatisfactory bids
prepared by any minority, women, or local business enterprises, as determined by
the Agency.
5.7 Where applicable, the Developer advised and made efforts to assist interested
minority, women, or locally owned business enterprises in obtaining bonds, lines
of credit, or insurance required by the Developer or contractor.
5.8 The Developer's efforts to obtain minority, women, and local business enterprise
participation can be reasonably expected by the Agency to produce a level of
participation sufficient to meet the goals and requirements of the Agency.
6. Developer will provide full and complete access to accounting, project construction, and
tax records, both personal and business, relating to the project. This is to include Mr.
Miller's personal records and those of Camden Development, Ltd.
7. Developer will provide Agency personnel full access to the project site both during and
following completion of construction for 10 years.
8. Agency has right to approve or disapprove any refinancing or sale of the project until
full repayment of the participant loan.
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KJH:JBH:1ag:camden1.cdc COMMISSION MEETING AGENDA
MEETING DATE: 02/21/19994
Agenda Item Number: _
DEVELOPMENT DEPAK _ENT STAFF REPORT
Camden Development Assistance Agreement
February 15, 1994
Page Number -4-
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9. Loan is to be secured with deed of trust junior only to the construction loan(s). Mr. Ari
Miller is to personally guarantee loan as is Camden Development, Ltd., his sole
proprietorship.
10. Agency will reimburse Developer for off-site improvement expenses which meet all of
the following:
10.1 Expenses are not to exceed the attached schedule for any given line item (and, of
course, not to exceed the total which is $650,712).
10.2 Documentation must be received and verified that payment to contractor has been
made or that escrow is prepared to issue payment to contractor upon receipt
without any other preconditions.
10.3 Payments are to be made to Camden Development, Ltd. or to specified escrow
account on behalf of Camden Development, Ltd.
10.4 Evidence must be received and verified that work was for the line item indicated,
that it was located in the public right of way, and that the work has been accepted
by the City Engineer, or designee.
10.5 The Executive Director is to have ability, in his/her sole discretion, to adjust line
items without increasing the total amount in order to carry out the intent of the
agreement.
11. Agency Executive Director, or designee, to have authority of Commission to execute
any additional documents necessary to carry out the terms of the Agreement.
12. Agency to make a secured interim loan to the developer on the following terms:
12.1 Principal amount: $600,000.
12.2 Interest rate: Interest is waived for the first 36 months. Interest is 7% per annum
thereafter.
12.3 Term: Five years or one year after completion of construction of Phase II,
whichever is first.
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KJH:JBH:1ag:camden1.cdc COMMISSION MEETING AGENDA
MEETING DATE: 02/21/199944
Agenda Item Number: �J
DEVELOPMENT DEPAR_ JENT STAFF REPORT
Camden Development Assistance Agreement
February 15, 1994
Page Number -5-
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12.4 Payments: No payments for first 36 months. Quarterly interest payments
thereafter, plus quarterly principal payments of $5,000. All due and payable at the
end of month 60.
12.5 Collateral: Deed of Trust junior only to construction loan(s). Guarantee of
Camden Development, Ltd., and personal guarantee of Mr. Ari Miller.
12.6 Use of Funds: To be used for construction of project but excluding any
management, developer or other fees or payments to Camden Development, Ltd.,
Mr. Ari Miller, or related entities or persons.
12.7 Disbursement: To qualified escrow or construction control authority account to be
disbursed pro rata with disbursement of the construction loan; any remainder is to
be returned to Agency.
RECOMMENDATION
The developer and Agency Special Counsel have executed the attached agreement. Based
upon the foregoing, it is the recommendation of staff that the Community Development
Commission adopt the form motion.
[
KENNE H J. H NDERSON, Executive Director
Development Department
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KJH:JBH:lag:camdenl.cdc COMMISSION MEETING AGENDA
MEETING DATE: 02/21/1994
Agenda Item Number:
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
SABO & GREEN,
a Professional Corporation
Suite 400
6320 Canoga Avenue
Woodland Hills, California 91367
(Space Above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
OWNER PARTICIPATION LOAN AGREEMENT
(UNIVERSITY VILLAGE SHOPPING CENTER)
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
Ari Miller, a married man dba
CAMDEN DEVELOPMENT, LTD. ,
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TABLE OF CONTENTS
Page
I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement . . . . . . . . . . . 1
B. [102] The Redevelopment Plan . . . . . . . . . . 2
C. [103] The Site . . . . . . . . . . . . . . . . . 2
D. [104] Parties to the Agreement . . . . . . . . . 2
1. [105] The Agency . . . . . . . . . . . . . . 2
2. [106] The Participant . . . . . . . . . 3
3 . [107] Prohibition Against Change in
Ownership, Management and
Control of the Participant . . . . . . 3
4 . [108] Benefit to Project Area . . . . . . . 5
II. [200] IMPROVEMENT OF THE SITE
A. [201] Improvement by Participant . . . . . . . . 5
1. [202] Scope of Development . . . . . . . . . 6
2 . [203] Cost of Construction . . . . . . . . . 6
3 . [204] Construction Schedule . . . . . . . . 6
III. [300] AGENCY ASSISTANCE
A. [301] Participant Loan . . . . . . . . . . . . . 7
B. [302] Agency Reimbursement . . . . . . . . . . . 9
IV. [400] SITE DEVELOPMENT
1. [401] Bodily Injury and
Property Damage Insurance . . . . . 10
2 . [402] Plans and Specifications . . . . . . 12
3 . [403] City and Other Governmental
Agency Permits . . . . . . . . . . . 13
4 . [404] Rights of Access . . . . . . . . . . 13
5. [405] Local, State and Federal Laws . . . 14
6. [406] Antidiscrimination During
Construction . . . . . . . . 14
7. [407] Minority Employment Obligations 15
B. [408] Taxes, Assessments, Encumbrances
and Liens . . . . . . . 17
C. [409] Prohibition Against Transfer of
the Site, the Buildings or
Structures Thereon and Assignment
of Agreement . . . . . . . . . . . . . . 17
D. [410] In Lieu of Increment Fee . . . . . . . . 18
E. [411] Promissory Note; Deed of Trust . . . . . 19
1. [412] Promissory Note . . . . . . . . . . 19
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2 . [413] Deed of Trust . . . . . . . . . . . 19
F. [414] Mortgage, Deed of Trust, Sale
and Lease-Back Financing;
Rights of Holders . . . . . . . . . . . . 20
1. [415] No Encumbrances Except Mortgages,
Deeds of Trust or Sale
and Lease-Back for Development . . . 20
G. [416] Right of Agency to Satisfy Other
Liens On The Site . . . . . . . . . . . . 21
H. [417] Release of Deed of Trust . . . . . . . . 21
V. [500] USES OF SITE
A. [501] Uses - Covenants Running With the Land 22
B. [502] Certificate of Completion . . . . . . . . 25
C. [503] Maintenance of the Site . . . . . . . . . 26
D. [504] Effect of Violation of the Terms
and Provisions of this Agreement
After Completion of Construction . . . . 27
VI. [600] GENERAL PROVISIONS
A. [601] Notices, Demands and Communications
Between the Parties . . . . . . . . . . . 28
B. [602] Conflicts of Interest; Nonliability . . . 29
C. [603] Enforced Delay; Extension of
Times of Performance . . . . . . . . . . 29
D. [604] Inspection of Books and Records . . . . . 30
VII. [700] DEFAULTS AND REMEDIES
A. [701] Defaults - - General . . . . . . . . . . 31
B. [702] Legal Actions . . . . . . . . . . . . . . 31
1. [703] Institution of Legal Actions . . . . 31
2 . [704] Applicable Law . . . . . . . . . 32
3 . [705] Acceptance of Service of Process . . 32
C. [706] Rights and Remedies are Cumulative . . . 32
D. [707] Inaction Not a Waiver of Default . . . . 32
E. [708] Remedies . . . . . . . . . . . . . . . . 33
1. [709] Damages . . . . . . . . . . . . . . 33
VIII. [800] SPECIAL PROVISIONS
A. [801] Submission of Documents to
Agency for Approval . . . . . . . . . . . 33
B. [802] Successors in Interest . . . . . . . . . 34
IX. [900] ENTIRE AGREEMENT, WAIVERS . . . . . . . . . . . . . 34
(ii)
X. [1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. [1001] Time for Acceptance . . . . . . . . . . . 35
ATTACHMENT NO. 1 - LEGAL DESCRIPTION OF THE SITE
ATTACHMENT NO. 2 - SCOPE OF DEVELOPMENT
ATTACHMENT NO. 2A - SITE PLAN
ATTACHMENT NO. 2B - IMPROVEMENTS LIST
ATTACHMENT NO. 3 - SCHEDULE OF PERFORMANCE
ATTACHMENT NO. 4 - PROMISSORY NOTE
ATTACHMENT NO. 5 - DEED OF TRUST WITH ASSIGNMENT OF RENTS
(iii)
sa/011UNW.VU L
2/9/94 230 Iw
OWNER PARTICIPATION LOAN AGREEMENT
THIS AGREEMENT IS ENTERED INTO this day of
, 1994, by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO (the "Agency") and Mr. Ari Miller, a married
man dba CAMDEN DEVELOPMENT, LTD. , as his sole and separate property
(the "Participant") . Agency and Participant hereby agree as
follows:
I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan for the State College Redevelopment Project (the
"Redevelopment Plan") by providing for Agency assistance to
Participant in connection with the improvement of the Site, which
is located in and will benefit the State College Redevelopment
Project Area (the "Project Area") . The completion of the
improvements on the Site pursuant to this Agreement is in the vital
and best interests of the City of San Bernardino, California (the
"City") and the health, safety and welfare of its residents, and in
accord with the public purposes and provisions of applicable state
and local laws and requirements under which the Redevelopment Plan
has been undertaken.
