HomeMy WebLinkAboutCDC/2002-08
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RESOLUTION NO. CDC/2002-8
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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 EXCLUSIVE RIGHT TO NEGOTIATE FOR
PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE (ESSEX
REALTY MANAGEMENT, INC.) BY AND BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND ESSEX REALTY
MANAGEMENT, INC., 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 certain real property situated in the Central City South Redevelopment Project Area of
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the Agency and consisting of approximately 15.26 acres, generally located at the intersection
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of Orange Show and Arrowhead in the City of San Bernardino and more specifically
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described in the legal description and vicinity map attached hereto as Exhibit "A" and
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incorporated herein by this reference (the "Property"); and
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WHEREAS, Essex Realty Management, Inc. (the "Developer") is interested in
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determining the feasibility of acquiring the Property for redevelopment with commercial and
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industrial uses and developing a specific description of such uses in the form of a single
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master development plan (the "Project"); and
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WHEREAS, the Agency, currently, deems the disposition and redevelopment of the
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Property to be integral to the implementation of the Central City South Redevelopment Plan
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and the Developer appears to the Agency to be well qualified to undertake the task of
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planning the details of the acquisition of the Property by the Developer from the Agency and
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the redevelopment of the Project on the Property in a manner compatible with the objectives
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of the Implementation Plan for the Agency's Central City South Redevelopment Project Area;
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and
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WHEREAS, the Agency staff prepared a proposed Exclusive Right to Negotiate for
Property Acquisition and Redevelopment Assistance (Essex Realty Management, Inc.) by and
between the Agency and the Developer (the "Agreement") to provide an exclusive period for
the Developer to assess the feasibility of developing the Project on the Property and, possibly,
negotiate a Disposition and Development Agreement with the Agency for acquisition of the
Property; and
WHEREAS, it is appropriate for the Commission to take action with respect to the
Agreement, as set forth in this Resolution.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION, AS
THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
FOLLOWS:
Section 1. On February 4, 2002, the Commission considered the Agreement at
regular, open, public meeting of the Commission. The minutes of the Agency Secretary for th
February 4, 2002 regular meeting of the Commission shall include a record of all documents an
communication submitted to the Commission by interested persons relating to the consideratio
of the Agreement.
Section 2. A copy of the Agreement in the form submitted at the February 4, 2002
meeting is on file with the Agency Secretary.
Section 3. The Commission hereby finds and determines that no change in the use 0
the Property or any activities on the Property will occur, under the terms and conditions of th
Agreement and that the planning and negotiating activities to occur under the Agreement presen
no potential significant effect on the environment. The Agreement merely provides for a
exclusivity period for gathering information, analysis of information and potential negotiation.
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The Agreement does not constitute a "Project" within the provisions of the Californi
2 Environmental Quality Act ("CEQA"), as amended, and no environmental review is required i
3 association with approval of the Agreement.
4 Section 4. The Commission hereby approves the Agreement as submitted at th
5 February 4, 2002, meeting. The Executive Director is hereby authorized and directed to execut
6 the Agreement on behalf of the Agency together with such technical and conforming changes a
7 may be approved by the Executive Director and Agency Special Counsel. If the Agreement i
8 not fully executed by the parties for any reason within ninety (90) days following the date 0
9 adoption of this Resolution, the authorization granted herein to the Executive Director to execut
10 the Agreement on behalf of the Agency shall be of no further force or effect.
11 Section 5. Provided that the Agreement is fully executed by the parties within th
12 period of time set forth in Section 4 of this Resolution, the Executive Director of the Agency i
13 hereby authorized and directed to take all actions set forth in the Agreement on behalf of th
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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 EXCLUSIVE RIGHT TO NEGOTIATE FOR
PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE (ESSEX
REALTY MANAGEMENT, INC.) BY AND BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND ESSEX REALTY
MANAGEMENT, INC., ON THE TERMS SET FORTH IN SUCH AGREEMENT
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
7 Development Commission of the City of San Bernardino at a j t. reg. meeting thereof, held
8 on the 4 th day of February , 2002, by the following vote to wit:
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10 Commission Members: Ayes Navs Abstain Absent
11 ESTRADA X
LIEN x
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MCGINNIS x
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SCHNETZ X
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SUAREZ X
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ANDERSON ~
16 MC CAMMACK ~
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The foregoing resolution is hereby approved this
February
,2002.
