HomeMy WebLinkAbout1999-263
(See Also Res CDC 1999-37)
RESOLUTION NO. 1999-263
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A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO ACKNOWLEDGING RECEIPT OF A
REPORT RELATING TO THE PROPOSED DISPOSITION OF
CERTAIN LANDS SUBMITTED BY THE REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO AND AUTHORIZING THE
SALE OF PROPERTY ON THE TERMS SET FORTH IN A
DISPOSITION AND DEVELOPMENT AGREEMENT (CALIFORNIA
BIO MASS - HARDY)
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WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"
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owns or has a beneficial interest in certain subdivided lands referred to in this Resolutio
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collectively as the "Property" which is situated within the redevelopment project area of th
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Northwest Redevelopment Project and is generally located on the southwest side of Industria
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Parkway, between Devil's Creek Channel and Cable Creek Channel in the City of S
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Bernardino (APN 266-041-71).
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WHEREAS, based upon a review and evaluation of the proposal submitted to th
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Agency, the Agency selected David L. Hardy and Michael J. Hardy, tenants in common, do in
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business as California Bio Mass, Inc., a California Corporation (the "Developer") for Propert
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Acquisition and Redevelopment Assistance Between California Bio-Mass, Inc., and th
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Redevelopment Agency of the City of San Bernardino; and
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WHEREAS, the Agency staff have prepared a draft of a Disposition Developmen
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Agreement (the "Agreement") for the disposition of the Property to the Developer together wit
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a report which summarizes the key terms of the Agreement and describes the manner in whic
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the proposed disposition of the Property to the Developer will assist in the elimination of bligh
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(the "33433 Report"); and
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WHEREAS, it is appropriate for the Mayor and Common Council to take the action
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with respect to the 33433 Report and the Agreement.
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NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY TH
MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, A
FOLLOWS:
Section 1.
On October 18, 1999, the Mayor and Common Council conducted a ful
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and fair j oint public hearing with the Community Development Commission of the City of Sa
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Bernardino relating to the disposition and redevelopment of the Property by the Develope
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pursuant to the terms and conditions of the Agreement. The minutes of the City Clerk for th
October 18, 1999 meeting of the Mayor and Common Council shall include a record of al
communication and testimony submitted to the Mayor and Common Council by intereste
persons relating to the joint public hearing, the 33433 Report and the approval of the Agreement.
Section 2.
This Resolution is adopted in order to satisfY the provisions of Health an
Safety Code Section 33433 as relate to the disposition and sale of the Property by the Agency t
the Developer on the terms and conditions set forth in the Agreement. A copy of the Agreemen
in the form submitted at the joint public hearing is on file with the Agency Secretary.
Mayor and Common Council hereby find and determine as follows:
(i) the disposition and redevelopment of the Property by the Developer in accordanc
with the Agreement is consistent with the Redevelopment Plan for the Northwest Redevelopmen
Project and the Agency Implementation Plan;
(ii) the terms and conditions of the Agreement contain assurances that the Property wil
be redeveloped for the Project as permitted under the Redevelopment Plan;
(iii) the purchase price for the Property payable by the Developer to the Agency, subjec
to the satisfaction of the terms and conditions of the Agreement, is an amount which th
Community Development Commission has determined to be fair, just and reasonable, and tha
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the disposition of the Property on the terms set forth in the Agreement shall materially benefi
and sustain the implementation of the Redevelopment Plan and assist the community to alleviat
blighting conditions caused by vacant land, the underutilization of parcels and lack of adequat
public infrastructure;
(iv) the consideration payable by the Developer to the Agency for the disposition of th
Property (e.g.: $441,000.00 in cash and the Promissory Note secured by Deed of Trust payable t
the Agency at the close of the escrow) is an amount which is not less than the fair reuse value 0
the Property at the use and with the redevelopment and maintenance covenants and other terms
conditions and development costs authorized in the Agreement.
Section 3. The Mayor and Common Council hereby find and determine that n
further environmental review of the disposition and redevelopment of the Property of th
Developer pursuant to the terms and conditions of the Agreement is necessary at this time unde
the California Environmental Quality Act, as amended, in light of the following facts:
(i) a final parcel map for the Property has previously been recorded and th
redevelopment of the Property by the Developer pursuant to the Agreement will not require an
revision or change in the approved parcel map for the Property; and
(ij) the redevelopment of the Property by the Developer pursuant to the Agreement doe
not involve any new significant increase in the severity of previously identified environmenta
effects which were not previously considered as part of the approval of the subdivision trac
maps for the Property; and
(iii) the Property are situated in the redevelopment project area of the Northwes
Redevelopment Project and by virtue of the facts set forth in subparagraph (i) and (ii) above
pursuant to the provisions of Title 14 California Code of Regulation Section 15180, no furthe
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1999-263
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review of the potential effect of the redevelopment of the Property in accordance with th
Agreement is required at this time under CEQA and the Final ErR for the Northwes
Redevelopment Project.
Section 4. The Mayor and Common Council hereby approve, receive and file th
33433 Report and the Agreement in the form as submitted at this joint public hearing.
Section 5. The Mayor and Common Council hereby approve the disposition of th
Property by the Agency to the Developer on the terms set forth in the Agreement.
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1999-263
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A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO ACKNOWLEDGING RECEIPT OF A
REPORT RELATING TO THE PROPOSED DISPOSITION OF CERTAIN
LANDS SUBMITTED BY THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND AUTHORIZING THE SALE OF
PROPERTY ON THE TERMS SET FORTH IN A DISPOSITION AND
DEVELOPMENT AGREEMENT (CALIFORNIA BIO MASS - HARDY)
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6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council ofthe City of San Bernardino at a joint regular
meeting thereof, held
8 on the 18th day of October
, 1999, by the following vote to wit:
9 Council Members:
10 ESTRADA
11 LIEN
MCGINNIS
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SCHNETZ
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VACANT - 5th Ward
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ANDERSON
15 MILLER
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Aves
Navs
Abstain
Absent
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(;L..l_ /J JJ.~
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19 The foregoing resolution is hereby approved this/ ~~ay of
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October
,1999.
Approved as to form and Legal Content:
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James F. Penman
City Attorney
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By:
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1999-263
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street
Suite 301
San Bernardino, California 92401
(Space Above Line for Use By Recorder)
1999
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDSVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
F.ND
CALIFORNIA BIO MASS, INC.
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1999-263
1999
DISPOSITION AND DEVELOPMENT AGREEMENT
(California Bio Mass)
THIS 1999 DISPOSITION AND DEVELOPMENT AGREEMENT (the
"Agreement") is entered into as of September 1999, by and
between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a
public body corporate and politic (the "Agency") and DAVID L. HARDY
AND MICHAEL J. HARDY, enants in common, doing business as
CALIFORNIA BIO MASS, INC., a California corporation (the
"Developer"). The Agency and Developer hereby agree as follows:
Section 1.01. Purpose of Agreement. The purpose of this
Agreement is to implement the Redevelopment Plan for the Northwest
Redevelopment proj ect by providing for the purchase and
redevelopment of certain unimproved lands by the Developer. The
lands which are subject to this Agreement are referred to herein as
the "Property". As of the date of this Agreement the Property is
owned by the Agency and the Property is more particularly described
in Exhibit "A" attached hereto. The redevelopment of the Property
pursuant to this Agreement is in the vital and best interests of
the City of San Bernardino (the "City") and the health, safety and
welfare of its residents, and in accord with the public purposes
and provisions of applicable state and local laws. The Agency has
determined that the development and use of the Property
contemplated by this Agreement is consistent with the Redevelopment
Implementation Plan for the Northwest Redevelopment Project.
Section 1.02. The PrODertv and the Project. The
Property includes approximately Ten and Twenty Eight Hundredths
(10.28) acres of land, more or less, and is generally situated at
San Bernardino, California. Promptly following the purchase of the
Property from the Agency the Developer shall undertake the
redevelopment, improvement, and use of the Property as a municipal
solid waste transfer facility (the "Project") The Project is more
partially described in Exhibit "8" attached hereto.
Section 1.03. Parties to the Aareement.
(a) The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
existing under Chapter 2 of the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, et ~.)
The principal office of the Agency is located at 201 North "E"
Street, Suite 301, San Bernardino, California 92401.
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(b) The Developer consists of the sole shareholders of
the firm known as California Bio Mass, Inc., a California
corporation. The principals of the Developer are David L. Hardy
and Michael J. Hardy, as tenants in common. The principal office
and mailing address of the Developer for purposes of this Agreement
is:
California Bio Mass
Attention: David L. Hardy
10397 Alder Avenue
Bloomington, California 92316
(c) The Ci ty of San Bernardino is not a party to this
Agreement.
Section 1.04. Restrictions Aaainst Chanae in Ownership.
Manaaement and Control of DeveloDer and Assignment of Aareement.
The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those
qualifications and identity that the Agency has entered into this
Agreement with the Developer. Prior to the issuance of a
Certificate of Completion as set forth in Section 3.07, no
voluntary or involuntary successor in interest of the Developer
shall acquire any rights or powers under this Agreement except as
expressly set forth herein. Except as set forth in Section 3.04,
the Developer shall not assign all or any part of this Agreement or
any rights hereunder prior to the issuance of the Certificate of
Completion with respect to the Project without the prior written
approval of the Executive Director of the Agency, which approval
shall not be unreasonably withheld.
The Developer shall promptly notify the Agency in writing
of any and all changes whatsoever in the identity of the business
entities and individuals either comprising or in control of the
Developer, as well as any and all changes in the interest or the
degree of control of the Developer by any such party, of which
information the Developer or any of its partners or officers have
been notified or may otherwise have knowledge or information. This
Agreement may be terminated by the Agency prior to the Close of the
Escrow as set forth in Section 2.03 if there is any significant or
material change, whether voluntary or involuntary, in membership,
ownership, management or control of the Developer (other than such
changes occasioned by the death or incapacity of any individual)
that has not been approved by the Agency prior to the time of such
change or the Agency may seek other appropriate relief in the event
that at any time following the Close of Escrow and prior to
issuance of the Certificate of Completion such a change in the
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ownership, or control of the Developer occurs with respect to the
Property; provided, however, that (i) the Agency shall first notify
the Developer in writing of its intention to terminate this
Agreement or to exercise any other remedy, and (ii) the Developer
shall have twenty (20) calendar days following its receipt of such
written notice to commence and thereafter diligently and
continuously proceed with the cure of the default of the Developer
hereunder and submit evidence of the initiation of satisfactory
completion of such cure to the Agency in a form and substance
deemed satisfactory to the Agency, in its reasonable discretion.
Section 1.05. Benefit to Prolect Area. The Agency has
determined that the development of the Property in accordance with
this Agreement will materially assist in the elimination of blight
and the implementation of the Redevelopment Plan for the Project
Area.
ARTICLE II
DISPOSITION OF THE PROPERTY
Section 2.01. Purchase and Sale of the Propertv.
Subject to all of the terms, conditions and provisions of this
Agreement, and for the consideration of the Purchase Price as
herein set forth, the Agency hereby agrees to sell to the Developer
merchantable lien free title and the Developer hereby agrees to
purchase the following:
all of the right, title and interest of the Agency in the
Property as more fully described in Exhibit "A,"
including all right, title and interest of the Agency in
and to any land lying in the right-of-way of any existing
or proposed highway, street, road, avenue or alley
abutting or adjoining the Property.
The purchase price which the Agency agrees to accept from
the Developer and which the Developer agrees to pay to the Agency
for the Property is the sum of FOUR HUNDRED FORTY-ONE THOUSAND
DOLLARS ($441,000.00) in United States currency(the "Purchase
Price") .
Section 2.02. Deposit and Payment of Purchase Price.
(a) Within five (5) days following the execution of this
Agreement by both parties, the Developer shall deliver to the
Escrow Holder (as hereinafter defined) the sum of Five Thousand
Dollars ($5,000.00). This sum upon its receipt by the Escrow
Holder, is referred to in this Agreement as the "Deposit." Upon
receipt of the Deposit together with a fully executed copy of this
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Agreement, the Escrow Holder shall cause the Escrow (as hereinafter
defined) to be opened as provided in Section 2.03, and the Escrow
Holder shall place the Deposit into an interest-bearing escrow
account with the interest thereon to accrue to the benefit of the
Developer.
At the Close of Escrow (as hereinafter defined), the
Deposit shall be applied as a credit to the Purchase Price.
(b) Payment of Balance of Purchase Price. The Purchase
Price, less the Deposit, shall be tendered by the Developer to the
Escrow Holder on the Closing Date (as hereinafter defined) for
disbursement to the Agency at the Close of Escrow as follows:
(i) a promissory note of the Developer (the
"Promissory Note") payable to the Agency in the principal
sum of TWO HUNDRED SIXTY-FIVE THOUSAND FIVE HUNDRED
SEVENTY FIVE DOLLARS ($265,575.00). The Promissory Note
shall be secured by a deed of trust and the Promissory
Note shall include the following terms as set forth
below:
(A) a maturity date of eighteen (18) months
from its date (e.g. the Close of Escrow);
(B) interest shall accrue on the outstanding
principal balance of the Promissory Note at the
rate per annum established by reference to the
State of California Local Agency Invested Funds
rate of interest on funds invested in the State
Treasury investment pool with a maturity of three
(3) years, as announced five (5) business days
prior to the close of escrow, plus one hundred
basis points; and
(C) no payments shall be due under the
Promissory Note prior to maturity
(ii) the balance of the Purchase Price in cash or
immediately available funds. The parties acknowledge that as
of the date of this Agreement an estimate of the balance of
the Purchase Price payable in cash (net of the Deposit and
Promissory Note, but without deductions for other charges,
credi ts or lien releases) appears to be approximately ONE
HUNDRED SEVENTY THOUSAND FOUR HUNDRED TWENTY-FIVE DOLLARS
($170,425.00) .
A deed of trust covering the Property shall secure the
Promissory Note (the "Deed of Trust"). The form of the Promissory
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Note and the Deed of Trust are attached hereto as Exhibit "C." The
Agency shall agree to subordinate the Deed of Trust to a
construction loan in favor of the Developer in an amount not to
exceed Eight Hundred Sixty Thousand Dollars ($ 8 60,000.00) the
proceeds of which shall be used and applied by the Developer solely
for the acquisition, improvement and development of the Project.
Such subordination of the Deed of Trust shall be evidenced by a
construction loan subordination agreement by and between the
Developer and the Agency which contains the provisions required
under Section 3.05 and the covenant of the Developer and the
constructicn lender that the construction loan documentation shall
not be amended or modified in any material respect without the
approval of the Agency.
(c) The Deposit (less an amount equal to the customary
and reasonable escrow cancellation charges of the Escrow Holder)
shall be returned to the Developer in the event that:
(i) the Agency or the Developer terminates this
Agreement pursuant to Section 2.03(a); or
(ii) the Developer does not deliver
Diligence Approval Certificate (as hereinafter
to the Escrow Holder pursuant to Section 2.03(b)
Agreement is terminated; or
its Due
defined)
and this
(iii) the Developer's conditions precedent to the
Close of Escrow described in Section 2.16 (1), (2), (3),
(5), (6) or (7) are not satisfied (unless satisfaction
has been waived by the Developer) and this Agreement is
terminated; or
(iv) the Property is materially damaged prior to
the Close of Escrow, or an action of eminent domain is
commenced by a governmental entity with respect to the
Property prior to the Close of Escrow, and the Developer
elects to terminate this Agreement pursuant to Section
2.25.
Section 2.03. ODening and ClosinG of Escrow.
(a) The transfer and sale of the Property shall take
place through an Escrow (the "Escrow") to be administered by First
American Title Insurance Company: Escrow Department or such other
escrow or title insurance company mutually agreed upon by the
Seller and the Agency (the "Escrow Holder"). The Escrow shall be
deemed open ("Opening of Escrow") upon the receipt by the Escrow
Holder of a fully executed copy of this Agreement and the Deposit.
The Escrow Holder shall promptly confirm to the parties the escrow
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number and the title insurance order number assigned to the Escrow.
(b) In the event that the Developer has not delivered
its Due Diligence Approval Certificate to the Agency and the Escrow
Holder within one hundred twenty (120) days from the Opening of
Escrow for any reason, then in such event this Agreement shall
terminate upon written notice to the Escrow Holder from either the
Agency or the Developer, whereupon the Deposit shall be returned by
the Escrow Holder to the Developer (less an amount equal to the
customary and reasonable escrow cancellation charges payable to the
Escrow Holder) without further or separate ins':.ruction to the
Escrow Holder, and the parties shall each be relieved and
discharged from all further responsibility or liability under this
Agreement.
(c) Provided that the Developer has delivered its Due
Diligence Approval Certificate within the period of time authorized
in Section 2.03(b), then the Closing Date of the Escrow shall occur
wi thin sixty (60) days thereafter, subj ect to the provisions of
Section 2.16 and Section 2.17. The words "Close of Escrow,"
"Closing Date" and "Closing" shall mean and refer to the date when
the Escrow Holder is in receipt of the Purchase Price and the
related Escrow documents of the parties and the Escrow Holder is in
a position to comply with the final written escrow closing
instructions of the parties and cause the Agency Grant Deed for the
Property to be recorded and the policy of insurance for the
Property to be delivered to the Developer.
Section 2.04. Escrow Instructions. This Agreement also
constitutes escrow instructions of the parties to the Escrow
Holder. Additionally, the Developer and the Agency each agree to
execute the customary supplemental escrow instruct.ions of the
Escrow Holder in the form provided by the Escrow Holder to its
clients in real property escrow transactions administered by it.
