HomeMy WebLinkAboutR38-Economic Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Gary Van Osdel
Executive Director
SUBJECT:
C.'-" "',1 ~L
. . I lv' . I .1
JOINT PUBLIC HEARING -
TIPPECANOE RETAIL PROJECT:
IN-N-OUT OPA
DATE: August 7, 2001
Svnonsis of Previous Commission/Council/Committee Action(s):
On July 12, 1999, the Conununity Development Commission approved a Cooperation Agreement with the Inland Valley
Development Agency,
On August 2, 1999, the HopkinslPearlman Development Group entered into an Exclusive Right to Negotiate with the
Economic Development Agency,
On May 21,2001, the Conununity Development Conunission and the Mayor and Conunon Council approved a
Disposition and Development Agreement with SBT Partners for development of "The HUB" retail project.
Recommended Motion(s):
OPEN PUBLIC HEARING
CLOSE PUBLIC HEARING
(Communitv Development Commission)
MOTION A: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, MAKING CERTAIN FINDINGS AND DETERMINATIONS
PURSUANT TO HEALTH AND SAFETY CODE SECTION 33433, MAKING OTHER FINDINGS
AND DETERMINATIONS IN ACCORDANCE WITH THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT AND APPROVING THAT CERTAIN OWNER P ARTICIP A TION AGREEMENT BY
AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND
IN-N-OUT BURGERS ON THE TERMS SET FORTH IN SUCH AGREEMENT
(Motion(s) Continued to Next Page....)
Contact Person(s): Gary Van Osdel/John Hoeger
Project Area(s) IVDA
Phone:
663-1044
Ward(s):
Third
Supporting Data Attached: IiiI Staff Report IiiI Resolution(s) IiiI Agreement(s)/Contract(s) IiiI Map(s) 0 LetterlMemo
FUNDING REQUIREMENTS Amount: $
1,019,262
Source:
See attached staff report
Requested
SIGNATURE:
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Agenda I
Request for Commission/Council Action
Tippecanoe OPA (INO)
August 7, 2001
Page Number -2-
--------------------------------------------------------------------------------------------------------------------------
Recommended Motion(s) Continued:
(Mavor and Common Council\
MOTION B:
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ACKNOWLEDGING RECEIPT OF A REPORT RELATING TO THAT CERTAIN
OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS
GVO:JBH:lag:
COMMISSION MEETING AGENDA
Meeting Date: 09/0412001
Agenda Item Number: R.;J."
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
TIPPECANOE RETAIL PROJECT - SBT PARTNERS OPA
BACKGROUND
On May 21, 2001, a development agreement was approved with SBT Partners for development
of approximately 268,000 square feet of commercial space on 24.5 acres located at the northwest
comer of Tippecanoe Avenue and 1-10 (see attached map showing Phase 1 and Phase II).
The SBT agreement contains an exclusion that requires the City to construct street improvements
on Southwest comer of Tippecanoe and Laure1wood and allows for the relocation of the existing
In-N-Out Burgers (INO) store on Tippecanoe south of Laure1wood. The construction of the street
improvements and the relocation of the INO store solve current severe traffic congestion
problems in that location.
Traffic flow will be reconfigured through the realignment of Harriman Place, connecting its
existing eastern end to the intersection of Laurelwood Drive and Tippecanoe Avenue. In addition
to providing traffic circulation for the SBT project, this realignment provides required
improvements in traffic circulation for commercial uses in the adjacent Tri-City Corporate
Centre and anticipated traffic loads expected from development of San Bernardino International
Airport.
This project requires acquisition and demolition of one residential, two vacant, and two business
properties. One of these businesses is a home chi1dcare service run out of a residential unit. The
other is a mote11ocated on the southwest comer of Laurelwood and Tippecanoe. Relocation for
the residential occupants and the childcare business are provided under the relocation plan
adopted on July 23, 2001. Relocation benefits for the motel business will be negotiated directly
with the owner.
Numerous traffic circulation deficiencies exist under the current situation. Improvements to the
Laurelwood intersection require acquiring so much of the existing motel parking property that its
on-site parking will be reduce to inadequate levels, producing an uneconomic remnant. This
requires the acquisition and demolition of the motel and adjacent property, Resolving existing
and projected conflicts on Tippecanoe requires the acquisition and demolition of the existing
INO store. Acquisition of these properties does, however, create the opportunity for a new INO
store with expanded services.
GVO:JBH:lag:
COMMISSION MEETING AGENDA
Meeting Date: 09/0412001
Agenda Item Number: AAIP
Economic Development Agency Staff Report
Tippecanoe OPA (INO)
August 7, 2001
Page Number -2-
---------------------------------------------------------------------------------------------------------------------
CURRENT ISSUE
The attached Owner Participation Agreement provides that the Agency will assemble, clear and
sell 27,812 square feet of land to INO for the construction of the new location. The Agency will
acquire the property and convey ownership free of buildings and utilities. INO will pay
$139,060 for the property ($5.00 per square feet, consistent with the SBT DDA).
INO will build a new 3,200 square foot sit-down and drive-thru restaurant with self contained
parking. INO is to commence construction on or by Jan 1, 2003 and complete within 270 days.
INO will then relocate its operations and demolish its existing store. A remnant parcel will be
purchased by the Agency for $95,000 and conveyed to SBT under the terms of its DDA.
FISCAL IMPACT
The attached Section 33433 Summary Report, prepared by Keyser Marston Associates, sets forth
the cost of this Agreement to the Agency. The costs of Phase I are estimated at $3,493,900 as
follows:
Land ACQuisition Costs 774,450
Relocation 114,570
Asbestos and Demolition 164,000
SUB TOTAL $ 1,053,020
10% Contingencv 105,302
TOTAL $ 1,158,322
The Agency will receive $139,060 for the new site so that its net cost is $1,019262.
The 33433 Report concludes that the land price to be paid by INO is equal to its fair market
value at its highest and best use.
ENVIRONMENTAL CLEARANCE
This project was included in the certification of a Project Environment Impact Report (EIR) and
Traffic Impact Analysis on May 21,2001. On that same date a General Plan Amendment and a
Development Code Amendment were approved to allow drive-thru restaurants in a restricted
portion of the CR-21and use district under conditional use permit.
GVO:JBH:lag:
COMMISSION MEETING AGENDA
Meeting Date: 09/04/2001
Agenda Item Number: R.2.ftL.
Economic Development Agency Staff Report
Tippecanoe OPA (INO)
August 7, 2001
Page Number -3-
---------------------------------------------------------------------------------------------------------------------
RECOMMENDATION
affrecommends adoption ofthe attached Resolutions.
GVO:ffiH:lag:
COMMISSION MEETING AGENDA
Meeting Date: 09/04/2001
Agenda Item Number: /l.J.'
Economic Development Agency Staff Report
Tippecanoe OPA (INO)
August 7, 2001
Page Number -4-
---------------------------------------------------------------------------------------------------------------------
ATTACHMENT NO. 10 LEGAL DESCRIPTION OF THE CORNER PARCEL AND PLAT MAP
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GVO:ffiH:lag:
COMMISSION MEETING AGENDA
Meeting Date: 09/04/2001
Agenda Item Number: ~
Economic Development Agency Staff Report
Tippecanoe OPA (INO)
August 7, 2001
Page Number -5-
-----------------------------.---------------------------------------------------------------------------------------
ATTACHMENT NO. IF LEGAL DESCRIPTION OF IN.N-oUT BURGER SITE (EXISTING LOCATION) AND PLAT MAP
COlJRSF DATA"
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COMMISSION MEETING AGENDA
Meeting Date: 09/04/2001
Agenda Item Number:
J.:lIL
Economic Development Agency Staff Report
Tippecanoe OPA (INO)
August 7, 2001
Page Number -6-
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ATTACHMENT NO. 10 LEGAL DESCRIPTION OF LOT 25, PORTION OF 24 AND PLAT MAP,
REMNANT GOING TO DEVELOPMENT AFTER IN'N-oUT RELOCATION
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GVO:ffiH:lag:
COMMISSION MEETING AGENDA
Meeting Date: 09/04/2001
Agenda Item Number:
