HomeMy WebLinkAboutCDC/2002-17
(See Compani<mResolutions CDC/2002-18, 2002-121)
RESOLUTION NO.
CDC/2002-17
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RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION APPROVING A CERTAIN REDEVELOPMENT
PARTICIPATION AGREEMENT BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND LAMESA RV
CENTER, INC., (CENTRAL CALIFORNIA)
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WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
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has been presented with a proposal to enter into a certain 2002 Redevelopment Participation
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Agreement with LaMesa RV Center, Inc., ("LaMesa"), for the purpose of increasing
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employment opportunities, encouraging redevelopment activities and economic development
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within the South Valle Redevelopment Project Area of the Agency; and
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WHEREAS, the implementation of said 2002 Redevelopment Participation Agreement
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will encourage the goals and objectives of the Agency by providing employment opportunities
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for the residents of the City of San Bernardino, California (the "City"), and the South Valle
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Redevelopment Project Area for which the Agency shall remit certain annual employment
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subsidy payments to LaMesa based upon the index of financial benefits accruing to the City
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calculated upon the financial performance of the project identified in the 2002 Redevelopment
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Participation Agreement; and
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WHEREAS, the Agency is required pursuant to the 2002 Redevelopment Participation
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Agreement to remit certain payments to LaMesa related to the number of employment
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opportunities generated by the new sales location within the South Valle Redevelopment Project
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Area based upon an index of financial performance of LaMesa which has a direct positive
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financial benefit upon the City General Fund; and
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WHEREAS, the Commission deems it desirable to approve and authorize for execution
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the form of the 2002 Redevelopment Participation Agreement by and between the Agency and
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LaMes a substantially in the form as attached hereto for the purpose of encouraging
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CDC/2002-17
redevelopment activities and economic development and providing increased employment
2 opportunities all as further set forth in the 2002 Redevelopment Participation Agreement.
3 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION, AS
4 THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
5 BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
6 Section 1. The Commission hereby finds and determines that the recitals as contained
7 herein are accurate and correct in all respects.
8 Section 2. The Commission hereby approves the form of the 2002 Redevelopment
9 Participation Agreement substantially in the form as attached hereto with such additional
10 changes and modifications as deemed necessary by the City Attorney to implement the intent of
11 this Resolution and said 2002 Redevelopment Participation Agreement.
12 Section 3. The Commission hereby authorizes the execution of the final form of the
13 2002 Redevelopment Participation Agreement by the Agency Chairperson or Executive
14 Director and the Agency Secretary when such final form thereof has been presented for
15 execution by the City Attorney.
16 Section 4. The approval, execution and implementation of the 2002 Redevelopment
17 Participation Agreement does not constitute a "Project" within the provisions or meaning of the
18 California Environmental Quality Act of 1970, as amended ("CEQA"), and no environmental
19 review is required in connection with the approval, execution and implementation of the 2002
20 Redevelopment Participation Agreement in the manner and with the limitations as set forth
21 therein limiting the liability of the Agency with respect to CEQA and the approval of the 2002
22 Redevelopment Participation Agreement.
23 Section 5. This Resolution shall take effect from and after the date of adoption and shall
24 not be repealed or amended to adversely affect the rights of the parties thereto so long as the
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CDc/2002-17
2002 Redevelopment Participation Agreement remains in effect and requires performance
2 obligations of the parties.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
APPROVING A CERTAIN REDEVELOPMENT PARTICIPATION
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND LAMESA RV CENTER, INC.,
(CENTRAL CALIFORNIA)
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Community Development Commission of the City of San Bernardino at a j t. regular
meeting thereof, held on the 15th day of April, 2002, by the following vote to wit:
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Commission Members: Ayes Nays Abstain Absent
ESTRADA X
LIEN X
MCGINNIS ~
DERRY ~
SUAREZ X
ANDERSON X
MC CAMMACK X
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7Y
The foregoing resolution is hereby approved this I f::T}1
,2002.