In the event of a conflict between the additional terms of such
customary supplemental escrow instructions of the Escrow Holder and
the provisions of this Agreement, this Agreement shall supersede
and be controlling. Upon any termination of this Agreement or
cancellation of the Escrow, the Developer shall be solely
responsible for the payment of the escrow cancellation costs of the
Escrow Holder, the Escrow Holder shall forthwith return all monies
(as provided in this Agreement) and documents, less only the Escrow
Holder's customary and reasonable escrow cancellation fees and
expenses, as set forth herein.
Section 2.05. Convevance of Title. On or before 12:00
noon on the business day preceding the Closing Date, the Agency
shall deliver to the Escrow Holder a grant deed in the form
attached hereto as Exhibit "0" (the "Agency Grant Deed") duly
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executed and acknowledged by the Agency, which Agency Grant Deed
shall convey all of its merchantable lien free of the right, title
and interest of the Agency in the Property to the Developer. The
Escrow Holder shall be instructed to record the Agency Grant Deed
in the Official Records of San Bernardino County, California, if
and when Escrow Holder holds the various instruments and funds for
the accounts of the parties as set forth herein and can obtain for
the Developer a CLTA owner's extended coverage policy of title
insurance ("Title Policy") issued by First American Title Company
or such other title insurance company mutually agreed upon by the
parties ("Title Company") with liability in an amount equal to the
Purchase Price together with such endorsements to the policy as may
be reasonably requested by the Developer, insuring that the
Property with fee title to the Property vested in the Developer is
free and clear of options, rights of first refusal or other
purchase rights, leases or other possessory interests, lis pendens
and monetary liens and/or encumbrances and subject only to:
(1) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the
Developer pursuant to Section 2.13 below;
(3) applicable provisions of the parcel map/subdivision
map for the Property;
(4) the effect of the Redevelopment Plan for the
Northwest Redevelopment Project;
(5) the effect of the initiation of the sewer
maintenance and assessment district affecting the
Property, as provided under Section 2.26;
( 6)
the effect of
part of the
Project;
any conditions imposed by the City as
development plan approvals for the
(7) the provision of the Agency Grant Deed;
(8) the applicable provisions of this Agreement; and
( 9)
such other
documents
Escrow.
title exceptions, if any, resulting from
being recorded or delivered through
Section 2.06. Additional Closina Obliaations of Agencv.
On or before 12:00 noon on the business day preceding the Closing
Date (unless indicated otherwise), the Agency shall deliver to the
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Escrow Holder (unless indicated to be delivered directly to the
Developer) copies of the following documents and other items:
(1) a certificate of non-foreign status (the "Non-
Foreign Affidavit") executed by the Agency, in the
customary form provided by the Escrow Holder, and a
California Franchise Tax Board Form 590-RE executed
by the Agency;
(2) all soils, seismic, geologic, drainage, and
environmental reports, and surveys, with respect to
the Property, if any, which the Agency has in its
possession and/or control to the extent that
originals of such items have not been delivered
previously by the Agency to the Developer pursuant
to Section 2.08 below;
(3) two (2) duplicate original copies of the Closing
Statement described in Section 2.21, duly executed
by the Agency;
(4) evidence of the existence, organization and
authority of the Agency and of the authority of
persons executing documents on behalf of the Agency
reasonably satisfactory to the Escrow Holder and
Title Company; and
(5) any other documents, instruments, funds and records
required to be delivered to the Developer under the
terms of this Agreement which have not been
previously delivered.
Section 2.07. Closino Oblioations of DeveloDer. On or
before 12:00 noon on the business day preceding the Closing Date,
the Developer shall deliver to the Escrow Holder copies of the
following documents and other items:
(1 )
an acknowledgment and acceptance of the
Grant Deed, duly executed and acknowledged
Developer.
Agency
by the
(2) two (2) duplicate original copies of the Closing
Statement, duly executed by the Developer.
(3) an original and duly executed Promissory Note, and
the Deed of Trust in recordable form.
(4) evidence of the existence, organization and
authority of the Developer and of the authority of
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persons executing documents on
Developer reasonably satisfactory
Holder and the Title Company.
behalf
to the
of the
Escrow
(5) any other documents, instruments or funds required
to be delivered by the Developer under the terms of
this Agreement or as otherwise required by Escrow
Holder or Title Company in order to close Escrow
which have not previously been delivered.
Section 2.08. InsDections and Review.
(a) Due Diligence Items. Within five (5) days after the
execution of this Agreement, the Agency shall deliver true, correct
and complete copies or originals of the following documents and
items (collectively, "Due Diligence Items") to the Developer:
(1) copies of all soils, seismic, geologic, drainage,
engineering, environmental and similar type reports
and surveys (including, but not limited to, any
Property Environmental Site Assessments), surveys,
relating to the Property if any, in the possession
or control of the Agency.
(2) notices of violations, including, but not limited
to, zoning ordinances, development or building
codes affecting the Property wi thin the Agency's
possession or control.
(3) disclosure of any legal matters affecting the use
or condition of the Property within the knowledge
of the Agency.
(4) a copy of the Redevelopment Plan for the Northwest
Redevelopment Project.
Agreement,
meaning:
(b) Certain Definitions. For the purpose of this
the terms set forth below shall have the following
(i) "environmental laws" means all federal,
state, local, or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, or
requirements of any government authority regulating,
relating to, or imposing liability of standards of
conduct concerning any hazardous substance (as later
defined), or pertaining to occupational health or
industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws,
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ordinances, or regulations relate to hazardous substances
on, under, or about the Property), occupational or
environmental conditions on, under, or about the
Property, as now or may at any later time be in effect,
including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA") [42 USC Section 9601 et seq.]; the
Resource Conservation and Recovery Act of 1976 ("RCRA")
[42 USC Section 6901 et seq.]; the Clean Water Act, also
known as the Federal Water Pollution Control Act
("FWPCA") [33 USC Section 1251 et eq.]; the Toxic
Substances Control Act ("TSCA") [15 USC Section 2601 et
seq.]; the Hazardous Materials Transportation Act
("HMTA") [49 USC Section 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 USC Section 6901 et seq.]
the Clean Air Act [42 USC Section 7401 et seq.]; the Safe
Drinking Water Act [42 USC Section 300f et seq. J; the
Solid Waste Disposal Act [42 USC Section 6901 et seq.];
the Surface Mining Control and Reclamation Act [30 USC
Section 101 et seq.] the Emergency Planning and Community
Right to Know Act [42 USC Section 11001 et seq.]; the
Occupational Safety and Health Act [29 USC Section 655
and 657]; the California Underground Storage of Hazardous
Substances Act [H & S C Section 25288 et seq.]; the
California Hazardous Substances Account Act [H & S C
Section 25300 et seq.]; the California Safe Drinking
Water and Toxic Enforcement Act [H & S C Section 24249.5
et seq.] the Porter-Cologne Water Quality Act [Water Code
Section 13000 et seq.] together with any amendments of or
regulations promulgated under the statutes cited above
and any other federal, state, or local law, statute,
ordinance, or regulation now in effect or later enacted
that pertains to occupational health or industrial
hygiene, and only to the extent the occupational health
or industrial hygiene laws, ordinances, or regulations
relate to hazardous substances on, under, or about the
Property, or the regulation or protection of the
environment, including ambient air, soil, soil vapor,
groundwater, surface water, or land use.
(ii) "hazardous
limitation:
substances"
includes
without
those substances included within the definitions of
"hazardous substance, II "hazardous waste," "hazardous
material," "toxic substance," "solid waste," or
"pollutant or contaminate" in CERCLA, RCRA, TSCA, HMTA,
or under any other environmental law; and
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those substances listed in the United States Department
of Transportation (DOT)Table [49 CFR 172.101], or by the
EPA, or any successor agency, as hazardous substances [40
CFR Part 302]; and
other substances, materials, and wastes that are or
become regulated or classified as hazardous or toxic
under federal, state, or local laws or regulations; and
any material, waste, or substance that is:
(1) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant to 33
USC Section 1321 or listed pursuant to 33 USC
Section 1317,
(5) a flammable explosive, or
(6) a radioactive material.
Section 2.09. Due
ProDerty Bv the DeveloDer.
Diliaence
Investigation
of
the
(a) Wi thin one hundred and twenty (120) days from and
after the Opening of Escrow, and subject to the extensions of time
set forth below in Section 2.15, the Developer shall have the right
to examine, inspect and investigate the Property (the "Due
Diligence Period") to determine whether the condition of the
Property is acceptable to the Developer and to obtain such
development project approvals from the City for the improvement of
the Project as the Developer may require in its sole and absolute
discretion.
(b) During the Due Diligence Period, the Agency shall
permi t the Developer, its engineers, analysts, contractors and
agents to conduct such physical inspections and testing of the
Property as the Buyer deems prudent with respect to the physical
condition of the Property, including the inspection or
investigation of soil and subsurface soil geotechnical condition,
drainage, seismic and other geological and topographical matters,
surveys the potential presence of any hazardous substances, if any.
(c) Any such investigation work on the Property may be
conducted by the Developer and/or its agents during any normal
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business hours upon seventy-two (72) hours prior notice to the
Agency, which notice will include a description of any
investigation work or tests to be conducted by the Developer on the
Property. Upon the Agency's request, the Developer will provide
the Agency with copies of any test results.
(d) During the Due Diligence Period, the Developer shall
also have the right to investigate all matters relating to the
zoning, use and compliance with other applicable laws which relate
to the use and development and improvement of the Property. The
Developer may submit an application to the City and any other
regulatory agency with jurisdiction for any and all necessary
development project approvals for the improvement of the Project.
The Agency hereby consents to the submission of such development
project approval applications by the Developer.
(e) The Agency shall cooperate fully to assist the
Developer in completing such inspections and investigations of the
condition of the Property. The Agency shall have the right, but
not the obligation, to accompany the Developer during such
investigations and/or inspections. The Developer shall pay for all
costs and expenses associated with the conduct of all such Due
Diligence investigation including the cost of submitting any
development project approval application as relates to the Project
to any regulatory jurisdiction.
Section 2.10. Due Diliaence ADproval Certificate.
Within one hundred twenty (120) days following the Opening of
Escrow, the Developer shall complete its investigation of the
Property (subject to the extensions of time set forth in Section
2.15) and deliver a due diligence approval certificate signed by
the Developer (the "Due Diligence Approval Certificate") to the
Escrow Holder which either:
(iJ indicates that the Developer accepts the condition
of the Property or;
(ii) contains a description of the matters or exceptions
relating to the condition of the Property which the
Developer was not able to accept or resolve to its
satisfaction during the Due Diligence Period.
Section 2.11. Books and Records. As part of the
Developer's due investigations during the Due Diligence Period, the
Developer shall be afforded full opportunity by the Agency to
examine all books and records which relate to the Property in the
possession of the Agency and/or the Agency's agents or employees,
including the reasonable right to make copies of such books and
records. During the Due Diligence Period, the Agency will make
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sufficient staff available to assist the Developer with obtaining
access to information relating to the Property which is in the
possession or control of Agency.
Section 2.12. Condition of the Prooertv-Develooer's
Release. The Developer acknowledges and agrees that it shall be
given a full opportunity under this Agreement to inspect and
investigate every aspect of the Property during the Due Diligence
Period. The Developer shall accept the delivery of possession to
the Property on the Close of Escrow in an "AS IS," "WHERE IS" and
"SUBJECT TO ALL FAULTS" condition. The Developer further agrees
and represents to the Agency that by a date no later than the end
of the Due Diligence Period, the Developer shall have conducted and
completed (or waived the completion) of all of its independent
investigation of the condition of the Property which the Developer
may believe to be indicated. The Developer hereby acknowledges
that it shall rely solely upon its own investigation of the
Property and its own review of such information and documentation
as it deems appropriate for the purpose of accepting the condition
and possession of the Property. The Developer is not relying on
any statement or representation by the Agency relating to the
condition of the Property unless such statement or representation
is specifically contained in this Agreement. Without limiting the
foregoing, the Agency makes no representations or warranties as to
whether the Property presently complies with environmental laws or
whether the Property contains any hazardous substance, as these
terms are defined in Section 2.08(b) hereof. Furthermore, to the
extent that the Agency has provided the Developer with information
relating to the condition of the Property, including information
and reports prepared by or on behalf of the City of San Bernardino,
the Agency makes no representation or warranty with respect to the
accuracy, completeness or methodology or content of such reports or
information.
Without limiting the above, except to the extent covered
by an express representation or warranty of the Agency set forth in
this Agreement, the Developer, on behalf of itself and its
successors and assigns, waives and release the Agency and its
successors and assigns from any and all costs or expenses
whatsoever (including, without limitation, attorneys' fees and
costs), whether direct or indirect, known or unknown, foreseen or
unforeseen, arising from or relating to the physical condition of
the Property, the condition of the soils, the suitability of the
soils for the improvement of the Project as proposed, or any law or
regulation applicable thereto, including the presence or alleged
presence or harmful or hazardous substances in, under or about the
Property including, without limitation, any claims under or on
account of (i) CERCLA and similar statutes and any regulations
promulgated thereunder or (ii) any other environmental laws.
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The Developer expressly waives any rights or benefits
available to it with respect to the foregoing release under any
provision of applicable law which generally provides that a general
release does not extend to claims which the creditor does not know
of suspect to exist in his or her favor at the time the release is
agreed to, which, if known to such creditor, would materially
affect a settlement. By execution of this Agreement, the Developer
acknowledges that it fully understands the foregoing, and with this
understanding, nonetheless elects to and does assume all risk for
claims known or unknown, described in this Section 2.12 without
l.imi ting the generality of the foregoing:
The undersigned acknowledges that it has been advised by legal
counsel and is familiar with the provisions of California
Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOWN
OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM, MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The undersigned, being aware of this code section,
expressly waives any rights it may have thereunder, as
under any other statutes or common law principles of
effect.
hereby
well as
similar
Initials of Developer: ~
The provisions of this Section 2.12 shall survive
the Close of Escrow.
Section 2.13. Review and Approval of Condition of Title
bv the Developer.
(a) Wi thin fifteen (15) days following the Opening of
Escrow, Agency shall cause to be delivered to the Developer a
preliminary title report or title commitment for a CLTA extended
coverage policy of title insurance issued by the Title Company,
describing the state of title of the Property, together with copies
of all exceptions specified therein and with all easements plotted,
but excluding matters disclosed on a survey (the "Preliminary Title
Report"). The Developer shall notify the Agency in writing of any
objections the Developer may have to the title exceptions contained
in the Preliminary Title Report (" Developer's Title Obj ection
Notice") prior to the expiration of the Due Diligence Period. The
Agency shall have a period of five (5) days after receipt of the
Developer's Title Obj ection Notice in which to deliver written
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notice to the Developer ("Agency's Title Notice") of the Agency's
election to either (i) agree to remove the obj ectionable items
prior to the Close of Escrow, or (ii) decline to remove any such
ti tIe exceptions; provided, however, that the Agency shall be
required to remove all monetary liens and encumbrances created by
or as a result of the Agency's activities. If the Agency notifies
the Developer of its election to terminate Escrow rather than
remove the objectionable items, the Developer shall have the right,
by written notice delivered to the Agency within five (5) days
after the Developer's receipt of the Agency's Title Notice, to
agree to accept the Property subject to the objectionable items, in
which event the Agency's election to terminate the Escrow shall be
of no effect, and the Developer shall take title at the Close of
Escrow subject to such objectionable title items.
(b) The Agency covenants not to further encumber and not
to place any further liens or encumbrances on the Property,
including, but not limited to, covenants, conditions, restrictions,
easements, liens, options to purchase, options to lease, leases,
tenancies, or other possessory interests without the prior written
consent of the Developer. Upon the issuance of any amendment or
supplement to the Preliminary Title Report which adds additional
exceptions (including, but not limited to, adding additional
exceptions for matters shown on the Survey as hereinafter defined),
the foregoing right of review and approval shall also apply to said
amendment or supplement (provided that the period for the Developer
to review such amendment or supplement shall be the later of the
expiration of the Due Diligence Period or ten (10) days from
receipt of the amendment or supplement) and Escrow shall be deemed
extended by the amount of time necessary to allow such review and
approval in the time and manner set forth above.
Section 2.14. Survey. The Developer may at its sole
cost and separate expense obtain a survey of the Property prepared
by a land surveyor duly licensed by the State of California and in
compliance with ALTA/ASCM standards ("Survey"). The Survey shall
be in a form acceptable to the Title Company for the deletion of
the standard survey exception in the Title Policy relating to
boundaries, without the addition of further exceptions unless the
same are acceptable to the Developer in its sole and absolute
discretion. The Developer shall have until the end of the Due
Diligence Period to complete and examine the Survey and to notify
Agency in writing of any objections the Developer has to the Survey
("Developer's Survey Objection Notice"). The Agency shall have a
period of five (5) days after receipt of the Developer's Survey
Objection Notice in which to deliver written notice to the
Developer ("Agency's Survey Notice") of the Agency's election to
ei ther (i) agree to remove the obj ectionable items prior to the
Close of Escrow or (ii) decline to remove such items. If the
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Agency notifies the Developer of its intention to not remove the
objectionable items, the Developer shall have the right, by written
notice delivered to the Agency within five (5) days after the
Developer's receipt of Agency's Survey Notice, to agree to accept
the Property subject to the objectionable items, in which event,
the Agency's election to terminate the Escrow shall be of no
effect, and the Developer shall accept the Property at the Close of
Escrow subject to such objectionable items. Prior to the Closing,
the Survey shall be recertified to the Developer, Title Company and
the Developer's lender, if any. The Survey will be performed at
tbe Developer's sole cost and expense.
