The URL can be used to link to this page

Home My WebLink AboutCDC/2004-49 (See Companion Resolution 2004-386) RESOLUTION NO. CDC/2004-49 2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE SALE OF CERTAIN REAL PROPERTY BY THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO WATERMAN HOLDINGS, LLC AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO EXECUTE THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE AGENCY AND WATERMAN HOLDINGS, LLC (4TH & WATERMAN AVENUE -APN 0135-191-11) 3 4 5 6 7 WHEREAS, the Community Development Commission of the City of San Bernardino 8 (the "Community Development Commission") is the governing board of the Redevelopment 9 Agency of the City of San Bernardino (the "Agency"); and WHEREAS, the Agency Property is located at the southwest corner of 4th Street and 10 11 Waterman Avenue within the Central City East Redevelopment Project Area and is 12 unimproved; and 13 WHEREAS, an appraisal of the Agency Property was performed in October 2004 by 14 Smothers Appraisal (the "Appraiser"); and 15 WHEREAS, according to the report dated October 27, 2004 (the "Agency Appraisal 16 Report"), prepared by the Appraiser, the fair market value of the Agency Property is $3.00 per 17 square foot; and 18 WHEREAS, Waterman Holdings, LLC (the "Buyer") have offered to acquire the 19 Agency Property for the fair market value of$3.00 per square foot; and 20 WHEREAS, the Agency intends to enter into the Disposition and Development 21 Agreement (the "DDA") pursuant to which the Agency proposes to sell the Agency Property to 22 the Buyer for the fair market value of$3.00 per square foot; and )' -~ WHEREAS, pursuant to Section 15332 of the California Environmental Quality Act 24 Guidelines, the Agency has reviewed the proposed sale and use of the Agency Property and 25 has determined that the project, as identified in the DDA, is exempt from the Act and qualifies P:\Agendas\Resolutions\Resolutions\2004\04-12-06 4th & Waterman CDC Reso_doc CDC/2004-49 as a Categorical Exemption, Class 32 (Guidelines 15332) as the project meets all four 2 requirements for an In-fill Project; and 3 WHEREAS, disposition of the Agency Property to the Buyers is consistent with the 4 Central City East Redevelopment Plan; and 5 WHEREAS, it is appropriate for the Community Development Commission to approve 6 the disposition of the Agency Property to the Buyer as set forth in the DDA and this 7 Resolution. 8 NOW, THEREFORE, THE COI\1MUNITY DEVELOPMENT COMMISSION OF THE 9 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 10 FOLLOWS: 11 Section 1. This Resolution is adopted in furtherance of the provisions of Health & 12 Safety Code Section 33433 ("Summary Report"). Said Summary Report is on tile with the 13 Agency Secretary. 14 Section 2. The Community Development Commission has conducted a full and fair 15 public hearing regarding the disposition of the Agency Property pursuant to the terms and 16 conditions of the DDA. The total value and consideration realized by the Agency under the 17 DDA for the disposition of the Agency Property is not less than the fair market value of the 18 Agency Property at its highest and best use in accordance with the Redevelopment Plan. The 19 Community Development Commission hereby approves the disposition of the Agency Property 20 on the terms set forth in the DDA. The Community Development Commission hereby approves 21 the DDA in the form as presented at the meeting at which this Resolution is adopted. The 22 Executive Director of the Agency is hereby authorized and directed to execute the DDA on 23 behalf of the Agency, together with such technical and non-material conforming changes as 24 may be recommended by Agency Counsel. The DDA as hereby approved shall have no force 25 or effect until it has been executed by the Executive Director of the Agency. 2 P\Agendas\Resolutions\Resolutions\2004\04.] 2-06 4th & Waterman CDC Resodoo:; 1/1 2 Section 3. CDC/2004-49 The Community Development Commission finds that the disposition of 3 the real property as contemplated under the DDA qualifies as an In-fill Project pursuant to 4 Section 15332 of the CEQA Guidelines and is therefore exempt from the Act and qualifies for a 5 Categorical Exemption. The Executive Director of the Agency is hereby authorized and 6 directed to prepare and file with the County Clerk, the appropriate form of a Notice of 7 Exemption in connection with the adoption of this Resolution. The Resolution shall become effective immediately upon its adoption. 8 Section 4. 9 /II 10 /II II /II 12 /II 13 1/1 14 /II 15 1/1 /II 16 /II 17 /II 18 1/1 19 1/1 20 /II 21 /II 22 /II 23 /II 24 /II 25 1/1 P:\Agendas\Resolutions\Resolutions\2004\04-12-06 4th & Waterman CDC Resodoc 3 CDCj2004-49 3 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING THE SALE OF CERTAIN REAL PROPERTY BY THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TO WATERMAN HOLDINGS, LLC AND AUTHORIZING THE AGENCY EXECUTIVE DIRECTOR TO EXECUTE THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE AGENCY AND WATERMAN HOLDINGS, LLC (4TH & WATERMAN AVENUE-APN 0135-191-11) 2 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 7 Community Development Commission of the City of San Bernardino at a j t. reg. meeting 8 thereof, held on the 6th day of December , 2004, by the following vote to wit: 9 Commission Members: Ayes Nays 10 ESTRADA X 11 LONGVILLE X - 12 MCGINNIS --.1L 13 DERRY --.1L 14 KELLEY X - 15 JOHNSON --.1L MC CAMMACK X 16 - Abstain Absent Approved a December ,2004. 17 18 19 The foregoing resolution is hereby approved this 20 21 22 J it Valles, Chairperson o munity Development Commission of e City of San Bernardino 23 24 25 By: 4 P:\Agendas\Resolutions\Resolutions\2004\04.12-06 4th & Waterman CDC ResQ,doc CDC/2004-49 2004 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND WATERMAN HOLDINGS, LLC 2004 DISPOSITION AND DEVELOPMENT AGREEMENT This 2004 DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of December 6, 2004, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic (the "Agency") and Waterman Holdings, LLC, a California limited liability corporation (the "Buyer"). The Agency and Buyer hereby agree as follows: RECITAL A. The Agency is the owner of that certain real property commonly known as APN 0135-91- 11 & 15, located at the southwest comer of Waterman Avenue and 4th Street, San Bernardino, California, and more particularly described in the legal description attached as Exhibit "A" (the "Agency Property"). The Agency Property is located in the Central City East Redevelopment Project Area and consists of an approximately 2.0 acre parcel to be established by the Agency prior to the close of escrow located approximately 300 feet west of the intersection of 4th Street and Waterman Avenue (the "Phase I Property"), an approximately 1.6 acre parcel to be established by the Agency prior to the close of escrow for the Phase I Property located at the intersection of 4th Street and Waterman Avenue (the "Phase II Property") and an approximately 0.9 acre parcel that consists of the flood control channel presently aligned to the south of the Phase I Property and the Phase II Property (the "Expansion Property"). B. The Agency Property consisting of the Phase I Property and the Phase II Property may sometimes be referred to as the "Property" in this Agreement, and the Phase I Property and the Phase II Property are more particularly illustrated in Exhibit "B" and subject to the Buyer providing the final legal descriptions with respect thereto prior to the close of the applicable escrow. The Expansion Property is more particularly described in the legal description attached as Exhibit "C". The Expansion Property is not a part of this Agreement and any disposition of such Expansion Property by the Agency to the Buyer shall be subject to further negotiations between the parties and a separate agreement approved by the parties at their sole discretion upon such terms and conditions as they may agree in the future. ARTICLE I Section 1.01. Purpose of Aereement. The purpose of this Agreement is to implement the Redevelopment Plan for the Central City East Project Area (the "Redevelopment Plan") by providing for the purchase and development by Buyer of the Agency Property. The purchase and development of the Property pursuant to this Agreement is in the vital and best interests of the City of San Bernardino (the "City") and the health, safety and welfare of its residents, and is in accord with the public purposes and provisions of applicable state and local laws. The Agency has determined that the purchase and development of the Property contemplated by this Agreement are consistent with the Redevelopment Plan for the Project Area. Section 1.02. The Aeencv Property. The Agency Property consists of approximately four acres of land, more or less. Buyer intends to develop a minimum of 16,864 square feet of office space for lease to the County of San Bernardino on the Phase I Property. The Buyer shall 4826-7561-6000.1826-7561-6000.1 1 P:\Agcndas\Agenda Anachments\Agnnts-Amend 2004\04-12-06 Waterman Holdings DDA,doc be entitled to close escrow to acquire fee title to the Phase II Property at anytime on or before December 4, 2009, but the delivery of a notice of intention to the Agency to acquire the Phase II Property which notice must be received by the Agency on or before October 1, 2009. Section 1.03. Benefit to Proiect Area. The Agency has determined that the purchase and development of the Agency Property by Buyer, in accordance with this Agreement, will materially assist in the elimination of blight and the implementation of the Redevelopment Plan for the Project Area. Section 1.04. Defined Terms. "City" means the City of San Bernardino. "Close of Escrow" means and refers to the date on which the conditions set forth in this Agreement for the transfer of the Property have been satisfied, but shall in no event exceed sixty (60) day from the Opening of Escrow (as defined below). "Escrow Agent" means and refers to Lawyers Escrow and Title, Carolyn Krumpp, which is also sometimes referred to here as "Title Company". "Person" means and refers to any individual, corporation, partnership, limited liability company, trust, governmental instrumentality or agency or other entity. Section 1.05. Parties to the A2reement. (a) The parties to this Agreement are the Agency and Buyer. The City is not a party to this Agreement. (b) Buyer as said term is defined herein is a California corporation. The principal office of Buyer for purposes of this Agreement is 4221 Wilshire Boulevard, Suite 240, Los Angeles, California 90010. (c) The Agency is a public body, corporate and politic, exercising governmental functions and power, and organized and existing under the Community Redevelopment Law of the State of California, Health and Safety Code Section 33000, et seq. The principal office of the Agency for purposes of this Agreement is 201 North E Street, Suite 301, San Bernardino, California, 92401, Attention: Executive Director. Section 1.06. Chan2e in Mana2ement and Control of Buver - Assi2nment and Transfer. (a) "Transfer" as used in this