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B. [102] The Redevelopment Plan
The Redevelopment Plan was approved by ordinance of the
Common Council of the City of San Bernardino; said ordinance and
the Redevelopment Plan as so approved are incorporated herein by
reference.
C. [103] The Site
The Site is that certain real property generally located
on approximately ten (10) acres of land at the northeast corner of
University Parkway and the Interstate 215 Freeway in the City of
San Bernardino and as more fully described in the "Legal
Description of the Site" , which is attached hereto as
Attachment No. 1 and is incorporated herein by this reference. The
Site is located within the Project Area subject to the
Redevelopment Plan.
D. [104] Parties to the Agreement
1. [105] The Agency
The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
existing under Chapter 2 of the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, et seq.)
The principal office of the Agency is located at 201 North "E"
Street, San Bernardino, California 92401.
"Agency", as used in this Agreement, includes the
Community Development Commission of the City of San Bernardino, the
Economic Development Agency of the City of San Bernardino, the
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Redevelopment Agency of the City of San Bernardino, and any
assignee of or successor to their rights, powers and
responsibilities.
2. [106] The Participant
The Participant hereby represents and warrants that
Participant owns fee title to the Site and is therefor eligible to
proceed as an owner participant with respect to the development of
the Site. The principal office and mailing address of the
Participant for purposes of this Agreement is as follows:
Camden Development, Ltd.
9454 Wilshire Blvd. , Suite 650
Beverly Hills, California 90212
Attn: Ari Miller, Owner
The Participant qualifies as an owner participant
pursuant to the Redevelopment Plan and rules promulgated pursuant
thereto pertaining to owner participation.
3 . [107] Prohibition Against Change in Ownership,
Management and Control of the Participant
The qualifications and identity of the Participant are of
particular concern to the Agency. It is because of those
qualifications and identity that the Agency has entered into this
Agreement with the Participant. No voluntary or involuntary
successor in interest of the Participant shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
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The Participant shall not assign all or any part of this
Agreement or any rights hereunder without the prior written
approval of the Agency, which approval the Agency will not
unreasonably withhold. In the event of such transfer or
assignment: (1) the assignee shall expressly assume the obligations
of the Participant pursuant to this Agreement in writing
satisfactory to the Agency; (2) the original Participant shall
remain fully responsible for the performance and liable for the
obligations of the Participant pursuant to this Agreement; and (3)
any guarantees provided to assure the performance of the
Participant's obligations under this Agreement shall remain in full
force and effect.
In the absence of specific written agreement by the
Agency, no such transfer, assignment or approval by the Agency
shall be deemed to relieve the Participant or any other party from
any obligation under this Agreement.
All of the terms, covenants and conditions of this
Agreement shall be binding upon and shall inure to the benefit of
the Participant and the permitted successors and assigns of the
Participant. Whenever the term "Participant" is used herein, such
term shall include any other permitted successors and assigns as
herein provided.
The restrictions of this Section 107 shall terminate and
be of no further force and effect upon expiration of a period of
ten (10) years from the date hereof.
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4. [108] Benefit to Project Area
The Agency has determined that the development of the
Site in accordance with this Agreement will eliminate blight and
provide a benefit to the Project Area through the construction of
an upscale commercial retail shopping center containing a total of
approximately 52,000 square feet of retail space including six (6)
out parcels upon which will be developed four (4) restaurants, a
service station, a bank or retail building. Additionally, three
(3) retail tenant buildings shall be developed. The foregoing
shall hereinafter be referred to as the "On-Site Improvements".
The Participant shall also cause the construction of all related
off-site improvements (the "Off-Site Improvements") . The Off-Site
Improvements and the On-Site Improvements are more fully described
in the Scope of Development as described in Section 202 hereof
(collectively, the On-Site Improvements and the Off-Site
Improvements shall hereinafter be referred to as the "Project") .
The development of the Site shall occur in two phases. The
development of the Project will provide employment opportunities to
residents of the Project Area will generate tax revenues and will
help eliminate blighting conditions.
II. [200] IMPROVEMENT OF THE SITE
A. [201] Improvement by Participant
The Participant and the Agency agree that the central
purpose of this Agreement is to provide for the construction on the
Site of the Project by the Participant. Said Project shall enable
the Participant to create additional employment opportunities in
the Project Area, to produce additional tax increment and sales tax
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revenues for the Project Area and to provide community-wide
benefits through the establishment of a community shopping center.
1. [202] Scope of Development
The Site shall be developed by the Participant in two (2)
phases as provided in the "Scope of Development", which is attached
hereto as Attachment No. 2 and is incorporated herein by this
reference, in a manner consistent with the provisions of the
Redevelopment Plan.
2 . [203] Cost of Construction
Except as otherwise herein provided, the costs of
constructing the Project shall be borne solely by Participant. The
Agency shall have no obligations, other than as expressly set forth
herein, with respect to the funding of the Project.
3 . [204] Construction Schedule
Upon execution of this Agreement, the Participant will
promptly begin and diligently prosecute to completion the
construction of the Project. The Participant shall begin and
complete all construction and development of the Project within the
times specified in the "Schedule of Performance" which is attached
hereto as Attachment No. 3 and incorporated herein by reference.
The Participant shall strictly conform to all time requirements and
limitations set forth in this Agreement.
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III. [300] AGENCY ASSISTANCE
A. [301] Participant Loan
(a) In order to assist in the development of the
Project, the Agency agrees to loan to the Participant an amount
equal to Six Hundred Thousand Dollars ($600,000) (the "Participant
Loan") . The proceeds of the Participant Loan are to be used by
Participant to cause the construction of the Project. The
Participant Loan shall be reflected in a certain Promissory Note in
favor of the Agency, as provided in Section 411 hereof, which shall
be in a form substantially similar to Attachment No. 4 attached
hereto and incorporated herein by reference and the Participant
Loan, shall be secured by a Deed of Trust conveying title to the
Site in favor of the Agency as provided in Section 412 hereof which
shall be in a form substantially similar to Attachment No. 5
attached hereto and incorporated herein by reference. Except as
otherwise provided herein, said Deed of Trust shall be subordinate
only to the Participants' Construction Loan, as hereinafter
defined.
(b) The proceeds of the Participant Loan are to be used
solely to fund the direct costs of design and construction of the
Project; provided, however, that no proceeds may be used to pay
management fees, developer fees, or any other fees or expenses of
Camden Development, Ltd. , Ari Miller or any related persons or
entities. Notwithstanding the foregoing, the Executive Director of
the Agency may, by prior written approval, given in his/her sole
discretion, authorize the use of proceeds of the Participant Loan
to reimburse Camden Development, Ltd. , for direct Project expenses.
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(c) The Promissory Note shall have a term equal to the
earlier of (i) five (5) years from the date of execution or
(ii) one (1) year from the completion of construction of the Phase
II Improvements as described on the Scope of Development. The
Promissory Note shall bear annual interest at the rate of seven
percent (7%) per annum with payments of principal and interest to
commence on the thirty seventh (37th) month all as more fully
described in the Promissory Note. The outstanding balance of all
principal and accrued interest shall be due and payable in full at
the expiration of the term of the Promissory Note.
(d) The Agency's obligation with respect to the
execution and provision of the Participant Loan shall become
binding only upon (i) the concurrent funding of a construction loan
in the amount of One Million Four Hundred Thousand Dollars
($1,400, 000) (the "Construction Loan") , (ii) receipt by the
Participant of all necessary entitlements and permits as provided
in Section 402 hereof, (iii) the Agency's receipt of an executed
original of this Agreement, (iv) receipt of a countersigned
Certificate of Insurance as provided in Section 401 hereof, and
(v) receipt of an ALTA lender's policy provided by Participant and
approved by Agency in the full amount of the Participant Loan.
Item No. (i) of this paragraph shall be satisfied only upon written
approval of all terms and conditions and documents pertaining
thereto which written approval shall be given at the Agency's sole
discretion as determined by the Agency's Executive Director within
fifteen (15) business days of the Agency's receipt of all
information and documentation necessary and appropriate for such determination.
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(e) Funds representing the proceeds of the Participant
Loan are to be disbursed through an Agency approved construction
escrow account or construction control authority. Funds shall be
disbursed on a pro rata percentage schedule corresponding to the
disbursement of proceeds of the Construction Loan and any funds not
required for completion of Phase I shall not be disbursed, but
instead shall be returned to the Agency.
B. [302] Agency Reimbursement
In addition to the provision of the Participant Loan and
to the extent the Participant is not otherwise in default under the
terms of the Participant Loan or this Agreement, the Agency further
agrees, subject to the conditions as hereinafter set forth, to
reimburse the Participant for a portion of the costs of those
certain Off-Site Improvements as more fully described in the Scope
of Development (Attachment No. 2 and Attachment 2B) . The amount of
the reimbursement to be made by the Agency for any costs related to
the Off-Site Improvements shall not exceed the amount shown in
Attachment No. 2B for any given line item and shall not exceed, in
the aggregate, the total amount of Six Hundred Fifty Thousand Seven
Hundred and Twelve Dollars ($650,712) (the "Agency Reimbursement") .