Section 2.15. Extension of Due Diligence Period.
(a) In the event Agency fails to provide to the
Developer the documents and other information required by Sections
2.08 and 2.11 by the date(s) set forth therein, the Due Diligence
Period for such information shall be extended by one (1) day for
each day of the delay by the Agency to permit the Developer to
perform an adequate due diligence review (but not to exceed a total
of sixty (60) such days). The Developer will use its best efforts
to notify Agency of any documents the Agency has failed to deliver
to the Developer within the time periods provided in Sections 2.08
and 2.11.
(b) In the event that the Executive Director makes a
finding that the Developer has undertaken substantial work to
complete the Due Diligence Implementation of the proj ect, the
Executive Director shall upon the written request of the Developer
authorize an extension of the Due Diligence Period for up to an
additional thirty (30) days.
Section 2.16. Developer's Conditions Precedent to Close
Escrow. The Developer's obligation complete the purchase the
Property and Close the Escrow shall be conditioned upon the
fulfillment of the following conditions precedent, all of which
shall be satisfied (or waived in writing pursuant to Section 2.19)
prior to the Close of Escrow:
(1) The Agency shall not have defaulted on any material
term of this Agreement to be performed by the
Agency hereunder, and each representation and
warranty made by the Agency in this Agreement shall
remain true and correct. For purposes of this
subsection (1) only, a representation that is
limited to the Agency's knowledge or notice shall
be false if the factual matter that is subject to
the representation is false, notwithstanding any
lack of knowledge or notice to the Agency;
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(2) the Developer's approval of the Preliminary Title
Report and the Survey, if applicable, wi thin the
time periods specified in Sections 2.13 and 2.14;
(3) the Developer's approval of the contents of all Due
Diligence Items, and the other investigations of
the Property made by the Developer and/or its
designees pursuant to Sections 2.08 and 2.09 herein
on or before the expiration of the Due Diligence
Period, or such later date if the Due Diligence
Period is extended pursuant to Section 2.15. The
Developer shall be deemed to have disapproved such
Due Diligence Items unless they are approved on or
before 5:00 p.m. on the day of the Due Diligence
Period, or such later date if the Due Diligence
Period is extended pursuant to Section 2.15 herein;
(4) the Developer's confirmation that a resource
recycling and marketing zone designation has been
obtained for the Property under the program
described at Public Resources Code Section 42010 et
~.,; provided, however, the Agency is under no
obligation to cause such zone designation to be
applied for or obtained;
(5) the Developer has obtained a construction loan
commitment for the acquisition of the Property and
the construction of the Project from an
institutional lender on terms reasonably acceptable
to the Developer in a principal amount of at least
Eight Hundred Thousand Dollars ($800,000.00);
(6) the Developer and the Agency have jointly approved
the Sewer Service Plan as set forth in Section 2.26;
(7) the Developer has obtained the acknowledgment of
subordination of the Agency's security interest in
the Agency Deed of Trust to such construction loan
as set forth herein;
(8) the Developer's approval of any notice of change in
representation or warranty given by the Agency
pursuant to Section 2.25(a)hereof; and
(9 )
the Title Company has committed to issue
Policy, in favor of the Developer in
described in Section 2.05.
the Title
the form
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Section 2.17. The Aaencv's Conditions Precedent to Close
Escrow. The Agency's obligation to convey the Property to the
Developer shall be conditioned upon the fulfillment of the
following conditions precedent, all of which shall be satisfied (or
waived in writing pursuant to Section 2.19) prior to the Close of
Escrow:
(1) the Developer has accepted the condition of the
Property and submitted its Due Diligence Approval
Certification to the Escrow Holder on or before the
date set forth in this Agreement;
(2) the Developer has accepted the condition of title
of each of the Property on or before the date set
forth in Section 2.13;
(3) the Developer shall not be in default of any
material term of this Agreement to be performed by
the Developer hereunder and each representation and
warranty of the Developer made in this Agreement
shall remain true and correct; and
(4) the Developer shall be satisfied (or waive
satisfaction) of each of the conditions precedent
set forth in Section 2.16 and the Escrow is in a
condi tion to close wi thin one hundred and eighty
(180) days following the Opening of Escrow (subject
to Section 2.15, if applicable).
Section 2.18. Distribution of Documents and Purchase
Price After Closina Date by Escrow Holder. The Escrow Holder shall
deliver to the Developer within the (3) business days following the
Closing Date a conformed copy of the Agency Grant Deed, as recorded
and the policy of title insurance issued by the Title Company in
favor of the Developer. The Escrow Holder shall deliver to the
Agency the Purchase Price, less sums paid to discharge any liens,
less Escrow costs, expenses and the various prorations chargeable
to the Agency hereunder.
Section 2.19. Satisfaction of Conditions. Where
satisfaction of any of the foregoing conditions requires action by
the Developer or by the Agency, each party shall use its diligent
best efforts, in good faith, and at its own cost, to satisfy such
condition. Where satisfaction of any of the foregoing conditions
requires the approval of a party, such approval shall be in such
party's sole and absolute discretion.
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Either party may waive any of the conditions set forth in
the Agreement, but any such waiver shall be effective only if
contained in a writing signed by the applicable party and delivered
to the Escrow Holder.
Section 2.20.
[RESERVED -- NO TEXT]
Section 2.21. Prorations. Closing Costs. Possession.
(a) Real and personal property taxes for the Property
shall be prorated by the parties to the Closing Date on the basis
of a three hundred sixty-five (365) day year on the basis that the
Agency is responsible for (i) all such taxes (if any) for the
fiscal year of the applicable taxing authority occurring prior to
the Current Tax Period (as defined below) and (ii) that portion of
such taxes for the Current Tax Period to 11:59 p.m. on the Closing
Date, whether or not the same shall be payable prior to the Closing
Date. The phrase "Current Tax Period" refers to the fiscal year of
the applicable taxing authority in which the Closing occurs. All
tax prorations shall be based upon the latest available tax
statement. If the tax statements for the fiscal tax year during
which Escrow closes do not become available until after the Closing
Date, then the rates and assessed values of the previous year, with
known changes, shall be used, and the parties shall re-prorate said
taxes outside of Escrow following the Closing Date when such tax
statements become available. The Agency shall be responsible for
and shall payor reimburse the Developer upon demand for any real
or personal property taxes payable following the Closing Date
applicable to any period of time prior to the Closing Date as a
result of any change in the tax assessment by reason of
reassessment, changes in use of the Property, changes in ownership,
errors by the Assessor or otherwise.
(b) The Developer shall be entitled to exclusive
possession of the Property immediately upon the Close of Escrow.
(c) The Agency shall pay the cost of the premium for a
CLTA owner's extended coverage policy of title insurance on the
Property in the amount of the Purchase Price, together with all
title charges (including endorsements reasonably requested by the
Developer to remove disapproved items shown on the Preliminary
Title Report or Survey pursuant to Sections 2.13 and 2.14 above).
The Agency shall pay one-half (~) of the customary and reasonable
escrow fees which may be charged by the Escrow Holder in connection
with the close of Escrow.
The Developer shall pay the additional cost of the Survey
and requested CLTA survey policy endorsements (to the extent such
endorsements are unrelated to removal of any disapproved items
SBEO/0001/DOC/3526-2
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shown on the Preliminary Title Report or Survey pursuant to
Sections 2.13 and 2.14 above) which exceeds the premium for a CLTA
owner's extended coverage policy of title insurance on the
Property, plus the cost of recording the Agency Grant Deed,
together with one-half (~) of the cost of the customary and
reasonable escrow fees charged by Escrow Holder in connection with
the Close of Escrow. The Developer shall pay any documentary or
other transfer taxes payable on account of the conveyance of the
Property to the Developer.
Any other Escrow-related transaction expenses or escrow
closing costs incurred by the Escrow Holder in connection with this
transaction shall be apportioned and paid for by the parties to
this Agreement in the manner customary in San Bernardino County,
California.
No later than three (3) business days prior to the
Closing Date, the Escrow Holder shall prepare for approval by the
Developer and the Agency a closing statement ("Closing Statement")
on the Escrow Holder's standard form indicating, among other
things, the Escrow Holder's estimate of all closing costs, pay-off
amounts for the release and reconveyance of all liens secured by
the Property and prorations made pursuant to this Agreement. The
Developer and the Agency shall assist the Escrow Holder in
determining the amount of all prorations.
Section 2.22. BREACH OF ARTICLE II BY THE AGENCY;
LIOUIDATED DAMAGES PAYABLE BY THE AGENCY TO THE DEVELOPER. IN THE
EVENT THAT THE AGENCY COMMITS A MATERIAL BREACH OF ITS OBLIGATIONS
UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE DAMAGES
THAT THE DEVELOPER WILL INCUR BY REASON THEREOF ARE AND WILL BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
DEVELOPER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE
AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT EQUAL
TO THE SUM OF TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) AS
LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE DEVELOPER IN THE
EVENT OF SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF THIS
AGREEMENT AND CANCELLATION OF THE ESCROW, AS LIQUIDATED DAMAGES,
WHICH DAMAGES SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY AT
LAW OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE
AGENCY. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS
PARAGRAPH, THE DEVELOPER WAIVES ANY AND ALL RIGHTS WHICH THE
DEVELOPER OTHERWISE WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO
SPECIFICALLY ENFORCE THIS AGREEMENT. THE DEVELOPER AND THE AGENCY
ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS
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THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE BOUND BY ITS
TERMS. 'i/
~
Inicials of Agency
~
Initials of Developer
Section 2.23. BREACH BY THE DEVELOPER OF ARTICLE II;
LIOUIDATED DAMAGES PAYABLE BY THE DEVELOPER TO THE AGENCY. IN THE
EVENT THAT THE DEVELOPER COMMITS A MATERIAL BREACH OF ITS
OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE
DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL
BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE
DEVELOPER, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT
EQUAL TO THE SUM OF TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) AS
LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE AGENCY IN THE
EVENT OF SUCH DEFAULT BY THE DEVELOPER AS LIQUIDATED DAMAGES, WHICH
DAMAGES SHALL BE THE AGENCY'S SOLE AND EXCLUSIVE REMEDY AT LAW OR
IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE DEVELOPER.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE
AGENCY WAIVES ANY AND ALL RIGHTS WHICH THE AGENCY OTHERWISE WOULD
HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS
AGREEMENT. THE AGENCY AND THE DEVELOPER ACKNOWLEDGE AND AGREE THAT
EACH OF THEM HAS READ AND UNDERSTANDS THE PROVIS~NS OF THIS
SECTION ~ AGREES TO BE BOUND BY ITS TERMS. //
Initials of Developer fnltials of Agency
Section 2.24. ReDresentations a~d Warranties.
(a) Warranties and ReDresentations bv the Aaencv. The
Agency hereby makes the following representations, covenants and
warranties and acknowledges that the execution of this Agreement by
the Developer has been made and the acquisition by the Developer of
the Property will have been made in material reliance by the
Developer on such covenants, representations and warranties:
(1) Warranties True. Each and every undertaking and
obligation of the Agency under this Agreement shall
be performed by the Agency timely when due; and
that all representations and warranties of the
Agency under this Agreement and its exhibits shall
be true in all material respects at the Closing as
though they were made at the time of Closing.
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(2) Due Oraani zation. The Agency is a community
redevelopment agency, duly formed and operating
under the laws of California. The Agency has the
legal power, right and authority to enter into this
Agreement and to execute the instruments and
documents referenced herein, and to consummate the
transactions contemplated hereby.
(3) Requisite Action. The Agency has taken all
requisi te action and obtained all requisite
consents in connection with entering into this
Agreement and the instruments and documents
referenced herein and the consummation of the
transactions contemplated hereby, and no consent of
any other party is required.
(4) Enforceabili ty of Aareement. The persons executing
any instruments for or on behalf of the Agency have
been authorized to act on behalf of the Agency and
that the Agreement is valid and enforceable against
the Agency in accordance with its terms and each
instrument to be executed by the Agency pursuant
hereto or in connection therewith will, when
executed, be valid and enforceable against the
Agency in accordance with its terms. No approval,
consent, order or authorization of, or designation
or declaration of any other person, is required in
connection with the valid execution and delivery of
and compliance with this Agreement by the Agency.
(5) Title. Prior to the Closing, the Agency will be
the owner of (and the Developer .will acquire
hereunder) the entire right, title and interest in
the Property to effectively vest in the Developer
good and marketable fee simple title to the
Property, that the Developer will acquire the
Property free and clear of all liens, encumbrances,
claims, rights, demands, easements, leases or other
possessory interests, agreements, covenants,
conditions, and restrictions of any kind or
character (including, without limiting the
generali ty of the foregoing, liens or claims for
taxes, mortgages, conditional sales contracts, or
other title retention agreement, deeds of trust,
security agreements and pledges and mechanics lien)
except: (i) the matters described in Section 2.05,
and (ii) the exceptions to title approved by the
Buyer pursuant to Section 2.13.
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(6) No Litigation. There are no pending or, to the
best of the Agency's knowledge, threatened claims,
actions, allegations or lawsuits of any kind,
whether for personal injury, property damage,
property taxes or otherwise, that could materially
and adversely affect the value or use of the
Property or prohibit the sale thereof, nor to the
best of the Agency's knowledge, is there any
governmental investigation of any type or nature
pending or threatened against or relating to the
Property or the transactions contemplated hereby.
(7) Ooeration and Condition Pending Closing. Between
the date of this Agreement and the Close of Escrow,
the Agency will continue to manage, operate and
maintain the Property in the same manner as existed
prior to the execution of this Agreement.
(8) Contracts. There are no contracts or agreements to
which the Agency is a party relating to the
operation, maintenance, development, improvement or
ownership of either of the Property which will
survive the Close of Escrow except as may be set
forth in the Agency Grant Deed or in the Deed of
Trust.
(9) Develooment of Prolect. Although the Agency makes
no representation or warranty that the Property is
sui table for the development or operation of the
Project, the Agency has no present knowledge of any
condition of the Property which would prevent its
development in accordance with the Scope of
Development.
(10) Soecial Studies Zone. The Property is f?l/ fis
llQtl located within a designated earthquake fault
zone pursuant to California Public Resources Code
Section 2621.9 and a designated area that is
particularly susceptible to ground shaking,
liquefaction, landslides or other ground failure
during an earthquake pursuant to California Public
Resources Code Section 2694.
(11) The Aaency's Knowledae. For purposes of this
Section 2.22, the terms "to the best of the
Agency's knowledge" or "to the Agency's knowledge"
shall mean the actual knowledge of Gary Van Osdel
and Ronald Winkler.
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If the Agency becomes aware of any act or circumstance
which would change or render incorrect, in whole or in part, any
representation or warranty made by the Agency under this Agreement,
whether as of the date given or any time thereafter through the
Closing Date and whether or not such representation or warranty was
based upon the Agency's knowledge and/or belief as of a certain
date, the Agency will give immediate written notice of such changed
fact or circumstance to the Developer, but such notice shall not
release the Agency of its liabilities or obligations with respect
thereto.
All representations and warranties contained in this
Section 2.24 (a) are true and correct on the date hereof and on the
Closing Date and the Agency's liability for misrepresentation or
breach of warranty, representation or covenant, wherever contained
in this Agreement, shall survive the execution and delivery of this
Agreement and the Close of Escrow.
(b) Warranties and Reoresentations bv the Developer.
The Developer hereby makes the following representations, covenants
and warranties and acknowledges that the execution of this
Agreement by the Agency has been made in material reliance by the
Agency on such covenants, representations and warranties:
(1) The Developer is a duly organized and validly
existing. The Developer has the legal right, power
and authority to enter into this Agreement and the
instruments and documents referenced herein and to
consumma te the transactions contemplated hereby.
The persons executing this Agreement and the
instruments referenced herein on behalf of the
Developer hereby represent and warrant that such
persons have the power, right and authority to bind
the Developer.
(2) The Developer has taken all requisite action and
obtained all requisite consents in connection with
entering into this Agreement and the instruments
and documents referenced herein and the
consummation of the transactions contemplated
hereby, and no consent of any other party is
required.
(3) This Agreement is, and all agreements, instruments
and documents to be executed by the Developer
pursuant to this Agreement shall be, duly executed
by and are or shall be valid and legally binding
upon the Developer and enforceable in accordance
with their respective terms.
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(4) Neither the execution of this Agreement nor the
consummation of the transactions contemplated
hereby shall result in a breach of_or constitute a
defaul t under any other agreement, document,
instrument or other obligation to which the
Developer is a party or by which the Developer may
be bound, or under law, statute, ordinance, rule,
governmental regulation or any writ, injunction,
order or decree of any court or governmental body
applicable to the Developer or to the Property.
All representations and warranties contained in this
Section 2.24 (b) are true and correct on the date hereof and on the
Closing Date and Developer's liability for misrepresentation or
breach of warranty, representation or covenant, wherever contained
in this Agreement, shall survive the execution and delivery of this
Agreement and the Closing.
Section 2.25. Damaae. Destruction and Condemnation.