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April
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Approved as to form and Legal Content:
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By:
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p:\development dept\lisalresolutions\1
sa-part agmt cdc.doc
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CDC/2002-17,
, ,
REDEVELOPMENT AGENCY OF THE CITY cHE~~
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HAY 20 All :41
2002
REDEVELOPMENT PARTICIPATION AGREEMENT
{LaMesa RV Center, Inc. (Central California))
THIS 2002 REDEVELOPMENT PARTICIPATION AGREEMENT (LaMesa RV
Center, Inc. (Central California)) (this "Agreement") is dated as
of April 15, 2002, and is entered into by and between LaMesa RV
Center, Inc., a California corporation (the "Participant") and
the Redevelopment Agency of the City of San Bernardino, a public
body corporate and politic, exercising governmental functions and
powers, and organized and existing under the Community
Redevelopment Law of the State of California, Health and Safety
Code Sections 33000, et seq. (the "Agency").
FOR GOOD AND VALUABLE CONSIDERATION, THE
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, AND
PROMISES AND COVENANTS OF THE PARTIES SET FORTH
PARTICIPANT AND THE AGENCY HEREBY AGREE, AS FOLLOWS:
RECEIPT AND
THE MUTUAL
HEREIN, THE
SECTION 1. Purpose of Agreement. The purpose of this
Agreement is to provide for the redevelopment and economic reuse
of certain lands (the "Site") and the creation of jobs within the
City by the Participant. The Site is more particularly described
in Attachment "A" to this Agreement, which is incorporated herein
by this reference. The Participant shall acquire a leasehold
interest in the Site, with an option to purchase the Site in the
future, and shall design, construct and finance certain
improvements on the Site, which upon completion, shall be
suitable for operation by the Participant as a regional retail
sales and service facility for new recreational vehicles (the "RV
Store") .
SECTION 2. Defined Terms. In addition to the
certain terms that are defined in other sections
Agreement, the following words and phrases are used
Agreement, as follows, unless the particular context of
a word or phrase requires another interpretation:
usage of
of this
in this
usage of
(a) "Accounting Year" means and refers to the twelve
calendar month time period commencing on the Opening Date and,
thereafter, each successive twelve calendar month period, with
the last Accounting Year ending on the tenth (loth) anniversary
of the Opening Date.
582002: 9967.2
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(b) "City" means the City of San Bernardino.
(c) "New Jobs" means and refers to an aggregate number of
not less than forty (40) new hourly wage, salary or commissioned
employment positions to be created by the Participant on the Site
and, thereafter, maintained, as set forth in Section 10 of this
Agreement.
(d) "New Job" means and refers to each of the hourly wage,
salary or commissioned employment position work descriptions of
each of the employees of the Participant whose work position at
the Site is eligible to be included among the New Jobs for the
purpose of satisfying the New Jobs covenant of the Participant
set forth in Section 10 of this Agreement.
(e) "Opening
opened for retail
public, which date
Date" means the date on which the RV Store is
sales business on the Site to the general
shall be on or before August 1, 2002.
(f) "Permitted Transfer" means and refers to any of the
following types of Transfers by the Participant, where the person
or entity to which such Transfer is made, expressly assumes the
obligations of the Participant under this Agreement in a written
instrument satisfactory to the Agency:
(1) Any Transfer of
Participant that does not
operational control of the Site
stock
change
or the
or equity of
the management
RV Store;
the
or
(2) Any Transfer of any interest in the Participant,
irrespective of the percentage of ownership, or the
Participant's interest in the Site (i) to any other owner of
any interest in the Participant; or (ii) to any affiliate of
or other entity related to the Participant, or (iii) to any
other entity in which any holder of an interest (including
any beneficial interest) in the Participant is a manager, a
shareholder or member (including a beneficial participant);
and
(3) Any Transfer by the Participant of an interest
in one or more of the franchise agreements with
manufacturers of recreational vehicles authorizing the sale
of such recreational vehicles on the Site to a qualified
operator who continues to do business under such franchise
agreement at the Site, subject to the terms and conditions
of this Agreement. The term "qualified operator" means and
refers to any franchisee of a recreational vehicle
manufacturer who has been approved by such recreational
vehicle manufacturer as a transferee of the interest of the
Participant at the Site.
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(g) "RV Store" means the recreational vehicle retail sales
and service business to be conducted on the Site by the
Participant, commencing on or before August 1, 2002.
(h) "Transfer" means and refers to any of the following:
(1) Any total or partial sale, assignment,
conveyance, trust, power, or transfer in any other mode or
form, by the Participant of more than 49% interest (or a
series of such sales, assignments and the like that, in the
aggregate, result in a disposition of more than a 49%
interest) in this Agreement, the Site or the RV Store; or
(2) Any total or partial sale, assignment,
conveyance, or transfer in any other mode or form, of or
with respect to any interest in the Participant (or a series
of such sales, assignments and the like that, in the
aggregate, result in a disposition of more than a 49%
interest); or
(3) Any merger, consolidation, sale or lease of all
or substantially all of the assets of the Participant(or a
series of such sales, assignments and the like that, in the
aggregate, result in a disposition of more than a 49%
interest) .
