HomeMy WebLinkAboutR45-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM:
Maggie Pacheco, Director SUBJECT:
Housing and Community Development
August 14,2001 C n,' ~ lil':~L
PROGRESS REPORT ON CYPRESS INN
MOBILE HOME PARK AND REQUEST
TO PROVIDE FINANCIAL
ASSISTANCE - NORTHWEST
REDEVELOPMENT PROJECT AREA
DATE:
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SvnoDsis of Previous Commission/Council/Committee Action(s):
On July 26, 2001, the Redevelopment Committee recommended that this item be sent to the
Community Development Commission for approval.
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Recommended Motion(s):
(Community DeveIoDment Commission)
MOTION:
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
AUTHORIZING AND APPROVING A $75,000 HOUSING LOAN PER THE
TERMS OF THE PROMISSORY NOTE TO WAYNE L. & DOLORES
BROWNING, GARY F. & JANET SCHONES AND DAVID P. & PEGGY
LANSING, THE "JOINT OWNERS" OF THE CYPRESS INN MOBILE HOME
PARK LOCATED AT 2057 MT. VERNON AVENUE - NORTHWEST
REDEVELOPMENT PROJECT AREA.
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Contact Person(s): Gary Van OsdellMaggie Pacheco
Project Area(s) Northwest Project Area
Phone:
663-1044
Six (6)
Ward(s):
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) It! Map(s) 0 LetterlMemo
FUNDING REQUIREMENTS Amount: $ 75,000
Source:
Agency Housing Funds
SIGNATURE:
~
Maggie Pac eco, Director
Housing and Community Development
-co;nmission/Councii-Notes:-------------------------------------------------------------------------------------
'7""1:'" ccrIZeDl-35
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_________~___________________________...______________._______________.._________________......_________________________.w.___________________
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COMMISSION MEETING AGENDA
Meeting Date: 08/20/2001
Agenda Item Number: .J1tJ5
IMPORTANT NOTE-
Resolution CDC/2001-33 is null and
void because it was not executed
within the time specified.
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
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Prol!ress Report On Cypress Inn Mobile Home Park And Reauest To Provide Financial
Assistance - Northwest Redevelopment Proiect Area
BACKGROUND
On or about December 2000, approximately 25 households were evacuated from the Cypress
Mobile Home Park ("Park") due to health, safety, and fire hazard conditions in the Park. At the
time that this evacuation occurred, the then current owner was in the process of selling the Park
to Mr. & Mrs. Wayne Browning, Mr. & Mrs. Gary Schones, and Mr. & Mrs. David Lansing, all
as partners (the "Buyers").
On January 25, 2001, Mr. Wayne Browning, one of the Buyers of the Park appeared before the
Redevelopment Committee to inform the Committee that he and his partners were planning to
purchase and renovate the Park, but had many challenges and obstacles to overcome. At that
time, given the condition of the Park, Mr. Browning requested Agency financial assistance in
helping him achieve the partnership's preservation objectives through the use of Agency
resources to buy and move new mobile home units to the Park and making them available to low
and moderate income qualified homebuyers. At that time the Committee advised Mr. Browning
that while the Committee was not currently prepared to recommend approval of any Agency
assistance, they might consider such assistance at a later date or upon the Buyers being able to
successfully demonstrate significant commitment and improvement to the Park.
CURRENT ISSUE
On February 27, 2001, the Buyers consummated the purchase of the Park for a total purchase
price of $260,000. Since the purchase, the Buyers have been diligently working with City
Building and Fire Departments to insure that all of the Park infrastructure deficiencies and
hazards have been mitigated. The Buyers have also removed at least 25 abandon mobile units,
reconfigured the streets to accommodate the fire street width requirements, and have begun to
move newer mobile home units on to the Park. The Buyers estimate, that when the project is
completed, they will have invested $596,000 in improvements to the Park. These improvements
consists of curbs, gutters, streets, fire system, landscaping, fencing, electrical, gas, water, etc.
Please refer to the attached Budget. According to the Buyers resume, the partners have over 29
years of experience in real estate in both mobile home parks and apartments and have
accomplished similar transactions. They have purchased mobile homes within the City of Carson
and Hemet. See Attached Resume.
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GVO:MPlag:08-20-0 1 Cypress
COMMISSION MEETING AGENDA
Meeting Date: 08/20/2001
Agenda Item Number: l!I.S-
Economic Development Agency Staff Report
Cypress Inn Mobile Home Park
August 8,2001
Page Number -2-
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The Buyers have exhausted their ability to access private resources and have continuously kept
in contact with Staff to keep us apprised of their efforts, and have made tremendous progress in
their commitment to restore the Park. Now that the Buyers have demonstrated performance,
they have, again approached the Agency seeking assistance to help accomplish their efforts to
clean up the park and make it a nicer livable community for existing and new residents. The
Buyers are particularly interested in accessing Agency resources to buy quality mobile home
units to move onto the Park and making the units available to those existing tenants that must
move from their units due to un-repairable conditions, and resources to offset the cost for the
upgrades to the infrastructure items noted above.
Accordingly, Staff and Buyers have held discussions about the prospect of the Agency loaning
the Buyers a housing loan in the sum of $75,000. It is proposed that the Agency loan the Buyers
this $75,000 at 3%, deferred monthly payment for two (2) years, fully repaid in seven (7) years.
The amortized payment would be approximately $1348 per month. The loan proceeds would
be disbursed to the Buyers based upon certain milestones being achieved which are built into a
Loan Agreement between the Agency and the Buyers. As security for the loan the Agency
would hold a first deed of trust on the Park. Presently the Park is owned free and clear of all
liens.
ENVIRONMENTAL
All Environmental impacts have been addressed and mitigated by City Building and Planning
Divisions at the time the renovation plans were approved.
FISCAL IMPACT
Approval of this item would obligate $75,000 from the Agency's Housing Fund. The rate of the
loan is 3%, deferred monthly payments for two years, with a maturity due date of seven (7) years
from the date the loan is made. The monthly payment due to the Agency is approximately $1348
per month.
Moreover, when the improvements to the Park are completed the Park will be reassessed and a
new assessed valuation will be established which could potentially increase the value of the Park.
Any increase in the base will go to the Agency via tax increment collected within the Northwest
Project Area.
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GVO:MPlag:08-20-0 1 Cypress
COMMISSION MEETING AGENDA
Meeting Date: 08/20/2001
Agenda Item Number, Ill/S'
.
Economic Development Agency Staff Report
Cypress Inn Mobile Home Park
August 8, 2001
Page Number -3-
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RECOMMENDATIONS
Development Commission adopt the attached Resolution.
0fu
Maggie Pacheco, Director
Housing and Community Development
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GVO:MPlag:08-20-01 Cypress
COMMISSION MEETING AGENDA
Meeting Date: 08/20/2001
Agenda Item Number: MS
.
Jul 23 01 07:53a
MLS EQUIPMENT
714 556 0146
p.2
(:
Restoration Budget for Cypress Inn MPH
New electrical, gas, water, phone, sewer, cable $7,000 per space $350,000
New asphalt roads
40,000
New Curb and Gutter-
---- 10,000
Street Lights
16,000
Fire System
--------------- 30,000
Landscaping
--15000
,
Wall in Front ---
----------------------- 12 000
,
Concrete Driveways-----------------
----- 65,000
Fences and Gates-------------------------------------- 10000
,
,- Move onsite Coaches to new space-------------------- 36,000
'-
Clear and Grub existing concrete and trees---c-------
-- 12000
,
TOTAL
$596,000
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.
JAN-03-01 10:00 From:SB CITY ATTORNEY
WAYNE BROWNING Fax:949-515-9936
9093B45Z3B
Dee 2B '00
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T-913 POZ
23:00 P.02
Job-Z05
Mas-a)! :a.'", ~gQ,"
TO whom i~ ~y concern:
The following is'. brief history of my co
experience and M , . Equip..n~ Xnc.. I.tar
mobile home park tield in 1963 with Aliama
AljilJlAC wall at the time ~e llU"qeet und_
contractor in Calif for mobile home parks.
And bein9 pTollote4 to' superintendent, I 1e
went to work for Village construotion, whe
their =opile home park division. SamB of
Palm nesert Gre.ns 1700 apace sub clivi.ion
sunnyvale Estates 444 spaces in Sunnyvale.
27 llIobile hoae pa;~s.
In 1973 I etar~ed Gary Schono. construct on Inc. I
installed the undor9round u~ilitles in ove 100:.obile
ho.. parkA ranqi~q ~n &iEe from just . fev sDace. to 456
Bpaces in Southern and Northern calif., Ar zena. and
Mavada. At tilllas I haa over 75 employeBs a d 20 p1.ecoo of
equipment working.
5tr~ction
-.cl it' tbe
of Calif..
uJId.utility
t~ 5 yrll.
Al ape and
I tarted
e prtj scts vere
in P I'll De.eT'!:.
In a 1 I built
.~./
As the mobile homa park construction B1 the
need to re~uild scme of the older parks be
nece6si~y. ~ein9 5 aeneral ~giftee~in9 Con aot:~~, I began
to redea19" the Sever, Water, Gas and Elec r!ca~ systems
for 8xiat:l.n9 ~rks. Most or IIY worle invol1J C1 thl! parks I
had built 20 years earlier war-kin; with ~ original owner
or the nanage.en~ companies that have take the.. parks
over. In 1989 1 beqan to contract: .. M , S ~quLpaent: Inc.,
with all the .qui~ent neoassary to constr ct o~ rebuild a
mobile bome park. Therefore I am not dap ent pn cutaiaB
people that ao not understand the interwar in;.: of a
moDilB home parkS.
% hava included ~ list: of projects complat in the past.
If yo~ need snv more informatj.on please 1e me know.
1~cer
"Garl'.' chenes
M ~s ~qu1pmen~ Xn~.
,;
Li
'"~< <.. ..."...m ~lld. . COlta /II.... c.;;ft>I'7IVl916:26 J.J~ No. 576370
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. JAN-03-01 10:00 FraM:SB CITY ATTORNEY
WAYNE BROWNING Fax:949-515-9936
9093845238 T-913 P.03/12 Jab-205
Dee ~g '00 23:01 P.C3
. I
Resume
Wayne Browning was an engineer for Hughes Aircraft rior to his career in real
estate rental property. .
He has 29 years experience in real estate in both mobile home parks and
apartments. He co-owns and overlie,,!! six parka and aPFtmcnts in Southern
California. His real estate experience includes man emet'rt. development and
rehabilitatlon of propertles. The rehab experience beg with a 92 unit apartment
cOMplex in San Diego which received an award fro the I San Diego Housing
Commission. He has also overseen a $750,000. rehQb of a 192 space
mobilehome park In the city of Carson and a $250,00 . rehIW of a mobilehome
park in Hemet. In Lancaster he was responsible for a $600l000 expansion of an
existing park.
He holds a Masters of Science in Mechanical Engine ring t'rom California State
University, Long Beach, 196B; a Masters of Science in CI iI Engineering from
CSULB 1970;. and a Bachelor of Science in Macha ieal ngineering from the
University of Texas, 1961. He is licensed in Mec anical Engineering and
affiliated witl'! Sigml! Xi.
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JAN-03-01 10:00 Fram:SB CITY ATTORNEY
WAVNE BROWNING Fax:949-S15-9936
9D93845Z38 T-913 P.04/1Z Job-ZD5
Dee 29 '00 23:02 P.04
, I
Mobile Home Parks Owned and Managed by ayne Brownin~:
Imperial Carson Estates (192 spaces), 21111 Dolores, Carsqn, CA.
Cajon Mobile Manor (55 spaces), 751 Bradley, EI Ca on, CA.
Royal Trailer Park (3D spaces), 1409 Redlands Blvd., Redl~nds, CA.
Blue Skies MHP (101 spaces), 1717 E. Avenue I,
astei. CA.
Western Village (72 spaces), 19513 Magnolia, Rivers (Je, GA.
Cozy Trailer Park (35 spaces), 210 West Kimball Av , Hexnet, CA.
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REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
2001 HOUSING LOAN AGREEMENT
CYPRESS INN MOBILE HOME PARK
THIS 2001 HOUSING LOAN AGREEMENT (the "Agreement") is
dated as of August 20, 2001 by and between Wayne L. Browning,
Dolores Browning, Gary F. Schones, Janet Schones, David P. Lansing,
and Peggy Lansing, (the "Borrower") and the Redevelopment Agency of
the City of San Bernardino (the "Agency") and is made and executed
in light of the factors set forth in the following Recitals:
- RECITALS -
1. Borrower has requested the Agency provide a loan in
a total principal amount not to exceed the sum of Seventy Five
Thousand Dollars ($75,000.00) in support of the mobilehome park
affordable rental housing operations program of the Borrower which
will support and implement the Agency's Housing Goals for the
Northwest Redevelopment Project Area (the "Project Area") .
2. The Agency is willing to lend such an amount to
Borrower under the terms and conditions specified in this Agreement
and in the Related Documents.
3. Borrower understands and agrees that: (A) in
granting the loan as set forth in this Agreement, the Agency is
relying upon Borrowers's representations, warranties, and agreements
as provided below, and (B) such loan of the Agency shall be and
remain subject to the terms and conditions of this Agreement.
THE BORROWER AND THE AGENCY HEREBY AGREE AS FOLLOWS:
Section 1.
EFFECTIVE DATE AND TERM.
This Agreement shall be dated as of August ,2001, and
shall be effective as of the specific date provided in Section
13(18), below, and shall continue thereafter until the indebtedness
of the Borrower to the Agency has been paid in full, and the
parties terminate this Agreement in writing.
Section 2.
DEFINITIONS.
In addition to the usage of the defined terms set forth
in the caption and recitals of this Agreement, the following words
shall have the following meanings when used in this Agreement. All
references to dollar amounts shall mean amounts in lawful money of
the United States of America.
SB2001:1779.1
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Project. The words "Project" mean and refer to 2057 Mount
Vernon Avenue, City of San Bernardino Cypress Inn Mobile Home
Park within the Northwest Redevelopment Project Area which are
subject to the terms and provisions of this Loan Agreement.
The word "Project" does not include any item of personal
property or manufactured homes (mobilehomes) which may be
situated now, or hereafter be situated in the Project and
which is owned by a third party, including the Manager.
. Advance. The word "Advance" refers to a disbursement by the
Agency of the proceeds of the Loan to the Borrower. The
Agency shall make Advances to the Borrower from time-to-time
upon submission by the Borrower to the Agency.
. Agreement. The word "Agreement" means this Housing Loan
Agreement, together with all exhibits and schedules attached
to this Agreement from time to time.
. Borrower. The word "Borrower" means Wayne L. Browning, Dolores
Browning, Gary F. Schones, Janet Schones, David P. Lansing,
and Peggy Lansing, and each and every entity signing the
Promissory Note, jointly and severally (herein collectively
referred to as the "Borrower") .
.
Budget. The word "Budget" means and refers to the Program
Budget and Expense Schedule prepared by the Borrower and
attached to this Agreement as Exhibit "AU and "B".
. Collateral. The word "Collateral" means and includes without
limitation all property and assets granted as collateral
security for the Loan, whether real or personal property,
whether granted directly or indirectly, whether granted now or
in the future, and whether granted in the form of a security
interest, mortgage, deed of trust, assignment, pledge, chattel
mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust received, lien, charge, lien or title
retention contract, lease or consignment intended as a
security device, or any other security or lien interest
whatsoever whether created by law, contract, or otherwise.
. Collateral Documents. The words "Collateral Documents" mean
and refer to each of the following: (i) the Deed of Trust;
(ii) the Collateral Assignment of Leases and Rents and (iii)
the Regulatory Agreement, and any substitute collateral for
the Loan which the Agency may hereafter accept under the
provisions of Section 12.
5B2001:1779.1
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Environmental Conditions. The words "Hazardous Substance,"
mean (1) any chemical, compound, material, mixture or
substance that is now or hereafter defined or listed in, or
otherwise classified pursuant to, any Environmental Laws
(defined below) as a "hazardous substance," "hazardous
material," "hazardous waste," "extremely hazardous waste,"
"infectious waste," "toxic substance," "toxic pollutant" or any
other formulation intended to define, list or classify
substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity,
toxicity, reproductive toxicity or "EP toxicity" and (2) any
petroleum product, natural gas, natural gas liquids, liquified
natural gas and synthetic gas usable for fuel (or mixtures of
natural gas such as synthetic gas) which is not stored in a
motor vehicle for use in the regular course of operation of
such motor vehicle; and the words "Hazardous Waste" mean any
Hazardous Substance which has been released as waste on or at
the Property or which has been disposed of, burned or
incinerated, accumulated, stored, treated, recycled on or at
the Property; and the words "Environmental Laws" as used herein
mean any and all present and future federal, state and local
laws (whether under common law, statute, rule, regulation or
otherwise), requirements of permits issued with respect
thereto, and other requirements of governmental authorities
relating to the environmental regulation of any Hazardous
Substance or Hazardous Waste (including, without limitation,
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. Sections 9601, et seq.)
("CERCLA") and the applicable provisions of the California
Health and Safety Code and the California Water Code, all as
heretofore or hereafter amended from time to time).
.
Event of Default. The words "Event of Default" mean
include without limitation any of the Events of Default
forth below in Section 9, titled "Events of Defaults."
and
set
. Improvements. The word "Improvements" means and includes
without limitation all existing structures, facilities,
fixtures, additions and similar construction on the Mobilehome
Park Property which are owned by the Borrower. The word
"Improvements" does not include any manufactured home or other
personal property owned by a third party or the Manager in the
Mobilehome Park Property.
.
Indebtedness. The word "Indebtedness" means and
Promissory Note described in Section 3 and
disbursed by the Agency under the Loan.
includes the
all amounts
882001:1779.1
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Loan. The word "Loan" means the loan to be made to Borrower
by the Agency under this Agreement and the Related Documents
as described below in a maximum principal amount not to exceed
Five Hundred Fifty Thousand Dollars ($550,000.00).
. Mobilehome Park Property. The word "Mobilehome Park
Property" means the mobilehome park property identified in
Exhibi t "A", (also known as "Cypress Inn Mobilehome Park")
together with all Improvements, all equipment, fixtures and
other articles of personal property owned or hereafter
acquired by the Borrower and attached or affixed to the any of
the Mobilehome Park Property, together with all accessions,
parts, and additions to, all replacements of, and all
substi tutions for any of such property, and all proceeds
(including insurance proceeds and refunds of premiums) from
any sale, casualty loss, condemnation or other disposition of
such property. The Mobilehome Park Property do not include
any items of personal property or manufactured homes
(mobilehomes) which may be situated now or hereafter in the
Mobilehome Park Properties which is owned by a third party,
including the Manager.
.
Promissory Note. The words "Promissory Note" mean the
promissory note, described below in Section 3, in an original
principal amount not to exceed the sum of $75,000.00, together
with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the
Promissory Note. The form of the Promissory Note is attached
as Exhibi t "D".