Prior to the Agency's delivery of possession of the Property to
Developer at the Close of Escrow, the risk of loss or damage to the
Property shall remain upon the Agency. If the Property suffers
damages as a result of any casualty prior to the Close of Escrow
which may materially diminish its value, then the Agency shall give
written notice thereof to Developer promptly after the occurrence
of the casualty. The Developer can elect to either: Ii) accept the
Property in its damaged condition or (ii) the Developer may
terminate the Agreement and recover the Deposit as set forth in
Section 2.02. The Developer shall confirm the exercise of its
election under subparagraph (i) or (ii) of the preceding sentence
within thirty (30) days of its receipt of notice from the Agency.
In the event that, prior to the Close of Escrow, any
governmental entity shall commence any actions of eminent domain or
similar type proceedings to take any portion of the Property, the
Agency shall give prompt written notice thereof to Developer, and
Developer shall have the option either: Ii) to elect not to acquire
the Property, terminate the Agreement and recover the Deposit as
set forth in Section 2.02; or (ii) the Developer may complete the
acquisition of the Property under this Agreement, in which case
Developer shall be entitled to all the proceeds of such taking;
provided however, that the Agency agrees that it shall not settle
or compromise the proceedings before the Close of Escrow without
the Developer's prior written consent, which consent will not be
unreasonably withheld or delayed). The Developer shall confirm the
exercise of its election under subparagraph (i) or (ii) of the
preceding sentence within thirty (30) days of its receipt of notice
from the Agency.
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Section 2.26.
Sewer Service Plan. Sewer ImDrovement and Sewer ImDrovement
Cost Reimbursement Aareement.
(a) During the Due Diligence Period the Developer shall
prepare a plan for the connection of the Property and certain other
nearby Agency--C'q,med lands comprising approximately five (5) acres,
more or less, deSIgnated by the Agency (the "Agency Lands") to the
off-si te public sanitary sewer system of the City (the "Sewer
Service Plan"). The Developer shall pay all costs for the
preparation of the Sewer Service Plan and upon its completion, the
Sewer Service Plan shall be in a form and content as reasonable
acceptable to the City of San Bernardino and the Agency. The
Developer shall surnbit the Sewer Service Plan to the Agency for its
approval at least fifteen (15) days prior to the end of the Due
Diligence Period. The Agency shall approve or rej ect the Sewer
Service Plan within the ten (10) days following its submittal by
the Developer and such approval of the Sewer Service Plan, by the
Agency shall not be unreasonably withheld.
(b) The Developer shall be solely responsible for paying for
all of the cost and expense associated with the design,
construction and improvement of the off-site sanitary sewer
facilities set forth in the approved Sewer Service Plan (the "Sewer
Improvements"). The Sewer Service Plan shall provide for adequate
discharge capacity to accommodate waste water discharges from the
Property and from the Agency Land. The Sewer Improvements shall
otherwise be in a form acceptable to the City' and shall be
installed by the Developer as part of the proj ect, except as
provided in Section 2.26 (e) . Upon completion of the Sewer
Improvements such improvements shall be offered for dedication to
the City. The final design of such Sewer Improvements shall be
subject to the review and approval of the Agency and such approval
shall not be unreasonably withheld. Notwithstanding the foregoing
provision to the contrary, "Sewer Improvements" do not include any
on-site sewer improvements on either the Property or the Agency
Land, except to the extent that the installation of a sewer lift
station or sewer pump and vault and sewer laterals on the Property
and/or the Agency Lands may be part of the Sewer Improvements as
included in the Sewer Service Plan approved by the City. As part
of the approval of the Sewer Improvements, the Agency shall execute
such consents as may be required by the City for the inclusion of
the Property and the Agency Land in a local sewer operation and
maintenance district. From and after the date of completion of the
installation of the Sewer Improvements, the parties hereby
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acknowledge and agree that the Property and the Agency Land shall
be subject to an annual sewer operation and maintenance assessment
or service charge in an amount to be determined each year by the
City in accordance with applicable City sewer service rates,
tariffs and other applicable law. The Agency shall provide
reasonable accommodation to the Developer, including granting to
the Developer a license permitting limited entry onto the Agency
Land for the purpose of installing such portions of the Sewer
Improvements on the Agency Land as may be called for under the
Sewer Improvement Plan.
(c) The parties presently estimate that the Sewer Improvement
may range in cost between $50,000.00 to $60,000.00. As of the
review and approval of the Sewer Improvements by the Agency, the
Agency shall agree to reimburse the Developer for a sum equal to
forty percent (40%) of the costs incurred by the Developer for the
Sewer Improvements as installed, not to exceed $24,000.00,
including design costs and sewer maintenance and operation
assessment district formation charges of the City (the "Sewer
Improvement Reimbursement"). Provided the Developer has completed
the installation of the Sewer Improvements and a Certificate of
Completion for the Project has been issued, the Agency shall pay
the Sewer Improvement Reimbursement to the Developer as follows:
(i) within thirty (30) days of
the Agency Lands to a third
provisions of Section 2.26(e);
the sale or transfer of
party, subject to the
(ii) on or before a date which
anniversary following the issuance
Completion for the Project.
is the fifth (5th)
of a Certificate of
(d) Promptly upon the completion of the Project and the Sewer
Improvements, the Developer shall provide the Agency with an
appropriately detailed cost accounting for the Sewer Improvements
as installed.
(e) In the event that the Escrow may close and thereafter the
Agency may sell or transfer the Agency Land to a third party prior
to the date on which the Agency has issued a Certificate of
Completion for the Project, the Agency may at its election cause
the Sewer Improvements to be installed by the Agency or by third
parties under the control and direction of the Agency by giving
the Developer thirty (30) days written notice to assign the
engineering and design plans for the Sewer Service Plan to the
Agency. Upon its receipt of such engineering and design plans for
the Sewer Service Plans, the Agency shall cause the Sewer
Improvements to be installed within one hundred eighty (180) days
thereafter, and upon the completion and acceptance of the offer of
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dedication of the Sewer Improvements by the City, the Developer
shall pay the Agency within thirty (30) days of request by the
Agency a sum equal to sixty percent (60%) of the cost of
installation of the Sewer Improvements (not to exceed $36,000.00).
During the course of the performance of the work of installation
of the Sewer Improvements by the Agency pursuant to this Section
2.26(e), the Developer shall provide reasonable accommodation to
the Agency, including granting to the Agency a license permitting
limited entry onto the Property for the purpose of installing such
portions of the Sewer Improvements on the Property, as may be
called for under the Sewer Improvement Plan.
ARTICLE II I
DEVELOPMENT OF THE PROJECT
Section 3.01. DeveloDment of the Project by Developer.
(a) SCODe of DeveloDment. It is the intent of the
parties that promptly following the Close of the Escrow the
Developer shall redevelop the Project on the Property. The Project
consists of the elements set forth in Exhibit "8" (Scope of
Development) .
(b) The City's zoning ordinance and the City's building
requirements will be applicable to the use and development of the
Property. The Developer acknowledges that any change in the plans
for development of the Property as set forth in the Scope of
Development shall be subject to the City's zoning ordinance and
building requirements. No action by the Agency or the City with
reference to this Agreement or related documents shall be deemed to
constitute a waiver of any City requirements which are applicable
to the Property or to the Developer, any successor in interest of
the Developer or any successor in interest pertaining to the
Property, except by modification or variance approved by the City
consistent with this Agreement.
(c) The Scope of Development set forth in Exhibit "8" is
hereby approved by the Agency upon its execution of this Agreement.
The Project shall be developed and completed in conformance with
the approved Scope of Development and any and all other plans,
specifications and similar development documents required by this
Agreement, except for such changes as may be mutually agreed upon
in writing by and between the Developer and the Agency. The Agency
agrees to approve preliminary and construction plans and
preliminary and landscaping plans, if reasonably consistent with
the approved Scope of Development.
(d) The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the City Councilor the
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Planning Commission of the City with respect to any approvals of
the Project required by such other bodies. If any revisions of the
Scope of Development as approved by the Agency shall be required by
another government official, agency, department or bureau having
jurisdiction over the development of the Property, the Developer
and the Agency shall cooperate in efforts to obtain waivers of such
revisions, or to obtain approvals of any such revisions which have
been made by the Developer and have thereafter been approved by the
Agency. The Agency shall not unreasonably withhold approval of
such revisions.
(e) Notwithstanding any provision to the contrary in
this Agreement, the Developer agrees to accept and comply fully
with any and all reasonable conditions of approval applicable to
all permits and other governmental actions affecting the
development of the Property and consistent with this Agreement.
(f) The Developer shall cause landscaping plans in
connection with development of the Property to be prepared by a
licensed landscape architect. The Developer shall prepare and
submit to the City for its approval, preliminary and landscaping
plans for the Property which are consistent with City Code
requirements. These plans shall be prepared, submitted and
approved within the times respectively established therefor in the
Schedule of Performance as shown on Exhibit "E" attached hereto and
incorporated herein by reference and shall be consistent with the
Scope of Development.
(g) The Developer shall prepare and submit development
plans, construction drawings and related documents for the
development of the Property consistent with the Scope of
Development to the City. The development plans,. construction
drawings and related documents shall be in the form of drawings,
plans and specifications. drawings, plans and specifications are
hereby defined as those which contain sufficient detail necessary
to obtain a building permit from the City.
(h) During the preparation of all drawings and plans in
connection with the development of the Property, the Developer
shall provide to the Agency regular progress reports to advise the
Agency of the status of the preparation by the Developer, and the
submission to and review by the City of construction plans and
related documents. The Developer shall communicate and consult
with the Agency as frequently as is necessary to ensure that any
such plans and related documents submitted by the Developer to the
City are being processed in a timely fashion.
(i) The Agency shall have the right of reasonable
architectural review and approval of building exteriors and design
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of the structures to be constructed on the Property. The Agency
shall also have the right to review all plans, drawings and related
documents pertinent to the development of the Property in order to
ensure that they are consistent with this Agreement and with the
Scope of Development.
(j) The Developer shall timely submit to the City for
its review and approval any and all plans, drawings and related
documents pertinent to the development of the Property, as required
by the City. The Agency shall cooperate with and shall assist the
Developer in order for the Developer to obtain the approval of any
and all development plans, construction drawings and related
documents submitted by the Developer to the City consistent with
this Agreement wi thin thirty (30) calendar days following the
City's receipt of said plans. Any failure by the City to approve
any of such plans or to issue necessary permits for the development
of the Property within said thirty (30) calendar day period shall
constitute an enforced delay hereunder, and the Schedule of
Performance shall be extended by that period of time beyond said
thirty (30) calendar day period in which the City approves said
plans; provided, however, that in the event that the City
disapproves of any of such plans, the Developer shall within thirty
(30) calendar days after receipt of such disapproval revise and
resubmit such plans in accordance with the City's requirements and
in such form and substance so as to obtain the Ci ty' s approval
thereof.
(k) The Agency shall in good faith use its best efforts
to cause the City to approve in a timely fashion any and all plans,
drawings and documents submitted by the Developer which are
consistent with the Scope of Development.
(1) The Agency shall approve any modified or revised
plans, drawings and related documents to which reference is made in
this Agreement within the times established in the Schedule of
Performance as long as such plans, drawings and related documents
are generally consistent with the Scope of Development and any
other plans which have been approved by the Agency. Upon any
disapproval of plans, drawings or related documents, the Agency
shall state in writing the reasons for such disapproval. The
Developer, upon receipt of notice of any disapproval, shall
promptly revise such disapproved portions of the plans, drawings or
related documents in a manner that addresses the reasons for
disapproval and reasonably meets the requirements of the Agency in
order to obtain the Agency's approval thereof. The Developer shall
resubmit such revised plans, drawings and related documents to the
Agency as soon as possible after its receipt of the notice of
disapproval and, in any event, no later than thirty (30) calendar
days thereafter. The Agency shall approve or disapprove such
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revised plans, drawings and related documents in the same manner
and within the same times as provided in this Section for approval
or disapproval of plans, drawings and related documents initially
submitted to the Agency.
(m) If the Developer desires to make any change in the
construction drawings, plans and specifications and related
documents after their approval by the Agency and/or the City, the
Developer shall submit the proposed change in writing to the Agency
and/or the City for approval. The Agency shall notify the
Developer of approval or disapproval thereof in writing wi thin
thirty (30) calendar days after submission to the ""gency. This
thirty (30) calendar day period may be extended by mutual consent
of the Developer and the Agency. Any such change shall, in any
event, be deemed to be approved by the Agency unless rejected, in
whole or in part, by written notice thereof submitted by the Agency
to the Developer, setting forth in detail the reasons therefor, and
such rejection shall be made within said thirty (30) calendar day
period unless extended as permitted herein. The Agency shall use
its best efforts to cause the City to review and approve or
disapprove any such change as provided in Section 3.0l(b) hereof.
(n) The Developer, upon receipt of a notice of
disapproval by the Agency and/or the City, may revise such portions
of the proposed change in construction drawings, plans and
specifications and related documents as are rejected and shall
thereafter resubmit such revisions to the Agency and/or the City
for approval in the manner provided in Section 3.0l(b) hereof.
(0) The Developer shall have the right during the course
of construction to make changes in construction of structures and
"minor field changes" without seeking the approval qf the Agency;
provided, however, that such changes do not affect the type of use
to be conducted within all or any portion of a structure. Said
"minor field changes" shall be defined as those changes from the
approved construction drawings, plans and specifications which
have no substantial effect on the improvements and are made in
order to expedite the work of construction in response to field
conditions. Nothing contained in this Section shall be deemed to
constitute a waiver of or change in the City's Building Code
requirements governing such "minor field changes" or in any and all
approvals by the City otherwise required for such "minor field
changes."
(p) The cost of constructing the Project, including all
off-site public improvements shall be borne by the Developer.
(q) The Developer shall at its expense cause to be
prepared, and shall pay any and all fees pertaining to the review
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and approval of the development project approvals by the City,
including the cost and preparation of all required construction,
planning and other documents reasonably required by governmental
bodies pertinent to the development of the Property hereunder
incl uding, but not limited to, specifications, drawings, plans,
maps, permit applications, land use applications, zoning
applications and design review documents.
(r) The Developer shall pay for any and all costs,
including but not limited to the costs of design, construction,
relocation and securing of permits for utility improvements and
connections, which may be required in developing the Property. The
Developer shall obtain any and all necessary approvals prior to the
commencement of applicable portions of said construction, and the
Developer shall take reasonable precautions to ensure the safety
and stability of surrounding properties during said construction.
(s) The Developer shall commence the work of
improvements of the Project on the Property within ninety (90) days
following the Close of Escrow and thereafter shall diligently
prosecute such construction to completion. All construction and
development obligations and responsibilities of the Developer as
related to the Project shall be initiated and completed within the
times specified in the Schedule of Performance attached hereto, or
within such reasonable extensions of such times as may be granted
by the Agency or as otherwise provided for in this Agreement. The
Developer shall substantially complete the improvements of the
Project within the two hundred and seventy (270) days following the
commencement of the work of improvements. The Schedule of
Performance shall be subject to revision from time to time as
mutually agreed upon in writing by and between the Developer and
the Agency. Any and all deadlines for performance by the parties
shall be extended for any times attributable to delays which are
not the fault of the performing party and are caused by the other
party, other than periods for review and approval or reasonable
disapprovals of plans, drawings and related documents,
specifications or applications for permits as provided in this
Agreement.
(t) During the period of construction of the Project,
the Developer shall submit to the Agency written progress reports
when and as reasonably requested by the Agency but in no event more
frequently than every four (4) weeks. The reports shall be in such
form and detail as may reasonably be required by the Agency, and
shall include a reasonable number of construction photographs taken
since the last such report submitted by the Developer. In
addition, the Developer will attend Agency meetings when requested
to do so by Agency Staff.
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(u) Prior to the commencement of any construction, the
Developer shall furnish, or shall cause to be furnished, to the
Agency duplicate originals or appropriate certificates of public
indemni ty and liability insurance in the amount of One Million
Dollars ($1,000,000.00) combined single limit, naming the Agency
and the City as additional insureds. Said insurance shall cover
comprehensi ve general liability including, but not limited to,
contractual liability; acts of subcontractors; premises-operations;
explosion, collapse and underground hazards, if applicable; broad
form property damage, and personal injury including libel, slander
and false arrest. In addition, the Developer shall provide to the
Agency adequate proof of comprehensive automobile liability
insurance covering owned, non-owned and hired vehicles, combined
single limit in the amount of One Million Dollars ($1,000,000.00)
each occurrence; and proof of workers' compensation insurance. Any
and all insurance policies required hereunder shall be obtained
from insurance companies admitted in the State of California and
rated at least B+: XII in Best's Insurance Guide. All said
insurance policies shall provide that they may not be canceled
unless the Agency and the City receive written notice of
cancellation at least thirty (30) calendar days prior to the
effective date of cancellation. Any and all insurance obtained by
the Developer hereunder shall be primary to any and all insurance
which the Agency and/or City may otherwise carry, including self
insurance, which for all purposes of this Agreement shall be
separate and apart from the requirements of this Agreement. Any
insurance policies governing the Property as obtained by the Agency
shall not be transferred from the Agency to the Developer.
Appropriate insurance means those insurance policies approved by
the Agency Counsel consistent with the foregoing. Any and all
insurance required hereunder shall be maintained and kept in force
until the Agency has issued the Certificate of 'Completion in
connection with the development of the Property.