The Agency Reimbursement shall be provided as follows: (i)
Participant shall submit documentation to the Agency which is to be
verified by Agency Staff and which documentation evidences that
payments have been made to a contractor or subcontractor or that an
appropriate escrow is prepared to issue payment to a contractor or
subcontractor upon receipt without any other preconditions; (ii)
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payments shall be made to Camden Development, Ltd. or to a
specified escrow account on behalf of Camden Development, Ltd. ;
(iii) evidence must be received and verified by Agency Staff within
twenty (20) business days of Agency's receipt of all information
and documentation necessary and appropriate to such verification,
that work has been completed for the line items indicated and that
it was located in the public right-of-way, and that the work has
been accepted by the City Engineer or designee; and (iv) the Line
item amounts shown on Exhibit 2B shall not be altered provided,
however, that the Executive Director shall have the ability, in his
or her sole discretion, to adjust any line item amounts without
altering the total amount of the Agency Reimbursement in order to
carry out the intent of this Agreement. As consideration for the
provision of the Agency Reimbursement, the Participant shall cause
to be prepared and executed, within sixty (60) days after execution
of this Agreement and prior to the disbursement of any funds
representing the Participant Loan or the Agency Reimbursement,
certain Conditions, Covenants and Restrictions pertaining to the
Site in a form satisfactory to the Agency.
IV. (400] SITE DEVELOPMENT
1. (401] Bodily Injury and Property Damage
Insurance
The Participant shall defend, assume all responsibility
for and hold the Agency, the City and their respective officers,
agents and employees, harmless from all claims or suits for, and
damages to, property and injuries to persons, including accidental
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death (including attorneys' fees and costs) , which may be caused by
any of Participant's activities under this Agreement, whether such
activities or performance thereof be by the Participant or anyone
directly or indirectly employed or contracted by the Participant
and whether such damage shall accrue or be discovered before or
after termination of this Agreement. The Participant shall obtain
and maintain a comprehensive liability and property damage policy,
upon such specific terms as are acceptable to Agency's Risk
Manager, in the amount of One Million Dollars ($1, 000, 000) combined
single limit policy, including contractual public liability, and
shall protect the Participant, the City and the Agency from claims
for such damages until two (2) years after the expiration of the
Participant Loan.
The Participant shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on a
form of the insurance carrier setting forth the general provisions
of the insurance coverage. This countersigned certificate shall
name the City and Agency and their respective officers, agents, and
employees as additional insureds under the policy. The certificate
by the insurance carrier shall contain a statement of obligation on
the part of the carrier to notify the City and Agency of any
material change, cancellation or termination of the coverage at
least thirty (30) days in advance of the effective date of any such
material change, cancellation or termination. Coverage provided
hereunder by the Participant shall be primary insurance and not
contributing with any insurance maintained by the Agency or City,
and the policy shall contain such an endorsement. The insurance
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1 �
policy or the certificate of insurance shall contain a waiver of
subrogation for the benefit of the City and Agency.
The Participant shall furnish or cause to be furnished to
the Agency evidence satisfactory to the Agency that any contractor
with whom it has contracted for the performance of work on the Site
or otherwise pursuant to this Agreement carries workers'
compensation insurance as required by law.
2. [402] Plans and Specifications
The Participant agrees that the site plan, on-site
grading and improvement plans and the plans and specifications to
be prepared for the acquisition, construction and installation of
the Off-Site Improvements together with the parking and hillside
improvement plans and the landscape and irrigation plans for the
Phase I portion of the Project described in Attachment No. 2 shall
be submitted to the appropriate department of the City and approved
prior to commencement of construction of the On-Site Improvements,
and the disbursements of any funds representing the proceeds of the
Participant Loan or the Agency Reimbursement. Furthermore, the
Participant agrees that the site plan, improvement plans and plans
and specifications relative to Building G as described in
Attachment No. 2 shall be submitted to and approved by the
appropriate City departments prior to the disbursement of any funds
representing the proceeds of the Participant Loan or the Agency
Reimbursement otherwise allocated to the construction of
Building G.
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I.2
3 . [403] City and other Governmental Agency Permits
Prior to the disbursement of any proceeds representing
the Participant Loan or commencement of the Project or other
construction or development of any buildings, structures or other
works of improvement upon the Site, the Participant shall, at its
own expense, secure or cause to be secured any and all permits for
all necessary off-site improvements which may be required by the
City or any other governmental agency having jurisdiction over such
construction, development or work.
Nothing contained in this Agreement shall be deemed to be
an approval by the City of any application or permit required to be
obtained by the Participant from the City.
4 . [404] Rights of Access
For the purpose of assuring compliance with this
Agreement, representatives of the Agency and the City shall have
the right of access to the Site, without charges or fees, at normal
construction hours during the period of work for the purposes of
this Agreement, including, but not limited to, the inspection of
the work being performed in constructing the improvements, so long
as they comply with all safety rules. Such representatives of the
Agency or of the City shall be those who are so identified in
writing by the Executive Director of the Agency. The Agency shall
hold the Participant harmless from any bodily injury or related
damages arising out of the activities of the Agency and the City as
referred to in this Section 404 and resulting from the gross
negligence or willful misconduct of the City or Agency. This
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Section 404 shall not be deemed to diminish or limit any rights
which the City or Agency may have by operation of law irrespective
of this Agreement. The Agency's rights to access shall continue
for a period of ten (10) years from the date of this Agreement in
order to ensure continued compliance with this Agreement.
5. [405] Local, State and Federal Laws
The Participant shall carry out the Project and all
related activities on the Site in conformity with all applicable
laws, including all applicable federal and state labor standards
and prevailing wage and public bid procedures; provided, however,
the Participant and its contractors, successors, assigns,
transferees, and lessees are not waiving their rights to contest
any such laws, rules, standards or procedures. Unless otherwise
exempted pursuant to State or Federal law, the Participant and its
contractors and sub-contractors shall pay prevailing wages to all
employees with respect to the Project.
6. [406] Antidiscrimination During Construction
The Participant, for itself and successors and assigns,
agrees that in the construction of the improvements provided for in
this Agreement, the Participant shall not discriminate against any
employee or applicant for employment because of race, color, creed,
religion, age, sex, marital status, handicap, national origin or
ancestry.
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I �
7. (407) Minority Employment Obligations.
Participant will employ or make demonstrated, measurable
good faith efforts to employ fifteen percent (15%) minority-owned
firms and five percent (5%) women-owned firms. Similarly,
Participant will employ or make demonstrated, measurable good faith
efforts to employ ten percent (10%) locally-owned firms as
subcontractors. If Participant fails to meet the employment goals,
it will provide documentation of efforts appropriate and adequate
to meet goals to the Agency. Adequacy of the documentation will be
determined at the bole discretion of the Agency. Minimum
documentation of efforts will include but not be limited to:
a. Identify and select specific items of the Project
for which the contract will be awarded to be performed by
minority/women/local-owned businesses.
b. Advertisement not less than ten (10) days before
award of bid in one local daily newspaper, three or more local
weekly minority oriented publications and at minority contracting
centers.
C. Written notice of interest to minority, women and
locally owned businesses on file with Department of Transportation
and on file with the City of San Bernardino.
d. Documented follow-up of initial solicitations of
interest by contacting enterprises to determine with certainty
- 15 -
whether the enterprises are interested in performing specific items
of the Project.
e. Evidence Participant requested assistance from
minority, women and local business community organizations;
minority, women and local contractor groups; local, state or
federal minority and women business assistance offices; or other
organizations that provide assistance in the recruitment and
placement of minority, women or local business enterprises, if any
are available.
f. Evidence Participant negotiated in good faith with
the minority, women or local business enterprises, and did not
unjustifiably reject as unsatisfactory bids prepared by any
minority, women or local business enterprises, as determined by the
Agency.
g. Where applicable, the Participant advised and made
efforts to assist interested minority, women or locally owned
business enterprises in obtaining bonds, lines of credit or
insurance required by the Participant or contractor.
h. The Participant's efforts to obtain minority, women
and local business enterprise participation can be reasonably
expected by the Agency to produce a level of participation
sufficient to meet the goals and requirements of the Agency.
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B. [408] Taxes, Assessments, Encumbrances and Liens
Prior to repayment in full of the Participant Loan, the
Participant shall not, except as otherwise permitted by this
Agreement, place or allow to be placed on the Site or any part
thereof any mortgage, trust deed, encumbrance or lien without the
express prior written consent of the Agency which shall not be
unreasonably withheld.
C. [409] Prohibition Against Transfer of the Site, the
Buildings or Structures thereon and Assignment
of Agreement
Prior to expiration of five (5) years from the repayment
of the Participant Loan, the Participant shall not, except as
permitted by this Agreement, without the prior written approval of
the Agency which shall not be unreasonably withheld, make any total
or partial sale, transfer, conveyance, assignment or lease of whole
or any part of the Site or of the buildings or structures on the
Site. The Agency will make partial reconveyances under the Deed of
Trust upon payment to the Agency of One Hundred Fifty Thousand
Dollars ($150, 000) per pad or building as described in Attachment
No. 2, or upon such other terms as are acceptable to the Agency's
Executive Director in his/her sole discretion. This prohibition
shall not be deemed to prevent a transfer expressly permitted
pursuant to Section 107 of this Agreement, or the granting of
temporary or permanent easements or permits to facilitate the
development of the Site.