SECTION 3. Parties to the Agreement.
(a) The parties to this Agreement are the Participant and
the Agency. The City is not a party to this Agreement.
(b) The address of the Participant for purposes of this
Agreement is 7430 Copley Park Place, San Diego, California. As a
condition precedent to the Agency's obligations under this
Agreement, the Participant shall provide the Agency with
satisfactory evidence of the legal formation and existence of the
Participant and the good standing of the Participant to transact
business within the State of California and to occupy, possess
and/or hold title to the Site and the corporate action
authorizing the execution of this Agreement by the persons
signing below on behalf of the Participant.
(c) The Agency is a public body, corporate and politic,
exercising governmental functions and powers, and organized and
existing under the Community Redevelopment Law of the State of
California, Health and Safety Code Section 33000, et seq. The
Agency's address is 201 North "E" Street, Suite 301, San
Bernardino, California.
8B2002: 9967.2
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SECTION 4. Change in Management or Control of the
Participant--Assignment and Transfer.
(a) The Participant hereby acknowledges that the
qualifications and identity of the Participant are of particular
importance to the Agency and that the Agency is relying on the
specific qualifications and identity of the Participant in
entering into this Agreement with the Participant. As a
consequence, Transfers are permitted only as expressly provided
in this Agreement.
(b) Except as expressly permitted in this Agreement, the
Participant shall not create or suffer to be made or created, any
Transfer, either voluntarily or by operation of law, without the
prior written approval of the Agency, prior to the third
anniversary of the Opening Date, other than a Permitted Transfer.
The Participant is not required to give the Agency advance notice
of a Permitted Transfer. Any Transfer made in contravention of
this Section 4 shall be voidable at the election of the Agency
and, if avoided, shall be deemed to be a default under this
Agreement by the Participant, whether or not the Participant knew
of or participated in such Transfer.
(c) For any Transfer, the proposed transferee must
satisfactorily demonstrate successful experience in the
ownership, operation, and management of sales and service
operations comparable in size, quality and volume of sales and
service business activity to the RV Store. All instruments and
other legal documents proposed to effect any Transfer shall be
submitted to the Agency for review, prior to the Transfer, and
the written approval or disapproval of the Agency shall be
provided to the Participant within thirty (30) calendar days of
the Agency's receipt of the Participant's request. Agency
approval of a Transfer shall not be unreasonably withheld,
delayed or conditioned.
582002: 9967.2
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SECTION 5. Participant Solely Responsible for Other
Approvals. The Participant shall be solely responsible for
applying for and obtaining any and all permits and approvals that
may be required by the City or any other governmental agency with
jurisdiction over the Site or the business operations or the RV
Store, before commencement of improvement of any building or
structure on the Site or operation of the RV Store on the Site.
The Participant shall also be solely responsible for obtaining
all necessary consents or approvals required from third-party
property owners or tenants, as may be necessary or appropriate.
SECTION 6. [RESERVED - NO TEXT].
SECTION 7. Participant Representations, Warranties and
Covenants Regarding Other Recreational Vehicle Outlets.
(a) For the purpose of satisfying the requirements of
Health and Safety Code Section 33426.7(e), to the extent
applicable, the Participant hereby represents and warrants to the
Agency that the opening of the RV Store on the Site is not a
"relocation" of the RV Store "within the same market area", as
these terms are defined in California Statutes of 1999, Chapter
462, Section 3.
(b) The Participant for itself, its successors and assigns
hereby covenants and agrees that, from the date of this Agreement
and continuing until the tenth (lOth) anniversary of the Opening
Date, neither the Participant, any successor- in- interest to the
Participant, any person associated with the Participant, nor any
entity related to the Participant will establish a recreational
vehicle retail sales and service facility within a twenty (20)
mile radius of the Site.
SECTION 8. RV Store Operation Covenants of the Participant.