(v) The Developer for itself and its successors and
assigns agrees that in the construction of the Project, the
Developer will not discriminate against any employee or applicant
for employment because of sex, marital status, race, color,
religion, creed, national origin, or ancestry. Notwithstanding the
foregoing, the Developer will use best efforts to offer employment
opportunities to local residents and will seek to acquire goods and
services from local vendors.
(w) The Developer shall carry out its construction of
the Project in conformity with all applicable laws, including all
applicable state labor standards and requirements.
(x) The Developer shall, at its own expense, secure or
shall cause to be secured, any and all permits which may be
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required for such construction, development or work by the City or
any other governmental agency having jurisdiction thereof. The
Agency shall cooperate in good faith with the Developer in the
Developer's efforts to obtain from the City or any other
appropriate governmental agency any and all such permits and, upon
applicable to the development of the Property.
(y) Officers, employees, agents or representatives of
the Agency shall have the right of reasonable access to the
Property, without the payment of charges or fees, during normal
construction hOJIS during the period of construction of the Project
for the purpose of verifying compliance by the Developer within the
terms of this Agreement. Such officers, employees, agents or
representatives of the Agency shall be those persons who are so
identified by the Executive Director. Any and all officers,
employees, agents or representatives of the Agency who enter the
Property pursuant hereto shall identify themselves at the job site
office upon their entrance on to the Property and shall at all
times be accompanied by a representative of the Developer while on
the Property; provided, however, that the Developer shall make a
representative of the Developer available for this purpose at all
times during normal construction hours upon reasonable notice from
the Agency. The Agency shall indemnify and hold the Developer
harmless from injury, property damage or liability arising out of
the exercise by the Agency and/or the City of this right of access,
other than injury, property damage or liability relating to the
negligence of the Developer or its officers, agents or employees.
(z) The Agency shall inspect relevant portions of the
construction site prior to issuing any written statements
reflecting adversely on the Developer's compliance with the terms
and conditions of this Agreement pertaining to development of the
Property.
Section 3.02.
[RESERVED -- NO TEXT]
Section 3.03. Taxes. Assessments. Encumbrances and
Liens. The Developer shall pay prior to the delinquency all real
property taxes and assessments assessed and levied on or against
the Property subsequent to the Close of Escrow. The Developer
shall not place and shall not allow to be placed on the Property
any mortgage, trust deed, deed of trust, encumbrance or lien not
otherwise authorized by this Agreement. The Developer shall
remove, or shall have removed, any levy or attachment made on the
Property, or shall assure the satisfaction thereof. Nothing herein
contained shall be deemed to prohibit the Developer from contesting
the validity or amounts of any tax assessment, encumbrance or lien,
nor to limit the remedies available to the Developer in respect
thereto. The covenants of the Developer set forth in this Section
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relating to the placement of any unauthorized mortgage, trust deed,
deed of trust, encumbrance or lien, shall remain in effect only
until the Certificate of Completion has been recorded with respect
to redevelopment of the Property.
Section 3.04. Chanae in Ownership Manaaement and Control
of the Developer -- Assignment and Transfer.
(a) Transfer as used in this Section 3.04,
"Transfer" means:
the term
(1) Any total or partial sale, assignment or conveyance,
or any trust or power, or any transfer in any other mode or
form, by the Developer of more than a 49% interest (or series
.of such sales, assignments and the like which in the aggregate
exceed a disposition of more than a 49% interest) with respect
to its interest in this Agreement, the Property, or the
Project, or any part thereof or any interest therein or of the
improvements constructed thereon, or any contract or agreement
to do any of the same; or
(2) Any total or partial sale, assignment, conveyance,
or transfer in any other mode or form, of or with respect to
any ownership interest of the Developer, in California Bio
Mass, Inc., a California corporation (or series of such sales,
assignments and the like which in the aggregate exceeded a
disposition of more than a 49% interest); or
(3) Any merger, consolidation, sale or lease of all or
substantially all of the assets of California Bio Mass, Inc.
in the Agreement, the Property or the Project (or series of
such sale~, assignments and the like which in ~he aggregate
exceeded a disposition of more than a 49% interest); or
(4) The leasing of part or all of the Property or the
Project except for the lease of the Project upon its
completion by the Developer to California Bio Mass, Inc.
(b) This Agreement is entered into solely for the purpose of
the redevelopment of the Property and the improvement of the
Project and the subsequent operation and use of the Property by the
Developer in accordance with the terms hereof. The Developer
recognizes that the qualifications and identity of the Developer
are of particular concern to the Agency, in view of:
(1) the importance of the redevelopment of the Site to
the general welfare of the community; and
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(2) the fact that a Transfer is for all practical
purposes a transfer or disposition of the responsibilities of
the Developer, as applicable, with respect to the
redevelopment of the Property and the Project.
The Developer further recognizes and acknowledges that it is
because of the qualifications and identity of the Developer that
the Agency is entering into this Agreement with the Developer, and,
as a consequence, Transfers are permitted only as provided in this
Agreement.
(c) The limitations on a Transfer as set forth in this
Section 3.04 shall apply until such time as a Certificate of
Completion is approved by the Agency and filed for recordation as
provided in Section 3.07. Except as expressly permitted in this
Agreement, the Developer represents and agrees that it has not
made nor shall it create or suffer to be made or created, any
Transfer, either voluntarily or by operation of law without the
prior written approval of the Agency until such time as a
Certificate of Completion has been recorded. After the date of
recordation of a Certificate of Completion, certain other
provisions of this Agreement shall nonetheless be applicable to
subsequent conveyances of interest in the Property, or portions
thereof, as provided in Article IV of this Agreement. Any Transfer
made in contravention of this Section 3.04 shall be voidable at the
election of the Agency and shall then be deemed to be a default
under this Agreement.
(d) The following types of a Transfer shall be permitted and
approved by the Agency and are referred to herein as a "Permitted
Transfer":
(1) Any Transfer by the Developer creating a "Security
Financing Interest" in the Property which conforms to the
provisions of Section 3.05;
(2) Any Transfer directly resulting from the foreclosure
of a Security Financing Interest created by the Developer in
the Property or the granting of a deed in lieu of foreclosure
of a Security Financing Interest;
(3) Any Transfer of stock or equity of the Developer in
California Bio Mass, Inc., which does not change management or
operational control of the Property or the Project;
(4) Any Transfer of any interest in the Developer,
irrespective of the percentage of ownership: (A) to members of
the family (i.e. spouse, brother, sister, nephew, niece,
parent, child and/or issue of any of the same) of the
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Developer or; (E) to a trust for the benefit of any such
famiiy member; or (C) to any affiliate of or other entity
controlled by the Developer, or (D) to any other entity in
which the Developer owns a controlling interest.
(e) No Permitted Transfer of this Agreement or any interest
in the Property or the Project, by the Developer (other than a
Permitted Transfer created pursuant to a Security Financing
Interest) shall be effective unless, at the time of the Permitted
Transfer, the person or entity to which such Transfer is made,
shall expressly assum~ ~he obligations of the Developer under this
Agreement and such person also agrees to be subject to the
conditions and restrictions to which the Developer is subject under
this Agreement. Such an assumption of obligation shall be
evidenced by a written instrument delivered to the Agency in a
recordable form which is satisfactory to the Agency.
(f) Provided the particular transaction satisfies the
applicable provisions of Section 3.04 (d), the Developer is not
required to give the Agency advance notice of such a Permitted
Transfer. The Agency may, in its reasonable discretion, approve in
writing any other Transfer as requested by the Developer, provided
such proposed transferee can demonstrate successful and
satisfactory experience in the ownership, operation, and management
of an operation similar to the Project. Any such transferee for
itself and its successors and assigns, and for the benefit of the
Agency shall expressly assume all of the obligations of the
Developer to the Agency under this Agreement. There shall be
submitted to the Agency for review all instruments and other legal
documents proposed to effect any such other Transfer; and the
approval or disapproval of the Agency shall be provided to the
Developer in writing within thirty (30) days of receipt by the
Agency of Owner's or che Operator's request, and the Agency
approval of a transfer and shall not be unreasonably withheld or
delayed.
(g) Following the issuance of a Certificate of Completion,
the Developer shall be released by the Agency from any liability
under this Agreement which may arise from a default of a successor
in interest occurring after the date of such a Transfer; provided,
however that the covenants of the Developer as set forth in Article
IV of this Agreement shall run with the land for the term as
provided in Article IV.
Section 3.05. Security Financino: Rioht of Holders.
(a) Notwithstanding any provision of Section 3.04 to the
contrary, mortgages, deeds of trust, or any other form of lien
required for any reasonable method of financing the construction
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and improvement of the Property are permitted before the
recordation of the Certificate of Completion (referred to in
Section 3.07 of this Agreement). The Developer shall notify the
Agency in writing in advance of any mortgage, deed of trust, or
other form of lien for financing if the Developer proposes to enter
into the same before the recordation of any Certificate of
Completion. The Developer shall not enter into any such conveyance
for construction financing without the prior written approval of
the Agency, which approval the Agency may grant if: (i) any such
conveyance is given to a responsible financial or lending
institution including, without limitation, banks, savings and loan
institutions, insurance companies, real estate investment trusts,
pension programs and the like, or other acceptable persons or
entities for the purpose of constructing the Project on the
Property.
(b) The Developer shall promptly notify the Agency of
any mortgage, deed of trust or other refinancing, encumbrance or
lien that has been created or attached thereto prior to completion
of the construction of the improvements on the Property whether by
voluntary act of the Developer or otherwise; provided, however,
that no notice of filing of preliminary notices or mechanic's liens
need be given by the Developer to the Agency prior to suit being
filed to foreclose such mechanic's lien.
(c) The
herein shall be
appropriate modes
development.
words "mortgage" and "deed of trust" as
deemed to include all other customary
of financing real estate construction and
used
and
land
(d) The holder of any mortgage, deed of trust or other
security interest authorized by this Agreement shall- in no manner
be obligated by the provisions of this Agreement to construct or
complete the improvement of the Property or to guarantee such
construction or completion.
(e) Whenever the Agency shall deliver any notice or
demand to the Developer with respect to any breach or default by
the Developer in the completion of construction of the
improvements, or any breach or default of any other obligations
which, if not cured by the Developer, entitle the Agency to
terminate this Agreement or exercise its right to re-enter the
Property, or a portion thereof under Section 5.07, the Agency shall
at the same time deliver to each holder of record of any mortgage,
deed of trust or other security interest authorized by this
Agreement a copy of such notice or demand. Each such holder shall
(insofar as the rights of the Agency are concerned) have the right,
at its option, to commence the cure or remedy of any such default
and to diligently and continuously proceed with such cure or
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remedy, within one hundred twenty (120) calendar days after the
receipt of the notice; and to add the cost thereof to the-security
interest debt and the lien of its security interest. If such
default shall be a default which can only be remedied or cured by
such holder upon obtaining possession, such holder shall seek to
obtain possession with diligence and continuity through a receiver
or otherwise, and shall remedy or cure such default within one
hundred twenty (120) calendar days after obtaining possession;
provided that in the case of a default which cannot with diligence
be remedied or cured, or the remedy or cure of which cannot be
commenced, within such one hundred twenty (120) calendar day
period, such holder shall have such additional time as is
reasonably necessary to remedy or cure such default of the
Developer. Nothing contained in this Agreement shall be deemed to
permi t or authorize such holder to undertake or continue the
construction or completion of the improvements (beyond the extent
necessary to conserve or protect the improvements or construction
already made) without first having expressly assumed the
Developer's obligations by written agreement satisfactory to the
Agency. The holder in that event must agree to complete, in the
manner provided in this Agreement, the improvements to which the
lien or title of such holder relates and must submit evidence
satisfactory to the Agency that it has the qualifications and
financial responsibili ty necessary to perform such obligations.
Any such holder completing such improvements in accordance herewith
shall be entitled, upon written request made to the Agency, to be
issued Certificate of Completion by the Agency.
(f) In any case where, one hundred eighty (180) calendar
days after default by the Developer the holder of any mortgage,
deed of trust or other security interest creating a lien or
encumbrance upon the Property or any portion thereof has not
exercised the option to construct the applicable portions of the
Project, or has exercised the option but has not proceeded
diligently and continuously with construction, the Agency may
purchase the mortgage, deed of trust or other security interest by
payment to the holder of the amount of the unpaid debt, including
principal, accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by the Developer
under the loan documents between holder and the Developer. If the
ownership of the Property has vested in the holder, the Agency, if
may at its option but not its obligation be entitled to a
conveyance from the holder to the Agency upon payment to the holder
of an amount equal to the sum of the following:
(1) The unpaid mortgage, deed of trust or other
securi ty interest debt, including principal,
accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by
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the Developer under the loan documents between the
holder and the Developer, at the time title became
vested in the holder (less all appropriate credits,
including those resulting from collection and
application of rentals and other income received
during foreclosure proceedings.)
(2) All expenses, if any, incurred by the holder with
respect to foreclosure.
(3) The net expenses, if any (exclusive of general
overhead), incurred by the holder as a direct
result of the subsequent ownership or management of
the Property or the Property, such as insurance
premiums and real estate taxes.
(4) The cost of any improvements made by such holder.
(5) An amount equivalent to the interest that would
have accrued on the aggregate on such amounts had
all such amounts become part of the mortgage or
deed of trust debt and such debt had continued in
existence to the date of payment by the Agency.
(6) After expiration of the aforesaid one hundred
eighty (1801 calendar day period, the holder of any
mortgage, deed of trust or other security affected
by the option created by this Section, may demand,
in writing, that the Agency act pursuant to the
option granted hereby. If the Agency fails to
exercise the right herein granted within sixty (60)
calendar days from the date of such written demand,
the Agency shall be conclusively deemed to have
waived such right of purchase of the or the
mortgage, deed of trust or other security interest.
(g) In the event of a default or breach by the Developer
of a mortgage, deed of trust or other security interest with
respect to the Property (or any portion thereof) prior to the
issuance of a Certificate of Completion for the Property (or any
portion thereof), and the holder has not exercised its option to
complete the development, the Agency may cure the default but is
under no obligation to do so prior to completion of any
foreclosure. In such event, the Agency shall be entitled to
reimbursement from the Developer of all costs and expenses incurred
by the Agency in curing the default. The Agency shall also be
deemed to have a lien of the Agency as may arise under this Section
3.05(g) upon the Property (or any portion thereof) to the extent of
such costs and disbursements. Any such lien shall be subordinate
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and subject to mortgages, deeds of trust or other security
instruments executed by the Developer for the purpose of obtaining
the funds to construct and improve the Property as authorized
herein.
Section 3.06. Riaht of the Aaencv to Satisfv Other Liens
on the Prooertv after Convevance of Title. After the conveyance of
title to the Property by the Agency to the Developer and prior to
the recordation of the Certificate of Completion (referred to in
Section 3.07 of this Agreement), and after the Developer has had a
reasonable time to challenge, cure or satisfy any unauthorized
liens or encumbrances on the Property, the Agency shall after one
hundred twenty (120) calendar days prior written notice to the
Developer have the right to satisfy any such liens or encumbrances;
provided, however, that nothing in this Agreement shall require the
Developer to payor make provisions for the payment of any tax,
assessment, lien or charge so long as the Developer in good faith
shall contest the validity or amount thereof, and so long as such
delay in payment shall not subject the Property, or any portion
thereof, to forfeiture or sale.
Section 3.07. Certificate of Comoletion.
la) Following the written request therefor by the
Developer and the completion of construction of the proj ect,
excluding any normal and minor building "punch-list" items to be
completed by the Developer, the Agency shall furnish the Developer
with a Certificate of Completion for the Property substantiated in
the form set forth in Exhibit "FH attached hereto.
(b) The Agency shall not unreasonably withhold the
issuance of a Certificate of Completion. A Certificate of
Completion shall be, and shall so state, that it is' a conclusive
determination of satisfactory completion of all of. After the
recordation of the Certificate of Completion, any party then owning
or thereafter purchasing, leasing or otherwise acquiring any
interest in the Property shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or liability
under this Agreement, except that such party shall be bound by any
covenants contained in the grant deed or other instrument of
transfer which grant deed or other instrument of transfer shall
include the provisions of Section 4.01 through through ,
inclusive, of this Agreement.
(c) Any Certificate of Completion shall be in such form
as to permit it to be recorded in the Recorder's Office of the
County where the Property is located.
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(d) If the Agency refuses or fails to furnish a
Certificate of Completion after written request from the Developer,
the Agency shall, within fifteen (15) calendar days of the written
request or within three (3) calendar days after the next regular
meeting of the Agency, whichever date occurs later, provide to the
Developer a written statement setting forth the reasons with
respect to the Agency's refusal or failure to furnish a Certificate
of Completion. The statement shall also contain the Agency's
opinion of the action the Developer must take to obtain a
Certificate of Completion. If the reason for such refusal is
confined to the immediate unavailability of specific items or
materials for construction or landscaping at a price reasonably
acceptable to the Developer or other minor building "punch-list"
items, the Agency may issue its Certificate of Completion upon the
posting of a bond or irrevocable letter of credi t, reasonably
approved as to form and substance by the Agency Counsel and
obtained by the Developer in an amount representing a fair value of
the work not yet completed as reasonably determined by the Agency.
If the Agency shall have failed to provide such written statement
within the foregoing period, the Developer shall be deemed
conclusively and without further action of the Agency to have
satisfied the requirements of this Agreement with respect to the
Property as if a Certificate of Completion had been issued
therefor.
