HomeMy WebLinkAboutCDC/2001-49
RESOLUTION NO. CDC/2001-49
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO, AS THE
GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, APPROVING THAT CERTAIN
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND NEW HOPE MISSIONARY BAPTIST CHURCH,
ON THE TERMS SET FORTH IN SUCH AGREEMENT
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WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
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owns or has a beneficial interest in certain real property situated within the Northwest Project
Area and commonly known as the Public Enterprise Center located at 1505 W. Highland
Avenue, San Bernardino, California (the "Property"); and
WHEREAS, the Agency staff has prepared a draft of a Disposition and Development
Agreement (the "Agreement") for the disposition of the Property to New Yope Missionary
Baptist Church (the "Purchaser"), together with a report which summarizes the key terms of the
Agreement and describes the manner in which the proposed disposition of the Property to the
Purchaser will assist in the elimination of blight (the "33433 Report") in accordance with Health
and Safety Code Section 33433; and
WHEREAS, it is appropriate for the Commission to take action with respect to the
disposition of the Property to the Purchaser and approve the Agreement as set forth in this
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Resolution.
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NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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Section 1.
On September 17, 2001, the Commission commenced the conduct of a
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full and fair joint public hearing with the Mayor and Common Council of the City of San
Bernardino relating to the disposition of the Property, which hearing was continued to,
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conducted and concluded on November 19, 2001. The minutes of the City Clerk for the
September 17, 2001, meeting and for the November 19, 2001, meeting of the Commission shall
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include a record of all communication and testimony submitted to the Mayor and Common
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Council by interested persons relating to the joint public hearing, the 33433 Report and the
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Section 2.
A copy of the Agreement in the form submitted at the joint public hearing
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is on file with the Agency Secretary. The Commission hereby finds and determines as follows:
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(i)
the disposition of the Property by the Agency to the Purchaser in accordance
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with the Agreement is consistent with the Redevelopment Plan and the current Agency
Implementation Plan for the Northwest Project Area;
(ii) the terms and conditions of the Agreement contain assurances that the Property
will be used and maintained as contemplated under the Redevelopment Plan;
(iii) the purchase price for the Property payable by the Purchaser to the Agency,
subject to the satisfaction of the terms and conditions of the Agreement, is an amount which the
Commission determines to be fair, just and reasonable, and the disposition of the Property on
the terms set forth in the Agreement shall materially benefit and sustain the implementation of
the Redevelopment Plan and assist the community to alleviate blighting conditions; and
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14 (iv) the consideration payable by the Purchaser to the Agency for the disposition of
the Property ($580,000.00, in cash) is not less than the fair reuse value at the use and with the
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covenants and conditions and development costs authorized by the Agreement.
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Section 3.
The Commission hereby finds and determines that the activity to take
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place on the Property under the terms of the Agreement involves negligible or no expansion of
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use beyond that previously existing on the Property and is exempt from the provisions of the
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California Environmental Quality Act ("CEQA") pursuant to Section 21084 of the California
Public Resources Code and Article 19 (Section 15301) of the State CEQA Guidelines
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developed thereunder.
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Section 4.
The Commission hereby approves, receives and files the 33433 Report
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and the Agreement in the forms as submitted at the joint public hearing.
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Section 5.
The Commission hereby approves the disposition of the Property to the
25 Purchaser on the terms set forth in the Agreement. The Chair of Commission and the Executive
Director are hereby authorized and directed to execute the Agreement on behalf of the Agency
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together with such technical and conforming changes as may be recommended by the Executive
Director and approved by the Chair of the Commission. The signatures of the Chair of the
Commission and the Executive Director on the Agreement shall be conclusive evidence that the
Agreement has taken effect. In the event that the Agreement may not be fully executed by the
parties for any reason within thirty (30) days following the date of adoption of this Resolution,
the authorization granted to the Chair of the Commission and the Executive Director to execute
the Agreement on behalf of the Agency shall be of no further force and effect.
Section 6. Provided that the Agreement has been fully executed by the parties
within the period of time set forth in Section 5 of this Resolution, the Executive Director of the
Agency is hereby authorized and directed to take all actions set forth in the Agreement on
behalf of the Agency to close the escrow transaction described therein.
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, APPROVING
THAT CERTAIN DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND NEW HOPE MISSIONARY BAPTIST CHURCH, ON THE
TERMS SET FORTH IN SUCH AGREEMENT
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Section 7.
This Resolution shall become effective immediately upon its adoption.
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7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
8 Community Development Commission of the City of San Bernardino at a
9 meeting thereof, held on the 19th day of November, 2001, by the following vote, to wit:
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II Commission AYES NAYS ABSTAIN ABSENT
ESTRADA X
LIEN X
]2 MCGINNIS X
SCHNETZ X
13 SUAREZ x
ANDERSON
14 McCAMMACK X
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]9 Frank Schnetz, Acting Chairman
Community Development Commission
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Approved as to form
2] and legal content:
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By:
Agency Special Counsel
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
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I, Secretary of the Community Development
Commission of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and
attached 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.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Community Development Commission of the City of San Bernardino this
day of ,2001.
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Secretary of the
Community Development Commission
of the City of San Bernardino
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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)
2001
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
NEW HOPE MISSIONARY BAPTIST CHURCH
8B2001:34845.1
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CDC/2001-49
TABLE OF CONTENTS
Page
Section 1.01. Purpose of Agreement ...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. The Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.03. Parties to the Agreement ............................................ 1
Section 1.04. Benefit to Project Area. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
DISPOSITION OF THE PROPERTY . . . . . . . . . . . . . . . . . . . . . .2
Section 2.01. Purchase and Sale of the Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.02. Deposit and Payment of Purchase Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2.03. Opening and Closing of Escrow ...................................... 3
Section 2.04. Escrow Instructions ................................................ 3
Section 2.05. Conveyance of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Section 2.06. Additional Closing Obligations of Agency ...... . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.07. Closing Obligations of Purchaser ..................................... 5
Section 2.08. Inspections and Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.09. Due Diligence Investigation of the Property By the Purchaser ...............7
Section 2.10. Due Diligence Approval Certificate ................................... 8
Section 2.11. Books and Records ................................................ 8
Section 2.12. Condition of the Property-Purchaser's Release. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.13. Review and Approval of Condition of Title by the Purchaser. . . . . . . . . . . . . . . 10
Section 2.14. Survey ......................................................... 11
Section 2.15. Extension of Due Diligence Period ...................................11
Section 2.16. Purchaser's Conditions Precedent to Close Escrow . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.17. The Agency's Conditions Precedent to Close of Escrow . . . . . . . . . . . . . . . . . . . 12
Section 2.18. Distribution of Documents and Purchase Price After Closing Date by
Escrow Holder .................................................. 13
Section 2.19. Satisfaction of Conditions ..........................................13
Section 2.20. [RESERVED -- NO TEXT] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.21. Prorations, Closing Costs, Possession. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.22. BREACH OF ARTICLE II BY THE AGENCY; LIQUIDATED
