HomeMy WebLinkAbout1992-316
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RESOLUTION NO. 92-316
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO APPROVING A CERTAn' DISPOSITION AND' DEVELOPMENT
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND BILLY ARDT, INC. (UPTOWN REDEVELOPMENT PROJECT
AREA) .
WHEREAS, the Redevelopment Plan for the Uptown Redevelopment
Project (the "Redevelopment Plan") ~laS approved and adopted by the
Mayor and Common Council of the City of San Bernardino (the "Mayor
and Common Council") by Ordinance No. MC-527, dated June 18, 1986;
and
WHEREAS,
the
the
Redevelopment
Plan
provides
for
redevelopment of real property pursuant to the Redevelopment Plan
by owners thereof or by parties seeking to acquire real property
from the Redevelopment Agency of the City of San Bernardino (the
"Agency"); and
WHEREAS, Section 33391 of the Community Redevelopment Law
(Part 1 of Division 24 (commencing with Section 33000) of the
Heal th and Safety Code of the Sta1:e of California) (the "Act")
provides that a redevelopment agency may acquire any real or
personal property wi thin a redevelc.pment proj ect area or for the
purposes of redevelopment and Section 33430 of the Act provides
that a redevelopment agency may diJpose of any real or personal
property within a redevelopment project area or for the purposes
of redevelopment; and
WHEREAS, the Agency and Billy Ardt, Inc. (the "Redeveloper")
desire to enter into a certain Disposition and Development
Agreement (the "Agreement"), a copy of which is attached hereto as
Exhibit "A" incorporated herein by reference, pursuant to which,
among other matters, the Redeveloper would acquire from the Agency
DAB/ses/Ardt.res
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July 15. 1992
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the Site which is described in Attachment "2" to Exhibit "A",
which is attached hereto and incorporated herein by this
reference. The Site is located within the area subject to the
Redevelopment Plan (the "Project Area"). The acquisition would be
for purposes of the redevelopment thereof, as described in the
Agreement, including remodeling of the structure on the Site by
the Redeveloper and the establishment of a games rehabilitation
and distribution business (the "Project"); and
WHEREAS, the Agency Staff has prepared and made available
for public inspection a certain Summary Report (the "Summary")
concerning the proposed Agreement, as required by Health and
Safety Code Section 33433, a copy of which is on file with the
Executive Director of the Agency and the City Clerk of the City of
San Bernardino and is incorporated herein by referertce; and
WHEREAS, the Mayor and Common Council have duly noticed and
conducted a public hearing in accordance with the requirements of
Health and Safety Code Section 33433 concerning the proposed sale
of the Site by the Agency to the Redeveloper pursuant to the
proposed Agreement; and
WHEREAS, the Community Development Commission of the City of
San Bernardino (the "Commission") on behalf of the Agency has duly
noticed and conducted a public hearing in accordance with the
requirements of Health and Safety Code Section 33431 concerning
the proposed sale of the Site by the Agency to the Redeveloper
pursuant to the proposed Agreement; and
WHEREAS, based upon the evidence and testimony submitted to
the Commission and the Mayor and Common Council, it is reasonable
and appropriate for the Agency to enter into the proposed
2
DAB/ses/Ardt.res
May 12, 1992
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Agreement,
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION I.
The Mayor and Common Council hereby find and
determine that the development of the Site as described in the
proposed Agreement is within the scope, terms and provisions of
the Redevelopment Plan.
SECTION 2. The Mayor and Common Council hereby accept and
approve the Summary.
SECTION 3.
The Mayor and Common Council hereby find and
determine that the consideration to be paid by the Redeveloper to
the Agency for the conveyance of the Site pursuant to the
Agreement is not less than the fair market value of the Site.
However, to the extent that the sale of the Site by the Agency to
the Redeveloper pursuant to the proposed Agreement may be deemed
to be less than the fair market value thereof, the Mayor and
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the Site for less than fair market value is reasonable and
Common Council hereby find and determine that the conveyance of
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necessary to effectuate the purposes of the Redevelopment Plan, in
that the conveyance for less than the fair market value will
permit the Redeveloper to acquire the Site for redevelopment and
in order to eliminate blight, to create employment opportunities,
to increase the value of real property in the Project Area and to
cause the City and the Agency to receive additional tax revenues
as a result of redevelopment. Absent the conveyance of the Site
for less than fair market value, the Redeveloper would likely not
proceed with the purchase thereof and redevelopment of the Site.
III
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May 12. 1992
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<
1 RESOLUTION...DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND
2 LOMA LINDA UNIVERSITY (UPTOWN REDEVELOPMENT PROJECT 'AREA).
(Sale of 101 North "I" St. Bldg.)
3
4
SECTION 4. The Mayor and Common Council hereby approve the
5 proposed Agreement and the conveyance of the Agency's interest in
6 the Site by the Agency to the Redeveloper.
7 I HEREBY CERTIFY that the foregoing resolution was duly
8 adopted by the Mayor and Common Council of the City of San
Bernardino at a regular
meeting thereof, held on the 3rd
day of
Auaust:
, 1992, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
x
REILLY
x
HERNANDEZ
x
MAUDSLEY
y
MINOR
y
POPE-LUDLAM
y
MILLER
x
c!l~ ~
of
The foregoing
t/M;J
day
, 1992.
Approved as to
form and legal content:
JAMES F. PENMAN,
City Attorney
B~~/
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May 12. 1992
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DAB/aea/Games.agr
~
DISPOSITION AND DEVELOPMENT AGREEMENT
(Approved per City of San Bernardino
Res 92-316 adopted 8/3/92)
Between
The Redevelopment Agency
of the City of San Bernardino
and
Billy Ardt, Inc.
doing business as
Games For Fun International
and Billiards Surplus
(Uptown Redevelopment Project Area)
.JUly 9. 1992
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4 I.
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13 II.
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DISPOSITION AND DEVELOPMENT AGREEMENT
TABLE OF CONTENTS
[100] SUBJECT OF AGREEMENT
A. [101] Purpose of Agreement
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
B.
C.
D.
[200]
[102] The Redevelopment Plan
[103] The Site
[104] Parties to the Agreement
1. [105] The Agency
2.
3.
[201]
[202]
[203]
[204]
[205]
[206]
[207]
[208]
[209]
[210]
[211]
[212]
[213]
DAB/aea/Games.agr
[106 ]
[107]
The Developer
Prohibition Against Change in
Ownership, Management and Control of
the Developer
DISPOSITION OF THE SITE
Purchase Price
Disposition of the Site
Conditions Precedent
Escrow
Conveyance of Title and Delivery of
Possession
Form of Deed for the Disposition Conveyance
Condition of Title
Time for and Place of Delivery of Agency Deed
Recordation of Documents
Title Insurance
Taxes and Assessments
Condition of the Site
Preliminary Work
July 9. 1992
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III. [300]
B.
C.
D.
E.
F.
DAB/.ea/C.....agr
A.
.
DEVELOPMENT OF THE SITE
[301] Development of the Site by the Developer
2.
1. [302] Scope of Development
3.
4.
5.
6.
7.
8.
9.
10.
[312]
[313]
[314]
1.
2.
3.
4.
[319]
[320]
[303]
[304]
Design Concept Drawings
Construction Drawings and
Documents
Related
[305]
[306]
[307]
Cost of Construction
Construction Schedule
Bodily Injury and Property
Insurance
Damage
[308]
City and other Governmental Agency
Permits
[309]
[310]
[311]
Rights of Access
Local, State and Federal Laws
Antidiscrimination During Construction
or Remodeling
Taxes, Assessments, Encumbrances and Liens
Prohibition Against Transfer of the Site,
the Buildings or Structures thereon and
Assignment of Agreement
Mortgage, Deed of Trust, Sale and Lease-Back
Financing; Rights of Holders
[315]
No Encumbrances Except Mortgages, Deeds
of Trust, or Sale and Lease-Back for
Development
[316]
Holder Not Obligated to Construct
Improvements
[317]
Notice of Default to Mortgages or Deed
of Trust HOlders; Right to Cure
[318]
Failure of
Improvements
Holder
to
Complete
Right of the Agency to Satisfy Other Liens
on the Site After Title Passes
Certificates of Completion
July 9. 1992
I IV.
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7 v.
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D.
A.
B.
C.
D.
E.
F.
[400]
USE OF THE SITE
A.
[401]
[402]
[403]
Uses
B.
Maintenance of the Site
C.
Rights of Access
D. [404] Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
[500] GENERAL PROVISIONS
A. [501] Notices, Demands and Communications Between
the Parties
B.
[502]
[503]
Conflicts of Interest; Nonliability
C.
Enforced Delay; Extension of Times of
Performance
[504]
Inspection of Books and Records
[600]
DEFAULTS AND REMEDIES
[601]
[602]
Defaults - - General
Legal Actions
1.
[603]
[604]
[605]
Institution of Legal Actions
2.
Applicable Law
3.
Acceptance of Service of Process
[606]
[607]
[608]
Rights and Remedies are Cumulative
Inaction Not a Waiver of Default
Remedies and Rights of Termination
1.
[609]
Damages
2. [610] Action for Specific Performance
3. [611] Termination by the Developer
4. [612] Termination by the Agency
[613] Remedies of the Agency and the Developer for
Default After Passage of Title and Prior to
Completion of Construction
DAB/aea/Gamea.egr
July 9. 1992
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1.
[614]
[615]
[616]
Damages
2.
3.
Action for Specific Performance
Reentry and Revesting of Title in the
Agency
VII. [700] SPECIAL PROVISIONS
A. [701] Submission of Documents to Agency for
Approval
B. [702] Successors In Interest
VIII. [800] ENTIRE AGREEMENT, WAIVERS
IX. [900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
DAB/ae8/Gamea.egr
July 9. 1992
1 DX8P08XTXON AND DEVELOPMENT AGREEMENT
2 THIS AGREEMENT IS ENTERED INTO THIS 20 day of July
3 1992 by and between the REDEVELOPMENT AGENCY OF THE CITY OF
4 SAN BERNARDINO (the "Agency"), and BILLY ARDT, INC., a Delaware
5 Corporation, doing business as Games For Fun International and
6 Billiards Surplus (the "Developer"). Agency and Developer hereby
7 agree as follows:
8 1. [100] SUBJECT OF AGREEMENT
9 A. [101] Purpose of Agreement
10 The purpose of this Agreement is to effectuate the
11 Redevelopment Plan for the Uptown Redevelopment Project (the
12 "Project") by providing for the development of the Site, which is
13 situated within the uptown Redevelopment Project Area (the
14 "Project Area") of the Project. That certain real property to be
15 developed pursuant to this Agreement (the "Site") is depicted on
16 the "Site Map," which is attributed hereto as Attachment No.1 and
17 incorporated herein by reference. This Agreement is entered into
18 for the purpose of remodeling and developing the 8i te and for
19 facili tating the operation of a light industrial enterprise on the
20 Site and not for speculation in land hOlding. The completion of
21 the remodeling, development and occupancy of the Site pursuant to
22 this Agreement is in the vital and best interest of the City of
23 San Bernardino, California (the "City") and the health, safety and
24 welfare of its residents, in accord with the public purposes and
25 provisions of applicable state and local laws and requirements
26 under which the Project has been undertaken, and will benefit the
27 Project Area by providing needed industry and jobs within the
28 Project Area.
DAB/.e./ea.....gr
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B. [102] The Redevelopment Plan
The Redevelopment Plan was approved and adopted on June
18, 1986 by Ordinance No. MC-527 of the Common Council of the City
of San Bernardino; said ordinance and the Redevelopment Plan as so
approved (the "Redevelopment Plan") are incorporated herein by
reference.
C. [103] The Site
The Site is that certain real property designated on
the Site Map (Attachment No.1) and described in the "Legal
Description of the Site", which is attached hereto as Attachment
No. 2 and is incorporated herein by this reference. The Site is
held in fee by the Agency.
D. [104] Parties to the Agreement
1. [105] The Agency
The Agency is a public body, cOrPOrate and
politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community
Redevelopment Law of the State of California (Health and Safety
Code Section 33020 et seq.). The principal office of the Agency
is located at 201 North "E" Street, San Bernardino, California
92401.
"Agency", as used in this Agreement, includes the
Community Development Commission of the City of San Bernardino,
the Redevelopment Agency of the City of San Bernardino, the
Development Department of the City of San Bernardino, and any
assignee of or successor to their rights, powers and
responsibilities.
III
DAB/aea/Ga.e..a;r
2
July 9. 1992
1 2. [106] The Developer
2 The Developer is Billy Ardt, Inc., a Delaware
3 Corporation. The principal office and mailing address of the
4 Developer for purposes of this Agreement is 895 W. Rialto Ave.,
5 San Bernardino, CA 92410 or such successor as may purchase all or
6 any part of Site.