(e) A Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation of
the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements
described herein, or any part thereof. A Certificate of Completion
shall not be deemed to constitute a notice of completion as
referred to in Section 3093 of the California Civil Code, nor shall
it act to terminate the continuing covenants or conditions
subsequent contained in the Agency Grant Deed attached hereto as
Exhibit "Cu.
ARTICLE IV
USE OF THE SITE
Section 4.01. Uses.
(a) Developer covenants and agrees for itself, its
successors, and assigns that
The covenant of this Section 4.0l(a) shall run with the
land for the terms as set forth in the Agency Grant Deed.
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(b) The Developer further covenants and agrees for
itself, its successors and assigns that the Property shall be
improved and developed in accordance with the Scope of Development.
Developer covenants to develop the Property in conformity with all
applicable laws. The covenants of this Section 4.01(b) shall also
run with the land until the earlier date on which the Certificate
of Completion is recorded or the fifth (5th) anniversary date of
recordation of the Agency Grant Deed.
(c) It is understood and agreed by the Developer that
neither the Developer, nor its assigns or successors shall use or
otherwise sell, transfer, convey, assign, lease, leaseback or
hypothecate the Property or any portion thereof to any entity or
party, or for any use of the Property, that is partially or wholly
exempt from the payment of real property taxes pertinent to the
Property, or any portion thereof, or which would cause the
exemption of the payment of all or any portion of such real
property taxes. The covenant of this Section 4.01 (c) shall run
with the land for the term as set forth in the Agency Grant Deed.
Section 4.02. Maintenance of the Prooerty. The
Developer covenants and agrees for itself, its successors, and
assigns to maintain the Property in a good condition free from any
accumulation of debris or waste material, subject to normal
construction job-site conditions, and shall maintain in a neat,
orderly, healthy and good condition the landscaping required to be
planted in accordance with the Scope of Development. In the event
the Developer, or its successors or assigns, fails to perform the
maintenance as required herein, the Agency shall have the right,
but not the obligation, to enter the Property and undertake, such
maintenance activities. In such event, the Developer shall
reimburse the Agency for all reasonable sums incurred by it for
such maintenance activities as set forth in the Agency Grant Deed.
The covenant of this Section 4.02 shall run with the land for the
term as set forth in the Agency Grant Deed.
Section 4.03. Obliaation to Refrain from Discrimination.
The Developer covenants and agrees for itself, its successors, its
assigns and every successor in interest to the Property or any part
thereof, that there shall be no discrimination against or
segregation of any person, or group of persons, on account of sex,
marital status, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enj oyment of the Property; nor shall the Developer,
itself or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessee or vendees
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of the Property. The covenant of this Section 4.03 shall run with
the land for the term as set forth in the Agency Grant Deed.
Section 4.04. Form of Nondiscrimination and
Nonsegregation Clauses. The Developer covenants and agrees for
itself, its successors, its assigns, and every successor in
interest to the Property, or any part thereof, that the Developer,
such successors and such assigns shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure or
enjoyment of the Property (or any part thereof) on the basis of
sex, marital status, race, color, religion, creed, ancestry or
national origin of any person. All deeds, leases or contracts
pertaining thereto shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(1) In deeds: "The grantee herein covenants by and for
itself, its successors and assigns, and all persons
claiming under or through them, that there shall be
no discrimination against or segregation of, any
person or group of persons on account of race,
color, creed, religion, sex, marital status,
national origin, or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor
shall the grantee or any person claiming under or
through it, establish or permit any such practice
or practices of discrimination or segregation with
reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants,
sublessee, or vendees in the premises herein
conveyed. The foregoing covenants shall run with
the land."
(2) In leases: "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons
claiming under or through them, and this lease is
made and accepted upon and subject to the following
conditions: That there shall be no discrimination
against or segregation of any person or group of
persons, on account of race, color, creed,
religion, sex, marital status, national origin, or
ancestry, in the leasing, subleasing, transferring,
use, occupancy, tenure, or enj oyment of the
premises herein leased nor shall the lessee itself,
or any person claiming under or through it,
establish or permit any such practice or practices
of discrimination or segregation with reference to
the selection, location, number, use, or occupancy,
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of tenants lessees, sublessee, subtenants, or
vendees in the premises herein leased."
(3) In contracts: "There shall be no discrimination
against or segregation of any person or group of
persons on account of race, color, creed, religion,
sex, marital status, national origin, or ancestry,
in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enj oyment of the premises
herein conveyed or leased, nor shall the transferee
or any person claiming under or through it,
establish or permit any such practice or practices
of discrimination or segregation with reference to
the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or
vendees of the premises herein transferred." The
foregoing provision shall be binding upon and shall
obligate the contracting party or parties and any
subcontracting party or parties, or other
.transferees under the instrument. The covenant of
this Section 4.04 shall run with the land in
perpetuity.
ARTICLE V
DEFAULTS. REMEDIES AND TERMINATION
Section 5.01. Defaults - General.
(a) In the event that a breach or default may occur
prior to the Close of Escrow, the remedies of the parties shall be
as set forth in Article II of this Agreement.
(b) From and after the Close of Escrow and subject to
the extensions of time set forth in Section 6.05 hereof, failure or
delay by either party to perform any term or provision of this
Agreement shall constitute a default under this Agreement;
provided, however, that if a party otherwise in default commences
to cure, correct or remedy such default within thirty (30) calendar
days after receipt of written notice specifying such default and
shall diligently and continuously prosecute such cure, correction
or remedy to completion (and where any time limits for the
completion of such cure, correction or remedy are specifically set
forth in this Agreement, then within said time limits), such party
shall not be deemed to be in default hereunder.
(c) The inj ured party shall give wri t ten notice of
default to the party in default, specifying the default complained
of by the nondefaulting party. Delay in giving such notice shall
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not constitute a waiver of any default nor shall it change the time
of default.
(d) Any failure or delays by either party in asserting
any of its rights and remedies as to any default shall not operate
as a waiver of any default or of any such rights or remedies.
Delays by either party in asserting any of its rights and remedies
shall not deprive either party of its right to institute and
maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
Section 5.02. Leaal Actions.
(a) In addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy any
default, to recover damages for any default, or to obtain any other
remedy consistent with the purposes of this Agreement. Such legal
actions must be instituted in the Superior Court of the County of
San Bernardino, State of California, in any other appropriate court
in that County, or in the Federal District Court in the Central
District of California.
(b) The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
(c) In the event that any legal action is commenced by
the Developer against the Agency, service of process on the Agency
shall be made by personal service upon the Executive Director or
Chair of the Agency, or in such other manner as may be provided by
law.
(d) In the event that any legal action is commenced by
the Agency against the Developer, service of process on the
Developer shall be made by personal service on 'DAULl::::>,'- HA.e.~
(or such other Agent for service of process and at such address as
may be specified in written notice to the Agency), or in such other
manner as may be provided by law, and shall be valid whether made
within or without the State of California.
Section 5.03. Riahts and Remedies are Cumulative.
Except with respect to any rights and remedies expressly declared
to be exclusive in Article II of this Agreement as relates to a
default or breach occurring before the Close of Escrow, the rights
and remedies of the parties as set forth in this Article V
following the close of Escrow are cumulative and the exercise by
either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default
by the other party.
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Section 5.04. Damages. If either party defaults with
regard to any provision of this Agreement, the nondefaulting party
shall serve written notice of such default upon the defaulting
party. I f the defaulting party does not diligently commence to
cure such default after service of the notice of default and
promptly complete the cure of such default wi thin a reasonable
time, not to exceed ninety (90) calendar days (or such shorter
period as may otherwise be specified in this Agreement for
default), after the service of written notice of such a default.
In the event that a default relates to a matter arising after the
Close of Escrow the defaulting party shall be liable to the other
party for damages caused by such default. In the event that a
default relates to a matter arising before the Close of Escrow, the
remedies of the parties shall be limited to the liquidated damage
sums as set forth in Article II of the Agreement.
Section 5.05. Specific Performance Prior to close of
Escrow. Prior to the Close of Escrow neither party shall have or
assert the equitable remedy of specific performance in the event of
a default or breach, and the remedies of the parties with respect
to such a breach or default prior to the Close of Escrow shall be
limited to the termination rights and liquidated damage amounts or
as set forth in Article II of this Agreement. Prior and after the
Close of Escrow if either party defaults under any of the
provisions of this Agreement, the nondefaulting party shall serve
written notice of such default upon such defaulting party. If the
defaulting party does not commence to cure the default and
diligently and continuously proceed with such cure within thirty
(30) calendar days after service of the notice of default, and such
default is not cured within a reasonable time thereafter (and where
any time limits for the completion of such cure, correction or
remedy are specifically set forth in this Agreement, then within
said time limits), the nondefaulting party, at its option, may
institute an action for specific performance of the terms of this
Agreement, except as otherwise provided in Section 5.04 hereof.
Section 5.06. Aaencv Riahts of Termination Following
Close of Escrow.
(a) Subj ect to written notice of default which shall
specify the Developer's default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency's intent to terminate this Agreement
pursuant to this Section, the Agency at its option may terminate
this Agreement if the Developer in breach of this Agreement assigns
or attempts to assign this Agreement, or any right therein, or
attempts to make any total or partial sale, lease or leaseback,
transfer or conveyance of the whole or any part of the Property or
the improvements to be developed thereon in violation of the terms
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of this Agreement, and the Developer does not correct such
violation within thirty (30) calendar days from the date of receipt
of such notice.
(b) Subject to written notice of default, which shall
specify the Developer's default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency's intent to terminate this Agreement
pursuant to this Section, the Agency at its option may terminate
this Agreement if the Developer: (a) does not within the time
limits set forth in this Agreement or as specifically provided in
the Schedule of Performance, subject to extensions authorized by
this Agreement due to force majeure or otherwise, submit
development plans, construction drawings and related documents
acceptable to the Planning Department and Building Division of the
Ci ty for plan check purposes and in order to obtain building
permits for the Project, together with applicable fees therefor,
all prepared to the minimum acceptable standards as required by the
Planning Department and Building Division of the City for
commencement of formal review of such documents and as required by
this Agreement, or (b) does not carry out its other
responsibilities under this Agreement or in accordance with any
modification or variance, precise plan, design review and other
environmental or governmental approvals and such default is not
cured or the Developer does not commence and diligently and
continuously proceed with such cure wi thin thirty (30) calendar
days after the date of receipt of written demand therefor from the
Agency.
(c) Subject to written notice of default which shall
specify the Developer's default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency's intent to te!"minate this Agreement
pursuant to this Section, the Agency at its option may terminate
this Agreement if upon satisfaction of all conditions precedent and
concurrent therefor under this Agreement, the Developer does not
take title to the Property under tender of conveyance by the
Agency, and such breach is not cured within thirty (30) calendar
days after the date of receipt by the Developer of written demand
therefor from the Agency.
Section 5.07. Riaht to Reenter. Repossess and Revest.
(a) The Agency shall, upon thirty (30) calendar days
notice to the Developer which notice shall specify this Section
5.07, have the right, at its option, to re-enter and take
possession of all or any portion of the Property, together with all
improvements thereon, and to terminate and revest in the Agency the
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estate conveyed to the Developer hereunder, if after conveyance of
title, the Developer (or its successors in interest) shall:
(1) Fail to commence construction of all or any portion
of the improvements as required by this Agreement
for a period of ninety (90) calendar days after
written notice to proceed from the Agency; provided
that the Developer shall not have obtained an
extension or postponement to which the Developer
may be entitled pursuant to Section 6.05 hereof; or
(2) Abandon or substantially suspend construction of
all or any portion of the improvements for a period
of ninety (90) calendar days after written notice
of such abandonment or suspension from the Agency;
provided that the Developer shall not have obtained
an extension or postponement to which the Developer
may be entitled to pursuant to Section 6.05 hereof;
or
(3) Assign or attempt to assign this Agreement, or any
rights herein, or transfer, or suffer any
involuntary transfer, of the Property or any part
thereof, in violation of this Agreement, and such
violation shall not have been cured within thirty
(30) calendar days after the date of receipt of
written notice thereof from the Agency to the
Developer.
(b) The thirty (30) calendar day written notice
specified in this Section shall specify that the Agency proposes to
take action pursuant to this Section and shall specify which of the
Developer's obligations set forth in Subsections (1) through (3)
herein have been breached. The Agency shall proceed with its
remedy set forth herein only in the event that the Developer
continues in default of said obligation(s) for a period of thirty
(30) calendar days following such notice or, upon commencing to
cure such default, fails to diligently and continuously prosecute
said cure to satisfactory conclusion.
(c) The right of the Agency to reenter, repossess,
terminate, and revest shall be subject and subordinate to, shall be
limited by and shall not defeat, render invalid or limit:
(1) Any mortgage, deed of trust or other security
interest permitted by this Agreement;
(2) Any rights or interests provided in this Agreement
for the protection of the holders of such
SBEO/0001/DOC/3526-2
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mortgage~, deeds of trust or other security
interests;
(3) Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other
recorded documents applicable to the Property.
(d) The grant deed to the Property or to any portion
thereof conveyed by the Developer to another party shall contain
appropriate references and provisions to give effect to the
Agency's right, as set forth in this Section under specified
circumstances prior to the recordation of a Certificate of
Completion with respect to such portion, to reenter and take
possession of such portion, or any part thereof, with all
improvements thereon, and to terminate and revest in the Agency the
estate conveyed to the Developer.
(e) Upon the revesting in the Agency of title to the
Property, or any part thereof, as provided in this Section, the
Agency shall, pursuant to its responsibilities under State law, use
its best efforts to resell the Property, or any part thereof, at
fair market value as soon and in such manner as the Agency shall
find feasible and consistent with the objectives of such law, to a
qualified and responsible party or parties (as determined by the
Agency) who will assume the obligations of making or completing the
improvements, or such other improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses
specified for the Property, or any part thereof. Upon such resale
of the Property, or any part thereof, the proceeds thereof shall be
applied:
(1) First, to make any payment made or necessary to be
made to discharge or prevent from attaching or
being made any subsequent encumbrances or liens due
to obligations incurred with respect to the making
or completion of the agreed improvements or any
part thereof on the Property or any portion
thereof; next to reimburse the Agency on its own
behalf or on behalf of the City for all actual
costs and expenses incurred by the Agency and the
Ci ty, including but not limited to customary and
reasonable fees or salaries to third party
personnel engaged in such action (but excluding the
Agency's or the City's general overhead expense),
in connection with the recapture, management and
resale of the Property or any portion thereof; all
taxes, assessments and water and sewer charges paid
by the City and/or the Agency with respect to the
Property or any portion thereof; any amounts
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otherwise owing to the Agency by the Developer and
its successor transferee; and
(2) Second, to the extent that any and all funds which
are proceeds from such resale are thereafter
available, to reimburse the Developer, or its
successor transferee, up to the amount equal to the
sum of: (1) the Purchase Price paid by the
Developer for the Property (or allocable to the
applicable part thereof); and (2) the costs
incurred for the development of the Property, or
applicable part thereof, or for the construction of
the improvements thereon including, but not limited
to, costs of carry, taxes and items set forth in
the Developer's cost statement which shall be
submitted to and approved by the Agency.
(3 )
Any balance
application of
Agency.
remaining after the foregoing
proceeds shall be retained by the
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices.
Between the Parties.
Demands
aY1d
Communications
(a) Any and all notices, demands or communications
submitted by any party to another party pursuant to or as required
by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal delivery, or by registered or
certified United States mail, postage prepaid, return receipt
requested, to the principal office of the Agency and the Developer,
as applicable, as designated in Section 1.04(a) and Section 1.04 Ib)
hereof. Such written notices, demands and communications may be
sent in the same manner to such other addresses as either party may
from time to time designate as provided in this Section. Any such
notice, demand or communication shall be deemed to be received by
the addressee, regardless of whether or when any return receipt is
received by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for
immediate personal delivery, or two (2) calendar days after it is
placed in the United States mail as heretofore provided.
(b) In addition to the submission of notices, demands or
communica tions to the parties as set forth above, copies of all
notices shall also be delivered by facsimile as follows:
to the Developer:
California Bio-Mass
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Attention: David L. Hardy
l0397 Alder Avenue
Bloomington, California 92316
(909) 875-644l
with copy to:
Gresham, Savage, Nolan & Tilden
Attention: James E. Good
600 North Arrowhead Avenue,
Suite 300
San Bernardino, California 92401
(909) 884-2171
the Agency:
Redevelopment Agency of the City
of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, California 92401
FAX: (909) 384-5135
with copy-to:
Sabo & Green,
A Professional Corporation
201 North "E" Street
Suite 300
San Bernardino, California 92401
FAX: (909) 383-9378
Section 6.02. Conflict of Interest. No member, official
or employee of the Agency having any conflict of interest, direct
or indirect, related to this Agreement and the development of the
Property shall participate in any decision relating to the
Agreement. The parties represent and warrant that they do not have
knowledge of any such conflict of interest.
Section 6.03. Warranty Aaainst Pavment of Consideration
for Aareement. The Developer warrants that it has not paid or
given, and will not payor give, any third party any money or other
consideration for obtaining this Agreement. Third parties, for the
purposes of this Section, shall not include persons to whom fees
are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Developer.
Section 6.04. Nonliabilitv of Agency Officials and
Emolovees. No member, official or employee of the Agency shall be
personally liable to the Developer, or any successor in interest,
in the event of any default or breach by the Agency or for any
amount which may become due to the Developer or to its successor,
or on any obligations under the terms of this Agreement, except for
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gross negligence or willful acts of such member, officer or
employee.