DAMAGES PAYABLE BY THE AGENCY TO THE PURCHASER ....... 14
Section 2.23. BREACH BY THE PURCHASER OF ARTICLE II; LIQUIDATED
DAMAGES PAYABLE BY THE PURCHASER TO THE AGENCY ....... 15
Section 2.24. Damage, Destruction and Condemnation .............................. 15
ARTICLE III
USE AND MAINTENANCE OF THE PROPERTY ............... 16
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Section 3.01. Use of the Property ............................................... 16
Section 3.02. Maintenance of the Property ........................................ 16
Section 3.03. Taxes and Assessments ............................................ 17
Section 3.04. Transfer of Property to Exempt Person ................................ 17
Section 3.05. Obligation to Refrain from Discrimination ............................. 18
Section 3.06. Form of Nondiscrimination and Nonsegregation Clauses. . . . . . . . . . . . . . . . . . 18
ARTICLE IV
DEFAULTS. REMEDIES AND TERMINATION. . . . . . . . .. . . . . . . 19
Section 4.01. Defaults - General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.02. Legal Actions ..................................................... 20
Section 4.03. Rights and Remedies are Cumulative ................................. 20
Section 4.04. Damages........................................................ 20
Section 4.05. Specific Performance Prior to Close of Escrow . . . . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE V
GENERAL PROVISIONS ......................... 21
Section 5.01. Notices, Demands and Communications Between the Parties ..............21
Section 5.02. Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.03. Warranty Against Payment of Consideration for Agreement ...............21
Section 5.04. Nonliability of Agency Officials and Employees ........................ 22
Section 5.05. Enforced Delay: Extension of Time of Performance . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.06. Inspection of Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Section 5.07. Approvals ....................................................... 23
Section 5.08. Real Estate Commissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Section 5.09. Indemnification ..................................................23
Section 5.10. Release of Purchaser from Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Section 5.11. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.12. Effect .......................................................... 23
ARTICLE VI
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT. . . . . . . . . . . . 24
Section 6.01. Entire Agreement ................................................. 24
EXHIBIT "A"
EXHIBIT "B" -
LEGAL DESCRIPTION
AGENCY GRANT DEED
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2001
DISPOSITION AND DEVELOPMENT AGREEMENT
New Hope Missionary Baptist Church
THIS 2001 DISPOSITION AND DEVELOPMENT AGREEMENT (the
"Agreement") is entered into as of ~ IL, 2001, by and between the REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic (the
"Agency"), and New Hope Missionary Baptist Church (the "Purchaser"). The Agency and the
Purchaser hereby agree as follows:
Section 1.01. Purpose of Agreement. The purpose of this Agreement is to
implement the Redevelopment Plan for the Northwest Project Area (the "Project Area") by
providing for the purchase, use and maintenance by the Purchaser ofthat certain real property located
at 1505 W. Highland A venue, San Bernardino, California, and more particularly described in Exhibit
"A" hereto, improved by an office building. The land and building which are subject to this
Agreement are referred to herein as the "Property". As of the date of this Agreement, the Property
is owned by the Agency. The purchase, use and maintenance of the Property pursuant to this
Agreement is in the vital and best interests ofthe City of San Bernardino (the "City") and the health,
safety and welfare of its residents, and is in accord with the public purposes and provisions of
applicable state and local laws. The Agency has determined that the purchase, use and maintenance
ofthe Property contemplated by this Agreement is consistent with the Redevelopment Plan for the
Project Area.
Section 1.02. The Property. The Property consists of an approximately 28,650
square foot office building commonly known as the Public Enterprise Center ("PEC") situated on
three acres ofland, more or less. The Purchaser intends to lease offices in the PEe to community-
based non-profit and/or educational organizations.
Section 1.03. Parties to the Agreement.
(a) The Agency is a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under Chapter 2 ofthe Community Redevelopment
Law ofthe State of California (Health and Safety Code Section 33020, et seq.) The principal office
of the Agency is located at 201 North "E" Street, Suite 301, San Bernardino, California 92401.
(b) The principal office and mailing address ofthe Purchaser for purposes ofthis
Agreement is 1575 West 17th Street, San Bernardino, California 92411.
(c)
The City of San Bernardino is not a party to this Agreement.
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Section 1.04. Benefit to Proiect Area. The Agency has determined that the purchase,
use and maintenance ofthe Property in accordance with this Agreement will materially assist in the
elimination of blight and the implementation of the Redevelopment Plan for the Project Area.
ARTICLE II
DISPOSITION OF THE PROPERTY
Section 2.01. Purchase and Sale of the Propertv. Subject to all of the terms,
conditions and provisions of this Agreement, and for the consideration of the Purchase Price as
herein set forth, the Agency hereby agrees to sell via grant deed to the Purchaser merchantable lien
free title to the Property and the Purchaser hereby agrees to purchase the Property.
The purchase price which the Agency agrees to accept from the Purchaser and which
the Purchaser agrees to pay to the Agency for the Property is Five Hundred Eighty Thousand Dollars
($580,000.00) in United States currency (the "Purchase Price").
For all purposes of this Agreement, the legal description of the Property attached
hereto as Exhibit "A" shall be definitive and controlling as to the location, size or other aspect ofthe
Property.
Section 2.02. Deposit and Payment of Purchase Price.
(a) Within five (5) calendar days following the execution of this Agreement by
both parties, the Purchaser shall deliver to the Escrow Holder (as hereinafter defined) the sum of
Five Thousand Dollars ($5,000.00) (the "Deposit"). Upon receipt of the Deposit and a fully
executed copy ofthis Agreement, the Escrow Holder shall cause the Escrow (as hereinafter defined)
to be opened, as provided in Section 2.03. The Escrow Holder shall place the Deposit into an
interest-bearing escrow account with the interest thereon to accrue to the benefit of the Purchaser.
At the Close of Escrow (as hereinafter defined), the Deposit shall be applied as a
credit to the Purchase Price.
(b) Payment of Balance of Purchase Price. The Purchase Price, less the Deposit,
shall be tendered by the Purchaser to the Escrow Holder on the Closing Date (as hereinafter defined)
for disbursement to the Agency at the Close of Escrow in cash or immediately available funds.
(c) The Deposit (less an amount equal to the customary and reasonable escrow
cancellation charges oftlie Escrow Holder) shall be returned to the Purchaser in the event that:
(i) the Agency or the Purchaser terminates this Agreement pursuant to
Section 2.I3(a); or
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(ii) the Purchaser does not deliver its Due Diligence Approval
Certificate (as hereinafter defined) to the Escrow Holder pursuant to Section 2.03(b)
and this Agreement is terminated; or
(iii) the Purchaser's conditions precedent to the Close of Escrow
described in Section 2.16(1), (2), (3), (4) or (5) are not satisfied (unless satisfaction
has been waived by the Purchaser) and this Agreement is terminated; or
(iv) the Property is materially damaged prior to the Close of Escrow, or
an action of eminent domain is commenced by a governmental entity with respect to
the Property prior to the Close of Escrow, and the Purchaser elects to terminate this
Agreement pursuant to Section 2.24.
Section 2.03. Opening and Closing of Escrow.
(a) The transfer and sale ofthe Property shall take place through an Escrow (the
"Escrow") to be administered by First American Title Company Escrow Department or such other
escrow or title insurance company mutually agreed upon by the Purchaser 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 Purchaser has not delivered its Due Diligence Approval
Certificate to the Agency and the Escrow Holder within thirty (30) 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 Purchaser, whereupon the Deposit shall be returned by the
Escrow Holder to the Purchaser (less an amount equal to the customary and reasonable escrow
cancellation charges payable to the Escrow Holder) without further or separate instruction to the
Escrow Holder, and the parties shall each be relieved and discharged from all further responsibility
or liability under this Agreement.
(c) Provided that the Purchaser has delivered its Due Diligence Approval
Certificate within the period oftime authorized in Section 2.03(b), then the Closing Date of the
Escrow shall occur within fifteen (15) 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 (as hereinafter defined)
for the Property to be recorded and the policy of title insurance for the Property to be delivered to
the Purchaser.
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Section 2.04. Escrow Instructions. This Agreement shall also constitute the
escrow instructions ofthe parties to the Escrow Holder. Additionally, the Purchaser and the Agency
each agree to execute the customary supplemental escrow instructions ofthe Escrow Holder in the
form provided by the Escrow Holder to its clients in real property escrow transactions administered
by it. In the event of a conflict between the additional terms of such customary supplemental escrow
instructions of the Escrow Holder and the provisions of this Agreement, this Agreement shall
supersede and be controlling. Upon any termination of this Agreement or cancellation of the
Escrow, the Purchaser shall be solely responsible for the payment ofthe escrow cancellation costs
of the Escrow Holder and the Escrow Holder shall forthwith return all monies (as provided in this
Agreement) and documents, less only the Escrow Holder's customary and reasonable escrow
cancellation fees and expenses, as set forth herein.
