HomeMy WebLinkAboutCDC/2001-20
(See Resolutions CDC/2001-21, 2001-125, 2001-126, 2001-127, 2001-128)
RESOLUTION NO. CDC/2001-20
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RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
MAKING CERT AIN FINDINGS AND DETERMINATIONS
PURSUANT TO HEALTH AND SAFETY CODE SECTION
33433, MAKING OTHER FINDINGS AND
DETERMINATIONS IN ACCORDANCE WITH THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT AND
APPROVING A DISPOSITION AND DEVELOPMENT
AGREEMENT BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND SBT
PARTNERS, LLC, AND APPROVING OTHER ACTIONS
IN CONNECTION THEREWITH (HUB PROJECT)
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WHEREAS, an area of the City of San Bernardino (the "City") generally situated along
the west side of Tippecanoe Avenue to the north of the right-of-way of the Interstate 10 Freeway
12 referred to as the "HUB Project Site" or the "Site" is included within the redevelopment project
area of the Inland Valley Development Agency, a joint powers authority formed pursuant to
13 Health and Safety Code Sections 33492.10 et seq., for the purpose of assisting in the conversion
and civilian reuse of the former Norton Air Force Base and other lands situated in the City; and
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WHEREAS, the Inland Valley Development Agency, the City and the Redevelopment
15 Agency of the City of San Bernardino (the "Agency") entered into an agreement entitled "1999
16 Redevelopment Cooperation Agreement" dated as of July 12, 1999 (the "Redevelopment
Cooperation Agreement"), pursuant to which the Inland Valley Development Agency granted the
17 Agency the right, power and authority to act for and on behalf of the Inland Valley Development
Agency for the purposes of exercising the redevelopment powers of the Inland Valley
18 Development Agency; and
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WHEREAS, the Site contains residential and commercial developed properties, and the
20 Agency has initiated certain studies and proposals to address a number of issues of community
concern on the Site relating to blight and conditions associated with obsolete commercial design,
deferred maintenance, traffic circulation and conflicting commercial-residential neighborhood
22 property use and community design in an effort to eliminate and prevent the spread of blight from
the Site; and
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WHEREAS, SBT Partners, LLC (the "Developer") submitted a redevelopment proposal
24 for the Site that was the subject of study and evaluation by the City and the Agency, and the City
25 prepared and certified a Final Environmental Impact Report for the HUB Project (State
Clearinghouse No. 2000081074) in connection with the Agency's consideration and approval of
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CDC/2001-20
I a Disposition and Development Agreement, dated as of May 21, 2001, (the "Agreement"), by and
2 between the Agency and the Developer; and
3 WHEREAS, the Agency also prepared a report dated May 7,2001, (the "33433 Report")
analyzing the Agreement, in accordance with Health and Safety Code Section 33433.
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5 WHEREAS, the City and the Agency scheduled a joint public hearing to consider the
receipt and approval of the 33433 Report and the Agreement.
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NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE
7 COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO,
CALIFORNIA, AS FOLLOWS:
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9 Section 1. On May 21, 2001, the Community Development Commission ofthe City
of San Bernardino (the "Commission"), as the governing board of the Agency, conducted a full
10 and fair joint public hearing with the Mayor and Common Council ofthe City of San Bernardino
and considered the written Agency staff report, the 33433 Report the Final Environmental Impact
Report for the HUB Project Site (the "FEIR") and the testimony submitted relating to the
12 disposition and redevelopment ofa substantial portion ofthe Site (the "Property" or collectively,
the "Phase I Site and the "Phase II Site") by the Developer pursuant to the terms and conditions
13 of the Agreement. The minutes of the Agency Secretary for the May 21,2001, meeting of the
Commission shall include a record of all communication and testimony submitted to the
Commission by interested persons relating to the joint public hearing, the 33433 Report, the FEIR
15 and the approval of the Agreement.
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16 Section 2. This Resolution is adopted in satisfaction of the provisions of Health and
Safety Code Section 33433 relating to the disposition and sale of the Property by the Agency to
17 the Developer on the terms and conditions set forth in the Agreement. A copy of the Agreement
in the form submitted at this joint public hearing is on file with the Agency Secretary. The
18 Commission hereby finds and determines that:
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(i) the disposition and redevelopment of the Property by the Developer in
accordance with the Agreement is consistent with the Redevelopment Plan for the Inland
Valley Redevelopment Project Area and the Inland Valley Development Agency
Implementation Plan;
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(ii) the terms and conditions of the Agreement contain assurances that the
Property will be redeveloped by the Developer as permitted under the Redevelopment
Plan for the Inland Valley Redevelopment Project Area;
(iii) the consideration payable by the Developer to the Agency as the purchase
price for the Property, subject to the satisfaction of the terms and conditions of the
Agreement, is an amount which:
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(A) in the case ofthe "Phase I Site", as defined in the Agreement, is not
less than fair market value, and is more than the fair reuse value at its highest and
best use, as set forth in the 33433 Report; and
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(B) in the case of the "Phase II Site", as defined in the Agreement, is
not less than the current fair market value as set forth in the 33433 Report, if the
Developer elects to purchase the Phase II Site within 18 months following the
execution ofthe Agreement, and if the Developer elects to purchase the Phase II
Site after 18 months but before 60 months from the execution of the Agreement,
then the amount payable by the Developer shall be the then current fair market
value, increased by any increases in the Agency acquisition costs, all as more fully
set forth in the Agreement;
(iv) the disposition of the Property to the Developer on the terms set forth in
the Agreement shall assist in the elimination of blight on the Property;
(v) the Agency is satisfied that the information set forth in the draft of the "Tri-
City Project Area Relocation Plan" dated as of May 8,2001, for the Phase I Site contains
a relocation needs assessment, and assessment of replacement housing requirements and
a description of the steps and procedures which the Agency shall follow in connection
with the acquisition of the portions of the Site as required for the Phase I Project which
is feasible to implement and that Agency funds are available therefor.
Section 3. Prior to the opening of the joint public hearing at which this Resolution is
15 adopted, the Commission received the Final EIR and Facts, Findings and Statement of Overriding
16 Considerations Regarding the Environmental Effects from the Environmental Impact Report for
the HUB Project (State Clearinghouse No. 2000081074) that were certified and adopted,
17 respectively, by the City, regarding the development proposed to occur under the Agreement and
the HUB Project. The Commission has independently reviewed the Final EIR certified by the
18 City for the HUB Project. In its independent discretion, the Commission hereby finds that the
19 Final EIR adequately describes the Agreement and the Phase I Project and the Phase II Project as
shall be undertaken by the Developer and assesses all of the significant environmental effects or
20 impacts of the implementation of the Agreement.
21 The Commission further finds and determines that there are no other significant
22 environmental effects or any differences in the severity of environmental effects associated with
the implementation of the Agreement from those assessed in the Final EIR that would require
23 additional environmental review under Public Resources Code Section 21060 or Title 14
California Code of Regulations Sections 15162 or 15163.
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25 In the independent discretion of the Commission, the Facts, Findings and Statement of
Overriding Considerations Regarding the Environmental Effects from the Environmental Impact
26 Report for the HUB Project (State Clearinghouse No. 2000081074) as adopted by the City
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regarding the HUB Project are applicable to the Commission's consideration and approval ofthe
2 Agreement. The Commission hereby approves and adopts as the findings of the Commission,
under Title 14 California Code of Regulations Sections 15091 and 15093, regarding the approval
3 ofthe Agreement, the Facts, Findings and Statement of Overriding Considerations Regarding the
Environmental Effects from the Environmental Impact Report for the HUB Project (State
4 Clearinghouse No. 2000081074) as adopted by the City. The Facts, Findings and Statement of
5 Overriding Considerations Regarding the Environmental Effects from the Environmental Impact
Report for the HUB Project (State Clearinghouse No. 2000081074) as adopted by the City are
6 incorporated into this Resolution by this reference.
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Further, the Commission's approval ofthe Agreement is conditioned upon the Developer's
compliance with the Mitigation Monitoring Plan adopted by the City of San Bernardino in
8 conjunction with the certification of the Final EIR for the Phase I Project and the Phase II Project,
9 as applicable. The terms and provisions ofthe Agreement contractually require compliance with
the Mitigation Monitoring Plan and provide for contractual enforcement of this obligation of the
10 Developer. The City, as lead agency, remains responsible for ensuring implementation of the
mitigation measures in accordance with the Mitigation Monitoring Plan.
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12 The Commission hereby authorizes and directs the Agency Secretary to file a Notice of
Determination with respect to the Commission's approval of the Agreement, in accordance with
13 Public Resources Code Section 21152 and Title 14 California Code of Regulations Sections
15096(i) and 15094, consistent with the approvals, findings and determinations set forth in this
14 Resolution.
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Section 4. The Commission hereby receives and approves the 33433 Report and the
16 other written materials submitted to the Agency at the meeting at which this Resolution is
adopted. The 33433 Report contains the information required under Health and Safety Code
Section 33433.
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Section 5. The Commission hereby approves the Agreement. The Chairperson of the
19 Commission and the Agency Secretary are hereby authorized and directed to execute the
Agreement on behalf of the Agency together with testimonial and conforming changes as may be
20 recommended by the Executive Director and Agency Counsel. The Executive Director is hereby
authorized to take all appropriate action as set forth in the Agreement to implement the
redevelopment of the Site.
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I RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
2 CITY OF SAN BERNARDINO MAKING CERTAIN FINDINGS AND
DETERMINATIONS PURSUANT TO HEAL TH AND SAFETY CODE SECTION 33433,
3 MAKING OTHER FINDINGS AND DETERMINATIONS IN ACCORDANCE WITH
THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND APPROVING A
4 DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND SBT
5 PARTNERS, LLC AND APPROVING OTHER ACTIONS IN CONNECTION
6 THEREWITH (HUB PROJECT)
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Section 6.
This Resolution shall take effect upon adoption.
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
9 Development Commission of the City of San Bernardino at a joint regular meeting
thereof, held on the 21st day of May ,2001, by the following vote, to wit:
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Commission
11 ESTRADA
12 LIEN
McGINNIS
13 SCHNETZ
SUAREZ
14 ANDERSON
15 McCAMMACK
AYES
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NAYS
ABSTAIN ABSENT
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The foregoing Resolution is hereby approved this :)$71-1 day of May
,2001.
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J 1 a 1es, Chairperson
o munity Development Commission
o the City of San Bernardino
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1 I STATE OF CALIFORNIA )
2 COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
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I, Secretary of the Community Development
4 Commission of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and
5 attached copy of Community Development Commission ofthe City of San Bernardino Resolution
No. is a full, true and correct copy of that now on file in this office.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
7 seal ofthe Community Development Commission ofthe City of San Bernardino this day
8 of , 2001.
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Secretary of the
Community Development Commission
of the City of San Bernardino
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DISPOSITION AND DEVELOPMENT AGREEMENT.,
" " e -'1 n r '1
1,:1 L
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(Tippecanoe Study Area)
S i\ N d i~, ~~:: ,','~ ,) I N 0
--Inland Valley Redevelopment Project Area--
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement")
is dated as of May 21, 2001, by and between SBT Partners, LLC, a
California limited liability company (the "Developer") and the
Redevelopment Agency of the City of San Bernardino (the "Agency"),
and this Agreement is entered into in light of certain facts set
forth in the following Common Recitals:
--COMMON RECITALS--
1. The lands included in the Site (as this term is defined
herein) display a number of symptoms of blight, and the Agency has
determined that the redevelopment of the Site, in accordance with
the terms of this Agreement, shall assist the community to
eliminate the conditions of blight on the Site, and prevent the
spread of conditions of blight into other areas of the community
including into the redevelopment project area of the Tri-Cities
Redevelopment Project of the Agency.
2. The Agency has also determined that:
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the redevelopment of the Site will also assist the
City of San Bernardino to implement its general
plan by providing for the design and installation
of the Harrison Place Improvement Project (as this
term is defined herein), subject to the terms and
conditions set forth belowj
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as part of the redevelopment of the Site, the
Agency shall provide for the relocation of families
and households who currently reside there, with
safe, sanitary and decent housingj and
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the redevelopment of the site, in accordance with
the terms of this Agreement, shall compliment the
efforts of the Inland Valley Development Agency to
provide for the redevelopment of the former Norton
Air Force Base.
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NOW THEREFORE, THE DEVELOPER AND THE AGENCY AGREE AS FOLLOWS:
SECTION 1.1. Scope of the Redevelopment Pro;ect. The
redevelopment project activities to be undertaken by the Developer
and shall consist of the development of approximately 268,600
square feet of gross interior commercial space structures to be
situated on approximately twenty four and five tenths (24.5) "acres
of land generally situated at the northwest corner of the
Tippecanoe Avenue undercrossing of the Interstate 10 Freeway in San
Bernardino, California. The Developer's improvements on the
proposed site will be developed in two (2) phases of improvement.
The initial phase of improvement ("Phase I Project") will be
developed by the Developer (and in part by the Developer's tenant)
and shall include the improvement of approximately 198,600 square
feet of gross interior commercial space structures which shall be
situated on approximately seventeen and sixty six hundredths
(17.66) acres of land. The Phase I Project will be situated on the
"Phase I Site" which generally includes the lands located to the
south of the new public street alignment of Harriman Street.
Approximately 130,400 square feet of commercial structures
improvements of the Phase I Project will be reserved for occupancy
by a retail discount center business (as provided herein), and
45,000 square feet of other retail, together with two (2)
freestanding pad-structures of approximately 10,000 square feet
each, will also be included in the Phase I Project.
The second phase of improvement (the "Phase II Project") will
include the development of up to approximately 70,000 square feet
of gross interior area commercial space structures on approximately
five and seven tenths (5.7) acres of land. The Phase II Project
will be situated on the "Phase II Site" which is generally situated
along the north side of the new public street alignment of Harriman
Street. The Phase II Project will include the improvement by the
Developer of up to approximately 70,000 square feet of gross
interior commercial building area wl).ich may be allocated among
retail buildings of between 25,000 to 30,000 square feet in size
and freestanding buildings/pads measuring from 5,000 to 10,000
square feet in gross interior building area.
SECTION 1.2. Inland Valley Redevelopment Pro;ect and the
Redevelopment Cooperation Aqreement By and Amonq the Inland Valley
Development Aqency, the City of San Bernardino and the Aqency.
The Site is situated in the redevelopment project area of the
Inland Valley Redevelopment Project Area which was adopted by the
Inland Valley Development Agency (the "IVDA"). The IVDA has
delegated certain responsibilities for the redevelopment of the
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Site to the Agency pursuant to the terms of a Redevelopment Study
Agreement, dated as of July 1, 1999, by and among the City of San
Bernardino (the "City"), the Agency and the IVDA.
The redevelopment of the Site and the implementation of
certain provisions of this Agreement as relate to the Condemnation
Parcels, as set forth herein, may require certain additional
consultations from time-to-time by and between the Agency and the
IVDA. To the extent that the IVDA may be requested by the Agency
to provide redevelopment assistance to the Agency, in addition to
any such assistance contemplated under the Redevelopment Study
Agreement, such redevelopment assistance of the IVDA shall be
provided in the sole discretion of the IVDA.
SECTION 1.3. Site Acquisition and Redevelopment Proiect
Environmental Impact Report.
An Environmental Impact Report (State Clearinghouse No.
2000081074) has been prepared and considered for the Site
Acquisition Program, the Harriman Place Improvement Project, the
Phase I Project, the Phase II Project and various alternatives to
these, including the proposed separated OPA with a third party
property owner.
SECTION 1.4. Defined Terms. In addition to the usage of
certain terms which have defined meanings as set forth in the
preceding paragraphs of this Agreement, or in other sections of
this Agreement, certain other words and phrases are used in this
Agreement to refer to the following unless the particular context
of usage of a word or phrase may otherwise require:
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"Certificate of Completion" means the written
confirmation of the Agency as more fully described in
Section 3.7, which evidences that the Developer has
satisfactorily completed the redevelopment of the Phase I
and later, the Phase II Project, as applicable.
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"Certificate of Subdivision Compliance" means and refers
to the certificate (s) of subdivision compliance which
shall be issued by the City to the Developer at the time
of the Site Transfer Escrow Closing for the Phase I Site,
or later for the Phase II Site.
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"City" means City of San Bernardino. The City is not a
party to this Agreement.
"Condemnation Parcel" means and refers to a Site Parcel
which the Agency has been unable to satisfactorily
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complete a negotiated purchase with the owner within a
reasonable period of time following the Agency's
transmittal of an offer to purchase to such owner.
. "Corner Parcel" means and refers to a portion of the Site
generally situated near the southwesterly corner of the
intersection of Tippecanoe Avenue and Harriman Street
which abut the Phase I Site and which shall be available
for disposition and redevelopment by either In-N-Out
Burger, as provided in Section 2.14 or by the Developer,
as provided in Section 2.16, if applicable. A legal
description of the Corner Parcel is included in
Attachment No. 1D.
· "Developer Improvement Plan Concept" means and refers to
the concept plan for the Phase I Project and the Phase II
Project, as depicted on Attachment No.2.
· "Developer Investigations" means and refers to the
Developer's due diligence investigation of each Site
Parcel to determine the suitability of such lands for
development. The Developer Investigations shall include
an investigation of environmental and geotechnical
suitability of such lands as determined at the sole
discretion of the Developer.
· "Development Project Application" means and refers to the
completed application(s) of the Developer for the review
and discretionary approval by the City of the plan of
improvement of the Phase I Project and/or the Phase II
Project, as applicable, to be undertaken by the
Developer. Each Development Project Application shall
include all of the information necessary for the City to
issue its development project approvals for the Phase I
proj ect and/or the Phase I I proj ect, as appl icable,
including all development compliance conditions. At the
time of its submittal to the City, the Development
proj ect Application shall be substantially consistent
with the Developer Improvement Concept. Promptly
following the approval of the Development Project
Application by the City, the Developer shall prepare and
complete the Project-related development improvement
plans and specifications, including without limitation
exterior sign and lighting plans and landscape plans in
sufficient detail to obtain the issuance of all necessary
Development Project Permits from the City.
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"Development Project Permits" means and refers to all of
the regulatory and building permits which the Developer
shall obtain from the City {and each of the other
agencies with regulatory jurisdiction over the Phase I
Project and the Phase II Project, as applicable} for the
construction and improvement of the Phase I Project, and
later the Phase II Project, as applicable, by the
Developer.
"Escrow Agent" means and refers to First American Title
Company, or such successor entity as may be mutually
designated by the Developer and the Agency. The Escrow
Agent shall administer the Site Transfer Escrow.
"In-N-Out Burger Site" means and refers to the lands
which abut the Phase I Site which may be redeveloped by
In-N-Out Burger under a separate agreement with the
Agency. Provided that In-N-Out has exercised its
election to acquire the portion of the lands included in
the In-N-Out Site which it does not own {e.g.: the Corner
Parcel} under the terms of such an agreement with the
Agency, the Developer and In-N-Out shall enter into the
In-N-Out Driveway REA. A legal description of the In-N-
Out Burger Site is included in Attachment No. 1F.
"In-N-Out Lands" means and refers to the land
improvements which abut the Phase I Site and which are
presently owned by In-N-Out. A legal description of In-
N-Out Lands is included in Attachment 1E.
"IVDA" means and refers to the Inland Valley Development
Agency, a joint powers authority established under Health
and Safety Code Section 33492.40 et seq. The IVDA has
delegated certain responsibilities for the redevelopment
of the Site to the Agency pursuant to the terms of the
Redevelopment Study Agreement, dated as of July 1, 1999
by and among the IVDA, the City and the Agency. A copy
of the Redevelopment Study Agreement is on file with the
Agency Secretary.
"Harriman Construction Agreement" means and refers to the
public street construction improvement and financing
agreement by and between the City and the Agency for the
Harriman Place Improvement Project. The Harriman
Construction Agreement shall provide for the financing,
design and installation of the Harriman Place Improvement
proj ect . Such agreement shall provide, among other
things, for an identification of a source of funds to pay
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for the Harriman Place Improvement Project, including all
right of way acquisition and relocation costs, design
engineering, construction costs and contingency and
financing costs. The Harriman Construction Agreement
shall also set forth a commencement date for the work of
improvement to occur within 90 days following the close
of the Site Transfer Escrow (Phase I Site), and for such
work of improvement to be diligently prosecuted to
completion within 270 days following the close of such
escrow.
· "Harriman Place Charge" refers to the sum payable to the
Agency by the Developer as specified in Section
2.2(a)(ii).
· "Harriman Place Improvement Project" means and refers to
the public street improvement project to be undertaken by
the Agency (and administered by the City) concurrently
with the construction and installation of the Phase I
proj ect by the Developer. The Harriman Place Improvement
Project is described in Section 2.12 and Attachment No.
12.
· "New Store" means and refers to approximately 129,000
square foot commercial retail sales facility to operate
on the Site by a nationally recognized merchandiser of
high-volume consumer retail products. The Developer
shall certify to the Agency the readiness of the operator
of the New Store to proceed with the redevelopment of the
New Store on the Site subject to the terms of its written
lease agreement with the Developer as set forth in
Section 1.8.
· "Phase I Project" means and refers to the development
project to be undertaken by the Developer on the Phase I
site promptly following the close of the Site Transfer
Escrow (Phase I Site). The Phase I Project shall include
the construction and improvement by the Developer, or its
tenants (including the New Store) of a total of
approximately 198,600 square feet of gross interior area
commercial buildings. The Phase I proj ect shall not
include the improvement by the Developer of the In-N-Out
Burger Lands except to the extent set forth in Section
2.16, if applicable, or the Harriman Place Improvement
Project. A more detailed description of the functional
elements of the PhaseI Project is included as Attachment
No. 4A.
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"Phase I Site" means and refers to the portion of the
Site which the Agency shall transfer to the Developer at
the close of the Site Transfer Escrow (Phase I Site).
The Phase I Site is approximately 17.66 acres in size
(including therein portions of Lot 24 and Lot 25 as
described in the next sentence, but excluding therefrom
the portion of the public street right-of-way area of the
new alignment of Harriman Place). The Phase I Site shall
include portions of "Lot 24 and Lot 25" as described in
Attachment 1Gj provided that, the Agency first enters
into a third-party agreement as described in Section
2.14. The lands described in Attachment 1G may be
transferred to the Developer following the close of Site
Transfer Escrow as provided in Section 2.14(d). A legal
description of the Phase I Site which excludes the lands
described in Attachment 1G is attached hereto as
Attachment No. 1H. The Developer shall cause the Phase
I Project to be constructed and installed on the Phase I
Site as set forth herein. A tentative legal description
of the Phase I Site is included as Attachment No. lB.
The Phase I Site does not include the Corner Parcel or
the In-N-Out Burger Site.
"Phase II Project" means and refers to the development
project to be undertaken by the Developer on the Phase II
Site promptly following the close of the Site Transfer
Escrow (Phase II Site). The Phase II Project shall
include the construction and improvement by the Developer
of a total of up to approximately 70,000 square feet of
gross interior area of commercial buildings. The Phase
II Project shall not include the improvement of the
Harriman Place Improvement proj ect. A more detailed
description of the functional elements of the Phase II
Project is included as Attachment No. 4B.
"Phase II Site" means and refers to the portion of the
Site which the Agency shall transfer to the Developer at
the close of the Site Transfer Escrow (Phase II Site).
The Phase II Site is approximately 5.7 acres in size
(excluding therefrom the portions of the public street
right-of-way area of the new alignment of Harriman
Place). The Developer shall cause the Phase II Project
to be constructed and installed on the Phase II Site as
set forth herein. A tentative legal description of the
Phase II Site is included as Attachment No. lC.
"Project REA" means and refers to the shopping center
covenants, conditions and restrictions which shall be
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applicable to the Phase I Site. The Project REA provides
for the coordination, administration, maintenance and
replacement of on-site driveways, traffic circulation,
pedestrian walkways, landscaping and shopping center
operation and use controls in order to assure and
preserve the character and quality of the Phase I Project
as a first-class community shopping center.
"Schedule of Performance" means and refers to the time
schedule for the performance of key steps for the
assembly of the Site by the Agency and the construction
of the Harriman Place Improvement Project and the
redevelopment of the Phase I Project, and later the Phase
II Project by the Developer. The Schedule of Performance
is included as Attachment No.6, and is deemed approved
by the parties concurrently upon the approval of this
Agreement by the governing board of the Agency.
"Site" means and refers to all of the lands necessary for
the Harriman Place Improvement proj ect, the Phase I
Project and Phase II Project of the Developer, and the
project as may be undertaken by In-N-Out under a separate
agreement with the Agency. The Site includes
approximately twenty seven and twelve tenths (27.12)
acres of land, more or less. A plat map and a legal
description of the lands included in the Site is annexed
to this Agreement as Attachment No. lA.
"Site acquisition costs" means and refers to each of the
various categories of cost associated with the assembly
and acquisition of the Site by the Agency. An estimate
of the total amount of the Site acquisition costs as of
the date of this Agreement is included in Section 2.4 as
the Preliminary Site Assembly Budget.
"Site Parcel" means and refers to each of the legal
parcels of land which comprise the Site. As of the date
of this Agreement the Agency does not own or possess any
equitable interest in any Site Parcel. A legal
description of all of the Site Parcels which comprise the
Site is included as Attachment No. lA.
"Site Parcel Acquisition Agreement" means and refers to
the general form of the real estate purchase agreement by
and between the Agency and each owner of a Site Parcel.
The general form of the Site Parcel Acquisition Agreement
is included as Attachment No.7.
I-8
· "Site Parcel Escrow" means and refers to each of the
individual escrow transaction accounts established by the
Agency with each record owner of a Site Parcel for the
acquisition of such Site Parcel by the Agency.
· "Site Transfer Escrow" means and refers to the escrow
transaction account established by the Developer and the
Agency for the transfer of the Phase I Site, or later
than Phase II Site, to the Developer.
· "Site Transfer Escrow Closing" means and refers to the
time when the conditions for the transfer of title and/or
possession of the Phase I Site or later, than Phase II
Site, as applicable from the Agency to the Developer have
been satisfied by the parties and the applicable form of
the Agency Grant Deed and other necessary documents are
recorded.
SECTION 1.5.
Parties to the Aqreement.
(a)
Agency.
Agreement.
The parties to this Agreement are the Developer and the
Neither the City or the IVDA are parties to this
(b) The Developer is as identified above. The principal
office of the Developer for purposes of this Agreement is located
at 13 Corporate Plaza, Newport Beach, California 92660. The
Developer has provided the Agency with satisfactory evidence of the
legal formation and existence of the Developer and the good
standing of the Developer to transact business within the State, to
hold title to the Site and to develop the Project.
(c) The Agency is a public body, corporate and politic,
exercising governmental functions and powers, and organized and
existing under the Community Redevelopment Law of the State of
California, Health and Safety Code Section 33000, et seq.
SECTION 1.6.
[RESERVED -- NO TEXT]
SECTION 1.7. Chanqe in Ownership Manaqement and Control of
the Developer--Assiqnment and Transfer.
(a) Transfer as used in this Section 1.7, the term "Transfer"
means:
(1) Any total or partial sale, assignment or conveyance,
or any trust or power, or any transfer in any other mode or
5/15/01 et
SB2001:7825.8
I-9
form by the Developer of more than 49% interest (or series of
such sales, assignments and the like which in the aggregate
exceed a disposition of more than a 49% interest) with respect
to its interest in this Agreement, the Phase I Site, the Phase
II Site or any part thereof or any interest therein or of the
improvements constructed thereon, or any contract or agreement
to do any of the same; or
(2) Any total or partial sale, assignment, conveyance,
or transfer in any other mode or form, of or with respect to
any ownership interest in Developer (or series of such sales,
assignments and the like which in the aggregate exceeded a
disposition of more than a 49% interest); or
(3) Any merger, consolidation, sale or lease of all or
substantially all of the assets of the Developer in the
Agreement, the Phase I, the Phase II Site or any part thereof
or any interest therein or the improvements construction
thereon (or series of such sales, assignments and the like
which in the aggregate exceeded a disposition of more than a
49% interest) except for the sale of pads (the "Pads") for the
construction by third parties (or by the Developer for the
account of such third parties) for the construction of a
portion of the Phase I Project or the Phase II Project, as
applicable, provided that such Pads are encumbered by the
Project REA; or
(4) The leasing of part or all of the Phase I Site or
the Phase II Site or any part thereof or any interest therein
except for the lease of a portion of the Phase I Site for the
New Store, and further excepting leases for individual retail
occupancies of the other portions of the Phase I Site or the
Phase II Site not occupied by the New Store where the
Developer retains control under the Project REA.
(b) This Agreement is entered into solely for the purpose of
the redevelopment of the Site and the improvement of the Phase I
Project, and later the Phase II Project. The Developer recognizes
that the qualifications and identity of Developer are of particular
concern to the Agency, in view of:
(1) The importance of the redevelopment of the Site to
the general welfare of the community;
(2) The fact that a Transfer by the Developer of the
Phase I Site and/or the Phase II Site is for all practical
purposes a transfer or disposition of the responsibilities of
5/15/01 ct
SB2001:7825.8
1-10
the Developer, with respect to the Phase I Site and the Phase
II Site, as applicable.
The Developer further recognizes and acknowledges that it is
because of the qualifications and identity of the Developer that
the Agency is entering into this Agreement wi th the Developer, and,
as a consequence, Transfers are permitted only as provided in this
Agreement.
(c) The limitations on a Transfer as set forth in this
Section 1.7 by the Developer shall apply until such time as the New
Store has opened for business to the general public as set forth in
Section 4.6 and a Certificate of Completion is approved by the
Agency for the Phase I Project. Except as expressly permitted in
this Agreement, the Developer represents and agrees that it has not
made or will create or suffer to be made or created, any Transfer,
either voluntarily or by operation of law without the prior written
approval of the Agency until such time as a Certificate of
Completion has been recorded. After the date of recordation of a
Certificate of Completion, certain other provisions of this
Agreement shall nonetheless be applicable to subsequent conveyances
of interest in the Phase I Site and/or the Phase II Site, or
portions thereof, as provided in Article IV of this Agreement. Any
Transfer made in contravention of this Section 1.7 shall be deemed
to be a default under this Agreement whether or not the Developer
knew of or participated in such Transfer, and shall be voidable at
the election of the Agency.
(d) The following types of a Transfer shall be permitted and
approved by the Agency and are referred to herein as a "Permitted
Transfer":
(1) Any Transfer by the Developer following the Site
Transfer Escrow Closing (Phase I Site) creating a "Security
Financing Interest" in the Phase I Project which conform to
the provisions of Section 3.2 and Section 3.3;
(2) Any Transfer directly resulting from the foreclosure
of a Security Financing Interest created by the Developer in
the Phase I Project or the granting of a deed in lieu of
foreclosure of a Security Financing Interest;
(3) A Transfer under (1) or (2) above, involving the
Phase II Site;
(4) Any Transfer of stock or equity of the Developer
which does not change management or operational control of the
Project;
5/15/01 ct
SB2001:7825.8
1-11
(5) Any Transfer of any interest in Developer to any
affiliate of or other entity related to the Developer.
(e) No Permitted Transfer of this Agreement or any interest
in the Phase I Site or the Phase II Site, or the Phase I Project or
the Phase II Project by the Developer (other than a Permitted
Transfer created pursuant to a Security Financing Interest under
Section 3.3) shall be effective unless, at the time of the
Permitted Transfer, the person or entity to which such Transfer is
made, shall expressly assume the obligations of Developer under
this Agreement and such person also agrees to be subject to the
conditions and restrictions to which Developer is subject under
this Agreement. Such an assumption of obligation shall be
evidenced by a written instrument delivered to the Agency in a
recordable form which is satisfactory to the Agency.
