HomeMy WebLinkAboutRS01-Economic Development Agency
c
c
c
o
o
DIVILOPMIIIT DIPARTMIIIT
OF rBI CIn OF SAIl BEWRDIlIO
OODEST FOR CCRUSSIOIl/COUlICIL ACTIOIl
From:
KENl'lETH J. HENDERSON
Executive Director
Subject: MAIII SrREEr IlIlI SRO
PROJECT
Date:
January 2, 1992
Svnoosis of Previous Commission/Council/Committee Action(s):
On November 4, 1991, the Community Development Commission approved
deal points and financial assistance to this project totalling
approximately $2 million.
Recommended Motion(s):
(Coamunitv Develomlent Co_ission)
MOrIOIl
That the Community Development Commission approve the
attached Disposition and Development Agreement (DDA)
between the Redevelopment Agency of the City of San
Bernardino and Main Street Inn, a California Limited
Partnership, for the development of a two-hundred,
sixty-four (264) room Single Room Occupancy (SRO) project
at the Northeast corner of Fifth and "E" Streets.
~~~OR
Executive Director
Administrator
Contact Person(s): Ken Henderson
Phone:
5081
Project Area(s): Central Citv North (CCN)
Ward(s):
One (1)
Supporting Data Attached:
Staff Reoort
FUNDING REQUIREMENTS:
Amount: $2.005.000 Source: 20% Set Aside l/M Fund
Budget Authority:
Aooroved November 4. 1991
Commission/Council lIotes:
KJH:lag:0379E
COMMISSIOIl MKBrIlIG AGERDA
Meeting Date: 01/06/1992
Agenda Item lIumber:
e5-1
c
c
c
o
o
DBVBLOPMBBT DBPARTMBBT
OF THE CITY OF SAM BBRBARDIBO
STAFF REPORT
Rain Street Inn sao Proiect
The Housing Committee and Community Development Commission have
previously considered this project and approved financial assistance
totalling approximately $2 million.
On November 4, 1991, the Commission approved certain deal points in
connection with this project as follows:
1. Development Department to provide land free and clear and pay all
fees, with such acquisition, demolition and fees estimated to be
$1,795,000.
2. Development Department assistance to take the form of a "silent"
second deed of trust.
3. The project will set aside thirty-percent (30X) of the units for
low and very low income households.
4.
The Department to receive eighteen percent (18X) of the cashflow,
plus eighteen percent (18X) of the net sale or refinancing
proceeds.
5. The Development Department to guarantee the projected rent revenue
shortfall of approximately $210,000 for the first three (3) years
of operation.
The deal points have now been formalized into a Disposition and
Development Agreement (DDA) between the Agency and Main Street Inn, a
California Limited Partnership, along with various and sundry other
. provisions of the Community Redevelopment Law. The Agreement also
contains one modification to deal point #4. Originally, the deal point
called for the Department to receive eighteen percent (18X) of
cashflows plus eighteen percent (18X) of net refinance or sales
proceeds. Based upon projected cashflows and the overall value of the
project, the Department faced the ,possibility of not receiving all of
its $2 million investment. The Agreement now contempfates pre-payment
KJH:lag:0379E
COMMISSIOB MDTIBG AGENDA
Meeting Date: 01/06/1992
Agenda Item lluIlber:
R.S- }
c
c
c
o
DBVELOPMEB'I DEPAJmowu STAFF REPORT
Main Street Inn SRO Project
December 23, 1991
Page l'lumber -2-
o
of the Department's contribution, thus creating an incentive for the
developer to payoff early the Department's contribution, plus accrued
interest. Should the developer payoff the entire Department
contribution plus accrued interest, the Department's interest in this
project would cease to exist.
Based on the foregoing, Staff recommends adoption of the form motion.
KJH:lag:0379E
COMMISSIOB IlRETIBG AGEBDA
Meeting Date: 01/06/1992
Agenda Item l'lumber: .i2:l
r'
'.
,
c'
'_0,..
r)
o
o
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
881O/0001/542/df
1/2/92 420
WHEN RECORDED MAIL TO:
SABO , GREEN
6320 Canoqa Avenue, Suite 400
Woodland Hills, california 91367
(Space above for Recorder's Use)
DISPOSI'l'IOIf UD DBVBLOP..... AGRB---
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
MAIN STREET INN,
A california Limited Partnership
c
;:,
'-
/-,
t'
o
o
ARTICLII VII
IIII'1'IRII AGRII__. BlVD. MID aMRIm.....
Section 7.01.
Entire Aqreement . . . .
. . . . . . .
ARTICLII VIII
TTII1I ~R ACCIIP'J'AIICII O. .._____
BY ABBCY MID R1U!nDn"TIOII
Section 8.01.
Execution and Recordation
. . . . . . . . . .
41
EXHJ:BIT "A" - LEGAL DESCRIPTION
EXHJ:BIT "B" - SCOPE OP DEVELOPMENT
EXHJ:BIT "C" - DEED OP TROST
EXHJ:BIT "D" - GRANT DEED
EXHJ:BIT "E" - SCHEDULE OP PERFORMANCE
EXHJ:BIT "P" - CERTIPICATE OP COMPLETION
EXHJ:BIT "G" - AGREEMENT AND RECIPROCAL EASEMENT
OP CREATIVE ENTERPRISES,
a California Limited Partnership
EXHJ:BIT "H" - DESCRIPTION OP PROJECT
-iii-
. . . .
40
r\
\ .
,/"..,.,.. ,
\"...
c
......
("
.. .j
'"
o
o
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the
"Agreement") is entered into by and between the Redevelopment
Agency of the City of San Bernardino (the "Agency"), and Main
Street Inn, a California Limited Partnership (the "Developer").
The Agency and the Developer agree as follows:
ARTICLE I
SUBJECT OF AGREEMENT
Seet:ion 1.01. PurDoges of Aare81ll8n~. The purpose of
this Agreement is to effectuate redevelopment within the boundaries
of the City of San Bernardino (the "City") by providill9 for the
purchase of certain real property by the Aqency, subsequent sale
thereof to the Developer and the redevelopment by the Developer of
said real property located within the Central City North
Redevelopment Project Area (the "Project Area"). The subject
property consists of two (2) separate parcels of land, toqether
with improvements thereon, which are (i) 501 North "E" Street, City
of San Bernardino (the "Great Western Site") and (ii) 533 North "E"
Street, city of San Bernardino (the "Arqonaut site"). Each of said
parcels is more specifically described in Exhibit "A" hereto. Said
parcels shall jOintly be referred to herein as the "Property". The
purchase and the redevelopment of the Property by the Developer
pursuant to this Aqreement, and the fulfillment qenerally of the
Agreement, are in the vital and best interesta of the City, the
Aqency, and the health, safety, morals, and welfare of the City's
residents, and are in accord with the public purposes and
provisions of applicable federal, state and local laws and
requirements.
Section 1.02. The Redevelo'DDlent Plan. '1he Redevel~.t
Plan was approved and adopted by the COlUlon Council of the city of
San Bernardino by ordinance in accordance with the provisions of
the Community Redevelopment Law of the State of california (the
"Community Redevelopment LaW"). This Aqre_ent shall be subject to
the provisions of the COlUlunity Redevelopment Law. The Aqency
represents and warrants that the uses and improv_ents to be
constructed on the Property in accordance with the Scope of
Development attached hereto as Exhibit "B" and incorporated herein
by reference comply with the provisions of the COIUIunity
Redevelopment Law.
Section 1.03. Parties to the Aareement.
a. The parties to this Aqre_ent are not partners, co-
venturers or otherwise associated and one party cannot act to bind
another to any aqreement or cOlDJlitment except with the express
written consent of the other party. No party hereto is responsible
-1-
('\
""
(,
""
()
'....-,
o
o
for the debts or obligations of another except in the case of an
express written agre_ent to the contrary.
b. The Agency is a public body, corporate and politic,
exercising governmental functions and powers, and organized and
existing under Chapter 2 of the COllllllUJ1ity Redevelopment Law, Health
and Safety Code Section 33000, .tit USI. The principal office of the
Agency is located at 201 North "I" Street, Third Floor,
San Bernardino, california 92401. As used in this Agreement, the
term "Agency" shall be deemed to include the Agency and any
assiqnee and/or successor to the Agency or to its rights, powers
and responsibilities under this Agre_ent.
c. The Developer is Main Street Inn, a California
Lu.ited Partnership. The principal office of the Developer for
purposes of this Agre_ent is located at 330 North "D" Street,
Suite 110, San Bernardino, California 92401, and for purposes of
Section 6.01 hereof, any and all notices, d_ands or co-unications
shall be sent to the Developer addressed to the attention of
"B. Gilbert Lara, Jr.". Prior to the Agency's consideration of
this Agre_ent and, in addition, on or before ten (10) calendar
days prior to the close of escrow, as set forth hereafter, the
Developer shall provide to the Agency satisfactory evidence of the
leqal formation and existence of the Developer and the good
standing of the Developer with the State of california (the
"state") to transact business within the State, to hold title to
the Property and to develop the Project, as hereinafter defined.
Section 1.04.
Prohibition Aaainst Chanae in OWn;::~i~.
ManaaemAn~ and Control of DevAlo';; r
Assianment of Aareement.
a. The qualifications and identities of the persons and
entities comprisinq the Developer are of partiCUlar concern to the
Agency. It is because of these qualifications and identities of
the Developer that the Agency has entered into this Agreement with
the Developer. No voluntary or involuntary successor in interest
of the Developer shall acquire any rights or powers under this
Agreement, except as expressly set forth herein.
b. Except as otherwise provided in this Agreement, the
Developer shall not assiqn all or any part of this Agre_ent prior
to the issuance of a Certificate of Completion applicable to all
portions of the Property without the prior written approval of the
Agency, which approval shall be at the sole discretion of the
Agency. Nothing contained in this paragraph shall act to prevent
limited partners of the Developer from freely transferring their
limited partnership interests.
c. The Developer shall promptly notify the Agency in
of any and all change& whatsoever in the identity of the
either comprising or in control of the Developer, as well
writing
parties
- 2 -
0)
I::.."'.
~.
e
o
o
as any and all changes in the interest or the d89'ree of control of
the Developer by any such party, of which information the Developer
or any of its members, officers or shareholders has been notified
or may otherwise have knowledge or information. This Agreement may
be terminated by the Aqency if there is any siqnificant or material
chanqe, whether voluntary or inVOluntary, in membership, ownership,
manaqement or control of the Developer (other than such chanqes
occasioned by the death or incapacity of any indiVidual) that has
not been approved by the Agency at the ti.e of such change, prior
to issuance of a certificate of Completion for the Property as
hereinafter provided; provided, however, that: (a) the Agency shall
first notify the Developer in writing of its intention to terminate
this Agre_ent pursuant hereto, and (b) the Developer shall have
twenty (20) calendar days following the date of receipt of such
written notice to commence and thereafter diligently and
continuously proceed with the cure of the default of the Developer
hereunder, and (c) the Developer shall submit evidence of the
satisfactory completion of such cure to the Aqency within thirty
(30) calendar days followinq the receipt of such written notice in
a form and substance deemed satisfactory to the Aqency, in its
reasonable discretion.
- 3 -
r;:~
o
e)
e
o
o
ARTICLE II
ACOUISITION AND DISPOSITION OP PROPERTY
Sadlon 2.01. Acauisi~ion of PronAri::v ~v Aaencv. The
parties hereto acJcnowledge that the Agency has entered or is
saultaneously herewith entering into escrows (the"Acquisition
Escrows") for the purchase of (i) the Great Western Site from Royce
Coapany and (ii) the Argonaut Site froa Arvind Kuaar. The Royce
Coapany and Arvind Kuaar shall be jointly referred to hereinafter
as the "Sellers". The aggregate of the purchase prices to be paid
by the Agency for the Property shall be referred to hereinatter as
the "Purchase Price". The obligation of the Agency with respect to
the Purchase Price is subject to Section 2. 03c hereot. Each of
said escrows is contingent upon the close of the other escrow.
Section 2.02. DisDOsi'tion of Pronert:v to Dev.loner.
The Agency shall convey title to the Property to the Developer in
the time and manner provided in this Agre_ent, providing the
Agency has receiVed title from the Sellers. In consideration
thereof and of performance by the Agency of the Agency Obligations
as defined in Section 2.03 hereof, the Developer shall provide to
the Agency the Agency Interest, as defined in Section 2.04 hereot,
which Agency Interest shall be secured by the Deed of Trust as
provided in Section 2. 04f hereof. The Agency Interest shall
constitute the full consideration to the Agency for conveyance ot
title to the Property to the Developer and for performance by the
Agency of the Agency Obligations.
Section 2.03. The Aaencv Obliaations. ihe Agency, upon
conveyance ot the Property to the Developer, shall be further
obligated as follows (said conveyance together with the following
.obligations shall constitute the "Agency Obligations"):
a. To pay the actual cost of d_olition and demolition
permit fees, including asbestos r~val, toxics r_oval, if any,
the d_olition of the existing structures on the Property and the
removal ot the resulting debris. The cost thereof shall be
referred to hereinatter as the "Demolition Cost". The obligation
of the Agency with respect to the Demolition Cost is subject to
Section 2.03c hereof. The Developer shall contract with
appropriate licensed d_olition contractors for such d_olition and
r_oval and the Agency shall be responsible for the D_olition
Cost.
b. The Agency shall pay to the City all fees charged by
the City which relate to the d_olition of improv_ents on or
redevelopment of the Property. The amount of said fees shall be
referred to hereinafter as the "Pee Contribution". The obligation
of the Agency with respect to the Fee Contribution is subject to
Section 2.03c hereof.
c. Notwithstanding any language contained in this
Agreement to the contrary, the Agency shall not be required to
- 4 -
6';
oj
8
o
o
expend in excess of One Million Seven Hundred Ninety Five Thousand
Dollars ($1,795,000) for the aggregate of the Purchase Price, the
Demolition Cost and the Fee Contribution. Any SWIll required in
excess of said sua for any purpose associated with this Agreement
or the developaent contemplated hereby, except for the Revenue
Contribution as provided in Section 2.03d, shall be the sole
responsibility of the Developer. To the extent that the aggregate
of the Purchase Price, the Deaolition Cost and the Fee Contribution
is less than $1,795,000, the Agency shall contribute to other
project costs an aaount sufficient to bring the total contribution
of the Agency, exclusive of the Revenue Contribution, to
$1,795,000.
d. The Developer has based project projections on a
gross annual rental revenue of $1,228,127 (the "Target Revenue"),
which is calculated on a ninety percent (90') occupancy factor. It
is anticipated that the project may n~t achieve this revenue level
for some tille. Accordingly, in the event that the Target Revenue
is not achieved, the Agency agrees to pay to the Developer, during
the initial three (3) years of the operation of the Inn, as herein
defined, within fifteen (15) days of receiving written notice from
the Developer of the amount thereof, an amount equal to the
difference between the Target Revenue and the actual gross
collected rental revenue arising from all sources in connection
with the Property (the "Revenue Shortfall") for a given annual
period. Notwithstandinq any lanquage contained in this Agreement
to the contrary, the Agency's aggregate contribution to the Revenue
Shortfall for all periods (Years 1-3) shall not exceed Two Hundred
Ten Thousand Dollars ($210,000) (the "Revenue Contribution"). To
the extent that the aggregate Revenue Shortfall for the initial
three years of operation exceeds the Revenue Contribution, the
Developer shall be solely responsible therefor. The Developer
shall provide the Agency with an appropriate financial statement,
prepared by an independent certified public accountant. The Agency
may within ten (10) days of receipt of said financial statement
serve written notice of its non-acceptance thereof, in which case
the Agency may review all necessary books and records. If the
Agency's review disagrees with the Developer's statement, the
Agency may contract an independent certified public accountant to
review the financial statements. If the financial statements are
found to be in error by more than 5', the Developer will be
responsible for the costs of the review, and if the error is less
than 5', the Agency will be responsible for the costs of the
review.
Section 2.04. The Aaencv Interest. In consideration of
transferring the Property to the Developer, the Agency Obligations,
and of the other covenants by the Agency contained in this
Agreement, the Developer hereby grants to the Agency an eighteen
percent (18') interest in the Net Cash Flows (as defined
hereinafter) of the Inn and in the proceeds froll any refinance or
sale of the Inn (the Agency's eighteen percent (lS') interest in
the Net Cash Flows and the proceeds of sale or refinance shall
collectively be referred to as the "Agency Interest"). The Agency
- 5 -
8'
c..:
~.
e
o
o
Interest shall take errect immediately upon Close or Escrow and
shall continue until the earlier or (i) the sale or the Project in
conrormity with the requirements or this Agreement, or (ii)
repayment to the Agency's Low- and Moc1erate-Income Housing Fund or
all sums advanced thererrom, including without limitation, the
Purchase Price, the Demolition Cost, the Fee Contribution and the
Revenue Contribution, toqether with interest on the aggregate
thereof at seven percent (7') simple interest per annUlI. The
Agency shall be entitled to receive payments under the Agency
Interest whether pursuant to (i) or (ii) above not in excess or
such sums as advanced from the Agency's Low- and Moc1erate-Income
Housing Fund, plus interest. For the purposes or this Agreement
the term -Net Cash Flows- shall mean the SUII remaining, ir any,
arter the reasonable and actual expenses or operation or the Inn
and of debt service on the rirst deed or trust are deducted from
the gross receipts due to rentals or other sources of income
associated with the Inn. In order to errectuate this Section 2.04,
the parties hereto agree as follows:
a. The Developer shall cause to be prepared by an
independent certiried public accountant acceptable to the Agency
reviewed annual financial statements for the Inn, copies of which
shall be provided by the accountant directly to the Agency. The
cost or such statements shall be an expense or the Inn. A failure
to prepare such annual rinancial stat_ents and provide the same to
the Agency shall be an Event of Derault as derined in Section 5.01a
hereof.
b. Within ten (10) days or receipt by the Agency of the
annual rinancial stat_ents, the Agency shall either approve or
disapprove the s.... If the Agency makes no response within said
ten (10) day perioc1, the financial statements shall be deemed to be
approved. U the Agency disapprove. the rinancial statements it
shall indicate in writing its reasons for doing so. The Developer
shall respond to the Agency's written cOlllllents within ten (10) days
or their receipt. Ir the Developer disagrees with the Agency's
positions, the Agency and the Developer shall each designate a
certiried public accountant ot their choice (Which choice shall not
be the accountant who prepared the Subject tinancial statements).
