HomeMy WebLinkAboutR28-Economic Development Agency
L
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
SUBJECT: AMENDMENT TO IN-N-OUT BURGERS
OWNER PARTICIPATION
AGREEMENT (OPA) DATED
SEPTEMBER 17, 2001 AND
DEVELOPMENT INDEMNITY
AGREEMENT
_u________________________________________________________________________________~_______.~______________________________________________________________________________________________________
FROM:
Gary Van Osdel
Executive Director
DATE:
September 9,2003
OR\G\NAL
SvnoDsis of Previous Commission/Council/Committee Actionls):
On September 4, 2003, Redevelopment Committee Members Anderson and Estrada voted to recommend that the
Community Development Commission consider this action for approvaL
Recommended Motionls):
MOTION:
ICommunitv DeveloDment Commission)
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO
EXECUTE AMENDMENT NO.1 TO OWNER PARTICIPATION AGREEMENT, DATED AS OF
SEPTEMBER 17, 2001, BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AND IN-N-OUT BURGERS
Contact Person(s):
Gary Van OsdeVJohn Hoeger
Phone:
(909) 663-1044
3
Proj ect Area( s)
Ward(s):
IVDA
Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 LetterslMisc.
FUNDING REQUIREMENTS Amount: $
N/A
N/A
Source:
SIGNATURE:
B~dgetAuthority: ~ N/A P ~
Magg~eputy Director
.mnmm .. mmmmmmm.m.~:~L.~.~~:I:.~::c.~ti:e D'ne:t:r
Commission/Council Notes:
.~.~.:g:'f)nC?')~CS!.3~:c.3Q.mmmnmmmmm..n_nn_mmmmm.mmm.mmmnnmnnmmmmmmnmnmnmnmnm
P:\Agendas\Comm Dev Commission\CDC 2003\03-09-15 In N Oul Amendmenl.doc COMMISSION MEETING AGENDA
Meeting Date: 09/15/2003
Agenda Item Number: RJ.. K
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
----------~----------------------------------------------------------------------------------------------_.----------------------------------------------------------------------------------------------.
Amendment to In-N-Out BUr!!ers
Owner Participation Al!reement (OPA) dated September 17, 2001
and Development Indemnitv Al!reement
BACKGROUND:
On October I, 2001, the Community Development Commission of the City of San Bernardino
approved an OP A by and between the Redevelopment Agency of the City of San Bernardino and In-
N-Out Burgers (In-N-Out).
On April I, 2002, the Community Development Commission of the City of San Bernardino
authorized the execution of the final form of the OPA by and between the Redevelopment Agency of
the City of San Bernardino and In-N-Out.
CURRENT ISSUE:
In-N-Out received approval from the Planning Commission for their new store in the HUB
development. This approval was appealed by the Patels (owners of the former University Inn motel
and the defendants in the Inland Valley Development Agency (lVDA) condemnation action) and will
be heard on September IS, 2003 by the Mayor and City Council. Through their lawyer, the Patels
have stated their intention to initiate legal challenge of the In-N-Out Conditional Use Permit (CUP) if
the approval of the In-N-Out CUP is upheld by the Mayor and Common Council. Such a new legal
challenge by the Patels would be in addition to the lVDA condemnation action.
The IVDA has obtained an Order for Prejudgment Possession on the University Inn motel property,
and the Agency has completed the demolition of the old motel building as part of Harriman Place
improvement project. The trial court in the lVDA condemnation action has already ruled in favor of
the lVDA that the Patels cannot challenge the power of the lVDA and the Redevelopment Agency of
the City of San Bernardino to condemn the property. At this time, the issues remaining in the
condemnation trial are focused on the valuation of the property and the amount of just compensation
payable to the Patels. Nevertheless, the Patels now seek to challenge the In-N-Out CUP.
In-N-Out has indicated to Agency Special Counsel that it is not prepared to incur legal expenses in
connection with the defense of the City and potentially the Redevelopment Agency arising from any
legal challenge to the CUP which may be mounted by the Patels.
In an effort to complete the development approval process and allow In-N-Out to schedule a firm date
for the close of escrow and commencement of construction of their new In-N-Out facility, Agency
Staff and Agency Special Counsel propose an amendment to the September 17,2001 OPA whereby
the Agency would agree to assume the obligation of In-N-Out to defend the City and Agency against
any third party challenge against City CUP 03-08. This assumption only covers the costs associated
-----------~-~-------------------~+----------------------.--------------------------------------------------------------------------------------------------------------------------------------.
