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RESOLUTION NO.
CDC 2000-5
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION APPROVING AMENDMENT NO. 1 TO THE
1999 DISPOSITION AND DEVELOPMENT AGREEMENT
(CALIFORNIA BIO MASS, INC.) AND EXTENDING THE
COMPLETION OF THE DUE DILIGENCE PERIOD TO A
NEW DATE.
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WHEREAS, the Redevelopment Agency of the City of San
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Bernardino
(the "Agency")
entered into that certain 1999
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Disposition and Development Agreement
(California Bio Mass,
Inc.) (the "Agreement") with California Bio Mass, Inc., a California
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corporation (the "Developer"), which relates to the sale and
disposition by the Agency of certain lands to the Developer in
consideration for the payment by the Developer of the sum of
$441,000.00, subject to the terms and conditions set forth in the
Agreement; and
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WHEREAS, despite its diligent efforts, the Developer has
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not been able to complete certain "Due Diligence Investigations" of
the Property, as these terms are defined in the Agreement, which
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relate to certain development project approvals; and
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WHEREAS, accordingly, the parties believe that an
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extension of the time in which the Developer may complete (or waive
the completion) of its Due Diligence Investigations, as relates to
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the Property, is indicated at this time as provided hereinbelow;
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CDe 2000-5
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING
AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
2 (CALIFORNIA BIO MASS, INC.) AND EXTENDING THE COMPLETION OF THE DUE
DILIGENCE PERIOD TO A NEW DATE.
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NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY
THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO,
AS FOLLOWS:
Section 1.
The facts set forth in the Recitals of
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this Resolution are true and correct.
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Section 2.
Based upon the record submitted at the
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meeting at which this Resolution was approved by the Commission, as
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the governing body of the Agency, the Commission hereby finds and
determines that the terms of Amendment No. 1 to the 1999
Disposition and Development Agreement (California Bio Mass, Inc.)
("Amendment No.1") are acceptable to the Commission. The
Commission is informed by the Developer that the terms of Amendment
No.1 are acceptable to it.
Section 3.
The Commission hereby approves and accepts
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Amendment No.1, as attached hereto as Attachment No.1., and
incorporated herein by this reference.
The Chairperson of the
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Commission and the Executive Director of the Agency are hereby
authorized and directed to execute Amendment No.1 on behalf of the
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Agency.
III
III
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III
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CDC 2000-5
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING
AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT AGREEMENT
2 (CALIFORNIA BIO MASS, INC.) AND EXTENDING THE COMPLETION OF THE DUE
DILIGENCE PERIOD TO A NEW DATE.
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I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Community Development Commission of the City of
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San Bernardino at a
j oint regular
meeting
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day of March
2000 , by the
thereof, held on the 6th
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following vote, to wit:
9 Commission AYES NAYS
ESTRADA x
10 LIEN y
MCGINNIS X
11 SCHNETZ
SUAREZ X
12 ANDERSON X
MILLER X
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ABSTAIN
ABSENT
X
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day of
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By:
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The foregoing Resolution is hereby approved this ~~
March
, 2000.
'{{L~
Valles, Chalrperson
ity Development Commission
City of San Bernardino
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,",,' -
CDC 2000-5
AMENDMENT dIl<frl\ll:n'J;'~1 .
THE 1999 DISPOSITION ANB....fl1HrnCh?IJ:'~E~GREEMENT
(CALIFORNIA BIi>M1fa;'Snm2J32
THIS AMENDMENT NO. 1 TO THE 1999 DISPOSITION AND DEVELOPMENT
AGREEMENT (the "Amendment No. I") is dated as of March 6, 2000, by
and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
a public body corporate and politic (the "Agency") and DAVID L.
HARDY AND MICHAEL J. HARDY, tenants in common, doing business as
CALIFORNIA BIO MASS, INC., a California corporation (the
"Developer"). The Agency and Developer hereby agree as follows:
--RECITALS--
1. The Developer and the Agency have previously entered into
that certain 1999 Disposition and Development Agreement (California
Bio Mass, Inc.) (the "Agreement") which relates to the sale and
disposition by the Agency of certain lands to the Developer in
consideration for the payment by the Developer of the sum of
$441,000.00, subject to the terms and conditions set forth in the
Agreement.
2. Despite its diligent efforts, the Developer has not been
able to complete certain "Due Diligence Investigations" of the
Property, as these terms are defined in the Agreement, relating to
certain development project approvals.