The two accountants thus selected shall by agre8llent designate a
third certified public accountant (the three accountants so
selected shall be rererred to herein as the -Panel-). The Panel,
by majority vote, shall review the tinancial statements, in
question, resolve any issues raised and determine the amount or
payments owed to the Agency, it any. The determination by the
Panel shall, in the absence of traud or negligence, be binding on
the parties hereto. In the event the financial statements are
found to be in error by more than 5' ot the final amounts as
determined by the Panel, the Developer will be responsible for the
costs or the review, and it the error is less than 5' of the final
amounts as determined by the Panel, the Agency will be responsible
for the costs of the review.
- 6 -
0'
OJ
e
o
o
c. Within seven (7) days of approval of the annual
financial stat_ents by the Agency, or a deteraination by the Panel
if applicable, the Developer shall pay to the Agency that portion
of the revenues to which the Agency is entitled hereunder, less a
credit for any portion thereof previously paid to the Agency. A
failure to pay said revenues in full and when due shall constitute
an Event of Default, as defined in Section 5.01 hereof. In
addition, the Agency shall receive its pro rata share of any
distribution of profits froa the Project, as and when such
distributions are aade. It is the intent of this provision that
neither the Developer, any partner, liaitec:l partner, officer,
shareholder, agent, ..ployee, assign or successor-in-interest shall
receive distribution of profit with respect to the Project unless
the Agency cont_poraneously receives its pro rata share thereof.
d. Except for the first deec:l of trust to be approved by
the Agency under the teras hereof, the Developer shall not enter
into any refinance of the Property or the Inn without the prior
express written consent of the Agency, which shall not be
unreasonably withheld. The Agency shall receive eighteen percent
(1.8t) of the llIIOunt received by the Developer from any such
refinance which results in any distribution to or receipt by the
Developer of any proceeds of such loan. A failure to pay the
Agency its interest under this subsection d shall constitute an
Event of Default, as defined in Section 5.01a hereof.
e. The Developer covenants not to sell the Property or
the Inn without the prior express written consent of the Agency
within the first five (5) y_rs, commencing on the date the
Certificate of Completion is issued. In the event of any sale of.
the Property or the Inn, the Agency shall be entitled to receive
eighteen percent (18t) of the net proceeds of such sale but not in
excess of the amounts owed attributable to the sums advanced from
the Agency's Low- and Moderate-Income Housing Fund, plus interest.
.Net proceeds. for the purposes of this subsection e shall mean the
gross price paid by the purchaser less escrow fees, title charges,
any real estate co..issions paid in connection with said sale, and
the amount of any debt on the Property which has been approved by
the Agency. A failure to pay SUllS owed to the Agency on sale of
the Property or the Inn shall constitute an Event of Default as
defined in Section 5.01a hereof.
f. To secure the Agency Interest, and the ,covenants and
obligations of the Developer under this Agreement, the Developer
shall execute in recordable fora a Deed of Trust in the fora
attached hereto as Exhibit .C.. Said Deed of Trust shall be
recorded upon Close of Escrow, as defined below, and shall
constitute a lien on the Property subject only to a first trust
deed or any other lien approved by the Agency in writing as to
which the Agency expressly agrees to be subordinate.
- 7 -
f?'
0'
8"
e
o
o
Section 2.05. Escrow.
a. The Agency and the Developer agree to establish an
escrow (the "Disposition Escrow") for the sale of the Property to
the Developer at Pirst American Title Company, 323 Court street,
San Bernardino, California 92401, (Telephone: (714) 889-0311,
Attention: Lee Ann Adams (the "Escrow Agent"). The Disposition
Escrow shall be opened concurrently with the Acquisition Escrows.
b. The Agency and the Developer shall provide and
execute such additional escrow instructions consistent with this
Agreement as shall be necessary. The Escrow Agent hereby is
-.powered to act under this Agreement, and, upon indicating its
acceptance of this Section in writinq, delivered to the Agency and
the Developer, within five (5) calendar days after the
establishment of the escrow, shall carry out its duties as the
Escrow Agent hereunder.
c. The Agency and the Developer shall deliver to the
Escrow Agent all documents necessary for the conveyance of title to
the Property, to the extent provided in this Agreement, in
conformity with, within the times, and in the manner provided in
this Agreement.
d. The Agency shall pay all escrow and recording fees
and costs related to the transfer of the Property from the Agency
to the Developer, as well as all escrow and recording fees and
costs incurred by the Agency as its share of costs in acquiring the
Property from the Sellers, subject to the limitation on total cost
to the Agency as provided in Section 2.03 hereof.
e. The Agency shall timely and properly execute,
acknowledge and deliver to the Escrow Agent a grant deed conveying
to the Developer title to the Property in accordance with the
requirements of this Agreement, and as provided in Section 2.07
hereof.
f. The Escrow Agent shall cause a Preliminary Title
Report to be prepared and issued by Pirst American Title Insurance
Coapany (the "Title Company") and shall promptly provide the Agency
and the Developer with copies thereo~. The Agency and the
Developer must approve the Preliminary Title Report in writing as
a condition precedent to Close of Escrow (jls defined below).
g. All communications from the Escrow Agent to the
Agency or the Developer shall be directed to the respective parties
at the addresses set forth in Section 6.01 of this Agreement for
notices, demands and communications between the Agency and the
Developer.
- 8 -
6)
6
0.'"
d
o
o
Section 2.06. Conv.vane. o~ Ti~l. and Deliverv of
posse..ion.
a. The Acquisition Escrows shall close within sixty
(60) days of execution of this Agre..ent, subject to extensions
agreed upon between the parties hereto and approved by the Sellers.
In the event that the Acquisition Escrows do not close within said
sixty (60) day period as extended by agre..ent, the parties hereto
shall be excused froll further performance of this Agreement.
Subject to any mutually agreed upon written extension of
tiJlle or extensions otherwise authorized by this Agreement, and
subject to delays caused by a delay in the closinq of the
Acquisition Escrows, conveyance to the Developer of title to the
Property in accordance with the provisions of this Section and
Section 2.08 of this Agre..ent shall be completed within ten (10)
days of satisfaction or completion of all of the conditions set
forth in Section 2.09 hereof ("Close of Escrow"). The Aqency and
the Developer agree to perform all acts necessary for conveyance of
title to the Property, in the form and to the extent required
herein, in sufficient time for title to be conveyed in accordance
with this provision. In the event each condition set forth in
Section 2.09 is not satisfied or excused in writinq by both parties
hereto within one hundred eiqhty (180) days after the close of the
Acquisition Escrows, the parties hereto shall be excused froll
further performance of this Agreement.
b. The Developer shall take possession of the Property
concurrently with the conveyance of title. The Aqency shall bear
no responsibility for providinq possession of the Property to the
Developer. The Developer shall accept title and possession to the
Property on the date established therefor in this Section.
Section 2.07. Form of Deed. The Aqency shall convey to
the Developer title to the Property in the condition provided in
Section 2.08 of this Agreement by a grant deed substantially in the
form attached hereto as Exhibit "D" (the "Grant Deed").
Section 2.08. Condition of Title. The Title to the
Property conveyed by the Aqency to the Developer shall be the same
as conveyed to the Aqency by the Sellers. The Aqency hereby grants
the Developer the riqht to approve the preliJllinary title reports
received by the Aqency in the, .Acquisition Escrows, which riqht
shall be exercised in a. reasonable manner.
Section 2.09. Conditions for Close of Escrow. The
Aqency' s obliqation to convey the Property to the Developer and the
Close of Escrow shall be expressly conditioned upon satisfaction or
waiver by the Aqency of each of the followinq:
a. The Aqency shall have received title to the Property
frOlll the Sellers, demolished the existinq improvements and be able
to convey the Property in a rouqh graded buildable condition.
- 9 -
6.
6
e
-
o
o
b. 'l'be Developer shall have provided to the Aqency
satisfactory evidence of the leqal foraation and existence of the
Developer and the qood standinq of .the Developer with the state of
California to transact business within the State, to hold title to
the Property and to develop the Project as provided in
Section 3.01(a) hereof; and
c. 'l'be Developer shall have received approval from the
Aqency of financinq co_itaent. as set forth in Section 2.16
hereof. .
d. 'l'be Developer shall have received a fully executed
aqreement fro. creative Enterprises in the fora attached hereto as
Exhibit KGK, whereby creative Enterprise. covenant. to make the
improvements described. in said aqreeaent to that certain real
property located adjacent to .the Property and co_only known as
466, 468 and 474 West 5th Street, San Bernardino, California and
whereby the Aqency and creative Enterprises enter into reciprocal
easements for parkinq. The Developer hereby aqrees that a breach
by Creative Enterprises of its obliqations under the terms of
Exhibit KG" shall constitute an Event of Default, as defined in
Section 5.01 hereof, by the Developer.
e. 'l'be Developer shall have received all necessary
peraits fro. the city of San Bernardino, includinq conditional use
and buildinq permits.
Section 2.10. Tim. and Place ror Deliverv o~ Documents
to Escrow. Subject. to any mutually aqreed upon written
extensions of time or any extensions otherwise authorized by this
Aqreement, the parties shall deposit with the Escrow Aqent promptly
at such time as such documents have been fully prepared and
executed, but in no event later than ten (10) calendar days before
the date established for the conveyance of the Property, any and
all documents which are required in order for escrow to elose in
accordance with this Aqreement..
Section 2.11. Recordation of the Grant Deed'.} and ot.her
Documents. When the parties have deposited into escrow all
docuaents and funds as required by this Aqreement and all
conditions for the Close of Escrow have been satiSfied, the Escrow
Aqent shall promptly file for recordation aJlonq the land records in
the Office of the County "Recorder where the Property is located:
(1) the Grant Deed to the Property, (H) this Aqreement, (Hi) the
Deed of Trust, and (iv) the Aqreement and Reciprocal Easements.
'l'be Escrow Aqent shall thereafter promptly provide a copy of said
recorded documents to both parties.
Section 2.12. Title Insurance. Concurrently with
recordation of the Grant Deed to the Property, the Title Company
shall provide and deliver to the Developer a policy of title
insurance issued by the Title Company insurinq that the 'title to
the Property is as required pursuant to the terms of this
- - 10 -
6)
~>
(ji
8
o
o
Aqreement. The title insurance policy shall be in the amount of
the Purchase Price of the Property.
Section. 2.13. Taxes and Assessments. Ad valorem taxes
and assessments, if any, on the Property and taxes upon this
Aqreement or any rights hereunder levied, assessed or imposed as to
any periocl prior to conveyance of title through the escrow, shall
be borne by the Agency.
Section 2.14. Zonina o~ the ProDe~v and Environmen~al
Annrovals. The Agency represents and . warrants that. the city's
general plan and zoning ordinance perait the contemplated
development, construction .and operation of the Property in
accordance with this Aqre8llent, subject to the Developer obtaining
any and all necessary conditional use peraits required pursuant to
the zoning ordinance, and further subject to the Developer
obtaining any and all moclifications or variances including, but not
liaited to, those lIOdifications or variances necessary for height,
parking, signs and any and all other matters. The Agency requires
that all environmental requirements of the California Environmental
Quality Act C"CEQA") applicable to this Aqreement and the Project,
up to and including the adoption of an Environmental Impact Report
C"EIR"), if necessary, shall be complied with, including the filing
of a Notice of Determination concerning the adoption and
certification of any such environmental documentation. The
Developer shall apply for all necessary permits applicable to the
Project. 'All applicable environmental requirements pursuant to
CEQA pertinent to the development Of the Project Cas defined in
Section 3.01 hereof) shall have been completed on or before Close
of Escrow.
Section 2.15. Condition of the Pronertv.
a. The Property shall be conveyed in an "as is"
condition with no warranty or liability, express or implied on the
part of the Agency, as to the condition of the soil, its geology,
the presence of known or unknown faults. or defects, the condition
of improvements, or any other matter whatsoever, except that the
improvements on the Property shall have been demolished and the
Property shall have been rough qraded.
b. It shall be the responsibility solely of the
Developer, at. the Developer's expense, to investigate and determine
the soil and seiSllic conditions of the Property and its suitability
for the development to be constructed thereon. It shall be the
responsibility solely of the Developer, at. the Developer's expense,
to perform all work necessary to prepare the Property for
development. The Developer shall not disapprove any soils report
or soils condition which would permit. the construction with normal
foundation conditions of the contemplated improvements.
- 11 -
",""-.
e
6'
e
o
o
section 2.16. .Submission of Evidence of Financina
CODIIIIitments.
a. As a condition to the Close of Escrow, the Developer
shall submit to the Agency evidence reasonably satisfactory to the
Agency that the Developer: (1) has obtained or can obtain, as
evidenced by a letter of intent or si.ilar instrument, sufficient
equity capital and fira and binding co_it.ents for construction
financing; and (11) either bas obtained or can obtain, as evidenced
by a letter of intent or siJIilar instruJlent, sufficient equity
capital and fira and binding commit.ents ."for peraanent financing;
all as may be nec_sary for the construction of the Project on the
Property in accordance with this Agreement. In lieu of the
foregoing, the Developer aay submit evidence to the Agency that it
has sufficient funds of its own for the purposes set forth in this
Section.
b. Any and all financing for the development of the
Property shall be obtained from reputable, recognized and well-
established financial institutions or lending sources including,
but not limited to, banks, savings an4 loan institutions, insurance
companies, real estate investment trusts, pension prograas and the
like. Whenever the source of financing for all or any part of the
development is from other than the Developer, the Developer shall
promptly submit the following to the Agency:
1.
Copies of all construction and/or land purchase
financing commitments received by the Developer;
and
Proof of acceptance of each such loan commitment by
the Developer and proof of payment of all up-front
loan cODllllitment fees, if any.
c. The Executive Director of the Agency shall approve
or disapprove such documents and/or financing commitments or
sources within fifteen (15) calendar days of receipt by the Agency
of the documents and information required hereunder; provided,
however, that the failure of the Executive Director to disapprove
any of the foregoing matters in writing within said fifteen (15)
calendar day period shall be de_ed to constitute approval thereof.
Any disapproval by the Executive Director"of the Agency in writing
of any of the foregoing aatters in this Section shall automatically
extend the dates for performance of actions set forth in the
Schedule of Performance, as hereinafter defined, for that certain
reasonable period of tille necessary for the Developer to obtain the
approval of the Executive Director of the Agency under this
Section, not to exceed one hundred eighty (180) calendar days.
2.
- 12 -
~
/"."
( ,
o
6'1
6)
4
.
-
o
o
ARTICLE III
DRVlrrLlPMENT OF THE SITE
Section 3.01. DevAloDment bv QeveloDer.
a. ScoDe of DeveloDment. It is the intent of the
parties that the Property be developed as a sinqle room occupancy
facility which will meet or exceed the City'S SRO ordinance
requirements, in a lIUII1er consistent with the project description
contained in the Description of Project attached hereto as Exhibit
"8" and incorporated by reference, as well as Aqency approved
preliminary elevations, site plans, basement parkinq plan and floor
plans (the "Inn"). The d_olition of existinq improvements on the
Property, and the construction of the Inn thereon, shall
collectively be referred to herein as the "Project". The Inn shall
be constructed in accordance with and within the limitations
established in the Scope of Development set forth in Exhibit "B"
and the qeneral project description set forth in Exhibit "8".
b. The City's zoninq ordinance includinq, but not
limited to, parkinq and heiqht requirements, and the City'S
buildinq requirements are applicable to the use and development of
the Property pursuant to this Aqreement. The Developer
acknowledqes that any chanqe in the plans for development or the
use of the Property as set forth in the Scope of Development shall
be subject to the City'S zoninq ordinance and buildinq
requirements. No action by the Aqency or the City with reference
to this Aqreement or related documents shall be deemed to
constitute a waiver of any City parkinq, heiqht or other
requirements which are applicable to the Project or to the
Developer, any successor in interest or tenant of the Developer or
any tenant or successor in interest pertaininq to the Property,
except by modification or variance approved by the City consistent
with this Aqreement. The Aqency shall cooperate with and shall
assist the Developer in order to obtain modifications or variances
from City zoninq requlations necessary to develop the Project
consistent with this Aqre_ent and, in particular, within the time
frame provided in the Scope of Development. Any failure by the
City either to approve or disapprove any of such modifications or
variances within the specified period shall constitute an enforced
delay hereunder, and the Schedule of Performance, as defined
hereinafter, shall be extended by that period of time beyond said
period in which the City approves or disapproves such modifications
or variances.
c. The Scope of Development set forth in Exhibit "B" is
hereby approved by the Aqency upon its execution of this Aqreement.
The Project shall be developed and completed in conformance with
the approved Scope of Development and any and all other plans,
specifications and similar development documents required by this
Aqreement, except for such chanqes as may be mutually aqreed upon
in writinq by and between the Developer and the Aqency. The Aqency
aqrees to approve preliminary and final construction plans and
- 13 -
-
c}
J::..'