. Regulatory Agreement. The words "Regulatory Agreement" mean
and refer to the Affordable Regulatory Agreement by and
between the Borrower and the Agency. The Regulatory Agreement
evidences the covenant of the Borrower to provide certain
affordable housing units in the Mobilehome Park Property
available to persons and households of low- and moderate-
income for the longest feasible period as required by the
California Redevelopment Law. The form of the Regulatory
Agreement is attached to this Agreement as Exhibit "F".
. Related Documents. The words "Related Documents" mean and
include without limitation all other instruments, agreements
and documents, whether now or hereafter existing, executed in
connection with the Indebtedness.
. Title Company. The words "Title Company" mean and refer to a
title insurance company escrow department designated by the
Agency which shall serve as the loan escrow accommodation
agent of the parties for the exchange and recordation of the
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various Collateral Documents and the disbursement of the
proceeds of the initial Advance of Loan to the Borrower under
as set forth in Section 5(b).
Section 3.
LOAN.
(a) The Loan shall be in a principal amount not to
exceed the sum of Seventy Five Thousand Dollars ($75,000.00), and
the Loan, or so much of the Loan as may be disbursed to the
Borrower, shall be evidenced by the Promissory Note in the form
attached hereto as Exhibit "D". The date of the Promissory Note
shall be the date on which the Agency makes the initial Advance of
proceeds under the Loan to the Borrower as provided in Section
5(b). The Promissory Note shall be secured by the Deed of Trust in
the form attached as Exhibit "E", pursuant to which the Borrower
grants to the Agency a senior lien in the Mobilehome Park Property.
(b) Commencing on August 20, 2001, or upon the date of
the initial advance, interest shall accrue on the outstanding
balance of the Loan at a rate per annum of three percent (3%) until
the Loan in repaid in full.
(c) The outstanding principal balance of the Loan, and
all accrued and unpaid interest shall mature and be due and payable
within seven (7) years from the date of the initial advance, as
provided for in the Promissory Note.
(d) The Borrower shall use the proceeds of the Loan
solely for the purposes of making physical Improvements and
repairs, or purchase of mobile home units to be placed on the
Mobile Home Park Property:
Specifically, the Borrower shall make the improvements to
the Mobile Home Park Property described on Exhibit "B".
Section 4.
GENERAL REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to the Agency, as of the
date of this Agreement and the date of the Promissory Note and at
all times that any balance of the Loan is outstanding:
(1) Organization. Borrower is qualified to do business in
the State and has obtained a City Business License.
(2) Financial Information. Each financial statement of
Borrower supplied to the Agency truly and completely disclosed
Borrower's financial condition as of the date of the
statement, and there has been no material adverse change in
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Borrower's financial condition subsequent to the date of the
most recent financial statement supplied to the Agency.
Borrower has no material contingent obligations except as
disclosed in such financial statements.
(3) Environmental Conditions. The Borrower has conducted
a due and diligent inquiry of the environmental condition of
the Mobilehome Park Property relating to the potential
presence of Hazardous Waste and the use thereon of Hazardous
Substances and based upon such inquiry the Borrower represent
to the Agency that as of the date of the Promissory Note, the
Borrower is unaware of any adverse environmental conditions
relating to the presence or potential presence of Hazardous
Substances.
(4) Litigation and Claims. No litigation, claim,
investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Borrower is pending
or threatened and no other event has occurred which may
materially adversely affect Borrower's financial condition of
the Mobilehome Park Property, other than litigation, claims,
or other events, if any, that have been disclosed to and
acknowledged by the Agency in writing.
(5) Title to Property. Borrower has on the date of the
Promissory Note good and marketable title to the Mobilehome
Park Property free and clear of all defects, liens, and
encumbrances, excepting only liens for taxes, assessment, or
governmental charges or levies not yet delinquent or payable
without penalty or interest and such liens and encumbrances as
may be approved in writing by the Agency prior to the date of
the initial Advance.
(6) Budget. The information set forth in the Budget
generally describes the proposed housing improvements and
activities to be undertaken by the Borrower in the Mobilehome
Park Property during the period of time when the Borrower may
submit applications for disbursements of Advances under
Section 5(b) to the Agency. The Borrower shall not materially
alter or modify the programs set forth in the Budget without
consent of the Agency.
(7) Borrower Reasonably Believes That Surplus Cash Shall Be
Available to Pay Installments of Principal and Interest Under
the Promissory Note. The Borrower presently believes based
upon due and diligent inquiry that Cash will be available to
the Borrower to make payments of principal and interest to the
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Agency when due under the Loan beginning as of the second
(2nd)anniversary following the date of the Promissory Note.
(8) Survival of Representation and Warranties. Borrower
understands and agrees that the Agency is relying upon the
above representations and warranties in extending the Loan to
Borrower. Borrower further agrees that the foregoing
representations and warranties shall be continuing in nature
and shall remain in full force and effect until such time as
the Loan and Promissory Note shall be paid in full, or until
the Agreement is terminated, whichever is the last to occur.
Section 5. CONDITIONS PRECEDENT TO THE LOAN AND
DISBURSEMENT OF ADVANCES.
(a) The proceeds of the Loan shall be disbursed to the
Borrower as Advances. The aggregate amount of all Advances under
Section 5(b) shall not exceed the sum of $75,000.00. No Advance
under Section 5(b) shall be made by the Agency to the Borrower
after March 31, 2002. No Advance under Section 5(c) shall be made
by the Agency to the Borrower after December 31, 2002. The Agency's
obligation to make the Loan and provide any Advance under either
Section 5(b) of Section 5(c) shall be subject to the fulfillment to
satisfaction of all of the conditions set forth in this Agreement:
(1) Title Insurance. Borrower shall have provided to the
Agency an ALTA lender's extended coverage policy of title
insurance with such endorsement as the Agency may require,
issued by a title insurance company acceptable to the Agency
and in a form, amount, and content satisfactory to the
Executive Director of the Agency insuring or agreeing to
insure that the Agency's Deed of Trust on the Mobilehome Park
Property is or will be upon recordation a valid lien on the
Mobilehome Park Property free and clear of all defects, liens,
encumbrances, and exceptions except as to those security lien
obligations approved by the Executive director of the Agency
in writing.
(2) Insurance. Unless waived by the Agency in writing,
Borrower shall have delivered to the Agency the insurance
policies or evidence thereof as described in the Deed of
Trust.
(3) Lack of Default. There shall not exist on the date of
the Promissory Note and the initial Advance under the Loan (or
on the date of any subsequent Advance under the Loan) a
condition which would constitute an Event of Default under
this Agreement.
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(b) The Agency shall disburse in the aggregate, an
amount not to exceed $75,000.00 of the proceeds of the Loan to the
Borrower in four (4) separate Advances as provided in this Section
5(b). The amounts of each such Advance are as follows:
Advance No. 1
Advance No. 2
Advance No. 3
Advance No.4
Total of all Advances
under Section 5(b):
$18,750
$18,750
$18,750
$18,750
$75,000.00
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Each Advance under this Section 5(b) shall be disbursed
to the Borrower within thirty (30) days following receipt from the
Borrower of a written application for an Advance subj ect to
confirmation by the Executive Director that as of the date of each
of the Borrower's submission of a written application for an
Advance, the Borrower is making satisfactory progress in
accomplishing the improvements and repairs.
(a) The Borrower has submitted a written application to
the Agency requesting an Advance. Each application
shall contain a suitably detailed written
description of the activities described in the
Budget which the Borrower proposes to undertake
promptly upon receipt of the proceeds of the
Advance, and shall also contain a suitably detailed
written summary of the activities as set forth in
the Budget which have been accomplished by the
Borrower since the date of the previous application
for an Advance.
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(b) Within ten (10) days following receipt by the
Agency, the Executive Director shall review the
information contained in each application for an
Advance, and the Executive Director may reduce the
amount of the proceeds of the Loan as scheduled to
be disbursed to the Borrower under any Advance in
Section 5(b), if the Executive Director determines,
that since the time of the prior application, the
Borrower is not making satisfactory progress to
accomplish the tasks set forth in the Budget. The
amount of any such reduction by the Executive
Director shall be based upon the information set
forth in the Budget and the Executive Director's
reasonable estimate of the cost of the various
items, if any, which have not been accomplished by
the Borrower as contemplated in the Budget. Any
amount which the Executive Director may determine
to withhold from a particular Advance, shall be
available for disbursement to the Borrower under a
subsequent application for an Advance after the
Borrower shows, to the reasonable satisfaction of
the Executive Director that the Borrower is in
substantial compliance with the activity schedule
set forth in the Budget.
(c) The discretion of the Executive Director to reduce
the amount of any disbursement of an Advance, as
provided in Section 5(b) (C), shall be in addition
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and cumulative with any right or remedy reserved to
the Agency in the event that the Borrower may be in
default under this Agreement.
(d) Each disbursement of an Advance by the Agency to the
Borrower under Section 5(b) shall be paid by a check or warrant
issued by the Agency for the account of the Borrower.
Section 6.
AFFIRMATIVE COVENANTS.
Borrower covenants and agrees with the Agency that, while
this Agreement is in effect, Borrower will:
(1) Litigation: promptly inform the Agency in writing of
(A) all material adverse changes in Borrower's financial
condition, and (B) all existing and threatened litigation,
claims, investigations, administrative proceedings or similar
actions affecting Borrower which could materially affect the
financial condition of Borrower.
(2) Financial Records: maintain its books and records in
accordance with generally accepted accounting principles,
applied on a consistent basis and permit the Agency to examine
and audit Borrower's books and records at all reasonable
times.
(3) Additional Information: furnish such additional
information and statements, list of assets and liabilities,
agings of recei vables and payables, inventory schedules,
budgets, forecasts, tax returns, and other reports with
respect to Borrower's financial condition and business
operations the Agency may request from time to time.
(4) Compliance With Governmental Requirements: comply with
all laws, ordinances, and regulations, now or hereafter in
effect of governmental authorities applicable to the use or
occupancy of the Mobilehome Park Properties including without
limitation "Environmental Laws" as defined in Section 2, above.
Borrower may contest in good faith any such law, ordinance,
or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Borrower has
notified the Agency in writing prior to doing so and so long
as, in the Agency's sole opinion, the Agency's interests in the
Mobilehome Park Properties are not jeopardized. The Agency
may require Borrower to post adequate security or a surety
bond, reasonably satisfactory to the Agency, to protect the
Agency's interest.
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(5) Loan Proceeds: use the proceeds of the Loan solely for
the purposes set forth in Section 3 and for expenses directly
related to the Loan and the execution and delivery of the
Promissory Note and the Deed of Trust and the Collateral
Documents.
(6) Taxes and Claims: pay and discharge when due all of
Borrower's indebtedness, obligations, and claims that, if
unpaid, might become a lien or charge upon the Mobilehome Park
Properties; provided, however, that Borrower shall not be
required to pay and discharge any such indebtedness,
obligation, or claim so long as (A) its legality shall be
contested in good faith by appropriate proceedings, (B) the
indebtedness, obligation, or claim does not become a lien or
charge upon any of the Mobilehome Park Property, and (C)
Borrower shall have established on its books adequate reserves
with respect to the amount contested in accordance with
generally accepted accounting practices. If the indebtedness,
obligation, or claim does become a lien or charge upon any of
the Mobilehome Park Property, Borrower shall remove the lien
or charge as provided in the preceding paragraph.
(7) Performance: perform and comply with all terms,
conditions, and provisions set forth in this Agreement and in
all other instruments and agreements between Borrower and the
Agency, and in all other loan agreements now or hereafter
existing between Borrower and any other party. Borrower shall
notify the Agency immediately in writing of any default in
connection with any such agreement.
(8) Additional Assurances: make, execute, and deliver to
Lender such security agreements, instruments, documents, and
other agreements reasonably necessary to document and secure
the Loan and to perfect the security interest of the Agency in
any of the Mobilehome Park Properties.
(9) Annual Compliance Reports Regarding Afforbility: submit
affordable housing continuous compliance reports as prepared
and approved by the Agency.
Section 7. NEGATIVE COVENANTS.
Borrower covenants and agrees with the Agency that while
this Agreement is in effect, Borrower shall not, without the prior
written consent of the Agency:
(1) Indebtedness and Liens. Incur or assume indebtedness for
borrowed money, including capital leases, (B) sell, transfer,
mortgage, assign, pledge, lease (except for leases of spaces
in the Mobilehome Park Property to tenants), grant a security
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interest in, or encumber any of Borrower's assets, or (C) sell
wi th recourse any of Borrower's accounts.
(2) Continuity of Operations. (A) engage in any business
activities substantially different than those in which
Borrower is presently engaged, (B) cease operations,
liquidate, ; merge , transfer, acquire or consolidate with any
other entity, change ownership, change its name, dissolve or
transfer or sell Collateral out of the ordinary course of
business, or (C) make any distribution with respect to any
capital account, whether by reduction of capital or otherwise.
(3) Loans, Acquisitions and Guaranties. (A) loan, invest
in or advance money or assets, (B) purchase, create or acquire
any interest in any other enterprise or entity, or (C) incur
any obligation as surety or guarantor other than in the
ordinary course of business.
(4) Liens. Create or allow to be created any other new
lien or charge upon any of the Mobilehome Park Property.
Section 8.
GENERAL LOAN PROVISIONS.
The following provisions relate to the Loan:
(1) General Indemnity. Borrower shall indemnify, defend with
counsel selected by the Agency, protect and hold the Agency,
its officials, officers, employees, agents and successors
harmless from any and all claims asserted against the Agency
or any of the Mobilehome Park Property by any person, entity,
or governmental body, or arising out of or in connection with
any of the Mobilehome Park Property by the Borrower. The
Agency shall be entitled to appear in any action or proceeding
to defend itself against such claims, and all costs incurred
by the Agency in connection with such defense, including
attorneys' fees, shall be paid by Borrower to the Agency. The
Agency shall, in its sole discretion, be entitled to settle or
compromise any asserted claims against it, and such settlement
shall be binding upon Borrower for purposes of the
indemnification under this Section 8(1). All amounts paid by
the Agency under this Section 8(1), if any, shall be secured
by the Deed of Trust payable upon demand, and shall bear
interest at the rate applicable to the Loan.
(2) Special Environmental Indemnity. Borrower shall
indemnify, defend with counsel selected by the Agency, protect
and hold harmless the Agency, its officials, officers,
employees, agents and successors (collectively, "Environmental
Conditions Indemnified Parties" or singularly, "Environmental
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Conditions Indemnified Party") from and against all claims,
actual damages (including without limitation, special and
consequential damages), punitive damages, injuries, costs,
response costs, losses, demands, debts, liens, liabilities,
causes of action, suits, legal and administrative proceedings,
interest, fines, charges, penalties and expenses (including
without limitation (A) attorneys', engineers', consultants' and
expert witness fees and costs incurred in defending against
any of the foregoing or in enforcing this indemnity and (B)
any diminution in the value of the property) of any kind
whatsoever paid, incurred or suffered by any Environmental
Conditions Indemnified Party, or asserted against any of the
property, directly or indirectly arising from or attributable
to (i) any breach by the Borrower of any of its agreements,
representations or warranties set forth in Section 4(5), or
(ii) any repair, cleanup, remediation, detoxification, closure
or preparation and implementation of any plan therefor
undertaken by any Environmental Conditions Indemnified Party
concerning Hazardous Waste on, under or about any of the
Mobilehome Park Property. The foregoing indemnity shall apply
whether acts of any Environmental Conditions Indemnified Party
are undertaken because of proceedings initiated by any
federal, state or other government authority or by any private
persons (s) . The foregoing indemnity is intended by the
parties to be an agreement pursuant to Section 107 (e) of
CERCLA, 42 D.S.C. Section 9607(e) and California Health and
Safety Code Section 25364.
(3) Special Covenant to Give Notice to the Agency. The
Borrower shall promptly give the Agency (i) a copy of any
notice, correspondence or information the Borrower receives
from any federal, state or other government authority
regarding Hazardous Waste on, under or about any of the
Mobilehome Park Property or regarding any actions, instituted,
completed or threatened by any such governmental authority
concerning Hazardous Waste which affects or may affect any of
the Mobilehome Park Property, (ii) written notice of any
knowledge or information the Borrower obtains regarding
Hazardous Waste on, under or about any of the Mobilehome Park
Property or expenses or losses incurred or expected to be
incurred by the Borrower, third party or any government agency
to study, assess, contain or remove any Hazardous Waste on,
under or about the Mobilehome Park Property for which expense
or loss the Borrower may be liable or for which a lien may be
imposed on any of the Mobilehome Park Property, (iii) written
notice of all claims made or threatened by any third party
(other than government authority) against the Borrower or any
of the Mobilehome Park Property relating to damage,
contribution, cost recovery compensation, loss or injury
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resulting from any Hazardous Waste and (iv) written notice of
the Borrower's discovery of any occurrence or condition on any
land adjacent to any of the Mobilehome Park Property that
could cause any of the Mobilehome Park Property to be
classified as "border- zone property" under the provisions of
California Health and Safety Code Sections 25220, et seq., or
any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership,
occupancy, transferability or use of any of the Mobilehome
Park Property under any of the statutes referred to in the
preceding paragraph or any regulation adopted pursuant
thereto.
(4) Actions. The Agency shall have the right to
commence, appear in, or defend any action or proceeding
purporting to affect the rights, duties, or liabilities of the
parties to this Agreement. In connection with this right, the
Agency may incur and pay reasonable costs and expenses,
including, but not limited to, attorneys' fees, for both trial
and appellate proceedings. Borrower covenants to pay to the
Agency on demand all such expenses, together with interest
from the date the Agency may incur the expense at the rate
specified in the Promissory Note.
Section 9.
EVENTS OF DEFAULT.
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(a) Default By Agency. The following shall constitute a
default by the Agency: failure to fund the Loan as provided in
Section 5{b) and Section 5{c) of this Agreement.
(b) Default By Borrower. Each of the following shall
constitute a default by the Borrower:
(i) if applicable, failure by the Borrower to perform
or a delay in performing or a failure to comply
with any term or provision of this Agreement
including the failure to implement the Project, or
a default or breach under the Promissory Note where
such failure or delay or noncompliance is not
corrected within thirty (30) days of notice thereof
by the Agency.
(ii) failure by the Borrower to perform or a delay in
performing or a failure to comply with any term or
provision of the Deed of Trust and such failure or
delay or noncompliance is not corrected within
thirty (30) days of notice thereof by the Agency.
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Section 10.
REMEDIES BY BORROWER OR AGENCY
(a) Remedies of Borrower. Upon a default by the Agency,
(i) the Borrower shall be released from any further obligation
under this Agreement or the Promissory Note and (ii) the Borrower
may seek appropriate legal or equitable relief.
(b) Remedies of Agency. Upon a default by the Borrower,
the Agency may, at its option: (i) declare all sums due under the
Promissory Note immediately due and payable; (ii) institute suit
for the foreclosure of the Deed of Trust or deliver to the trustee
under the Deed of Trust a written declaration of default by
Borrower and of election to cause the Mobilehome Park Property to
be sold, all as provided in the Deed of Trust; (iii) institute any
proceeding at law or in equity to enforce the obligations and
covenants of the Borrower under this Agreement, the Promissory Note
and the Deed of Trust.
