HomeMy WebLinkAboutCDC/2001-42
",
1
2
3
4
5
6
7
RESOLUTION NO. CDC/2001-42
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING AND AUTHORIZING THE EXECUTIVE
DIRECTOR TO EXECUTE AMENDMENT NO. 2 TO
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND HI-WAY AUTO RECYCLERS, LLC
WHEREAS, the Community Development Commission of the City of San
8 Bernardino (the "Commission") is the governing body ofthe Redevelopment Agency of the City of
9 San Bernardino (the "Agency"), a public body corporate and politic, organized and existing pursuant
10 to the Community Redevelopment Law (California Health and Safety Code Section 33000, et seq.);
11 and
12
13
WHEREAS, the Agency and Hi-Way Auto Recyclers, LLC, a California limited
14 liability company (the "Developer") entered into that certain 2000 Disposition and Development
15 Agreement dated as of August 14, 2000 (the "2000 Disposition and Development Agreement") for
16 the purpose of implementing the Redevelopment Plan for the Northwest Redevelopment Project by
17 providing for the purchase and redevelopment of certain unimproved lands by the Developer (the
18 "Property"); and
19
20 WHEREAS, the Developer encountered unexpected delays in completing its due
21 diligence investigation regarding the Property and requested that certain provisions of the 2000
22 Disposition and Development Agreement be amended to extend the period of time in which the
23 Developer's due diligence investigation of the Property was to be completed; and
24
25
WHEREAS, the Agency approved an amendment ("Amendment No.1") to the 2000
26 Disposition and Development Agreement (the 2000 Disposition and Development Agreement as
27 amended by Amendment No. I being hereinafter referred to as the "DDA"), extending the period
28 of time in which the Developer's due diligence investigation of the Property was to be completed;
SB2001:29309.1
I
CDC/2001-42
1 and
2
3 WHEREAS, on July 26, 2001, the Developer delivered to the Agency its Due
4 Diligence Certificate (as that term is defined in the DDA) with respect to the Property; and
5
6 WHEREAS, the DDA provides that the Closing Date (as that term is defined in the
7 DDA) of the escrow established in connection with the sale of the Property by the Agency to the
8 Developer (the "Escrow") shall be sixty (60) days after delivery of the Due Diligence Certificate;
9 and
10
11 WHEREAS, the DDA provides that on or before 12:00 noon on the business day
12 preceding the Closing Date, the Developer must deliver to the Escrow Holder (as that term is defined
13 in the DDA), among other things, evidence of construction financing in favor of the Developer
14 already funded for the project (as that term is defined in the DDA); and
15
16 WHEREAS, the Developer has requested an extension ofthe period of time between
17 delivery of the Due Diligence Certificate and the Closing Date so that it can meet its obligation to
18 deliver evidence of construction financing already funded for the Project; and
19
20
21
22
23 WHEREAS, Amendment No. 2 to the DDA ("Amendment No.2") has been
24 presented to this Commission for approval.
25
26 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
27 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
28 BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
SB2001:29309.1 2
WHEREAS, the Agency is willing to extend the period of time between delivery of
the Due Diligence Certificate and the Closing Date; and
CDC/2001-42
1
2
3
4
5
6
7
8
Section 1.
as Exhibit "A".
The Commission hereby approves Amendment No.2 attached hereto
Section 2. The Executive Director ofthe Agency is hereby authorized to execute
Amendment No.2 on behalf ofthe Agency in substantially the form attached hereto, together with
such changes therein as may be approved by the Executive Director and Agency Special Counsel.
The Executive Director or such other designated representative ofthe Agency is further authorized
to do any and all things and take any and all actions as may be deemed necessary or advisable to
9 effectuate the purposes of Amendment No.2.
10 III
11 III
12 III
13 III
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SB2001:29309.1 3
" I
CDCj2001-42
1 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE
2 DIRECTOR TO EXECUTE AMENDMENT NO. 2 TO DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF
3 THE CITY OF SAN BERNARDINO AND HI-WAY AUTO RECYCLERS, LLC
4
5
6
7
Section 3.
This Resolution shall become effective immediately upon its adoption.
8 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,
10 held on the 15th
11
12 Commission
ESTRADA
13 LIEN
MCGINNIS
14 SCHNETZ
SUAREZ
15 ANDERSON
McCAMMACK
16
day of October
,2001, by the following vote, to wit:
AYES
X
X
X
X
X
X
X
NAYS
ABSTAIN ABSENT
/.
/
17
18
19
20
21
22
23
24 By:
25
26
27
28
SB2001:29309.!