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, Chairperson
Development Commission
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THE REDEVELOPMENT ~K-CIT'( CLERK
OF THE CITY OF SAN BE~\1un~o
'OZ FED 21 P2 :19
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EXCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY
ACQUISITION AND REDEVELOPMENT ASSISTANCE
(ESSEX REALTY MANAGEMENT, INC.)
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THIS EXCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY ACQUISITION AND
REDEVELOPMENT ASSISTANCE is dated as of January _,2002 (this "Agreement") and is
entered into by and between ESSEX REALTY MANAGEMENT, INC., a California corporation
(the "Developer"), and the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and politic, pursuant to Health and Safety Code
Sections 33000, et seq. (the "Agency"), to coordinate mutual feasibility assessment, development
planning and consideration of the sale, acquisition and redevelopment by the Developer of
certain real property presently owned by the Agency, situated in the Central City South
Redevelopment Project Area of the Agency and consisting of approximately 15.26 acres,
generally located at the intersection of Orange Show Road and Arrowhead 2\ venue in the City of
San Bernardino and ,more specifically described in the legal description and vicinity map
attached hereto as Exhibit "A" and incorporated herein by this reference (the "Property").
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND
PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY
AGREE, AS FOLLOWS:
1. Developer Acknowledgments.
a. The Developer hereby acknowledges and agrees that no provision of this
Agreement shall be deemed to be an offer by the Agency nor an acceptance by the Agency of
any offer or proposal from the Developer to convey any interest in the Property to the Developer.
Any studies relating to the Property or the Project (as defined herein) that may be undertaken by
the Developer, in its discretion shall be the sole responsibility of the Developer and shall not be
deemed to be undertaken for the benefit of the Agency.
b. Restrictions Against Change in Ownership. Management and Control of
Developer and Assignment of Agreement.
(1) The qualifications and identity of the Developer and its principals
are of particular concern to the Agency. The Agency relied on these qualifications and identity
in entering into this Agreement with the Developer. During the term of this Agreement, no
voluntary or involuntary successor-in-interest of the Developer shall acquire any rights or powers
under this Agreement. The Developer shall not assign all or any part of this Agreement or any
rights hereunder, without the prior written approval of the Agency Executive Director, which the
Agency Executive Director may grant or refuse in his or her sole and absolute discretion.
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(2) The Developer shall promptly notify the Agency in writing of any
and all changes whatsoever in the identity of the business entities and individuals either
comprising or in controJ of the Developer, as well as any and all changes in the interest or the
degree of control of the Developer by any such party, of which information the Developer or any
of its partners or officers have been notified or may otherwise have knowledge or information.
Upon the occurrence of any significant or material change, whether voluntary or involuntary, in
membership, ownership, management or control ofthe Developer (other than such changes
occasioned by the death or incapacity of any individual) that has not been approved in writing by
the Agency Executive Director, prior to the time of such change, the Agency may terminate this
Agreement by serving written notice of such termination, referencing this section, on the
Developer.
2. Term of Agreement. The rights and duties of the parties established by this
Agreement shall commence on the seventh (7th) calendar day following both the approval of this
Agreement by the governing body of the Agency and the acceptance of this Agreement by the
Developer, as provided in Section 21 (the "Effective Date"). This Agreement will continue in
effect for a maximum time period not to exceed one hundred eighty (180) days, in accordance
with the following activities to be completed by the Developer:
a. The following work shall be completed by the Developer, within the first
two (2) weeks following the Effective Date:
(1) Development of a financial feasibility study/analysis for the
development of the Project (as defined herein) on the Property, including an estimate of project
costs, project income and a proforma statement of Project capital return including, without
limitation, the following:
(a) projections of Project income and operating expenses;
(b) projections of debt and equity that can be drawn from the
Project;
(c) Project cash flow projections;
(d) projections of public (City, State and Federal) financial
assistance anticipated for the Project;
(e) projections of overall Project value, revenue, sales and
property taxes;
(f) projections of the costs and benefits to the City and the
Agency for all construction, maintenance and operations of
all proposed public improvements, the costs of additional
or increased levels of public services and any new public
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revenues anticipated to be generated by the Project, by
phase, if applicable, and upon completion ofthe Project.