(c) In any action brought under this Agreement, the
prevailing party shall be entitled to reimbursement from the other
party of its costs and expenses (including reasonable attorney's
fees) in bringing such action. Additionally, the Agency shall be
entitled to any costs, including reasonable attorney's fees,
incurred in collecting amounts due the Agency under the Promissory
Note.
Section 11.
TERMINATION OF AGREEMENT.
This Agreement shall terminate upon the payment in full
by the Borrower of all amounts due under the Promissory Note accept
as provide for in the Regulatory Agreement.
Section 12. HOUSING AFFORDABILITY COVENANT OF THE
BORROWER AND MISCELLANEOUS PROVISIONS.
The following provisions are a part of this Agreement:
(1) Housing Affordability Covenant. The Agency is using
its low- and moderate-income housing funds to make the
Loan in favor of the Borrower. Accordingly the following
housing affordability covenants are included as part of
the terms and conditions of the Regulatory Agreement and
shall remain in effect on the Mobilehome Park Properties
for a term of fifteen (15)years following the date of the
Promissory Note:
(i) Twenty percent (20%)of the Manufactured Home Spaces
in the Mobilehome Park Property, for a subtotal of
at least ten (10) such Manufactured Home Spaces,
shall at all times be occupied or reserved for
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occupancy by persons who have a household income
which is not more than One Hundred and Twenty
Percent (120%)of median income, adjusted for family
size, as determined by HUD for the San Bernardino-
Riverside PM SA area ("Median Income"); and
(2)
Discrimination Prohibited. The Borrower covenants and
agrees that there shall be no discrimination against or
segregation of any person, or group of persons, an
account of sex, marital status, race, ethnic affiliation,
family status, religion, creed, national origin or
ancestry in the use, operation, occupation, lease,
sublease, transfer or sale of the mobilehome Park
Property, nor shall the Borrower, or the Manager or any
third party related to the Borrower establish or permit
any such practice of discrimination or segregation to
occur on the Mobilehome Park Property in connection with
the selection, location, number or occupancy of residents
on any manufactured home space in the Mobilehome Park
Property. The text of Health and Safety Code Section
33375 which sets forth the general form of non-
discrimination clauses to be included in each lease or
contract entered into by the Borrower with respect to the
Mobilehome Park Property, is hereby incorporated in this
Agreement by this reference.
(3) No Joint Venture. Nothing in this Agreement shall be
construed to constitute the creation of a partnership or
joint venture between the Agency and Borrower. The
Agency is not an agent or representative of Borrower.
This Agreement does not create a contractual relationship
with and shall not be construed to benefit or bind the
Agency in any way with or create any contractual duties
by the Agency to any contractor, subcontractor,
materialman, laborer, or any other person.
(4) Amendment. This Agreement may be amended as deemed
necessary by written instruments duly approved by the
Borrower and the Agency. Any such amendments or
modifications shall be valid, binding and legally
enforceable only if in written form and executed by the
parties hereto and only after the approval thereof by
official action of the Agency; provided however, that the
Executive Director of the Agency in consultation with
legal counsel for the Agency, is authorized to make non-
substantive revisions and changes to the text of any
instrument attached hereto as an exhibit.
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(5) Applicable Law. This Agreement has been delivered to
the Agency and accepted by the Agency in the State of
California. If there is a lawsuit arising under this
Agreement, the Superior Court of San Bernardino County,
State of California shall have jurisdiction. This
Agreement shall be governed by and construed in
accordance with the laws of the State of California.
(6) Authority to File Notices. Borrower appoints and
designates the Agency as its attorney-in-fact to file for
record any notice that the Agency deems necessary to
protect its interest under this Agreement. This power
shall be deemed coupled with an interest and shall be
irrevocable while any sum or performance remains due and
owing under the Promissory Note.
(7) Caption Headings. Caption headings in this Agreement
are for convenience purposes only and are not to be used
to interpret or define the provisions of this Agreement.
(8) Consent to Sale of Loan and Promissory Note by the
Agency. Borrower agrees and consents to the sale or
transfer whether now or later by the Agency of the Loan,
the Promissory Note and the Deed of Trust (or to any
participating interest therein) to a third party.
Borrower further waives all right of offset or
counterclaim that it may have now or later against the
Agency or against any purchaser of the Loan, the
Promissory Note and the Deed of Trust (or a participating
interest therein) and Borrower unconditionally agrees
that either the Agency or such purchaser may enforce
Borrower's obligations hereunder. Borrower further
agrees that such purchaser from the Agency may enforce
its interests irrespective of any personal claim or
defense that Borrower may have against the Agency.
(9) Costs and Expenses. The Agency may pay someone else to
help collect the Loan and to enforce this Agreement, and
Borrower will pay that amount. This includes, subject to
any limits under applicable law, attorneys' fees and
legal expenses of the Agency, whether or not there is a
lawsuit, including reasonable attorneys' fees for
bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and
any anticipated post-judgment collection services.
Borrower also will pay any court costs, in addition to
all other sums provided by law. For the purposes hereof,
the words, "reasonable attorney's fees" in the case of the
Agency means and includes the salaries and benefits
8B2001:1779.1
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payable to the lawyers employed in the office of the City
Attorney of the City of San Bernardino, as allocated on
an hourly basis for any such legal services performed on
behalf of the Agency hereunder.
(10) Entire Agreement. This Agreement and the Related
Documents constitute all of the agreements between the
parties relating to the Loan and supersedes all other
prior or concurrent oral or written agreements or
understandings. The Agency has no obligation to extend
any additional credit to the Borrower for any other
purpose.
(11) Notices. All notices required to be given under this
Agreement shall be given in writing, may be sent by
facsimile, and shall be effective when actually delivered
or when deposited with a nationally recognized overnight
courier or deposited in the United States mail, first
class, postage prepaid, addressed to the party to whom
the notice is to be given at the address shown above.
Any party may change its address for notices under this
Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to
change the party's address. To the extent permitted by
applicable law, if there is more than one Borrower,
notice to any Borrower will constitute notice to all
Borrowers. For notice purposes, Borrower will keep the
Agency informed at all times of Borrower's current
address (es) .
(12) Successors and Assigns. All covenants and agreements
contained by or on behalf of Borrower shall bind its
successors and assigns and shall inure to the benefit of
the Agency, its successors and assigns. Borrower shall
not, however, have the right to assign its rights under
this Agreement or any interest therein, without the prior
written consent of the Agency.
(13) Severability. If a court of competent jurisdiction finds
any provision of this Agreement to be invalid or
unenforceable as to any person or circumstance, such
finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances.
If feasible, any such offending provision shall be deemed
to be modified to be within the limits of enforceability
or validity; however, if the offending provision cannot
be so modified, it shall be stricken and all other
provisions of this Agreement in all other respects shall
remain valid and enforceable.
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(14) Survival. All warranties, representations, and covenants
made by Borrower in this Agreement or in any certificate
or other instrument delivered by Borrower to the Agency
under this Agreement shall be considered to have been
relied upon by the Agency and will survive the making of
the Loan and delivery to the Agency of the Related
Documents, regardless of any investigation made by the
Agency.
(15) Time is of Essence. Time is of the essence in the
performance of this Agreement.
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(16) Waiver. The Agency shall not be deemed to have waived
any rights under this Agreement unless such waiver is
given in writing and signed by the Agency. No delay or
omission on the part of the Agency in exercising any
right shall operate as waiver of such right or any other
right. A waiver by the Agency of a provision of this
Agreement shall not prejudice or constitute a waiver of
the right of the Agency otherwise demand strict
compliance with that provision or any other provision of
this Agreement. No prior waiver by the Agency, nor any
course of dealing between the Agency and Borrower shall
constitute a waiver of any of the rights of the Agency or
of any obligations of Borrower as to any future
transactions. Whenever the consent of the Agency is
required under this Agreement, the granting of such
consent by the Agency in any instance shall not
constitute continuing consent in subsequent instances
where such consent is required, and in all cases, such
consent may be granted or withheld in the sole discretion
of the Agency.
(17) List of Exhibits. Each of the following documents is
attached as an exhibit to the Agreement and each in
incorporated herein by this reference:
Exhibit IjAII - Legal Description of the Mobile Home Park
Property
Exhibit liB" - Project Description and Budget
Exhibit "e" - Promissory Note
Exhibit liD" - Deed of Trust and Assignment of Rents
Exhibit "E" - Regulatory Agreement
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(18) Effective Date of Agreement. This Agreement shall have
no force or effect until it shall have been approved at a
public meeting in the sole and absolute discretion of the
governing board of the Agency. The effective date of
this Agreement shall be either the date of such approval
by the governing board of the Agency or such other date
as may be expressly provided in such approval of the
governing board of the Agency.
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BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS
DATED AS OF August __, 2001, BUT THIS AGREEMENT SHALL BE EFFECTIVE
ON THE DATE SET FORTH IN SECTION 12 (18), ABOVE, WHICH IS
2001.
AGENCY
Redevelopment Agency of
the City of San Bernardino
By:
Judith Valles
Chairperson of the
Community Development
Commission of the City of
San Bernardino, its
governing board
By:
Agency Secretary
Approved As To Form and Content:
Agency Counsel
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BORROWER
By:
Wayne L. Browning
By:
Dolores Browning
By:
Gary F. Schones
By:
Janet Schones
By:
David P. Lansing
By:
Peggy Lansing
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EXHIBIT "A"
Legal Description of the Mobile Home Park
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EXHIBIT "B"
Project Description and Budget
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EXHIBIT "C.
Promissory Note
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Exhibi t "D"
Deed of Trust and Assignment of Rents
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Exhibit "E"
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Regulatory Agreement
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Cypress Inn Mobile Home Park
2057 Mount Vernon Avenue
San Bernardino, CA
PROMISSORY NOTE
PAYABLE TO A PUBLIC AGENCY
Borrower:
Lender:
Wayne L. Browning;
Dolores Browning;
Gary F. Schones;
Janet Schones;
David P. Lansing;
Peggy Lansing;
jointly and severally
Redevelopment Agency of
the City of San Bernardino
201 North "En Street
Suite 301
San Bernardino, California 92401
Principal Amount:
NOT TO EXCEED
$75,000.00
Date of Promissory Note:
, 2001
[TO BE CONFIRMED BY AGENCY AT TIME
OF INITIAL ADVANCE]
Interest Rate: 3%
[Interest Commences to
Accrue on Date of
Promissory Note]
Maturity Date of Promissory Note:
August 20, 2008
[TO BE CONFIRMED BY AGENCY AT TIME
OF INITIAL ADVANCE]
PROMISE TO PAY. Wayne L. Browning, Dolores Browning, Gary F.
Schones, Janet Schones, David P. Lansing and Peggy Lansing and each
of them, jointly and severally (collectively, the "Borrower")
promises to pay to the Redevelopment Agency of the City of San
Bernardino (the "Agency"), or order, in lawful money of the United
States of America, the principal amount of Seventy-Five Thousand
Dollars ($75,000.00), or so much as may be outstanding under this
Promissory Note, together with interest on the unpaid outstanding
principal balance.
INDEBTEDNESS. This Promissory Note evidences the indebtedness of
the Borrower to the Agency under the terms 2001 Housing Loan
Agreement dated as of August __, 2001, (the "Loan Agreement") by
and among the Borrower and the Agency. A copy of the Loan
SB2001:23556.1
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PAYMENT. Borrower will pay this Promissory Note prior to its
maturity, in monthly installments, of $1,347.65, with the first
such installment due on the second (2nd) anniversary following the
date of this Promissory Note (which appears, above), and thereafter
on the first day of each month following such second (2nd)
anniversary until maturity, or paid in full. Each such installment
shall be a level debt amount of principal and interest based upon a
seven (7) year rate of amortization of the balance of outstanding
principal and accrued and unpaid interest on the day immediately
preceding the date when the first scheduled debt service payment is
due.
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INTEREST RATE. Interest shall accrue on the outstanding principal
balance of this Promissory Note commencing on its date, at the rate
of three percent (3%) per annum. Interest on this Promissory Note
is computed on a 365/360 simple interest basis; that is, by
applying the ratio of the annual interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied
by the actual number of days the principal balance is outstanding.
Interest which may accrue prior to the first scheduled debt
service payment under this Promissory Note shall be capitalized as
of the day immediately preceding the due date of such first
scheduled debt service payment.
PREPAYMENT. Borrower may pay without penalty all or a portion of
the amount owed under this Promissory Note earlier than it is due.
LATE CHARGE.
will also be
as past due)
charge.
If a payment is ten (10) days or more late, Borrower
charged (in addition to the annual installment amount
five percent (5%) of the monthly payment as a late
DEFAULT. Borrower will be in default if any of the following
happens:
(a) Borrower fails to make any payment when due under
this Promissory Note.
(b) Borrower breaks any promise Borrower has made to
the Agency in the Loan Agreement, or Borrower fails
to comply with or to perform when due any other
term, obligation, covenant, or condition contained
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SB2001:23556.1
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in this Promissory Note or any agreement related to
this Promissory Note.
(cl
Borrower defaults under any loan, extension of
credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any
other creditor or person that may materially affect
any of Borrower's property or Borrower's ability to
repay this Promissory Note or the ability of
Borrower to perform its other obligations under
this Promissory Note or the Deed of Trust and the
Collateral Assignment of Leases and Rents of even
date herewith.
(d)
Any representation or statement made or furnished
to the Agency by Borrower or on Borrower's behalf
under the Loan Agreement is false or misleading in
any material respect either now or at the time made
or furnished.
(e) Any creditor tries to take any of Borrower's
property on or in which the Agency has a lien or
security interest.
(f) A material adverse charge occurs in Borrower's
financial condition, or the Agency believes the
prospect of payment or performance of the
indebtedness evidenced by this Promissory Note is
impaired.
If any default (other than a default described in (a)or (d), above)
is curable, and if Borrower has not been given a notice of a
default of the same provision of this Promissory Note within the
preceding twelve (12) months, such a default may be cured (and in
such event no default will be deemed to have occurred) if Borrower,
after receiving written notice from the Agency demanding cure of
such default:
(i) cures the default within ten (10) days; or
(ii) if the cure requires more than ten (10) days,
immediately initiates steps which the Agency deems
in its sole discretion to be sufficient to cure the
default, and thereafter Borrower continues and
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RIGHTS OF THE HOLDER. upon default the Agency may exercise any
of its rights provided under the Loan Agreement, as this term is
defined herein including without limitation, the declaration by the
Holder that the entire unpaid principal balance on this Promissory
Note and all accrued unpaid interest is immediately due, without
notice, and then Borrower will pay that amount. Upon the failure
to pay all amounts declared due pursuant to this paragraph entitled
RIGHTS OF THE HOLDER, including failure to pay at the Maturity
Date, the Holder, at its option, may also, if permitted under
applicable law, increase the interest rate on this Promissory Note
for interest which accrues after the date such amount is declared
due, to the rate of eight percent (8%) per annum. The Agency may
hire or pay someone else to help collect this Promissory Note if
the Borrower does not pay. The Borrower also will pay the Holder
that amount. This includes, subject to any limits under applicable
law, the Agency's reasonable attorneys' fees and the legal expenses
of the Holder whether or not there is a lawsuit, including
reasonable attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment
collection services. The Borrower also will pay any court costs,
in addition to all other sums provided by law. This Promissory
Note has been delivered to the Holder and accepted by the Holder in
the State of California. If there is a lawsuit arising under this
Promissory Note, the Superior Court of San Bernardino County, the
State of California, shall have jurisdiction of such lawsuit. This
Promissory Note shall be governed by and construed in accordance
with the laws of the State of California.
COLLATERAL. The Borrower acknowledges this Promissory Note is
secured by a Deed of Trust of even date herewith. The Deed of
Trust affects certain real property described in the Loan
Agreement. The Deed of Trust contains the following due on sale
provisions:
[INSERT DUE ON SALE TEXT FROM DEED OF TRUST]
882001:23556.1
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PRIOR TO SIGNING THIS PROMISSORY NOTE, BORROWER HAS READ AND
UNDERSTANDS ALL OF ITS PROVISIONS. BORROWER AGREES TO THE TERMS OF
THIS PROMISSORY NOTE AND ACKNOWLEDGES RECEIPT OF A COPY HEREOF.
BORROWER
Wayne L. Browning;
Dolores Browning;
Gary F. Schones;
Janet Schones;
David P. Lansing;
Peggy Lansing;
jointly and severally
Wayne L. Browning
Dolores Browning
Gary F. Schones
Janet Schones
David P. Lansing
Peggy Lansing
SB2001:23556.1
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RECORDATION REQUESTED BY:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street
Third Floor
San Bernardino, California 92401-1507
Attn: Executive Director
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
(Cypress Mobilehome Park)
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND FIXTURE FILING (the "Deed of Trust") is dated
2001, among Wayne L. Browning and Dolores C.
Browning, Trustees of the Browning Family Trust established February
27, 1987 as to an undivided 1/3 interest and Gary F. Schones and
Janet R. Schones, husband and wife as joint tenants as to an
undivided 1/3 interest, and David P. Lansing and Peggy Sue Lansing,
husband and wife as joint tenants as to an undivided 1/3 interest
(the "Trustor"), whose address is
the Redevelopment Agency of the City of San Bernardino, a body
corporate and politic, whose address is 201 North "E" Street, Third
Floor, San Bernardino, California 92401-1507 (the "Lender" or the
"Beneficiary"); and First American Title Insurance Company (the
"Trustee") .
1.0 CONVEYANCE AND GRANT. For valuable consideration, Trustor
irrevocably grants, transfers and assigns to Trustee in trust,
with power of sale, for the benefit of Lender as Beneficiary,
all of Trustor's right, title, and interest in and to that
certain real property described in Exhibit "A" attached hereto
and incorporated herein by this reference (the "Property"),
together with all existing or subsequently erected or affixed
buildings, improvements and fixtures; all easements, rights of
way, and appurtenances and all other rights, royalties, and
SB2001:23708.1
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profits relating to the real property, including and without
limitation all minerals, oil, gas, geothermal and similar
matters located in San Bernardino County, State of California
(the "Mortgaged property") .
Trustor presently assigns to the Lender all of Trustor's right,
title and interest in and to all present and future leases of
the Mortgaged Property and all Rents from the Mortgaged
Property. In addition, Trustor grants Lender a Uniform
Commercial Code security interest in the Rents and the Personal
Property as set forth herein.
2.0 DEFINITIONS. The following words shall have the following
meanings when used in this Deed of Trust. Terms not otherwise
defined in this Deed of Trust shall have the meanings
attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money
of the United States of America:
Beneficiary. The word "Beneficiary" means the Redevelopment
Agency of the City of San Bernardino, a body corporate and
politic, its successors and assigns.
Deed of Trust. The words "Deed of Trust" mean this Deed of
Trust and Assignment of Leases and Rents and Fixture Filing
among Trustor, Lender, and Trustee, and includes without
limitation all assignment and security interest provisions
relating to the Personal Property and Rents.
