HomeMy WebLinkAboutR08-Economic Development Agency
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BCOROMlC DBVBLOPIIERr AGUCY OF TBB
CITY OF SAR B1l1I1I11lnIllO
IlEOtJBST FOR CllMMISSIOR/ClltJlIICIL ACTIOR
From:
TIMOTHY C. SDlftHAUS
Agency Administrator
Subject: 'RUcmMAT PROPBJaY LOAR
Date:
July 30, 1991
~psis of Previous c-issionlCouncll/COIBittee Action:
On July 18, 1991, the Redevelopment Committee recommended that the
Community Development Commission approve the deal points for the
Truckomat property loan and directed staff to prepare a final agreement
for Commission consideration.
Rec_ended !lotion:
lCl'lIIMIl'IIftitv DlWelonllf!llt C.....i..ion)
KlTIOR "A": RESOLUTION OF TJIE COMMUmn DEVELOPMEN'l COMMISSION OF TJIE
CIn OF SAN BEIl1WlDINO :IWtING FINDINGS AND DEDRMIRATIONS
AS TO TJIE BENEFIT OF UNDERTAICIRG CERTAIN BLIGHT REDUCING
ACTIVITIES FOR TJIE SOUTJIEAST INDUSTRIAL PAI!lC REDEVELOPMEN'l
PROJECT AREA OF TJIE AGENCY.
(KlTIORS COftIllllBD TO 1ID% PAGE...)
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'J: C. IIIIWJS
Aaency a....h't strator
Contact Person(s): Tim Steinhaus
Phone:
5081
Project Area(s): SEIP
Ward(s):
Three (3)
Supporting Data Attached:
Staff Renort: Benefit Resolutions
FUNDING REQUIKEMENTS:
Amount: di 440.000
Source:
Tax Inerement
Budget Authority:
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COIBissionlCouncil Rotes:
K.JH:lab:0061E
COIMISSIOR AGENDA
Meeting Date: 08/05/91
Agenda Item Ro: ~
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ECOROMIC DEVELOPMERT AGDCY
IlEQUEST FOR COMtlISSIOR/COURCIL ACTIOR Continued...
Trucltomat Property Loan
July 30, 1991
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Rec_eDded Motion(s) Continued:
(NAvar aft" ~nn Cnnnrd.ll
IIOTIOR "B": IlESOLU'lIOR OF THE MAYOR ARD COMMOR COURCIL OF TIlE CITY OF
SAR BEllRARDIRO MAlCIRG CERTAIR FIRDIRGS ARD DEDRMIRATIORS
AS TO TIlE BEREFIT OF URDERTAKIRG CERTAIR BLIGBT IlEDUCIRG
ACTIVITIES FOR TIlE SOU'lllEAST IRDUSTRIAL PARK IlEDEVELOPMERT
PROJECT AREA OF TIlE AGENCY.
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IC.JH:1ab:0061E
COIIIISSIOR AGDDA
MeetiD& Date: 08/05/91
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BCOBOMIC DBVBLOPMBlIT AGBIICY
STAFF IBPOft
Truro1rl'llllo-t Pro'Df!rtv Loan
The Truckomat property is located on the east side of Hunts Lane, south
of Hospitality Lane, and is comprised of approximately sixty-thousand
(60,000) square feet, owned by Mr. Joe Bour.
Because of the Truck Wash and fuel facilities, the clean-up of
contamination is estimsted to cost two-hundred thousand dollars
($200,000). Encumbering the property are liens in favor of the
Internal Revenue Service (IRS) and the Small Business Administration
(SBA) totalling approximately two-hundred, sixty-thousand dollars
($260,000). Staff's informal appraisal of the property conducted in
November, 1990, indicated a value, free of encumbrances, between
four-hundred, eighty-thousand dollars ($480,000) to six-hundred
thousand dollars ($600,000). The subject property is locsted just
.outside the Southeast Industrial Park Redevelopment Project Area.
Staff has structured a proposed sale of the property to Mr. Al Stewart
of Schneider Commercial Real Estate based upon the following deal
points:
1.
The Development Department will loan to Mr. Stewart three-hundred,
forty-thousand dollars ($340,000) for the purChase price, plus
one-hundred thousand dollars ($100,000) for clean-up costs. Mr.
Stewart will pay the clean up costs over and above the one-hundred
thousand dollars ($100,000).
2. The loan will be for thirty-six (36) months at 1.5 points over
prime, due and payable at the earlier of said thirty-six (36)
month period, or upon resale, and will be secured by a deed of
trust on the property.
3. Besides the land, Mr. Stewart will provide a personal guarantee
for the loan.
4. Within the thirty-six (36) month period, Mr. Stewart will provide
to the Development Department a letter of commitment for a quality
sit-down restaurant, such as Steer and Stein or Soup Plantation,
for this site.
5. Immediately upon close of escrow, Mr. Stewart will commence
demolition and clean up activities of the property.
6. If the site is sold for speculation purposes, the Development
Department will receive a guaranteed amount equal to
fifty-thousand dollars ($50,000) upon such sale, whiCh guaranteed
amount shsll be applied towards the Development Department's share
of fifty percent (SOX) of the profits from the sale.
ICJH:lab:0061E
COtIfISSIOB AGElIDA
lIeeting Date: 08/05/91
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BCOIIOMlC DBVELOPMBKr AGBl'lCY STAFF UPOIT
TruckoJlat PropertY Loan
July 30, 1991
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If the deal points as described above are recommended for approval by
the Redevelopment Committee, staff will prepare a final agreement and
bring same to the COllllllUl1ity Development CODllli88ion at its August 5,
1991 meeting.
Staff recommends adoption of the form motion.
~t
~IlUWJS
Agency A","infatrator
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lOH: lab: 006lB
~SSIOII AGDDA
Keeting Date: 08/05/91
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO MAKING FINDINGS AND DETERMINATIONS AS TO
THE BENEFIT OF UNDERTAKING CERTAIN BLIGHT REDUCING ACTIVITIES FOR
THE SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA OF THE
AGENCY.
WHEREAS, 'the City of San Bernardino ( the "City") , is a
municipal corporation and a charter city duly created and existing
pursuant to the Constitution and the laws of the State of
California: and
WHEREAS, the Community Development Commission of the City of
San Bernardino (the "Commission") on behalf of 'the Redevelopment
Agency of the City of San Bernardino (the "Agency" ) , is a
redevelopment agency, a publiC body, corporate and politic of the
State of California, organized and existing pursuant to the
Community Redevelopment Law (Part 1 of Division 24) commencing
with Section 33000) of the Health and Safety Code of the State of
California (the "Act"): and
WHEREAS, the Agency may, in furtherance of its redevelopment
purposes, undertake redevelopment projects either within or
without redevelopment project areas of the Agency to the extent
that it determines that such projects are of benefit to the
project areas of the Agency: and
WHEREAS, the Agency may undertake certain blight reducing
redevelopment activities (the "Blight Reducing Activities")
including but not limited to the participation in 'the demolition,
soil contamination clean-up, and then development of new
commercial structures without the boundaries of, but adjacent to,
the Southeast Industrial Park Project Area of the Agency if the
Agency determines: (1) that such Blight Reducing Activities are
DAB/ses/Blight-3.res
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July 17, 1991
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1 of benefit to the Southeast Industrial Park Redevelopment Project
2 Area of the Agency or the immediate neighborhoods in which the
3 project is located, and (2) that no other reasonable means of
4 financing such Blight Reducing Activities are available to the
5 community: and
6 WHEREAS, it is in the interests of the City and the Agency
7 that the Agency causes the undertaking of the Blight Reducing
8 Activities in order to reduce blighting conditions from the
9 subject site within the City and adjacent to the Southeast
10 Industrial Park Redevelopment project Area which has a significant
11 effect on the project Area: and
12 WHEREAS, the undertaking of the Blight Reducing Activities
13 will promote the development of Southeast Industrial. Park
14 Redevelopment Project Area within the City, to the extent that it
15 will make such project area more desirable for industrial,
16 commercial or residential development which in turn will assist in
17 the elimination of blight wi thin such area: and
18 WHEREAS, in order to promote the City's health, safety and
19 welfare and ensure the orderly development of the Agency's
20 Southeast Industrial Park Redevelopment Project Area, it is
21 important that the Blight Reducing Activities be financed by the
22 Agency: and
2S WHEREAS, it is appropriate at this time for the Mayor and
24 COmmon Council of the City (the "COuncil") to make certain
25 findings and determinations and take certain actions with respect
26 to the financing of the Blight Reducing Activities.
27 NOW, THEREFORE, BE IT RESOLVED BY THE COMMUNITY DEVELOPMENT
28 COMMISSION OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
DAB/ses/Blight-3.res 2 July 17, 1991
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1 SECTION 1. The Recitals hereinabove are true and correct
2 and are incorporated herein by this reference.
3 SECTION 2. The Commission consents to the payment by the
4 Agency of the costs of the Blight Reducing Activities in order to
5 implement the southeast Industrial Park Redevelopment Plan of the
6 Agency for the reasons set forth in the Recitals hereinabove. The
7 Commission further finds and determines that no other reasonable
8 means of financing the Blight Reducing Activities are presently
9 available to the City or the Agency and that the City and the
10 Agency require the use of revenues generated from the Southeast
11 Industrial Park Redevelopment Project Area of the Agency in order
12 to fund the Blight Reducing Activities.
13 SECTION 3. The undertaking of the Blight Reducing
14 Activities will allow the Agency to promote redevelopment within
15 the southeast Industrial Park Redevelopment project Area of ,the
16 Agency by eliminating blighting conditions on a site adjacent to
17 the Project Area which in turn will help stimulate development of
18 such project area and its immediate neighborhoods:
19 SECTION 4. The Secretary of the Commission is hereby
20 authorized and directed to csuse this Resolution to be transmitted
21 to the Council for consideration in connection with appropriate
22 action by that body.
23 SECTION 5. This Resolution shall take effect upon the date
24 of its adoption.
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DAB/ses/B1ight-3.res 3 July 17, 1991
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RESOLU'l'ZON. . . OF UNDER'l'JUUNG CERTAZN BLZGH'l' REDUCZNG
AC'l'ZVZTZES FOR THE SOUTHEAST ZNDUSTRZAL PARK REDEVELOPMEN'l' AREA...
Z HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Community Development Commission of the City of San
Bernardino at a
meeting thereof, held on the
day of
, 1991, by the following vote, to wit:
Commission Members:
~
NAYS
ABSTAIN
ESTRADA
REILLY
HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
Secretary
The foregoing resolution is hereby approved this
day of , 1991.
W. R. HOLCOMB, Chairman
Community Development Commission
of the City of San Bernardino
Approved as to
form and legal content:
B~~J
DAB/ses/B1ight-3.res
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JUly 17, 1991
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO MAKING FINDINGS AND DETERMINATIONS AS TO THE
BENEFIT OF UNDERTAKING CERTAIN BLIGHT REDUCING ACTIVITIES FOR THE
SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA OF THE
AGENCY.