Section 1.06, means: (1) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form by Buyer of more than 49% interest (or series of such sales, assignments and the like which in the aggregate exceed a disposition of more than a 49% interest) with respect to its interest in this Agreement, the Agency Property or any part thereof or 4826-7561-6000.1826-7561-6000.1 2 P:\Agendas\Agcnda Attachmcnts\Agrmts-Amcnd 2004\04-12-06 Watmnan Holdings DDA.OOc any interest therein or of the improvements constructed thereon, or any contract or agreement to do any of the same; or (2) Any total or partial sale, assignment, conveyance, or transfer in any other mode or form, or with respect to any ownership interest in Buyer (or series of such sales, assignments and the like which in the aggregate exceed a disposition of more than 49% interest); or (3) Any merger, consolidation, sale or lease of all or substantially all of the assets of Buyer in the Agreement, the Agency Property (prior to the Close of Escrow) or any part thereof or any interest therein or the improvements constructed thereon (or series of such sales, assignments and the like which in the aggregate exceeded a disposition of more than a 49%) interest); or (4) The leasing of part or all of the Property, except for the leasing of office space in the normal course of business on the Agency Property. Section 1.07. List of Attachments to Al!:reement. Each of the following items or documents are hereby deemed to be approved by the parties as of the date of approval of this Agreement by the governing board of the Agency and each such item or document is incorporated into the text of this Agreement by this reference: Exhibit "A" Legal Description of the Agency Property Exhibit "B" Site Map of Phase I and Phase II Property Exhibit "C" Legal Description of the Expansion Property Exhibit "D" Form of Agency Quitclaim Deed Exhibit "E" Improvements Section 1.08. No Recordation of Al!:reement: Survival. This Agreement shall not be recorded as an encumbrance against title to any portion of the Property. This Agreement shall survive the Close of Escrow, but these surviving covenants shall be only personal covenants of the Agency and Buyer that do not run with any portion of the Agency Property. Documents recorded at the Close of Escrow shall run with the Agency Property. ARTICLE II Section 2.01. ACQuisition and Disposition ofthe Property. Subject to all of the terms, conditions and provisions of this Agreement, and for the consideration set forth below, the Agency hereby agrees to convey and transfer to Buyer and Buyer hereby agrees to acquire the following: all of the right, title and interest of the Agency in and to the Agency Property, including all right, title and interest of the Agency in all improvements thereon and in and to any land lying in the 4826-7561-6000.1826-7561-6000.1 3 P:\Agendas\AgendaAttachments\Agrmts-Amend 2004\04-12-06 Waterman Holdings DDA,doc right-of-way of any existing or proposed highway, street, road, avenue or alley abutting or adjoining the Agency Property. Section 2.02. Conditions for Transfer of the Property. (a) The Phase I Property shall be transferred to Buyer at the Close of Escrow provided that within the periods of time set forth in this Agreement (i) neither party has terminated this Agreement; (ii) Buyer has delivered to the Agency the Due Diligence Certificate regarding Section 2.11 and (iii) all other conditions of the Close of Escrow set forth in this Agreement have been met and the escrow costs relating to the Close of Escrow have been paid by the appropriate party. (b) The parties shall deliver jointly approved written escrow instructions (consistent with the terms of this Agreement) to the Escrow Holder for the transfer of the Phase I Property as soon as reasonably possible. (c) The parties shall likewise enter into a separate escrow at such time that the Buyer has delivered the notice of intent to acquire the Phase II Property as provided in this Agreement. Such notice of intent shall be delivered by the Buyer to the Agency on or before October 1, 2009, setting forth the intent of the Buyer to acquire the fee title to the Phase II Property upon payment of the purchase price determined as provided herein. The same conditions as set forth in subsection (a) above for the Close of Escrow for the Phase I Property shall apply for the Close of Escrow for the Phase II Property as appropriate. Section 2.03 Purchase Price: (a) The purchase price of the Agency Property is $466,014 (the "Agency Property Purchase Price") and shall be allocated between the Phase I Property and the Phase II Property on the basis of a price for the Phase I Property of $260,000, regardless of the final nonsubstantial adjustment in the size of the Phase I Property with the remainder of the price to be paid with respect to the Phase II Property. The Agency Property Purchase Price was determined on the basis of a land valuation pursuant to an independent appraisal report equal to $3.00 per square foot which valuation has been determined by the Agency to be the fair market value for the Agency Property to be sold to the Buyer. The Agency Property Purchase Price for the Phase I Property shall be paid and the Escrow shall close for the Phase I Property on or before June 1, 2006, after which date either party may terminate this Agreement upon notice to the other party. (b) Payment of Agencv Property Purchase Price. Upon the Opening of Escrow (as defined below) for each of the Phase I Property and the Phase II Property Buyer shall deliver to Escrow a non-refundable deposit in the amount of Twenty Thousand Dollars ($20,000.00) (the "Deposit") for each such escrow. The Deposit, together with an additional cash amount to be remitted by the Buyer into Escrow to be equal to $240,000, shall be applied to the Agency Property Purchase Price of $260,000 at the Close of Escrow for the Phase I Property. The Agency shall retain ownership of the Phase II Property until such time as the Buyer elects to acquire said Phase II Property. Upon the Opening of Escrow for the Phase II Property, the Deposit shall be made by the Buyer and the remainder of the Agency Property Purchase Price shall be remitted to Escrow for acquisition of the Phase II Property. 4826-7561-6000.1826-7561-6000.1 4 P:\Agendas\AgcndaAttachments\Agnnts-Amend 2004\04- I 2..()6 Waterman Holdings DDA_doc Section 2.04. Openine: of Escrow. (a) The transfer and sale of each of the Phase I Property and the Phase II Property shall take place through escrow (the "Escrow") to be administered by Escrow Holder. The Escrow for the Phase I Property shall be deemed open ("Opening of Escrow") upon the receipt by the Escrow Holder of a fully executed copy of this Agreement, and a second separate Opening of Escrow for the Phase II Property shall be deemed to have occurred upon delivery to Escrow Holder of written notice of Buyer's election to acquire the Phase II Property pursuant to Section 1.02 and 2.03(b), above. The Escrow Holder shall promptly confirm to the parties the escrow number and the title insurance order number assigned to the Escrow for each of the purchase of the Phase I Property and the Phase II Property by their respective separate escrows with the Escrow Holder. (b) In the event that Buyer has not delivered its Due Diligence Certificate for the Property within 15 days after the Opening of Escrow for the Phase I Property and the Phase II Property, as applicable, the provisions of Section 4.01 regarding termination of this Agreement shall apply. If this Agreement is terminated as provided in Section 4.01, notwithstanding Section 2.05, Buyer shall be solely responsible to the Escrow Holder for all customary and reasonable escrow cancellation charges payable to the Escrow Holder without further or separate instruction to the Escrow Holder, and the parties shall each be relieved and discharged from all further responsibility or liability under this Agreement. Section 2.05. Supplemental Escrow Instructions. In addition to the jointly approved escrow instructions referred to in Section 2.02(b), Buyer and the Agency each agree to execute the customary supplemental escrow instructions of the Escrow Holder in the form provided by the Escrow Holder to its clients in real property escrow transactions administered by it, subject to the same being reasonably acceptable to Buyer and the Agency. In the event of a conflict between the additional terms of such customary supplemental escrow instructions of the Escrow Holder and the provisions of this Agreement, this Agreement shall supersede and be controlling. Upon any termination of this Agreement or cancellation of the Escrow except as results from the default of the Agency, Buyer shall be solely responsible for the payment of the escrow cancellation costs of the Escrow Holder, except that the Agency shall be responsible if such termination is the result of the default of the Agency. Section 2.06. Conveyance of Title. (a) Title to each of the Phase I Property and the Phase II Property shall be conveyed from Agency to Buyer through Escrow on or before the day designated as the date for the Close of Escrow for each of the Phase I Property and the Phase II Property (each being referred to herein as the "Closing Date"), provided that Escrow Holder has prorated rates as of the Closing Date and has delivered a preliminary title report to the parties issued through the Escrow issued, and when all other conditions of this Agreement have been met. The Escrow Holder shall be instructed to record the Agency Quitclaim Deed in the form as attached hereto as Exhibit "D" ("Agency Quitclaim Deed") in the Official Records of San Bernardino County, California, if and when the Escrow Holder holds the various instruments and funds for the accounts of the parties as set forth herein and can obtain for Buyer if requested, a CL T A Buyer's extended coverage policy of title insurance ("Title Policy") issued by the Title Company or such other title 4826-7561-6000.1826-7561-6000.1 5 P:\Agendas\AgcndaAnachments\Agrmts.Amend 2004\04-12-06 Watmnan Holdings DDA.OOc insurance company mutually agreed upon by the parties with liability in an amount equal to such amount as determined by and between Buyer and the Title Company together with such endorsements to the policy as may be reasonably requested by Buyer, insuring that fee title to the Agency Property is vested in Buyer, free and clear of options, rights of first refusal or other purchase rights, leases or other possessory interests, lis pendens and monetary liens and/or encumbrances and subject only to: (1) non-delinquent real property taxes; (2) non-monetary title exceptions approved by the Buyer pursuant to Section 2.14 below; (3) the Redevelopment Plan; (4) such other title exceptions, if any, resulting from documents being recorded or delivered through Escrow. Section 2.07. Additional Closinl! Oblil!ations of Al!encv. Before the Close of Escrow for each of the Phase I Property and the Phase II Property, the Agency shall deliver to the Escrow Holder copies of the following documents and other items: (1) a certificate of non-foreign status (the "Non-Foreign Affidavit") executed by the Agency, in the customary form provided by the Escrow Holder, and a California Franchise Tax Board Form 590-RE executed by the Agency; (2) two duplicate original copies of the Closing Statement, duly approved by the Agency; (3) evidence of the existence, organization and authority of the Agency and of the authority of persons executing documents on behalf of the Agency reasonably satisfactory to the Escrow Holder, Buyer and the Title Company; (4) the subdivision or other lot line adjustment as is required by the City for the establishment of the Phase I Property and the Phase II Property in the approximate square footage sizes as contemplated by this Agreement; (5) any other documents, instruments and records required to be delivered to Buyer under the terms of this Agreement or as otherwise required by the Escrow Holder or the Title Company under the terms of this Agreement in order to Close Escrow which have not been previously delivered. Section 2.08. C1osinl! Oblil!ations of Buver. (a) Before the Close of Escrow for each of the Phase I Property and the Phase II Property, Buyer shall deliver to the Escrow Holder copies of the following documents and other items: (1) two duplicate original copies of the Closing Statement, duly approved by Buyer; (2) deposit of the additional cash amount as provided in Section 2.03(b); and 4826-7561-6000.1826-7561-6000.1 6 P:\Agcndas\Agenda AuachmcnIJ\Agnms-Amend 2004\04-12.