HomeMy WebLinkAboutCDC/2003-28
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RESOLUTION NO. CDC/2003-28
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING A
2003 REDEVELOPMENT PARTICIPATION AGREEMENT BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND IMPERIAL IMPORTS, INC., DBA TOYOTA OF
SAN BERNARDINO, SCION OF SAN BERNARDINO AND SAN
BERNARDINO HYUNDAI
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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 2003 Redevelopment Participation
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Agreement with Imperial Imports Inc., DBA Toyota of San Bernardino, Scion of San
Bernardino and San Bernardino Hyundai ("Imperial Imports Inc."), for the purpose of
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increasing employment opportunities, encouraging redevelopment activities and economiC
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development within the South Valle Redevelopment Project Area ofthe Agency; and
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WHEREAS, the implementation of said 2003 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 Southeast
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Industrial Park Project Area for which the Agency shall remit certain annual employment
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subsidy payments to Imperial Imports Inc. based upon the index of financial benefits accruing
to the City cafculated upon the financial performance of the project identified in the 2003
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Redevelopment Participation Agreement; and
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WHEREAS, the Agency is required pursuant to the 2003 Redevelopment Participation
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Agreement to remit certain payments to Imperial Imports Inc. related to the number of
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employment opportunities generated by the new sales location within the Southeast Industrial
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Park Project Area based upon an index of financial performance of Imperial Imports Inc. which
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has a direct positive financial benefit upon the City General Fund; and
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CDC/2003-28
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WHEREAS, the Commission deems it desirable to approve and authorize for execution
the form of the 2003 Redevelopment Participation Agreement by and between the Agency and
Imperial Imports Inc. substantially in the form as attached hereto for the purpose of encouraging
redevelopment activities and economic development and providing increased employment
opportunities all as further set forth in the 2003 Redevelopment Participation Agreement.
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
Section 1. The Commission hereby finds and determines that the recitals as
contained herein are accurate and correct in all respects.
Section 2. The Commission hereby approves the 2003 Redevelopment Participation
Agreement attached hereto and incorporated herein by reference. The Agency Executive
Director, or his or her designee, is hereby authorized to execute the 2003 Redevelopment
Participation Agreement on behalf of the Agency in substantially the form attached hereto,
together with such nonsubstantive modifications as deemed necessary and as approved by the
Executive Director, or his or her designee, with the concurrence of the City Attorney.
Section 3. The approval, execution and implementation of the 2003 Redevelopment
Participation Agreement does not constitute a "Project" within the provisions or meaning of the
California Environmental Quality Act of 1970, as amended ("CEQA"), and no environmental
review is required in connection with the approval, execution and implementation of the 2003
Redevelopment Participation Agreement in the manner and with the limitations as set forth
therein limiting the liability of the Agency with respect to CEQA and the approval of the 2003
Redevelopment Participation Agreement.
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Section 4. This Resolution shall take effect from and after the date of adoption and
2 shall not be repealed or amended to adversely affect the rights of the parties thereto so long as
3 the 2003 Redevelopment Participation Agreement remains in effect and requires performance
4 obligations of the parties.
The Resolution shall become effective immediately upon its adoption.
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CDC/2003-28
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A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING A
2003 REDEVELOPMENT PARTICIPATION AGREEMENT BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND IMPERIAL IMPORTS, INC., DBA TOYOTA OF
SAN BERNARDINO, SCION OF SAN BERNARDINO AND SAN
BERNARDINO HYUNDAI
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
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Community Development Commission of the City of San Bernardino at a j t. reg. meeting
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thereof, held on the 18th day of August
,2003, by the following vote to wit:
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Nays
Abstain
Absent
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M7~
Secretary
18 The foregoing resolution is hereby approved this \qn\- day of
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August
,2003.
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Betty Dean Anderson, Vice Chair
Community Development Commission
City of San Bernardino
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al Content:
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By:
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CDC/2003-28
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
2003
REDEVELOPMENT PARTICIPATION AGREEMENT
(Imperial Imports Inc., DBA Toyota of San Bernardino,
Scion of San Bernardino, San Bernardino Hyundai)
THIS 2003 REDEVELOPMENT PARTICIPATION AGREEMENT (hnperial hnports
Inc., DBA San Bernardino Hyundai (California)) (this "Agreement") is dated as of August 18,
2003, and is entered into by and between hnperial hnports Inc., DBA Toyota of San Bernardino,
Scion of San Bernardino and San Bernardino Hyundai, 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 RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, AND THE MUTUAL
PROMISES AND COVENANTS OF THE PARTIES SET FORTH HEREIN, THE
PARTICIPANT AND THE AGENCY HEREBY AGREE, AS FOLLOWS:
SECTION 1. Purpose of Al!reement. 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 has purchased the
site 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, parts sales
and service facility for new and pre-owned vehicles (the Hyundai dealership).