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D. [410] In Lieu of Tax Increment Fee
Upon expiration of the Participant Loan, and for five (5)
years thereafter, Participant agrees that in the event Participant
or any of Participant's successors or assigns takes any action or
through any inaction that reduces the assessed value, or in any
manner causes to be reduced the assessed value of the Project, or
sells, transfers, conveys, assigns, or leases all or any part of
the Site or of the buildings or structures on the Site to any
entity or combination of entities whose status results in a
reduction or elimination in the tax increment revenues that the
Agency, in its sole determination, would otherwise have received
upon annual valuation assessments of the Site and the Project in
accordance with Article XIIIA of the California Constitution, then
Participant shall pay the Agency semi-annually on February 1, and
on August 1, an in lieu of tax increment fee equal to the amount of
tax increment that the Agency would have otherwise received during
the preceding six (6) month period terminating on December 31 and
June 30, respectively. Such in lieu of tax increment fee shall be
calculated as the difference between the tax increment revenue
actually received by the Agency and the tax increment payment that
would have been received attributable to the Project had not such
reduction in assessed value, sale(s) , transfer(s) , conveyance(s) ,
assignment(s) , or lease(s) been made. This Section 410 shall
remain in effect for five (5) years following the expiration of the
Participant Loan and shall not be extinguished by issuance of any
Certificate of Completion issued pursuant to Section 502 of this
Agreement.
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E. [411] Promissory Note; Deed of Trust
1. [412] Promissory Note
The Participant shall execute a Promissory Note (the
"Note") in favor of the Agency in substantially the form as
attached hereto as Attachment No. 4 evidencing the Participant Loan
from the Agency to the Participant in an amount equal to $600, 000
for the purpose of assisting in the construction of the Project.
The outstanding principal balance of the Note shall bear interest
from the thirty-seventh (37th) month from the date of the Note
until repayment in full equal to seven percent (7%) per annum, all
as more fully described in Attachment No. 4. The term of the Note
shall be the earlier of five (5) years or one (1) year from the
date of completion of construction of the Phase II Improvements as
described on the Scope of Development.
2 . [413] Deed of Trust
To secure the Participant Loan and the Agency
Reimbursement, the Participant shall execute a Deed of Trust in the
Form of Attachment No. 5, attached hereto and incorporated herein
by this reference. The Deed of Trust shall be subordinated to the
Construction Loan and/or such other financing as the Agency may
approve in writing for the purposes of completing the Project. The
Deed of Trust shall provide that it will remain in effect until
repayment in full of the Participant Loan.
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F. [414] Mortgage, Deed of Trust, Sale and Lease-Back
Financing; Rights of Holders
1. [415] No Encumbrances Except Mortgages, Deeds
of Trust or Sale and Lease-Back for
Development
The Participant intends to obtain, and Agency agrees
thereto, a Construction Loan for the undertaking of the Project in
the approximate amount of $1,400,000 which may be obtained in one
or more increments. The Agency agrees that its Deed of Trust shall
be subordinate to the liens of said Construction Loan providing the
Agency has approved the terms of said Construction Loan and deeds
of trust or similar security documents, which approval shall be
given as described in Section 301(d) hereof. Participant shall not
enter into any other conveyance or lien for financing without the
prior written approval of the Agency, which approval the Agency
agrees to give if any such conveyance or lien for financing is
given to a bank, savings and loan association, life insurance
company or other similar lending institution or to Anvil Financial,
Ltd. , and the terms of said financing are reasonably acceptable to
the Agency. Approval of such other conveyance or lien for
financing by the Agency shall not constitute a subordination of the
Deed of Trust to such conveyance or lien without the express
written approval of the Agency which shall not be unreasonably
withheld provided that the subordination is a lien pertaining to
(a) direct financing costs of the Project, (b) a senior
construction loan, or (c) a refinancing of the Participant Loan.
The form of approval by the Agency shall be in writing which
references this Section 415, executed by the Executive Director of
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/3
the Agency. In the event that the Agency fails to accept or reject
such lender in writing within fifteen (15) days after written
notice thereof is received by the Agency, such lender shall be
deemed approved.
G. (416] Right of Agency to Satisfy Other Liens On The
Site
Prior to the completion of the Project, and after the
Participant has had written notice and has failed after a
reasonable time, but in any event not less than fifteen (15) days,
to challenge, cure, adequately bond against, or satisfy any liens
or encumbrances on the Site which are not otherwise permitted under
this Agreement, the Agency shall have the right but not the
obligation to satisfy any such liens or encumbrances and to seek
indemnification therefor from the Participant.
H. (417] Release of Deed of Trust
Upon repayment in full of the Participant Loan, the
Agency agrees to reconvey the Deed of Trust. Upon the recording of
a reconveyance of the full Deed of Trust, any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest
in the Site or the Project shall not, as a result of such
ownership, lease or acquisition, incur any obligation or liability
under this Agreement except that such party shall be bound by the
covenants set forth in Sections 302, 501 and 503 of this Agreement,
which shall be applicable, each according to its terms.
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l�
Regardless of the Participant's ability to complete
construction of the Project, the Participant agrees to repay the
Participant Loan in full within five (5) years of the date of
execution of this Agreement. A failure to do so within thirty (30)
days of Agency's written demand shall constitute a material breach
of this Agreement and shall entitle the Agency to declare the
Participant in default, and to foreclose upon the Deed of Trust,
and/or to exercise any other remedies available under this
Agreement, the Deed of Trust or at law or in equity.
V. [500] USES OF SITE
A. [501] Uses - Covenants Running With the Land
The Participant covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Site or any part thereof, that for a period of ten (10) years
commencing on the date of the issuance by City of the Certificate
of Occupancy for the Site, that portion of the Site upon which the
Project is located will be devoted to uses as a commercial retail
shopping center in a manner consistent with the Redevelopment Plan.
The foregoing covenant shall run with the land for ten
(10) years commencing on the date that the City issues the
Certificate of Occupancy.
The Participant further covenants and warrants that the
Participant shall develop improvements on the Site in accordance
with the Scope of Development. The Participant covenants to
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develop the Site in conformity with all applicable laws. The
covenants of this paragraph shall run with the land.
The Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
against or segregation of any person or group of persons on account
of race, color, creed, religion, sex, marital status , age,
handicap, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Site, nor
shall the Participant itself or any person claiming under or
through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Site. The foregoing covenants shall
run with the land.
All deeds, leases or contracts pertaining to the Site
shall contain or be subject to substantially the following
nondiscrimination or non-segregation clauses:
1. In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex,
marital status, age, handicap, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee
- 23 - z
himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing
covenants shall run with the land. "
2 . In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors, administrators and
assigns, and all persons claiming under or through him or her, that
this lease is made and accepted upon and subject to the following
conditions: "There shall be no discrimination against or
segregation of any person or group of persons on account of race,
color, creed, religion, sex, marital status, handicap, age,
ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or
any person claiming under or through him or her, establish or
permit any such practices or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, sublessees, subtenants or vendees
in the premises herein leased. "
3 . In contracts: "There shall be no discrimination
against or segregation of, any person, or group of persons on
account of race, color, creed, religion, sex, marital status, age,
handicap, ancestry or national origin, in the sale, lease,
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13
sublease, transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with
reference to the selection, location, number use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the
premises. "
B. [502] Certificate of Completion
The Agency, its successors and assigns agree that upon
the full compliance by the Participant with the terms of this
Agreement which pertain to the construction of the Project upon the
Property, and following completion of the Project, the receipt by
the Agency of a written request from the Participant for a
Certificate of Completion and notification that the Property is
ready for occupancy, the Agency' s Executive Director shall provide
promptly and furnish to the Participant a Certificate of Completion
certifying that the construction and acquisition or installation of
the Project, as required pursuant to this Agreement, has been
completed to the satisfaction of the Agency, its successors and
assigns. Upon issuance of the Certificate of Completion by the
Agency, each of the covenants, restrictions, warranties and
conditions contained in this Agreement relating to the construction
of the Project, unless otherwise provided for herein, shall be
deemed satisfied and shall terminate.
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( -3 2
C. [503] Maintenance of the Site
The Participant shall maintain the Project and all other
improvements on the Site and shall keep the Site free from any
accumulation of debris or waste materials.
The Participant further agrees to maintain the Site in a
neat and attractive manner until construction of the improvements
described in this Agreement is complete so as not to, in the
reasonable determination of an appropriate officer of the City, be
a public nuisance, or be detrimental to the health, safety and
welfare, or impair value of property within one thousand (1, 000)
feet of the Site, and agrees that in the event Participant fails to
do so, the Agency may enter upon the Site for the purposes of
performing necessary and desirable maintenance and that Participant
will be responsible for the cost of any such maintenance undertaken
by the Agency, which shall be paid within thirty (30) days after
receipt by the Participant of written demand therefor.
Following the completion of the Project, the Participant
shall also maintain the landscaping required to be planted under
the Scope of Development (Attachment No. 2) in a healthy condition.
Such obligation shall continue for the useful life of the Project
and shall not be deemed satisfied upon the recordation of a
Certificate of Completion as described in Section 502 hereof. If,
at any time, the Participant fails to maintain said landscaping,
and said condition is not corrected after expiration of thirty (30)
days from date of written notice from the Agency, the Agency may
perform the necessary landscape maintenance and the Participant
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i_3
shall pay such costs as are reasonably incurred for such
maintenance.
The Participant agrees to prepare and record Covenants,
Conditions and Restrictions approved by Agency, consistent with
this Section 503 including the maintenance responsibilities
outlined in this Agreement which may not be amended nor revoked
without the approval of the Agency. To the extent the Participant
is in violation of the provisions of this Section, the Participant
agrees that the Agency shall be entitled to place a lien against
the Site to the extent necessary to secure payment of the costs of
providing the necessary maintenance.