7 3. [107] Prohibition Against Change in
8 Ownership, Management and Control
9 of the Developer
10 The qualifications and identity of the Developer
11 are of particular concern to the City and the Agency. It is
12 because of those qualifications and identity that the Agency has
13 entered into this Agreement with the Developer. No vOluntary or
14 involuntary successor in interest of the Developer shall acquire
15 any rights or powers under this Agreement except as expressly set
16 forth herein.
17 The Developer shall not assign all or any part of
18 this Agreement or any rights hereunder without the prior written
19 approval of the Agency which approval the Agency may not
20 unreasonably withhold. In the event of such transfer or
21 assignment: (1) the assignee shall expressly assume the
22 obligations of the Developer pursuant to this Agreement in writing
23 satisfactory to the Agency; and (2) any guarantees provided to
24 assure the performance of the Developer's obligations under this
25 Agreement shall remain in full force and effect; and (3) the
26 original Developer shall remain fully responsible for the
27 performance and liable for the obligations of the Developer
28 pursuant to this Agreement.
DAB/.e./~e...gr
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July 9. 1992
1 In the absence of specific written agreement by
2 the Agency, no such transfer, assignment or approval by the Agency
3 shall be deemed to relieve the Developer or any other party from
4 any obligation under this Agreement. All of the terms, covenants
5 and conditions of this Agreement shall be binding upon and shall
6 inure to the benefit of the Developer and the permitted successors
7 and assigns of the Developer. Whenever the term "Developer" is
8 used herein, such term shall include any other permitted
9 successors and assigns as herein provided.
10 The restrictions of this Section 107 shall
11 terminate and be of no further force and effect upon the issuance
12 by the Agency of a Certificate of Completion in the form attached
13 hereto as Attachment No. 5 as provided in Section 324 upon
14 completion of the Developer Improvements described in Section 302
15 of this Agreement and Attachment No.4.
16 II. [200] DISPOSITION OF THE SITE
17 A. [201] Purchase Price
18 Subject to applicable terms and conditions of this
19 Agreement, the Agency agrees to sell to the Developer and the
20 Developer shall purchase from the Agency the Site for an amount
21 equal to Two Hundred Twenty Five Thousand Dollars (the "Purchase
22 Price") due and payable concurrently with close of escrow:
23 B. [202] Disposition of the Site
24 The Developer shall purchase from the Agency the Site
25 and the Agency agrees to sell to the Developer the Site, in
26 accordance with and subject to all of the terms, covenants and
27 conditions of this Agreement. Thereupon, the Developer agrees to
28 and shall develop the Site within the times, for the uses and
DAB/ae./Gallea.agr 4 July 9. 1992
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subject to the terms, conditions and provisions as hereinafter
provided.
In addition to the consideration set forth in Sections
201 and 202, the Developer shall pay all of those costs, charges,
fees and expenses as hereafter expressly provided to be paid by
Developer pursuant to this Agreement and shall, except as herein
provided, at its cost, provide all of the improvements required by
this Agreement to be provided by the Developer including external
beautification improvements in the amount of at least Fifty
Thousand Dollars (the "Developer Improvements"), above and beyond
the cost of such improvements required by the Ci ty of San
Bernardino Development Code. At the option of Developer, the cost
of purchasing and installing a fire sprinkler system to code
requirements may be included within the cost of such improvements.
C. [203] Conditions Precedent
The following are conditions precedent to the
conveyance of the Site by the Agency to the Developer:
1. the Developer shall have paid or shall have caused
to be paid to escrow all closing costs and charges which Developer
is obligated to pay pursuant to this Agreement:
2. the Developer shall have provided proof
(certificates) conforming to Section 307 of
insurance
Agreement:
of
this
3. the Developer shall have obtained all building and
other permits needed to commence construction or rehabilitation of
the Developer Improvements:
4. the Agency shall execute and deliver to the Escrow
Agent the Grant Deed (Attachment No.6).
5
DAB/ae./Gamea.agr
July 9. 1992
1 The foregoing conditions numbered 1 to 4, inclusive, as
2 set forth in this Section 203, shall cOllectively constitute the
3 "Conditions Precedent." All of the Conditions Precedent shall be
4 satisfied prior to the Disposition Conveyance.
5 D. [204] Escrow
6 This Agreement constitutes the joint basic escrow
7 instructions of the Agency and the Developer for the conveyance of
8 the Site by the Agency to the Developer (the "Conveyance"). The
9 Agency and the Developer shall provide such additional escrow
10 instructions as may be necessary, provided that such instructions
11 shall be consistent with this Agreement.
12 An escrow holder mutually acceptable to the parties
13 (the "Escrow Agent") is hereby empowered to act under this
14 Agreement, and the Escrow Agent shall carry out its duties as
15 Escrow Agent hereunder. Escrow Agent shall open a separate escrow
16 to handle the delivery and recordation of documents provided for
17 under this Agreement.
18 Upon execution of this Agreement Developer shall
19 deposit with the Escrow Agent the amount of $22,500 as a portion
20 of the purchase price of the Site. Such deposit is nonrefundable
21 unless the failure to complete the Project is due to a cause not
22 the fault of the Developer.
23 Upon delivery of the Grant Deed (Attachment No.6). the
24 Escrow Agent shall cause to be recorded the Grant Deed (Attachment
25 No.6), when title can be vested in the Developer in accordance
26 with the terms and provisions of this Agreement. The Developer
27 shall accept conveyance of title and possession of the Site by the
28 time set forth in the Schedule of Performance (Attachment No.3)
DAB/aea/Cuea.egr 6 July 9. 1992
1 subject to the satisfaction of the Conditions Precedent. The
2 Escrow Agent shall cause to be paid any applicable transfer tax
3 with funds provided by the Developer.
4 The Developer and the Agency shall pay in escrow to the
5 Escrow Agent the following fees, charges, deposits and costs with
6 respect to the Conveyance promptly after the Escrow Agent has
7 notified the Developer and the Agency of the amount of such fees,
8 charges and costs:
9 a. Good faith deposit of 10% ($22,500) of the
10 purchase price. (as noted above)
11 b. The premium for the title insurance policy to be
12 paid by the Agency as set forth in Section 208 of this Agreement;
13 c. Recording fees to be paid by Developer;
14 d. Notary fees to be evenly divided between Agency
15 and Developer;
16 e. Any State, County or City documentary transfer tax
17 to be paid by Developer;
18 f. Ad valorem taxes, if any, upon the Site for any
19 time prior to transfer of title to be paid by Agency.
20 g. Escrow costs to be evenly divided between Agency
21 and Developer.
22 The Escrow Agent is authorized to:
23 a. Pay, and charge the Agency and the Developer,
24 respectively, for any fees, charges and costs payable under this
25 Section 204 of this Agreement. Before such payments or charges
26 are made, the Escrow Agent shall notify the Agency, and the
27 Developer of the fees, charges and costs necessary to clear title
28 and close the Escrow.
DAB/.es/Gamea.agr
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July 9. 1992
,---- -
1 b. Disburse funds and deliver the deed and other
2 documents to the parties entitled thereto when the conditions of
3 this Escrow have been fulfilled by the Agency and the Developer.
4 c. Record any instruments delivered through this
5 Escrow, if necessary or proper, to vest title in the Developer in
6 accordance with the terms and provisions of this Agreement.
7 All funds received in this Escrow shall be deposited by
8 the Escrow Agent with other escrow funds of the Escrow Agent in a
9 general escrow account or accounts with any state or national bank
10 doing business in the State of California. Such funds may be
11 transferred to any other general escrow account or accounts. All
12 disbursements shall be made by check of the Escrow Agent. All
13 adj ustments are to be made on the basis of a thirty (30) day
14 month. All interest earned shall be credited to the benefit of
15 the party depositing the corresponding funds.
16 If the Escrow is not in condition to close on or before
17 the time for conveyance established in Section 205 of this
18 Agreement, any party who then shall have fully performed the acts
19 to be performed before the conveyance of title may, in writing,
20 demand from the Escrow Agent the return of its money, papers or
21 documents deposited with the Escrow Agent. No demand for return
22 shall be recognized until twenty (20) days after the Escrow Agent
23 shall have mailed copies of such demand to the other party or
24 parties at the address of its or their principal place or places
25 of business. Objections, if any, shall be raised by written
26 notice to the Escrow Agent and to the other party wi thin the
27 twenty (20) day period, in which event the Escrow Agent is
28 authorized to hold all money, papers and documents with respect to
DAB/us/Gomes. sgr 8 July 9. 1992
1 the Site until instructed by a mutual jurisdiction. If no written
2 reply to an objection is delivered to the Escrow Agent within said
3 twenty (20) day period, to any demand, then the Escrow Agent shall
4 comply with such original demand and cancel the escrow forthwith.
5 If such demand and reply are complied with wi thin such twenty (20)
6 day period, Escrow shall close in accordance with the terms
7 hereinabove set forth.
8 In the event of an objection to any demand to release
9 money, papers or documents, the Escrow Agency shall not be
10 obligated to return any such money, papers or documents except
11 upon the written instructions of the Agency and the Developer or
12 until the party entitled thereto has been determined by a final
13 decision of a court of competent jurisdiction.
14 Any amendment to these Escrow instructions shall be in
15 writing and signed by the Agency and the Developer. At the time
16 of any amendment, the Escrow Agent shall agree to carry out its
17 duties as Escrow Agent under such amendment.
18 All communications from the Escrow Agent to the Agency
19 or the Developer shall be directed to the addresses and in the
20 manner established in Section 501 of this Agreement for notices,
21 demands and communications between the Agency and the Developer.
22 The liability of the Escrow Agent under this Agreement,
23 insofar as it acts in the capacity of escrow holder and without
24 limitation to its responsibility or liability insofar as it may
25 act in another capacity, is limi ted to performance of the
26 obligations imposed upon it under Sections 203 and 208, both
27 inclusive, of this Agreement.
28 III
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E.
[205]
Conveyance of Title and Delivery of
Possession
Subject to any extensions of time mutually agreed upon
between the Agency and the Developer, the Conveyance shall be
completed on or prior to the date specified therefor in the
Schedule of Performance (Attachment No.3). Said Schedule of
Performance (Attachment No.3) is subject to revision from time to
time as mutually agreed upon in writing between the Developer and
the Agency.
The Developer shall accept title and possession on or
before the date established in the Schedule of Performance
(Attachment No.3) for the Conveyance provided all conditions to
performance by Developer have been satisfied.
F. [206] Form of Deed for the Disposition Conveyance
Subject to the requirements of Section 201, and all
applicable terms and conditions of this Agreement, the Agency
shall convey to the Developer title to the Site in the condition
provided in Section 205 of this Agreement by grant deed in the
form of the Grant Deed (Attachment No.6).
G. [207] Condition of Title
The Agency shall convey to the Developer fee simple
merchantable title to the Site, excepting therefrom mineral
rights, free and clear of all recorded or unrecorded liens,
encumbrances, covenants, assessments, easements, leases and taxes,
except for covenants and easements of record at the time of
execution of this Agreement which the Developer has approved in
writing, the Redevelopment Plan, the provisions contained in the
Grant Deed (Attachment No.6) and such other encumbrances to which
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the Developer may consent. The condition of title shall be
compatible with and not preclude development of the Developer
Improvements, and the Developer shall review easements prior to
and as a condition of closing consistent with the foregoing. The
parties shall act reasonably in evaluation of any encumbrances and
shall act diligently and promptly to conform the condition of
title to that required for the Developer to proceed with
development of the Developer Improvements. In no event shall the
Developer be required to accept title subject to a deed of trust
or mortgage.
H. [208] Time for and Place of Delivery of Agency Deed
Subject to any mutually agreed upon extension of time,
the Agency shall deposit the Grant Deed (Attachment No.6) with. .
the Escrow Agent on or before the date established for the date of
the Conveyance pursuant to the Schedule of Performance (Attachment
No.3).
1.
[209] Recordation of Documents
The Escrow Agent shall file among the land records in
the Office of the County Recorder for San Bernardino County those
instruments enumerated in Section 204.
J. [210] Title Insurance
Concurrently with recordation of the Grant Deed
(Attachment No.6), a title insurance company mutually acceptable
to the parties (the "Title Company") shall provide and deliver to
the Developer a title insurance policy issued by the Title Company
insuring that the title to the Site is vested in the Developer in
the condition required by Section 207 of this Agreement. The
amount of such title insurance policy shall be $225,000; provided
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July 9. 1992
1 that the Agency shall bear that portion of the premium for such
2 pOlicy as would be applicable for a CLTA policy based upon the
3 Purchase Price. The Title Company shall provide the Agency with
4 a copy of such title policy.