(a) The Participant hereby makes the following
representations, covenants and warranties, as of the date of its
execution of this Agreement, and hereby acknowledges that the
execution of this Agreement by the Agency is made in material
reliance by the Agency on each such covenant, representation and
warranty:
(1) the Participant shall cause the RV Store to be
open for business to the general public on the Site on or
before August I, 2002; and
(2)
actions,
There are no pending or threatened claims,
allegations or lawsuits of any kind, whether for
5B2002: 9967.2
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CDC/2002-17
personal injury, property damage, landlord-tenant disputes,
property taxes or otherwise, that are not covered by
insurance or that expose the Participant to liability of
more than $100,000.00 on any given claim, action, allegation
or lawsuit, or that could materially and adversely affect or
prevent the performance of any provision of this Agreement
by the Participant, nor to the best of Participant's
knowledge, is there any governmental investigation of any
type or nature pending or threatened against the Participant
or any of its principals or relating to the Site, the RV
Store or the transactions contemplated in this Agreement and
the Participant will hold the Agency harmless from any and
all liability, loss, cost and expense resulting from claims
arising or becoming applicable during or as a result of the
Participant's possession or ownership of the Site. For
purposes of this subsection, the phrases "to the best of
Participant's knowledge" or "to Participant's knowledge"
shall mean the actual knowledge of Jim Walters, Executive
Vice President of the Participant, or James Kimbrell,
President of the Participant.
(b) If after the RV Store is open for business, the RV
Store ceases to operate for a continuous period of ninety (90)
calendar days, the obligation of the Agency to pay any Employment
Subsidy to the Participant shall cease for the entire Accounting
Year or Accounting Years in which any part of such extended
cessation of operations of the RV Store occurs.
SECTION 9. Agency Employment Subsidy.
(a) "Site Employment Index" refers to the total amount of
local sales and use taxes paid to the City, under Revenue and
Taxation Code Section 7200, et seq. (as may hereafter be amended,
substituted or modified by any successor local sales and use tax
law), on the gross receipts of the Participant from the sale or
lease of all tangible personal property from the RV Store in each
Accounting Year, in excess of Two Hundred Thousand Dollars
($200,000). The Site Employment Index correlates the amount of
sales and use taxes generated and the number of employees
required to generate such sales and use taxes.
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(b) "Employment Subsidy" means and refers to the amount
derived by multiplying the Site Employment Index -for each
Accounting Year by the following percentages for each respective
Accounting Year:
Accounting Year 1 - 40%
Accounting Year 2 - 50%
Accounting Year 3 - 55%
Accounting Year 4 - 60%
Accounting Year 5 - 65%
Accounting Year 6 - 65%
Accounting Year 7 - 70%
Accounting Year 8 - 70%
Accounting Year 9 - 75%
Accounting Year 10 -75%
[i. e., in Accounting Year 1,
sales and use tax revenues
receipts of the Participant -
Subsidy] .
Si te Employment Index (total
to the Ci ty from the gross
$200,000) x .40 = Employment
(c) The precise amount of the Employment Subsidy shall be
determined by the Agency for each Accounting Year by reference to
Revenue and Taxation Code Sections 7200, et ~., sales and use
tax remittance advice or information provided to the City by the
State Board of Equalization related to the operation of the RV
Store on the Site by the Participant and the foregoing
percentages. Upon request by the Agency, the Participant shall
provide the Agency with copies of sales and use tax collection
and remittance accounting records prepared by the Participant
during any Accounting Year and submitted to the State Board of
Equalization. If Revenue and Taxation Code Sections 7200, et
seq., are amended, substituted or modified in a manner that
reduces the total amount of local sales and use taxes paid to the
City on the gross receipts of the Participant from the sale or
lease of all tangible personal property from the RV Store on the
Site below the levels that would otherwise be allocated and paid
to the City under Revenue and Taxation Code Sections 7200, et
seq., in effect on the date of this Agreement, then the
Employment Subsidy shall be computed in each such Accounting Year
in accordance with such amendment, substitution or modification
of Revenue and Taxation Code Sections 7200, et ~.
(d) Subject to the express conditions precedent that the RV
Store is open for business to the general public on the Site on
or before August 1, 2002, and the satisfaction of all other terms
and conditions of this Agreement by the Participant, the Agency
shall begin annual disbursement of the Employment Subsidy to the
Participant, on the thirtieth calendar day following each of the
first through the tenth anniversaries of the Opening Date, in
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exchange for the New Jobs creation and maintenance covenant set
forth in Section 10.