(f) Provided the particular transaction satisfies the
applicable provisions of Section 1.7 (d), the Developer is not
required to give the Agency advance notice of such a Permitted
Transfer. The Agency may, in its reasonable discretion, approve in
writing any other Transfer as requested by the Developer provided
such proposed transferee can demonstrate successful and
satisfactory experience in the ownership, operation, and management
of regional shopping center facility comparable in size and quality
to the Phase I Project. Any such transferee for itself and its
successors and assigns, and for the benefit of the Agency shall
expressly assume all of the obligations of the Developer to the
Agency under this Agreement. There shall be submitted to the
Agency for review all instruments and other legal documents
proposed to effect any such other Transfer; and the approval or
disapproval of the Agency shall be provided to the Developer in
writing within thirty (30) days of receipt by the Agency of
Developer I s request, and the Agency approval of a transfer and
shall not be unreasonably withheld or delayed.
(g) Following opening of the New Store for business to the
general public, and the issuance of a Certificate of Completion,
the Developer shall be released by the Agency from any liability
under this Agreement which may arise from a default of a successor
in interest occurring after the date of such a Transfer; provided,
however that the covenants of the Developer as set forth in Article
IV of this Agreement shall run with the land for the term as
provided in the Agency Grant Deed.
SECTION 1.8. Approval bv the Operator of the New Store for
the Phase I Proiect. The Developer has represented to the Agency
that Sam's Real Estate Business Trust ("Sam's") has expressed an
intention to approve the operation of the New Store on the Phase I
5/15/01 ct
5B2001:7825.8
I-12
Site, subject to certain conditions. The Developer has disclosed
to the Agency the relevant and material terms of the arrangement by
and between Sam's and the Developer for the purpose of inducing the
Agency to enter into this Agreement. By the date not later than
the first of the following events to occur, the Developer shall
provide the Agency with written confirmation satisfactory to the
Agency Executive Director which shall not be unreasonably withheld,
conditioned or delayed, that the written lease agreement by and
between the Developer and Sam's is in full force and effect:
(i) the date on which the Agency transmits one or more
offers to acquire one or more Site Parcels to the owners
thereof, unless the Agency elects to defer satisfaction of
these conditions with respect to one or more specific offers
to acquire one or more such Site Parcels;
(ii) the date on which the City deems the Development
Project Application for the Phase I Project to be complete;
(iii) ninety (90) days following the approval of this
Agreement by the Agency; or
SECTION 1.9. Redevelopment Planninq and Participation
Aqreement. When this Agreement has been approved by the governing
board of the Agency at the conclusion of a public hearing, and this
Agreement has been fully executed by the authorized officers of the
parties, the obligations and covenants of the parties as arise
under the Redevelopment Planning and Participant Agreement, dated
as of November , 1999, as amended shall be of no further force or
effect; provided however, that all outstanding invoices of the
Agency for costs incurred by the Agency under the Redevelopment
Planning and Participation Agreement shall have been paid by the
Developer pursuant to and limited by the terms of the Redevelopment
Planning and Participation Agreement.
SECTION 1.10. List of Attachments to Aqreement. Each of the
following items or documents are hereby deemed to be approved by
the parties as of the date of approval of this Agreement by the
governing board of the Agency and each such item or document is
incorporated into the text of this Agreement by this reference:
Attachment No. lA
Legal Description of the Site and Plat
Map
Attachment No. IB Tentative Legal Description of the
Phase.I Site and Plat Map
5/15/01 ct
S82001:7825.8
I-13
Attachment No. 1C Tentative Legal Description of the
Phase II Site and Plat Map
Attachment No. 1D Legal Description of the Corner Parcel
and Plat Map
Attachment No. 1E Legal Description of In-N-Out Lands and
Plat Map
Attachment No. 1F Legal Description of In-N-Out Burger Site
(Existing Location) and Plat Map
Attachment No. 18 Portions of Lot 24 and Lot 25 to be
transferred by Agency to Developer
following completion of In-N-Out Burger
relocation as provided in Section 2.14
Attachment No. 1H Phase I Legal Description With Portions
of Lot 24 and Lot 25
Attachment No. 2 Developer Improvement Plan Concept
Attachment No. 3 Site Parcel Identification List
Attachment No. 4A
Attachment No. 4B
Attachment No. 5
Attachment No. 6
Attachment No. 7
Attachment No. 8
Attachment No. 9
Attachment No. 10
Attachment No. 11
Attachment No. 12
5/15/01 ct
SB2001:7825.8
Description of the Phase I Project
Description of the Phase II Project
RESERVED - NO TEXT
Schedule of Performance
Site Parcel Acquisition Agreement
(general form)
[RESERVED-NO TEXT]
Form of Agency Grant Deed
[RESERVED-NO TEXT]
Certificate of Completion
Harriman Place Improvement Project
Description
I-14
ARTICLE II
SECTION 2.1. Transfer of the Phase I Site by the Aqency to
the Developer for Redevelopment.
The Phase I Site is comprised of all or part of approximately
sixty one (61) separate legal parcels of land. Each such separate
legal parcel of land is referred to as a "Site Parcel" regardless
of whether the acquisition of such parcel by the Agency is
necessary for the Harriman Place Improvement Project, disposition
to the Developer either in whole or in part as a portion of the
Phase I Site or for disposition to In-N-Out as part of its separate
project. As of the date of approval of this Agreement by the
governing board of the Agency, the Agency owns none of the Site
Parcels. A major portion of the Site Parcels have been improved
for residential purposes and are presently occupied by owners or
residential tenants. It is the intent of the Developer and the
Agency that the Agency shall use best efforts to acquire each of
the Site Parcels directly from the current owners thereof by
negotiated purchase, subject to the terms and conditions of the
Agreement. Nothing contained in this Agreement shall require the
Agency to pay an amount for the acquisition of any Site Parcel from
its owner, which the Agency has determined, based upon its approved
real property appraisal report for such Site Parcel, exceeds the
fair market value for such Site Parcel. The obligation of the
Developer to construct and complete the Phase I Project and later,
the Phase II Project shall not arise until such time as the Site
Transfer Escrow (Phase I Site) is in a condition to close in
accordance with the terms of this Agreement. If the necessary Site
Parcels for the Phase I Site cannot be assembled, and the Site
Transfer Escrow placed in a condition to close on or before January
18, 2002, subject to such extensions of time as may be approved by
the Developer and the Agency as set forth in Section 2.3(f), this
Agreement shall be subject to termination by either party as
provided in Section 5.10.
SECTION 2.2.
Developer.
Phase I Site Purchase Price Payable By
(a) Subj ect to the provisions of Section 2.8, the Agency
hereby agrees to exercise its best efforts to assemble the Site
Parcels as necessary or appropriate for the Phase I Site, and to
transfer the Phase I Site to the Developer, and thereafter cause
the Harriman Place Project to be constructed and installed, and the
Developer hereby agrees to:
5/15/01 ct
5132001:7825.8
I-15
(i) purchase the Phase I Site from the Agency for the
sum of Four Dollars and Fifty One Cents ($4.51) per square
foot of land included in the Phase I Site. The product of the
total number of square feet included in the Phase I Site
(which is 769,385 square feet - - net of the number of square
feet of such land included within the new public street right-
of-way area of Harriman Place, as realigned which abuts the
Phase I Site), multiplied by the amount payable by the
Developer per square foot of land in the Phase I Site is
referred to herein as the uPhase I Site Purchase Price";
(ii) pay to the Agency, in addition to the Phase I Site
Purchase Price, the Harriman Place Charge at the times and in
the amounts provided in Section 2.12; and
(iii) cause the Phase I Project improvements to be
constructed on the Phase I Site following the close of the
Site Transfer Escrow (Phase I Site) in accordance with the
Development Project Application.
(b) As of the date of this Agreement, the Agency and the
Developer estimate that there are approximately 893,000 square feet
of land in the Phase I Site, more or less. This figure includes
certain areas within existing public street rights of way which
shall be subject to the Harriman Place Improvement Project. In the
event that the final survey of the Phase I Site prepared by the
Developer at the time of the close of the Site Transfer Escrow
(Phase I Site) may indicate a different area calculation for the
Phase I Site, then in such event the Phase I Site Purchase Price
shall be subject to an adjustment as provided in Section 2.9(g).
(c) In the event that the Agency may determine that it is
necessary or appropriate to refer the acquisition of one or more
Site Parcels to the IVDA as provided in Section 2.3 (d), the
Developer shall prepay a portion of the Phase I Site Purchase Price
which corresponds to such Site parcel(s) to the Agency outside of
the Site Transfer Escrow (Phase I Site) as set forth in this
Section 2.2(c). Within ten (10) days following written request of
the Agency which identifies the particular Site Parcel referred to
the IVDA for acquisition as a uCondemnation Parcel", the Developer
shall pay to the Agency the portion of the Phase I Site Purchase
Price which corresponds to such property; provided however, that
the Developer shall have first determined in its sole discretion
that such payment for a Condemnation Parcel is indicated. Upon
receipt of such sum from the Developer as provided in this Section
2.2(c), the Agency shall instruct the Escrow Holder under the Site
Transfer Escrow (Phase I Site) to credit the Developer the amount
of the Phase I Site Purchase Price as paid to the Agency outside of
5/15/01 ct
SB2001:7825.8
I-16
such escrow transaction. In the event that any such payment is
made by the Developer to the Agency under this subsection, and
thereafter the Agency, or the IVDA, as applicable, may fail to
initiate eminent domain proceedings for the acquisition of such
Condemnation Parcel under Section 2.3(d), or later, the IVDA may
fail to obtain an order for prej udgment possession for such
Condemnation Parcel (s) under applicable law, or later the Site
Transfer Escrow (Phase I Site) may fail to close as provided in
Section 2.5(c), then the Agency shall immediately return to the
Developer the sums paid by the Developer to the Agency pursuant to
this Section 2.2(c) plus such interest as may have accrued on the
Phase I Site Purchase Price as deposited with the IVDA or a court,
as applicable, upon the written request of the Developer. The
Agency shall not refer any such Condemnation Parcel to the IVDA
until the Developer has provided the Agency with the portion of the
Phase I Site Purchase Price which corresponds to such Condemnation
Parcel.
SECTION 2.3. Site Parcel Assembly Consultations and Site
Parcel Assembly Proqram.
(a) Commencing upon the approval of this Agreement by the
governing board of the Agency, and thereafter during the Site
Parcel assembly program through the close of the Site Transfer
Escrow (Phase I Site) and later for the Phase II Site, the
Developer and Agency staff shall conduct regular meetings at the
Agency offices to review the status of each of the following
matters of mutual interest as applicable:
(i) all pending offers of the Agency to purchase Site
Parcels from the owners thereof; provided however, that the
Agency may defer the transmittal of offers to the owners of
certain lands included in the Phase II Site until after the
Developer has exercised its option to acquire such lands as
set forth in Section 2.15;
(ii) the Developer Investigations;
(iii) administration of the Site Parcel Escrows and the
Site Transfer Escrow;
(iv) the preparation of the Development Project
Application, including, in the case of the Phase I Project,
the initiation of the public street closure and vacation
proceedings by the City as necessary or appropriate to
accommodate the Development Project Application, and the
submission of an application to the City for the issuance of
5/15/01 ct
SB200l:7825.8
I-17
one or more Certificates of Subdivision Compliance at the time
of close of the Site Transfer Escrow;
(v) consideration and approval by the City. of the
matters included in (iv), above;
(vi) review by the Developer and the Agency of the
conditions of approval by the City of matters covered in (iv)
and (v), above;
(vii) administration of the acquisition of the
Condemnation Parcels as referred by the Agency to the IVDA, if
any;
(viii) administration of the Site occupant relocation
program;
(ix) administration of the Harriman Place Improvement
Project by the Agency;
(x) coordination of the administration of the Harriman
Place Improvement Project, undertaken by the City under the
terms of the Harriman Construction Agreement with the
improvement of the Phase I Project by the Developer;
(xi) coordination of (x) above, with the development
project undertaken by In-N-Out on the In-N-Out Lands, if
applicable;
(xii)
(x), above,
Project;
administration and coordination of (iii) through
as applies to the Phase II Site and the Phase II
(xiii) review and confirmation of the dates and times
set forth in the Schedule of Performance for the performance
of certain obligations and satisfaction of various conditions
precedent with respect to the redevelopment of the Site and
within thirty (30) days following the approval of this
Agreement, review the Schedule of Performance for conformity
with this Agreement and if appropriate, revise for conformity
with this Agreement.
(b) The Agency shall initiate the Site Parcel assembly
program following the approval of this Agreement by the governing
board of the Agency and confirmation by the Executive Director that
each of the following conditions has been satisfied:
5/15/01 ct
SB2001:7825.8
1-18
(i) the Developer has delivered its written request
that the Agency proceed with the Site Parcel assembly program;
(ii) the Executive Director has accepted the evidence
provided by the Developer that the Developer has the funds
necessary to pay the Phase I Site Purchase Price, the Harriman
Place Charge and the Phase I Project improvement construction
costs;
(iii) the Executive Director has confirmed that the
funds then estimated by the Executive Director to be required
and necessary to pay for Agency acquisition costs under items
Section 2.4 (a) (i) , (ii) and (iv) inclusive, are available to
the Agency;
(iv) the Developer has provided the certificate as set
forth in Section 1.8;
(v) the Developer has provided the Agency with the
evidence of insurance as set forth in Section 2.20;
(vi) the Condemnation Parcel Acquisition Memorandum by
and among the IVDA, the City and the Agency, as described in
Section 2.3(d), has been accepted by the governing board of
the IVDA, the Mayor and Common Council and the governing board
of the Agency, in the sole and absolute discretion of each of
them;
(vii) the Developer and the Agency have approved the
public improvement scheduling memoranda for the Harriman Place
Improvement Project as provided in Section 2.12(b), and the
City and the Agency have entered into the Harriman
Construction Agreement, as provided in Section 2.12(e);
(viii)
the public
appropriate
substantial
Concept;
the City has taken appropriate action to initiate
street vacation proceedings as necessary or
to accommodate the redevelopment of the Site in
accordance with the Development Improvement Plan
(ix) the governing
real property appraisal
required for the Phase
Improvement Project;
board of the Agency has approved a
report for each Site Parcel as
I proj ect and the Harriman Place
(x) no information ):las come to the attention of the
Executive Director which may cause the aggregate amount of the
Site acquisition cost estimate as presented in Section 2.4(a)
5/15/01 ct
5B2001:7825.8
I-19
to materially exceed the sum of Three Million Four Hundred
Ninety Three Thousand Eight Hundred Seventy Two Dollars
($3,493,872) .
In the event that the Executive Director may fail to confirm
that each of the foregoing items has been accomplished by no later
than August 1, 2001, either party may terminate this Agreement as
provided in Section 5.10, unless at least ten (10) days prior to
such date, the parties agree, as provided by Section 2.3(f), to a
specific extension of the date by which the Executive Director may
confirm the satisfaction of one or more specific conditions as set
forth above.
(c) Within thirty (30) days following the Executive
Director's confirmation of satisfaction of the matters described in
Section 2.3 (b), the Agency shall transmit written offers to
purchase Site Parcels as necessary or convenient for the Harriman
Place Improvement Project and the Phase I Project, to each owner of
record thereof. Each such written offer shall be based upon a real
property appraisal report for the subject Site Parcel which has
been approved by the Agency. The Agency reserves the discretion to
engage in discussions and negotiations with the owner of each Site
Parcel regarding the terms and conditions of each offer of the
Agency, and the Agency further reserves the discretion to modify or
withdraw any pending offer of the Agency at any time prior to
acceptance by the owner of each Site Parcel. Upon acceptance by the
owner of a Site Parcel of the offer of the Agency, the Agency shall
promptly open a Site Parcel Escrow affecting such property as
provided in Section 2.7. In the event that an Agency offer is
either rejected or no response is forthcoming from the owner of the
Site Parcel within thirty (30) days following the date of
transmittal of the Agency offer, or in the event the Executive
Director determines that further discussion, negotiation or
modification of a pending Agency offer is unlikely to be accepted
by the owner of a Site Parcel, then inoevent the Executive Director
may refer the acquisition of such a Site Parcel to the IVDA for its
disposition as a Condemnation Parcel under Section 2.3(d).
(d) The Agency may request the IVDA to consider the
initiation of proceedings to acquire a Condemnation Parcel in
accordance with the terms and provisions of a Condemnation Parcel
Acquisition Memorandum by and among the IVDA, the City and the
Agency (the "Condemnation Memorandum"). The Developer and the
Agency each acknowledge and agree that the IVDA and the City each
reserve the sole and absolute discretion to approve the terms of
the Condemnation Memorandum and that the IVDA shall for itself
reserve the discretion to consider whether evidence supports the
basis of each of the findings set forth at Code of Civil Procedures
5/15/01 ct
SB2001:7B25.B
I-20
Sections 1240.030 and 1245.230 with respect to its consideration of
the referral of any Condemnation Parcel for acquisition by exercise
of the power of eminent domain. The Agency shall request the IVDA
to consider the acquisition of each Condemnation Parcel by an
exercise of the eminent domain powers of the IVDA, if necessary
after the Executive Director has determined that an Agency offer
has been rejected or that further discussion, negotiation or
modification of a pending Agency offer is unlikely to be accepted
by the owner of a particular Site Parcel. A referral by the Agency
of a Condemnation Parcel to the IVDA shall be accompanied by the
delivery of a sum in cash to the IVDA equal to the Agency's
approved real property appraisal for such Condemnation Parcel. The
IVDA shall use and apply such funds (together with other funds as
may be subsequently transferred by the Agency to the IVDA) to
acquire the Condemnation Parcels by exercise of the power of
eminent domain or by negotiated purchase in lieu of or in
compromise and settlement of any such condemnation proceeding as
set forth in the Condemnation Memorandum. Upon its acquisition of
each Condemnation Parcel (by judgment of condemnation or
otherwise), the IVDA shall transfer all of its right, title and
interest in such Condemnation Parcel to the Agency for disposition
and redevelopment. The Agency shall be responsible for the payment
and reimbursement of all of the following costs incurred by the
IVDA in connection with the consideration and acquisition by the
IVDA of any Condemnation Parcel:
(i) all amounts of just compensation payable to the
owner of the Condemnation Parcelj
(ii) expert witnesses and real property appraisal fees
of the IVDAj
(iii) escrow agent costs, title insurance and civil
engineering expenses of the IVDAj
(iv) trial costs and expenses, including attorney fees
of the IVDAj
(v) interest and other sums payable by the IVDA to the
owner of each Condemnation Parcel as a court may directj
(vi) relocation benefits and expenses of persons in
lawful possession of such property as provided by applicable
lawj
(vii) all costs and expenses allocated by a court or
payable by the IVDA in the event of an abandonment or
5/15/01 ct
SB2001:7825.B
1-21
dismissal of any condemnation proceeding, relating to an
Condemnation Parcel.
(e) In the event that the Developer may exercise its option
to acquire the Phase II Site, the provisions of Section 2.5(c) and
Section 2.5(d) shall be applicable to the Site Parcels within the
Phase II Site which the Agency may not have previously acquired in
connection with the Harriman Place Improvement Program, or
otherwise.
(f) The Schedule of Performance sets forth various dates and
times relating to the Site Parcel assembly program and the
accomplishment of the various tasks assigned to the responsible
party and the satisfaction of the conditions precedent for the
Close of the Site Transfer Escrow - for both the Phase I Site, and
later the Phase II Site. The parties agree and declare that time
is of the essence in the performance of such tasks and the
satisfaction of conditions precedent in view of the large
investment of resources which both parties recognize will be
required for the redevelopment of the Site and the undertaking of
the Harriman Place Improvement Project and the Phase I Project. In
the event that the date or time for the performance of a task or
the satisfaction of a condition relating to the Site Parcel
assembly program and/or the close of the Site Transfer Escrow
(Phase I Site) as set forth either in the text of this Agreement or
in the Schedule of Performance may not be achieved, then prior to
such date or time set forth in the Schedule of Performance the
parties shall, as part of their consultations under Section 2.3(a),
consider whether a modification to the Schedule of Performance may
be indicated. Any decision to approve a modification to a time or
date as provided in either this Agreement or the Schedule of
Performance shall be subject to the sole discretion of each party.
A modification of a time or date for performance of a particular
matter relating to the Site Parcel assembly program and/or the
close of the Site Transfer Escrow (Phase I Site) which does not
result in a change of more than sixty (60) days may be approved on
behalf of the Agency by the Executive Director in his or her
reasonable discretion. A modification of a time or date for
performance (or a series of such modifications) relating to the
Site Parcel assembly program and/or the close of the Site Transfer
Escrow (Phase I Site) which results in a change of more than sixty
(60) days shall be subject to the approval of the governing board
of the Agency in its sole discretion.
SECTION 2.4. Evidence of Funds Sufficient to Initiate
Assemblv of the Site.
5/15/01 ct
SB2001:7825.8
I-22
(a) This Preliminary Site Assembly Budget sets forth an
estimate of the various costs and expenses for the assembly of the
Site and the disposition of the Phase I Site to the Developer (and
later, subject to the exercise of the Developer's option with
respect to the Phase II Site) which the Developer and the Agency
believe to be reasonable in light of the facts and assumptions
known to each of them as of the date of approval of this Agreement
by the governing board of the Agency. The various sources of the
funds necessary for the assembly of the Site and undertaking the
Harriman Place Improvement Project and the Phase I Project are as
follows:
(i)
Site Acquisition Costs for Site
Parcels - Phase I Site and Corner
Parcel
$5,540,000
(ii) Site Acquisition Costs for new
public street right-of-way
alignment for Harriman Place
Improvements, including demolition
of structures in or adj acent to
right-of-way
$1,400,000
(iii) Phase I Site Purchase Price amount
payable by Developer (subject to
land area adjustment under Section
2.9 (g))
($3,476,128)
(iv) Agency relocation assistance
payments to occupants of portions
of the Site for Phase I Project and
Harriman Place Improvement proj ect,
including Corner Parcel (not-to-
exceed)
$1,130,000
(v) Amount payable by Developer to the
Agency as the Harriman Place Charge
($1,100,000)
Total net estimated Agency Site acquisition
costs for the Harriman Place right-of-way,
and Phase I Site
$3,493,872
In the event that at any time preceding the date when the
parties shall confirm that the Site Transfer Escrow (Phase I Site)
is in a condition to close under Section 2.8, the Agency reasonably
determines that any element of Agency Site Acquisition Costs
identified in subparagraphs (i), (ii), and/or (iv), above may exceed
5/15/01 ct
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1-23
the estimate as set forth, then the parties shall consider the
arrangements by which such additional cost for an item, or
additional aggregate cost in excess of $100,000, may be allocated
between the parties and paid in accordance with Section 2;18.
(b) The obligation of the Agency to exercise its best
efforts to complete the assembly of the Site, cause the Site
Transfer Escrow (Phase I Site) to be in a condition to close and
provide for the improvement of the Harriman Place Improvement
Project, is contingent upon and subject to confirmation by the
Agency that the funds necessary to pay the Agency acquisition cost,
and to pay for the Harriman Place Improvement Project, are
available to the Agency.
(c) As of the date of this Agreement the Developer has
provided the Agency with satisfactory evidence that the Developer
is financially qualified to undertake the Phase I Project and the
Phase II Project.
(d) As a condition precedent to the transmittal of any offer
of the Agency to purchase a Site Parcel, the Developer shall submit
to the Agency evidence reasonably satisfactory to the Executive
Director that the Developer: (i) has obtained sufficient equity
capital for the payment of the Phase I Site Purchase Price,
including any prepayment of a portion (or such portions) of the
Phase I Site Purchase Price as may be requested by the Agency under
Section 2.2(c) with respect to one or more Condemnation Parcels;
(ii) either has obtained or can obtain, as evidenced by a letter of
intent or similar instrument, sufficient equity capital and firm
and binding commitments for construction financing for the Phase I
Project; and (iii) either has obtained or can obtain, as evidenced
by a letter of intent or similar instrument, sufficient equity
capital and firm and binding commitments for permanent financing;
all as may be necessary for the payment of the full amount of the
Site Purchase Price and the Harriman Place Charge, to the Agency
and the construction of the Phase I Project in accordance with this
Agreement. In lieu of the foregoing, the Developer may submit
evidence to the Agency that it has sufficient funds of its own for
the purposes set forth in this Section, which evidence shall be
acceptable to the Agency in its sole discretion.
(e) Any and all Developer financing for the redevelopment
of Phase I the Project (and later, the Phase II Project) shall be
obtained by the Developer from reputable, recognized and well-
established financial institutions or lending sources including,
but not limited to, banks, savings and loan institutions, insurance
companies, real estate investment trusts, pension programs and the
like. Whenever the source of financing for all or part of the
5/15/01 ct
SB2001:7825.8
I-24
development is from other than the Developer, the Developer shall
promptly submit the following to the Agency:
(1) Copies of all construction and/or Phase I/Phase II
Site Parcel purchase financing commitments received by the
Developer; and
(2) Proof of acceptance of each such loan commitment
by the Developer and proof of payment of all up-front loan
commitment fees, if any.
(f) The Executive Director shall approve or disapprove such
documents and/or financing commitments or sources within fifteen
(15) business days of receipt by the Agency of the documents and
information required hereunder; provided, however, that the failure
of the Executive Director to disapprove any of the foregoing
matters in writing within said fifteen (15) business day period
shall be deemed to constitute approval thereof.
(g) Prior to submitting documents and evidence to the Agency
as required by this Section, the Developer shall obtain approval by
its lender(s) for the Development Project Application as provided
in this Agreement.
(h) A preliminary Site Assembly Budget for the Phase II
Project is presented as follows:
(i) Agency acquisition costs for the
Site Parcels - Phase II Site
$2,070,000
(ii) Agency relocation assistance
payments to occupants of portions
of the Site for the Phase II Site
$680,000
(iii) Phase II Site Purchase Price
amount payable by Developer
($922,260)
(iv) Agency miscellaneous costs payable
by Agency to third parties not
included in (i) or (ii), above
$200,000
Total net estimated Agency Site
acquisition costs Phase II Site
$2,027,740
.
(i) In the event that by the latest date set forth in the
Schedule of Performance, the Developer may not have submitted the
5/15/01 ct
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1-25
evidence of each of the financing commitments as set forth in this
Section 2.4, then in such event either party may terminate this
Agreement as provided in Section 5.10.
SECTION 2.5.
Site).
Site Transfer Escrow (Phase I Site and Phase II
(a) The Agency and the Developer shall establish an
appropriate escrow for the exchange of documents and the payment of
the Site Purchase Price for the transfer of the portions of the
Site as necessary or appropriate for the redevelopment of the
Phase I Site, and later the Phase II Site, as provided in Section
2.5(e), to the Developer (i.e.: the Site Transfer Escrow). The
Developer and the Agency shall execute such additional escrow
instructions as consistent with the assembly, transfer and
conveyance of the Phase I Site to the Developer. The Escrow Agent
is hereby empowered to act under this Agreement, and upon
indicating its acceptance of this Section 2.5 in writing, shall
carry out its duties as Escrow Agent hereunder.
The Agency and Developer each agree to deliver to the Escrow
Agent all documents necessary for the transfer of the indicated
portions of the Site to the Developer at the time of closing of the
Site Transfer Escrow in conformity and, within the times, as
provided in this Agreement.
The Developer also shall pay the Escrow Agent (separate and
apart from and in addition to the Phase I Site Purchase Price): (i)
one half (~) of cost of the applicable Site Transfer Escrow fees,
including the escrow fees, costs and expenses of the Escrow Agent,
recording fees, messenger fees and the like, promptly after the
Escrow Agent has notified the Developer of the amount of such
escrow fees, charges and costs allocated to the Developer; (ii) all
of the escrow costs allocated to the Agency under Section 2.7 at
the close of each Site Parcel Escrow; and (iii) the Developer shall
also pay the documentary transfer taxes due upon the recordation of
the Agency Grant Deed for the transfer of the Phase I Site. The
Agency shall pay the Escrow Agent as a miscellaneous cost item
under Site acquisition costs, one-half (~) of the applicable Site
Transfer Escrow Fees as set forth in (i) of the preceding sentence.
(b) The Escrow Agent is authorized to:
1. serve concurrently as the escrow agent under each
of the Site Parcel Escrows;
5/15/01 ct
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I-26
2. pay and charge the Developer and the Agency for
their respective shares of the applicable Site Transfer Escrow
fees, charges and costs payable under the Agreement; and
3. record any instruments delivered through the Site
Transfer Escrow at the instruction of the parties.
(c) The Site Transfer Escrow (Phase I Site) shall close when
the conditions set forth in Section 2.8 have been satisfied;
provided however that such Site Transfer Escrow shall be in a
condition to close and shall close by a date not later than January
18, 2002, unless at least thirty (30) days before such date, the
parties agree to an extension of the date for the close of the Site
Transfer Escrow as provided in Section 2.3(f).
(d) Notwithstanding any other provision of this Section 2.5
to the contrary, if a Site Parcel has been referred by the Agency
to the IVDA for acquisition as a Condemnation Parcel, the Developer
shall deliver the portion of the Site Purchase Price allocated on
a gross land area basis to such Condemnation Parcel to the Agency
in immediately available funds outside of the Site Transfer Escrow
within ten (10) days following the written request of the Agency as
provided in Section 2.2(c). The Agency shall use and apply such
portion of the Phase I Site Purchase Price as allocated to the
particular Condemnation Parcel, together with other Agency funds,
to cause the IVDA to acquire such Condemnation Parcel as provided
in Section 2.2(d). The Escrow Agent shall acknowledge a credit in
favor of the Developer in the Site Transfer Escrow for the portion
of the Site Purchase Price delivered by the Developer to the Agency
for each Condemnation Parcel.
(e) In the event that the Developer may exercise its option
to acquire the Phase II Site, the provisions of this Section 2.5(a)
through Section 2.5(d) inclusive shall be applicable to the Site
Transfer Escrow (Phase II Site). Where references in the preceding
subsections of this Section 2.5 are to the "Phase I Site," such
references for the purposes of the Developer's exercise of its
option to acquire the Phase II Site, shall mean and refer to the
"Phase II Site".
SECTION 2.6.
Aqencv Relocation Assistance Proqram.
(a) Provided that the Site Parcel assembly program is
commenced by the Agency for the acquisition of the Site Parcels
necessary for the Harriman Place Improvement Project and the Phase
I Site, the Agency shall take all necessary and appropriate steps
to provide for the relocation of occupants of each affected Site
Parcel; provided however, that the relocation program for certain
5/15/01 ct
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1-27
Site Parcels included in the Phase II Site may be deferred by the
Agency at its discretion. The relocation of each such occupant of
the affected portions of the Site shall be accomplished in
accordance with the provisions of Government Code Section 7260 et
sea., the relocation assistance plan for the Site as approved by
the governing board of the Agency and other applicable law; The
Agency shall be responsible for paying for all relocation
assistance benefits payable to occupants of the Site Parcels (both
commercial and residential occupants) as part of the Site
acquisition costs. The Agency shall have the sole discretion to
select and retain the services of consultants to assist the Agency
with the evaluation processing and administration of each
relocation assistance transaction.
(b) Prior to the time of the close of each Site Parcel
Escrow, the occupant(s) of the affected Site Parcel shall be given
an appropriate written notice of displacement by the Agency which
instructs the occupant to vacate the premises and surrender
possession thereof to the Agency (or to the Developer, if
applicable), within the following times: (i) ninety (90) days
following the date of such notice of displacement, or (ii) ninety
(90) days following the close of such escrow; or (iii) such other
date designated by the Agency. Each notice of displacement shall
advise the occupant that the Agency shall pay relocation assistance
benefits to each qualifying occupant in accordance with applicable
law. The Developer acknowledges and agrees that no work of
improvement of the Phase I Project, or later the Phase II Project,
other than on-site geotechnical testing and survey work, shall
occur on a Site Parcel (or a Condemnation Parcel, as applicable)
until the occupants thereof have surrendered possession of such
Site Parcel under a notice of displacement or otherwise.