Project.
(2) Development of the conceptual site planning and imaging for the
b. The following additional work shall be completed by the Developer,
within the first six (6) weeks following the Effective Date:
(I) Development of tenant marketing materials and contracts,
including, without limitation, the following:
(a) Demographic and economic data.
(b) Vicinity and area maps (to include completion maps);
(2) a proposed conceptual development plan for the Project on the
Property, including, without limitation:
(a) proposed land use categories on a parcel-by-parcel basis,
including any proposed zoning and General Plan changes,
if any, necessary to accommodate the Project;
(b) a proposed time schedule and cost estimates for the
development of proposed public and private infrastructure
upgrades, development of parking spaces, development of
other proposed publicly owned facilities, public
improvements, public infrastructure and private
development; and
(c) a proposed financing plan identifying financing sources for
all private and public improvements proposed in the
Proj ect, by phase, if appropriate;
(3) a list of potential users or tenants and anticipated lease rates and resale land
prices, including, without limitation, initial tenant contracts, if applicable;
c. The Developer shall determine whether the Project is feasible for the
Developer within the first two (2) months following the Effective Date. If the Developer
determines the Project is feasible, it shall so inform the Agency Executive Director in writing
before the expiration ofthe first ten (10) weeks following the Effective Date. Thereafter, the
Developer and the Agency may proceed to negotiate the final form of a Disposition and
Development Agreement with respect to the Property (the "Property DDA").
d. The Developer shall submit each of the items of information described in
this section to the Agency Executive Director, within the time periods set forth above. Within
ten (10) days of receipt of any such information, the Agency Executive Director shall determine
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whether such information is satisfactory, in the Agency Executive Director's sole and absolute
discretion. If the specific item of information is satisfactory to the Agency Executive Director,
he or she shall notify the Developer in writing that this Agreement shall continue in effect, until
the deadline for the submission of the next item of information, as set forth above. If the specific
item of information is unsatisfactory to the Agency Executive Director, he or she shall notify the
Developer in writing of the reason(s) that the information is unsatisfactory and that this
Agreement is suspended, until the Developer re-submits the information in a satisfactory form
and receives the written approval ofthe Agency Executive Director. If the Agency Executive
Director does not make a determination regarding any item of information submitted by the
Developer under this Section 2, within ten (10) days of receipt of such information, the
information shall be deemed approved. If the Developer fails to timely submit any of the
information set forth above, this Agency may elect, in its sole and absolute discretion, to
terminate this Agreement by serving written notice of such termination, referencing this section,
on the Developer. The approvals to be issued by the Agency Executive Director under this
subsection only relate to the continuance, suspension or termination ofthe term of this
Agreement and in no way bind or constitute the approval ofthe Agency regarding, without
limitation, plans, specification, engineering, architecture, uses, tenants, sale prices, rental rates,
the Project or the Property DDA.
e. This Agreement shall automatically terminate, without further notice or
action, and be of no further force or effect at the end ofthe sixth (6th) month following the
Effective Date, unless prior to that time:
(1) the parties execute the Property DDA for a specific program of
disposition and redevelopment of the Property to be undertaken by
the Developer, other relevant community redevelopment covenants
acceptable to the Agency and such other terms and conditions
mutually acceptable to the parties, in which case this Agreement
will terminate on the effective date of the Property DDA; or
(2) the parties each agree to extend the term ofthis Agreement to a
specific date, subject to the Agency first making a finding that
satisfactory progress is being made to complete the activities to be
performed by the Developer set forth in Section 2, as determined in
the sole and absolute discretion ofthe Agency Executive Director;
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(3)
the Agency terminates this Agreement under subsection d, above.
h. The initial term of this Agreement (and all extensions oftime approved by
the Agency) is referred to in this Agreement as the "Negotiation Period".
3. The Proiect. The Developer shall take all reasonable actions required or
necessary for determining the feasibility of the redevelopment of the Property for the
development of commercial and industrial uses on the Property and development of a specific
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description of such uses in the form of a single master development plan, at the Developer's sole
cost and expense (the "Project").
