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HomeMy WebLinkAboutCDC/2003-30 2 3 4 5 6 7 8 , . RESOLUTION NO. CDC/2003-30 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO EXECUTE AMENDMENT NO.1 TO OWNER PARTICIPATION AGREEMENT, DATED AS OF SEPTEMBER 17, 2001, BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") has previously entered into an agreement entitled Owner Participation Agreement 9 ("Agreement"), dated as of September 17,2001, by and between the Redevelopment Agency of 10 11 the City of San Bernardino and In-N-Out Burgers; and NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 12 13 14 15 Section 1. The Commission hereby approves Amendment No. 1 to the Agreement 16 attached hereto and incorporated herein by reference. The Executive Director of the Agency is hereby authorized to execute 17 Section 2. Amendment No. 1 on behalf of the Agency in the form attached hereto, together with such 18 nonsubstantive changes therein as may be approved by the Executive Director and the City Attorney. 19 20 III III III III III III 21 22 23 24 25 Section 3. The Resolution shall become effective immediately upon its adoption. -1- P:\Agendlls\ResolutloDs\Resolutlons\2003\03-09-15In N Out Amend No 1 CDC Reso.doc CDC/2003-30 2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO EXECUTE AMENDMENT NO.1 TO OWNER PARTICIPATION AGREEMENT, DATED AS OF SEPTEMBER 17, 2001, BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS 3 4 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 6 Community Development Commission of the City of San Bernardino at a it. reg. meeting 7 thereof, held on the 15th day of September, 2003, by the following vote to wit: 8 Commission Members: Aves Navs 9 ESTRADA -1L 10 LONGVILLE X 11 MCGINNIS X 12 DERRY x - 13 SUAREZ X 14 ANDERSON -1L- MC CAMMACK -X- 15 16 Abstain Absent 17 r ( z ;' f-/ l 4. 18 The foregoing resolution is hereby approved this September ,2003. 19 20 21 Judit es, Chairperson Co m nity Development Commission o the ity of San Bernardino 22 23 Content: 24 By: 25 -2- P:\Agendlls\Resolutlons\Resolutlons\2003\03-09-15 In N Out Amend No 1 CDC Reso.doc , ' CDC/2003-30 2003 AMENDMENT NO.1 TO OWNER PARTICIPATION AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS, A CALIFORNIA CORPORATION THIS AMENDMENT NO. 1 TO OWNER PARTICIPATION AGREEMENT (this "Amendment") is dated as of September 15, 2003, by and between In-N-Out Burgers, a California corporation ("Owner") and the Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the "Agency"). The Owner and the Agency have previously entered into an agreement entitled "Owner Participation Agreement", dated as of September 17, 2001, (the "OPA") and the Owner and the Agency believe it is appropriate to approve the amendments to various provisions of the OP A as set forth below in light of the facts set forth in the following recitals: RECITALS A. The Parties have previously initiated the redevelopment of the project described in the OPA as the "Development". B. The Agency has previously caused the Inland Valley Development Agency (the "IVDA") to initiate condemnation proceedings to complete the acquisition of a portion of the land described in the OP A as the "Agency Sale Parcel" and such condemnation proceedings have not been completed as of the date of this Amendment. C. The Agency has caused a substantial portion of the public street improvements referred to in the OP A as the "Harriman Place Improvement Project" to be designed and installed and the Agency now plans to cause the remaining portions of the Harriman Place Improvement Project to be completed within the next several months time. D. The Owner has completed the submission of its written materials in a connection with the Owner's obtaining from the City the appropriate "Land Use Approvals" for the Improvements to be constructed by the Owner following the "Close of Escrow" as set forth in the OPA. E. In order to accommodate certain changes in the development schedule for the Harriman Place Improvement Project, the Development and the Improvements which have 1 P:\Clerical Services Dept\Margarct\Agrccmcnts-Amendmcnts\Agnnts-Arnend 2003\03-09-04 In N Out OPA Amendment.DOC CDC/2003-30 emerged since the time of approval of the OPA in 2001, the Parties now believe it is appropriate to approve this Amendment. NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION THE OWNER AND THE AGENCY HEREBY AGREE AS FOLLOWS: Section 1. The text of the OP A is hereby incorporated by this reference into this Amendment. Unless the context of the usage of a particular term, word or phrase used in this Amendment may otherwise require, the meaning of defined terms, words or phrases used in this Amendment shall be the same as the definition of such terms, words or phrases as used in the OPA. Section 2. As of the date of this Amendment, the Parties mutually declare that no default exists under the OP A or the Escrow as