?:\Agendas\Comm Dev Commission\CDC 2003\03-09-] 5 In N Out Arnendmenl.doc
COMMISSION MEETING AGENDA
Meeting Date: 09/15/2003
Agenda Item Number: m
Economic Development Agency Staff Report
In-N-Out OPA Amendment No. I
Page 2
with the defense ofthe CUP against a legal challenge, assuming that the Mayor and Common Council
may uphold the action of the Planning Commission approving the In-N-Out CUP.
The proposed amendment will also provide for In-N-Out to accept the Agency demolition work ofthe
former motel which was recently completed as part of the preparations for the new Harriman Place
and Tippecanoe Avenue public street intersection improvements. Furthermore, the proposed
amendment also modifies the schedule of performance to address issues arising from past delays in
the project. Subject to the satisfaction of the other closing conditions, the proposed amendment
contemplates that In-N-Out will commence construction of their new building by the date later of
June 30, 2004 or the 30th day following the closing of escrow. The new In-N-Out improvements
should be substantially completed within 270 days following the commencement of construction.
ENVIRONMENT AL IMPACT:
This is within the scope ofthe May 21,2001 adopted EIR for the HUB project.
FISCAL IMPACT:
In the event that the Agency approves the proposed amendment and the Mayor and Common Council
uphold the Planning Commission approval of the CUP, the Agency could incur certain legal costs in
connection with the defense of the City and the Agency if the approval of the CUP is, in fact,
challenged. The cost of such legal defense cannot be estimated at this time, however it is not
believed to be significant.
RECOMMENDATION:
That the Community Development Commission adopt the attached Resolution.
____u.n_________________~.____________________u_____________________________________________~_______________________________d__________________________________________-~---------.
P:\Agendas\Comm Dev Commission\CDC 2003\03-09.15 In N Out AmendmenLdoc
COMMISSION MEETING AGENDA
Meeting Date: 09/1512003
Agenda Item Nnmber: ~
...J
~
o
I-
~"OO '"
00 Lt') CO 0 T'"
NT'"..q L!) .q-
tONOOO ,...:
O<OOCO It)
o C'\l M 'I::t 0
-r-- N ~
<fl
..q,.... 0.,.... N
(v)MNO> CO
c.o m N..- 0>
cticSoa5 u-)
lO 0 ""'" 0 ('I')
NO)('I')(O T'"
cD r--: ll"i
~ N
<fl
OM 00 C"')
ONoe N
COMNO M
N<oh"":N' a:i
OJ """ ""'" 0 0
O)(ONO 0>
N- M cD
<fl
C>
'"
....
~
C>
~
cD
M
U>
<I:
c
>
0000 0
<fl
0000 0
<fl
0000 0
<fl
C>
U>
x
0::
!;;: ~ 0000 0 0000 0 0000 0 C>
0 0 <fl <fl C>
:2: '" '" '"
0 0 0 0
I- 00 00 01)
" " "
(f) N N '"
0 <fl U>
()
I-
Z
W <I: ~
~;:1;00 '" oq-.......OO ~ OMOO '" en
:2: C 00 000 ~ ~'" '" ;:1;NO '" N
0:: N.,......qO 0> ~O> 0 "'0 00 01)
0- W- C',.r cO ci cD ~ci N OeON i, M
0 0<000 ... ;:1;Jil " "'"" 01)
OhNM'r"_ " " 0_<.0- '" '"
-l ~ ~ <fl ~ N N N lti
W <fl <fl U>
>
W
0
0:: 0000 0 000.,.... ~ 0000 0 ~
W 0 0 N NO> '" '" 00 '" en
Il. 0 0 '" N~ 0> N NO " M
0 0 lti 0-00 M N a)C'\i M ,..:
0 0 0 ~ ...0 0> N ~O " M
...J ~ ~ "- "'''' '" 0> "'0 N C>
W ~ ~ <<i ,..: N M <<i 00
> <fl ~ N <fl N
I- <fl U>
0 W
w C
....,
0
Ir:
D..