fl.",
1 RESOLUTION NO.
2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE
3 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
MAKING CERTAIN FINDINGS AND DETERMINATIONS PURSUANT TO
4 HEALTH AND SAFETY CODE SECTION 33433, MAKING OTHER FINDINGS
AND DETERMINATIONS IN ACCORDANCE WITH THE CALIFORNIA
5 ENVIRONMENTAL QUALITY ACT AND APPROVING THAT CERTAIN
OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE
6 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-
N-OUT BURGERS ON THE TERMS SET FORTH IN SUCH AGREEMENT
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WHEREAS, the City of San Bernardino (the "City"), the Redevelopment Agency ofthe City of
San Bernardino (the "Agency") and the Inland Valley Development Agency, a joint powers authority
established under Section 33492.4 et seQ. of the California Health and Safety Code (the "lVDA") have
entered into that certain Redevelopment Cooperation Agreement dated as of July 12 1999, pursuant to
which the IVDA has granted the Agency the right, power and authority to act for and on behalf of the
IVDA for the purposes of exercising the redevelopment powers of the IVDA; and
WHEREAS, an area of the City generally situated along the west side of Tippecanoe Avenue
to the north of the right-of-way of the Interstate 10 Freeway referred to as the "HUB Project Site" is
included within the Inland Valley Redevelopment Project Area (the "Project Area"); and
WHEREAS, the Agency has formerly initiated certain studies and proposals to address a number
of issues of community concern on the HUB Project Site relating to blight and conditions associated
with obsolete commercial design, deferred maintenance, traffic circulation and conflicting commercia1-
residential neighborhood property use and community design in an effort to eliminate and prevent the
spread of blight from the HUB Project Site; and
WHEREAS, in connection with redevelopment of the HUB Project Site, SBTPartners, LLC (the
"HUB Developer") submitted a proposal that was the subject of study and evaluation by the City and
the Agency; and
WHEREAS, the City prepared and certified a Final Environmental Impact Report for the HUB
Project (State Clearinghouse No. 2000081074) (the "Final EIR") in connection with the consideration
28 SB2001:24734,1
1
1 and approval of a Disposition and Development Agreement dated as of May 21, 2001 (the "HUB
2 Disposition and Development Agreement") by and between the Agency and the HUB Developer; and
3 WHEREAS, following ajointpub1ic hearing conducted by the Mayor and Common Council and
4 the Community Development Commission ofthe City of San Bernardino (the "Commission"), as the
5 governing board of the Agency, on May 21,2001, the HUB Disposition and Development Agreement
6 was approved; and
7 WHEREAS, the Agency owns or has a beneficial interest in certain real property located within
8 the HUB Project Site (the "Property"); and
9 WHEREAS, In-N-Out Burgers, a California corporation (''In-N-Out'') owns fee title to certain
10 real property located at 1944 South Tippecanoe A venue in the City of San Bernardino (the "Existing In-
11 N-Out Site"), on which In-N-Out currently operates a drive-thru restaurant; and
12 WHEREAS, the Agency desires to purchase a portion ofthe Existing In-N-Out Site from In-N-
13 Out and to transfer said portion to the HUB Developer; and
14 WHEREAS, 1n-N-Out desires to purchase the Property from the Agency in order to construct
15 a new restaurant on the Property; and
16 WHEREAS, the Agency desires to sell the Property to In-N-Out; and
17 WHEREAS, Agency Staff has prepared a draft of an Owner Participation Agreement (the
18 "Agreement") for the disposition ofthe Property to In-N-Out, together with a report which summarizes
19 the key terms of the Agreement and describes the manner in which the proposed disposition of the
20 Property to the In-N-Out will assist in the elimination of blight in the City (the "33433 Report") in
21 accordance with Health and Safety Code Section 33433; and
22 WHEREAS, it is appropriate for the Commission to take action with respect to the disposition
23 of the Property to In-N-Out and approve the Agreement as set forth in this Resolution.
24 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION ACTING ON
25 BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO DOES
26 HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
27
28 SB2001 :24734, 1
2
1 Section 1. On September 4, 2001, the Commission conducted a full and fair joint public
2 hearing with the Mayor and Common Council ofthe City of San Bernardino relating to the disposition
3 ofthe Property by the Agency to the In-N-Out pursuant to the terms and conditions of the Agreement.
4 The minutes of the Agency Secretary for the September 4, 2001, meeting of the Commission shall
5 include a record of all communication and testimony submitted to the Commission by interested persons
6 relating to the joint public hearing, the 33433 Report and the approval ofthe Agreement.
7 Section 2. A copy ofthe Agreement in the form submitted at the joint public hearing is on
8 file with the Agency Secretary. The Commission hereby finds and determines as follows:
9 (i) (i) the disposition of the Property by the Agency to 1n-N-Out in accordance with the
10 Agreement is consistent with the Inland Valley Development Agency Redevelopment Plan for the
11 Project Area and the Inland Valley Development Agency Implementation Plan; and
12 (ii) the terms and conditions of the Agreement contain assurances that the Property will be
13 redeveloped by In-N-Out as contemplated under the Redevelopment Plan for the Project Area;
14 (iii) the purchase price for the Property payable by In-N-Out to the Agency, subject to the
15 satisfaction of the terms and conditions of the Agreement, is an amount which the Commission
16 determines to be fair, just and reasonable, and the disposition of the Property on the terms set forth in
17 the Agreement shall materially benefit and sustain the implementation ofthe Redevelopment Plan for
18 the Project Area and assist the community to alleviate blighting conditions; and
19 (iv) the consideration payable by In-N-Out to the Agency for the disposition ofthe Property
20 ($139,060.00, in cash, determined by multiplying the square footage ofthe Property by $5.00 per gross
21 square foot) is not less than the fair market value of the Property at its highest and best use in accordance
22 with the Redevelopment Plan.
23 Section 3. The Commission hereby determines that the Final EIR and Facts, Findings and
24 Statement of Overriding Considerations Regarding the Environmental Effects from the Environmental
25 Impact Report for the HUB Project, certified and adopted, respectively, by the City, prior to the approval
26 ofthe HUB Disposition and Development Agreement are applicable to the consideration of and approval
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28 SB200\024734,!
3
1 by the Commission of the Agreement. The Commission further finds and determines that there are no
2 other significant environmental effects or any differences in the severity of environmental effects
3 associated with the implementation of the Agreement from those assessed in the Final EIR that would
4 require additional environmental review under Public Resources Code Section 21060 or Title 14
5 California code of Regulations Sections 15161 or 15163.
6 The Commission hereby authorizes and directs the Agency Secretary to file a Notice of
7 Determination with respect to the Commission's approval ofthe Agreement, in accordance with Public
8 Resources Code Section 21152 and Title 14 California Code of Regulations Sections 15096(i) and
9 15094, consistent with the approvals, findings and determinations set forth in this Resolution.
10 Section 4. The Commission hereby approves, receives and files the 33433 Report and the
11 Agreement in the forms as submitted at the joint public hearing.
12 Section 5. The Commission hereby approves the disposition ofthe Property to In-N-Out on
13 the terms set forth in the Agreement. The Chair of Commission and the Executive Director are hereby
14 authorized and directed to execute the Agreement on behalf of the Agency together with such technical
15 and conforming changes as may be recommended by the Executive Director and approved by the Chair
16 of the Commission. The signatures of the Chair of the Commission and the Executive Director on the
17 Agreement shall be conclusive evidence that the Agreement has taken effect. In the event that the
18 Agreement may not be fully executed by the parties for any reason within thirty (30) days following the
19 date of adoption ofthis Resolution, the authorization granted to the Chair of the Commission and the
20 Executive Director to execute the Agreement on behalf of the Agency shall be of no further force and
21 effect.
22 Section 6. Provided that the Agreement has been fully executed by the parties within the
21 period of time set forth in Section 5 of this Resolution, the Executive Director of the Agency is hereby
24 authorized and directed to take all actions set forth in the Agreement on behalf of the Agency to close
25 the escrow transaction described therein.
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28 SB2001 :24734, I 4
1
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
2 OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO, MAKING CERTAIN FINDINGS AND
3 DETERMINATIONS PURSUANT TO HEALTH AND SAFETY CODE SECTION 33433,
MAKING OTHER FINDINGS AND DETERMINATIONS IN ACCORDANCE WITH THE
4 CALIFORNIA ENVIRONMENTAL QUALITY ACT AND APPROVING THAT CERTAIN
OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT
5 AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT BURGERS ON THE
TERMS SET FORTH IN SUCH AGREEMENT
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This Resolution shall become effective immediately upon its adoption.
Section 7.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission ofthe City of San Bernardino at a
meeting thereof, held on the
day of
, 2001, by the following vote, to wit:
Commission
13 ESTRADA
LIEN
14 MCGINNIS
SCHNETZ
15 SUAREZ
ANDERSON
16 McCAMMACK
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18
AYES
NAYS ABSTAIN ABSENT
Secretary
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The foregoing Resolution is hereby approved this _ day of
,2001.
Judith Valles, Chairperson
Community Development Commission
of the City of San Bernardino
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By:
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28 SB200 I ,24734.1
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
2 CITY OF SAN BERNARDINO )
3 I, Secretary ofthe Community Development Commission
of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and attached copy of
4 Community Development Commission of the City of San Bernardino Resolution No. is a
full, true and correct copy of that now on file in this office.
5
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of
6 the Community Development Commission ofthe City of San Bernardino this day of
2001.