Section 2.05. Convevance of Title. On or before 12:00 noon on the business day
preceding the Closing Date, the Agency shall deliver to the Escrow Holder a grant deed in the form
attached hereto as Exhibit "B" (the "Agency Grant Deed") duly executed and acknowledged by the
Agency, which Agency Grant Deed shall convey all of its merchantable lien free right, title and
interest in the Property to the Purchaser. The Escrow Holder shall be instructed to record the Agency
Grant Deed in the Official Records of the Recorder of the County of San Bernardino, California, if
and when Escrow Holder holds the various instruments and funds for the accounts of the parties, as
set forth herein, and can obtain for the Purchaser an AL T A policy of title insurance ("Title Policy")
issued by First American Title Insurance Company or such other title insurance company mutually
agreed upon by the parties ("Title Company") with liability in an amount equal to the Purchase Price,
together with such endorsements to the policy as may be reasonably requested by the Purchaser,
insuring that the fee title to the Property vested in the Purchaser is free and clear of options, rights
of first refusal or other purchase rights, leases or other possessory interests, lis pendens and monetary
liens and/or encumbrances and subject only to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
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non-delinquent real property taxes;
non-monetary title exceptions approved by the Purchaser pursuant to Section
2.13 below;
applicable provisions of the parcel map/subdivision map for the Property;
the effect of the Redevelopment Plan for the Project Area;
the 'effect of any conditions imposed by the City in connection with the
proposed use of the Property;
the provision of the Agency Grant Deed;
the applicable provisions of this Agreement; and
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(8) such other title exceptions, if any, resulting from documents being recorded
or delivered through Escrow.
Section 2.06. Additional Closing Obligations of Agencv. On or before 12:00 noon
on the business day preceding the Closing Date (unless indicated otherwise), the Agency shall
deliver to the Escrow Holder (unless indicated to be delivered directly to the Purchaser) copies of
the following documents and other items:
(1) a certificate of non-foreign status (the "Non-Foreign Affidavit") executed by
the Agency, in the customary form provided by the Escrow Holder, and a
California Franchise Tax Board Form 590-RE executed by the Agency;
(2) all soils, seismic, geologic, drainage, and environmental reports, and surveys,
with respect to the Property, if any, which the Agency has in its possession
and/or control to the extent that originals of such items have not been
delivered previously by the Agency to the Purchaser pursuant to Section 2.08
below;
(3) two (2) duplicate original copies of the Closing Statement described in
Section 2.21, duly executed by the Agency;
(4) evidence of the existence, organization and authority of the Agency and of
the authority of persons executing documents on behalf of the Agency
reasonably satisfactory to the Escrow Holder and Title Company; and
(5) any other documents, instruments, funds and records required to be delivered
to the Purchaser under the terms of this Agreement which have not been
previously delivered.
Section 2.07. Closing Obligations of Purchaser. On or before 12:00 noon on the
business day preceding the Closing Date, the Purchaser shall deliver to the Escrow Holder copies
of the following documents and other items:
(1)
an acknowledgment and acceptance ofthe Agency Grant Deed, duly executed
and acknowledged by the Purchaser.
(2)
two (2) duplicate original copies ofthe Closing Statement, duly executed by
the Purchaser.
(3)
evidence ofthe existence, organization and authority ofthe Purchaser and of
the authority of persons executing documents on behalf of the Purchaser
reasonably satisfactory to the Escrow Holder and the Title Company.
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(4) evidence of the ability of the Purchaser to obtain any required permits,
licenses or approvals in connection with the Purchaser's use ofthe Property.
(5) any other documents, instruments or funds required to be delivered by the
Purchaser under the terms of this Agreement or as otherwise required by
Escrow Holder or Title Company in order to close Escrow which have not
previously been delivered.
Section 2.08. Inspections and Review.
(a) Due Diligence Items. Within five (5) days after the execution of this
Agreement, the Agency shall deliver true, correct and complete copies or originals ofthe following
documents and items (collectively, "Due Diligence Items") to the Purchaser:
(1) copies of all soils, seismic, geologic, drainage, engineering, environmental
and similar type reports and surveys (including, but not limited to, any
Property Environmental Site Assessments), surveys, relating to the Property
if any, in the possession or control of the Agency;
(2) notices of violations, including, but not limited to, zoning ordinances,
development or building codes affecting the Property within the Agency's
possession or control;
(3) disclosure of any legal matters affecting the use or condition of the Property
within the knowledge of the Agency;
(4) a copy of the Redevelopment Plan for the Project Area.
(b) Certain Definitions. For the purpose of this Agreement, the terms set forth
below shall have the following meaning:
(i) "environmental laws" means all federal, state, local, or municipal
laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements
of any government authority regulating, relating to, or imposing liability of standards
of conduct concerning any hazardous substance (as later defined), or pertaining to
occupational health or industrial hygiene (and only to the extent that the occupational
health or industrial hygiene laws, ordinances, or regulations relate to hazardous
substances on, under, or about the Property), occupational or environmental
conditions on, under, or about the Property, as now or may at any later time be in
effect, including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA") [42 USC Section 9601 et
seq.]; the Resource Conservation and Recovery Act of 1976 ("RCRA") [42 USC
Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water
8B2001:34845.1
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Pollution Control Act ("FWPCA") [33 USC Section 1251 et eq.]; the Toxic
Substances Control Act ("TSCA") [15 USC Section 2601 et seq.]; the Hazardous
Materials Transportation Act ("HMTA") [49 USC Section 1801 et seq.]; the
Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air
Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section
300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the
Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the
Emergency Planning and Community Right to Know Act [42 USC Section 1100 I et
seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the
California Underground Storage of Hazardous Substances Act [H & S C Section
25288 et seq.]; the California Hazardous Substances Account Act [H & S C Section
25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act
[H & S C Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [Water
Code Section 13000 et seq.] together with any amendments of or regulations
promulgated under the statutes cited above and any other federal, state, or local law,
statute, ordinance, or regulation now in effect or later enacted that pertains to
occupational health or industrial hygiene, and only to the extent the occupational
health or industrial hygiene laws, ordinances, or regulations relate to hazardous
substances on, under, or about the Property, or the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water, or
land use.
(ii) "hazardous substances" includes without limitation:
those substances included within the definitions of "hazardous substance,"
"hazardous waste," "hazardous material," "toxic substance," "solid waste," or
"pollutant or contaminate" in CERCLA, RCRA, TSCA, HMT A, or under any other
environmental law; and
those substances listed in the United States Department of Transportation
(DOT)Table [49 CFR 172.101], or by the EPA, or any successor agency, as
hazardous substances [40 CFR Part 302]; and
other substances, materials, and wastes that are or become regulated or classified as
hazardous or toxic under federal, state, or local laws or regulations; and
any material, waste, or substance that is:
(1)
a petroleum or refined petroleum product,
(2)
asbestos,
(3)
polychlorinated biphenyl,
7
CDC/2001-49
(4) designated as a hazardous substance pursuant to 33 USC Section 1321 or
listed pursuant to 33 USC Section 1317,
(5) a flammable explosive, or
(6) a radioactive material.
Section 2.09. Due Diligence Investigation of the Property By the Purchaser.
(a) Within thirty (30) days from and after the Opening of Escrow, and subject to
the extensions of time set forth below in Section 2.15, the Purchaser shall have the right to examine,
inspect and investigate the Property (the "Due Diligence Period") to determine whether the condition
of the Property is acceptable to the Purchaser and to obtain such approvals from the City in
connection with the Purchaser's use of the Property, as the Purchaser may require in its sole and
absolute discretion.
(b) During the Due Diligence Period, the Agency shall permit the Purchaser, its
engineers, analysts, contractors and agents to conduct such physical inspections and testing of the
Property as the Buyer deems prudent with respect to the physical condition ofthe Property, including
the inspection or investigation of soil and subsurface soil geotechnical condition, drainage, seismic
and other geological and topographical matters, surveys the potential presence of any hazardous
substances, if any.