..J
~ ro S ro
...,: (5 0 (5
W f- f- - f-
Ir: m Ul c: .!:J W c: .!:J W c: .!:J
W Z c c c .2 " c c:: c:: .Q " C c c .Q "
0 :J <I: .Q 0 0 t5 CIl Ul .Q 0 00 CIl Ul g .2 .Q t5 CIl
z ::I: ::i: ~~~2 <I: ~~~2 <I: "w 15 ~ 2 Ul
<( .- 00..... :E: .- u 0"'" :E: .- 00--
0:: :J.S2E~ Il. ".QE:g Il. :J .Q E ~ ...J
0 CI) gQ)Q)o 8" Q) Q) 0 8" Q) Q) 0 ~
w 0:: al al
D.. J: <(~oo <(~O() <(~O()
D.. <I: ::::l ::::l 0
i= I- :E: :E: :E: I-
COMMISSION MEETING AGENDA
Meeting Date: 09/15/2003
Agenda Item Number: /1.;2
_1
2
3
4
5
6
7
8
has
9
RESOLfC~.~)f
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERi~ARDINO AUTHORIZING
THE EXECUTIVE DIRECTOR OF THE AGENCY TO EXECUTE
AMENDMENT NO.1 TO OWNER PARTICIPATION AGREEMENT,
DA TED AS OF SEPTEMBER 17, 2001, BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND IN-N-OUT BURGERS
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
previously entered into an agreement entitled Owner Participation Agreement
10
("Agreemenf'), dated as of September 17, 2001, by and between the Redevelopment Agency of
11
the City of San Bernardino and In-N-Out Burgers; and
12
NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
FOLLOWS:
_13
14
Section I.
The Commission hereby approves Amendment No. I to the Agreement
15
attached hereto and incorporated herein by reference.
16
Section 2.
The Executive Director of the Agency is hereby authorized to execute
17
Amendment No. on behalf of the Agency in the form attached hereto, together with such
18
nonsubstantive changes therein as may be approved by the Executive Director and the City Attorney.
19
Section 3.
The Resolution shall become effective immediately upon its adoption.
20 /II
21 /II
22 /II
23 /II
24 /II
_25 /II
-1-
P:\Agendn\Resolulions\Resolutlons\l003\03-09-15In N QUI Amend No I CDC Re~o.doc
_1
_25
2
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING
THE EXECUTIVE DIRECTOR OF THE AGENCY TO EXECUTE
AMENDMENT NO. I TO OWNER PARTICIPATION AGREEMENT,
DATED AS OF SEPTEMBER 17, 2001, BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND IN-N-OUT BURGERS
3
4
5
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
6
Community Development Commission of the City of San Bernardino at a
meeting
,2003, by the following vote to wit:
Nays
Abstain
Absent
16
17
Secretary
18 The foregoing resolution is hereby approved this
day of
,2003.
19
20
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
21
22
23
Content:
24
By:
-2-
P:\Agendas\Ruolulions\Resohltlons\2003\OJ-09-15In N OUI Amend !\o I CDe Resn.doc
e
e
e
2003
AMENDMENT NO.1 TO
OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BER"IARDINO
AND
IN-N-OUT BURGERS, A CALIFORNIA CORPORATION
THIS AMENDMENT NO. I TO OWNER PARTICIPATION AGREEMENT (this
"Amendment") is dated as of September 15, 2003, by and between In-N-Out Burgers, a
California corporation ("Owner") and the Redevelopment Agency of the City of San Bernardino,
a body corporate and politic (the "Agency"). The Owner and the Agency have previously
entered into an agreement entitled "Owner Participation Agreement", dated as of September 17,
2001, (the "OPA") and the Owner and the Agency believe it is appropriate to approve the
amendments to various provisions of the OP A as set forth below in light of the facts set forth in
the following recitals:
RECITALS
A. The Parties have previously initiated the redevelopment of the project described
in the OPA as the "Development".
B. The Agency has previously caused the Inland Valley Development Agency (the
"IVDA") to initiate condemnation proceedings to complete the acquisition of a portion of the
land described in the OP A as the "Agency Sale Parcel" and such condemnation proceedings have
not been completed as of the date of this Amendment.
C. The Agency has caused a substantial portion of the public street improvements
referred to in the OP A as the "Harriman Place Improvement Project" to be designed and installed
and the Agency now plans to cause the remaining portions of the Harriman Place Improvement
Project to be completed within the next several months time.
D. The Owner has completed the submission of its written materials in a connection
with the Owner's obtaining from the City the appropriate "Land Use Approvals" for the
Improvements to be constructed by the Owner following the "Close of Escrow" as set forth in
the OPA.