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Secretary of the
Community Development Commission
of the City of San Bernardino
28 SB2001:24734,j
6
1 RESOLUTION NO.
2 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO ACKNOWLEDGING RECEIPT OF A REPORT
3 RELATING TO THAT CERTAIN OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
4 SAN BERNARDINO AND IN-N-OUT BURGERS
5 WHEREAS, the City of San Bernardino (the "City"), the Redevelopment Agency of the City of
6 San Bernardino (the "Agency") and the Inland Valley Development Agency, ajoint powers authority
7 established under Section 33492.4 et seq. ofthe California Health and Safety Code (the "IVDA") have
8 entered into that certain Redevelopment Cooperation Agreement dated as of July 12 1999 (the
9 "Redevelopment Cooperation Agreement"), pursuant to which the IVDA has granted the Agency the
10 right, power and authority to act for and on behalf of the IVDA for the purposes of exercising the
11 redevelopment powers of the IVDA; and
12 WHEREAS, an area ofthe City generally situated along the west side of Tippecanoe Avenue
13 to the north of the right-of-way of the Interstate 10 Freeway referred to as the "HUB Project Site" is
14 included within the Inland Valley Redevelopment Project Area (the "Project Area"); and
15 WHEREAS, the Agency has formerly initiated certain studies and proposals to address a number
16 of issues of community concern on the HUB Project Site relating to blight and conditions associated
17 with obsolete commercial design, deferred maintenance, traffic circulation and conflicting commercial-
18 residential neighborhood property use and community design in an effort to eliminate and prevent the
19 spread of blight from the HUB Project Site; and
20 WHEREAS, in connection with redevelopment oftheHUB Project Site, SBTPartners, LLC (the
21 "HUB Developer") submitted a proposal that was the subj ect of study and evaluation by the City and
22 the Agency; and
23 WHEREAS, the City prepared and certified a Final Environmental Impact Report for the HUB
24 Project (State Clearinghouse No. 2000081074) (the "Final EIR") in connection with the consideration
25 and approval of a Disposition and Development Agreement dated as of May 21, 2001 (the "HUB
26 Disposition and Development Agreement") by and between the Agency and the Developer; and
27
28 SB2001:24092,1
1
1 WHEREAS, following ajoint public hearing conducted by the Mayor and Common Council and
2 the Community Development Commission of the City of San Bernardino (the "Commission"), as the
3 governing board of the Agency, on May 21, 2001, the HUB Disposition and Development Agreement
4 was approved; and
5 WHEREAS, the Agency owns or has a beneficial interest in certain real property located within
6 the HUB Project Site (the "Property"); and
7 WHEREAS, 1n-N-Out Burgers, a California corporation ("In-N-Out") owns fee title to certain
8 real property located at 1944 South Tippecanoe Avenue in the City of San Bernardino (the "Existing In-
9 N-Out Site"), on which In-N-Out currently operates a drive-thru restaurant; and
10 WHEREAS, the Agency desires to purchase a portion ofthe Existing 1n-N-Out Site from In-N-
Il Out and to transfer said portion to the HUB Developer; and
12 WHEREAS, In-N-Out desires to purchase the Property from the Agency in order to construct
13 a new restaurant on the Property; and
14 WHEREAS, the Agency desires to sell the Property to In-N-Out; and
15 WHEREAS, Agency Staff has prepared a draft of an Owner Participation Agreement (the
16 "Agreement") for the disposition ofthe Property to In-N-Out, together with a report which summarizes
17 the key terms of the Agreement and describes the manner in which the proposed disposition of the
18 Property to the In-N-Out will assist in the elimination of blight in the City (the "33433 Report") in
19 accordance with Health and Safety Code Section 33433; and
20 WHEREAS, it is appropriate for the Mayor and common Council to take action with respect to
21 the disposition of the Property to In-N-Out and the Agreement in accordance with Health and Safety
22 Code Section 33433(a)(1),.
23 NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE
24 MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS:
25 Section 1. On September 4, 2001, the Mayor and Common Council conducted a full and fair
26 joint public hearing with the Commission relating to the disposition ofthe Property by the Agency to
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28 SB2001:24092,1
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1 In-N-Out pursuant to the terms and conditions of the Agreement. The minutes ofthe City Clerk for the
2 September 4, 2001, meeting of the Mayor and Common Council shall include a record of all
3 communication and testimony submitted to the Mayor and Common Council by interested persons
4 relating to the joint public hearing, the 33433 Report and the approval ofthe Agreement.
5 Section 2. This Resolution is adopted in order to satisfy the provisions of Health and Safety
6 Code Section 33433 relating to the disposition and sale of the Property by the Agency to In-N-Out on
7 the terms and conditions set forth in the Agreement. A copy of the Agreement in the form submitted
8 at the joint public hearing is on file with the Agency Secretary. The Mayor and Common Council
9 hereby find and determine as follows:
10 (i) the disposition of the Property by the Agency to In-N-Out in accordance with the
11 Agreement is consistent with the Inland Valley Development Agency Redevelopment Plan for the
12 Project Area and the Inland Valley Development Agency Implementation Plan; and
13 (ii) the terms and conditions of the Agreement contain assurances that the Property will be
14 redeveloped by 1n-N-Out as contemplated under the Redevelopment Plan for the Project Area;
15 (iii) the purchase price for the Property payable by In-N-Out to the Agency, subject to the
16 satisfaction ofthe terms and conditions of the Agreement, is an amount which the Mayor and Common
17 Council determine to be fair, just and reasonable, and the disposition of the Property on the terms set
18 forth in the Agreement shall materially benefit and sustain the implementation of the Redevelopment
19 Plan for the Project Area and assist the community to alleviate blighting conditions; and
20 (iv) the consideration payable by In-N-Out to the Agency for the disposition ofthe Property
21 ($139,060.00, in cash, determined by multiplying the square footage of the Property by $5.00 per gross
22 square foot) is not less than the fair market value of the Property at its highest and best use in accordance
23 with the Redevelopment Plan for the Project Area.
24 Section 3. The Mayor and Common Council hereby determine that the Final EIR and Facts,
25 Findings and Statement of Overriding Considerations Regarding the Environmental Effects from the
26 Environmental Impact Report for the HUB Project, certified and adopted, respectively, by the City prior
27
28 SB200L24092,]
3
1 to the approval ofthe HUB Disposition and Development Agreement are applicable to the consideration
2 of and approval by the Mayor and Common Council of the Agreement. The Mayor and Common
3 Council further find and determine that there are no other significant environmental effects or any
4 differences in the severity of environmental effects associated with the implementation of the
5 Agreement from those assessed in the Final EIR that would require additional environmental review
6 under Public Resources Code Section 21060 or Title 14 California code of Regulations Sections 15161
7 or 15163.
8 Section 4. The Mayor and Common Council hereby approve, receive and file the 33433
9 Report and the Agreement in the forms as submitted at the joint public hearing.
10 Section 5. The Mayor and Common Council hereby approve the disposition ofthe Property
11 to 1n-N-Out on the terms set forth in the Agreement.
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1 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO ACKNOWLEDGING RECEIPT OF A REPORT
2 RELATING TO THAT CERTAIN OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
3 SAN BERNARDINO AND IN-N-OUT BURGERS, INC.
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Section 6.
This Resolution shall take effect upon the date of its adoption.
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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
,2001, by the following vote, to wit:
day of
Council:
12 ESTRADA
LIEN
13 MCGINNIS
SCHNETZ
14 SUAREZ
ANDERSON
15 McCAMMACK
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NAYS ABSTAIN ABSENT
AYES
City Clerk
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The foregoing resolution is hereby approved this _ day of
,2001.
Judith Valles, Mayor
City of San Bernardino
Approved as to form and legal content:
22 By: flAo..- 72,~
{lCity Attorney
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
2 CITY OF SAN BERNARDINO )
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I, City Clerk of the City of San Bernardino, DO HEREBY
4 CERTIFY that the foregoing and attached copy of Mayor and Common Council of the City of
San Bernardino Resolution No. is a full, true and correct copy of that now on file in this
5 office.
6 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of
the Mayor and Common Council of the City of San Bernardino this day of , 2001.
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City Clerk
City of San Bernardino
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28 SB2001 :24092, I 6
SUMMARY REPORT PURSUANT TO
SECTION 33433
OF THE
CALIFORNIA HEALTH AND SAFETY CODE
ONA
OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN THE
REDVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
IN-N-OUT BURGERS
The following Summary Report has been prepared pursuant to Section 33433 of the Califomia
Health and Safety Code (Code). The Report sets forth certain details of the proposed Owner
Participation Agreement (Agreement) between the Redevelopment Agenc.)' of the City of San
Bernardino (Agency) and IN-N-OUT BURGERS (Developer).
The Agreement provides for the development of a new sit-down, drive-thru restaurant (Project)
on a 27,812 square foot parcel, which the Agency shall convey to the Developer. While this is a
separate transaction, the Project is related to Phase I of a 268,600 square foot power center
development known as the HUB Development (HUB Phase 1 Development).
This Summary Report is based upon information contained within the Agreement, and is
organized into the following seven sections:
I. SALIENT POINTS OF THE AGREEMENT: This section includes a description of the
Project, and the major responsibilities imposed on the Developer and the Agency by the
Agreement.
II. COST OF THE AGREEMENT TO THE AGENCY: This section details the total and net
cost to the Agency associated with implementing the Agreement.
III. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED DETERMINED AT
THE HIGHEST USE PERMITTED UNDER THE SITE'S ZONING: This section
estimates the value of the interests to be conveyed determined at the highest use
permitted under the site's existing zoning.
01ll8013.SNIS:JAR:gbd
IV. ESTIMATED REUSE VALUE OF THE INTERESTS TO BE CONVEYED: This section
summarizes the valuation estimate for the site based on the required use, and given the
conditions and covenants imposed by the Agreement
V. CONSIDERATION RECEIVED AND COMPARISON WITH ESTABLISHED FAIR
REUSE VALUE: This section describes the compensation to be received by the
Agency, and explains any difference between the compensation to be received and the
established fair reuse value of the site.
VI. BLIGHT ELIMINATION: This section describes the existing blighting conditions on the
site, and explains how the Agreement will assist in alleviating the blighting influence.
