HomeMy WebLinkAboutR01-Economic Development Agency
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o DBVELOl'MBBT DBP.AJn'Ioum"r OF TBB 0
CIn OF SAB BBRlWIDIBO
REOUEST FOR COMlfiSSIOII/COUIICIL ACTIOII
From:
KENNETH J. HENDERSON
EXecutive Director
Subject:
CBUlZ OBBRSHAW TOYOTA
RBLOCATIOII
Date:
July 23, 1991
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Synopsis of Previous Commission/Council/Committee Action:
On June 6, 1991, rhe Redevelopment Committee received and filed an item
on this subject and instructed staff to prepare a comprehensive
agreement for the Committee's consideration at its June 20, 1991
meeting .
(S!IIOPSIS COIITIIlUBD TO BBXT PAGE...)
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Recommended Motion(s):
(ComDP",ftv DeveloDment Commission)
IIOTIOII A:
That the Community Development Commission authorize the
EXecutive Director to execute an Owner Participation Agreement
(OPA) with Imperial Imports, Inc., doing business as Chuck
Obershaw Toyota, in connection with the relocation of said
dealership to the San Bernardino Auto Plaza and to increase the
Department budget by $530,000, plus possible additional
financing costs.
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(ftOTIOIIS COIITIIlUBD TO BBXT PAGE...)
Admi istrator
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Contact Person(s): Ken Henderson/John Wood
Phone:
5081
Project Area(s): SEIP AND UPTOWN
Ward(s):
2 and 3
Supporting Data Attached:
Staff ReDort: Resolutions: Aareement: MaDS
FUNDING REQUIREMENTS:
Amount: $ 530.000
Tax Increment
Source:
Budget Authority:
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Commission/Council lIotes:
KJH:JW:lab:0027E
COMMISSIOII AGBRDA
Meeting Date: 07/25/91
Agenda Item 110: ~
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DEVELOPMDT DEP~QtJEST FOR COMMISSION/COUB'CIL QON
Chuck Obershaw Toyota Relocation
Prepared: July 23, 1991
Page -2-
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Synopsis of Previous Commission/Council/Committee Action(s) Continued...
On February 18, 1991, the Redevelopment Committee recommended that the
Community Development Commission authorize the Executive Director of
execute an Owner Participation Agreement with Imperial Imports, Inc.,
dba: Chuck Obershaw Toyota, in connection with the relocation of said
dealership to the San Bernardino Auto Plaza and to increase the
Department budget by $530,000, plus possible additional financing costs.
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RecommPnded Motions Continued...
(C.......,itv Develo1lllent Commission)
MOTION B:
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERlWUlINO, MAKING FINDINGS AND DETERMINATIONS
AS TO THE BENEFIT OF ASSISTING IMPERIAL IMPORTS, INC.,
DOING BUSINESS AS CHUCIC OBERSBAW TOYOTA IN RELOCATING TO
THE SAN BERlWUlINO AUTO PLAZA FOR THE SOUTHEAST INDUSTRIAL
PARK REDEVELOPMENT PROJECT AREA OF THE AGENCY.
(Mavor and CnMMon Cnnncil)
MOTION C:
RESOLUTION OF THE MAYOR AND COMMON COUB'CIL OF THE CITY OF
SAN BERNARDINO, MAKING FINDINGS AND DETERMINATIONS AS TO
THE BENEFIT OF ASSISTING IMPERIAL IMPORTS, INC., DOING
BUSINESS AS CHUCIC OBERSBAW TOYOtA IN RELOCATING TO THE SAN
BERNARDINO AUTO PLAZA FOR THE SOUTHEAST INDUSTRIAL PARK
REDEVELOPMENT PROJECT AREA OF THE AGENCY.
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ICJH:JW: lab: 0027E
COMMISSION AGENDA
Meeting Date: 07124/1991
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DBVELOPIIBBT DBPARnIEKr
STAFF REPORT
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Chuelt Obershaw Tovota Relocation '
Snmlll_rv
The San Bernardino Auto Plaza is nearly fully developed with eight (8)
operating dealerships and only one (1) vacant site still available.
Though the Auto Plaza is gradually becoming established as the primary
attraction for car shoppers in our region, it has yet to live up to its
sales potential. Experts in the automobile industry maintain that for
an automobile plaza to become truly successful, it is critical to have
a Ford, Chevrolet or Toyota dealership located within said plaza. With
the support of the San Bernardino Auto Plaza Dealer's Association,
staff has been working to achieve this end.
The purpose of this agenda item is to seek authorization to execute an
Owner's Participation Agreement (OPA) with Imperial Imports, Inc., dba
Chuck Obershaw Toyota, in connection with its move to the San
Bernardino Auto Plaza. In summary, the deal points consist of using
the Department's best efforts to secure eight percent (8X) long-term
mortgage financing for the purchase of the Royal Chrysler/Plymouth
dealership, a $350,000 grant, payable over thirty-five (35) months to
assist Inland Empire Toyota in its move to Corona and a twenty-four
(24) month lease at $7,500 per month, of a portion of Obershaw Toyota's
"E" Street property (totalling $180,000) to facilitate the move.
Because the Royal Chrysler/Plymouth dealership is located just outside
of the Southeast Industrial Park Redevelopment Project Area, it is
necessary that mutual benefit resolutions be adopted. The deal points
are discussed in greater detail below:
Deal Points
1. Inland Emoire Grant: This will induce the relocation of Inland
Empire and allow Mr. Obershaw to relocate. The $350,000 grant,
payable over thirty-five (35) montha at $10,000 per month, will
provide a portion of the assistance Inland Empire Toyota needs to
be made whole in its move. Toyota Corporation will be responsible
for the balance. It is necessary that Inland Empire Toyota move
from its present location in Colton, as Toyota Corporation will
not allow a dealership within a ten (10) mile radius of another
dealership. Our understanding is that Inland Empire Toyota's
negotiations to relocate to Corona are going well, but it could
take a number of months to complete the new dealership. It
appears, however, that Toyota Corporation will allow the Obershaw
dealership to move prior to Inland Empire completing its move to
Corona, provided the agreements are in place.
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KJH:JW:lab:0027E
COMMISSIOB AGDDA
Meeting Date: 07/24/1991
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DBVELOPMDT DBPARTPusm: STAFF IlEPORT
Chuck Obershav Toyota Relocation
Date Prepared: July 23, 1991
Page 2
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2.
Mort2a2e Financin2: Mr. Steinhaus has been working with Miller
and Schroeder on a bond issue which would provide thirty (30)
year, eight percent (8%) financing to all of the dealerships in
the Auto Plaza, including Obershaw Toyota. For all but Obershaw
Toyota, this would be a refinancing at lower interest rates. The
financing would be secured by first trust deeds and could feature
a requirement that any given dealership generate a minimum annual
level of sales. If sales fell below this minimum, a penalty would
be imposed. Alternatively, the dealers could be required to
guarantee sales tax.
If Miller and Schroeder are unable to arrange this type of
financing, we will pursue other lending alternatives. These could
include either increasing our Wells Fargo line of credit or buying
down a conventional loan interest rate. It is important to note,
however, that the Department's obligation under the OPA is limited
to using best efforts to arrange suitable financing. Mr. Obershaw
has indicated a willingness to lease the Royal ChrySler/Plymouth
property for several montha, allowing us time to arrange the
financing. The OPA features a "lock-in" clause, requiring that a
Toyota dealership be operated in the City for a period of not less
than twenty (20) years.
3.
"E" Street ProDertv Lease: This will provide Obershaw assistance
in "carrying" its "E" Street property for two (2) years at $7,500
per month or a total of $180,000. This component of the
assistance package is a lease of the southerly portion of the "E"
Street property inclUding several automotive service bays. There
is the possibility of SUbleasing the space to automotive industry
users who are in need of such facilities. Other portions of the
property would be used by Obershaw Toyota for a used car business,
limousine service and other related operations.
Comuetin2 Site
Regarding competing sites, Mr. Obershaw has informed us of some
particulars concerning a Grand Terrace alternate site. The site
consists of approximately nine (9) acres, adjacent to and on the east
side of the 91 Freeway, several hundred yards south of Barton Road.
The site would provide Mr. Obershaw with a four (4) acre dealership
site and a five (5) acre remainder parcel, possibly for a future Lexus
dealership. Staff has learned from Mr. Tom Schwab, City Manager for
Grand Terrace, that they are currently discussing an incentive package
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KJH:JW:lab:0027E
COIMISSIOlf AGEM>A
Meeting Date: 07/24/1991
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DBVELOi'MDT DBPAR'l'Iousftr STAFF REPORT
Chuck Obershaw Toyota Relocation
Date Prepared: July 23. 1991
Page 3
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worth up to $1,700,000 to Obershaw. Tbis site has excellent visibility
from the northbound lanes of the 91 Freeway. Our understanding is that
Grand Terrace is also working to attract L.J. Snow Ford and Center
Chevrolet to this area, in an effort to start a small auto plaza of
their own.
Benefits
In terms of the benefits of this project to the City. while Mr.
Obershaw projects current sales at his "B" Street facility at nineteen
(19) million dollars annually, he feels sales could reach thirty (30)
million dollars with an Auto Plaza location. Tbis translates into
additional sales tax revenue to the City of $110,000 annually. Tbough
difficult to quantify, the sales of the other Auto Plaza dealerships
would almost certainly increase as well, due to the addition of a
Toyota franchise. Mr. Obershaw also projects an employment increase of
roughly twenty-five (25) new jobs as a result of the relocation.
Finally, after relocation to the Auto Plaza, Mr. Obershaw would begin
aggressive efforts to secure a Lexus franchise for the Plaza. To
facilitate this project, it will be necessary to increase the
Department's budget by $530,000 plus the amount of any possible
additional mortgage financing expenses.
Attached for your reference is a copy of the OPA, executed by Obershaw
Toyota representatives, and copies of the requisite mutual benefit
resolutions, area maps of the San Bernardino Auto Plaza and the Grand
Terrace alternate location, as well as a Plat Map of Mr. Obershaw's "E"
Street property.
Staff recommends adoption of Motion "A", and Resolutions "B" and "C".