(c) In the event that the Agency may elect to cause the Site
Transfer Escrow to close with one or more occupants still in
possession of any affected Site Parcel, then in such event, the
Agency shall be responsible for enforcing its notice of
displacement against each such occupant, including without
limitation, the payment of all costs associated with either the
Agency or the Developer obtaining a writ of possession against such
occupant in any case where such occupant may not comply with the
notice of displacement or otherwise be in breach of the occupants
lawful right of possession of such Site Parcel.
(d) Notwithstanding anything in this Section 2.6 to the
contrary, no occupant of the Site shall be deemed to be a
beneficiary of any obligation of the Agency to pay relocation
assistance benefits until such time as the Agency has issued its
written notice of displacement to such occupant.
5/15/01 ct
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1-28
SECTION 2.7.
Site Parcel Escrows.
(a) The Escrow Agent shall serve as the escrow agent for
each Site Parcel Escrow. The Developer and the Agency shall be
jointly responsible for paying for all of the customary and
reasonable costs, fees and charges of the Escrow Agent in
connection with the performance of its duties as escrow agent for
each Site Parcel Escrow. The Site Parcel Escrow fees allocated to
the Agency shall be payable by the Developer as set forth in
Section 2.6(a) at the time of close of the applicable Site Transfer
Escrow.
(b) Promptly following the opening of each Site Parcel
Escrow the Agency shall cause the Title Company to deliver a
preliminary title report for the particular Site Parcel (together
with legible copies of the recorded exceptions to title noted in
such report), to the Agency, and to the extent that a Site Parcel,
or portion thereof, may be included in the Phase I Site or the
Phase II Site, then a copy of such preliminary title report shall
also be provided to the Developer (together with legible copies of
the recorded exceptions to title noted in such report), for the
review and approval by each of them as provided in Section 2.9.
The Agency shall acquire lien-free merchantable title from the
owner of each such Site Parcel, subject only to utility service
easements and other matters approved by the Agency (or approved by
the Agency in consultation with the Developer, as applicable) and
the possessory interests of month-to-month tenants in lawful
possession of such Site Parcel. The Developer shall have twenty
(20) days from its receipt of a preliminary title report for a
particular Site Parcel (together with copies of each tenant rental
agreement, if applicable) to approve or reject the condition of
title in such Site Parcel. In the event that the Developer may not
confirm its acceptance or rejection of the condition of title in a
particular Site Parcel within such period of time, the condition of
title in such Site Parcel shall be deemed rejected by the
Developer.
(c) Within ten (10) days following Agency notification to
the Developer that a Site Parcel is available for inspection, the
Developer may request the Agency to schedule and conduct an on-site
inspection of such Site Parcel within thirty (30) days thereafter,
at a time which is reasonably convenient for the owners and
occupants of each Site Parcel. The Developer may accompany the
Agency staff during an inspection, and the Developer or its agents
may take intrusive samples of the soils and any structure thereon
to conduct such tests as its may deem appropriate for the detection
of any hazardous waste or substance and the characteristics of the
geotechnical condition of the soils of each such Site Parcel.
5/15/01 ct
582001:7825.8
1-29
Within thirty (30) days following the date on which the Developer
accompanies the Agency staff on any such inspection of a Site
Parcel, the Developer shall confirm in writing to the Agency
whether:
(i) the Developer accepts the environmental and
geotechnical condition of the particular Site Parcel; or
(ii) the Developer requires additional time to conduct
further testing or analysis; or
(iii) the Developer rejects the environmental or soil
condition of the Site Parcel.
(d) In connection with the Site Parcel Escrows, the Escrow
Agent is authorized to:
(1) serve concurrently as the escrow agent for the
Developer and the Agency under Section 2.5 for the Site
Transfer Escrow;
(2) pay and charge the Agency for Site Parcel Escrow
costs and charges;
(3) [RESERVED -- NO TEXT]
(4) record any instruments delivered through a Site
Parcel Escrow as instructed by the Agency.
(e) Unless otherwise instructed by the Agency, the Escrow
Agent shall coordinate and schedule the close of each Site Parcel
Escrow to occur concurrently when the conditions set forth in
Section 2.8 have been satisfied; provided however, that each Site
Parcel Escrow as necessary or appropriate for the initiation of the
improvement of the Phase I Project by the Developer shall be in a
condition to close and shall close by a date not later than January
18, 2002, or such later date as confirmed in writing to the Escrow
Agent by the Agency.
(f)
[RESERVED - NO TEXT]
Escrow details]
[Other close of Site Parcel
(g) [RESERVED - NO TEXT]
(h) The Developer shall not be a party to any Site Parcel
Escrow and no instruction of the Developer to the Escrow Agent
under the Site Transfer Escrow shall have any force or effect as to
5/15/01 ct
8B2001:7825.8
I-30
the Agency on the Escrow Agent in any Site Parcel Escrow
transaction.
SECTION 2.8. Condi tions For Close of Phase I Si te Escrow and
Site Parcel Escrows.
(a) The Developer shall not be obligated to pay the Phase I
Site Purchase Price and accept the transfer of the Phase I Site
from the Agency and cause the close of the Site Transfer Escrow
(Phase I) to occur until the following conditions have been
satisfied:
(1)
the Developer has approved
condition of each site Parcel
set forth in Section 2.10(b);
the environmental
(Phase I Site) as
(2) the Developer has approved the environmental
condition of each Condemnation Parcel (Phase I
Site), as set forth in Section 2.10(c);
(3) the Developer has approved the condition of title
of each Site Parcel (Phase I Site), including each
Condemnation Parcel except as to the effect on
insurable title of the pending Condemnation
proceedings, as set forth in Section 2.9(e);
(4) the Developer has confirmed within 110 days
following the date of the order for prejudgment
possession for each such particular Condemnation
Parcel that the Title Company has agreed to
provide insurable title in favor of the Developer
for each such Condemnation Parcel on terms
reasonably acceptable to the Developer as set
forth in Section 2.9(e);
(5) the Developer has obtained the approval of its
Development Project Application for the Phase I on
terms and conditions reasonably acceptable to the
Developer by not later than the date indicated in
the Schedule of Performance;
(6) the Developer and the Agency have jointly approved
the Harriman Place improvement coordination
memorandum as provided in Section 2.12(b);
(7) the Title Company shall be in a position to
deliver its policy of title insurance in favor of
5/15/01 ct
5B2001:7825.8 I-31
the Developer as provided in Section 2.9 at the
close of the Site Transfer Escrow (Phase I);
(8) the Agency has confirmed to the Developer the
satisfaction of its conditions under Section
2.8(b); and
(9) the Agency is not then in default under this
Agreement.
(b) The Agency shall not be obligated to transfer the
Phase I Site, or any portion thereof, to the Developer and cause
the close of the Site Transfer Escrow (Phase I) to occur until the
following conditions have been satisfied:
(1) each Site Parcel Escrow for the Phase I Site is in
a condition to close concurrently with the close
of the Site Transfer Escrow;
(2) the IVDA has provided for the transfer of each
Condemnation Parcel in the Phase I Site to the
Agency, either in fee or subject to a entry of a
final judgment in condemnation;
(3) the Developer has confirmed to the Agency the
satisfaction of its conditions under Section
2.8 (a) ;
(4) the Developer has delivered the Phase I Site
Purchase Price to the Escrow Holder in immediately
available funds; and
(5) the Developer is not then in default under .this
Agreement.
(c) In the event that the Developer may exercise its option
to acquire the Phase II Site, the provisions of Section 2.8(a)
which refer to the Developer's condition for the close of the Site
Transfer Escrow "Phase I Site" shall then be deemed to apply to the
Phase II Site and the provisions of Section 2.8(b) which refer to
the Agency's conditions for the close of the Site Transfer Escrow
"Phase I Site" shall then be deemed to apply to the Phase II Site.
5/15/01 ct
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SECTION 2.9. Obliaation of the Aaencv to Provide Title
Insurance at Time of Close of Site Transfer Escrow (Phase I Site) .
(a) As of the date of this Agreement, the Agency does not
own fee title or have any other equitable interest to any portion
of the Site. The parties intend that the Agency shall exercise its
best effort to cause the condition of title in the Phase I Site,
and later the Phase II Site, to be in a marketable condition for
the purposes of the redevelopment of the Phase I Project and the
Phase II Project, as applicable, by the Developer.
(b) In addition to the preliminary title report information
as shall be delivered to the Developer under Section 2.7(b) with
respect to each Site Parcel Escrow, within 60 days following the
approval of this Agreement by the governing board of the Agency and
subject to the cooperation of the Developer in completing a survey
for the Site in a form tentatively acceptable to the Title Company
for purposes of this subsection (b), the Agency shall cause to be
delivered to the Developer a preliminary title report for an
Extended Coverage ALTA Owner's Policy (Form B 1970) for each parcel
of land, or portion thereof, included in the Phase I Site, together
with legible copies of all instruments referred to in the title
report as a title exception. Within thirty (30) days following its
receipt of either the preliminary title report information
delivered to the Developer under Section 2.7 (b), or the title
survey information set forth in Section 2.9 (f), the Developer shall
specifically identify and give notice in writing to the Agency as
part of its Developer Investigations of each exception or
disapproval of any matter relating to title in the Phase I Site
which the Developer may in its reasonable discretion take (each
referred to as a "Title Exception"). Each Title Exception shall
reference the particular Site Parcel or Condemnation Parcel, to
which it corresponds, and describes in suitable detail the action
which the Developer believes is indicated to cure or correct such
Title Exception. If the Developer fails to disapprove a title
matter in writing delivered to the Agency as a Title Exception
within thirty (30) days following receipt, then each Title
Exception shall remain and be deemed a Title Exception.
(c) Within twenty (20) days following its receipt of notice
of a Title Exception from the Developer under Section 2.9(b), the
Agency may, but is under no obligation to do so, confirm in writing
to the Developer whether each such Title Exception shall be cured,
at the time of the Close of the Site Transfer Escrow (Phase I
Site); provided however that for the purposes of this Section 2.9,
a month-to-month possessory interest of an occupant in lawful
possession of a Site Parcel shall be deemed cured by the Agency as
provided in Section 2.6 and Section 2.8, if the Agency has issued
5/15/01 ct
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its notice of displacement to such occupant prior to or
concurrently upon the close of the Site Transfer Escrow. If the
Agency may fail to confirm whether one or more of such Title
Exceptions shall be cured by the Agency, within such twenty (20)
day period of time, then the Title Exception shall remain, and the
Agency shall have no further duty to cure such Title Exception, and
the Developer may, within five (5) days thereafter in writing
addressed to the Agency and the Escrow Agent, elect to waive its
objection to such Title Exception.
(d) If by the date set forth in the Schedule of Performance,
any Title Exception may remain which has not been cured by the
Agency under Section 2.9(c), or which has been expressly waived in
writing by the Developer, or otherwise resolved to the mutual
satisfaction of the parties, then either party may upon thirty (30)
days written notice to the other party which references this
Section 2.9, terminate this Agreement and cancel the Site Transfer
Escrow. In the event of a termination of the Agreement and
cancellation of the Site Transfer Escrow on the grounds set forth
in this Section 2.9, the Agency shall be responsible for paying for
all of the reasonable and customary escrow cancellation and
preliminary title report costs of the Title Company, if any, and
the parties shall each be released from any further responsibility
or liability hereunder, except as may arise under Section 2.10 or
Section 6.8.
(e) For the purpose hereof, the IVDA's lis pendens in its
condemnation proceeding and order, or proposed order of prejudgment
possession which affects a Condemnation Parcel, shall be deemed to
be a "Title Exception" whether or not such a Title Exception may
have been identified in the preliminary title report under Section
2.9 (b) _ With respect to any Condemnation Parcel, the provisions of
Section 2.9(c) and 2.9(d) shall be applicable to the best efforts
responsibility of the Agency under the Condemnation Memorandum to
cure (or cause the IVDA to cure) any Title Exception affecting such
a Condemnation Parcel.
(f) As part of its Developer Investigation, the Developer
shall prepare a survey of the Phase I Site by a civil engineer
selected by the Developer to enable the Title Company to issue at
the time of either the close of the Site Transfer Escrow such
additional items of survey title insurance coverage or title
insurance survey endorsements as the Developer may require;
provided however that no exception to title as may be indicated by
such survey shall be deemed to be a Title Exception for the
purposes of Section 2.9(c) unless the Developer delivers written
notice of such title survey exception to the Agency by no later
5/15/01 ct
5B2001:7825.8
1-34
than ninety (90) days following the opening of the Site Transfer
Escrow.
(g) The Phase I Site Purchase Price shall be subject to a
final confirmation prior to the close of the Phase I Site Escrow
based upon the area of the lands to be transferred to the Developer
as confirmed by the ALTA title survey. For purposes of this
Section 2.9(g), lands which may be transferred to the Developer
after the Phase I Site Escrow has been closed (such as the lands
described in Attachment No. 1G, or the Condemnation Parcel, as
applicable) shall be excluded from the ALTA title survey land area
confirmation. The area of any such excluded lands shall be
confirmed at such time as such land may be transferred by the
Agency to the Developer, as applicable.
(h) Provided the Title Company is prepared to issue its
policy of title insurance to the Developer in a form reasonably
acceptable to the Developer, the Agency shall pay the cost of the
premium of title insurance in favor of the Developer at the time of
the close of the Site Transfer Escrow in an amount equal to the
premium payable under a CLTA Owner's Standard Policy of insurance.
The Developer shall be responsible for paying the additional cost
of the title insurance premium charged by the Title Company to
issue the final form of the policy of title insurance in favor of
the Developer described in the first sentence of this subsection in
excess of the amount of the CLTA Owner's Standard Policy premium
payable by the Agency.
(i) In the event that the Developer may exercise its option
to acquire the Phase II Site, the provisions of this Section 2.9(b)
through 2.9(h), inclusive shall be applicable to the Site Transfer
Escrow (Phase II Site). Where references in the preceding
subsections of this Section 2.9 are to the "Phase I Site," such
references for the purposes of the Developer's exercise of its
option to acquire the Phase II Site shall mean and refer to the
Phase II Site.
SECTION 2.10. Due
Investiqations.
Diliqence
Period
and Developer
(a) Within ten (10) days following the date on which the
Agreement is fully executed by the parties, the Agency shall make
available for inspection and copying by the Developer all of the
public record documents requested by the Developer pertaining to
the redevelopment of the Site then in possession of the Agency.
(b) The Developer shall.have 60 days following the date the
opening of each Site Parcel Escrow to complete all of its Developer
5/15/01 ct
5B2001:7825.8
1-35
Investigations at its sole cost and expense subject to the
provisions of Section 2.7(C}. Any of the following tasks, work,
review or analysis relating to its Developer Investigations of the
condition and suitability of the Phase I Site for the ..Phase I
Project including any intrusive testing or engineering study of the
Phase I Site or intrusive sampling of any structure on the Phase I
Site subject to the applicable provisions of the Site Parcel
Acquisition Agreement for the particular Site Parcel. The Agency
makes no representation or warranty to the Developer relating to
the suitability of the Phase I Site for use by the Developer. The
Developer shall rely solely and exclusively upon the results of its
Developer Investigations of the Phase I Site including geotechnical
soil conditions and compliance with applicable laws pertaining to
the use of the Phase I Site by the Developer and any other matters
relevant to or arising from the suitability of the Phase I Site for
the Phase I Project, including without limitation, a construction
loan commitment in favor of the Developer from a third party
construction lender on terms satisfactory to the Developer, as the
Developer may deem necessary and proper.
(c) Within 30 days following the date on which a
Condemnation Parcel is made available by the IVDA for inspection by
the Developer, the Developer shall complete its Developer
Investigations and confirm whether:
(i) the Developer accepts the environmental condition
and geotechnical condition of the particular Condemnation
Parcel; or
(ii) the Developer rejects the environmental conditions
or the geotechnical condition of the particular Condemnation
Parcel.
In the case of a Condemnation Parcel, the conduct of any such
Developer Investigations on such lands shall be subject to the
appropriate order of the Court and the concurrence of the IVDA.
The Agency shall exercise best efforts to assist and cooperate with
the Developer to undertake such investigation one or more
Condemnation Parcels upon written request of the Developer.
(d) The Developer shall give the Agency and the Escrow Agent
written notice of its satisfaction of the condition of each Site
Parcel, or portion thereof included in the Phase I Site, which
references this Section 2.10 within the period of time set forth in
Section 2.10(b} for each such ~ite Parcel Escrow (and within 30
days following the date on which the Condemnation Parcel is made
available by the IVDA for inspection by the Developer in the case
5/15/01 ct
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of a Condemnation Parcel). In the event that the Developer, in its
sole and absolute discretion, is not satisfied with any aspect of
the condition of a Site Parcel, or a Condemnation Parcel, as
applicable, then the Developer shall deliver to the Agency and the
Escrow Agent a rejection notice which references this Section 2.10
and describes the particular matter which the Developer rejects.
If such notice of rejection is delivered, then the parties shall
confer about the means by which such rejection may be withdrawn by
the Developer for particular Site Parcel, and thereafter, until
such time as the rejection may be withdrawn by the Developer at its
option, the Agency shall have no further obligation to proceed with
the Site assembly program. If the Developer does not accept the
condition of one or more Site Parcels (or Condemnation Parcels, as
applicable) by the end of the Due Diligence Period as evidenced by
the appropriate written notice to Agency and the Escrow Agent, the
Developer shall be deemed to have rejected the condition of the
Site.
The Developer acknowledges that there is a high probability
that the Phase I Site and the Phase II Site contain structures
which have been improved with asbestos containing materials ("ACM")
and lead-based paint ("LBP") and that if the Developer delivers its
notice of acceptance of the Phase I Site, and later the Site
Transfer Escrow closes, that the Developer shall be solely
responsible, at no cost to the Agency, for abating and transporting
such ACM and/or LBP-containing demolition wastes for disposal off-
site at a lawful waste disposal facility in the manner required by
law. The Developer acknowledges that the Agency assumes no
liability for damages for personal injury, illness, disability, or
death to the Developer, or any person, including members of the
general public, arising from or incident to the use, abatement,
handling, removal, transportation or disposal of any ACM or LBP
from or in any structure on the Phase I Site and/or the Phase II
Site. The Developer further acknowledges that there is a high
probability that both the Phase I Site and the Phase II Site
contain buried vaults, subsurface debris and non-native soils as
previously imported by unknown third persons from off-site
locations, abandoned infrastructure and utilities and other man-
made materials associated with the prior improvement and use of the
Site. The Developer shall accept all such conditions of the Phase
I Site, and later the Phase II Site, without any liability to the
Agency whatsoever upon delivery of its written notice of acceptance
of condition. The written notice of acceptance of condition of the
Phase I Site shall evidence the acceptance of the Phase I Site in
its existing "AS IS," "WHERE IS" and "SUBJECT TO ALL FAULTS"
condition as of the last day ot. the Due Diligence Period. At its
sole option and discretion, the Developer may elect to accept the
Phase I Site in its "AS IS,""WHERE IS" and "SUBJECT TO ALL FAULTS"
5/15/01 ct
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condition at any time before the end of the Due Diligence Period;
provided however that the Developer may not commence the
improvement of the Phase I Project including the demolition of any
structure thereon, until all of the other conditions for the
occurrence of the close of the Site Transfer Escrow have been
satisfied.
SECTION 2.11. Access to Site for Developer Investiqations.
During the applicable Due Diligence Period for the Phase I Site,
and later for the Phase II Site" the Agency shall provide the
Developer and the Developer's agents with access to the Phase I
Site during normal business hours as set forth in the general form
of the Agency's Site Parcel Acquisition Agreement and Section
2.7(c), in order to conduct the Developer Investigations as may be
indicated. The performance of any work of the Developer
Investigations on the Phase I Site or later on the Phase II Site
shall not unreasonably disrupt the use or occupancy of each owner
of the applicable Site Parcel or the business operations of Agency.
The Developer shall be liable for any damage or injury to any
person occasioned by the acts of the Developer, its employees,
agents or representatives during the course of performance of any
Developer Investigations on the Phase I Site or the Phase II Site,
as applicable, and the Developer shall, and does hereby, indemnify
and hold harmless Agency and its officers, directors, agents and
employees from any and all liens, claims, demands or liability
resulting therefrom. Developer access to a Condemnation Parcel
should be subject to an appropriate order of the Court, as set
forth in Section 2.10. Prior to commencing any Developer
Investigation, the Developer shall deliver evidence of insurance to
the Agency as provided by Section 2.20 hereof.
SECTION 2.12. Harriman Place Improvement Proiect.
(a) The amount payable by the Developer as the Harriman
Place Charge is One Million One ... Hundred Thousand Dollars
($1,100,000). The Developer shall provide written confirmation to
the Agency that the Developer shall pay the Harriman Place Charge
in accordance with the schedule set forth in Section 2.12(e).
(b) By the date not later than indicated on the Schedule of
Performance, the Developer and the Agency shall jointly approve a
written public improvement scheduling memorandum for the Harriman
Place Improvement Project. Such memorandum shall provide for the
coordination of the improvement of the Harriman Place Improvement
Project under the Harriman Construction Agreement, with the
improvement of the Phase I Project by the Developer.
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(c) The Agency shall have no obligation to approve such
written public improvement scheduling memorandum for the Harriman
Place Improvement Project in the event that Agency is not able to
confirm, in its sole discretion by the date indicated in the
Schedule of Performance, that a source of funds shall be available
to the Agency under either the Harriman Construction Agreement or
otherwise to undertake the construction and improvement of such
project.
(d) Subject to the close of the Site Transfer Escrow
(Phase I Site), the Agency shall cause the Harriman Place
Improvement Project to be constructed and installed in accordance
with the terms, conditions and schedule of completion as set forth
in the joint memorandum described in Section 2.12(b).
(e) Within 14 days following the approval of the Agreement
by the governing board of the Agency, or as soon thereafter as
feasible, the Agency intends to enter into the Harriman
Construction Agreement with the City. The terms of such agreement
shall be in a form acceptable to the City and the Agency in their
sole discretion. The Agency covenants to the Developer that
following the approval of such agreement by the City, the Agency
shall not approve any material change to the new Harriman Place
right-of-way alignment which abuts the Phase I Site, or approve
other material changes to design elements of the Harriman Place
Improvement Project set forth in Attachment No. 12 without the
prior written approval of the Developer. Such approval by the
Developer shall not be unreasonably withheld.
Provided that the cost of the work to be performed under the
Harriman Construction Agreement (including the related right-of-way
acquisition costs) is funded under an infrastructure loan agreement
by and between the State of California and the City in an amount of
not less than $2,000,000, and the funds under such infrastructure
loan agreement are available for disbursement to the City by a date
not later than close of the Site Transfer Escrow (Phase I Site),
subject to satisfaction of disbursement conditions as required by
the State, the Developer shall pay the Harriman Place Charge to the
Agency in three (3) equal installments:
(i) 1/3 of the charge shall be payable by the Developer
on the date of commencement of the work of improvement of the
Harriman Place Improvements by the City or the Agency, as
applicable, under a public works contract awarded for such
purposes; and
(ii) 1/3 of the charge shall be payable by the Developer
within thirty (30) days following on the date when the Agency
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reasonably estimates that 60% of the work or improvement (by
value of quantities supplied and work performed) of the
Harriman Place Improvements have been completed; and
(iii) 1/3 of the charge shall be payable by the Developer
within thirty (30) days following the date on which the City
has accepted the Harriman Place Project Improvements as
complete.
In the event that funds may not be available to the City under
the infrastructure loan agreement with the State of California, as
referenced in the preceding paragraph, for any reason by a date not
later than close of the Site Transfer Escrow (Phase I Site), then
in such event, the Developer shall pay the full amount of the
Harriman Place Charge to the Agency concurrently upon the close of
the Site Transfer Escrow (Phase I Site).
(f) Off-site improvements within the Harriman Place public
street right-of-way as necessary or appropriate to accommodate the
redevelopment and use of the Phase II Site which are not
specifically set forth in Attachment No. 12 as included
improvements to be caused to be undertaken by the Agency, shall be
the sole cost and responsibility of the Developer or such third
person or entity which may hereafter undertake the redevelopment of
the Phase II Site.
SECTION 2.13. Phase I Proiect REA.
The Phase I Project REA contains commercial shopping center
easements, on-site vehicle parking coordination arrangements,
tenant improvement development and signage controls, property
maintenance standards, common area use and maintenance standards as
customary for commercial shopping center projects comparable in
quality and size to the Phase I Project. A copy of the Phase I
Project REA is on file with the Agency and is hereby approved. The
Developer shall not materially modify or amend the Phase I Project
REA without the prior written consent of the Agency, and such
consent shall not be unreasonably withheld, conditioned or delayed.
SECTION 2. 14 .
In-N-Out Burqer Owner Participation Aqreement.
(a) The Agency reserves the privilege in its discretion to
enter into a separate agreement (herein, an "OPA") with In-N-Out
Burger which affects the In-N-Out Burger Site and the Corner
Parcel, as provided in this Section 2.14. Legal descriptions of
the In-N-Out Burger Site and the Corner Parcel are included in
Attachment Nos. 1F and 1E, respectively.
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(b) The OPA shall contain the provisions set forth in
Section 2.14 (c) and such other terms and conditions as may be
mutually acceptable to 1n-N-Out Burger and the Agency in the
discretion of each of them; provided however that the Developer
shall at the request of the Agency, enter into an on-site driveway
easement and maintenance agreement with 1n-N-Out Burger affecting
a portion of the Site (the "1n-N-Out Driveway REA") which benefits
and burdens the Site and the lands subject to the OPA (e.g.: the
In-N-Out Site and the Corner Parcel). The 1n-N-Out Driveway REA
shall be substantially the form as the draft of such agreement on
file with the Agency Secretary on the date when this Agreement is
approved by the governing board of the Agency, together with such
technical and conforming changes as may be reasonably requested by
In-N-Out Burger and approved by the Agency. Notwithstanding
anything in the preceding sentences to the contrary, any proposed
technical changes or modification to the final form of the 1n-N-Out
Burger REA which may be requested by either the Agency or 1n-N-Out
Burger at any time after a date which is 30 days preceding the date
of approval of this Agreement by the governing board of the Agency
shall not be at material variance with any other provision of the
draft In-N-Out Driveway REA as on file with the Agency Secretary.
(c) The OPA shall contain the following general provisions:
(i) the lands subject to the OPA shall be acquired and
redeveloped by 1n-N-Out Burger;
(ii) such lands shall be redeveloped for a single drive-
thru restaurant use only;
(iii) the improvement of such lands shall be of a high
quality design and site development standard of comparable
quality to the Phase I Project;
(iv) the improvement of such lands shall be promptly
initiated and diligently prosecuted to completion by a date
not later than July 1, 2002, subject to force majeure events
and delays associated with Agency's acquisition of the lands
included in the Corner Parcel;
(v) the Developer shall not contribute to any cost of
expense associated with any obligation undertaken or assumed
by either party to the OPA; provided however that the
Developer shall reserve space on its. shopping center on-
premise advertizing sign structures for the Phase I Project
(subject to compliance by 1n-N-Out of all applicable City
development regulations) for occupancy by 1n-N-Out on terms
which are not materially less favorable than offered by the
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Developer to the other tenants of the Developer leasing
comparably sized and valued structures within the Phase I
Project;
(vi) the Agency shall not consent to a material
amendment to the OPA after the date on which the Developer has
executed (or confirmed its readiness to execute) the final
form of the In-N-Out Driveway REA, without the prior approval
of the Developer, and such approval by the Developer shall not
be unreasonably withheld;
(vii) in the event that at any time following the close
of the Site Transfer Escrow (Phase I Site), In-N-Out may be in
material default with respect to the completion of its
redevelopment responsibilities and covenants to the Agency
under the OPA, the Developer may exercise its remedies under
the In-N-Out Driveway REA.
(d) In the event that In-N-Out and the Agency may fail for
any reason in the sole and absolute discretion of either of them to
jointly enter into the OPA by July 19, 2001, then in such event the
Developer shall be under no further obligation to execute the In-N-
Out Driveway REA, and the Agency shall cause the Corner Parcel to
be transferred to the Developer at or following the close of the
Site Transfer Escrow as provided in Section 2.16.
SECTION 2.15. Developer Option to Purchase II Site and Phase
II Site Transfer to Developer.
(a) For the purposes of this Section 2.15 the words "Phase
II Site Escrow" shall mean and refer to a land transfer transaction
by and among the Developer, the Agency and the Escrow Agent which
has the same elements as set forth in Section 2.5. In the event
that the Developer may give the Agency its notice to initiate
acquisition proceedings for the Phase II Site (the "Developer Phase
II Notice") as set forth below, the parties shall execute escrow
instructions to the Escrow Agent for the Phase II Site Escrow in a
form as consistent with this Section 2.15 and as jointly
acceptable.
(b) Subject to the terms and conditions hereof and the
receipt by the Agency of the Developer Phase II Notice, the Agency
hereby agrees that the Agency shall exercise its best efforts to
assemble the Site Parcels as necessary or appropriate for the Phase
II Site and to transfer the Phase II Site to the Developer, and the
Developer agrees to purchase the Phase II Site from the Agency for
the sum of
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(i) Three Dollars and Seventy One Cents ($3.71) per square
foot of land included in the Phase II site - net of the
number of square feet of such land included within the
new public street right-of-way area of Harriman Place,
as realigned which abuts the Phase II Site if the
Developer Phase II Notice is received by the Agency
wi thin eighteen (18) months following the date of
approval of this Agreement by the governing board of
the Agency; or
(ii) (A) the appraised fair market value of the Phase II
Site, on a land-only basis excluding the value or
detriment of the structures thereon, prepared by a
qualified real estate appraiser jointly selected by the
Developer and the Agency, plus (B) the difference, if
any, between the amount of the Agency acquisition cost
estimates shown in Section 2.4(h) (i), (ii) and (iv) for
the Phase II Site and a revised estimate of such Agency
acquisition cost items which the Agency may then
reasonably estimate and which the Developer may then
agree to pay as provided in Section 2.15(e).
The Developer further agrees to cause the Phase II Project
improvements to be constructed on the Phase II Site following the
close of the Phase II Site Escrow in accordance with the schedule
of performance for the Phase II Site as provided in Section 2.15(d)
or (e), as applicable.
(c) The Developer may initiate its acquisition of the Phase
II Site from the Agency by delivering the Developer Phase II Notice
to the Agency. The Developer Phase II Notice shall be in writing
and set forth the following facts:
(i) that the Developer is not in default under this
Agreement with respect to the Phase I Project;
(ii) that improvement of the New Store is substantially
complete;
(iii) that the representations and warranties of the
Developer under Section 2.21 are true;
(iv) that the Developer has sufficient equity funds to
complete the acquisition of the Phase II Site.
(d) Promptly upon receipt of a Developer Phase II Notice
under Section 2.15 (b) (i), the Agency and the Developer shall
jointly prepare a schedule of performance for the acquisition of
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the Phase II Site which sets forth the reasonable estimate of the
parties for the amount of time necessary to complete the
acquisition and assembly of the Phase II Site, and the Agency shall
obtain, as necessary or appropriate, real property acquisition
appraisal reports for the individual Site Parcels in the Phase II
Site and an appropriate relocation assistance plan for the Phase II
Site, and within ninety (90) days following the Agency's receipt of
such Developer Phase II Notice, the Agency shall confirm to the
Developer that the Phase II Site acquisition cost estimate does not
then exceed the estimate of such costs as set forth in Section
2.4(h) (ii) and (iv). Provided the Agency reasonably determines
that the estimated cost of such items is not more than as set forth
in Section 2.4(h) (ii) and (iv), the parties shall cause the Phase
II Site Escrow to be opened with the Escrow Agent and thereafter,
Agency shall commence the acquisition of the Phase II Site in
accordance with the same procedures set forth in this Agreement
relating to the Agency's acquisition of the Phase I Site.