. /,
&cretary
Theforegoing Resolution is hereby approved this /d"7/1" day of October ,2001.
~ 7.
{/ /(
//
r.,~/'
JUdi~~V;;e~'c<i;airperson
Community Development Commission
of tlte City of San Bernardino
4
CDC/2001-42
1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
2 CITY OF SAN BERNARDINO )
3 I, Secretary of the Community Development
Commission ofthe City of San Bernardino, DO HEREBY CERTIFY that the foregoing and attached
4 copy of Community Development Commission of the City of San Bernardino Resolution
No. is a full, true and correct copy of that now on file in this office.
5
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal
6 of the Community Development Commission of the City of San Bernardino this day of
,2001.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Secretary of the
Community Development Commission
of the City of San Bernardino
S82001:29309.1
5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SB2001 :29309.1
CDC/2001-42
EXHIBIT "A"
AMENDMENT NO.2
TO
2000 DISPOSITION AND DEVELOPMENT AGREEMENT
(Hi-way Auto Recyclers)
6
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, California 92401
(Space Above Line for Use By Recorder)
AMENDMENT NO.2
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
HI-WAY AUTO RECYCLERS, LLC
582001:28769.1
AMENDMENT NO.2
TO
2000 DISPOSITION AND DEVELOPMENT AGREEMENT
(Hi-Way Auto Recyclers)
THIS AMENDMENT NO. 2 TO 2000 DISPOSITION AND DEVELOPMENT
AGREEMENT (Hi-Way Auto Recyclers) dated as of October 15,2001 ("Amendment No.2") is
entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and politic (the "Agency"), and HI-WAY AUTO
RECYCLERS, LLC, a California limited liability company (the "Developer"). The Agency and the
Developer enter into this Amendment No.2 with reference to the following facts:
Recitals
WHEREAS, the Agency and the Developer entered into that certain 2000 Disposition and
Development Agreement (Hi-Way Auto Recyclers), dated as of August 14, 2000 (the "2000
Disposition and Development Agreement"), with respect to that certain unimproved property
generally situated at Industrial Parkway (the "Property"); and
WHEREAS, the Agency and the Developer subsequently entered into that certain
Amendment No.1 to 2000 Disposition and Development Agreement dated as of February 1,2001
("Amendment No.1 ") pursuant to which the period of time in which the Developer's due diligence
investigation of the Property was to be completed was extended (the 2000 Disposition and
Development Agreement as amended by Amendment No.1 being hereinafter referred to as the
"Agreement"); and
WHEREAS, on July 26, 2001, the Developer delivered the Due Diligence Certificate (as that
term is defined in the Agreement) with respect to the Property; and
WHEREAS, the Agreement provides that the Closing Date (as that term is defined in the
Agreement) of the escrow established in connection with the sale of the Property by the Agency to
the Developer (the "Escrow") shall be sixty (60) days after delivery of the Due Diligence Certificate;
and
WHEREAS, the Agreement provides that on or before 12:00 noon on the business day
preceding the Closing Date, the Developer must deliver to the Escrow Holder (as that term is defined
in the Agreement), among other things, evidence of construction financing in favor of the Developer
already funded for the Project (as that term is defined in the Agreement); and
WHEREAS, the Developer has requested an extension of the period of time between delivery
of the Due Diligence Certificate and the Closing Date so that it can meet its obligation to deliver
evidence of construction financing already funded for the Project; and
5B2oo1:28769.1
1
WHEREAS, the Agency is willing to extend the period of time between delivery of the Due
Diligence Certificate and the Closing Date.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND SUCH OTHER
GOOD AND VALUABLE CONSIDERATION RECEIPT OF WHICH IS HEREBY
ACKNOWLEDGED BY THE PARTIES, THE AGENCY AND THE DEVELOPER AGREE AS
FOLLOWS:
Terms
1. The Recitals set forth above are hereby incorporated into this Amendment No.2 by
this reference, as though fully set forth herein.
2. Except as hereby amended, the Agreement is in all respects ratified and confirmed and all
the terms and provisions and conditions thereof shall be and remain in full force and effect.
3. Section 2.03 of the Agreement is amended to read in its entirety as follows:
"Section 2.03. Opening and Closing of Escrow.
(a) The transfer and sale of the Property shall take place through an
Escrow (the "Escrow") to be administered by Chicago Title Company Escrow
Department or such other escrow or title insurance company mutually agreed
upon by the Seller and the Agency (the "Escrow Holder"). The Escrow shall
be deemed open ("Opening of Escrow") upon the receipt by the Escrow
Holder of a copy of this Agreement fully executed by both parties hereto and
the Deposit. The Escrow Holder shall promptly confirm to the parties the
escrow number and the title insurance order number assigned to the Escrow.