E. In order to accommodate certain changes in the development schedule for the
Harriman Place Improvement Project, the Development and the Improvements which have
P:\CJcrical S~f"\.'lce~ Depl\MargarW.Agreemenl~-Amendments,^gnnls-Amend 2003\03-09-04 In N Out OPA Amcrldmcnl.DOC
tit
tit
tit
emerged since the time of approval of the OPA in 2001, the Parties now believe it is appropriate
to approve this Amendment.
J\:OW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION THE
OWl"ER AJ\:D THE AGENCY HEREBY AGREE AS FOLLOWS:
Section I, The text of the OP A is hereby incorporated by this reference into this
Amendment. Unless the context of the usage of a particular term, word or phrase used in this
Amendment may otherwise require, the meaning of defined terms, words or phrases used in this
Amendment shall be the same as the definition of such terms, words or phrases as used in the
OPA.
Section 2, As of the date of this Amendment, the Parties mutually declare that no
default exists under the OP A or the Escrow as thereby established, and that each remains in full
force and effect.
Section 3, The general form of the Agency Grant Deed as attached as Exhibit "F" to
the OPA, is hereby substituted with the form of the "HUB Project: Agency Sale Parcel Quitclaim
Deed" as attached to this Amendment as Attachment No, I,
Section 4,
Section 3,II(a) of the OPA is amended to read as follows:
"(a) The Agency Grant Deed shall be recorded (the "Closing") as soon as
possible after the satisfaction of all of the Agency's Conditions and the Owner's
Conditions, but in no event later than June 30, 2004 (the "Closing Date"), as set forth in
the Schedule of Performance, subject to the extension of the Closing Date pursuant to
Section 3,23 or 3.25, below,"
Section 5, For the purposes of Section 3,19(a) of the OP A, under this Amendment,
the date of the Owner's "Objection Notice" as this term is defined in Section 3,19 of the OPA,
shall be deemed to be the later date of either: (i) the date on which the Owner delivers its Owner
Objection Notice to the Agency; or (ii) October 31,2003,
Section 6, For the purposes of Section 3,20(a) of the OPA, under this Amendment,
the date of the Agency's "Objection Notice", as this term is defined in Section 3,20 of the OPA,
shall be deemed to be the later date of either: (i) the date on which the Agency delivers its
Agency Objection Notice to the Owner; or (ii) October 31,2003,
Section 7, The Owner acknowledges and agrees that the condition of Section 3,28 of
the OP A relating to the demolition of structures on and under the Agency Sale Property (e,g" the
"Agency Demolition Work") has already been accomplished by the Agency as of the date of this
Amendment, and that such Agency Demolition Work is satisfactory to the Owner.
2
P:\CICflcaJ Services Dept\Margarel\AgreemcnIS-A.mendmenls\Agrmt~-Amend 2003\03-09-04 In l\i Oul OPA AmendmenlDOC
.
.
.
Section 8.
Section 4.1 (h) of the OP A is hereby amended to read as follows:
"(h) As set forth in the Schedule of Performance, the Owner shall commence
construction of the Improvements by the later of (i) June 30, 2004, or (ii) the thirtieth
(30th) day following the Closing (in either case, the "New Restaurant Commencement
Date"), subject to the provisions of Section 7.5, below. As set forth in the Schedule of
Performance, the Owner shall substantially complete the Improvements within two
hundred seventy (270) days following the commencement of construction, subject to the
provisions of Section 7.5, below. The Schedule of Performance is subject to revision
from time to time as mutually agreed upon in writing by and between the Owner and the
Agency."
Section 9.
reads as follows:
The OPA is hereby further amended to add a new Section 7.9(c) which
"(c) In addition to the obligations of the Agency which arise under Section
7.9(b)(i), the Agency hereby agrees to assume the obligation of the Owner, under City
CUP Ko. 03-08 Condition No.3, by providing for the defense for only the City, the
Economic Development Agency of the City of San Bernardino, any departments,
agencies, divisions, boards or commissions of either the City or the Economic
Development Agency, as well as predecessors, successors, assigns, agents, directors,
elected officials, officers, employees, representatives and attorneys of either the City or
the Economic Development Agency from any claim, action, or proceeding against any of
the foregoing persons or entities. The Owner hereby covenants and agrees to cooperate
with the Agency and the lawyers retained by the Agency for such purposes, in the
Agency's defense of any such challenge of City CUP No. 03-08. The Agency is not
assuming the defense costs of the Owner in defending itself or any other person, other
than the City and the Economic Development Agency of the City of San Bernardino, as
enumerated previously herein in this section."