~,)
61
-
-
~
~
o
o
preliminary and final landscaping plans, if reasonably consistent
with the approved Scope of Development and with Exhibit "H".
d. The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the Common Councilor
the Planning Commission of the City with respect to any approvals
of the Project required by such other bodies. If any revisions of
the Scope of Development as approved by the Agency shall be
required by another government official, agency, department or
bureau having jurisdiction over the development of the Property,
the Developer and the Agency shall cooperate in efforts to obtain
waivers of such revisions, or to obtain approvals of any such
revisions which have been .ade by the Developer and have thereafter
been approved by the Agency. The Agency shall not unreasonably
withhold approval of such revisions.
e. Notwithstanding any provision to the contrary in
this Agreement, the Developer agrees to accept and comply fully
with any and all reasonable conditions of approval applicable to
all permits and other governmental actions affecting the Project
and consistent with this Agreement.
f. The Developer shall cause landscaping plans for the
Project to be prepared by a licensed landscape architect. The
Developer shall prepare and submit to the Agency for its approval,
preliminary and final landscaping plans for the Property. These
plans shall be prepared, submitted and approved within the times
respectively established therefor in the Schedule of Performance as
shown on Exhibit "E" attached hereto and incorporated herein by
reference and shall be consistent with the Scope of Development.
g. The Developer shall prepare and submit development
plans, construction drawings and related documents for the
development of the Property consistent with the Scope of
Development to the City and the Agency for review (inClUding, but
not limited to, architectural review of the exterior of
structures); provided, however, that the Agency shall not have the
right or responsibility to approve development plans, construction
drawings or related documents for purposes of the issuance of a
building permit or otherwise on behalf of the City, but shall only
have the right of review and approval, within fifteen (15) days of
receipt of the documents and information required hereunder, of
such plans, drawings and documents for purposes of: (a)
architecture and design of structures and the overall development
of the Project in a manner consistent with Exhibit "H", which has
been previously approved by the Agency, and (b) conformity of such
plans, drawings and documents with the terms and conditions of this
Agreement. A failure by the Executive Director to approve or
disapprove such documents within fifteen (15) days shall constitute
an approval. The development plans, construction drawings and
related documents shall be submitted in two stages -- preliminary
and final drawings (i.e., working drawings), plans and
specifications. Final drawings, plans and specifications are
hereby defined as those which contain sufficient detail necessary
- 14 -
6\
6'
e
o
o
to obtain a buildinq penait froa the City. Any such iteas
submitted to and approvecl in writinq by the Agency shall not be
subj ect to subsequent disapproval by the Aqency, and any such
Agency approval shall not be unreasonably withheld.
h. Durinq the preparation of all drawinqs and plans for
the Project, the Agency Staff ancl the Developer shall hold reqular
pr09ress meetinqs to coordinate the preparation by the Developer,
ancl the Submission to ancl review by the City and the Aqency of
construction plans ancl relatecl dacuaents. The Agency Staff and the
Developer shall communicate ancl consult informally as frequently as
is necessary to ensure that any such plans and related documents
submitted by the Developer to the City ancl the Agency can receive
prompt and speedy consideration.
1. The Aqency shall have the riqht of reasonable
architectural review and approval of buildinq exteriors and desiqn
of the Project. The Aqency shall also have the riqht to review all
plans, clrawings and relatecl documents pertinent to the development
of the Property in order to ensure that they are consistent with
this Agreement and with the Scope of Development.
j. The Developer shall timely submit to the city for
its review and approval any and all plans, clrawinqs and relatecl
documents pertinent to the development of the Property, as requirecl
by the City. The Aqency shall cooperate with ancl shall assist the
Developer in order for the Developer to obtain the approval of any
and all development plans, construction clrawinqs ancl relatecl
documents submittecl by the Developer to the City consistent with
this Aqreement within ninety (90) calendar days followinq the
City's receipt of said plans. Any failure by the City to approve
any of such plans or to issue necessary permits for the development
of the Property within said ninety (90) calendar day periocl shall
constitute an enforced delay hereunder, and the Schedule of
Performance shall be extended by that periocl of time beyond said
ninety (90) calendar day periocl in which the City approves said
plans; providecl, however, that in the event that the City
disapproves of any of such plans, the Developer shall wi thin thirty
(30) calendar days after receipt of such disapproval revise ancl
resubmit such plans in accordance with the City'S requirements and
in such form and substance so as to obtain the City'S approval
thereof.
k. The Agency shall in goocl faith use its best efforts
to cause the City to approve in a timely fashion any and all plans,
drawings and documents submittecl by the Developer hereunder ancl to
cause the City not to impose new conditions inconsistent with: (a)
prior plans, clrawings and documents approved by the City or (b) the
Scope of Development.
1. The Agency shall approve any moclified or revised
plans, clrawings and related documents to which reference is made in
this Agreement within the times established in. the Schedule of
Performance as long as such plans, clrawings and related documents
- 15 -
(-'
)
o
8_\
:. ..'
a
o
o
are generally consistent with the Scope of Development and any
other plans which have been approved by the Agency. The Agency
shall have fifteen days from receipt within which to approve or
disapprove such documents and a failure to approve or disapprove
within such time period shall be deemed an approval. Upon any
disapproval of plans, drawings or related documents, the Agency
shall state in writing the reasons for such disapproval. The
Developer, upon receipt of notice of any disapproval, shall
promptly revise such disapproved portions of the plans, drawings or
related documents in a manner that addresses the reasons for
disapproval and reasonably meets the requirements of the Agency in
order to obtain the Agency' s approval thereof. The Developer shall
resubmit such revised plans, drawings ancl related documents to the
Agency as soon as possible after its receipt of the notice of
disapproval and, in any event, no later than thirty (30) calendar
days thereafter. The Agency shall approve or disapprove such
revised plans, drawings and related documents in the same manner
and within the same times as provided in this Section for approval
or disapproval of plans, drawings and related documents initially
submitted to the Agency.
m. If the Developer desires to make any change in the
final construction drawings, plans and specifications and related
documents after their approval bY the Agency and/or the City, the
Developer shall submit the proposed change in writing to the Agency
and/or the City for approval. The Agency shall notify the
Developer of approval or disapproval thereof in writing within
fifteen (15) calendar days after Submission to the Agency. This
fifteen (15) calendar day period may be extended by mutual consent
of the Developer and the Agency. Any such change shall, in any
event, be deemed to be approved by the Agency unless rejected, in
whole or in part, bY written notice thereof submitted by the Agency
to the Developer, setting forth in detail the reasons therefor, and
such rejection shall be made within said fifteen (15) calendar day
period unless extended as permitted herein. The Agency shall use
its best efforts to cause the City to review and approve or
disapprove any such change as provided in Section 3.01(b) hereof.
n. The Developer, upon receipt of a notice of
disapproval by the Agency and/or the City, may revise such portions
of the proposed change in construction drawings, plans and
specifications and related documents as are rejected and shall
thereafter resubmit such revisions to the Agency and/or the City
for approval in the manner provided in Section 3.01(b) hereof.
o. The Developer shall have the right during the course
of construction to make changes in construction concerning the
interior of structures and "minor field changes" without seeking
the approval of the Agency; provided, however, that such changes do
not affect the type of use to be conducted within all or any
portion of a structure. Said "minor field changes" shall be
defined as those changes from the approved final construction
drawings, plans and specifications which have no substantial effect
on the improvements and are made in order to expedite the work of
- 16 -
B
0)
e
o
o
construction in response to field conditions. Nothing contained in
this section shall be deemed to constitute a waiver of or change in
the city's Building Code requir_ents governing such "minor field
changes" or in any and all approvals by the city otherwise required
for such "minor field changes."
p. Except as specifically provided in this Agreement,
the costs of developing the Property and of constructing all
improvements thereon and adjacent thereto as set forth in the Scope
of Development shall be borne by the Developer. It is understood
and agreed by the parties that the Developer shall pay for the
costs of any and all off-site improvements described in the Scope
of Development .s the obligations and responsibility of the
Developer to complete hereunder.
q. The Developer shall pay, consistent with Section
2.03 hereof, for any and all costs concerning the design,
construction, relocation and securing of permits for utility
improvements and connections, including sewers and sewer lines,
power lines and poles, water lines, gas lines, cable lines and
related vaults, storm drains and vaults, traffic access ways,
lighting poles and standards, handicapped access ramps,
construction of tree wells and planting of trees. The Developer
shall obtain any and all necessary approvals prior to the
co_encement of applicable portions of said construction, and the
Developer shall take reasonable precautions to ensure the safety
and stability of surrounding properties during said construction.
r. The Developer shall begin and complete all
construction and development and undertake all obligations and
responsibilities of the Developer within the times specified in the
Schedule of Performance, or within such reasonable extensions of
such times as may be granted by the Agency or as otherwise provided
for in this Agreement. The Schedule of Performance shall be
subject to revision from time to time as mutually agreed upon in
writing by and between the Developer and the Agency. Any and all
deadlines for performance by the parties shall be extended for any
times attributable to delays which are not the fault of the
performing party and are caused by the other party, other than
periods for review and approval or reasonable disapprovals of
plans, drawings and -related documents, specifications or
applications for permits as provided in this Agreement.
s. Prior to and during the period of construction of
the Project, the Developer shall submit to the Agency written
progress reports when and as reasonably requested by the Agency but
in no event more frequently than every two (2) weeks. The reports
shall be in such form and detail as may reasonably be required by
the Agency, and shall include a reasonable number of construction
photographs taken since the last such report submitted by the
Developer.
t. Prior to the commencement of construction on the
Property, the Developer shall furnish, or shall cause to be
- 17 -
e
6....
, }
e
o
o
furnished, to the Aqency duplicate oriqinals or appropriate
certificates of public ind8llllity and liability insurance in the
U10unt of One Killion Dollars ($1,000,000.00) colllbined sinqle
liait, nninq the Aqency and the city as additional insureds. Said
insurance shall cover comprehensive qeneral liability includinq,
but not limited to, contractual liability; acts of subcontractors;
preaises-operations; explosion, collapse and underqround hazards,
if applicable; broad form property dUlaqe, and personal injury
includinq libel, slander and false arrest. In addition, the
Developer shall provide to the Aqency adequate proof of
comprehensive automobile liability insurance coverinq owned, non-
owned and hired vehicles, combined sinqle limit in the UIOunt of
One Killion Dollars ($1,000,000.00) each oocurrence; and proof of
workers' coapensation insurance. Any and all insurance policies
required hereunder shall be obtained from insurance companies
admitted in the stata of California and rated at least B+: XII in
Best's Insurance Guide. All said insurance policies shall provide
that they ..y not be canceled unless the Aqency and the city
receive written notice of cancellation at least thirty (30)
calendar days prior to the effective date of cancellation. Any and
all insurance obtained by the Developer hereunder shall be primary
to any and all insurance which the Aqency and/or City may otherwise
carry, includinq self insurance, which for all purposes of this
Aqreement shall be separate and apart from the requirements of this
Aqreement. Any insurance policies qoverninq the Property as
obtained by the Aqency shall not be transferred from the Aqency to
the Developer. Appropriate insurance means those insurance
policies approved by the Aqency Counsel consistent with the
foreqoinq. Any and all insurance required hereunder shall be
maintained and kept in force until the Aqency has issued the
Certificate of Completion for the Property.
u. The Developer for itself and its successors and
assiqns aqrees that in the construction of the improvements on the
Property provided for in this Aqreement, the Developer will not
discriminate aqainst any employee or applicant for employment
because of sex, aarital status, race, color, reliqion, creed,
national oriqin, or ancestry.
v. The Developer shall carry out its construction of
the improveaents on and off the Property in conformity with all
applicable la_, includinq all applicable federal and state labor
standards and requirements. The Aqency coven,ants and aqrees
likewise to meet the requirements set forth in this Subsection with
reqard to any and all construction undertaken by the Aqency in
accordance with this Aqreement.
w. Before commencement of construction and development
of any buildinqs, structures or other work or improvements upon the
Property, the Developer shall, at its own expense, consistent with
Section 2.03, secure or shall cause to be secured, any and all
permits which..y be required for such construction, development or
work by the city or any . other qovernmental aqency havinq
jurisdiction thereof. The Aqency shall cooperate in qood faith
- 18 -
6)
0"
','
"
e
-
o
o
with the Developer in the Developer's ettorts to obtain troll the
City or any other appropriate governmental agency any and all such
permits and, upon COIIpletion ot applicable portions ot the Project,
certiticates ot occupancy.
x. Otticers, employees, agents or representatives ot
the Agency and the City shall have the right ot reasonable access
to the Property, without the payment ot charges or tees, during
normal construction hours during the period ot construction ot the
Project tor the purposes ot this Aqreement including, but not
limited to, the inspection ot the work being pertormed in
constructing the Project. Such otticers, ellployees, agents or
representatives ot the Agency and/or the City shall be those
persons who are so identitied by the Executive Director. Any and
all otticers, eaployees, agents or representatives ot the Agency
and the City who enter the Property pursuant hereto shall identity
themselves at the job site ottice upon their entrance on to the
Property and shall at all times be accollpanied by a representative
ot the Developer while on the Property; provided, however, that the
Developer shall .ake a representative of the Developer available
for this purpose at all tilles during normal construction hours upon
reasonable notice troll the Agency. The Agency shall indemnify and
hold the Developer harmless froll injury, property damage or
liability arising out of the exercise by the Agency and/or the City
of this right of access, other than injury, property damage or
liability relating to the negligence ot the Developer or its
officers, agents or employees.
y. The Agency shall inspect relevant portions of the
construction site prior to issuing any written statements
reflecting adversely on the Developer'S cOllpliance with the terms
and conditions of this Aqreellent pertaining to construction of the
Project.
Section 3 . 02 . Taxes. Assessments . Encn....~rances and
Liens. The Developer shall pay prior to the delinquency all real
property taxes and assessllents assessed and levied on or against
the Property subsequent to the close of the escrow and the
conveyance to the Developer of title to the Property hereunder.
The Developer shall not place and shall not allow to be placed on
the Property any aortgage, trust deed, deed of trust, enCUlllbrance
or lien not otherwise authorized bY this Aqreement. After
conveyance of title to the Property to the Developer, the Developer
shall remove, or shall have removed, any levy or attachment made on
the Property, or shall assure the satisfaction thereof, within a
reasonable tille but in any event prior to a sale of the Property,
or any portion thereof, thereunder. Nothing herein contained shall
be deelled to prohibit the Developer froll contesting the validity or
amounts ot any tax assessllent, enCUlllbrance or lien, nor to lillit
the remedies available to the Developer in respect thereto. The
covenants of the Developer set forth in this Section relating to
the placement of any unauthorized lIortgage, trust deed, deed of
trust, enCUlllbrance or lien, shall remain in effect only until all
- 19 -
""'
0\
6::
8
o
o
Certificates of Completion have been recorded with respect to the
Property.
Section 3.03. Prohibition Aaainst Transfer.
a. Prior to the recordation of all Certificates of
Co.pletion with respect to the Property as set forth in Section
3.06 of this Agreement, the Developer shall not, without prior
written approval of the Agency, or except as peraitted by this
Agreement, (1) assign or attempt to assign this Agreement or any
right herein or (ii) make any total or partial sale, transfer,
cODveyance, lease, leaseback, or assignment of the whole or any
part ot the Property or the improvements thereon. This prohibition
shall not apply to any of the following: (i) the reasonable grant
of limited easements or peraits to facilitate the developaent ot
the Property; (ii) leases, other than ground leases, to prospective
tenants whose use ot the Property is in conforaity with the
Co.-unity Redevelopment Law and all applicable zoning laws or
ordinances.
b. It is understood and agreed by the Developer that
neither the Developer, nor its assigns or successors in interest to
the Property or this Agreement, shall use or otherwise sell,
transter, convey, assign, lease, leaseback or hypothecate the
Property or any portion thereot to any entity or party, or for any
use of the Property, that is partially or wholly exempt from the
paYJIent ot real property taxes pertinent to the Property, or any
portion thereof, or which would cause the exemption of the payment
of all or any portion of such real property taxes.
c. In the absence of specific written agreement or
approval by the Agency, no unauthorized sale, transfer, conveyance,
lease, leaseback or assignment of the Property shall be deemed to
relieve the Developer or any other party from any obligations under
this Agreement.