(b) In the event that the Developer has not delivered its Due Diligence
Approval Certificate (as defined in Section 2.10 hereof) to the Agency and
the Escrow Holder within three hundred thirty seven (337) days from the
Opening of Escrow for any reason, then in such event this Agreement shall
terminate upon written notice to the Escrow Holder from either the Agency
or the Developer, whereupon the Deposit shall be returned by the Escrow
Holder to the Developer (less an amount equal to the customary and
reasonable escrow cancellation charges payable to the Escrow Holder)
without further or separate instruction to the Escrow Holder, and the parties
shall ~ach be relieved and discharged from all further responsibility or liability
under this Agreement.
5B2001:28769.1
2
(c) Provided that the Developer has delivered its Due Diligence Approval
Certificate within the period of time authorized in Section 2.03 (b), then the
Closing Date of the Escrow shall occur within two hundred forty five (245)
days thereafter, subject to the provisions of Section 2.16 and Section 2.17.
The words "Close of Escrow," "Closing Date" and "Closing" shall mean and
refer to the date when the Escrow Holder is in receipt of the Purchase Price
and the related Escrow documents of the parties and the Escrow Holder is in
a position to comply with the final written escrow closing instructions of the
parties and cause the Agency Grant Deed for the Property to be recorded and
the policy of title insurance for the Property to be delivered to the
Developer. "
4. Section 2.17 of the Agreement is amended to read in its entirety as follows:
"Section 2.17. The Agency's Conditions Precedent to Close of Escrow.
The Agency's obligation to convey the Property to the Developer shall be
conditioned upon the fulfillment of the following conditions precedent, all of
which shall be satisfied (or waived in writing pursuant to Section 2.19) prior
to the Close of Escrow:
(1) the Developer has accepted the condition of the
Property and submitted its Due Diligence Approval
Certificate to the Escrow Holder on or before the date set
forth in Section 2.10 of this Agreement;
(2) the Developer has accepted the condition of title of the
Property on or before the date set forth in Section 2.13;
(3) the Developer shall not be in default of any material
term of this Agreement to be performed by the Developer
hereunder and each representation and warranty of the
Developer made in this Agreement shall remain true and
correct; and
(4) the Developer shall be satisfied (or waive satisfaction) of
each of the conditions precedent set forth in Section 2.16 and
the Escrow shall be in a condition to close within five hundred
eighty two (582) days following the Opening of Escrow
(subject to Section 2.15, if applicable)."
582001:28769.1
3
5. Exhibit "D" (SCHEDULE OF PERFORMANCE) to the Agreement is amended to read in
its entirety as set forth in Exhibit "A" to this Amendment No.2.
6. If any term or provision of this Amendment No.2 or the application thereof to certain
circumstances is declared invalid or unenforceable, the remainder of this Amendment No.2, or the
application of the term or provision to circumstances other than those to which it is declared invalid
or unenforceable, will not be affected thereby, and each term and provision of this Amendment No.
2 will be valid and enforceable to the fullest extent permitted by law.
7. The persons executing this Amendment No.2 warrant that they are duly authorized
to execute this Amendment No.2 on behalf of and bind the parties each purports to represent.
8. This Amendment No.2 may be executed by the parties hereto in duplicate originals,
each of which shall be considered an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment No.2 as
of the dates set forth below.
AGENCY
Date/C' h f ft /
/ /
APPROVED AS TO FORM:
-~
\..~
Agency Specl ounsel
DEVELOPER
Date: /o-/? - cJ I
Member
By: <-
Date:
By:
Member
[All Signatures Must Be Notarized]
8B2oo 1 :28769.1
4
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
On October 23. 2001 before me, Lisa A. Gomez. Notary Public.
personally appeared Gary Van Osdel . personally known to me (or proved to
me on the b3sis of s3tisf3ctory evidence) to be the personts) whose namets) iSfafe
subscribed to the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacityfiesj, and that by his/her/their signaturets)
on the instrument the personts). or the entity upon behalf of which the personts) acted,
executed the instrument.
WITNESS my hand ~nd offigial seal.
Signature
USA A. GOMEZ
Commission # 1198927 z
~ .... Notary Pub~Tc - Colifomia ~
J.. . San Bernardino Counly ~
M(Comm. ~resOclI8,2002
~~~j.-.:::;y-~............... -- - -- ~
,
I
(Seal)
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
f
State of California
County of S:Jr'l &(Ylo.rdlt1 0
On lern-ol
Dale
, before me,
lZu05efUf
personally appeared
Place Notary Seal Above
}"
G personally kr::lQ\Aln to me
~ proved to me on the basis of satisfactory
evidence
to be the person()(b whose nam~ @fare
subscribed to the within instrument and
acknowledged to me that@Joho/IR8Y executed
the same in @S1her/their authorized
capacity(lM>), and that by ~hor:JtAQir
signature~on the instrument the person(~, or
the entity up behalf of w. hich t / personw
acted, exe tel:l the instr nt.