0.. EZecutive Director
rtment
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KJH:JW:lab:0027B
CCMlISSIO. AGBlIDA
Meeting Date: 07/24/1991
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WHEREAS, the C;I:ty of San Bernardino, Cal1fornia (the
"Ci ty" ), is a municipal corpora'tion and a char'ter ci'ty duly
crea'ted and uis'ting pursuan't 'to the Cons'ti'tu't1on and the laws of
the S'ta'te of California: and
WHEREAS, the Community Developmen't C^"""ission of 'the City of
San Bernardino (the "Commission") on behalf of 'the Redevelopment
Agency of 'the City of San Bernardino ('the "Agency" ), is a
reeSevelopmen't agency, a pUblic boeSy, corpora'te aneS poli'tic of the
S'ta'te. ..9f California,. .0rgan1zeeS aneS. ex1s'ting pursuan't 'to 'the
Community ReeSevelopmen't Law ( Part 1 of Division 24) cOllllllencing
wi th 533000) of the Health aneS Safety CoeSe of the Sta'te of
Cal1fOrnia (the "Ac't"): aneS
WHEREAS, 'the Agency may, in furtherance of i'ts reeSevelopment
purposes, uneSertake reeSevelopman't projec'ts either within or
withou't reeSevelopmen't project areas of the Agency to the extent
that i't eSeterm1nes tha't such prOjec'ts are of benefit to the
projec't areas of 'the Agency: aneS
WHEREAS, the Agency may encourage aneS assis't 'the location
aneS reloca'tion of businesses as Part of i'ts reeSevelopment
ac'tivi'ties by gran'ts, loans and incentives locateeS both within aneS
withou't 'the bouneSaries of 'the Southeast Industrial Park
ReeSevelopmen't Projec't Area of 'the Agency if 'the Agency eSetermines:
(1) 'that such reeSevelopmen't activi'ties are of benefit to the
DAB/ses/Au'toPlaz.res
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June 13, 1991
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South.ast J:nc2ustrial Park Proj.ct Area of the Agency or the
imm.c21ate neighborhooc2s in which the project is 10catec2 anc2 (2)
that no other reasonable means of financing such rec2evelopment
activiti.s is available to the community; anc2
WHEREAS, it i. in the inter.sts of th. City anc2 the Ag.ncy
that the Agency cau..s the unc2ertaking of the relocation of
Imperial Import., Inc., c20ing business as Chuck Obershaw Toyota to
the San Sernarc21no Auto Plaza in an area ac2jacent to the Southeast
Inc2ustrial Park Rec2evelopment Project Area to encourage anc2 assure
. th....uc::c.s. of the othe~ regently 10c~tec2 auto dea1er.hips in the
Auto Plaza which are both within anc2 without the Project Area and
to retain such businesses for the City of San Sernarc21no; end
WHEREAS, the unc2ertaking of the above notec2 redevelopment
activities will promote the c2eve10pment of the Southeast
J:ndustria1 Park Project Area within the City to the extent that 11:
will 1IIak. .uch project area more desirab1. for inc2u.tria1,
commercial anc2/or resic2entia1 c2eve10pment which in turn will
as.ist in th. elimination of blight within such area; and
WHEREAS, in order to promote the City's health, safety anc2
welfare anc2 ensure th. orc2erly c2ev.10pment of the Agency'li
Southeast J:nc2ustria1 Park Project Area, it is important that the
above noted rec2ev.lopment Activities be financec2 by the Agency;
and
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WHEREAS, it i8 appropriate at this time for the Commission
to make certain findings anc2 determinations anc2 take certain
.action with respect to the financing of the above noted
redevelopment activities,
III
DAB/ses/AutoPlaz.r.s
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June 13, 1991
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NOW, THEREFORE, BE IT RESOLVED BY THE COMMUNITY
DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Recitals hereinabove are true and correct
and are incorporated herein by this reference.
SECTION 2. The Collllllission consents to the payment by the
Agency of the costs of the above noted redevelopment activities in
order to implement the Southeast Industrial Park Redevelopment
Project Plan of the Agency for the reasons set forth in the
Recitals hereinabove. The Commission further finds and determines
that no other reasonable means of financing the said redevelopment
activities is presently available to the City or the Agency and
that the City and the Agency require the use of revenues generated
from the Southeast Industrial Park Redevelopment Area of the
Agency in order to fund the said redevelopment activities.
SECTION 3. The undertaking of the noted redevelopment
activities will allow the Agency to promote redevelopment within
the Southeast Industrial Park Redevelopment Project Area of the
Agency by encouraging and assisting the location and relocation of
businesses into the project erea which in turn will help stimulate
developmant of .uch project area and the illllllediate neighborhood.
SECTION 4. The Secretary is hereby authorized and directed
to cause this ReSOlution to be transmitted to the Agency for
appropriate action by that body.
Section 5. This Resolution shall take effect upon the date
of its adoption.
III
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DAB/ses/AutoPlaz.res 3 June 13, 1991
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RESOLUTION.. .ASSISTING CHUCK OBERSHAW TOYOTA IN RELOCATING
TO THE SAN BERNARDINO AUTO PLAZA...
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I HEREBY CERTIFY that the foregoing re.olution was duly
adopted by the Community Development Commission of the City of San
Bernardino at a meeting thereof, held on the
day of , 1991, by the fOllowing vote, to wit:
Commission Members:
AYES
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ABSTAIN
ESTRADA
REILLY
HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
of
Secretary
The foregoing re.olution i. hereby approved this day
, 1991.
W. R. Holcomb, Chairman
Community Development Commission
of the City of San Bernardino
Approved a. to
form and legal content:
By:
Agency Counsel
DAB/Se./AutoPlaZ.re.
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June 13, 1991
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO, MAKING FINDINGS AND DETERMINATIONS AS TO THE
BENEFIT OF ASSISTING IMPERIAL IMPORTS, INC., DOING BUSINESS AS
CHUCK OBERSHAW TOYOTA IN RELOCATING TO THE SAN BERNARDINO AUTO
PLAZA FOR THE SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA
OF THE AGENCY.
.
WHEREAS, the C1ty of San Bernardino, California (the
"Ci ty" ), i. a mun1cipal corporation and a charter city duly
created and existing pursuant to the Constitution and the laws of
the State of California; and
WHEREAS, the Community Development Commission of the City of
San Bernardino (the "Collllll1ssion") on behalf of the Redevelopment
Agency of the City of San Bernardino (the "Agency" ) , is a
redevelopment agency, a pUblic body, Corporate and politic of the
State of California, organized and ex.t.ting pursuant to the
Community Redevelopment Law (Part 1 of Division 24) commencing
with 533000) of the Health and Safety Code of the State of
California (the "Act"); and
WHEREAS, the Agency may, in furtherance of its redevelopment
purposes, undertake redevelopment projects either within or
without redevelopment project areas of the Agency to the extent
that it determines that such projects are of benefit to the
project areas of the Agency; and
WHEREAS, the Agency may encourage and assist the location
and relocation of businesses as part of its redevelopment
activities by grants, loans and incentives located both within and
without the boundaries of the Southeast Industrial Park
Redevelopment Project Area of the Agency if the Agency determines:
(1) that such redevelopment activities are of benefit to the
DAB/ses/AutoPla2.res
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June 18, 1991
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1 Southeast Industrial Park Proj ect Area of the Agency or the
2 immediate neighborhoods in which the project is located and (2) .
3 that no other reasonable means of financing such redevelopment
4 activities is available to the community; and
5 WHEREAS, it is in the interests of the City and the Agency
6 that the Agency causes the undertaking of the relocation of
7 Imperial Imports, Inc., doing business as Chuck Obershaw Toyota to
8 the San Bernardino Auto Plaza in an area adjacent to the Southeast
9 Industrial Park Redevelopment Project Area to encourage and assure
10 the Success of the other recently located auto dealerships in the
11 Auto Plaza which are both wi thin and without the Proj ect Area and
12 to retain such businesses for the City of San Bernardino; and
13 WHEREAS, the undertaking of the above noted redevelopment
14 activities will promote the development of the Southeast
15 Industrial Park Project Area wi1:h1n the City to the extent that it
16 will make such project area more desirable for industrial,
17 commercial andlor residential development which in turn will
18 assist in the elimination of blight within such area; and
19 WHEREAS, in order to promote the City's health, safety and
20 welfare and ensure the orderly development of the Agency's
21 Southeast Industrial Park Project Area, it is important that the
22 above noted redevelopment Activities be financed by the Agency;
23 and
24 WHEREAS, it is appropriate at this time for the Commission
25 to make certain findings and determinations and take certain
26 action with respect to the financing of the above noted
27 redevelopment activities,
28 III
DAB/ses/AutoPla2.res 2 June 18, 1991
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1 NOW, THEREFORE, BE IT aESOLVED BY THE MAYOa AND COMMON
2 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: _
3 SECTION 1. The aeci tals hereinabove are true and correct
4 and are incorporated herein by this reference.
5 SECTION 2. The ('........bsion consents to the payment by the
6 Agency of the costs of the above noted redevelopment activities in
7 order to implement the Southeast Industrial Park aedevelopment
8 Project Plan of the Agency for the reasons set forth in the
9 aecitals hereinabove. The r..........f..ion further find. and determine.
10 that no other reasonable means of financing the said redevelopment
11 activities i. presently available to the City or the Agency and
12 that the City and the Agency require the use of revenues generated
13 from the Southea.t Industrial Park aedevelopment Area of the
14 Agency in order to fund the said redevelopment activitie..
15. . . SECTION 3. The. undertaking of the noted redevelopment
16 activities will allow the Agency to promote redevelopment within
17 the Southeast Industrial Park aedevelopment Project Area of the
18 Agency by encouraging and assisting the location end relocation of
19 businesses into the project area which in turn will help stimulate
20 development of such . project area end the immediate neighborhood.
21 SECTION 4. The Secretary is hereby authorized end directed
22 to cause this aesolution to be tranSm1 tted to the Agency for
23 appropriate action by that body.
24 Section 5. This aesOlution shall take effect upon the date
25 of its adoption.
26 III
27 III
28 III
DAB/ses/AutoPla2.res 3 June 18, 1991
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RESOLUTION.. .asSI8'1'IHO CHUCK OBERSHAW TOYOTA IN RELOCATING
'1'0 '1'BE SAN BERHARDINO AUTO PLaZA...
.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a -meeting thereof, held on the
day of , 1991, by the following vote, to wit:
Council Members:
AYES
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NAYS
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ABSTAIN
ESTRADA
REILLY
. HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
of
City Clerk
The foregoing resolution is hereby approved this day
, 1991.
W. R. HOlcomb, Mayor
City of San Bernardino
Approved as to
form and legal content:
JAMES F. PENMAN,
City Attorney
By:
DAB/ses/AutoPla2.res
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June 18, 1991
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1 OWNER PAR'l'XCXPA'l'XON AGRBEMBN'l'
2 THXS AGRE~NT IS ENTERED INTO THIS day of ,
3 1991 by and among the REDEVELOPMENT AGENCY OF THE CITY OF
4 SAN BERNARDINO (the "Agency" ), and IMPERIAL IMPORTS, INC. , A
5 CALIFORNIA CORPORATION, doing business as CHUCK OBERSHAW TOYOTA
6 (the "Participant" ) . Agency and Participant hereby agree as
7 follows:
8 I. [100] SUBJECT OF AGREEMENT
9 A. [101] Purpose of Agreement
10 The purpose of this Agreement is to effectuate the
11 Redevelopment Plan for the Southeast Industrial Park Redevelopment
12 Project (the "Project") by providing for the development of the
13 Site, which is situated adjacent to the Southeast Industrial Park
14 Redevelopment Project Area (the "Project Area") of the Project.
15 This Agreement is entered into for the purpose of remodeling and
16 developing the Site and for facilitating the operation of an
17 automobile dealership on the Site and not for speculation in land
18 holding. The completion of the remodeling, development and
19 occupancy of the Site pursuant to this. Agreement is in the vital
20 and best interest of the City of San Bernardino, California (the
21 "City") and the health, safety and welfare of its residents, in
22 accord with the publiC purposes and provisions of applicable state
23 and local laws and requirements under which the Project has been
24 undertaken, and will benefit the Project Area by assisting in the
25 fulfillment of the San Bernardino Auto Plaza, a large portion of
26 which is located within the Project Area.
27 It is contemplated that, so long as the development,
28 remodeling and other undertakings provided for in this Agreement
DAB/ses/Obershaw. agr 1 June 14, 1991
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1 are first accomplished in conformity with the terms herein set
2 forth, participant may subdivide, convey and devote to other
3 activities consistent with the City's land use regulations, the
4 remaining property on the site.
5 B. [102] The RedeveloJ)lllent Plan
6 The Redevelopment Plan was approved and adopted on June
7 21, 1976 by Ordinance No. 3583 of the Common Council of the City
8 of San Bernardino; said ordinance and the Redevelopment Plan as so
9 approved (the "Redevelopment Plan") are incorporated herein by
10 reference.
11 C. [103] The Site
12 The Site is that certain real property designated on
13 the Site Map (Attachment No.1) and described in the "Legal
14 Description of the Site", which is attached hereto as AttaChment
15 No. 2 and is incorporated herein by this reference, which is
16 located in and is a part of the San Bernardino Auto Plaza.
n The Site is that certain real property, title to which
18 is held or is being acquired by the Participant.