thereby established, and that each remains in full force and effect. Section 3. The general form of the Agency Grant Deed as attached as Exhibit "F" to the OPA, is hereby substituted with the form of the "HUB Project: Agency Sale Parcel Quitclaim Deed" as attached to this Amendment as Attachment No.1. Section 4. Section 3.l1(a) of the OPA is amended to read as follows: "(a) The Agency Grant Deed shall be recorded (the "Closing") as soon as possible after the satisfaction of all of the Agency's Conditions and the Owner's Conditions, but in no event later than June 30, 2004 (the "Closing Date"), as set forth in the Schedule of Performance, subject to the extension of the Closing Date pursuant to Section 3.23 or 3.25, below." Section 5. For the purposes of Section 3.19(a) of the OPA, under this Amendment, the date of the Owner's "Objection Notice" as this term is defined in Section 3.19 of the OPA, shall be deemed to be the later date of either: (i) the date on which the Owner delivers its Owner Objection Notice to the Agency; or (ii) October 31,2003. Section 6. For the purposes of Section 3.20(a) of the OPA, under this Amendment, the date of the Agency's "Objection Notice", as this term is defined in Section 3.20 of the OPA, shall be deemed to be the later date of either: (i) the date on which the Agency delivers its Agency Objection Notice to the Owner; or (ii) October 31, 2003. Section 7. The Owner acknowledges and agrees that the condition of Section 3.28 of the OP A relating to the demolition of structures on and under the Agency Sale Property (e.g., the "Agency Demolition Work") has already been accomplished by the Agency as of the date of this Amendment, and that such Agency Demolition Work is satisfactory to the Owner. 2 P:\Clcrical SelVices Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03-09-04 In N Out OPA Amendment.DOC CDC/2003-30 Section 8. Section 4.1(h) of the OPA is hereby amended to read as follows: "(h) As set forth in the Schedule of Performance, the Owner shall commence construction of the Improvements by the later of (i) June 30, 2004, or (ii) the thirtieth (30th) day following the Closing (in either case, the "New Restaurant Commencement Date"), subject to the provisions of Section 7.5, below. As set forth in the Schedule of Performance, the Owner shall substantially complete the Improvements within two hundred seventy (270) days following the commencement of construction, subject to the provisions of Section 7.5, below. The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing by and between the Owner and the Agency. " Section 9. reads as follows: The OPA is hereby further amended to add a new Section 7.9(c) which "(c) In addition to the obligations of the Agency which arise under Section 7.9(b)(i), the Agency hereby agrees to assume the obligation of the Owner, under City CUP No. 03-08 Condition No.3, by providing for the defense for only the City, the Economic Development Agency of the City of San Bernardino, any departments, agencies, divisions, boards or commissions of either the City or the Economic Development Agency, as well as predecessors, successors, assigns, agents, directors, elected officials, officers, employees, representatives and attorneys of either the City or the Economic Development Agency from any claim, action, or proceeding against any of the foregoing persons or entities. The Owner hereby covenants and agrees to cooperate with the Agency and the lawyers retained by the Agency for such purposes, in the Agency's defense of any such challenge of City CUP No. 03-08. The Agency is not assuming the defense costs of the Owner in defending itself or any other person, other than the City and the Economic Development Agency of the City of San Bernardino, as enumerated previously herein in this section." Section 10. The form of the Schedule of Performance as attached as Exhibit "I" to the OP A, is hereby substituted with the "September 2003 Modified Schedule of Performance" as attached to this Amendment as Attachment No.2. Section 11. Except as modified by this Amendment, all of the other provisions of the OP A remain in full force and effect. Section 12. The acceptance of this Amendment by the Agency is subject to the approval of the same by a majority vote of its governing board. The authorized signatories of the Parties shall execute this Amendment within a reasonable period following such approval by the governing board of the Agency, provided that this Agreement may be withdrawn at any time by the Owner prior to the Owner's execution of this Amendment pursuant to written notice to the Agency. This Amendment may be executed by the parties in counterpart and when fully executed each counterpart shall be deemed one original instrument. 3 P:\Clerical Services Dept\Margaret\Agreements-Amendmenls\Agrmts-Amend 2003\03-09-04 In N Oul OPA Amendment.DOC CDC/2003-30 IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first above written. AGENCY Redevelopment Agency of the City of San Bernardino, a body corporate and politic BY~? ?