D. [504] Effect of Violation of the Terms and
Provisions of this Agreement After Completion
of Construction
The covenants established in this Agreement shall,
without regard to technical classification and designation, be
binding for the benefit and in favor of the Agency, its successors
and assigns, as to those covenants which are for its benefit. The
covenants contained in this Agreement shall remain in effect until
the termination date of the Redevelopment Plan unless an earlier
date is specified. The covenants against racial discrimination
shall remain in perpetuity.
The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the
land, for and in its own rights and for the purposes of protecting
- 27 -
I3
the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided. The
Agreement and the covenants shall run in favor of the Agency,
without regard to whether the Agency has been, remains or is an
owner of any land or interest therein in the Site. The Agency
shall have the right, if the Agreement or covenants are breached,
to exercise all rights and remedies, and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce
the curing of such breaches to which it or any other beneficiaries
of this Agreement and covenants may be entitled.
VI. [600] GENERAL PROVISIONS
A. [601] Notices, Demands and Communications Between
the Parties
Written notices, demands and communications between the
Agency and the Participant shall be sufficiently given if delivered
by hand (and a receipt therefor is obtained or is refused to be
given) or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the principal offices of the
Agency and the Participant. Such written notices, demands and
communications may be sent in the same manner to such other
addresses as such party may from time to time designate by mail as
provided in this Section 601.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
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deemed received on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B. [602] Conflicts of Interest; Nonliability
No member, official or employee of the Agency or the City
shall have any personal interest, direct or indirect, in this
Agreement. No member, official or employee shall participate in
any decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested. No
member, official or employee of the Agency or the City shall be
personally liable to the Participant, or any successor in interest,
in the event of any default or breach by the Agency or the
Participant, or for any amount which may become due to the
Participant or its successor or on any obligations under the terms
of this Agreement.
The Participant represents and warrants that it has not
paid or given, and shall not pay or give, any third party any money
or other consideration for obtaining this Agreement.
C. [603] Enforced Delay; Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
war; insurrections; floods; earthquakes; fires; casualties; acts of
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God; acts of the public enemy; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather;
acts or omissions of another party; acts or failures to act of the
City or any other public or governmental agency or entity (other
than the acts or failures to act of the Agency which shall not
excuse performance by the Agency) ; or any other causes beyond the
control or without the fault of the party claiming an extension of
time to perform. Notwithstanding anything to the contrary in this
Agreement, an extension of time for any such cause shall be for the
period of the enforced delay and shall commence to run from the
time of the commencement of the cause, if notice by the party
claiming such extension is sent to the other party within thirty
(30) days of the commencement of the cause. Times of performance
under this Agreement may also be extended in writing by the mutual
agreement of the Agency and the Participant.
The Participant is not entitled pursuant to this
Section 603 to an extension of time to perform because of past,
present, or future difficulty in obtaining suitable temporary or
permanent financing for the Site.
D. [604) Inspection of Books and Records
The Agency has the right at all reasonable times to
inspect the books and records of the Participant and for Camden
Development, Ltd. pertaining to the Site as pertinent to the
purposes of this Agreement. The Participant has the right at all
reasonable times to inspect the public records of the Agency
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pertaining to the Site as pertinent to the purposes of the
Agreement.
VII. [700] DEFAULTS AND REMEDIES
A. [701] Defaults - - General
Subject to the extensions of time set forth in
Section 603, failure or delay by any party to perform any term or
provision of this Agreement constitutes a default under this
Agreement. The party who so fails or delays must immediately
commence to cure, correct, or remedy such failure or delay, and
shall complete such cure, correction or remedy with diligence.
The injured party shall give written notice of default to
the party in default, specifying the default complained of by the
injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against
the party in default until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not
constitute a waiver of any default, nor shall it change the time of
default.
B. [702] Legal Actions
1. [703] Institution of Legal Actions
In addition to any other rights or remedies hereunder,
the Agency or the Participant may institute legal action to cure,
correct or remedy any default, to recover damages for any default,
or to obtain any other remedy consistent with the purpose of this
Agreement. Any legal actions initiated pursuant to this Agreement
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or otherwise with respect to this subject matter must be instituted
in the Superior Court of the County of San Bernardino, State of
California, or in an appropriate municipal court in that county.
2 . [704] Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
3 . [705] Acceptance of Service of Process
In the event that any legal action is commenced by any
party against another party, service of process on such party shall
be made by personal service upon such party or in such other manner
as may be provided by law, and shall be valid whether made within
or without the State of California.
C. [706] Rights and Remedies are Cumulative
Except as otherwise expressly stated in this Agreement,
the rights and remedies of the parties are cumulative, and the
exercise by any party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any
other default by any other party.
D. [707] Inaction Not a Waiver of Default
Any failures or delays by any party in asserting any of
its right and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies, or deprive
any party of its right to institute and maintain any actions or
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13
proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
E. [708] Remedies
1. (709] Damages
If either the Participant or the Agency defaults with
regard to any of the provisions of this Agreement, the non-
defaulting party shall serve written notice of such default upon
the defaulting party. If the default is not cured or if a cure has
not been commenced and is being diligently pursued to completion by
the defaulting party within thirty (30) days after service of the
notice of default, the defaulting party shall be liable to the
other for any damages caused by such default, and the non-
defaulting party shall have the right to seek specific performance
and such other remedies as are available in law or equity.
VIII. [800] SPECIAL PROVISIONS
A. [801] Submission of Documents to the Agency for
Approval
Whenever this Agreement requires the Participant to
submit any document to the Agency for approval, which shall be
deemed approved if not acted on by the Agency within the specified
time, said document shall be accompanied by a letter stating that
it is being submitted and will be deemed approved unless rejected
by the Agency within the stated time. If there is not a time
specified herein for such Agency action, the Participant may submit
a letter requiring the Agency approval or rejection of documents
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13
within thirty (30) days after submission to the Agency or such
documents shall be deemed approved.
B. [802] Successors in Interest
The terms, covenants, conditions and restrictions of this
Agreement shall extend to and shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors and
assigns of the Participant.
IX. [900] ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in four (4) duplicate
originals, each of which is deemed to be an original. This
Agreement includes Attachments 1 through 5, which together with
this Agreement constitute the entire understanding and agreement of
the parties.
No private entity shall be deemed to be a third party
beneficiary with respect to any provisions of this Agreement.
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements among the parties or their
predecessors in interest with respect to all or any part of the
subject matter hereof.
All waivers of the provisions of this Agreement must be
in writing by the appropriate authorities of the Agency and the
Participant, and all amendments hereto must be in writing by the
- 34 -
appropriate authorities of the Agency and the Participant, except
that the Executive Director of the Agency may agree to non-
substantive changes hereto with concurrence by Agency Counsel.
Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of
and bind the party he purports to represent.
X. (1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
A. (1001] Time for Acceptance
This Agreement, when executed by the Participant and
delivered to the Agency, must be authorized, executed and delivered
by the Agency on or before thirty (30) days after signing and
delivery of this Agreement by the Participant or this Agreement
shall be void, except to the extent that the Participant shall
consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement. The date
of this Agreement shall be the date when it shall have been signed
by the Agency as evidenced by the date first above shown.
- 35 -
IN WITNESS WHEREOF, the Agency and the Participant have
executed this Agreement on the day and date first above shown.
"Agency"
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
APPROVED AS TO FORM AND By:
LEGAL CONTENT: Kenneth J. Henderson
Executive Director
By:
Spec' 1 Age cy Counsel
APPROVED AS TO PROGRAM
By:
Deputy Director
APPROVED AS TO INSURANCE
By:
Risk Management Director
"Participant"
ARI MILLER, a married man dba
CAMDEN DEVELOPMENT, LTD. , as his
sole and separate property
By:
Ari Miller
SBE0\0001\DOMNIV.VII,
- 36 -
STATE OF CA IFO IA )
COUNTY OF )
On - - before me, (,� N-
/Ti�e
( inse t name an title of the fficer) , personally appeared
6. , personally known to me (or_ roved—to
me_ on th_P bates of sat;sfactory evidence) to be the person W whose
name( is/zxg-subscribed to the within instrument and acknowledged
to me that he/sshs{� executed the same in his/h =;-�
authorized capacity(mss) , and that by his/ - signature(.a') on
the instrument the persons) , or the entity upon behalf of which
the person( acted, execu d t e instrument.
WITNESS my hand and/of i if al.
a
LA VONDA M*EAMOM
Signature r--"el. 4974738 �r
fV�cry c—CantaMa i
SAN BERNARDINO COUNTY
My Comm.ExpIres OCT 4.1996
STATE OF CALIFORNIA )
COUNTY OF )
On before me,
(here insert name and title of the officer) , personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the persons) whose
names) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their
authorized capacity(ies) , and that by his/her/their signature(s) on
the instrument the person(s) , or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF THE SITE
THAT PORTION OF THE RANCHO MUSCUPIABE, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 23, RECORDS OF SAID COUNTY,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF SECTION 19, TOWNSHIP 1
NORTH, RANGE 4 WEST, AS SAME WOULD BE LOCATED IF THE GOVERNMENT
SURVEY WERE EXTENDED ACROSS SAID RANCHO; THENCE ALONG SAID EAST
LINE, SOUTH 0 DEG. 22 ' 22 " EAST, 370.41 FEET; THENCE, COURSE "A"
SOUTH 81 DEG. 36 ' 53" WEST, 235.77 FEET; THENCE, COURSE "B" ,
NORTH 31 DEG. 28 ' 26" WEST, 426 .35 FEET; THENCE, COURSE "C" ,
NORTH 1 DEG. 54 ' 26 " WEST, 117 .62 FEET; THENCE NORTH 20 DEG. 31 '
42 " EAST, 302 . 96 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE WESTERLY AND HAVING A RADIUS OF 1,285 FEET; THENCE
NORTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 12 DEG.