(e) The Agency shall make payments under subsection (d)
from legally available funds of the Agency. Such pledge of
legally available funds is expressly subject to the prior pledge
of such funds to the payment of existing debts, obligations,
notes, bonds and other forms of indebtedness of the Agency and
any extensions or refinancings of such existing debt, etc.
Although, one of the elements of the Site Employment Index is the
sales and use taxes generated from the Site, the Agency is not
entitled to receive local sales and use tax revenues and, thus,
cannot pay and is not promising to pay sales or use tax revenues
to the Participant.
SECTION 10. Covenant of the Participant to Create New Jobs
on the Site.
(a) Subject to the terms of this Agreement, the Participant
hereby covenants and agrees to exercise its best efforts to
create and, thereafter, maintain New Jobs on the Site, in
exchange for receipt of the Employment Subsidy related to such
New Jobs, as follows:
(1) within twelve (12) months following the Opening
Date, at least twenty-five (25) New Job positions
shall have been created and be maintained on the
Site; and
(2) within twenty four (24) months following the
Opening Date, an aggregate of at least thirty (30)
New Job positions shall have been created and be
maintained on the Site; and
(3) within thirty six (36) months following the
Opening Date, an aggregate of at least forty (40)
New Job positions shall have been created and be
maintained on the Site; and
(4) thereafter, on each of the next seven (7)
anniversaries of the Opening Date, there shall
remain a total of, at least, forty (40) New Job
positions being maintained on the Site.
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(b) An employee is eligible to be classified as holding a
New Job position, when each of the following conditions exist:
(1)
the employee is paid
Ten Dollars ($10.00)
salary or commission;
an hourly wage of at least
per hour or an equivalent
(2) the employee is assigned to work (or is eligible
to work) at least One Thousand Seven Hundred and
Fifty (1,750) hours per year;
(3) the employee is based at the Site; and
(4) the employee started working for the Participant
on or after March 1, 2002.
(c) Within thirty (30) days of the first anniversary of the
Opening Date and, thereafter, on each of the following ten (10)
anniversaries of the Opening Date, the Participant shall file a
written affidavit with the Agency's Executive Director,
certifying, under penalty of perjury under the laws of the State
of California, the Participant's compliance with the New Jobs
creation and maintenance covenant set forth in this Section 10.
The Participant's affidavit shall include a certification that
each employee who is claimed by the Participant to have held a
New Job position during the preceding year satisfies the
requirements of Section 10 (b) and, shall include appropriately
detailed payroll accounting information relating to the total
hourly wage compensation amounts paid to such persons, the total
number of hours worked by such persons and the total number of
persons who were recruited, hired or released from employment for
each New Job position. Such annual affidavit need not identify
any employee by name, by specific job description nor by new hire
date, and the payroll accounting information may aggregate the
hours worked and wages paid to all persons claimed by the
Participant to hold New Job positions.
(d) The Participant agrees to allow the Agency or its
agents access to inspect the payroll accounting records of the
Participant relating to the New Jobs and the confirmation by the
Agency of the information included in each annual affidavit of
the Participant, at reasonable times, upon reasonable prior
written notice, and without cost charged by the Participant to
the Agency.
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SECTION 11. Participant Covenant Regarding Maintenance of
the Site and the RV Store.
(a) The Participant for itself, its successors and assigns
hereby covenants and agrees that from and after the Opening Date,
all areas of the Site and the RV Store subject to public view
(including all other improvements constructed or installed
following the Opening Date, including paving, walkways,
landscaping, exterior signage and ornamentation) shall be
maintained by the Participant in good repair and in a neat, clean
and orderly condition customary in the new recreational vehicle
sales and service industry, ordinary wear and tear excepted.
(b) If at any time following the Opening Date, there is an
occurrence of an adverse condition in contravention of the
general maintenance standard described in the preceding paragraph
(a "Maintenance Deficiency"), then the Agency shall notify the
Participant in writing of such Maintenance Deficiency, giving
Participant sixty (60) days from receipt of such notice to cure
the Maintenance Deficiency. If the Participant fails to cure or
commence to cure the Maintenance Deficiency, within the time
allowed, any sales or use tax generated from the Site during the
pendency of such Maintenance Deficiency shall not be counted in
determining Site Employment Index under Section 9. Nothing in
this Section 11 shall be deemed to preclude the Participant from
making any alterations, additions, or other changes to any
improvement (including landscaping) on the Site following the
Opening Date. Any such alterations shall comply with the
Redevelopment Plan and applicable development regulations of the
City.