4. Obligati~ns of the Developer. During the Negotiation Period, the Developer shall
proceed diligently and in good faith to:
a. Review and provide legitimate comments on draft versions of the Property
DDA and, if acceptable to the Developer, submit an executed copy of the final form of the
Property DDA to the Agency Executive Director by a date no later than six (6) months following
the Effective Date (or such later date corresponding to an authorized extension of the
Negotiation Period).
b. Keep the Agency advised on the progress of the Developer in completing
its obligations under this Agreement, on a regular basis or as requested by Agency staff.
c. Pay all fees and expenses for engineers, architects, financial consultants,
attorneys, planning and other consultants and contractors as required for the Developer to
perform the Developer's obligations under this Agreement. The Agency shall not be obligated to
payor reimburse any costs or fees incurred by the Developer to perform the Developer's
obligations under this Agreement, whether or not this Agreement is terminated early or extended
through its potential term.
5. Agency Not To Negotiate With Others.
a. The Agency, currently, deems the disposition and redevelopment of the
Property to be necessary and the Developer appears to be well qualified to undertake the task of
planning the details of the sale ofthe Property by the Agency to the Developer and the
redevelopment of the Project on the Property in a manner compatible with the objectives ofthe
Agency's Central City South Redevelopment Plan.
b. During the Negotiation Period, the Agency shall not negotiate with any
other person or entity regarding either the disposition of the Property or the redevelopment of the
Project on the Property. The term "negotiate", as used herein, shall be deemed to preclude the
Agency from accepting any other offer or proposal from a third party to either acquire any
interest in the Property (in whole or in part) or redevelop the Property, and from discussing other
redevelopment proposals for the Property with third persons or entities; provided, however, any
person may submit and the Agency may consider any proposal for the disposition and/or
redevelopment of any lands adjacent to the Property.
c. Notwithstanding any other provision ofthis Agreement, during the
Negotiation Period, the Agency shall not be precluded from furnishing to persons or entities
unrelated to the Developer information in the possession of the Agency relating to the
redevelopment of any other land owned or controlled by the Agency in close proximity to the
Property and related to the implementation of the Central City South Redevelopment Plan.
Implementation of the Central City South Redevelopment Plan shall remain in the sole and
exclusive purview of the Agency. The Agency may also provide any other information in its
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possession that would customarily be furnished to persons requesting information from the
Agency concerning its activities, goals, and matters of a similar nature or as required by law to
be disclosed, upon request.
6. Agency Cooperation. During the Negotiation Period, the Agency shall use its
best efforts to:
a. Assemble, at the request and sole expense of the Developer, written
materials and documents relating to the Property that are in the possession of the Agency. The
Agency shall also provide appropriate comment to the Developer with respect to one or more
conceptual development plans, as may be proposed by the Developer for the Project, and the
redevelopment of the Property, including, but not limited to, conceptual plans or studies of
vacation, realignment or abandonment of public property and facilities, the installation and
improvement of public improvements and environmental evaluation of the Project.
b. Provide the Developer with limited access to the Property, during the
Negotiation Period, for the purpose of conducting customary due diligence investigations
thereon, including environmental investigations of the subsurface or any structure thereon,
subject to the terms and conditions of a separate environmental investigation and inspection
license agreement to be agreed upon by the Agency and the Developer, at some later date, if
applicable.
7. Negotiation of Property DDA. During the Negotiation Period, the Agency and
the Developer shall negotiate diligently and in good faith to prepare and enter into the Property
DDA. Both ofthe parties shall exercise best efforts to complete discussions relating to the final
terms and conditions of the Property DDA and such other matters, as may be mutually
acceptable to the parties for the redevelopment of the Project on the Property, prior to the
expiration of the Negotiation Period.
8. Consideration for this Agreement and Reservation of Rights. In consideration for
the Agency's entering into this Agreement, the Developer will undertake its obligations under
this Agreement and provide the Agency with copies of all studies and reports and other
information generated by the Developer or its consultants regarding the Project or the Property.
The parties agree that, if this Agreement terminates for any reason, the Agency fails to extend the
Negotiation Period, or the Property DDA is not finally approved by the Agency, for any reason,
neither party shall be under any further obligation to the other regarding the disposition,
acquisition, reuse, redevelopment or development of the Project or the Property.