5 K. [211] Taxes and Assessments
6 Ad valorem taxes and assessments, if any, on the Site,
7 levied, assessed or imposed for any period commencing prior to the
8 Conveyance shall be the responsibility of the Agency, and shall be
9 paid through escrow. Any of such taxes imposed after the
10 Conveyance shall be borne by the Developer.
11 L. [212] Condition of the Site
12 The Developer assumes all responsibility for any
13 demolition and clearance of the Site as necessary for the.
14 provision of the Developer Improvements and the Developer assumes
15 all responsibility for the suitability of the Site, for the
16 operation of a light industrial business (as hereinafter defined
17 in Section 401 of this Agreement). The Agency makes no
18 representations or warranties concerning the Site, its sui tabili ty
19 for the use intended by the Developer, the condition of the
20 building or other improvements, or the surface or subsurface
21 condi tions of the Site. In the event Developer completes its
22 acquisi tion of the Site and if the soil or other surface or
23 subsurface conditions of the Site are not in all respects entirely
24 suitable for the use or uses to which the Site will be put as of
25 the conveyance of the Site, then it is the responsibility and
26 obligation of Developer (and such third parties, if any, as may be
27 legally responsible for the removal of hazardous substances) and
28 not the Agency to take such action as may be necessary to place
DIIB/.../GaII....gr 12 July 9. 1992
1 the Site in a condition entirely suitable for the commencement,
2 development and completion of the Developer Improvements.
3 The Developer shall defend, indemnify and hold harmless
4 the Agency for any claim related to or arising out of hazardous
5 waste contamination occurring after transfer of title to Developer
6 which claim against the Agency is based upon the fact that the
7 Agency held title to the property.
8 M. [213] Preliminary Work
9 Any preliminary work undertaken on the Site by
10 Developer prior to conveyance of title thereto shall be done only
11 after obtaining the written consent of the Agency, and at the sole
12 expense of Developer.
13 The Developer shall save and protect the Agency and the
14 Ci ty against any claims resulting from all preliminary work,
15 access or use of the Site undertaken by the Developer pursuant to
16 this Section 213. Any preliminary work by the Developer shall be
17 undertaken only after securing any and all necessary permits from
18 the appropriate governmental agencies.
19 III. [300] DEVELOPMENT OF THE SITE
20 A. [301] Development of the Site by the Developer
21 1. [302] Scope of Development
22 The Site shall be developed as provided in the
23 Scope of Development, which is attached hereto as Attachment No.
24 4 and is incorporated herein. The Developer Improvements shall
25 consist of a warehouse and related improvements.
26 The development shall include any plans and
27 specifications submitted to Agency or the City for approval, and
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shall incorporate or show compliance with all applicable
mitigation measures.
By the time set forth in the Schedule of
Performance (Attachment No.3) for completion of the Developer
Improvements, the Developer shall have completed renovation and
construction of improvements on the Site.
2. [303] Design Concept Drawings
By the respective times set forth therefor in the
Schedule of Performance (Attachment No.3), the Developer shall
prepare and submit to the City for its approval Design Concept
Drawings and related documents containing the overall plan for
development of the Si te. The Si te shall be developed as
established in this Agreement and such documents except as changes
may be mutually agreed upon between the Developer and the Agency.
Any such changes shall be within the limitations of the Scope of
the Development (Attachment No.4).
3. [304] Construction Drawings and Related
Documents
By the time set forth therefor in the Schedule of
Performance (Attachment No.3), the Developer shall prepare and
submit to the City, construction drawings, landscape plan and
related documents for rehabilitation and development of the Site
for architectural review and written approval.
The landscaping and finish grading plans shall be
prepared by a professional landscape architect who may be the same
firm as the Developer's architect.
During the preparation of all drawings and plans,
staff of the Agency and the Developer shall hold regular progress
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meetings to coordinate the preparation of, submission to, and
review of drawings, plans and related documents. The staff of
Agency and the Developer shall communicate and consult informally
as frequently as is necessary to insure that the formal submittal
of any documents to the Agency can receive prompt and speedy
consideration.
4. [305] Cost of Construction
Except as herein provided, the cost of developing
the Site and remodeling and constructing all improvements thereon
shall be borne by the Developer.
5. [306] Construction Schedule
The Developer shall promptly begin and thereafter
diligently prosecute to completion the remodeling and construction,
of the Developer Improvements and the development of the Site.
The Developer shall begin and complete all construction and
development within the times specified in the Schedule of
Performance (Attachment No.3). The Developer shall strictly
conform to all time requirements and limitations set forth in this
Agreement.
6.
[307]
Bodily Injury and Property Damage
Insurance
The Developer shall defend, assume all
responsibili ty for and hold the Agency, the City, and their
respective officers and employees, harmless from all claims or
sui ts for, and damages to, property and injuries to persons,
including accidental death (including attorneys fees and costs),
which may be caused by any of the Developer's activities under
this Agreement, to the extent the activities of the Developer are
15
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July 9. 1992
1 performed negligently, constitute intentional misconduct, or are
2 breaches of the obligations of the Developer under this Agreement,
3 whether such activities or performance thereof by the Developer or
4 anyone directly or indirectly employed or contracted with by the
5 Developer and whether such damage shall accrue or be discovered
6 before or after termination of this Agreement. The Developer
7 shall take out and maintain until (i) the issuance of a
8 Certificate of Completion for all of the Developer Improvements
9 pursuant to Section 320 of this Agreement (if an "occurrence"
10 policy is obtained) or (ii) the second anniversary of the
11 completion of the Developer Improvements (if a "claims made"
12 policy is obtained), a comprehensive liability policy in the
13 amount of One Million Dollars ($1,000,000) combined single limit
14 pOlicy, including contractual liability, as shall protect the
15 Developer, City and Agency from claims for such damages.
16 The Developer shall furnish a certificate of
17 insurance countersigned by an authorized agent of the insurance
18 carrier on a form of the insurance carrier setting forth the
19 general provisions of the insurance coverage. This countersigned
20 certificate shall name the City and the Agency and their
21 respective officers, agents, and employees as additional insureds
22 under the policy. The certificate by the insurance carrier shall
23 contain a statement of obligation on the part of the carrier to
24 notify City and the Agency of any material change, cancellation or
25 termination. Coverage provided hereunder by the Developer shall
26 be primary insurance and not contributing with any insurance
27 maintained by the Agency or City, and the pOlicy shall contain
28 such an endorsement. The insurance policy or the certificate of
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insurance shall contain a waiver of subrogation for the benefit of
the City and the Agency. The required certificate shall be
furnished by the Developer at the time set forth therefor in the
SchedUle of Performance (Attachment No.3). Upon request the
Developer shall furnish Agency with copies of the subject
insurance policy(ies).
The Developer shall also furnish or cause to be
furnished to the Agency evidence satisfactory to the Agency that
it or any contractor with whom it has contracted for the
performance of work on the Site or otherwise pursuant to this
Agreement carries workers' compensation insurance as required by
law.
7. [308] City and Other Governmental Agency
Permits
Before commencement of construction or development
of any buildings, structures or other works of improvement upon
the Site, the Developer shall, at its own expense, secure or cause
to be secured any and all permits which may be required by the
City or any other governmental agency affected by such
construction, development or work.
8. [309] Rights of Access
For the purpose of assuring compliance with this
Agreement, representatives of the Agency and the City shall have
the right of access to the Site, without charges or fees, at
normal construction hours during the period of construction for
the purposes of this Agreement including, but not limited to, the
inspection of the work being performed in constructing the
improvements, so long as they comply with all safety rules and
DAB/.e./G_ea.agr 17 July 9. 1992
1 have given prior notice to the Developer. Such representatives of
2 the Agency or of the City shall be those who are so identified in
3 writing by the Executive Director of the Agency. The Agency shall
4 hold the Developer harmless from any bodily injury or related
5 damages arising out of the activities of the Agency and the City
6 as referred to in this Section 309. This Section 309 shall not be
7 deemed to diminish or limit any rights which the City or the
8 Agency may have by operation of law irrespective of this
9 Agreement.
10 9. [310] Local, State and Federal Laws
11 The Developer shall carry out the construction of
12 the improvements in conformity with all applicable laws, including
13 all applicable federal and state labor standards; provided,
14 however, Developer and its contractors, successors, assigns,
15 transferees and lessees are not waiving their rights to contest
16 any such laws, rules or standards.
17 10. [311] Antidiscrimination During Construction
18 or Remodeling
19 The Developer, for itself and its successors and
20 assigns, agrees that in the construction of the improvements
21 provided for in this Agreement, the Developer shall not
22 discriminate against any employee or applicant for employment
23 because of race, color, creed, religion, age, sex, marital status,
24 handicap, national origin or ancestry.
25 B. [312] Taxes, Assessments, Encumbrances and Liens
26 The Developer shall pay when due all ad valorem taxes
27 and assessments on the Site and levied subsequent to the
28 acquisi tion of title heretofore by the Developer. Prior to
DlIB/aea/G...ea.agr 18 July 9. 1992
1 issuance of a Certificate of Completion with respect to all of the
2 Developer Improvements pursuant to this Agreement, the Developer
3 shall not place or allow to be placed on the Site or any part
4 thereof any mortgage, trust deed, encumbrance or lien other than
5 as expressly allowed by this Agreement. The Developer shall
6 remove or have removed any levy or attachment made on any of the
7 Si te or any part thereof, or assure the satisfaction thereof
8 wi thin a reasonable time but in any event prior to a sale
9 thereunder.
10 C. [313] Prohibition Against Transfer of the Site,
11 the Buildings or Structures Thereon and
12 Assignment of Agreement
13 Prior to the issuance by the Agency of a Certificate of.
14 Completion as to any building or structure, the Developer shall
15 not, except as permitted by this Agreement, without the prior
16 written approval of the Agency (whiCh may be given by the
17 Executive Director of the Agency on behalf of the Agency), make
18 any total or partial sale, transfer, conveyance, assignment or
19 lease of the whole or any part of the Site or of the buildings or
20 structures on the Site. This prohibition shall not be deemed to
21 prevent a transfer expressly permitted pursuant to Section 108 of
22 this Agreement, or the granting of temporary or permanent
23 easements or permits to facilitate the development of the Site.
24 III
25 III
26 III
27 I I I
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July 9. 1992
1 D. [314] Mortgage, Deed of Trust, Sale and Lease-Back
2 Financing; Rights of Holders
3 1. [315] No Encumbrances Except Mortgages, Deeds
4 of Trust, or Sale and Lease-Back for
5 Development
6 Mortgages, deeds of trust and sales and 1eases-
7 back are to be permitted before completion of the construction of
8 the improvements, but only for the purpose of securing loans of
9 funds to be used for financing the acquisition of the Site, the
10 construction of improvements on the Site, and any other purposes
11 necessary and appropriate in connection with development under
12 this Agreement, and only if the instruments effecting such
13 mortgages, deeds of trust and sales and leases-back contain the.
14 provisions of Sections 319 and 320 of this Agreement. The
15 Developer shall notify the Agency in advance of any mortgage, deed
16 of trust or sale and lease-back financing, if the Developer
17 proposes to enter into the same before completion of the
18 construction of the improvements on the Site. The words
19 "mortgage" and "trust deed" as used hereinafter shall include sale
20 and lease-back. The Developer shall not enter into any such
21 conveyance for financing without the prior written approval of the
22 Agency, which approval the Agency agrees to give if any such
23 conveyance for financing is given to a bank, savings and loan
24 association, or other similar lending institution and such lender
25 shall be deemed approved unless rejected in writing by the Agency
26 within fifteen (15) days after written notice thereof is received
27 / / /
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July 9. 1992
1 by the Agency. The form of approval by the Agency shall be a
2 writing which references this Section 315, executed by the
3 Executive Director of the Agency.
4 The Agency, by its Executive Director, agrees to
5 approve financing by a recognized commercial lender in an amount
6 reasonably determined to represent the Developer's cost to
7 construct the Developer Improvements so long as the loan documents
8 (i) contain the provisions of Section 318 and 319 of this
9 Agreement and (ii) provide that, in the event of foreclosure by
10 the lender (or acceptance of a deed in lieu of foreclosure) the
11 lender would take the Site free of this Agreement (except for
12 Section 318) but subject to the terms of the Grant Deed
13 (Attachment No.6) which do not terminate upon recordation of the
14 Certificate of Completion.
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20 improvements or to guarantee such construction or completion; nor
21 shall any covenant or any other provision in the deed for the Site
22 be construed so to obligate such holder. Nothing in this
23 Agreement shall be deemed to construe, permit or authorize any
24 such holder to devote the Site to any uses or to construct any
25 improvements thereon, other than those uses or improvements
26 provided for or authorized by the Redevelopment Plan.