Improvements. The word "Improvements" means and includes all
existing improvements on the Property and all improvements to
be constructed on the Property.
Indebtedness. The word "Indebtedness" means all principal and,
if applicable, interest payable under the Promissory Note and
any amounts expended or advanced by Lender to discharge
obligations of Trustor or expenses incurred by Trustee or
Lender to enforce obligations of Trustor under the Promissory
Note and this Deed of Trust, together with interest on such
amounts. This Deed of Trust secures, in addition to the
amounts specified in the Promissory Note, any future advances,
together with all interest thereon, that may be made by the
Lender pursuant to the Loan Agreement and/or the Related
Documents so long as Trustor complies with all the terms and
conditions of the Promissory Note, Loan Agreement and/or the
Related Documents.
SB2001:23708.1
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Lender. The word "Lender" means the Redevelopment Agency of
the City of San Bernardino, its successors and assigns.
Loan Agreement. The words "Loan Agreement" mean that
certain 2001 Housing Loan Agreement, dated as of August 20,
2001, by and between the Trustor and the Lender which provides
for the loan to the Trustor which is secured by this Deed of
Trust.
Mortgaged Property. The
refer to the Property,
Rents, together with:
words "Mortgaged Property mean and
Improvements, Personal Property and
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all right, title, and interest (including any claim or
demand or demand in law or equity) that Trustor now has or
may later acquire in or to such Mortgaged Property; all
easements, rights, privileges, tenements, hereditaments,
and appurtenances belonging or in any way appertaining to
the Mortgaged Property; all of the estate, right, title,
interest, claim, demand, reversion, or remainder of
Trustor in or to the Mortgaged Property, either at law or
in equity, in possession or expectancy, now or later
acquired; all exterior landscaping on the Mortgaged
Property; all development rights or credits and air
rights; all water and water rights (whether or not
appurtenant to the Mortgaged Property) and shares of stock
pertaining to such water or water rights, ownership of
which affects the Mortgaged Property; all minerals, oil,
gas, and other hydrocarbon substances and rights thereto
in, on, under, or upon the Mortgaged Property and all
royalties and profits from any such rights or shares of
stock; all right, title, and interest of Trustor in and to
any streets, ways, alleys, strips, or gores of land
adjoining the Property or any part of it that Trustor now
owns or at any time later acquires and all adjacent lands
within enclosures or occupied by buildings partly situated
on the Mortgaged Property;
all intangible Mortgage Property and rights
the Mortgaged Property or its operation
connection with it, including, without
permits, licenses, plans, specifications,
contracts, subcontracts, bids, deposits
services, installations, refunds due Trustor,
trademarks, and service marks;
relating to
or used in
limitation,
construction
for utility
trade names,
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SB2001:23708.1
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882001:23708.1
all of the right, title, and interest of Trustor in and to
the land lying in the bed of any street, road, highway, or
avenue in front of or adjoining the Property;
any and all awards previously made or later to be made by
any governmental authority to the present and all
subsequent owners of the Mortgaged Property that may be
made with respect to the Mortgaged Property as a result of
the exercise of the right of eminent domain, the
alteration of the grade of any street, or any other injury
to or decrease of value of the Mortgaged Property, which
award or awards are assigned to the Lender, and which the
Lender, at its option, is authorized, directed, and
empowered to collect and receive the proceeds of any such
award or awards from the authorities making them and to
give proper receipts and acquittances for them, and to
apply them as provided in this Deed of Trust;
all leases of the Mortgaged Property or any part of it now
or later entered into and all right, title, and interest
of the Trustor under such leases, including cash or
securities deposited by the tenants to secure performance
of their obligations under such leases (whether such cash
or securities are to be held until the expiration of the
terms of such leases or applied to one or more of the
installments of rent coming due immediately before the
expiration of such terms), all rights to al insurance
proceeds and unearned insurance premiums arising from or
relating to the Mortgaged Property, all other rights and
easements of the Trustor now or later existing pertaining
to the use and enjoyment of the Mortgaged Property, and
all right, title, and interest of the Trustor in and to
all declarations of covenants, conditions, and
restrictions as may affect or otherwise relate to the
Mortgaged Property;
any and all proceeds of any insurance policies covering
the Mortgaged Property, whether or not such insurance
policies were required by the Lender as a condition of
making the loan secured by this Deed of Trust or are
required to be maintained by the Trustor as provided below
in this Deed of Trust; which proceeds are assigned to the
Lender, and which the Lender, at its option, is
authorized, directed, and empowered to collect and receive
the proceeds of such insurance policies from the insurers
issuing the same and to give proper receipts and
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SB200 I :23708.1
acquittances for such policies, and to apply the same as
provided below;
all plans and specifications for the Improvements; all
contracts and subcontracts relating to the Improvements;
all deposits (including tenants' security deposits;
provided, however, that if the Lender acquires possession
or control of tenants' security deposits the Lender shall
use the tenants' security deposits only for such purposes
as governmental requirements permit), funds, accounts,
contract rights, instruments, documents, general
intangibles, and notes or chattel paper arising from or in
connection with the Property or other Mortgaged Property;
all permits, licenses, certificates, and other rights and
privileges obtained in connection with the Property or
other Mortgaged Property; all soils reports, engineering
reports, land planning maps, drawings, construction
contracts, notes, drafts, documents, engineering and
architectural drawings, letters of credit, bonds, surety
bonds, any other intangible rights relating to the
Property and Improvements, surveys, and other reports,
exhibits, or plans used or to be used in connection with
the construction, planning, operation, or maintenance of
the Property and Improvements and all amendments and
modifications; all proceeds arising from or by virtue of
the sale, lease, grant of option, or other disposition of
all or any part of the Property, Personal Property, or
other Mortgaged Property (consent to same is not granted
or implied); and all proceeds (including premium refunds)
payable or to be payable under each insurance policy
relating to the Property, the Personal Property, or other
Mortgaged Property;
all tax refunds, bills, notes, inventories, accounts and
charges receivable, credits, claims, securities, and
documents of all kinds, and all instruments, contract
rights, general intangibles, bonds and deposits, and all
proceeds and products of the Trustor in the Mortgaged
Property;
all accounts, contract rights, chattel paper, documents,
instruments, books, records, claims against third parties,
money, securities, drafts, notes, proceeds, and other
items relating to the Mortgaged Property;
all proceeds of any of the foregoing.
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As used in this Deed of Trust, ~Mortgaged Property" is
expressly defined as meaning allor, when the context permits
or requires, any portion of it and allor, when the context
permits or requires, any interest in it. Mortgaged Property
does not include any manufactured home situated on the real
property described in Exhibit ~A" which is not owned in whole
or in part by the Trustor.
Personal property. The words "Personal Property" mean all of
the right, title and interest of Trustor now or hereafter
existing in and to the following now or hereafter located in,
upon, within or about, or used in connection with or generated
by the construction, use, operation or occupancy of the
Property and any business or activity conducted thereon or
therein, together with all accessories, additions, accessions,
renewals, replacements and substitutions thereto or therefore
and the proceeds and products thereof: (a) all materials,
supplies, furniture, floor coverings window coverings,
furnishings, appliances, office supplies, equipment,
construction materials, vehicles, machinery, computer hardware
and software, maintenance equipment, window washing equipment,
repair equipment and other equipment, tools, telephone and
other communications equipment, food service preparation
equipment and utensils, chinaware, glassware, silverware and
hollowware, food and beverage service equipment, food items and
food stuffs; (b) all books, ledgers, records accounting
records, files, tax records and returns, policy manuals,
papers, correspondence, and electronically recorded data; (c)
all ~General Intangibles" (as defined in the California Uniform
Commercial Code), instruments, money, ~Accounts" (as defined in
the California Uniform Commercial Code), accounts receivable,
notes, certificates of deposit, chattel paper, letters of
credit, chooses in action, good will, rights to pay of money,
rents, rental fees, equipment fees and other amounts relating
to the development or use of the Property or payable by persons
who utilize the Property or any of the Improvements or paid by
persons in order to obtain the right to use the Property and
any of the Improvements, whether or not so used; trademarks,
service marks, trade dress, trade names, licenses, sales
contracts, deposits, plans and specifications, drawings,
working drawings, studies, maps, surveys; soils, environmental
engineering or other reports, architectural and engineering
contracts, construction contracts, construction management
contracts, surety bonds, feasibility and market studies,
management and operating agreements, service agreements and
contracts, landscape maintenance agreements, security service
SB200 I :23708.1
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and other services agreements and vendors agreements; (d) all
compensation, awards and other payments of relief (and claims
therefore) made for a taking by eminent domain, or by any event
in lieu thereof (including, without limitation, property and
rights and interests in property received in lieu of any such
taking), of all or any part of such Personal Property, together
with interest thereon, and any and all proceeds (or claims for
proceeds) of casualty, liability or other insurance pertaining
to such Personal Property, together with interest thereon; (e)
any and all claims or demands against any person with respect
to damage or diminution in value to such Personal Property or
damage or diminution in value to any business or other activity
conducted on Property; (f) any and all security deposits,
deposits of security or advance payments made to others to
Trustor with respect to: (i) insurance policies relating to the
Property; (ii) prepayments and/or periodic deposits or
improvements for property taxes or assessments of any kind or
nature affecting the Property; (iii) utility services for the
Property and/or the Improvements; (iv) maintenance, repair or
similar services for the Property or any other services or
goods to be used by any business or other activity conducted on
the Property; (g) any and all authorizations, consents,
licenses, permits and approvals of and from all persons
required from time to time in connection with the construction,
use, occupancy or operation of the Property, the improvements,
or any business or activity conducted thereon or therein or in
connection with the operation, occupancy or use thereof; (h)
all warranties, guaranties, utility or street improvement
bonds, construction completion and payment surety bonds,
utility contracts, telephone exchange numbers, yellow page or
other directory advertising and the like; (i) all goods,
contract rights, and inventory; (j) all leases and use
agreements of machinery, equipment and other personal property;
(k) all insurance policies covering all or any portion of the
Property; (1) all reserves and funds held in escrow by the
Lender or other persons for the Lender's benefit under the Loan
Agreement and all funds deposited with the Lender pursuant to
the Loan Agreement, all accounts into which such funds are
deposited and all accounts, contract rights and general
intangibles or other rights relating thereto; (m) all names by
which the Property is now or hereafter known; (n) all interests
in the security deposits of tenants; (0) all management
agreements, blueprints, plans, maps, documents, books and
records relating to the Property; (p) the proceeds from sale,
assignment, conveyance or transfer of all or , any portion of
the Property or any interest therein, or from the sale of any
goods, inventory or services from upon or within the Property
SB2001:23108.1
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and/or the Improvements; ) (q) all documents of membership in an
owner or members association or similar group having
responsibility for managing or operating any part of the
property; (r) all other property (other than "Fixtures," as
defined in the Uniform Commercial Code) of any kind or
character as defined in or subject to the provisions of the
California Uniform Commercial Code, Secured Transactions, as
amended and; (s) all proceeds of the conversions, voluntarily
or involuntarily, of any of the foregoing into cash or
liquidated claims. Personal Property does not include any
manufactured home situated on the real property described in
Exhibit "A" which is not owned in whole or in part by the
Trustor.
Promissory Note. The words "Promissory Note" mean the
promissory Note of even date herewith, in the principal amount
of Seventy Five Thousand Dollars ($75,000) delivered by the
Trustor to the Redevelopment Agency of the City of San
Bernardino, as Lender, together with all renewals, extensions,
modifications, refinancing, and substitutions for the
Promissory Note.
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Related Documents. The words "Related Documents" mean and
include without limitation all promissory notes, credit
agreements, loan agreements, guaranties, security agreements,
mortgages, deeds of trust, and all other instruments,
agreements and documents, by and between the Trustor and the
Lender whether now or hereafter existing, evidencing or
securing the Indebtedness.
Rents. The word "Rents" means all present and future
revenues, income, issues, royalties, profits, and
benefits derived from the Property.
rents,
other
Trustee. The word "Trustee" means First American Title
Insurance Company, and any substitute or successor trustees.
Trustor. The word "Trustor" means the Trustor named above and
its successors and assigns.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF LEASES AND
RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL
PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS
AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF TRUSTOR UNDER
THE PROMISSORY NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF
~ TRUST. THE PROMISSORY NOTE AND THIS DEED OF TRUST ARE GIVEN
~ AND ACCEPTED ON THE FOLLOWING TERMS:
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3.1 PAYMENT AND PERFORMANCE. Except as otherwise provided in this
Deed of Trust, Trustor shall pay to Lender all amounts secured
by this Deed of Trust as they become due, and shall strictly
and in a timely manner perform all of Trustor's obligations
under the Promissory Note, this Deed of Trust, the Loan
Agreement and the Related Documents.
3.2 POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees
that Trustor's possession and use of the Property and the
Mortgaged Property shall be governed by the following
provisions:
Possession and Use. Until the occurrence of an Event of
Default, Trustor may (a) remain in possession and control of
the Mortgaged Property and collect Rents as they become due and
(b) use, develop, operate or manage the Property for the
purposes authorized in the Loan Agreement.
Duty to Maintain and Preserve. Trustor shall: (a) maintain
the Property and the Mortgaged Property in good condition and
repair; (b) shall construct and improve the Property in
accordance with the Loan Agreement; (c) restore and repair the
Improvements or any part of the Mortgaged Property that may be
damaged or destroyed, including but not limited to construction
defects, soil subsidiances and environmental damages whether
or not insurance proceeds are available to cover any part of
such cost of restoration or repair (regardless of whether the
proceeds of insurance may be available to the Trustor under
this Deed of Trust); (d) pay when due all claims for labor
performed and materials furnished in connection with the
Improvements and not permit any mechanics' liens or materials
suppliers' liens to arise against the Property; (e) not permit
any waste on the Property, or commit, suffer or permit any
nuisance to occur on the Property; (f) not abandon the
Mortgaged Property; (g) notify the Beneficiary in writing of
any condition at or on the Property that may have a material
affect on the market value of the Mortgaged Property; and (h)
maintain the Property and the Improvements and generally
operate it in a manner to realize it maximum rental potential.
Hazardous Substances.
(a) The terms "hazardous wastes", "hazardous substance",
"disposal," "release", and "threatened release", as used in
this Deed of Trust, shall have the same meanings as set forth
in the Comprehensive Environmental Response, Compensation, and
582001:23708.1
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Liability Act of 1980, as amended, 42 U.S. C. Section 9601, et
seq. ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous
Materials Transportation Act. 49 U.S.C. Section 1801, et seq.,
the Resource Conservation and Recovery Act, 49 U.S.C. Section
6901, et seq., Chapters 6.5 through 7.7 of Division 20 of the
California Health and Safety Code, Section 25100, et seq., or
other applicable state or Federal laws, rules, or regulations
adopted pursuant to any of the foregoing. .
(b) [OMITTED - - NO TEXT]
(c) Trustor represents and warrants that neither the Trustor
nor any tenant of Trustor occupying and improving any portion
of the Mortgaged Property or any contractor, agent or other
authorized user of any such tenant shall use, generate,
manufacture, store, treat, dispose of, or release any hazardous
waste or substance on, under, about or from any of the
Mortgaged Property, except in compliance with all applicable
law relating to the transportation, storage, disposal or lawful
use of any hazardous waste or substance. Trustor shall comply
and cause each of its tenants and all contractors, agents or
other authorized users of the Mortgaged Property to comply with
all applicable laws relating to any hazardous wastes or
substances, including without limitation, obtaining and filing
all applicable notices, licenses, permits and similar
authorizations. Trustor shall establish and maintain a
hazardous wastes and substances management and operations
policy for the Mortgaged Property in order to assure and
monitor continued compliance by the Trustor and each of its
tenants and all contractors, agents, or other authorized users
of the Property with all laws relating to hazardous wastes or
substances.
(d) Trustor authorizes Lender and its agents to enter upon the
Mortgaged Property upon reasonable notice to make such
inspections and tests as Lender may deem appropriate to
determine compliance by the Trustor with this paragraph of
Section 3.2 if Lender reasonably believes a violation of law
has occurred. Any inspections or tests made by Lender shall be
at Trustor's expense and for Lender's purposes only and shall
not be construed to create any responsibility or liability on
the part of Lender to Trustor or to any other person. Trustor
hereby agrees to indemnify and hold harmless Lender against any
and all claims, losses, liabilities, damages, penalties, and
expenses which Lender may directly or indirectly sustain or
suffer resulting from breach of this paragraph of Section 3.2.
SB200 1:23708.1
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The provisions of this paragraph of Section 3.2 of the Deed of
Trust, including the obligation to indemnify the Lender, shall
survive the payment of the Indebtedness and the satisfaction
and reconveyance of the lien of this Deed of Trust and shall
not be affected by Lender's acquisition of any interest in the
Property, whether by foreclosure or otherwise.
Compliance with Governmental Requirements. Trustor shall
promptly comply with all laws, ordinances, and regulations, now
or hereafter in effect, of all governmental authorities
applicable to the use or occupancy of the Mortgaged Property.
Trustor may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Trustor has notified
Lender in writing prior to doing so and so long as, in Lender's
reasonable opinion, Lender's interests in the Mortgaged
Property are not jeopardized. Lender may require Trustor to
post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
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Duty to Protect. Trustor agrees neither to abandon nor leave
unattended the Mortgaged Property. Trustor shall do all other
acts, in addition to those acts set forth above in this
section, which from the character and use of the Mortgaged
Property are reasonably necessary to protect and preserve the
Mortgaged Property.
3.3 DUE ON SALE. Lender may, at its option, declare immediately
due and payable all sums secured by this Deed of Trust upon the
sale or transfer, without the Lender's prior written approval,
of all or any part of the Mortgaged Property, or any interest
in the Mortgaged Property. A "sale or transfer" means the
conveyance of the Mortgaged Property or any right, title or
interest therein; whether legal or equitable; whether voluntary
or involuntary; whether by outright sale, deed, installment
sale contract, land contract, contract for deed, leasehold
interest with a term greater than one (1) year, lease-option
contract, or by sale, assignment or transfer of any beneficial
interest in or to any land trust holding title to the Mortgaged
Property or by any other method of conveyance of the property
interest. This option shall be exercised by the Lender in
accordance with the provisions of Section 5.1 hereof; provided
however, this option shall not be exercised if such remedy is
prohibited by applicable law. For the purposes hereof, a "sale
or transfer" does not include a lease or rental agreement by
~ and between the Trustor and any third-party owner of a
L. manufactured home who rents or leases a "space" from the
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Trustor for the rental occupancy of such manufactured home on
the Property.
TAXES AND LIENS.
taxes and liens on
of Trust:
The following provisions relating to the
the Mortgaged Property are part of this Deed
Payment. Trustor shall pay when due (and in all events prior
to delinquency) all taxes, special taxes, assessments, charges
(including water and sewer), fines and impositions levied
against or on account of the Mortgaged Property, and shall pay
when due all claims for work done on or for services rendered
or material furnished to the Mortgaged Property. Trustor shall
maintain the Mortgaged Property free of all liens having
priority over or equal to the interest of Lender under this
Deed of Trust, except for the lien of property taxes and
assessments not due.