WHEREAS, the City of San Bernardino (the "City") , is a
municipal corporation and a charter city duly created and existing
pursuant to the Constitution and the laws of the State of
California: and
WHEREAS, the Community Development Commission of the City of
San Bernardino (the "Commission") on behalf of the Redevelopment
Agency of the City of San Bernardino (the "Agency" ) , is a
redevelopment agency, a public body, corporate and politic of the
state of California, organized and existing pursuant to the
Community Redevelopment Law (part 1 of Division 24) commencing
with Section 33000) of the Health and Safety Code of the State of
California (the "Act"): and
WHEREAS, the Agency may, in furtherance of its redevelopment
purposes, undertake redevelopment projects either within or
without redevelopment project areas of the Agency to the extent
that it determines that such projects are of benefit to the
project areas of the Agency: and
WHEREAS, the Agency may undertake certain blight reducing
redevelopment activities (the "Blight Reducing Activities")
including but not limited to the participation in the demolition,
soil contamination Clean-up, and then development of new
commercial structures without the boundaries of, but adjacent to,
the Southeast Industrial Park project Area of the Agency if the
Agency determines: (1) that such Blight Reducing Activities are
DAB/ses/Blight-4.res
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July lB, 1991
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1 of benef~t to the Southeast Industr~al Park Redevelopment project
2 Area of the Agency or the ~DUlled~ate ne~ghborhoods ~n wh~ch the
3 project ~s located, and (2) that no other reasonable means of
4 f~nanc~ng such Bl~ght Reduc~ng Act~v~t~es are ava~lable to the
5 CODUll~ ty; and
6 WHEREAS, ~ t ~s ~n the ~nterests of the C~ ty and the Agency
7 that the Agency causes the undertak~ng of the Bl~ght Reduc~ng
8 Act~v~t~es ~n order to reduce bl~ght~ng cond~t~ons from the
9 subject s~te w~tMn the C~ty and adjacent to the Southeast
10 Industr~al Park Redevelopment project Area wh~ch has a s~gn~f~cant
11 effect on the project Area; and
12 WHEREAS, the undertak~ng of the Blight Reduc~ng Act~v~t~es
13 w~ll promote the development of Southeast Industr~al Park
14 Redevelopment Project Area within the City, to the extent that it
15 will make such project area more desirable for ~ndustrial,
16 cODUllercial or resident~al development which in turn will assist in
17 the eliminat~on of blight within such area; and
18 WHEREAS, in order to promote the City's health, safety and
19 welfare and ensure the orderly development of the Agency's
20 Southeast Industrial Park Redevelopment project Area, it ~s
21 important that the Blight Reducing Activities be financed by the
22 Agency; and
23 WHEREAS, it ~s appropriate at this time for the Mayor and
24 CODUllon Council of the C~ty (the "Council") to make certain
25 findings and determinations and take certa~n act~ons w~th respect
26 to the financing of the Blight Reducing Activit~es.
27 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
28 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
DAB/ses/Blight-4.res 2 July 18, 1991
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1 SECTION 1. The Recitals hereinabove are true and correct
2 and are incorporated herein by this reference.
3 SECTION 2. The Mayor and common COuncil consent to the
4 payment by the Agency of the costs of the Blight Reducing
5 Acti vi ties in order to implement the Southeast Industrial Park
6 Redevelopment Plan of the Agency for the reasons set forth in the
7 Recitals hereinabove. The Mayor and common COuncil further find
8 and determine that no other reasonable means of financing the
9 Blight Reducing Activities are presently available to the City or
10 the Agency and that the City and the Agency require the use of
11 revenues generated from the Southeast Industrial Park
12 Redevelopment Project Area of the Agency in order to fund the
13 Blight Reducing Activities.
14 SECTION 3. The undertaking of the Blight Reducing
15 Activities will allow the Agency to promote redevelopment within
16 the Southeast Industrial Park Redevelopment project Area of the
17 Agency by eliminating blighting conditions on a site adjacent to
18 the Project Area which in turn will help stimulate development of
19 such project area and its immediate neighborhoods:
20 SECTION 4. The City Clerk is hereby authorized and directed
21 to cause this Resolution to be transmitted to the COmmission for
22 consideration in connection with appropriate action by that body.
23 SECTION 5. This Resolution shall take effect upon the date
24 of its adoption.
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DAB/ses/Blight-4.res 3 July lB, 1991
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RBSOLUTJ:ON. . . OF UNDERTaKJ:NO CBRTUN BLJ:GJIT REDUCJ:NC
ACTJ:VJ:TJ:ES FOR THE SOUTIIEAST J:NDUSTRJ:AL PaRK REDEVELOPMENT AREA...
J: HEREBY CERTJ:FY that the foregoing resolution was duly
adopted by the Mayor and Conunon Council of the City of San
Bernardino at a
meeting thereof, held on the
day of
, 1991, by the following vote, to wit:
Members:
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ABSTAIN
ESTRADA
REILLY
HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
Secretary
The foregoing resolution is hereby approved this
day of , 1991.
w. R. HOLCOMB, Mayor
of the City of San Bernardino
Approved as to
form and legal content:
JAMES F. PENMAN,
City Attorney
B~aJ./
DAB/ses/Blight-4.res
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July 18, 1991
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OWNER PAR'rICIPJLlfION JLOREEMEN'r
. THIS AGREEMEN'l' IS ENTERED INTO THIS day of ,
1991 by end emong 'the REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO ('the "Agency"). end ALLEN B. STEWARD, INC., A
CALIFORNIA CORPORATION, ('the "participent"). Agency end
participent hereby agree as follows:
I. [100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plen for 'the Sou'theast Industrial Park Redevelopment
project ('the "project") by providing for 'the development of the
Site, which is situated adjacent to 'the Sou'theast Industrial Park
Redevelopment Project Area ('the "Project Area") of 'the Project.
This Agreement i8 entered into for 'the purpose of purchasing and
developing 'the Site and not for speculation in lend holding. The
completion of 'the development of 'the Site pur8uent to this
Agre8lllent 1s .in 'the v.1 tal end best .interest of the City of San
Bernardino, Californ.1a ('the "City") end 'the heal'th, safety and
welfare of its residents, 1n accord wi'th 'the publ.1c purposes and
provisions of app11cable state end local laws end requirements
under which the project has been undertaken, end w1ll benefit the
Project Area by establishing a quality sit-down restaurant
adjacent to 'the Project Area as well as clean.1ng up the
contaminated soils.
B. [102] The Redevelopment Plen
The Redevelopment Plen was approved end adopted on June
21, 1976 by Ord.1nance No. 3583 of 'the COmmon Council of the City
of San Bernardino: said ordinance end 'the Redevelopment Plan as so
DAB/ses/Stewart.agr 1 July 23, 1991
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1 approved (the -Redevelopment Plan-) are incorPOrated herein by
2 reference.
3 C. [103] The Site
4 The Site is that certain real property designated on
I) the Site Map (Attachment No.1) and de8cribed in the -Legal
6 Description of the Site-, which is attached hereto as Attachment
7 No. 2 and is inCOrPOrated herein by this reference.
8 The Site is that certain real property, title to which
9 is held or is in escrow and is being acquired by the Participant.
10 D. [104] Parties to the Agreement
11 1. [105] The Agency
12 The Agency i8 a publiC body, corPOrate and
13 politic, exercising governmental functions and powers and
14 organized and en sting under Chapter 2 of the Community
15 Redevelopment Law of the State of California (Health and Safety
16 Code Section 33020 et seq.). The principal office of the Agency
17 is located at 201 North -E- Street, San Bernardino, California
18 92418.
19 .Agency., as used in this Agreement, includes the
20 Community Development Commission of the City of San Bernardino,
21 the Redevelopment Agency of the City of San Bernardino, the
22 Development Department of the City of San Bernardino, and any
2S assignee of or successor to their rights, powers and
24 responsibilities.
25 2. [106] The Participant
26 The Participant is ALLEN B. STEWARD, INC., a
27 California CorPOration. The principal office and mailing address
28 /II
DAB/ses/Stewart.agr 2 July 23, 1991
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o 1 of the Participant for purPOses of this Agreement is 268 W.
2 Hospitality Lane, Suite 201, San Bernardino, CA 92408.
3 The Participant qualifies as an owner participant
4 PUrsuant to the Redevelopment Plan and rules promulgated pursuant
5 thereto pertaining to owner participation.
6 3. [107] Prohibition Against Change in
7 OWnership. Management and COntrol
8 of the Participant
9 The qualifications and identity of the Participant
10 are of particular concern to the City and the Agency. It is
11 because of those qualifications and identity that the Agency has
12 entered into this Agreement with the Participant. No voluntary or
13 involuntary succes80r in intere8t of the Participant 8hall acquire
o 14 any right8 or powers under this Agreement except a8 expressly set
15 forth herein.
16 The Participant shall not a.sign all or any part
17 of this Agreement or any right8 hereunder without the prior
18 written approval of the Agency, which approval the Agency may
19 grant, withhold or deny at its di8cretion. In the event of such
20 transfer or assignment: (1) the assignee shall expressly assUDIe
21 the obligations of the Participant pursuant to this Agreement in
22 writing satisfactory to the Agency; and (2) any guarantees
23 provided to assure the performance of the Participant's
24 obligations under this Agreement shall remain in full force and
25 effect.
26 In the absence of specifiC written agreement by
o 27 the Agency, no such transfer, assignment or approval by the
28 Agency, shall be deemed to relieve the Participant or any other
DAB/ses/Stewart.agr 3 July 23, 1991
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o 1 pa~ from any obligation under this Agre_ent.
2 All of the terms, covenants and conditions of this
3 Agre_ent shall be binding upon and shall inure 'to the benefit of
4 the participant and the permitted successors and assigns of the
5 participant. Whenever the term -Participant- is used herein, such
6 term shall include any other permitted successors and assigns as
7 herein provided.
8 The parties understand and acknowledge that the
9 sales price by which participant is acquiring title to the site is
10 $340,000.00. Should Participant sell or transfer the site with
11 the approval of Agency, fifty percent (Sot) of the proceeds from
12 said sale in excess of the above noted sales price shall be paid
13 to Agency but in no event shall such amount be less than $50,000.
o 14 The sales price specified above may be increased by bona fide;
15 documented investments made in the site by Participant inCluding
16 soil contamination clean up costs, permit costs, and engineering,
17 architectural and construction costs. Should participant sell or
18 transfer the site without approval of Agency, one hundred percent
19 (lOOt) of such proceeds shall be paid to Agency.
20 The restrictions of this Section 107 shall
21 terminate and be of no further force and effect upon the issuance
22 by the Agency of a Certificate of COmpletion in the form attached
23 hereto as Attachment No. 5 as provided in Section 324 upon
24 completion of the participant Improv_ents described in Section
25 302 of this Agre_ent and Attachment No.4.
26 II. [200] CONDITION OF THE SITE
o 27 A. [201] Vesting of Title to the Site
28 As of the date of this Agre_ent Title to the Site is
DAB/ses/Stewart.agr 4 July 23, 1991
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ves~ed in Participan~ or is in escrow and is being acquired by
Participan~. Should participan~ no~ acquire clear ~i~le ~o the
si ~e wi thin One Hundred Twen'ty (120) days from the da~e of this
Agreemen~, ~hen this Agreemen~ is of no fu~er force and effec~,
unless otherwise ex~ended in wri~ing by ~he parties here~o.
Agency has no obliga~ion w acquire or ob~ain the Si ~e and the
provisions of this Agreemen~ shall no~ apply ~o the Si~e unless
and un~il Participan~ acquires clear ~i~le.