Section 6.05. Enforced Delay: Extension of Time of
Performance. In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, or considered to be a default, where delays or defaults
are due to the force majeure events of war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of
God, acts of the public enemy, epidemics, quarantine restrictions,
freight embargoes or lack of transportation, weather-caused delays,
inability to secure necessary labor, materials or tools, delays of
any contractors, subcontractor or supplier, which are not
attributable to the fault of the party claiming an extension of
time to prepare or acts or failure to act of any public or
governmental agency or entity (provided that acts or failure to act
of the City or Agency shall not extend the time for the Agency to
act hereunder except for delays associated with lawsuit or
injunction including but without limitation to lawsuits pertaining
to the approval of the Agreement, and the like) An extension of
time for any such force majeure cause shall be for the period of
the enforced delay and shall commence to run from the date of
occurrence of the delay; provided however, that the party which
claims the existence of the delay has first provided the other
party with written notice of the occurrence of the delay within ten
(10) days of the commencement of such occurrence of delay.
The inability of the Developer to obtain a satisfactory
commitment from a construction lender for the improvement of the
Property or to satisfy any other condition of this Agreement
relating to the redevelopment of the Property shall not be deemed
to be a force majeure event or otherwise provide grounds for the
assertion of the existence of a delay under this Section 6.05. The
parties hereto expressly acknowledge and agree that changes in
ei ther general economic conditions or changes in the economic
assumptions of any of them which may have provided a basis for
entering into this Agreement and which occur at any time after the
execution of this Agreement, are not force majeure events and do
not provide any party with grounds for asserting the existence of
a delay in the performance of any covenant or undertaking which may
arise under this Agreement. Each party expressly assumes the risk
that changes in general economic conditions or changes in such
economic assumptions relating to the terms and covenants of this
Agreement could impose an inconvenience or hardship on the
continued performance of such party under this Agreement, but that
such inconvenience or hardship is not a force majeure event and
does not excuse the performance by such party of its obligations
under this Agreement.
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Section 6.06. Inspection of Books and Records. The
Agency shall have the right at all reasonable times at the Agency's
cost and expense to inspect the books and records of the Developer
pertaining to the Property and/or the development thereof as
necessary for the Agency, in its reasonable discretion, to enforce
its rights under this Agreement. Matters discovered by the Agency
shall not be disclosed to third parties unless required by law or
unless otherwise resulting from or related to the pursuit of any
remedies or the assertion of any rights of the Agency hereunder.
The Developer shall also have the right at all reasonable times to
inspect the books and records of the Agency pertaining to the
Property and/or the development thereof as pertinent to the
purposes of this Agreement.
Section 6.07. Approvals.
(a) Approvals required of the Agency or the Developer,
or any officers, agents or employees of either the Agency or the
Developer, shall not be unreasonably withheld and approval or
disapproval shall be given wi thin the time set forth in the
Schedule of Performance or, if no time is given, within a
reasonable time.
(b)
to sign on his
which are of
adjustments to
The Executive Director of the Agency is authorized
or her own authority amendments to this Agreement
routine or technical nature, including minor
the Schedule of Performance.
Section 6.08. Real Estate Commissions. The Agency shall
not be liable for any other real estate commissions, brokerage fees
or finder fees which may arise from or related to this Agreement.
Section 6.09. Indemnification. The Developer agrees to
indemnify and hold the City and the Agency, and their officers,
employees and agents, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to any
act or omission of the Developer in performing its obligations
hereunder. The Agency agrees to indemnify and hold the Developer
and its officers, employees and agents, harmless from and against
all damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Agency in performing its
obligations hereunder.
Section 6.10. Release of Developer from Liability.
Notwithstanding any provision herein to the contrary, the Developer
shall be relieved of any and all liability for the obligations of
the Developer hereunder with regard to any Property when a
Certificate of Completion has been issued by the Agency hereunder
with respect thereto, other than any covenants and obligations
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1999-263
provided by the grant deed by which the Property are conveyed to
the Developer hereunder.
Section 6.1l. Attornevs' Fees. If either party hereto
files any action or brings any action or proceeding against the
other arising out of this Agreement, seeks the resolution of
disputes pursuant to Section 6.l2 hereof, or is made a party to any
action or proceeding brought by the Escrow Agent, then as between
the Developer and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit or
resolution of disputes pursuant to Section 6.12 hereof, and not as
damages, its reasonable attorneys' fees as fixed by the Court or
other forum for resolution of disputes as set forth in Section 6.12
hereof, in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees. The costs,
salary and expenses of the City Attorney and members of his office
in enforcing this Agreement shall be considered as "attorneys'
fees" for purposes of this Section.
Section 6.12. Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Section 7.0l. Entire Aareement.
(a) This Agreement shall be executed in four (4)
duplicate originals each of which is deemed to be an original.
This Agreement includes _ pages and _ attachments, which
constitute the entire understanding and Agreement of the parties.
(b) This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and supersedes
all negotiations or previous agreements between the parties with
respect to all or any portion of the Property and the development
thereof.
Ic)
conditions set
wi th the grant
Agreement shall
such conveyance
None of the terms,
forth in this Agreement
deed conveying title
continue in full force
until issuance of the
covenants, agreements or
shall be deemed to be merged
to the Property, and this
and effect before and after
Certificate of Completion.
(d) All waivers of the provisions of this Agreement and
all amendments hereto must be in writing and signed by the
appropriate authorities of the Agency and the Developer.
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ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01. Execution and Recordation.
(a) Following its execution by the Developer and prompt
delivery thereafter to the Agency, this Agreement shall be subject
to the review and approval by the governing board of the Agency in
its sole and absolute discretion wi thin forty-five (45) calendar
days after the date of signature by the Developer. In the event
that the Agency has not approved, executed and delivered the
Agreement to the Developer within the foregoing period, then no
provision of this Agreement shall be of any force or effect for any
purpose. The date of this Agreement shall be the date when the
Agreement shall have been approved by the Agency.
(b)
recordation of
customary form,
of the County
located.
The Developer and the Agency agree to permit
this Agreement, or a notice of agreement in
concurrently upon the Close of Escrow in the Office
Recorder for the County where the Property is
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
AGENCY
Redevelopment Agency of the
City San Bernardino
Date: /O-/9.4tJ
By:
Date: /pfi lOft?
I /
AP\RO~ TO FORM:
tj. lQ-<;~04
Agency,Counsel
\~
SBEO/0001/DOC/3526-2
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Date: qh!q1-
Date: Cj-)'r-'l1
1999-263
[All Signatures Must Be Notarized]
SBEO/0001/DOC/3526-2
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DEVELOPER
David L. Hardy and Michael
J. Hardy, as tenants in
common, doing business as
California Bio Mass, Inc.,
a California corporation
B~'~U_ ~
avid L. ardy .
~
B-yh.' t\c.. ~
~chae . ~
57
1999-263
STATE OF CALIFORNIA )
) ss
COUNTY oF~lBe~~~n
On ~~e,^^-~er ;).l.f , 1999, before me, the undersigned, a
Notary PUbl~ in and for said State, personally appeared
fY\lc~e.L j. .rd~1 ,pcr:JoI,ally known to me (or proved to me
on the basis of satisfactory evidence) to be the Executive Director
of the Redevelopment Agency of the City of San Bernardino that
executed the within instrument on behalf of said Agency and
acknowledged to me that said instrument was authorized to be
executed pursuant to a duly adopted resolution of said Agency.
WITNESS my hand and official seal.
Signature: !YrrJML t j~/
~ - - - - - ;"';~L~; - J
@ CommlssIon * 1226964
~. Notay Public - CoRfanlo t
2 -
- San Bernardino Coun1y
~~~;=,:29.:~1
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1999-263
STATE OF CALIFORNIA )
) ss
COUNTY OFSan ~r(\,UT1't.}co
On C{-d-.9 , 1999, before me, the undersigned, a
Notary Public in and for said State, personally appeared
Do--\j,~ L. ~.-clffi ,!"cr3u"C111} knm:fl ts me (or proved to me on the
basis of satisf ctory evidence) to be the General Partner that
executed the within instrument on behalf of California Bio Mass,
Inc.
WITNESS my hand and official seal.
Signature: ~ Z J~
~~--~~L~;-I
(I Commission It 12269604
~, Notay PubIlc. CaIIIaria f
~ ~ BErTKmno~ f
_ _ _ ~_~m..:.~~29~~
59
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1999-263
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
Exh. "A" - 1
1999-263
EXHIBIT "B"
DESCRIPTION OF PROJECT
AND
SCOPE OF DEVELOPMENT
[THIS EXHIBIT TO BE COMPLETED BY DEVELOPER AND AGENCY STAFF.]
SBEO/0001/DOC/3526-2
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Exh. "B" - 2
1999-263
EXHIBIT "C"
(A) FORM OF PROMISSORY NOTE SECURED BY A DEED OF TRUST
(B) FORM OF DEED OF TRUST AND ASSIGNMENT OF RENTS
SBEO/0001/DOC/3526-2
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Exh. "e" - 1
1999-263
PROMISSORY NOTE
PAYABLE TO A PUBLIC AGENCY
MAKER:
HOLDER:
David L. Hardy and
Michael J. Hardy
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, California 92401
Principal Amount:
$265,575.00
Date of Promissory Note:
, 1999
[TO BE INSERTED BY ESCROW HOLDER
ON DATE OF CLOSE OF ESCROW]
Interest Rate: California Local Agency
Invested Fund rate of interest announced
five (5) business days preceding close
of Escrow, plus 100 basis points
PROMISE TO PAY. David L. Hardy and Michael J. Hardy, jointly and
severally (the "MAKER") 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 TWO
HUNDRED SIXTY FIVE THOUSAND FIVE HUNDRED SEVENTY FIVE DOLLARS
($265,575.00) plus interest thereon as provided herein.
INDEBTEDNESS AND MATURITY DATE. This Promissory Note evidences the
indebtedness of the MAKER to the Agency in the original principal
amount of $265,575.00, under the terms and conditions of the 1999,
Disposition and Development Agreement, dated as of September
1999 by and between the MAKER and the Agency. The Promissory Note
shall mature and the outstanding principal balance shall be payable
on the last day of the eighteenth (l8th) month following its date
(i.e.: , 200l). A copy of the 1999 Disposition and
Development Agreement is on file with the Agency Secretary as a
public record of the Agency.
INTEREST RATE:
balance of this
of percent
Interest shall accrue on the outstanding
Promissory Note from its date at a rate
%). [To be inserted by Escrow Holder]
principal
per annum
The rate
SBEO/0001/DOC/3528-2
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of interest payable shall be determined based upon the referenced
rate of interest described in Section 2.02 (b) (i) (B) of the 1999
Disposition and Development Agreement as announced by the Office of
State Treasurer five (5) business days preceding the Close of
Escrow which close of escrow date shall also be the date of this
Promissory Note.
PAYMENTS PRIOR TO MATURITY. The MAKER may prepay any portion or
all of outstanding principal balance and accrued and unpaid
interest under this Promissory Note at any time prior to maturity
wi thout penalty. However, unless a default has occurred, no
payments of principal or interest shall be payable prior to the
maturity date (e.g. , 2001).
MAKER will tender all payments to the Agency at: 201 North
"E" Street, Suite 301, San Bernardino, California 92401 or at such
other place as the Agency may designate in writing. Unless
otherwise agreed to by the Agency in writing or required by
applicable la~, all payments will be applied first to any unpaid
collection costs and any late charges, then to any unpaid intere$t,
and any remaining amount to principal.
DEFAULT. MAKER will be in default if any of the following happen:
(a) MAKER fails to make any payment within ten (10)
days of the date due; or
(b) MAKER fails to comply with or to perform when due
any other term, obligation, covenant, or condition
contained in this Promissory Note or the Deed of
Trust and Assignment of Rents of even date herewith
securing this Promissory Note and any applicable
cure period has expired.
If any default (other than a default in payment on this Promissory
Note) is curable, the default may be cured (and in such event no
default will be deemed to have occurred) if MAKER, after receiving
written notice from the Agency demanding cure of such default:
(i)
cures the default within thirty (30) days; or
(ii)
if the cure requires more than thirty (30) days,
initiates steps to cure the default within said
thirty (30) days, and thereafter MAKER continues
and completes all reasonable and necessary steps
SBEO/0001/DOC/352B-2
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sufficient to produce compliance as
reasonably practical.
soon as
INTEREST ACCRUES ON OUTSTANDING PRINCIPAL BALANCE UPON DEFAULT AT
A DEFAULT RATE. Upon default, interest shall accrue on the
outstanding principal balance of this Promissory Note at a rate of
interest per annum of eight percent (8%).
RIGHTS OF THE AGENCY. Upon default, the Agency may exercise any
of its rights provided in this Promissory Note or in the Deed of
Trust and Assignment of Rents of even date hereunder, including
without limitation, the declaration by the Agency that the entire
unpaid principal balance on this Promissory Note and all accrued
unpaid interest is immediately due, without further notice, and
then MAKER will pay that amount. The Agency may hire or pay a
third party to help collect this Promissory Note if MAKER does not
pay. MAKER also will pay the Agency that amount. This includes,
subject to any limits under applicable law, the Agency's attorneys'
fees and the .Agency's legal expenses whether or not there is a
lawsui t, including 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 service costs. MAKER also will pay any court
costs, in addition to all other sums provided by law. This
Promissory Note has been delivered to the Agency and accepted by
the Agency 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. MAKER acknowledges that this Promissory Note is
secured by a Deed of Trust and Assignment of Rents of even date
herewith. The Deed of Trust and Assignment of Rents affects
certain real property in the City of San Bernardino, California as
more specifically described in Exhibit "An to the 1999 Disposition
and Development Agreement. The Deed of Trust and Assignment of
Rents contains the following due on sale provision:
"THE AGENCY MAY, AT IS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE SALE
OR TRANSFER OF ALL OR ANY PART OF THE PROPERTY, OR ANY
INTEREST THEREIN.
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The words "sale or transfer" as used herein mean the
conveyance by Trustor of the Property or any right, title or
interest therein, whether legal, beneficial, or equitable;
whether voluntary or involuntary, whether by sale, deed,
installment sale contract, land contract, lease option
contract, or by sale assignment, or transfer of any beneficial
interest in the Property to any land trust.
Initials of Trustor"
GENERAL PROVISIONS. The Agency may delay or forego enforcing any of
its rights or remedies under this Promissory Note without losing
them. To the extent allowed by law, the MAKER waives any
applicable statute of limitations, presentment, demand for payment,
protest and notice of dishonor. Upon any change in the terms of
this Promissory Note, and unless otherwise expressly stated in
writing, no party who signs this Promissory Note, whether as maker,
guarantor, ac~ommodation maker or endorser, shall be released from
liability. Ail such parties agree that the Agency may renew or
extend (repeatedly and for any length of time) this Promissory
Note, or release any party, or guarantor or collateral; or impair,
fail to realize upon or perfect the security interest of the Agency
in the collateral; and take any other action deemed necessary by
the Agency in its sole discretion without the consent of or notice
to anyone. All such parties also agree that the Agency may modify
this Promissory Note without the consEnt of or notice to anyone
other than the MAKER.
ASSIGNMENT OF PROMISSORY NOTE BY AGENCY. The Agency may assign
its interest in this Promissory Note (and the Deed of Trust and
Assignment of Rents of even date herewith) to a third party at any
time prior to the maturity of this Promissory Note.
PRIOR TO SIGNING THIS PROMISSORY NOTE, MAKER HAS READ AND
UNDERSTANDS ALL OF ITS PROVISIONS. MAKER AGREES TO THE TERMS OF
THIS PROMISSORY NOTE AND ACKNOWLEDGES RECEIPT OF A COPY HEREOF.
MAKER:
David L. Hardy and
Michael J. Hardy, jointly and severally
l L"'~!~~ ~
David L. Hardy
.v1~.I\OAC~
Michael d.J~ Hardy \
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~.
1999-263
RECORDATION REQUESTED BY
AND WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street
Suite 301
San Bernardino, California 92401
Attention: Executive Director
:it
Space Above This Line is
For Recorder's Use Only
DEED OF TRUST
AND ASSIGNMENT OF RENTS
(CALIFORNIA BIO MASS, INC.)
THIS DEED OF TRUST AND ASSIGNMENT OF RENTS (the "Deed of
Trust") is dated, 1999, among David L. Hardy and
Michael J. Hardy, tenants in common, jointly and severally (the
"Trustor"), whose address is , California
and the Redevelopment Agency of the City of San Bernardino
(referred to herein as the "Lender" or "Beneficiary"), whose address
is 201 North "E" Street, Suite 301, San Bernardino, California
92401; and First American Title Insurance Company, a Cali fornia
corporation (the "Trustee"), whose address is
, San Bernardino, California
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 the
following described real 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 profits relating to the real
property, including and without limitation all minerals, oil,
gas, geothermal and similar matters located in the City of San
Bernardino, San Bernardino County, State of California (the
"Property") :
SEE EXHIBIT "A" LEGAL DESCRIPTION ATTACHED HERETO
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Trustor presently assigns to the Lender all of Trustor's right,
title and interest in and to all present and future leases of
the Property and all Rents from the Property. In addition,
Trustor grants Lender a Uniform Commercial Code security
interest in the Rents and the Personal Property defined below.