SECTION 12. Covenant of Participant to Payor Cause to Be
Paid Property Taxes on the Site. The Participant hereby
covenants and agrees to payor cause to be paid, prior to
delinquency, all real property, personal property and possessory
interest taxes, if any, assessed against the Site, the RV Store
or the business inventory or operations of the Participant on the
Site. The Participant shall provide the Agency with written
evidence of the payment of all such taxes, upon request of the
Agency's Executive Director.
SECTION 13. Obligation to Refrain from Discrimination. The
Participant covenants and agrees for itself, its successors,
assigns and every successor-in-interest to the Site or the RV
Store or any portion 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 original or ancestry, in the sale,
lease, sublease, transfer, use occupancy, tenure or enjoyment of
the Site or operation of the RV Store. Further, the Participant,
5B2002:9967.2
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or any person claiming under or through it, shall not establish
or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or
vendees on the Site or operation of the RV Store.
SECTION 14. Form of Nondiscrimination and Nonsegregation
Clauses. The Participant shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure
or enjoyment of the Site (or any portion thereof) on the basis of
sex, marital status, race, color, religion, creed, ancestry or
national original of any person. All such deeds, leases or
contracts pertaining to the Site or the RV Store shall contain or
be subj ect to substantially the following nondiscrimination or
nonsegregation clauses:
(1) [in deeds]
"The grantee herein covenants by and for itself, its
successors and assigns, and all persons claiming under
or through them, that there shall be no discrimination
against or segregation of, any person or group of
persons on account of sex, marital status, race, color,
religion, creed, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the land herein conveyed, nor shall the
grantee itself or any person claiming under or through
it, establish or permit any such practice or practices
of discrimination or segregation with reference to the
selection, location, number, use of occupancy of
tenants, lessees, subtenants, sublessees or vendees in
the land herein conveyed. The foregoing covenants
shall run with the land."
(2) [in leases] :
"The lessee herein covenants by and for itself, its
successors and assigns, and al persons claiming under
or through them, and this lease is made and accepted
upon and subject to the following conditions: That
there shall be no discrimination against or segregation
of any person or group of persons, on account of sex,
marital status, race, color, religion, creed, national
origin or ancestry, in the leasing, subleasing,
renting, transferring, use, occupancy, tenure or
enjoyment of the land herein lease, nor shall lessee
itself, or any person claiming under or through it,
establish or permit such practice or practices of
discrimination or segregation with reference to the
selection, location, number or occupancy of tenants,
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lessees, sublessees, tenants or vendees in the land
herein lease."
(3) [in material contracts] :
"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, rental, transfer, use, occupancy, tenure or
enjoyment of the land, nor shall the transferee itself
or any person claiming under or through it, establish
or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of
the land."
SECTION 15. [RESERVED - NO TEXT.]
SECTION 16. Defaults--General. Failure or delay by a party
to perform any term or provision of this Agreement constitutes a
default under this Agreement. The party in default must
immediately commence to cure, correct, or remedy such defaul t,
and shall diligently complete such cure, correction or remedy
promptly upon receipt of written notice of such default. The
party claiming that a default or breach exists shall give written
notice of default, specifying the claimed default. Except as
required to protect against further damage, the injured party may
not institute proceedings against the party in default, until
thirty (30) days after giving such notice. Failure or delay in
giving such notice shall not constitute a waiver of any default,
nor shall it change the time of default.
SECTION 17. Bankruptcy and Insolvency of Participant. If the
Participant files for bankruptcy protection or reorganization or
becomes the subject of any proceedings under the bankruptcy laws
of the United States, or the Participant becomes insolvent, or a
receiver is appointed for the Participant under state or federal
law, the Participant shall be in material default of this
Agreement.
SECTION 18. Insti tution of Legal Actions. Subj ect to the
default provisions of Section 16, any party may institute legal
action to cure, correct or remedy any default, to recover damages
for any default, or to obtain any other remedy consistent with
the purposes of this Agreement. Any legal action, initiated
pursuant to this Agreement, or otherwise, with respect to its
subject matter, must be instituted in the Superior Court of the
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County of San Bernardino, State of California, or in the United
States District Court for the Central District of CalifQrnia.
SECTION 19.Applicable Law. The laws
California shall govern the interpretation
this Agreement.
of
and
the State
enforcement
of
of
SECTION 20. Rights and Remedies are Cumulative. Except as
otherwise expressly stated in this Agreement, the rights and
remedies of the parties are cumulative, and the exercise by any
party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other
default by any other party.