27 I I I
28 III
2. [316] Holder Not Obligated to Construct
Improvements
The hOlder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated by the
provisions of this Agreement to construct or complete the
DAB/aea/Gaae..agr
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July 9. 1992
1 3. [317] Notice of Default to Mortgagee or Deed
2 of Trust HOlders: Right to Cure
3 Wi th respect to any mortgage or deed of trust
4 granted by Developer as provided herein, whenever the Agency shall
5 deliver any notice or demand to Developer with respect to any
6 breach or default by the Developer in completion of construction
7 of the improvements, the Agency shall at the same time deliver to
8 each holder of record of any mortgage or deed of trust authorized
9 by this Agreement a copy of such notice or demand. Each such
10 hOlder shall (insofar as the rights of the Agency are concerned)
11 have the right, at its option, within thirty (30) days after the
12 receipt of the notice, to cure or remedy or commence to cure or
13 remedy any such default and to add the cost thereof to the
14 mortgage debt and the lien of its mortgage. Any such holder shall
15 be entitled, upon compliance with the requirements of Section 320
16 of this Agreement, to a Certificate of Completion (as therein
17 defined) .
18 4. [318] Failure of Holder to Complete
19 Improvements
20 In any case where, thirty (30) days after default
21 by the Developer in completion of construction of improvements
22 under this Agreement, the holder of any mortgage or deed of trust
23 creating a lien or encumbrance upon the Site or any part thereof
24 has not elected to construct the Developer Improvements, or if it
25 has elected to construct the Developer Improvements but has not
26 proceeded diligently with construction, the Agency may purchase
27 the mortgage or deed of trust by payment to the hOlder of the
28 amount of the unpaid mortgage or deed of trust debt, including
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principal and interest and all other sums secured by the mortgage
or deed of trust.
E. [319] Right of the Agency to Satisfy Other Liens
on the Site After Title Passes
Prior to the completion of construction of the
Developer Improvements, and after the Developer has had written
notice and has failed after a reasonable time, but in any event
not less than fifteen (15) days, to challenge, cure, adequately
bond against, or satisfy any liens or encumbrances on the Site
which are not otherwise permitted under this Agreement, the Agency
shall have the right but no obligation to satisfy any such liens
or encumbrances.
[320] Certificate of Completion
The Executive Director of the Agency, without further
approval by the City or the Agency and as a ministerial act
hereunder, shall execute, and deliver the Certificate of
Completion and Release in the form attached hereto as Attachment
No. 5 after final inspection of the Developer Improvements. Such
Certificate of Completion shall be a conclusive determination of
satisfactory completion of the construction required by this
Agreement upon the Site and the Certificate of Completion shall so
state. The Agency may also furnish the Developer with a
Certificate of Completion for portions of the improvements upon
the Site as they are properly completed and ready to use if the
Developer is not in default under this Agreement. After
recordation of such Certificate of Completion, any party then
owning or thereafter purchasing, leasing or otherwise acquiring
any interest therein shall not (because of such ownership,
23
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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, which by their terms
survive recordation of the Certificate of Completion.
A Certificate of Completion of construction for the
entire improvement and development of the Site shall be in such
form as to permit it to be recorded in the Recorder's Office of
San Bernardino County.
If the Agency refuses or fails to furnish a Certificate
of Completion for the Site, or part thereof, after written request
from the Developer, the Agency shall, within thirty (30) days of
wri tten request therefor, provide the Developer with a written
statement of the reasons the Agency refused or failed to furnish
a Certificate of Completion. The statement shall also contain
Agency's opinion of the actions that the Developer must take to
obtain a Certificate of Completion. If the reason for such
refusal is confined to the immediate availability of specific
items of materials for landscaping, the Agency will issue its
Certificate of Completion upon the posting of a bond by the
Developer with the Agency in an amount representing a fair value
of the work not yet completed. If the Agency shall have failed to
provide such written statement wi thin said thirty (30) day period,
the Developer shall be deemed entitled to the Certificate of
Completion.
Such Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation of
the Developer to any hOlder of any mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements, or any
24
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,July 9. 1992
1 part thereof. Such Certificate of Completion is not a notice of
2 completion as referred to in the California Civil Code, Section
3 3093.
4 IV. [400] USE OF THE SITE
5 A. [401] Uses
6 The Developer covenants and agrees that Developer shall
7 develop, remodel or operate improvements on the Site in accordance
8 wi th the Scope of Development (Attachment No.4). Developer shall
9 devote the Site to the uses specified in the Redevelopment Plan as
10 may be amended from time to time for the periods of time specified
11 therein. The Developer further covenants and warrants that the
12 Developer shall develop on the Site a light industrial business
13 involving the assembly and distribution of indoor recreational
14 games and equipment. Developer covenants to develop and operate
15 the Site (or cause it to be operated) in conformity with all
16 applicable laws. The foregoing covenants shall run with the land
17 as provided in the Grant Deed. The Developer and its successors-
18 in-interest shall be liable for compliance with the foregoing only
19 so long as they own or lease the Site or any portion thereof.
20 The Developer covenants by and for itself and any
21 successors in interest that there shall be no discrimination
22 against or segregation of any person or group of persons on
23 account of race, color, creed, religion, sex, marital status, age,
24 handicap, national origin or ancestry in the sale, lease,
25 sublease, transfer, use, occupancy, tenure or enjoyment of the
26 Site, nor shall Developer itself or any person claiming under or
27 through it establish or permit any such practice or practices of
28 discrimination or segregation with reference to the selection,
DAB/.../C......gr 25 July 9. 1992
1 location, number, use or occupancy of tenants, lessees,
2 subtenants, sublessees or vendees of the Site. The foregoing
3 covenants shall run with the land.
4 Developer shall refrain from restricting the rental,
5 sale or lease of the Site on the basis of race, color, creed,
6 religion, sex, marital status, handicap, national origin or
7 ancestry of any person. All such deeds, leases or contracts shall
8 contain or be subject to substantially the following
9 nondiscrimination or non-segregation clauses:
10 1. In deeds: "The grantee herein covenants by and for
11 himself or herself, his or her heirs, executors,
12 administrators and assigns, and all persons claiming
13 under or through them, that there shall be no
14 discrimination against or segregation of, any person or
15 group of persons on account of race, color, creed,
16 religion, sex, marital status, age, handicap, national
17 origin or ancestry in the sale, lease, sublease,
18 transfer, use, occupancy, tenure or enjoyment of the
19 land herein conveyed, nor shall the grantee himself or
20 herself or any person claiming under or through him or
21 her, establish or permit any such practice or practices
22 of discrimination or segregation with reference to the
23 selection, location, number, use or occupancy of
24 tenants, lessees, subtenants, sub lessees or vendees in
25 the land herein conveyed. The foregoing covenants
26 shall run with the land."
27 I I I
28 III
DAB/.ea/Gaaea.agr
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July 9. 1992
1 2. In leases: "The lessee herein covenants by and for
2 himself or herself, his or her heirs, executors,
3 administrators and assigns, and all persons claiming
4 under or through him or her, and this lease is made and
5 accepted upon and subject to the following conditions:
6 "There shall be no discrimination against or
7 segregation of any person or group of persons on
8 account of race, color, creed, religion, sex, marital
9 status, handicap, age, ancestry or national origin in
10 the leasing, subleasing, transferring, use, occupancy,
11 tenure or enjoyment of the premises herein leased nor
12 shall the lessee himself or herself, or any person
13 claiming under or through him or her, establish or
14 permi t any such practice or practices of discrimination
15 or segregation with reference to the selection,
16 location, number, use or occupancy of tenants, lessees,
17 sublessees, subtenants or vendees in the premises
18 herein leased."
19 3. In contracts: "There shall be no discrimination
20 against or segregation of, any person, or group of
21 persons on account of race, color, creed, religion,
22 sex, marital status, age, handicap, ancestry or
23 national origin, in the sale, lease, sublease,
24 transfer, use, occupancy, tenure or enjoyment of the
25 premises, nor shall the transferee himself or herself
26 or any person claiming under or through him or her,
27 establish or permit any such practice or practices of
28 discrimination or segregation with reference to the
DAB/.../G......1Jr 27 July 9. 1992
I
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1 selection, location, number, use or occupancy of
2 tenants, lessees, subtenants, sublessees or vendees of
3 the premises."
4 B. [402] Maintenance of the Site
5 Developer shall maintain the Developer Improvements and
6 all other improvements on the Site and shall keep the Property
7 free from any accumulation of debris or waste materials.
8 Developer further agrees to maintain the Site in a neat
9 and attractive manner until construction or remodeling of the
10 improvements described in this Agreement is complete so as not to,
11 in the reasonable determination of an appropriate officer of the
12 City, be a public nuisance, or be detrimental to the health,
13 safety and welfare, or impair value of property within one.
14 thousand (1,000) feet of the Site, and agrees that in the event
15 Developer fails to do so, Agency may enter upon the Site for the
16 purposes of performing necessary and desirable maintenance, that
17 Developer will be responsible for the cost of any such maintenance
18 undertaken by Agency, which shall be paid within thirty (30) days
19 after receipt by Developer of written demand therefor.
20 Developer agrees to prepare and record Covenants,
21 Conditions and Restrictions approved by Agency, consistent with
22 this Section 402 inCluding the ongoing maintenance
23 responsibili ties outlined in this Agreement which may not be
24 amended nor revoked without the approval of Agency.
25 Developer shall also maintain the landscaping required
26 to be planted under the Scope of Development (Attachment No.4) in
27 a healthy condition. If, at any time, Developer fails to maintain
28 said landscaping, and said condition is not corrected after
DAB/.e./Game...~ 28 July 9. 1992
1 expiration of thirty (30) days from date of written notice from
2 Agency, Agency may perform the necessary landscape maintenance and
3 Developer agrees to pay such costs as are reasonably incurred for
4 such maintenance. Failure to pay the costs incurred pursuant to
5 this Section 402 within thirty (30) days shall permit Agency to
6 place a lien on the property.
7 Issuance of a Certificate of Completion by Agency shall
8 not affect Developer's obligations under this Section.
9 C. [403] Rights of Access
10 Agency, for itself and for the City and other public
11 agencies, at their sole risk and expense, reserves the right to
12 enter the Site or any part thereof at all reasonable times for the
13 purpose of construction, reconstruction, maintenance, repair or
14 service of any public improvements or public facilities located on
15 the Site. Any such entry shall be made only after reasonable
16 notice to Developer, and Agency shall indemnify and hold Developer
17 harmless from any costs, claims, damages or liabilities pertaining
18 to any entry. This Section 403 shall not be deemed to diminish or
19 limi t any rights which the City or Agency may have by operation of
20 law irrespective of this Agreement.
21 D. [404] Effect of Violation of the Terms and
22 Provisions of this Agreement After Completion
23 of Construction
24 The covenants established in this Agreement and the
25 deeds shall, without regard to technical classification and
26 designation, be binding for the benefit and in favor of Agency,
27 its successors and assigns, as to those covenants which are for
28 / / /
DAB/8e./Gaae..agr
29
July 9. 1992
1 its benefit. The covenants contained in this Agreement shall
2 remain in effect until the termination date of the Redevelopment
3 Plan. The covenants against racial discrimination shall remain in
4 perpetui ty .
5 Agency is deemed the beneficiary of the terms and
6 provisions of this Agreement and of the covenants running with the
7 land, for and in its own right and for the purpose of protecting
8 the interests of the community and other parties, public or
9 private, in whose favor and for whose benefit this Agreement and
10 the covenants running with the land have been provided. The
11 Agreement and the covenants shall run in favor of Agency, without
12 regard to whether Agency has been, remains or is an owner of any
13 land or interest therein in the Site or in the Project Area.
14 Agency shall have the right, if the Agreement or covenants are
15 breached, to exercise all rights and remedies, and to maintain any
16 actions or suits at law or in equity or other proper proceedings
17 to enforce the curing of such breaches to which it or any ot~er
18 beneficiaries of this Agreement and covenants may be entitled.
19 V. [500] GENERAL PROVISIONS
20 A. [501] Notices, Demands and Communications Between
21 the Parties
22 Wri tten notices, demands and communications between
23 Agency and Developer shall be sufficiently given if delivered by
24 hand (and a receipt therefor is obtained or is refused to be
25 given) or dispatched by registered or certified mail, postage
26 prepaid, return receipt requested, to the principal offices of
27 Agency and Developer. Such written notices, demands and
28 communications may be sent in the same manner to such other
Dl\B/.../G......gr 30 JUly 9. 1992
1 addresses as such party may from time to time designate by mail as
2 provided in this Section 501.
3 Any written notice, demand or communication shall be
4 deemed received immediately if delivered by hand and shall be
5 deemed received on the tenth day from the date it is postmarked if
6 delivered by registered or certified mail.