()6 Watennan Holdings DDA.doc (3) any other documents, instruments or funds required to be delivered by Buyer under the terms of this Agreement or as otherwise required by the Escrow Holder or the Title Company in order to close Escrow, which have not previously been delivered, including the final legal descriptions for the Phase I Property and the Phase II Property, as applicable, subject to approval by the Agency Executive Director. (b) Prior to the Close of Escrow for the Phase I Property, the Buyer shall provide to the Executive Director of the Agency (i) an originally executed copy of that certain lease agreement by and between the Buyer and the County of San Bernardino (the "County") for the lease by the County of approximately 16,864 of office space to be built by the Buyer upon the Phase I Property ("Lease Agreement"), and (ii) copies of the development permit approvals as issued by the Development Services Department of the County demonstrating that the facility contemplated by the Lease Agreement has been granted all entitlements and building permits to allow for the immediate commencement of construction upon the Close of Escrow for the Phase I Property, and (iii) written evidence of construction financing and/or equity funds to provide for the construction of the facility that will be the subject of the Lease Agreement. Such Lease Agreement specified in item (i) above, the entitlement documents specified in item (ii) above and the evidence of construction financing and/or equity funds specified in item (iii) above shall be subject to the reasonable approval by the Executive Director and Agency Counsel to ensure that upon the Close of Escrow of the Phase I Property the construction and development of the intended building will be immediately commenced by the Buyer. (c) Provided that the Buyer has duly performed for the Close of Escrow for the Phase I Property and this Agreement is then in effect, at anytime prior to the Close of Escrow for the Phase II Property which must Close of Escrow must occur on or before December 4, 2009, the Buyer shall provide the Agency with the following documents and items to demonstrate that the Phase II Property is being acquired solely for the purpose of development of a building or structure thereon that is permitted to be built by the City and that the Phase II Property is not being acquired for the purpose of speculation or for resale to another party or for a Transfer that is not otherwise permitted pursuant to Section 1.06 hereof. At the time that the Buyer delivers its notice of intent to acquire the Phase II Property, the Buyer shall provide the Agency with the following documents on or before October 1, 2009: (1) the final copy of the development permit as issued by the Development Services Department of the City together with all conditions of approval imposed by the City and copies of any conditional use permit or other zone change or General Plan Amendment as applicable to the Phase II Property; (2) the lease with a tenant or statement from the Buyer that the development of the Phase II Property is for a spec building intended for lease to one or more prospective tenants not presently identified; (3) copies of construction loan commitments from commercial lenders setting forth the terms and conditions upon which the construction loan will be made for the Phase II Property; 4826-7561-6000.1826-7561-6000.\ 7 P:\Agendas\Agenda Attachments\Agnms-Amend 2004\04-12-06 Waterman Holdings DDA,doc (4) verification that the Buyer has sufficient equity funds and cash available for the completion of the construction of the improvements intended for the Phase II Property together with the funds to be made available from the construction loan; (5) a statement from the Buyer that the Buyer will not resell the Phase II Property except as permitted pursuant to this Agreement; (6) written verification by the Buyer that the Phase I Property has been duly acquired by the Buyer pursuant to this Agreement and that the Buyer has not received any notice of default from the Agency under this Agreement that remains uncured as of the date of such verification. Section 2.09. Environmental Law. For the purposes of this Agreement, the terms set forth below shall have the following meanmg: (i) "environmental laws" means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, or decrees, regulating, relating to, or imposing liability of standards of conduct concerning any hazardous substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Agency Property), occupational or environmental conditions on, under, or about the Agency Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") [42 USC Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 ("RCRA") [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33 USC Section 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act ("HMTA") [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C Section 25288 et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C Section 24249.5 et seq.] and the Porter-Cologne Water Quality Act [Water Code Section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, statutes, ordinances, or regulations relate to hazardous substances on, under, or about the Agency Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. 4826-7561-6000.1826-7561-6000.1 8 P:\Agendas\AgendaAnachments\Agnms-Amend 2004\04.12-06 Waterman Holdings DDA.doc (ii) "hazardous substances" includes without limitation: those substances included within the definitions of "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminate" in CERCLA, RCRA, TSCA, HMT A, or under any other environmental law; and those substances listed in the United States Department of Transportation (DOT)Table [49 CFR 172.101], or by the EPA, or any successor agency, as hazardous substances [40 CFR Part 302]; and other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and any material, waste, or substance that is: (1) a petroleum or refined petroleum product, (2) asbestos, (3) polychlorinated biphenyl, (4) designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317, (5) a flammable explosive, or (6) a radioactive material. Section 2.10. Due Dilie:ence Investie:ation of the Ae:encv Property. (a) Within fifteen (15) days from and after the applicable Opening of Escrow for each of the Phase I Property and the Phase II Property, and subject to the extensions of time set forth below in Section 2.14, the Buyer shall have the right to examine, inspect and investigate the Agency Property (the "Due Diligence Period") to determine whether the condition of the Agency Property is acceptable to the Buyer. (b) During the Due Diligence Period, the Agency shall permit the Buyer, its engineers, analysts, contractors and agents to conduct such physical inspections and testing of the Agency Property as the Buyer deems prudent with respect to the physical condition of the Agency Property, including the inspection or investigation of soil and subsurface soil geotechnical condition, drainage, seismic and other geological and topographical matters, surveys the potential presence of any hazardous substances, if any. (c) Any such investigation work on the Agency Property may be conducted by the Buyer and/or its agents during any normal business hours upon seventy-two (72) hours prior notice to the Agency, which notice will include a description of any investigation work or tests to be conducted by the Buyer on the Agency Property. Upon request, the Buyer will provide the Agency with copies of any test results. (d) During the Due Diligence Period, the Buyer shall also have the right to investigate all matters relating to the zoning, use and compliance with other applicable laws, which relate to the use and development and improvement of the Property. 4826-7561-6000.1826-7561-6000.\ 9 P:\Agendas\Agenda Attachments\Agrmts-Amend 2004\04-12...06 Walerman Holdings DDA.doc (e) The Agency shall cooperate fully to assist the Buyer in completing such inspections and investigations of the condition of the Agency Property. Both parties shall have the right, but not the obligation, to attend any such investigations and/or inspections. Buyer shall pay for all costs and expenses associated with the conduct of their Due Diligence investigation. Section 2.11. Due Dilie:ence Certificate. Within fifteen (15) days following the applicable Opening of Escrow for each of the Phase I Property and the Phase II Property, the Buyer shall complete their own investigation of the Agency Property (subject to the extensions of time set forth in Section 2.14) and deliver an executed due diligence certificate (the "Due Diligence Certificate") to the Escrow Holder which either: (a) indicates that the Buyer accepts the condition of the Phase I Property or the Phase II Property, as applicable; or (b) contains a description of the matters or exceptions relating to the condition of the respective portion of the either the Phase I Property or the Phase II Property which the Buyer was not able to accept or resolve to its satisfaction during the applicable Due Diligence Period. Section 2.12. Books and Records. As part of the due diligence investigations during the Due Diligence Period, Buyer shall be afforded full opportunity by the Agency to examine all books and records which relate to the respective portion of the Agency Property in the possession of the Agency or the Agency's agents or employees, including the reasonable right to make copies of such books and records. During the Due Diligence Period, the Agency will make sufficient staff available to assist Buyer with obtaining access to information relating to the Agency