SECTION 21. Inaction Not a Waiver of Default. Any failure
or delay by a party in asserting any of its rights or remedies
regarding any default shall not operate as a waiver of any
default or of any such rights or remedies, or deprive any party
of its right to institute and maintain any actions or proceedings
that it may deem necessary to protect, assert or enforce any such
rights or remedies. Waiver of any default under this Agreement
must be expressly set forth in a written document executed by the
party asserting the default being waived and delivered to the
party asserted to be in default.
SECTION 22.Notices, Demands and Communications Between the
Parties. Notices, demands and communications between the Agency
and the Participant, as allowed or required by this Agreement,
shall be in writing and shall be deemed to be duly given when
personally delivered or, if mailed, upon receipt or rejection.
If notice is given by mailing, it shall be sent by registered or
certified mail, postage prepaid, return receipt requested, and
properly addressed to the principal office of the party, as
designated in Section 3. Such written notices, demands and
communications may be sent in the same manner to such other
addresses as either party may from time to time designate in
writing to the other.
SECTION 23. [RESERVED - NO TEXT].
SECTION 24. Warranty Against Payment of Consideration for
Agreement. The Participant hereby warrants that it has not paid
or given, and will not payor give, any third-party money or
other consideration for obtaining this Agreement. For the
purpose of this Section 24, the term "third-party" shall not
include persons to whom fees were paid for professional services,
if rendered by attorneys, financial consultants, accountants,
5B2002:9967.2
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engineers, architects and the like, when such fees are considered
necessary by the Participant.
SECTION 25. Non-Liability of Agency Officials or Employees.
No member, official, employee, agent, consultant or attorney of
the Agency shall be personally liable to the Participant, or any
successor-in-interest of either of them, upon any default or
breach by the Agency or for any amount becoming due to the
Participant or to its successor or on any obligations arising
under this Agreement.
SECTION 26. Agency Right to Terminate Upon Filing of Legal
Challenge. Participant hereby acknowledges that the Agency is a
"public entity" and/or a "public agency" as defined under
applicable California law. Therefore, the Agency must satisfy
the requirements of certain California statutes relating to the
actions of public entities, including, without limitation, the
California Environmental Quality Act ("CEQA"). Also, as a public
body, the Agency's action in approving this Agreement may be
subject to proceedings to invalidate the Agreement. The
Participant hereby assumes the risk of delays and damages that
may result to the Participant from any such third-party legal
actions related to the Agency's approval of this Agreement or the
pursuit of activities contemplated by this Agreement, filed
within two hundred fifteen (215) days of the Agency's formal
approval of this Agreement, even in the event that an error,
omission or abuse of discretion by the Agency is determined to
have occurred. If a third-party files such a legal action
regarding the Agency's approval of this Agreement or the pursuit
of acti vi ties contemplated by this Agreement, the Agency may
terminate this Agreement on 30 days written notice to the
Participant of the Agency's intent to terminate this Agreement,
referencing this Section 26, without any further obligation to
perform the terms of this Agreement or any liability to the
Participant resulting from such termination, unless the
Participant unconditionally agrees to indemnify and defend the
Agency against such third-party legal action, as provided herein.
Within 30 days of receipt of the Agency's notice of intent to
terminate this Agreement, as provided in the preceding sentence,
the Participant may offer to defend the Agency in the third-party
legal action and pay all of the court costs, attorney fees,
monetary awards, sanctions, attorney fee awards, expert witness
and consultant fees, and the expenses of any and all financial or
performance obligations resulting from the disposition of the
legal action. Any such offer from the Participant must be in
writing and in a form reasonably acceptable to the Agency. If the
Agency accepts such an offer by the Participant, as provided for
herein, the Agency shall reasonably cooperate with the
Participant in the defense of the legal action.
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SECTION 27. Agency Approvals. Approvals required from the
Agency under this Agreement shall not be unreasonably withheld,
conditioned or delayed and approval or disapproval shall be given
within the time set forth in the Schedule of Performance, or as
set forth in this Agreement or, if no specific time is set forth
for such approval, within thirty (30) days. If no disapproval is
given within the time stated therefore, the item in question
shall conclusively be deemed approved.