7 B. [502] Conflicts of Interest; Nonliability
8 No member, official or employee of Agency shall have
9 any personal interest, direct or indirect, in this Agreement. No
10 member, official or employee shall participate in any decision
11 relating to the Agreement which affects his personal interests or
12 the interests of any corporation, partnership or association in
13 which he is directly or indirectly interested. No member,
14 official or employee of Agency shall be personally liable to
15 Developer, or any successor in interest, in the event of any
16 default or breach by Agency or Developer, or for any amount which
17 may become due to Developer or its successor or on any obligations
18 under the terms of this Agreement.
19 Developer represents and warrants that it has not paid
20 or given, and shall not payor give, any third party any money or
21 other consideration for obtaining this Agreement.
22 C. [503] Enforced Delay; Extension of Times of
23 Performance
24 In addition to specific provisions of this Agreement,
25 performance by either party hereunder shall not be deemed to be in
26 default, and all performance and other dates specified in this
27 Agreement shall be extended, where delays or defaults are due to:
28 war; insurrection; floods; earthquakes; fires; casualties; acts of
DAB/aea/aa..a.agr
31
July 9. 1992
1 God; acts of the public enemy; freight embargoes; governmental
2 restrictions or priority; litigation; unusually severe weather;
3 acts or omissions of another party; acts or failures to act of the
4 City of San Bernardino or any other public or governmental agency
5 or entity (other than the acts or failures to act of Agency which
6 shall not excuse performance by Agency); or any other causes
7 beyond the control or without the fault of the party claiming an
8 extension of time to perform. Notwi thstanding anything to the
9 contrary in this Agreement, an extension of time for any such
10 cause shall be for the period of the enforced delay and shall
11 commence to run from the time of the commencement of the cause, if
12 notice by the party claiming such extension is sent to the other
13 party within thirty (30) days of the commencement of the cause.
14 Times of performance under this Agreement may also be extended in
15 writing by the mutual agreement of Agency and Developer.
16 Except as otherwise provided in this Agreement,
17 Developer is not entitled pursuant to this Section 503 to an
18 extension of time to perform because of past, present, or future
19 difficulty in obtaining suitable temporary or permanent financing
20 for the development of the Site.
21 D. [504] Inspection of Books and Records
22 Agency has the right at all reasonable times to inspect
23 the books and records of Developer pertaining to the Site as
24 pertinent to the purposes of this Agreement. Developer has the
25 right at all reasonable times to inspect the public records of
26 Agency pertaining to the Site as pertinent to the purposes of the
27 Agreement.
28 III
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[600] DEFAULTS AND REMEDIES
A. [601] Defaults - - General
Subject to the extensions of time set forth in Section
503, failure or delay by any party to perform any term or
provision of this Agreement constitutes a default under this
Agreement. The party who so fails or delays must immediately
commence to cure, correct, or remedy such failure or delay, and
shall complete such cure, correction or remedy with diligence.
The injured party shall give written notice of default
to the party in default, specifying the default complained of by
the injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against
the party in default until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not
constitute a waiver of any default, nor shall it change the time
of default.
B. [602] Legal Actions
1. [603] Institution of Legal Actions
In addition to any other rights or remedies
hereunder, Agency or Developer may institute legal action to cure,
correct or remedy any default, to recover damages for any default,
or to obtain any other remedy consistent with the purpose of this
Agreement. Any legal actions initiated pursuant to this Agreement
or otherwise with respect to its subject matter must be instituted
in the Superior Court of the County of San Bernardino,
State of California, or in an appropriate municipal court in that
county. In the event of any such action the prevailing party
shall be entitled to reasonable attorneys fees.
33
VI.
DAB/aea/Ga.ea.agr
July 9. 1992
1 2. [604] Applicable Law
2 The laws of the State of California shall govern
3 the interpretation and enforcement of this Agreement.
4 3. [605] Acceptance of Service of Process
5 In the event that any legal action is commenced by
6 Developer against Agency, service of process on Agency shall be
7 made by personal service upon the Executive Director or in such
8 other manner as may be provided by law.
9 In the event that any legal action is commenced by
10 any party against Developer, service of process on such party
11 shall be made by personal service upon Developer or in such other
12 manner as may be provided by law, and shall be valid whether made
13 within or without the State of California.
14 C. [606] Rights and Remedies are Cumulative
15 Except as otherwise expressly stated in this Agreement,
16 the rights and remedies of the parties are cumulative, and the
17 exercise by any party of one or more of such rights or remedies
18 shall not preclude the exercise by it, at the same or different
19 times, of any other rights or remedies for the same default or any
20 other default by any other party.
21 D. [607] Inaction Not a Waiver of Default
22 Any failures or delays by any party in asserting any of
23 its rights and remedies as to any default shall not operate as a
24 waiver of any default or of any such rights or remedies, or
25 deprive any party of its right to institute and maintain any
26 actions or proceedings which it may deem necessary to protect,
27 assert or enforce any such rights or remedies.
28 III
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[608] Remedies and Rights of Termination
1. [ 609 ] Damages
If either Developer or Agency defaults with regard
to any of the provisions of this Agreement, the non-defaulting
party shall serve written notice of such default upon the
defaulting party. If the default is not cured by the defaulting
party wi thin thirty (30) days after service of the notice of
default, the defaulting party shall be liable to the other for any
damages caused by such default.
2. [610] Action for Specific Performance
If either Developer or Agency defaults under any
of the provisions of this Agreement prior to the recordation of a
Certificate of Completion for the Developer Improvements to be
made thereon, the non-defaulting party shall serve written notice
of such default upon the defaulting party. If the default is not
commenced to be cured by the defaulting party within thirty (30)
days after service of the notice of default, the non-defaulting
party at its option may institute an action for specific
performance of the terms of this Agreement.
3. [611] Termination by the Developer
In the event that:
(a) the Conditions Precedent are not satisfied by
the time established therefor in the Schedule of Performance
(Attachment No.3), and such failure is not caused or contributed
to by the Developer; or
(b) the Agency does not tender conveyance of the
Site or possession thereof, in the manner and condition, and by
the date provided in this Agreement, and any such failure shall
35
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not be cured within thirty (30) days after the date of written
demand therefor by the Developer; then this Agreement may, at the
option of the Developer, be terminated by written notice thereof
to the Agency. Upon such termination, neither the Agency nor the
Developer shall have any further rights against or liability to
the other with respect to the Site. In the event of the failure
or default by the Agency with respect to any event set forth in
Section 611(a) or 611(b) above, said right of termination of this
Agreement, all monies or documents deposited by any party into
escrow shall be returned to the party making such deposit.
4. [612] Termination by the Agency
In the event that prior to the Conveyance:
( a) The Developer (or successor in interest)
assigns or attempts to assign the Agreement or any rights therein
or in the Site in violation of this Agreement; or
(b) The Developer does not submit certificates of
insurance, construction plans, drawings and related documents as
required by this Agreement, in the manner and by the dates
respectively provided in this Agreement therefor, any such default
or failure shall not be cured within thirty (30) days after the
date of written demand therefor by the Agency; or
(c) Any Conditions Precedent are not satisfied by
the time established therefor in the Schedule of Performance
(Attachment No.3); then this Agreement may at the option of the
Agency, be terminated by the Agency by written notice thereof to
the Developer. Upon such termination, neither the Agency nor the
Developer shall have any further rights against or liability to
the other. Upon termination of this Agreement, all monies or
36
DAB/.../Ga.ea.agr
July 9. 1992
1 documents deposited by any party into escrow shall be returned to
2 the party making such deposit.
3 F. [613] Remedies of the Agency and the Developer
4 for Default After Passage of Title and Prior
5 to Completion of Construction
6 1. [614] Damages
7 After the conveyance and prior to the recordation
8 of a Certificate of Completion with respect to all of the
9 Developer Improvements, if either the Developer or the Agency
10 defaults with regard to any of the provisions of this Agreement,
11 the non-defaulting party shall serve written notice of such
12 default upon the defaulting party with a copy to the remaining
13 party. If the default is not cured by the defaulting party within
14 thirty (30) days after service of the notice of default, the
15 defaul ting party shall be liable to the other for any damages
16 caused by such default.
17 2. [615] Action for Specific Performance
18 If either the Developer or the Agency defaults
19 under any of the provisions of this Agreement after the conveyance
20 of title and prior to the recordation of a Certificate of
21 Completion for the improvements and development to be made
22 thereon, the non-defaulting party shall serve written notice of
23 such default upon the defaulting party with a copy to the
24 remaining party. If the default is not commenced to be cured by
25 the defaulting party within thirty (30) days after service of the
26 notice of default, the non-defaulting party at its option may
27 institute an action for specific performance of the terms of this
28 Agreement.
DAB/.../G.....agr
37
July 9. 1992
.
1 3. [616] Reentry and Revesting of Title in the
2 Agency
3 The Agency has the additional right, at its
4 option, to reenter and take possession of the Site, with all
5 improvements thereon, and terminate and revest in the Agency the
6 estate conveyed to the Developer if after conveyance of title and
7 prior to the issuance of the Certificate of Completion pursuant to
8 Section 320, the Developer (or its successors in interest) shall:
9 1. Fail, within thirty (30) days after the date of
10 recordation of the Grant Deed (Attachment No.6),
11 to commence construction on the Site of the
12 Developer Improvements in conformity with plans
13 and specifications which are approved in the
14 manner required by this Agreement; or
15 2. Abandon or substantially suspend construction of
16 the Developer Improvements in conformity with
17 plans and specifications which are approved in
18 the manner required by this Agreement; or
19 3. Fail to complete construction of the Developer
20 Improvements to the condition required for the
21 issuance of a Certificate of Completion pursuant
22 to Section 320 wi thin the time required by the
23 SChedule of Performance (Attachment No.3); or
24 4. Transfer or suffer any involuntary transfer of
25 the Site in violation of this Agreement.
26 III
27 I I I
28 I I I
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July 9. 1992
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All time periodS stated in this Section 616,
Paragraphs 1 and 2 above and elsewhere in this Agreement are
subject to extension by force majeure as more particularly
provided in Section 503 above.
Such right to reenter, terminate and revest shall
be subject to and be limited by and shall not defeat, render
invalid or limit:
1. Any mortgage or deed of trust permitted by this
Agreement; or
2. Any rights or interests provided in this
Agreement for the protection of the holders of
such mortgages or deed of trust.
Upon the revesting in the Agency of title to the
Site as provided in this Section 616, the Agency shall, pursuant
to its responsibilities under state law, use its best efforts to
resell the Site as soon and in such manner as the Agency shall
find feasible and consistent with the objectives of such law and
of the Redevelopment Plan, as it may be amended, to a qualified
and responsible party or parties (as determined by the Agency) who
will assume the obligation 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 such Site or part thereof in the Redevelopment Plan.
Upon such resale of the Site, the proceeds thereof shall be
applied:
1.
First, to satisfy the loan of the construction
lender, then to reimburse the Agency, on its own
behalf or on behalf of the City, for all costs
39 July 9. 1992
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DAB/.e./G......gr
and expenses incurred by the Agency including,
but not limited to, any expenditures by the
Agency or the City in connection with the
recapture, management and resale of the Site or
part thereof (but less any income derived by the
Agency from the Site or part thereof in
connection with such management); all taxes,
assessments and water or sewer charges with
respect to the Site or part thereof which the
Developer has not paid (or, in the event the Site
is exempt from taxation or assessment or such
charges during the period of ownership thereof by
the Agency, an amount, if paid, equal to such
taxes, assessments, or charges as would have been
payable if the Site were not so exempt); any
payments made or necessary to be made to
discharge any encumbrances or liens existing on
the Site or part thereof at the time of revesting
of title thereto in the Agency, or to discharge
or prevent from attaching or being made any
subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer,
its successors or transferees; any expenditures
made or obligations incurred with respect to the
making or completion of the improvements or any
part thereof on the Site, or part thereof; and
any amounts otherwise owing the Agency and its
successors or transferees; and
40
July 9. 1992
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2.
Second, to reimburse the Developer or its
successor or transferee (if applicable), up to
the amount equal to the sum of ( a ) the cost
incurred for the acquisition and development of
the Site and for the improvements existing on the
Site at the time of the entry and repossession,
less (b) any gains or income withdrawn or made by
the Developer from the Site or the improvements
thereon.
Any balance remaining after such reimbursements
shall be retained by the Agency as its property.
The rights established in this Section 616 are to
be interpreted in light of the fact that the Site was conveyed to.
the Developer for development, and not for speculation in real
property.
VII. [700] SPECIAL PROVISIONS
A. [701] Submission of Documents to Agency for
Approval
Whenever this Agreement requires Developer to submit
plans, drawings or other documents to Agency for approval, which
shall be deemed approved if not acted on by Agency wi thin the
specified time, said plans, drawings or other documents shall be
accompanied by a letter stating that they are being submitted and
will be deemed approved unless rejected by Agency within the
stated time. If there is not a time specified herein for such
Agency action, Developer may submit a letter requiring Agency
approval or rejection of documents within thirty (30) days after
submission to Agency or such documents shall be deemed approved.