19 D. [104] Parties to the Agreement
20 1. [105] The Agency
21 The Agency is a publiC body, corporate and
22 POlitic, exercising governmental functions and powers and
23 organized and existing under Chapter 2 of the Community
24 Redevelopment Law of the State of California (Health and Safety
25 Code Section 33020 et seq.). The principal office of the Agency
26 is located at 201 North "E" Street, San Bernardino, California
27 92418.
28 III
DAB/ses/Obershaw. agr 2 June 14, 1991
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"Agency", as used in this Agreement, includes the
Communi~ Development Commission of the City of San Bernardino,
the Redevelopment Agency of the City of San Bernar<Uno, the
Development Department of the City of San Bernardino, and any
assignee of or successor to their rights, powers and
responsibilities.
2.
[106]
The Participant
The Participant is Imperial Imports, Inc., a
CalifOrnia Corporation, doing business as Chuck Obershaw Toyota.
The principal office and mailing address of the Participant for
purposes of this Agreement is 765 West Showcase Drive North, San
Bernardino, California, 92412, or such successor as may purchase
all or any part of said business.
The Participant qualifies as an owner participant
pursuant to the Redevelopment Plan and rules promulgated pursuant
thereto pertaining to owner participation.
3.
[107]
Prohibition Acainst Chance in
Ownership. Manacement and Control
of the PartiCipant
The qualifications and identity of the PartiCipant
are of partiCUlar concern to the City and the Agency.
It is
because of those qualifications and identity that the Agency has
entered into this Agreement with the PartiCipant. No voluntary or
involuntary successor in interest of the Participant shall acquire
any rights or powers under this Agreement except as expressly set
forth herein.
The Participant shall not assign all or any part
of this Agreement or any rights hereunder without the prior
written approval of the Agency which approval the Agency may not
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1 unreasonably withholeS. In the event of such transfer or
2 assignment: (1) the assignee shall expressly assume the
3 obligations of the Participant pursuant to this Agreement in
4 writing satisfactory to the Agency; aneS (2) any guarantees
5 provieSeeS to assure the performance of the Participant's
6 obligations uneSer this Agreement shall remain in full force aneS
7 effect.
8 All of the terms, covenants aneS coneSitions of this
9 Agreement shall be bincSing upon aneS shall inure to the benefit of
10 the Participant aneS the permitteeS successors aneS assigns of the
11 Participant. Whenever the term "Participant" is useeS herein, such
12 term shall inclueSe any other permitteeS Successors aneS assigns as
13 herein provieSeeS.
14 The restrictions of this Section 107 shall
15 terminate aneS be of no further force aneS effect uPOn the issuance
16 by the Agency of a Certificate of Completion in the form attacheeS
17 hereto as Attachment No. 5 a8 provieSeeS in Section 324 upon
18 completion of the Participant Improvements eSescribeeS in Section
19 302 of this Agreement aneS Attachment No. 4 aneS the commencement of
20 operation of the automobile eSealership.
21 II. [200] CONDITION OF THE SITE
22 A. [201] Vesting of Title to the Site
23 As of the eSate of this Agreement Title to the Site is
24 vesteeS in Participant or is being acquireeS by Participant. ShouleS
25 Participant not acquire clear title to the site wi thin two (2)
26 years from the date of this Agreement, then this Agreement is of
27 no further force aneS effect, unless otherwise extended in writing
28 by the parties hereto. Agency has no obligation to acquire or
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obtain the Site and the provisions of this Agreement, except for
Section 316 shall not apply to the Site unless and until
Participant acquires clear title.
B. [202] Condition of the Site
Participant assumes all risk and responsibility for any
renovation of the improvements of the Site as necessary for the
provision of Participant Improvements and the operation of the
business. Participant assumes all risk and responsibility as to
the suitability of the Site for the proposed development and the
operation of the business. Agency makes no representations or
warranties concerning the Site, its suitability for the "se
intended by the Participant, or the surface or subsurface
conditions of the Site. If the soil or other surface or
subsurface conditions of the Site are not in all respects entirely
suitable for the use or uses to which the Site will be put as of
the date of this Agreement, Participant shall not be excused from
further performance under this Agreement and it shall be the
responsibility and obligation of Participant and not Agency to
take such action as may be necessary to place the Site in a
condition entirely suitable for the commencement, development, and
completion of the Participant Improvements and the operation of
the business.
III. [300] DEVELOPMENT
A. [301] Development by PartiCipant
Participant and Agency agree that the central purpose
of this Agreement is to provide for the development and/or use of
the Site in a manner consistent with the Redevelopment Plan.
Participant shall develop on the Site sufficient buildings and
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related improvements for a Toyota automobile dealership.
1. [302] Scope of Development
The Site shall be developed by Participant as
provided in the "Scope of Development", which is attached hereto
as Attachment No. 4 and is incorporated herein.
The development shall inClude any plans and
specifications submitted to Agency for approval, and shall
incorporate or show compliance with all applicable mitigation
measures and entitlements.
2. [303] Desion COncept DraWings
If new construction or remodeling is anticipated
or undertaken, by the respective 'times set forth therefor in the
Schedule of Performance (Attachment No.3), Participant shall
prepare and submit to the City of San Bernardino ("The City") for
the approval of the City Engineer, Design COncept DraWings and
related documents containing the overall plan for development of
the Site. The Site shall be developed as established in this
Agreement and such documents, except as changes may be mutually
agreed upon between Participant and Agency. Any such changes
shall be within the limitations of the Scope of Development
(AttaChment No.4).
3.
[304]
Construction DraWings and Related
Documents
By the time set forth therefor in the SchedUle of
Performance (AttaChment No.3), and, if applicable, Participant
shall prepare and submit to the City, construction or remodeling
drawings, landscape plan, and related documents for development of
the Property for engineering and architectural review and written
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approval.
During the preparation of all drawings and plans,
staff of Agency and Participant "shall hold regular." progress
meetings to coordinate the preparation of, submission to, and
review of drawings, plans and related documents. The staff of
Agency and Participant shall communicate and consult informally as
frequently as is necessary to insure that the formal submittal of
any documents to Agency can receive prompt and complet.
consideration.
4. [305] Cost of Construction
The cost of developing and occupying the Property
and constructing all Participant Improvements thereon shall be
borne by Participant.
5. [306] Construction Schedule
If construction or remodeling is to be undertaken,
Participant shall promptly begin and thereafter diligently
prosecute to completion the construction of the Participant
Improvements and the remodeling and development of the Property.
Participant shall begin and complete all construction, remodeling
and development of the Participant Improvements within the times
specified in the Schedule of Performance (Attachment No.3).
Participant shall strictly conform to all time requirements and
limitations set forth in this Agreement. The bidding and
selection process of a contractor for the project, if necessary,
shall be subject to prior approval of Agency.
6. [307] Bodily Injury and Property Damage
Insurance
Participant
shall
defend,
assume
all
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1 responsibility for and hold the Agency, the City, and their
2 respective officers, agents and employees, harmless from, all
3 claims or suits for, and damages to, property and in~~ries to
4 persons, including accidental death (including attorneys fees and
5 costs), which may be caused by any of Participant's activities
6 under this Agreement, whether such activities or performance
7 thereof be by the Participant or anyone directly or indirectly
8 employed or contracted with by Participant and whether such damage
9 shall accrue or be discovered before or after termination of this
10 Agreement. Participant shall take out and maintain a
11 comprehensive liability and property damage policy in the amount
12 of One Million Dollars ($1,000,000) combined single limit policy,
13 including contractual public liability, as shall protect
14 Participant, City and Agency from claims for such damages until
15 two (2) years after the issuance of a Certificate of Completion
16 for all of the Participant Improvements.
17 Participant shall furnish a certificate of
18 insurance countersigned by an authorized agent of the insurance
19 carrier on a form of the insurance carrier setting forth the
20 general provisions of the insurance coverage. This countersigned
21 certificate shall name the City and Agency and their respective
22 officers, agents, and employees as additional insureds under the
23 pOlicy. The certificate by the insurance carrier shall contain a
24 statement of obligation on the part of the carrier to notify City
25 and the Agency of any material change, cancellation or terminatiOIl
26 of the coverage at least thirty (30) days in advance of the
27 effective date of any such material change, cancellation or
28 termination. Coverage provided hereunder by Participant shall be
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primary insurance and not contributing with any insurance
maintained by Agency or City, and the policy shall contain such an
endorsement. The insurance policy or the certificate of .i!,surance
shall contain a waiver of subrogation for the benefit of the City
and Agency.
Participant shall furnish or cause to be furnished
to Agency evidence satisfactory to Agency that any contractor with
whom it has contracted for the performance of work on the Site or
otherwise pursuant to this Agreement carries workers' compensation
insurance as required by law.
7. [308] City and Other Governmental Agency
Permits
Before commencement of the Participant
Improvements or other construction, remodeling or development of
any buildings, structures or other works of improvement upon the
Site, Participant shall, at its own expense, secure or cause to be
secured any and all permits which may be required by the City or
any other governmental agency affected by such construction,
remodeling, development or work.
8. [309] Rights of Access
For the purpose of assuring compliance with this
Agreement, representatives of Agency and the City shall have the
right of access to the Site, without charges or fees, at normal
work hours during the periOd of construction or remodeling for the
purposes of this Agreement, including, but not limited to, the
inspection of the work being performed in constructing the
improvements, so long as they comply with all safety rules. Such
representatives of Agency or of the City shall be those who are so
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identified in writing by the Executive Director of Agency. Agency
shall hold the Participant harmless from any bodily injury or
related damages arising out of the activities of Agency,and the
City as referred to in this Section 309 and resulting from the
gross negligence or willful misconduct of the City or Agency.
This Section 309 shall not be deamed to diminish or 11mi t any
rights which the City or Agency may have by operation of law
irrespective of this Agreement.
9. [310] Local. State and Federal Laws
Participant shall carry out the construction or
remodeling of any Participant Improvements and all related
activities on the Site in conformity with all applicable laws,
including all applicable federal and state labor standards:
prOVided, however, participant and its contractors, successors,
assigns, transferees, and lessees are not waiving their rights to
contest any such laws, rules or standards. Participant and its
contractors and sub-contractors shall pay prevailing wages to all
employees on the project.
10.
[311]
Antidiscrimination During Construction
or Remodeling
Participant, for itself and successors and
assigns, agrees that in the construction or remodeling of any
improvements provided for in this Agreement, Participant shall not
discriminate against any employee or applicant for employment
because of race, COlor, creed, religion, age, sex, marital status,
handicap, national origin or ancestry.
B. [312] Taxes. Assessments. Encumbrances and Liens
Prior to issuance of a Certificate of Completion with
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respect to all of the Participant Improvements pursuant to this
Agreement, Participant shall not place or allow to be placed on
the Site or any part thereof any mortgage, trust deed, e~c1Jlllbrance
or lien other than as expressly allowed by thi8 Agreement or
specifically approved by Agency, which approval shall not be
unreasonably withheld. Participant shall remove or have removed
any levy or attachment made on any of the Site or any part
thereof, or assure the satisfaction thereof within a reasonable
time but in any event prior to a sale thereunder.
C.
[313]
Prohibition Against Transfer of the Site,
the Buildings or Structures thereon and
A8Siqnment of A!lreement
Prior to the issuance by the Agency of a Certificate of
Completion as to any building or structure, Participant shall not,
except as permitted by this Agreement, without the prior written
approval of Agency, make any total or partial sale, transfer,
conveyance, assignment or lease of the whole or any part of the
Site or of the buildings or structures on the Site. This
prohibition shall not be deemed to prevent a transfer expressly
permitted pursuant to Section 107 of this Agreement, or the
granting of temporary or. permanent easements or permits to
facilitate the development of the Site.
D.
[314]
Long-term loan; Lease; Grant
1.