~ I/I_'-'} Gary Van Osdel, "f" Executive Director APPROVED AS TO FORM: L~ ~ Agency Special Counsel OWNER In-N-Out Burgers, a California corporation , By: /~ ~ '//' it'Y\ G. d ~~ I.t pr.&.j ----:- of R ~ CU\ d DWeAoprv'\b'\;t 4 P:\Clerical Services Dept\Margaret\Agreements--Amendments\Agrmts.Amend 2003\03-09-04 In N Out OP A Amendment.DOC CDC/2003-30 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Attention: THIS SPACE ABOVE FOR RECORDER'S USE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO QUITCLAIM DEED (HUB PROJECT: AGENCY SALE PARCEL) PART ONE For valuable consideration, the receipt of which is hereby acknowledged, the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the "Agency"), hereby remises, releases and quitclaims to In-N-Out Burgers, a California corporation (the "Grantee") the real property (the "Property") situated in the City of San Bernardino and more particularly described as follows: [INSERT TEXT OF METES AND BOUNDS LEGAL DESCRIPTION OF "AGENCY SALE PARCEL"] This conveyance in intended to convey all of the rights of the Agency as transferred to it by the Inland Valley Development Agency under its quitclaim deed as delivered to the Agency of even date herewith, together with all other title now or hereafter acquired by the Agency by reason of that certain order issued in the condemnation action in San Bernardino County Superior Court Case No. SCVSS 89192 initiated by the Inland Valley Development Agency authorizing possession of the Property. PART TWO The quitclaim of the Property to the Grantee is further subject to the following community redevelopment terms, conditions and covenants: 1. The Property is conveyed subject to that certain Owner Participation Agreement (the "OPA") dated as of September 17, 2001, as amended, by and between Grantor and Grantee. The OP A is a public document on file in the City Clerk's office of the City of San Bernardino, located at 300 North "D" Street, San Bernardino, California 92401. The OPA shall be conclusively deemed to have fully and satisfactorily performed all of its obligations under the 5 P:\Clerical Services Dept\Margaret\Agreemenls-Amendments\Agrmts-Amend 2003\03-09-04 In N Out OP A Amendmenl.DOC CDC/2003-30 OP A, including without limitation compliance with the Schedule of Performance and the Scope of Development, and this Section I shall terminate and become null and void with respect to the Property, on the date the "Certificate of Completion" is issued by Grantor for the Improvements; provided, however, that Grantee's indemnification obligations under Section 7.9 of the OPA shall survive the issuance of the Certificate of Completion and expire in accordance with its terms. Capitalized terms used and not otherwise defined herein shall have the meanings set forth for them in the OPA. 2. All deeds, leases or contracts pertaining to the Property must contain or be subject to substantially the following nondiscrimination and nonsegregation clauses: (a) In deeds: "The Grantee covenants by and for itself, its successors and assigns, and all persons claiming under and through them, that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital states, national origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed, nor shall the grantee or any person claiming under or through the grantee 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 in the property herein conveyed. The foregoing covenants shall run with the land." (b) In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all person claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee itself, or any person claiming under or through the lessee, 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, sublessees, subtenants or vendees in the property herein leased." (c) In contracts: 'There shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the property, nor shall the transferee or any person claiming under or through the transferee, 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, sublessees, subtenants, or vendees of the property." 3. The following provisions are incorporated from Section 5.4 of the OPA and shall survive the issuance of the Certificate of Completion: (a) Grantor Indemnitv. Without limiting the generality of the indemnification in Grantor's favor set forth n Section 7.9(a) of the OPA, Grantee hereby 6 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agnnts-Amend 2oo3\03-09-041n N Out OPA Amendment.DOC CDC/2003-30 agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to Grantor) the Agency Parties from and against any and all Loss arising directly or indirectly, in whole or in part, out of (i) the failure of any Owner Party to comply with any Environmental Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Substances into, on, under or from the Property, (ii) the