41
DAB/.e./G.....agr
July 9. 1992
1 B. [702] Successors In Interest
2 The terms, covenants, conditions and restrictions of
3 this Agreement shall extend to and shall be binding upon and inure
4 to the benefit of the heirs, executors, administrators, successors
5 and assigns of Developer.
6 Upon the termination of the restrictions imposed by
7 Section 107 of this Agreement, which terminate upon the issuance
8 by Agency of a Certificate of Completion with respect to all of
9 the Developer Improvements pursuant to this Agreement, all of the
10 terms, covenants, conditions and restrictions of this Agreement
11 which do not terminate upon the issuance of such Certificate of
12 Completion shall be deemed to be, and shall, constitute terms,
13 covenants, conditions and restrictions running with the land.
14 VIII. [800] ENTIRE AGREEMENT, WAIVERS
15 This Agreement is executed in three (3) duplicate originals,
16 each of which is deemed to be an original. This Agreement
17 includes pages 1 through 43 and Attachments I through 6, which
18 constitute the entire understanding and agreement of the parties.
19 No private entity shall be deemed to be a third party
20 beneficiary with respect to any provisions of this Agreement.
21 This Agreement integrates all of the terms and conditions
22 mentioned herein or incidental hereto, and supersedes all
23 negotiations or previous agreements among the parties or their
24 predecessors in interest with respect to all or any part of the
25 subject matter hereof.
26 All waivers of the provisions of this Agreement must be in
27 writing by the appropriate authorities of Agency and Developer,
28 III
DAB/aea/Gaaea.agr
42
July 9. 1992
1 and all amendments hereto must be in writing by the appropriate
2 authorities of Agency and Developer.
3 Each individual signing below represents and warrants that
4 he has the authority to execute this Agreement on behalf of and
5 bind the party he purports to represent.
6 IX. [900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
7 This Agreement, when executed by Developer and delivered to
8 Agency, must be authorized, executed and delivered by Agency on or
9 before thirty (30) days after signing and delivery of this
10 Agreement by Developer or this Agreement shall be void, except to
11 the extent that Developer shall consent in writing to a further
12 extension of time for the authorization, execution and delivery of
13 this Agreement. The date of this Agreement shall be the date when
14 it shall have been signed by the Agency as evidenced by the date
15 first above shown.
16 I I I
17 I I I
18 I I I
19 I I I
20 III
21 I I I
22 III
23 III
24 III
25 III
26 III
27 I I I
28 III
DAB/.../ea.ea.agr
43
July 9. 1992
1
AGREEMENT RE: BXLLY ARDT, XNC.
2 (Res 92-316)
3 IN WITNESS WHEREOF, Agency, and Developer have executed this
4 Agreement on the day and date first above shown.
5 "Agency"
6 REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
7
8
9
By:
Execu ive Di ector
Kenneth J. Rend rson
APPROVED AS TO PROGRAM:
10
11 B'
12
fo.-
AP ROVED AS TO FORM
13 AND LEGAL CONTENT:
14
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"Developer"
BILLY ARDT, INC., doing business as
GAMES FOR FUN INTERNATIONAL and
BILLIARDS SURPLUS
By:
DAB/aea/Gaaea.agr
44
July 9. 1992
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1 STATE OF CALIFORNIA
2 COUNTY OF SAN BERNARDINO
)
)ss.
)
On this 23,d day of ~ ' in the
year /9~2, before me, the undersigned, a No ary ublic in and for
the State of California, personally appeared Kenneth J. Henderson
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this
instrument as the Executive Director of the REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO and acknowledged to me said Agency
executed it.
~ ~ . . . ~ & . . - - - - - A,
. . ALBERT JAY MUNOZ "
;: Comm. if 893257 ..
IAJII 8i1lHIllDINO COUNTY eft
G: NOTARY PUBLIC .CALlFOIHflA ...
(!J M1 CoMm. bpo. Oct. 1, 1"4 I
, .... .... .... - .... - - - .;. :.. .... - - - ...
(SEAL)
DAB/.../C.-e..agr
Si~N6~~ ~~
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July 9. 1992
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.
.
STATE OF CALIFORNIA
)
)ss.
)
COUNTY OF SAN BERNARDINO
On JULY 14. 1992 , before me, the
undersigned, a Notary Public in and for said State, personally
appeared DR IlEBFII.OE ------------------------------------------------- ,
personally known to me or proved to me on the basis of
satisfactory evidence to be the person------------ who executed the
wi thin instrument as the President aad--'&he------------------------ of
the corporation that executed the within instrument, and
acknowledged to me that such corporation executed the same.
~ ... ... ~ ~
E8
J..., .. .., .. .
... ... ... ~ ~ ... .... ....
ALBERT JAY MUNOZ Gl
Comm. II 893257 :0
W BERNARDIMO COUNn en
NOTARY PUBLIC-CALIFORNIA ~
M, Comm, [_liP, OCl. 1, 1994 I
....,..-.......,..~
~~Aj ~~
WITNESS my hand and official seal.
(SEAL)
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STAlE OF CALIFORNIA
COUNTY OF SAIl BEJl}(A]l])D10
On JULY 14. 1992 belore me,
personally appeared LYJIII llEIIFROE.
_______________________ personally known to me (or proved
--------------------
to me on the basis of satisfactory evidence) to be the person~ whose name~) is/aPe subscribed to the within
instrument and acknowledged to me thatfrle/she~executed the same in ~her/t+'tetf authorized capacity(teso),
and that by fris/herA+'teir signature(iio) on the instrument the person(.et or the entity upon behalf of which the
person(e) acted, executed the instrument. .: ... ... ... ... ... ~ER; ~y MUNOZ ... ~
;: eomm. f. 893257 :0
1M 8UJW;DlIIO toUIl1Y ..
WITNESS my hand and official seal. IOI'AIY PU8LIC-CAUfOlItlA ,..
~ CD ,.,CDII..bSl,0ct.1,l994 I
~/L._r;1u, J_JJJ--.-.-~.-----
Signalure~~, 0 (/ ~
(This area for official notarial seal)
AT.llRRT JAY lItIROZ
SECRKTAKY ---------------------------
DAB/.../~...gr
46
July 9. 1992
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ATTACHMENT NO. 2
PARCEL NO.1:
ALL THAT PORTION OF BLOCK 8, J.W. WATERS SUBDIVISION OF BLOCKS 7,
8, 9 AND 10, OF THE TOWN OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 OF
MAPS, PAGE 47, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF LOT 12, BLOCK 8, 131.33
FEET EAST OF THE SOUTHWEST CORNER OF SAID LOT 12 (SAID POINT OF
BEGINNING BEING THE SOUTHEAST CORNER OF THE LANDS CONVEYED BY
JAMES MC NAIR PAVING COMPANY TO CILIA ROSE, BY DEED OF DATED
DECEMBER 1, 1923, AND RECORDED IN BOOK 826, PAGE 175 OF DEEDS),
THENCE NORTH ALONG THE EAST LINE OF SAID LANDS CONVEYED TO SAID
ROSE, AND SAID LINE EXTENDED, 186.2 FEET, MORE OR LESS, TO THE
NORTH LINE OF LOT 11, BLOCK 8; THENCE EAST ALONG THE NORTH LINES
OF SAID LOT 11 AND THE UNNUMBERED LOT OR PORTION OF SAID BLOCK 8,
268.67 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF LOT 13,
BLOCK 8, THENCE SOUTH ALONG THE WEST LINE OF SAID LOT 13; AND THE
WEST LINE OF LOT 14 OF SAID BLOCK. 139.29 FEET, MORE OR LESS, TO
THE NORTHWEST CORNER OF THE SOUTH ONE-HALF OF SAID LOT 14; THENCE
NORTH 89 DEGREES 53 MINUTES WEST ALONG THE EXTENSION (WESTERLY) OF
THE NORTH LINE OF SAID SOUTH ONE-HALF OF SAID LOT 14, 10.55 FEET;
THENCE SOUTH 0 DEGREES 04 MINUTES EAST, 46.43 FEET, MORE OR LESS.
TO THE WESTERLY EXTENSION OF THE SOUTH LINE OF SAID LOT 14; THENCE
WEST ALONG SAID SOUTH LINE OF SAID WESTERLY EXTENSION PORTION OF
SAID BLOCK, 258.12 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142 IN OFFICIAL RECORDS.
PARCEL NO.2:
ALL THAT PORTION OF BLOCK 8, J.W. WATERS SUBDIVISION OF BLOCKS 7,
8, 9 AND 10, OF THE TOWN OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 OF
MAPS, PAGE 47, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 149.6 FEET NORTH OF THE SOUTHWEST CORNER OF
SAID BLOCK 8; THENCE NORTH 36.5 FEET TO AN ALLEY; THENCE EAST
298.6 FEET TO THE NORTHWEST CORNER OF LOT 19 OF SAID BLOCK; THENCE
SOUTH ALONG THE WEST LINE OF SAID LOT 19, 36.5 FEET TO THE
NORTHEAST CORNER OF THE LOT MARKED "SCHOOL LOT" ON SAID MAP;
THENCE WEST ALONG THE NORTH LINE OF SAID "SCHOOL LOT", 298.6 FEET
TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142, IN OFFICIAL RECORDS.
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PARCEL NO.3:
LOT 2, BLOCK 8, CITY OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF
MAPS, PAGE 1, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
SAID PROPERTY IS SHOWN AS "SCHOOL LOT" ON THE MAP OF J.W. WATERS
SUBDIVISION OF BLOCKS 7, 8, 9 AND 10, OF THE TOWN OF SAN
BERNARDINO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 6 OF MAPS, PAGE 47, RECORDS OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142 OF OFFICIAL RECORDS.
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ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
Execution of Agreement
by Agency. Agency
shall approve and
execute this
Agreement, and shall
deliver one (1) copy
thereof to Developer.
Not later than thirty (30)
days after the date of
execution and submission of
three ( 3 ) copies of this
Agreement to Agency by
Developer.
Open Escrow.
Developer shall
provide a deposit of
lOt ($22,500) of the
purchase to open
escrow.
Not later than 60 days after
execution of Agreement.
Provide Certificates
of insurance.
Developer shall
provide the required
Certificates of
insurance.
Not later than ninety (90)
days after the effective
date of this Agreement.
Obtain Design Review
Approval. Agency and
Ci ty approve Design
Concept Drawings where
required. (sufficient
time should be allowed
for possible initial
denial by either
Agency or City).
Obtain Bidding and
Selection of
Contractor Process
Approval. Agency
approves process for
bidding and selection
of contractor.
Not later than one-hundred
twenty (120) days after the
effective date of this
Agreement.
Not later than one hundred
fifty (150) days after the
effective date of this
Agreement.
Submit Completed
Construction Plans.
Developer will submit
completed construction
or remodeling and all
other plans and
documents required by
Section 304.
Not later than two hundred
ten ( 210 ) days after the
effective date of this
Agreement.
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Obtain plan check
approval, and obtain
bUilding permits,
Developer shall obtain
necessary plan check
approval, and obtain
all building permits.
Commence Construction
and RemOdeling.
Commence actual
construction and
remodeling.
Complete Construction
and RemOdeling.
Developer shall
complete construction
or remodeling, move
onto Site and obtain a
Certificate of
Completion.
Close Escrow. Pay all
fees into and close
escrow. Ti tie to be
conveyed to Developer.
Upon forty five (45)
days written notice to
Agency, Developer may
opt to close at any
time fOllowing receipt
of all planning
approvals and all
building permits, from
the City of San
Bernardino, but not
later than the receipt
of the Certificate of
Completion.
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Not later than three hundred
thirty (330) days after the
effective date of this
Agreement.
Within three hundred sixty
(360) days after close of
escrow.
Not later than seven hundred
twenty (720) days from the
effective date of this
Agreement.
Not later than seven hundred
fifty (750) days after the
effective date of this.
Agreement.
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ATTACHMENT NO. 4
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is specifically delineated
(Attachment NO.1) and the Legal Description
pursuant to Section 103 of this Agreement.
on the Site Map
(Attachment No.2)
II. DEVELOPMENT
The Developer
business providing
indoor recreational
shall develop the Site with a light industry
assembly, restoration and distribution of
equipment.
Developer shall complete construction and remodel of all of
the improvements set forth in this Scope of Development
(Attachment No.4) to be constructed in one phase. All of the
improvements to be provided by the Developer on the Site
constitute the "Basic Developer Improvements." The Basic
Developer Improvements and all those off-site improvements, which
are required in connection with this development (if any), and
which are required to be provided by the Developer (the "Off-Site
Improvements") together constitute the "Developer Improvements".