VII. CONFORMANCE WITH THE AB1290 IMPLEMENTATION PLAN: This section
describes how the Agreement achieves goals identified in the Agency's adopted AB1290
Implementation Plan.
This Report and the Agreement are to be made available for public inspection prior to the
approval of the Agreement.
I. SALIENT POINTS OF THE AGREEMENT
The Agreement provides for the construction of a single new sit-down and drive-thru restaurant
on a 27,812 square foot site (Project Site) located in the Inland Valley Redevelopment Project
Area.
Although it is a separate transaction, the DDA requires the Agency to convey the Developer-
owned Existing Restaurant Site to the HUB Phase 1 Development The costs of acquiring,
demolishing and conveying the Existing Restaurant Site have been considered in Section 33433
Summary Report prepared for the HUB Phase 1 Development.
A. Project Description
The Developer intends to develop a new 3,200 square foot sit-down and drive through
restaurant on a 27,812 square foot parcel. The Project Site is located on the South West comer
of Laurelwood and Tippecanoe in the North Eastern portion of the Phase I HUB Development
Site, The Site is within the Inland Valley Redevelopment Project Area.
0101l013,SNB:JAR:gbd
B. Developer Responsibilities
The Agreement requires the Developer to complete the following activities:
1, The Developer shall purchase the 27,812 square foot Site from the Agency at purchase
price of $139,060.
2. The Developer shall commence construction of the new restaurant within 30 days of
closing or by 01/01/2003 whichever is later.
3. The Developer must substantially complete construction within 180 days from
commencement of construction.
4. The improvement of such lands shall be of a high quality design and site development
standard of comparable quality to the Phase 1 HUB Project.
C. Agency Responsibilities
The Agreement requires the Agency to complete the following activities:
1. The Agency shall exercise its best efforts to assemble the Project Site in cooperation
with the Inland Valley Development Agency (IVDA), if necessary.
2. The Agency shall convey fee ownership in the Project Site to the Developer, and deliver
the Agency Sale Parcel free of buildings and utilities,
II. COST OF THE AGREEMENT TO THE AGENCY:
The Agency costs to implement the Agreement includes the costs to acquire the Owner Sale
Parcel and Agency Sale Parcel, to site demolish the existing improvements, and remediate
hazardous materials. IVDA is not obligated to contribute to any cost of the Project.
The Agency costs of acquiring the Project Site are estimated to be as follows:
Land Acquisition
Relocation
Asbestos Remediation
Demolition
Sutotal
10% Contingency
TOTAL
774,450
114,570
76,000
88.000
$1,053,020
105,302
$1,158,322
0108013,SN8:JAR:gbd
The Agency costs will be offset by the Developer's land payment of $139,060. Thus, the net
Agency cost to implement the Agreement is $1,019,262.
Under tenns of the fonnation of the Project Area, the City of San Bemardino receives a portion
of the tax increment from the Inland valley Development Agency.1
III. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED DETERMINED AT
THE HIGHEST USE PERMITTED UNDER THE REDEVELOPMENT PLAN:
Section 33433 of the Califomia Health and Safety Code requires the Agency to identify the
value of the interests being conveyed at the highest and best use allowed by the Site's zoning.
The valuation must be based on the assumption that near-tenn development is required, but the
valuation does not take into consideration any extraordinary use and/or quality restrictions being
imposed on the development by the Agency.
In appraisal tenninology, the highest and best use can be defined as the legal use (Le., uses
allowed under the redevelopment plan) that will yield the highest value to the land. Therefore
the definition of highest and best use is based solely on the value created and not on whether or
not it enhances or carries out the redevelopment goals and policies established by the City of
San Bernardino Redevelopment Agency.
The Section 33433 Summary Report for The HUB Phase 1 Development indicated that the
highest and best use value for cleared land for the overall site was $5.00 per square foot of
land. As noted above, the Project Site is part of the larger HUB Phase 1 Development. As part
of the overall site, the highest and best use value for the Project Site is also estimated at $5.00
per square foot of cleared land.
IV. ESTIMATED REUSE VALUE OF THE INTERESTS TO BE CONVEYED:
The Agreement requires the Agency to provide a cleared site to the Developer at a land value of
$5.00 per square foot, which is consistent with the conveyance of land for the larger HUB
Project.
The reuse analyses prepared for the HUB Phase 1 Development concluded that the overall site
had a fair reuse value of $4.48 per square foot of land because the Developer of that project
1 The Inland Valley Redevelopment Agency and the Agency are currently having discussion regarding the
allocation of tax increment from the 25-Acre HUB Development. Therefore it is not feasible to estimate the
impact of the tax increment at this time. In any event it is expected to be marginal.
0108013'sN8:JAR:gbd
was responsible for demolition. Without demolition the fair reuse value of the larger site was
$5.00 per square foot of land. This same value is applicable to this parcel as part of the larger
HUB Phase 1 Development.
V. CONSIDERATION RECEIVED AND COMPARISON WITH ESTABLISHED FAIR
REUSE VALUE:
The Agreement requires the Developer to purchase the cleared Site for $139,060, or $5.00 per
square foot of land. As discussed above, the Project Site has a highest and best use value, or
fair market value, of $5.00 per square foot. Under the Agreement, the Project Site is being
conveyed for fair market value. This amount is consistent with the fair reuse value.
VI. BLIGHT ELIMINATION:
Dilapidated residential units currently occupy the proposed Site, which will be developed as a
new sit-down, drive-thru restaurant. Furthennore, development of this Project Site enables the
25-acre HUB Development project to proceed. Development of the proposed commercial uses
on this Site would eliminate blight at this location by removing dilapidated housing units and
replacing underutilized land with a new commercial development.
VII. CONFORMANCE WITH THE AB1290 IMPLEMENTATION PLAN:
The primary AB1290 Implementation Plan program objective for the Inland Valley Project Area
is to eliminate conditions, which negatively impact economic development of the community by
acquiring, removing and rehabilitating properties designated as deficient, deteriorated or
dilapidated. To that end, the Agency plans to convey to the Developer a 27,812 square foot site
for commercial development.
This Project will enable the development of an additional 25 acres of commercial development
within the project area, and will subsequently generate sales and property tax revenues within
the Project Area. This confonns to the goals specifically defined in the Implementation Plan.
0108013,SNB:JAR:gbd
OWNER P ARTICIP ATION AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
IN-N-OUT BURGERS,
A CALIFORNIA CORPORATION
SB200t:20830.2
OWNER P ARTICIP ATION AGREEMENT
(In-N-Out Burgers)
This Owner Participation Agreement ("Agreement") is entered into as of August
----' 2001, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body corporate and politic (the "AgenlQ'''), and IN-N-OUT BURGERS,
a California corporation (the "Owner"). The Agency and the Owner hereby agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1,1 PUI:pose of Agreement.
(a) The purpose of this Agreement is to effectuate the
Redevelopment Plan (the "Redevelopment Plan") for the Inland Valley Project Area
(the "Proiect Area") of the Inland Valley Development Agency, a Joint powers authority
established under Sections 33492.4 ~. of the California Health and Safety Code (the "IYIM"),
by providing for the development of a new, approximately 3,300 square foot sit-down and drive-
thru restaurant (the "New Restaurant") on certain real property located in the City of
San Bernardino, County of San Bernardino, State of California, as more particularly described in
Exhibit "A" attached hereto and as more particularly shown on Exhibit "A-I" attached hereto (the
"Development Site"), Pursuant to that certain Redevelopment Study Agreement dated as of
July 1, 1999, by and among the IVDA, the Agency and the City, the Agency has the delegated
authority to carry out the Redevelopment Plan for a portion of the Project Area, which includes
the Development Site, A copy of the Redevelopment Study Agreement is on file with the
Secretary of the Agency.
(b) The redevelopment of the Development Site pursuant to this Agreement
is in the vital and best interests of the City and the health, safety and welfare of its residents, and
is in accord with the public purposes and provisions of applicable state and local laws.
1,2 Owner Sale Parcel. The Owner currently owns fee title to certain real property
located at 1944 South Tippecanoe Avenue in the City and also known as Assessor Parcel
No. 0281-082-56, as more particularly described in Exhibit "B" attached hereto and more
particularly shown on Exhibit "B-1" attached hereto (the "Existini Owner Site"), on which the
Owner currently operates a drive-thru restaurant (the "Existing Restaurant"). The Agency desires
to purchase a portion of the Existing Owner Site, as more particularly described in Exhibit "C"
attached hereto and more particularly shown on Exhibit "C-l" attached hereto (the "Owner Sale
~") on the terms set forth herein. The Agency thereafter intends to transfer the Owner Sale
Parcel to the HUB Developer (as defined in Article 2, below), at which time the Owner Sale Parcel
shall become part of the Phase 1 HUB Site (as defined in Article Z, below) and will be developed
by the HUB Developer as part of the HUB Project (as defined in Article 2, below).
SB200t:20830,2
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1,3 Asencv Sale Parcel. The Development Site consists of (a) the Existing Owner Site,
except for the Owner Sale Parcel, and (b) certain real property described in Exlubit "0" attached
hereto and more particularly shown on Exhibit "D-l" attached hereto (the "Aien<;y Sale Parcel"),
The Owner desires to purchase the Agency Sale Parcel from the Agency in order to construct the
New Restaurant on the terms set forth herein.