Property. Section 2.13. Condition of the Property. The Buyer acknowledges and agrees that it shall be given a full opportunity under this Agreement to inspect and investigate every aspect of the Phase I Property and the Phase II Property during the applicable Due Diligence Period. The Buyer shall accept the delivery of possession of the Phase I Property and the Phase II Property, as applicable, being purchased on the Close of Escrow in an "AS IS", "WHERE IS" and "SUBJECT TO ALL F AUL TS" condition. The Buyer further agrees and represents that by a date no later than the end of the Due Diligence Period, the Buyer shall have conducted and completed (or waived the completion) of all of its independent investigation of the condition of the Phase I Property and the Phase II Property. The Buyer hereby acknowledges that it shall rely solely upon its own investigation of the Phase I Property and the Phase II Property and its own review of such information and documentation as it deems appropriate for the purpose of accepting the condition and possession of its portion of the Phase I Property and the Phase II Property. The Buyer is not relying on any statement or representation by the Agency relating to the condition of the Phase I Property and the Phase II Property unless such statement or representation is specifically contained in this Agreement. Without limiting the foregoing, neither party makes any representations or warranties as to whether any portion of the Agency Property presently complies with environmental laws or whether any portion of the Agency Property contains any hazardous substance, as these terms are defined in Section 2.09 hereof. Furthermore, to the extent that a party has provided the other respective party with information relating to the condition of apy portion of the Agency Property, including information and reports prepared by or on behalf of the City of San Bernardino, the Agency does not make any 4826-7561-6000.\826-756\-6000.\ 10 P:\Agendas\AgendaAttachments\Agrmts-Amcnd 2004\04.12-06 Waterman Holdings DDA.doc representation or warranty with respect to the accuracy, completeness or methodology or content of such reports or information. The Buyer acknowledges that there was the existence of previous structures and buildings upon the Agency Property and it is not known to what extent underground structures, pipelines, utilities and other similar subterranean improvements may presently exist on the Agency Property at and below ground level. The Buyer shall conduct its own subterranean investigations and soils reports and further acknowledges that it has not relied upon any written document, oral statement or other representations made by or on behalf of the Agency with regard to the conditions of the soils or as to any subterranean structures or other unknown physical conditions with the Agency Property. Without limiting the above, except to the extent covered by an express representation or warranty of either party set forth in this Agreement, the Buyer, on behalf of itself and its successors and assigns, waives and release the Agency and its successors and assigns from any and all costs or expenses whatsoever (including, without limitation, attorneys' fees and costs), whether direct or indirect, known or unknown, foreseen or unforeseen, arising from or relating to the physical condition of the Agency Property being transferred by the Agency, the condition of the soils, the suitability of the soils for improvement, or any law or regulation applicable thereto, including the presence or alleged presence of harmful or hazardous substances in, under or about that portion of the Agency Property including, without limitation, any claims under any environmental laws. With respect to the Phase I Property and the Phase II Property being transferred to the Buyer, the Buyer expressly waives any rights or benefits available to it with respect to the foregoing release under any provision of applicable law which generally provides that a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time the release is agreed to, which, if known to such creditor, would materially affect a settlement. By execution of this Agreement, the parties acknowledge that they fully understand the foregoing, and with this understanding, Buyer nonetheless elects to and does assume all risk for claims known or unknown, described in this Section 2.13 without limiting the generality of the foregoing: The Buyer acknowledges that it has been advised by legal counsel and is familiar with the provisions of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." The undersigned Buyer, being aware of this Code section, hereby expressly waives any rights it may have thereunder, as well as under any other statutes or common law principles of similar effect. 4826-7561-6000.1826-7561-6000.1 11 P:\Agendas\AgcndaAttachments\AgnntS-Amend 2004\04-12-06 Walennan Holdings DDA.doc: Initials of Buyer: ~ The provisions of this Section 2.13 shall survive the Close of Escrow for each of the Phase I Property and the Phase II Property. Section 2.14. Review and Approval of Condition of Title. (a) Within fifteen (15) days following the applicable Opening of Escrow, the Agency shall cause to be delivered to the Buyer a preliminary title report or title commitment for a CL T A extended coverage policy of title insurance issued by the Title Company, describing the state of title of the Phase I Property and the Phase II Property, as applicable, to be transferred to the Buyer, together with copies of all exceptions specified therein and with all easements plotted, (the "Preliminary Title Report"). Buyer shall notify the Agency in writing of any objections it may have to the title exceptions contained in the Preliminary Title Report ("Title Objection Notice") prior to the expiration of the Due Diligence Period. The Agency shall have a period of five (5) days after receipt of such Title Objection Notice in which to deliver written notice to the Buyer ("Title Notice") of Buyer's election to either (i) agree to remove the objectionable items prior to the Close of Escrow, or (ii) decline to remove any such title exceptions; provided, however, that Agency shall be required to remove all monetary liens and encumbrances created by or as a result of the Agency's activities. If the Agency, within five (5) days after receipt of the Title Objection Notice, notifies the Buyer of its election to terminate Escrow rather than remove the objectionable items, the objecting party shall have the right, by written notice delivered to the Agency within five (5) days after the its receipt of the Title Notice, to agree to accept the Phase I Property and the Phase II Property, as applicable, subject to the objectionable items, in which event the election to terminate the Escrow shall be of no effect, and the Buyer shall take title at the Close of Escrow subject to such objectionable title items. (b) The parties covenant not to further encumber and not to place any further liens or encumbrances on any portion of the Agency Property, including, but not limited to, covenants, conditions, restrictions, easements, liens, options to purchase, options to lease, leases, tenancies, or other possessory interests without the prior written consent of the other party. Upon the issuance of any amendment or supplement to the Preliminary Title Report which adds additional exceptions, the foregoing right of review and approval shall also apply to said amendment or supplement (provided that the period for the respective party to review such amendment or supplement shall be the later of the expiration of the Due Diligence Period or ten (10) days from receipt of the amendment or supplement) and Escrow shall be deemed extended by the amount of time necessary to allow such review and approval in the time and manner set forth above. ARTICLE III Section 3.01. Uses. (a) Acknowledgements ofBuver. Buyer acknowledges and agrees for itself, its successors and assigns that the Agency Property may be used for any lawful purpose so long as such use is in compliance with the General Plan, the Redevelopment Plan and the Zoning Plan, in existence and as each may be amended from time to time by the City, the Agency or other authorized governmental agency. 4826-7561-6000.1826-7561-6000.1 12 P:\Agcndas\Agcnda Attacltment5\Agrrms-Amend 2004\04-12..06 Watcnnan Holdings DDA.doc The provisions of this Section 3.01(a) shall run with the land as set forth in the Agency Quitclaim Deed. (b) Buyer covenants for itself, its successors and assigns that, unless otherwise consented to in writing by the Agency, in the event the Agency Property, or any portion thereof is used by an owner that is partially or wholly exempt from the payment of ad valorem property taxes pertinent to the Agency Property, or portion thereof, and does not make the tax payment for any year based on that exemption, then in such event the then owner of the Agency Property, shall pay the Agency a fee in lieu of payment of property taxes each year thereafter in an amount equal to the applicable percentage of the full cash value as determined in accordance with the State Construction Article XIIIA and other state law for the property, or portion thereof which is subject to the exemption, unless the Agency consents otherwise in writing. In the event that the in-lieu payment referenced above is due by the Buyer or any successor in interest for any year, then such amount shall be paid to the Agency for the tax year within 90 calendar days following transmittal of notice of invoice by the Agency for payment of the in-lieu amount addressed to the Buyer of the Agency Property as disclosed in the property tax records of the County of San Bernardino. (c) The provisions of Section 3.0l(b) shall run with the land as set forth in the Agency Quitclaim Deed for each of the Phase I Property and the Phase II Property. (d) The Buyer covenants and agrees to construct certain improvements on the Phase I Property, all as set forth in Exhibit "E". Section 3.02. Modification of Covenants. The provisions of this Article III may be amended, modified or waived following the Close of Escrow as provided in the Agency Quitclaim Deed for each of the Phase I Property and the Phase II Property. Section 3.03. Oblh!:ation to Refrain from Discrimination. In accordance with California Health and Safety Code Sections 33435 and 33436, Buyer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Agency Property or any part 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 origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Agency Property; nor shall Buyer, himself, 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, sublessee or vendees of the Agency Property or any part thereof. Section 3.04. Form of Nondiscrimination and Nonset!:rei!:ation Clauses. Buyer acknowledges that the Agency Quit Claim Deed contains the following provision: "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 race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under 4826-7561-6000.1826-7561-6000.1 13 P:\Agendas\Agenda Attachments\Agnnts.Amend 2004\04.12-06 Waterman Holdings