Right to Contest. Trustor may withhold payment of any tax,
assessment, or claim in connection with a good faith dispute
over the obligation to pay, so long as Lender's interest in the
Mortgaged Property is not jeopardized. If a lien arises or is
filed as a result of nonpayment, Trustor shall within sixty
(60) days after the lien arises or, if a lien is filed, within
sixty (60) days after Trustor has notices of the filing, secure
the discharge of the lien, or if requested by Lender, deposit
with Lender cash or a sufficient corporate surety bond or other
security satisfactory to Lender in an amount sufficient to
discharge the lien plus any costs and attorneys' fees or other
charges that could accrue as a result of a foreclosure or sale
under the lien; provided, however, that Trustor shall not be
required to payor make provisions for the payment of any tax,
assessment, lien or charge so long as the Trustor in good faith
shall contest the validity or amount thereof and so long as
such delay in payment does not subject the Property to
forfei ture or sale. In any contest, Trustor shall defend
itself and Lender and shall satisfy any adverse judgment before
enforcement against the Property. Trustor shall name Lender as
an additional obligee under any surety bond furnished in the
contest proceedings.
Evidence of Payment. Trustor shall upon demand furnish to
Lender satisfactory evidence of payment of the taxes or
assessments and shall authorize the appropriate governmental
official to deliver to Lender at any time a written statement
of the taxes and assessments against the Property.
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3.5 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
Proceedings. If any proceeding in condemnation is filed
affecting any portion of the Mortgaged Property, Trustor shall
promptly notify the Beneficiary in writing, and Trustor shall
promptly take such steps as may be necessary to defend the
action and obtain the award. Trustor may be the nominal party
in such proceeding, but the Beneficiary shall be entitled to
participate in the proceeding and to be represented in the
proceeding by counsel of its own choice, and Trustor will
deliver or cause to be delivered to the Beneficiary such
instruments as may be requested by it from time to time to
permit such participation.
3.6 CASUALTY INSURANCE. The Trustor shall at all times keep the
Mortgaged Property insured for the benefit of the Trustee and
the Beneficiary as additional insured as follows:
Against damage or loss by fire and such other hazards
(including lightning, windstorm, hail, explosion, riot, acts of
striking employees, civil commotion, vandalism, malicious
mischief, aircraft, vehicle, and smoke) as are covered by the
broadest form of extended coverage endorsement available from
time to time, including course of construction and builders
risk endorsements in an amount not less than the full insurable
value of the Mortgaged Property, with a deductible amount not
to exceed Ten Thousand Dollars ($10,000); provided however,
that prior to the recordation of the "Construction Loan" as
this term is defined in the Loan Agreement, such insured amount
shall be not less than $1,000,000, and upon the recordation of
such Construction Loan the full insurable value shall be not
less than the principal amount of such Construction Loan, plus
the principal amount of the Indebtedness;
Against damage or loss from (a) sprinkler system leakage and
(b) boilers, boiler tanks, heating and air conditioning
equipment, pressure vessels, auxiliary piping, and similar
apparatus, on such basis and in such amounts as the Beneficiary
may require;
Liabili ty Insurance. Trustor shall procure and maintain
workers' compensation insurance for employees and comprehensive
general liability insurance covering Trustor, Trustee, and the
Beneficiary against claims for bodily injury or death or for
damage occurring in, on, about, or resulting from the Mortgaged
Property, or any street, drive, sidewalk, curb, or passageway
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adjacent to it, in standard form and with such insurance
company or companies and in an amount of at least One Million
Dollars ($1,000,000) combined single limit, or such greater
amount as the buyer may require, which insurance shall include
completed operations, product liability, and blanket
contractual liability coverage that insures contractual
liability under the indemnifications set forth in this Deed of
Trust (but such insurance coverage or its amount shall in no
way limit such indemnification) .
Other Insurance. The Trustor shall procure and maintain such
other insurance or such additional amounts of insurance,
covering the Trustor or the Mortgaged Property, as (a) may be
required by the terms of any construction contract for the
improvements or by any governmental authority, or (b) may be
reasonably required by the Beneficiary from time to time.
Form of Policies. All insurance required under this paragraph
shall be paid for and nonassessable. The policies shall
contain such provisions, endorsements, and expiration dates as
the Beneficiary from time to time reasonably requests and shall
be in such form and amounts, and be issued by such insurance
companies admitted as surety companies and doing business in
the State of California, as the Beneficiary shall approve in
the Beneficiary's sole and absolute discretion. Unless
otherwise expressly approved in writing by the Beneficiary,
each insurer shall have a Best Rating of not less than
"A(vii)", or better. All policies shall (a) contain a waiver
of subrogation endorsement; (b) provide that the policy will
not lapse or be canceled, amended, or materially altered
(including by reduction in the scope or limits of coverage)
without at least thirty (30) days prior written notice to the
Beneficiary; (c) with the exception of the comprehensive
general liability policy, contain a mortgagee's endorsement
(438 BFU Endorsement or equivalent), and name the Beneficiary
and trustee as insureds; and (d) include such deductibles as
the Beneficiary may approve. If a policy required under this
paragraph contains a co-insurance or overage clause, the policy
shall include a stipulated value or agreed amount endorsement
acceptable to the Beneficiary.
Duplicate Originals or Certificates. Duplicate original
policies evidencing the insurance required under this paragraph
and any additional insurance that may be purchased on the
Mortgaged Property by or on behalf of Trustor shall be
deposited with and held by the Beneficiary (a) receipts
evidencing payment of all premiums on the policies and (b)
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duplicate original renewal policies or a binder with evidence
satisfactory to the Beneficiary of payment of all premiums at
least thirty (30) days before the policy expires. In lieu of
the duplicate original policies to be delivered to the
Beneficiary under this paragraph, Trustor may also deliver
original certificates from the issuing insurance company,
evidencing that such policies are in full force and effect and
containing information that, in the reasonable judgment of the
Beneficiary, is sufficient to allow Lender to ascertain whether
such policies comply with the requirements of this Paragraph.
No Separate Insurance. The Trustor shall not carry separate
or additional insurance concurrent in form or contributing in
the event of loss with that required under this paragraph
unless endorsed in favor of Trustee and the Beneficiary as
required by this paragraph and otherwise approved by the
Beneficiary in all respects.
Transfer of Title. In the event of foreclosure of this Deed of
Trust or other transfer of title or assignment of the Mortgaged
Property in extinguishment, in whole or in part, of the
Indebtedness, all right, title, and interest of the Trustor in
and to all insurance policies required under this paragraph or
otherwise then in force with respect to the Mortgaged Property
and all proceeds payable under, and unearned premiums on, such
policies shall immediately vest in the purchaser or other
transferee of the Mortgaged Property.
Beneficiary's Right to Obtain. Trustor shall deliver to the
Beneficiary original policies or certificates evidencing such
insurance at least thirty (30) days before the existing
policies expire. If any such policy is not so delivered to the
Beneficiary or if any such policy is canceled, whether or not
Lender has the policy in its possession, and no reinstatement
or replacement policy is received before termination of
insurance, the Beneficiary, without notice to or demand on
Trustor, may (but is not obligated to) obtain such insurance
insuring only the Beneficiary and Trustee with such company as
the Beneficiary may deem satisfactory, and pay the premium for
such policies, and the amount of any premium so paid shall be
charged to and promptly paid by Trustor or, at the
Beneficiary's option, may be added to the Indebtedness. The
Beneficiary acknowledges that, if the Beneficiary obtains
insurance, it is for the sole benefit of the Beneficiary and
Trustee, and Trustor shall not rely on any insurance obtained
by the Beneficiary to protect Trustor in any way.
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Duty to Restore After Casualty. If any act or occurrence of
any kind or nature (including any casualty for which insurance
was not obtained or obtainable) results in damage to or loss or
destruction of the Mortgaged Property, Trustor shall
immediately give notice of such loss or damage to the
Beneficiary and, if the Beneficiary so instructs, shall
promptly, at the Trustor's sole cost and expense, regardless of
whether any insurance proceeds will be sufficient for the
purpose, commence and continue diligently to completion to
restore, repair, replace, and rebuild the Mortgaged Property as
nearly as possible to its value, condition, and character
immediately before the damage, loss, or destruction.
3.7 ASSIGNMENT TO THE BENEFICIARY. The proceeds of any award or
claim for damages, direct or consequential, in connection with
any condemnation or other taking of or damage or injury to the
Mortgaged Property, or any part of it, or for conveyance in
lieu of condemnation, are assigned to and shall be paid to the
Beneficiary, regardless of whether the Beneficiary's security
is impaired. All causes of action, whether accrued before or
after the date of this Deed of Trust, of all types for damages
or injury to the Mortgaged Property or any part of it, or in
connection with any transaction financed by funds lent to the
Trustor by the Beneficiary and secured by this Deed of Trust,
or in connection with or affecting the Mortgaged Property or
any part of it, including, without limitation, causes of action
arising in tort or contract or in equity, are assigned to the
Beneficiary as additional security, and the proceeds shall be
paid to the Beneficiary. The Beneficiary, at its option, may
appear in and prosecute in its own name any action or
proceeding to enforce any such cause of action and may make
compromise or settlement of such action. The Trustor shall
notify the Beneficiary in writing immediately on obtaining
knowledge of any casualty damage to the Mortgaged Property or
damage in any other manner in excess of Ten Thousand Dollars
($10,000) or knowledge of the institution of any proceeding
relating to the condemnation or other taking of or damage or
injury to all or any portion of the Mortgaged Property. The
Beneficiary in its sole and absolute discretion, may
participate in any such proceedings and may join borrower in
adjusting any loss covered by insurance. Trustor covenants and
agrees with the Beneficiary, at Beneficiary's request, to make,
execute, and deliver, at Trustor's expense, any and all
assignments and other instruments sufficient for the purpose of
assigning the aforesaid award or awards, causes of action, or
claims of damages or proceeds to the Beneficiary free, clear,
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and discharged of any and all encumbrances of any kind or
nature.
Compensation and Insurance Payments. All compensation, awards,
proceeds, damages, claims, insurance recoveries, rights of
action, and payments that Trustor may receive or to which the
Beneficiary may become entitled with respect to the Mortgaged
Property if any damage or injury occurs to the Mortgaged
Property, other than by the Beneficiary condemnation or partial
taking of the Mortgaged Property, shall be paid over to the
Beneficiary and shall be applied first toward reimbursement of
all costs and expenses of the Beneficiary in connection with
their recovery and disbursement, and shall then be applied as
follows:
The Beneficiary shall consent to the application of such
payments to the restoration of the Mortgaged Property so
damages only the Beneficiary has met all the following
conditions (a breach of one of which shall constitute a
default under this Deed of Trust, the Promissory Note, and
any Related Document): (a) Trustor is not in default under
any of the terms, covenants, and conditions of the Related
Documents; (b) all then-existing leases affected in any
way by such damage will continue in full force and effect;
(c) the Beneficiary is satisfied that the insurance or
award proceeds, plus any sums added by Trustor, shall be
sufficient to fully restore and rebuild the Mortgaged
Property under then current governmental requirements; (d)
within sixty (60) days after the damage tot he Mortgaged
Property, Trustor presents to the Beneficiary a
restoration plan satisfactory to the Beneficiary and each
local agency with jurisdiction, which includes cost
estimates and schedules; (e) construction and completion
of restoration and rebuilding of the Mortgaged Property
shall be completed in accordance with plans and
specifications and drawings submitted to the Beneficiary
within thirty (30) days after receipt by the Beneficiary
of the restoration plan and thereafter approved the
Beneficiary; which plans, specifications, and drawings
shall not be substantially modified, changed, or revised
without the Beneficiary's prior written consent; (f)
within ninety (90) days after such damage, Trustor and a
licensed contractor satisfactory to the Beneficiary enter
into a fixed price or guaranteed maximum price contract
satisfactory to the Beneficiary, providing for complete
restoration in accordance with such restoration plan for
an amount not to exceed the amount of funds held or to be
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held by the Beneficiary; (g) all restoration of the
Improvements so damaged or destroyed shall be made with
reasonable promptness and shall be of a value at least
equal to the value of the Improvements so damages or
destroyed before such damage or destruction; (h) the
Beneficiary reasonably determines that there is an
identified source (whether from income from the Mortgaged
Property or another source) sufficient to pay all debt
service and operating expenses of the Mortgaged Property
during its restoration as required above; and (i) any and
all funds that are made available for restoration and
rebuilding under this subparagraph shall be disbursed at
the sole election of the Beneficiary through the Trustee,
or a title insurance or trust company satisfactory to the
Beneficiary, in accordance with standard construction
lending practices and mechanics' lien waivers and title
insurance date-downs, and the provision of payment and
performance bonds by the Trustor, or in any other manner
approved by the Beneficiary in the Beneficiary's sole and
absolute discretion; or
If fewer than all conditions (a) through (i) in the
preceding subparagraph are satisfied, then such payments
shall be applied in the sole and absolute discretion of
the Beneficiary: to the payment of the Indebtedness
secured by this Deed of Trust; or to the reimbursement of
Trustor's expenses incurred in the rebuilding and
restoration of the Mortgaged Property. If the Beneficiary
elects to make any funds available to restore the
Mortgaged Property, then all of the conditions (a) through
(i) in the preceding subparagraph shall apply, except for
such conditions that the Beneficiary in its sole and
absolute discretion, may waive.
Material Loss Not Covered. If any material part of the
Mortgaged Property is damaged or destroyed and the loss, is not
adequately covered by insurance proceeds collected or in the
process of collection, the Trustor shall deposit with the
Beneficiary, within thirty (30) days after the Beneficiary's
request, the amount of the loss not so covered.
Total Condemnation Payment. All compensation, awards,
proceeds, damages, claims, rights of action, and payments that
Borrower may receive or to which the Trustor may become
entitled with respect to the Mortgaged Property in the event of
a total condemnation or other total taking of the Mortgaged
Property by a public agency shall be paid over to the
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Beneficiary and shall be applied first to the reimbursement of
all Beneficiary's costs and expenses in connection with their
recovery, and shall then be applied to the payment of the
Indebtedness. Any surplus remaining after payment and
satisfaction of the Indebtedness shall be paid to the Trustor
as its interest may then appear.
Partial Condemnation Payments. All compensation, awards,
proceeds, damages, claims, insurance recoveries, rights of
action, and payments ("funds") that the Trustor may receive or
to which the Trustor may become entitled with respect to the
Mortgaged Property in the event of a partial condemnation or
other partial taking of the Mortgaged Property by a public
agency, unless the Trustee and Beneficiary otherwise agree in
writing, shall be divided into two portions, one equal to the
principal balance of the Promissory Note at the time of receipt
of such funds and the other equal to the amount by which such
funds exceed the principal balance of the Promissory Note at
the time of receipt of such funds.
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The first such portion shall be applied to the sums secured by
this Deed of Trust, whether or not then due, including but not
limited to principal, accrued interest, and advances with the
balance of the funds paid to the Trustor.
No Cure of waiver of Default. Any application of such amounts
or any portion of it to any Indebtedness secured by this Deed
of Trust shall not be construed to cure or waive any default or
notice of default under this Deed of Trust or invalidate any
act done under any such default or notice.
3.8 EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or proceeding
is commenced against the Mortgaged Property that would
materially affect Lender's interests in the Property, Lender on
Trustor's behalf may, but shall not be required to, take any
action that Lender reasonably deems appropriate. Any amount
that Lender expends in do doing will bear interest at the rate
charged under the Promissory Note from the date incurred or
paid by Lender to the date of repayment by Trustor. All such
expenses, at Lender's option, will (a) be payable on demand,
(b) be added to the balance of the Promissory Note and be
apportioned among and be payable with any installment payments
to become due during the remaining term of the Promissory Note,
or (c) be treated as a balloon payment which will be due and
~ payable at the Promissory Note's maturity. This Deed of Trust
~ also will secure payment of these amounts. The rights provided
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3.9
3.10
for in this paragraph shall be in addition to any other rights
or any remedies to which Lender may be entitled on account of
the default. Any such action by Lender shall not be construed
as curing the default so as to bar Lender from any remedy that
it otherwise would have had.
WARRANTY. Trustor warrants that the Mortgaged Property
Trustor's use of the Mortgaged Property complies with
existing applicable laws, ordinances, and regulations
governmental authorities.
and
all
of
TAXES, FEES AND CHARGES BY GOVERNMENTAL
The following provisions relating to
taxes, fees and charges are a part of this Deed of
IMPOSITION OF
AUTHORITIES.
governmental
Trust:
Current Taxes, Fees and Charges. Upon request by Lender,
Trustor shall execute such documents in addition to this Deed
of Trust and take whatever other action is requested by Lender
to perfect and continue Lender's lien and security interest on
the Property. Trustor shall reimburse Lender for all taxes, as
described below, together with all expenses incurred in
recording, perfecting or continuing this Deed of Trust,
including without limitation all taxes, fees, documentary
stamps, and other charges for recording or registering this
Deed of Trust.
Taxes. The following shall constitute taxes to which this
section applies: (a) a specific tax upon this type of Deed of
Trust or upon all or any part of the Indebtedness secured by
this Deed of Trust; (b) a specific tax on Trustor which Trustor
is authorized or required to deduct from payments on the
Indebtedness secured by this type of Deed of Trust; (c) a tax
on this type of Deed of Trust chargeable against the Lender or
the holder of the Promissory Note; and (d) a specific tax on
all or any portion of the Indebtedness or on payments of
principal and interest made by Trustor.
Subsequent Taxes. If any tax to which this section applies is
enacted subsequent to the date of this Deed of Trust, this
event shall have the same effect as an Event of Default (as
defined below), and Lender may exercise any or all of its
available remedies for an Event of Default as provided below
unless Trustor either (a) pays the tax before it becomes
delinquent, or (b) contests the tax as provided above in the
Taxes and Liens section and deposits with Lender cash or a
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sufficient corporate surety bond or other security satisfactory
to Lender.
3 . 11 SECURITY AGREEMENT; FINANCING STATEMENTS. The
provisions relating to this Deed of Trust as
agreement are a part of this Deed of Trust:
following
a security
Security Agreement. This instrument shall constitute a security
agreement to the extent of any of the Mortgaged Property
constitutes fixtures or other personal property, and Lender
shall have all of the rights of a secured party under the
Uniform Commercial Code as amended from time to time.
Security Interest. Upon request by Lender, Trustor shall
execute financing statements and take whatever other action is
requested by Lender to perfect and continue Lender's security
interest in the Rents and Personal Property in a manner and at
a place reasonably convenient to Trustor and Lender and make it
available to Lender within ten (10) days after receipt of
written demand from Lender.
Addresses. The mailing addresses of Trustor (debtor) and
Lender (secured party), from which information concerning the
security interest granted by this Deed of Trust may be obtained
(each as required by the Uniform Commercial Code), are as
stated on the first page of this Deed of Trust.
