HomeMy WebLinkAboutCDC/2002-12
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RESOLUTION NO:
CDC/2002-12
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND
AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE
AMENDMENT NO. 3 TO DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO AND HI-WAY AUTO RECYCLERS,
LLC
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WHEREAS, the Community Development Commission of the City of San Bernardino
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(the "Commission") is the governing body of the Redevelopment Agency of the City of San
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Bernardino (the "Agency"), a public body corporate and politic, organized and existing
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pursuant to the Community Redevelopment Law (California Health and Safety Code Section
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33000, et seq.); and
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WHEREAS, the Agency and Hi-Way Auto Recyclers, LLC, a California limited
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liability company (the "Developer") entered into that certain 2000 Disposition and
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Development Agreement dated as of August 14, 2000 (the "2000 Disposition and
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Development Agreement") for the purpose of implementing the Redevelopment Plan for the
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Northwest Redevelopment Project by providing for the purchase and redevelopment of
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certain unimproved lands by the Developer (the "Property"); and
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WHEREAS, the Developer encountered unexpected delays in completing its due
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diligence investigation regarding the Property and requested that certain provisions of the
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2000 Disposition and Development Agreement be amended to extend the period of time in
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which the Developer's due diligence investigation of the Property was to be completed; and
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WHEREAS, the Agency approved an amendment ("Amendment No.1") to the 2000
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Disposition and Development Agreement (the 2000 Disposition and Development
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Agreement as amended by Amendment No. 1 being hereinafter referred to as the "Amended
2000 Disposition and Development Agreement"), extending the period of time in which the
Developer's due diligence investigation of the Property was to be completed; and
WHEREAS, on July 26,2001, the Developer delivered to the Agency its Due Diligence
Approval Certificate (as that term is defined in the Amended 2000 Disposition and
Development Agreement) with respect to the Property; and
WHEREAS, the Amended 2000 Disposition and Development Agreement provided
that the Closing Date (as that term is defined in the Amended 2000 Disposition and
Development Agreement) of the escrow established in connection with the sale of the
Property by the Agency to the Developer (the "Escrow") was to be sixty (60) days after
delivery of the Due Diligence Approval Certificate; and
WHEREAS, the Amended 2000 Disposition and Development provided that on or
before 12:00 noon on the business day preceding the Closing Date, the Developer was to
deliver to the Escrow Holder (as that term is defined in the Amended 2000 Disposition and
Development Agreement), among other things, evidence of construction financing in favor of
the Developer already funded for the Project (as that term is defined in the Amended 2000
Disposition and Development Agreement); and
WHEREAS, subsequent to the delivery by the Developer of the Due Diligence
Approval Certificate, the Developer requested an extension of the period of time between
delivery of the Due Diligence Approval Certificate and the Closing Date so that it could meet
its obligation to deliver evidence of construction financing already funded for the Project;
and;
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WHEREAS, the Developer has now requested a further extension of the period of time
between delivery of the Due Diligence Approval Certificate and the Closing Date so that it
can meet its obligation to deliver evidence of construction financing already funded for the
Project and, as additionally required by the Agreement, deliver evidence of the ability of the
Developer to obtain building permits from the City of San Bernardino and any other required
permits, licenses or approvals for the Project; and
WHEREAS, the Agency is willing to extend further the period of time between
delivery of the Due Diligence Approval Certificate and the Closing Date; and
WHEREAS, Amendment No.3 to the DDA ("Amendment No.3") has been presented
to this Commission for approval.
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:
Section 1.
The Commission hereby approves Amendment No.3 attached hereto as
Exhibit "A".
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Section 2. The Executive Director of the Agency is hereby authorized to execute
Amendment No.3 on behalf of the Agency in substantially the form attached hereto, together
with such changes therein as may be approved by the Executive Director and Agency Special
Counsel. The Executive Director or such other designated representative of the Agency is
further authorized to do any and all things and take any and all actions as may be deemed
necessary or advisable to effectuate the purposes of Amendment No.3.