(c) Any such investigation work on the Property may be conducted by the
Purchaser and/or its agents during any normal business hours upon seventy-two (72) hours prior
notice to the Agency, which notice will include a description of any investigation work or tests to
be conducted by the Purchaser on the Property. Upon the Agency's request, the Purchaser will
provide the Agency with copies of any test results.
(d) During the Due Diligence Period, the Purchaser shall also have the right to
investigate all matters relating to the zoning, use and compliance with other applicable laws which
relate to the use and development and improvement of the Property.
(e) The Agency shall cooperate fully to allow the Purchaser to complete such
inspections and investigations ofthe condition ofthe Property. The Agency shall have the right, but
not the obligation, to accompany the Purchaser during such investigations and/or inspections. The
Purchaser shall pay for all costs and expenses associated with the conduct of all such Due Diligence
investigation.
Section 2.10. Due Diligence Approval Certificate. Within thirty (30) days
following the Opening of Escrow, the Purchaser shall complete its Due Diligence investigation of
the Property (subject to the extensions oftime set forth in Section 2.15) and deliver a due diligence
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approval certificate signed by the Purchaser (the "Due Diligence Approval Certificate") to the
Escrow Holder which either:
(i) indicates that the Purchaser accepts the condition of the Property or;
(ii) contains a description of the matters or exceptions relating to the condition
of the Property which the Purchaser was not able to accept or resolve to its
satisfaction during the Due Diligence Period.
Section 2.11. Books and Records. As part of the Purchaser's Due Diligence
investigations during the Due Diligence Period, the Purchaser shall be afforded full opportunity by
the Agency to examine all books and records in the possession of the Agency and/or the Agency's
agents or employees, which relate to the Property including the reasonable right to make copies of
such books and records at the expense of the Purchaser. During the Due Diligence Period, the
Agency will make sufficient staff available to assist the Purchaser with obtaining access to
information relating to the Property which is in the possession or control of the Agency.
Section 2.12. Condition of the Property-Purchaser's Release. The Purchaser
acknowledges and agrees that it shall be given a full opportunity under this Agreement to inspect and
investigate every aspect of the Property during the Due Diligence Period. Upon issuance to the
Escrow Holder of a Due Diligence Approval Certificate under Section 2.10 which accepts the
condition of the Property, the Purchaser shall, thereafter, accept delivery of possession to the
Property on the Close of Escrow in an "AS IS," "WHERE IS" and "SUBJECT TO ALL FAULTS"
condition. The Purchaser further agrees and represents to the Agency that by a date no later than the
end ofthe Due Diligence Period, the Purchaser shall have conducted and completed (or waived the
completion) of all of its independent investigation of the condition of the Property which the
Purchaser may believe to be indicated. The Purchaser hereby acknowledges that it shall rely solely
upon its own investigation of the Property and its own review of such information and
documentation as it deems appropriate for the purpose of accepting the condition and possession of
the Property. The Purchaser is not relying on any statement or representation by the Agency relating
to the condition of the Property unless such statement or representation is specifically contained in
this Agreement. Without limiting the foregoing, the Agency makes no representations or warranties
as to whether the Property presently complies with environmental laws or whether the Property
contains any hazardous substance, as these terms are defined in Section 2.08(b) hereof. Furthermore,
to the extent that the Agency has provided the Purchaser with information relating to the condition
of the Property, including information and reports prepared by or on behalf of the City, the Agency
makes no representation ,?r warranty with respect to the accuracy, completeness, methodology or
content of such reports or information.
Without limiting the above, except to the extent covered by an express representation
or warranty of the Agency set forth in this Agreement, the Purchaser, on behalf of itself and its
successors and assigns, waives and releases the Agency and its successors and assigns from any and
all costs or expenses whatsoever (including, without limitation, attorneys' fees and costs), whether
SB2001:34845.1
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direct or indirect, known or unknown, foreseen or unforeseen, arising from or relating to the physical
condition of the Property, the condition of the soils, the suitability of the soils for the use of the
Property as proposed, or any law or regulation applicable thereto, including the presence or alleged
presence or harmful or hazardous substances in, under or about the Property including, without
limitation, any claims under or on account of (i) CERCLA and similar statutes and any regulations
promulgated thereunder or (ii) any other environmental laws.
The Purchaser expressly waives any rights or benefits available to it with respect to
the foregoing release under any provision of applicable law which generally provides that a general
release does not extend to claims which the creditor does not know of suspect to exist in his or her
favor at the time the release is agreed to, which, ifknown to such creditor, would materially affect
a settlement. By execution ofthis Agreement, the Purchaser acknowledges that it fully understands
the foregoing, and with this understanding, nonetheless elects to and does assume all risk for claims
known or unknown, described in this Section 2.12 without limiting the generality of the foregoing:
The undersigned acknowledges that it has been advised by legal counsel and is familiar with
the provisions of Cali fomi a Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT
KNOWN OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."
The undersigned, being aware ofthis code section, hereby expressly waives any rights it may
have thereunder, as well as under any other statutes or common law principles of similar
effect.
Initials of Purchaser: f};/tfj}'
~
The provisions of this Section 2.12 shall survive the Close of Escrow.
Section 2.13. Review and Approval of Condition of Title by the Purchaser.
(a) Wi.thin fifteen (15) days following the Opening of Escrow, the Agency shall
cause to be delivered to the Purchaser a preliminary title report or title commitment for an ALTA
policy oftitle insurance issued by the Title Company, describing the state ofthe title of the Property,
together with copies of all exceptions specified therein and with all easements plotted, but excluding
matters disclosed on a survey (the "Preliminary Title Report"). The Purchaser shall notify the
Agency in writing of any obj ections the Purchaser may have to the title exceptions contained in the
Preliminary Title Report ("Purchaser's Title Objection Notice") prior to the expiration of the Due
5B2001:34845.1
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Diligence Period. The Agency shall have a period of five (5) days after receipt of the Purchaser's
Title Objection Notice in which to deliver written notice to the Purchaser ("Agency's Title Notice")
of the Agency's election to either (i) agree to remove the objectionable items prior to the Close of
Escrow, or (ii) decline to remove any such title exceptions; provided, however, that the Agency shall
be required to remove all monetary liens and encumbrances created by or as a result of the Agency's
activities. Ifthe Agency notifies the Purchaser of its election to terminate Escrow rather than remove
the objectionable items, the Purchaser shall have the right, by written notice delivered to the Agency
within five (5) days after the Purchaser's receipt of the Agency's Title Notice, to agree to accept the
Property subject to the objectionable items, in which event the Agency's election to terminate the
Escrow shall be of no effect, and the Purchaser shall take title to the Property at the Close of Escrow
subject to such objectionable title items.
(b) The Agency hereby covenants not to place any liens or encumbrances on the
Property, including, but not limited to, covenants, conditions, restrictions, easements, liens, options
to purchase, options to lease, leases, tenancies, or other possessory interests without the prior written
consent of the Purchaser following execution ofthis Agreement by the Agency. Upon the issuance
of any amendment or supplement to the Preliminary Title Report which adds additional exceptions
(including, but not limited to, adding additional exceptions for matters shown on the Survey as
hereinafter defined), the foregoing right of review and approval shall also apply to said amendment
or supplement (provided that the period for the Purchaser to review such amendment or supplement
shall be the later of the expiration ofthe Due Diligence Period or ten (10) days from receipt of the
amendment or supplement) and Escrow shall be deemed extended by the amount oftime necessary
to allow such review and approval in the time and manner set forth above.