9. Planning and Design - Related Acknowledgments of the Parties. Certain
development standards and design controls for the Project may be established between the
Developer and the Agency in negotiation of or in the final form of the Property DDA, but it is
understood by both parties that the Project and the redevelopment of the Property must conform
to City of San Bernardino development, design and architectural standards. The Agency shall
fully cooperate with the Developer's professional associates in providing information and
assistance in connection with the Developer's preparation of drawings, plans and specifications.
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Nothing in this Agreement shall be considered approval of any plans or specifications for the
Project or the Project itself by either the Agency or the City.
10. Developer Financial Disclosures. The Developer acknowledges that it may be
requested to make certain confidential financial disclosures to the Agency, its staff or legal
counsel, as part of the financial due diligence investigations ofthe Agency relating to the
potential disposition ofthe Property to the Developer. The parties recognize that such financial
disclosures may contain sensitive information relating to other business transactions of the
Developer, that the disclosure of such information to third parties could impose commercially
unreasonable and/or anti-competitive burdens on the Developer and, correspondingly, diminish
the value or fiscal benefit that may accrue to the Agency upon the disposition of the Property to
the Developer, if terms for such disposition are mutually agreed upon. Accordingly, the Agency
agrees to maintain the confidentiality of any business records described in Government Code
Section 6254.15, as may be provided by the Developer to the Agency or its consultants, to the
maximum extent permitted by law. The Agency shall not provide a copy of any business record
protected from disclosure under Government Code Section 6254.15 to a third party, unless the
Developer first consents to such disclosure in writing or, unless a court of competent jurisdiction
compels disclosure.
11. Developer Acquires No Interest in Real Property or in the Property from the
Agency. The Developer hereby acknowledges that it has not acquired and will not acquire, by
virtue ofthe terms ot-this Agreement, any legal or equitable interest in real or personal property
from the Agency.
12. Nondiscrimination. The Developer shall not discriminate against nor segregate
any person or group of persons on account of race, color, creed, religion, sex, marital status,
handicap, national origin or ancestry in undertaking its obligations under this Agreement.
13. Compliance with Law. The Developer acknowledges that the Property DDA, if
mutually agreeable terms are established, is likely to require the Developer (among other things)
to carry out the construction of certain improvements in conformity with all applicable laws,
including all applicable planning and zoning laws, environmental planning and safety laws and
federal and state labor and wage laws.
14. Required Approvals. No Property DDA between the parties shall have any force
or effect nor shall the Agency be deemed to be a party to any agreement for the disposition of
real or personal property to the Developer, until the terms and conditions of the Property DDA
are considered and approved by the governing body of the Agency, following the conclusion of a
public hearing, as required by law.
15. Press Releases. The Developer agrees to discuss any press releases it may
propose relating to the Property with the Agency Executive Director or hislher designee, prior to
publication, to assure accuracy and consistency of the information.
16. Notices. All notices required hereunder shall be presented in person or delivered
by a nationally recognized overnight courier or shall be sent by FAX or by first class United
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States mail, postage prepaid, return receipt requested. Each such notice shall be deemed
received and effective (i) ifby personal delivery or delivery by overnight courier, upon such
delivery; (ii) if given by FAX, when such FAX is transmitted to the FAX number specified
below; and (iii) if given. by mail, 72 hours after deposit thereof in the United States mail
addressed as set forth below. Either party may change its address for receipt of notice by
notifying the other party in writing.
TO DEVELOPER:
Essex Realty Management, Inc.
Attn: Burrell Magnusson
Telephone: (714) 540-5188
FAX: (714) 540-3741
TO AGENCY:
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attn: Gary Van Osdel, Executive Director
Telephone: (909) 663-1044
FAX: (909) 888-9413
17. Acceptance of Agreement by the Developer. The Developer shall acknowledge
its acceptance of this Agreement by delivering two (2) counterpart executed copies of this
Agreement signed by at least two (2) authorized officers of the Developer, on or before the
seventh (7th) calendar day following the approval of this Agreement by the governing body of
the Agency.
18. Authority. Each signatory to this Agreement represents and warrants that he or
she has the authority to execute this Agreement on behalf of the principal whom he or she
purports to represent.