Section 3.04. Securitv Financina: Riaht of Holders.
a. Notwithstanding any provision set forth in
Section 3.03 hereof to the contrary, mortgages, deeds of trust, or
any other fora of lien required for any reasonable method of
financing are peraitted before the recordation of the Certificate
of Completion (referred to in Section 3.06 of this Agreement), but
only for the purpose of secaring loans of funds to be used for
financing expenditures necessary and appropriate to develop the
Property under this Agreement. The Developer shall notify the
Agency in writing in advance of any mortgage, deed of trust, or
other fora of lien for tinancing if the Developer proposes to enter
into the same before the recordation of the Certificate ot
Co~letion. The Developer shall not enter into any such
conveyance tor financing without prior written approval of the
Agency, which approval the Agency agrees to grant if any such
conveyance is given to a responsible financial or lending
institution including without limitation, banks, savings and loan
- 20 -
e
6)
s
-
o
o
institutions, insurance companies, real estate investment trusts,
pension prograas and the like, or other acceptable persons or
entities. Such lender shall be deemed approved unless rejected in
writinq by the Aqency within seven (7) calendar days followinq its
receipt of 'notice from the Developer, subject to written extension
or shorteninq of tille siqned by both parties. Any lender approved
by the Aqency pursuant to this Section shall not be bound by any
amendment, iIIpleaentation aqreement or modification to this
Aqreement occurrinq after recordation of said lender's lien.
b. In any event, the Developer shall promptly notify
the Aqency of any aortqage, deed of trust or other refinancinq,
enCWDbrance or lien that has been created or attached thereto prior
to completion of the construction of the iIIprovements on the
Property whether by voluntary act of the Developer or otherwise;
provided, however, that no notice of filinq of preliainary notices
or mechanic's liens need be given by the Developer to the Aqency
prior to suit beinq filed to foreclose such mechanic's lien.
c. The words "mortqaqe" and "deed of trust" as used
herein shall be deemed to include all other customary and
appropriate modes of financinq real estate acquisition,
construction and land development. The Aqency aqrees to make such
amendments reqardinq the riqhts of any lender as the approved
lender shall reasonably require.
d. The holder of any mortqaqe, deed of trust or other
security interest authorized by this Aqreement shall in no manner
be obliqated by the provisions of this Aqreement to construct or
complete the iaprovements or to quarantee such construction or
completion; nor shall any covenant or any other provision in the
qrant deed for the Property be construed so to obliqate such
holder. Nothinq in this Aqreement shall be deemed to permit or
'authorize any such holder to devote the Property to any uses, or to
construct any improvements thereon, other than those uses or
improvements provided for or authorized by this Aqreement.
e. Whenever the Agency shall deliver any notice or
demand to the Developer with respect to any breach or default by
the Developer in the completion of construction of the
iaprovements, or any breach or default of any other obliqations
which miqht entitle the Agency to terminate this Aqreement or
exercise its riqht to re-enter under Section 5.07 hereof, the
Agency shall at the' same time deliver to each holder of record of
any mortqaqe, deed of trust or other security interest authorized
by this Aqreement a copy of such notice or demand. Each such
holder shall (insofar as the riqhts of the Aqency are concerned)
have the riqht, at its option, to commence the cure or remedy of
any such default and to diliqently and continuously proceed with
such cure or remedy, within ninety (90) calendar days after the
receipt of the notice; and to add the cost thereof to the security
interest debt and the lien of its security interest. If such
default shall be a default which can only be remedied or cured by
such holder upon obtaininq possession, such holder shall seek to
- 21 -
obtain possession with diligence and continuity through a receiver
or otherwise, and shall remedy or cure such default within sixty
(60) calendar days after obtaining possession; provided that in the
case of a default which cannot with diligence be remedied or cured,
or the reaedy or cure of which cannot be co_enced, within such
sixty (60) calendar day period, such hold.r shall have such
additional ti.. as is reasonably necessary to r..edy or cur. such
d.fault of the Developer. Nothing contained in this Agr....nt
shall be deeaed to perait or authorize such hold.r to undertake or
continu. the construction or completion of the improv_ents (beyond
the ext.nt necessary to conserve or protect the improvem.nts or
construction already made) without first having expressly assumed
the Developer's obligations by written agreement satiSfactory to
the Agency. The holder in that event must agree to compl.te, in
the manner provided in this Agreement, the iJIlprovements to which
the li.n or title of such hold.r relates and must submit evidence
satisfactory to the Agency that it has the qualifications and
financial responsibility necessary to perform such obligations.
Any such holder cOllpl.ting such improvem.nts in accordanc. herewith
shall be entitled, upon written request mad. to the Agency, to be
issued a Certificate of Completion by the Agency.
f. In any case where, one hundred eighty (180) calendar
days after default by the Developer in the completion of
construction of iJlprovements under this Agreement, the holder of
any mortgage, deed of trust or other security interest crsating a
lien or encumbrance upon the Property or any portion thereof has
not exercised the option to construct the applicable portions of
the Project, or has exercised the option but has not proceeded
diligently and continuously with construction, the Agency may
purChase the IIOrtgage, deed of trust or other security interest by
payment to the holder of the amount of the unpaid debt, including
principal, accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by the Developer
under the loan docwaents between holder and the Developer. If the
ownership of the Property has vested in the holder, the Agency, if
it so desires, shall be entitled to a conveyance from the holder to
the Agency upon payment to the holder of an amount equal to the sua
of the following:
1. The unpaid mortgage, deed of trust or other
security interest debt, including principal,
accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by
the Developer under the loan documents between the
holder and the Developer, at the time title became
vested in the holder (less all appropriate credits,
including those resulting from collection and
application of rentals and other income received
during foreclosure proceedings.)
All expenses, if any, incurred by the holder with
respect to foreclosure.
(7'\
0'
6'
8
o
o
2.
- 22 -
e
fl
e
o
o
3.
The net expenses, if any (exclusive of general
overhead) , incurred by the holder as a direct
result of the subsequent ownership or _nagement of
the Property, such as insurance premiums and real
estate taxes.
4. The cost of any improvements made by such holder.
S. An amount equivalent to the interest that would
have accrued on the aggregate on such amounts had
all such amounts become part of the mortgage or
deed of trust debt and such debt had continued in
existence to the date of payment by the Agency.
6. After expiration of the afore_id one hundred
eighty (180) calendar day period, the holder of any
mortqaqe, deed of trust or other security affected
by the option created by this Section, may demand,
in writing, that the Agency act pursuant to the
option granted hereby. If the Agency fails to
exercise the right herein granted within ninety
(90) calendar days from the date of such written
demand, the Agency shall be conclusively deemed to
have waived such right of purchase of the
applicable portion of the Property or the mortgaqe,
deed of trust or other security interest.
g. In the event of a default or breach by the Developer
of a mortgage, deed of trust or other security interest with
respect to the Property (or any portion thereof) prior to the
issuance of a Certificate of Completion for the applicable portion
or portions of the Property, and the holder has not exercised its
option to complete the development, the Agency may cure the default
prior to completion of any foreclosure. In such event, the Aqency
shall be entitled to reimbursement from the Developer of all costs
and expenses incurred by the Agency in curing the default. The
Aqency shall also be deemed to have a lien upon the Property (or
any portion thereof) to the extent of such costs and disbursements.
Any such lien shall be subordinate and subject to aortqaqes, deeds
of trust or other security instruments executed for the sole
purpose of obtaining- funds to purchase and develop the Property as
authorized herein.
Section 3.05. Riaht of the Aaencv to Satisfv Other Liens
on the Pronertv after Convevance of Title. After the conveyance of
title to the Property by the Agency to the Developer and prior to
the recordation of the Certificate of Completion (referred to in
Section 3.06 of this Agreement), and after the Developer has had a
reasonable time to challenge, cure or satisfy any unauthorized
liens or encumbrances on the Property, the Agency shall after sixty
(60) calendar days prior written notice to the Developer have the
right to satiSfy any such liens or encumbrances; provided, however,
that nothing in this Aqreement shall require the Developer to pay
or aake provisions for the payment of any tax, assessment, lien or
- 23 -
6)
6"
,
, . - '.<;
e
o
o
charge so long as the Developer in good faith shall contest the
validity or &JIOunt thereof, and so long as such delay in payaent
shall not subject the Property, or any portion thereof, to
forfeiture or sale.
Se~ion 3.06. Certificate of ComDletian.
a. following the written request therefor by the
Developer and the COIIpletion of construction and developlllent of the
improvements, excluding any normal and customary tenant
improvements and minor building "punch-list" it..., to be completed
by the Developer upon the Property, the Agency shall furnish the
Developer with a Certificate of Completion for the Property,
substantially in the form of Exhibit "f" attached hereto.
Notwithstanding any provision set forth herein to the contrary, the
completion of construction and development of improvements on the
Property shall be deemed to include the completion of construction
and development of any and all buildings on said Property and any
and all parking, landscaping and related improvements necessary to
support or which meet the requirements applicable to the building
and its use and occupancy on said Property.
b. The Agency shall not unreasonably withhold the
issuance of such Certificate of Completion. The Certificate of
Completion shall be, and shall so state, that it is a conclusive
determination of satisfactory completion of all of the obligations
of this Agreement with respect to the developaent of the PrOPerty.
After the recordation of the Certificate of Completion, any party
then owning or thereafter purchasing, leasing or otherwise
acquiring any interest in the Property shall not (because of such
ownership, purchase, lease or acquisition) incur any obligation or
liability under this Agreement, except that such party shall be
~und by any covenants contained in the grant deed, lease or other
instrument of transfer which grant deed, lease or other instrument
of transfer shall include the provisions of Section 4.01 through
4.05, inclusive, of this Agreement.
c. The Certificate of Completion shall be in such fora
as to permit it to be recorded in the Recorder's Office of the
County where the Property is located.
d. If the Agency refuses or fails to furnish a
Certificate of Coapletion for the Property after written request
from the Developer, the Agency shall, within fifteen (15) calendar
days of the written request or within three (3) calendar days after
the next regular meeting of the Agency, whichever date occurs
later, provide to the Developer a written statement setting forth
the reasons with respect to the Agency's refusal or failure to
furnish a Certificate of Completion. The statement shall also
contain the Agency's opinion of the action the Developer must take
to obtain a Certificate of Completion. If the reason for such
refusal is confined to the immediate unavailability of specific
items or materials for construction or landscaping at a price
reasonably acceptable to the Developer or other minor building
- 24 -
6\
61
6
o
o
"punch-list" it..., the Agency will issue its Certificate of
Completion upon the posting' of a bond or irrevocable letter of
credit, reasonably approved as to fona and substance by the Agency
Counsel and obtained by the Developer in an amount representing' a
fair value of the work not yet completed as reasonably determined
by the Agency. If the Agency shall have failed to provide such
written stateaent within the foregoing' period, the Developer shall
be de_ed conclusively and without further action of the Agency to
have satisfied the requir_ents of this Agre_ent with respect to
the applicable portion of the Property as if a Certificate of
Coapletion had been issued therefor.
e. Such Certificate of Completion shall not constitute
evidence of c~liance with or satisfaction of any obligation of
the Developer to any holder of a .ortgage, or any insurer of a
mortgage securing .oney loaned to finance the improv_ents
described herein, or any part thereof. Such Certificate of
Completion shall not be de_ed to constitute a notice of completion
as referred to in Section 3093 of the California Civil Code, nor
shall it act to terminate the continuing covenants or conditions
subsequent contained in the Grant Deed attached hereto as
Exhibit "0".
- 25 -
6:1
6)
8
o
o
ARTICLE IV
USE OF THE SITE
Section .&.01. llIU. The Developer covenants and aqrees
for itself, ita !lUccessors, its assiqn., and every successor in
interest to the Property, or any part thereof, that durinq
construction of the development of the Property hereunder and for
the period specifiecS in Section .&.06 thereafter the DeveloPer, such
successors and such assiqns shall devote the Property (or any part
thereof) to the use as a sinqle room occupancy facility.
It is understood and aqreed by the DeveloPer that neither
the Developer, nor its assiqns or successors in interest to the
Property or this Aqreement, shall use or otherwise sell, transfer,
convey, assiqn, lease, leaseback or hypothecate the Property or any
portion thereof to any entity or party, or for any use of the
Property, that is partially or wholly exempt fro. the payment of
real property taxes pertinent to the Property, or any portion
thereof, or which would cause the exemption of the payment of all
or any portion of such real property taxes.
Section 4.02. Main~enance of ~e Pronertv. The
Developer covenants and aqrees for itself, its successors, its
assiqns, and every successor in interest to the Property, or any
part thereof, that the Developer, such successors and such assiqns
shall maintain in qoo4 condition the improvements on the Property,
shall keep the ProPerty free from any accumulation of debris or
waste material, subject to normal construction jOb-site conditions,
and shall maintain in a neat, orderly, healthy and qoo4 condition
the landscapinq required to be planted in accordance with the Scope
of Development. In the event the Developer, or its successors or
assiqns, fails to perform the maintenance as required herein, the
Aqency and/or the City shall have the riqht, but not the
obliqation, to enter the Property and undertake, such maintenance
activities. In such event, the Developer shall reimburse the
Aqency and/or City for all reasonable sums incurred by it for such
maintenance activities.
Section .&.03. Obliaation to Refrain from Discrimination.
The DeveloPer covenants and aqrees for itself, its successors, its
assiqns and every successor in interest to the Property or any part
thereof, that there shall be no discrimination aqainst or
seqreqation of any person, or qroup of persons, on account of sex,
marital status, race, color, reliqion, creed, national oriqin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property; nor shall the Developer,
itself or any Person claiminq under or throuqh it, establish or
perait any such practice or practices of discrimination or
seqreqation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessee or vendees
of the Property.
- 26 -
0\
6
8
-"
o
o
Section 4.04. Form of Nondiscriminat:ion and
Nonseareaation Cla~ses. The Developer covenants and agrees for
itself, its successors, its assiqns, and every successor in
interest to the Property, or any part thereof, that the Developer,
such successors and such assigns shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure or
enjoyment of the Property (or any part thereof) on the basis of
sex, marital ststus, race, color, religion, creed, ancestry or
national origin of any person. All deeds, leases or contracts
pertaining thereto shall contain or be subject to substantially the
following nOndiscrimination or nonsegregation clauses:
a. Yn deeds: "The grantee herein covenants by and for
itself, its successors and assigns, and all persons claiaing under
or through thea, that there shall be no discrimination against or
segregation of, any person or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the premises herein conveyed, nor shall the
grantee or any person claiming under or through it, establish or
penait any such practice or practices of discrimination or
segregation with reference to the selection, location, nWlber, use
or occupancy of tenants, lessees, subtenants, sublessee, or vendees
in the premises herein conveyed. The foregoing covenants shall run
with the land."
b. Yn leases: "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons claiming under
or through thea, and this lease is made and accepted upon and
subject to the followinq conditions: That there shall be no
discrimination aqainst or segreqation of any person or group of
persons, on account of race, color, creed, reliqion, sex, marital
.status, national oriqin, or ancestry, in the leasinq, subleasinq,
transferring, use, occupancy, tenure, or enjoyment of the premises
herein leased nor shall the lessee itself, or any person claiming
under or throuqh it, establish or permit any such practice or
practices of discriaination or segregation with reference to the
selection, location, number, use, or occupancy, of tenants lessees,
sublessee, subtenants, or vendees in the premises herein leased."
c. Yn contracts: "There shall be no discrimination
aqainst or segregation of any person or group of persons on account
of race, color, creed, reliqion, sex, marital status, nationaln
origin, or ancestry, in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises herein conveyed or
leased, nor shall the transferee or any person claiminq under or
through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy, of tenants, lessees,
sublessees, subtenants, or vendees of the premises herein
transferred." The foreqoinq provision shall be binding upon and
shall obligate the contractinq party or parties and any
subcontractinq party or parties, or other transferees under the
instrument.
- 27 -
0':
8'
.. .\
o
o
o
Section 4.05. Affordabilitv Covenants. The Developer
covenants and agrees for itself, its successors, its assigns, and
every successor in interest to the Property or any part thereof,
that for a period of the earlier of (i) fifteen (15) years
commenciD9 on the date of the Certificate of Completion, or
(ii) until all of the sums advanced by the Aqency from its Low- and
Moderate-Incoae Bousinq Fund with respect to the Project or this
Agre_ent, includiD9 without limitation, the Purchase Price, the
Demolition Cost, the Pee Contribution, the Revenue Contribution,
and interest on the aqgreqate thereof at seven percent (7t) simple
interest per annua, have been repaid in full to the Aqency' s Low-
and Moderate-Incoae Bousinq Fund, not less than fifteen percent
(15t) of the total number of rental units in the Inn (roundiD9
partial numbers upward to the next whole nUllher) will be devoted to
and available for rental to persons with an incoae not in excess of
fifty percent (sot) of the area median income, adjusted for faaUy
size, and revised annually. Additionally, not less than fifteen
percent (15t) of the total number of rental units in the Inn
(roundinq partial numbers upward to the next whole number) will be
devoted to and available for rental to persons with an income not
in excess of sixty percent (60t) of the area median income,
adjusted for faaily size, and revised annually. All of the units
available under the terms of this section shall be referred to
herein as the "Reserved Units".
The Developer further covenants that the monthly rent,
includinq utilities but excludinq cable television and telephone
service, to be charqed on any qiven Reserved Unit will not exceed
thirty percent (30t) of one-twelfth (1/ 12th) of either sot or 60t,
as applicable, of the area annual median income, adjusted for
family size, and revised annually.
The Developer further covenants and warrants as follows:
a. The Property is beinq utilized for the purposes of
providinq residential rental housinq, and the Project is to be
owned, manaqed and operated as a sinqle room occupancy facility
project for a period of not less than fifteen (15) years,
commenciD9 on the date of the Certificate of Co~letion;
b. Each residential unit in the Inn will be rented or
available for rental on a continuous basis;
c.
quality and
available;
The Reserved Units will be of the same construction,
amenities as equivalent units which are not so
d. All of the residential units in the Inn will be
available for rental on a continuous basis to members of the
qeneral public with the Reserved Units to be available for lease to
very low income residents as hereinabove provided and the Developer
will not qive preference to any particular class or group in
rentinq the dwellinq units in the Inn;
- 28 -
61
0;
fJ
o
o
e. Residents of the Reserved Units will have equal
access to and enjoyaent of all common facilities of the Inn;
f. The Developer will provide annual certifications to
the Aqency certifyinq as to compliance with the provisions of this
Section 4.05 and shall additionally notify the Aqency within thirty
(30) days after the announcement of any and all increases in the
rents to be charqed for any of the units comprisinq the Inn;
q. The Reserved Units shall at all times be available
to very low and to low income persons and shall be rented and
occupied or be available for occupancy by such low and very low
income persons. For the purposes of satisfying the requirement
that the required percentages of the residential units be occupied
by very low and low income persons, no such person shall be denied
continued occupancy because, after admission to the unit, the
person's incOlle exceeds the applicable income level. Any increase
in the rent per unit which is occupied by a tenant who previously
qualified as a low or very low income tenant, but no lonqer
qualifies as such, shall not be considered a denial of continued
occupancy of such a unit. The Developer may increase the monthly
rental on the Reserved Units consistent with the publication of
BUD's established low income rental rate schedules based on area
median income.
h. The Developer aqrees to obtain and maintain a file
on each low and very low income person who qualifies for occupancy
of a reserved unit, with data contained in said file sufficient to
enable the Aqency to determine that the Developer has been in
compliance with the covenants contained herein;
i. The Developer covenants to use a form of rental
aqreement in rentinq any Reserved Unit which shall provide for
termination of the tenancy and consent by the tenant to immediate
eviction for failure to qualify as a low or very low income person
as a result of any ..terial misrepresentation made by such person
with respect to his or her income and income verification.