14 ' 14" , AN ARC DISTANCE OF 274 .45 FEET TO THE EASTERLY LINE OF
THAT CERTAIN STRIP OF LAND, 60 FEET WIDE, NOW A PORTION OF STATE
COLLEGE PARKWAY, FORMERLY DEVILS CANYON ROAD, AS CONVEYED TO THE
SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED IN
BOOK 1735, PAGE 358, OFFICIAL RECORDS, IN SAID RECORDER'S OFFICE;
THENCE NORTHERLY ALONG SAID EASTERLY LINE TO THE EAST LINE OF
SECTION 18, SAID TOWNSHIP AND RANGE; THENCE SOUTHERLY ALONG SAID
EAST LINE OF SECTION 18 TO THE POINT OF BEGINNING.
TOGETHER WITH ALL GRANTOR'S LEASEHOLD INTERESTS AND WATER RIGHTS
RELATING TO AND WATER WELLS LOCATED ON THE ABOVE DESCRIBED
PARCELS.
EXCEPT THOSE PORTIONS DESCRIBED IN SAID DEED TO THE COUNTY OF SAN
BERNARDINO AND IN DEED TO SAID COUNTY, RECORDED NOVEMBER 13,
1925, IN BOOK 35, PAGE 267, OFFICIAL RECORDS.
ATT. 1 - Page 1
l�
ATTACHMENT NO. 2
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is specifically described in the Legal
Description (Attachment No. 1) pursuant to Section 103 of this
Agreement.
II. DEVELOPMENT
Participant shall develop the Site by constructing a
52, 000 square foot commercial retail shopping center including six
(6) out parcels for four (4) restaurants, a service station, a bank
or retail building and three (3) retail tenant buildings in two (2)
phases as shown on the Site Plan attached hereto as Attachment 2A.
Phase I Improvements: Phase I consists of a 5,350 square foot sit-
down restaurant building (Building "A") ; a 5, 000 square foot build
to suit building (Building "B") ; a 3, 000 square foot pad and tenant
improvements for a fast food restaurant (Pad "C") ; a 2,500 square
foot pad and tenant improvements for a gasoline service station and
convenience market (Pad "E") ; a 3, 000 square foot build to suit
convenience food restaurant building (Building "F") ; and a 4,525
square foot build to suit restaurant building for a sit-down
restaurant (Building "G") . Also included in Phase I are the on
site parking and landscaping improvements related to Phase I
including Phase I landscaping and bank stabilizing improvements for
the hillside area on the site.
Phase II Improvements: Phase II consists of two retail tenant
buildings, one of 8,660 square feet (Building "D") and one of
10,200 square feet (Building "J") ; plus a 9, 600 square foot retail
tenant building or day care facility (Building "H") . There is no
Building "I" .
Off-Site Improvements: Off-Site Improvements consist of those
improvements outside the property line and within the public right-
of-way. They include removal and reconstruction of street
improvements, sidewalks, curbs and gutters. Also included are
street lights, street signs, fencing, landscaping, public utility
undergrounding, a traffic signal, utility extensions and associated
City Plan Check and inspection costs. See also Attachment 2B.
The Participant shall commence and complete the Project
by the respective times established therefor in the Schedule of
Performance (Attachment No. 3) .
III. DEVELOPMENT STANDARDS
The Project shall be developed in accordance with
applicable building and safety codes. All construction shall also
be in accordance with the plans and specifications previously
ATT. 2 - Page 1
L-13
approved in connection with Conditional Use Permit No. 91-45
approved by the City Planning Commission on July 7, 1992 .
IV. DEMOLITION AND SOILS
Participant assumes all responsibility for surface and
subsurface conditions at the Site, and the suitability of the Site
for the Project. If the surface and subsurface conditions are not
entirely suitable for such development and use, Participant shall
at its cost take all actions necessary to render the Site entirely
suitable for such development. Participant has undertaken all
investigation of the Site it has deemed necessary and has not
received or relied upon any representations of Agency, the City, or
their respective officers, agents and employees. Participant shall
undertake at its cost all demolition required in connection with
the development of the Project.
ATT. 2 - Page 2
l-
ATTACHMENT NO. 2 A
SITE PLAN
/ All. � t
II HAW I 1101 .
it
jr
x -
/I
bt, 3
ATT. 2 A - Page 1
f�
ATTACHMENT NO. 2 B
IMPROVEMENTS LIST
OFF-SITE IMPROVEMENT BUDGET
UNIVERSITY VILLAGE SHOPPING CENTER
1. $ 4,320 Remove existing asphalt
2. 2,174 Remove existing curb & gutter
3. 36,800 Roadway excavation
4. 22,257 Install 24" RCP D-2550
5. 21, 084 Install Storm Drain (10" PVC SCH 40)
6. 2,880 Install Junction Strucutre #4 (SB#414)
7. 1,920 Install Concrete Collar (SB Study #412)
8. 1, 651 Install C.B. w Steel/Traffice Grate (Brooks #12x18)
9. 2,270 Install C.B. #2, (SB Study #404)
10. 2,400 Install local depression (per sheet 3 detail)
11. 6, 225 Subgrade preparation
12. 16,265 Place & Compact 6' AGG Base
13. 20, 080 Place & Compact 4 ' Asphalt
14. 1, 807 Fog seal
15. 600 Install 6" A.C. Berm
16. 2,880 Cut Curb Grade
17. 2, 304 Backfill Curb
18. 1,429 Cut Sidewalk Grade
19. 546 Cut Cross Gutter Grade
20. 1,500 Cut Spandrel Grade
21. 838 Place & Compact AGG Base (@ Cross Gutter)
22. 2, 095 Place & Compact AGG Base (@ Spandrel)
23. 240 Cut Grade for Medican Paving
24. 15, 244 Install 8" Curb & Gutter (Study 200, type B)
25. 1, 690 Install 6" Curb (Study 200, type A)
26. 4, 142 Install 6" Median Curb & Gutter (per sheet 2 detail)
27. 3, 214 Install Sidewalk (study 202, Case A)
28. 850 Install Handicap Ramp (study 205. labor only)
29. 2,431 Install Cross Gutter (study 201)
30. 6, 693 Install Spandrel (study 201)
31. 390 Install 4" PCC median Paving
32. 5, 600 Stripping, Restripping, Bumbers
33. 6,400 Fire Hydrants
34. 28, 000 Street Lights/Poles
35. 5, 040 New Street Light City of S.B. Fee
36. 1, 200 Public Right of Way Dedication/Easement Fees
37. 66, 000 Public Utility Undergrounding
38. 2,400 Street Signs/Rough Hardware
39. 125, 000 Install Traffic Signal @ University/State Street
40. 9, 000 Signal Design, 2215 Interconnect/Time Space Diagrams
41. 8, 750 Install Rod Iron Fencing (61 )
42. 11, 038 Off-Site Landscape Only (also includes 20, 000 s.f
"buffer area', Median break, State Street corner)
43. 24 , 300 2" Irrigation Line City of S.B. Service Fee
ATT. 2 B - Page 1
13
Offsite Improvement Budget
University Village Shopping Center
~ Page 2
44. 1,870 Install 2" Irrigation Line (city of S.B. Fee)
45. 34,980 Install Dedicated Public Water Main Extension
46. 974 Remove & Replace Pavement for Water Main
47. 18, 000 Install Fire Hydrant Service Lines, 4"
48. 24, 000 Supervision (off-site only)
49. 9, 000 Surveying/Staking (off-site only)
50. 4,370 Temporary Job Facilities, Utilities
-- 51. 12, 000 Liability Insurance
52. 1, 600 Laborers/Clean-up
53. 13, 000 Traffic Control, Dust Control/Barricades
54 . 24, 070 City of S.B. Plan Check Fee
55. 24 , 070 City of S.B. Inspection Fee
56._ 1, 000 Offsite Construction Permit tAgtimatadl
ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
1. Execution of Agreement by Not later than thirty (30) days
Agency. Agency shall approve after the date of execution and
and execute this Agreement, and submission of three (3) copies
shall deliver one (1) copy of this Agreement to Agency by
thereof to Participant. Participant.
2 . Completion of Site Grading. Not later than one year from the
date of execution of this
Agreement.
3. Commence Construction of Not later than one year from the
Off-Site Improvements. date of execution of this
Agreement.
4 . Complete Construction of Not later than two years from
the Off-Site Improvements. the date of execution of this
Agreement.
5. Commence Construction of Not later than two years from
Phase I On-Site Improvements. the date of execution of this
Participant shall commence Agreement.
construction of the Phase I
Improvements.
6. Complete Construction of Not later than four years from
the Phase I Improvements. the date of execution of this
Participant shall complete Agreement.
construction of the Phase I
Improvements and obtain
Certificates of Occupancy.
7. Commence Construction of Not later than four years from
the Phase II Improvements. the date of execution of this
Agreement.
8 . Complete Construction of Not later than five years from
the Phase II Improvements. the date of execution of this
Agreement.