B. (202] Condition of the S1~e
Participan~ assUllles all risk and resPDnsiblli'ty for any
demoli ~ion and clearance of the Si ~e as necessary for the
provision of Participan~ Improvemen~s and ~he opera~ion of the
business. Participan~ assUllles all risk and resp0n8ibili'ty as ~o
the sui ~abil1 'ty of the Si ~e for the proposed develOpIDen~ and the
opera~ion of the business. Agency makes no represen~a~ions Dr
warran~ies concerning the Si~e, 1~s sui~abili'ty for the use
in~ended by the Participan~, or the surface or subsurface
condi1:ions of the Si~e. If ~he soil or other surface Dr
subsurface cond1~1ons of the Si~e are no~ in all respec~s en~irely
sui~able for the use or uses ~o which the Si~e w111 be pu~ as of
the da~e of ~his Agreemen~, participan~ shall no~ be excused from
fur1:her performance under this Agreemen~ and excep~ as provided
hereaf~er, i ~ shall be the responsibili'ty and obl1ga~ion of
Participan~ and no~ Agency ~o ~ake such ac~ion a. may be necessary
~o place ~he Si~e in a condition en~irely sui~able for the
commencemen~, developmen~, and comple~ion of the Par~icipant
Improvemen~s and the opera~ion of the business.
III
DAB/ses/S~ewart.agr
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July 23, 1991
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III. [300] DEVELOPMENT
A. [301] DeveloDlllent by Participant
Participant and Agency agree that the cantral purpose
of this Agreement i8 to provide for the developmant andlor U8e of
the Site in a manner consi8tent with the Redevelopment Plan.
Participant 8hall develOp on the Site a quality sit-down
restaurant.
1. [302] Scope of DeveloDlllent
The Site 8hall be developed by Participant as
provided in the "Scope of Development", which i8 attached hereto
a8 Attachment No. 4 and i8 inCOrPOrated herein.
The development shall include eny plBn8 and
specifications 8Ubmi tted to Agency for approval, and 8hall
inCOrPOrate or 8how compliance with all applicable m1 tigation
lIea8ures and entitlement8.
2. [303] De8ign Concept DrawinG8
By the re8pective t1lle8 8et forth therefor in the
Schedule of Performance (Attachment No.3), participant 8hall
prepare and 8ubmit to the City of San Bernardino ("The City") for
the approval of the City Engineer, De8ign Concept Drawings and
related documents containing the overall plan for development of
the Site. The Site 8hall be developed as established in this
Agreement and 8uch documents, except as chenges may be mutually
agreed upon between Participant and Agency. Any 8uch changes
shall be wi thin the 11mi tations of the Scope of Development
(Attachment No.4).
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o 1 3. [304] COns-truction Drawings and Related
2 DocUlllents
3 By the time set forth therefor in the Schedule of
4 Performance (Attachment No.3), Participant shall prepare and
5 submit to the City, construction drawings, landscape plan, and
6 related docUlllents for development of the Property for engineering
7 and architectural review and written approval.
8 During the preparation of all drawings and plans,
9 staff of Agancy and Participant shall hold regular progress
10 meetings to coordinate the preparation of, submission to, and
11 review of drawings, plans and related docUlllents. The staff of
12 Agency and participant shall cOllllllunicate and consult informally as
13 frequently as is necessary to insure that the formal submi t1:a1 of
o 14 any docUlllants to Agency can receive prompt and complete
15 consideration.
16 4. [305] COst of construction
17 The cost of developing and occupying the Property
18 and constructing all Participant Improvements thereon shall be
19 borne by Participant.
20 5. [306] COnstruction Schedule
21 Participant shall promptly begin and thereafter
22 diligently prosecute to completion the construction of the
23 Participant Improvements and the development of the Property.
24 Participant shall begin and complete all construction, and
25 development of the Participant Improvements wi thin the times
26 specified in the SchedUle of Performance (Attachment No.3).
4:) 27 Participant shall strictly conform to all time requirements and
28 limitations set forth in this Agreement. The bidding and
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1 selection process of a contractor for the project, shall be
2 subject to prior approval of Agency.
3 6. [307] Bod11v Injury and proger'tv Damaoe
4 Insurance
5 Participant shall defend, assume all
6 responsibility for and hold the Agency, the City, and their
7 respective officers, agents and employees, harmless from, all
8 cla1JDs or suits for, and damages to, property and injuries to
9 persons, including accidantal death (including attorneys fees and
1.0 costs), which may be caused by any of participant's activities
11 under this Agre8lllant, whether such activities or performance
12 thereof be by the participant or anyone directly or indirectly
13 employed or contracted with by Participant and whether such damage
14 shall accrue or be discovered before or after termination of this
15 Agreament. participant shall take out and maintain a compre-
16 hensive liability and property damage policy in the amount of One
17 Million Dollars ($1,000,000) combined single limit policy,
18 including contractual publiC liability, as shall protect
19 participant, City and Agency from cla1llls for such damages until
20 two (2) years after the issuance of a certificate of Completion
21 for all of the Participant Improv8lllents.
22 Participant shall furnish a certificate of
23 insurance countersigned by an authorized agent of the insurance
24 carrier on a form of the insurance carrier setting forth the
25 general provisions of the insurance coverage. This countersigned
26 certificate shall name the City and Agency and their respective
27 officers, agents, and 8IlIployees as additional insureds under the
28 policy. The certificate by the insurance carrier shall contain a
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o 1 stat_ent of obligation on the part of the carrier to notify City
2 and the Agency of any material change, cancellation or termination
3 of the coverage at least thirty (30) days in advance of the
4 effective date of any such material change, cancellation or
5 termination. Coverage provided hereunder by Participant shall be
6 prllDary insurance and not contributing with any insurance
7 maintained by Agency or City, and the policy shall contain such an
8 endors_ent. The insurance policy or the certificate of insurance
S shall contain a waiver of subrogation for the benefit of the City
10 and Agency.
11 Participant shall furnish or cause to be furnished
12 to Agency evidence satisfactory to Agency that any contractor with
13 wbelll it has contracted for the performance of work on the Si.te or
o 14 otherwise pursuant to this Agre_ent carries workers' COlDpensation
15 insurance as required by law.
16 7. [308] City and other Governmental AoencY
17 Permits
18 Before COIDIIIenc_ent of the Participant
19 lmprov_ents or other construction, or development of any
20 buildings, structures or other works of ilDprov_ent upon the Site,
21 Participant shall, at its own expense, secure or cause to be
22 secured any and all permits which may be required by the City or
23 any other governmental agency affected by such construction,
2' Clevelopment or work.
25 8. [309] Rights of Access
26 For the purpose of assuring cOlDpliance with this
o 27 Agre_ent, representatives of Agency anCl the City shall have the
28 right of access to the Site, without charges or fees, at normal
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work hours during the period of construction for the purposes of
this Agre_ent, including, but not limited to, the inspection of
the work being performed in constructing the improvements, so long
as they comply with all safety rules. Such representatives of
Agency or of the City shall be those who are 80 identified in
writing by the Executive Director of Agency. Agency shall hold
the Participant harmless from any bodily injury or related damages
arising out of the activities of Agency and the City .. referred
to in this Section 309 and r.su1 ting from the gross negligence or
willful lllisconduct of the City or Agency. This Section 309 shall
not be de_ed to dilllin1sh or limit any rights which the City or
Agency .ay have by operation of law irrespective of this
Agre_ent.
9. [310] Local, State and Federal La_
participant shall carry out the construction of
any Participant lDlprov_ents and all related activities on the
Site in conformity with all applicable laws, including all
applicable federal and state labor standards: provided, however,
participant and its contractors, successors, ..signs, transferees,
and less.es are not waiving their rights to contest any such laws,
rules or standards. Participent and its contractors and sub-
contractors shall pay prevailing wages to all employees on the
project.
10. [311] Antidiscrilllination During construction
Participant, for itself and successors and
assigns, agrees that in the construction of any improvements
provided for in this Agre_ent, Participant shall not discriminate
against any employee or applicant for _p1oyment because of race,
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1 color, creeeS, religion, age, sex, marital status, hancS1cap,
~ national origin or ancestry.
3 B. [312] Tues, Assessments, Encumbrances aneS Liens
4 Prior to issuance of a certificate of Completion with
5 respect to all of 'the Participant Improvements pursuant to 1:h1s
6 Agreement, Participant shall not place or allow 1:0 be placeeS on
7 'the Site or any part thereof any mortgage, trust eSeeeS, encumbrance
8 or lien other than as eXPressly alloweeS by 1:h1s Agreement.
9 Participant shall remove or have removeeS any levy or attachment
10 maeSe on any of the Site or any part 'thereof, or assure the
11 satisfaction thereof wi1:h1n a reasonable time but in any event
12 prior to a sale 'thereuneSer.
13 c. [313] Prohibi1:ion Against Transfer of 'the Site,
14 'the BullcS1ngs or Structures 'thereon aneS
15 Assignment of Agreement
16 Prior to 'the iSBuance by the Agency of a certificate of
17 Completion as to any builcS1ng or structure, Participant shall not,
18 except as permi1:1:eeS by 1:h1s Agreement, without 'the prior written
19 approval of Aganey, make any total or partial sale, transfer,
20 conveyance, assignment or lease of 'the whole or eny part of the
21 Site or of 'the buileSings or structures on the Site. This
22 prohibition shall not be eSeemeeS to prevent a transfer expressly
23 permitteeS pursuant to Section 107 of this Agreement, or the
24 granting of temPOrary or permanent easements or permits to
25 facilitate the eSevelOPlDent of 'the Site.
26 The parties uneSerstaneS aneS acknowleeSge that the sales
27 price by which Participant is acquiring title to the State is
28 $340,000.00. ShouleS Participant sell or transfer 'the Site with
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1 the approval of Agency, fifty percent (Sot) of the proceeds from
2 said sale in excess of the above noted sales price shall be paid
3 to Agency but in no event shall such amount be 1,e.. than $50,000.
4 The sales price specified above may be incr....d by bona fide,
5 documented investments made in the Site by Participant including
6 soil contamination clean up costs, permit costs, and engineering,
7 architectural and construction costs. Should Participant sell or
8 transfer the site without approval of Agency, one hundred percent
9 (lOOt) of such proceeds shall be paid to Agency.
10 D. [314] Loan Agreement: Deed of Trust
11 1. [315] Loan Agreement
12 Agency and participant shall enter into a Loan
13 Agreement in the form of Attachment No. 7 by which Agency shall
14 loan Participant. an amount not to exceed Four Hundred Forty
15 Thousand Dollars ($440,000.00) to assist with the PUrchase price
16 of Site, and with the clean up of any BOUS contamination, and for
17 the construction of Participant Improvaments. Said loan shall be
18 at an interest rate of 9t with payments beginning on January 1 of
19 the year fOllowing the completion of improvements as evidenced by
20 the issuance of the certificate of COmpletion as provided in
21 Section 324.
22 2. [316] Deed of Trust: personal guarantee
23 To secure said loan, participant execute a Deed of
24 Trust in the form of Attachment No.6, and shall provide a written
25 . personal guarantee of such loan by Allan B. Steward.