All of the foreqoinq covenants shall run with the land
until the earlier of (1) fifteen (15) years commencinq on the date
of the Certificate of Completion, or (ii) until all of the SUIIS
advanced by the Aqency from its Low- and Moderate-Income Housinq
Fund with respect to the Project or this Aqreement, includinq
without limitation, the Purchase Price, the Demolition cost, the
Fee Contribution, the Revenue Contribution, and interest on the
aqqreqate thereof at seven percent (7') simple interest per annUlI,
have been repaid in full to the Aqency's Low- and Moderate-Income
Housinq Fund.
The Developer further covenants and warrants that the
Developer shall develop improvements on the Property in accordanceowith the Scope of Development. Participant covenants to develop
and operate the Property (or cause it to be operated) in conformity
- 29 -
e
16
s
o
o
with all applicable laws. The foreqoinq covenants shall run with
the land.
Section 4.06. Effec~ and Duration of Covenants. The
covenants established aqainst discriaination shall remain in effect
in perPetuity. The covenants respectinq uses of the Property shall
r...in in effect for a period of fifteen (15) years from the date
of execution of this Aqre_ent, shall run with the land and shall
constitute equitable servitudes thereon, and shall, without reqard
to technical classification and desiqnation, be bindinq for the
benefit and in favor of the Aqency, its successors and assiqns, the
city.
The Aqency is de_ed the beneficiary of the teras an
provisions of this Aqreement and of the covenants runninq with the
land for and in its own riqhts and for the purposes of protectinq
the interests of the co_unity. The Aqency shall have the riqht,
if such covenants are breached, to exercise all riqhts and remedies
and to maintain any actions or suits at law or in equity or such
other proper proceedinqs to enforce the curinq of such breaches to
which it or any other beneficiary of such covenants may be
entitled, includinq without limitation, to specific performance,
daaaqes and injunctive relief. The Aqency shall have the riqht to
assiqn all of its riqhts and benefits hereunder to the city.
- 30 -
~P"'''.'i',.,
6~\
~\
\.l
e
o
o
ARTICLE V
DEFAULTS. REMEDIES AND TERMINATION
section 5.01. Defaults - General.
a. Subject to the extensions of tiae set forth in
Section 6.05 hereof, failure or delay by either party to perfora
any material tera or provision of this Aqre_ent shall constitute
an "Event of Default" under this Aqre_ent; provided, however, that
if a party otherwise in default co_ences to cure, correct or
r_edy such default within thirty (30) calendar days after receipt
of written notice specifyinq such default and shall diliqently and
continuously prosecute such cure, correction or r_edy to
coapletion (and where any time limits for the completion of such
cure, correction or remedy are specifically set forth in this
Aqre_ent, then within said time limits), such party shall not be
de_ed to be in default hereunder.
b. The injured party shall qive written notice of
default to the party in default, specifyinq the Event of Default
complained of by the nondefaultinq party. Delay in qivinq such
notice shall not constitute a waiver of any default nor shall it
chanqe the time of default.
c. Any failure or delays by either party in assertinq
any of its riqhts and r_edies as to any Event of Default shall not
operate as a waiver of any default or of any such riqhts or
r_edies. Delays by either party in assertinq any of its riqhts
and r_edies shall not deprive either party of its riqht to
institute and maintain any actions or proceedinqs which it may de_
necessary to protect, assert or enforce any such riqhts or
r_edies.
Section 5.02. Leaal Actions.
a. In addition to any other riqhts or r_edies, either
party may institute leqal action to cure, correct or remedy any
Event of Default, to recover damaqes for any Event of Default, or
to obtain any other remedy consistent with the purposes of this
Agreement. Such leqal actions must be instituted in the Superior
Court of the County of San Bernardino, State of california, in any
other appropriate court in, that County, or in the Federal District
Court in the Central District of California.
b. 'fhe laws of the State of California shall qovern the
interpretation and enforcement of this Aqre_ent.
c. In the event that any leqal action is commenced by
the Developer aqainst the Aqency, service of process on the Aqency
shall be made by personal service upon the Executive Director or
Chairman or the Aqency, or in such other manner as may be provided
by law.
- 31 -
8)
6")
E/
~-".."
o
o
d. In the event that any legal action is co_enced by
the Agency against the Developer, service of process on the
Developer shall be made by personal service on any general partner
or in such other manner as may be provided by law, and shall be
valid whether. made within or without the state of California.
Section 5.03. Riaht.. and Remedies are CUm.ulat:ive.
Except with respect to any rights and ruedies expressly declared
to be exclusive in this Agre_ent, the rights and reaedies of the
parties are cumulative and the exercise by either party of one or
more of such rights or remedies shall not preclude the exercise by
it, at the saae or different tiJlles, of any other rights or reaedies
for the s_e Event of Default or any other Event of Default by the
other party.
Section 5.04. Damaaes. If either party defaults with
regard to any provision of this Agreement, the nondefaulting party
shall serve written notice of such Event of Default upon the
defaulting party. If the defaulting party does not diligently
co_ence to cure such Event of Default within thirty (30) calendar
days after service of the notice of default and promptly complete
the cure of such Event of Default within a reasonable time, not to
exceed ninety (90) calendar days (or such shorter period as may
otherwise be specified in this Agreement for any specific Event of
Default), after the service of written notice of such Event of
Default, the defaulting party shall be liable to the other party
for damages caused by such Event of Default.
Section 5.05. SDecific Performance. If either party
defaults under any of the provisions of this Agreeaent, the
nondefaulting party shall serve written notice of such Event of
Default upon such defaulting party. If the defaulting party does
not co_ence to cure the Event of Default and diligently and
continuously proceed with such cure within thirty (30) calendar
days after service of the notice of default, and such Event of
Default is not cured within a reasonable time thereafter (and where
any time laits for the completion of such cure, correction or
r_edy are specifically set forth in this Agreement, then within
said time lillits), the nondefaulting party, at its option, may
institute an action for specific performance of the terms of this
Agreement, except as otherwise provided in Section 5.04 hereof.
Section 5.06. Riahts and Remedies of Termination.
A. Termination bv the Develoner.
The Developer may terminate this Agreement if the Agency
does not tender conveyance of title to and possession of the
Property to the Developer in the manner and condition and by the
date provided in this Agreement (or any and all extensions thereof
as authorized by this Agreement), and if any such failure is not
cured within thirty (30) calendar days after written demand
therefor submitted by the Developer to the Agency, provided that
such failure does arise as a result of any act or omission to act
- 32 -
G;
6)
a
o
o
on the part of the Developer. Such written demand shall specify
the Agency's default and the action required to cure same.
b. TerBlination bv the Aaencv.
1. Notwithstanding any provision set forth in this
Agreeaent to the contrary, upon written notice of
default which shall specify the Developer's default
and the action required to cure SllIl8 and upon
thirty (30) calendar days notice to the Developer
of the Agency's intent to terminate this Agreement
pursuant to this Section, the Agency at its option
may terminate this Agreement if following
satisfaction of all conditions precedent for
conveyance of the Property by the Agency to the
Developer and at the time the Developer is required
to accept conveyance of title to the Property the
Developer does not in fact accept such conveyance
on the terms and conditions of this Agreement.
Subject to written notice of default which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement pursuant to this
Section, the Agency at its option may terminate
this Agreement if the Developer in breach of this
Agre...nt assigns or attempts to assign this
Agr_ent, or any right therein, or attempts to
make any total or partial sale, lease or leaseback,
transfer or conveyance of the whole or any Part of
the Property or the improvements to be develoPed
thereon in violation of the terms of this
Agreement, and the Developer does not correct such
violation within thirty (30) calendar days fro. the
date of receipt of such notice.
2.
3.
Subject to written notice 0 of default, which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement pursuant to this
Section, the Agency at its option may terainate
this Agreement if the Developer: (a) does not
within the time limits set forth in this Agreement
or as specifically provided in the Schedule of
Perforaance, subject to extensions authorized by
this Agreement due to force majeure or otherwise,
submit development plans, construction drawings and
related documents acceptable to the Planning
Departaent and Building Division of the city for
plan check purposes and in order to obtain building
peraits for the Project, together with applicable
fees therefor, subject to Section 2.03, all
- 33 -
r",\
0/
6'
"
8".
.. '.t
Revest.
o
o
pr.par.d to the minimum acc.ptabl. standards as
required by the Planning Depart:llent and Building
Division of the City for co_ene_ant of fonal
review of such documents and as required by this
Agr._ent, or (b) does not carry out its other
r.sponsibili ti.s und.r this Agr....nt or in
accordanc. with any modification or varianc.,
pr.cis. plan, d.sign r.vi.w and other envirollllental
or gov.rnm.ntal approvals and such d.fault is not
cured or the Developer does not c~ence and
diligently and continuoWlly proceed with such cur.
within thirty (30) calendar days after the date of
receipt of written deaand therefor frOll the Agency.
4. Subj.ct to written notice of default which shall
specify the Developer's default and the action
required to cure SlUll8 and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agr.ement pursuant to this
S.ction, the Agency at its option JUly terminate
this Agre_.nt if upon satisfaction of all
conditions precedent and concurrent therefor under
this Agreement, the Developer does not take title
to the Property under tender of conv.yance by the
Aqency, and such br_ch is not cur.d within thirty
(30) calendar days after the date of receipt by the
D.veloper of writt.n demand th.refor from the
Aqency .
Section 5.07. Riaht to Reenter. ReDOssess. Terminate and
a. The Aqency shall, upon thirty (30) calendar days
notice to the Dev.loper which notice shall specify this Section,
have the right, at its option, to re-enter and take possession of
all or any portion of the Property, together with all improvements
thereon, and to terminate and revest in the Agency the estate
conveyed to the Developer hereunder, if after conveyance of title,
but prior to the issuance of the Certificate of COIIpl.tion, the
Developer (or its successors in inter.st) shall:
1. Fail to co_ence construction of all or any portion
of the improvements as required by this Agreeaent
for a period of ninety (90) calendar days after
written notice to proceed from the Aqency; provided
that the Developer shall not have obtained an
extension or postpon_ent to which the Developer
may be entitled pursuant to Section 6.05 hereof; or
Abandon or substantially suspend construction of
all or any portion of the improvements for a period
of ninety (90) calendar days after written notice
of such abandonment or suspension froll the Aqency;
provided that the Developer shall not have obtained
2.
- 34 -
e
6)
f)
o
o
an exten.ion or po.tponeaent to wbich the Developer
may be entitled to pur.uant to Section 6.05 bereof;
or
As.iqn or attempt to a..iqn thi. Aqreement, or any
riqbt. berein, or transfer, or .uffer any
involuntary tran.fer, of the Property or any part
thereof, in violation of thi. Aqreeaent, and .uch
violation .ball not bave been cured within thirty
(30) calendar days after the date of receipt of
written notice thereof from the Aqency to the
Developer.
b. The thirty (30) calendar day written notice
.pecified in this Section .ball .pecify that the Aqency propo.es to
take action pur.uant to this section and sball .pecify wbich of th.
Developer'. obliqations .et forth in Sub.ections (1) tbrouqb (3)
berein bave be.n breached. The Aqency .ball proceed with it.
remedy .et forth berein only in th. event that the Developer
continue. in default of said obliqation(.) for a period of thirty
(30) calendar day. followinq sucb notice or, upon commencinq to
cure sucb default, fails to diliqently and continuou.ly prosecute
said cure to sati.factory conclu.ion.
3.
c. The riqht of th. Aqency to reenter, repos....,
terminat., and revest sball be subject and subordinate to, sball be
limited by and shall not defeat, render invalid or limit:
1.
Any mortqaqe, deed of trust or other .ecurity
interest permitted by this Aqreement;
Any riqbts or intere.ts provided in this
for the protection of the bolder.
mortqaqes, deeds of trust or other
interests;
3. Any leases, declaration. of covenant., conditions
and restriction., easement aqreement. or other
recorded documents applicable to the Property.
2.
Aqreement
of .uch
security
d. The qrant deed or qround lea.e to any portion of the
Property conveyed or lea.ed by the Developer to another party sball
contain appropriate references and provisions to qive effect to the
Aqency'. riqbt, as set forth in thi. Section under specified
circumstances prior to the recordation of the Certificate of
Completion, to reenter and take posses. ion of such parcel, or any
part thereof, with all improvements thereon, and to terminate and
revest in the Aqency the estate conveyed to the Developer.
e. Upon the revesting in the Agency of ~itle to the
Property, or any part thereof, as provided in this Section, the
Agency sball, pursuant to its responsibilities under State law, use
its best efforts to resell the Property, or any part thereof, at
fair market value as soon and in sucb manner a.the Aqency shall
- 35 -
B
0.....'..
. - J
,
8
...
o
o
find feasible and CODsistent with the objectives of such law, to a
qualified and responsible party or parties (as deterained by the
Agency) who will as8U118 the obligations of aakinq or COIIpleting the
improvements, or such other improv_ents in their stead as shall be
satisfactory to the Agency and in accordance with the uses
specified for the Property, or any part thereof. Upon such resale
of the Property, or any part thereof, the proceed. thereof shall be
applied:
1.
First, to make any payment aade or necessary to be
_de to discharge or prevent froa attaching or
being made any subsequent 8IlCUIIbrances or liens due
to obligations incurred with respect to the Ilakinq
or completion of the agreed improveaents or any
part thereof on the Property, or part thereof; next
to reimburse the Agency on its own behalf or on
behalf of the City for all actual costs and
expense. incurred by the Agency and the City,
inCluding but not limited to customary and
reasonable fee. or salaries to third party
personnel engaged in such action (but excluding the
Agency's or the City'S general overhead expense),
in connection with the recapture, IlanBg_ent and
resale of the Property or part thereof; all taxes,
assessments and water and sewer charges paid by the
City and/or the Agency with respect to the Property
or part thereof; any amounts otherwise owing to the
Agency by the Developer and its successor
transferee; and
Second, to the extent that any and all funds which
are proceeds from such resale are thereafter
available, to reimburse the Developer, or its
successor transferee, up to the amount equal to the
sum of the costs incurred for the development of
the Property, or applicable part thereof, or for
the construction of the improveaents thereon
including, but not limited to, costs of carry,
taxes and items set forth in the Developer'. cost
stateaent which shall be submitted to and approved
by the Agency.
2.
3.
Any balance
application of
Agency.
remaining after the foreqoing
proceeds shall be retained by the
- 36 -
8'
{Z'\
\J'
e
o
o
ARTICLE VI
GENERAL PROVISIONS
Section 6.01.
Between the Pa~ie..
Notices. Demands and Communications
a. Any and all notices, demands or communications
submitted by any party to another party pursuant to or as required
by this Agreement ahall be proper if in writing and dispatched by
messenger for f-ediate personal delivery, or by registered or
certified United states mail, postage prepaid, return receipt
requested, to the principal office of the Agency and the Developer,
as applicable, as designated in section 1.03(a) and Section 1.03(b)
hereof. SUch written notices, demands and cOllllUJlications may be
sent in the same lIlUUler to such other addresses as either party may
from tiJIe to ti.e designate as provided in this Section. Any such
notice, demand or comaunication shall be deemed to be received by
the addressee, regardless of whether or when any return receipt is
received by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for
immediate personal delivery, or two (2) calendar days after it is
placed in the united states mail as heretofore provided.
b. In addition to the submission of notices, demands or
communications to the parties as set forth above, copies of all
notices to any party shall also be sent to:
If to the Developer:
Main Street Inn
c/o Larcon Development Inc.
330 North RDR street, suite 110
San Bernardino, CA 92401
Attn: B. Gilbert Lara, Jr.
If the Agency:
Sabo , Green,
A Professional Corporation
6320 canoga Avenue, Suite 400
Woodland BillS, CA 91367
Section 6.02. Conflict of Interest. No member, official
or employee of the Agency having any conflict of interest, direct
or indirect, related to this Agreement and the development of the
Property shall participate in any decision relating to the
Agreement. The parties represent and warrant that they do not have
knowledge of any such conflict of interest.
Section 6.03. Warranty Aaainst. Pavment o~ Consideration
for Aareement. The Developer warrants that it has not paid or
given, and will not payor give, any third party any money or other
consideration for obtaining this Agreement. Third parties, for the
purposes of this Section, shall not include persons to whom fees
are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Developer.
- 37 -
l:.r
\.Ji
6',
'J
J
e
o
o
Sect.ion 6.04. Honltabilit.v af Aaencv O~:fieial. and
EmDlovees. No mellber, official or ellploy_ of the Agency shall be
personally liable to the Developer, or any successor in interest,
in the event of eny default or breach by the Agency or for any
amount which _y become due to the Developer or to its successor,
or on any Obligations under the terms of this Agreement, except for
gross neqligence or willful acts of such member, officer or
employee.