[315]
Long-term loan; Lease
Agency shall use its best' efforts to arrange long-
term, purchase money mortgage financing for Participant's purchase
of Site with terms comparable to those being sought for the
refinancing of other automobile dealerships in the Auto Plaza.
III
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1 Pending the finalization of such. financing Participant may Lease
2 Site.
3 2. [316] Lease _ .
4 Agency and Participant acknoWledge that certain
5 property located at 1139 North "B" Street is owned by Charles and
6 Shelley Obershaw. Upon relocation Participant shall enter into a
7 Lease Agreement substantially in the form of Bxhibit 6 attached
8 hereto. The term of said lease shall be for two (2) years at the
9 monthly rental of SBVEN-THOUSAND-FIVB-HUNDRBD-DOLLARS ($7,500.00)
10 for a total amount not to exceed ONB-HUNDRBD-BIGHTY-THOUSAND_
11 DOLLARS ($180,000.00), to be received by the tenth day of each
12 month or a late charge of lOt will be applied. Agency may utilize
13 said property itself or may sublease said property. Should the
14 property be sold or leased said lease shall terminate upon thirty
15 (30) days written notice to Agency, and thereafter be of no
16 further force and effect.
17 3. [317] Grant
18 The parties understand and agree that pursuant to
19 Toyota requirements, in order for Participant to be allowed to
20 locate at the Site, Inland Empire Toyota of Colton must itself
21 relocate due to its proximity to the Site. In order to compensate
22 Inland Empire Toyota for the loss of a portion of its service area
23 and to assist in its relocation, Agency agrees to pay Inland
24 Empire Toyota a monthly payment of TBN-THOUSAND-DOLLARS
25 ($10,000.00) for thirty-five (35) months for a total of not to
26 exceed THREB-HUNDRBD-FIFTY-THOUSAND-DOLLARS ($350,000.00). Such
27 payments shall begin on the first of the month following issuance
28 of a Certificate of Occupancy to Participant. In the event that
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City fails to make any payment to Inland Empire Toyota in a timely
manner and Participant is compelled to make such payment,
Participant shall be entitled to reimbursement from Age~~ and to
an additional sum of 20t or $2,000 when seven days or more late,
following 72 hours written notice, for each late payment as
compensation for the time and expense of making such payment and
for damage to reputation with Inland Empire Toyota and Toyota USA.
Such payment shall constitute liquidated damages. The parties
hereto agree to these liquidated damages because it is impossible
to fix the precise amount of damages that will accrue to
Participant in the event Agency fails to make the payments when
due. The parties agree that the sum of 20t or $2,000 for each
missed payment is fair and reasonable approximation of the damage
that will be sustained by Participant.
E. [318] Right of Agency to Satisfy other Liens on
the Site
Prior to the completion of construction or remodeling
of the Participant Improvements, and after Participant has had
written notice and has failed after a reasonable time, but in any
event not less than fifteen (15) days, to challenge, cure,
adequately bond against, or satisfy any liens or encumbrances on
the Site which are not otherwise permitted under this Agreement,
Agency shall have the right but no obligation to satisfy any such
liens or encumbrances and to make the cost thereof a lien against
the Site.
F. [319] Certificate of Completion
Promptly after completion of remodeling of all
Participant Improvements in conformity with this Agreement, Agency
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1 shall furnish Participant with a Certificate of Completion
2 (Attachment No.5) upon written request therefor by Participant.
S Agency shall not unreasonably withhold any such Certi~~cate of
4 Completion. The Executive Director may execute such Certificate
5 of Completion on behalf of Agency. Such Certificate of COmpletion
6 shall be a conclusive determination of satisfactory completion of
7 the construction or remodel required by this Agreement upon the
8 Site and the Certificate of COmpletion shall so state. Agency may
9 also furnish Participant with a Certificate of Completion for
10 portions of the improvements upon the Site as they are properly
11 completed and ready to use if Participant is not in default under
12 this Agreement. After recordation of such Certificate of
IS Completion, any party then owning or thereafter purchasing,
14 leasing or otherwise acquiring any interest in the Site or the
15 Participant Xmprovements shall not (because of such ownership,
16 purchase, lease or acquisition), incur any obligation or liability
17 under this Agreement except that such party shall be bound by any
18 covenants contained in the documents establishing covenants on the
19 Si te in accordance with the provisions of Section 401 of this
20 Agreement which shall be applicable according to its terms.
21 Xf the Agency refuses or fails to furnish a Certificate
22 of Completion for the Site, or part thereof, after written request
23 from Participant, the Agency shall, within thirty (30) days of
24 wri tten request therefor, provide Participant with a written
25 statement of the reasons Agency refused or failed to furnish a
26 Certificate of COmpletion. The statement' shall also contain
27 Agency's opinion of the actions that Participant must take to
28 obtain a Certificate of Completion. Xf the reason for such
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1 refusal 1.s confined to the illllllediate availab1.lity of specific
2 items of materials for landscaping, Agency will issue its
3 Certificate of COmpletion upon the posting of a bo~d. by the
4 Participant with Agency 1.n an amount representing the value of the
5 work not yet completed. If Agency shall have fa1.led to provide
6 such written statement wi th1.n sdd th1.rty ( 30 ) day period,
7 Participant shall be deemed entitled to the Certif1.cate of
8 Completion, and Participant's obligation shall be deemed to be
9 satisfied.
10 Such Cert1.ficate of COmplet1.on shall not constitute
11 evidence of compliance with or sat1.sfact1.on of any obligation of
12 the Participant to any holder of any mortgage, or any 1.nsurer of
13 a mortgage secur1.ng money loaned to f1.nance the Participant
14 Improvements, or any part thereof. Such Certificate of Completion
15 1.s not a notice of completion as referred to in the California
16 Civil Code, Section 3093.
17 G. [320] Condit1.ons, Covenants and Restrictions
18 Prior to the 1.ssuance of the Cert1.ficate of Completion
19 Participant shall prepare, and following approval by Agency shall
20 record conditions, covenants and restr1.ctions affecting the Site
21 which shall, among other things, contain the nondiscrimination
22 provisions of Section 401.
23 H. [321] Need for dealership
24 Participant or successor agrees and covenants: (i) to
25 operate on the Site or within the C1.ty of San Bernardino a Toyota
26 automob1.le dealership with a complete l1.ne of Toyota automobile
27 products and models typical of high-VOlume Toyota dealers
28 authorized by Toyota Motor Sales, USA, INC. principally devoted to
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1 the sale of new automobiles for a period of twenty (20) years
2 commencing with the occupancy of the site; and (ii) to refrain
3 from taking any action during such twenty (20) year pex:ipd which
4 may result in the loss to the City of San Bernardino of a high-
5 volume line of automobiles sold by Participant. The above
6 covenants are conditioned upon being able to obtain from Agency
7 and the City of San Bernardino all approvals and permits to
8 maintain a modern facility utilizing "state of the art" marketing,
9 service and display facilities, providing that any and all city
10 codes are met.
11 III. [400] USE OF THE SITE
12 A. [401] ~
13 The Participant covenants and warrants that Participant
14 shall develop, remodel or operate improvements on the Site in
15 accordance with the Scope of Development (AttaChment NO.4).
16 Participant covenants to develop and operate the Site (or cause it
17 to be operated) in conformity with all applicable laws.
18 Participant covenants by and for itself and any
19 successors in interest that there shall be no discrimination
20 against or segregation of any person or group of persons on
21 account of race, color, creed, religion, sex, marital status, age,
22 handicap, national origin or ancestry in the sale, lease,
23 sublease, transfer, use, occupancy, tenure or enjoyment of the
24 Site, nor shall Participant itself or any person claiming under or
25 through it establish or permit any such practice or practices of
26 discrimination or segregation with reference to the selection,
27 location, number, use or occupancy of tenants, lessees,
28 subtenants, sub1essees or vendees of the Site. The foregoing
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covenants shall run with the land.
Participant shall refrain from restricting the rental,
sale or lease of the Site on the basis of race, colo~1 creed,
religion, sex, marital status, handicap, national origin or
ancestry of any person. All such deeds, leases or contracts shall
contain or be subject to substantially the following
nondiscrimination or non-segregation clauses:
1. In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through th_, 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, age, handicap, national
origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through him or
her, 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 conveyed. The foregoing covenants
shall run with the land."
2. In leases: "The lessee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through him or her, and this lease is made and
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accepted upon and subject to the fOllowing conditions:
"There shall be no discrimination against or
segregation of any person or group of p!!!1;sons on
account of race, color, creed, religion, sex, marital
status, handicap, age, ancestry or national origin in
the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the premises herein leased nor
shall the lessee himself or herself, or any person
claiming under or through him or her, establish or
permi t 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- premises
herein leased."
3. 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, age, handicap, ancestry or
national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself
or any person Claiming under or through him or her,
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of
the premises."
/11
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1 B. [402] Maintenance of the Site
2 Participant shall maintain the Participant :Improvements
3 and all other improvements on the Site and shall keep th~. J'roperty
4 free from any accumulation of debris or waste materials.
5 Participant further agrees to maintain the Site in a
6 neat and attractive manner until construction or remodeling of the
7 improvements described in this Agreement is complete so as not to,
8 in the reasonable determination of an appropriate officer of t~e
9 City, be a pUblic nuisance, or be detrimental to the health,
10 safety and welfare, or impair value of property within one
11 thousand (1,000) feet of the Site, and agrees that in the event
12 Participant fails to do so, Agency may enter upon the Site for the
13 purposes of performing necessary and desirable maintenance, that
14 Participant will be responsible for the cost of any such
15 maintenance undertaken by Agency, which shall be paid within
16 thirty (30) days after receipt by Participant of written demand
17 therefor. Participant agrees to prepare and record COvenants,
18 COnditions and Restrictions approved by Agency, consistent with
19 this Section 402 including the maintenance responsibilities
20 . outlined in this Agreement which may not be amended nor revoked
21 without the approval of Agency.
22 Participant shall also maintain the landscaping
23 required to be planted under the Scope of Development (Attachment
24 NO.4) in a healthy condition. :If, at any time, Participant fails
25 to maintain said landscaping, and said condition is not corrected
26 after expiration of thirty (30) days from date of written notice
27 from Agency, Agency may perform the necessary landscape
28 maintenance and Participant shall pay such costs as are reasonably
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incurred for such maintenance. Failure to pay the costs incurred
pursuant to this Section 402 wi thin thirty (30) days shall permit
Agency to place a lien on the property.
Issuance of a Certificate of Completion by Agency shall
not affect Participant's obligations under this Section.
C.
[403]
Riohts of Access
Agency, for itself and for the City and other public
agencies, at their sole risk and expense, reserves the right to
enter the Site or any part thereof at all reasonable times for the
purpose of construction, reconstruction, maintenance, repair or
service of any publiC improvements or pUblic facilities located on
the Site. Any such entry shall be made only after reasonable
notice to Participant, and Agency shall indemnify and hold
Participant harmless from any costs, claims, damages or
liabilities pertaining to any entry. This Section 403 shall not
be deemed to diminish or 11m! t any rights which the City or Agency
may have by operation of law irrespective of this Agreement.
D.
[404]
Effect of Violation of the Terms and
Provisions of this Aoreement After
Completion of Construction
The covenants established in this Agx:eement and the
deeds shall, without regard to technical classification and
designation, be binding for the benefit and in favor of Agency,
its successors and assigns, as to those covenants which are for
its benefit.
The covenants contained in this Agreement shall
remain in effect until the termination date of the Redevelopment
Plan. The covenants against racial discrimination shall remain in
perpetuity.