The Developer shall commence and complete the Developer
Improvements by the respective times established therefor in the
Schedule of Performance (Attachment No.3). Upon approval by City
and Agency, existing improvements may be deemed to meet the
requirements of this provision.
17 III. DEVELOPMENT STANDARDS
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The Developer Improvements shall be developed and maintained
in accordance with City specifications and requirements of the
City Engineer and the following development standards.
A. Signs. Signs shall be limited in size, subdued and
otherwise designed to contribute positively to the environment.
Signs identifying the building use will be permitted, but their
height, size, location, color, lighting and design will be subject
to Agency and City approval.
B. Screening. All outdoor storage of materials or
equipment shall be enclosed or screened to the extent and in the
manner required by the Agency and the City.
C. Landscaping. The Developer shall provide and maintain
landscaping wi thin the public rights-of-way and the proposed
public rights-of-way and within setback areas along all street
frontages and conforming with the Design Concept Drawings as
approved by the Agency.
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Landscaping shall consist of trees, shrubs and installation
of an automatic irrigation system adequate to maintain such plant
material. The type and size of trees to be planted, together
with a landscaping plan, shall be subject to approval by the
City's Planning Department prior to planting.
Upon approval by City and Agency existing landscaping may be
deemed to meet the requirements of this provision.
D. Utilities. Sewer, drainage and utility lines, conduits
or systems shall not be constructed or maintained above the ground
level of the Site unless such installations are within approved
enclosed structures, and shall conform to requirements of the City
of San Bernardino or other applicable governmental or private
agency having jurisdiction of the work. If required to be
installed, storm drainage for all hard surfaced areas shall be
drained or may be sheet flowed to storm sewers. No drainage shall
flow across public sidewalks. All non polluted waste water, such
as waste air conditioning water, shall be drained to the storm or
sanitary drainage systems as permitted by local codes.
E. Painting. All exterior walls shall be painted by the
Developer with color(s) subject to approval by the City's Planning
Department.
F. Beautification Improvements. Developer shall provide
beautification improvements, subject to the approval of the
Agency, to upgrade the appearance of the property at a cost of at
least Fifty Thousand Dollars. These Beautification Improvements
may include landscaping improvements, new paint, signage, fencing,
walls and other facade treatments: but must be in addition to
those improvements required to bring the building up to current
Code standards, landscape specifications, and parking and sign
requirements pursuant to the Development Code as adopted by City
Council on May 19, 1992, as amended. Included within these
Beautification Improvements is the actual cost of purchasing and
installing a fire sprinkler system to code requirements.
IV. PUBLIC IMPROVEMENTS AND UTILITIES
The Developer, at its own cost and expense, shall provide or
cause to be provided all public improvements which are specified
in the City's conditions of approval to Developer's development of
the Developer Improvements.
Those of the improvements required to be provided pursuant
to this part IV of the Scope of Development (Attachment No.4)
constitute the "Off-Site Improvements."
III
III
III
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V. DEMOLITION AND SOILS
Developer assumes all responsibility for surface and
subsurface conditions at the Site, and the suitability of the Site
for the Developer Improvements. If the surface and subsurface
conditions are not entirely suitable for such development and use,
Developer shall at its cost take all actions necessary to render
the Site entirely suitable for such development. Developer has
undertaken all investigation of the Site it has deemed necessary
and has not received or relied upon any representations of Agency,
the City, or their respective officers, agents and employees.
Developer shall undertake at its cost any and all demolition
required in connection with the development of Developer
Improvements.
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ATTACHMENT NO. 5
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
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[Space above for Recorder.]
CERTIFICATE OF COMPLETION FOR
CONSTRUCTION AND DEVELOPMENT
WHEREAS, pursuant to that certain Disposi tion and
Development Agreement entered into between the Agency and Billy
Ardt, Inc., a Delaware Corporation, doing business as Games For
Fun International and Billiards International ("Developer") dated
as of ("DDA"), relating to that certain
real property described on Exhibit 1, attached hereto and
incorporated herein, the Developer is entitled to the issuance of
a Certificate of Completion upon the completion of those
improvements required by the DDA to be developed by the Developer
(the "Developer Improvements"): and
WHEREAS, such certificate shall be conclusive determination
of satisfactory completion of the construction required by the
DDA: and
WHEREAS, the Agency has conclusively determined that the
construction on the above described real property required by the
DDA has been satisfactorily completed:
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NOW THEREFORE,
1. The Agency does hereby certify that the construction or
remodeling of the Developer Improvements has been fully and
satisfactorily performed and completed.
2. Nothing contained in this instrument shall modify in
any other way other provisions of the DDA. All executory
obligations of the Developer pursuant to the DDA shall remain in
full force and effect.
IN WITNESS WHEREOF, the Agency has executed this
certificate this day of , 19___
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
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STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN BERNARDINO )
On this day of , 19 before me,
the undersigned, a Notary Public in and for said State, personally
appeared , known to me
(or proved to me on the basis of satisfactory evidence) to be the
person who executed this instrument as the Executive Director of
the Redevelopment Agency of the City of San Bernardino and
acknowledged to me that the Redevelopment Agency of the City of
San Bernardino executed it.
Signature of Notary Public
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EXHIBIT 1
That certain parcel of land in the City of San Bernardino,
County of San Bernardino, State of California, described as
follows:
PARCEL NO.1:
ALL THAT PORTION OF BLOCK 8, J.W. WATERS SUBDIVISION OF BLOCKS 7,
8, 9 AND 10, OF THE TOWN OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 OF
MAPS, PAGE 47, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE SOUTH LINE OF LOT 12, BLOCK 8, 131.33
FEET EAST OF THE SOUTHWEST CORNER OF SAID LOT 12 (SAID POINT OF
BEGINNING BEING THE SOUTHEAST CORNER OF THE LANDS CONVEYED BY
JAMES MC NAIR PAVING COMPANY TO CILIA ROSE, BY DEED OF DATED
DECEMBER 1, 1923, AND RECORDED IN BOOK 826, PAGE 175 OF DEEDS),
THENCE NORTH ALONG THE EAST LINE OF SAID LANDS CONVEYED TO SAID
ROSE, AND SAID LINE EXTENDED, 186.2 FEET, MORE OR LESS, TO THE
NORTH LINE OF LOT 11, BLOCK 8; THENCE EAST ALONG THE NORTH LINES
OF SAID LOT 11 AND THE UNNUMBERED LOT OR PORTION OF SAID BLOCK 8,
268.67 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF LOT 13,
BLOCK 8, THENCE SOUTH ALONG THE WEST LINE OF SAID LOT 13; AND THE
WEST LINE OF LOT 14 OF SAID BLOCK. 139.29 FEET, MORE OR LESS, TO
THE NORTHWEST CORNER OF THE SOUTH ONE-HALF OF SAID LOT 14; THENCE
NORTH 89 DEGREES 53 MINUTES WEST ALONG THE EXTENSION (WESTERLY) OF
THE NORTH LINE OF SAID SOUTH ONE-HALF OF SAID LOT 14, 10.55 FEET;
THENCE SOUTH 0 DEGREES 04 MINUTES EAST, 46.43 FEET, MORE OR LESS
TO THE WESTERLY EXTENSION OF THE SOUTH LINE OF SAID LOT 14; THENCE
WEST ALONG SAID SOUTH LINE OF SAID WESTERLY EXTENSION PORTION OF
SAID BLOCK, 258.12 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142 IN OFFICIAL RECORDS.
PARCEL NO.2:
ALL THAT PORTION OF BLOCK 8, J.W. WATERS SUBDIVISION OF BLOCKS 7,
8, 9 AND 10, OF THE TOWN OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 OF
MAPS, PAGE 47, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 149.6 FEET NORTH OF THE SOUTHWEST CORNER OF
SAID BLOCK 8; THENCE NORTH 36.5 FEET TO AN ALLEY; THENCE EAST
298.6 FEET TO THE NORTHWEST CORNER OF LOT 19 OF SAID BLOCK; THENCE
SOUTH ALONG THE WEST LINE OF SAID LOT 19, 36.5 FEET TO THE
NORTHEAST CORNER OF THE LOT MARKED "SCHOOL LOT" ON SAID MAP;
THENCE WEST ALONG THE NORTH LINE OF SAID "SCHOOL LOT", 298.6 FEET
TO THE POINT OF BEGINNING.
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EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142, IN OFFICIAL RECORDS.
PARCEL NO.3:
LOT 2, BLOCK 8, CITY OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF
MAPS, PAGE 1, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
SAID PROPERTY IS SHOWN AS .SCHOOL LOT" ON THE MAP OF J.W. WATERS
SUBDIVISION OF BLOCKS 7, 8, 9 AND 10, OF THE TOWN OF SAN
BERNARDINO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 6 OF MAPS, PAGE 47, RECORDS OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142 OF OFFICIAL RECORDS.
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ATTACHMENT NO. 6
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
AND MAIL TAX STATEMENTS TO:
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[Space above for recorder]
GRANT DEED
For a valuable consideration receipt of which is hereby
acknowledged,
The SAN BERNARDINO REDEVELOPMENT AGENCY, a public body,
corporate and pOlitic, of the State of California, herein called
"Grantor," acting to carry out the Redevelopment Plan, herein
called "Redevelopment Plan," for the uptown Redevelopment Project,
herein called "Project", under the Community Redevelopment Law of
California, hereby grants to BILLY ARDT, INC., a Delaware
Corporation, doing business as Games For Fun International and
Billiards Surplus, herein called "Grantee", the real property
hereinafter referred to as "Property", described in Exhibit "A"
attached hereto and incorporated herein, subject to the existing
easements, restrictions and covenants or record described herein.
1. Said Property is conveyed in accordance with and
subject to the Redevelopment Plan which was approved and adopted
by Ordinance No. MC-52? of the Common Council of the City of San
Bernardino, and that certain Disposition and Development
Agreement, between Grantor and Grantee dated
(the "DDA"), a copy of which is on file with the Grantor at its
offices as a publiC record and which is incorporated herein by
reference.
2. The Grantee hereby covenants and agrees, for itself and
its successors and assigns, that during construction and
thereafter, the Grantee shall not use the Property for other than
the uses specified in the Redevelopment Plan and the DDA. No use
other than as a light industrial business and associated uses
shall be allowed on the Property without the prior written
approval of the Agency (Which the Agency may grant or deny at its
sole discretion). The Grantee covenants to operate uses on the
Property in conformity with all applicable federal, state and
local laws.
3. The Property is conveyed to grantee at a purchase
price, herein called "Purchase Price", determined in accordance
with the uses permitted. Therefore, Grantee hereby covenants and
agrees for itself, its successors, its assigns, and every
successor in interest to the Property that the Grantee, such
successors and such assigns, shall develop, maintain, and use the
Property only as follows:
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(a) Grantee shall develop the Property as required by
the DDA, and with parking conforming to the requirements of the
San Bernardino City Code.
(b) Grantee shall maintain the improvements on the
Property and shall keep the Property free from any accumulation of
debris or waste materials. Grantee shall also maintain the
required landscaping in a healthy condition.
If, at any time, Grantee fails to maintain the said
landscaping, and said condition is not corrected after expiration
of thirty (30) days from the date of written notice from the
Grantor, either the Grantor, or the City of San Bernardino may
perform the necessary maintenance and Grantee shall pay such costs
as are reasonably incurred for such maintenance. Either the
Grantor or the City of San Bernardino may place a lien on the
property for the costs incurred in providing such maintenance.
(c) Grantee shall only sell, transfer or convey the
Property as a whole and is not permitted to subdivide the Property
for the duration of the Redevelopment Plan without the prior
approval of the Grantor, or the City of San Bernardino if the
Agency is no longer in existence at the date of request for
approval.
4. Prior to recordation of a Certificate of Completion
issued by the Grantor for the improvements to be constructed on
the Property:
(a) The Grantee shall not make any sale, transfer,
conveyance, or assignment of the Property or any part thereof or
any interest therein, without the prior written consent of the
Grantor except as permitted by paragraph S(b) of this Grant Deed.
In the event that the Grantee does sell, transfer, convey, or
assign any part of the Property, buildings, or structures thereon
prior to the recordation of a Certificate of Completion, the
Grantor shall be entitled to increase the Purchase Price paid by
the Grantee by the amount that the consideration payable for such
assignment or transfer is in excess of the Purchase Price paid by
the Grantee, plus the cost of improvements, including carrying
charges. The consideration payable for the assignment or
transfer, to the extent it is in excess of the amount so
authorized, shall belong and be paid to the Grantor and until so
paid the Grantor shall have a lien on the Property and any part
involved for such amount. This prohibition shall not be deemed to
prevent the granting of easements or permits to facilitate the
development of the Property.