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DAB/ses/Stewart.agr 12 July 23, 1991
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OlE. [317] Mortgage. Deed of Trust. Sale and Lease-Back
2 Financing: Rights of Holders
3 1. [318] No Encumbrances Except Mortgages. Deeds
4 of Trust. or Sale and Lease-Back for
5 DevelcnJlDtlnt
6 Except as otherwise provided in this Agreement.
7 mortgages, deeds of trust and sales and leases-back are to be
8 permitted before cClllpletion of the construction of the Participant
9 Improvemants, but only for the purpose of s.curing loans of funds
10 to be used for financing the construction of the Participant
11 Improvements or other improvements on the Site, and any other
12 purposes necessary and appropriate in connection with development
13 under this Agreement, and only if the instruments effecting such
o 14 mortgages, deeds of trust and sales and leases-back contain the
15 provisions of Sections 321 and 322 of this Agreement. Participant
16 shall notify Agency in advance of any mortgage, deed of trust or
17 sale and lease-back financing. The words "mortgage" and "trust
18 deed" as used hereinafter shall include sale and lease-back.
19 Participant shall not enter into any such conveyance for financing
20 without the prior written approval of Agency, which approval
21 Agency agrees to give if any such conveyance for financing is
22 given to a bank, savings and loan association. or other similar
23 lending institution and such lender shall be deemed approved
2' unless rejected in writing by the Agency within fifteen (15) days
25 after written notice thereof is received by the Agency. The form
26 of approval by Agency shall be in writing which references this
o 27 Section 318, executed by the Executive Director of the Agency.
28 III
DAB/ses/Stewart.agr 13 July 23. 1991
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2.
[319]
Holder Not Obligated to Construct
IlIIProvements
The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated by the
provisions of this Agreement to construct or complete the
Participant Improvements or to guarantee such construction or
completion. Nothing in this Agreement shall be deemed to
construe, permit or authorize any such holder to devote the Site
to any uses or to construct any ilIIprovements thereon, other than
those uses or participant Improvements provided for or authorized
by this Agreement.
3. [320] Notice of Default to Mortgagee or Deed
or Trust Holders: RiGht to Cure
With respect to any mortgage or deed of trust
granted by participant as provided herein, whenever Agency shall
deliver any notice or demand to Participant with respect to any
breach or default by Participant in completion of construction of
the Participant Improvements, Agency shall at the same time
deliver to each holder of record of any mortgage or deed of trust
authorized by this Agreement a copy of such notice or demand.
Each such holder shall (insofar as the rights of Agency are
concerned) have the right, at its option, within thirty (30) days
after the receipt of the notice, to cure or remedy or commence to
cure or remedy any such default and to add the cost thereof to the
mortgage debt and the lien of its mortgage. Nothing contained in
this Agreement shall be deemed to permit or authorize such holder
to undertake or continue the construction or completion of the
Participant Improvements (beyond the extent necessary to conserve
DAB/ses/Stewart.agr 14 July 23, 1991
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o 1 or protect the Participant Improvements or construction already
2 made) without first having expressly assumed the participant's
3 obligations to Agency by written agreement satisfactory to Agency.
4 'l'he holder, in that event, must agree to complete, J.n the manner
I) provided in this Agreement, the Participant Improvements to which
6 the lien or title of such holder relates, and submit evidence
7 satisfactory to Agency that it has the qualifications and
8 financial responsibility necessary to perform such obligations.
9 Any such holder properly completing such Participant Improvements
10 shall be entitled, upon COIlIpl1ance with the requirements of
11 Section 324 of this Agreement, to a Certificate of COmpletion (as
12 therein def1nsd).
13 4. [321] Failure of Holder to Complete
o 14 IlIIProvements
15 In any case where, thirty (30) days after default
16 by the Participant in completion of construction of Participant
17 Improvements under this Agreement, the holder of any mortgage or
18 deed of trust creating a lien or encumbrance upon the Site or any
19 part thereof has not exercised the option to construct or if it
20 has exercised the option and has not proceeded d:Lligently with
21 construction, Agency may purchase the mortgage or deed of trust by
22 payment to the holder of the amount of the unpaid mortgage or deed
23 of trust debt, including principal and interest and all other sums
24 secured by the mortgage or deed of trust. If the ownership of the
25 Site or any part thereof has vested in the holder, Agency, if it
26 so desires, shall be entitled to a conveyance from the holder to
o 27 Agency upon payment to the holder of an amount equal to the sum of
28 the following:
DAB/ses/Stewart.agr 15 July 23, 1991
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o 1 a. The unpaid mortgage or deed of trust debt at the time
2 title became vested in the holder (less all appropriate
3 credits, including those resulting from collection and
4 application of rentals and other income received during
5 foreclosure proceedings);
6 b. All expenses with respect to foreclosure;
7 c. The net expense, if any (exclusive of general
8 overhead), incurred by the holder as a direct result of
9 the subsequent management of the Site or part thereof;
10 d. The costs of any Participant Improvements made by such
11 holder; and
12 e. An amount equivalent 1:0 the interest that would have
13 accrued on the aggregate of such amounts had all such
o 14 amounts become part of the mortgage or deed of trust
15 debt and such debt had continued in existence to the
16 date of payment by Agency; less
17 f. Any income derived by the lander from operations
18 conducted on the Site (the receipt of principal and
19 interest payments in the ordinary course of business
20 shall not constitute income for the PurPOses of this
21 subsection (f)).
22 5. [322] Right of the AgencY to CUre Mortgage or
23 Deed of Trust Default
24 In the event of a mortgage or deed of trust
25 default or breach by participant prior to the completion of any
26 part thereof and the holder of any mortgage or deed of trust has
C 27 not exercised its option to construct, Agency may cure the
28 default. In such event, Agency shall be entitled to reimbursement
DAB/ses/stewart.agr 16 July 23, 1991
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from participant of all proper costs and expenses incurred by
Agency in curing such default, and such costs and expenses shall
be included as part of the loan proceeds under Section 315.
E. [323] Right of Agency to Satisfy other Liens on
the Site
Prior to the completion of construction of the
Participant Improvements, and after Participant has had written
notice and has failed after a reasonable time, but in any event
not less than fifteen (15) days, to challenge, cure, adequately
bond against, or satisfy any liens or encumbrances on the Site
which are not otherwise permitted .under this Agreement, Agency
shall have the right but no obligation to satisfy any such liens
or encumbranC.s and to make the cost th.reof a lien against the
Sit..
F. [324] C.rtificate of COmpl.tion
Promptly aft.r compl.tion of construction of all
Participant Improv.....nts in conformity with this Agreem.nt, Agency
shall furnish Participant with a Certificat. of Completion
(Attachment No.5) upon writt.n requ.st th.r.for by Participant.
Agency shall not unreasonably withhold any such Certificate of
Compl.tion. The Executiv. Dir.ctor may ex.cut. such C.rtificate
of Compl.tion on behalf of Ag.ncy. Such Certi~icat. of Completion
shall be a conclusive determination of satisfactory completion of
the construction r.quir.d by this Agreement upon the Site and the
certificate of Completion shall so state. Agency may also furnish
Participant with a Certificat. of Completion for portions of the
improvements upon the Site as they are properly completed and
ready to use if Participant is not in default under this
DAB/ses/Stewart.agr 17 July 23, 1991
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o 1 Agreement. After recordation of such Certificate of Completion,
2 any party then owning or thereafter purchasing, leasing or
3 otherwise acquiring any interest in the Site or the Participant
4 Improvements shall not (because of such ownership, purchase, lease
5 or acquisition), :1ncur any obligation or liability under this
6 Agreement except that such party shall be bound by any covenants
7 contained in the documents establishing covenants on the Site in
8 accordance with the provisions of Section 401 of this Agreement
9 which shall be applicable according 1:0 its terms.
10 If the Agency refuses or fails 1:0 furnish a certificate
11 of COmpletion for the Site, or part thereof, after wri ttan request
12 from participant, the Agency shall, within thirty (30) days of
13 written request therefor, provide participant with a wrJ. tten
o 14 statement of the reasons Agency refused or failed 1:0 furnish a
15 certificate of COmpletion. The statement shall also contain
16 Agency's op:1nion of the actions that Participant _t take to
17 obtain a certificate of COmpletion. If the reason for such
18 refusal:1s confined 1:0 the :1mmediate availability of specifiC
19 :1 tams of materials for landscaping, Agency will issue its
20 Certificate of Completion upon the posting of a bond by the
21 Participant with Agency in an amount representing the value of the
22 work not yet completed. If Agency shall have failed to provide
2S such written statement wi thin said thirty (30) day period,
24 Participant shall be deemed entitled to the certificate of
25 COmpletion, and participant's obligation shall be deemed to be
26 satisfied.
o 27 Such Certificate of COmpletion shall not constitute
28 evidence of compliance with or satisfaction of any obligation of
DAB/ses/Stewart.agr 18 July 23, 1991
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o 1 'the Participant: t:o any holder of any mortgage, or any insurer of
2 a mortgage securing money loaned 'to finance 'the Participant:
3 Improv_ent:s, or any part t:hereof. Such certificat:e of Complet:ion
4 is not: a not:ice of complet:ion as referred 'to in 'the california
5 Civil Code, Sect:ion 3093.
6 G. [325] COndit:ions. Covenant:s and Rest:rictions
1 Prior t:o 'the issuance of 'the Certificat:e of Complet:ion
8 Participant: shall prepare, and following approval by Agency shall
9 record condit:ions, covenant:s and rest:rict:ions affect:ing 'the Sit:e
10 which shall, among o'ther 'things, cont:ain 'the nondiscriminat:ion
11 provisions of Sect:ion 401.
12 III. [400] USE OF THE SITE
13 A. [401] y!!!
o 14 The participant: covenant:s and warrant:s 'that: Participant:
15 shall develop and/or operat:e improv_ent:s on 'the Sit:e in
16 accordance wi'th 'the Scope of Developlllent: (At:t:achment: No.4).
11 Participant: covenant:s 'to develop and operat:e 'the Si t:e (or cause it:
18 t:o be operat:ed) in conformity wi'th all applicable laws.
19 Participant: covenant:s by and for it:self and any
20 successors in int:erest: 'that: 'there shall be no discriminat:ion
21 against: or segregat:ion of any person or group of persons on
22 account: of race, color, creed, religion, sex, marit:al st:at:us, age,
2S handicap, nat:ional origin or ancest:ry in 'the sale, lease,
24 sublease, t:ransfer, use, occupancy, t:enure or enjoyment: of 'the
25 Si t:e, nor shall Participant: i t:self or any person claiming under or
26 'through it:, est:ablish or permit: any such pract:ice or pract:ices of
o 27 discriminat:ion or segregat:ion wi t:h reference 'to 'the select:ion,
28 locat:ion, number, use or occupancy of 'tenant:s, lessees,
DAB/ses/St:ewart.agr 19 July 23, 1991
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o 1 subtenants, sublessees or vendees of the Site. The foregoing
2 covenants shall run with the land.