III
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Agency is deemed the beneficiary of the terms and
provisio~s of this Agreement and of the covenants running with the
land, for and in its own rights and for the purposes of ~rDtecting
the interests of the community and other parties, public or
private, in whose favor and for whose benefit this Agreement and
the covenants running with the land have been provided. The
Agreement and the covenants shall run in favor of Agency, without
regard to whether Agency has been, remains or is an owner of any
land or interest therein in the Site or in the adjacent Project
Area. Agency shall have the right, if the Agreement or covenants
are breached, to exercise all rights and remedies, and to maintain
any actions or suits at law or in equity or other proper
proceedings to enforce the curing of such breaches to which it or
any other beneficiaries of this Agreement and covenants may be
entitled.
V. [500] GENERAL PROVISIONS
A. [501] Notices, Demands and Communications Between
the Parties
Written notices, demands and communications between
Agency and Participant shall be sufficiently given if delivered by
hand (and a receipt therefor is obtained or is refused to be
given) or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the principal offices of
Agency and Participant. Such written notices, demands and
communications may be sent in the S8me manner to such other
addresses as such party may from time to time designate by mail as
provided in this Section 501.
III
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Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked if
delivered by registered or certified mail.
B. [502] Conflicts of Interest; Non1iabi1ity
No member, official or employee of Agency shall have
any personal interest, direct or indirect, in this Agreement. No
member, official or employee shall participate in any decision
relating to the Agreement which affects his personal interests or
the interests of any corporation, partnership or association in
which he is directly or indirectly interested. No member,
official or employee of Agency shall be personally liable to
Participant, or any successor in interest, in the event of any
default or breach by Agency or Participant, or for any amount
which may become due to Participant or its successor or on any
obligations under the terms of this Agreement.
Participant represents and warrants that it has not
paid or given, and shall not payor give, any third party any
money or other consideration for obtaining this Agreement.
c. [503] Enforced Delay; Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
defau1 t, and all performance and other dates specified in this
Agreement shall be extended, where delays or defaults are due to:
war; insurrection; floods; earthquakes; fires; casualties; acts of
God; acts of the public enemy; freight embargoes; governmental
restrictions or priority; litigation; unusually severe weather;
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1 acts or omissions of another party: acts or failures to act of the
2 City of San BernareSino or any other public or governmental agency
3 or entity (other than the acts or failures to act of Agency which
4 shall not excuse performance by Agency): or any other causes
5 beyond the control or without the fault of the party claiming an
6 extension of time to perform. Notwithstanding anything to the
7 contrary in this Agreement, an extension of time for any auch
8 cause shall be for the period of the enforced delay and shall
9 commence to run from the time of the commencement of the cause, if
10 notice by the party claiming such extension is sant to the other
11 party within thirty (30) days of the commencement of the cause.
12 Times of performance under this Agreement may also be extanded in
13 writing by the mutual agreement of Agency and Participant.
14 Except as otherwise provided in this Agreement,
15 Participant is not entitled pursuant to this Section 503 to an
16 extension of time to perform because of past, present, or future
17 difficul ty in obtaining sui table temporary or permanent financing
18 for the development of the Site.
19 D. [504] Inspection of Books and Records
20 Upon a suspected default, with notice pursuant to 5601
21 of at least 48 hours, Agency has the right at all reasonable times
22 to inspect the books and records of Participant pertaining to the
23 Site as pertinent to the purposes of this Agreement. Participant
24 has the right at all reasonable times to inspect the public
25 records of Agency pertaining to the Property as pertinent to the
26 purposes of the Agreement.
27 III
28 III
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1 2. [604] Applicable Law
2 The laws of the state of California shall govern
3 the interpretation and enforcement of this Agreement.
4 3. [605] Acceptance of Service of Process
5 In the event that any legal action is conunenced by
6 Participant against Agency, service of process on Agency shall be
7 made by personal service upon the Executive Director or in such
8 other manner as may be provided by law.
9 In the event that any legal action is conunenced by
10 any party against Participant, service of process on such party
11 shall be made by personal service upon Participant or in such
12 other manner as may be provided by law, and shall be valid whether
13 made within or without the State of California.
14 C. [606] Rights and Remedies are Cumulative
15 Except as otherwise expressly stated in this Agreement,
16 the rights and remedies of the parties are cumulative, and the
17 exercise by any party of one or more of such rights or remedies
18 shall not preClude the exercise by it, at the seme or different
19 times, of any other rights or remedies for the seme default or any
20 other default by any other party.
21 D. [607] Inaction Not a Waiver of Default
22 Any failures or delays by any party in asserting any of
23 its rights and remedies as to any default shall not operate as a
24 waiver of any default or of any such rights or remedies, or
25 deprive any party of its right to institute and maintain any
26 actions or proceedings which it may deem necessary to protect,
27 assert or enforce any such rights or remedies.
28 III
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1 E. [608] Remedies and Rights of Termination
2 1. [609] Damages
3 If either Participant or Agency defa1:l.l:ts with
4 regard to any of the provisions of this Agreement, the non-
5 defaulting party shall serve written notice of such default upon
6 the defaulting party. If the default is not cured by the
7 defau1 ting party wi thin thirty (30) days after service of the
8 notice of default, the defaulting party shall be liable to the
9 other for any damages caused by such default. For the Agency
10 damages shall include, but shall not be limited to, the Agency's
11 investment pursuant to this Agreement, anyon-going financial
12 responsibility of Agency pursuant to 5317 and any sales tax that
13 the City would have received for the remainder of the commitment
14 term outlined in 5321. For the purposes of damages, sales tax
15 shall be estimated based on an average of the three (3) highest
16 grossing years of Participant on the Site or at a subsequent
17 location within the City of San Bernardino.
18 2. [610] Action for Specific Performance
19 If either Participant or Agency defaults under any
20 of the provisions of this Agreement prior to the recordation of a
21 Certificate of Completion for the Participant Improvements to be
22 made thereon, the non-defaulting party shall serve written notice
23 of such default upon the defaulting party. If the default is not
24 commenced to be cured by the defaulting party within thirty (30)
25 days after service of the notice of default, the non-defaulting
26 party at its option may institute an action for specific
27 performance of the terms of this Agreement.
28 /II
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VII. [700] SPECIAL PROVISIONS
A. [701] Submission of DocUlllents to Agency for
Approval.
Whenever this Agreement requires Participant to submit
plans, drawings or other docUlllents to Agency for approval, which
shall be deemed approved if not acted on by Agency within the
specified time, said plans, drawings or other docUlllents shall be
accompanied by a letter stating that they are being submitted and
will be deemed approved unless rej.ected by Agency wi thin the
stated time. If there is not a time specified herein for such
Agency action, Participant may submit a letter requiring Agency
approval or rejection of docUlllents within thirty (30) days after
submission to Agency or such docUlllents shall be deemed approved.
B. [702] Successors In Interest
The terms, covenants, conditions and restrictions of
this Agreement shall extend to and shall be binding upon and inure
to the benefit of the heirs, executors, administrators, successors
and assigns of Participant.
Upon the termination of the restrictions imposed by
Section 107 of this Agreement, which terminate upon the issuance
by Agency of a Certificate of Completion with respect to all of
the Participant Improvements pursuant to this Agreement, all of
the terms, covenants, conditions and restrictions of this
Agreement which do not terminate upon the issuance of such
Certificate of Completion shall be deemed to be, and shall,
constitute terms, covenants, conditions and restrictions running
with the land.
III
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1 VIII. [800] ENTIRE AGREEMENT, WAIVERS
2 This Agreement is executed in two (2) duplicate originals,
3 each of which is deemed to be an original. This :A~eement
4 includes pages 1 through 30 and Attachments 1 through 6, which
5 constitute the entire understanding and agreement of the parties.
6 No private entity shall be deemed to be a third party
7 beneficiary with respect to any provisions of this Agreement.
8 This Agreemant integrates all of the terms and conditions
9 mentioned herein or incidental hereto, and supersedes all
10 negotiations or previous agreements among the parties or their
11 predecessors in interest with respect to all or any part of the
12 subject matter hereof.
13 All waivers of the provisions of this Agreement must be in
14 writing by the appropriate authorities of Agency and Participant,
15 and all amendments hereto must be in writing by the appropriate
16 authorities of Agency and Participant.
17 Each individual signing below represents and warrants that
18 he has the authority to execute this Agreement on behalf of and
19 bind the party he purports to represent.
20 IX. [900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
21 This Agreement, when executed by Participant and delivered
22 to Agency, must be authorized, executed and delivered by Agency on
23 or before thirty (30) days after signing and delivery of this
24 Agreement by Participant or this Agreement shall be void, except
25 to the extent that Participant shall consent in writing to a
26 further extension of time for the authorization, execution and
27 delivery of this Agreement. The date of this Agreement shall be
28 the date when it shall have been signed by the Agency as evidenced
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1 by the date first above shown.
2 IN WITNESS WHEREOF, Agency, and Participant have executed
this Agre_ent on the day and date first above shown.
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APPROVED AS TO FORM
12 AND LEGAL CONTENT:
13 /A"'M~~'''OI~ 12. j
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--.
"Agency"
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
By:
Executive Director
APPROVED AS TO PROGRAM:
By:
Redevelopment Manager
"Participant"
INC. ,
By:
I
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STATE OF CALIFORNIA ) .
)ss.
COUNTY OF SAN BERNARDINO )
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On this day of , in the
year , before me, the undersigned, a Notary Public in and for
the State of California, personally appeared Timothy C. Steinhaus
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this
instrument as the Executive Director of the REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO and acknowledged to me said Agency
executed it.
Signature of Notary Public
(SEAL)
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0 1 STATE OF CALIFORNIA )
)ss.
2 COUNTY OF SAN BERNARDINO )
3 .' -
4 On JUl_'} 18, 1991 , before me, the
undersigned, a Notary Public i~ and for said State, personally
5 appeared c.HRR.I.E~ 2:> ~JJI,) ~t'.UR;pliD R 6J"4'1iA/(;,~ ,
personally known to me or proved. to me on the basis of
6 satisfactory evidence to be the person~ who executed the
wi thin instrument as the President and the L ~otE.rA ~ of
7 the corporation that executed the within ins nt, and
acknowledged to me that such corporation executed the same.
8
WITNESS my hand and official seal.
9 comel"" llAL) ~lnA t:~ ~1NA )
TERESA E. HOOYER
10 JIOTaIY NIUe. CAUFOIIIIA
UII II"'..... COU.n'
'1Iy Comm. _f:x!,-lulIo 7. 11194
11 (SEAL)
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ATTACHMENT NO. 1
June 14, 1991
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ATTACHMENT NO. 2
Parcel 4 of Parcel Map No. 9713 as per pla1: recorc!ec! in Book
106 of Maps, pages 91-93, Official Recorc!8 of San Bernarc!1no
Coun'ty.
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ATTACHMENT NO. 3
1.
SCHEDULB OF PBRFORMANCB
Bxecution of Agreement
by Agency. Agency
shall approve and
execute this
Agreement, and shall
deliver one (1) copy
the reo f t 0
Participant.
Clear Title or Lease.
Participant shall
obtain clear title or
enter into a long term
lease to Site.
Obtain Design Review
ApProval. Agency and
City approve Design
COncept Drawings where
required. (sufficient
time should be allowed
for possible initial
denial by either
Agency or City).
Obtain Bidding and
Selection of
Contractor Process
Approval. Agency
approves process for
bidding and selection
of contractor as
required by Section
306.
Submit Completed
construction Plans.
Participant will
submit completed
construction or
remodeling and all
other plans and
documents required by
Section 304.
DAB/ses/Obershaw.agr
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Not later than thi!'=tY (30)
days after the ..date of
execution and submission of
two (2) copies of this
Agreement to Agency by
Participant.
Not later than two (2) years
after the date of this
Agreement.
Not later than one-hundred
twenty (120) days after the
effective date of this
Agreement.
Not later than one hundred
fifty (150) days after the
effective date of this
Agreement.