.,
OPT/6 AL
Though the information below is not required by law!'t, ay prove valuable to perso s relying on the document
and could prevent fraudulent removal an eattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
C Guardian or Conservator
C Other:
Signer Is Representing:
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
@1999 National Notary Association. 9350 De Solo Ave., P.O. Box 2402 . Chatsworth, CA 91313-2402. www.nalionalnotary.org
Prod. No. 5907
Reorder: Call Toll-Free 1-800-876-6827
~
~
I
110
EXHIBIT "N
AMENDED SCHEDULE OF PERFORMANCE
SB2001:28769.1
5
EXHIBIT "D"
2000
HI-WAY AUTO RECYCLERS, LLC, DISPOSITION AND DEVELOPMENT AGREEMENT
SCHEDULE OF PERFORMANCE
Unless otherwise indicated herein, the meaning of words and phrases used in this Schedule of
Performance shall be as set forth in the Agreement.
Within five (5) days following execution of
the Agreement by the Agency and the
Developer
Within fifteen (15) days of the Opening of
Escrow
During Due Diligence Period
Within three hundred thirty seven (337) days
from the Opening of Escrow
Within five (5) days of receipt of Developer's
Title Objection Notice and Developer's
Survey Objection Notice, if any
Within five (5) days of receipt of Agency's
Title Notice
SB2001 :28769.1
Developer shall deliver to Escrow Holder the
sum ofTen Thousand Dollars ($10,000.00)
Escrow opened upon receipt by the Escrow
Holder of a fully executed copy of the
Agreement and the Deposit from the
Developer.
Agency shall deliver originals of Due
Diligence Items (Section 2.08)
Agency shall deliver to the Developer a
preliminary title report or title commitment
for a CL T A extended coverage policy of title
insurance
Developer must submit development project
site plan approval application for the Project
to the City for City review and approval
Developer shall deliver its Due Diligence
Approval Certificate to the Agency and the
Escrow Holder
Developer shall submit Developer's Title
Objection Notice and Developer's Survey
Objection Notice, if any, to the Agency
Agency to deliver Agency's Title Notice and
Agency's Survey Notice, if any, to Developer
Developer to deliver an acceptance or
rejection of the items in the Agency's Title
Notice
6
Within ten (10) days of receipt of Agency's
Survey Notice
Within two hundred forty five (245) days
after the delivery of a Due Diligence Approval
Certificate from the Developer
No later than three (3) business days prior to
the Closing Date
On or before 12:00 noon on the business day
preceding the Closing Date
At Close of Escrow
Within three (3) business days following the
Closing Date.
Promptly following City approval of site plan
of improvement for the Project
Within ninety (90) days following Close of
Escrow
SB2001:28769.1
Developer to deliver an acceptance or
rejection of the items in the Agency's Survey
Notice
The Close of Escrow shall occur
Escrow Holder shall prepare for approval by
the Developer and the Agency a Closing
Statement (Section 2.21)
The Agency shall deliver to the Escrow
Holder a grant deed for the Property to the
Developer
The Agency shall deliver to the Escrow
Holder copies of the documents set forth in
Section 2.06 of the Agreement
The Developer shall deliver to the Escrow
Holder copies of the documents set forth in
Section 2.07 of the Agreement
Developer deposits the balance of the
Purchase Price, less the Deposit amount, with
the Escrow Holder
Escrow Holder shall deliver to Developer a
conformed copy of the Agency's Grant Deed,
as recorded, and the policy of title insurance
issued in favor of the Developer
Escrow holder shall deliver to the Agency the
Purchase price, less sums paid to discharge
any liens, escrow costs and any prorations
chargeable to the Agency
Developer completes and submits
construction design plans and specifications
to City Building Department for issuance of
necessary building permits
Developer commences work of improvement
of Project on the Property
7
Within two hundred seventy (270) days
following commencement of work of
improvement of the Project
Promptly following completion of
improvements to the Property Developer
submits written request to the Agency for
issuance of Certificate of Completion; but by
a date not later than one (1) year following
Close of Escrow
5B200 1 :28769.1
Developer substantially completes
improvement of the Project
Agency issues a Certificate of Completion to
Developer
a