S Participant shall refrain from restricting the rental,
4 sale or lease of the Site on the basis of race, color, creed,
5 religion, su, l118%'ital status, handicap, national origin or
6 ancestry of any person. All such deeda, leases or contracts shall
7 contain or be subject 1:0 substantially the following
8 nondiscrimination or non-segregation clauses:
9 1. In deeda: -The grantee herein covenants by and for
1.0 hiIIIself or herself, his or her heirs, ezecutors,
11 administrators and assigns, and all persons claillling
12 under or through them, that there shall be no
13 discrilllination against or segregation of, any penon or
o 14 group of persons on account of race, color, creed,
15 religion, sez, marital status, age, handicap, national
16 origin or ancestry in 1:he sale, le..e, sublease,
17 transfer, use, occupancy, tenure or enjoyment of the
18 land herein conveyed, nor shall the grantee hiIIIself or
19 herself or any person claillling under or through him or
2.D her, establish or perllli t any such practice or practices
21 of discrimination or segregation with reference to the
22 selection, location, number, use or occupancy of
2S tenants, lessees, sub1;enants, sublessees or vendees in
24 the land herein conveyed. The foregoing covenants
25 shall run with the land.-
26 2. In leases: -The lessee herein covenants by and for
o 27 hilllself or herself, his or her heirs, ezecutors,
28 administrators and assigns, and all persons claillling
DAB/ses/Stewar1:.agr 20 July 23, 1991
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under or 'through him or her, and this lease is made and
accepted upon and subject to the following conditions:
-There 8hall be no discrimination against or
segregation of any per80n or group of persons on
account of race, color, creed, religion, .ex, marital
status, handicap, age, ancestry or national origin in
the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the premises herein leased nor
.hall the lessee himself or herself, or any person
claiming under or 'through him or her, establish or
perm! t any .uch practice or practices of discrimination
or segregation with reference to the selection,
~ocation, 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 .egregation of, eny person, or group of
persons on account of race, color, creed, religion,
8ex, marital status, age, handicap, ancestry or
national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself
or any person claiming under or through him or her,
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of
tenants, 1.8sees, subtenants, sublessees or vendees of
the premises.-
DAB/ses/stewart.agr 21 July 23, 1991
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1 B. [402] Maintenance of the Site
2 participant agrees to maintain the Site in a neat and
3 attractive manner until construction or remodeling of the
4 improvements described in this Agreement is complete so as not to,
5 in the reasonable determination of an appropriate officer of the
6 City, be a public nuisance, or be detrimental to the health,
7 safety and welfare, or impair value of property within one
8 thousand (1,000) feet of the Site, and agrees that in the event
9 Participant fails to do 80, Agency may enter upon the Site for the
10 purposes of performing necessary and desirable maintenance, that
11 Participant will be responsible for the cost of any such
12 maintenance undertaken by Agency, which shall be paid within
13 thirty (30) days after receipt by Participant of written demand
14 therefor.
15 Participant further agrees to maintain the Participant
16 Improvements and all other improvements on the Site and shall keep
17 the Property free from any accumulation of debris or waste
18 materials.
19 Participant shall also maintain the landscaping
20 required to be planted under the Scope of Development (Attachment
21 No.4) in a healthy condition. If, at any time, Participant fails
22 to maintain said landscaping, and said condition is not corrected
23 after expiration of thirty (30) days from date of written notice
24 from Agency, Agency may perform the necessary landscape
25 maintenance and participant shall pay such costs as are reasonably
26 incurred for such maintenance. Failure to pay the costs incurred
27 pursuant to this Section 402 wi thin thirty (30) days shall permit
28 Agency to place a lien on the property.
DAB/ses/Stewart.agr 22 July 23, 1991
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1 Participant agrees to prepare and record Covenants,
2 Conditions and Restrictions approved by Agency, consistent with
S this Section 402 including the maintenance responsibilities
4 outlined in this Agreement which may not be amended nor revoked
I) without the approval of Agency.
6 Issuance of a certificate of Completion by Agency shall
7 not affect Participant's obligations under this Section.
8 C. [403] Rights of Access
9 Agency, for itself and for the City and other public
10 agencies, at their sole risk and expense, reserves the right to
11 enter the Site or any part thereof at all reasonable times for the
12 PUrpOse of construction, reconstruction, maintenance, repair or
13 service of any public improvements or public facilities located on
14 the Site. Any such entry shall be made only after reasonable
15 notice to participant, and Agency shall indemnify and hold
16 Participant harmless from any costs, claims, damages or
17 liabilities pertaining to any entry. This Section 403 shall not
18 be deemed to diminish or limit any rights which the City or Agency
19 may have by operation of law irrespective of this Agreement.
20 D. [404] Effect of Violation of the Terms and
21 provisions of this Agreement After
22 ComPletion of Construction
2S The covenants established in this Agreement and the
~ deeds shall, without regard to technical classification and
25 designation, be binding for the benefit end in favor of Agency,
26 its successors and assigns, as to those covenants which are for
27 its benefit. The .covenants contained in this Agreement shall
28 remain in effect until the termination date of the Redevelopment
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o 1 Plan. The covenants against racial discrimination shall remain in
2 perpetuity.
3 Agency is deemed the beneficiary of the "terms and
4 provisions of this Agreement and of the covenants running with the
5 land, for and in its own rights and for the purposes of protecting
6 the interests of the community and other parties, public or
7 private, in whose favor and for whose benefit this Agreemant and
8 the covenants running with the land have been provided. The
9 Agreement and the covenants shall run in favor of Agency, without
10 regard to whether Agency has been, remains or is en owner of any
11 land or interest therein in the Site or in the adjacent Project
12 Area. Agency shall have the right, if the Agreement or covenants
13 are breached, to ezercise all rights and remedies, and to maintain
o 14 any actions or suits at law or in equity or other proper
15 proceedings to enforce the curing of such breaches to which it or
16 eny other beneficiaries of this Agreement and covenants may be
17 entitled.
18 v. [500] GENERAL PROVISIONS
19 A. [501] Notices. Demands and Communications aetween
20 the Parties
21 Written notices, demands and communications between
22 Agency end participant shall be sufficiently given if delivered by
23 hand (and a receipt therefor is obtained or is refused to be
24 given) or dispatched by registered or certified mail, postage
25 prepaid, return receipt requested, to the principal offices of
26 Agency and Participant. Such written notices, demends and
o 27 communications maybe sent in the same manner to such other
28 addresses as such party may from time to time designate by mail as
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provided in this Section 501.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B. [502] COnflicts of Interest: Nonliability
No member, official or employee of Agency shall have
any personal interest, direct or indirect, in this Agreement. No
member, official or employee shall participate in any decision
relating to the Agreement which affects his personal interests or
the interests of any corporation, partnership or association in
which he is directly or indirectly interested. No member,
official or employee of Agency shall be personally liable to
Participant, or any Buccessor in interest, in the event of any
default or breach by Agency or Participant, or for any amount
which may become due to Participant or its successor or on any
obligations under the terms of this Agreement.
Participant represents and warrants that it has not
paid or given, and shall not payor give, any third party any
money or other consideration for obtaining this Agreement.
C. [503] Enforced Delav: Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
war: insurrection: floods: earthquakes: fires: casualties: acts of
God: acts of the public enemy: freight embargoes: governmental
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restr~ct~ons or pr~or~ty; l~t~gat~on; unusually .evere weather;
acts or ~ss~ons of another party; acts or fa~lures to act of the
e! ty of San Bernardino or any other publ~C or governmental agency
or entity (other than the acts or failures to act of Agency wMch
shall not excu.e performance by Agency); or any other causes
beyond the control or w~ thout the fault of the party claim~ng an
extens~on of time to perform. Notw~thstanding anyth~ng to the
contrary ~n tMs Agreement, an extens~on of time for any such
cause shall be for the per~od of the enforced delay and shall
COIIIIIIence to run frOlll the time of the cODDllencement of the cause, ~f
not~ce by the party cla~ng such extens~on ~. .ent to the other
party w~ tMn tMrty (30) days of the cODDllencement of the cause.
Times of performance under tMs Agreement may also be extended ~n
wr~ t~ng by the mutual agreement of Agency and Part~c~pant.
Except _ otherw~se prov~ded ~n tMs Agreement,
Part~c~pant ~s not ent~tled pursuant to tMs Sect~on 503 to an
extens~on of time to perform because of past, present, or future
diff~cul ty in obta~ning 8U~ table temporary or permanent f~nanc~ng
for the development of the S~te.
D. [504] :tnspect~on of Books and Records
Agency has the r~ght at all reasonable times to ~n8pect
the books and records of Participant perta~n~ng to the S~te as
pertinent to the purposes of tMs Agreement. Part~c~pant has the
r~ght at all reasonable times to inspect the public records of
Agency perta~ning to the Property as pertinent to the purposes of
the Agreement.
III
III
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1 VJ:. [600] DEFAULTS AND REMEDIES
2 A. [601] Defaults - - General
3 Subject to the extensions of time set forth in Section
. 503, failure or delay by any party 'to perform any term or
5 provision of this Agreement constitutes a default under this
6 Agreement. The party who so fails or delays must immediately
7 cOlDlllence to cure, correct, or remedy such failure or delay, and
8 shall complete such cure, correction or remedy with diligence.
9 The injured party shall give written notice of default
10 to the party in default, specifying the default complained of by
11 the injured party. Except as required to protect against further
12 demages, the injured party may not institute proceedings against
13 the party in default until thirty (30) days after giving- such
14 notice. Failure or delay in giving such notice shall not
15 constitute a waiver of any default, nor .hall it change the time
16 of default.
17 B. [602] Legal Actions
18 1. [603] Institution of Legal Actions
19 In addition 'to any other rights or remedies
20 hereunder, Agency or Participant may institute legal action to
21 cure, correct or remedy any default, 'to recover damages for any
22 default, or to obtain any other remedy consistent with the purpose
23 of this Agreement. Any legal actions in! tiated pursuant to this
24 Agreement or otherwise with respect to its subject matter must be
25 instituted in the Superior Court of the County of San Bernardino,
26 State of California, or in an appropriate municipal court in that
27 county.
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2. [604] Applicable Law
The laws of the state of California shall govern
the interpretation and enforcement of this Agreement.
3. [605] Acceptance of Service of Process
In the event that any legal action is cOlllllenced by
Participant against Agency, service of process on Agency shall be
made by personal service uPon the Executive Director or in such
other manner as may be provided by law.
In the event that any legal action is cOlllllenced by
any party against participant, service of process on such party
shall be made by personal service upon Participant 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. [606] Rights and RemedieS U'e Cumulative
Except as otherwise expressly stated in this Agreement,
the rights and remedies of the parties ere cumulative, and the
exercise by any party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any
other default by any other party.
D. [607] Inaction Not a Waiver of Default
Any failures or delays by any party in asserting any of
its rights and ramedies as to any default shall not operate as 8
waiver of any default or of any such rights or remedies, or
deprive any party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect,
assert or enforce any such rights or remedies.
III
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o 1 E. [608] Remedies and Rights of T.rmination
2 1. [609] Damag.s
3 If .i ther Participant or Agency defaults with
4 regard to any of the provisions of this Agr.8IIIant, the non-
5 d.faul ting party ahall s.rve wri ttan notic. of such d.fau1 t upon
6 the defaulting party. If the d.fau1 t is not cured by the
7 d.fau1ting party within thirty (30) days after service of the
8 notice of default, the defaulting party shall be liable to the
9 other for any damages caused by such d.fau1t.
10 2. [610] Action for SD8cif1c Performance
11 If either Participant or Ag.ncy defaults under any
12 of the provisions of this Agr.8III.nt prior 1:0 the r.cordation of a
13 Certificat. of COmpletion for the Participant Improvements to be
o 14 made th.reon, the non-defaulting party shall s.rve written notice
15 of such d.fau1t upon the defaulting party. If the default is not
16 cCllDlDanc.d to be cur.d by the defaulting party within thirty (30)
17 days after s.rvice of the notice of default, the non-defaulting
18 party at its option may institute an action for specific
19 performance of the t.rms of this Agr.ement.