presence in, on or under the Property of any Hazardous Substances or any releases or discharges of any Hazardous Substances into, on, under or from the Property, or (iii) the migration of any Hazardous Substances into, onto or under the Property from off site sources, other than real property or improvements owned by Grantor, the City or the HUB Developer, in each case subsequent to the Closing. The foregoing indemnity shall further apply to any residual contamination on or under the Property affecting any natural resources and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Substances, and irrespective of whether any of such activities were or will be undertaken in accordance with Environmental Laws. This indemnification of the Agency Parties by Grantor includes, without limitation, costs incurred with respect to any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Substances present or alleged to be present in the soil or groundwater in, or under the Property subsequent to the Closing. The indemnity described in the preceding two sentences shall not apply with respect to any Hazardous Substances located in, on or under the Property or the Existing Agency Improvements prior to the Closing. (b) Grantee Indemnity. Without limiting the generality of the indemnification in the Grantee's favor set forth in Section 7.9(b) of the OPA, Grantor hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to Grantor) the Owner Parties from and against any and all Loss arising directly or indirectly, in whole or in part, out of (i) the failure of any Agency Party to comply with any Environmental Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Substances into, on, under or from the Property or the Existing Agency Improvements, (ii) the presence in, on or under the Property of any Hazardous Substances or any releases or discharges of any Hazardous Substances into, on, under or from the Property or the Existing Agency Improvements, or (iii) the migration of any Hazardous Substances into, onto or under the Property or the Existing Agency Improvements from offsite sources, in each case prior to the Closing. The foregoing indemnity shall further apply to any residual contamination in, on or under the Property or the Existing Agency Improvements affecting any natural resources and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Substances, and irrespective or whether any of such activities were or will be undertaken in accordance with Environmental Laws. This indemnification of the Owner Parties by Grantor includes, without limitation, costs incurred with respect to any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Substances present or alleged to be present in the soil or groundwater in, on or under the 7 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agnnts-Amend 2003\03-09-04 In N Out OP A Amendment.DOC CDC/2003-30 Property or the Existing Agency Improvements prior to the Closing. The indemnity described in the preceding two sentences shall not apply with respect to any Hazardous Substances first located in, on or under the Property subsequent to the Closing. 4. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other Security Financing Instrument permitted by the OP A; provided, however, that any successor of Grantee to the Property shall be bound by all remaining covenants, conditions, restrictions, limitations and provisions, whether such successor's title is acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 5. The covenants set forth in Sections 2 and 3, above, shall remain in effect in perpetuity or for so long as they may be enforceable. 6. The covenants contained in Sections 2 and 3, above, are to the fullest extent permitted by law and equity, binding for the benefit of Grantor or Grantee, as applicable, and its successors and assigns, as applicable, and such covenants shall run in favor of Grantor or Grantee, as applicable, for the entire period that such covenants are in full force and effect, regardless of whether Grantor or Grantee, as applicable, is or remains an owner of any land or interest in land to which such covenants relate. In the event of any breach of any such covenants, Grantor or Grantee, as applicable, shall have the right to exercise all of its rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach. The covenants contained in Sections 2 and 3, above, shall be for the benefit of and shall be enforceable only by Grantor or Grantee, as applicable, and its successors and assigns. 