DDAdoc 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, sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land". Section 3.05. No Liabilitv for Breach to a Predecessor in Interest. A breach or a violation by an owner of the Agency Property, or a portion thereof, of a covenant set forth in this Article III shall not subject such owner's predecessor in interest in the Agency Property to any liability for such breach or violation. A breach by a tenant on the Agency Property of Section 3.03 or Section 3.04 shall not subject such tenant's landlord to liability for the breach by such tenant. Section 3.06. Ag:encv Quit Claim Deed. All of the provisions in Sections 3.01 to 3.05, inclusive, shall be included in the Agency Quit Claim Deed for each of the Phase I Property and the Phase II Property. Accordingly, Sections 3.01 to 3.05, inclusive, shall not survive each such Close of Escrow except as personal covenants of Buyer. Section 3.07. Maintenance Condition of the Ag:encv Property. Subject to the satisfaction of the conditions of Section 3.01(d) of this Agreement, the Buyer for itself, its successors and assigns hereby covenants and agrees that: (a) The areas of the Agency Property, which are subject to public view (including all existing improvements, paving, walkways, landscaping, exterior signage and ornamentation), shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. In the event that at any time within ten (10) years following the date of recordation of the Notice of Memorandum of Agreement there is an occurrence of an adverse condition on any area of the Agency Property which is subject to public view in contravention of the general maintenance standard described above, (a "Maintenance Deficiency") then the Agency shall notify the Buyer in writing of the Maintenance Deficiency and give the Buyer thirty (30) days from receipt of such notice to cure the Maintenance Deficiency as identified in the notice. In the event the Buyer fails to cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may conduct a public hearing following transmittal of written notice thereof to the Buyer ten (10) days prior to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency exists and whether the Buyer has failed to comply with the provisions of this Section 3.07(a). If upon the conclusion of a public hearing, the Agency makes a finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the general maintenance standard, described above, thereafter the Agency shall have the right to enter the Agency Property and perform all acts necessary to cure the Maintenance Deficiency, or to take other action at law or in equity which the Agency may then have to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a Maintenance Deficiency on the Agency Property authorized by this Section 3.07(a) shall become a lien on the Agency Property. If the amount of the lien is not paid within thirty (30) days after written demand for payment by the Agency to the Buyer, the Agency shall have the right to enforce the lien in the manner as provided in Section 3.07(b). (b) The parties hereto further mutually understand and agree that the rights conferred upon the Agency under this Section 3.07 expressly include the power to establish and enforce a lien or other encumbrance against the Agency Property, or any portion thereof, in the manner 4826-7561-6000.1826-7561-6000.1 14 P:\Agcndas\Agenda Attachmcnts\Agrmts-Amcnd 2004\04-12-06 Waterman Holdings DDA.doc provided under Civil Code Sections 2924, 2924b and 2924c in an amount reasonably necessary to restore the Agency Property to the maintenance standard required under Section 3.07(a), including the reasonable attorneys' fees and costs of the Agency associated with the abatement of the Maintenance Deficiency. For the purposes of the preceding sentence the words "reasonable attorneys' fees and costs of the Agency" mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney. The provisions of this Section 3.07, shall be a covenant running with the land for a term often (10) years following the date of recordation of the Notice of Memorandum of Agreement, and shall be enforceable by the Agency. Nothing in the foregoing provisions of this Section 3.07 shall be deemed to preclude the Buyer from making any alteration, addition, or other change to any structure or improvement or landscaping on the Agency Property, provided that any such changes comply with applicable zoning and building regulations ofthe City of San Bernardino. Section 3.08. Pled2e of Tax Increment Revenues to Buver. (a) The Agency hereby pledges to the Buyer an amount equal to sixty percent (60%) of the one percent (1 %) general property taxes, exclusive of any override taxes, special taxes, ad valorem taxes for general obligation bonded indebtedness or other special assessments, paid by the Buyer and received by the Agency as tax increment revenues attributable to the developments that shall occur upon the Phase I Property and the Phase II Property within the Project Area (the "Pledged Tax Increment"). The Agency shall be responsible to pay from the forty percent (40%) of the tax increment revenues to be retained by the Agency for the deposit of the twenty percent (20%) of the tax increment revenues into the Low and Moderate Income Housing Fund of the Agency and the payment of any and all ERAF and pass-through payments, whether pursuant to statute or agreement or otherwise, to taxing entities receiving property taxes within the Project Area. (b) The payments of the Pledged Tax Increment shall commence in the fiscal year next succeeding the fiscal year in which the Buyer receives a separate certificate of occupancy for the developments upon the Phase I Property and the Phase II Property and continuing for a total of ten (10) fiscal years after the fiscal year in which a certificate of occupancy is so issued for each of such developments upon the Agency Property. It is recognized that there will be in all probability two (2) separate ten-year periods consisting of one each for the Phase I Property and another for the Phase II Property. (c) The Agency shall remit the Pledged Tax Increment to the Buyer on a semi-annual basis within thirty (30) calendar days after the following events shall have occurred with respect to each payment of the County one percent (1 %) property taxes: (i) the Buyer has duly paid the applicable property taxes on a timely basis on or before December 10 and April 10, or any other delinquency date for the payment of any supplemental property taxes for the first fiscal year of the ten-year period, (ii) the Buyer has provided to the Agency copies of the applicable property tax bill and copies of a canceled check or other official receipt from the County indicating that the payment has been made by the Buyer and received by the County, and (iii) payment of the tax increment revenues has been verified by the Agency as having been received from the County for the property tax payment for which the Pledged Tax Increment payment is then intended to be made by the Agency to the Buyer, and (iv) as of the date of each payment to the Buyer of the Pledged Tax Increment, the Buyer continues to be the owner of the Phase I Property or the Phase II Property, as applicable, and there has been no Transfer, assignment or sale or other conveyance of the Phase I Property, the Phase II Property or any interest in this Agreement not otherwise permitted herein. 4826-7561-6000.1826-7561-6000.1 15 P:\Agendas\Agenda Attachments\Agrmts-Amend 2004\04-12-06 Waterman Holdings DDA.doc (d) In the event that the Buyer should Transfer any interest in this Agreement, the Phase I Property or the Phase II Property or sell either the Phase I Property or the Phase II Property prior to the expiration of the applicable ten-year periods for the receipt of the Pledged Tax Increment, the obligation of the Agency for any further remittances of the Pledged Tax Increment shall immediately cease and terminate as to the that portion of the Agency Property to which such inappropriate Transfer or other sale of conveyance has occurred. Section 3.09. Aeencv Phase II Property Interim Site Improvements. (a) The Agency hereby agrees to pay directly or to reimburse to the Buyer for the costs to be incurred and/or paid by the Buyer for certain interim site improvements to be constructed by the Buyer upon and adjacent to the Phase II Property. Such interim site improvements shall be limited to the following: (i) wrought iron fencing to be located along the perimeter on 4th Street and W aterman Avenue and the parcel line between the Phase I Property and the Phase II Property and chain link fencing or such other suitable fencing materials as may be approved by the City through the site design approval process for the southern parcel line adjacent to the flood control channel; and (ii) landscaping improvements, plantings and landscaping materials and irrigation systems adjacent to or within the perimeter fence line with such landscaping materials and plantings as may be approved by the City through the site design approval process which are considered to be low maintenance and drought resistant landscaping materials. Such reimbursement request shall be submitted in writing to the Agency together with all applicable supporting materials and invoices indicating the party to whom payment shall be paid, and, if to be reimbursed to the Buyer, then additional verification in the form of canceled checks to demonstrate that the payments have been duly made by the Buyer. The Agency obligation to payor reimburse for such interim site improvements shall not exceed $50,000 and the Buyer shall pay all necessary costs in excess of said amount. All payments to be remitted by the Agency pursuant to this subsection (a) shall be made within thirty (30) calendar days after receipt provided that the Agency has not in good faith contested any aspect of the payment or reimbursement request. (b) The Agency shall be responsible for maintaining the Phase II Property in accordance with such maintenance standards as may be deemed appropriate by the Agency in its sole discretion. In the event that the Buyer determines that the maintenance of the Phase II Property is inadequate for the business needs of the Buyer, the Buyer shall be permitted by the Agency to maintain such Phase II Property interim site improvements to such greater standard as deemed appropriate by the Buyer at the sole cost and expense of the Buyer. (c) Upon any acquisition of the Phase II Property by the Buyer in accordance with this Agreement for the development of an office building on the Phase II Property or such other development thereon that utilizes any portion of the perimeter fencing, the Buyer shall reimburse to the Agency the costs of the perimeter fencing, landscaping and irrigation systems for the development project on the Phase II Property that were paid by the Agency pursuant to subsection (a) above. 