20 VII. [700] SPECIAL PROVISIONS
21 A. [701] Submission of Docum.nts to Agency. for
22 APproval.
23 Wh.never this Agreement requir.s Participant to subm1 t
24 plans, drawings or oth.r docum.nts to Agency for approval, which
25 shall be d.....d approv.d if not act.d on by Agency wi thin the
26 sp.cifi.d tim., said plans, drawings or oth.r documents shall be
e:> 27 accompanied by a letter stating that they are being submitted and
28 will be deem.d approved unless rej.cted by Agency within the
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1 stated time. If there is not e time specified herein for such
2 Agency action, Participant may submit a letter requiring Agency
3 approval or rejection of documents within thirty (30) days after
4 submi88ion to Agency or such documents shall be deemed approved.
5 B. [702] Successors In Interest
6 The terms, covenants, conditions and restrictions of
7 this Agreement shall extend to and shall be binding upon and inure
8 to the benefit of the heirs, executors, administrators, successors
9 and assigns of Participant.
10 Upon the termination of the restrictions imposed by
11 Section 107 of this Agreement, which terminate upon the issuance
12 by Agency of a Certificate of Completion with respect to all of
13 the Participant Improvements pursuant to this Agreement, all of
14 the terms, covenants, conditions and restrictions of this
15 Agreement which do not terminate upon the issuance of such
16 Certificate of Completion shall be deemed to be, and shall,
17 constitute terms, covenants, conditions and restrictions running
18 with the land.
19 VIII. [800] ENTIRE AGREEMENT, WAIVERS
20 '1'his Agreement is executed in two (2) duplicate originals:
21 each of which i8 deemed to be an original. '1'his Agreement
22 includes pages 1 through 31 and Attachments 1 through 7, which
23 constitute the entire understanding and agreement of the parties.
24 No private entity shall be deemed to be a third party
25 beneficiary with respect to any provisions of this Agreement.
26 This Agreement integrates all of the terms and conditions
27 mentioned herein qr incidental hereto, and supersedes all
28 negotiations or previous agreements emong the parties or their
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0 1 aGREEMENT BE: ALLEN B. S'l'EWaRD, DC.
2
3 IN WITNESS WHEREOF, Agency, and Participant have executed
4 1:h1s Agreement on the day and date first above shown.
5 .Agency.
6 REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
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8 By:
9 .-9tTv+m.-~
APPROVED AS '1'0 PROGRAM: Aqency Administrator
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12 By:
Redeve1op111ent Manager
13 APPROVED AS '1'0 FORM
0 14 AND LEGAL CONTENT:
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Agency e1 .
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19 By:
20
21 By: ~ L<.L "-' rhL1:u",-,-^
22
Its: Secretary .
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STATE OF CALIFORNIA )
)8S.
COUNTY OF SAN BERNARDINO )
On
undersigned a
appeared
personally knoWn to .e or ed t:o
satisfactory evidence t:o be the person (~
wi t:hin inat:rulllent as the President and e
the corporation that executed the within na nt,
acknowledged to .e that such corporation executed th same.
,
e basis of
executed the
of
and
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- .rM!
KIMBERLY KING
NOTAJrt PUBLIC W'fURHIA
SAIl BERNARDINO COUNTY
My Com~ bpi... Nov. 20. 1992
(SEAL)
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ATTACHMENT NO. 1
(Site Map)
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EOR..SALE
1.39 ACRE CO:MMERCIAL LOT
San Bernardino, Califomia
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1955 Hunts Lane
For nrlre detal1s. contact:
o
CHARLIE SON
(714) 825-9922
EEA1lJBESi
. Grea1localion for restaurant, office bldg,
hotel, retail, etc.
. Central location within the bn.m...ss perks
· Excellent freeway signage
· located next to t\w maior freeways
0-10 & 1-215)
· l.Bst vaaml: land available in. area.
_..."".lId_"..____..__w.____-.", --,."".._.
2118 w..t Hoap/IaIIIy lAM, SuIt. 201
Sen BemeIltIno, CA 8240B
Tel. (714) 125-1122 Fu (114) 381.2481
ATTACHMENT N~. 2 0
QEID.ER
. ; SCHNEIDI
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ATTACHMENT NO.3
SCHEDULE OF PERFORMANCE
1.
Execution of Agreement
by AGency. Agency shall
approve end execute this
Agreement. end shall
deliver one (1) copy
thereof to participant.
2.
C 1 ear Tit 1 e .
participant shall obtain
clear title to Site.
3. CCmanencement to Demolish
IJDI)rovements and Clean-
UP Contamination.
Participant shall obtain
all necessary permits
end shall COIIIIIence to
demolish existing
structures and
improvements end shall
CClllllllence to clean up
contaminated soil.
4. Complete Demel1 tion and
contamination Clean-up.
Participant shall
complete demolition of
existing structures end
improvements end shall
complete Clean-up of
contaminated soil.
5. Obtain Letter of
en-i tment. Participant
shall obtain a letter of
co_i tment from a
quality sit-down
restaurant to operate a
restaurant on the Site.
6. Obtain Desion Review
Approval. Agency and
City approve Design
Concept Drawings where
required. (Sufficient
time should be allowed
for possible initial
denial by either Agency
or City).
DAB/ses/Stewart.agr
Not later then sixty (60)
days after the date of
execution end 8ublll1S8ion of
execution and sublll1ssion of
two (2) copies of this
Agreement to Agency by
Participant.
Not later then one hundred
twenty (120) days after the
date of this Agreement.
Not later than thirty (30)
days after the effective
date of this Agreement.
Not 1ater than eighteen (18)
months after the effective
date of this Agreement.
Not later than thirty s:l.x
(36) aonths after the
effect:l.ve date of th:l.s
Agreement.
Not later then. forty-two
(42) aonths after the
effective date of this
Agreement.
Page 1 of 2
July 23. 1991
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7. Obtain Bidding and
Selection of Contractor
proce.s Approval.
Agency approves process
for bidding and
selection of contractor
as required by Section
306.
8. Submit Completed
Construction Plans.
Participant will subllli t
completed construction
or remodeling and all
other plans and
documents required by
Section 304.
9. Obtain plan check
approval. obtain
building genii ts and
cOllllllence construction.
Participant shall obtain
necessary plan check
approval. obtain all
building permits and
begin construction.
10. Complete Construction.
Participant shall
complete construction,
move onto Site and
obtain a certificate of
Completion.
DAB/ses/Stewart.agr
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Not later than forty-five
(45) months after the
effective date of this
Agre_ent.
Not later than forty-eight
(48) months after the
effective date of this
Agre_ent.
Not later than fifty (50)
months after the effective
date of this Agre_ent.
Not later than sixty (60)
months from the effective
date of this Agreement.
Page 2 of 2
July 23, 1991
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ATTACHMENT NO. 4
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is specifically delineated on the Site Map
(Attachlllent No.1) and the Legal Description (Attachlllent No.2)
pursuant to Section 103 of this Agre8lllent.
II. DEVELOPMENT
participant shall develop a qual! ty sit-down restaurant.
Such development shall include curbs, gutters, sidewalks and
facilities for underground electrical power, water, sewer,
telephone, cable TV, natural gas and such other utilities where
required by the City Engineer.
participant shall cDlllp1ete all of the improvement. .et forth
in this Scope of Development (Attachment No.4) to be constructed
in one phase. All of the improvements to be provided by the
Participant on the Site constitute the .8asic .Participant
Improv8lllents. · The 8asic Participant Improvements and all those
off-site improvements, which are required in connection with this
development (if any), and which are required to be provided by the
participant (the .Off-Site Improvements.) 'together constitute the
.Participant IlIprOV8lllents..
The Participant shall cOllllllence and complete the Participant
Improvements by the respective times established therefor in the
Schedule of Performance (Attachlllent No.3).
III. DEVELOPMENT STANDARDS
The Participant Improvements shall be developed and
maintained in accordance with City specifications and requir8lllents
of the City Engineer and the fOllowing development standards.
A. Landscaping. The participant shall provide and
maintain landscaping within the public rights-of-way and the
proposed public rights-of-way and within .etback area along all
street frontages and conforming with the Design Concept Drawings
as approved by Agency.
Landscaping shall consist of trees, shrubs and installation
of an automatic irrigation system adequate to maintain such plant
material. The type and 8ize of tree8 to be planted, 'together
with a landscaping plan, shall be subject to approval by the
City' 8 Planning Department prior to planting.
8. utili ties. Sewer, drainage and utility lines, conduits
or syst8llls shall not be constructed or maintained above the ground
level of the Site unle88 8uch installations are within approved
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enclosed structures, and shall conform 1:0 requir8lllen1:s of 'the Ci'ty
of San Bernardino or o'ther applicable governmen1:al or priva1:e
agency having jurisdic1:ion of the work. If required 1:0 be
ins1:alled, s1:orm drainage for all hard surfaced areas shall be
drained or maybe Bhee1: flowed 1:0 s1:orm sewers. No drainage shall
flow across public sidewalks. All non pollu1:ed was1:e wa1:er, such
as was1:e air cond:L 1:ion:Lng wa1:er, shall be drained 1:0 the s1:orm or
sani1:ary drainage sys1:... as perm:L1:1:ed by local oo4es.
IV. PUBLIC IMPROVEMENTS AND UTILITIBS
par1:icipan1:, a1: i1:s own cos1: and expense, shall provide or
cause 1:0 be provided 1:he following public :l.lllprovemen1:s wi'th:Ln 'the
1::Lme se1: for'th for 'the cOlllPletion of 1:he par1:icipan1: IlIIprov_n1:s
in 'the Schedule of Performance (A1:1:achmen1: No.3):
1.
IlIIprovemen1: as required by 'the C:L'ty by resurfacing,
rebuilding or new construc1:ion of 'the existing streets,
alleys or o'ther public rights-of-way (:Lncluding ca1:ch
basins, curbs and gutters, drive and curb cuts, and
drives between 'the proper'ty line of 'the Site and 'the
public rights-of-way) traversing 'the Site on 'the
alignment approved by 'the Ci'ty Bng:Lnser.
Installation of s1:raet lighting, signs . and - fire
hydrants in connec1:ion wi'th 'the Site as may be
required.
Installation of public sidewalks along 'the frontage of
'the roadway traveraing 1:he Site or wi'th:Ln 'the rights-
of-way lines of such public s1:raets, and appropriate
street landscaping which Agency or C:L'ty might require.
Installation or relocation by 'the public utili'ty
cClllpanies of such sewers, drains, water and gas
distribution lines, electric, telephone and telegraph
lines, and all other publiC utili'ty lines,
ins1:alla1:ions and facilities as are necessary 1:0 be
installed or relocated on or in connection wi'th 'the
Si 1:e by reason of 'the redevelopment cont8lllpla1:ed by 1:he
Redevelopmen1: Plan and 'the development of 'the S1 te.
Agency shall no1: be responsible for, nor bear any
portion of 'the cost of, :Lnstalling 'the necessary
u1:il:L'ty connec1:ions wi th:Ln 'the boundar:Les of 'the S11:e
be1:ween 'the :Lmprovemen1:s 1:0 be constructed by
par1:icipant and 'the water, sanitary sewer, and storm
drains, mains or o'ther publ:Lc utilities owned by 1:he
Ci'ty or by any publiC utili'ty cClllpany wi th:Ln or wi'thout
such boundaries, or electric, gas, telephone or o'ther
public lines owned by a public utili'ty cOlllpany w11:h:Ln
or without such boundaries, end par1:icipant shall
secure any perm:Lts required for any such installa1:1on
wi thou1: expense 1:0 Agency.