(e) In the event that the Developer may deliver its
Developer Phase II Notice at any time after the eighteenth (18th)
month but before the sixtieth (60th) month following the date of
approval of this Agreement by the governing board of the Agency,
the Developer and the Agency, as applicable shall do the following:
(i) within sixty (60) days following the Agency's receipt
of the Developer Phase II Notice, the parties shall
jointly select a real property appraiser to prepare the
appraisal report described in Section 2.15 (b) (ii) (A)
and concurrently the Agency shall also obtain as
necessary or appropriate, real property acquisition
appraisal reports for the individual Site Parcels in
the Phase II Site and an appropriate relocation
assistance plan for the Phase II Site;
(ii) within ninety (90) days following the selection by the
parties of a mutually acceptable appraisal under (i),
above, the Agency shall also provide the Developer with
its estimate of the difference, if any, between the
amount of the Agency acquisition cost estimates shown
in Section 2.4 (h) (i), (ii) and (iv) and the revised
estimate of such costs as of the date of such Developer
Phase II Notice;
(iii) within thirty (30) days following its receipt of the
opinion of value of the Phase II Site established by
the appraiser under (i) above, together with the
additional cost estimate of the Agency under (ii),
above, the Developer shall, in its discretion, confirm
5/15/01 ct
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in writing to the Agency that is shall pay the purchase
price for the Phase II Site as set forth in Section
2.15(b) (ii) at the close of the Phase II Site Escrow;
(iv) subject to the Developer's confirmation under (iii),
above, the parties shall jointly prepare a schedule of
performance for the Site Parcel assembly program of the
Agency for the Phase II Site and the installation of
the Phase II Project by the Developer following the
close of the Phase II Site Escrow; and
(v) subject to the Developer's confirmation under (iii),
above, the parties shall jointly execute the Phase II
Site Escrow instructions to the Escrow Agent and
proceed with the acquisition assembly and redevelopment
of the Phase II Site in accordance with the same
procedures set forth in this Agreement relating to the
Agency's acquisition of the Phase I Site.
In the event that the Developer may fail to confirm to the
Agency that it shall pay the purchase price for the Phase II Site
as set forth in Section 2.15 (b) (ii) within thirty (30) days
following the Developer's receipt of the information described in
(ii) and (iii), above, the option of the Developer to acquire the
Phase II Site shall terminate and the parties shall be mutually
released from any further liability with respect to the Phase II
Site.
(f) Notwithstanding any of the provisions of this Section
2.15 to the contrary, in the event that at any time following the
date on which the governing board of the Agency approves this
Agreement and the fourth (4th) anniversary of such approval date,
the Agency or the IVDA receives a written offer under Health and
Safety Code Section 33399 from an owner of land with the Phase II
Site, the Developer shall deliver its Developer Phase II Notice to
the Agency within twelve (12) months following the date of such
written offer of an owner of land within the Phase II Site. In the
event that the Developer may fail to deliver its Developer Phase II
Notice to the Agency within such time, the option of the Developer
to acquire the Phase II Site under this Section 2.15 shall
terminate and the parties shall be mutually released from any
further liability with respect to the Phase II Site.
SECTION 2.16. Alternate Transfer
Developer and Obliaation of Developer to
Out Buraer Lands Followina West Site of
Widenina Pro;ect.
of Corner Parcel to
Accept Transfer of In-N-
Tippecanoe Avenue Street
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(a) In the event that In-N-Out and the Agency may fail to
jointly execute an OPA as provided in Section 2.14 by a date not
later than July 16, 2001, then the Agency shall transfer the Corner
Parcel to the Developer, subject to the terms of this Section 2.16
and the other terms and conditions, including the Phase I Site
Purchase Price, applicable to Site Parcels and Condemnation Parcels
in the case of the other lands comprising the Phase I Site. The
Corner Parcel shall be transferred to the Developer within sixty
(60) days following the close of the Site Transfer Escrow, under a
separate Agency deed. The Developer and the Agency hereby agree to
execute and deliver an escrow instruction to the Escrow Agent in
form and content reasonably acceptable to each of them to implement
this Section 2.16 in the event that the Corner Parcel may not be
transferred to In-N-Out. The Agency deed for the Corner Parcel
shall be subject to the same redevelopment conditions as set forth
in Article IV of this Agreement and the additional redevelopment
covenant applicable to the Corner Parcel which shall provide
substantially as follows:
"Until such time as the Agency may cause the
"In-N-Out Lands", as this term is defined in
the Agreement, to be transferred in fee to
the Grantee, the Property [e.g.: the Corner
Parcel] shall be reserved for improvement,
use and occupancy by the Grantee and its
successors and assigns, as on-site motor
vehicle parking, driveways and landscaping
appurtenant to the Site [e.g.: the Phase I
Site], and for no other purpose. The
covenant as contained in this paragraph
shall have a term of thirty (30) years
following the date of recordation of this
Grant Deed unless sooner released by written
agreement of the Agency and the Grantee in
the sole discretion of each of them."
The Developer shall redevelop and improve the Corner Parcel
for on-site motor vehicle parking, driveways and landscaping
appurtenant to the Phase I Site, subject to the development
application and approval processes of the City. The Corner Parcel
shall also be annexed to the Phase I Project REA concurrently upon
the recordation of the Agency grant deed transferring the Corner
Parcel to the Developer.
(b) It is foreseeable that the future improvement of the
interstate highway interchange at the Interstate 10 Freeway
overcrossing of Tippecanoe Avenue will require the acceptance of
additional public street right-of-way along the section ,of
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Tippecanoe Avenue which abuts the In-N-Out Burger Lands. It is
also foreseeable that the acquisition of such additional public
street right-of-way by the appropriate public agency from In-N-Out
may result in the remainder portion of the In-N-Out Burger Lands
(after severance from the new public street right-of-way) being
deemed an uuneconomic remnant parcel" under applicable law. In the
event that In-N-Out Burger and the Agency may fail to execute the
OPA as provided in Section 2.14 and thereafter, a public agency
acquisition of additional street right-of-way from the In-N-Out
Lands results in the creation of an uneconomic remnant of a portion
of such In-N-Out Burger Lands, then in such event the Agency shall
exercise best efforts to acquire the unecon0mic remnant from the
condemning public agency and dispose of such uneconomic remnant to
the Developer on the following terms and conditions:
(i) the disposition price payable by the Developer to
the Agency for the uneconomic remnant shall be equal to the
lesser amount of: (A) the appraised fair market value of the
land area included in the uneconomic remnant based upon an
appraisal assumption that such land shall be annexed to the
Corner Parcel, and used for any purpose then permitted under
the Phase I Project REA and applicable planning and zoning or
(B) the sum paid by the Agency to the public agency which
acquires the uneconomic remnant for the fee transfer of the
uneconomic remnant to the Agency;
(ii) the uneconomic remnant shall be transferred in fee
to the Developer by the Agency in an Uas is," uwhere is,"
Usubject to all faults condition" described in Section 2.10(d)
by a quitclaim deed;
(iii) the Developer shall cause the uneconomic remnant
to be joined with the Corner Parcel and the Developer shall
thereafter hold the Corner Parcel and the uneconomic remnant
as a single legal parcel of land, under an appropriately
recorded covenant or lot merger approved by the City; and
(iv) the Corner Parcel together with the uneconomic
remnant shall be annexed to the Phase I Project REA and the
Agency shall consent to the release of the lanct use
restriction affecting the Corner Parcel which limits its use
to on-site vehicle parking, driveways and landscaping
appurtenant to the Phase I Project.
The Developer hereby agrees to accept the transfer of the
uneconomic remnant portion of the In-N-Out Lands from the Agency on
the terms set forth in the preceding subparagraphs. The parties
agree to execute such appropriate escrow instructions in form and
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content reasonably acceptable to each of them as may be indicated,
at such time as the uneconomic remnant parcel may be available for
transfer to the Developer as provided in this Section 2.16 (b). The
parties shall have no further obligation under this Section_2.16(b)
on the first of the following dates to occur:
(1) July 1, 2015; or
(2) the date on which the public agency acquiring the
public street right-of-way affecting the In-N-Out
Burger Lands rejects the offer of the Agency to acquire
the uneconomic remnant parcel.
SECTION 2.17.
[RESERVED - - NO TEXT]
SECTION 2.18 Allocation of Aqency Acquisition Costs in
Excess of Line Item Set Forth In Section 2.4(a) or In Preliminary
Pro;ect Budqet for the Phase I Site or in Section 2.4(d) for the
Phase II Site.
(a) In the event that at any time before the Agency
transmits an offer to acquire any Site Parcel for the Phase I Site
or the Phase II Site, as applicable, the Executive Director
determines that the estimated acquisition costs of the Agency in
excess of the Phase I Site Purchase Price, or later, the Phase II
Site Purchase Price, as payable by the Developer, may materially
exceed the estimate of such acquisition cost as shown in Section
2.4 as of the date of approval of this Agreement by the governing
board of the Agency, then in such event, the Executive Director
shall schedule such matter for discussion and mutual consultation
of the parties at the next regular meeting of the Developer and
Agency staff under Section 2.3.
(b) In the event that at any time after the Agency has
transmitted one or more offers to acquire any Site Parcel for the
Phase I Site or the Phase II Site, as applicable, the Executive
Director determines that the acquisition costs payable by the
Agency before the Site Transfer Escrow (Phase I Site) or (Phase II
Site), is in a condition to close, as applicable, may exceed the
sum as provided in Section 5.10 (a), then in such event, the
Executive Director shall give the Developer written notice of such
determination, and the parties shall consider in the mutual
discretion of each of them, whether and on what terms, if any, the
Agency acquisition costs in excess of such estimate may be
allocated between the parties,. During such period of mutual
consideration, the Agency may in its discretion elect to delay the
transmittal of a notice of termination of this Agreement to the
5/15/01 ct
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Developer or to defer the termination date as previously set forth
in such notice as otherwise provided under Section 5.10(c).
SECTION 2.19. No Assistance to the Developer in Connection
with the Construction of the Phase I Site or the Phase II Site. It
is understood and agreed by the Developer that the Agency shall not
provide any financial assistance to the Developer in connection
with the construction of the Phase I Project and/or the Phase II
Project. The Developer shall be solely responsible for paying for
the costs of all design work, construction, labor, materials, fees
and permit expenses associated with the improvement of the Phase I
Project, and later, the Phase II Project.
SECTION 2.20. Insurance. Concurrently with the execution of
this Agreement, the Developer shall also furnish, or shall cause to
be furnished, to the Agency, one or more certificates of insurance
evidencing the existence of comprehensive general liability
insurance coverage in favor of the Developer in the amount of One
Million Dollars ($1,000,000.00) combined single limit. Said
insurance shall cover liability including, but not limited to,
contractual liability and personal injury. The comprehensive
general liability insurance of the Developer shall also name the
City and the Agency and the officers, officials and agents of each
of them as additional insureds with respect to the Project. In
addition, the Developer shall provide to the Agency adequate proof
of workers' compensation insurance. Any and all insurance policies
required hereunder shall be obtained from insurance companies
admitted in the State of California and rated at least B+(vi) in
Best's Insurance Guide. Appropriate insurance means those
insurance policies approved by the Agency Counsel consistent with
the foregoing. Any and all insurance required herein shall be
maintained and kept in force until the Agency has issued its
Certificate of Completion for the Phase I Project.
SECTION 2.21. Warranties
Developer.
and
Representations
by the
(a) The Developer hereby makes the following
representations, covenants and warranties as of the date of this
Agreement and acknowledges that the execution of this Agreement by
the Agency has been made in material reliance by the Agency on such
covenants, representations and warranties:
(1) Each of the persons acting on behalf of the
Developer has been duly authorized to so act in such capacity
under the laws of the State of California. The Developer has
the legal power, right and authority to enter into this
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Agreement and the instruments and documents referenced herein,
and to consummate the transactions contemplated hereby.
(2) The Developer has taken all requisite action and
obtained all requisite consents in connection with entering
into this Agreement.
(3) The persons executing any instruments for or on
behalf of the Developer were fully authorized to act on behalf
of the Developer and that the Agreement is valid and
enforceable against the Developer in accordance with its terms
and each instrument to be executed by the Developer pursuant
hereto or in connection therewith will, when executed, be
valid and enforceable against the Developer in accordance with
its terms. No approval, consent, order or authorization of,
or designation or declaration of any other person, is required
in connection with the valid execution and delivery of and
compliance with this Agreement by the Developer.
(4) There are no pending or, to the best of Developer's
knowledge, threatened claims, actions, allegations or lawsuits
of any kind, whether for personal injury, property damage,
landlord-tenant disputes, property taxes or otherwise, that
are not covered by insurance or which expose the Developer to
more than $100,000.00 in any given claim, action, allegation
or lawsuit, or that could materially and adversely affect the
operation or value of the Project or prohibit the performance
of any provision of this Agreement by the Developer.
(5) For purposes of this Section 2.21, the terms "to
the best of Developer's knowledge" or "to Developer's
knowledge" shall mean the actual knowledge of Fred Stimler,
Steven Felderman and Arthur Pearlman.
(b) If the Developer becomes aware of any act or
circumstance which would change or render incorrect, in whole or in
part, any representation or warranty made by the Developer under
this Agreement, whether as of the date given or any time thereafter
whether or not such representation or warranty was based upon
Developer's knowledge and/or belief as of a certain date, the
Developer will give immediate written notice of such changed fact
or circumstance to the Agency.
SECTION 2.22. Warranties and Representations by the Aqency.
The Agency hereby makes the following representations, covenants
and warranties and acknowledges that the execution of this
Agreement by the Developer have been made in material reliance by
the Developer on such covenants, representations and warranties:
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(1) Agency is a duly organized and validly existing
community redevelopment law created under the laws of the
State of California. The Agency has the legal right, power
and authority to enter into this Agreement and the instruments
and documents referenced herein and to consummate the
transactions contemplated hereby. The persons executing this
Agreement and the instruments referenced herein on behalf of
the Agency hereby represent and warrant that such persons have
the power, right and authority to bind the Agency.
(2) The Agency has held a public hearing and obtained
all requisite consent of the City in connection with entering
into this Agreement.
(3) This Agreement is, and all agreements, instruments
and documents to be executed by the Agency pursuant to this
Agreement shall be, duly executed by and are or shall be valid
and legally binding upon the Agency and enforceable in
accordance with their respective terms.
(4) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby shall
result in a breach of or constitute a default under any other
agreement, document, instrument or other obligation to which
the Agency is a party or by which the Agency may be bound, or
under law, statute, ordinance, rule, governmental regulation
or any writ, injunction, order or decree of any court or
governmental body applicable to the Agency or to the Property.
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ARTICLE III
REDEVELOPMENT OF THE PHASE I SITE
AND THE PHASE II SITE
SECTION 3.1. Development of Phase I Pro;ect and, If
Applicable, the Phase II Pro;ect bv Developer.
(a) Each phase of redevelopment of the Phase I Site and
later, if applicable, the Phase II Site shall be accomplished in
substantial accordance with the Project Improvement Plan Concept
as approved by the Agency concurrently with the approval of this
Agreement by the governing board of the Agency, together with such
changes in the Developer Improvement Plan Concept as may be
approved by the Agency either before or after the date of
submission of the Development Project Application to the City
pursuant to this Agreement. The Developer Improvement Plan Concept
is attached to this Agreement as Attachment No.2.
The development regulations of the City, including, but not
limited to, on-site parking and on-premises outdoor advertising
sign structure requirements are applicable to the use and
development of the Phase I proj ect and the Phase I I proj ect
pursuant to this Agreement. The Phase I Project and the Phase II
Project are collectively referred to in this Article III as the
"Projects" . The City is not a party to this Agreement and no
provision hereof shall be deemed to confer any right or privilege
upon the Developer as may otherwise arise under Government Code
Section 65850 et sea. The City retains the sole and absolute
discretion under its regulatory and other police powers to review
and approve the Development Project Applications and the issue the
Develop Project Permits for the Projects, including without
limitation the power to impose such development conditions of the
City as may be applicable in its discretion to: (i) the City's
approval of a Development Project Application; (ii) a final order
of public street vacation affecting any public street right-of-way
within or adjacent to the Site as may be necessary or appropriate
to accommodate the Projects; (iii) any Certificate of Subdivision
Compliance as may be applicable under Section 2.8 for the close of
the Site Escrow. No action by the Agency with reference to this
Agreement or any of the related documents or attachments shall be
deemed a waiver of any City development standard which is
applicable to the improvement and redevelopment of the proj ects and
the City's approval of a Development Project Application or
Certificate of Subdivision Compliance or order of public street
vacation or the issuance by the City of any Development Project
Permit, it being understood that, on a best efforts basis, the
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Agency shall assist the Developer in obtaining any desired approval
from the City as required to facilitate the redevelopment of the
Projects.
(b) The Developer and/or its agents shall prepare at its
sole cost and expense for submission to the City, all plans,
drawings, specifications and studies necessary to accompany the
Development Project Application for the Projects in sufficient
detail for the City to accept as complete the Development Project
Application. In the event that the Developer may seek to
substantially modify, revise or amend the Developer Improvement
Plan Concept or submit plans and Development Project Application
drawings which provide for development of either the Phase I
Project or the Phase II Project (or a major functional element
thereof) which the Executive Director determines is materially
different from the Developer Improvement Plan Concept, then in such
event, the Developer shall obtain the approval of the Agency of the
indicated modification, revision or amendment of the Developer
Improvement Plan Concept before the Development Project Application
is submitted to the City. The Developer may request by written
notice to the Agency that the Executive Director determine whether
a feature of the Development Project Application is at material
variance with the Developer Improvement Plan concept and the
Executive Director shall respond to such a written request within
five (5) business days of improvement. Agency approval of a
proposed substantial modification, revision or amendment to the
Developer Improvement Plan shall at the reasonable discretion of
the Agency and such approval shall not be unreasonably withheld,
conditioned or denied.
The Agency shall cooperate with and shall assist the Developer
in order to obtain the approval by the City of any and all
development approval plans submitted by the Developer to the City
which are consistent with the Developer Improvement Plan Concept
and this Agreement. In the event that the City disapproves any
element of the Development Project Application the Developer may
revise and resubmit said plans to the City in accordance with the
City's requirements or the Developer may appeal the rejection in
the manner provided by law. .
(c) Landscaping plans for the Projects shall be prepared by
a licensed landscape architect. The Developer shall submit a
preliminary draft of the landscaping plan to the Executive director
for concurrence prior to the submission of such landscaping plan to
the City either as part of the Development Project Application, or
later as part of a Developer submission for the issuance of any
Development Project Permit by. the City. The landscaping plans
submitted for Agency concurrence shall provide for the installation
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of high quality and attractive landscaping and related improvements
on the Phase I Site or the Phase II Site, as applicable, as well as
within the public parkway and rights-of-way adjacent to the Phase I
Site or the Phase II Site, as applicable, consistent with the
Developer Improvement Plan Concept and the Harriman Place
Improvement Project.
(d) The Developer shall prepare and submit all other
construction drawings and related documents for the Projects
(including, but not limited to, architectural review of the
exterior by the City as part of its consideration of the
Development Project Application) and written approval as and at the
times established in the Schedule of Performance.
The Developer and Agency staff shall hold regular progress
meetings to coordinate the preparation, submission and review of
the Development Project Application and related documents by the
City as part of the Site Parcel assembly program and issuance of
the Development Project Permits as set forth in Section 2.3. The
Agency Staff and the Developer shall communicate and consult
informally as necessary to ensure that the formal submittal of the
any documents to the City and the Agency can receive prompt and
speedy approval.
(e) No matter relating to the Development Project
Application once approved by the Agency shall be subsequently
disapproved unless mutually agreed by the parties. Nothing
contained herein shall preclude the City from conducting its
review, modification or rej ection of all plans, drawings and
documents for the development of the Projects as required by all
applicable development laws and regulations. The Developer shall
revise each such plan, drawing or related document in a manner that
addresses the basis of proposed modification or rejection
recommended by the City. The Developer shall promptly revise and
resubmit to the City any plans, drawings or related documents which
are conditionally approved or rejected by the City as part of the
consideration and approval by the City of the Development Project
Application and/or the issuance of Development Project Permits.
Upon request by the Developer, the Agency shall consider one or
more requests for the extension of the period of time set forth in
the Schedule of Performance during which the preparation of such
revision to plans or drawings may be necessary, not to exceed in
the aggregate for all such extensions of ninety (90) days.
Further, the Schedule of Performance shall automatically be
extended for any additional period required for the resubmission of
plans by the Developer to the City for approval; provided however,
that the Developer makes a good faith effort to meet any and all
reasons for disapproval earlier set forth by the City.
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(f) After the approval by the City of the Development
Project Application, if the Developer desires to make any material
change in the final construction drawings and related documents
which are not consistent with the Development Project Application
as approved by the City (either before or after the time when the
City has issued the Development Project Permits to the Developer),
the Developer shall first submit the proposed change to the Agency
for its consideration and approval. At such time the Developer may
also submit a request for extension of the Schedule of Performance,
if such extension is necessary. The proposed change shall be
approved or rejected by the Agency in writing within twenty (20)
business days after submission to the Agency. Such a change shall,
in any event, be deemed approved by the Agency unless rejected by
the Executive Director, in whole or in part, by written notice
thereof submitted by the Agency to the Developer, setting forth in
detail the reasons therefor, and such rejection shall be made
within said twenty (20) business day period. The Developer, upon
receipt of a disapproval, may revise such portions as are rejected,
or may appeal or dispute such rejection.
Once the Development Project Permits have been issued and the
work of improvement of either of the Projects has commenced, the
Developer shall have the right during the course of construction of
the Projects to make "minor field changes" without seeking the
prior approval of the Agency. Said "minor field changes" shall be
defined as those changes from the final construction drawings which
have no material or adverse effect on the quality or appearance of
the improvements and include changes made in order to expedite the
work of construction in response to field conditions.
(g) All of the other costs of redeveloping the Phase I Site
and the Projects, including the cost of preparing and submitting
the Development Project Application to the City for its review and
approval, the performance of all Developer Investigations, the
costs and charges of any public agency with jurisdiction associated
with the issuance of any Development Project, demolition of
structures, abatement of ACM and LBP, if any, response, removal and
remediation of hazardous substances, if any, the removal of all
subsurface structures improvements and conditions as necessary,
grading, the reorganization of existing or proposed utility
services and of constructing all new structures and improvements on
the Phase I Site and the Phase II Site, development project impacts
as identified the City, shall be borne solely by the Developer.
(h) The Developer shall begin and complete the redevelopment
of the Projects within the t:i,.mes specified in the Schedule of
Performance or within such reasonable extensions of time as may be
granted by the Agency or as provided for in this Agreement. The
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Schedule of Performance is also
time as mutually agreed upon
Developer and the Agency.
subject to revision from time to
in writing by and between the
(i) Subject to the compliance by the Developer with all
applicable development project approval procedures of the City, the
Developer shall include as part of its submittal of the Development
Project Application for the Phase I Project design plans for the
New Store sign and, if applicable, the Developer shall cooperate
with the Agency in providing for certain outdoor on-premise signage
structures on the Phase I Site for use by In-N -Out i provided
however, that the Developer shall not be required to offer exterior
signage structures for use by In-N-Out except on terms which are
commercially comparable to other tenants and users of similar
structures on the Phase I Site.
(j) The Developer for itself and its successors and assigns
agrees that in the construction of the improvements for the
Projects as provided for in this Agreement, the Developer will not
discriminate against any employee or applicant for employment
because of sex, marital status, race, color, religion, creed,
national origin, or ancestry.
(k) The Developer shall be responsible for carrying out its
construction of the improvements of the Projects in conformity with
all applicable laws, including all applicable federal and state
labor standards and requirements.
SECTION 3.2. Security Financinq No Encumbrances Except
for Development Purposes. For the purposes of this Section 3.2 and
Section 3.3, the words "Developer Lands" mean and refer to the
lands acquired by the Developer on the Phase I Site and/or later
the Phase II Site upon the close of the applicable Site Transfer
Escrow. Notwithstanding any other provision of this Agreement,
mortgages and deeds of trust, or any' other reasonable method of
security, are permitted to be placed upon the Developer Lands for
its redevelopment, but only for: (i) the purpose of securing loans
of funds to be used for the design and construction of the Projects
and any other expenditures necessary and appropriate to redevelop
the Developer Lands under this Agreement, and costs and expenses
incurred or to be incurred by the Developer in furtherance of this
Agreement and/or (ii) with respect to that portion of the Developer
Lands for which a Certificate of Completion has been issued by the
Agency.
The Developer shall provide a suitably detailed written
description of the terms of any mortgage, deed of trust, sale and
lease-back or other financing, conveyance, encumbrance or lien
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which the Developer may propose to create or attach to the
Developer Lands or any portion thereof, to pay for any part of the
Phase I Site Purchase Price or Phase II Site Purchase Price, as
applicable, and/or to provide the Developer with a source of funds
to construct the proj ects . The words "mortgage" and "deed of
trust" as used in this Agreement include all other appropriate
modes of financing the real estate acquisition, construction, and
land development obligations of the Developer. Mortgages, deeds of
trust and other reasonable methods of security referred to as
Permitted Transfers in Section 3.2, are collectively referred to in
Section 3.3 as a "Security Financing Interest."
SECTION 3.3.
Security Financinq Interests.
(a) The holder of any Security Financing Interest authorized
by this Agreement is not obligated to construct or complete any
improvement of the Projects. However, nothing in this Agreement
shall be deemed to permit or authorize any such holder of a
Security Financing Interest to devote the Developer Lands, or any
portion thereof, to any use, or to constructed any improvements
thereon, other than those uses of improvements provided for or
authorized by this Agreement.
(b) Whenever the Agency, pursuant to its rights set forth
in this Agreement, delivers any notice or demand to the Developer
to cure or correct a default or breach with respect to the
redevelopment of the Projects, the Agency shall at the same time
deliver to each holder of record any Security Financing Interest
creating a lien upon the Developer Lands or any portion thereof a
copy of such notice or demand of the Agency. Each such holder
shall (insofar as the rights of the Agency are concerned) have the
right, but not the obligation, at its option, within ninety (90)
days after the receipt of the notice, to cure or remedy or commence
to cure or remedy any such default or breach affecting the
Developer Lands which is subject to the lien of the Security
Financing Interest held by such holder and to all the costs thereof
to the security interest debt and the lien on the security
interest.
(c) In any case where within one hundred and eighty (180)
days after the occurrence of a default or breach by the Developer
for which the Agency has given notice to the holder of any Security
Financing Interest under Section 3.3 (b), and such holder has
exercised its option to construct the Projects, but such holder has
not proceeded diligently with construction, the Agency shall
thereupon be afforded the same rights against such holder for such
default or breach as the Agency would otherwise have against
Developer under this Agreement; provided, however that such holder
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shall have no liability to the Agency for any failure to open the
New Store or to operate the New Store the Phase I Site for so long
as such holder may retain its interest in the Developer Lands.
(d) In the event of a default or breach by the Developer
under a Security Financing Interest prior to the completion of
redevelopment of the proj ect or portion thereof, and the holder has
not exercised its option to complete the improvement of the Site,
the Agency, at its sole option and election, but without any
obligation to do so, may cure the default or breach of the
Developer to such holder, prior to the completion of any
foreclosure under its Security Financing Interest. In such event
the Agency shall be entitled to reimbursement from the Developer of
the principal amount paid by the Agency to cure or satisfy the
defaults plus all reasonable costs and expenses incurred by the
Agency in curing the default of the Developer. The Developer
hereby agrees that the Agency shall also be entitled to a lien upon
the Developer Lands, or any portion thereof to secure the repayment
of such amount to the Agency. The Agency agrees that in the event
that the such a lien in favor of the Agency may arise, that the
lien of the Agency shall be subordinate to any other Security
Financing Interest approved or deemed approved by the Agency. The
Agency shall execute from time to time any and all documentation
reasonably requested by Developer to effect such subordination of
the lien right of the Agency as may arise under this Section 3.3.
(e) In addition to the optional right of the Agency to cure
a default or breach of the Developer under a Security Financing
Interest as set forth in Section 3.3(d), the Agency, at its sole
option and election, shall have the right to satisfy any other lien
or encumbrance affecting the Developer Lands after the Developer
has received a thirty (30) day notice of intention of the Agency to
pay such lien or encumbrance. The Agency shall not transmit such
a notice of intention until the Developer has been accorded a
reasonable period of time to challenge, cure or satisfy such a lien
or encumbrance provided however, that nothing in this Agreement
shall require the Developer to payor make provisions for the
payment of any lien or charge (except a lien or charge for ad
valorem property taxes) so long as the Developer in good faith
shall contest the validity or amount therein and so long as such
delay in payment by the Developer shall not subject the Developer
Lands or any portion thereof to forfeiture or sale. In the event
that the Agency may satisfy any such lien or encumbrance the Agency
shall be entitled to reimbursement from the Developer of the
principal amount paid by the Agency to cure or satisfy the lien or
encumbrance, plus all reasonable costs and expenses incurred by the
Agency in satisfying the lien or encumbrance. The Developer hereby
agrees that the Agency shall also be entitled to a lien upon the
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Developer Lands, or any portion thereof, to secure such repayment
to the Agency. Any such lien of the Agency under this Section 3.3
shall be subordinate to each Security Financing Interest approved
or deemed approved by the Agency.
(f) The Developer, for itself, its successors and assignees
hereby warrants and agrees that the Developer shall give to any
holder of a Security Financing Interest notice of the terms and
conditions contained in this Section 3.3 and shall use commercially
reasonable efforts to cause each term contained herein dealing with
Security Financing Interests and rights of holders of such
interests either to be inserted into the relevant deed of trust or
mortgage or to be acknowledged by the holder prior to its
perfection of any such Security Financing Interest right or
interest in the Developer Lands.
SECTION 3.4. Estoppel Statement. Upon the request of the
Developer or any holder or a Security Financing Interest in the
Site or portion thereof, the Agency shall issue a signed estoppel
statement stating that this Agreement is in full force and effect
and that no default hereunder exists on the part of the Developer
or any successor, or if such default is claimed to exist, such
estoppel statement shall identify the nature of such default. Such
estoppel statement shall be delivered by the Agency within thirty
(30) days following receipt of written request therefor.
SECTION 3.5.
[RESERVED--NO TEXT]
SECTION 3.6.
[RESERVED--NO TEXT]
SECTION 3.7.
Certificate of Completion.
(a) Upon substantial completion of the relevant phases of
the Project, the Agency shall prepare a Certificate of Completion
substantially in the form of Attachment No. 11, within thirty (30)
days following receipt by the Agency of a written request therefor
by the Developer. Upon the request of the Developer, the Agency
may issue one or more Certificates of Completion when the Developer
has completed (or caused third party tenants to so complete) the
improvements as follows:
(i)
upon completion of the New Store for the portion of the
Phase I Site on which the New Store is situated;
(ii)
upon completion of the other portion of the Phase I
Site; provided that the New Store has been completed
under (i), above; and
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(iii) upon completion of the Phase II Project.
The Certificate of Completion shall evidence a conclusive
determination by the Agency of satisfactory completion _ of the
improvement of the proj ects, as appl icable, by the Developer.
After the recordation of the Certificate of Completion by the
Agency, neither the Developer, nor any party then owning or
thereafter purchasing, leasing or otherwise acquiring any interest
in the Developer Lands shall (because of such ownership, purchase,
lease or acquisition) have any further obligation or liability
under this Agreement for matters arising prior to the date of
recordation of the Certificate of Completion or thereafter;
provided however, that the covenants contained in Section 4.1
through Section 4.4, shall bind each successor in interest of the
Developer in the Developer Lands as covenants which run with the
land.