Section 2.14. Survey. The Purchaser may at its sole cost and separate expense
obtain a survey ofthe Property prepared by a land surveyor duly licensed by the State of California
and in compliance with ALTNASCM standards (the "Survey"). The Survey shall be in a form
acceptable to the Title Company for the deletion ofthe standard survey exception in the Title Policy
relating to boundaries, without the addition of further exceptions, unless the same are acceptable to
the Purchaser in its sole and absolute discretion. The Purchaser shall have until the end ofthe Due
Diligence Period to complete and examine the Survey and to notify the Agency in writing of any
objections the Purchaser has to the Survey ("Purchaser's Survey Objection Notice"). The Agency
shall have a period of five (5) days after receipt of the Purchaser's Survey Objection Notice in which
to deliver written notice to the Purchaser ("Agency's Survey Notice") of the Agency's election to
either (i) agree to remove the objectionable items prior to the Close of Escrow or (ii) decline to
remove such items. If ~he Agency notifies the Purchaser of its intention not to remove the
objectionable items, the Purchaser shall have the right, by written notice delivered to the Agency
within ten (10) days after the Purchaser's receipt of Agency's Survey Notice, to agree to accept the
Property subject to the objectionable items, in which event, the Agency's election to terminate the
Escrow shall be of no effect, and the Purchaser shall accept the Property at the Close of Escrow
subject to such objectionable items. Prior to the Close of Escrow, the Survey shall be recertified to
the Purchaser, Title Company and the Purchaser's lender, if any.
8B2001:34845.1
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Section 2.15. Extension of Due Diligence Period.
(a) In the event the Agency fails to provide the Purchaser with documents or other
information required by Sections 2.08 and 2.11 by the date(s) set forth therein, the Due Diligence
Period regarding such information shall be extended by one (1) day for each day of the delay by the
Agency to permit the Purchaser to perform an adequate due diligence review of such documents or
information (but shall not exceed a total of sixty (60) days). The Purchaser will use its best efforts
to notify the Agency of any documents or information the Agency has failed to deliver to the
Purchaser within the time periods provided in Sections 2.08 and 2.11.
(b) In the event that the Executive Director makes a finding that the Purchaser has
undertaken substantial work to complete its due diligence in connection with the Property, the
Executive Director shall upon the written request of the Purchaser authorize an extension ofthe Due
Diligence Period for up to an additional thirty (30) days.
Section 2.16. Purchaser's Conditions Precedent to Close Escrow. The Purchaser's
obligation to complete the purchase of the Property and Close the Escrow shall be conditioned upon
the fulfillment ofthe 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)
(2)
(3)
882001:34845.1
The Agency shall not have defaulted on any material term of this Agreement
to be performed by the Agency, hereunder, and each representation and
warranty made by the Agency in this Agreement shall remain true and
correct. For purposes of this subsection (1) only, a representation that is
limited to the Agency's knowledge or notice shall be false, if the factual
matter that is subject to the representation is false, notwithstanding any lack
of knowledge or notice to the Agency;
the Purchaser's approval of the Preliminary Title Report and the Survey, if
applicable, within the time periods specified in Sections 2.13 and 2.14;
the Purchaser's approval of the contents of all due diligence items, and the
other investigations of the Property made by the Purchaser and/or its
designees pursuant to Sections 2.08 and 2.09 herein, on or before the
expiration of the Due Diligence Period, or such later date, if the Due
Diligence Period is extended pursuant to Section 2.15. The Purchaser shall
be' deemed to have disapproved such due diligence items unless they are
approved on or before 5 :00 p.m. on the day ending the Due Diligence Period,
or such later date, ifthe Due Diligence Period is extended pursuant to Section
2.15 herein; and
(4)
the Title Company has committed to issue the Title Policy, in favor of the
Purchaser in the form described in Section 2.05.
12
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Section 2.17. The Agencv's Conditions Precedent to Close of Escrow. The
Agency's obligation to convey the Property to the Purchaser 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 Purchaser has accepted the condition of the Property and submitted its
Due Diligence Approval Certification to the Escrow Holder on or before the
date set forth in Section 2.10 of this Agreement;
(2) the Purchaser has accepted the condition of title ofthe Property on or before
the date set forth in Section 2.13;
(3) the Purchaser shall not be in default of any material term of this Agreement
to be performed by the Purchaser hereunder and each representation and
warranty of the Purchaser made in this Agreement shall remain true and
correct; and
(4) the Purchaser shall have satisfied (or the Agency shall have waived
satisfaction) of each ofthe conditions precedent set forth in Section 2.16 and
the Escrow shall be in a condition to close within forty-five (45) days
following the Opening of Escrow (subject to Section 2.15, if applicable).
Section 2.18. Distribution of Documents and Purchase Price After Closing Date
by Escrow Holder. The Escrow Holder shall deliver to the Purchaser, within three (3) business days
following the Closing Date, a conformed copy ofthe Agency Grant Deed, as recorded, and the policy
of title insurance issued by the Title Company in favor of the Purchaser. The Escrow Holder shall
deliver to the Agency the Purchase Price, less sums paid to discharge any liens, less Escrow costs,
expenses and the various prorations chargeable to the Agency hereunder.
Section 2.19. Satisfaction of Conditions. Where satisfaction of any ofthe
foregoing conditions requires action by the Purchaser or by the Agency, each party shall use its best
efforts, in good faith, and at its own cost, to satisfy such conditions. Where satisfaction of any of
the foregoing conditions requires the approval of a party, such approval shall be in such party's sole
and absolute discretion.
Either party may waive any ofthe conditions set forth in this Agreement, but any such
waiver shall be effective only if contained in a writing signed by the applicable party and delivered
to the Escrow Holder.
Section 2.20. [RESERVED -- NO TEXT]
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Section 2.21. Prorations. Closing Costs. Possession.
(a) Real and personal property taxes for the Property shall be prorated by the
parties to the Close of Escrow on the basis of a three hundred sixty-five (365) day year. The Agency
is responsible for (i) all taxes (if any) for the fiscal year ofthe applicable taxing authority occurring
prior to the Current Tax Period (as defined below) and (ii) that portion of such taxes for the Current
Tax Period to 11 :59 p.m. upon the Close of Escrow, whether or not the same shall be payable prior
to the Close of Escrow. The phrase "Current Tax Period" refers to the fiscal year of the applicable
taxing authority in which the Close of Escrow occurs. All tax prorations shall be based upon the
latest available tax statement. If the tax statements for the fiscal tax year during which the Close of
Escrow occurs do not become available until after the Close of Escrow, then the rates and assessed
values of the previous year, with known changes, shall be used, and the parties shall re-prorate said
taxes outside of Escrow following the Close of Escrow when such tax statements become available.
The Agency shall be responsible for and shall payor reimburse the Purchaser upon demand for any
real or personal property taxes payable following the Close of Escrow applicable to any period of
time prior to the Close of Escrow as a result of any change in the tax assessment by reason of
reassessment, changes in use of the Property, changes in ownership, errors by the Assessor or
otherwise.
(b) The Purchaser shall be entitled to exclusive possession of the Property
immediately upon the Close of Escrow.
(c) Subsequent to the Close of Escrow, the Purchaser shall pay, prior to
delinquency, all real property taxes and assessments assessed and levied upon or against the
Property. Nothing herein contained shall be deemed to prohibit the Purchaser from contesting the
validity or amounts of any tax or assessment, nor to limit the remedies available to the Purchaser in
respect thereto.
(d) The Agency shall pay the cost of the premium for a CL T A policy of title
insurance on the Property in the amount of the Purchase Price, together with all title charges
(including endorsements reasonably requested by the Purchaser to remove disapproved items shown
on the Preliminary Title Report or Survey pursuant to Sections 2.13 and 2.14 above). The Agency
shall pay one-half (12) of the customary and reasonable escrow fees which may be charged by the
Escrow Holder in connection with the Close of Escrow.
The Purchaser shall pay the additional cost of the premium for an ALTA policy of
title insurance on the Property in the amount of the Purchase Price, together with all title changes
and requested ALT A survey policy endorsements (to the extent such endorsements are unrelated to
removal of any disapproved items shown on the Preliminary Title Report or Survey pursuant to
Sections 2.13 and 2.14 above), plus the cost of recording the Agency Grant Deed, together with one-
half (12) of the cost of the customary and reasonable escrow fees charged by Escrow Holder in
connection with the Close of Escrow. The Purchaser shall pay any documentary or other transfer
taxes payable on account of the conveyance of the Property to the Purchaser.