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.
Deed of Trust. The words "Deed of Trust" mean this Deed of
Trust and Assignment of Rents among Trustor, Lender, and
Trustee, .and includes without limitation all assignment and
security interest provisions relating to the Personal Property
and Rents.
Disposition and Development Agreement. The words Disposition
and Development Agreement" refer to that certain Purchase and
Sale Agreement and Escrow Instructions, dated as of September
, 1999, by and between the Trustor and the Beneficiary.
Improvements. The word "Improvements" means and includes
without limitation all existing improvements 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, which future advances the
Lender may in its sole and absolute discretion make so long as
Trustor complies with all the terms and conditions of the
Promissory Note or other loan agreement.
Lender. The word "Lender" means Redevelopment Agency of the
City of San Bernardino.
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Persona~ Property. The words ~Personal Property" means all
equipment, fixtures, and other articles of personal property
now or hereafter owned by Trustor, and now or hereafter
attached or affixed to the Property together with all
accessions, parts, and additions to, all replacements of, and
all substitutions for, any of such property, and together with
all proceeds (including without limitation all insurance
proceeds and refunds of premiums) from any sale or other
disposition of the Property.
Promissory Note. The words ~Promissory
Promissory Note of even date herewith, in the
of TWO HUNDRED SIXTY FIVE THOUSAND FIVE
FIVE DOLLARSI$265,575.00) from Trustor to the
with all renewals, extensions, modifications,
substitutions for the Promissory Note.
Note" mean the
principal amount
HUNDRED SEVENTY
Lender, together
refinancing, and
Property. The word ~Property" means collectively the Property
and the Personal Property, and the rights described above in
the "Conveyance and Grant" section of the Deed of Trust.
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 David L. Hardy and Michael
J. Hardy, jointly and severally.
3.0 THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF 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
AND THIS DEED OF TRUST. THE PROMISSORY NOTE AND THIS DEED OF
TRUST ARE GIVEN AND ACCEPTED ON THE FOLLOWING TERMS:
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, and the
Disposition and Development Agreement.
3.2 POSSESSION AND MAINTENANCE OF THE PROPERTY. Trustor agrees
that Trustor's possession and use of the Property shall be
governed by the following provisions:
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Possession and Use. Until the occurrence of an Event of
Default, Trustor may (a) remain in possession and control of
the Property, (b) use, operate or manage the Property for any
purpose authorized by the Disposition and Development
Agreement.
Duty to Maintain. Trustor shall maintain the Property;
provided however, that the Trustor may construct any
improvement or structure thereon at any time, without further
notice to the Lender.
Hazardous Substances. 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 Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et sea. ("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 ~., the Resource Conservation and Recovery Act, 49 U.S.C.
Section 6901, et sea., Chapters 6.5 through 7.7 of Division 20
of the California Health and Safety Code, Section 25100, et
sea., or other applicable state or Federal laws, rules, or
regulations adopted pursuant to any of the foregoing. Trustor
represents and warrants to Lender that neither Trustor nor any
tenant, contractor, agent or other authorized user of the
Property shall use, generate, manufacture, store, treat,
dispose of, or release any hazardous waste or substance on,
under, or about the Property. Trustor authorizes Lender and
its agents to enter upon the Property to make such inspections
and tests and Lender may deed appropriate to determine
compliance with this section of the Deed of Trust. I'.ny
inspections or tests made by Lender shall be 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.
Lender's Right to Enter. Lender and its agents and
representatives may enter upon the Property at all reasonable
times to attend to Lender's interests and to inspect the
Property for purposes of Trustor's compliance with the terms
and conditions of this Deed of Trust.
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 Property. Trustor
may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding,
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including appropriate appeals, so long as Trustor has notified
Lender in writing prior to doing so and so long as, in Lender's
sole opinion, Lender's interests in the 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.
Duty to Protect. Trustor agrees neither to abandon nor leave
unattended the 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 Property are reasonably
necessary to protect and preserve the Property.
3.3 DUE ON SALE AND PARTIAL RELEASE AND RECONVEYANCE. THE
BENEFICIARY MAY, AT IS OPTION, DECLARE IMMEDIATELY DUE AND
PAYABLE ALL SUMS SECURED BY THIS DEED OF TRUST UPON THE SALE OR
TRANSFER OF ALL OR ANY PART OF THE PROPERTY, OR ANY INTEREST
THEREIN.
The words "sale or transfer" as used herein mean the conveyance
by Trustor of the Property or any right, title or interest
therein, whether legal, beneficial, or equitable; whether
voluntary or involuntary, whether by sale, deed, installment
sale contract, land contract, lease option contract, or by sale
assignment, or transfer of any beneficial interest in the
Property to any land trust.
Initials of Trustor"
3.4 TAXES AND LIENS. The following provisions relating to the
taxes and liens on the Property are part of this Deed of Trust:
Payment. To the extent that the Trustor may not be exempt from
the payment of taxes or liens as a local public agency, Trustor
shall pay when due (and in all events at least ten (10) days
prior to delinquency) all taxes, special taxes, assessments,
charges (including water and se'"er), fines and impositions
levied against or on account of the Property, and shall pay
when due all claims for work done on or for services rendered
or material furnished to the Property. Trustor shall maintain
the 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
Property is not jeopardized. If a lien arises or is filed as
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a result of nonpayment, Trustor shall within fifteen (15) days
after the lien arises or, if a lien is filed, within fifteen
(15) 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 mount 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. 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.
3.5 [Reserved -- No Text]
3.6 EXPENDITURES BY LENDER. If Trustor fails to comply with any
provision of this Deed of Trust, or if any action or proceeding
is commenced 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 deems appropriate.
Any amount that Lender expends in so doing will bear interest
at a rate of interest per annum of eight percent (8%) from the
date incurred or paid by Lender to the date of repayment by
Trustor. All such expenses, with interest thereon will, at
Lender's option: (a) be payable on demand; or (b) be added to
the balance of the Promissory Note and be payable with any
partial release 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 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.
3.7 WARRANTY; DEFENSE OF TITLE. The following provisions relating
to ownership of the Property are a part of this Deed of Trust:
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Title. Trustor warrants that Trustor has the full right ,
power, and authority to execute and deliver this Deed of Trust
to Lender.
Defense of Title. Trustor warrants and will forever defend its
title to the Property against the claims of all persons subject
to the matters disclosed in the policy of title insurance of
even date herewith, issued in favor of the Trustor pursuant to
the Disposition and Development Agreement. In the event any
action or proceeding is commenced that questions Trustor's
title or the interest of Trustee or Lender under this Deed of
Trust, Trustor shall defend the action at Trustor's expense.
Trustor may be the nominal party in such proceeding, but Lender
shall be entitled to participate in the proceeding and to be
represented in the proceeding by counsel of Lender's own
choice, and Trustor will deliver, or cause to be delivered, to
Lender such instruments as Lender may request from time to time
to permit such participation.
Compliance with Laws. Trustor warrants that the Property and
Trustor's use of the Property complies with all existing
applicable laws, ordinances, and regulations of governmental
authorities.
3.8 CONDEMNATION. The following provisions relating to
condemnation proceedings are a part of this Deed of Trust:
Application of Net Proceeds. If all or any part of the
Property is condemned by eminent domain proceedings or by an
proceeding or purchase in lieu of condemnation, Lender may at
its election require that all or any portion of the net
proceeds of the award be applied to the Indebtedness or the
repair or restoration of the Property. The net proceeds of the
award shall mean the award after payment of all reasonable
costs, expenses, and attorneys' fees, Trustee or Lender in
connection with the condemnation.
Proceedings. If any proceeding in condemnation is filed,
Trustor shall promptly notify Lender 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 Lender 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 Lender such instruments as
may be requested by it from time to time to permit such
participation.
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3 . 9 IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL
AUTHORITIES. The following provisions relating to governmental
taxes, fees and charges are a part of this Deed of 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 Id) 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
deliY1quent, or (b) contests the tax as provided above in the
Taxes and Liens section and deposits with Lender cash or a
sufficient corporate surety bond or other security satisfactory
to Lender.
3.10 [Reserved -- No Text]
3.l1 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
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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 (b)
the liens and security interests created by this Deed of Trust
as first and prior liens on the Property, whether now owned or
hereafter acquired by 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 the
Promissory Note and all amounts as may become due under this
Deed of Trust, Lender shall execute and deliver to Trustee a
request for full reconveyance of this Deed of Trust and shall
execute and deliver to Trusto!" 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 Payments Due Under the Promissory Note. Failure of
Trustor to make any payment when due under the Promissory Note.
Compliance Default. Failure to comply with any other term,
obligation, covenant or condition contained in this Deed of
Trust or the Promissory Note.
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 or the Disposition and
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Development Agreement 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,
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 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 UPON EVENT OF 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 to be sold the Property, 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 expendi tures 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 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 of the United States,
payable at time of sale. Trustee may postpone sale of all or
any portion of the 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
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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
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.
Collect Rents. Lender shall have the right, without notice to
Trustor, to take possession of and manage the 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 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. 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
Property, with the power to protect and preserve the Property,
to operate the Property preceding foreclosure or sale, and to
collect the Rents from the 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 Property exceeds
the indebtedness by a substantial amount. Employment by Lender
shall not disqualify a person from serving as a receiver.
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Tenancy at Sufferance. If Trustor remains in possession of the
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 Property and shall, at
Lender's option, either (a) pay a reasonable rental for the use
of the Property, or (b) vacate the 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, the Promissory Note,
or the Disposition and Development Agreement 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 lease five (5) days before
the time ~of the sale or disposition. Any sale of Personal
Property may be made in conjunction with any sale of the
Property.
Sale of the Property. To the extent permitted by applicable
law, Trustor hereby waives any and all rights to have the
Property marshalled. 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 at any public sale on
all or any portion of the 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 or the Promissory Note 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
adj udge 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
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interest or the enforcement of its rights shall become a part
of the indebtedness payable on demand and shall bear interest
at a rate of interest per annum of eight percent (8%)
commencing on 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. 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.
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: la) join in
preparing and filing a map or plat of the Property, including
the dedication of streets or other rights to the public; (b)
join in granting any easement or creating any restriction on
the Property; and (c) join in any subordination authorized
under the Disposition and Development Agreement or other
agreement affecting this Deed of Trust or the interest of
Lender under this Deed of Trust.
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.
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 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.
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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 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.
7.0 NOTICES TO TRUSTOR AND OTHER PARTIES. Any notice under this
Deed of Trust shall be in writing and shall be effective when
actually delivered or, if mailed, shall be deemed effective
when 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 -- No Text]
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 inde,btedness 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
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1999-263
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 Property or in connection with any
services, equipment or furnishings provided in connection with
the operation of the 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 Property
for the purposes of occupying the dame. Upon the request of
Beneficiary, Trustor shall prepare and deliver to Beneficiary
such financial statements regarding operation of the 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
Amendments. This Deed of Trust 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 alteration 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.
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
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1999-263
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 wi thin 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.
Subdivision of the Property. The Trustor may cause the
Property to be subdivided in compliance with the Subdivision
Map Act at any time, and the Lender hereby consents to the
recordation by the Trustor of a parcel map, subdivision map or
parcel merger map affecting all or any part of the Property.
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 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 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.
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1999-263
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:
David L. Hardy and
Michael J. Hardy, as
tenants in common, jointly and severally
c;-( _J.:~~___~
David L. Hardy -0
BY:~'C4~CM~
Michael J. Hardy
[SIGNATURES MUST BE ACCOMPANIED BY NOTARY JURAT]
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17
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1999-263
EXHIBIT "D"
AGENCY GRANT DEED
[TO COME]
Exh. "D" - 1
1999-263
EXHIBIT "E"
SCHEDULE OF PERFORMANCE
(Days shall be calendar days, and all dates herein are
subject to change due to force majeure in accordance with
Section 6.05 of the Agreement)
Agency approval of DDA
, 1999
[TO BE COMPLETED BY DEVELOPER AND AGENCY STAFF]
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Exh. "E" - 1
1999-263
1999
CALIFORNIA BIO MASS DISPOSITION AND DEVELOPMENT AGREEMENT
SCHEDULE OF PERFORMANCE
Unless otherwise indicated herein, the meaning of words and phrases
used in this Schedule of Performance shall be as set forth in the
Agreement.
Within five (S) days following
execution of the Agreement by
the Agency and the Developer
Within fifteen (15) days of
the Opening of Escrow
During Due Diligence Period
At least fifteen (l5) days
before the end of the Due
Diligence Period
Within ten (10) days following
transmittal of the Developer's
sewer service plan to the
Agency
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Developer shall deliver to
Escrow Holder the sum of Five
Thousand Dollars 1$5,000.00)
Escrow opened upon receipt by
the Escrow Holder of a fully
executed copy of the Agreement
and the Deposit from the
Developer.
Agency shall deliver originals
of Due Diligence Items
(Section 2.08)
Agency shall deliver to the
Developer a preliminary title
report or title commitment for
a CLTA extended coverage
policy of title insurance
Developer must submit
development project site plan
approval application for the
Project to the City for City
review and approval
Developer shall submit a sewer
service plan to the Agency for
its approval
Agency shall approve or reject
the Developer's Sewer Service
Plan
1
1999-263
Within one hundred twenty days
(120) from the Opening of
Escrow
Within sixty (60) days after
the delivery of a Due
Diligence Approval Certificate
from the Developer
No later than three (3)
business days prior to the
Closing Date
On or before~2:00 noon on the
business day preceding the
Closing Date
At Close of Escrow
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Developer shall deliver its
Due Diligence Approval
Certificate to the Agency and
the Escrow Holder
Developer shall submit
Developer's Title Objection
Notice, if any, to the Agency
The Close of Escrow shall
occur
Escrow Holder shall prepare
for approval by the Developer
and the Agency a Closing
Statement (Section 2.21)
The Agency shall deliver to
the Escrow Holder a grant deed
for the Property to the
Developer
The Agency shall deliver to
the Escrow Holder copies of
the documents set forth in
Section 2.06 of the Agreement
The Developer shall deliver to
the Escrow Holder copies of
the documents set forth in
Section 2.07 of the Agreement
Developer deposits the balance
of the Purchase Price, less
the Deposit amount, with the
Escrow Holder
2
1999-263
Within three (3) business days
following the Closing Date.
Promptly following City
approval of site plan of
improvement for the Project
Within ninety (90) days
following Close of Escrow
Within two hundred seventy
(270) days following
commencement of work of
improvement of the Project
Promptly following completion
of improvements to the
Property Developer submits
written request to the Agency
for issuance of Certificate of
Completion; but by a date not
later than one (l) year
following Close of Escrow
On or before the fifth
anniversary of the issuance of
a Certificate of Completion
for the Project from the
Agency to the Developer
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Escrow Holder shall deliver to
Developer a conformed copy of
the Agency's Grant Deed, as
recorded, and the policy of
title insurance issued in
favor of the Developer
Escrow holder shall deliver to
the Agency the Purchase price,
less sums paid to discharge
any liens, escrow costs and
any prorations chargeable to
the Agency
Developer completes and
submits construction design
plans and specifications to
City Building Department for
issuance of necessary building
permits
Developer commences work of
improvement of Project on the
Property
Developer substantially
completes improvement of the
Project
Agency issues a Certificate of
Completion to Developer
Agency shall pay Developer
forty percent (40%) of the
cost of installed Sewer
Improvements, up to Twenty
Four Thousand Dollars
($24,000.00)
3
1999-263
EXHIBIT "F"
When Recorded, Mail to:
CERTIFICATE OF COMPLETION
We, Chairperson and
, Secretary of the Redevelopment Agency of the City of
San Bernardino (the "Agency") hereby certify as follows:
By its Resolution No. adopted and approved
,~ 1999, the Agency has resolved as follows:
Section 1. The improvements required to be constructed
in accordance with that certain Disposition and Development
Agreement (the "Agreement") dated , by and between
the Agency and a California ,
(the "Developer") on Lot No. of Tract (the "Lot") more
fully described in Exhibit "A" attached hereto and incorporated
herein by this reference, have been completed in accordance with
the provisions of said Agreement.
Section 2. This Certificate of Completion shall
constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to
the obligations of the Developer, and its successors and assigns,
to construct and develop the improvements on the Lot, excluding any
normal and customary tenant improvements and minor building
"punch-list" items, and including any and all buildings and any and
all parking, landscaping and related improvements necessary to
support or which meet the requirements applicable to the building
and its use and occupancy on the Lot, whether or not said
improvements are on the Lot or on other property subject to the
Agreement, all as described in the Agreement, and to otherwise
comply with the Developer's obligations under the Agreement with
respect to the Lot and the dates for the beginning and completion
of construction of improvements thereon under the Agreement;
provided, however, that the Agency may enforce any covenant
surviving this Certificate of Completion in accordance with the
terms and conditions of the Agreement and the grant deed pursuant
to which the property containing the Lot was conveyed under the
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Exh. "F" - 1
1999-263
Agreement. Said Agreement is an official record of the Agency and
a copy of said Agreement may be inspected in the office of the
Secretary of the Redevelopment Agency of the City of San Bernardino
located at 201 North "E" Street, Suite 301, San Bernardino,
California, during regular business hours.
Section 3.
Completion pertains is
hereto.
The Lot to which this Certificate of
more fully described in Exhibit "A" attached
DATED AND ISSUED this
day of
, 199_.
Executive Director of the Redevelopment Agency
of the City of San Bernardino
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Exh. "G" - 1