8 P:\Clerical Servic~ Dept\Margaret\Agreements-Amendrnents\Agnnts-Amend 2003\03-09-04 In N Out OP A Amendment.DOC CDC/2003-30 IN WITNESS WHEREOF, the Agency has caused this Quitclaim Deed to be executed by its authorized officers on this _ day of ,2003. "AGENCY" Redevelopment Agency of the City of San Bernardino By Judith Valles Chair of the Community Development Commission of the City of San Bernardino, its governing board By Gary Van Osdel Executive Director APPROVED AS TO FORM: 9 P:\Clerical Services Dept\Macgaret\Agreements-Amendments\Agnnts-Amend 2003\03-09-04 In N Out OPA Amendment.DOC CDC/2003-30 ACCEPTANCE OF QUITCLAIM DEED AND COMMUNITY REDEVELOPMENT COVENANTS The undersigned hereby acknowledges acceptance by In-N-Out Burgers, a California corporation, the grantee in the within Quitclaim Deed, of the delivery of the subject Property described in the within Quitclaim Deed from the Redevelopment Agency of the City of San Bernardino. "GRANTEE" In-N-Out Burgers, a California corporation By [ALL SIGNATURES TO BE ACKNOWLEDGED] 10 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agnnts.-Amend 2003\03-09-04 In N Out OP A Amendment.DOC CDC/2003-30 ATTACHMENT II SCHEDULE OF PERFORMANCE (All dates herein are subject to change due to force majeure in accordance with Section 7.5 of this Agreement) 1. Opening of Escrow. The Parties shall open the Escrow for the conveyance of the Agency Sale Property and the Owner Sale Property. 2. Deposits in Escrow. The Agency shall deposit the Agency Deposit and the Owner shall deposit the Owner Deposit. 3. Acquisition of Agency Sale Property. The Agency delivers offers to acquire the Agency Sale Property to the current owners thereof. 4. Agency Due Diligence. The Agency shall carry out and complete its due diligence investigation of the Owner Sale Property. 5. Title Documents. The Agency shall deliver to the Owner the Agency Sale Property Title Report and the Agency Sale Property Title Documents and the Owner shall deliver to the Agency the Owner Sale Property Title Report and the Owner Sale Property Title Documents. 6. Owner Due Diligence. The Owner shall carry out and complete its due diligence investigation of the Agency Sale Property. 7. Harriman Memorandum. The Agency and the HUB Developer shall prepare, approve and execute the Harriman Memorandum, subject to Section 4.5(a). "II"-l P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agrmts-Amend 2003\03-09-15 In N Out Attach II.doc Completed prior to September 15,2003. Completed prior to September 15,2003. Completed prior to September 15,2003. Completed prior to September 15,2003. Completed prior to September 15, 2003. Completed prior to September 15,2003. Completed prior to September 15,2003. CDC/2003-30 8. Applications for Discretionary Land Use Approvals. The Owner shall apply for the New Restaurant CUP and the other discretionary Land Use Approvals. 9. Harriman Extension Improvement Project. The Agency shall commence physical construction of the Harriman Place Improvement Project. 10. Ownership of Agency Sale Property. The Agency shall obtain merchantable, lien-free, fee title or an insurable title interest under Orders of Possession with respect to the Agency Sale Property sufficient to satisfy the condition precedent set forth in Section 3.22(j). 11. Utilities. The Agency shall cause all utilities required for the construction, operation and use of the New Restaurant and other Improvements to be stubbed to five (5) feet inside of the Development Site. 12. Agency Demolition Work. The Agency shall carry out and complete the Agency Demolition Work. 13. HUB Agreement. The Owner shall execute, acknowledge and deliver to Escrow Holder the HUB Agreement. 13.A Land Use Approvals. The Owner shall renew processing of all Land Use Approvals. 14. Closing. The Closing shall occur as soon as possible after the satisfaction of all of the Agency's Conditions and the Owner's Conditions. "II" -2 P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agnnls-Amend 2003\03-09-15 In N Out Attach II.doc Completed prior to September 15,2003. Commenced prior to September 15, 2003. Completed prior to September 15, 2003. Completed prior to September 15,2003. Completed prior to September 15,2003. Completed prior to September 15,2003. On or before March 1,2004. On or before June 30, 2004. CDCj2003-30 15. Commencement of hnprovements. The Owner shall commence construction of the hnprovements. On or before the 60th day following the Closing (defined in this Agreement as the "New Restaurant Commencement Date"). (Section 4.1 (h)) Within two hundred seventy (270) days following the New Restaurant Commencement Date. (Section 4.1 (h)) On or before the first anniversary of the New Restaurant Commencement Date. (Section 4.2) Within five (5) business days following the written request of the owner. (Section 4.4(a)) P:\Clerical Services Dept\Margaret\Agreements-Amendments\Agnnts.Amend 2003\03-09-15 In N Out Attach II.doc 16. Completion of hnprovements. The Owner shall complete the improvements. 17. Termination of Owner License. The Owner License shall commence as of the Closing and shall thereafter terminate. 18. Issuance of Certificate of Completion. The Agency shall issue the Certificate of Completion after the completion of construction of the Improvements (excluding the Punchlist Items). "11"-3