Not later than two hundred
forty (240) days after the
effective date of this
Agreement.
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6.
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Obtain plan check
approval, obtain
building permits and
cODllllance construction
or remodeling,
Participant shall
obtain necessary plan
check approval, obtain
all building permits
and begin construction
or remodeling.
ComPlete Construction.
Participant shall
complete conatruction
or remodeling, move
onto Site and obtain a
Certificate of
Completion.
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Not later than three hundred
thirty (330) days after the
effective date of this
Agreement.
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Not later than seven hundred
twenty (720) days from the
effective date of this
Agreement.
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ATTACHMENT NO. 4
SCOPB OF DEVELOPMENT
I. GENERAL DBSCRIPTION
The Site is specifically delineated on the Site Map
(Attachment No.1) and the Legal Description (AttaChment No.2)
pursuant to. Seotion. 103 of this Agreement.
II. DEVELOPMENT
Partioipant shall develop and maintain the Site with
sufficient. buildings and other improvements for a Toyota
automobile dealership. Such development shall include curbs,
gutters, sidewalks and faoilities for underground electrical
power, water, sewer, telephorie, cable 'rV, natural gas and such
other utilities where required by the City Engineer.
Participant shall complete all of the improvements set forth
in this Scope of Development (AttaChment No.4) to be constructed
in one phase. All of the improvements to be provided by the
Participant on the Site oonstitute the "Basic Partioipant
Improvements." The Basio Participant Improvements and all those
off-site improvements, which are required in conneotion.with this
development (if any), and which are required to be provided by the
Participant (the "Off-Site Improvements") tOgether constitute the
"Participant Improvements".
The Partioipant shall oommence and complete the Participant
Improvements by the respective times established therefor in the
Schedule of Performance (Attachment No.3). Upon approval by City
and Agency, existing improvemants may be deemed to meet the
requiremants of this proviSion.
III. DEVELOPMENT STANDARDS
The Partioipant Improvements shall be developed and
maintained in accordance with City specifications and requiremants
of the City Engineer and the following development standards.
A. Landscaping. The Participant shall provide and
maintain landscaping wi thin the public rights-of-way and the
proposed public rightS-Of-way and within setback area along all
street frontages and conforming with the Design Concept Drawings
as approved by Agency.
Landsoaping shall consist of trees, shrubs and installation
of an automatic irrigation system adequate to maintain such plant
material. The type and size of trees to be planted, together .
with a landscaping plan, shall be subject to approVal by the
City's Planning Department prior to planting.
Page 1 of 2
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Upon approval by City and Agency existing landscaping may be
deemed to meet the requirements of this provision.
B. Utilities. Sewer, drainage and utility lines, conduits
or systems shall not be .constructed or maintain.d above .1;~e ground
level of the Site unless such installations are within approved
enclos.d structures, and shall conform to requirements of .the City
of San Bernardino or other applicable governmental or private
agency having jurisdiction ot the work. If required to be
installed, storm drainage for all hard surfaced areas shall be
drain.d or may be she.t flow.d to storm sewers. No drainage shall
flow across public sid.walks. All non polluted wast. water, such
as wast. air conditioning water, shall be drain.d to the storm or
sanitary drainage systems as permi tt.d by local cod.s.
IV. DEMOLITION AND SOILS
Participant assum.s all r.sponsibili ty for surfac. and
subsurfac. conditions at the Sit., and th. suitability of the Site
for the Participant Improvements. If the surfac. and lIubsurface
conditions are not entir.ly suitable for .uch developnent and use,
Participant shall at its cost take all actions necessary to r.nder
the Sit. entirelY sui table for such developnent. Participant has
undertaken all investigation of th. Sit. it has d.....d nec.ssary
and has not r.c.ive.d or r.li.d upon any representations of Ag.ncy,
the City, or their respective officers, agents and emp1oye.s.
Participant shall undertake at its cost aU: deaoli tion required in
connection with the developnent of Participant Improvements.
Page 2 of 2
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ATTACHMENT NO. 5
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
)
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lspace above for Recorder.j
CERTIFICATE OF COMPLETION FOR
CONSTRUCTION AND DEVELOPMENT
WHEREAS, pursuant to that certain OWner's Participation
Agreement entered into between the Agency, and Imperial Imports,
Inc., doing business as Chuck Obershaw Toyota, ( "Participant")
dated as of ("OPA"), relating to that
certain real property described on Exhibit I, attached hereto and
incorporated herein, the Participant is entitled to the issuance
of a Certificate of Completion upon the completion of those
improvements required by the OPA to be developed by the
Participant (the "Participant Improvements"); and
WHEREAS, such certificate shall be conclusive determination
of satisfactory completion of the construction required by the
OPA; and
WHEREAS, the. Agency has conclusively determined that the
construction on the above described real property required by the
OPA has been satisfactorily completed;
1/1
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Page I of 4
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NOW THEREFORE,
1.. The Agency does hereby certify that the construction or
remodeling of the Participant Improvements has been fully and
satisfactorily performed and completed. . _
2. Nothing contained in this instrument shall modify in
any other way other provisions of the OPA. All executory
obligations of the Participant pursuant to the OPA shall remain in
full force and effect.
IN WITNESS WHEREOF, the Agency has executed this
certificate this day of , 19_.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Executive Director
III
III
III
III
III
III
III
III
III
III
III
III
III
III
III
III
III
Page 2 of 4
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STATE O'~FORNIA
)
)SS.
)
COUNTY O~~ ,BERNARDINO
0! .a.;~
.t)... ~ iJ:1 ~ .' _
';1t,n~is day of , 19 before me,
the under#gne'"4, a Notary Public in and for said State, personally
appeared .' , known to me
(or prov~,.'!=~'_e on the basis of satisfactory evidence) to be the
person who e~.cuted this, instrument as the Executive Director of
the aede'!'fl1pent Agency of the City of San Bernardino and
acJcnowl~",tcr me that the aedevelopment Agency of the City of
San Bernardrncr.executed it.
~'._.JJ
Signature of Notary Public
(SEAL)
t
'g
~
Page 3 of 4
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EXHIBIT 1
That certain parcel of land in the City of San B~~ardino,
County of San Bernardino, State of California, described as
follows:
Parcel 4 of Parcel Map No. 9713 as per plat
recorded in Book 106 of Maps, pages 91-93,
Official Records of San Bernardino County.
Page 4 of 4
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1 AT'l'ACIIMEH'l' NO. 6
2 LEASE AGREEMENT
3 THIS LEASE AGREEMENT, made and entered into this
4 day of , 1991 by and between CHUCK OBERSHAW, an
5 individual ("Lessor") and the REDEVELOPMENT AGENCY OF THE CITY OF
6 SAN BERNARDINO, a Public Agency ("Lessee"):
7 NOW THEREFORE, the parties hereto agree as follows:
8 1. DBSCRI"ION or PREMISES
9 Lessor leases to .Lessee, and Lessee hires from Lessor,
10 as herein provided, a portion of the premises located at 1139 N.
11 "E" Street, San Bernardino, CA, and described more particularly on
12 Exhibit "A" attached hereto and incorporated herein.
13 2. TERM
14 The term of this lease is two years beginning on _
15 , 1991. Should Lessor sell or otherwise lease the
16 premises herein leased, this lease shall thereby terminate and be
17 of no further force and effect.
18 3. RENT
19 The total rent under this lease is One Hundred Eighty
20 Thousand ($180,000.00). Lessee agrees to pay Lessor such amount
21 in installments of Seven Thousand Five Hundred Dollars ($7,500)
22 each, payable at 765 West Showcase Drive North, San Bernardino,
23 92412, beginning on , 1991, and payable on the
24 First day of each Month thereafter during the term of the lease.
25 4. USE or PREMISES, GENERALLY
26 The premises are leased to be used for automobile and
27 truck service and related uses. Lessee agrees to restrict their
28 use to such purposes, and not to use or permit the use of the
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1 premises for any other purpose without first obtaining the consent
2 in writing of Lessor, or of Lessor's authorized agent.
S 5. NO USE THAT :INCREASES :INSURaNCE RJ:SK
4 Lessee shall not use the premises in any manner, even
5 in its use for the purposes for which the premises are leased,
6 that will increase risks covered by insurance on the building
7 where the premises are located, so as to increase the rate of
8 insurance on the premises, or to cause cancellation of any
9 insurance policy covering the building. Lessee further agrees not
10 to keep on the premises, or permJ.t to be kept, used, or sold
11 thereon, anything prohibited by the policy of fire insurance
12 covering the premises. Lessee shall comply, at his own expense,
IS with all requirements of insurers necessary to keep in force the
14 fire and publiC liability insurance covering the premises and
15 building relating to Lessee's use of the premises.
16 6. NO WASTE, NU:ISANCE, OR UNLAWFUL USE
17 Lessee shall not commit, or allow to be committed, any
18 waste on the premises, create or allow any nuisance to exist on
19 the premises, causing soil contamination, toxic or hazardous waste
20 to contaminate property or allow ground water to become
21 contaminated or suffer degradation, or use or allow the pramises
22 to be used for any unlawful purpose.
23 7. DELAY:IN DEL:IVER:ING POSSESS:ION
24 This lease shall not be rendered void or voidable by
25 Lessor's inability to deliver possession to Lessee at the
26 beginning of the lease term; nor shall such inability to deliver
27 render Lessor liable to Lessee for loss or damage suffered
28 thereby. If Lessor cannot deliver the premises at such time, the
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1 rent for the period between the beginning of the term and the time
2 when Lessor can deliver possession will be deducted from the total
3 rent of the lease. No extension of the leaae shall result from a
4 delay in delivering possesaion.
5 8. PAYMEN'l' OF U'1'ILI'l'IZS AND 'l'AXES
6 All utilities, except separately contracted for
7 telephone service, and all property taxes shall be deemed included
8 within the rental provided for in Section 3 hereof.
9 9. REPAIRS AND MAINTENANCE
10 Lessor, at his expense, shall maintain and keep the
11 premises, including, without limitation, windows, doors,
12 skylights, adjacent sidewalks, front, roof, exterior and interior
13 walls, in good repair.
14 10. DELIVERY, ACCEPTANCE, AND SURRENDER OF PREMISES
15 Lessor represents that the premises are in fit
16 condition for use for automobile and truck service. Lessee agrees
17 to accept the premises on possession as being in a good state of
18 repair and in sanitary condition. He shall surrender the premises
19 to Lessor at the end of the lease term, if the lease is not
20 renewed, in the same condition as when he took possession,.
21 allowing for reasonable use and wear, and damage by acts of God,
22 including fire and storms. Lessee shall remove all business signs
23 or symbols placed on the pramises by him before redelivery of the
24 premises to Lessor, and shall restore the portion of the premises
25 on which they were placed in the same condition as before their
26 placement.
27 III
28 III
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1 11. PARTXAL DESTRUCTX01f OF PREMXSES
2 Partial destruction of the leased premises shall not
3 render this lease void or voidable, or terminate it ~~cept as
4 herein provided.
5 Xf the premisell are partially destroyed during the term
6 of this lease, Lessor shall repair them, when such repairs can be
7 made in conformity with local, state, and federal laws and
8 regulations, within Thirty (30) days of the partial destruction.
9 Rent for the premises will be reduced proportionally to the extent
10 to which the repair operations interfere with the normal conduct
11 of Lessee's activities on the premises. Xf the repairs cannot be
12 so made within the time limited, Lessor has the option to make
13 them within a reasonable time and continue this lease in effect
14 with proportional rent rebate to Lessee as provided for herein.
15 J:f the repairs cannot be so made in Ninety (90) days, and if
16 Lessor does not elect to make them within a reasonable time,
17 either party hereto has the option to terminate this lease.