3.12 FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions
relating to further assurances and attorney-in-fact are a part
of this Deed of Trust:
Further Assurances. At any time, and from time to time, upon
request of Lender, Trustor will make, execute and deliver, or
will cause to be made, executed or delivered, to Lender or to
Lender's designee, and when requested by Lender, cause to be
filed, recorded, refiled, or rerecorded, as the case may be, at
such times and in such offices and places as Lender may deem
appropriate, any and all such mortgages, deeds of trust,
security deeds, security agreements, financing statements,
continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion
of Lender, be necessary or desirable in order to effectuate,
complete, perfect, continue, or preserve (a) the obligations of
Trustor under the Promissory Note, this Deed of Trust, and the
Related Documents, and (b) the liens and security interests
created by this Deed of Trust as second priority liens on the
Mortgaged Property, whether now owned or hereafter acquired by
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Trustor. Unless prohibited by law or agreed to the contrary by
Lender in writing. Trustor shall reimburse Lender for all
costs and expenses incurred in connection with the matters
referred to in this paragraph.
Attorney-In-Fact. If Trustor fails to do any of the things
referred to in the preceding paragraph, Lender may do so for
and in the name of Trustor and at Trustor's expense. For such
purposes, Trustor hereby irrevocably appoints Lender as
Trustor's attorney-in-fact for the purpose of making,
executing, delivering, filing, recording, and doing all other
things as may be necessary or desirable, in Lender's sole
opinion, to accomplish the matters referred to in the preceding
paragraph.
4.0 FULL PERFORMANCE AND RECONVEYANCE. If Trustor pays all the
Indebtedness, including without limitation, all future
advances, when due, and otherwise performs all the obligations
imposed upon Trustor under the Loan Agreement, the Promissory
Note and this Deed of Trust, Lender shall execute and deliver
to Trustee a request for full reconveyance and shall execute
and deliver to Trustor suitable statements of termination of
any financing statement on file evidencing Lender's security
interest in the Rents and Personal Property. Lender may charge
Trustor a reasonable reconveyance fee at the time of
reconveyance.
5.0 DEFAULT. Each of the following, at the option of Lender, shall
constitute an event of default ("Event of Default") under this
Deed of Trust:
Default on Indebtedness. Failure of Trustor to make any payment
when due under the Promissory Note if not cured within thirty
(30) days after written notice from the Lender.
Default on Other Payments. Failure of Trustor within the
time required by this Deed of Trust to make any payment for
taxes or insurance, or any other payment necessary to prevent
filing of or to effect discharge of any lien.
Compliance Default. Failure of Trustor to comply with any other
term, obligation, covenant or condition contained in this Deed
of Trust, the Promissory Note, the Loan Agreement, the Related
Documents, including without limitation the OPA, after notice
and any applicable cure period has expired.
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Breaches. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Trustor under this Deed
of Trust, the Promissory Note, the Loan Agreement, or any of
the Related Documents is, or at the time made or furnished was,
false in any material respect.
Insolvency. The insolvency of Trustor, appointment of a
receiver for any part of Trustor's property, any assignment for
the benefit of creditors, the commencement of any proceeding
under any bankruptcy or insolvency laws by or against Trustor,
which is not discharged or dismissed within ninety (90) days,
or the dissolution or termination of Trustor's existence as a
going business (if Trustor is a business) .
Foreclosure, etc. Commencement of foreclosure, whether by
judicial proceeding, self-help, repossession or any other
method, by any creditor of Trustor against any of the Mortgaged
Property. However, this subsection shall not apply in the
event of a good faith dispute by Trustor as to the validity or
reasonableness of the claim which is the basis of the
foreclosure, provided that Trustor gives Lender written notice
of such claim and furnishes reserves or a surety bond for the
claim satisfactory to Lender.
5.1 RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any
Event of Default and at any time thereafter, Trustee or Lender,
at its option, may exercise anyone or more the following
rights and remedies, in addition to any other rights or
remedies provided by law:
Foreclosure by Sale. Upon an Event of Default under this
Deed of Trust, Beneficiary may declare the entire Indebtedness
secured by this Deed of Trust immediately due and payable by
delivery to Trustee of written declaration of default and
demand for sale and of written notice of default and of
election to cause the Mortgaged Property to be sold, which
notice Trustee shall cause to be filed for record. Beneficiary
also shall deposit with Trustee this Deed of Trust, the
Promissory Note, other documents requested by Trustee, and all
documents evidencing expenditures secured hereby. After the
lapse of such time may then be required by law following the
recordation of the notice of default, and notice of sale having
been given as then required by law, Trustee, without demand on
Trustor, shall sell the Mortgaged Property at the time and
place fixed by it in the notice of sale, either as a whole or
in separate parcels, and in such order as it may determine, at
public auction to the highest bidder for cash in lawful money
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of the United States, payable at time of sale. Trustee may
postpone sale of all or any portion of the Mortgaged Property
by public announcement at such time and place of sale, and from
time to time thereafter may postpone such sale by public
announcement at the time filed by the preceding postponement in
accordance with applicable law. Trustee shall deliver to such
purchaser its deed conveying the Mortgaged Property so sold,
but without any covenant or warranty, express or implied. The
recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person,
including Trustor, Trustee or Beneficiary may purchase at such
sale. After deducting all costs, fees and expenses of Trustee
and of this Trust, including cost of evidence of title in
connection with sale, Trustee shall apply the proceeds of sale
to payment of: all sums expended under the terms hereof, not
then repaid, with accrued interest at the amount allowed by law
in effect at the date hereof; all other sums then secured
hereby; and the remainder, if any, to the person or persons
legally entitled thereto.
Judicial Foreclosure. With respect to all or any part of the
Mortgaged Property, Lender shall have the right in lieu of
foreclosure by power of sale to foreclose by judicial
foreclosure in accordance with and to the full extent provided
by California law. It is understood and agreed by the parties
hereto that no action taken by the Lender shall result in the
imposition of personal liability on any of the members,
partners, directors, shareholders and officers, as applicable,
of Trustor or on Trustor itself or its constituent members.
UCC Remedies. With respect to all or any part of the Mortgaged
Property, Lender shall have the rights and remedies of a
secured party under the Uniform Commercial Code, including
without limitation the right to recover any deficiency in the
manner and to the full extent provided by California law.
Collect Rents. Lender shall have the right, without notice to
Trustor, to take possession of and manage the Mortgaged
Property and collect the Rents, including amounts past due and
unpaid, and apply the net proceeds, over and above Lender's
costs, against the Indebtedness. In furtherance of this right,
Lender may require any tenant or other user of the Mortgaged
Property to make payments of rent or use fees directly to
Lender. If the Rents are collected by Lender, then Trustor
irrevocably designates Lender as Trustor's attorney-in-fact to
endorse instruments received in payment thereof in the name of
Trustor and to negotiate the same and collect the proceeds.
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Payments by tenants or other users to Lender in response to
Lender's demand shall satisfy the obligations for which the
payments are made, whether or not any property grounds for the
demand existed. Lender may exercise its rights under this
subparagraph either in person, by agent, or through a receiver.
Appoint Receiver. Lender shall have the right to have a
receiver appointed to take possession of all or any part of the
Mortgaged Property, with the power to protect and preserve the
Mortgaged Property, to operate the Property preceding
foreclosure or sale, and to collect the Rents from the
Mortgaged Property and apply the proceeds, over and above the
cost of the receivership against the Indebtedness. The
receiver may serve without bond if permitted by law. Lender's
right to the appointment of a receiver shall exist whether or
not the apparent value of the Mortgaged Property exceeds the
indebtedness by a substantial amount. Employment by Lender
shall not disqualify a person from serving as a receiver.
Tenancy at Sufferance. If Trustor remains in possession of
the Mortgaged Property after the Property is sold as provided
above or Lender otherwise becomes entitled to possession of the
Property upon default of Trustor, Trustor shall become a tenant
at sufferance of Lender or the purchaser of the Mortgaged
Property and shall, at Lender's option, either (a) pay a
reasonable rental for the use of the Property, or (b) vacate
the Mortgaged Property immediately upon the demand of Lender.
Other Remedies. Trustee or Lender shall have any other
right or remedy provided in this Deed of Trust or the
Promissory Note or by law.
Notice of Sale. Lender shall give Trustor reasonable notice
of the time and place of any public sale of the Personal
Property or of the time after which any private sale or other
intended disposition of the Personal Property is to be made.
Reasonable notice shall mean notice given at least thirty (30)
days before the time of the sale or disposition. Any sale of
Personal Property may be made in conjunction with any sale of
the Mortgaged Property.
Sale of the Mortgaged Property. To the extent permitted by
applicable law, Trustor hereby waives any and all rights to
have the Mortgaged Property marshaled. In exercising its
rights and remedies, the Trustee or Lender shall be free to
sell all or any part of the Property together or separately, in
one sale or by separate sales. Lender shall be entitled to bid
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at any public sale on all or any portion of the Mortgaged
Property.
Waiver; Election of Remedies. A waiver by any party of a breach
of a provision of this Deed of Trust shall not constitute a
waiver of or prejudice the party's rights otherwise to demand
strict compliance with that provision or any other provision.
Election by Lender to pursue any remedy provided in this Deed
of Trust, the Promissory Note, in any Related Document, or
provided by law shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to
perform an obligation of Trustor under this Deed of Trust
after failure of Trustor to perform shall not affect Lender's
right to declare a default and to exercise any of its remedies.
Attorneys' Fees; Expenses. If Lender institutes any suit or
action to enforce any of the terms of this Deed of Trust,
Lender shall be entitled to recover such sum as the court may
adjudge reasonable as attorneys' fees at trial and on any
appeal. Whether or not any court action is involved, all
reasonable expenses incurred by Lender which in Lender's
opinion are necessary at any time for the protection of its
interest or the enforcement of its rights shall become a part
of the Indebtedness payable on demand and shall bear interest
at the Promissory Note rate from the date of expenditure until
repaid. Expenses covered by this paragraph include, without
limitation, however subject to any limits under applicable law,
Lender's attorneys' fees whether or not there is a lawsuit,
including attorneys' fees for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction),
appeals and any anticipated post-judgment collection services,
the cost of searching records, obtaining title reports
(including foreclosure reports), surveyors' reports, appraisal
fees, title insurance, and fees for the Trustee, to the extent
permitted by applicable law. For the purposes hereof, the
words "Lender's attorneys' fees" include the salaries, benefits
and expenses of attorneys employed in the office of the City
Attorney computed on an hourly basis for any such legal
services provided in connection with the enforcement of the
rights of the Lender hereunder. Trustor also will pay any
court costs, in addition to all other sums provided by law.
Rights of Trustee. Trustee shall have all of the rights and
duties of Lender as set forth in this section.
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6.0 POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions
relating to the powers and obligations of Trustee are part of
this Deed of Trust:
Powers of Trustee. In addition to all powers of Trustee
arising as a matter of law, Trustee shall have the power to
take the following actions with respect to the Property upon
the written request of Lender and Trustor: (a) join in
preparing and filing a map or plat of the Mortgaged Property,
including the dedication of streets or other rights to the
public; and (b) join in granting any easement or creating any
restriction on the Mortgaged Property.
Obligations to Notify. Trustee shall not be obligated to
notify any other party of a pending sale under any other trust
deed or lien, or of any action or proceeding in which Trustor,
Lender, or Trustee shall be a party, unless the action or
proceeding is brought by Trustee.
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Trustee. Trustee shall meet all qualifications required for
Trustee under applicable law. In addition to the rights and
remedies set forth above, with respect to all or any part of
the Mortgaged Property, the Trustee shall have the right to
foreclose by notice and sale, and Lender shall have the right
to foreclose by judicial foreclosure, in either case in
accordance with and to the full extent provided by applicable
law.
Successor Trustee. Lender, at Lender's option, may from time
to time appoint a successor Trustee to any Trustee appointed
hereunder by an instrument executed and acknowledged by Lender
and recorded in the office of the recorder of San Bernardino
County, California. The instrument shall contain, in addition
to all other matters required by state law, the names of the
original Lender, Trustee, and Trustor the book and page where
this Deed of Trust is recorded, and the name and address of the
successor trustee, and the instrument shall be executed and
acknowledged by Lender or its successors in interest. The
successor trustee, without conveyance of the Mortgaged
Property, shall succeed to all the title, power, and duties
conferred upon the Trustee in this Deed of Trust and by
applicable law. This procedure for substitution of trustee
shall govern to the exclusion of all other provisions for
substitution.
C::' 7.0 NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this
Deed of Trust shall be in writing and shall be effective when
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actually delivered or, if mailed, shall be deemed effective
three business days after it is deposited in the United States
mail first class, registered mail, postage prepaid, directed to
the addresses shown near the beginning of this Deed of Trust.
Any party may change its address for notices under this Deed of
Trust by giving formal written notice to the other parties,
specifying that the purpose of this notice is to change the
party's address. All copies of notices of foreclosure from the
holder of any lien which has priority over this Deed of Trust
shall be sent to Lender's address, as shown near the beginning
of this Deed of Trust. For Notice purposes, Trustor agrees to
keep Lender and Trustee informed at all times of Trustor's
current address. Each Trustor requests that copies of any
notices of default and sale be directed to Trustor's address
shown near the beginning of this Deed of Trust.
8.0
STATEMENT OF OBLIGATION. Lender may collect a fee, in an mount
not to exceed the statutory maximum, for furnishing the
statement of obligation as provided by Section 2943 of the
Civil Code of California.
9.0
[RESERVED]
10.0 ASSIGNMENT OF CONTRACTS. In addition to any other grant,
transfer or assignment effectuated hereby, without in any
manner limiting the generality of the grants in the conveyance
and grant section hereof, Trustor shall assign to Beneficiary,
as security for the indebtedness secured hereby, Trustor's
interest in all agreements, contracts, leases, licenses and
permits affecting the Property in any manner whatsoever, such
assignments to be made, if so requested by Beneficiary, by
instruments in form satisfactory to Beneficiary; but no such
assignment shall be construed as a consent by Beneficiary to
any agreement, contract license or permit so assigned, or to
impose upon Beneficiary any obligations with respect thereto.
11.0 BOOKS AND RECORDS. Trustor shall maintain, or cause to be
maintained, proper and accurate books, records and accounts
reflecting all items of income and expense in connection with
the operation of the Mortgaged Property or in connection with
any services, equipment or furnishings provided in connection
with the operation of the Mortgaged Property, whether such
income or expense be realized by Trustor or by any other person
or entity whatsoever excepting persons unrelated to and
unaffiliated with Trustor and who leased from Trustor portions
of the Mortgaged Property for the purposes of occupying the
dame. Upon the request of Beneficiary, Trustor shall prepare
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and deliver to Beneficiary such financial statements regarding
operation of the Mortgaged Property as Beneficiary may
reasonably request. Beneficiary, or its designee, shall have
the right from time to time during normal business hours to
examine such books, records and accounts and to make copies or
extracts therefrom.
12.0 MISCELLANEOUS PROVISIONS. The following
provisions are a part of this Deed of Trust:
miscellaneous
Environmental Default and Remedies. In the event that any
portion of the Mortgaged Property is determined to be
nenvironmentally impaired", or an naffected parcel" as these
terms are defined at Code of civil Procedure Section 725.5(e),
then in such event and without limiting or in any way affecting
the another rights and remedies of the Trustee and the
Beneficiary under this Deed of Trust, the Beneficiary may elect
to exercise its rights under Code of Civil Procedure Section
725.5(a) to waive its lien or such portion of the Mortgaged
Property and to exercise its rights and remedies to recover the
Indebtedness under a judgment as an unsecured creditor of the
Trustor and/or to exercise any other remedy authorized by law.
The Trustor shall be deemed to have willfully permitted or
acquired in a or release or threatened release of a hazardous
substance, if such release or threatened release was knowingly
or negligently caused or contributed by to by any lessee,
occupant, user of the Mortgaged Property which caused or
contributed to the release or threatened release of a hazardous
substance. All costs and expenses of the Beneficiary,
including reasonable attorney's fees, plus interest at a rate
per annum of eight percent (8%) until paid, as incurred in
connection with an action as may be brought by the Beneficiary
as provided in Code of Civil Procedure Section 725.5(b).
Amendments. This Deed of Trust, together with any Related
Documents, constitutes the entire understanding and agreement
of the parties as to the matters set forth in this Deed of
Trust. No alteration of or amendment to this Deed of Trust
shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the
altercation or amendment.
Acceptance by Trustee. Trustee accepts this Trust when this
Deed of Trust, duly executed and acknowledged, is made a public
record as provided by law.
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Applicable Law. This Deed of Trust has been delivered to
Lender and accepted by Lender in the State of California. This
Deed of Trust shall be governed by and construed in accordance
with the laws of the State of California.
Caption Headings. Caption headings in this Deed of Trust are
for convenience purposes only and are not to be used to
interpret or define the provisions of this Deed of Trust.
Merger. There shall be no merger of the interest or estate
created by this Deed of Trust with any other interest or estate
in the Property at any time held by or for the benefit of
Lender in any capacity, without the written consent of Lender.
Severability. If a court of competent jurisdiction finds any
provision of this Deed of Trust to be invalid or unenforceable
as to any person or circumstance, such finding shall not render
that provision invalid or unenforceable as to any other persons
or circumstances. If feasible, any such offending provision
shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision
cannot 'be so modified, it shall be stricken and all other
provisions of this Deed of Trust in all other respects shall
remain valid and enforceable.
Successors and Assigns. Subject to the limitations stated in
this Deed of Trust on transfer of Trustor's interest, this Deed
of Trust shall be binding upon and inure to the benefit of the
parties, their successors and assigns. If ownership of the
Property becomes vested in a person other Trustor, Lender,
without notice to Trustor, may deal with Trustor's successors
with reference to this Deed of Trust and the indebtedness by
way of forbearance or extension without releasing Trustor from
the obligations of this Deed of Trust or liability under the
Indebtedness.
Time is of the Essence. Time is of the essence in the
performance of this Deed of Trust.
Waivers and Consents. Lender shall not be deemed to have
waived any rights under this Deed of Trust (or under the
Related Documents) unless such waiver is in writing and signed
by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or
any other right. A waiver by and any party of a provision of
this Deed of Trust shall not constitute a waiver of or
prejudice the party's right otherwise to demand strict
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compliance with that provision or any other provision. No
prior waiver by Lender, nor any course of dealing between
Lender and Trustor, shall constitute a waiver of any of
Lender's rights or any of Trustor's obligations as to any
future transactions. Whenever consent by Lender is required in
this Deed of Trust, the granting of such consent by Lender in
any instance shall not constitute continuing consent to
subsequent instances where such consent is required.
Fixture Filing. This Deed of Trust also constitutes a
fixture filing as defined in the California Uniform Commercial
Code, as amended or recodified from time to time. This Deed
of Trust is to be recorded in the real estate records of San
Bernardino County, California, and covers goods which are to
become fixtures.
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THE TRUSTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED
OF TRUST, AND THE TRUSTOR AGREES TO ITS TERMS, AND THE TERMS OF THE
PROMISSORY NOTE SECURED BY THIS DEED OF TRUST.
TRUSTOR
Wayne L. Browning and Dolores C.