ATT. 3 - Page 1
13
ATTACHMENT NO. 4
PROMISSORY NOTE SECURED BY DEED OF TRUST
$600, 000. 00 Place: Redevelopment Agency
201 North "E" Street
Third Floor
San Bernardino, CA 92401
Date:
FOR VALUE RECEIVED, the undersigned promises to pay to
the Redevelopment Agency of the City of San Bernardino (the
"Agency") or its successors, the sum of Six Hundred Thousand
Dollars ($600, 000.00) , and to pay interest on the unpaid principal
amount of this Note which has been funded from the date hereof, at
the rate per annum equal to seven percent. Payment of interest and
principal shall be made as follows:
1. The undersigned shall make no payments and there
shall be no interest for the first thirty-six (36) months from the
date of this Note. Commencing with the thirty-seventh (37th)
month, the undersigned shall make quarterly payments of principal
equal to Five Thousand Dollars ($5, 000) plus interest calculated on
the actual principal balance for the quarterly period in question,
with any remaining balance of all principal and accrued interest to
be payable in full at the end of the sixtieth (60th) month from the
date hereof. The first such quarterly payment shall be due on the
first (1st) calendar day of the fortieth (40th) month.
2 . Regardless of the completion of the Project or the
establishment of permanent financing for the Project, the full
amount of all unpaid principal and interest under this Note shall
become due and payable at the earlier of five (5) years or one (1)
year from the completion of construction of the Phase II portion of
the Project as more fully described in that certain Owner
Participation Agreement by and between the undersigned and the
Agency dated as of (the "Agreement") .
3 . A failure to pay any sum provided for in this Note
when due or a material breach of this Note, the Agreement or the
Deed of Trust, shall constitute a breach hereof and shall entitle
the Agency to declare all sums due hereunder immediately due and
payable and to pursue all remedies available under this Note, the
Agreement or the Deed of Trust.
All payments due under this Note shall be made in lawful
money of the United States in the name of the Agency at the
principal office of the Agency, 201 North "E" Street, City Hall
Annex, San Bernardino, CA 92401-1507, or at such other place as may
from time to time be designated by the Agency in writing.
ATT. 4 - Page 1
l3
Notwithstanding any language herein to the contrary, this
Note shall become immediately due and payable in the amount of all
unpaid principal, with interest, upon any transfer in violation of
the Agreement of title of the property described in the Deed of
Trust to any person, firm or corporation other than the undersigned
and except as provided in said Deed of Trust, whether such transfer
of title be voluntary, involuntary, or by operation of law.
The undersigned reserves the right to prepay at any time
all or any part of the principal amount of this Note without the
payment of penalties or premiums. All payments on this Note shall
be applied first to the interest due on the Note and then to the
principal due on the Note, and the remaining balance shall be
applied to late charges, if any.
IN THE EVENT the undersigned shall fail to pay the
payments when due, and if such failure be subsisting thirty (30)
days thereafter, the unpaid principal amount of this Note, together
with accrued interest and late charges, shall become due and
payable, at the option of the Agency, without notice to the
undersigned. Failure of the Agency to exercise such option shall
not constitute a waiver of such default. If the payments on this
Note are not paid within ten (10) days of the due date, the
undersigned shall pay to the Agency a late charge of 4% on the
amount past due and remaining paid. If this Note be reduced to
judgment, such judgment shall bear the statutory interest rate on
judgments.
In no event shall the total interest and late charge
payable hereunder exceed the maximum amount of interest permitted
under the usury laws of the State of California.
If suit is instituted by the Agency to recover on this
Note, the non-prevailing party agrees to pay all costs of such
collection including reasonable attorney's fees and court costs.
THIS NOTE is secured by a Deed of Trust of even date,
duly filed for record in the office of the County Recorder of the
County of San Bernardino, State of California.
DEMAND, protest and notice of demand and protest are
hereby waived and the undersigned hereby waives, to the extent
authorized by law, any and all homestead and other exemption rights
which otherwise would apply to the debt evidenced by this Note.
ATT. 4 - Page 2
IN WITNESS WHEREOF, THIS NOTE has been duly executed by
the undersigned, as of its date.
ARI MILLER dba
CAMDEN DEVELOPMENT, LTD. , a married man
as his sole and separate property,
By:
ARI MILLER
ATT. 4 - Page 3
�3
ATTACHMENT NO. 5
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deed of trust made on , 1993, by Ari
Miller dba CAMDEN DEVELOPMENT, LTD. , hereinafter called "Trustor, "
whose address is Suite ,
CA , to , hereinafter referred
to as "Trustee", whose business address is ,
Suite , , CA , in favor of the REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, hereinafter referred to as
"Beneficiary", whose business address is 201 North "E" Street,
Third Floor, San Bernardino, California 92401.
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
San Bernardino, State of California, described as follows:
That certain property located in the City of
San Bernardino, County of San Bernardino, State of California, more
particularly described as:
SEE ATTACHMENT NO. 1
together with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and profits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under that certain
Owner Participation Agreement dated as of and
performance of each agreement of Trustor incorporated herein by
reference or contained herein.
ATT. 5 - Page 1
1.3
A. To protect the security of this Deed of Trust, Trustor agrees:
1. To maintain the property in good condition and
repair; not to remove or demolish any building or improvement
thereon; to complete promptly in workmanlike manner any improvement
hereafter constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is damaged or
destroyed, and to pay when due all costs incurred therefor or in
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereof or any act upon
the property in violation of law or of covenants, conditions or
restrictions affecting the property.
2 . To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all costs and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
SUM.
3 . To pay (a) at least ten (10) days before
delinquency, all taxes and assessments affecting the property, all
assessment upon water company stock, and all rents, assessments and
charges for water appurtenant to or used in connection with the
property; (b) when due, all encumbrances, charges and liens, with
interest, on the property or any part thereof, which appear to be
prior or superior hereto; and (c) all costs, fees and expenses of
this trust.
4 . If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or Trustee (but without
obligation so to do, and with or without notice to or demand upon
Trustor, and without releasing Trustor from any obligation hereof)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon the property for such
purpose; (b) appear in or commence. any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; (c) pay, purchase, contest, or compromise
any encumbrance, charge or lien that, in the judgment of either,
appears to be superior hereto; and in exercising any such power,
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys' fees.
5. To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with interest from
date of expenditure at the annual rate of two percentage points
over Bank of America's published prime rate.
ATT. 5 - Page 2
B. It is mutually agreed that:
1. Any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
2. At any time or from time to time, without liability
therefor and with or without notice, upon written request of
Beneficiary and presentation of this deed for endorsement, and
without effecting the personal liability of any person, Trustee may
reconvey any part of the property, consent to the making of any map
or plat thereof, join in granting any easement or join in any
extension agreement or any agreement subordinating the lien or
charge thereof.
3 . Upon written request of Beneficiary, surrender of
this deed to Trustee for cancellation and retention, and payment of
its fees, Trustee shall reconvey, without warranty the property
then held hereunder. The recitals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
designated in such reconveyance as "the person or persons legally
entitled thereto. "
4 . Trustor may give such notice to Beneficiary at any
time before there is a Trustee's sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
5. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default, Trustor or such owner shall pay to Beneficiary
in advance on the first day of each month a reasonable rental for
the premises so occupied. On failure to pay such reasonable
rental, Trustor or such owner may be removed from the premises by
summary dispossession proceedings or by any other appropriate
action of proceeding.
ATT. 5 - Page 3
1�
6. If default is made in performance of any agreement
hereby secured, then Beneficiary, with or without notice to
Trustor, may institute suit for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall deposit with Trustee this deed, and all documents
evidencing expenditures secured hereby.
7. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful money of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
8. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at two percentage points over Bank of America 's published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
9. Before Trustee's sale, Beneficiary may rescind such
notices of default and of election to cause the property to be sold
by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
10. Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
ATT. 5 - Page 4 f
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
11. If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
12 . All leases nor or hereafter affecting the property
are hereby assigned and transferred to Beneficiary by Trustor.
Trustor hereby covenants that none of such leases will be modified
or terminated without the written consent of Beneficiary.
13 . When requested to do so, Trustor shall give such
further written assignments of rents, royalties, issues and
profits; of all security for the performance of leases; and of all
money payable under any option to purchase, and shall give executed
originals of all leases, now or hereafter on or affecting the
property.
14 . Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor's right to collect such moneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys ' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
default hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in collecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
15. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, may release any person now or
hereafter liable for performance of such obligation, and may extend
ATT. 5 - Page 5
l �
the time for payment or performance, accept additional security,
and alter, substitute or release any security.
16. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys' fees in a reasonable sum, to be fixed by the court.
17. No remedy hereby given to Beneficiary or Trustee is
exclusive of any other remedy hereunder or under any present or
future law.
18. The pleading of any statute of limitations as a
defense to any and all obligations secured by this deed is hereby
waived, to the full extent permissible by law.
19. Trustor shall, upon request made by Beneficiary,
furnish the Beneficiary with annual statements covering the
operations of the property.
20. Beneficiary may collect a "late charge" not to
exceed an amount equal to four percent (4%) on the amount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
21. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, successors in interest, and
assigns. The term "Beneficiary" means the owner and holder,
including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
22 . Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
ATT. 5 - Page 6
13
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below.
MAILING ADDRESSES FOR NOTICES:
ARI MILLER dba
CAMDEN DEVELOPMENT, LTD.
as Trustor:
Camden Development, Ltd.
9454 Wilshire Blvd. , Suite 650
Beverly Hills, California 90212
Attn: Ari Miller
Executed at San Bernardino, California, on the date first
above written.