1.4 The Parties to this A~eement.
(a) The Agency is a public body, corporate and politic, /////governed by the
Community Development Commission of the City of San Bernardino (the "Commission")/////,
organized, existing and exercising governmental functions and powers, under Chapter 2 of the
Community Redevelopment Law of the State of California (Health and Safety Code Section 33020
~,) The principal office of the Agency is located at 201 North "E" Street, Suite 301, San
Bernardino, California 92401,
(b) The Owner is a California corporation in good standing with the Secretary
ofSta1e of the State of California, The principal office and mailing address of the Owner for the
purposes of this Agreement is:
In-N-Out Burgers
Real Estate Department
13502 Hamburger Lane
Baldwin Park, California 91706-5885
Attention: Real Estate Finance Manager
(c) The City of San Bernardino is not a party to this Agreement.
(d) The Inland Valley Development Agency is not a party to this Agreement,
1 ,5 Restrictions A Vinot AssiiJUllent of this A~eement, The particular qualifications
and identity of the Owner are of particular concern to the Agency. It is because of those
qualifications and identity that the Agency entered into this Agreement with the Owner. Prior to
the issuance of the Certificate of Completion in accordance with Section 4 4. below, no voluntary
or involuntary successor in interest of the Owner may acquire any rights or powers under this
Agreement, except as expressly set forth in Section~, below.
1 ,6 I Algal Descriptions. For all purposes of this Agreement and notwithstanding any
general descriptions ofland contained in this Agreement, the legal descriptions ofland attached
as Exlubits to this Agreement are intended to be consistent with the legal description of the Phase
I HUB Site as attached to the agreement by and between the Agency and the HUB Developer (the
"HUB DDA" as defined below). To the extent of any inconsistency between the legal description
attached to this Agreement and such legal description attached to the HUB DDA, the Owner and
the Agency shall resolve such inconsistency in the manner set forth in Section 333,
SB200t:20830,2
2
ARTICLE 2
DEFINED TERMS
In addition to the terms defined elsewhere in this Agreement, the following defined terms
shall apply throughout this Agreement:
"Asency" shall have the meaning set forth in the introductory paragraph of this
Agreement,
"Aiency Closinil Statement" shall have the meaning set forth in Section 3 12( d),
below.
"Agency Default" shall have the meaning set forth in Section Q.2W, below,
"Agency Demolition Work" shall have the meaning set forth in Section 3.30, below,
"Agency DlWosit" shall have the meaning set forth in Section 3,9, below,
"Ailency Due Diligence Documents" shall have the meanings set forth in
Section 3, 15(ll), below,
"Agency Due Diligence Period" shall have the meaning set forth in Section 3 16(b ),
below,
"Agency Grant Deed" shall have the meaning set forth in Section 3 12(a), below.
"Agency Parties" means, collectively, the Agency and its elected and appointed
officials and officers, attorneys, employees, agents, contractors, subcontractors, success and
assigns.
"Agency Purchase Price" shall have the meaning set forth in Section II below,
"Agency Sale Parcel" shall have the meaning set forth in Section U, above.
"Agency Sale Pro'perty" shall have the meaning set forth in Section l]" below.
"All'ency Sale Property AI.. T A Policy" shall have the meaning set forth in
Section 3 19(b), below,
"Allency Sale Pro,perty CL T A Policy" shall have the meaning set forth in
Section 3 19(b) below,
" Agency Sale PrQperty Survey" shall have the meaning set forth in Section 3 21 (a),
below.
SB2001:20830,2
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"Aiency Sale Pro'perty Title Documents" shall have the meaning set forth in
Section 3 19(1\}, below.
"Ailency Sale Pro.perty Title Rl:Port" shall have the meaning set forth in
Section 3 19(a). below.
"Agency's Conditions" shall have the meaning set forth in Section 3 24, below.
"Bankruptqy/Disso1ution Event" shall mean, with respect to any Person, the
commencement or occurrence of any of the following with respect to such Person: (i) a case
under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or other similar law; (ii) the appointment of (or
proceeding to appoint) a trustee or receiver of any property interests; (iii) an attachment,
execution or other judicial seizure of (or a proceeding to attach, execute or seize) a substantial
property interest; (iv) an assignment for the benefit of creditors; (v) the taking of, failure to take,
or submission to any action indicating (after reasonable investigation) an inability to meet its
financial obligations as they accrue; or (vi) a dissolution or liquidation; provided, however, that
the events described in clauses (i), (ii) or (iii) shall not be included if the same are (A) involuntary
and not at any time consented to, (B) contested within thirty (30) days of commencement and
thereafter diligently and continuously contested and (C) dismissed or set aside, as the case may
be, within ninety (90) days of commencement.
"Cancellation Costs" shall have the meaning set forth in Section 3 10(11). below,
"Certificate of CO/IlPletion" shall mean the certificate of completion to be issued
by the Agency pursuant to Section ~, below, in the form attached hereto as Exhibit "I" ,
"Certificate of Subdivision CO/IlPliance" shall have the meaning set forth in Section
~, below.
"~" shall mean the City of San Bernardino, 1IIIIa municipal corporation/IIII.
"Closing" shall have the meaning set forth in Section 3,11(1\}. below,
"Closing Date" shall mean the date scheduled for the close of Escrow, as specified
in Section 3 l1(a), below.
"Cmk" means the Internal Revenue Code,
"Construction Loans" shall mean the loan or loans or other construction financing,
if any, obtained by the Owner to finance the purchase of the Agency Sale Property and/or
construction of any or all of the Improvements.
"County" shall mean the County of San Bernardino, State of California.
"Cure Period" shall have the meaning set forth in Section Q.2(bl, below,
SB2001:20830,2
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"Deve10Jlment" shall mean the development of the Property with the
Improvements.
"DevelQJ)rnent Code" shall mean the City of San Bernardino Development Code,
as the same may be amended, restated and/or renumbered from time to time.
"Deve10Jlment Site" shall have the meaning set forth in Section .L.1W, above.
''Environmenta1ln1pact Rt:port" shall mean that certain Final Environmental Impact
Report (State Clearinghouse No. 200081074) dated AprilS, 2001 and prepared by the Agency
with respect to the Development and the development of the HUB Project,
"Environmental Laws" shall mean all Laws regulating, relating to, or imposing
liability of standards of conduct concerning any Hazardous Substance or pertaining to
occupational health or industrial hygiene (and only to the extent that the occupational health or
industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or
about the Agency Sale Parcel or the Owner Sale Parcel, as applicable), occupational or
environmental conditions on, under, or about the Agency Sale Parcel or the Owner Sale Parcel,
as applicable, as now or may at any later time be in effect, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA")
[42 USC Section 9601 et seq,]; the Resource Conservation and Recovery Act of 1976 ("RCRA")
[42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution
Control Act ("FWPCA") [33 USC Section 1251 et eq.]; the Toxic Substances Control Act
("TSCA") [15 USC Section 2601 et seq,]; the Hazardous Materials Transportation Act ("JIMT A")
[49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901
et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC
Section 300fet seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface
Mining Control and Reclamation Act [30 USC Section 101 et seq,] the Emergency Planning and
Conununity Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and
Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous
Substances Act [II & S C Section 25288 et seq.]; the California Hazardous Substances Account
Act [II & S C Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement
Act [II & S C Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [Water Code
Section 13000 et seq.] together with any amendments of or regulations promulgated under the
statutes cited above and any other Law now in effect or later enacted that pertains to occupational
health or industrial hygiene, and only to the extent such occupational health or industrial hygiene
Laws relate to Hazardous Substances on, under, or about the Agency Sale Parcel or the Owner
Sale Parcel, as applicable, or the regulation or protection of the environment, including ambient
air, soil, soil vapor, groundwater, surface water, or land use.
"Escrow" shall have the meaning set forth in Section 12., below,
"Escrow Holder" shall mean the escrow department of First American Title
Company or another escrow company mutually agreed upon by the Agency and the Owner.
S81ool:20830,2
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below.
"Existin~ A&en<;y Improvements" shaI1 have the meaning set forth in Section UQ,
"Existin~ Owner Site" shall have the meaning set forth in Section 1.2, below.
"Existini Restaurant" shall have the meaning set forth in Section 1.2, below.
"General Plan" shall mean the City of San Bernardino General Plan, as the same
mStv hp. RmPnrfPrf rpd~t".n ~n"'/nr r,:llnllft1h~rAl'f ~""'" +1ft'1Q +", ...;.........
......-J ....- --'."-..---, .-.............-..... ...........,..... ...............v.....&......... J.!V"'!" ".........'" "V "ll"l~.
"General P1anlDeve10pment Code Amendments" shall have the meaning set forth
in Section 35, below.
"Harriman Construction Aireement" means that certain
Agreement dated as of I////May 21, 2001////1, by and between the City and the Agency, regarding
the financing, design and construction of the Harriman Place Improvement Project,
"Harriman Place Extension" means the planned extension of Harriman Place as
shown onlllllExhibit "E-1"I//11.