SECTION 2. Defined Terms. In addition to the usage of certain terms that are defined
in other sections of this Agreement, the following words and phrases are used in this Agreement,
as follows, unless the particular context of usage of a word or phrase requires another
interpretation:
(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 (10th) anniversary of the Opening Date.
(b) "City" means the City of San Bernardino.
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(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 Date" means the date on which the dealership is opened for retail sales
business on the Site to the general public, which date shall be on or before September 15, 2003.
(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 stock or equity of the Participant that does not change
the management or operational control of the Site or the dealership;
(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 automobiles authorizing the sale of such
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 vehicle
manufacturer who has been approved by such vehicle manufacturer as a transferee of the
interest of the Participant at the Site.
(g) "Automobile Dealership" means the motor vehicle retail sales, parts sales and
service business to be conducted on the Site by the Participant, commencing on or before
September 15, 2003
(h) "Transfer" means and refers to any of the following:
(l) 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
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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 Automobile Dealership; 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 Al!reement.
(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 735 Showcase
Drive North, San Bernardino, California 92408. 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.
SECTION 4. Chanl!e in Manal!ement or Control of the Participant-
Assil!nment 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 fifth 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
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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
Automobile Dealership. 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.
(d) Other than a Permitted Transfer, no Transfer of this Agreement or any interest of
Participant in the Automobile Dealership, as applicable, or any portion thereon, by the Participant
shall be effective unless, at the time of such Transfer, the person or entity to which such Transfer
is made, shall expressly assume the obligations of the Participant under this Agreement and such
person or entity also agrees to be subject to the conditions and restrictions to which the
Participant is subject to under this Agreement. Such an assumption of the obligations of the
Participant under this Agreement shall be evidenced by a written instrument delivered to the
Agency and approved by the Agency as a condition precedent to such Transfer.
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 Automobile Dealership before commencement of
improvement of any building or structure on the Site or operation of the Automobile Dealership
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.
fRESERVED - NO TEXT1.
SECTION 7. Participant Representations. Warranties and Covenants
Rel!ardinl! Other Automobile 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 Automobile Dealership on the Site is not a "relocation" of the Automobile
Dealership "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 (10th) anniversary of the
Opening Date, neither the Participant, any successor-in-interest to the Participant, any person
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associated with the Participant, nor any entity related to the Participant will establish a Hyundai
vehicle retail sales and service facility within a seven (7) mile radius of the Site.
SECTION 8.
Participant.
Automobile Dealership Operation Covenants of the
(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 Automobile Dealership to be open for business
to the general public on the Site on or before September 15,2003; and
(2) There are no pending or threatened claims, actions, allegations or lawsuits of
any kind, whether for 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 Automobile Dealership 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
Clifford R Cummings, controlling entity.
(b) If after the Automobile Dealership is open for business, the Automobile
Dealership 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 Automobile Dealership occurs.
SECTION 9.
Ae:encv Emplovment 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 Sections 7200, et seq., and all payments to
the City from the Sales and Use Tax Compensation Fund created by Revenue and Taxation Code
Section 97.68 (as such statutes may hereafter be amended, substituted or modified by any
successor local sales and use tax law), in the aggregate exceeding Seventy-five Thousand Dollars
($75,000), on the gross receipts of the Participant from the sale or lease of all tangible personal
property from the Automobile Dealership in each Accounting Year. The Site Employment Index
correlates the amount of sales and use taxes generated and the number of employees required to
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generate such sales and use taxes. The Participant acknowledges that as of the date of this
Agreement the Legislature of the State of California has amended the Revenue and Taxation
Code by reducing the total amount of local sales and use taxes payable to the City under Revenue
and Taxation Code Section 7203.1 to be effective July 1,2004.
(b) "Employment Subsidy" means and refers to the amount derived by multiplying
the Site Employment Index for each Accounting Year by fifty percent.
[i.e., in Accounting Year 1, Site Employment Index (total sales and use tax revenues
allocated grant to the City under Revenue and Taxation Code Section 7200 et seq. and
Revenue and Taxation Code 97.68 from the gross receipts of the Participant - $75,000) x
.50 = Employment Subsidy].