Browning, Trustees of the Browning
Family Trust Established February 27,
1987, as to an undivided 1/3 interest
- - and - -
Gary F. Schones and Janet R. Schones,
husband and wife as joint tenants as
to an undivided 1/3 interest
- - and - -
David P. Lansing and Peggy Sue
Lansing, husband and wife as joint
tenants as to an undivided 1/3
interest
Date:
By:
Wayne L. Browning, Trustee
By:
Dolores C. Browning, Trustee
By:
Gary F. Schones
By:
Janet Schones
By:
David P. Lansing
By:
Peggy Sue Lansing
[SIGNATURES MUST BE ACCOMPANIED BY NOTARY JURAT]
SB200 I :23708.1
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~ RECORDING REQUESTED BY
\......, AND WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street,
Suite 301
San Bernardino, CA 92401
Attn: Director of Housing and
Community Development
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(Space Above Line Reserved For Use By Recorder)
(Exempt from Recording Fees Per Govt. Code Sec. 6103)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
REGULATORY AGREEMENT AND COVENANTS
(2001 CYPRESS MOBILEHOME PARK: 2057 Mt. Vernon Avenue City of San
Bernardino Housing Loan Agreement)
THIS REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
REGULATORY AGREEMENT AND COVENANTS (the "Regulatory Agreement") is
made and entered into as of , 2001 by and between the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body
corporate and politic (the "Agency") and Wayne L. Browning and
Dolores C. Browning, Trustees of the Browning Family Trust
established February 27, 1987 as to an undivided 1/3 interest; Gary
F. Schones and Janet R.Schones, husband and wife as joint tenants,
as to an undivided 1/3 interest; and David P. Lansing and Peggy Sue
Lansing, husband and wife as joint tenants as to an undivided 1/3
interest (collectively, the "OWNER") with reference to the
following facts:
-- RECITALS --
A. The Owner owns and operates Cypress Mobile Home Park
located at 2057 Mt. Vernon Avenue, San Bernardino, California (the
"Park") and consideration for an affordable rental housing loan of
funds to the Owner by the Redevelopment Agency of the City of San
Bernardino (the "Agency") in accordance with that certain 2001
Housing Loan Agreement, dated as of August 20, 2001 (the "Loan
Agreement") by and between the Owner and the Agency, the Owner has
SB2001:23553.1
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agreed to provide affordable rental housing at the mobilehome park
facility generally situated at 2057 Mt. Vernon Avenue, San
Bernardino, California (the "Park"), for low and moderate income
tenants/residents (the "Residents"). Each such Resident shall own
and occupy a manufactured home which shall be situated in the Park,
and each Resident shall pay rent to the Owner for its occupancy and
possession of a manufactured home/mobilehome space in the Park (a
"Manufactured Home Space"). A legal description of the Park is
attached hereto as Exhibit "A" and incorporated herein by this
reference.
B. Pursuant to this Loan Agreement the Agency shall loan to
the Owner an amount not to exceed the sum of Seventy Five Thousand
Dollars ($75,000.00) to assist the Owner in accomplishing its
affordable Park ownership and improvements to the Park subject to
certain conditions, including the terms and conditions set forth
this Regulatory Agreement.
C. The terms of the Loan Agreement require that certain
covenants and manufactured home space rental affordability
restrictions remain in full force in the Park for a period of
fifteen (15) years following the date of recordation of this
Regulatory Agreement (the "Term") in order to ensure that:
(i) Twenty percent (20%) of the Manufactured Home Spaces in
the Park,for a subtotal of at least ten (10) spaces of
such Manufactured Home Spaces, shall at all times be
occupied or reserved for occupancy by persons who have a
household income which is not more than one hundred and
twenty (120%) percent of median income, adjusted for
family size (each a "Qualifying Resident", as defined
below), as determined by HUD for the San Bernardino-
Riverside PMSA area ("Median Income"); and
(ii) each Qualifying Resident shall pay no more as rent than
an "Affordable Rent" as defined below.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
UNDERTAKINGS SET FORTH HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY
ACKNOWLEDGED, THE OWNER AND THE AGENCY DO HEREBY COVENANT AND AGREE
FOR THEMSELVES, THEIR SUCCESSORS AND ASSIGNS AS FOLLOWS:
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Section 1. Definitions of Certain Terms. As used in this
Regulatory Agreement, the following words and terms shall have the
meaning as provided in the Recitals or in this Section 1 unless the
specific context of usage of a particular word or term may
otherwise require:
Affordable Rent.
The words "Affordable Rent" mean:
(i) for Qualifying Residents whose income is not more than
fifty percent (50%) of Median Income, total charges for
rent, utilities and related services that on an annual
basis does not exceed percent ( %) of
percent ( %) of Median Income, adjusted for
family size; or
(ii) for Qualifying Residents whose income is not more than
one hundred twenty percent (120%) of Median Income, total
charges for rent, utilities and related services that on
an annual basis does not exceed percent (__%)
of percent ( %) of Median Income, adjusted
for family size.
Manufactured Home Space. The words "Manufactured Home Space"
mean and refer to each rental space for manufactured homes in
the Park. Residents occupy Manufactured Home Spaces under the
terms of lease or rental agreements by and between each such
Resident and the Owner.
Median Income. The words "Median Income" mean median income as
determined by the United States Department of Housing and
Urban Development for the San Bernardino-Riverside PMSA area,
or such successor agency as provided in Health and Safety Code
Section 50098.
Owner. The word "Owner" means the Wayne L. Browning,
Dolores C. Browning Trustees of the Browning Family Trust
established February 27, 1987 as to an undivided 1/3 interest
in the Park and Gary F. Schones and Janet R. Schones, husband
and wife as to an undivided 1/3 interest as joint tenants, and
David P. Lansing and Peggy Sue Lansing, and their successors
and assigns.
Qualifying Resident. The words "Qualifying Resident" mean
the tenant of any Manufactured Home Space within the Park who
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shall have an income that does not exceed the Qualifying
Resident Income.
Qualifying Resident Income.
Income" mean:
The words "Qualifying Resident
(i) in the case of Qualifying Residents who shall occupy at
least five (5) Manufactured Home Spaces in the Park , a
household income which is not more than FIFTY percent
(50%) of Median Income, adjusted for family size; and
(ii) in the case of Qualifying Residents who shall occupy at
least five Manufactured Home Spaces in the Park , a
household income which is not more than ONE HUNDRED
TWENTY percent (120%) of Median Income, adjusted for
family size.
Regulatory Agreement. The words "Regulatory Agreement" mean
this Redevelopment Agency of the City of San Bernardino
Regulatory Agreement and Covenants by and between the Owner
and the Agency pertaining to the Park.
Term. The word "Term" means the period of time beginning
on the date of the date of recordation of this Regulatory
Agreement and ending on the fifteenth (15th) anniversary
thereafter.
The titles and headings of the sections of this Regulatory
Agreement have been inserted for convenience of reference only and
are not to be considered a part hereof and shall not in any way
modify or restrict the meaning any of the terms or provisions
hereof.
Section 2.
of the Aqencv.
Acknowledqment of the Owner and Acknowledqrnent
(a) The Owner hereby acknowledges that this Regulatory
Agreement imposes certain restrictions on the use and occupancy of
the Park during the Term of this Regulatory Agreement. The Owner
acknowledges and understands that the restrictions shall be
applicable to the Park for the Term hereof, commencing on the date
of recordation of this Regulatory Agreement.
Dated:
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Initials of Owner
Section 3. Covenant of the Owner to Rent Manufactured Home
Spaces to Qualifvinq Residents; Covenant of the Owner to Charqe
Affordable Rent; Covenants Reqardinq Maintenance of Records.
(a) During the Term, the Owner covenants that twenty (20%) of
the Manufactured Home Spaces in the Park, for a total of 10
Manufactured Home Spaces, shall at all times be occupied or held
vacant available for rental by Qualifying Residents as follows:
(i) not less than five (5) Manufactured Home Spaces shall be
occupied or reserved for occupancy by Qualifying
Residents whose income shall not exceed fifty percent
(50%) of Median Income, adjusted for family size; and
(ii) not less than five (5) Manufactured Home Spaces shall be
occupied or reserved for occupancy by Qualifying
Residents whose income does not exceed one hundred twenty
percent (120%) of Median Income, adjusted for family
size.
Determination of Qualifying Resident Income shall be made by
the Owner at the time of initial occupancy of a Manufactured Home
Space and annually thereafter during the time of each the Owner
shall re-certify such Qualifying Resident's income. The Owner
shall obtain and complete prior to initial occupancy, and
thereafter maintain on file as set forth below, income
certifications from each Qualifying Resident. The Owner shall make
a good faith effort to verify that the income provided by an
applicant (or occupying Qualifying Resident household) in an income
certification is accurate by taking one or more of the following
steps as a part of the verification process: (1) obtain an income
tax return for the most recent tax year for each adult person in
the household; (2) conduct a credit agency or similar search for
each adult person in the household; (3) obtain an income
verification for each adult person in the household; (4) obtain an
income verification form from the United States social Security
Administration and/or the California Department of Social Services
if the applicant receives assistance from either of such agencies;
or (5) if the applicant is unemployed and has no such tax return,
obtain another form of independent verification. On the
anniversary of the occupancy of such Manufactured Home Space the
5B2001:23553.1
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Owner shall recertify the household income of the Qualifying
Resident household occupying the each Manufactured Home Space.
Copies of tenant income certification shall be made available by
the Owner to the Agency upon request.
(b) During the Term, the Owner covenants that it shall not
charge in excess of Affordable Rent for any Manufactured Home Space
in the Park reserved for occupancy by a Qualifying Resident. The
Owner may increase rents on Qualifying Residents based on changes
in Median Income only, and no more than once in any twelve-month
period.
(c) During the Term, the Owner and all Qualifying Residents
shall permit the Agency to conduct inspections of the Park from
time-to-time for purposes of verifying compliance with this
Regulatory Agreement upon thirty (30) days prior written notice to
the Owner.
(d) Commencing on the June 30 next following the date of
recordation of this Regulatory Agreement and on each June 30
thereafter during the Term, the Owner shall submit a report to the
Agency, in a form approved by the Agency. The annual report shall
include for each Manufactured Home Space in the Park , the rent and
the income and family size of the Qualifying Resident household
occupying the Manufactured Home Space. The report shall also state
the date the tenancy commenced for each Manufactured Home Space and
such other information as the Agency may be required by law to
obtain; provided, however, that the Agency shall take reasonable
steps to maintain the confidential nature of the information
contained therein relating to any Manufactured Home Space. The
Owner shall provide any additional information reasonably requested
by the Agency, including without limitation such Park -related
income and expense accounting information and the Qualifying
Resident Income information set forth in Section 3(a). The Agency
shall have the right to examine and make copies of all books,
records or other documents of Owner which pertain to any
Manufactured Home Space; provided, however, that the Agency shall
take reasonable steps to maintain the confidential nature of the
information contained therein. The Owner shall maintain complete,
accurate and current records pertaining to the Manufactured Home
Spaces and the Park and shall permit any duly authorized
representative of the Agency (during business hours and upon not
less than seventy-two (72) hours notice) to inspect records,
including records pertaining to income and household size of
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Qualifying Residents; provided however, that the Agency shall
reasonable steps to maintain the confidential nature of
information contained therein relating to any household.
take
the
Section 4. Covenant of the Owner With Respect to the
Rental of Manufactured Home Spaces in the Park. The Owner for
itself, its successors and assigns hereby covenants and agrees
that, in connection with the rental of Manufactured Home Spaces in
the Park to Qualifying Residents during the Term, it shall comply
with the following requirements:
(a) The lease between the Owner and the Qualifying Resident
shall be for not less than one year, unless by mutual agreement
between the Owner and the Qualifying Resident but in such a case
for not less than a period as may then be required under any of the
Senior Security Interests.
(b) The lease shall not contain any of the following
provisions:
(i) an Agreement by the Qualifying Resident waiving its right
to resolve any dispute with the Owner in a lawsuit
brought in connection with the lease;
(ii) an Agreement by the Qualifying Resident that the Owner
may take, hold or sell personal property of household
members without notice to the Qualifying Resident and a
court decision on the rights of the parties, other than
an agreement by the Resident concerning disposition of
personal property remaining at the Manufactured Home
Space after the Qualifying Resident has moved out of the
Manufactured Home Space;
(iii) an Agreement by the Qualifying Resident not to hold the
Owner, or its agents legally responsible for any action
or failure to act, whether intentional or negligent;
(iv) an Agreement by the Qualifying Resident that the Owner
may institute a lawsuit without notice to the tenant;
(v) an Agreement by the Qualifying Resident that the Owner
may evict the Qualifying Resident without instituting a
civil court proceeding in which the Qualifying Resident
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has the opportunity to present a defense, or before a
court decision on the rights of the parties;
(vi) an Agreement by the Qualifying Resident to waive any
right to a trial by jury;
(vii)
an Agreement by the
Qualifying Resident'
challenge in court a
the lease;
Qualifying Resident to waive the
right to appeal, or to otherwise
court decision in connection with
(viii) an Agreement by the Qualifying Resident to pay attorney's
fees or other legal costs even if the Qualifying Resident
wins in a court proceeding by the Owner against the
Qualifying Resident; provided, however, the Qualifying
Resident may be obligated to pay costs if the tenant
loses.
(c) The Owner shall not terminate the tenancy or refuse to
renew the lease of a Qualifying Resident except for serious or
repeated violation of the terms and conditions of such lease for
violation of applicable Federal, State, or local law; or for other
good cause. The Owner shall, in connection with a termination of a
tenancy or a refusal to renew the lease, serve written notice upon
the Qualifying Resident specifying the grounds for the action at
least thirty (30) days before the termination of the tenancy.
(d) The Owner shall adopt written tenant selection policies
and criteria for Qualifying Residents that:
(i) are consistent with the purpose of providing housing for
individuals who have an income that is no more than the
Qualifying Resident Income;
(ii) are reasonably related to program eligibility and the
applicants' ability to perform the obligations of the
lease;
(iii) give reasonable consideration to the housing needs of
individuals who occupy substandard housing (including
individuals that are homeless or living in a shelter for
homeless individuals); individuals that are paying more
than fifty (50) percent of their annual income for rent;
or individuals that are involuntarily displaced;
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(iv) provide for the selection of tenants from
waiting list in the chronological order
application, insofar as is practicable; and
a written
of their
(v) give prompt written notification to any rejected
applicant of the grounds for any rejection.
(e) All of the Manufactured Home Spaces in the Park shall be
available for occupancy on a continuous basis to Qualifying
Residents. The Owner shall not give preference to any particular
class or group of persons in renting the Manufactured Home Spaces.
There shall be no discrimination against or segregation of any
person or group of persons, on account of race, color, creed,
religion, sex, sexual orientation, marital status, national origin,
or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of any Manufactured Home Space.
Neither the Owner nor any person claiming under or through the
Owner, shall 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 any Manufactured Home Space
or in connection with the employment of persons for the operation
and management of any Manufactured Home Space. All deeds, leases
or contracts made or entered into by owner as to the Manufactured
Home Spaces or the Park or portion thereof, shall contain covenants
prohibiting discrimination as prescribed by this Regulatory
Agreement. The Owner shall include a statement in all
advertisements, notices and signs for the availability of
Manufactured Home Spaces for rent to the effect that Owner is an
Equal Housing Opportunity Provider.
Section 5.
Rehabilitation of the Park .
(a) The Owner hereby reaffirms its covenant and agreement as
set forth in the Loan Agreement to complete the rehabilitation of
the Park in accordance with the Project Description and Budget
attached as Exhibit "B" to the Loan Agreement (the "Rehabilitation
Work":). (b) The Owner shall be responsible for management of the
Park, including, without limitation, the selection of Qualifying
Residents, certification and recertification of household size, and
income and the age of the head of household of all Manufactured
Home Spaces, evictions, collection of rents and deposits,
maintenance, landscaping, routine and extraordinary repairs,
582001 :23553.1
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replacement of capital items, and security. The Agency shall have
no responsibility for the management or operation of the Park.
The Park shall at all times be managed by an experienced management
agent (the "Management Agent") reasonably acceptable to the Agency,
with demonstrated ability to operate Park facilities in a manner
that will provide decent, safe, and sanitary housing. For the
purposes hereof, if the Owner directly performs the functions of
the Management Agent by its employees or by means of a service
contract with an entity which is a managing member of the Owner,
such a Management Agent shall be deemed approved by the Agency. If
the Management Agent is an entity or person other than the Owner,
its employees or an entity owned or controlled by the Owner, the
Owner shall submit for the Agency's approval the identity of any
proposed Management Agent, together with additional information
relevant to the background, experience and financial condition of
any proposed Management Agent as reasonably requested by the
Agency. If the proposed Management Agent meets the standard for a
qualified Management Agent set forth above, the Agency shall
approve the proposed Management Agent by notifying the Owner in
writing. Unless the proposed Management Agent is disapproved by
the Agency within thirty (30) days, which disapproval shall state
with reasonable specificity the basis for disapproval, it shall be
deemed approved. The Owner is hereby approved by the Agency as the
Management Agent for the Park.
(c) The Owner shall cause to have in full force and effect
during the Term hereof insurance coverage as follows:
(i) If any building or improvement on the Park (exclusive of
any Manufactured Home or other structure owned by a
tenant, including any Qualifying Resident) shall be
damaged or destroyed by an insurable cause, the Owner
shall, at its own cost and expense, diligently repair or
restore the Park consistent with the original plans and
specifications for the Park. Such work or repair shall
be commenced within sixty (60) days after the damage or
loss occurs and shall be completed within one year
thereafter. All insurance proceeds collected for such
damage or destruction shall be applied to the cost of
such repairs or restoration and, if such insurance
proceeds shall be insufficient for such purpose, the
Owner shall make up the deficiency;
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(ii) a policy of comprehensive general liability insurance
written on a per occurrence basis in an amount not less
than either (i) a combined single limit of ONE MILLION
DOLLARS ($1,000,000.00) or (ii) bodily injury limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per person,
ONE MILLION DOLLARS ($1,000,000.00) per currency, ONE
MILLION DOLLARS ($1,000,000.00) products and completed
operations and property damage limits of FIVE HUNDRED
THOUSAND DOLLARS ($500,000.00) per occurrence and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) in the aggregate.
(iii) a policy of workers' compensation insurance in such
amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide
legal defense for the Owner against any loss, claim or
damage arising from any injuries or occupational diseases
occurring to any worker employed by or any persons
retained by the Owner in the course of carrying out the
activities in this Regulatory Agreement.
(iv) a policy of comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less
than either (i) bodily injury liability limits of TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) per person
and FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) per
occurrence and property damage liability limits of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00) per occurrence and
ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in the
aggregate or (ii) combined single limit liability of FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00). Said policy
shall include coverage for owned, nonowned, leased and
hired vehicles.