"Harriman Place Improvement Proiect" means the public street improvement
project to be undertaken by the Agency (and administered by the City) for the construction and
installation of the Harriman Place Extension concurrently with the HUB Owner's development of
Phase 1A of the HUB Project, The Harriman Place Improvement Project is discussed in
Section 1.2, below, and in Exhibit "L" attached hereto,
"Hazardous Substances" shall mean:
(a) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 US.C, Section 9601(14)) or Section 25281(d) or 25316 of the California
Health and Safety Code;
(b) any "hazardous waste", "infectious waste" or "hazardous material"
as defined in Section 25117, 25117.5 or 25501(j) of the California Health and Safety
Code;
( c) any other waste, substance or material designated or regulated in
any way as "toxic" or "hazardous" in the RCRA (42 US,C. Section 6901 et seq.),
CERCLA Federal Water Pollution Control Act (33 U.S.C, Section 1521 et seq.), Safe
Drinking Water Act (42 U.S.C. Section 3000 (f) et seq.), Toxic Substances Control Act
(15 U,S.C. Section 2601 et seq.), Clean Air Act (42 US.C. Section 7401 et seq.),
California Health and Safety Code (Section 25100 et seq., Section 3900 et seq,), or
California Water Code (Section 1300 et seq,); and
(d) any additional wastes, substances or material which at such time are
classified, considered or regulated as hazardous or toxic under any other present or future
SB2001:20830,2
6
environmental or other similar Laws, including without limitation asbestos; provided,
however, that Hazardous Substances shall not include any materials CODUDOnly used in the
construction and operation of office, residential and retail buildings and restaurants when
used in the ordinary and usual manner.
"HUB Aireement" shall have the meaning set forth in Section Ul, below.
"lRJB DDA" means that certain Disposition and Development Agreement dated
as of ///IIMay 21,2001/////, by and between the HUB Developer and the Agency, pursuant to
which, among other things, the HUB Developer will carry out Phase 1A of the HUB Project and
the Agency will carry out the Harriman Place Improvement Project,
"HUB Deve10.PCf" means SBT Partners, lLC, a California limited liability company
and its pennitted successors and assigns.
"HUB Project" means the contemplated development of approximately 268,600
square feet of cODUDercial space to be located on approximately 24.5 acres of land at the
northwest comer of Tippecanoe Avenue and the San Bernardino Freeway (1-10). Phase lA of the
HUB Project will be located adjacent to the Development Site on the Phase 1A HUB Site.
"Improvements" shall mean the improvements to be constructed by the Owner on
the Development Site pursuant to this Agreement, including the New Restaurant and related
landscaping and improvements.
"IYDA" shall have the meaning set forth in Section 1J..(a), above.
"Land Use Approvals" shall have the meaning set forth in Section U!l), below,
"~" shall mean, collectively, all procedural and substantive federal, state and
local laws, ordinances, rules, regulations, standards, orders, directives and other governmental
requirements applicable to all or any portion of the Property or the Improvements, including the
ownership, development, construction, use, operation, maintenance, sale, lease or encumbrance
thereof
'~" means all loss, costs and expenses arising out of all claims, demands, losses,
damages, liens, liabilities, injuries, deaths, penalties, relocation or disruption of use, fines,
administrative and judicial proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind and awards, including reasonable attorneys' fees and court costs,
"Memorandum ofOP A" shall have the meaning set forth in Section 3,12(1)) below.
"New Restaurant" shall have the meaning set forth in Section .L.lW, above.
"New R_~I1",nt CUP" shall have the meaning set forth in Section U!l), below.
"New Restaurant Fees" shall have the meaning set forth in Section DID, below,
SB2001:20830,2
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"Non-Foreign Tax Status Certificate" shall have the meaning set forth in
Section 3 12(<;). below.
"Notice of Default" shall have the meaning set forth in Section Q..W:U, below.
"Official Records" shall mean the Official Records of San Bernardino County,
California,
"Owner" shall mean In- N-Out Burgers, a California corporation, and its successors
and assigns as permitted by this Agreement.
"Owner Closing Statement" shall have the meaning set forth in Section 3 13(d),
below,
"Owner Default" shall have the meaning set forth in Section Q.JW, below,
"Owner DE:Posit" shall have the meaning set forth in Section 1.2, below.
"Owner Due Diligence Documents" shall have the meaning set forth In
Section 3 16(a), below.
"Owner Due Diligence Period" shall have the meaning set forth in Section 3 15(l~),
below,
"Owner Grant Deed" shall have the meaning set forth in Section 3 13(a), below,
"Owner License" shall have the meaning set forth in Section 1.2, below.
"Owner Parties" means, collectively, the Owner and its directors, officers,
shareholders, attorneys, employees, partners, members, agents, contractors, subcontractors,
affiliates, mortgagees, trustees, heirs, devisees, successors and assigns.
"Owner Sale Parcel" shall have the meaning set forth in Section U, above,
"Owner Sale Pro'perty" shall have the meaning set forth in Section ll, below.
"Owner Sale Property ALTA Policy" shall have the meaning set forth in
Section 3,200>), below,
"Owner Sale Prqperty CLTA Policy" shall have the meaning set forth In
Section 3 200>), below.
"Owner Sale Pro.perty Survl:Y" shall have the meaning set forth in Section 3 210>),
below,
"Owner's Conditions" shall have the meaning set forth in Section 1.22, below.
SB2001:20830.2
8
"Owner Purchase Price" shall have the meaning set forth in Section 3.4. below,
"Parties" shall mean, collectively, the Agency and the Owner.
"Person" shall mean any individual, trustee, corporation, limited liability company,
limited liabiJity partnership, partnership, trust, unincorporated organization, governmental agency
or other person or entity.
"Phase 1A HUB Site" means the land described in Exhibit "E " attached hereto and
more particularly shown on Exhibit "E-I" attached hereto, on which the HUB Developer intends
to construct Phase 1A of the HUB Project pursuant to the HUB DDA
"Phase 1A ofthe HUB Proiect" means the redevelopment project activities to be
undertaken by the HUB Developer under the HUB DDA on the Phase 1A HUB Site, which may
include the development of commercial buildings with approximately 198,600 square feet of gross
interior area, as shown on II II /Exhibit "E-1 "I I I II attached hereto.
"Proiect Area" shall have the meaning set forth in Section Ll.(a,)., above.
"PuncWist Items" shall have the meaning set forth in Section 4 4(a), below,
"Redevelopment Plan" shall have the meaning set forth in Section Ll.(a,)., above.
"Schedule of Performance" shall mean the schedule of performance pursuant to
which the Parties shall perform certain activities under this Agreement. The Schedule of
Performance is attached hereto as Exhibit "J".
"Scope ofDeve10.pment" shall have the meaning set forth in Section 1...lW, below,
"Security Financini Instrument" shall mean a mortgage, deed of trust or other
reasonable means of securing a Construction Loan for (i) the acquisition of the Agency Sale
Property and the development and construction of the Improvements,
"Title Com.pany" shall mean First American Title Insurance Company or another
title company mutually agreed upon by the Agency and the Owner.
"1099 Form" shall have the meaning set forth in Section 3 12(1), below.
ARTICLE 3
PURCHASE AND SALE TRANSACTIONS
3,1 Aiency Purchase of Owner Sale Property. In accordance with and subject to the
tenus and conditions of this Agreement, the Agency agrees to purchase from the Owner, and the
Owner agrees to sell to the Agency, the Owner Sale Parcel, together with all of the Owner's right,
882001 :20830,2
9
title and interest in and to any and all hereditaments, appurtenances, rights, privileges,
development rights and easements thereto, including without limitation the Owner's right, title and
interest in and to all streets, alleys and rights-of-way in, on, across, in front of, abutting or
adjoining each such real property and all water rights and mineral rights (collectively, the "Owner
Sale Property").
3.2 Purchase Price for Owner Sale Pro.perty. The purchase price for the Owner Sale
Property (the" ABency Purchase Price") shall be /IIIMmety-Five Thousand Four Hundred Forty
and NoIlOOths Dollars ($95,440.00)//111, which purchase price was determined by multiplying
(a) the square footage of the Owner Sale Parcel 1/11/(9,088 square feet)/IIII by (Ten Dollars and
Fifty Cents ($10.50) per gross square foot. The Agency Purchase Price shall be subject to
adjustment (either increase or decrease) based upon the final confirmed area of the Owner Sale
Property as provided in Section 3 27{1> ).
3.3 Owner Purchase of Au:ency Sale Property, In accordance with and subject to the
tenns and conditions of this Agreement, the Owner agrees to purchase from the Agency, and the
Agency agrees to sell to the Owner, the Agency Sale Parcel, together with all of the Agency's
right, title and interest in and to any and all hereditaments, appurtenances, rights, privileges,
development rights and easements thereto, including without limitation the Owner's right, title and
interest in and to all streets, alleys and rights-of-way in, on, across, in front of, abutting or
adjoining each such real property and all water rights and mineral rights (collectively, the "Agency
Sale Property").
3.4 Purchase Price for Aiency Sale Property. The purchase price for the Agency Sale
Property (the "Owner Purchase Price") shall be One Hundred Thirty-Nine Thousand Sixty and
NoI100ths Dollars ($139,060.00), which purchase price was determined by multiplying (a) the
square footage of the Agency Sale Parcel (27,812 square feet) by (b) Five and Noll OOths Dollars
($5.00) per gross square foot.