Section 3. This Resolution shall become effective immediately upon its adoption.
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CDC/2002-12
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING
AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE
AMENDMENT NO. 3 TO DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO AND HI-WAY AUTO
RECYCLERS, LLC
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission of the City of San Bernardino at a j oint regular
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meeting
thereof, held on the 4 th
, 2002, by the following vote, to wit:
March
day of
11 Commission
ESTRADA
12 LIEN
MCGINNIS
13 DERRY
SUAREZ
14 ANDERSON
McCAMMACK
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AYES
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ABSENT
ABSTAIN
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RDA ASSESSOR'S EXISTING GENERAL PLAN AREA THOMAS GUIDE"
PROJECT NUMBER LAND USE LAND USE DESIGNATION PAGE " GRID
Wilhin Norlhwest
Project
{lndlIstriaJ Alea) 266.c72-91 Vacant Land IH - Hea Industrial 3.61 Ac. PM. 546 A-5
vy
"Thomas Guide San Bernardino County, 1997 Edition
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2 EXHIBIT" A"
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3 AMENDMENT NO.3
TO
4 2000 DISPOSITION AND DEVELOPMENT AGREEMENT
(Hi-way Auto Recyclers)
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SB2002\497.1
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1 RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
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REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, California 92401
(Space Above Line for Use By Recorder)
AMENDMENT NO.3
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
HI- WAY AUTO RECYCLERS, LLC
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CDC/2002-12
AMENDMENT NO.3
TO
2000 DISPOSITION AND DEVELOPMENT AGREEMENT
(Hi-Way Auto Recyclers)
THIS AMENDMENT NO.3 TO 2000 DISPOSITION AND DEVELOPMENT
AGREEMENT (Hi-Way Auto Recyclers) dated as of March 4, 2002 ("Amendment No.3")
is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, a public body corporate and politic (the "Agency"), and HI- WAY
AUTO RECYCLERS, LLC, a California limited liability company (the "Developer"). The
Agency and the Developer enter into this Amendment No.3 with reference to the following
facts:
RECITALS
WHEREAS, the Agency and the Developer entered into that certain 2000 Disposition
and Development Agreement (Hi-Way Auto Recyclers), dated as of August 14,2000 (the
"2000 Disposition and Development Agreement"), with respect to that certain unimproved
property generally situated at Industrial Parkway (the "Property"); and
WHEREAS, the Agency and the Developer subsequently entered into that certain
Amendment No.1 to 2000 Disposition and Development Agreement dated as of February
1, 2001 ("Amendment No.1") pursuant to which the period of time in which the
Developer's due diligence investigation ofthe Property was to be completed was extended
(the 2000 Disposition and Development Agreement as amended by Amendment No.1
being hereinafter referred to as the "Amended 2000 Disposition and Development
Agreement"); and
WHEREAS, the Agency and the Developer subsequently entered into that certain
Amendment No.2 dated as of October 15, 2001 to Amended 2000 Disposition and
Development Agreement (the Amended 2000 Disposition and Development Agreement as
amended by Amendment No.2 being hereinafter referred to as the "Agreement") providing
that the Closing Date (as that term is defined in the Agreement) of the escrow established in
connection with the sale of the Property by the Agency to the Developer (the "escrow")
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CDC/2002-12
shall occur within two hundred forty five (245) days of the delivery by the Developer of
the Due Diligence Approval Certificate (as that term is defined in the Agreement; and
WHEREAS, on July 26, 200 I, the Developer delivered the Due Diligence Approval
Certificate; and
WHEREAS, the Agreement provides that on or before 12:00 noon on the business
day preceding the Closing Date, the Developer must deliver to the Escrow Holder (as that
term is defined in the Agreement) evidence of construction financing in favor of the
Developer already funded for the Project (as that term is defined in the Agreement) and
evidence of the ability of the Developer to obtain building permits from the City of San
Bernardino and any other required permits, licenses or approvals for the Project; and
WHEREAS, the Developer has requested an extension ofthe period oftime between
delivery ofthe Due Diligence Approval Certificate and the Closing Date so that it can meet
its obligation to deliver evidence of construction financing already funded for the Project
and evidence ofthe ability ofthe Developer to obtain building permits from the City of San
Bernardino and any other required permits, licenses or approvals for the Project; and
WHEREAS, the Agency is willing to extend the period of time between delivery of
the Due Diligence Approval Certificate and the Closing Date.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND SUCH
OTHER GOOD AND VALUABLE CONSIDERATION RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED BY THE PARTIES, THE AGENCY AND THE
DEVELOPER AGREE AS FOLLOWS:
TERMS
Section 1. The Recitals set forth above are hereby incorporated into this
Amendment No.3 by this reference, as though fully set forth herein.