Section I O. The form of the Schedule of Performance as attached as Exhibit "I" to the
OP A, is hereby substituted with the "September 2003 Modified Schedule of Performance" as
attached to this Amendment as Attachment No.2.
Section II. Except as modified by this Amendment, all of the other provisions of the
OP A remain in full force and effect.
Section 12. The acceptance of this Amendment by the Agency is subject to the
approval of the same by a majority vote of its governing board. The authorized signatories of the
Parties shall execute this Amendment within a reasonable period following such approval by the
governing board of the Agency, provided that this Agreement may be withdrawn at any time by
the Owner prior to the Owner's execution of this Amendment pursuant to written notice to the
Agency. This Amendment may be executed by the parties in counterpart and when fully
executed each counterpart shall be deemed one original instrument.
3
P-'"CICrlcal Services Dept"MargarCl\Agreemenls-AmendmcnIS\Agrmls-Amend 1003\0)-0'.1-04 In)\i Oul OPA AmcndmenLDOC
.
.
tit
[]\' WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of
the date first above written.
AGENCY
Redevelopment Agency of the City of San
Bernardino, a body corporate and politic
By:
Gary Van Osdel,
Executive Director
APPROVED AS TO FORM:
Agency Special Counsel
OWNER
In-N-Out Burgers, a California corporation
By:
4
P,Clemal sc",'icc~ Dep!v.br~arel\Agreemcnts.Amelldmenls',^grmls.Amend 1003\03-09-04111 r.; OUI OPA AmendmentDOC
.
.
.
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Attention:
THIS SPACE ABOVE FOR RECORDER'S USE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BER."IARDINO
QUITCLAIM DEED
(HUB PROJECT: AGENCY SALE PARCEL)
PART ONE
For valuable consideration, the receipt of which is hereby acknowledged, the
Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the
"Agency"), hereby remises, releases and quitclaims to In-N-Out Burgers, a California
corporation (the "Grantee") the real property (the "Property") situated in the City of San
Bernardino and more particularly described as follows:
[INSERT TEXT OF METES AND BOUNDS LEGAL DESCRIPTION OF
"AGENCY SALE PARCEL"]
This conveyance in intended to convey all of the rights of the Agency as
transferred to it by the Inland Valley Development Agency under its quitclaim deed as delivered
to the Agency of even date herewith, together with all other title now or hereafter acquired by the
Agency by reason of that certain order issued in the condemnation action in San Bernardino
County Superior Court Case No. SCVSS 89192 initiated by the Inland Valley Development
Agency authorizing possession of the Property.
PART TWO
The quitclaim of the Property to the Grantee is further subject to the following
community redevelopment tenns, conditions and covenants:
1. The Property is conveyed subject to that certain Owner Participation
Agreement (the "OPA") dated as of September 17, 2001, as amended, by and between Grantor
and Grantee. The OP A is a public document on file in the City Clerk's office of the City of San
Bernardino, located at 300 North "D" Street, San Bernardino, California 92401. The OPA shall
be conclusively deemed to have fully and satisfactorily perfonned all of its obligations under the
5
P:\Clcncal Senices Depl\MargarCl\Agrecmenls-Amcndmc:nl,'Agrmls-Amend 2003\03-09-04 In r.; QuI OPA AmendmenLDOC
e
e
e
OP A, including without limitation compliance with the Schedule of Performance and the Scope
of Development, and this Section I shall terminate and become null and void with respect to the
Property, on the date the "Certificate of Completion" is issued by Grantor for the Improvements;
provided, however, that Grantee's indemnification obligations under Section 7.9 of the OPA
shall survive the issuance of the Certificate of Completion and expire in accordance with its
terms. Capitalized terms used and not otherwise defined herein shall have the meanings set forth
for them in the OP A.
2. All deeds, leases or contracts pertaining to the Property must contain or be
subject to substantially the following nondiscrimination and nonsegregation clauses:
(a) In deeds: "The Grantee covenants by and for itself, its successors
and assigns, and all persons claiming under and through them, that there shall be no
discrimination against or segregation of any person or group of persons, on account of
race, color, creed, religion, sex, marital states, national origin or ancestry, in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein
conveyed, nor shall the grantee or any person claiming under or through the grantee
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sub lessees or vendees in the property herein conveyed. The foregoing
covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its
successors and assigns, and all person claiming under or through them, and this lease is
made and accepted upon and subject to the following conditions: That there shall be no
discrimination against or segregation of any person or group of persons, on account of
race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein
leased nor shall the lessee itself, or any person claiming under or through the lessee,
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the property herein leased."