3.5 Qpenin~ and Closin~ of Escrow. (a) Within twenty (20) business days following
the full execution of this Agreement, the Agency and the Owner shall open an escrow (the
"Escrow") with Escrow Holder by delivering to Escrow Holder a fully-executed original of this
Agreement. The purchase and sale of the Agency Sale Property and the Owner Sale Property shall
be completed through the Escrow. The Agency and the Owner hereby agree to execute such
additional escrow instructions not inconsistent with this Agreement as may be reasonably required
by Escrow Holder. In the event of any inconsistency between the provisions of this Agreement
and any such additional escrow instructions, the provisions of this Agreement shall control.
3.6 Payment by Owner at Clos~. On or before the Closing Date, the Owner shall
deposit into the Escrow in the form of cash, a certified or bank cashier's check, or a confirmed
wire transfer offunds, in an amount equal to the sum of (a) the Owner Purchase Price l&n (i) the
Agency Purchase Price and (ii) the net amount, ifany, due to the Owner following,the proration
and adjustments under Section ~, below, IllY1 (b) an additional amount sufficient to cover the
costs payable by the Owner with respect to the transactions contemplated by this Agreement
pursuant to Section 1.22, below.
SB2oo1:20830,2
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3.7 General Plan and Development Code Amendments. The General Plan and the
Development Code have been amended by separate action of the City to conditionally permit the
operation of a drive-thru restaurant on the Development Site subject to the submission by the
Owner to the City of the appropriate form of completed applications for Land Use Approvals, and
thereafter the diligent processing of such completed applications by the Owner as set forth in
Section ll.
3.8 Land Use Approvals.
(a) It shall be the responsibility of the Owner to apply for and obtain all
discretionary and ministerial land use, zoning and other permits, approvals, licenses and
entitlements (collectively, the "Land Use Approvals") required for the Development. The Land
Use Approvals will include (i) the City's approval of a conditional use permit for the operation of
the New Restaurant (the "New Restaurant CUP"), (ii) the City's approval of a certificate of
subdivision compliance for the Development Site, (iii) the City's issuance of grading and building
pennits for the construction of the New Restaurant and related site work and improvements, and
(iv)
(b) The Agency shall render all reasonable assistance to the Owner in obtaining
all necessary Land Use Approvals. Without limiting the generality of the foregoing, the Agency
shall execute (i) any and all applications or other documents required by the City in order for the
Owner to complete the application for any Land Use Approval and/or (ii) documentation
authorizing the Owner to sign all applications and other documents required by the City with
respect to the Land Use Approvals on the Agency's behalf.
(c) The Owner shall submit applications to the City for Land Use Approvals
and the New Restaurant CUP and the Certificate of Subdivision compliance for the Development
Site by no later than December 31,2001.
3,9 Dt:posits, Upon the opening of the Escrow, (a) the Agency shall deposit into the
Escrow, in the form of cash, a certified or bank cashier's check or a confirmed wire transfer of
funds, the sum of and No/lOOths Dollars ($ )
(the "A~en<;y Deposit") toward the purchase of the Owner Sale Property, and (b) the Owner shall
deposit into the Escrow, in the form of cash, a certified or bank cashier's check or a confirmed
wire transfer of funds, the sum of and Noll OOtbs Dollars
($ ) (the "Owner Dt:posit") toward the purchase of the Agency Sale Property. Escrow
Holder shall promptly place the Agency Deposit into an interest-bearing account designated by
the Agency with the interest thereon accruing to the benefit of the Agency and place the Owner
Deposit into a separate interest-bearing account designated by the Owner with the interest thereon
accruing to the benefit of the Owner, At the Closing, the Agency Deposit shall be applied to the
Agency Purchase Price and the Owner Deposit shall be applied to the Owner Purchase Price,
3.10 Cancellation of Escrow and Termination of Aweement.
(a) In the event that the Closing does not occur at the time and in the manner
provided in this Agreement due to an Owner Defiwlt, the Agency shall have the right to cancel the
8B2oo1:20830,2
11
Escrow by written notice to the Owner and Escrow Holder, and upon such cancellation (i) Escrow
Holder shall refund the Agency Deposit, together with all interest earned thereon, to the Agency
within three (3) business days following such cancellation and (ii) all costs of cancellation of the
Escrow, including without limitation the cost of the Agency Sale Property Title Report and the
Owner Sale Property Title Report (collectively, the "Cancellation Costs"), shall be paid by the
Owner. In the event of such cancellation of the Escrow following an Owner Default, the
provisions of Section ~ below, shall apply and all other rights and obligations of the Owner and
the Agency under this Agreement shall terminate (except as and to the extent expressly set forth
in this Agreement).
(b) In the event that the Closing does not occur at the time and in the manner
provided in this Agreement due to an Agency Default, the Owner shall have the right to cancel the
Escrow by written notice to the Agency and Escrow Holder, and upon such cancellation
(i) Escrow Holder shall refund the Owner Deposit, together with all interest earned thereon, to
the Owner within three (3) business days following such cancellation and (ii) the Cancellation
Costs shall be paid by the Agency. In the event of such cancellation of the Escrow following an
Agency Default, the provisions of Section 327, below, shall apply and all other rights and
obligations of the Owner and the Agency under this Agreement shall terminate (except as and to
the extent expressly set forth in this Agreement).
(c) In the event that the Closing does not occur at the time and in the manner
provided in this Agreement for any reason other than an Owner Default or an Agency Default,
either the Owner or the Agency may, at any time after the Closing Date, cancel the Escrow by
written notice to Escrow Holder and to the other, and upon such cancellation (i) the Cancellation
Costs shall be divided equally between the Owner and the Agency, (ii) Escrow Holder shall refund
the Agency Deposit, together with all interest earned thereon, to the Agency within three (3)
business days following such cancellation, (ill) Escrow Holder shall refund the Owner Deposit,
together with all interest earned thereon, to the Owner within three (3) business days following
such cancellation, and (iv) all other rights and obligations of the Owner and the Agency under this
Agreement shall terminate (except as and to the extent expressly set forth in this Agreement).
(d) Upon any cancellation of the Escrow and resulting tennination of this
Agreement, all instruments and documents deposited into the Escrow shall be returned to the
parties who deposited the same.
3.11 Closing Date.
(a) The Agency Grant Deed shall be recorded (the "Closinll") as soon as
possible after the satisfaction of all of the Agency's Conditions and the Owner's Conditions, but
in no event later than December 31, 2002 (the "C10sinll Date"), as set forth in the Schedule of
Performance, subject to the extension of the Closing Date pursuant to Section ~ or J..22.,
below.
(b) The Owner Grant Deed shall be recorded at the Closing as soon as possible
after the satisfaction of all of the Agency's Conditions and the Owner's Conditions, but in no event
SB2ool:20830,2
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later than the Closing Date, subject to the extension of the Closing Date pursuant to Section 2..21
or 1.22, below,
(c) Time is specifically of the essence as to the Closing Date and the Closing
Date shall not be extended except as provided herein or by the mutual written agreement of the
Agency and the Owner.
3.12 The A&ency's C10sini Documents. The Agency shall deliver to Escrow Holder,
on or before 12:00 noon on the business day preceding the Closing Date, the following
documents:
(a) an original grant deed to the Agency Sale Property, in the form attached
hereto as Exlnbit "F", duly executed and acknowledged by the Agency and in recordable form (the
"Agen<;y Grant Deed");
(b) an original counterpart ofa memorandum ofOPA, in the form attached
hereto as Exhibit "H", duly executed by the Agency and in recordable form, which evidences this
Agreement (the "Memorandum ofOPA");
( c) an original certificate of non-foreign tax status, duly executed by the
Agency, which satisfies the requirements of Section 1445 of the Code and Sections 18805 and
26131 of the California Revenue and Taxation Code (a "Non-Foreilln Tax Status Certificate");
(d) an original closing statement for the Agency prepared by Escrow Holder,
duly executed by the Agency (the" Agency C10sinll Statement");
(e) evidence of (i) the existence, organization and authority of the Agency to
enter into this Agreement and any other documents or agreements executed or to be executed by
Agency pursuant hereto, and to perform the obligations of the Agency hereunder and thereunder,
and (ii) the authority of the Persons executing this Agreement and such other documents on behalf
of the Agency to do so, in form and substance reasonably satisfactory to Escrow Holder and the
Title Company;
(t) a 1099 form in compliance with the Tax Reform Act of 1986 under Code
Sections 6045(e), 6722, 6723 and 7203 (a "1099 Form"); and
(g) such other instruments and documents that may be required by Escrow
Holder to transfer the Agency Sale Property to the Owner or by the Title Company for the
issuance of the Agency Sale Property CLTA Policy or the Agency Sale Property ALTA Policy
with respect to the Agency Sale Property.