3. Accordingly, the parties believe that an extension of the
time in which the Developer may complete (or waive the completion)
of its Due Diligence Investigations, as relate to the Property, is
indicated, at this time, as provided hereinbelow.
NOW THEREFOR IN CONSIDERATION OF THE PROMISES OF THE PARTIES
THE DEVELOPER AND THE AGENCY HEREBY AGREE AS FOLLOWS:
Section 1.
The text of the Agreement is incorporated in full in this
Amendment No.1 by this reference. Unless the usage of a specific
term or phrase as set forth in this Amendment No. 1 may otherwise
require, the meaning of all defined words as used herein shall be
as provided in the Agreement.
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CDC 2000-5
Section 2.
As of the date of the approval of this Amendment No. 1 by the
governing board of the Agency and the full execution of this
Amendment No. 1 by the parties, there is no breach under the
Agreement, and both the Developer and the Agency declare that to
the best knowledge of each of them, there are no facts which with
the giving of notice and the passage of time would constitute a
default under the Agreement.
Section 3.
(a) As of the date of approval of this Amendment No.1, by the
governing board of the Agency, the Developer has accepted the
condition of title to the Property as provided in Section 2.13 of
the Agreement.
(b) As of the date of approval of this Amendment No. 1 by the
governing board of the Agency, the Developer has completed its
investigation of the matters covered in Section 2.09 (b) of the
Agreement as relates to the Property, and subject to the matters
covered in Section 2.09 (c) as relates to certain development
project approvals for the Project, the Developer represents and
warrants to the Agency that the Developer is prepared to deliver
its Due Diligence Approval Certificate to the Agency subject only
to the provisions of Section 2.15 (c) and Section 2.15 (d) of the
Agreement, as amended by this Amendment No.1.
Section 4.
Section 2.03(b) of the Agreement is hereby amended to read as
follows:
"(b) In the event that the Developer has not delivered its Due
Diligence Approval Certificate to the Agency and the Escrow
Holder by the applicable date indicated in Section 2.15(c) or
Section 2.15 (d), then in such event this Agreement shall
te~inate upon written notice to the Escrow Holder from either
the Agency or the Developer, whereupon the Deposit shall be
returned by the Escrow Holder to the Developer (less an amount
equal to the customary and reasonable escrow cancellation
charges payable to the Escrow Holder) without further or
separate instruction to the Escrow Holder, and the parties
shall each be relieved and discharged from all further
responsibility or liability under this Agreement."
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CDC 2000-5
Section 5.
Upon the approval of this Amendment No. 1 by the governing
board of the Agency and the full execution of this Amendment No. 1
by both of the parties hereto, no further extensions of time for
the completion of the Due Diligence Period shall be authorized by
the Executive Director under the provisions of Section 2.15(b) of
the Agreement.
Section 6.
Section 2.15 of the Agreement is hereby amended to add a new
subsection "(cl" to read as follows:
"(c) Upon the approval of Amendment No.1 to this Agreement by
the governing board of the Agency and the full execution of
Amendment No. 1 to this Agreement by both of the parties, the
Due Diligence Period of the Developer with respect to the
matters included in Section 2.09(d) of this Agreement shall be
extended to the first of the following dates to occur:
(i) Subject to (ii) and (iii), below, the close of the
business day on the fifteenth (15th) day following the
close of the public hearing and final action of the City
Planning Commission for its consideration and final
action on Conditional Use Permit No. 99-17; or
(ii) Subject to (iii), below, in the event that any
third-party may submit an appeal as provided in San
Bernardino Municipal Code Section 19.52.100 of the final
action of the City Planning Commission with respect to
Conditional Use Permit No. 99-17, then in such event the
Due Diligence Period shall be further extended to a date
which is one hundred (100) days following the close of
the public hearing of the City Council and its final
action in consideration of such appeal; or
(iii) August 1, 2000."
Section 7.
Section 2.15 of the Agreement is hereby amended to add a new
subsection "(d)" to read as follows:
"(d) Notwithstanding the provisions of Section 2.15(c), in the
event that on or before July 31, 2000, a third party may
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CDC 2000-5
initiate legal proceedings in a court of competent
jurisdiction to challenge or set aside the final action by the
City Council as provided in Section 2.15(c) (ii), then in such
event the Developer and the Agency may in the sole discretion
of each of them, jointly approve a further extension of the
Due Diligence Period to a date which is mutually acceptable to
the Developer and the Agency. The provisions of this Section
2.15(d) shall be applicable to the consideration of any such
further extension of the Due Diligence Period upon the written
request of the Developer to the Agency which references this
Section 2.15(d). The Agency shall provide the Developer with
its response to such a request for a further extension of the
Due Diligence Period within thirty (30) days following its
receipt; provided however that if the Agency has not responded
to a request of the Developer under this Section 2.15 (d)
within thirty (30) days for any reason, the Developer shall be
conclusively deemed to have rejected the condition of the
Property, and either party may thereafter terminate this
Agreement as provided in Section 2.03(b)."