(b) If the Agency seeks to withhold the execution of
Certificate of Completion, then the Agency shall, within said
thirty (30) days of the date of the written request for the
issuance of a Certificate of Completion provide to the Developer a
written statement setting forth the reasons with respect to the
Agency's refusal or failure to prepare and execute a Certificate of
Completion. The statement shall also contain a detailed
description of the action the Developer must take to obtain a
Certificate of Completion. If the reason for such refusal is
confined to minor building "punch list" items, the Agency shall
issue its Certificate of Completion conditioned upon the delivery
of cash or other reasonably acceptable surety in an amount and
terms subject to the reasonable approval of the Executive Director.
No such Certificate of Completion of the Agency shall be
deemed to constitute a notice of completion as referred to in
Section 3093 of the California Civil Code.
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ARTICLE IV
USE AND OPERATION OF THE PHASE I SITE
AND THE PHASE II SITE
SECTION 4.1. Permitted Uses of the Site bv the Developer.
The Agency acknowledges that occupancy of the Phase I Site, and
later the Phase II Site by the following types of tenants is
consistent with the development regulations of the City of San
Bernardino:
Baby's-R-Us
Cost Plus
Krause's Custom Crafted Furniture
Lakeshore Learning
Marshalls
Michaels
Sam's Club
Sports Chalet
Target
Toys-R-Us
Wal-Mart
Old Navy
Sketchers
Petco
Kinkos
The following uses on the Phase I Site and the Phase II Site
are prohibited:
Bars or businesses with ~on-sale" alcoholic
beverage sales licenses (other than in
restaurants), coin laundries or laundromats,
used clothing stores, used appliance stores,
used furniture stores or rummage stores,
massage parlors, or so-called adult book or
adult entertainment establishments.
The following special retail uses as defined under applicable
State law as a ~relocation" may be permitted; provided that the
Agency in its reasonable discretion, has first made the finding
that such retail user ~relocation" is outside the same market
area," as each of these terms is defined in Health and Safety Code
Section 33426.7:
automobile dealership, or
big box retailer, in a store greater than 75,000 square
feet of gross buildable area that will generate sales
or use tax pursuant to Part 1.5 (commencing with
Section 7200) of Division 2 of the Revenue and Taxation
Code), or
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a business entity that sells or leases land to an
automobile dealership or big box retailer.
The provisions of this covenant shall be included in the
Agency Grant Deed.
SECTION 4.2.
[RESERVED - - NO TEXT]
SECTION 4.3. Obliqation to Refrain from Discrimination. The
Developer covenants and agrees for itself, its successors, assigns
and every successor in interest to the Phase I Site and the Phase
II Site or any part thereof, there shall be no discrimination
against or segregation of any person, or group of persons, on
account of sex, marital status, race, color, religion, creed,
national original or ancestry in the sale, lease, sublease,
transfer, use occupancy, tenure or enjoyment of the Phase I Site
and the Phase II Site nor shall the Developer, itself or any person
claiming under or through it, establish or permit any such practice
or practices of discrimination or segregation with reference to the
selection, location, number, use of occupancy of tenants, lessees,
subtenants, sublessees or vendees of the Phase I Site and the Phase
II Site. The covenant of the Developer as provided in this Section
4.3 shall be included in the Agency Grant Deed.
SECTION 4.4. Form of Nondiscrimination and Nonseqreqation
Clauses. The Developer shall refrain from restricting the sale,
lease, sublease, rental, transfer, use, occupancy, tenure or
enjoyment of the Phase I Site and the Phase II Site or part thereof
on the basis of sex, marital status, race, color, religion, creed,
ancestry or national original of any person. All such deeds,
leases or contracts pertaining thereto shall contain or be subject
to substantially the following nondiscrimination or nonsegregation
clauses:
(1) [in deeds] :
"The grantee herein covenants by and for itself, its
successors and assigns, and all persons claiming under
or through them, that there shall be no discrimination
against or segregation of, any person or group of
persons on account of sex, mari tal status, race,
color, religion, creed, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, 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
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reference to the selection, location, number, use of
occupancy of tenants, lessees, subtenants, sublessees
or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
(2) [in leases] :
UThe lessee herein covenants by and for itself, its
successors and assigns, and al persons claiming under
or through them, and this lease is made and accepted
upon and subject to the following conditions: That
there shall be no discrimination against or segregation
of any person or group of persons, on account of sex,
marital status, race, color, religion, creed, national
origin or ancestry, in the leasing, subleasing,
renting, transferring, use, occupancy, tenure or
enjoyment of the land herein lease, nor shall lessee
itself, or any person claiming under or through it,
establish or permit such practice or practices of
discrimination or segregation with reference to the
selection, location, number or occupancy of tenants,
lessees, sublessees, tenants or vendees in the land
herein lease."
(3) [in material contracts] :
UThere shall be no discrimination against or
segregation of, any person or group of persons on
account of sex, marital status, race, color, religion,
creed, national origin or ancestry in the sale, lease,
sublease, rental, transfer, use, occupancy, tenure or
enjoyment of the land, nor shall the transferee itself
or any person claiming under or through it, establish
or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of
the land."
II-12
ARTICLE V
DEFAULTS, REMEDIES AND TERMINATION
SECTION 5.1. Defaults--General. Failure or delay by a party
to perform any term or provisions of this Agreement constitutes a
default under this Agreement. The party in default must
immediately commence to cure, correct, or remedy such default
within thirty (30) days after receipt of written notice of such
default, and if the defaulting party does not diligently complete
such cure, correction or remedy within a reasonable time, then a
breach shall be deemed to have occurred and the non-defaulting
party may assert its other rights and remedies. No default under
this Agreement shall be deemed to exist during those periods of
time as provided in Section 6.5 hereof during which a force majeure
event has occurred and written notice has been delivered to the
other parties. The party which claims that a default or breach has
occurred shall give written notice of default, specifying the
default complained of by the injured party in accordance with
Section 5.8. Except as required to protect against further damage,
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.
SECTION 5.2. Bankruptcy, Insolvency or Dissolution of
Developer. The occurrence of any of the following events prior to
the issuance of a Certificate of Completion for the Phase I Site
and the Phase II Site shall be deemed a material default by the
Developer:
(1) the Developer files for bankruptcy protection or
reorganization or become involved in any proceedings
under the bankruptcy laws of the United States, or in
the event that the Developer may be insolvent, or in
the event that a receiver may be appointed for the
Developer under state or federal law;
(2) the Developer suspends or terminates its legal status
as a California limited liability company authorized to
transact business in California.
In view of the special community redevelopment goals and
covenants for community redevelopment covenants which affect this
Agreement, in the event that either the Developer shall be
adjudicate bankrupt, or become involved in any proceedings under
the bankruptcy laws of the United States, or if the interest of
5/15/01 ct
SB2001:7825.8
II-13
either of them in this Agreement shall be transferred by operation
of law at any time prior to the issuance of a Certificate of
Completion for the Phase I Project or the Phase II Project, as
applicable, the trustee in bankruptcy, receiver, assignee or
judgment purchaser shall be bound by all provisions of this
Agreement, including but not limited to the provisions of Section
4.1.
SECTION 5.3. Institution of Leqal Actions. Subject to the
default provisions of Section 5.1, any party may institute legal
action to cure, correct or remedy any default, to recover damages
for any default, or to obtain any other remedy consistent with the
purpose of this Agreement. Any legal action, 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.
SECTION 5.4. Applicable Law. The laws of the State of
California shall govern the interpretation and enforcement of this
Agreement.
SECTION 5.5.
Acceptance of Service of Process.
(a) In the event that any legal action is commenced by the
Developer against the Agency, service of process on the Agency
shall be made by personal service upon the Agency Secretary.
(b) In the event that any legal action is commenced by the
Agency against the Developer, service of process on the Developer
shall be made upon any of its managing members.
SECTION 5.6. Riqhts and Remedies are Cumulative. Except as
otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and the exercise by any
party of one or more of such rights or remedies shall not preclude
the exercise by it, at the same or different times, of any other
rights or remedies for the same default or any other default by any
other party.
SECTION 5.7. Inaction Not a Waiver of Default. Any failure
or delay by a party in asserting any of its rights and remedies as
to any default shall not operate as a waiver of any default or of
any such rights or remedies, or deprive any party of its right to
institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or
remedies.
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SECTION 5.8. Notice of Default and Termination Prior to
Issuance of a Certificate of Completion for the Phase I proiect or
the Phase II Proiect, As Applicable. Except as set forth in
Section 5.10, if a party is in material breach or default with
regard to any of the provisions of this Agreement prior to the
issuance by the Agency of a Certificate of Completion for the
Phase I Project, or the Phase II Project, as applicable, the non-
defaulting party may, in addition to its assertion of any other
right or remedy upon the occurrence of such default, elect to
terminate this Agreement, unless such default is cured or corrected
within the time period set forth in a notice of default. If the
party exercises such an election of termination, such party shall
include in its written notice of default to the defaulting party
(with a copy to the remaining party) a statement that the Agreement
shall be terminated if the default is not cured or commenced to be
cured by the defaulting party within thirty (30) days after service
of the notice of default (or within such other longer period as is
set forth therein). The defaulting party shall be liable to the
other party for any damage caused by such default and termination.
SECTION 5.9. [RESERVED -- NO TEXT]
SECTION 5.10. Termination Without Fault of Parties.
(a) The occurrence of any of the following events prior to
the date on which the close of the Site Transfer Escrow (Phase I
Site) may occur constitute a basis for any party to terminate this
Agreement without fault or liability:
(1) Despite its good faith and diligent efforts, the
Agency cannot confirm that funds are available to it to pay
the Site acquisition costs;
(2) The Developer has failed to deliver and/or the
Agency has failed to accept the written confirmation to the
Agency as set forth in Section 1.8;
(3) Despite its good faith and diligent efforts, the
Developer is unable to obtain any permit or approval from the
City as may be necessary to construct the Phase I Project
substantially in accordance with the Developer Project
Improvement Plan Concept;
(4) The Developer may rej ect the environmental
condition of any Site Parae I as provided in Section 2.7(c);
5/15/01 ct
SB2001:7B25.B
II -15
(5) The City, the IVDA and the Agency have failed to
approve the Condemnation Parcel Acquisition Memorandum for any
reason;
(6) After the Developer has provided the Agency with
the necessary funds for a Condemnation Parcel as set forth in
Section 2.2(c), the IVDA may fail to initiate proceedings for
the acquisition of any Condemnation Parcel;
(7) The City and the A~ency have not entered into the
Harriman Construction Agreement, and/or the Agency has not
confirmed in its reasonable discretion by the date indicated
in the Schedule of Performance that sufficient funds necessary
to pay for the Harriman Place Improvement Project shall be
available to the Agency for the improvement of such public
works project;
(8) The Developer rejects or the Agency fails to cure
any Title Exceptions and/or the Developer fails to waive the
cure of any Title Exception under Section 2.9(c) or 2.9(d);
(9) The amount of the Site acquisition costs payable
by the Agency (exclusive of any sums payable by the Developer
prior to the close of the Site Transfer Escrow (Phase I Site)
under Section 2.5(d)) is reasonably determined by the Agency
to exceed the sum of $1,000,000 before the Site Transfer
Escrow (Phase I Site) may be in a condition to close;
(10) The necessary Site Parcels for the Phase I Site
cannot be assembled and the Site Transfer Escrow placed in a
condition to close on or before January 18, 2002, subject to
such extensions of time as may be approved by the Developer
and the Agency as set forth in Section 2.3(f).
(b) If any of the following events occurs after the
Developer has exercised its option with respect to the Phase II
Site under Section 2.15, then any party may terminate this
Agreement with respect to its further effect on the Phase II Site,
without fault or liability:
(1) Despite its good faith and diligent efforts the
Developer is unable to obtain any permit or approval from the
City as may be necessary to construct the Phase II Project
substantially in accordance with the Developer Project
Improvement Plan Concept;
.
(2) The Developer may rej ect the environmental
condition of any Site Parcel as provided in Section 2.7(c);
5/15/01 ct
SB2001:7825.8
II-16
(3) After the Developer has provided the Agency with
the necessary funds for a Condemnation Parcel as set forth in
Section 2.2(c) with respect to a Site Parcel situated within
the Phase II Site, the IVDA may fail to initiate proceedings
for the acquisition of any such Condemnation Parcel;
(4) The Developer rejects or the Agency fails to cure
any Title Exceptions and/or the Developer fails to waiver the
cure of any Title Exceptions under Section 2.9(c);
(5) The amount of the Site Acquisition Cost payable by
the Agency is reasonably determined by the Agency to exceed
the sum of $500,000 before the Site Transfer Escrow (Phase II
Site) may be in a condition to close.
(c) The party which may elect to terminate this Agreement
on any of the grounds described in Section 5.10 (a) or Section
5.10(b) shall transmit a written notice of intention to terminate
the Agreement at least thirty (30) days prior to the date of
termination specified in such written notice. The written notice
of intention to terminate the Agreement shall identify this Section
5.10 and generally describe the grounds on which the termination of
this Agreement is based. Upon the termination of this Agreement
pursuant to this Section 5.10, no party shall have any claim upon
the other for costs, reimbursement or damages against or liability
to the other under this Agreement, except that if a termination
occurs as a result of the occurrence of the matters described in
Section 5.10(a) (6) or Section 5.10(b) (3), then any Developer funds
disbursed to the Agency for Condemnation Parcels shall be returned
to the Developer as provided in Section 2.2 (c) and further provided
that the indemnity obligations of the parties under Section 2.8,
Section 6.5(b) or Section 6.8 shall survive with respect to any
matters or claim arising under any of those provisions of this
Agreement.
SECTION 5.11. Riqhts of Mortqaqes. Any rights of the Agency
under this Article V shall not defeat, limit or render invalid any
lease, mortgage, deed of trust or any other security interest
permitted by this Agreement or any rights provided for in this
Agreement for the protection of holder of security interests in the
Site, or portion thereof.
5/J.5/0J. ct
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II-17
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.1. Notices, Demands and Conununications Between the
Parties. Notices, demands and communications among the Agency, the
Developer as required by this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered
or, if mailed, upon receipt or rejection. If notice is given by
mailing, it shall be sent by registered or certified mail, postage
prepaid, return receipt requested, and properly addressed to the
principal office of the party, as designated in Section 1.5. Such
written notices, demands and communications may be sent in the same
manner to such other addresses as either party may from time to
time designate in writing.
SECTION 6.2. Conflict of Interest. No member, official or
employee of the Agency having any conflict of interest, direct or
indirect, related to this Agreement and the development of the
Project, shall participate in any decision relating to the
Agreement or the implementation thereof.
SECTION 6.3. Warranty Aoainst Payment of Consideration for
Aoreement. The Developer and the Agency each warrant that neither
of them has paid or given, and will not payor given, any third-
party money or other consideration for obtaining this Agreement.
For the purpose of this Section 6.3, the term Uthird parties" shall
not include persons to whom fees were paid for professional
services if rendered by attorneys, financial consultants,
accountants, engineers, architects and the like when such fees are
considered necessary by the Developer.
SECTION 6.4. Non-Liability of City and the Aoency Officials
and Employees. No member, official or employee of the City or the
Agency shall be personally liable to the Developer, or any
successor in interest of either of them, in the event of any
default or breach by the City or the Agency or for any amount which
may become due to the Developer or to its successor or on any
obligations under the terms of this Agreement.
SECTION 6.5.
Performance.
Enforced
Delay:
Extension
of
Time of
(a) In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, or considered to be a default, where delays or defaults
are due to the force majeure events beyond the control of such
5/15/01 ct
SB2001:7825.8
II-18
party, including without limitation war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of
God, acts of the public enemy, epidemics, quarantine restrictions,
government imposed moratorium legislation, freight embargoes or
lack of transportation, weather-caused delays, inability to secure
necessary labor, materials or tools, delays of any contractors,
subcontractor or supplier, which are not attributable to the fault
of the party claiming that an event suspends the close of the Site
Transfer Escrow, or if after the close of the Site Transfer Escrow
has occurred, suspends the prosecution of the work of improvement
of the Phase I Project or the Phase II Project, as applicable. An
extension of time for any such force majeure cause shall be for the
period of the enforced delay and shall commence to run from the
date of occurrence of the delay; provided however, that the party
which claims the existence of the delay has first provided the
other party with written notice of the occurrence of the delay
within ten (10) days of the commencement of such occurrence of
force maj eure event and thereafter takes prompt and reasonable
action within its control to resume the performance of the
applicable work or obligation, and if applicable restore,
reconstruct, rebuild any damage to the Project caused by such force
majeure event provided further that no force majeure event (or
series of such events ) shall have the effect of delaying the close
of the Site Transfer Escrow for more than a total of ninety (90)
days.
The inability of either the Developer to obtain the land
acquisition or construction loans for either the Phase I Project or
the Phase II Project, or the approval of the New Store or the
failure of the City to approve the Development Project Application
or to issue any Development Project Permit (except by virtue of the
effect of moratorium legislation) or the inability of the Developer
to satisfy any other condition of this Agreement relating to the
redevelopment of the Phase I Project or the Phase II Project or the
operation of the New Store on the Phase I Site, shall not be deemed
to be a force majeure event or otherwise provide grounds for the
assertion of the existence of a delay under this Section 6.5. The
parties each expressly acknowledge and agree that changes in either
general economic conditions or changes in the economic assumptions
of any of them which may have provided a basis for entering into
this Agreement occurring at any time after the execution of this
Agreement, are not force maj eure events and do not provide any
party with grounds for asserting the existence of a delay in the
performance of any covenant or undertaking which may arise under
this Agreement. Each party expressly assumes the risk that changes
in general economic conditions or changes in such economic
assumptions could impose an inconvenience or hardship on the
continued performance by such party under this Agreement, but that
5/15/01 ct
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II-19
such inconvenience or hardship is not a force majeure event and
does not excuse the performance by such party of its obligations
under this Agreement.
(b) The Developer acknowledges that the Agency is a "public
entity" and/or a "public agency" as defined under applicable
California law. Therefore, the Agency, in coordination with the
City, must satisfy the requirements of certain California statutes
relating to the actions of public entities, including, without
limitation, the California Environmental Quality Act ("CEQA")
before the redevelopment activities contemplated under this
Agreement may be implemented. Also, as a public body, the action
of the governing board of the Agency in approving this Agreement
may be subject to proceedings to invalidate the Agreement. The
Developer hereby assumes the risk of delays and any loss that may
result from any such third-party legal actions related to the
City's certification of the Final Environmental Impact Report
(State Clearinghouse No. 2000081074) (the "FEIR") and the Agency's
approval of this Agreement or the pursuit of the redevelopment
activities contemplated by this Agreement, even in the event that
an error, omission or abuse of discretion by the City or the Agency
which a court of competent jurisdiction may determine to have
occurred. If a third-party files a legal action regarding the
City's certification of the FEIR and/or the Agency's approval of
this Agreement or the undertaking of the Harriman Place Improvement
Project, or any of the related agreements with either the City or
the IVDA, the Agency may terminate this Agreement on 60 days
written notice to the Developer of the Agency's intent to so
terminate this Agreement, referencing this Section 6.5(b), without
any further obligation to perform the terms of this Agreement and
whereupon the parties shall be mutually released from any further
responsibility under this Agreement. Within 10 days of receipt of
the Agency's notice of intent to terminate this Agreement as
provided in the preceding sentence, the Developer may offer to
defend the City and the Agency, as applicable in the third-party
legal action and pay all of the court costs, attorney fees,
monetary awards, sanctions, attorney fee awards and the expenses of
any and all financial or performance obligations that may result
from the disposition of the legal action. Any such offer from the
Developer must be in the form of a written agreement to be
considered by the Agency. The Agency is under no obligation to
accept any such offer from the Developer and may elect to terminate
this Agreement, under this subsection (b) notwithstanding any offer
from the Developer under this subsection (b).
SECTION 6.6. Approvals. Approvals required by the Agency
shall not be unreasonably withheld and approval or disapproval
shall be given within the time set forth in the Schedule of
5/15/01 ct
8B2001:7825.8
II-20
Performance, or as set forth in this Agreement or, if no specific
time is set forth for such approval, within thirty (30) days. If
no disapproval is given within the time stated therefor, the item
in question shall conclusively be deemed approved.
SECTION 6.7. No Real Estate Commissions Pavable. Each party
to this Agreement represents and warrants to the others that said
party has not dealt with any broker or real estate agent in
connection with this transaction, and that insofar as that party
knows no broker, real estate agent, or other party is entitled to
any commission or fee in connection herewith. Each party to this
Agreement agrees to indemnify, defend and hold harmless the other
parties from and against any and all broker or real estate
commissions or finder fees by any person or entity claiming to have
been retained by such indemnifying party in connection with this
transaction.
SECTION 6.8.
Indemnification.
(a) The Developer agrees to indemnify, defend and hold the
City and the Agency, and each of them, harmless from and against
all damages, judgments, costs, expenses, and fees, including
attorneys fees and expenses, arising from any act or omission of
the Developer in performing its obligations hereunder.
(b) The Developer and the Agency hereby jointly and
severally agree to indemnify, defend and hold the IVDA harmless
from and against all damages, judgments, costs, expenses and fees,
including attorneys fees and expenses, arising from any claim or
liability asserted against the IVDA or any matter described in
Section 2.3(d) (vi) with respect to any claim of inverse
condemnation relating to any Site Parcel or Condemnation Parcel
which may be asserted against the IVDA.
(c) Except to the extent provided in Section 6.S(b), the
Agency agrees to indemnify and hold the Developer harmless from and
against all damages, judgments, costs, expenses and fees arising
from any act or omission of the Agency in performing its
obligations hereunder.
(d) the parties hereby agree to serve written notice on the
other within one (1) year following the time when a party becomes
aware, or should be aware, that a claim under this Section 6.8 has
arisen.
SECTION 6.9. No Partnership. Nothing in the Agreement nor
any acts of the parties hereto shall be deemed or construed by the
parties hereto, or any of them, or by any third person, to create
5/15/01 ct
882001:7825.8
II-21
the relationship of principal and agent, or of partnership, or of
joint venture, or of any association between any of the parties to
this Agreement.
SECTION 6.10. Attorney's Fees. If any party hereto files any
action or brings any action or proceeding against the other arising
out of this Agreement, then as between the Developer and the
Agency, the prevailing party shall be entitled to recover as an
element of its costs of suit and not as damages, its reasonable
attorney's fees as fixed by the Court in such action or proceeding
or in a separate action or proceeding brought to recover such
attorney's fees. For the purposes hereof, the words "reasonable
attorney's fees" include in the case of the City and/or the Agency,
the salaries and fringe benefits of attorneys employed in the
Office of City Attorney allocated on an hourly basis for legal
services performed on behalf of the Agency hereunder.
SECTION 6.11. Severability. If any clause, sentence or term
or condition of this Agreement is held invalid or unenforceable for
any reason by a court of competent jurisdiction, the remaining
portions of this Agreement will remain in full force and effect,
provided the resulting agreement preserves the material economic
effect of this Agreement.
5/15/01 ct
882001:7825.8
II-22
ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
SECTION 7.1. Attachments. This Agreement shall be executed
in three (3) duplicate originals, each of which is deemed to be an
original. The Agreement includes ~ pages and +; ~~~. ~ ~
attachments which constitute the entire understanding and agreement (I ~~
of the parties. ../
SECTION 7.2.
amended from time
parties.
Amendment of Aqreement. This Agreement may be
to time by written agreement executed by the
SECTION 7.3. Operatinq Memoranda. It is recognized and
acknowledged that the implementation of the development of the
Phase I Project and/or the Phase II Project will require a close
degree of cooperation between the Developer and the Agency.
Therefore, any written operating memorandum shall be given
reasonable and fair consideration, as necessary, and such approval
shall not be unreasonably withheld. Such memoranda shall, upon
approval, become an addendum hereto and become a part hereof.
Additionally, in the event that a lender, which proposes to loan
funds to the Developer with respect to the Phase I Project and/or
the Phase II Project, requires commercially reasonable amendments
or modifications to this Agreement, the Agency shall promptly give
due consideration to the written request of such lender.
SECTION 7.4. Date of Aqreement. This Agreement has been
dated as of V,,\eu-..,).- \ 2001 for purposes of reference and
convenience. The cl=rms "date of execution of the Agreement" or
"date of the Agreement" or "date of approval of this Agreement,"
and the like, refer to the date of which the Agreement is approved
by the governing board of the Agency following a public hearing
thereon. This Agreement shall have 'no force nor effect in the
event that the parties may fail to cause the authorized officers of
each of them to execute it for any reason within thirty (30) days
following such approval by the governing board of the Agency.
5/15/01 ct
SB2001:7825.8
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SECTION 7.5. Execution in Counterpart Oriqinals. The
Agreement may be executed by the parties in counterparts and when
each such counterpart is delivered by the parties, this Agreement
shall be deemed to be fully executed and in effect.
Date: OJ ( J ZcJl5/
APPROVED AS TO FORM:
J,ltk
Agency Special Counsel
5/15/01 ct
SB2001:7825.8
DEVELOPER
SBT Partners, LLC, a California
limite~ liability company
By: L-- CJ------
Its: ~~
s;;, o-P H"t5J.../ C. ~p IL I ,.J ~
By:
Its:
AGENCY
Redevelop
San Ber. a
t Agency of the City of
dino
By:
the
By:
II-24
ATIACHMENT NO. lA
LEGAL DESCRIPTION OF THE SITE AND PLAT MAP
THOSE PORTIONS OF LOTS 1 THROUGH 79 OF TRACT NO. 2743, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIfORNIA,
TOGETHER WITH THOSE PORTIONS OF LAURELWOOD DRIVE, ROSEWOOD DRIVE
AND ORCHARD DRIVE, AS PER PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE
47, RECORDS OF SAID COUNTY, TOGETHER WITH THAT PORTION OF LOT 5 OF
BLOCK 72, RANCHO SAN BERNARDINO, AS PER PLAT RECORDED IN BOOK 7 OF
MAPS, AT PAGE 2, RECORDS OF SAID COUNTY, TOGETHER MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID TRACT NO. 2743; THENCE
SOUTH 89048'29" EAST 1276.36 FEET ALONG THE NORTHERLY LINE OF SAID
TRACT TO THE INTERSECTION OF SAID NORTHERLY LINE WITH A LINE THAT IS
PARALLEL WITH AND DISTANT WESTERLY 50.00 FEET, MEASURED AT RIGHT
ANGLES, FROM THE CENTERLINE OF TIPPENCANOE AVENUE, 60.00 FEET WIDE, AS
SHOWN ON SAID TRACT MAP; THENCE SOUTH 00008'00" EAST 128.94 FEET ALONG
SAID PARALLEL LINE, ALSO BEING THE EASTERLY LINES OF THOSE CERTAIN
PARCELS CONVEYED TO THE COUNTY OF SAN BERNARDINO IN DOCUMENTS
RECORDED AS INSTUMENT NO. 85-199288, 85-244473 AND 85-140281, ALL OF
OFFICIAL RECORDS OF SAID COUNTY, TO THE BEGINNING OF A CURVE CONCAVE
NORTHWESTERLY, HAVING RADIUS OF 20.00 FEET; THENCE SOUTHERLY 8.34
FEET ALONG SAID CURVE AND CONTINUING ALONG THE WESTERLY LINE OF
SAID PARCEL CONVEYED TO SAID COUNTY IN A DOCUMENT RECORDED AS
INSTRUMENT NO. 85-140281, THROUGH A CENTRAL ANGLE OF 23054'02" TO THE
INTERSECTION OF SAID CURVE WITH A LINE THAT IS PARALLEL WITH AND
DISTANT NORTHERLY 42.00 FEET, MEASURED AT RIGHT ANGLES FROM THE
CENTERLINE OF LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SHOWN ON SAID
TRACT MAP; THENCE SOUTH 00017'17" WEST 103.89 FEET FROM SAID
INTERSECTION TO THE SOUTHERLY TERMINUS OF A CURVE CONCAVE
SOUTHWESTERLY, HAVING A RADIUS OF 20.00 FEET, SAID CURVE BEING
TANGENT AT ITS WESTERLY TERMINUS TO A LINE THAT IS PARALLEL WITH AND
DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT ANGLES FROM SAID
CENTERLINE OF SAID LAURELWOOD DRIVE, AND TANGENT AT SAID SOUTHERLY
TERMINUS WITH A LINE THAT IS PARALLEL WITH AND DIST ANT WESTERLY 52.48
FEET, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF TIPPECANOE
AVENUE; THENCE SOUTH 00008'00" EAST 288.33 FEET ALONG SAID PARALLEL
LINE TO ITS INTERSECTION WITH THE CENTERLINE OF ROSEWOOD DRIVE, 50.00
FEET WIDE, AS SHOWN ON SAID TRACT MAP; THENCE NORTH 89048'23" WEST 7.33
FEET ALONG SAID CENTERLINE; THENCE SOUTH 00004'58" EAST 211.50 FEET TO
THE SOUTHERLY TERMINUS OF THE WESTERLY LINE OF THAT CERTAIN PARCEL
DESCRIBED IN THAT EASEMENT DEED TO THE CITY OF SAN BERNARDINO,
RECORDED AS INSTRUMENT NO. 95-190364 OF OFFICIAL RECORDS OF SAID
COUNTY, SAID WESTERLY LINE DESCRIBED IN SAID DEED AS "COURSE A", AND
C:\WlNDOWS\Temporary Internet FitesIOLK53SZ\DDA-Legals.doc
SHOWN WITH A BEARING AND DISTANCE OF SOUTH 00036'12" EAST 177.88 FEET
IN SAID DEED; THENCE ALONG THE WESTERLY LINE OF SAID EASEMENT SOUTH
32015'15" WEST 49.62 FEET; THENCE ALONG THE SOUTHERLY LINE OF SAID
PORTION OF LOT 5 OF BLOCK 72, DESCRIBED AS PARCEL 3 IN THAT CERTAIN
DIRECTOR'S DEED RECORDED IN BOOK 6272, PAGE 820 OF OFFICIAL RECORDS OF
SAID COUNTY, THE FOLLOWING COURSES; SOUTH 76020'45" WEST 963.86 FEET;
THENCE SOUTH 79027'09" WEST 307.03 FEET TO THE SOUTHWEST CORNER OF
SAID PARCEL 3, ALSO BEING THE SOUTHEAST CORNER OF LOT 25 OF TRACT NO.
12034. AS SHOWN ON A MAP FILED IN BOOK 168. PAGES 75 THROUGH 87
INCLUSIVE. OF MAPS, RECORDS OF SAID COUNTY; THENCE NORTH 00005'1 T'
WEST 386.40 FEET ALONG THE EASTERLY LINE OF SAID LOT 25 AND THE
WESTERLY LINE OF SAID LOT 5 OF BLOCK 72 TO A POINT ON THE SOUTHERLY
LINE OF SAID TRACT NO. 2743, SAID POINT BEING SOUTH 89048'15" EAST 1.00
FOOT FROM THE SOUTHWEST CORNER OF SAID TRACT NO. 2743; THENCE NORTH
89048'15" WEST 1.00 FOOT ALONG SAID SOUTHERLY LINE AND CONTINUING
ALONG SAID EASTERLY LINE OF LOT 25 OF TRACT NO. 12034 TO SAID
SOUTHWEST CORNER OF TRACT NO. 2743; THENCE NORTH 00007'42" WEST 684.30
FEET ALONG THE WESTERLY LINE OF SAID TRACT NO. 2743, ALSO BEING THE
EASTERLY LINE OF SAID TRACT NO. 12034, TO THE POINT OF BEGINNING.