(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
seq., sales and use tax remittance advice or information provided to the City by the State Board
of Equalization related to the operation of the Automobile Dealership 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 Automobile Dealership 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 seq.
(d) Such pledge by the Agency of legally available funds of the Agency 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 re- financings 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 plus amounts remitted to the City from the Sales and Use Tax
Compensation Fund, the Agency is not entitled to receive local sales and use tax revenues and/or
distribution from the Sales and Use Tax Compensation Fund 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:
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(1) within twelve (12) months following the Opening Date, at least thirty (30)
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-five (35) 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.
(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 an hourly wage of at least ten Dollars ($10.00) per
hour or an equivalent salary or commission;
(2) the employee is assigned to work (or is eligible to work) at least one
thousand seven hundred and fifty(1750) hours per year;
(3) the employee is based at the Site; and
(4) the employee started working for the Participant on or after September 15,
2003.
(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 1 O(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.
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(d) If on any of the anniversary dates set forth in Section lO(a), the certification ofthe
Participant indicates that there are fewer than the minimum number of New Jobs at the
Automobile Dealership, then the Participant shall not, nor shall it be entitled to, receive any
Employment Subsidy or any Additional Employment Subsidy for that Accounting Year.
(e) 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.
(f) Based upon the written affidavit filed with the Agency's Executive Director, the
amount due shall be paid annually to the Participant commencing on February 1, 2005, with the
last payment, if due, occurring on February 1,2014, for a total often payments.
SECTION 11. Participant Covenant Rel!ardinl! Maintenance of the Site and
the Automobile Dealership.
(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 Automobile Dealership 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 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.
(c) Graffiti as this term is defined in Government Code Section 38772, which has
been applied to any exterior surface of a structure or improvement on Site which is visible from
any public right-of-way adjacent or contiguous to the Site, shall be removed by the Participant by
either painting over the evidence of such vandalism with a paint which has been color-matched to
the surface on which the pant is applied, or graffiti may be removed with solvent, detergents or
water as appropriate. In the event that such graffiti may become visible from an adjacent or
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contiguous public right-of-way but is not removed within 72 hours following the time of such
application, the Agency shall have the right to enter the Property and remove the graffiti without
notice to the participant. Any sum expended by the Agency for the removal of such graffiti from
the Property authorized by this Section 11 (C) in an amount not to exceed $250.00 per entry by the
Agency, shall become a charge against the Participant's account. If the amount of the charge is
not paid within thirty (30) calendar days after written demand for payment by the Agency to the
Participant, the Agency shall have the right to deduct such charge from the next Employment
Subsidy due to the Participant under the terms of this Agreement.
SECTION 12. Covenant of Participant to Pavor 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 Automobile Dealership 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. Oblie:ation to Refrain from Discrimination. The Participant
covenants and agrees for itself, its successors, assigns and every successor-in-interest to the Site
or the Automobile Dealership 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 Automobile Dealership. Further, the
Participant, 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 Automobile Dealership.
SECTION 14. Form of Nondiscrimination and Nonsee:ree:ation 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 Automobile Dealership shall contain or be subject 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,
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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 all
persons claiming under or through them, and this lease is made and accepted upon
and subject to the following conditions: That there shall be no discrimination
against or segregation of any person or group of persons, on account of 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, 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 default, 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.
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SECTION 18. Institution of Lee:al Actions. Subject 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 County of San Bernardino, State
of California, or in the United States District Court for the Central District of California.
SECTION 19. Applicable Law. The laws of the State of California shall govern
the interpretation and enforcement of this Agreement.
SECTION 20. Rie:hts 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 Ae:ainst Payment of Consideration for Ae:reement.
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, engineers, architects and the
like, when such fees are considered necessary by the Participant.
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SECTION 25. Non-Liability of A2encv Officials or Emplovees. 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. A2encv Ri2ht to Terminate Upon Filin2 of Lel!al Challenl!e.
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 activities
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.
SECTION 27. A2encv 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 Al!encv bv 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
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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. Attornev'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.
SECTION 33. Amendment of Aereement. 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 Aereement. The Agreement is dated as of
September 15, 2003, 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 Orieinals. 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.
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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
Imperial Imports Inc.,
A California Corporation
Dated: I)!J /() 1 By:
, ./
Dated:
By:
AGENCY
Redevelopment Agency of the
City of San Bernardino
Dated: /f.~:J/ III ~ By:
( /
APPROVED AS TO FORM:
V::~1~~
AgencyvCounsel
Sp-ec Ie-I
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Attachment "A"
[Description of the Site]
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