IIII
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CDC 2000-5
THE AMENDMENT NO. 1 may be executed in counterpart and when
fully executed by the parties each counterpart shall be deemed to
be one original Amendment No. 1 to the Agreement; provided however
that this Amendment No.1 to the Agreement shall have been approved
by majority vote of the governing board of the Agency and fully
executed by the parties by a date no later than March 21, 2000.
DEVELOPER
David L. Hardy and Michael
J. Hardy, as tenants in
common, doing business as
California Bio Mass, Inc.,
a California corporation
Date:~OO
~t- ,J~r.. <()
David . Hardy
Date:'f/r3!Ou
t
BY:~~~
Mlchael . ardy
AGENCY
Redevelopment Agency of the
City f g~n Bernardino
Date: t),fo ;;.0
Date:~/~~p
APPROVED AS TO FORM:
Sabj ~ PJ~LP
Agency Special Counsel
[All Signatures Must Be Notarized]
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CDC 2000-5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California
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County of Sc(""\. ~f'U.~: f' i)
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Date
personally appeared h ~ dr-.o e \
Name and Tille of Offic
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6,tproved to me on the basis of satisfactory
evidence
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to be the person"tsJ. whose nam~ is/al'e-
subscribed to the within instrument and
acknowledged to me that he/she/tRoy executed
the same in hisf.fiel ftneir authorized
capacity(~ and that by his/~r/thpir
signature~ on the instrument the personN, or
the entity upon behalf of which the personN
acted, executed the instrument.
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WITNESS my hand and official seal.
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OPTIONAL
Place Notary Seal Above
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
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Number of Pages: 5
Description of AttacheAocument \lu \
Title or Type of Document: ~~ .
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Do~ument Date: \'-\o...(C~ ~ \ 2.00 0
Signer(s) Other Than Named Above:
Capacity(ies) Clfli~ed by Signer I , _
Signer's Name: f'1\ ~C\-el ~~ ..l""
D Individual .J
D Corporate Officer - Title(s):
[J Partner - [J Limited D General
[] Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
Signer Is Representing: ~ I i--tD( (') 16.." ~~ D - MQ...",\s, Inc..
RIGHT THUMBPRINT
OF SIGNER
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@ 1999 National Notary Association. 9350 De Solo Ave., P.O. Box 2402. Chalsworth, CA 91313-2402. www.nalionalnolary.org
Prod_ No. 5907
Reorder: Call Toll-Free 1-800-876-6827
CDC 2000-5
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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State of California
County of S--..." ~e{ f"\C.. ( J.-\ {'\ u
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on~r( \ ~ "2.DVD, before me, 5\r~o..()',-c. ,~~n
Date I h' tt Name and Title of O' r (e.g., 'Jane Doe, Notary Public')
personally appeared \ d<\a. e \ a{ d J
me(s) of Signer(s)
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~roved to me on the basis of satisfactory
evidence
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to be the person~ whose name(S{ is/are-
subscribed to the within instrument and
acknowledged to me that he/sho/ltIey executed
the same in his/lger/their authorized
capacity~, and that by his/I"".!lI,ctr
signature'W on the instrument the person(5.)" or
the entity upon behalf of which the perso~
acted, executed the instrument.
Place Notary Seal Above
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Number of Pages: 5
Description of Attache~ument \\
Title ~T~pe of Document: ~~ D.
4.; .ve:'I/V t ~~ ~r-e ~~.{Tt-
Do'cument Date: cJCIr'\ LR \ '2-b <:) ()
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name: H\c..na eo I I-\-O-{c.\~
D Individual
[J Corporate Officer - Title(s):
LJ Partner - [J Limited U General
[l Attorney in Fact
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D Other:
Signer Is Representing: Co. r~Dr \""), lA..,; B~ \) - k ~ \ ~c...
RIGHT THUMBPRINT
OF SIGNER
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@ 1999 National Notary Association. 9350 De Solo Ave., P.O. Box 2402. Chatsworth, CA 91313-2402. www.nationalnolary.org
Prod_ No. 5907
Reorder: Call Toll-Free 1-800-876-6827