C:\WINDOWS\T~omy Interne! Files\OLK53S2\DDA-Legals.doc
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AITACHMENTNO.lB
TENTATIVE LEGAL DESCRIPTION OF THE PHASE 1 SITE AND PLAT MAP
PHASE lA
THOSE PORTIONS OF LOTS 25, 27 THROUGH 37,46 THROUGH 59, AND 60 THROUGH
79 OF TRACT NO. 2743, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, TOGETHER WITH THOSE PORTIONS OF
ROSEWOOD DRIVE AND ORCHARD DRIVE, AS PER PLAT RECORDED IN BOOK 38
OF MAPS, AT PAGE 47, RECORDS OF SAID COUNTY, TOGETHER WITH THAT
PORTION OF LOT 5 OF BLOCK 72, RANCHO SAN BERNARDINO, AS PER PLAT
RECORDED IN BOOK 7 OF MAPS, AT PAGE 2, RECORDS OF SAID COUNTY,
TOGETHER MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 268.07 FEET ALONG SAID CENTERLINE; THENCE SOUTH 00011'20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAUREL WOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING; THENCE SOUTH 00011'31" WEST 132.06 FEET;
THENCE SOUTH 42010'55" EAST 153.05 FEET; THENCE EAST 114.07 FEET TO A LINE
THAT IS PARALLEL WITH AND DISTANT WESTERLY 52.48 FEET, MEASURED AT
RIGHT ANGLES, FROM SAID CENTERLINE OF TIPPECANOE AVENUE; THENCE
SOUTH 00008'00" EAST 63.45 FEET ALONG SAID PARALLEL LINE TO ITS
INTERSECTION WITH THE CENTERLINE OF ROSEWOOD DRIVE, 50.00 FEET WIDE,
AS SAID STREET IS SHOWN ON SAID TRACT MAP; THENCE NORTH 89048'23" WEST
7.33 FEET ALONG SAID CENTERLINE TO A POINT THAT IS NORTH 89048'23" WEST
59.81 FEET FROM THE INTERSECTION OF SAID CENTERLINES OF ROSEWOOD
DRIVE AND TIPPECANOE AVENUE; THENCE SOUTH 00004'58" EAST 211.50 FEET TO
THE SOUTHERLY TERMINUS OF THE WESTERLY LINE OF THAT CERTAIN PARCEL
DESCRIBED IN THAT EASEMENT DEED TO THE CITY OF SAN BERNARDINO,
RECORDED AS INSTRUMENT NO. 95-190364 OF OFFICIAL RECORDS OF SAID
COUNTY, SAID WESTERLY LINE DESCRIBED IN SAID DEED AS "COURSE A", AND
SHOWN WITH A BEARING AND DISTANCE OF SOUTH 00036'12" EAST 177.88 FEET
IN SAID DEED; THENCE ALONG THE WESTERLY LINE OF SAID EASEMENT SOUTH
32015'15" WEST 49.62 FEET; THENCE ALONG THE SOUTHERLY LINE OF SAID
PORTION OF LOT 5 OF BLOCK 72, DESCRIBED AS PARCEL 3 IN THAT CERTAIN
DIRECTOR'S DEED RECORDED IN BOOK 6272, PAGE 820 OF OFFICIAL RECORDS OF
SAID COUNTY, THE FOLLOWING COURSES; SOUTH 76020'45" WEST 963.86 FEET;
THENCE SOUTH 79027'09" WEST 307.03 FEET TO THE SOUTHWEST CORNER OF
SAID PARCEL 3, ALSO BEING THE SOtITHEAST CORNER OF LOT 25 OF TRACT NO.
12034, AS SHOWN ON A MAP FILED IN BOOK 168, PAGES 75 THROUGH 87
INCLUSIVE, OF MAPS, RECORDS OF SAID COUNTY; THENCE NORTH 00005'17"
C:\WINDOWS\Temporary Intenu:t Files\OLK5352\DDA-Legals.doc
WEST 386.40 FEET ALONG THE EASTERLY LINE OF SAID LOT 25 AND THE
WESTERLY LINE OF SAID LOT 5 OF BLOCK 72 TO A POINT ON THE SOUTHERLY
LINE OF SAID TRACT NO. 2743, SAID POINT BEING SOUTH 89048'15" EAST 1.00
FOOT FROM THE SOUTHWEST CORNER OF SAID TRACT NO. 2743; THENCE NORTH
89048'15" WEST 1.00 FOOT ALONG SAID SOUTHERLY LINE AND CONTINUING
ALONG SAID EASTERLY LINE OF LOT 25 OF TRACT NO. 12034 TO SAID
SOUTHWEST CORNER OF TRACT NO. 2743; THENCE NORTH 00007'42" WEST 113.08
FEET ALONG THE WESTERLY LINE OF SAID TRACT NO. 2743, ALSO BEING THE
EASTERLY LINE OF SAID TRACT NO. 12034, TO A POINT ON A CURVE THAT IS
CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 442.00 FEET, A LINE RADIAL
TO SAID POINT BEARS SOUTH 00011'15" EAST; THENCE NORTHEASTERLY 427.41
FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 55024'15" TO A POINT
OF REVERSE CURVE, SAID REVERSE CURVE BEING CONCAVE SOUTHEASTERLY,
HAVING A RADIUS OF 358.00 FEET, A LINE RADIAL TO SAID POINT BEARS NORTH
55035'30" WEST; THENCE NORTHEASTERLY 348.53 FEET ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 55046'50" TO A POINT OF TANGENCY WITH SAID
LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED
AT RIGHT ANGLES, FROM SAID CENTERLINE OF LAURELWOOD DRIVE; THENCE
SOUTH 89048'40''EAST 397.52 FEET ALONG SAID PARALLEL LINE TO THE TRUE
POINT OF BEGINNING.
PHASEIB
TIIOSE PORTIONS OF LOTS 1 THROUGH 5 OF TRACT NO. 2743, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47, RECORDS OF SAID COUNTY,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 321.27 FEET ALONG SAID CENTERLINE; THENCE NORTH 00011'20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT NORTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAUREL WOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING; THENCE SOUTH 89048'40" EAST 269.32 FEET
ALONG SAID PARALLEL LINE TO A POINT ON A CURVE CONCAVE
NORTHWESTERLY, HAVING RADIUS OF 20.00 FEET, SAID CURVE BEING THE
NORTHWESTERLY LINE OF THAT CERTAIN PARCEL CONVEYED TO THE COUNTY
OF SAN BERNARDINO IN A DOCUMENT RECORDED AS INSTUMENT NO. 85-140281,
OFFICIAL RECORDS OF SAID COUNTY, SAID CURVE BEING TANGENT AT ITS
WESTERLY TERMINUS TO A LINE THAT IS PARALLEL WITH AND DISTANT
NORTHERLY 30.00 FEET, MEASURED AT RIGHT ANGLES FROM SAID CENTERLINE
OF SAID LAURELWOOD DRIVE, AND TANGENT AT NORTHERLY TERMINUS WITH
C:lwlNooWSITempomy Internot FilesIOLKS3S2'DDA-Legats.doc
A LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 50.00 FEET,
MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF TIPPECANOE
AVENUE; THENCE NORTHERLY 8.34 FEET ALONG SAID CURVE AND SAID
WESTERLY LINE, THROUGH A CENTRAL ANGLE OF 23054'02" TO SAID LINE
PARALLEL WITH THE CENTERLINE OF TIPPECANOE AVENUE; THENCE NORTH
00008'00" WEST 128.94 FEET ALONG SAID PARALLEL LINE, ALSO BEING THE
WESTERLY LINE OF SAID DOCUMENT RECORDED AS INSTUMENT NO. 85-140281,
AND THE WESTERLY LINES OF THOSE CERTAIN PARCELS CONVEYED TO THE
COUNTY OF SAN BERNARDINO IN DOCUMENTS RECORDED AS INSTUMENT NO.
85-199288 AND 85-244473 OF OFFICIAL RECORDS OF SAID COUNTY, TO A POINT ON
THE NORTHERLY LINE OF SAID TRACT NO. 2743; THENCE NORTH 89048'29" WEST
271.04 FEET ALONG THE NORTHERLY LINE OF SAID TRACT TO THE NORTHWEST CORNER OF SAID LOT 5; THENCE SOUTH 00007'56" EAST 137.06 FEET ALONG THE
WESTERLY LINE OF SAID LOT 5 TO THE TRUE POINT OF BEGINNING.
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ATTACHMENT NO. IC
TENTATIVE LEGAL DESCRIPTION OF mE PHASE 2 SITE AND PLAT MAP
THOSE PORTIONS OF LOTS 6 THROUGH 20, AND 37 THROUGH 46 OF TRACT NO.
2743. IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE
OF CALIFORNIA, TOGETHER WITH THOSE PORTIONS OF LAURELWOOD DRIVE
AND ORCHARD DRIVE, AS PER PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE
47. RECORDS OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 321.27 FEET ALONG SAID CENTERLINE; THENCE NORTH 00011 '20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT NORTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAUREL WOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING; THENCE NORTH 89048'40" EAST 344.32 FEET
ALONG SAID PARALLEL LINE TO A POINT ON A CURVE CONCAVE
SOUTHEASTERLY, HAVING A RADIUS OF 442.00 FEET; THENCE SOUTHWESTERLY
430.31 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 55046'50" TO A
POINT OF REVERSE CURVE, SAID REVERSE CURVE BEING CONCAVE
NORTHWESTERLY, HAVING A RADIUS OF 358.00 FEET, A LINE RADIAL TO SAID
POINT BEARS SOUTH 55035'30" EAST; THENCE SOUTHWESTERLY 346.11 FEET
ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 55023'37" TO A POINT ON
THE WESTERLY LINE OF SAID TRACT NO. 2743; THENCE NORTH 00007'33" WEST
487.22 FEET ALONG WESTERLY LINE TO THE NORTHWEST CORNER OF SAID
TRACT; THENCE SOUTH 89048'29" EAST 1005.32 FEET ALONG THE NORTHERLY
LINE OF SAID TRACT TO THE NORTHEAST CORNER OF SAID LOT 6; THENCE
SOUTH 00007'56" EAST 137.06 FEET ALONG THE EASTERLY LINE OF SAID LOT 6 TO
THE TRUE POINT OF BEGINNING.
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ATTACHMENT NO. ID
LEGAL DESCRIPTION OF THE CORNER PARCEL AND PLAT MAP
THOSE PORTIONS OF LOTS 21, 22, 26, 27, 58 AND 59 OF TRACT NO. 2743, IN THE
CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47,
RECORDS OF SAID COUNTY, MORE P ARTICULARL Y DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743~ THENCE NORTH
89048'40" WEST 268.07 FEET ALONG SAID CENTERLINE~ THENCE SOUTH 00011 '20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAUREL WOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING~ THENCE SOUTH 00011'31" WEST 132.06 FEET~
THENCE SOUTH 42010'55" EAST 116.55 FEET TO A POINT ON THE EASTERLY LINE
OF SAID LOT 59~ THENCE NORTH 00007'58" WEST 115.10 FEET ALONG SAID
EASTERLY LINE OF LOT 59, ALSO BEING THE EASTERLY LINES OF LOTS 24 AND 23
OF SAID TRACT, TO THE NORTHWEST CORNER OF SAID LOT 23, SAID CORNER
ALSO BEING THE SOUTHWEST CORNER OF SAID LOT 22~ THENCE SOUTH
89048'36" EAST 138.52 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 22 AND
THE NORTHELRY LINE OF SAID LOT 23 TO A LINE THAT IS PARALLEL WITH AND
DISTANT WESTERLY 52.48 FEET, MEASURED AT RIGHT ANGLES, FROM SAID
CENTERLINE OF TIPPECANOE AVENUE~ THENCE NORTH 00008'00" WEST 83.18
FEET ALONG SAID PARALLEL LINE TO THE BEGINNING OF A CURVE CONCAVE
SOUTHWESTERLY, HAVING RADIUS OF 20.00 FEET, SAID CURVE BEING TANGENT
AT ITS WESTERLY TERMINUS TO SAID LINE THAT IS PARALLEL WITH AND
DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT ANGLES FROM SAID
CENTERLINE OF LAURELWOOD DRIVE~ THENCE NORTHWESTERLY 31.30 FEET
ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 89040'40" TO SAID
PARALLEL LINE~ THENCE NORTH 89048'40" WEST 195.94 FEET ALONG SAID
PARALLEL LINE TO THE TRUE POINT OF BEGINNING.
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ATTACHMENT NO. IE
LEGAL DESCRIPTION OF IN-N-OUT AND PLAT MAP
THOSE PORTIONS OF LOTS 21 THROUGH 27, 58 AND 59 OF TRACT NO. 2743, IN THE
CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47,
RECORDS OF SAID COUNTY, MORE P ARTICULARL Y DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743~ THENCE NORTH
89048'40" WEST 268.07 FEET ALONG SAID CENTERLINE~ THENCE SOUTH 00011 '20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAURELWOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING~ THENCE SOUTH 00011'31" WEST 132.06 FEET~
THENCE SOUTH 42010'55" EAST 153.05 FEET ~ THENCE EAST 114.07 FEET TO A
LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 52.48 FEET, MEASURED
AT RIGHT ANGLES, FROM SAID CENTERLINE OF TIPPECANOE A VENUE~ THENCE
NORTH 00008'00" WEST 224.87 FEET ALONG SAID PARALLEL LINE TO THE
BEGINNING OF A CURVE CONCAVE SOUTHWESTERL Y, HAVING RADIUS OF 20.00
FEET, SAID CURVE BEING TANGENT AT ITS WESTERLY TERMINUS TO SAID LINE
THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED AT
RIGHT ANGLES FROM SAID CENTERLINE OF LAURELWOOD DRIVE~ THENCE
NORTHWESTERLY 31.30 FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE
OF 89040'40" TO SAID PARALLEL LINE~ THENCE NORTH 89048'40" WEST 195.94
FEET ALONG SAID PARALLEL LINE TO THE TRUE POINT OF BEGINNING.
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ATTACHMENT NO. IF
LEGAL DESCRIPTION OF IN-N-OUT BURGER SITE (EXISTING LOCATION)
AND PLAT MAP
THOSE PORTIONS OF LOTS 23, 24, 25 AND 79 OF TRACT NO. 2743, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS
PER PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47, RECORDS OF SAID
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 23; THENCE NORTH
89048'36" WEST 20.00 FEET ALONG THE NORTHERLY LINE OF SAID LOT 23 TO A
POINT OF INTERSECTION WITH A LINE THAT IS PARALLEL WITH AND DISTANT
WESTERLY 50.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE
OF TIPPECANOE AVENUE, 60.00 FEET WIDE, AS SHOWN ON SAID MAP, SAID POINT
OF INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH
00008'00" EAST 155.03 FEET ALONG SAID PARALLEL LINE, ALSO BEING THE
WESTERLY LINE OF THOSE PORTIONS OF SAID LOT 23, 24, 25 AND 79, AS
CONVEYED TO THE COUNTY OF SAN BERNARDINO IN A GRANT DEED RECORDED
IN BOOK 7126, PAGE 422 OF OFFICIAL RECORDS OF SAID COUNTY, TO THE
BEGINNING OF A CURVE CONCAVE NORTHWESTERLY, HAVING A RADIUS OF
20.00 FEET; THENCE SOUTHWESTERLY 31.53 FEET ALONG SAID CURVE AND THE
NORTHWESTERLY LINE OF SAID PORTION OF LOTS 25 AND 79 CONVEYED TO THE
COUNTY OF SAN BERNARDINO, THROUGH A CENTRAL ANGLE OF 90019'37" TO A
LINE THAT IS PARALLEL WITH AND DISTANT NORTHERLY 30.00 FEET, MEASURED
AT RIGHT ANGLES, FROM THE CENTERLINE OF ROSEWOOD DRIVE, 50.00 FEET
WIDE, AS SHOWN ON SAID MAP, SAID PARALLEL LINE ALSO BEING THE
NORTHERLY LINE OF THAT PORTION OF LOTS 79 AND 25 CONVEYED TO THE
COUNTY OF SAN BERNARDINO IN SAID GRANT DEED; THENCE NORTH 89048'23"
WEST 120.88 FEET ALONG SAID PARALLEL LINE TO THE WESTERLY LINE OF SAID
LOT 25; THENCE NORTH 00007'58" WEST 175.14 FEET ALONG SAID WESTERLY
LINE OF LOT 25 AND THE WESTERLY LINES OF LOTS 24 AND 23 TO THE
NORTHWEST CORNER OF SAID LOT 23; THENCE SOUTH 89048'36" EAST 141.00
FEET ALONG THE NORTHERLY LINE OF SAID LOT 23 TO THE TRUE POINT OF
BEGINNING.
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ATTACHMENT NO. IG
LEGAL DESCRIPTION OF LOT 25, PORTION OF 24 AND PLAT MAP,
REMNANT GOING TO DEVELOPMENT AFTER IN-N-OUT RELOCATION
THOSE PORTIONS OF LOTS 24, 25 AND 79 OF TRACT NO. 2743, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47, RECORDS OF SAID COUNTY,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 268.07 FEET ALONG SAID CENTERLINE; THENCE SOUTH 00011'20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE; THENCE SOUTH
00011'31" WEST 132.06 FEET; THENCE SOUTH 42010'55" EAST 116.55 FEET TO A
POINT ON THE WESTERLY LINE OF SAID LOT 24, SAID POINT BEING THE TRUE
POINT OF BEGINNING; THENCE CONTINUING SOUTH 42010'55" EAST 36.50 FEET;
THENCE EAST 114.07 FEET TO A LINE THAT IS PARALLEL WITH AND DISTANT
WESTERLY 52.48 FEET, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE
OF TIPPECANOE AVENUE; THENCE SOUTH 00008'00" EAST 23.00 FEET ALONG SAID
PARALLEL LINE TO ITS INTERSECTION WITH A NON-TANGENT CURVE, CONCAVE
NORTHWESTERLY, HAVING A RADIUS OF 20.00 FEET, A LINE RADIAL TO SAID
INTERSECTION BEARS SOUTH 61018'13" EAST; THENCE SOUTHWESTERLY 21.47
FEET ALONG SAID NON-TANGENT CURVE, ALSO BEING THE NORTHWESTERLY
LINE OF THAT PORTION OF SAID LOT 79 CONVEYED TO THE COUNTY OF SAN
BERNARDINO IN A GRANT DEED RECORDED IN BOOK 7126, PAGE 422 OF OFFICIAL
RECORDS OF SAID COUNTY, TO A LINE THAT IS PARALLEL WITH AND DISTANT
NORTHERLY 30.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE
OF ROSEWOOD DRIVE, 50.00 FEET WIDE, AS SHOWN ON SAID MAP, SAID
PARALLEL LINE ALSO BEING THE NORTHERLY LINE OF THAT PORTION OF LOTS
79 AND 25 CONVEYED TO THE COUNTY OF SAN BERNARDINO IN SAID GRANT
DEED; THENCE NORTH 89048'23" WEST 120.88 FEET ALONG SAID PARALLEL LINE
TO THE WESTERLY LINE OF SAID LOT 25; THENCE NORTH 00007'58" WEST 60.03
FEET ALONG SAID WESTERLY LINE OF LOTS 25 AND 24 TO THE TRUE POINT OF
BEGINNING.
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ATIACHMENTNO.IH
TENTATIVE LEGAL DESCRIPTION OF mE PHASE 1 SITE AND PLAT MAP
PHASEIA
THOSE PORTIONS OF LOTS 27 THROUGH 37,46 THROUGH 59, AND 60 THROUGH 78
OF TRACT NO. 2743, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, TOGETHER WITH THOSE PORTIONS OF
ROSEWOOD DRIVE AND ORCHARD DRIVE, AS PER PLAT RECORDED IN BOOK 38
OF MAPS, AT PAGE 47, RECORDS OF SAID COUNTY, TOGETHER WITH THAT
PORTION OF LOT 5 OF BLOCK 72, RANCHO SAN BERNARDINO, AS PER PLAT
RECORDED IN BOOK 7 OF MAPS, AT PAGE 2, RECORDS OF SAID COUNTY,
TOGETHER MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 268.07 FEET ALONG SAID CENTERLINE; THENCE SOUTH 00011 '20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAURELWOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING; THENCE SOUTH 00011'31" WEST 132.06 FEET;
THENCE SOUTH 42010'55" EAST 116.55 FEET TO THE EASTERLY LINE OF SAID LOT
59; THENCE SOUTH 00007'58" EAST 65.03 FEET ALONG SAID EASTERLY LINE, ALSO
BEING THE WESTERLY LINE OF LOTS 24 AND 25 OF SAID TRACT NO. 2743, TO THE
SOUTHEAST CORNER OF SAID LOT 59; THENCE SOUTH 00011 '37" WEST 25.00 FEET,
PERPENDICULAR TO THE CENTERLINE OF ROSEWOOD DRIVE, 50.00 FEET WIDE,
AS SAID STREET IS SHOWN ON SAID TRACT MAP, TO SAID CENTERLINE; THENCE
SOUTH 89048'23" EAST 131.33 FEET ALONG SAID CENTERLINE TO A POINT THAT IS
NORTH 89048'23" WEST 59.81 FEET FROM THE INTERSECTION OF SAID
CENTERLINES OF ROSEWOOD DRIVE AND TIPPECANOE AVENUE; THENCE SOUTH
00004'58" EAST 211.50 FEET TO THE SOUTHERLY TERMINUS OF THE WESTERLY
LINE OF THAT CERTAIN PARCEL DESCRIBED IN THAT EASEMENT DEED TO THE
CITY OF SAN BERNARDINO, RECORDED AS INSTRUMENT NO. 95-190364 OF
OFFICIAL RECORDS OF SAID COUNTY, SAID WESTERLY LINE DESCRIBED IN SAID
DEED AS "COURSE A", AND SHOWN WITH A BEARING AND DISTANCE OF SOUTH
00036'12" EAST 177.88 FEET IN SAID DEED; THENCE ALONG THE WESTERLY LINE
OF SAID EASEMENT SOUTH 32015'15" WEST 49.62 FEET; THENCE ALONG THE
SOUTHERLY LINE OF SAID PORTION OF LOT 5 OF BLOCK 72, DESCRIBED AS
PARCEL 3 IN THAT CERTAIN DIRECTOR'S DEED RECORDED IN BOOK 6272, PAGE
820 OF OFFICIAL RECORDS OF SAID COUNTY, THE FOLLOWING COURSES; SOUTH
76020'45" WEST 963.86 FEET; THENCE SOUTH 79027'09" WEST 307.03 FEET TO THE
SOUTHWEST CORNER OF SAID PARCEL 3, ALSO BEING THE SOUTHEAST CORNER
OF LOT 25 OF TRACT NO. 12034, AS SHOWN ON A MAP FILED IN BOOK 168, PAGES
75 THROUGH 87 INCLUSIVE, OF MAPS, RECORDS OF SAID COUNTY; THENCE
C:\wlNooWS\T~orary Internot FiJes\OLKS3S2\DDA-Legals.doc
NORTH 00005'17" WEST 386.40 FEET ALONG THE EASTERLY LINE OF SAID LOT 25
AND THE WESTERLY LINE OF SAID LOT 5 OF BLOCK 72 TO A POINT ON THE
SOUTHERLY LINE OF SAID TRACT NO. 2743, SAID POINT BEING SOUTH 89048'15"
EAST 1.00 FOOT FROM THE SOUTHWEST CORNER OF SAID TRACT NO. 2743;
THENCE NORTH 89048'15" WEST 1.00 FOOT ALONG SAID SOUTHERLY LINE AND
CONTINUING ALONG SAID EASTERLY LINE OF LOT 25 OF TRACT NO. 12034 TO
SAID SOUTHWEST CORNER OF TRACT NO. 2743; THENCE NORTH 00007'42" WEST
113.08 FEET ALONG THE WESTERLY LINE OF SAID TRACT NO. 2743, ALSO BEING
THE EASTERLY LINE OF SAID TRACT NO. 12034, TO A POINT ON A CURVE THAT IS
CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 442.00 FEET, A LINE RADIAL
TO SAID POINT BEARS SOUTH 00011'15" EAST; THENCE NORTHEASTERLY 427.41
FEET ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 55024'15" TO A POINT
OF REVERSE CURVE, SAID REVERSE CURVE BEING CONCAVE SOUTHEASTERLY,
HAVING A RADIUS OF 358.00 FEET, A LINE RADIAL TO SAID POINT BEARS NORTH
55035'30" WEST; THENCE NORTHEASTERLY 348.53 FEET ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 55046'50" TO A POINT OF TANGENCY WITH SAID
LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED
AT RIGHT ANGLES, FROM SAID CENTERLINE OF LAURELWOOD DRIVE; THENCE
SOUTH 89048'40"EAST 397.52 FEET ALONG SAID PARALLEL LINE TO THE TRUE
POINT OF BEGINNING.
PHASE IB
THOSE PORTIONS OF LOTS 1 THROUGH 5 OF TRACT NO. 2743, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47, RECORDS OF SAID COUNTY,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 321.27 FEET ALONG SAID CENTERLINE; THENCE NORTH 00011'20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT NORTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAURELWOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING; THENCE SOUTH 89048'40" EAST 269.32 FEET
ALONG SAID PARALLEL LINE TO A POINT ON A CURVE CONCAVE
NORTHWESTERLY, HAVING RADIUS OF 20.00 FEET, SAID CURVE BEING THE
NORTHWESTERLY LINE OF THAT CERTAIN PARCEL CONVEYED TO THE COUNTY
OF SAN BERNARDINO IN A DOCUMENT RECORDED AS INSTUMENT NO. 85-140281,
OFFICIAL RECORDS OF SAID COUNTY, SAID CURVE BEING TANGENT AT ITS
WESTERLY TERMINUS TO A LINE THAT IS PARALLEL WITH AND DISTANT
NORTHERLY 30.00 FEET, MEASURED AT RIGHf ANGLES FROM SAID CENTERLINE
OF SAID LAURELWOOD DRIVE, AND TANGENT AT NORTHERLY TERMINUS WITH
C:\WINDOWS\T"""orary Intema Files\OLKS3S2\DDA-Legals.doc
A LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 50.00 FEET,
MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF TIPPECANOE
AVENUE; THENCE NORTHERLY 8.34 FEET ALONG SAID CURVE AND SAID
WESTERLY LINE, THROUGH A CENTRAL ANGLE OF 23054'02" TO SAID LINE
PARALLEL WITH THE CENTERLINE OF TIPPECANOE AVENUE; THENCE NORTH
00008'00" WEST 128.94 FEET ALONG SAID PARALLEL LINE, ALSO BEING THE
WESTERLY LINE OF SAID DOCUMENT RECORDED AS INSTUMENT NO. 85-140281,
AND THE WESTERLY LINES OF THOSE CERTAIN PARCELS CONVEYED TO THE
COUNTY OF SAN BERNARDINO IN DOCUMENTS RECORDED AS INSTUMENT NO.
85-199288 AND 85-244473 OF OFFICIAL RECORDS OF SAID COUNTY, TO A POINT ON
THE NORTHERLY LINE OF SAID TRACT NO. 2743; THENCE NORTH 89048'29" WEST
271.04 FEET ALONG THE NORTHERLY LINE OF SAID TRACT TO THE NORTHWEST
CORNER OF SAID LOT 5; THENCE SOUTH 00007'56" EAST 137.06 FEET ALONG THE
WESTERLY LINE OF SAID LOT 5 TO THE TRUE POINT OF BEGINNING.
C:\WINDOWS\T~orary Internet Files\OLK5352\DDA-Leg/lls.doc
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ATTACHMENT No. 2
Developer Improvement
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ATTACHMENT No. 3
site Parcel Identification List
T-2743
Lot No.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
23
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
Parcel No.
0281-081-01
0281-081-02
0281-081-03
0281-081-04
0281-081-05
0281-081-06
0281-081-07
0281-081-08
0281-081-09
0281-081-10
0281-081-11
0281-081-12
0281-081-13
0281-081-14
0281-081-15
0281-081-16
0281-081-17
0281-081-18
0281-081-19
0281-081-20
0281-082-57
0281-082-56
0281-082-17
0281-082-16
0281-082-15
0281-082-14
0281-082-13
0281-082-12
0281-082-11
0281-082-10
0281-082-09
0281-082-08
0281-082-07
0281-082-06
0281-082-05
0281-082-04
0281-082-03
0281-082-02
0281-082-01
Street Address
1874 Tippecanoe
Tippecanoe
Tippecanoe
1094 Laurelwood
1082 Laurelwood
1072 Laurelwood
1060 Laurelwood
1048 Laurelwood
1036 Laurelwood
1026-A,B,C,D Laurelwood
1014 Laurelwood
1004-A,B,C Laurelwood
994-A,B,C,D Laurelwood
982 Laurelwood
968 Laurelwood
956-A,B,C Laurelwood
942-A,B Laurelwood
930 Laurelwood
916-A,B,C Laurelwood
904 Laurelwood
1914 Tippecanoe
1944 Tippecanoe
1095 Laurelwood
Laurelwood
1 073-A,B Laurelwood
Laurelwood
1037,1037.5,1049 Laurelwood
1027 Laurelwood
1015,1019 Laurelwood
Laurelwood
1005 Laurelwood
995 Laurelwood
983-A.B.C.D Laurelwood
969-A,B,C,D Laurelwood
953,957 Laurelwood
943,949 Laurelwood
Laurelwood
917-A,B,C,D Laurelwood
905-A,B,C Laurelwood
II-34
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
0281-082-41
0281-082-40
0281-082-39
0281-082-38
0281-082-37
0281-082-36
0281-082-35
0281-082-34
0281-082-33
0281-082-32
0281-082-31
0281-082-30
0281-082-29
0281-082-28
0281-082-27
0281-082-26
0281-082-55
0281-083-18
0281-083-20
0281-083-17
0281-083-16
0281-083-15
0281-083-14
0281-083-13
0281-083-12
0281-083-11
0281-083-10
0281-083-09
0281-083-08
0281-083-07
0281-083-06
0281-083-05
0281-083-04
0281-083-03
0281-083-02
0281-083-01
0281-091-39
937-A,B,C,DOrchard Dr
914,916,918,920 Rosewood
928 Rosewood
942 Rosewood
956 Rosewood
968 Rosewood
980,982 Rosewood
994,996 Rosewood
Rosewood
1014, 1016-A,B,C,D Rosewood
1026 Rosewood
1 036-A,B,C,D Rosewood
Rosewood
1060 Rosewood
1072 Rosewood
Rosewood
1094 Rosewood
Tippecanoe
Tippecanoe
Rosewood
Rosewood
Rosewood
Rosewood
Rosewood
1037 Rosewood
1028 Rosewood
1015 Rosewood
1005 Rosewood
995 Rosewood
983 Rosewood
969 Rosewood
957 Rosewood
Rosewood
Rosewood
Rosewood
24707 Rosewood
Highway 1-10
II-34a
ATTACHMENT No. 4A
Description of the Phase I Project
Implementation of Phase I ofthe Project will result in development of approximately
198,600 square feet of commercial space on 17.57 acres located at the northwest comer
of Tippecanoe Avenue and the San Bernardino Freeway (1-10). The project is located
within the CR-3 Commercial Regional- Tri City/Club Land Use District, lies adjacent to
the freeway, and is contiguous with commercial property. Phase I development will
include a 130,400 square foot warehouse discount center with an unattended gas station,
a 45,000 square foot general retail building, and two pad buildings measuring
approximately 10,000 square feet each.
Developm~nt of Phase I will require the extension of the existing eastern end of Harriman
Place to align with the present intersection of Laurel wood Drive and Tippecanoe Avenue.
Rosewood Drive and portions of Laurel wood Drive will be vacated. Portions of the street
improvement work on the northerly side ofthe extension of Harriman Place including the
northern most driving lane and some of the north side curb and sidewalk improvements
may not be completed for the Phase I Project.