4826-7561-6000.1826-7561-6000.1 16 P:\Agendas\Agcnda Attadnnerlls\Agrrnts~Amend 2004\04-12-06 Waterman Holdings DDA.doc ARTICLE IV Section 4.01. Defaults and Remedies. (a) In the event all of Buyer's conditions precedent to the Close of Escrow are satisfied or waived by Buyer, and Buyer defaults in the performance of its obligations under this Agreement, and such default continues for five (5) calendar days after the Agency gives Buyer written notice thereof, then the Agency may exercise all available remedies at law or in equity, including, without limitation, specific performance. (b) In the event all of the Agency's conditions precedent to the Close of Escrow have been satisfied or waived, and the Agency defaults in the performance of its obligations hereunder and has not cured such default within ten (10) calendar days after Buyer gives the Agency written notice thereof, or has not commenced to cure within ten (10) calendar days of such notice if such default cannot be cured within ten (10) calendar days and thereafter diligently pursued such cure, then Buyer may exercise all available remedies at law or in equity, including, without limitation, specific performance. ( c) Notwithstanding the above, a breach of any obligation of either of the parties under this Agreement that by its terms survives the termination of this Agreement or the Close of Escrow for both the Phase I Property and the Phase II Property, shall entitle the other party to exercise all available remedies, at law or in equity, with respect to such breach subject to the limitations set forth in this Agreement regarding limitations of the liability of the Agency. (d) The laws of the State of California shall govern the interpretation and enforcement of this Agreement. (e) In the event that any legal action is commenced by Buyer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director of the Agency, or in such other manner as may be provided by law. (f) In the event that any legal action is commenced by the Agency against Buyer, service of process on Buyer shall be made by personal service on Buyer (or such other Agent for service of process and at such address as may be specified in written notice to the Agency), or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. (g) In the event Buyer shall fail to perform as required by this Agreement, the Agency shall have the right to terminate the Agreement after the delivery of notice pursuant to Section 5.01 including, but not limited to, failure to comply with performance by the applicable dates for the Close of Escrow and the providing of notice as set forth in Section 1.02 for the Phase II Property and the date set forth in Section 2.03(a) for the Phase I Property. Section 4.02. Rh?:hts and Remedies are Cumulative. Except as otherwise expressly provided in this Agreement, the rights and remedies of the parties as set forth in this Article IV are cumulative and the exercise by either 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 the other party. 4826-7561-6000.1826-7561-6000.\ 17 P:\Agcndas\AgcodaAttachmcnts\Agrmts.Amend 2004\04.12-06 Watennan Holdings DDA.doc ARTICLE V Section 5.01. Notices. Demands and Communications Between the Parties. Any and all notices, demands or communications submitted by any party to another party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by fax and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the Agency and Buyer, as applicable, as designated in Section 1.03(a) and Section 1.03(b) hereof. Courtesy copies of notices, demands or communications submitted by Buyer to the Agency shall be submitted to: James F. Penman City Attorney 300 North "D" Street San Bernardino, California 92418 Timothy J. Sabo Lewis Brisbois Bisgaard Smith LLP 650 E. Hospitality Lane, Suite 600 San Bernardino, California 92408 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 as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 5.02. Conflict of Interest. No member, official or employee of the Agency having any conflict of interest, direct or indirect, related to this Agreement and the transfer of the Agency Property or any portion thereof shall participate in any decision relating to the Agreement. The parties represent and warrant that they do not have knowledge of any such conflict of interest. Section 5.03. Warranty A2ainst Pavment of Consideration for A2reement. Buyer warrants that it has not paid or given, and will not payor give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section, shall not include persons to whom fees are paid for professional services if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by Buyer. Section 5.04. Nonliability of A2encv Officials and Emplovees. No officer, official or employee of the Agency (or member unit of local government of the Agency or any officer, official or employee of any of them) shall be personally liable to Buyer, or any successor in interest of Buyer, in the event of any default or breach by the Agency or for any amount which may become due to Buyer or to its successor, or on any obligations under the terms of this Agreement, except for gross negligence or willful acts of such member, officer or employee. 4826-7561-6000.1826-7561-6000.1 18 P:\Agendas\AgendaAttachments\Agnnts-Amend 2004\04-12..06 Waterman Holdings DDA.doc Section 5.05. Enforced Delav: Extension of Time of Performance. (a) Performance by either party hereunder shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to the force majeure events of war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes or weather-caused delays (that are not attributable to the fault of the party claiming an extension of time) or acts or failure to act of any public or governmental agency or entity (provided that acts or failure to act of the Agency shall not extend the time for the Agency to act hereunder except as provided in Section 5.05(b)). An extension of time for any such force majeure cause shall be for the period of the enforced delay and shall commence to run from the date of occurrence of the delay; provided, however, that the party claiming the existence of the delay first provide the other party with written notice of the occurrence of the delay within ten (10) calendar days of the occurrence of the event giving rise to delay. The parties hereto expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of any of them which may have provided a basis for entering into this Agreement and which occur at any time after the execution of this Agreement, are not force majeure events and do not provide any party with grounds for asserting the existence of a delay in the performance of any covenant or undertaking which may arise under this Agreement. Each party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such party under this Agreement, but that such inconvenience or hardship is not a force majeure event and does not excuse the performance by such party of its obligations under this Agreement. Not withstanding the above, the final dates for the submittal of the notice of intent to acquire the Phase II Property and the final date for the Close of Escrow for the Phase II Property shall not be modified under any conditions by the provisions of the this Section 5.05(a). (b) Buyer 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. Buyer hereby assumes the risk of delays and damages that may result to Buyer from any such third-party legal actions related to the Agency's approval of this Agreement or contemplated by 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 a legal action regarding the Agency's approval of this Agreement or the transfer of the Property as contemplated by this Agreement, the Agency may terminate this Agreement on sixty (60) calendar days' written notice to Buyer of the Agency's intent to terminate this Agreement, referencing this Section 5.05(b), without any further obligation to perform the terms of this Agreement or any liability to Buyer resulting from such termination unless Buyer agrees to defend the Agency against such third-party legal action as provided below. Within thirty (30) calendar days after receipt of the Agency's notice of intent to terminate this Agreement as provided in the preceding sentence, Buyer 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 and the expenses of any and all financial or performance obligations that may result from the disposition of the legal 4826-7561-6000.1826-7561-6000.1 19 P:\Agendas\AgendaAttachments\Agrmts-Amcnd 2004\04-12..Q6 Walennan Holdings DDA.doc action. Any such offer from Buyer must be in writing and in a form reasonably acceptable to the Agency. (c) Buyer acknowledges that the Agency is a redevelopment agency under the California Community Redevelopment Law. Therefore, the Agency must satisfy the requirements of the California Community Redevelopment Law. The Agency's action in approving this Agreement may be subject to proceedings to invalidate the Agreement. Buyer hereby assumes the risk of delays and damages that may result to Buyer from any such third- party legal actions claiming noncompliance with the Community Redevelopment Law related to the Agency's 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 a legal action regarding the Agency's approval of this Agreement or the transfer of the Property as contemplated by this Agreement, the Agency may terminate this Agreement pursuant to the same notices, options and procedures set forth in Section 5.05(b) of this Agreement. Section 5.06. Inspection of Books and Records. The Agency shall have the right at all reasonable times at the Agency's cost and expense to inspect the books and records of Buyer pertaining to the Agency Property and/or the development thereof as necessary for the Agency, in its reasonable discretion, to enforce its rights under this Agreement. Matters discovered by the Agency shall not be disclosed to third parties unless required by law or unless otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of the Agency hereunder. Buyer shall also have the right at all reasonable times to inspect the books and records of the Agency pertaining to the Agency Property and/or the development thereof as pertinent to the purposes of this Agreement. Notwithstanding the foregoing, neither party shall have any right to inspect books and/or records that contain attorney/client communications or other attorney work product. Section 5.07. Approvals. (a) Approvals required ofthe Agency or Buyer, or any officers, agents or employees of either the Agency or Buyer, shall not be unreasonably withheld and approval or disapproval shall be given within the time set forth in this Agreement or, if no time is given, within a reasonable time. (b) All material amendments to this Agreement must be approved by the Agency pursuant to official action of its Board at a duly noticed and held public meeting. Section 5.08. Real Estate Commissions. The Agency shall not be liable for any real estate commissions, brokerage fees or finder fees, which may arise from or be related to this Agreement unless such liability arises from the act or contract of the Agency. Buyer shall not be liable for any real estate commissions, brokerage fees or finder fees, which may arise from or be related to this Agreement unless such liability arises from the act or contract of Buyer. Section 5.09. Judicial Proceedine:s and Attorney's Fees. If either party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, or is made a party to any action or proceeding brought by the Escrow Agent, then as between Buyer and the Agency, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the Court, in such action or 4826-7561-6000.1826-7561-6000.1 20 P:\Agendas\Agenda Attachments\Agrmts-Amend 2004\04-12-06 Waterman Holdings DDA_OOc proceeding or in a separate action or proceeding brought to recover such attorneys' fees. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement shall be considered as "attorneys' fees" for purposes of this Section. Any such action or proceeding must be commenced in the Superior Court for the County of San Bernardino, San Bernardino District, State of California. Section 5.10. Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. Section 5.11. Miscellaneous. (a) This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and together shall constitute one and the same agreement, with one counterpart being delivered to each party hereto. (b) All periods of time referred to in this Agreement shall include all Saturdays, Sundays and state or national holidays, unless the period of time specifies business days, provided that if the date or last date to perform any act or give any notice with respect to this Agreement shall fall on a Saturday, Sunday or state or national holiday, such act or notice may be timely performed or given on the next succeeding day which is not a Saturday, Sunday or state or national holiday. (c) The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions hereof unenforceable, invalid or illegal. Section 5.12. Reserved. Section 5.13. Entire Aereement. This Agreement includes 23 pages and 5 exhibits, which constitute the entire understanding and Agreement of the parties relative to the Agency Property. Section 5.14 Inteeration. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto with respect to the Agency Property, and supersedes all negotiations or previous agreements between the parties with respect to all or any portion of the Agency Property. Section 5.15. Waiver/Amendment. All waivers of the provisions of this Agreement and all amendments hereto must be in writing and signed by the appropriate authority of the Agency and Buyer. Section 5.16 Headines. The headings to the paragraphs of this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not in any way affect its interpretation. Section 5.17 Time of Essence. Time is expressly declared to be of the essence of this Agreement. 4826-7561-6000.1826-7561-6000.1 21 P:\Agendas\Agenda Attachments\Agnnts.Amend 2004\04-12-06 Waterman Holdings DDAdoc Section 5.18. Assienment. Buyer shall not assign his interest or otherwise transfer the interests in the Agency except as permitted in Section 1.06 of this Agreement. Section 5.19 Bindine on Heirs and Successors. This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successor, and assigns of the parties hereto, but nothing in this Section 5.19 shall be construed as a consent by the Agency to any assignment of this Agreement by Buyer. 4826-7561-6000.1826-7561-6000.1 22 P:\Agendas\Agenda Attachments\Agrmts.Amend 2004\04-12-06 Walmnan Holdings DDA.doc IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first set forth above. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO L By: r------ ---- ---.-., _..~_-...... ~R:WATERMAN HOLDIJ'l,GS, ~ ~ ~/~ /~- . . .~ :::;..--::: By: . Torkan, Approved as to form: 4826-7561-6000.1826-756\-6000.\ 23 P:\Agendas\Agcnda Anachments\AgnDs-Amend 2004\04-12-06 Watennan Holdings DDAdoc EXHIBIT" A" LEGAL DESCRIPTION OF AGENCY PROPERTY PARCEL: APN: 0135-191-11 Parcel 1 of Parcel Map 7140, in the City of San Bernardino, County of San Bernardino, State of California, as shown of Map filed in Book 69 of Parcel Maps, Page 1 and 2, Records of said County. 4826-7561-6000.1826-7561-6000.1 "A" - 1 P:\Agendas\Agenda Attachments\AgrmtS.Amend 2004\04-12-06 Watennan Holdings DDA.doc EXHIBIT "B" SITE MAP OF PHASE I AND PHASE II PROPERTY 4826-7561-6000.1826-7561-6000.1 "B" - 1 P:\Agendas\AgendaAttachments\Agrmts-Amend 2004\04-12-06 Waterman Holdings DDA.doc I'; I- .1 II "ml 1!1I1 r . > .. ;~ I . I ~I II il !If I :::::::::::::::::;:::::::::: ... I I.......... : ~: ~: ~: ~:~: ~: ~: ~: ~:~: ~:~: ~: ~:~: ~:;::::::::::::::::::; ::;:::::::: :;: ::::~1:: ~~l'; ~:;;:~~ :;~i i, . . . . . . . & . f . . . . . . .. . , . . .. , . , .. . . ,. . .. . I . . . · f .. ~ . . ,"., . . ,f ~ 1 .. . . .. . . . .. . . . . . . . . . . . . . . . . , I . . . . . I . . . ~ I .t. . . I . . . .......... ," .. ' . :.::::::;:::::: :::::::: :::::::::::: :~:: ::::: ::::: :::::::::::::::::::: ::;: :f~~',j. ;::~:: :;::.:: ::'1' '; .' , ........ I...... t.. I'...'........ l~' .~. (.,...,~. "'~' 'I t ..:. :::::::: ::::::: ::~::::::: ~:: ~:::;:: :~:: ::: :=::::::::: ::::::: ::::;::: :';_~., :::--: t .:.:::'... . ~ I.... .,..,',..'......................',.....'.1....'..,..1..........~....~...;.I'~.;':cli. . ~ . ...~..I.".... , '. <.'.~.', .... t....'O. ........ .... '.' t '.4 ,',',' .'~~.'.',' ..,....~.. f ..,t..t'..."" ....... ~'.'"' .'.', C,'" I ..~......,.....~ .,. ,..~ .....l.~ .... ..., ~ .,..,..... ::: ~:: :: ::: : ::: :: : :: : :::: : ::::: :::: :::::::: : :: :::: ~ : ~ :: :::::: :: :: ::: ::: : : ::: : : : : : ::::: :: ~ : : : :::: :: : : . ~.~....... ... ''''~. ",., '0'.' ~ ."...~........,... ~... .' ......1....,..'......... ,....'....". f..' ...',......'........ ,..........'.. ,....'.'....... '..... ....... 4.... , ..' I' ..~...."..~... 0,..' ......." ......04. ..'t.........~.'... .................. ..' t............o...~.. t". . f- ............ ...'.................'I..........t...I.............t.....~............-,.........".,'.....'...... I il . ::::;;:;:;:;:;:;:;:i:;:;:;:;:;:;:;:;:;:::;:::i:i:::;::::::::::::::::::::;::::::i:::~;';:::::::;:::;::'1 ~ . . .. . , I . . . . ' . 0 . . . , . . . . . . . .. . ~ ~ ... . , . . . . , . . . . . -:.'~"_""O" 'l!:.,' "'.:";;'!; . . . . . . . . . . . 0 . . . I . . . . . . . . ~ I . . . . . . . . . . . . I . 4 , , t..,,-,. 0... ,'., :'1"..' . . I. :.:.:.:.~.: .:.:. :':.: .:.:.:.:.:.:. :':.: ~:.~c: .:.:. :.:.;.:.: ':1: .:.:.: I:' :,:.! .:.:~ 'o'!'.,: ',;.7i:~~:,: ':". I t ~:::::::::;::::: ::~::::~ ::::::: ::::::::::: ::~: ::::: ::::: :::::: ::::::::: I::: :::;:c ...~':: ::':,::,:::::; , I : ;:: :;:::::; :::::::::::::::::;: ::;::::: :::::::: ::;::::::: ::::::::: :;:;I;: :~::;j'}:':::{:~ I . . . . . . . , . , I . . . . I . . . . . , . . " 0 . . . . . . . .... . ;0 .' .~ . ,J) I. ...' ~ . .o,'- It .,.....'O') I".................' ..I. .,......',.... .... '."... ......o. ~.. "'~'O' . ',..;. ',~"":'~':";"':;;'':?''-'''~' ....,.:j~~.... ..',..f.\ .. . . . . . , . , t . 0 . . . . . . . . . . . . . . . . . , I . . . ""'_ - . .. ... '.c.....,o: ',.f.', ..--~ .' .,..'\'..'.... . . .. . . . a . . . . I . . . . . . . . . . . ~ 4 . . I . . . ~ . . . - , ... . ",'..,...-<10 ,... ,.. .. . . . . .. , ~ . a ~ . . . . . . . . . . . . . . .. . .. . . . ~ . , .. . I , " . . , . .. . , .." ',' . , . . I I 1 I...,..."........... a......,.....,." ;"'j' .~' ..'....1.'.. . ~j~j)j~~~j~~~~~(~~~j~i;j~~j;j~~i~j~j~;U~~;~jjj~~~;~j~jjj;j!j~~i)'W~:: '~~1~t~~;: 1., I. . , ~ . . , . , . . . . . . . . . . . . . , , . .. . .. . . . . . , . . , .. 1 'I., . t:~" ~. l~ ....... ., ~ . . . . . . . . . . , . . . . . . . . " . . . . . , , . . . . . . . , . I: .. ..'. ; to . . . ," l.':.;. ~ <"'Ii ". t > ~: ~: ~: > > > < < > ~~ ~ <><< ~ ~ ~ > ~~ ~ / ~~.~ /~;.: ::~~~~;;:~t;~(;~~< ~~:. . . . , . . j . . . I . . . . I . . I . OJ . . . . . . . , . . , . . , . . , . .. <. "4'~".,. '. {. {. . .,'. v'- .. . . . . . I . . . , . . .. . , . .. . . . , . ~ . ~ . . . . , , I . . . O" '"' 'ol '. " . ,,,'" .. . 'f""'" .. "" I . . . . . ~ . . . . . . .. . . . , . .. . . . . . . . .. . ~ . , . I . . . . ..' . :IT "'1" 'f"~<" '" 'fi.'J'o'", . , 1 4' . :::::::::: ;:;:::: :::::: ::::::: :::: :::::: ::::: ::::::::: :::;::::: :::: :':~::: ~ :i~~~~:~~'::: :~:::: :::: ~ [W......~'...I....I...,..........'O'....I..............,..... . ','.. t'. t. ~. . , . " .. .'O'. . . . , '. . . .... . f . . - . I . '. . . -" . .' .', . .... ~'.'. o. . ..,. O'. .... ,.....,' ,..... ..O'....O' I .. , . .. .. . ... .. . . . .. . . . . . I . . . . . . . . t , . . . . . . . , ~ . , ~ . . . , . . .. . . . .... I . . . " , . . . , . . . . . . . . . . .. . , . . . . . . . " . . . . ~ . .. . ~ . O" , . .....' ... JI.," ......... .. .J.' . ",..' 1- ,.. I I I -- ;...> ----.- .. ire ..~ ~: NEW OI'MQE BUIlDING .... ";_~J.''f~~:'' , 7"'!1CS'Iii._ _' ." .: ~P-":.t-_~ . .:.~-'.... ............ ........... . . >C,,-_ -....... .... ,'~, ~,..' ..... woe) ....,.... --- -- I Iii III. ili 1'1 .- t' II 1!Ii1 I~ ;~ I &' ~I II il ~ Ci i t:. _":::::::::::::::::::::::::: ......... ..." ,. .. ::::::::::::::::::::::::::::::::.:.:.:.:.:.:.:':.:.:.:::.:.:,:.:.:.:.:.,(. f ~: ~::: ~::: ~: ~::: ~: ~:~; ~: ~: ~: ~:~: ::;:~::; ~:~: ~::: ~::: ~ <::: ~: ~: ~;::::~ ~~j: :i~~I'~'\:::~; ;:it :~~:, Ii ::::;:::::::~:::::;::::}~::::::::::~:::;:~:::::::::::::;:;:::;:;:;:;:i(' .,: ):.;::.~::~~: ~ .:.:,:.:.:.:.:.:.:.:.:.:.;.:.:,:.:.:.:.:.:.:,:,:.:.:.:-:.:.:.:.:.:.:.:.:,ii' . t . .':'~:.:':I;':' ,..,.................. ... 4 I........,.. f'............,. t. . . I , . . f . . . . . . . . .. . . . I I , . ~ . . . . , . 4 . . . I I . . . . . . . , . . . , I .. : < ~:..:..: -: <.:.:.: .>:.:.:': t~ -:.:-:.: <': -:.:.>:-:-:':. :.: -:. >;.: -: -: .:.:.:.:. >:.:.:. > :':-:<'. .. . ~ .. . . , . . . f . , .. . ~ . . . . .. . , .. , .. . , . , f , .. . . .. . . . . . . . , . .. . I . . ..... t. If'........................ I.' ., . I , .. - -...... -...... ..........,..."......,......... _........,.............. I.'" I' :..:.>>:-: <<-: -:..: < <.: -:.:..~':. :-:.:-:..:.: -: <.:-:.: -: -:.:.:.: -: <.:.: -:.:-:-:-:-:.>:-> :-:.:-: ..,.............."......." I..' I..................,.... ,...... I. ~. .. . . .. , . .. . . . . , .. . . . I . . .. .. ~ I , , . . .. . " , I .. . . . . .. .. I . . .. . .. .. . , . . ........,.......... I.." I....'..'..."........,...,.....,........ ,............................... t,............"............,.. ""'" I......'................ ." I..............,....... -..... \~?>~ ~?))? ???~~>??~~()? ~<~)~;.~~r~~~~1~~,j~)~ I. .,'.....' I' . . . .. .." . '. . . .. , . , ' . ' . . .. " . , . . .. I . , .. . ' . .. . .... " . . 4. . " . . . I , .. .. . . . . . I . . . . . . ~,,:"}.I.~,oi.,~._.,'- j" .,~.~."~ ~'.' ~ f. :.;.:.:.;.;.:.: .:.:.:-;.:,:.:.: .:-:.:,;.: -:-: .;.: -: .:.;. :-:-:. :-:.:-:.::.: -:.:J-~,. '';. :':'i-;':'; I I; ~ ~ ~ i ~ ~ ~ j ~ ~ ~ j ~ j ~ ~ ~ ~;: ~ j ~ j : ~: j ; ~ ~ ~ ~ ~ ~ j ~ j ~ \ ~ ~ ~ j ~ ~ ~ ~ ~ ~ ~ ~: j ~ j ; ~ ~ ~ ~ ~; ~: j:) t~ ~ti ~ ~ !,.,o.ort; j: !'~t;~; ~~t .1 .: .............. '.',4........ ,'................ .'..........................., '\'~ -, ...... "';.~,..,~~'..'l~...~'$,.. ....'.'::...4.~'.' ~ i! i 1\!: j ,!'II: li'l! 1!:::!:: \!:! II! II!!! i Jill II! j :11: Ii: Iii! ill, j~~~~'~ ~~~:;~~I!~: ~ . , . . . . . . . . . . , . . . . . . . . ' . . . . . . . . . .. . .. . '.. . "...... '''~....,.~.,,'' . ..,.,. .. .................... I...". ..,.... ,." ,..,.....'..,...'<t..,;..:-':f!.