Sect.ion S.OS. Enforced DaIBv: Ertan.ioft of Tim. of
Performance. In addition to specific provi.ion. of this Agreement,
perfo~nce by either party hereunder shall not be deemed to be in
default Where delay. or defaults are due to war; insurrection;
strikes; lockouts; riot.; floods; earthquakes; fire.; casualtie.;
acts of God; acts of public enemy; epidemics; quarantine
restrictions; freight embargoes or lack of transportation; weather-
caused delays; inability to secure necessary labor, materials or
tools; delay. of any contractors, subcontractor or supplier; acts
of the other party other than as permitted or required by the teras
of this Agreement; act. or failure to act of any public or
governmental agency or entity other than as permitted or required
by the terms of this Agreement (except that action or failure to
act by the City or the Agency shall not extend the time for the
Agency to act unless such action or failure to act is the result of
a lawsuit or injunction inCluding by way of illustration, but not
liJaited to, lawsuits pertaining to the adoption of the Agreement,
the EIR and any other environmental documentation and procedures,
eminent do_in, and the like) or any other causes beyond the
control or without the fault of the party claiming an extension of
ti.e to perform. Any extension of ti_ for any .uch cause
hereunder shall be for the period of the enforced delay and shall
commence to run froa the time of the commencement of the cause, if
.notice by the party Claiming such extension is sent to the other
party within thirty (30) calendar days of the commencement of the
cause. Times of perfo~nce under this Agreement may also be
extended by mutual agreement in writing by and between the Agency
and the Developer.
Section 6.06. InsDection of Books and Records. The
Agency shall have the right at all reasonable tim_ at the Agency's
cost and expense to inspect the books and records of the Developer
pertaining to the Project as necessary for the Agency, in its
reasonable discretion, to enforce its rights under this Agreement.
Matters discovered by the Agency shall not be disclosed to third
parties unless required by law or unless otherwise resulting from
or related to the pursuit of any remedies or the assertion of any
rights of the Agency hereunder.
Sect.ion 6.07. ADDrovals.
a. Approvals required of the Agency or the Developer,
or any officers, agents or employees of either the Agency or the
Developer, shall not be unreasonably withheld and approval or
disapproval shall be given within the time set forth in the
- 38 -
e
0-"
.'. \
"
/
a
JIb
llIL
o
o
Schedule of Perforunce or, if no time is given, within a
reasonable time.
b. The Executive Director of the Agency is authorized
to sign on his own authority amendments to this Agreement which are
of routine or technical nature, including IDinor adjustments to the
Schedule of Perforunce.
Section 6.08. Real Estate co_i.sions. The Agency shall
not be liable for any real ..tate c~i..ion., brokerage f... or
finder fee. which may ari.e frOll or related to this Agreement.
Section 6.09. Ind"lIlnification. The Developer agrees to
indemnify and hold th. City and the Agency, and their officer.,
employee. end agents, harmless frolD and against all damage.,
judgment., cost., expense. and fee. arising frOll or related to any
act or olDission of the Developer in performing its obligations
hereunder. The Agency agrees to indemnify and hold the Developer
and its officers, employees and agent., harmless frOll and against
all damages, judgments, 90sts, expenses and fees arising frOll or
related to any act or omission of the Agency in performing its
obligations hereunder.
Section 6.10. Release of Develoner frolD Liabilitv.
Notwithstanding any provision herein to the contrary, the Developer
shall be relieved of any and all liability for the obligations of
the Developer hereunder with regard to the Property when a
Certificate of Completion has been issued by the Agency hereunder,
other than any covenants and obligations provided under the teras
hereof or by the grant deed by which the Property is conveyed to
the Developer hereunder.
Section 6.11. Attornevs' Fees. If either party hereto
files any action or brings any action or proceeding against the
other arising out of this Agreement, or is made a party to any
action or proceeding brought by the Escrow Agent, then as between
the Developer and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit and not as
damages, its reasonable attorneys' fees as fixed by the Court
hereof, in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees.
. Section 6.12. Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
- 39 -
a
6:~
~I
Q)
"'" .,
-
o
o
ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Section 7.01. Entire Aareement.
a. This Aqreement shall be executed in six (6)
duplicate oriqinal. each of which is deemed to be an oriqinal.
This Aqreement includes forty-five (45) paqe. and eiqht (8)
attachment., which constitute the entire understandinq and
Aqreement of the partie..
b. This Aqreement inteqrate. all o~ the terms and
conditions mentioned herein or incidental hereto, and supersede.
all neqotiations or previous aqreements between the parties with
respect to all or any part of the Property and the development
thereof.
c. None of the terms, covenants, aqreements or
condition. .et forth in this Aqreement shall be deemed to be merqed
with the qrant deed conveyinq title to the Property, and this
Aqreement shall continue in full force and effect before and after
such conveyance until issuance of the certificate of Completion for
the Property.
d. All waivers of the provisions of this Aqreement and
all amendments hereto must be in writinq and siqned by the
appropriate authorities of the Aqency and the Developer.
- 40 -
6""
~...I
. 'I'
,
~
-
-
o
o
ARTICLE VIII
TIME FOR ACCEPl'ANCE OF AGREEMENT BY AGENCY AND RECORDATION
Sec~ioft 8.01. Execu~ion and Recordation.
a. Followinq its execution by the Developer and prollpt
delivery thereafter to the Aqency, this Aqreement IlUst be approved,
executed and delivered by the Aqency to the Developer within forty-
five (45) calendar days after the date of siqnature by the
Developer. In the event that the Aqency has not approved, executed
and delivered the Aqreement to the Developer within the foreqoinq
period, then thi8 Aqreement shall be deemed to be of no further
force or effect unless the time for such approval, execution and
delivery is extended by written notice fro. the Developer to the
Aqency. The. date of this Aqre_ent shall be the date when the
Aqreement shail have been approved by the Aqency.
b. The Developer and the Aqency aqree to permit
recordation of this Aqreement or any portion thereof aqainst the
Property in the Office of the County Recorder for the County where
the Property is located.
-41-
8)
I:; ,
c5'
e
o
o
IN WITNESS WHEREOF, the parties hereto have duly executed
this Aqreement as of the dates set forth below.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
Date:
By:
Cba1rman
(SEAL)
By:
Secretary
APPROVED AS TO FORM:
SABO , GREEN,
A Professional Corporation
By: Special Agency Counsel
Date:
MAIN STREET INN,
a california LWted Partnership
By: Larcon Developllent Inc.
General Partner
By:
B. Gilbert Lara, Jr.
President
(All Signatures Must Be Notarized)
IIIIlOI\OOOIIDOC\542
IJZ/92 <l4O
- 42 -
F,
bi
6)
e
-
o
o
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
)
) ss
)
On , 1992, before DIe, the undersigned, a
Notary Public in and for said State, personally appeared
and personally known to
.e (or proved to .e on the basis of _tis factory evidence) to be
the Chair1llU1 and Secretary, respectively, of the Redevelopaent
Agency of the City of San Bernardino that executed the within
instrument on behalf of said Agency and acknowledged to .. that
said instrument) was authorized to be executed pursuant to a duly
adopted resolution of said Agency.
WITNESS my hand and official seal.
Signature:
- 43 -
01
8',1
'"'
f)
-
o
o
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
)
) ss
)
On , 1992, before .a, the undersigned, a
Notary Public in and for said state, personally appeared
personally known to .. (or proved to.. on
tha basis of satisfactory evidence) to be tha tha person who
executed tha within instrullent on behalf of Babo , Green, a
Prof.ssional Corporation, and acknowledCJed to .a that h. executed
said inetrument.
WITNESS my hand and official eeal.
Siqnature:
- 44 -
6~
e
8
o
o
STATE OF CALIFORNIA
COUNTY OF
)
) BB
)
On , 1992, before lIIe, the underBiCJDed, a
Notary Public in and for said State, perBonally appeared B. Gilbert
Lara, Jr. perBonally known to lie (or proved to .. on the basis of
satisfactory evidence) to be the President of Larcon Development
Inc., the General Partner that executed the within instruaent on
behalf of Main Street Inn, a california Limited Partnership.
WITNESS my hand and official Beal.
SiCJDature:
- 45 -
o
~.",
V'
6')
a
EXHIBIT "A"
LEGAL DESCRIPTION
Exhibit "A" - paqe 1
o
6'
0"':"
.'
....,.
s....
: '\
'J
o
o
EXHIBIT "B"
SCOPE OF DEVELOPMENT
The Property shall be developed as a four-story sinqle
room occupancy facility (the "Inn") with two hundred sixty-fOur
(264) individual roollS and a basement parkinq qaraqe with thirty-
nine (39) parkinq spaces, in accordance with the concepts contained
in Exhibit "S" to this Aqreement and shall meet or exceed the
City'S SRO ordinance requirements. The Property shall be developed
in accordance with this Aqreement, but subject to the requirements
of the zoninq ordinance of the City and any variances or
modifications therefrom as approved by the City.
The Developer shall cause the desiqn and construction of
the Property in accordance with the Schedule of Performance
(Exhibit "E") and this Aqreement as follows:
The development shall be constructed of quality
materials, to City Code, and shall be unified in architectural
theme and treatment throuqhout the Property insofar as reasonable
and practicable.
All illprovements to be constructed by the Developer shall
be constructed or installed in accordance with the technical
specifications, standards and practices of the City and in
accordance with plans and specifications approved by the City.
The Developer shall cause the proper documents to be
filed and fees paid, subject to the Aqency Obliqations, to all
qovernmental or requlatory aqencies, includinq utilities, for
applications for all required permits and approvals.
The Developer shall at its cost and expense, subject to
Section 2.03 of the Aqreement, be responsible for the desiqn and
construction of off-site improvements, if any, in accordance with
any and all standards and requirements of the City, utilities, or
other qovernmental authorities.
The Project shall include on-site parkinq in accordance
with applicable City requlations or approved variations thereof.
The Developer shall desiqn all structures, lands~pinq and parkinq
areas to achieve a hiqh deqree of attractiyeness and compatibility
with the Property and area in which the Property is located.
Exhibit "B" - paqe 1
6;
61
e
o
o
The Developer, prior to Close of Escrow and at its cost
and expense subject to the Aqency'. contribution as provided in
Section 2.03 of the Aqre_ent, shall undertake and complete any and
all soils, utility and drainaqe studies, plans and reports
pertinent to the development of the Property and shall provide a
copy of said studies and reports to the Aqency.
Exhibit "8" - paqe 2
e/
6..',
.. .~
a
o
o
EXHIBIT "C"
DEED OF TRUST WITH ASSIGNMENT OF RENTS
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
)
)
)
)
)
)
(Space Above for Recoreter's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deect of trust aaete on , 1992, by HAIR
STREET 111II, a california Limitect Partnership, hereinafter callect
.Trustor,. whose aetctress is 330 Rorth .D. Street, Suite 110,
5anBernaretino, California 92401 to FIRST AMERICAII TITLE INSURANCE
COMPAIIY, a California corporation, hereinafter referreet to as
.Trustee., whose business aetdress is 323 West Court st., San
Bernaretino, california 92401, in favor of the REDEVELOPMEIIT AGENCY
OF THE CITY OF SAN BERIIARDINO, hereinafter referreet to as
.Beneficiary", whose business aetctress is 201 North .E. Street,
Thiret Floor, San Bernaretino, california 92401.
Trustor irrevocably qrants, transfers, anet assigns to
Trustee in trust, with power of sale, all that property, inclueting
all eas_ents and rights of way usect in connection therewith or as
a aeans of access thereto, in the city of San Bernaretino, County of
San Bernaretino, State of California, etescribect as follows:
That certain property locatect in the City of
San Bernaretino, County of San Bernaretino, State of California, more
particularly etescribect in the attaehect Exhibit "A" which is
incorporatect herein by reference (the "Property"), toqether with
the rents, issues anet profits thereof, subject however to the right
r_ervect by Trustor in Paraqraph B-16 hereof to collect anet apply
such rents, issues anet prOfits, prior to any etefault hereuneter.
This Deect of Trust is given pursuant to the terms of that certain
Disposition anet Development Aqreement By anet Between the
Redevelopllent Agency of the City of San Bernaretino anet Main Street
Inn, a california LilIited Partnership, etatect , 1992
(the "Aqreement"), the terms of which are incorporateet herein by
reference. This Deeet of Trust is for the purpose of securing:
(i) the Agency Interest, as etefinect in Section 2.04 of the
Aqreement, (ii) the covenants anet restrictions containect in
Article IV of the Aqreement anet in the Grant Deect by which
Beneficiary conveyect the Property to Trustor (the "Grant Deeet"),
and (Hi) all other promises, covenants anet obligations of the
Trustor to the Beneficiary or Beneficiary's successor-in-interest
containect in the Aqreement, the Grant Deect, this Deect of Trust or
any other instrument or writing executeet by Trustor in connection
with the Aqreement.
Exhibit "C" - Page 1
6\
6',
.~}
OJ
o
o
A. To pro~ct the security of this Deed of TrUst, TrUstor agrees:
1. To maintain the property in' good condition and
repair; not to reaove or demolish any building or improv_ent
thereon after the issuance of the certificate of Completion as
provided in Section 3.06 of the Agre_ent; to complete promptly in
workmanlike manner any improv_ent hereafter constructed thereon
and to restore promptly in workmanlike lllanner any iaprov_ent
thereon that is d__ged or destroyed, and to pay when due all costs
incurred therefor or in connection therewith; to comply with all
laws, ordinances, requlations, covenants, conditions and
restrictions affectinq the property; not to comait or perait any
_ste thereof or any act upon the property in violation of law or
of covenants, conditions or restrictions affectinq the property.
2. To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceedinq,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by tho or
either of tho in connection therewith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
SUJI.
3. To pay (a) before delinquency, all taxes and
assessments affecting the property, all asses_ent upon water
COIIpany stock, and all rents, assessments and charqes for water
appurtenant to or used in connection with the property; (b) when
due, all encumbrances, charges and liens, with interest, on the
property or any part thereof, which appear to be prior or superior
hereto; and (c) all costs, fees and expenses of this trust.
4. If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or TrUstee (but without
obligation so to do, and with or without notice to or deaand upon
Trustor, and without releasing TrUstor from any obligation hereof)
_y (a) make or do the saae in such '-.nner and to such extent as
either de... necessary to protect the security hereof, Beneficiary
or TrUstee being authorized to enter upon the property for such
purpose; (b) appear in or cOllllllence any action or proceeding
purportinq to affect the security hereof or the rights or powers of
Beneficiary ,or Trustee; (c) pay, purchase, contest, or comproaise
any encumbrance, charge or lien that, in the jud9lllent of either,
appears to be superior hereto; and in exercisinq any such power,
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys' fees.
5. To pay 1IIIIIIediately and without deaand all SUIIIS
expended hereunder by Beneficiary or TrUstee, with interest from
date of expenditure at seven percent (7') per annum.
B.
It is autually agreed that:
Exhibit "C" - Page 2
8
0)
e
J
J2$l
o
o
1. Any award of dllllages made in connection with the
conciemnation for public use of or injury to the property or any
part thereof is hereby assiqned. and shall be paid to Beneficiary,
who may apply or release such moneys received. therefor upon any
indebted.ness secured. hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received. or any Part thereof may be released. to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invaliciate any act done pursuant to
such notice. .
2. The acceptanca by Beneficiary of any payment less
than the amount then due shall be de_eel an acceptance on account
only and. shall not constitute a waiver of the obligation of Trustor
to pay the entire sua then due or of Beneficiary'S right either to
require prOllpt payaent of all SU1D8 then due or to declare default.
The acceptance of payment of any SUII secured hereby after its due
date will not waive the right of Beneficiary either to require
proapt payment when due of all other SU1D8 so secured. or to declare
default for failure so to pay. No waiver of any default shall be
a _iver of any preceding or succeed.ing default of any kind.
3. At any time or froll time to time, without liability
therefor and with or without notice, upon written request of
Beneficiary and presentation of this deed. and the secured. note for
end.orsement, and without effecting the personal liability of any
Person for paYJllent of the indebted.ness secured. hereby or the effect
of this deed upon the reaaincier 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 eas_ent or join in any
extension agre_ent or any agreement Subordinating the lien or
chlU'lje thereof.
4. Upon written request of Beneficiary stating that all
SUIIS secured. hereby have been paid and all of the Agency's Interest
as defined. in Section 2.04 of the Agreement has been provided. to
the Agency, together with surrend.er of this deeel to Trustee for
cancellation and. retention, and payment of its fees, Trustee shall
reconvey, without warranty the property then held hereund.er. The
recitals in such reconveyance shall be conclusive proof of the
truthfulness thereof. The grantee may be designated. in such
reconveyance as "the person or persons legally entitled. thereto."
5. Trustor may give such notice to Beneficiary at any
time before there is a Trustee's sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terme of this paragraph after
notice of default and election to sell has been recorded. shall not,
unless the requirements of Section 2924c of the Civil Cocie are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
Exhibit "C" - Page 3
c/
6)
a
o
o
person effectinq such payment to the release of the property for
which the release -.aunt was paid, and insofar as Beneficiary is
concerned, to constitute a credit aqainst the secured debt.
Beneficiary acknowledqes that the ability of Trustor to
procure releases promptly is of the utmost importance. Therefore,
Beneficiary will at all times maintain at its principal place of
business a person who is authorized to execute such releases on
behalf of Beneficiary, and such releases will be executed and
delivered, when sought in compliance with the provisions contained
herein, not later than ten (10) days after written demand for such
release has been made on Beneficiary.
6. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default in payment of any amount secured by this deed of
trust, Trustor or such owner shall pay to Beneficiary in advance on
the first day of each month a reasonable rental for the premises so
occupied. On failure to pay such reasonable rental, Trustor or
such owner may be removed frolD the premises by sn_llry
dispossession proceedinqs or by any other appropriate action of
proceedinq.