The Phase I Project development may be accompanied by the separate and independent
relocation of the existing In-N-Out Burger drive-through restaurant to be demolished and
rebuilt as a 3,200 square foot building at the future southwest comer of Harriman Place
and Tippecanoe Avenue. The relocation ofIn-N-Out will be subject to a separate
development agreement between the Agency and In-N-Out but will involve common
driveway access easements and signage agreements with the Developer.
Phase I includes approximately 1,000 parking places including the parking for the
relocated In-N-Out Burger site.
ATTACHMENT No. 4B
Description of the Phase II Project
Implementation of Phase II ofthe Project will result in development of up to 70,000
square feet of commercial space on 6.93 acres on the remaining land north ofthe
Harriman Place extension. Phase II development will be divided amongst two 25,000 to
30,000 square foot retail building and one pad building of 5,000 to 10,000 square feet.
Potential tenants of these buildings are undefined at this time.
Street improvements on the north side of the Harriman Place extension will be
completed. Additional parking of approximately 300 cars will be provided in the Phase II
Project improvements.
II-35
Attachment No. 5
[RESERVED - NO TEXT]
5/15/01 ct
SB2001:7825.8
II-36
Attachment No. 6
Schedule of Perfor.mance
5/15/01 ct
SB2001:7B25.8
II-37
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Attachment No. 7
Site Parcel Acquisition Agreement (general form)
5/15/01 ct
SB2001:7825.8
II-38
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
OFFER TO ACQUIRE REAL PROPERTY
(HUB PROJECT)
[NAME OF SELLER AND ADDRESS OF PROPERTY]
1. THE AGENCY AND ITS OFFER TO ACQUIRE REAL PROPERTY
The Redevelopment Agency of the City of San Bernardino (the
"Agency") hereby offers to acquire from
(herein collectively referred to as "Seller") all of the right,
title and interest of the Seller in the real property hereinafter
described (the "Property") upon the terms and conditions set forth
below (the "Offer"). Upon the execution of this Offer by the
Seller by a date no later than as provided in Paragraph 27, this
document and the terms and conditions set forth herein shall become
a binding and enforceable contract between the Agency and Seller
for the acquisition of the Property by the Agency (the
"Agreement") .
2. PROPERTY
The Property which is the subject of the Offer consists of
( ) separate legal parcels of land including approximately
( ) square feet in area, more or less,
together with the structures and improvements located thereon, and
all of the Seller's right, title, and interest therein. The
Property is located at , San Bernardino, County
of San Bernardino, State of California.
[EDITOR'S NOTE: ALTERNATIVE TEXT IF PROPERTY OCCUPIED BY
TENANTS: The Seller has leased the improvements on the Property
(the "Building") pursuant to a written rental agreement (s) (the
"Lease (s) ,,) by and between the Seller and (the
"Tenant") .
The Property is more particularly depicted on Exhibit "A"
attached hereto and by this reference made a part thereof.
3. PURCHASE PRICE PAYABLE BY AGENCY
The total amount of the consideration and just compensation to
be paid to the Seller by the Agency for the transfer of the lien-
free, merchantable fee title to the Property (including the
Building), together with all of the other right, title and interest
of the Seller therein, is the sum of DOLLARS
( ). This sum is referred to in this Agreement as the
"Purchase Price". The Purchase Price shall be payable by the
Agency in cash to the Seller as provided under Paragraph 8.1. and
Paragraph 8.6.
SB200J.:J.3627.J.
1
[EDITOR'S NOTE: ALTERNATE TEXT FOR INCLUSION OF RELOCATION
BENEFIT PAYABLE TO SELLER IN AGENCY OFFER: The Purchase Price
includes all amounts of relocation benefits and other compensation
which may be payable to the Seller under the provisions of
Government Code Section 7260 et. seq., or other applicabie law.]
The full amount of the Purchase Price is reserved for the Seller,
[EDITOR'S NOTE: ALTERNATE TEXT FOR INCLUSION WHERE TENANTS IN
POSSESSION OF THE PROPERTY: In addition to and separate from the
Purchase Price payable by the Agency to the Seller, the Agency
shall be responsible for paying all other amounts of relocation
benefits and other compensation (if any) which the Tenant in lawful
possession and occupancy of the Building pursuant to the Lease may
be entitled under applicable law at such time as the lawful
occupancy of the Tenant under the Lease may terminate or be
surrendered to the Agency by the Tenant.]
4. NON-REFUNDABLE CASH PAYABLE BY THE AGENCY TO ESCROW HOLDER
FOLLOWING SELLER ACCEPTANCE OF OFFER BEFORE THE CLOSE OF
ESCROW AND DEPOSIT
4.1 Within three (3) business days following receipt by the
Agency of a copy of the Agreement which has been fully
executed by the Seller, the Agency shall deliver to the
Escrow Holder (as defined in Paragraph 5.1) a check in
the sum of DOLLARS ($ ) ,
which sum shall be collected for the account of the
Seller by the Escrow Holder and placed into an escrow
account trust fund ( the "Deposit"). The Seller may at
its option withdraw funds in the Deposit before the Close
of Escrow as provided in Paragraph 4.8. The amount paid
by the Agency into the Deposit, together with accrued
interest, if any, on the balance of the Deposit held by
the Escrow Holder, shall be applied to the Purchase
Price, or paid to the Seller as provided in Paragraph
4.6. The Escrow shall be deemed "opened" on the date the
sum of DOLLARS ($ ) is
collected by the Escrow Holder from the Agency for the
account of the Seller and placed in the Deposit.
4.2 Provided that the Agency has first approved the matters
referenced in Paragraph 7.1(A) through (E), inclusive,
within thirty (30) days after the Escrow is deemed
opened, the Agency shall pay a second installment of the
Deposit to the Escrow Holder in the amount of
DOLLARS ($ ) which shall
also be collected for the account of the Seller by the
Escrow Holder and placed into the Deposit.
4.3 A third installment of the Deposit shall be paid by the
Agency to the Escrow Holder within ( ) days
SB2001:13627.1 2
following the Escrow Holder's receipt of the second
installment of the Deposit provided that before the time
of such third installment the Agency has not disapproved
any of the other matters referenced in Paragraph 7.1(F)
and (G). The third installment of the Deposit shall be
the sum of DOLLARS ($ )
which shall be collected by the Escrow Holder for the
account of the Seller and placed into the Deposit.
4.4 The amount of the Deposit as paid by the Agency under
Paragraph 4. 1, 4 . 2 and 4. 3 shall be credi ted to the
Purchase Price. The balance of the Purchase Price
payable in cash by the Agency, including the escrow fees
and other closing costs payable by the Agency at Close of
Escrow, shall be delivered to the Escrow Holder by the
Agency in cash or available funds by no later than 12:00
'noon on the business day prior to the Closing Date (as
defined in Paragraph 8.1).
4.5 In the event the Agency fails to deliver to the Escrow
Holder either of the two (2) installments of the Deposit
specified in Paragraph 4.1 and Paragraph 4.2 on or before
the applicable date or in the event thereafter the Agency
fails to promptly perform any other covenant or
obligation contained in this Agreement, subject to the
satisfaction or waiver of satisfaction of the conditions
set forth in Paragraph 7.1 and Paragraphs 8.1 - 8.7,
inclusive, the Seller may elect to give written notice to
the Agency of a default and if a breach continues, the
Seller may terminate this Agreement in accordance with
Paragraph 21 and the Seller shall retain as liquidated
damages from the Agency the amount provided in Paragraph
4.6 of this Agreement.
4.6 IN THE EVENT THE AGENCY FAILS TO ACKNOWLEDGE SATISFACTION
OR CONFIRM A WAIVER OF SATISFACTION OF ANY ONE OR MORE OF
THE CONDITIONS PRECEDENT FOR FURTHER PERFORMANCE BY THE
AGENCY UNDER PARAGRAPH 7.1 (F) AND/OR (G) AND THE SELLER
HAS GIVEN NOTICE OF DEFAULT TO THE AGENCY OF ITS
INTENTION TO EXERCISE ITS REMEDY TO TERMINATE THIS
AGREEMENT AS A RESULT OF SUCH A BREACH BY THE AGENCY AS
PROVIDED IN PARAGRAPH 4.5, IT IS EXPRESSLY ACKNOWLEDGED
THAT SELLER SHALL INCUR A LOSS AS A RESULT OF SUCH
FAILURE OF CONDITIONS, DELINQUENCY, DEFAULT OR BREACH.
IT IS FURTHER ACKNOWLEDGED THAT THE AMOUNT OF SUCH A LOSS
SHALL BE EXTREMELY DIFFICULT TO CALCULATE AND ASCERTAIN.
THEREFORE, IT IS EXPRESSLY AGREED THAT IN SUCH AN EVENT
THE AGENCY SHALL PAY TO SELLER LIQUIDATED DAMAGES IN THE
SUM OF DOLLARS ($ ), WHICH
THE AGENCY AND THE SELLER AGREE IS REASONABLE IN LIGHT OF
ALL THE FACTS KNOWN TO THEM ON THE DATE OF THIS AGREEMENT
IN THE EVENT THAT THE SELLER TERMINATES THE AGREEMENT
SB2001:13627.1 3
BASED UPON THE GROUNDS REFERENCED IN PARAGRAPH 4.5. IN
SUCH AN EVENT, IF THE AGENCY HAS DELIVERED THE DEPOSIT,
THE SELLER SHALL BE ENTITLED TO DRAW UPON THE DEPOSIT TO
SATISFY THE FOREGOING OBLIGATION OF THE AGENCY. THE
RECEIPT BY THE SELLER OF THE LIQUIDATED DAMAGES AMOUNT
PAYABLE BY THE AGENCY SHALL NOT, HOWEVER, PRECLUDE SELLER
FROM HOLDING THE AGENCY LIABLE FOR PROPERTY DAMAGE
SUSTAINED BY SELLER AS A RESULT OF FAULTY WORK OR
UNREIMBURSED THIRD PARTY EXPENSES ASSOCIATED WITH ANY
INVESTIGATION OF THE PROPERTY CONDUCTED BY THE AGENCY
PURSUANT TO PARAGRAPH 19 HEREOF, IF APPLICABLE.
INITIAL OF THE AUTHORIZED
OFFICER OF THE AGENCY
INITIALS OF SELLER
4.7 Provided the conditions precedent of Paragraph 7.1 have
first been satisfied (or waived by the Agency), the
Agency shall deliver to the Escrow Holder by no later
than by 12: 00 noon at least two (2) business days
preceding the Closing Date, cash or available funds in an
amount sufficient when added to the amount of the Deposit
as previously paid, to equal the Purchase Price and to
cause the Close of Escrow to occur. In the event that
the provisions of Paragraph 8.1(B) may be applicable to
the Close of Escrow, the Agency shall deliver the balance
of the cash or available funds in an amount sufficient to
close the Escrow as of the earliest of the two (2)
following dates: (i) two (2) business days preceding the
Closing Date under Paragraph 8.1(B) (i) ; or (ii) on the
next business day following the entry of the judgment as
provided in Paragraph 8.1(B) (ii).
4.8 The Escrow Holder shall upon receipt of written request
from the Seller release a sum of up to and including
DOLLARS ($ ) from the Deposit
at any time before the Close of Escrow upon confirmation
by the Escrow Holder that the Seller has executed in
recordable form the Notice of Pending Transaction
Relating to Transfer of Real Property to A Public Agency
(the "Notice") in the form attached hereto as Exhibit "B"
and the Notice has been recorded. In the event that the
Seller may elect to terminate this Agreement on the
grounds provided in Paragraph 4.5, any amount of the
Deposit released to the Seller pursuant to this Paragraph
4.8 shall be credited to the amount which "may be payable
to the Seller as liquidated damages under Paragraph 4.6
in the event of an occurrence of a default by the Agency.
5 . ESCROW
SB2001:13627.1
4
The payment by the Agency of the Deposit to the Seller and the
payment of the remaining balance of the Purchase Price to the
Seller and the transfer of all of the right, title and interest of
the Seller in the Property to the Agency (inclusive of all amounts
of just compensation, relocation assistance and the like) shall be
consummated by means of an escrow ("Escrow") to be opened at
(" Escrow Holder") .
6. PRELIMINARY TITLE REPORT AND DOCUMENTS
The Agency hereby acknowledges its receipt of the
following documents:
(i) a preliminary title report (PTR) for the
Property issued by ,
("Title Company"), under Title Company Order
No. , together with copies of all
documents referred to in such PTRi and
[EDITOR'S NOTE: ALTERNATE TEXT IF PROPERTY
OCCUPIED BY TENANTS:
(ii) a copy of the Lease which the Seller
represents to be true and correct, and all
amendments and modifications between the
Seller and the Tenant, together with a written
accounting of the balance, if any, of prepaid
rent, deposits or other amounts payable by the
Tenant to the Seller.]
7. CONDITIONS PRECEDENT TO THE PERFORMANCE OF THE OBLIGATIONS OF
THE AGENCY TO ACQUIRE THE PROPERTY AND TO CLOSE THE ESCROW
7.1 After the Agency has delivered the sum of
Dollars ($ ) as the first installment of the
Deposit to the Escrow Holder under Paragraph 4.1, the
following are conditions precedent to the payment of the
second and third installments of the Deposit and the
performance of other obligations of the Agency to acquire
the Property from the Seller:
A.
Approval by the City Engineer of the legal
description to be used in the grant deed for the
conveyance of the Property to the AgencYi
B.
Approval by the Agency of the PTR and the
information described in Paragraph 6(ii), above, by
, 2001, which approval shall be given
as provided in Paragraph 7.2 belowi
SB2001:13627.1
5
C. Approval by the Agency of the soils condition and
environmental condition of the Property and the
Building within ( ) days following the
opening of Escrow, which approval shall be given as
provided in Paragraph 7.2, below. For the purpose
of the "approval" by the Agency of the
environmental condition of the Building, the
environmental condition of the Building shall be
deemed to be approved by the Agency provided that
the completion of an environmental hazards
inspection of the interior of the Building
indicates the presence of de minimis amounts of
asbestos containing materials and other hazardous
materials lawfully incorporated into the structural
components of the Building at time of initial
installation such that special abatement and
demolition costs associated with the lawful
disposal of such hazardous materials, if any, are
not reasonably estimated as of the date of the
Offer to exceed the sum of DOLLARS
($ ) to the cost payable by the Agency
for the demolition of the Building following the
Close of the Escrow;
D. Verification by the Agency that no material breach
has occurred under the [HUB DDA] ;
E. [EDITOR'S NOTE: ALTERNATE TEXT IF PROPERTY OCCUPIED
BY TENANT] Receipt by the Escrow Holder (pending
the delivery to the Agency upon the Close of
Escrow) of the assignment of the Lease from the
Seller to the Agency as fully executed by the
Seller, substantially in the form attached hereto
as Exhibit "C".
7.2 The Agency shall deliver to the Seller the written
approval, disapproval or waiver of satisfaction by the
Agency of each of the matters indicated in Paragraph 7.1
(A) - (E), inclusive as of the dates or times provided
therein, but in no event by a date later than
, 2001. In the event such written approval,
disapproval or waiver of satisfaction is not received by
Seller within the foregoing applicable time periods, it
shall be conclusively presumed that the Agency has
unconditionally approved each of said matters. If the
Agency may have disapproved (or conditionally approved)
any of the matters referred to in Paragraph 7.1(A) - (E)
and the Seller elects not to attempt to cure a
disapproved or conditionally approved matter, then the
Agency shall have the right to either accept the Property
and title thereto subject to said matter, thereby waiving
5B2001:13627.1 6
any and all other objection and/or claim against Seller
by reason thereof, or in the alternative the Agency may
terminate this Agreement. In the event the Agreement may
be terminated by the Agency on such grounds, the second
and third installments of the Deposit shall not be paid
by the Agency to the Escrow Holder and the Escrow shall
be cancelled and the Agency shall pay the customary
escrow cancellation fees and expenses of the Escrow
Holder. The Agency shall give written notice to the
Seller of the election of the Agency to waive an
objection or alternatively terminate the Agreement within
ten (10) days after the earlier of (i) the receipt by the
Agency of notice of the Seller's election not to cure one
or more of the matters deemed "disapproved" by the
Agency, or (ii) the expiration of the Seller's Response
Period.
7.3 The Agency shall del i ver the sum of
Dollars ($ ) to the Escrow Holder as the
second installment of the Deposit promptly following the
approval by the Agency of the matters referenced in
Paragraph 7.2, which the parties presently believe shall
occur within ( ) days following the opening
of the Escrow. --
7.4 If the Agency fails to give the Seller notice of either
the Agency's satisfaction or the Agency's election to
waive an objection to any matter described in Paragraph
7.1 (F) within the time specified, it shall be
conclusively presumed that the Agency has elected to
terminate this Agreement.
In the event the Agency may elect to waive
satisfaction of the matters identified in Paragraph
then the Agency shall be obligated to acquire
Property from the Seller pursuant to the terms of
Agreement.
the
7.1,
the
this
If the Agency elects to terminate (or is presumed to have
terminated) this Agreement pursuant to this Paragraph
7.4, neither the Agency nor Seller shall have any further
liability hereunder, except that the Agency shall be
entitled to the prompt return of all funds delivered by
the Agency to the Escrow Holder for the Deposit, less the
amount of the Deposit, if any, which the Seller may have
withdrawn as authorized under Paragraph 4.8 and the
customary escrow cancellation fees and expenses, all of
which the Agency hereby agrees to pay.
7.5
In the event
disapproved or
Paragraph 7.2,
Seller elects to attempt to cure any
conditionally approved item pursuant to
above, but thereafter fails to complete
SB2DD1:13627.1
7
the cure or correction of such an item prior to the Close
of Escrow, then the terms and conditions of the second
subparagraph of Paragraph 8.2(B) below shall apply.
7.6.
A. Upon the approval or waiver of satisfaction of approval
by the Agency, all of the conditions precedent in
Paragraph 7.1(A) - (E), inclusive, the Escrow shall close
in accordance with Paragraph 8.
[EDITOR'S NOTE: ALTERNATE TEXT WHERE TENANT OCCUPIES
PROPERTY UNDER A LEASE WITH A FIXED TERM:
B. In the event that the Tenant and the Agency may not have
fully executed a written agreement in a form mutually
acceptable to the Tenant and the Agency evidencing the
terms and conditions of the surrender of possession and
occupancy of the Building and the cancellation and
termination of the remaining term of the Lease, (subject
only to the Close of Escrow between the Seller and the
Agency), then the Seller hereby authorizes the Agency to
initiate eminent domain proceedings by the filing of a
complaint in eminent domain in Superior Court to acquire
all right, title and interest in the Property upon entry
of a judgment in condemnation (the "Condemnation
Proceedings") at any time on or after , 2001 i
provided however, that the Agency shall have delivered to
either the Escrow Holder or the Clerk of the Superior
Court, a sum equal to the Purchase Price (less credits
for the installments of the Deposit previously paid by
the Agency) for the account of the Seller. If the Agency
delivers the balance of the Purchase Price to the Escrow
Holder under this Paragraph 7.6(B), the Escrow Holder
shall receive the Purchase Price and credit the Deposit
for the full amount of the Purchase Price payable to the
Seller at least three (3) days preceding the date on
which the Agency may file a complaint in the Condemnation
Proceedings in Superior Court. If the Agency delivers
the balance of the Purchase Price to the Clerk of the
Superior Court under this Paragraph 7.6(B), the Clerk of
the Superior Court shall receive the balance of the
Purchase Price currently upon the filing of the complaint
and the issuance of the summons in the Condemnation
Proceedings as provided under Code of Civil Procedure
Section 1255.010, et. seq.
The Seller hereby further consents and agrees to accept
service of summons "and complaint as a party in the
Condemnation Proceedings in the event that the Agency
initiates such proceedings to acquire the Property
SB2001:13627.1
8
[EDITOR'S NOTE: ALTERNATE TEXT WHERE TENANT OCCUPIES
PROPERTY UNDER A LEASE WITH A FIXED TERM - CONTINUED]
(inclusive of all interests under the Lease) by virtue of
the failure of the Tenant and the Agency to mutually
approve and accept the terms of the Lease cancellation
and termination arrangement referenced in the preceding
subparagraph of Paragraph 7.6 (B) . The Seller also
consents to the application by the Agency to the Superior
Court for an appropriate order of the Court and issuance
of one or more orders for prejudgment possession of the
Building and the Property by the Agency and the entry of
interlocutory orders and/or a final judgment in
condemnation affecting the Property in which the Seller
is apportioned, awarded and paid the sum of $750,000.00
(less any amount previously released by the Escrow Holder
~nd paid to the Seller from the Deposit and less an
amount reserved for the discharge and payment of taxes
not properly allocated to the Tenant under the Lease,
mortgage liens of the Seller and the amounts otherwise
payable from the proceeds of the Purchase Price as
referenced Paragraph 8.6 of the Agreement) as the amount
of just compensation payable to the Seller for all of its
right, title and interest in the Property. Promptly
following the initiation of Condemnation Proceedings, the
Seller shall execute a written instruction to the Agency
confirming whether the Seller: (i) wishes to complete the
transfer of the Property to the Agency by way of the
Close of Escrow provided in Paragraph 8.1.A; or (ii)
whether the Seller wishes to complete the transfer of the
Property to the Agency by way of the entry of a judgment
in the Condemnation Proceedings as provided in Paragraph
8.1(B). In the event that the Seller may exercise its
election under subsentence (ii) in the proceeding
sentence, then in such case, the Seller shall also
execute a written instruction to the Escrow Holder which
authorizes a transfer of the balance of the Deposit from
the Escrow Holder to the Clerk of the Superior Court for
deposit in the Condemnation Proceeding under Code of
Civil Procedure Section 1255.010, et. seq., as the amount
of compensation payable by the Agency to the Seller for
all of its right, title and interest in the Property.
The Agency hereby agrees that it shall not object to any
application of the Seller to withdraw the amount
transferred by the Escrow Holder and deposited with the
Superior Court for the account of the Seller and the
close of the Escrow under Paragraph 8.1 (B) on the grounds
otherwise provided to the Agency in Code of Civil
Procedure Section 1255.230 (b) (1) .]
8. CLOSE OF ESCROW
SB2DD1:13627.1
9
8.1.
A. Provided that the conditions of Paragraph 7.1 have either
been approved by the Agency or the satisfaction of such
condition has been waived in writing by the Agency the
Close of Escrow shall occur as of , 2001, (the
"Closing Date") except as may be provided in Paragraph
8.1(B). For purposes of this Agreement, the term "Close
of Escrow" shall mean the date on which the Deed (as
described in Paragraph 8.2(A), below) is recorded in the
Official Records of San Bernardino County, State of
California. The parties may accelerate the date of the
Close of Escrow, if feasible, and the Seller and the
Agency acknowledge that each shall cooperate with the
other to accomplish the Close of the Escrow as soon as
may be practicable after , 2001.
[EDITOR'S NOTE: ALTERNATE TEXT WHERE TENANT OCCUPIES
PROPERTY UNDER A LEASE WITH A FIXED TERM]
B. In the event that the Agency has initiated Condemnation
Proceedings, and the Seller has been joined as a party to
such proceedings and the Seller has delivered written
instructions to the Agency, and if applicable, to the
Escrow Holder as provided in Paragraph 7.6 (B) ,
instructing that the Seller wishes to complete the
transfer of the Property by way of the Close of Escrow,
then in such event, the Close of Escrow shall occur on
the first of the following dates to occur:
(i) the date on which the Seller delivers a fully
executed disclaimer of title relating to the
Property in the Condemnation Proceedings and Deed
to the Escrow Holder, and the Escrow Holder has
received (or has retained in the Deposit) amounts
sufficient to clear all exceptions to title in the
Property, except the Lease as assigned to the
Agency, all of the ottler conditions for the Close
of Escrow under Paragraph 8.1(A) are satisfied, and
the Escrow Holder delivers and records the Deed
described below in Paragraph 8.2, together with the
policy of title insurance in favor of the Agency;
or
(ii) the Seller and the Agency have executed a
stipulation for the entry of a judgment of
condemnation by the Agency in the Condemnation
Proceedings of all of the right, title and interest
of the Seller in the Property and as arise under
this Agreement and such judgment has been entered
in the Condemnation Proceedings; or
SB2DDJ.: 13627.1 10
(iii) in the event that the Close of Escrow has not
occurred on or before the initiation of the
Condemnation Proceedings, and thereafter the Agency
may have joined the Seller as a party in the
Condemnation Proceedings as provided in this
Agreement, then in such an event, the Agency hereby
agrees to reimburse the Seller upon presentation of
an invoice therefore, for its reasonable attorneys
fees and out-of-pocket expenses, if any, in an
amount not to exceed Two Thousand Fi ve Hundred
Dollars ($2,500.00), which the parties believe to
be a reasonable estimate of the attorneys fees as
may be incurred by the Seller, if necessary, in
order to confirm that the Close of Escrow under
either subparagraph (ii) or (iii), above, of this
Paragraph 8.1(B) is consistent with the terms and
provisions of this Agreement. The reimbursement by
the Agency of attorney fees to the Seller under
this Paragraph 8.1(B) (iii) shall not be deducted or
offset from the Purchase Price payable by the
Agency to the Seller upon the Close of Escrow. No
such reimbursement shall be payable by the Agency
to the Seller provided that the Close of Escrow has
occurred prior to the date of the initiation of the
Condemnation Proceedings.
8.2 Prior to the Close of Escrow, Seller shall deliver or
cause to be delivered to the Agency through Escrow:
A.
f
A grant deed (the "Deed") in the form attached
hereto as Exhibit "D", duly executed and
acknowledged by Seller conveying to the Agency fee
title to the Property, subject only to the
following permitted exceptions ("Permitted
Exceptions"): (i) the matters approved (or deemed
to have been approved) by the Agency pursuant to
Paragraph 7 hereof, (ii) all matters that would be
disclosed by a physical inspection of the Property
or that are actually known by the Agency, (iii) all
matters that would be disclosed pursuant to an
accurate survey of the Property to be conducted at
the sole cost and election of the Agency, (iv) real
property taxes and assessments not yet due, (v) the
Lease, and (vi) any additional exceptions or
matters created by the Agency, its agents,
employees or authorized representatives or the
Agency's consultants (as defined in Paragraph 19.3
below.
B. At the Close of Escrow standard coverage owner's
policy of title insurance showing title to the
SB2001:13627.1
11
Property vested in the Agency subject only to the
Permitted Exceptions, and naming the Agency as the
insured owner in the amount of the Purchase Price
shall be delivered to the Agency concurrently upon
the recordation of the Deed. The Agency may, at
its option, direct the title Company to deliver an
ALTA survey extended coverage owner's policy of
title insurance (with additional endorsements and
binders as appropriate) in favor of the Agency.
The Agency shall pay for all costs or premiums
charged by the Title Company for any such policy of
title insurance.
In the event that, upon the Closing Date, the Title
Company is unable to issue a title policy as
provided in the preceding paragraph by reason of
the existence of any exception, other than the
Permitted Exceptions, which renders the Property
unmarketable, the Closing Date shall be extended
for a period of five (5) days and if not cured, the
Agency shall have the right to either: (i) to
accept the Property and title thereto subject to
such exception, thereby waiving any and all
objections and/or claims against Seller by reason
thereof; or (ii) give its written notice to
terminate this Agreement. If the Agency elects to
terminate this Agreement pursuant to this Paragraph
8.2{B), such action shall be the sole remedy of the
Agency against Seller and neither the Agency nor
Seller shall have any further liability hereunder,
except that the Agency shall be entitled to the
prompt return of all funds delivered by the Agency
to the Escrow Holder which may then remain in the
Deposit, less only Escrow cancellation fees and
costs and Title Company charges, all of which the
Agency hereby agrees to pay.
8.3 The Agency shall deliver or cause to be delivered for
payment to the Seller at the time provided in Paragraph
"4.7, cash or immediately available funds of the Agency
for the balance of the Purchase Price payable by the
Agency at the time provided in Paragraph 8.1 (e.g., the
Close of Escrow), together with cash or immediately
available funds in an amount sufficient to cover the
other charges and costs assumed by the Agency pursuant to
Paragraph 10 below.
[EDITOR'S NOTE: ALTERNATE TEXT WHERE OFFER INCLUDES
RELOCATION EXPENSES]
8.4 Not later than 12:00 p.m., on the business day prior to
the Closing Date, the Seller shall deliver to the Agency
SB2001:13627.1 12
through Escrow a written release, in a form approved by
the Executive Director, of all claims by the Seller for
relocation assistance or other assistance as may be
payable by the Agency to the Seller under Government Code
Section 7260, et seq., or other applicable law associated
with the acquisition of the Property from the Seller by
the Agency.
8.5 Prior to the Closing Date, the parties shall execute and
deliver through Escrow any other documents or instruments
which are reasonably necessary in order to consummate the
purchase and sale of the Property pursuant to the terms
and conditions of this Agreement.
8.6. Upon the satisfaction of each and every condition
hereunder, the Escrow Holder shall close the Escrow,
deliver and record the Deed, together with the assignment
of the Lease by the Seller to the Agency and the Escrow
Holder shall pay the Purchase Price to the Seller as
follows:
$ in cash, or in immediately available
funds by wire fund transfer, (less the amount of
the Deposit
[EDITOR'S NOTE: ALTERNATE TEXT WHERE PROPERTY UNDER
LEASE:
and security deposit under the Lease, if any,]
applied as a credit to the Purchase Price and the
other adjustments applied by the Escrow Holder)
payable according to the written instructions and
to the order or the account of Seller in the
presently estimated amounts as follows:
(a) to discharge existing indebtedness of the
Seller secured
by the Property $
(b) to [others]: $
TOTAL $
As of not later than the business day preceding the
Closing Date, Seller may provide additional payment
instructions to the Escrow Holder, subject to the
prior written approval of the Agency shall not be
unreasonably withheld.
8.7.A. The term "Environmental Claim" refers to and includes any
claim which may be asserted against the Agency, its
SB2001: 13627.1 13
officers, employees and the successors and assigns of the
Agency for liability, damages, costs and expenses,
reasonable attorney fees, so-called response costs and
the like associated with any remediation and Glean-up
required under state or federal law as a result of
undisclosed or undiscovered toxic, hazardous or
contaminating condition of the Property caused by the
Seller or resulting from the Seller's use of the Property
or where such adverse contaminating condition occurred
during the time the Seller owned the Property prior to
the Close of Escrow.
B. If after the date on which the Agency becomes obligated
to acquire the Property pursuant to the terms of this
Agreement, but prior to the Closing Date, the Agency
discovers the presence on the Property of a matter which
constitutes an "Environmental Claim", as defined in
Paragraph 8. 7 (A), then in such event, the approval by the
Agency of the soils and environmental condition of the
Property under Paragraph 7.1(C) shall be deemed to be
rescinded, and in the event that the Seller does not
agree to correct or remedy such adverse environmental
condition within ten (10) days following written notice
from the Agency, the Agency may at its sole election
terminate this Agreement, record a rescission of the
Notice and thereupon the Agency may recover the Deposit
from the Escrow Holder, less only escrow cancellation
fees and costs and title insurance charges, all of which
the Agency agrees to pay.
8.8 Concurrently upon the Close of Escrow, the Agency shall
deliver an item of correspondence addressed to the Seller
and executed by the Executive Director of the Inland
Valley Development Agency which confirms the fact that
the Property has been acquired by the Agency for
community redevelopment purposes under "threat of
condemnation".
9. CONDITION OF PROPERTY AND THE INTENDED USE OF THE AGENCY
9.1 The Agency acknowledges that it has been afforded access
to the Property prior to the Closing Date and has been
provided access to information relating to the Property.