(c) In contracts: 'There shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed, religion,
sex, marital status, national origin or ancestry, in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the property, nor shall the transferee or any person
claiming under or through the transferee, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees of the
property."
3. The following provisions are incorporated from Section 5.4 of the OPA
and shall survive the issuance of the Certificate of Completion:
(a) Grantor Indemnitv. Without limiting the generality of the
indemnification in Grantor's favor set forth n Section 7.9(a) of the OP A, Grantee hereby
6
P:,CIc"cal SCl"...ces Dcpl,MargarelJ\greemenl,-Amendmcnls'AgrmlS-Amend 2003-,,03-09.04 In N Qul OPA Am<:ndmcnlDOC
e
agrees to indemnify, protect, hold harmless and defend (by counsel reasonably
satisfactory to Grantor) the Agency Parties from and against any and all Loss arising
directly or indirectly, in whole or in part, out of (i) the failure of any Owner Party to
comply with any Environmental Law relating in any way whatsoever to the handling,
treatment, presence, removal, storage, decontamination, cleanup, transportation or
disposal of Hazardous Substances into, on, under or from the Property, (ii) the presence
in, on or under the Property of any Hazardous Substances or any releases or discharges of
any Hazardous Substances into, on, under or from the Property, or (iii) the migration of
any Hazardous Substances into, onto or under the Property from offsite sources, other
than real property or improvements owned by Grantor, the City or the HUB Developer, in
each case subsequent to the Closing. The foregoing indemnity shall further apply to any
residual contamination on or under the Property affecting any natural resources and to
any contamination of any property or natural resources arising in connection with the
generation, use, handling, treatment, storage, transport or disposal of any such Hazardous
Substances, and irrespective of whether any of such activities were or will be undertaken
in accordance with Environmental Laws. This indemnification of the Agency Parties by
Grantor includes, without limitation, costs incurred with respect to any investigation of
site conditions or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision because of Hazardous
Substances present or alleged to be present in the soil or groundwater in, or under the
Property subsequent to the Closing. The indemnity described in the preceding two
sentences shall not apply with respect to any Hazardous Substances located in, on or
under the Property or the Existing Agency Improvements prior to the Closing.
e
(b) Grantee Indemnitv. Without limiting the generality of the
indemnification in the Grantee's favor set forth in Section 7.9(b) of the OPA, Grantor
hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably
satisfactory to Grantor) the Owner Parties from and against any and all Loss arising
directly or indirectly, in whole or in part, out of (i) the failure of any Agency Party to
comply with any Environmental Law relating in any way whatsoever to the handling,
treatment, presence, removal, storage, decontamination, cleanup, transportation or
disposal of Hazardous Substances into, on, under or from the Property or the Existing
Agency Improvements, (ii) the presence in, on or under the Property of any Hazardous
Substances or any releases or discharges of any Hazardous Substances into, on, under or
from the Property or the Existing Agency Improvements, or (iii) the migration of any
Hazardous Substances into, onto or under the Property or the Existing Agency
Improvements from offsite sources, in each case prior to the Closing. The foregoing
indemnity shall further apply to any residual contamination in, on or under the Property
or the Existing Agency Improvements affecting any natural resources and to any
contamination of any property or natural resources arising in connection with the
generation, use, handling, treatment, storage, transport or disposal of any such Hazardous
Substances, and irrespective or whether any of such activities were or will be undertaken
in accordance with Environmental Laws. This indemnification of the Owner Parties by
Grantor includes, without limitation, costs incurred with respect to any investigation of
site conditions or any cleanup, remedial, removal or restoration work required by any
federal, state or local governmental agency or political subdivision because of Hazardous
Substances present or alleged to be present in the soil or groundwater in, on or under the
e
7
P\Clencal Serv)ce~ Deplu"largarcrAgreemenIS-Amendment5'Agrmls-Amcnd 2003\03-09.04 In N 0111 OPA Amendment,DOC
e
e
e
Property or the Existing Agency Improvements prior to the Closing. The indemnity
described in the preceding two sentences shall not apply with respect to any Hazardous
Substances first located in, on or under the Property subsequent to the Closing.
4. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way
impair the lien or charge of any mortgage, deed of trust or other Security Financing Instrument
permitted by the OP A; provided, however, that any successor of Grantee to the Property shall be
bound by all remaining covenants, conditions, restrictions, limitations and provisions, whether
such successor's title is acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
5. The covenants set forth in Sections 2 and 3, above, shall remain in effect
in perpetuity or for so long as they may be enforceable.
6. The covenants contained in Sections 2 and 3, above, are to the fullest
extent permitted by law and equity, binding for the benefit of Grantor or Grantee, as applicable,
and its successors and assigns, as applicable, and such covenants shall run in favor of Grantor or
Grantee. as applicable, for the entire period that such covenants are in full force and effect,
regardless of whether Grantor or Grantee, as applicable, is or remains an owner of any land or
interest in land to which such covenants relate. In the event of any breach of any such covenants,
Grantor or Grantee, as applicable, shall have the right to exercise all of its rights and remedies,
and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the
curing of such breach. The covenants contained in Sections 2 and 3, above, shall be for the
benefit of and shall be enforceable only by Grantor or Grantee, as applicable, and its successors
and assigns.
8
P:\Clerlcal Ser...,ce> Depll.\largaret\Agrcemcms-t'./mndrnenls\.Agnnls-Amcnd 2003\03-09-04 In N QUI OPA AmcndmentDOC
.
.
.
IN WITl\ESS WHEREOF, the Agency has caused this Quitclaim Deed to be
executed by its authorized officers on this day of ,2003.
"AGENCY"
Redevelopment Agency of the City of
San Bernardino
By
Judith Valles
Chair of the Community Development
Commission of the City of San Bernardino,
its governing board
By
Gary Van Osdel
Executive Director
APPROVED AS TO FORM:
9
P:\Clcrlcal Services Dep\'MargarelAgreemcnl~-Amcndments'_A,grml,-Amend 2003,03-09-04 In N QuI OPA AmendmenlDOC
.
.
.
ACCEPTANCE OF QUITCLAIM DEED AND COMMUNITY
REDEVELOPMENT COVENANTS
The undersigned hereby acknowledges acceptance by In-N-Out Burgers, a
California corporation, the grantee in the within Quitclaim Deed, of the delivery of the subject
Property described in the within Quitclaim Deed from the Redevelopment Agency of the City of
San Bernardino.
"GRANTEE"
In-N-Out Burgers, a California corporation
By
[ALL SIGNATURES TO BE ACKNOWLEDGED]
10
P:OClcmal Scr\'Occs DephMargarcIAgreement.-Amendmcnl>'AgrrnlS-Amend 1003\03-09-04 In N QuI OPA Amendmenl.DOC
.
A TT ACHMENT II
SCHEDULE OF PERFORMANCE
(All dates herein are subject to change due to force majeure
in accordance with Section 7.5 of this Agreement)
1. Opening of Escrow. The Parties shall open
the Escrow for the conveyance of the
Agency Sale Property and the Owner Sale
Property.
2. Deposits in Escrow. The Agency shall
deposit the Agency Deposit and the Owner
shall deposit the Owner Deposit.
3. Acquisition of Agencv Sale Propertv. The
Agency delivers offers to acquire the
Agency Sale Property to the current owners
thereof.
. 4. Agencv Due Diligence. The Agency shall
carry out and complete its due diligence
investigation of the Owner Sale Property.
5. Title Documents. The Agency shall deliver
to the Owner the Agency Sale Property
Title Report and the Agency Sale Property
Title Documents and the Owner shall
deliver to the Agency the Owner Sale
Property Title Report and the Owner Sale
Property Title Documents.
6. Owner Due Diligence. The Owner shall
carry out and complete its due diligence
investigation of the Agency Sale Property.
7. Harriman Memorandum. The Agency and
the HUB Developer shall prepare, approve
and execute the Harriman Memorandum,
subject to Section 4.5(a).
.
"II"-I
Completed prior to September 15,2003.
Completed prior to September 15,2003.
Completed prior to September 15,2003.
Completed prior to September 15,2003.
Completed prior to September 15,2003.
Completed prior to September 15,2003.
Completed prior to September 15,2003.
P:\Clencal Scr'.ccs DeplMargare(\Agreement~.Amcndmcn\sv\grml~.Amend 2003,03.09. \5 In N Out Allach ILdoc
e 8. Applications for Discretionary Land Use Completed prior to September 15,2003.