18 However, if the building in which the leased premises are located
19 is more than one-third destroyed, Lessor may at his option
20 terminate the lease whether the premises are injured or not.
21 12. LBSSOR 'S ENTRY FOR XNSPBCTXON AND MAXNTBNANCB
22 Lessor reserves the right to enter on the premises at
23 reasonable times to inspect them, to perform required maintenance
24 and repair, or to make additions or alterations to any part of the
25 building in which the premises leased are located, and Lessee
26 agrees to permit Lessor to do so. Lessor may, in connection with
27 such alterations, additions, or repairs, erect scaffolding,
28 fences, and similar structures, post relevant notices, and place
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1 moveable equipment without any obligation to reduce Lessee's rent
2 for the premises during such period, and without incurring
3 liability to Lessee for disturbance of quiet enjoymeI:\'t; of the
4 premises, or loss of occupation thereof. However, any such
5 activities by Lessor which interfere with the use for which the
6 property was leased shall require 72 hours advance written notice.
7 Lessee shall keep the premises free and clear of all
8 liens and encumbrances and shall immediately take whatever steps
9 are necessary to remove any such liens or encumbrances incurred
10 against the property during the lease term, exempt those
11 specifically consented to by Lessor ~ In the event Lessor is
12 required to defend any action to foreclose a mechanic's lien or
13 other lien or encumbrance, Lessor shall be entitled to recover
14 from Lessee all costs of defense including reasonable attorneys
15 fees.
16 13. POSTING "FOR SALB," "FOR LDSB," OR "FOR RDl'l'" SIGNS
17 Lessor reserves the right to place "For Sale", "For
18 Lease" or "For Rent" signs on the premises at anytime during the
19 lease.
20 14. SIGNS, AWNINGS, KARQUBBS, B'l'C.
21 Lessee will not construct or place, or permit to be
22 constructed or placed, signs, awnings, marquees, or other
23 structures projecting from the exterior of the premises without
24 Lessor's written consent thereto. Lessee further agrees to remove
25 signs, displays, advertisements or decorations he has placed, or
26 permi tted to be placed, on the premises which, in Lessor's
27 opinion, are offensive or otherwise Objectionable. If Lessee
28 fails to remove such signs, displays, advertisements, or
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decorations within Ten (10) days after receiving written notice
from Lessor to remove the same, Lessor reserves the right to enter
the premises and remove them, at Lessee's expense.
15. DAMAGES; INDEMNITY
Lessor agrees to indemnify and defend Lessee for
liability or damage claims for injury to persons, including Lessee
and his agents or employees, or for property damage from any
cause, related to the condition of the premises, including those
arising out of damages or losses occurring on sidewalks and other
areas adjacent to the leased premises, during the term of this
lease or any extension hereof except as resulting from the
negligence of Lessee.
Lessee hereby agrees to indemnify Lessor against all
liability, loss, or other damage claims or obligations because of
or arising out of Lessees activities on the premises, including
but not limited to any environmental damage or enforcement
proceedings brought by any agency for the correction of
environmental problems. Said indemnity shall include but not be
limited to any damage, liability, injury or enforcement
proceeding, arising out of or related in any manner, directly or
indirectly to ground water contamination or degradation, soil
contamination, toxic or hazardous substances or any other
environmental problem, caused by Lessee's negligence.
16. LBSSU'S ASSIGlOIBN'1', SUBLDSE, OR LICENSE POR
OCCUPATION BY OTHER PERSONS
Lessee agrees not to assign or sublease the leased
premises, any part thereof, or any right or privilege connected
therewith, or to allow any other person, except Lessee's agents
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1 and employees, to occupy the premises or any part thereof, without
2 first obtaining Lessor's written consent. Lessor expressly
3 covenants that such consent shall not be unreas~n~bly or
4 arbitrarily refused. One consent by Lessor shall not be a consent
5 to a subsequent assignment, sublease, or occupation by other
6 persons. Lessee's unauthorized assignment, sublease, or license
7 to occupy shall be void, and shall terminate the lease at Lessor's
8 option. Lessee's interest in this lease is not assignable by
9 operation of law, nor is any assignment of his interest herein,
10 without Lessor's written consent. Use by any department of the
11 Ci ty of San Bernardino or by any department of the San Bernardino
12 Economic Development Agency shall not be considered an assignment
13 or sublease for the purposes of this Section.
14 17. LESSOR'S REMEDIES ON LESSEE'S BREaCH
15 If Lessee breaches this lease, Lessor shall have the
16 fOllowing remedies in add! tion to his other rights and remedies in
17 such event:
18 a. Reentry. Lessor may reenter the premises
19 immediately, and remove all Lessee's personnel and property
20 therefrom. Lessor may store the property in a public warehouse or
21 at another place of his choosing at Lessee's expense or to
22 Lessee's account.
23 b. Termination. After reentry, Lessor may terminate
24 the lease on giving Thirty (30) days' written notice of such
25 termination to Lessee. Reentry only, without notice of
26 termination, will not terminate the lease.
27 c. Reletting Premises. After reentering, Lessor may
28 relet the premises or any part thereof, for any term, without
DAB/ses/Obershaw.agr 7 June 14, 1991
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1 terminating the lease at such rent and on such terms as he may
2 choose. Lessor may make alterations and repairs to the premises.
3 (1) Liabili ty of Lessee on Reletting., _ Lessee
4 shall be liable to Lessor in addition to his other liability for
5 breach of the lease for all expenses of the reletting, and of the
6 alterations and repairs made, which Lessor may incur. In addition
7 Lessee shall be liable to Lessor for the difference between the
8 rent received by Lessor under the reletting and the rent
9 installments that are due for the same period under this lease.
10 (2) Application of Rent on Reletting. Lessor at
11 his option may apply the rent received from reletting the premises
12 as follows:
13 (a) To reduce Lessee's indebtedness to
14 Lessor under the lease, not including indebtedness for rent:
15 (b) To expenses of the reletting and
16 alterations and repairs made:
17 (c) To rent due under this lease:
18 (d) To payment of future rent under this
19 lease as it becomes due.
20 If the new Lessee does not pay a rent instalment
21 promptly to Lessor, and the rent instalment has been credited in
22 advance of payment to Lessee's indebtedness other than rent, or if
23 rentals from the new Lessee have been otherwise applied by Lessor
24 as provided for herein, and during any rent installment period are
25 less than the rent payable for the corresponding installment
26 period under this lease, Lessee agrees to pay Lessor the
27 deficiency separately for each rent-instalment deficiency period,
28 and before the end of that period.
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Lessor may at any time after such reletting terminate
the lease for the breach because of which he reentered and relet.
Lessor may recover from Lessee on terminating.1:he lease
for Lessee's breach all damages proximately resulting from the
breach, including the cost of recovering the premises, and the
worth of the balance of this lease over the reasonable rental
value of the premises for the remainder of the lease term, which
sum shall be immediately due Lessor from Lessee.
18. PAYMEH'l' OP ATTORNEYS' PEES
If either party files an action to enforce any covenant
of this lease, or for breach of any covenant herein, the losing
party agrees to pay reasonable attorneys' fees in the action, sucb
fees to be fixed by the court.
19. MUlMER OP GIVING NOTICE
Notices given pursuant to tbe provisions of tbis lease,
or necessary to carry out its provisions, shall be in writing, and
delivered personally to tbe person to wbom the notice is to be
given, or mailed postage prepaid, addressed to sucb person.
Addresses for tbis purpose shall be as follows:
To Lessor:
Chuck Obershaw Toyota
765 West Sbow Case Dr. North
San Bernardino, CA 92412
To Lessee:
Redevelopment Agency
201 N. "E" Street
San Bernardino, CA 92418
20. EPPEC'r OP WAIVER
A party's waiver of breach of one covenant or condition
of this lease is not a waiver of breacb of otbers, or of
subsequent breacb of tbe one waived.
III
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1 21. LEASE APPLICABLE '1'0 SUCCESSORS
2 This lease and the covenants and conditions hereof
3 apply to and are binding on the heirs, successO:!:'8-, legal
4 representatives, and assigns of the parties.
5 22. TIME OP ESSENCE
6 Time is of the essence of this lease.
7 23. UPEC'l' OF I!:MINB:N'1' DOMAIN PROCEB:DIRCS
8 Eminent domain proceedings resulting in the
9 condemnation of a part of the premises leased herein that leave
10 the rest usable by Lessee for purposes of the business for which
11 the premises are leased will not terminate this lease, unless
12 Lessor at his option terminates it by giving written notice of
13 termination to Lessee. The effect of such condemnation, should
14 such option not be exercised, will be to terminate the lease as to
15 the portion of the premises condemned, and leave it in effect as
16 to the remainder of the premises. Lessee's rental for the
17 remainder of the lease term shall in such case be reduced by the
18 amount that the usefulness of the premises to him for such
19 business purposes is reduced. COmpensation awarded in the eminent
20 domain proceeding as a result of such condemnation shall be
21 divided between the parties based on the relative value of the
22 interest taken.
23 24. OPTION TO RENEW
24 Lessor grants Lessee an option to renew this lease for
25 another term equal to the term hereof at a rental to be agreed
26 upon between the parties , the other terms, covenants, and
27 conditions of the renewal lease to be the same as those herein.
28 To exercise such option Lessee must give Lessor written notice of
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LEASE AGRZI:MEN'1'.. . CHUCK OBERSDW "TOYOTA...
his intention to do so at least Sixty (60) days before tb1.s lease
expires.
IN WITNESS WHEREOF, the parties hereto have executed this
Lease Agreement on the day and date first above shown.
"AGENCY"
REDEVELOPMENT AGBNCY OF THE
CITY OF SAN BERNARDINO
APPROVED AS TO PROGRAM:
BY:
Executive Director
BY:
Redevelopment Manager
Approved as to form
and legal content:
By:
Agency Counsel
"PARTICIPANT"
IMPERIAL IMPORTS, INC.,
doing business as
CHUCK OB SHAW TOYOTA
BY:
DAB/ses/Obershaw.agr
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RESOLUTION NO.
RESOLUTION OF '1'HB COMMUNITY DEVELOPMBNT COMMISSION OF TIll
CITY OF SAN BIRNARDINO, MAKING FINDINGS AND DBTERMXNATIONS AS TO
'1'HB BENEFIT OF ASSISTING. IMPERIAL IMPORTS, INC., DOING BUSINBSS AS
CHUCK OBEltSHAW TOYOTA IN RELOCATING TO THE SAN BERNARDINO AUTO
PLAZA FOR '1'HB SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT ARIA
OF THE AGENCY.
WHBREAS, the C1'ty of San Bernarc21no, California (the
-C1'ty-), is a mun1c1pal corporation and a charter c1'ty duly
created and u1sttng P\lZ'8Uant to the Con8t1tut1on and the laws of
the State of California; and
WHBREAS, the CoIIIIIIun1 'ty Developmant Cru-li aaton of the C1 'ty of
San Bernardino (the -n-...tss1on-) on behalf of the Redevelopment
Agency of the C1'ty of San Bernardino (the -Agency- ), is a
redevelopment agency, a public body, corporate and politic of the
State. ..9f California,. .organized and. u1st1ng pursuant to the
CoIIIIIIun1'ty Redevelopment Law (Part 1 of Division 24) commencing
with 533000) of the Health and Safe'ty Code of the State of
CalifOrnia (the -Act-); and
WHBRBAS, the Agency may, in furtherance of its redevelopment
.
purposes, undertake redevelopment projects either within or
without redevelopment project areas of the Agency to the extent
that it determines that such projects are of benefit to the
project areas of the Agency; and
WHEREAS, the Agency may encourage and assist the location
and relocation of businesses es part of its redevelopment
act1v1t1es by grants, loans and 1ncent1ve. located both w1th1n and
without the boundar1es of the Southeast Industr1al Park
Redevelopment Project Area of the Agency 1f the Agency determines:
(1) that such redevelopment act1v1t1e. are of benef1t to the
DAB/ses/AutoPlaz.re.