The Seller hereby grants to the Agency, and the agents of
the Agency, the right prior to the Closing Date to make
on-site inspections (subject to Paragraph 19 hereof) and
the right to examine documents relating to the Property
to the satisfaction of the Agency. The Agency shall
perform and rely upori its own independent investigation
of the physical condition of the Property. The Seller
acknowledges that the Agency may undertake certain
SB2001:13627.1 14
environmental investigations of the Property prior to the
Closing Date which require the entry of the Agency upon
the Property.
9.2 The Agency acknowledges and agrees that Seller has not
and does not hereby make any representation or warranty
to the Agency concerning the suitability of the Property
for any use intended by the Agency or the physical or
environmental condition of the Property. The Agency
shall perform and rely solely upon its own independent
investigation concerning the Property and the Property's
compliance with any applicable law, including without
limitation environmental law. The Agency acknowledges
that it is acquiring the Property subject to all existing
laws, ordinances, rules and regulations, and that neither
Seller nor any of Seller's agents or employees have made
any warranties, representations or statements regarding
any laws, ordinances, rules or regulations of any
governmental or quasi -governmental body, entity, district
or agency having authority with respect to the use,
condition or occupancy of the Property.
10. ESCROW PRORATIONS OF TAXES [AND RENT AND CHARGES PAYABLE TO OR
FOR THE ACCOUNT OF THE SELLER UNDER THE LEASE] DURING ESCROW
AND ESCROW EXPENSES PAYABLE BY THE AGENCY
10.1 Real property taxes and assessments for the current tax
year shall be prorated between the parties as of the
Close of Escrow. Real property taxes and assessments for
the January 1, 2001, valuation date which may become a
lien on the Property at any time following the Close of
Escrow, if any, shall be assumed by the Agency.
10.2 All recording fees, documentary transfer taxes, Escrow
fees, premiums for the issuance of policies of title
insurance, and any other costs connected with the closing
of the transaction contemplated by this Agreement shall
be charged to the Agency.
10.3 This Agreement constitutes joint escrow instructions of
the parties.
[EDITOR'S NOTE: ALTERNATE TEXT WHERE TENANTS IN
POSSESSION]
10.4 From the date on which the Escrow is deemed to be opened
through the Close of Escrow, the Seller shall be
responsible for the collection of all rent and other
charges payable by the Tenant to the Seller under the
Lease. The Seller shall not waive, adjust, credit or
otherwise modify any provision of the Lease or any amount
SB2001: 13627.1 15
of rent or other charge due and payable by the Tenant to
the Seller under the Lease without the prior written
approval and authorization of the Agency. In the event
that the Tenant may default or breach a term or covenant
of the Lease, the Seller shall promptly notify the Agency
of the occurrence of such a default or breach. Provided
that the Seller has first given appropriate notice to the
Tenant of a default or breach under the Lease (and a copy
of such notice to the Agency), the Agency agrees to
indemnify the Seller for any amount of rent or other
charge wrongfully withheld from the Seller by the Tenant
between the date of such notice of breach and the Close
of Escrow. The Agency also agrees to pay the reasonable
attorney's fees incurred by the Seller associated with
the initiation of an unlawful detainer proceeding against
the Tenant under the Lease. The Agency shall pay the
Seller the amount of any deficiency in the rent or other
charge under the Lease which arises on or after the date
of the notice to the Tenant within ten (10) days
following receipt of a written invoice from the Seller
which details such amounts. All rent and other amounts
payable to the Seller under the Lease and other income,
if any, from the Property and all expenses, charges and
costs imposed on the Seller under the Lease or upon the
Property, if any, shall be prorated between the Agency
and Seller as of the Close of Escrow. All security
deposits and advance rents received by Seller under the
Lease as of the Close of Escrow shall be credited against
the Purchase Price and shall be deemed to have been
transferred by the Seller to the Agency, as of the Close
of Escrow. The Agency agrees to indemnify and hold the
Seller harmless from and against any claim made against
the Seller by a tenant in lawful possession under the
Lease for such security deposit, or advanced rent or
other prepaid charge or expense payable by the tenant to
the landlord (or for the account of the landlord) under
the Lease. The foregoing obligation of the Agency shall
survive the recordation of the Deed.
11. POSSESSION OF THE PROPERTY
A. Possession of the Property shall be delivered by the
Seller to the Agency upon the Close of Escrow,
[EDITOR'S NOTE: ALTERNATE TEXT WHERE TENANT OCCUPIES
PROPERTY
subject only to the possessory interest of the Tenant
under the Lease as assigned by the Seller to the Agency.
Thereafter, the rents, issues and profits of the
Property, if any, shall accrue to the Agency as of the
SB2001:13627.1
16
Close of Escrow, except for any amounts subject to the
provisions of Paragraph 10.4.]
[EDITOR'S NOTE:
POSSESSION]
ALTERNATE TEXT WHERE TENANT IN
B. In the event that the provisions of Paragraph 8.1. B.
apply to the Close of Escrow of all of the Seller's
right, title and interest in the Property shall be
delivered to the Agency on the earlier of the dates
described in Paragraph 8.1(B) (i) or (ii).
12. INTEGRATION
The contract resulting from Seller's acceptance hereof
contains the entire agreement of the parties and cannot be
amended or modified except by a written agreement signed by
both parties.
13. NO BROKERAGE COMMISSION
The parties each acknowledge and represent that no real estate
broker is entitled to a commission, finder's fee or other like
compensation arising in any manner from the transaction
contemplated by this Agreement. In any claim for a
commission, finder's fee or other compensation may hereafter
be asserted in connection with the transaction contemplated by
this Agreement, the Agency hereby agrees to indemnify, defend
and hold Seller harmless from and against any such claims if
such claim is based upon any statement, representation or
agreement by the Agency, and Seller hereby agrees to
indemnify, defend and hold the Agency harmless from and
against any such claim if such claim is based upon any
statement, representation or agreement by Seller. The
foregoing obligation of the parties shall survive the
recordation of the Deed or the termination of this Agreement.
14. INTERPRETATION
This Agreement shall be construed, interpreted and applied in
accordance with the laws of the State of California.
15. REPRESENTATIONS AND WARRANTIES
15.1 Seller I s Representations and Warranties. Seller
represents and warrants to the Agency as follows:
A.
Seller has taken all action necessary to authorize
its execution and delivery of this Agreement and
the performance.of its obligations hereunder.
5B2001:13627.1
17
B. This Agreement and all documents contemplated
hereby have been or will be duly authorized and
executed (and acknowledged where necessary) by the
parties named as signatories in those documents,
and all other necessary actions have been taken so
that this Agreement and all documents contemplated
herein are valid and binding upon Seller.
C. The execution and performance of this Agreement and
the documents contemplated hereby do not violate
and are not restricted by any other agreement,
contractual obligation, court order or law to which
Seller is a party or by which Seller is bound.
D. Notwithstanding the limitation of the warranty of
the Seller in Paragraph 9.2, the Seller has no
reason or information to believe or knowledge that
the presence of any materially adverse
environmental condition of the Property has been
intentionally concealed from the Agency.
[EDITOR'S NOTE: ALTERNATE TEXT WHERE TENANT IN
POSSESSION]
E. The Seller has provided the Agency with a complete
copy of the Lease and all amendments thereto. The
Seller warrants that there is no oral agreement or
arrangement wi th the Tenant which has not
previously been disclosed to the Agency in writing
by the Seller. The Seller shall not further amend,
modify or waive any provision of the Lease before
the Close of Escrow, except upon the prior written
consent and approval of the Agency.
l5.2 Representations and Warranties of the Agency. The Agency
represents and warrants as follows:
A. The Agency is a community redevelopment agency, a
body corporate and political, organized, validly
existing and in good standing under the laws of the
State of California, and the Agency has full power
and authority to enter into this Agreement and to
fulfill its obligations hereunder.
B. The Agency has taken all action necessary to
authorize the execution and delivery of this
Agreement to the Seller.
16. IRESERVED]
17. TIMELY PERFORMANCE
SB20D1 :13627.1
18
Time is of the essence of this Agreement.
18. SEVERABILITY
In the event that any provision of this Agreement is found to
be invalid or unenforceable, such determination shall not
affect the validity and enforceability of any other provision
of this Agreement.
19. RIGHT-OF-ENTRY
19.1 Seller hereby grants to the Agency and its agents the
right to enter into the Property at all reasonable times
during the Review Periods to make tests, surveys, studies
and inspections in connection with the purchase of the
Property by the Agency, provided that prior to any
exercise of said right and continuing up to the Close of
Escrow, the Agency shall (i) arrange for and keep and
maintain in full force and effect a policy of
comprehensive general liability insurance, with broad
form liability endorsement, having a combined single
limit of not less than One Million Dollars
($1,000,000.00) per occurrence, and (ii) furnish to
Seller a certificate of such insurance which names Seller
as an additional insured and provides that such policy
shall not be canceled or amended without thirty (30)
days' prior written notice to Seller. Seller or Seller's
agents or employees shall be entitled to accompany the
Agency and the agents of the Agency during any entry made
by the Agency or the agents of the Agency onto the
Property pursuant to this Paragraph 19. Any entry by the
Agency or the agents of the Agency as may be authorized
by Seller pursuant to this Paragraph 19.1 shall be made
in a manner which results in the least interference with
the use of the Property by Seller or any third party.
The Agency shall indemnify and defend Seller against, and
hold Seller and the Property harmless from and against,
any and all costs, expenses (including, without
limitation, attorneys' fees), damages, claims,
liabilities, liens, encumbrances and charges arising out
of or in any way related to any entry by the Agency or
the agents of the Agency upon the Property, unless such
matters arise from the sole and active negligence of
Seller. The foregoing obligation of the Agency shall
survive the Close of Escrow or the termination of this
Agreement. The Agency shall repair any damage to the
Property as a result of or caused by the entry by the
Agency or the agents of the Agency onto the Property and
restore the Property to the condition existing on the
date immediately pribr to the Agency's entry onto the
Property.
SB2001:13627.1 19
All costs incurred in connection with tests, surveys,
studies, inspections, reviews, approvals, determinations
and applications made by the Agency under this Agreement
or in connection with the proposed use of the Property by
the Agency shall be the sole responsibility or and be
paid by the Agency, or its nominee. In the event of the
recordation of any claim of lien against the Property for
materials supplied or labor or professional services
performed by the Agency on the Property as authorized by
the Seller, the Agency shall promptly satisfy and
discharge such lien at the sole cost and expense of the
Agency upon demand therefor by Seller.
19.2 In addition to the obligations of the Agency under
Paragraph 19.3 below, the Agency shall provide to Seller
a copy of each report, study, regulation or ordinance
obtained by the Agency in connection with its
investigation of the Property, at no cost to Seller. In
addition, if the transaction contemplated by this
Agreement is not consummated for any reason, the Agency
shall deliver to Seller free of charge, copies of all of
the engineering, architectural, financial and other
studies, drawings, reports, surveys and similar materials
prepared by or on behalf of the Agency with respect to
the Property and the proposed project of the Agency to
the extent the Agency is not otherwise prohibited by law
from doing so.
19.3 In order to determine the existence or presence of any
hazardous materials in or about the Property, the Agency
shall have the right, during the Review Period and at the
sole cost and expense of the Agency, to conduct such
studies, evaluations, audits or surveys as the Agency
deems appropriate, subject to the limitations of
Paragraph 19.1
19.4 Termination of this Agreement by the Agency shall not
relieve the Agency from any liability for any damages
incurred by Seller by reason of a breach by the Agency of
any of the terms of this Paragraph 19.
20. INTERNAL REVENUE CODE SECTION 1445
Seller is not a "foreign person" as that term is used in
Internal Revenue Code Section 1445 ("IRC Section 1445") and
Seller agrees to furnish the Agency, prior to Close of Escrow,
a Non-Foreign Certification or any other documentation
required under IRC Section 1445 to evidence that Seller is not
a "foreign person".
21. DEFAULT, BREACH AND TERMINATION
SB200~:13627.1
20
Failure or delay by either party to perform any material term
or provision of this Agreement shall constitute a default
under this Agreement. The party who claims that a default has
occurred shall transmit written notice of default to the party
in default, specifying the alleged default, provided however,
that if the party who is otherwise claimed to be in default by
the other party commences to cure, correct or remedy the
alleged default within ten (10) calendar days after the
receipt of written notice and thereafter such party diligently
completes to cure, correct or remedy the alleged default, then
such party shall not be deemed to be in default hereunder.
Delay in transmitting or giving such notice shall not
constitute a waiver of any default nor shall a delay in the
transmittal of notice change the time of default; provided,
however, the injured party shall have no right to exercise any
remedy for a default hereunder (including the liquidated
damages remedy of the Seller under Paragraph 4.6) without
first transmitting to the other party the written default
notice as specified herein. Any failure to delay by a party
in asserting any of its rights and remedies as to any default
shall not operate as a waiver of any default or of any rights
or remedies associated with a default. Except with respect to
rights and remedies expressly declared to be exclusive in this
Agreement, the rights and remedies of the parties are
cumulative and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or
remedies for the same default or any other default by the
other party. In the event that a default of either party may
remain uncured for more than ten (10) calendar days following
the transmittal of written notice, as provided above, a
"breach" shall be deemed to have occurred. In the event of a
breach, the party who is not in breach shall be entitled to
exercise or seek an appropriate remedy. In the event that a
breach has occurred, the party who is not then in default may
terminate this Agreement by transmitting to the other party a
notice of termination and thereafter the Agreement shall
terminate ten (10) calendar days following the date of service
of the notice of termination. In the event that the Seller
has withdrawn any portion of the Deposit as authorized under
Paragraph 4.8 and thereafter either party terminates the
Agreement, the Agency shall cause to be recorded an
appropriate rescission of the Notice as provided in Paragraph
4.8.
22. PRELIMINARY CHANGE OF OWNERSHIP
The Agency shall execute and deliver to the Escrow Holder
prior to the Close of Escrow an appropriate preliminary change
of ownership form for submission by the Escrow Holder to the
Los Angeles County Tax Assessor.
SB2DD1:13627.1
21
23. SUBDIVISION MAP ACT
This Agreement is conditioned upon the Property, and each
parcel thereof, being legal parcels under California law.
Seller shall provide evidence to the Agency at the Close of
Escrow that the Property constitutes a legal parcel, which
evidence may be in the form of a subdivision map act
endorsement to the Agency's title insurance policy. In the
event that Seller is unable to obtain evidence confirming that
the Property is a legal parcel(s), then Seller or the Agency
may elect to terminate this Agreement by giving the other
party and Escrow Holder written notice of such election at two
(2) days prior to the Closing Date.
24. [RESERVED]
25. NOTICES
Any notice to the other party which may be necessary or
convenient under this Agreement shall be transmitted to a
party at the applicable addresses indicated in this Paragraph
25. Each notice shall bear a date and shall be in writing;
and such a notice shall be deemed to have been received by the
other party as of the date on which: (i) the notice is
personally served on the other party; or (ii) the date on
which the notice is sent by FAX, and confirmed; (iii) by
deposit within forty-eight (48) hours thereafter into United
States First Class Mail or next day business mail of a hard
copy of such notice; or (iv) five (5) calendar days after the
notice is deposited into United States Mail as certified mail,
return-receipt requested and postage prepaid.
For the purpose of the Agreement, the following persons are
hereby designated to receive notice on behalf of the party
indicated:
IF TO THE SELLER:
FAX:
IF TO THE AGENCY:
John Hoeger
Redevelopment Project Manager
201 North "E" Street
Suite 301
San Bernardino, California 92401
(909) 663-1044
FAX: (909) 888-9413
SB2001:13627.1
22
Any of the foregoing persons and/or addresses to which notice
shall be transmitted may be changed by either party upon
transmittal of written notice of change (or addition) of
address to the other party.
26. THE AGENCY IS THE OFFEROR AND INTEGRATION OF PRIOR CONDITIONAL
OFFERS OF THE AGENCY; SELLER'S APPROVAL
The Agency and the Seller each acknowledge and confirm that
this document constitutes an integration of the Agency
Conditional Offer dated , 2001. The Seller further
acknowledges receipt of a written appraisal report dated
, 2001, which contains an appropriate description
of the Property and other information relevant to the
preparation of an opinion of value of the Property based upon
the highest and best of the Property.
27. EFFECTIVENESS OF AGREEMENT IS SUBJECT TO REVOCATION BY THE
AGENCY
This offer of the Agency to acquire the Property pursuant to
this Agreement is subject to timely acceptance by the Seller. The
Seller shall submit a fully executed signature page (e.g.: page )
and a duly endorsed acknowledgment of the liquidated damages remedy
of the Seller against the Agency (e.g.: page ) to the Agency
within ( ) days following the date of the transmittal of
this Offer by the Agency to the Seller. In the event that the
Agency may not receive such pages of the Agreement in fully
executed form from the Seller, the offer of the Agency to acquire
the Property pursuant to the terms and provisions of this Agreement
shall be deemed to be revoked by the Agency, without any further
liability or obligation on the part of either party.
28. MISCELLANEOUS PROVISIONS
28.2 Exhibits. All exhibits and attachments attached hereto
and referred to in this Agreement are hereby incorporated
by this reference as though they were fully set forth
herein. In the event of any inconsistency between the
terms of an exhibit or attachment and the terms of this
Agreement, the terms of this Agreement shall prevail.
28.3 Further Acts. Each party agrees to perform such further
acts and execute, acknowledge and deliver such documents
as may be reasonably necessary to effect the purpose of
this Agreement.
28.4 Payment of Purchase Price Is Full Satisfaction of All
Claims of Seller Against the Agency. Upon receipt of the
Purchase Price for t.he Property, the Seller expressly
acknowledges and agrees that the Purchase Price fully
SB2001:13627.1 23
satisfies, discharges, and releases all claims, rights,
title and interests of the Seller in any other amount of
compensation which may be payable by the Agency or the
City of San Bernardino or the Inland Valley Development
Agency to the Seller under the provisions of Government
Code Section 7260, et seq. (relocation benefits, loss of
goodwill and the like). The payment of the Purchase
Price by the Agency to the Seller (either upon the Close
of Escrow under Paragraph 8.1 (A) or Paragraph 8.1 (B)
fully satisfies all claims of the Seller relating to the
acquisition of the Property by the Agency.
28.5 Agency May Seek to Acquire the Property By Eminent
Domain.
The Seller hereby acknowledges and agrees that the Agency
has accorded the Seller with a full and complete
opportunity to discuss and negotiate the terms of the
good faith offer of the Agency for the acquisition of the
Property, as that term is described in Government Code
Section 7267.2 and in Code of Civil Procedure Section
1245.230. The Seller hereby waives any other requirement
that the Agency provide further notice to the Seller
under Code of Civil Procedure Section 1245.235 as a
condition precedent to the adoption of a Resolution of
Necessity to acquire any interest in the Property.
Notwithstanding any other provision of this Agreement to
the contrary and cumulative with any other remedy which
the Agency may have under this Agreement, including
without limitation, an equitable remedy of specific
performance, the Seller hereby acknowledges that if the
transaction contemplated by this Agreement is not
accomplished in accordance with this Agreement, the
Agency shall have the power in its sole and absolute
discretion to concurrently initiate or cause the Inland
Valley Development Agency to initiate and pursue to
completion, if necessary, the Condemnation Proceedings.
In the event that the Escrow fails to close on or before
, 2001, or on any authorized extension of
time at any time after the Agency has delivered to the
Escrow Holder for the account of the Seller the full
amount of the Purchase Price, as provided herein, the
Seller agrees that no term or provision of this Agreement
(in addition to any other remedy as may then be available
to the Agency) shall be deemed to prevent or otherwise
delay the Agency from proceeding with the initiation and
completion of the Condemnation Proceedings, or any other
legal proceeding, to complete the acquisition by the
Agency of all of the right, title and interest of the
Seller in the Property.
5B2001:13627.1
24
THI S AGREEMENT IS
AGENCY AS OF
DEVELOPMENT COMMISSION
2001.
Dated:
APPROVED BY THE GOVERNING BOARD OF THE
, 2001, AS AUTHORIZED BY COMMUNITY
RESOLUTION NO. DATED
AGENCY:
Redevelopment Agency of the City of San
Bernardino
By:
Chairwoman
Approved As To Form: By:
Agency Counsel
SELLER:
Accepted this
Dated:
Dated:
SB2DD1:13627.1
Secretary
By:
Executive Director
day of
, 2001.
SELLER
By:
By:
2S
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
SB2001:13627.1
26
Attachment No. 8
[RESERVED - NO TEXT]
5/15/01 ct
5B2001:7825.8
II-39
Attaclunent No. 9
For.m of Agency Grant Deed
5/15/01 ct
SB2DD1:7825.8
II-40
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
THIS SPACE ABOVE FOR RECORDER'S USE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO
GRANT DEED
(HUB PROJECT: PHASE I)
For valuable consideration, the receipt of which is hereby acknowledged, the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate
and politic of the State of California (the "Grantor"), hereby grants to
(the "Grantee") the real property legally described in Exhibit A and by this reference incorporated
herein (the "Property"), subject to the following community redevelopment terms, conditions and
covenants:
1. The Property is conveyed subj ect to that certain Disposition and Development
Agreement dated as of , 2001, by and between the Grantor and the Grantee (the
"Agreement"). The provisions of the Agreement are hereby incorporated into this Grant Deed by
this reference and are deemed to be a part of this Grant Deed, as iffully set forth herein.
2. The Grantee acknowledges and agrees that the Property is transferred and
granted by the Grantor to the Grantee in an "AS IS," "WHERE IS" and "SUBJECT TO ALL
F AUL TS CONDITION," in its condition as of the date of recordation of this Grant Deed, with no
warranties, expressed or implied, as to the environmental condition thereof, the presence or absence
of any patent or latent environmental condition thereon or therein, and any other matters affecting
the Property.
3. The Grantee covenants and agrees for itself, its successors and assigns that
the following uses on the Property are prohibited:
bars or businesses with "on-sale" alcoholic beverage sale licenses (other than in
restaurants", coin laundries or laundromats, used clothing stores, used appliance
stores, used furniture stores or rummage stores, massage parlors, or so-called adult
book or adult entertainment establishments.
SB200\ :20832.\
1
4. Grantee covenants and agrees for itself, its successors and assigns that any of
the following special commercial retail uses shall be prohibited on the Property, if such special
commercial retail use is a "relocation" (a "Relocation Use") as that term is defined under Section
33426.7 of the California Health and Safety Code (the "Code Section"), unless such Relocation Use
is not prohibited under subparagraph (A) or (B) below:
(1) automobile dealership, or
(2) big box retailer, in a store greater than 75,000 square feet of gross buildable
area that will generate sales or use tax pursuant to Part 1.5 (commencing with
Section 7200) of Division 2 of the Revenue and Taxation Code), or
(3) a business entity that sells or leases land to an automobile dealership or big
box retailer.
Notwithstanding the above, a Relocation Use shall not be prohibited on the Property
if:
(A) the Grantor, in the exercise of its reasonable discretion, finds that the
Property is "outside the same market area" (as defined in the Code Section)
of the site from which such Relocation Use is being relocated (the "Former
Site"); or
(B) a person or entity (other than the Grantor) is providing funds for the statutory
payment referenced in the Code Section sufficient for the Grantor and the
City of San Bernardino, California (the "City") to offer to the city in which
the Former Site is located a contract apportioning the sales tax generated
from the Relocation Use on the Property in accordance with the Code Section
(a "Sales Tax Contract").
Ifthe Code Section is repealed or amended by the California State Legislature either
(i) to end the use restriction now provided in the Code Section, or (ii) to eliminate prospectively the
requirement of a Sales Tax Contract the covenant ofthis Section 4 shall terminate automatically and
be of no further force and effect. At the request of an owner ofthe Property or of a person or entity
desiring to use the Property for a Relocation Use, the Grantor shall take all necessary action, as
promptly as reasonably possible, for the Agency to find, in the exercise of its reasonable discretion,
that the Property is or is not "outside the same market area" ofthe Former Site, as referenced above.
The provisions of this Section 4 of this Grant Deed may be terminated or amended by a written
document signed by the Grantor (or its successor) and the then-current owners of the Property and
recorded in the official records of the Recorder ofthe County of San Bernardino, California, without
the necessity or requirement of the joinder or consent of any other person, entity or governmental
authority.
5. The Grantee covenants by and for itself, its heirs, executors, administrators
and assigns, and all persons claiming under or through them, that there will be no discrimination
SB200 \:20832.1
2
against or segregation of any person or group of persons on account of race, color, creed, religion,
sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment ofthe Property, nor will the Grantee or any person claiming under
or through it, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sub lessees or vendees in or on the Property.
All deeds, leases or contracts made relative to the Property must contain the following
nondiscrimination clauses:
(a) In deeds: "The grantee herein covenants by and for itself, its heirs,
executors, administrators 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 ofrace, color, creed, religion, sex, age, marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee, or any person claiming under or through the grantee,
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, locations, number, use or occupancy of tenants, lessees,
subtenants, sub lessees or vendees in or on the land herein conveyed. The foregoing
covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, and
this lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or
group of persons on account ofrace, color, creed, religion, sex, age, marital status, national
origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming under
or through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy, of tenants,
lessees, subtenants, sublessees or vendees in the land herein leased."
(c) In contracts: "There shall be no discrimination against or segregation
of any person or group of persons on account of race, color, creed, religion, sex, age, marital
status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the land, nor shall the transferee itself, or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the land.
6. The covenants, terms and conditions of this Grant Deed shall have the
duration as set forth below:
Section 1:
until such time as a Certificate of Completion is recorded by the
SB200!:20832.\
3
Grantor or twenty one (21) years from the date of recordation of this
Grant Deed, whichever date shall first occur;
Section 2:
in perpetuity;
Section 3:
until the termination date of the Redevelopment Plan for the Inland
Valley Redevelopment Project;
Section 4:
until the termination date of the Redevelopment Plan for the Inland
Valley Redevelopment Project;
Section 5:
in perpetuity.
The covenants, terms and conditions contained in this Grant Deed are binding for the
benefit ofthe Grantor and its successors and assigns, and such covenants run in favor of the Grantor
for the entire period that such covenants are in full force and effect, regardless of whether the
Grantor is or remains an owner of any land or interest in land to which such covenants relate. The
Grantor, in the event of any breach of any such covenants, has the right to exercise all of 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, as provided in the Agreement or by law. The covenants contained
in this Grant Deed are for the benefit of and are enforceable only by the Grantor and its successors.
SB2001 :20832.1
4
IN WITNESS WHEREOF, the Grantor and the Grantee have caused this instrument
to be executed on their behalf by their respective duly authorized officers on this day of
,2001.
"GRANTOR"
Redevelopment Agency of the City of
San Bernardino,
By
Title:
By
Title:
APPROVED AS TO FORM:
The provisions of this Grant Deed are hereby approved and accepted.
"GRANTEE"
By
Title:
By
Title:
[ALL SIGNATURES TO BE ACKNOWLEDGED]
SB2001 :20832.1
5
ATTACHMENT No. 10
List of Background Land Use Planning
and Development Documents for the City
. City of San Bernardino General Plan Amendment (GP A-O 1-0 1) to amend the
General Plan allowing development of drive-thru restaurants within the CR-3 land
use district, subject to Conditional Use Permit.
. City of San Bernardino Development Code Amendment (DCA 01-03) to amend
the General Plan allowing development of drive-thru restaurants within the CR-3
land use district, subject to Conditional Use Permit.
. Santa Ana Water Quality Control Board, National Pollutant Discharge
Elimination System (NPDES) (Section 402) permit.
. California Department of Transportation (Caltrans) Encroachment Permit
. City of San Bernardino Encroachment Permit
. City of San Bernardino Tentative Parcel Map
. City of San Bernardino Hazardous Materials PermitlBusiness Plan
. City of San Bernardino Development Permit II (inclusive of construction permits)
. City of San Bernardino Demolition Permits
. City of San Bernardino Tree Removal Permits
II-41
Attachment No. 11
[RESERVED -- NO TEXT]
5/15/01 ct
SB2001:7B25.B
II -42
Altachment No. 12
OFF-5ITE IMPROVEMENTS SCOPE OF WORK
Preliminary EetlfNIt. S...d on 84' Rlght~f.w.y
Interim Street width to be 84' Right-of-Way
HARRIMAN PLACE EXTENSION
UTit
St_~
Heovy cIuIy aspho~ inclJdIng be.. (5'/11;
0.IlJ ond ~
on-oy Appn>och
-
L~on
TrolIicliP
M_O.IlJ
HoncIap R...,s
-~
__., deor1ng, ~ng, soiI_
GnIc1ng
S.F.
L.F.
S.F.
S.F,
S.F,
EA
L.F.
EA
EA
ACRES
C.Y.
auanaty
(tnterim street)
70,000
1,140
3,690
5,860
4,750
2
690
6
4
3
3,620
Quantity
(Ultimate _I
8&,600
2,400
5,540
12,100
9,500
2
690
10
6
3
4,690
Conlltrvctlon Related It...
TeqKnI'f AC PavemonllDelcu
Tlllllk: C<lr*oI
S.F.
Day
12,950
20
Utllltl..
Olf-Site storm OI1lI..go
18' RCPICPPICMP
42" RCPICPPICMP
M_J..-.ction St1JcVes
Co1dl 8asIns
L.F.
L.F.
EA
EA
12,950
20
450
400
1
3
450
400
1
4
Olf-SiteW.lef~
12"O.l.PMaln
8- Are ServIce LIItenIIs
6" DIP Hy<tant La_
Z' Domestic SeMce L.8tereI
2" lITIgation 5eMce La_
Fire Hylnnls
L.F.
L.F.
L.F.
EA
EA
EA
1,450
190
350
4
2
6
1,450
190
70
8
4
10
Olf-SlteSOwer~
8" VCP Main
6" La_ & Wye wlPlJg
-
L.F.
L.F.
EA
1,380
430
3
1,380
430
3
Dry umes
Edson ServIce & OYerhe8d
GTE SeMce & Overtlood
EA
EA
2
2
2
2
TIPPECANOE AVENUE (S..... Wldonlng)
Uril
Quonaty
Street mpro.,.".nta
Heevy cIuIy osphall.lncI.dng be.. (6"/121
0.IlJ and ~
Si_
Hardcap R~
-~
GrecIng
S.F.
L.F.
S.F.
EA
EA
C.Y.
6,840
570
3,600
2
2
4,790
6,840
570
3,600
2
2
4,790
Conetruction Related It..
TmficCc:lf*ol
Day
20
Utllltl..
Dry Uti_
GTE SeMce
EA
Notes:
20
1lis otlactmant No. 12'" -. ~ beoed l4>OIlo preInirelry analysis ofl1olile, .... propoaed Plese 1
project and.... ~ _In 110 nllic '"""ct anaIyIIs 01110 BR, by 110 ()eyaIopa(s cMI0111iMW
In _Ion with 110 ~slalIand Cltyslall
2 InIerim Righi of Way of 62' begins _ 280' West of TIppecanoe Ave. WI1h fUI ~ on....
South side of Hamman Place tnt.
3 The 1leveIopar, .... ~ and.... CIty _ COIlIlft cLI1ng.......... 01 preparetion by 110 CIty of...._
_~planslor_PIIce~Prajacl.Io.......IletIUCh__~
plans are c:onsistlenl with 110 ()eyaIopa(s ~pIonlorl1o Plese 1 SIlo Projad.
4 Theftnal_in'\lrOVOmOnI plans lor 110 _ Pllce ~........<< Prajacl. as __ by 110 CIty,In
COIlIlftdonwlth....lleveIoparmay_ ad<I1i__oI-..ond.... ~ 0I1UCh-.
pnl'/tded, _, IletI10 deveIopar_ nolbe__ to paylor any 0_ costin...,... of....
Han1mon She! 01arg0.