Section 2. Except as hereby amended, the Agreement is in all respects ratified
and confirmed and all the terms and provisions and conditions thereof shall be and remain
in full force and effect.
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Section 3. Section 2.03( c) ofthe Agreement is amended to read in its entirety as
follows:
"(c) Provided that the Developer has delivered its Due Diligence Approval
Certificate within the period of time authorized in Section 2.03(b), then the
Closing Date of the Escrow shall occur on or before that date which is the
first anniversary of the date the Due Diligence Approval Certificate is
delivered by the Developer to the Agency, 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 ofthe Purchase Price and the related Escrow documents
of the parties and the Escrow Holder is in a position to comply with the final
written escrow closing instructions of the parties and cause the Agency
Grant Deed for the Property to be recorded and the policy of title insurance
for the Property to be delivered to the Developer."
Section 4.
follows:
Section 2.17 of the Agreement is amended to read in its entirety as
"Section 2.17. The Agency's Conditions Precedent to Close of Escrow. The
Agency's obligation to convey the Property to the Developer shall be conditioned upon
the fulfillment 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) the Developer has accepted the condition ofthe Property and
submitted its Due Diligence Approval Certificate to the
Escrow Holder on or before the date set forth in Section 2.10
of this Agreement;
(2) the Developer has accepted the condition of title of the
Property on or before the date set forth in Section 2.13;
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(3) the Developer shall not be in default of any material term of
this Agreement to be performed by the Developer hereunder
and each representation and warranty of the Developer made
in this Agreement shall remain true and correct; and
(4) the Developer shall be satisfied (or waive satisfaction) of
each ofthe conditions precedent set forth in Section 2.16 and
the Escrow shall be in a condition to close within seven
hundred two (702) days following the Opening of Escrow
(subject to Section 2.15, if applicable)."
Section 5. Exhibit "D" (SCHEDULE OF PERFORMANCE) to the Agreement is
amended to read in its entirety as set forth in Exhibit "A" to this Amendment No.3.
Section 6. If any term or provision ofthis Amendment No.3 or the application
thereof to certain circumstances is declared invalid or unenforceable, the remainder of this
Amendment No.3, or the application of the term or provision to circumstances other than
those to which it is declared invalid or unenforceable, will not be affected thereby, and each
term and provision of this Amendment No.3 will be valid and enforceable to the fullest
extent permitted by law.
Section 7. The persons executing this Amendment No.3 warrant that they are
duly authorized to execute this Amendment No.3 on behalf of and bind the parties each
purports to represent.
Section 8. This Amendment No.3 may be executed by the parties hereto in
duplicate originals, each of which shall be considered an original, but all of which together
shall constitute one and the same instrument.
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CDC/2002-12
I IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment
2 No.3 as of the date first above written.
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19 [All Signatures Must Be Notarized]
AGENCY
Redevelopment Agency of the
City cz' erna inO
By, ' ,'. :...." /"
s;ary Van Osdel
(Executive Director
APPROVED AS TO FORM:
---~t
\; (~,'
Agency Specia Counsel
DEVELOPER
Hi-Way A..U.~L~
BY~ .....