7. If default is made in payment of any indebtedness or
in performance of any aqreement hereby secured, then Beneficiary,
with or without notice to Trustor, may declare all sums secured
hereby i..ediately due and payable by institutinq suit for the
recovery thereof or for the foreclosure of this deed, or by
deliverinq to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
.Beneficiary shall also deposit with Trustee this deed and all
dOCUJllents evidencinq expenditures secured hereby.
8. Should Trustor, without the consent in writinq of
Beneficiary, voluntarily sell, transfer or convey his interest in
the property or any part thereof, or if by operation of law, it be
sold, transferred or conveyed, then Beneficiary may. at its option,
declare all SUIDS secured hereby iDIediately due and payable.
Consent to one such transaction shall not be deemed to be a waiver
of the riqht to require such consent to future or successive
transactions.
9. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
havinq been qiven as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the hiqhest bidder, for cash in lawful money of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
announcement at the time and place of sale oriqinally fixed or at
Exhibit "C" - paqe 4
6)
6'
":'"
e
o
o
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any _tters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
10. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
r_sonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payaent of (a) all suas expended
under the teZ'IUI hereof and not'theretofore repeid, so as to aaJce
Beneficiary whole as provided in the Agre_ent, with accrued
interest at seven percent (n) per annua, and (b) all other SUllS
then secured hereby in such order as Beneficiary, in the exercise
of its sole discretion, directs. The r.-inder, if any, shall be
paid to the person or persons legally entitled thereto.
11. Before Trustee's sale, Beneficiary _y rescind such
notices of default and of election to cause the property to be sold
by delivering to Trustee a written notice of r_cission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of _turity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
12. Beneficiary may, from tille to time as provided by
statute, or by a writing signed and acknowledged by hill and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in st_d and of
Trustee herein neaed; and thereupon, the Trustee herein neaed shall
be diScharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
13. If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee _y be
exercised by any of such persons if the other person or persons is
unable, for any r_son, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
14. All leases nor or hereafter affecting the property
are hereby assigned and transferred to Beneficiary by Trustor.
Trustor hereby covenants that none of such leases will be modified
or terminated without the written consent of Beneficiary.
Exhibit "e" - Page 5
e
.t::,',',
\...i \
I
I
I
I
I
i6
"
!j
- -
o 0
15. When requested to do so, Trustor shall give such
further written assicpuaents of rents, royalties, issues and
profits; of all security for the performance of leases; and of all
IIOney payable under any option to purchase, and shall give executed
originals of all leases, now or hereafter on or affecting the
property.
16. Trustor reserves the right, prior to any default in
payaent of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
prOfits, as but not before they beCOll8 due. Upon any such default,
Trustor's right to collect such IIOneys shall cease, not only as to
Ulounts accruing thereafter, but also as to UlOunts then accrued
and unpaid. In the event of default, BenefiCiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent,. or by a
receiver to be appointed by the court, Ca) _y enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and Cb) with or without taking
possession, may sue for or otherwise collect the rents, issues and
prOfits thereof, whether past due or coming due thereafter, and
apply the sUle, less costs. and expenses of operation and
collection, including reasonable attorneys' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
default hereunder or invalidate any act done pursuant to such
notice. Bene.ficiary shall.not be required to act diligently in the
care or _nag_ent 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 SUlDS actually received.
17. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the teras hereof, from time
to time and with or without notice, may release any person now or
hereafter liable for performance of such obligation, and _y extend
the time for paYJl8nt or performance, accept additional security,
and alter, substitute or release any security. '
18. 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 SUll, to be fixed by the court.
19. No remedy hereby given to Beneficiary or Trustee is
exclusive of any other remedy hereunder or under any present or
future law.
20. The pleading of any statute of limitations as a
defense to any and all obligations secur~ by this deed is hereby
waived, to the full extent permissible by law.
21. In the event of default in the payment of any
indebtedness secured hereby, and if such indebtedness is secured at
any tille by any other instrument, Beneficiary shall not be
Exhibit "e" - Page 6
6)
6)
8
_ LJ.
o 0
obligated to resort to any security in any particular order; and
the exercise by Beneficiary of any right or remedy with respect to
any security shall not be a waiver of or limitation on the right of
Beneficiary to exercise, at any time or frOll tille to time
thereafter, any right or r_edy with respect to this deed.
22. Trustor shall, upon request made by Beneficiary,
furnish the Beneficiary with. annual stateaants covering the
operations of the property.
.23. Beneficiary may collect a -late charge- not to
exceed an amount equal to four percent (n) per calendar 1I0nth, or
fraction thereof, on the amount past due and r_ining unpaid on
any installaent that is not paid within tan (10) days frOll the due
date thereof, to cover the extra expense involved in handling
delinquent payments.
24. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
acblinistrators, executors, successors, successors in interest, and
assigns. The term -Beneficiary- lIeans the owner and holder,
including pledgees, of the note secured hereby, whether or not
nlUled as Beneficiary herein. In this deed, whenever the context so
requires, the _sculine gender includes the feainine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
25. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed. of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be lIailed to hill at the address
set out opposite his nue, immediately below.
Exhibit -C- - Page 7
~
\....//
R
V/
tI
- ~
o 0
MAl:LING ADDRESSES FOR NOTICES:
330 North "D" Street
Suite 110
San Bernardino, California 92401
Executed at San Bernardino, california, on the date first
above written.
MAl:N STREET INN,
a California Liaited Partnership,
By: Larcon Developlllent Inc.
General Partner
By:
B. Gilbert Lara, Jr.
President
Exhibit "C" - Page 8
D
0"
8"\
:.,/
)
(2.)'
o'
o
o
STATE or CALIFORNIA
COUNTY or
)
) ss
)
On , 1992, before _, the undersigned, a
Notary Public in and for said state, personally appeared B. Gilbert
Lara, Jr. personally known to .. (or proved to _ on the basi. of
satisfactory evidence) to be the Pre.ident of Larcon Deve10paent
Inc., the General Partner that executed the within inatrullent on
behalf of Main Street Inn, a california Limited Partnership.
WITNESS .y hand and official seal.
Signature:
Exhibit "C" - paqe,9
61
8)
6."
. I
o
o
EXHIBIT wOw
GRANT OEED
Recordinq Requested By:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
After Recordation, Mail to:
REDEVELOPMENT AGENCY OF THE
CITY OP SAN BERNARDINO
201 North wE- street, Third Floor
San Bernardino, California 92401
Mail Tax Statements to:
MAD STREET INN, a california Limited Partnership
330 North wOw Street, Suite 110
San Bernardino, California 92401
GRANT DEED
Por valuable consideration, the receipt of which is
hereby acknowledqed,
THE REDEVELOPMENT AGENCl OF THE CITY OP San Bernardino,
a public body, corporate and politic, of the state of California
(the wGrantorW), pursuant to and in accordance with the co_unity
Redevelopment Law of the State of california, hereby qrants to MAIN
STREET INN, a california Limited Partnership, (the wGranteeW), the
real property (the wPropertyW) leqally described in the document
attached hereto, marked Exhibit wAw, and incorporated herein by
this reference.
1. The Property is conveyed subject to the Disposition
and Oevelopllent Aqre_nt entered into between the Grantor and the
Grantee, dated , 1992 (herein referred to as the
WAqreement-). The provisions of the Aqreement are incorporated
herein by this reference and shall be deemed to be a part hereof as
if set forth at lenqth herein.
2. The Grantee covenants and aqrees for itself, its
successors, its assiqns, and every successor in interest to the
Property, or any part thereof, that durinq construction of the
development of the Property hereunder and for the period specified
in Section 4.06 thereafter the Grantee, such successors and such
assiqns shall devote the Property (or any part thereof) to the use
as a sinqle roo. occupancy facility;
Exhibit wDw - paqe 1
6!
6\
fJ
o
o
It is understood anc:l agreed by the Grantee that neither
the Grantee, nor its assiqns or successors in interest to the
Property or this Agreement, shall use or otherwise sell, transfer,
convey, assiqn, lease, leaseback or hypothecate the Property or any
portion thereof to any entity or party, or for any use of the
Property, that is partially or wholly ex_pt frOll the payment of
real property taxes pertinent to the Property, or any portion
thereof, or which would cause the ex~tion of the payment of all
or any portion of such real property taxes.
3. Th. Grantee covenants anc:l agre.s for itself, its
successors, its assiqns, anc:l every successor in interest to the
Property, or any part thereof, that the Grante., such successors
and such asaiqns shallaaintain in qood condition the improv_ants
on the Property, shall keep the Property free frOll any accumulation
of debris or waste aaterial, subject to noraal construction jOb-
site conc:litions, and shall _intain in a neat, orderly, healthy and
qood condition the landscapinq required to be planted in accordance
with the Scope of Development. In the event the Grantee, or its
successors or assiqns, fails to perform the maintenance as required
herein, the Aqency and/or the city shall have the riqht, but not
the obliqation, to enter the Property and undertake, such
maintenance activities. In such event, the Grantee shall reimburse
the Aqency anc:l/or City for all reasonable SUIIS incurred by it for
such maintenance activities.
4. The Grantee covenants and agrees for itself, its
successors, its auiqns and every successor in interest to the
Property or any part thereof, that there shall be no discrimination
aqainst or segreqation of any person, or group of persons, on
account of sex, _rital status, race, color, reliqion, creed,
national oriqin or ancestry in the sale, lease, sublease, transfer,
.use, occupancy, tenure or enjoyment of the Property; nor shall the
Grantee, itself or any person claiminq under or throuqh it,
establish or ~it any such practice or practices of
discrimination or seqreqation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessee or vendees of the Property.
5. The Grantee covenants and agrees for itself, its
successors, its assiqns, and every successor in interest to the
Property, or any part thereof, that the Grantee, such successors
and such assiqns shall refrain from restrictinq the sale, leas.,
sublease, rental, transfer, use, occupancy, tenure or enjoyment of
the Property (or any part thereof) on the basis of sex, marital
status, race, color, reliqion, creed, ancestry or national oriqin
of any person. All deeds, leases or contracts pertaininq thereto
shall contain or be subject to substantially the followinq
nOndiscrimination or nonsegreqation clauses:
a. In deeds: "The grantee herein covenants by and for
itself, its successors and assiqns, and all persons claiminq under
or throuqh th_, that there shall be no discrimination aqainst or
seqreqation of, any person. or qroup of persons on account of race,
Exhibit "D" - paqe 2
e
a
I ~l
IV
,
,
I
:'
;
o
o
color, creed, reliqion, sex, marital status, national oriqin, or
ancestry in the sale, lease, "sublease, transfer, use, occupancy,
tenure, or enjoyaent of the premises berein conveyed, nor sball the
qrantee or any person claiminq under or tbrouqb it, establisb or
Permit any such practice or practices of discrimination or
seqreqation with reference to the selection, location, nUllber, us.
or occupancy of tenants, lessees, subtenants, sublessee, or vendees
in the preaises berein conveyed. The foreqoinq covenants shall run
with the land."
b. In leases: "The Lessee berein covenants by and for
itself, its successors and assiqns, and all persons claillinq under
or tbrouqb thea, and this lease is ..de and accepted upon and
subject to the follovinq conditions: That there sball be no
discrimination aqainst or seqreqation of any person or qroup of
persons, on account of race, color, creed, reliqion, sex, marital
status, national oriqin, or ancestry, in the leasinq, subleasinq,
transferrinq, use, occupancy, tenure, or enjoyment of the premises
berein leased nor shall the lessee itself, or any person claiminq
under or tbrouqb it, establisb or permit any such practice or
practices of discrimination or seqreqation with reference to the
selection, location, number, use, or occupancy, of tenants lessees,
sublessee, subtenants, or.vendees in the premises herein leased."
c. In contracts: "There sball be no discrimination
aqainst or seqreqation of any person or qroup of persons on account
of race, color, creed, reliqion, sex, marital status, national
oriqin, or ancestry, in the sale, lease," sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises berein conveyed. or
leased, nor shall the transferee or any person claiminq under or
tbrouqh it, establish or permit any such practice or practices of
discrimination or seqreqation with reference to the selection,
. location, number, use, or occupancy, of tenants, lessees,
sublessees, subtenants, or vendees of the premises berein
transferred." The foreqoinq provision shall be bindinqupon and
shall obliqate the contractinq party or parties and any
subcontractinq party or parties, or other transferees QJlder the
instrument.
6. The Grantee covenants and aqrees for itself, its
successors, its assiqns, and every successor in interest to the
Property or any part thereof, thlit for a period of the earlier ~f
(1) fifteen (15) years cOlDIDencinq on the date of the Certificate of
COIIpletion as provided in Section 3.06 of the Aqreement, or
(ii) until all of the sums advanced by the Aqency from its Low- and
Moderate-Income Rousinq Fund with respect to the Project or this
Aqreement, includinq without limitation, the Purchase Price, the
Demolition Cost, the Fee contribution, the Revenue Contribution, all
as defined in the Aqreement, and interest on the aqqreqate thereof
at seven percent (n) simple interest per annUlI, have been repaid
in full to the Aqency's Low- and Moderate-Income Rousinq Fund, not
less than fifteen percent (15t)" of the total number of rental units
in the Inn (roundinq partial numbers upward to the next whole
number) will be devoted to and available for rental to persons with
Exhibit "D" - paqe 3
C/
6)
fj
o
o
an income not in excess of fifty percent (Sot) of the area median
income, adjusted for family size, and revised annually, and not
less than fifteen percent (1st) of the total number of rental units
in the Inn (including partial number. upward to the next whole
nWlber) will be devoted to and available f~r rental to person. with
an income not in excess of sixty percent (60t) of. the area median
income, adjusted for family size, and revised annually. The total
nuaher of unit. reserved under this Section 6 shall be referred to
as the "Reserved units-.
The Grantee further covenants that the monthly rent to be
charged on any given Reserved Unit will not exceed thirty percent
(30t) of one-twelfth (1/12th) of sot or 60t, as applicable, of the
area annual median income, adjusted for family .ize, and revised
annually.
The Grantee further covenants and warrants as follows:
a. The Property is being utilized for the purposes of
providing residential rental housing, and the Project is to be
owned, managed and operated as a single room occupancy facility
project for a period of not less than fifteen (15) years,
c01lllllencing on the date of the Certificate of Completion;
b. Each residential unit in the Inn will be rented or
available for rental on a continuous basis;
c.
quality and
available;
The Reserved Units will be of the same construction,
amenities as equivalent units which are not so
d. All of the residential units in the Inn will be
available for rental ona' continuous basis to meabers of the
general public with the Reserved Units to be available for lease to
low and very low income residents as hereinabove provided and the
Grantee will not give preference to any particular class or group
in renting the dwelling units in the Inn;
e. Residents of 'the Reserved Units will have equal
access to and enjoyaent of all c~on facilities of the Inn;
f. The Grantee will provide annual certifications to
the Agency 'certifying as to compliance with the provisions of this
Section 4.05 and shall additionally notify the Agency within thirty
(30) days after the announcement of any and all increases in the
rents to be charged for any of the' units comprising the Inn;
g. The Reserved Units shall at all times be available
to low and very low income.persons and shall be rented and occupied
or be available for occupancy by such low and very low incolI8
persons. For the purposes of satiSfying the requirement that the
required percentages of the residential units be occupied by low
and very low iricome persons, no such person shall be denied
continued occupancy because, after admission to the unit, the
Exhibit "D" . Page 4
6)
8)
fJ
o
o
person's incoae exceeds the applicable income level. Any increase
in the rent per unit which is occupied by a tenant who previously
qualified as a low or very low inco.e tenant, but no longer
qualifies as such, shall not be considered a denial of continued
occupancy of such a unit;
h. The Grantee agrees to obtain and maintain a file on
each low and very low inco_ person who qualifies for occupancy of
a reserved unit, with data contained in said file sufficient to
enable the Agency to determine that the Grantee has been in
compliance with the covenant. contained herein;
i. The Grantee covenant. to use a form of rental
agreement in renting any Reserved Unit. which shall provide for
termination of the tenancy and consent by the tenant to immediate
eviction for failure to qualify as a low or very low inco.e person
as a re.ult of any material .isrepresentation made by such person
with respect to his or her income and income verification.
All of the foregoing covenants shall run with the land
until the earlier of (i) fifteen (15) years commencing on the date
of the certificate of Completion, or (ii) until all of the sums
advanced by the Agency from its Low- and Moderate-Income Housing
Fund with respect to the Project or this Agreement, including
without limitation, the Purchase Price, the Demolition Cost, the
Fee Contribution, the Revenue Contribution, all as defined in the
Agreement, and intere.t on the. aggregate thereof .at seven percent
(7t) simple interest per annum, have been repaid in full to the
Agency'. Low- and Moderate-Income Housing Fund.
The Grantee further covenant. and warrant. that the
Grantee shall develop improvement. on the Property in accordance
.with the Scope of Development and Exhibit "H". The Grantee
covenant. to develop and operate the Property (or cause it to be
operated) in conformity with all applicable laws. The foregoing
covenants shall run with the land.
7. The covenants established against discrimination
shall remain in effect in perpetuity. The covenants respecting
us_ of the Property shall remain in effect for a period of fifteen
(15) years frOll the date of execution of this Agreement, shall run
with the land and shall constitute equitable servitudes thereon,
and shall, without regard to technical classification and
'designation, be binding for the benefit and in favor of the Agency,
its successors and assigns, the City.
The Grantor is deemed the beneficiary of the terms an
provisions of this Agreement and of the covenants running with the
land for and in.its own rights and for the purpose. of protecting
the interests of the community. The Grantor shall have the right,
if such covenants are breached, to exercise all rights and remedies
and to maintain any actions or suits at law or in equity or such
other proper proceedings to enforc~. the .curing of such breaches to
which it or any other beneficiary of such covenants may be
Exhibit "0" - Page 5
6'1
6)
e
o
o
entitled, including without limitation, to specific performance,
dlmages and injunctive relief. The Grantor shall have the right to
assign all of its rights and benefits hereunder to the city of
San Bernardino.