8B2001:34845.1
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Any other Escrow-related transaction expenses or escrow closing costs incurred by
the Escrow Holder in connection with this transaction shall be apportioned and paid for by the parties
to this Agreement in the proportion of one-half (Y2) payable by each party.
No later than three (3) business days prior to the Close of Escrow, the Escrow Holder
shall prepare a closing statement ("Closing Statement") on the Escrow Holder's standard form
indicating, among other things, the Escrow Holder's estimate of all closing costs, pay-off amounts
for the release and reconveyance of all liens secured by the Property and prorations made pursuant
to this Agreement for approval by the Purchaser and the Agency. The Purchaser and the Agency
shall assist the Escrow Holder in determining the amount of all prorations.
Section 2.22. BREACH OF ARTICLE II BY THE AGENCY: LIOUIDATED
DAMAGES PAYABLE BY THE AGENCY TO THE PURCHASER. IN THE EVENT THAT
THE AGENCY COMMITS A MATERIAL BREACH OFITS OBLIGATIONS UNDER THIS
ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE DAMAGES THAT THE
PURCHASER WILL INCUR BY REASON THEREOF ARE AND WILL BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE PURCHASER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
PURCHASER'S DAMAGES WOULD BE IN THE EVENT OFSUCH A DEFAULT BY THE
AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT
EQUAL TO THE SUM OF ONE THOUSAND DOLLARS ($1,000.00) AS LIQUIDATED
DAMAGES. SUCH SUM SHALL BE PAID TO THE PURCHASER IN THE EVENT OF
SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF THIS
AGREEMENT AND CANCELLATION OFTHE ESCROW, AS LIQUIDATED DAMAGES,
WHICH DAMAGES SHALL BE THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY
AT LAW OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE
AGENCY. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS
PARAGRAPH, THE PURCHASER WAIVES ANY AND ALL RIGHTS WHICH THE
PURCHASER OTHERWISE WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389
TO SPECIFICALLY ENFORCE THIS AGREEMENT. THE PURCHASER AND THE
AGENCY ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND
UNDERSTANDS THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE
BOUND BY ITS TERMS.
Initials of Agency
&fillY
Initials of Purchaser
Section 2.23. BREACH BY THE PURCHASER OF ARTICLEll: LIOUIDATED
DAMAGES PAYABLE BY THE PURCHASER TO THE AGENCY. IN THE EVENT THAT
THE PURCHASER COMMITS A MATERIAL BREACH OF ITS OBLIGATIONS UNDER
THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE DAMAGES THAT THE
AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL BE IMPRACTICAL
AND EXTREMELY DIFFICULT TO ESTABLISH. THE PURCHASER AND THE
8B2001:34845.1
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AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE AGENCY'S
DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE PURCHASER,
HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT EQUAL TO THE
SUM OF ONE THOUSAND DOLLARS ($1,000.00) AS LIQUIDATED DAMAGES. SUCH
SUM SHALL BE PAID TO THE AGENCY IN THE EVENT OF SUCH DEFAULT BY THE
PURCHASER AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE
AGENCY'S SOLE AND EXCLUSIVE REMEDY AT LAW ORIN EQUITY IN THE EVENT
OF AND FOR SUCH DEFAULT BY THE PURCHASER. WITHOUT LIMITING THE
FOREGOING PROVISIONS OF THIS PARAGRAPH, THE AGENCY WAIVES ANY AND
ALL RIGHTS WHICH THE AGENCY OTHERWISE WOULD HAVE HAD UNDER CIVIL
CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. THE
AGENCY AND THE PURCHASER ACKNOWLEDGE AND AGREE THAT EACH OF
THEM HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS SECTION AND
EACH AGREES TO BE BOUND BY ITS TERMS.
-f:rJ1JIY
Initials of Purchaser
Initials of Agency
Section 2.24. Damage, Destruction and Condemnation. Prior to the Agency's
delivery of possession of the Property to Purchaser at the Close of Escrow, the risk ofloss or damage
to the Property shall remain upon the Agency. If the Property suffers damages as a result of any
casualty, prior to the Close of Escrow, which may materially diminish its value, then the Agency
shall give written notice thereof to Purchaser promptly after the occurrence of the casualty.
Thereafter the Purchaser can elect to either: (i) accept the Property in its damaged condition or (ii)
the Purchaser may terminate this Agreement and recover the Deposit, as set forth in Section 2.02.
The Purchaser shall confirm the exercise of its election under subparagraph (i) or (ii) of the
preceding sentence within thirty (30) days of its receipt of notice from the Agency that the Property
suffered material damages.
In the event that, prior to the Close of Escrow, any governmental entity shall
commence any actions of eminent domain or similar type proceedings to take any portion of the
Property, the Agency shall give prompt written notice thereof to Purchaser, and Purchaser shall have
the option either: (i) to elect not to acquire the Property, terminate the Agreement and recover the
Deposit, as set forth in Section 2.02; or (ii) the Purchaser may complete the acquisition of the
Property under this Agreement, in which case the Purchaser shall be entitled to all of the proceeds
paid in compensation for such taking; provided, however, that the Agency agrees that it shall not
settle or compromise the proceedings before the Close of Escrow without the Purchaser's prior
written consent, which consent will not be unreasonably withheld or delayed. The Purchaser shall
confirm the exercise of its election under subparagraph (i) or (ii) of the preceding sentence within
thirty (30) days of its receipt of notice from the Agency of commencement of eminent domain
proceedings against the Property.
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ARTICLE III
USE AND MAINTENANCE OF THE PROPERTY
Section 3.01. Use ofthe Propertv. The Purchaser covenants and agrees for itself,
its successors and assigns that the Property shall be used in conformity with all applicable laws.
Section 3.02. Maintenance ofthe Property. The Purchaser for itself, its successors
and assigns hereby covenants and agrees that:
(a) The areas of the Property which are subject to public view (including all
existing improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall
be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear
excepted. In the event that at any time within twenty (20) years following the date of recordation
of the Agency Grant Deed there is an occurrence of an adverse condition on any area ofthe Property
which is subject to public view in contravention of the general maintenance standard described
above, (a "Maintenance Deficiency") then the Agency shall notify the Purchaser in writing of the
Maintenance Deficiency and give the Purchaser thirty (30) days from receipt of such notice to cure
the Maintenance Deficiency as identified in the notice. In the event the Purchaser fails to cure or
commence to cure the Maintenance Deficiency within the time allowed, the Agency may conduct
a public hearing following transmittal of written notice thereofto the Purchaser ten (10) days prior
to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency
exists and whether the Purchaser has failed to comply with the provisions of this Section 3.02(a).
If upon the conclusion of a public hearing, the Agency makes a finding that a Maintenance
Deficiency exists and that there appears to be non-compliance with the general maintenance
standard, described above, thereafter the Agency shall have the right to enter the Property and
perform all acts necessary to cure the Maintenance Deficiency, or to take other action at law or in
equity which the Agency may then have to accomplish the abatement ofthe Maintenance Deficiency.
Any sum expended by the Agency for the abatement of a Maintenance Deficiency on the Property
authorized by this Section 3.02(a) shall become a lien on the Property. If the amount of the lien is
not paid within thirty (30) days after written demand for payment by the Agency to the Purchaser,
the Agency shall have the right to enforce the lien in the manner as provided in Section 3.02(c).
(b) Graffiti, as this term is defined in Government Code Section 38772, which
has been applied to any exterior surface of the building or any other structure on the Property which
is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by
the Purchaser by either painting over the evidence of such vandalism with a paint which has been
color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents,
detergents or water as appropriate. In the event that such graffiti may become visible from an
adjacent or contiguous public right-of-way but is not removed within 72 hours following the time
of such application, the Agency shall have the right to enter the Property and remove the graffiti
without notice to the Purchaser. Any sum expended by the Agency for the removal of graffiti from
the Property authorized by this Section 3.02(b) in an amount not to exceed $250.00 per entry by the
Agency, shall become a lien on the Property. Ifthe amount of the lien is not paid within thirty (30)
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days after written demand to the Purchaser by the Agency, the Agency shall have the right to enforce
its lien in the manner provided in Section 3.02(c).