Page 2 of 3
2.
3.
4.
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Those of the improvements r.quir.d to be provid.d pursuant
to th:1s Part IV of the Scope of Development (Attachlllent No.4)
which are locat.d off the Sit. descr:1bed in Attachlllent No. 1
constitute the "Off-Site Improvem.nts."
v. DEMOLITION AND SOILS
Participant assumes all responsibility for surface and
subsurface conditions at the SUe, and the au:1tabil:1ty of the SUe
for the Participant Improvements. If the surface and subsurface
cond:1tions are not .ntir.ly suitable for such dev.lopment and use,
Participant shall at its cost take all actions necesaary to render
the Site entirely auitable for such developlllent. Participant has
undertaken all invesUgation of the Site it has d....d nec.aaary
and has not r.ceiv.d or reli.d upon any representations of Ag.ncy,
the City, or their r.spectiv. offic.ra, agents and employ.es.
Participent shall undertake at its cost all demolition required in
connection with the development of Participant Improvements.
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ATTACHMENT NO. 5
RECORDl:NG REQUESTED BY
AND WHEN RECORDED MAXL TO:
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lspace above for Recorder.]
CBRTXFl:CATE OF COMPLBTl:ON FOR
CONSTRUCTl:ON AND DEVELOPMENT
WHEREAS, pursuant to that certain OWner's Participation
Agreement entered into between the Agency, and Allan B. Steward,
l:nc., (-Participant-) dated as of (-OPA-),
relating to that certain real property described on Exhibit 1,
attached hereto and incorporated herein, the Participant is
entitled to the issuance of a certificate of CcllIpletion upon the
COlllPletion of those improvements required by the OPA to be
developed by the participant (the -participant Il11provements-): and
WHEREAS, such certificate shall be conclusive determination
of satisfactory CClIIpletion of the construction required by the
OPA: and
WHEREAS, the Agency has conclusively determined that the
construction on the above described real property required by the
OPA has been satisfactorily COIIIpleted:
NOW THEREFORE,
1. The Agency does hereby certify that the construction or
remodeling of the Participant l:D1prove111ent. has been fully and
satisfactorily performed and CClIIpleted.
2. Nothing contained in this instrument; shall modify in
any other way other provisions of the OPA. All executory
obligations of the participant pursuant to the OPA shall remain in
full force and effect.
l:N Wl:TNESS WHEREOF, the Agency has executed this
certificate this day of , 19___.
REDEVELOPMENT AGENCY OF THE
Cl:TY OF SAN BERNARDl:NO
By:
Executive Director
Page 1 of 3
DAB/.es/Stewart.agr
July 23, 1991
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1 ATTACHMENT NO.6
2 Deed of trust w.1 th ass.1gnment of rent
3 Deed of trust made on , 1990,.A11an B. Steward,
4 Inc., a Ca1.1forn.ia COrporat.1on, here.1nafter called trustor, whose
5 address is 268 W. Hosp.1ta1ity Lane, Suite 201, San Bernardino, CA
6 92408 to First American Title Insurance Company, a Cal1forn.ia
7 COrporation, hereinafter referred to as trustee, whose bus.1ness
8 address is 323 W. COurt Street, San Bernardino, Ca1.1forn.ia, in
9 favor of the Redeve10plllent Agency of the C.1ty of San Bernardino,
10 hereinafter referred to as benef.1ciary, whose business address .1s
11 201 North "E" Street, San Bernardino, CA 92418.
12 Trustor irrevocably grants, transferB, and aSB.1gns to
13 truBtee.in truBt, w.1th power of Bale, all that property, .inc1ud.1ng
14 all eas_ents and r.1ghts of way used in connection therewith or as
15 a means of access thereto, in the City of San Bernardino, cOunty
16 of San Bernardino, State of Ca1iforn.ia, de.cr.1bed as follows: See
17 Exh.1b.1t "A" attached hereto and incorporated herein.
18 Together with the rents, issues, and prof.1ts thereof,
19 Bubject however to the r.1ght reserved by trustor in Paragraph B-16
20 hereof to collect and apply such rents, issues, and profits, pr.1or
21 to any default hereunder:
22 For the purpose of securing payment of the indebtedness
23 ev.1denced by a prom.1ssory note executed by trustor, dated
24 ' 1991, .in the principal sum of Four Hundred, Forty
25 Thousand Dollars ($440,000.00), payable to beneficiary or order,
26 and each extens.1on thereof: and performance of each agreement of
27 trustor incorporated herein by reference or conta.1ned here.1n.
28 1//
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A. To protect the security of this deed of trust, trustor
agrees:
1. To maintain the property in good condition and repair:
not to r8lllOVe or d8ll101ish any building or 1IIIprovement thereon: to
complete promptly in workmanlike manner any improvement hereafter
constructed thereon and to restore promptly in workmanlike manner
eny 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 cOllllllit
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
1:rustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by them or
either of them in connection ther_ith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
sum.
3. To pay (a) at least 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
DAB/ses/stewart.agr 2 July 23, 1991
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1 superior hereto: and (c) all costs, fees, and expenses of this
2 trust.
3 4. If trustor fails to make any payment .or to 40 any act
4 as herein provided, then beneficiary or trustee (but without
5 obligation so to do, and with or without notice to or demand upon
6 trustor, and without releasing trustor from any obligation hereof)
7 may (a) make or do the same in such manner and to such extent as
S either de8IIIB necessary to protect the security hereof, beneficiary
9 or trustee being authorized to enter upon the property for such
10 purpose: (b) appear in or cOllUllence any action or proceeding
11 purporting to affect the security hereof or the rights or powers
12 of beneficiary or trustee: (c) pay, purchase, contest, or
13 compromise any encumbrance, charg., or li.n that, in the judgment
14 of .ither, appears to be superior her.to: and in exercising any
15 such power, beneficiary or trustee _y incur n.c.s.ary expenses,
16 including r.asonable attorneys' f....
17 5. To pay :l.mmediately and without demand all sums expended
18 her.under by beneficiary or trwIt.e, with int.r.st from date of
19 .xpendi ture at a variable interest rate of one end one half
20 percent (1 1/2t) above the prime intere.t rate per annum. The
21 prime interest rate shall be that rate established by the Bank of
22 America on January 1, April 1, July 1 and October 1 of each year.
2S B. It is mutually agreed that:
24 1. Any award of damages made in connection with the
25 condemnation for public use of or injury to the property or any
26 part thereof is hereby assigned and shall be paid to beneficiary,
27 who may apply or release such moneys received therefor upon any
28 indebtedness secured hereby in such order as beneficiary
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determines, or at the option of beneficiary the entire amount so
received or any part thereof may be releasecS to trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
2. The acceptance by beneficiary of any payment less than
the amount then due shall be deemed an acceptance on account only
and shall not constitute a waiver of the obligation of trustor to
pay the entire sum then due or of beneficiary's right either to
require prompt payment of all .ums then due or to declare default.
The acceptance of payment of any sum .ecured hereby after its cSue
date will not waive the right of beneficiary either to require
prompt payment when due of all other BUID8 80 securecS or to declare
default for failure so to pay. No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
3. At any time or from time to time, without liability
therefor and with or without notice, upon written request of
beneficiary and presentation of this deed and the securecS note for
endorsement, and without effecting the personal liability of any
person for payment of the indebtedness secured hereby or the
effect of this deecS upon the remainder of the property, trustee
may reconvey any part of the property, consent to the making of
any map or plat thereof, join in granting any easement, or join in
any extension agreement or any agreement subordinating the lien or
charge thereof.
4. Upon written request of beneficiary stating that all
sums securecS hereby have been paid, surrencSer of this deecS ancS the
,
note to trustee for cancellation and retention, ancS payment of its
DAB/ses/Stewart.agr 4 July 23, 1991
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1 fees, trus'tee shall reconvey, wi'thou't warran'ty, 'the proper'ty 'then
2 held hereunder. The reci'ta1s in .uch reconveyance shall be
3 conclusive proof of 'the 'tru'thfu1ne.. 'thereof. The grantee may be
4 designa'ted in such reconveyances as w'the person or persons legally
5 en'tit1ed 'thereto.W
6 5. Xf trustor or any subsequent owner of 'the proper'ty
7 covered hereby shall occupy 'the proper'ty, or any part 'thereof,
8 after any default in payment of any amoun't secured by 'this deed of
9 trus't, trustor or such owner shall pay to beneficiary in advance
10 on 'the first day of each mon'th. a reasonable rental for the
11 premise. so occupied. On failure to pay such reasonable ren'ta1,
12 trustor or such owner may be removed from the premises by SUIIIIII&ry
13 dispossession proceedings or by any o'ther appropriate action or
14 proceeding.
15 6. Xf default is made in paymen't of any indeb'tedness or in
16 performance of any agre_n't hereby .ecured, 'then beneficiary,
17 wi'th or wi'thou't notice to trustor, may declare all sums secured
18 hereby iDIIDediate1y due and payable by lnsti tuting suit for 'the
19 recovery 'thereof or for 'the foreclosure of 'this deed, or by
20 delivering to trustee a written declaration of default and demand
21 for sale, _ well as a wri't'ten no'tice of defaul't and of election
22 to cause the proper'ty to be sold, which no'tice trustee shall cause
23 to be filed for record. If such declara'tion is delivered 'to
24 trus'tee, beneficiary also shall deposi't wi'th trustee 'this deed,
25 the secured note, and all documents evidencing expendi'tures
26 secured hereby.
27 7. Should trus'tor, wi'thou't the consent in wri'ting of
28 beneficiary, voluntarily sell, transfer, or convey his in'teres't in
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1 the property or any part thereof, or if by operation of law, it be
2 sold, transferred, or conveyed, then beneficiary may, at its
3 option, declare all sums secured hereby 1IIImediate1y due and
4 payable. COnsent to one such transaction shall not be deemed to
5 be a waiver of the right to require such consent to future or
6 successive transactions.
7 8. After the time then required by law has elapsed after
8 recordation of such notice of default, and notice of sale having
9 been givan as then required by law, trustee, with or without
10 demand on trustor, shall sell the property at the time and place
11 fixed in the notice of sale, either as a whole or in separate
12 parcels and in such order as trustee determines, at public
13 auction, to the highest bidder, for cash in lawful money of the
14 United states, payable at time of sale. Trustee may postpone from
15 time to time sale of all or any portion of the property by public
16 announcement at the time and place of sale originally fixed or at
17 the last preceding postPoned time. Trustee shall deliver to the
18 purchaser its deed conveying the property sold, but without any
19 covenant or warranty, express or implied. The recitals in such
20 deed of any matters or facts shall be conclusive proof of the
21 truthfulness thereof. Trustor, trustee, beneficiary, or any other
22 person may purchase at the sale.