SECTION 28. Indemnification of Agency by Participant. The
Participant .hereby agrees to defend, indemnify and hold the
Agency, its members, officials, employees, agents, consultants
and attorneys, harmless from and against all damages, judgments,
costs, expenses, and fees including attorney's fees, expert
witness and consultant fees and expenses incurred by the Agency
as a result of any alleged or actual act or omission of the
Participant in performing its obligations under this Agreement.
SECTION 29. No Partnership or Joint Venture. Nothing in
this Agreement, nor any acts of the parties hereto, shall be
deemed or construed by the parties hereto, or by any third
person, to create the relationship of principal and agent, or of
partnership, or of joint venture, or of any association between
any of the parties to this Agreement.
SECTION 30. Attorney's Fees. If any party hereto files any
action or brings any action or proceeding against the other
arising out of this Agreement, the prevailing party in any such
action or proceeding shall be entitled to recover, as an element
of its costs of suit and not as damages, its reasonable
attorney's fees, as determined by the Court in such action or
proceeding or in a separate action or proceeding brought to
recover such attorney's fees. For the purposes of this Agreement,
the phrase "reasonable attorney's fees" includes the salary,
wages, benefits and overhead of the City Attorney of the City of
San Bernardino and members of his staff.
SECTION 31. Severability. If any clause, sentence or any
other portion of this Agreement becomes invalid, void or
unenforceable for any reason, or is held by any court of
competent jurisdiction to be invalid, void or unenforceable, the
remaining portions of this Agreement shall remain in full force
and effect, provided the resulting agreement preserves the
material effect of this Agreement.
SECTION 32. Attachments. This Agreement includes 18 pages
and one (1) attachment that constitute the entire understanding
and agreement between the parties.
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SECTION 33. Amendment of Agreement. This Agreement may only
be amended, modified, revised or changed by written agreement
executed by both of the parties.
SECTION 34. Date of Execution of Agreement. The Agreement
is dated as of April 15, 2002, for purposes of reference and
convenience. The terms "date of execution of this Agreement" or
"date of this Agreement," and the like, refer to the date on
which this Agreement is approved by the governing board of the
Agency. This Agreement shall be of no force or effect as against
the Agency, until it is formally approved by the Community
Development Commission of the City of San Bernardino.
SECTION 35. Execution in Counterpart Originals. This
Agreement may be executed by the parties in counterparts and when
each such counterpart is delivered by the parties, this Agreement
shall be deemed to be fully executed and in effect.
8B2002:9967.2
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IN WITNESS WHEREOF, the Agency and the Participant, by and
through their duly authorized representatives' signatures below,
hereby execute this Agreement, as of the dates set forth below:
PARTICIPANT
LaMesa RV Center, Inc.
(Central California),
a California corporation
Dated:
f I eJ.b too ).
I I
6" ! Is / :/-e(J'2
I
J1i ~ Yk. II,
~,
Dated:
AGENCY
Redevelopment Agency of the
City of San Bernardino
-,
By:
/
//>/'.. Z (...{../I P ( //
'Executive Director
Dated:
APPROVED AS TO FORM:
,~~
Agencyv Cou sel
Sp(;>I"'i" (
582002:9967.2
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CDC/2002-17
Attachment "A"
[Description of the Site]
Real Property in the City of San Bernardino, County of San
Bernardino, State of California, described as follows:
A portion of Parcel 4 and all of ParcelS of Parcel Map No. 8401,
in the City of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in book 88 of Parcel Maps, pages
(s) 32 and 33, records of said County, described as a whole as
follows:
Beginning at the northeast corner of said parcelS; thence south
o deg. 10' 15" east, 321.32 feet, along the west line of
concourse way; thence south 44 deg. 49' 45" west, 30.73 feet;
thence south 89 deg. 49' 45" west, 437.23 feet along the north
line of Caroline Street; thence north 0 deg. 10' 37" west, 253.05
feet to the southwest corner of parcel 1 of said parcel map no.
8401; thence north 89 deg. 49' 45" east, 459.00 feet along the
south line of said parcell, to the point of begi~ning.
Said description is pursuant to a "Certificate of Compliance for
lot line adjustment" no. 87-7, recorded July 31, 1987, instrument
no. 87-266942, official records.
APN: 0164-321-81
Parcel 1 of Parcel Map No. 8401, in the City of San Bernardino,
County of San Bernardino, State of California, as per plat
recorded in book 88 or Parcel Maps, page(s) 32 and 33, records of
said County.
APN: 0164-321-37
8B2002: 9967.2
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