All of the above policies of insurance shall be primary
insurance and shall name the City of San Bernardino and the Agency,
and the officers, employees, and agents of each of them as
additional insured. The insurer shall waive all rights of
subrogation and contribution it may have against the City of San
Bernardino and/or the Agency and their officers, employees and
agents and their respective insurers. All of said policies of
insurance shall provide that said insurance may not be amended or
canceled without providing thirty (30) days prior written notice by
registered mail to Agency. In the event any of said policies of
insurance are canceled, the Owner shall, prior to the cancellation
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date, submit new evidence of insurance in conformance with this
Section to the Executive Director. No operation of the Park shall
commence until the Owner has provided Agency with certificates of
insurance or appropriate insurance binders evidencing the above
insurance coverages, and said certificates of insurance or binders
are approved by Agency.
The policies of insurance required by this Regulatory
Agreement shall be satisfactory only if issued by companies
qualified to do business in California, rated at least AA(vii)@ or
better in the most recent edition of Bests Insurance Rating Guide
or an equivalent rating in The Key Rating Guide or in the Federal
Register unless such requirements are modified or waived by the
Executive Director of the Agency due to unique circumstances.
The Owner agrees that the provisions of this Section shall not
be construed as limiting in any way the extent to which the Owner
may be held responsible for the payment of damages to any persons
or property resulting from the Owner's activities of the Owner or
the activities of any person or persons for which the Owner is
otherwise responsible.
Section 6. Maintenance of
itself, its successors and assigns,
that:
the Park. The Owner, for
hereby covenants and agrees
(a) The exterior areas of the Park (not including
Manufactured Homes), which are subject to public view (e.g.: all
improvements, paving, walkways, landscaping, and ornamentation)
shall be maintained in good repair and a neat, clean and orderly
condition, ordinary wear and tear excepted. In the event that at
any time during the Term, there is an occurrence of an adverse
condition on any area of the Park which is subject to public view
in contravention of the general maintenance standard described
above, (a "Maintenance Deficiency") then the Agency shall notify
the Owner in writing of the Maintenance Deficiency and give the
Owner thirty (30) days from the date of such notice to cure the
Maintenance Deficiency as identified in the notice. The words
"Maintenance Deficiency" include without limitation the following
inadequate or non-confirming property maintenance conditions and/or
breaches of residential property use restrictions:
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failure to properly maintain the windows, structural elements,
and painted exterior surface areas of any structure on the
Park in a clean and presentable manner;
failure to keep the common areas of the Park free of
accumulated debris, appliances, inoperable motor vehicles or
motor vehicle parts, or free of storage of lumber, building
materials or equipment not regularly in use on the Park ;
failure to regularly mow lawn areas or permit
in lawn areas to exceed three inches (3")
failure to otherwise maintain the landscaping
condition free of weed and debris;
grasses planted
in height, or
in a reasonable
parking of any commercial motor vehicle in excess of 7,000
pounds gross weight anywhere on the Park , or the parking of
motor vehicles, boats, camper shells, trailers, recreational
vehicles and the like in any side yard or on any other parts
of the Park which are not covered by a paved and impermeable
surface;
the use of garage areas on the Park for purposes other than
the parking of motor vehicles and the storage of personal
possessions and mechanical equipment of persons residing in
the Park.
In the event the Owner fails to cure or commence to cure the
Maintenance Deficiency within the time allowed, the Agency may
thereafter conduct a public hearing following transmittal of
written notice thereof to the Owner ten (10) days prior to the
scheduled date of such public hearing in order to verify whether a
Maintenance Deficiency exists and whether the Owner has failed to
comply with the provision of this Section 6 (a) . If, upon the
conclusion of a public hearing, the Agency makes a finding that a
Maintenance Deficiency exists and that there appears to be non-
compliance with the general maintenance standard, as described
above, thereafter the Agency shall have the right to enter the
Park (exterior areas only) and perform all acts necessary to cure
the Maintenance Deficiency, or to take other action at law or
equity the Agency may then have to accomplish the abatement of the
Maintenance Deficiency. Any sum expended by the Agency for the
abatement of a Maintenance Deficiency as authorized by this Section
6(a) shall become a lien on the Park. If the amount of the lien is
not paid within thirty (30) days after written demand for payment
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by the Agency to the Owner, the Agency shall have the right to
enforce the lien in the manner as provided in Section 6(c).
(b) Graffiti which is visible from any public right-of-way
which is adjacent or contiguous to the Park shall be removed by the
Owner from any exterior surface of a structure or improvement on
the Park by either painting over the evidence of such vandalism
with a paint which has been color-matched to the surface on which
the paint is applied, or graffiti may be removed with solvents,
detergents or water as appropriate. In the event that graffiti is
placed on the Park (exterior areas only) and such graffiti is
visible from an adj acent or contiguous public right-of -way and
thereafter such graffiti is not removed within 72 hours following
the time of its application; then in such event and without notice
to the Owner, the Agency shall have the right to enter the Park and
remove the graffiti. Notwithstanding any provision of Section 6(a)
to the contrary, any sum expended by the Agency for the removal of
graffiti from the Park as authorized by this Section 6(b) shall
become a lien on the Park. If the amount of the lien is not paid
within thirty (30) days after written demand for payment by the
Agency to the Owner, the Agency shall have the right to enforce its
lien in the manner as provided in Section 6(c).
(c) Subject to the liens created under the Senior Security
Interests, the parties hereto further mutually understand and agree
that the rights conferred upon the Agency under this Section 6
expressly include the power to establish and enforce a lien or
other encumbrance against the Park in the manner provided under
civil Code Sections 2924, 2924b and 2924c in the amount as
reasonably necessary to restore the Park to the maintenance
standard required under Section 6(a) or Section 6(b), including
attorneys fees and costs of the Agency associated with the
abatement of the Maintenance Deficiency or removal of graffiti and
the collection of the costs of the Agency in connection with such
action. In any legal proceeding for enforcing such a lien against
the Park, the prevailing path shall be entitled to recover its
attorneys' fees and costs of suit. The provisions of this Section
6 shall be a covenant running with the land for the Term and shall
be enforceable by the Agency in its discretion, cumulative with any
other rights or powers granted by the Agency under applicable law.
Nothing in the foregoing provisions of this Section 6 shall be
deemed to preclude the Owner from making any alterations,
additions, or other changes to any structure or improvement or
landscaping on the Park, provided that such changes comply with the
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zoning and development regulations of the City
applicable law.
and other
(d) The Owner agrees to take reasonable measures to enforce
the provisions of each of its rental agreements and/or leases with
tenants, including Qualifying Residents, relating to the
maintenance by each such tenant of its Manufactured Home Space and
the Manufactured Home thereon, in a good condition, reasonable wear
and tear excepted.
Section 7. Covenants to Run With the Land. The Owner and
the Agency hereby declare their specific intent that the covenants,
reservations and restrictions set forth herein are part of a plan
for the promotion and preservation of affordable housing within
the territorial jurisdiction of the Agency and that each shall be
deemed covenants running with the land and shall pass to and be
binding upon the Park and each successor-in-interest of the Owner
in the Park for the Term. The Owner hereby expressly assumes the
duty and obligation to perform each of the covenants and to honor
each of the reservations and restrictions set forth in this
Regulatory Agreement. Each and every contract, deed or other
instrument hereafter executed covering or conveying the Park or any
interest therein shall conclusively be held to have been executed,
delivered and accepted subject to such covenants, reservations, and
restrictions, regardless of whether such covenants, reservations
and restrictions are set forth in such contract, deed or other
instrument.
Section 8. Burden and Benefit. The Agency and the Owner
hereby declare their understanding and intent that the burden of
the covenants set forth herein touch and concern the land in that
the Owner's legal interest in the Park is affected by the
affordable dwelling use and occupancy covenants hereunder. The
Agency and the Owner hereby further declare their understanding and
intent that the benefit of such covenants touch and concern the
land by enhancing and increasing the enjoyment and use of the Park
Properties by the intended beneficiaries of such covenants,
reservations and restrictions, and by furthering the affordable
housing goals and objectives of the Agency and in order to make the
Park available for acquisition by the Owner.
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Section 9.
Term.
(a) The provisions of this Regulatory Agreement shall apply
to the Park until the fifteenth (15th) anniversary following its
recordation.
(b) Any provision or section of this Regulatory Agreement may
be terminated prior to the end of the Term hereof upon written
agreement by the Agency and the Owner if the Agency, in its
reasonable discretion, determines that such a termination will not
adversely affect the affordable housing goals of the Agency and be
contrary to the California Redevelopment Law.
(c) During the Term hereof the Agency shall provide the Owner
with written confirmation that no event of default has occurred or
its continuing hereunder, upon thirty (30) days written request
from the Owner. If an event of default has occurred and is
continuing, the Agency shall include in its written response to the
Owner a description of the steps to be taken by the Owner to cure
or correct such event of default.
Section 10.
Breach and Default and Enforcement.
(a) Failure or delay by the Owner to honor or perform any
material term or provision of this Regulatory Agreement shall
constitute a breach under this Regulatory Agreement; provided
however, that if the Owner commences to cure, correct or remedy the
alleged breach within thirty (30) calendar days after the date of
written notice specifying such breach and shall diligently complete
such cure, correction or remedy, the Owner shall not be deemed to
be in default hereunder.
The Agency shall give the Owner written notice of breach
specifying the alleged breach which if uncured by the Owner within
thirty (30) calendar days, shall be deemed to be an event of
default. Delay in giving such notice shall not constitute a waiver
of any breach or event of default nor shall it change the time of
breach or event of default; provided, however, the Agency shall not
exercise any remedy for an event of default hereunder without first
delivering the written notice of breach as specified in this
Section 10.
Except with respect to rights and remedies expressly declared
to be excl usi ve in this Regulatory Agreement, the rights and
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remedies of the Agency are cumulative with any other right or power
of the Agency or the City or other applicable law, and the exercise
of one or more of such rights or remedies shall not preclude the
exercise by the Agency at the same or different times, of any other
right or remedy for the same breach or event of default.
In the event that a breach of the Owner may remain incurred
for more than thirty (30) calendar days following written notice,
as provided above, an event of default shall be deemed to have
occurred. In addition to the remedial provisions of Section 5 as
related to a Maintenance Deficiency at the Park upon the
occurrence of any event of default the Agency shall be entitled to
seek any appropriate remedy or damages by initiating legal
proceedings as follows:
(i) by mandamus or other suit, action or proceeding at law or
in equity, to require the Owner to perform its
obligations and covenants hereunder, or enjoin any acts
or things which may be unlawful or in violation of the
rights of the Agency; or
(ii) by other action at law or in equity as necessary or
convenient to enforce the obligations, covenants and
agreements of the Owner to the Agency.
(b) Except as set forth in the next sentence, no third party
shall have any right or power to enforce any provision of this
Regulatory Agreement on behalf of the Agency or to compel the
Agency to enforce any provision of this Regulatory Agreement
against the Owner or the Park.
Section 11. Governinq Law. This Regulatory Agreement shall
be governed by the laws of the State of California.
Section 12. Amendment. This Regulatory Agreement may be
amended after its recordation only by a written instrument executed
by the Owner and by the Agency.
Section 13. Attorney's Fees. In the event that the Agency
brings an action to enforce any condition or covenant,
representation or warranty in this Regulatory Agreement or
otherwise arising out of this Regulatory Agreement, the prevailing
party in such action shall be entitled to recover from the other
party reasonable attorneys' fees to be fixed by the court in which
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a judgment is entered, as well as the costs of such suit. For the
purposes of this Section 13, the words "reasonable attorneys' fees"
in the case of the Agency, include the salaries, costs and overhead
of the lawyers employed in the Office of the City Attorney of the
City of San Bernardino, completed on an hourly basis, who provide
legal services to the Agency in connection with the enforcement of
this Regulatory Agreement.
Section 14. Severability. If any provision of this
Regulatory Agreement shall be declared invalid, inoperative or
unenforceable by a final judgment or decree of a court of competent
jurisdiction such invalidity or unenforceability of such provision
shall not affect the remaining parts of this Regulatory Agreement
which are hereby declared by the parties to be severable from any
other part which is found by a court to be invalid or
unenforceable.
Section 15. Time is of the Essence. For each provision of
this Regulatory Agreement which states a specific amount of time
within which the requirements thereof are to be satisfied, time
shall be deemed to be of the essence.
Section 16. Notice. Any notice required to be given under
this Regulatory Agreement shall be given by the Agency or by the
Owner, as applicable, by personal delivery or by First Class United
States mail at the addresses specified below or at such other
address as may be specified in writing by the parties hereto:
If to the Agency:
Redevelopment Agency of the
City of San Bernardino
201 North AE@ Street, Suite 301
San Bernardino, California 92401
Attn: Director of Housing and
Community Development
Phone: (909) 663-1044
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If to the Owner:
Wayne L. Browning, Dolores Browning,
Gary F. Schones and Janet Schones,
and David P. Lansing and Peggy
Lansing,
Owner
Attn:
Phone:
Notice shall be deemed given five (5) calendar days after the
date of mailing to the party, or, if personally delivered, when
received by the Director of Housing and Community Development of
the Agency or the Owner, as applicable.
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IN WITNESS WHEREOF, the Owner and the Agency have caused this
Regulatory Agreement to be signed, acknowledged and attested on
their behalf by duly authorized representatives in counterpart
original copies which shall upon execution by all of the parties be
deemed to be one original document.
OWNER
Wayne L. Browning and Dolores C.
Browning, Trustees of the Browning
Family Trust Established February
27, 1987, as to an undivided 1/3
interest
Gary F.
Schones,
tenants
interest
- - and
Schones and Janet R.
husband and wife as joint
as to an undivided 1/3
and
David P. Lansing and Peggy Sue
Lansing, husband and wife as joint
tenants as to an undivided 1/3
interest
Date:
By:
Wayne L. Browning, Trustee
By:
Dolores C. Browning, Trustee
By:
Gary F. Schones
By:
Janet Schones
By:
David P. Lansing
By:
Peggy Sue Lansing
AGENCY
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Dated:
Redevelopment Agency of the City
of San Bernardino
By:
Executive Director
[ALL SIGNATURES MUST BE NOTARIZED]
Approved as to Form and Legal Content:
By:
Agency Special Counsel
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EXHIBIT "Au
Legal Description of the Park
5B2001 :23553.1
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO AUTHORIZING AND
APPROVING A $75,000 HOUSING LOAN PER THE TERMS OF THE
PROMISSORY NOTE TO WAYNE L. & DOLORES BROWNING, GARY
F. & JANET SCHONES AND DAVID P. & PEGGY LANSING, THE
"JOINT OWNERS" OF THE CYPRESS INN MOBILE HOME PARK
LOCATED AT 2057 MT. VERNON AVENUE - NORTHWEST
REDEVELOPMENT PROJECT AREA
WHEREAS, the Community Development Commission of the City of San Bernardino
(the "Commission") is the governing body of the Redevelopment Agency of the City of San
Bernardino (the "Agency"), a public body corporate and politic, organized and existing pursuant
12
to the Community Redevelopment Law (California Health and Safety Code Section 33000, et.
~;and
WHEREAS, on or about March 2001, Wayne 1. & Dolores Browning, Gary F. & Janet
Schones and David P. & Peggy Lansing, (the "Joint Owners") purchased the Cypress Mobile
Home Park located at 2057 Mt. Vernon Avenue (the "Park") in the Northwest Redevelopment
Project Area ( "Project Area") for the purpose of rehabilitating and improving the Park and
making the mobile home units available to low and moderate income households; and
WHEREAS, in order to effectuate the redevelopment plan for the Project Area, and
preserve the affordable housing units on the Park, the Redevelopment Committee on July 26,
2001, approved a $75,000 Housing Loan for the Joint Owners in an effort to assist them with
21
their housing preservation plans; and
22
WHEREAS, approval of the 2001 Housing Loan Agreement and related documents will
23
assist the Agency in implementing its redevelopment plan for the Project Area and specifically
24
will assist the Agency in meeting its inclusionary housing requirements by making such housing
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units available at affordable rates to low and moderate income persons within the Project Area
pursuant to the California Redevelopment Law.
BE IT RESOLVED BY THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION I. The Community Development Commission hereby authorizes and approves
execution of the 2001 Housing Loan Agreement and related documents by and between the Joint
Owners and the Redevelopment Agency of the City of San Bernardino (the "Agency"). A copy
of the 200 I Housing Loan Agreement and related documents are on file with the City Clerk and
9 are incorporated herein by reference.
10 SECTION 2. The Community Development Commission approves the 2001 Housing
1 I Loan Agreement and related documents and authorizes execution by the Agency Executive
12 Director of such documents together with such technical and conforming changes, provided such
13
changes do not increase the tinancialliability of the Agency, and as may be recommended by
'-" 14 Agency Special Counsel.
18 IIII
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15 SECTION 3. The authorization to execute the above referenced Agreement and related
16 documents is rescinded if the parties to the Agreement fail to execute it and return it to the Office
17 of the City Clerk within thirty (30) days following the effective date.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO AUTHORIZING AND APPROVING A $75,000
HOUSING LOAN PER THE TERMS OF THE PROMISSORY NOTE TO WAYNE L. &
DOLORES BROWNING, GARY F. & JANET SCHONES AND DAVID P. & PEGGY
LANSING, THE "JOINT OWNERS" OF THE CYPRESS INN MOBILE HOME PARK
4 LOCATED AT 2057 MT. VERNON AVENUE - NORTHWEST REDEVELOPMENT
PROJECT AREA
2
3
5
6 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Communi
7 Development Commission of the City of San Bernardino at a
meeting
8 thereof, held on the
, 200 I, by the following vote to wit:
day of
9 Commission Members:
Abstain
Absent
Aves
Navs
10 ESTRADA
11
LIEN
MCGINNIS
SCHNETZ
SUAREZ
ANDERSON
MC CAMMACK
,
12
15
16
17
Rachel G. Clark, City Clerk
18
19 The foregoing resolution is hereby approved this
20
day of
, 200 I.
21
22
Judith Valles, Chairperson
Community Development Commission
City of San Bernardino
23
24
By:
Agency Counsel
-3-
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 11 r2.()-() \ Item #
Vote: Ayes I J l{ -I Nays kc'-
Change to motion to amend original documents:
1.'--'\5 Resolution # Co:::I2cx:'1-3~
,
Abstain h Absent ~ =<,
Reso. # On Attachments:
Contract term:
NullNoid After: ::l., <:'J 0"",1'.) / q -I Ii - a \
J
Note on Resolution of Attachment stored separately: -==-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By:
Date Sent to Mayor:
'6 - 22.- G I
Reso. Log Updated: /
Date of Mayor's Signature:
Date of ClerklCDC Signature:
%-"2~-61
lS--z3-0\
Seal Impressed:
v
See Attached:
See Attached:
See Attached:
Date Returned:
Date MemolLetter Sent for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes ~ No By
Yes No ,/ By
Yes No ,/ By
Yes No ,/ By
-
Yes No / By
Copies Distributed to:
City Attorney Code Compliance
Dev. Services
EDA ,/
Finance
MIS
Parks & Rec.
Police
Public Services
Water
Others:
Notes:
V()(O
N01 Q;.(8:'({rtO t'lf'.f i1rYt~
BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc.)
Ready to File: _
Date:
Revised 01/12/01