ARI MILLER, a married man dba
CAMDEN DEVELOPMENT, LTD. , as his
sole and separate property
By:
ARI MILLER
ATT. 5 - Page 7
STATE OF CALIFORNIA )
COUNTY OF )
On before me,
(here insert name and title of the officer) , personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the persons) whose
names) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their
authorized capacity(ies) , and that by his/her/their signatures) on
the instrument the person(s) , or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
ATT. 5 - Page 8
C I T Y O F S A N B E R N A R D I N 0
INTEROFFICE MEMORANDUM
TO: KEN HENDERSON, Executive Director
Development Department
FROM: ROGER G. HARDGRAVE, Director of Public Works/
City Engineer
SUBJECT: Installation of Traffic Signals - University
Parkway & Varsity/State Street
DATE: February 16, 1994
COPIES: Dennis Barlow; File CUP No. 92-24; Reading File
----------------------------------------------------------------
Hughes Market was conditioned to pav I of the cost of these
traffic signals. Their market is under construction and
scheduled to be opened in the first part of May. These signals
will need to be installed prior to the opening of this market.
Some time ago you entered into an Agreement with Camden Devel-
opment to finance approximately $600, 000 of improvements, in-
cluding $125, 000 for these traffic signals. Camden Development
has not proceeded with construction of these improvements. We
understand that an amendment to Camden' s Agreement is on the
Commission' s Agenda for 2-21-94 .
In view of the tight time constraints, Hughes Market has agreed
to take the lead in having these traffic signals installed.
This agreement was conditioned upon their being reimbursed for
I of the total cost for these signals by the Economic Develop-
ment Agency.
Therefore, we recommend that the following motions be adopted
by the Commission:
FORM MOTION•
1 . That the. .adment.,_ta_.th.& Agreement with Camden Development
be revi4ed by interdelineation to delete the $125 , 000 for
--_.__installation of traffic signals at University Parkway and
Varsity/State Street.
KEN HENDERSON
Traffic Signals - University Parkway
r . February 16, 1994
Page - 2 -
J
FORM MOTION,
2 . That 'authorization be granted to reimburse Hughes Market
for of the total project cost, for installation of
traffic signals at University Parkway and Varsity/State
Street, up to the amount of $62,500, subject to acceptance
of the traffic signals by the Director of Public Works/City
Engineer.
a� e,�
ROGER G. HARDGRAVE
Director of Public Works/City Engineer
C I T Y O F S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
TO: KEN HENDERSON, Executive Director
Development Department
FROM: ROGER G. HARDGRAVE, Director of Public Works/
City Engineer
SUBJECT: Installation of Traffic Signals - University
Parkway & Varsity/State Street
DATE: February 16 , 1994
COPIES: Dennis Barlow; File CUP No. 92-24 ; Reading File
----------------------------------------------------------------
Hughes Market was conditioned to pay 2 of the cost of these
traffic signals. Their market is under construction and
scheduled to be opened in the first part of May. These signals
will need to be installed prior to the opening of this market.
Some time ago you entered into an Agreement with Camden Devel-
opment to finance approximately $600 , 000 of improvements, in-
cluding $125, 000 for these traffic signals. Camden Development
has not proceeded with construction of these improvements . We
understand that an amendment to Camden' s Agreement is on the
Commission' s Agenda for 2-21-94 .
In view of the tight time constraints, Hughes Market has agreed
to take the lead in having these traffic signals installed.
This agreement was conditioned upon their being reimbursed for
2 of the total cost for these signals by the Economic Develop-
ment Agency.
Therefore, we recommend that the following motions be adopted
by the Commission:
FORM MOTION: '
1 . That the amendment to the Agreement with C den Development
be revised by interde lineation to delete.
//the $125, 000 for
installation of traffic signals at University Parkway and
Varsity/State Street.
KEN HENDERSON
Traffic Signals - University Parkway
February 16 , 1994
Page - 2 -
FORM MOTION•
2 . That authorization be granted to reimburse Hughes Market
for I of the total project cost, for installation of
traffic signals at University Parkway and Varsity/State
Street, up to the amount of $62,500 , subject to acceptance
of the traffic signals by the Director of Public Works/Cit17
Engineer.
ROGER G. HARDGRAVE
Director of Public Works/City Engineer
1-�
C I T Y O F S A N B E R N A R D I N 0
INTEROFFICE MEMORANDUM
TO: KEN HENDERSON, Executive Director
Development Department
FROM: ROGER G. HARDGRAVE, Director of Public Works/
City Engineer
SUBJECT: Installation of Traffic Signals - University
Parkway & Varsity/State Street
DATE: February 16 , 1994
COPIES: Dennis Barlow; File CUP No. 92-24 ; Reading File
------------------------------=--------------------------------
Hughes Market was conditioned to pav I of the cost of these
traffic signals . Their market is under construction and
scheduled to be opened in the first part of May. These signals
will need to be installed prior to the opening of this market.
Some time ago you entered into an Agreement with Camden Devel-
opment to finance approximately $600 , 000 of improvements , in-
cluding $125 , 000 for these traffic signals . Camden Development
has not proceeded with construction of these improvements. We
understand that an amendment to Camden' s Agreement is on the
Commission' s Agenda for 2-21-94 .
In view of the tight time constraints, Hughes Market has agreed
to take the lead in having these traffic signals installed.
This agreement was conditioned upon their being reimbursed for
i of the total cost for these signals by the Economic Develop-
ment Agency.
Therefore, we recommend that the following motions be adopted
by the Commission:
FORM MOTION:
1 . That the amendment to the Agreement with Camden Development
be revised by interdelineation to delete the $125 , 000 for
installation of traffic signals at University Parkway and
Varsity/State Street.
A9
KEN HENDERSON
Traffic Signals - University Parkway
February 16 , 1994
Page - 2 -
FORM MOTION:
2 . That authorization be granted to reimburse Hughes Market
for I of the total project cost, for installation of
traffic signals at University Parkway and Varsity/State
Street, up to the amount of $62 , 500 , subject to acceptance
of the traffic signals by the Director of Public Works/City
Engineer.
ROGER G. HARDGRAVE
Director of Public Works/City Engineer
AGREEMENT IN PRINCIPLE
CALIFORNIA INN SINGLE ROOM OCCUPANCY (SRO) PROJECT
February 18, 1994
This Agreement in Principle proposes to establish the framework for the dissolution,
termination or relinquishment of rights and forgiveness of obligations, which ever is
applicable, of the Disposition and Development Agreement (the "Agreement") between the
Redevelopment Agency ("Agency") and Main Street Inn, a California Limited Partnership,
("developer") based upon the following recitals:
WHEREAS, the Agency desires, and the developer has agreed, to mutually and
amicably terminate the contractual relationship providing for the development of a two-
hundred, sixty-five (265) unit SRO housing development; and
WHEREAS, Agency agrees, and acknowledges, developer was requested by the then
Mayor and Common Council of the City of San Bernardino to develop, with Agency
assistance, and operate a 265 unit SRO housing project to be located at the northwest corner
of 5th and "E" Streets in San Bernardino, CA; and
WHEREAS, the developer has diligently pursued development and financing plans and
the acquisition of a Conditional Use Permit (CUP) which would be approved and issued by
the City of San Bernardino; and
WHEREAS, the developer has expended substantial monies in an effort to complete its
development and financing plans as more accurately summarized in the attached Exhibit "A";
and
WHEREAS, the costs incurred by developer do not include salary for developer's
General Partner or the General Partner's office overhead expenses.
WHEREAS, the Agreement between Agency and Developer provides for the payment,
after the Close of Escrow of permissible costs as set forth in Section 2.03b(vi) of the
Disposition and Development Agreement and the payment of developer fees on a monthly
basis totalling $360,000.
NOW THEREFORE, the parties hereto agree as follows:
1. That the Agreement between Agency and developer be dissolved, terminated
and/or provide for the relinquishment or rights and forgiveness of obligations,
as applicable, with the understanding that no damage or harm will be done to
the reputation of developer or Agency.
c
2. That full and complete consideration to be paid by Agency to developer has
been established at $180,000, payable upon approval by the Community
Development Commission of the City of San Bernardino and execution of the
necessary and appropriate implementing agreement(s).
KE J. NDERSON, Executive Director MAIN STREET INN
Development Department a California Limited Partnership
Economic Development Agency By: LARCON DEVELOP:cvL N'T. INC.
General Partner
B. Gilbert Lara, Jr.
President
KJH:Imp:agmtpri.sro
r
CALIFORNIA INN SRO
DEVELOPMENT EXPENSE
MARCH 1, 1991 TO FEBRUARY 15, 1994
DESCRIPTION EXPENDITURE
i
I
SALARY: D. Macken (3-91 to 4-93) 100.0% $49,052.00
S. Johnston (3-91 to 2-94) 40.0% 46,925.00 $95,977.00 i
FEES: City, applications, consultants, legal etc. 6,702.00
ACCOUNTING: Includes CPA fees for financial services 9,313.00
j
MARKETING: Includes reproduction for marketing packages 4,962.00
ARCHITECTURE: Includes all schematic and partial development design 63,052.00
architectural contract services for Main Street Inn SRO and
California Inn SRO
i
I
ADMINISTRATIVE: SRO travel for design and financing $751.00
Reports, supplies, postage, miscellaneous 787.00 1,538.00
i
FINANCE: Interest on SRO loan of $150,000.00 36,352.00
(10-7-91 to 2-14-94) j
TOTAL SRO DEVELOPMENT COSTS $217,896.00
I
Note: Office overhead (phone, mail, supplies, rent etc.) and Mr. Lara's
salary not included. '
, I
I�
Prepared 2-15-94
LARCON DEVELOPMENT INC.
EXHIBIT "A"