(b) The Grantee shall not place or suffer to be placed
on the Property any lien or encumbrance other than mortgages,
deeds of trust, or any other form of conveyance required for
financing of the acquisition of the Property, the construction of
improvements on the Property, and any other expenditures necessary
and appropriate to develop the Property. The Grantee shall not
enter into any such conveyance for financing without prior written
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approval of Grantor. No approval will be given for a conveyance
of the property to finance the construction or improvements on
real property other than the real property described in Exhibit A
hereto.
5.
issued by
Property:
Prior to recordation of any Certificate of Completion
Grantor for the improvements to be constructed on the
(a) The Grantor shall have the right at its option to
reenter and take possession of the Property hereby conveyed with
all improvements thereon and to terminate and revest in the
Grantor the Property hereby conveyed to the Grantee if the Grantee
(or its successors in interest) shall:
(i) Fail to commence the construction of the
improvements as required by paragraph 3(a)
of this Grant Deed for.a period of 45 days
after written notice thereof from the
Grantor, provided that Grantee shall not
have obtained an extension or postponement
to which Grantee may be entitled; or
(ii) Abandon or substantially suspend
construction of the improvements for a
period of 45 days after written notice
thereof from the Grantor, provided that
Grantee shall not have obtained an extension
or postponement to which Grantee may be
entitled; or
(iii) Transfer, or suffer an involuntary transfer
of the Property or any part thereof in
violation of this Grant Deed.
(b)
revest shall be
render invalid,
The right to reenter, repossess, terminate and
subject to and be limited by and shall not defeat,
or limit:
( i ) Any mortgage or deed of trust or other
security interest permitted by paragraph
4(b) of this Grant Deed; or
( ii) Any rights or interests provided for the
protection of the holders of such mortgages
or deeds of trust or other securi ty
interests.
(c) The right to reenter, repossess, terminate and
revest with respect to the Property shall terminate when the
Certificate of Completion regarding the improvements to be
constructed under paragraph 3 on the Property has been recorded by
the Grantor.
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(d) In the event title to the Property or any part
thereof is revested in the Grantor as provided in this paragraph
5, the Grantor shall, pursuant to its responsibilities under State
law, use its best efforts to resell the Property or any part
thereof as soon and in such manner as the Grantor shall find
feasible and consistent with the objectives of such law and of the
Redevelopment Plan to a qualified party or parties (as determined
by the Grantor) who will assume the obligation of making or
completing the improvements or such other improvements in their
stead as shall be satisfactory to the Grantor and in accordance
with the uses specified for such Property or part thereof in the
Redevelopment Plan. Upon such resale of the Property the proceeds
thereof shall be applied:
(i) First, to reimburse the Grantor, on its own
behalf or on behalf of the City of San
Bernardino, for all costs and expenses
incurred by the Grantor, including but not
limited to, salaries to personnel engaged in
such action (but excluding Grantor's general
overhead expense), in connectj,on with the
recapture, management, and resale of the
Property or part thereof in connection with
such management); all taxes, assessments,
and water and sewer charges with respect to
the Property or part thereof ( or, in the
event the Property is exempt from taxation
or assessment or such charges during the
period of ownership thereof by the Grantor),
an amount, if paid, equal to such taxes,
assessments, or charges, as determined by
the County assessing official, as would have
been payable if the Property were not so
exempt; any payments made or necessary to be
made to discharge any encumbrances or liens
existing on the Property or part thereof at
the time of revesting of title thereto in
the Grantor or to discharge or prevent from
attaching or being made any subsequent
encumbrances or liens due to obligations,
defaults, or acts of the Grantee, its
successors or transferees; any expenditures
made or obligations incurred with respect to
the making or completion of the improvements
or any part thereof on the Property or part
thereof; and any amounts otherwise owed to
the Grantor by the Grantee and its successor
or transferee; and
(ii) Second, to reimburse the Grantee, its
successor or transferee, up to the amount
equal to the sum of (1) the Purchase Price
paid to the Grantor by the Grantee for the
Property (or allocable to the part thereof);
(2) the costs incurred for the development
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of the Property and for the improvements
existing on the Property at the time of
reentry and repossession, less (3) any gains
or income withdrawn or made by the Grantee
from the Property or the improvements
thereon.
(iii) Any balance
reimbursements
Grantor.
remaining after such
shall be retained by the
(e) To the extent that this right of reverter involves
a forfeiture, it must be strictly interpreted against the Grantor,
the party for whose benefit it is created. This right is to be
interpreted in light of the fact that the Grantor hereby conveys
the Property to the Grantee for development and not for
speculation in real property.
6. The Grantee agrees for itself and any successor in
interest not to discriminate upon the basis of race, color, creed
or national origin in the sale, lease, or rental or in the use or
occupancy of the Property hereby conveyed or any part thereof.
Grantee 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, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the Property, nor shall the Grantee 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, sub-tenants, sublessees, or vendees in the
Property. The foregoing covenants shall run with the land.
7. No violation or breach of the covenants, conditions,
restrictions, proviSions or limitations contained in this Grant
Deed shall defeat or render invalid or in any way impair the lien
or charge of any mortgage or deed of trust or security interest
permitted by paragraph 4(b) of this Grant Deed; provided,however,
that any subsequent owner of the Pzoperty shall be bound by such
remaining covenants, conditions, restrictions, limitations and
provisions, whether such owner's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
8. All covenants contained in this Grant Deed shall be
covenants running with the land. The covenants contained in
paragraphs 4 and 5 and Grantee's obligation to develop the
improvements on the Property provided in paragraph 3(a) of this
Grant Deed shall be released upon recordation of a Certificate of
Completion issued by Grantor for the Property. The obligation to
use the Property in conformity with the Redevelopment Plan shall
terminate on June 15, 2026 (the expiration date of the
Redevelopment Plan). Every covenant contained in this Grant Deed
against discrimination contained in paragraph 6 of this Grant Deed
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shall remain in perpetuity.
9. All covenants without regard to technical
classification or designation shall be binding for the benefit of
the Grantor, and such covenants shall run in favor of the Grantor
for the entire period during which such covenants shall be in
force and effect, without regard to whether the Grantor is or
remains an owner of any land or interest therein to which such
covenants relate. The Grantor, in the event of any breach of any
such covenants, shall have the right to exercise all the rights
and remedies and to maintain any actions at law or suits in equity
or other proper proceedings to enforce the curing of such breach.
10. Both before and after recordation of a Certificate of
Completion, both Grantor, its successors and assigns and the
successors and assigns of Grantee in and to all or any part of the
fee title to the Property shall have the right to consent and
agree to changes in, or to eliminate in whole or in part, any of
the covenants, easements or restrictions contained in this Grant
Deed without the consent of any tenant, lessee, easement holder,
licenses, mortgagee, trustee, beneficiary under a deed of trust or
any other person or entity having any interest less than a fee in
the Property. The covenants contained in this Grant Deed, without
regard to technical classification shall not benefit or be
enforceable by any owner of any other real property within or
outside the Project Area, or any person or entity having any
interest in any other such real ty. Any amendments to the
Redevelopment Plan which change the uses or development permitted
on the Property, or otherwise change any of the restrictions or
controls that apply to the Property, shall require the written
consent of Grantee or the successors and assigns of Grantee in and
to all or any part of the fee title to the Property, but any such
amendment shall not require the consent of any tenant, lessee,
easement holder, licensee, mortgagee, trustee, beneficiary under
a deed of trust or any other person or entity having 'any interest
less than a fee in the Property.
11.
Grant Deed
and not as
Except for paragraph 5, the covenants contained in this
shall be construed as covenants running with the land
conditions which might result in forfeiture of title.
12. The Grantor makes no representations or warranties
concerning the Property, its suitability for the use intended by
Grantee, the condition of the building or other improvements, or
the surface or subsurface conditions of the property. The Grantee
takes the property "as is."
III
III
III
III
III
III
III
III
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IN WITNESS WHEREOF, the Grantor and Grantee have caused
this instrument to be executed on their behalf by their respective
officers hereunto duly authorized, this day of
, 1992.
SAN BERNARDINO REDEVELOPMENT AGENCY
BY:
ATTEST:
Secretary
The Grantee agrees to be bound by the covenants set
forth above.
BILLY ARDT, INC., doing business as
GAMES FOR FUN INTERNATIONAL and
BILLIARDS SURPLUS
BY:
KEN RENFROE
Its: President
BY:
LYNN RENFROE
Its: Secretary
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.
STATE OF CALIFORNIA
)
)ss.
)
COUNTY OF SAN BERNARDINO
On this day of , 19 before me,
the undersigned, a Notary Public in and for said State, personally
appeared , known to me
(or proved to me on the basis of satisfactory evidence) to be the
person who executed this instrument as the Executive Director of
the Redevelopment Agency of the City of San Bernardino and
acknowledged to me that the Redevelopment Agency of the City of
San Bernardino executed it.
Signature of Notary Public
(SEAL)
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.
. "
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL NO.1:
ALL THAT PORTION OF BLOCK 8, J.W. WATERS SUBDIVISION OF BLOCKS 7,
8, 9 AND 10, OF THE TOWN OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 OF
MAPS, PAGE 47, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS: '
BEGINNING AT A POINT ON THE SOUTH LINE OF LOT 12, BLOCK 8, 131.33
FEET EAST OF THE SOUTHWEST CORNER OF SAID LOT 12 (SAID POINT OF
BEGINNING BEING THE SOUTHEAST CORNER OF THE LANDS CONVEYED BY
JAMES MC NAIR PAVING COMPANY TO CILIA ROSE, BY DEED OF DATED
DECEMBER 1, 1923, AND RECORDED IN BOOK 826, PAGE 175 OF DEEDS),
THENCE NORTH ALONG THE EAST LINE OF SAID LANDS CONVEYED TO SAID
ROSE, AND SAID LINE EXTENDED, 186.2 FEET, MORE OR LESS, TO THE
NORTH LINE OF LOT 11, BLOCK 8; THENCE EAST ALONG THE NORTH LINES
OF SAID LOT 11 AND THE UNNUMBERED LOT OR PORTION OF SAID BLOCK 8,
268.67 FEET, MORE OR LESS, TO THE NORTHWEST CORNER OF LOT 13,
BLOCK 8, THENCE SOUTH ALONG THE WEST LINE OF SAID LOT 13; AND THE
WEST LINE OF LOT 14 OF SAID BLOCK. 139.29 FEET, MORE OR LESS, TO
THE NORTHWEST CORNER OF THE SOUTH ONE-HALF OF SAID LOT 14; THENCE
NORTH 89 DEGREES 53 MINUTES WEST ALONG THE EXTENSION (WESTERLY) OF . .
THE NORTH LINE OF SAID SOUTH ONE-HALF OF SAID LOT 14, 10.55 FEET;
THENCE SOUTH 0 DEGREES 04 MINUTES EAST, 46.43 FEET, MORE OR LESS
TO THE WESTERLY EXTENSION OF THE SOUTH LINE OF SAID LOT 14; THENCE
WEST ALONG SAID SOUTH LINE OF SAID WESTERLY EXTENSION PORTION OF
SAID BLOCK, 258.12 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142 IN OFFICIAL RECORDS.
PARCEL NO.2:
ALL THAT PORTION OF BLOCK 8, J.W. WATERS SUBDIVISION OF BLOCKS 7,
8, 9 AND 10, OF THE TOWN OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 6 OF
MAPS, PAGE 47, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 149.6 FEET NORTH OF THE SOUTHWEST CORNER OF
SAID BLOCK 8; THENCE NORTH 36.5 FEET TO AN ALLEY; THENCE EAST
298.6 FEET TO THE NORTHWEST CORNER OF LOT 19 OF SAID BLOCK; THENCE
SOUTH ALONG THE WEST LINE OF SAID LOT 19, 36.5 FEET TO THE
NORTHEAST CORNER OF THE LOT MARKED "SCHOOL LOT" ON SAID MAP;
THENCE WEST ALONG THE NORTH LINE OF SAID "SCHOOL LOT", 298.6 FEET
TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142, IN OFFICIAL RECORDS.
Page 1 of 2
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. .
.
PARCEL NO.3:
LOT 2, BLOCK 8, CITY OF SAN BERNARDINO, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF
MAPS, PAGE 1, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
SAID PROPERTY IS SHOWN AS "SCHOOL LOT" ON THE MAP OF J.W. WATERS
SUBDIVISION OF BLOCKS 7, 8, 9 AND 10, OF THE TOWN OF SAN
BERNARDINO, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 6 OF MAPS, PAGE 47, RECORDS OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE STATE OF
CALIFORNIA, BY DEED RECORDED OCTOBER 3, 1956, IN BOOK 4054, PAGE
142 OF OFFICIAL RECORDS.
Page 2 of 2
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