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Southeast Industrial Park Project Araa of the Agency or the
1Iuaediate neighborhoods in which the project is located and (2)
that no other reasonable meana of financing such red..vjalopment
activities 18 available to the COlIlIIIUn1ty; and
WHEREAS, it is in the 1ntarests of the City and the Agency
that the Agency causes the undertaking of the relocation of
Imperial Importa, Inc., doing bua1ness as Chuck Obershaw Toyota to
the San B.rnardino Auto Plaza in an area adj acent to the South.ast
Industrial Park aedevelopment Project Area to encourage and assure
the .ucces. of the other recently located auto dealerahips in the
.' ",. ." . . " '. '.
Auto Plaza which are both within and without the proj.ct Area and
to retain .uch bu.in..... for the City of San Bernardino; and
WHEREAS, the undertaking of the above not.d red.v.lopment
activities will promote the d.velopmant of the Southeast
Indu.trial Park Project Area within the City to the aztent that it
will make such project area more de.irable for indu.trial,
COIIIIIIercial and/or residential development which in turn will
a..ist in the elimination of blight within .uch area; and
WHEREAS, in order to promote the City's h.alth, .afety and
welfare and ensure the orderly developmant of the Agency' 8
South.a.t Indu.trial Park Project Area, it 1. important that the
above noted redevelopment Activ1tie. be financed by the Agency~
and
WHEREAS, it ia appropriate at thi. time for the CO"llll1saion
to make certain finding. end determinations and take certain
action with r.spect to the financing of the above noted
redevelopment activ1t1e.,
/11
DAB/.e./AutoP1az.re.
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Jun. 13, 1991
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1 NOW, THEREFORE, BE IT RESOLVED BY THE COMMUNITY
2 DEVELOPMENT COMMISSION OP THE CITY OP SAN BBJtNA1mINO AS FOLLOWS:
3 SECTION 1. The a.ci tal. her.inabov. are true and: correct
4 and are incorporat.d herein by thi. r.f.rence.
S SECTION 2. The ,........i..ion con.ents to the pa:l/Dl.nt by the
6 Ag.ncy of the co.t. of the abov. not.d red.velopm.nt activiti.s in
7 ord.r to impluent the Southeast Industriel Park aeeSev.lopment
8 Project Plan of the Agency for the r.asons ..t forth in th.
9 aecital. h.reinabov.. The ('-...j..ion furthar find. and determine.
10 that no oth.r rea.onabl. ...ana of financing the saieS r.eSeve10pment
11 activiti.. i. pr..ently availab1. to the City or the Agency and
12 that the City and the Agency r.QUire the u.. of revenue. generateeS
13 fZ'Olll the South.a.t Industrial Park a.d.velopment Arlia of the
14 AgenCy in ord.r to fund the .aid r.dev.lopment activiti.s.
15 SECTION 3. Th. undertaking of the noted r.eS.velopment
16 .ctiviti.. will allow the Agency to PZ'OIIIOt. r.eS.velopment within
17 the South.a.t Indu.trial Park a.dev.lopment Proj.ct Ar.a of the
18 Agency by encouraging and ...isting the location and relocation of
19 bu.in..... into the project area which in turn will h.lp stimulate
20 dev.lopm.nt of .uch proj.ct area and the illlllleeSiate neighborhoocS.
21 SECTION 4. The Secretary is hereby authorizeeS aneS eS1recteeS
22 to cau.. thi. aeSolution to be tran8lllitteeS to th. Agency for
23 appropriate action by that bocSy.
24 Section 5. Thi. Resolution shall take effect upon the eSate
25 of it. acSoption.
26 1/1
27 III
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June 13, 1991
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RESOLUTION.. .asSISTING CIIUC:K OBER8IIAW TOYOTa 1M RELOCATING
TO 'l'IIE 8U BBIUfaJU)INO AUTO PLaZa...
. ." ~
0" ~
I HEREBY CERTIFY 'tha't 'the :foAgo1ng re.olu't1on wa. duly
adop'ted by 'the Commun1'ty Developmen't C-"""lli.a1on o:f 'the C1'ty o:f San
Bemard1no a't a ....'ting 'thereo:f, held on 'the
day o:f . 1991. by 'the :fOllowing VO'te. 'to n't:
-.
~1..1on Member.:
AYES
-
NAYS
-
ABSTAIN
ESTRADA
REILLY
HERNANDBZ
MAUDSLBY
MINOR
POPB-LUDLAM
MILLBR
o:f
Secre'tary
Tbe :foregoing A.OluUon 1. bereby approvad 'tb1a day
. 1991.
W. R. HolcOIIlb. Cba1Z'1llan
ColIumm1 'ty Developman't Commission
o:f 'the C1'ty o:f San Bemardino
Approved a. 'to
:fOZ'lll and legal con'ten't:
By:
Agency Counsel
DAB/se./Au'toPla..res
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OP
SAN BERNARDINO, MAKING FINDINGS AND DETEftMINATIONS AS- '1'0 THE
BENEFIT OF ASSISTING IMPERIAL IMPORTS, INC., DOING BUSINESS AS
CHUCK OBERSHAW 'l'OYOTA IN RELOCATING TO THE SAN BBRNARDINO AUTO
PLAZA FOR THE SOUTHEAST INDUSTRIAL PARIC REDBVBLOPMBNT PROJECT AREA
OF THE AGENcr.
.
WHEREAS, the City of San Bernardino, CalifO:m1a (the
-City-), is a IIWl1cipal corporation and a charter city dUly
created and ez1st1ng punuant to the Conati tution and the law. of
the State of CalifO:m1a; and
WHEREAS, the ComIIIun1ty Development ComIII1ss1on of the City of
San Bernardino (the -~1ss1on-) on behalf of the Redevelopment
Agency of the City of San. Bernardino (the -Agency-), 18 a
redevelopment agency, a public body, corporate and politic of the
State of Cal1fo:m1a, organ1.ed and existing pursuant to the
CoIIImun1ty Redevelopment Law (Part 1 of Div1810n 24) COIIIIIIenc1ng
with 533000) of the Health and Safety Code of the State of
Califo:m1a (the -Act-); and
WHEREAS, the Agency may, 10 furtherance of it. redevelopment
purpo.es, undertake redevelopment project. either within or'
without redevelopment project areas of the Agency to the extent
that it determ1ne. that such projects are of ben.f1t to the
proj.ct area. of the Agency; and
WHEREAS, the Ag.ncy may encourage and a..1st the location
and relocation of bu.1n..... 8. part of it. r.development
act1v1t1e. by grant., loan. and inc.nt1ve. locat.d both within and
without the boundar1e. of the Southea.t Indu.tr1al Park.
R.developm.nt Project Ar.a of the Ag.ncy if the Agency determine.:
(1) that .uch r.development act1v1t1e. are of benefit to the
DAB/.e./AutoPla2.r..
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Sou1:l1ea.t IneSu.trial Park Proj.ct Area of 1:11. Agency or the
1mm.lUate neighborhoocSa in which the project i. locat.eS aneS (2)
1:I1at no 01:l1.r r.asonable m.an. of financing .uch r.eS.velopment
activities is available to 1:11. COlIIIIIunity; ancS
WHEREAs, it il!l in 1:11. inter.st. of 1:I1e City and the Agancy
1:I1at the Agancy cau.e. 1:11. uneS.rtaJc:1ng of 1:I1e relocation of
Imperial Import., Inc., cSoing bu.ine.. a. Chuck Obershaw Toyota to
1:I1e San S.marlUno Auto Plaza in an ar.a aeSjac.nt to 1:I1e Southeast
IneSustrial Park ..eS.velopm.nt Proj.ct Area to .ncourage ancS assure
1:I1e .ucce.. of 1:I1e other recently located auto deal.r.hip. in the
Auto Plaza which are both wi1:l1in and without the Project Area aneS
to retain .uch bu.ine.... for 1:I1e City of San SamarlUno; aneS
.
WHEREAs, 1:I1e undertaking of 1:I1e abov. noteeS reeSevelopm.nt
activities will promote 1:11. eSevelopment of 1:I1e Southeast
IneSu.trial Park Project Area within 1:11. City to the .xtant that it
will make such project ar.a more eS..irable for indu.trial,
cOllllDercial eneS/or r..idential developmant which in turn will
..sist in 1:11. .liminetion of blight wi1:l1in .uch area; aneS
WHEREAs, in oreS.r to promote 1:I1e City'. h.a11:l1, .afety aneS
welfare aneS ensure 1:11. oreS.rly eSevelopment of the Agency's
Sou1:l1ea.t IncSustrial Park Project Ar.a, it is important that the
above noted r.eSevelopmant Activities be financeeS by the Agency;
and
WHEREAS, it i. appropriate at this time for the Commission
to make certain finlUngs and determinatione and take certain
action with respect to the financing of 1:I1e above noted
redevelopment activities,
/II
DAB/ses/AutoPla2.re.
2
June 18, 1991
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1 NOW, THBUFOU, BB IT USOLVED BY THE MAYOR AND COMMON
2 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
3 SBCTION 1. The Recital. her.inabov. ar. true and- correct
4 aneS ar. incorporat.eS har.in by thi. ref.renc..
5 SBCTION 2. Th. c......... .sion conaents to the pa:yment by the
8 Ag.ncy of the costs of the above noteeS reeSev.10pment activi tie. in
7 oreSer to 1mp1ament the South.ast IncSu.tria1 Park ReeSevelopment
8 Proj.ct Plan of the Agency for the re..ana ..t forth in the
o R.cital. h.reinabov.. Th. c-t..ion furth.r fineS. 8ncS eSetermJ.ne.
10 that no oth.r rea.onabl. ..ans of finencing the .aieS r.eSev.lopment
11 activiti.. i. pr..ently avaUabl. to the City or the Ag.ncy and
12 that the City aneS the Agency r.quire the us. of r.venue. generateeS
13 from the South.a.t IneSu.trial Park ReeS.v.lopment Area of the
14 Agency in oreSer to funeS the .aieS r.eSev.lopment activitie..
J5. . SBCTION 3. The. uneSertak1ng of the noteeS reeSevelopment
18 activitie. will allow the Agency to promote reeSevelopment within
17 the Southeast IneSu.trial Park ReeSevelopment Project Area of the
18 Agency by encouraging aneS a..isting the location aneS r.location of
J9 bu.in..... into the project area which in turn will help st1mulate
20 eSevelopment of such .proj.ct area eneS the 1DunecS1ate neighborhood.
21 SECTION 4. The Secr.tary i. hereby authorized and directed
22 to caus. this Resolution to be tren8lll1 tted to the Agency for
23 appropriate action by that body.
24 S.ction 5. Thi. R.solution shall take eff.ct upon the date
25 of it. adoption.
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27 III
28 III
DAB/.../AutoP1a2.res 3 June 18, 1991
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RESOLW'IOH.. .U818TlHG CHUCK OBERSBAW TOYOTA IN RELOCATING
TO 'l'III: BAN BDN&JtDlNO AW'O PLaZa...
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I HEREBY CERTIFY 'that 'the foregoing re.olution wa. duly
adopted by 'the Mayor and Common Council of 'the City of San
Bernardino at a -meeting 'thereof. held on the
day of . 1991. by 'the fOllOWing vote. to wit:
AYES
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NAYS
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ABSTAIN
of
City Clerk
The foregOing re.olution 18 hereby approved 'this day
. 1991.
w. R. Halcomb. Mayor
City of San Bernardino
Approved a. to
fona and legal content:
JAMES P. PBNMAH.
C1 ty Attorney
By:
DAB/.e./AutoPla2.re.
4
June 18. lQQ,
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