(c) The parties hereto further mutually understand and agree that the rights
conferred upon the Agency under this Section 3.02 expressly include the power to establish and
enforce a lien or other encumbrance against the Property, or any portion thereof, in the manner
provided under Civil Code Sections 2924, 2924b and 2924c in an amount reasonably necessary to
restore the Property to the maintenance standard required under Section 3.02(a) or Section 3.02(b),
including the reasonable attorneys' fees and costs of the Agency associated with the abatement of
the Maintenance Deficiency or removal of graffiti. The provisions of this Section 3.02 shall be a
covenant running with the land for a term of twenty (20) years following the date of recordation of
the Agency Grant Deed, and shall be enforceable by the Agency. Nothing in the foregoing
provisions of this Section 3.02 shall be deemed to preclude the Purchaser from making any
alteration, addition, or other change to any structure or improvement or landscaping on the Property,
provided that any such changes comply with applicable zoning and building regulations ofthe City.
Section 3.03. Transfer of Pro pert v to Exempt Person or Grant of Exemption from
Payment of Propertv Taxes. The Purchaser covenants and agrees that (i) in the event that the
Property, or any portion thereof, shall within twenty (20) years from the date of recordation ofthe
Agency Grant Deed be conveyed or transferred or sold by the Purchaser, its successors or assigns,
to any entity or party that is partially or wholly exempt from the payment of ad valorem property
taxes pertinent to the Property or any portion ofthe Property or (ii) in the event the Purchaser applies
for and receives from the San Bernardino County Assessor an exemption from the payment of ad
valorem property taxes pertinent to the Property, either in whole or in part, within twenty (20) years
from the date of recordation ofthe Agency Grant Deed, the Purchaser, its heirs or assigns shall pay
the Agency a fee in lieu of payment of such taxes each year in an amount which is determined by the
Agency to be one percent (1.0%) of the full cash value of the Property, or portion thereof, as may
be subject to such exemption from payments of ad valorem property taxes. Such determination of
"full cash value" for such in-lieu payment purposes under this Section 3.04 shall be established by
the Agency each year, if necessary, by reference to the as valorem property tax valuation principles
and practices as generally applicable to a county property tax assessor under Section 2 of Article
XIIIA of the California Constitution. In the event that the Agency may hereafter determine that an
amount is payable by the Purchaser to the Agency as an in-lieu payment under this Section 3.04 in
any tax year, then such amount shall be paid to the Agency for that tax year within ninety (90) days
following transmittal of notice of invoice for payment of the in-lieu amount by the Agency to the
Purchaser. The provisions of this covenant shall be referenced in the Agency Grant Deed.
Section 3.04. Obligation to Refrain from Discrimination. The Purchaser covenants
and agrees for itself, its successors, its assigns and every successor-in-interest to the Property or any
part thereof, that there shall be no discrimination against or segregation of any person, or group of
persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment ofthe Property; nor shall the
Purchaser, itself or any person claiming under or through it, establish or permit any such practice or
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practices of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees ofthe Property. The covenant of
this Section 3.04 shall run with the land for the time period set forth in the Agency Grant Deed.
Section 3.05. Form of Nondiscrimination and Nonsegregation Clauses. The
Purchaser covenants and agrees for itself, its successors, its assigns, and every successor-in-interest
to the Property, or any part thereof, that the Purchaser, such successors and such assigns shall refrain
from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the
Property (or any part thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry
or national origin of any person. All deeds, leases or contracts pertaining thereto shall contain or be
subject to substantially the following nondiscrimination or nonsegregation clauses:
(2)
(3)
SB2001:34845.1
(1)
In deeds: "The grantee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, that there shall be
no discrimination against or segregation of, any person or group of persons
on account of race, color, creed, religion, sex, marital status, national origin,
or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any
person claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessee,
or vendees in the premises herein conveyed. The foregoing covenants shall
run with the land."
In leases: "The Lessee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, and this lease is
made and accepted upon and subject to the following conditions: That there
shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, marital status, national
origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment ofthe premises herein leased nor shall the lessee itself,
or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy, oftenants lessees, sublessee,
subtenants, or vendees in the premises herein leased."
In contracts: "There shall be no discrimination against or segregation of any
person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises herein
conveyed or leased, nor shall the transferee or any person claiming under or
through it, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use, or
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occupancy, of tenants, lessees, sub lessees, subtenants, or vendees of the
premises herein transferred." The foregoing provision shall be binding upon
and shall obligate the contracting party or parties and any subcontracting
party or parties, or other transferees under the instrument. The covenant of
this Section 3.05 shall run with the land in perpetuity.
ARTICLE IV
DEFAULTS. REMEDIES AND TERMINATION
Section 4.01. Defaults - General.
(a) In the event that a breach or default may occur prior to the Close of Escrow,
the remedies of the parties shall be as set forth in Article II of this Agreement.
(b) From and after the Close of Escrow and subject to the extensions oftime set
forth in Section 5.05 hereof, failure or delay by either party to perform any term or provision of this
Agreement shall constitute a default under this Agreement; provided, however, that if a party
otherwise in default commences to cure, correct or remedy such default within thirty (30) calendar
days after receipt of written notice from the injured party specifying such default, and shall diligently
and continuously prosecute such cure, correction or remedy to completion (and where anytime limits
for the completion of such cure, correction or remedy are specifically set forth in this Agreement,
then within said time limits), such party shall not be deemed to be in default hereunder.
(c) The injured party shall give written notice of default to the party in default,
specifying the default complained of by the nondefaulting party. Delay in giving such notice shall
not constitute a waiver of any default nor shall it change the time of default.
(d) Any failure or delays by either party in asserting any of their rights and/or
remedies as to any default shall not operate as a waiver of any default or of any such rights or
remedies. Delays by either party in asserting any of their rights and/or remedies shall not deprive
either party of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
Section 4.~2. Legal Actions.
(a) In addition to any other rights or remedies, either party may institute legal
action to cure, correct or remedy any default, to recover damages for any default, or to obtain any
other remedy consistent with the purposes ofthis Agreement. Such legal actions must be instituted
in the Superior Court ofthe State of California in and for the County of San Bernardino in any other
appropriate court within said County, or in the Federal District Court for the Central District of
California.
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(b) The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
(c) In the event that any legal action is commenced by the Purchaser against the
Agency, service of process on the Agency shall be made by personal service upon the Executive
Director or Chair of the Community Development Commission, or in such other manner as may be
provided by law.
(d) In the event that any legal action is commenced by the Agency against the
Purchaser, service of process on the Purchaser shall be made by personal service on Richard
Schindler, a member of the Purchaser, or in such other manner as may be provided by law, and shall
be valid whether made within or without the State of California.
Section 4.03. Rights and Remedies are Cumulative. Except with respect to any
rights and remedies expressly declared to be exclusive in Article II of this Agreement as relates to
a default or breach occurring before the Close of Escrow, the rights and remedies of the parties as
set forth in this Article V following the Close of Escrow are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the other
party.
Section 4.04. Damages. If either party defaults with regard to any provision of this
Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting
party. If the defaulting party does not diligently commence to cure such default after service of such
notice of default and promptly complete the cure of such default within a reasonable time, not to
exceed ninety (90) calendar days (or such shorter period as may otherwise be specified in this
Agreement for default), after the service of written notice of such a default. In the event that a
default relates to a matter arising after the Close of Ese row , the defaulting party shall be liable to the
other party for damages caused by such default. In the event that a default relates to a matter arising
before the Close of Escrow, the remedies of the parties shall be limited to the liquidated damage
sums as set forth in Article II of the Agreement.