Approvals. The Owner shall apply for the
l'\ew Restaurant CUP and the other
discretionary Land Use Approvals.
9. Harriman Extension Improvement Proiect. Commenced prior to September 15,
The Agency shall commence physical 2003.
construction of the Harriman Place
Improvement Project.
10. Ownership of Agency Sale Property. The Completed prior to September 15,2003.
Agency shall obtain merchantable, lien-free,
fee title or an insurable title interest under
Orders of Possession with respect to the
Agency Sale Property sufficient to satisfy
the condition precedent set forth in Section
3.22U).
II. Utilities. The Agency shall cause all Completed prior to September 15,2003.
utilities required for the construction,
operation and use of the New Restaurant
e and other Improvements to be stubbed to
five (5) feet inside of the Development Site.
12. Agency Demolition Work. The Agency Completed prior to September 15,2003.
shall carry out and complete the Agency
Demolition Work.
13. HUB Agreement. The Owner shall execute, Completed prior to September 15,2003.
acknowledge and deliver to Escrow Holder
the HUB Agreement.
14. Closing. The Closing shall occur as soon as On or before June 30, 2004.
possible after the satisfaction of all of the
Agency's Conditions and the Owner's
Conditions.
IS. Commencement ofImprovements. The On or before the 60th day following the
Owner shall commence construction of the Closing (defined in this Agreement as the
Improvements. "New Restaurant Commencement
Date"). (Section 4.1 (h))
e
"II"-2
P:Cle",al Service~ DephMargarclv\greemenls-Amendments'Agrmls-Amend 2003,03.09.15 In N Out Allach lI,doc
.
e
e
e
~
16. Completion ofImprovements. The Owner
shall complete the improvements.
17. Termination of Owner License. The Owner
License shall commence as of the Closing
and shall thereafter terminate.
18. Issuance of Certificate of Completion. The
Agency shall issue the Certificate of
Completion after the completion of
construction of the Improvements
(excluding the Punchlist Items).
HII"_3
Within two hundred seventy (270) days
following the I\ew Restaurant
Commencement Date. (Section 4.I(h))
On or before the first anniversary of the
New Restaurant Commencement Date.
(Section 4.2)
Within five (5) business days following
the written request of the owner.
(Section 4.4(a))
P:,Clerical ServICes DepllMargarcl\Agreemcnls-Amc:ndmcnIS\Agrmls-Amcnd 2003\03-09-15 In N Out Attach II,doc
.
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
INTER-OFFICE MEMORANDUM
RFCFIVFj.errr CU?HK
"03 SEP 29 ~11:27
SUBJECT:
Michelle Taylor, Senior Secretary, City Clerk's Office
- f{I (7 Margaret Parker, Secretary
Executed Document
TO:
FROM:
DATE:
September 29,2003
Enclosed is the fully executed Amendment pertaining to the following resolution:
CDC/2003-30 2003 Amendment No. I to Owner Participation Agreement by and
between Redevelopment Agency of the City of San Bernardino and In-
N-Out Burgers, a California corporation
Please let me know if you have any questions.
Thank you,
Margaret
Enclosure
cc: Barbara Lindseth (with Original Executed Amendment)
Barbara Sharp (with Copy of Amendment)
John Hoeger (with Copy of Amendment)
t,
.
.
.
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): C1-\ :;"03 Item # ~ <:'.2 iJt Resolution #
Vote: Ayes 1-'1 Nays B Abstain .4
C IX'!ZG)3; <, ()
Absent 4-
Change to motion to amend original documents:
Reso. # au Attachments: ~ Contract term: -
Note on Resolution of Attachment stored separately: -=-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY
NullNoid After: -
By:
Date Sent to Mayor: (~ - \ l -0 2.,
Date of Mayor's Signature: C(-\.. -0:$
Date ofClerk/CDC Signature: q.--\y-Q .~
Reso. Log Updated: ../
Seal Impressed: J-/"
Date Memo/Letter Sent for Signature:
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached:
See Attached:
See Attached:
Date Returned: ~r.1q 4]
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Yes..L No By
Yes No .,/ By
Yes No ,/ By
Yes No V. By
Yes N07 By
Copies Distributed to:
City Attorney
Parks & Rec.
Code Compliance Dev. Services EDA./ Finance
Police Public Services Water Others:
MIS
Notes:
BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc.)
Ready to File: _
Date:
Revised 01/12/01