23 9. After deducting all costs, fees, and expenses of
:u trustee and of this trust, including cost of evidence of title and
25 reasonable attorney fees in connection with sale, trustee shall
26 apply the proceeds of sale to payment of <a> all sums expended
27 under the terms hereof and not theretofore repaid, with accrued
28 interest at nine per cent < 9t > per annum, and < b > all other sums
DAB/ses/stewart.agr 6 July 23, 1991
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1 then secured hereby in such order as beneficiary, in the exercise
2 of its sole discretion, directs. The remainder, if any, shall be
3 paid to the person or persons legally entitled thereto.
4 10. Before trustee's sale, beneficiary may rescind such
5 notices of default and of election 1;0 cause the property to be
6 sold by delivering to trustee a written notice of rescission,
7 which notice, when recorded, shall cancel any prior declaration of
8 default, demand for sale, and acceleration of maturity. The
9 exercise of such a right of rescission shall not constitute a
10 waiver of any default then existing or subsequently occurring, or
11 impair the right of beneficiary 1;0 deliver to 'trustee other
12 declarations of default and demands for sale or notices of default
13 and of election to cause the property to be sold, or otherwise
14 affect any provision of the secured note or of 1:h1s deed or any of
15 the rights, obligations, or remedies of beneficiary or trustee
16 hereunder.
17 11. Beneficiary may from t1me 1;0 time, as provided by
18 statute, or by a writing signed and acknowledged by him and
19 recorded in the office of the county recorder of the county in
20 which the land or such part thereof as is then affected by this
21 deed of 'trust is situated, appoint another trustee in place and
22 stead of trustee herein named: and thereupon, the trustee herein
23 named shall be discharged, and the 'trustee so appointed shall be
24 substituted as trustee hereunder with the same effect as if
25 originally named 'trustee herein.
26 12. If two or more persons are designated as 'trustee
27 herein, any or all powers granted herein to trustee may be
28 exercised by any of such persons if the other person or persons is
DAB/ses/Stewart.agr 7 July 23, 1991
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o 1 unab1.e, for any reason, to act. Any recital of such inability in
2 any instrument executed by any of such persona shall be conclusive
3 against trustor, his heirs and assigns.
4 13. All leases now or hereafter affecting the property are
5 hereby assigned and transferred to beneficiary by trustor.
6 Trustor hereby covenants that none of such l.as.s will be modified
7 or terminated without the written cons ant of beneficiary.
8 14. Whan requested so to do, trustor shall give such
9 further written assignments of rents, royalties, issues, and
10 profits: of all security for the performance of leases: and of all
11 money payable under any option to purchase, end shall give
12 executed originals of all 1.eases, now or hereafter on or affecting
13 the property.
o 14 15. Trustor re.erves the right, prior to any default in
15 paJlllant of any indebtedness or performance of any obligation
16 secured hereby, to collect all such rents, royalties, issues, and
17 profits, as but not before they become due. Upon any such
18 default, trustor's right to collect .uch moneys shall cease, not
19 only as to amounts accruing thereafter, but also as to amounts
20 then accrued and unpaJ.d. In the event of default, beneficiary,
21 with or without notice and without regard to the adequacy of
22 security for the indebtedness hereby secured, either in person or
23 by agent, or by a receiver to be appointed by the court, (a) may
24 enter upon and take possession of the property at any time and
25 manage and control it in beneficiary's discretion and, (b) with or
26 without taking possession, may sue for or otherwise collect the
o 27 rents, issues, and profits thereof, whether past due or coming due
28 thereafter, and apply the same, less' costs and expenses of
DAB/ses/stewart.agr 8 July 23, 1991
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operation and collection, including reasonable attorney's 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 managemant 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 SU1D8 actually received.
16. Without affecting the liability of trustor or of any
other party now or hereafter bound by the teX'1118 hereof for any
obligation secured hereby, beneficiary, from time to time and with
or without notice, may release any person now or hereafter liable
for performance of such obligation, and may extand the time for
payment or performance, accept edd! tiona1 security, and alter,
substitute, or release any security.
17. In any 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.
18. No remedy hereby given to beneficiary or trustee is
exclusive of any other remedy hereunder or under any present or
future law.
19. 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.
20. In the event of default in the payment of any
indebtedness secured hereby, and if such indebtedness is secured
at any time by any other instrument, beneficiary shall not be
DAB/ses/stewart.agr 9 July 23, 1991
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4:) 1 obliga~ed ~o resort ~o any .ecuri~ in any particular order: and
2 -the exerci.e by beneficiary of any righ~ or ramedy wi ~h re.pec~ ~o
3 any securi~ shall no~ be a waiver of or limi~aUon on -the righ~
4 of beneficiary ~o exerci.e, a~ any ~ilIIe or from ~ime ~o ~ime
5 -thereaf~er, any righ~ or ramedy wi-th respec~ ~o ~s deed.
6 21. '1'ruswr .hall, upon reques~ made by beneficiary,
7 furnish ~he beneficiary wi ~h annual .~a~amen~s covering 1:he
8 opera~ions of -the prope~.
9 22. Beneficiary may collec~ a -la~e charge- no~ ~o exceed
10 an amoun~ equal ~o four per cen~ ("') per calendar mon1:h, or
11 frac~ion ~hereof, on ~he amoun~ pas~ due and ramaining unpaid on
12 any ins~almen~ -tha~ i. no~ paid wi~n ~en (10) days from 1:he due
13 da~e -thereof, w cover 1:he extra expense involved in handling
o 14 delinquen~ paymen~s.
15 23. This deed applies w, inures to -the benefit of, and
16 binds, all partie. here~o, "their heirs, lega~..., devisee.,
17 adminis~ra~ors, execu~ors, .ucce.sors, succe.sors in in~eres~, and
18 assigns. The term -beneficiary- meens -the owner and holder,
19 including pledgees, of -the note secured hereby, whe1:her or no~
20 named as beneficiary herein. In~. deed, whanever -the con~ext
21 so require., ~he masculine gender inClude. -the feminine and
22 neu~er, and ~he singular number includes -the plural, and all
23 obliga~ions of each trus~or hereunder are join~ and several.
24 24. Trus~ee accep~s this ~rus~ when ~s deed, duly
25 execu~ed and acknowledged, is made a public record as provided by
26 law. Trus~ee is no~ obliga~ed to no~ify any pa~ here~o of
<:) 27 pending sale under any other deed of trus~ or of any ac~ion or
28 proceeding in which trus~or, beneficiary, or trus~.e is a par~
DAB/ses/S~ewart.agr 10 July 23, 1991
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unless brought by trustee.
Trustor requests that a copy of notice of default and
of any notice of .ale hereunder ahall be .ailed to him at the
address set out opposite his name, 1EDediately below.
MAILING ADDRESS FOR NOTICES
Allan B. Steward, Inc.
268 W. Hospital1 ty Lane
San Bernardino, CA 92408
Executed at San Bernardino, California on the date first above
written.
[Signature]
Trustor
DAB/ses/Stew&rt.agr
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July 23, 1991
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STATE OF CALIFORNIA )
)88.
COUNTY OF SAN BERNARDINO )
before lie, the
State, per80nally
,
.e on the basis of
who executed the
of
and
on
undersigned, a Notary Public in end for said
appeared
personally known to .e or proved to
satisfactory evidence to be the person
wi thin instrument as the President and the
the corporation thet executed the within instrument,
acknowledged to lie that such corporation executed the same.
WITNESS lIlY hand and official 8eal.
(SEAL)
DAB/ses/Stew&rt.agr
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July 23, 1991
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SCHNEIDl
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ATTACHMENT NO. 7
PROMISSORY NOTE SECURED BY DEED OF TRUST
$440,000.00
Place: Redevelopment Agency
201 North "E" Street
San Bernard1no, CA 92418
Date:
FOR VALUE RECEIVED, 'the underaigned jointly and severally
promises to pay 'to 'the Redevelopment Agency of 'the Ci t;y of San
Bernardino ( 'the "Agency") or its successors, 'the sum of Four
Hundred For'ty Thousand Dollars ($440,000.00), and 'to pay intere.t
on 'the unpaid principal amount of 'th1s Note from 'the date hereof,
at the variable interest rate of one and one half per cen'tum ( 1
1/24-) over pr1llle interest rate per annum, until paid. The prime
interest rate shall be 'that rate established by 'the Bank of
America on January 1, April 1, July 1 and october 1 of each year.
Payments. on 'th1s Note are payable beg!nn1ng on 'the First Day of
each January, following issuance of a Certificate of COmpletion
pursuant 'to 'that certain Owners Participation Agreement between
the undersigned and 'the Redevelopment Agency a. 'the Ci t;y of San
Bernardino dated
, payable three (3) years
thereafter, in lawful money of 'the Un! ted States at 'the principal
office of 'the Agency, 201 North "E" Street, San Bernardino, CA
92418, or at such o'ther place as may from t1llle to time be
designated by 'the Agency in writing. This Note shall become
immediately due and payable in 'the amount of unpaid principal,
wi'th interest, upon transfer of title of 'the proper'ty described in
'the Deed of Trust securing this Note 'to any person, firm or
corporation o'ther 'than 'the undersigned and except as provided in
said Deed of Trust, whe'ther such transfer of title be voluntary,
DAB/ses/Stewart.agr
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1 involuntary, or by operation of law.
2 The undersigned reserves the right to prepay at any time all
3 or any part of the principal amount of this Note without the
4 payment of penalties or premiUlD8. All payments on this Note shall
5 be applied first to the interest due on the Note and then to the
6 principal due on the Note, and the remaining balance shall be
7 applied to late charges, if any. Except a8 provided below, all
8 payments on this Note 8hall be cred! ted as of the due date thereof
9 without adjustment of intere8t becau8e paid either before or after
10 such due date.
11 IN THE EVENT the undersigned shall fail to pay any payment
12 when due, and if 8uch failure be 8ub8i8ting Thirty (30) days
13 thereafter, the unpaid principal UlOunt of this Note, together
14 with accrued interest and late charges, shall become due and
15 payable, at the option of the City, without notice to the
16 undersigned. Failure of the Agency to exereis. such option shall
17 not constitute a waiver of 8uch default. No default 8hall exi8t
18 by reason of nonpayment of any required payment 80 long as the
19 amount of optional prepayments already made pursuant hereto equals
20 or exceeds the amount of the required payments. If the payments
21 on this Note are not paid within Ten (10) days of the due date,
22 the undersigned shall pay to the Agency a late charge of 4% per
23 calendar month, or fraction thereof, on the UlOunt past due and
24 remaining unpaid. If this Note be reduced to judgment, such
25 judgment shall bear the statutory interest rate on judgments.
26 In no event shall the total interest and late charge payable
27 hereunder exceed the maximum amount of interest permitted under
28 the usury laws of the State of California.
DAB/ses/stewart.agr 2 July 23, 1991
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If suit is instituted by the Agency to recover on this Note,
the undersigned agrees to pay all costs of such collection
including rea.onable attorney's f.es and court costs.
THIS NOTE i. s.cured by a Deed of Trust of even date, duly
filed for record 1n the office of the County Recorder of the
County of San Bernardino, state of California.
DEMAND, protest and notice of d8llland and protest are hereby
waived and the undersigned hereby waives, to the eztent authorized
by law, any and all hemestead and other ez8lllption rights which
otherwise would apply to the debt evidenced by thi. Note.
IN WITNESS WHEREOF, THIS NOTE has been duly ezecuted by the
undersigned, as of its date.
(witness)
1 personally guarantee pa1'lllllnt of this Note.
ALLAN B. STEWARD
DAB/ses/Stewart.agr
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July 23, 1991