Member
By:
Member
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CDCj2002-12
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
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@1999NationaINotaryAssociation.9350 De Soto Ave" P.O. Box 2402. Chatsworth, CA 91313-2402. www.nationalnolary.org
Prod. No. 5907
Reorder: Call Toll-Free 1-800-876-6827
CDC/2002-12
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EXHIBIT "A"
AMENDED EXHIBIT "D" - SCHEDULE OF PERFORMANCE
(Attached)
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IS
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EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Unless otherwise indicated herein, the meaning of words and phrases used in this Schedule
of Performance shall be as set forth in the Agreement.
Within five (5) days following
execution of the Agreement by the
Agency and the Developer
Developer shall deliver to Escrow
Holder the sum ofTen Thousand
Dollars ($10,000.00)
Escrow opened upon receipt by the
Escrow Holder of a fully executed
copy of the Agreement and the
Deposit from the Developer.
Agency shall deliver originals of Due
Diligence Items (Section 2.08)
Within fifteen (15) days of the
Opening of Escrow
Agency shall deliver to the
Developer a preliminary title report
or title commitment for a CL T A
extended coverage policy of title
lllsurance
During Due Diligence Period
Developer must submit development
project site plan approval application
for the Project to the City for City
review and approval
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CDC/2002-12
I Within three hundred thirty seven Developer shall deliver its Due
2 (337) days from the Opening of Diligence Approval Certificate to the
3 Escrow Agency and the Escrow Holder
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Developer shall submit Developer's
5 Title Objection Notice and
6 Developer's Survey Objection
7 Notice, if any, to the Agency
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9 Within five (5) days of receipt of Agency to deliver Agency's Title
10 Developer's Title Objection Notice Notice and Agency's Survey Notice,
II and Developer's Survey Objection if any, to Developer
Notice, if any
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Within five (5) days of receipt of Developer to deliver an acceptance
14 Agency's Title Notice or rejection of the items in the
15 Agency's Title Notice
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17 Within ten (10) days of receipt of Developer to deliver an acceptance
18 Agency's Survey Notice or rejection of the items in the
19 Agency's Survey Notice
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On or before that date which is the The Close of Escrow shall occur
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first anniversary of the date the Due
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Diligence Approval Certificate is
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25 No later than three (3) business days Escrow Holder shall prepare for
26 prior to the Closing Date approval by the Developer and the
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CDC/2002-12
On or before 12:00 noon on the
business day preceding the Closing
Date
At Close of Escrow
Within three (3) business days
following the Closing Date.
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Agency a Closing Statement (Section
2.21)
The Agency shall deliver to the
Escrow Holder a grant deed for the
Property to the Developer
The Agency shall deliver to the
Escrow Holder copies of the
documents set forth in Section 2.06
of the Agreement
The Developer shall deliver to the
Escrow Holder copies of the
documents set forth in Section 2.07
of the Agreement
Developer deposits the balance of the
Purchase Price, less the Deposit
amount, with the Escrow Holder
Escrow Holder shall deliver to
Developer a conformed copy of the
Agency's Grant Deed, as recorded,
and the policy oftide insurance
issued in favor of the Developer
Escrow holder shall deliver to the
Agency the Purchase price, less sums
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Promptly following City approval of
site plan of improvement for the
Project
Within ninety (90) days following
Close of Escrow
Within two hundred seventy (270)
days following commencement of
work of improvement of the Project
Promptly following completion of
improvements to the Property
Developer submits written request to
the Agency for issuance of
Certificate of Completion; but by a
date not later than one (I) year
following Close of Escrow
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paid to discharge any liens, escrow
costs and any prorations chargeable
to the Agency
Developer completes and submits
construction design plans and
specifications to City Building
Department for issuance of necessary
building permits
Developer commences work of
improvement of Project on the
Property
Developer substantially completes
improvement of the Project
Agency issues a Certificate of
Completion to Developer