~",......~.... . I, :. :O':.:.:.:.:.:.:..;..: -:.:.:.:. :~:.:.:.: I:":': .:.:.:.: ~ :.:. :..:.: .:-.: ;:....:-.,:,('. :';1~;lt"f:'~,'::-;:.<"""~': ."~ ~::;:: ~::::;:::;:::::::::::::::;:::;:::::::::::::::::::::; ~::;:::;: ;::: ::~: r::;::~::~:::::::::::: . .............. t.... I... I........".......".,.....,..... I.. . .. ..... . .O' . .. . . . . . . .. .. .. . . . . . . . . . . ~ . . . . I .. . .. . .. , .. ....,.. .. ~ O'.. .J.r-' .. ......... ,_' .. . I .' I il I ~ I I ---- -- , '" NCW OPMOE I IIi ~... 8U1LDING .... > ~i III. ~~ -- di ... EXHIBIT "C" LEGAL DESCRIPTION OF EXPANSION PROPERTY 4826-7561-6000.1826-7561-6000.1 "C" - 1 P:\Agcndas\Agenda Attachments\Agrmts.Amend 2004\04-12-06 Waterman Holdings DDA.OOc ~ SCHEDULE A Order No: 32040158 K32 Your Ref: 1. The estate or interest in the land hereinafter described or referred to covered by this report is: A FEE 2. Title to said estall.: Of interest at the dale hefeof is vested in: THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 3. The land referred to in this report is situated in the Stale of Califurllia, County of SAN BERNARDINO and is descrihed as follows: PARCEL 9 OF PARCEL MAP 7140, IN THE CITY OF SAN BERNARDINO, COill"TY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS SHOWN OF MAP FILED IN BOOK 69 OF PARCEL MAPS, PAGES 1 AND 2, RECORDS .OF SAID CO~TY. / ! PREA .10/31/97bk EXHIBIT "D" AGENCY QUITCLAIM DEED 4826-7561-6000.1826-7561-6000.1 "D" - 1 P:\Agendas\AgendaAttachments\Agrmts:-Amend 2004\04.12-06 Waterman Holdings DDA.doc RECORDING REQUESTED BY: When Recorded Mail Document and Tax Statement To: SPACE ABOVE THIS LINE FOR RECORDER'S USE QUITCLAIM DEED REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FOR A VALUABLE CONSIDERATION, 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 and (collectively, the "Buyer") the following described real property in the City of San Bernardino, County of San Bernardino, State of California (the "Property"): PARCEL: APN: This conveyance is further subject to the following community redevelopment covenants: 1. Buyer covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there will be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor will Buyer 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 in or on the Property. 4833-8544-2304.1 1 P:\Agendas\Agenda Attachments\Q4-12-06 4th & Waterman Quitclaim Deed.doc 2. All deeds, leases or contracts made relative to the Property must contain the following nondiscrimination clauses: (a) In deeds: "The grantee herein covenants by and for itself, its heirs, executors, administrators 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 race, color, creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land 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, locations, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in or on the land herein conveyed. The foregoing covenants shall run with the land." (b) In leases: "The lessee herein covenants by and for itself, its heirs, executors, administrators 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 race, color, creed, religion, sex, age, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee 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 in the land 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, age, marital status, national origin or ancestry in the sale, lease, sublease, 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 oftenants, lessees, subtenants, sublessees or vendees of the land. 3. A breach of any of the covenants, conditions or restrictions herein shall not defeat nor render invalid the lien or charge of any mortgage or deed of trust made in good faith and for value covering the Property or any part thereof; however, such covenants, conditions and restrictions shall be binding upon and effective against any new owner of the Property, or any portion thereof, whose title thereto is acquired by foreclosure, trustee's sale or otherwise. No mortgagee shall be subject to any reimbursement obligation which accrues prior to the date such mortgagee takes title to the Property. 4833-8544-2304.1 2 P:\Agendas\Agenda Attachments\04.12..06 4th & Waterman Quitclaim Deeddoc 4. Buyer covenants for itself, its successors and assigns that, unless otherwise consented to in writing by the Agency, in the event the Property, or any portion thereof is used by an owner that is partially or wholly exempt from the payment of ad valorem property taxes pertinent to the Property, or portion thereof, and does not make the tax payment for any year based on that exemption, then in such event the owner of the Property, shall pay the Agency a fee in lieu of payment of property taxes each year thereafter in an amount equal to the applicable percentage of the full cash value as determined in accordance with the State Construction Article XIIIA and other state law for the Property, or portion thereof which is subject to the exemption, unless the Agency consents otherwise in writing. In the event that the in-lieu payment referenced above is due by the owner for any year, then such amount shall be paid to the Agency for the tax year within 90 calendar days following transmittal of notice of invoice by the Agency for payment of the in-lieu amount addressed to the owner of the Property as disclosed in the property tax records of the County of San Bernardino. 5. Buyer for itself, its successors and assigns hereby covenants and agrees that: (a) The areas of the Property which are subject to public view (including all existing improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. In the event that at any time within ten (10) years following the date of recordation of this Quitclaim Deed there is an occurrence of an adverse condition on any area of the Property which is subject to public view in contravention of the general maintenance standard described above, (a "Maintenance Deficiency") then the Agency shall notify the Buyer in writing of the Maintenance Deficiency and give the Buyer thirty (30) days from receipt of such notice to cure the Maintenance Deficiency as identified in the notice. In the event the Buyer fails to cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may conduct a public hearing following transmittal of written notice thereof to the Buyer ten (10) days prior to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency exists and whether the Buyer has failed to comply with the provisions of this Section 5. If upon the conclusion of a public hearing, the Agency makes a finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the general maintenance standard, described above, thereafter the Agency shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take other action at law or in equity which the Agency may then have to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a Maintenance Deficiency on the Property authorized by this Section 5 shall become a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand for payment by the Agency to the Buyer, the Agency shall have the right to enforce the lien in the manner as provided in this Section 5. 4833-8544-2304.1 3 P:\Agendas\Agenda Attachments\04.12-06 4th &. Watennan Quitclaim Deed.OOc (b) The parties hereto further mutually understand and agree that the rights conferred upon the Agency under this Section 5 expressly include the power to establish and enforce a lien or other encumbrance against the Property, or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c in an amount reasonably necessary to restore the Property to the maintenance standard required under this Section 5, including the reasonable attorneys' fees and costs of the Agency associated with the abatement of the Maintenance Deficiency. For the purposes of the preceding sentence the words "reasonable attorneys' fees and costs of the Agency" mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney. The provisions of this Section 5, shall be a covenant running with the land for a term of ten (10) years following the date of recordation of this Quitclaim Deed, and shall be enforceable by the Agency. Nothing in the foregoing provisions of this Section 5 shall be deemed to preclude the Buyer from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that any such changes comply with applicable zoning and building regulations of the City of San Bernardino. 6. Invalidation of any provision contained herein by judgment of court or otherwise shall in no way affect any of the other provisions, which shall remain in full force and effect. 7. A breach or a violation by an owner of the Property, or a portion thereof, of a covenant set forth in this Quitclaim Deed shall not subject such owner's predecessor in interest in the Property to any liability for such breach or violation. A breach by a tenant on the Property of Section I or Section 2 shall not subject such tenant's landlord to liability for the breach by such tenant. The Agency shall have the right to enforce the covenants, conditions and restrictions contained in this Quitclaim Deed notwithstanding any transfer of the Property or any portion thereof. 4833-8544-2304.1 4 P:\Agendas\Agenda Auachments\04-12-06 4th & Waterman Quitclaim Deed.doc IN WITNESS WHEREOF, the Redevelopment Agency of the City of San Bernardino has caused this Quitclaim Deed to be executed by its authorized officer as of the date indicated next to the signature, below. Redevelopment Agency of the City of San Bernardino Date: By: Gary Van Osdel, Executive Director [NOTARY ACKNOWLEDGMENT ATTACHED] 4833-8544-2304.1 5 P:\Agendas\Agenda Attachments\04-12-06 4th & Waterman Quitclaim Deed.doc ACCEPTANCE OF QUITCLAIM DEED BY BUYER The undersigned hereby acknowledges and accepts the delivery of the subject property from the Redevelopment Agency of the City of San Bernardino. Date: Date: [NOTARY ACKNOWLEDGMENT ATTACHED] 4833-8544-2304.1 6 P:\Agendas\AgendaAnachmenlS\04-12-06 4th & Wal:ennan Quitclaim Deed,doc ACCEPTANCE OF QUITCLAIM DEED BY BUYER The undersigned hereby acknowledges and accepts the delivery of the subject property from the Redevelopment Agency of the City of San Bernardino. Date: Date: [NOTARY ACKNOWLEDGMENT ATTACHED] 4833-8544-2304.1 6 P:\Agendas\Agenda Attachments\04-12-06 4th & Watennan Quitclaim Dced.doc ACCEPTANCE OF QUITCLAIM DEED BY BUYER The undersigned hereby acknowledges and accepts the delivery of the subject property from the Redevelopment Agency of the City of San Bernardino. Date: Date: [NOTARY ACKNOWLEDGMENT ATTACHED] 4833-8544-2304.1 6 P:\Agendas\Agenda Attachments\04. I 2-06 4th & Watennan Quitclaim Deed.doc EXHIBIT "E" IMPROVEMENTS The Improvements on the Phase I Property shall consist of an approximately 16,864 square foot single story office building of either concrete tilt-up or concrete block construction with sufficient parking spaces to comply with City ordinances and the County Lease Agreement. The building will include full tenant improvements as required for the County Lease Agreement for use by the County of San Bernardino Pre-School Services as the tenant. 4826-7561-6000.1826-7561-6000.1 "E" - 1 P:\Agendas\Agenda Attachments\Agnnts.Amend 2004\04-12-06 Watennan Holdings DDA.doc