19. Disputes. If a dispute arises between the parties to this Agreement, the parties
hereto agree to use the following procedure to resolve such dispute, prior to pursuing other legal
remedies:
a. A meeting shall be held promptly between the parties that will be attended
by executive-level individuals representing each ofthe parties hereto, who will attempt in good
faith to negotiate a resolution of the dispute.
b.
above, they may:
If the parties are unsuccessful in resolving the dispute under subsection a,
(1) agree to submit the matter to mediation or binding arbitration or a private
adjudicator (ifboth the Developer and the Agency so agree); or
(2) initiate litigation upon forty five (45) days prior written notice to the other party.
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c. If any party should bring an action against the other(s) to enforce the terms
ofthis Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees
and costs, as determined by a court of competent jurisdiction in said proceeding. The costs,
salary and expenses of the City Attorney and members of his Office in enforcing this Agreement
on behalf of the Agency shall be considered as "attorney's fees" for the purpose of the
paragraph.
20. Default. If a party fails to fulfill any material obligation of this Agreement, the
other party may give written notice to that party of such failure and, if that party fails to remedy
such failure within ten (10) calendar days of receipt of such notice, the notifying party may
terminate this Agreement by a second written notice and/or pursue whatever other legal or
equitable remedies are available.
21. Governing Law: Venue. The parties hereto acknowledge that this Agreement has
been negotiated and entered into in California. The parties hereto expressly agree that this
Agreement shall be governed by, interpreted under, and construed and enforced in accordance
with the laws of the State of California. Further, the parties to this Agreement hereby agree that
any legal actions arising from this Agreement shall be filed in California Superior Court, in the
Court of San Bernardino, Central District.
22. Partial Invalidity. If any term, provision or portion of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term or provision or
portion thereof to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each such term and provision of this Agreement
shall be valid and enforced to the fullest extent permitted by law.
23. No Intent to Create Third Party Beneficiaries. The parties intend that the rights
and obligations under this Agreement shall benefit and burden only the parties hereto, and do not
intend to create any rights in, or right of action to or for the use or benefit of any third party,
including any governmental agency, who is not one ofthe parties to this Agreement.
24. Waivers. No waiver of any breach of any covenant or provision herein contained
shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other
covenant or provision herein contained. No extension of the time for performance of any
obligation or act to be performed herein shall not be deemed to be an extension of the time for
performance of any other obligation or act to be performed under this Agreement.
25. Entire Agreement. This Agreement (including all Exhibits attached hereto) is the
final expression of, and contains the entire agreement between, the parties with respect to the
subject matter hereof and supersedes all prior understandings with respect thereto. This
Agreement may not be modified, changed, supplemented or terminated, nor may any obligations
hereunder be waived, except by written instrument signed by the party to be charged or by its
agent duly authorized in writing or as otherwise expressly permitted herein. This Agreement
may be executed in one or more counterparts, each of which shall be an original, and all of which
together shall constitute a single instrument.
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26. Time of Essence. Time is strictly ofthe essence with respect to each and every
term, condition, obligation and provision hereof and that failure to timely perform any of the
terms, conditions, obligations or provisions hereof by either party shall constitute a material
breach of and a non-curable (but waivable) default under this Agreement by the party so failing
to perform.
27. Construction. Headings at the beginning of each section, paragraph and
subparagraph are solely for the convenience of the parties and are not a part of this Agreement.
Whenever required by the context ofthis Agreement, the singular shall include the plural and the
masculine shall include the feminine and vice versa. This Agreement shall not be construed as if
it had been prepared by one ofthe parties, but rather as ifboth parties had prepared the same.
Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred
to in this Agreement are attached hereto and incorporated herein by this reference.
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IN WITNESS WHEREOF, Essex Realty Management, Inc., and the Redevelopment
Agency of the City of San Bernardino execute this Exclusive Right to Negotiate for Property
Acquisition and Redevelopment Assistance on the dates indicated next to each of the signatures
of their authorized representatives as appear below.
DEVELOPER
Essex Realty Management, Inc.,
a California corporation
Dated: ~. ,'1 It) z...
By:
Its
AGENCY
Date: 2- //7' ~ 7-
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Redevelopment Agenc
City of ~J;iBernard' 0
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APPROVED AS TO FORM:
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EXHIBIT "A"
Legal Description of the Property
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