Exhibit "D" - Page 6
e
6)
8
o
o
IN WITNEss WHEREOF, the Grantor and Grantee have caused
this instruaent to be executed on their behalf.by their respective
officers thereunto duly authorized, this _ day of ,
1992.
APPROVED AS TO FORM:
SABa , GREEN,
A Professional Corporation
By:
Grantor:
REDEVELOPMENT AGENCY OF THE CITY OF
SAN -BERNARDINO
By:
Chairperson
- By:
Secretary
Special. Agency Counsel
accepted.
The provisions of this Grant Deed are hereby approved and
Grantee:
MAIN STREET INN, .
a California Liaited Partnership
By: Larcon Developaent Inc.
General Partner
By:
B. Gilbert Lara, Jr.
President
Exhibit "0" - Page 7
e
B
6
o
o
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
)
) ss
)
on
Notary Public
, 1992, before.., the undersigned, a
in and for said State, personally appeared
and personally known to
.e (or proved to .e on the basis of satisfactory evidence) to be
the Chairaan and Secretary, respectively, of the Redevelopment
Agency of the City of San Bernardino that executed the within
instruaent on behalf of said Agency and acknowledged to as that
said instruaent was authorized to be executed pursuant. to . a duly
adopted resolution of said Agency.
WITNESS lilY hand and official seal.
Signature:
Exhibit "0" ~ Page 8
6'
6>
f)
o
o
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
)
) ss
)
on , 1992, before ae, the undersigned, a
Notary Public in and for said State, personally appeared
personally known to ae (or proved to ae on
the basis of satisfactory evidence) to be the the person who
executed the within instrwaent on behalf of Ballo , Green, a
Professional Corporation, and acknowledged to .. that he executed
said instruaent.
WITNESS ay hand and official seal.
Signature:
Exhibit "D" - Page 9
OJ
.PJJ
V'
8
o
o
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
on , 1992, before .e, the unelersigned, a
Notary Public in anel for saiel State, personally appeareel B. Gilbert
Lara, Jr. personally known to .. (or proved to .. on the basis of
satisfactory evielence) to be the Presielent of the General Partner
that executed the within ins1:rUllent on behalf of Main Street Inn,
a California L!.ited Partnership.
WITNESS .y hanel anel official seal.
Signature:
Exhibit "D" - Page 10
o
o
EXHIBIT "E"
a
SCHEDULE OF PERFORMANCE
(Days shall be calendar days, and all dates herein are
subject to chanqa due to force III&jeure in accordance with
Section 6.05 of the Aqreement)
6'
... "J
a
Exhibit "E" - paqe 1
0 0
Ii: li!lllilllllil~illl II !1I11.~i!; .. i I~ I
Ii 101
; ii 11,1111111' II hi Ilaiil :1 ~
8 II -. i. .
I" I~ I
i II~ &:11 i II =1111115~ ,:
. ._a... .1 hI" f' i I
! I: ii
! Ii ' . ~
.
. wi! .
........ .. w
~~~~=~~s=...~~~~.~= ~!llr~~:!st.i :! 5. .
.
!ill
1111""11111111111 .. IIIIIIIIIL l :1
..
.. "s'
.. .. w
.. lLU . ~.
.. . ..II
.. . ..
.. . w
.. . :.
.. .
.. . ...
.. ...... . w"
.. _"'''I"''' . :.
.. ........... .
.. ...... .. ..
.. "''''"I'" ~
.. ......... :1
.. ..."'....
... """""" ..
... ... .. w
.. ..w :5
.. ..... ..
... .. . ..
. .. . . 0
.. .. . . -,
.... .... . . ...
.. .. . . ..
.. .. . . 0
.. .. .. :.
. .. ... .
. .. .. .. ..
.. .... ..
.... .. =e
6\ ... ..
.. ... ..
" . .. 0
,
.. ... :1
. ...
.. ..
. .. w
. ... :e
. ..
. .... ..
. .. ..
. .. 41
. .. ..-
.. ..
. ... 0
. .. :1
. ..
. ... ..
. .. ..
.... :. "
. ...
. .... .. I
. .. ..
. .. :.
. ..
.. .. "a
. .. ..
. .... -1I
. .. ...
. . .. 00
..... .. ..
...... .. :1
.. IIC.... ..
. ....JIll.. .... ..
....."'. .. w
-"I... ... :5
....-- ..
M........ .... ..
....... .... w
. "'...,.. ... -,
..... .. ...
........ .. W
WW/IIIMM .... ..
""KIC""" .. :::k
.. ..
.. .. ..
.. .. ..
. .. :~
. ..
f) .. .. ..
.... ... 0
........ .. :1
........ ..
........ .. 00
I iillll .. ..
.. -.
.. ...
... :.
...
6)
C)
CJ
o
o
EXHIBIT "F"
When Recorded, Mail to:
REDEVELOPMEMT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "B" street, Third Floor
San Bernardino, california 92401
CERTIFICATB OF COMPLETION
The undersigned, as
Redevelopment Agency of the City of
hereby certifies as follows:
By its Resolution No. , adopted and approved
, 199_, the Agency has resolved as follows:
Executive Director of the
San Bernardino (the "Agency")
Section 1. The improvements required to be constructed
in accordance with that certain Disposition and Development
Agreement (the "Agreement") dated , by and between
the Agency and Main Street Inn, a California Limited Partnership,
(the "Developer") on that certain real property (the "Property")
more fully described in Exhibit "A" attached hereto and
incorporated herein by this reference, have been completed in
accordance with the provisions of said Agreement.
Section 2. This Certificate of Completion shall
constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to
the Obligations of the Developer, and its successors and assigns,
to construct and develop the improvements on the Property,
excluding any normal and customary tenant improvements and minor
building "punch-list" items, and including any and all buildings
and any and all parking, landscaping and related improvements
necessary to support or which meet the requirements applicable to
the building and its use and occupancy on the Property, whether or
not said illprovements are on the Property or on other property
subject to the Agreement, all as described in the Agreement, and to
otherwise cOllply with the Developer's obligations under the
Agreement with respect 1;.0 the Property and the dates for the
beginning and completion of construction of improvements thereon
under the Agreement; provided, however, that the Agency may enforce
any covenant surviving this Certificate of Completion in accordance
with the terma and conditions of the Agreement and the grant deed
pursuant to which the Property was conveyed under the Agreement.
Said Agreeaent is an official record of the Agency and a copy of
said Agreement may be inspected in the office of the Secretary of
the Redevelopment Agency of the city of San Bernardino located at
the City Hall Annex, 201 North "E" Street, Third Floor, San
Bernardino, california 92401, during regular business hours.
Exhibit "F" - Page 1
6',:
6>
o
o
o
Section 3. The Property to which this Certificate of
Completion pertains is more fully described in Exhibit -A- attached
hereto.
DATED AND ISSUED this
day of
, 199_,
Executive Director of the
Redevelopment Agency
of the city of, San Bernardino
Exhibit -F- - page 2
o
o
EXHIBIT MAM TO CERTIFICATE OF COMPLETION
e
6"\
l
8'"
\
LEGAL DESCRIPTION
Exhibit MFM - Page 3
6:-
6;)
a
o
o
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
)
) ss
)
On , 1992, before me, the unelersigned, a
Notary Public 1n anel for saiel State, personally appeared
personally known to.. (or proved to .e on
the basis of satisfactory evielence) to be the Executive Director of
the Reelevelopllent Agency of the City of San Bernarelino that
executed the within instrument on behalf of saiel Agency and
acknowleelgecl. to .e that saiel instrument was author1zecl to be
executeel pursuant to a eluly aeloptecl resolution of saiel Agency.
WITNESS .y hand anel official seal.
Signature:
Exhibit "F" - Page 4
a
61
B
o
o
EXHIBIT "G"
When Recorded, Mail to:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Third Floor
San Bernardino, California 92401
AGREEMENT AND RECIPROCAL EASEMENT
This Agreement is entered into on this day of
, 199_, by and between the Redevelopment Aqency of
the City of San Bernardino, a body corporate and politic (the
"Aqency") and creative Enterprises, a California Limited
Partnership ("creative").
RECITALS
WHEREAS, the Aqency is the owner of certain real property
co_only known as 501 and 533 North "E" Street, City of
San Bernardino, COunty of San Bernardino, State of California,
hereinafter referred to as the "Aqency Property" and more
specifically described as set forth in the attached Exhibit "A"
which is incorporated herein by reference; and
WHEREAS, creative is the owner of certain real property
co_only known as 466, 468 and 474 West Fifth Street, City of
San Bernardino, County of San Bernardino, State of California,
hereinafter referred to as the "creative Property" and more
specifically described in Exhibit "B" attached hereto and
incorporated herein by reference; and
WHEREAS, the Aqency and creative desire to mutually
acquire certain riqhts for parkinq on each other's property;
NOW, THEREFORE, it is agreed as follows:
AGENCY GRANT OF EASEMENT
1. For valuable consideration, the Aqency hereby grants
to Creative in perpetuity an easement in those parkinq areas
desiqnated as Areas "3" and "4" on Exhibit "C" attached hereto and
incorporated herein by reference. This easement is non-eXClusive
and is appurtenant to the Aqency Property. The easement granted in
this paragraph shall hereinafter be referred to as the "creative
Easement. "
2. The creative Easement shall permit the use of Lots 3
and 4 as described in Exhibit "C" hereto by Creative, its tenants,
invitees and successors-in-interest, for parkinq on a 24-hour per
day, 365-day per year basis.
Exhibit "G" - paqe 1
;.:,"!.
v
6)
6>
o
o
CREATIVE' S GRANT OF EASEMENT
3. For valuable consideration, Creative hereby grants
to the Aqency in perpetuity an easement in that parkinq area
desiqnated as Lot 6 on Exhibit .C. attached hereto and incorporated
herein by reference. This easement is non-exclusive and is
appurtenant to the Creative Property. The easement granted in this
paragraph shall bereinafter be referred to as the .creative
Easement.. It is acknowledqed that Creative is the Lessee under a
Lease of that area described in Exhibit .C. attached hereto as
Lot 5. Creative bereby grants to the Aqency the sUle riqbt of
usage of Lot 5 as is granted to creative under the terms of said
Lease.
4. The Aqency Easement shall permit the use of Lots 5
and 6 as described in Exhibit .C. bereto by Aqency, its tenants,
invitee. and successors-in-interest, to parkinq on a 24-bour per
day, 365-day per year basis.
5. Creative bereby covenants that it will undertake to
remodel the buildinq owned by it and identified as No. 2 on
Exhibit .C. attached hereto, in order to effectuate the parkinq
plan which is set forth in said Exhibit .C.. Said remodel shall be
at the sole expense of Creative. This covenant to remodel sball
run with the Creative Property.
MISCF.T.T.Il.W1l'.nml PROVISIONS
6. This instrument contains the entire agreement
between the parties relatinq to the reciprocal riqhts granted
herein and the obliqations therein assUllled. Any oral
representations or modifications concerninq this instrument sball
~ of no force and effect, exceptinq a subsequent modification in
writing, executed by the parties to be charqed herein.
7. In the event of any controversy, claim or dispute
relatinq t6 this instrument or the breach thereof, the prevailinq
party shall be entitled to recover from the losinq party reasonable
expenses, attorneys' fees and costs.
a. This instrument shall be bindinq on and shall enure
to the benefit of the heirs, executor., administrators, successors
and assiqns of the Aqency and Creative.
Exhibit .G. - Paqe 2
.=-~
0'
B
o
.0
Executed on
, California.
~
""-
o
,
199_,
at
APPROVED AS TO FORM:
SABa " GREEN,
A Professional Corporation
By:
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO
By:
By:
Special Aqency Counsel
Chairperson
Secretary
CREATIVE ENTERPRISES,
a California Liaited Partnership
By:
Greqory D. Villanueve,
General Partner
Exhibit "G" - paqe .3
P:-
b'
8
r"-
,
d
o
o
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO
)
) ss
)
On , 1992, betore lIIe, the undersigned, a
Notary Public in and tor said State, personally appeared
and personally known to
lIIe (or proved to lIIe on the basis ot satistactory evidence) to be
the Chairman and Secretary, respectively, ot the Redevelopment
Agency ot the City ot San Bernardino that executed the within
instrument on behalf ot said Agency and acknowledged to .. that
said instrument was authorized to be executed pursuant to a duly
adopted resolution ot said Agency.
WITNESS lilY hand and otticial seal.
Signature:
Exhibit "G" - Page 4
6)
61
e
o
o
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
)
) ss
)
On , 1992, before me, the undersigned, a
Notary Public in and for said State, personally appeared
personally known to me (or proved to me on
the basis of satisfactory evidence) to be the the person who
executed the within instrument on behalf of Sabo , Green, a
Professional Corporation, and acltnowled9ed to me that he executed
said instrument.
WITNESS my hand and official seal.
Signature:
Exhibit "G" - Page 5
,
6.
)
e
6
o
o
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
on , 1992, before me, the undersiqned, a
Notary Public in and for said State, personally appeared B. Gilbert
Lara, Jr. personally known to me (or proved to me on the basis of
satisfactory evidence) to be the President of the General Partner
that executed the within instrument on behalf of Main Street Inn,
a California L1aited Partnersbip.
WITNESS my band and official seal.
Siqnature:
Exhibit "G" - Page 6
"'...
o
e
6.....
..
,6
I
Ii
!i
~:
"
!
~:
ii
EXHIBIT "A"
Exhibit "G" - paqe 7
o
o
12'i.....
(r
e;
C1
EXHIBIT "B"
Exhibit "G" - paqe 8
o
"
o
tiJ!l
0'
61
8
EXHIBIT "e"
Exhibit "G" - Page 9
o
r'\
C
.
0....\
.'.
8
"
..,
o
'tl
o
en
CD
a.
m
5'
o
"
!EB "
fi)
::J
"
=;"
en
-
"
::T
S>>
en
CD
~@!][E@~GI
i~ U i~
..ll. ..ll" If
I I Ii
~
I
i
J i! Ui I
T ri III
! I' r
i f~ f~
I 'I 112
r-
~
g
Q.
i
I
~
i
~
i i
~ f
I
~
M
i
!:.
~
-e- Street
i
01
i
-4
~~~i....
I\)
.1
01
i
. D. Street
o
6;
6....
.
8
EXHIBIT -H"
DESCRIPTION OF PROJECT
Exhibit "H" - Page 1
o
c;
0.:.,.,
.,
.
a
::;,:ZJ;:1t!l~~
o
.
"!
~
S: l
..
o
!!!
8 ~
~
g
oj
61
a
_'~-;-o"';~'-~'):1f~':f%~
o
~
:::r
C/)
::t
I
m
K (j)
~
g:
:J
E'l
6'
6
e
f
"
~
(D
CD
o
3 f
ct:
o
~
.. g
6\
6\
. ':'
6
o
o
::r
c
a
::r
:
~
~ !!J
CD
<
tl ~
o
::s
'.~ .. .., '. .". ". : :: ~'. : .~.
...8.....8.83. .
~ . . .' .. ~.;. .'
. ". ,
..;.."...........:..
0)
^)
v'
6
L
o
"
0"
o
o~
i
r
+
.
Cft_
[
I
)
..I;
, <
......(1)
... -
! C
lir
..(0
~
. i i'
If'-
~i
" ..
:u:
i:
!l ..
g.iil
CD g
~~
~
..
lI'
c
aH.QS .0.
e
i
..
5
;I
o
C\/
~~~7~
6;
J8EUlS .3.
J ~ ~ ~ ~ ~ ~
I ! I I I !
! " ;
1 i I II i .f
I ~j i i
Q)
....I I. il i "'
j 1 1
II EI ~ ~i
I ~II "'! Z zlfz'
t ~r ~ ~ I ~f
I EJ~~~I@~
OJ
,..,
I
~
CD
(/)
tU
.c
a.
~
u:
c:
tU
C:'EDJ
~
o
o
in
"tJ
CD
(/)
o
Co
e
a.
6)
61
8
~
If ~
"
I~ ~
o
o
Church Street
"Tl
=;"
(J)
-
Fifth Street
~
~"l
O'
8_)
. ..,
;
I
I
I
8
f(l
" ~ (')
00-
I 0: ::J
llD.
:!l
llO
~
o
..
"
..
..
..
..
>
>
>
..
>
>
>
ID
..
>
>
>
>
..
..
..
m
o
o
..
e
6:
6)
o
=J
::;"
Co
~
!l ~
"
Ie ~
~
6)
8
6'
c:
~
::T
~
o
.,
f~ "
9E9 ~
II
o
:1
..
..
..
>
>
>
..
>
>
>
..
>
>
>
>
>
>
>
>
>
>
>
>
>
..
..
..
0) .
I
Ci) I
I
a I I
I . I
I
co I
(I)
IS I I
." J
~ J
I I
!~ I
I
I
I
J
I
I
I
I
I
6 I
j
..
it
6)
o
I
6'
6
6
~ ~)>
.......
N' 01 -rt
7-fIJ 0-
Q:""'O
. .,
J!
l>>
:J
o
o
10'-eH
~
;::;:
.....
..... ".
.. ::". :":-":.>::~..';'.:::.:'.
-
CIl
~
",
Pi
o
c'
C'
8..~\
., j
C
::3
-.
-
10'-8n
I
i
:: I\) 0
-,... -n
.. 0 ..:J
1-0 0
~:--O
.,
"
f>>
::3
II>
-
~
6)
6'
e
o
12--8'"
~
::t:
::: I\) m
~(.o)
.- 0 "TI
~cn 0"
,:-0.0
.,
"tJ
li)
:::J
-4
.
'"
~