Section 4.05. Specific Performance Prior to Close of Escrow. Prior to the Close of
Escrow neither party shall have or assert the equitable remedy of specific performance in the event
of a default or breach, and the remedies of the parties with respect to such a breach or default prior
to the Close of Escrow shall be limited to the termination rights and liquidated damage amounts set
forth in Article II of this Agreement.
ARTICLE V
GENERAL PROVISIONS
Section 5.01. Notices. Demands and Communications Between the Parties.
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(a) Any and all notices, demands or communications submitted by any party to
another party pursuant to or as required by this Agreement shall be proper if in writing and
dispatched by messenger for immediate personal delivery, or by registered or certified United States
mail, postage prepaid, return receipt requested, to the principal office of the Agency and the
Purchaser, as applicable, as designated in Section 1.04(a) and Section 1.04(b) hereof. Any such
notice, demand or communication shall be deemed to be received by the addressee, regardless of
whether or when any return receipt is received by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for immediate personal delivery, or two (2)
calendar days after it is placed in the United States mail, as heretofore provided. Either party may
change its address for notices under this Agreement by giving notice to the other party, specifying
that the purpose of the notice is to change the party's address.
(b) In addition to the submission of notices, demands or communications to the
parties as set forth above, copies of all notices shall also be delivered by facsimile as follows:
to the Purchaser:
FAX: (909) 887-5406
Attention: Breon Waters
to the Agency:
FAX: (909) 384-5135
Attention: Ann Harris
with copy to:
Lewis, D'Amato, Brisbois & Bisgaard LLP
FAX: (909) 387-1138
Attention: Diane R. Holman, Esq.
Section 5.02. Conflict of Interest. No member, official or employee of the Agency
having any conflict of interest, direct or indirect, related to this Agreement and the development of
the Property shall participate in any decision relating to the Agreement. The parties represent and
warrant that they do not have knowledge of any such conflict of interest.
Section 5.03. Warranty Against Payment of Consideration for Agreement. The
Purchaser warrants that it has not paid or given, and will not payor give, any third party any money
or other consideration for obtaining this Agreement. Third parties, for the purposes ofthis Section,
shall not include persons to whom fees are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the like when such fees are considered
necessary by the Purchaser.
Section 5.04. Nonliability of Agency Officials and Employees. No member, official
or employee ofthe Agency shall be personally liable to the Purchaser, or any successor in interest,
in the event of any default or breach by the Agency or for any amount which may become due to the
Purchaser or to its successor, or on any obligations under the terms of this Agreement, except for
gross negligence or willful acts of such member, officer or employee.
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Section 5.05. Enforced Delay: Extension of Time of Performance. In addition to
specific provisions ofthis Agreement, performance by either party hereunder shall not be deemed
to be in default, or considered to be a default, where delays or defaults are due to the force majeure
events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God,
acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or lack of
transportation, weather-caused delays, inability to secure necessary labor, materials or tools, delays
of any contractors, subcontractor or supplier, which are not attributable to the fault of the party
claiming an extension of time to prepare or acts or failure to act of any public or governmental
agency or entity (provided that acts or failure to act of the City or Agency shall not extend the time
for the Agency to act hereunder except for delays associated with lawsuit or injunction including but
without limitation to lawsuits pertaining to the approval of the Agreement, and the like). An
extension of time for any such force majeure cause shall be for the period of the enforced dela:y and
shall commence to run from the date of occurrence of the delay; provided however, that the party
which claims the existence of the delay has first provided the other party with written notice of the
occurrence of the delay within ten (10) days of the commencement of such occurrence of delay.
The parties hereto 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 and which occur at any time after the execution
of this Agreement, are not force majeure events and do not provide any party with grounds for
asserting the existence of a delay in the performance of any covenant or undertaking which may arise
under this Agreement. Each party expressly assumes the risk that changes in general economic
conditions or changes in such economic assumptions relating to the terms and covenants of this
Agreement could impose an inconvenience or hardship on the continued performance of such party
under this Agreement, but that such inconvenience or hardship is not a force majeure event and does
not excuse the performance by such party of its obligations under this Agreement.
Section 5.06. Approvals.
(a) Approvals required ofthe Agency or the Purchaser, or any officers, agents or
employees of either the Agency or the Purchaser, shall not be unreasonably withheld and approval
or disapproval shall be given within the time set forth in the Schedule of Performance or, ifno time
is given, within a reasonable time.
(b) The Executive Director ofthe Agency is authorized to sign on his or her own
authority amendments to this Agreement which are of routine or technical nature, including minor
adjustments to the Schedule of Performance.
Section 5.07. Real Estate Commissions. The Agency shall not be liable for any real
estate commissions, brokerage fees or finder fees which may arise from or be related to this
Agreement. The Purchaser shall pay any fees or commissions or other expenses related to its
retention or employment of real estate brokers, agents or other professionals.
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Section 5.08. Indemnification. The Purchaser agrees to indemnify and hold the City
and the Agency, and their officers, employees and agents, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to any act or omission ofthe Purchaser
in performing its obligations hereunder. The Agency agrees to indemnify and hold the Purchaser and
its officers, employees and agents, harmless from and against all damages, judgments, costs,
expenses and fees arising from or related to any act or omission of the Agency in performing its
obligations hereunder.
Section 5.09. Release of Purchaser from Liability. Notwithstanding any provision
herein to the contrary, the Purchaser shall be relieved of any and all liability for the obligations of
the Purchaser hereunder with regard to the Property on and as of that date which is the five-year
anniversary of the Close of Escrow, other than any covenants and obligations provided by the grant
deed by which the Property is conveyed to the Purchaser hereunder.
Section 5.10. Attorneys' Fees. If either party hereto files any action or brings any
action or proceeding against the other arising out of this Agreement, seeks the resolution of disputes
pursuant to Section 4.02 hereof, or is made a party to any action or proceeding brought by the
Escrow Agent, then as between the Purchaser and the Agency, the prevailing party shall be entitled
to recover as an element of its costs of suit or resolution of disputes pursuant to Section 4.02 hereof,
and not as damages, its reasonable attorneys' fees as fixed by the Court or other forum for resolution
of disputes as set forth in Section 4.02 hereof, in such action or proceeding or in a separate action
or proceeding brought to recover such attorneys' fees. The costs, salary and expenses of the City
Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys'
fees" for purposes of this Section.
Section 5.11. Effect. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
ARTICLE VI
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 6.01. Entire Agreement.
(a) This Agreement shall be executed in four (4) duplicate originals each of which
is deemed to be an original.
(b) This Agreement integrates all of the terms and conditions mentioned herein
or incidental hereto, and supersedes all negotiations or previous agreements between the parties with
respect to all or any portion of the Property and the development thereof.
(c) None of the terms, covenants, agreements or conditions set forth in this
Agreement shall be deemed to be merged with the grant deed conveying title to the Property, and this
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Agreement shall continue in full force and effect before and after such conveyance until that date
which is the five-year anniversary of the Close of Escrow,
(d) All waivers ofthe provisions of this Agreement and all amendments hereto
must be in writing and signed by the appropriate authorities of the Agency and the Purchaser.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the dates set forth below.
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date:
Rv7vJ2 f ~
Frank Schnetz, Acting Chairman
Community Development Commission
City of San Bernardino
Da'eo /r Iff /
(
By:
APPROVED AS TO FORM:
Agency Special Counsel
PURCHASER
NEW HOPE MISSIONARY BAPTIST
CHURCH
Date: / l/; fJ ( tJ/1
Date: /2/10/0/.
/ I
BY~ )f~%y:;~
Pastor
By: ~~~
fJ'llVCimrCR Clerk 1f~1J,~~ .\4J\.~
[All Signatures Must Be Notarized]
8B2001:34845.1
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
5B2001 :22036.2
Exh. "A" - 1
CDC/2001-49
EXHIBIT "B"
AGENCY GRANT DEED
SB2001 :22036.2
Exh. "B" - 1