3.13 Owner's Closing Documents. The Owner shall deliver to Escrow Holder, on or
before 12:00 noon on the business day preceding the Closing Date, the following documents:
8B2oo1:20830,2
13
(a) an original grant deed to the Owner Sale Property, in the form attached
hereto as Exlnbit "G". duly executed and acknowledged by the Owner and in recordable form (the
"Owner C:rrant Deed");
(b) an original counterpart of the Memorandum ofOPA, duly executed and
acknowledged by the Owner and in recordable form;
(c) an original Non-Foreign Tax Status Certificate;
(d) an original closing statement for the Owner prepared by Escrow Holder,
duly executed by the Owner (the "Owner Closing Statement");
( e) evidence of (i) the existence, organization and authority of the Owner to
enter into this Agreement and any other documents or agreements executed or to be executed by
Owner pursuant hereto, and to perform the obligations of the Owner hereunder and thereunder,
and (ii) the authority of the Persons executing this Agreement and such other documents on behalf
of the Owner to do so, in form and substance reasonably satisfactory to Escrow Holder and the
Title Company;
(f) a 1099 Form;
(g) the HUB Agreement executed in recordable form by the Owner;
(h) such other instruments and documents that may be required by Escrow
Holder to transfer the Owner Sale Property to the Agency or by the Title Company for the
issuance of the Owner Sale Property CLT A Policy or the Owner Sale Property AL T A Policy with
respect to the Owner Sale Property.
3,14 Actions at Closin~, At the Closing, Escrow Holder shall do the following:
(a) Prorate all matters in accordance with Section 1.22, below, based on the
latest available information.
(b) Cause the Agency Grant Deed, the Owner Grant Deed, the Memorandum
ofOPA and the HUB Agreement (collectively, the "Recordable Documents") to be recorded, lli
mAT ORDER., in the Official Records.
(c) Disburse all funds deposited with Escrow Holder by the Owner and the
Agency in connection with the Closing as follows:
(i) deduct the amount ofitems chargeable to the account of the Agency
and the Owner, respectively, pursuant to this Agreement; and
(ii) the net amount, if any, due to the Agency following the prorations
and adjustments under Section 3 26. below, shall be disbursed to the Agency promptly
upon the Closing.
SB2001:20830,2
14
(d) Deliver or cause to be delivered to the Owner, within three (3) business
days following the Closing Date, (i) an original of the Agency Sale Property CL T A Policy or the
Agency Sale Property ALT A Policy, as applicable, or commitment therefor, to be issued pursuant
to Section 3 19(1J)_ below, (ii) the original Non-Foreign Tax Status Certificate executed by the
Agency, (iii) conformed copies of each of the Recordable Documents and (iv) the final Owner
Closing Statement.
(e) Deliver or cause to be delivered to the Agency, within three (3) business
days following the Closing Date, (i) an original of the Owner Sale Property CL T A Policy or the
Owner Sale Property ALT A Policy, as applicable, or commitment therefor, to be issued pursuant
to Section 3 20(lJ). below, (ii) the original Non-Foreign Tax Status Certificate executed by the
Owner, (iii) conformed copies of each of the Recordable Documents and (iv) the final Agency
Closing Statement,
3.15 Due Diligence Investigation of Agency Sale Property By Owner.
(a) Within ten (10) business days after the full execution of this Agreement, the
Agency shall deliver to the Owner true, correct and complete copies or originals of (i) all soils,
seismic, geologic, drainage, engineering, environmental and similar reports, studies, test results
and surveys (including, but not limited to, environmental site assessments) relating to the Agency
Sale Property, if any, in the possession of the Agency and (ii) notices of uncured violations or
Laws affecting the Agency Sale Property in the possession of the Agency (collectively, the
"Agency Due Diligence Documents").
(b) At any time on or before October 31, 2001 (the "Owner Due Diligence
~"), the Owner shall have the right to examine and investigate the Land Use Approvals and
condition of the Agency Sale Property and determine, in the Owner's sole and absolute judgment
and discretion, whether the Agency Sale Property is acceptable to the Owner; provided, however,
that the Owner Due Diligence Period shall be extended by one (1) business day for each business
day of delay caused by the Agency's failure to provide the Agency Due Diligence Documents
within the time period specified in subsection (a), above.
(c) During the Owner Due Diligence Period, the Owner shall have the right to
investigate all matters relating to the zoning, use and compliance with applicable Laws relating to
the use, development and improvement of the Agency Sale Property, including all matters relating
to the Land Use Approvals.
(d) It: at any time prior to the expiration of the Owner Due Diligence Period,
the Owner delivers to the Agency and Escrow Holder written notice of its disapproval, in its sole
discretion, of any of the matters described in this Section 1..li, the Escrow shall be canceled and
this Agreement shall terminate, in which case the provisions of Section 3 1 Of c), above, shall apply.
smOOI:20830,2
15
3,16 Due Diligence Investigation of Owner Sale Property By the AgenllY.
(a) WIthin ten (10) business days after the full execution of this Agreement, the
Owner shall deliver to the Agency true, correct and complete copies or originals of (i) all soils,
seismic, geologic, drainage, engineering, environmental and similar reports, studies, test results
and surveys (including, but not limited to, environmental site assessments) relating to the Owner
Sale Property, if any, in the possession of the Owner (ii) notices of uncured violations or Laws
affecting the Owner Sale Property in the possession of the Owner (ill) the form of the HUB
Agreement in form of substances as mutually satisfactory to the Owner and the HUB Developer
(collectively, the "Owner Due Diligence Documents").
(b) At any time on or before October 31, 2001 (the "Agenc.y Due Diligence
Period"), the Agency shall have the right to examine, inspect and investigate the Owner Sale
Property and detennine, in the Agency's sole and absolute judgment and discretion, whether the
Owner Sale Property is acceptable to the Agency; provided, however, that the Agency Due
Diligence Period shall be extended by one (1) business day for each business day of delay caused
by the Owner's failure to provide the Owner Due Diligence Documents within the time period
specified in subsection (a), above.
(c) During the Agency Due Diligence Period, the Agency and its engineers,
analysts, contractors, consultants and agents shall have the right to enter upon the Owner Sale
Property, at reasonable times after giving at least twenty-four (24)-hours' prior notice to the
Owner, to conduct such physical inspections and testing of and on the Owner Sale Property as the
Agency deems prudent with respect to the condition of the Owner Sale Property, including the
inspection or investigation of soil and subsurface soil geotechnical conditions, drainage, seismic
and other geological and topographical matters and for the potential presence of Hazardous
Substances.
(d) During the Agency Due Diligence Period, the Agency shall have the right
to investigate all matters relating to the zoning, use and compliance with applicable Laws relating
to the use, development and improvement of the Owner Sale Property.
(e) The Owner shall cooperate with the Agency regarding inspections and
investigations of the condition of the Owner Sale Property. The Owner has the right, but not the
obligation, to accompany the Agency during such investigations and/or inspections. The Agency
shall pay for all costs and expenses associated with the conduct of all such due diligence
investigation.
(t) The Agency hereby agrees to indentnifY and defend the Owner and hold
the Owner harmless from and against any and all claims, demands, actions, losses, liabilities,
obligations, damages, costs and expenses (including without limitation reasonable attorneys' fees
and court costs, whether or not any action is filed or prosecuted) arising out of the Agency's entry
onto the Owner Sale Property and perfonning such investigations, inspections, tests and studies
thereon. The Agency's indemnification obligations under this subsection shall survive for a period
of one (1) year following the Closing or the cancellation of the Escrow and the resulting
termination of this Agreement. The Agency's approval of any such investigations, inspections,
S82ooL20830,2
16
tests or studies shall not alter or diminish the Owner's representations and warranties under this
Agreement, and the Owner acknowledges and agrees that the Agency is relying on the Owner's
representations and warranties made herein, unless and to the extent such representation and
warranty is specifically waived by the Agency. In the event that the Closing does not occur for
any reason other than an Owner Default, the Agency shall furnish to the Owner, within ten (10)
days following the cancellation of the Escrow, copies of all reports, studies and plans prepared by
or for the Agency in connection with the due diligence activities described in this Section 1.lQ that
relate to the Owner Sale Property; provided, however, that the Owner expressly acknowledges
and agrees that the Agency is furnishing copies of such documents to the Owner for informational
purposes only and without representation or warranty, express or implied, as to the accuracy or
completeness of the contents of such materials. The Owner acknowledges and agrees that, in
connection its review of the matters described above, the Agency and/or its agents may discuss
such matters with governmental authorities with jurisdiction over the development of the Owner
Sale Property and other Persons with knowledge or information regarding the Owner Sale
Property,
(g) During the Agency Due Diligence Period the Agency shall have the right
in its sole discretion to confirm the satisfaction of the matters set forth at Section 2.3(b) of the
HUB DDA and that the Agency is in a position to initiate the "Site Parcel assembly program" as
this term is set forth in the HUB DDA
(h) It: at any time prior to the expiration of the Agency Due Diligence Period,
the Agency delivers to the Owner and Escrow Holder written notice of its disapproval, in its sole
discretion, of any of the matters described in Section 1.lQ, above, the Escrow shall be canceled
and this Agreement shall terminate, in which case the provisions of Section 3 10(1;;), above, shall
apply.
3.17 Disclaimer ofRe.vresentations and Warranties - Al;lency Sale Property.
(a) The Agency and the Owner hereby acknowledge and agree that the Agency
has made no representation or warranty, express or implied, in connection with the transactions
contemplated by this Agreement as to the Agency Sale Property or its condition or fitness for use,
except as otherwise expressly provided in this Agreement, and subject to compliance by the
Agency with all of the conditions and requirements set forth in this Agreement, the Owner shall
accept title to the Agency Sale Property "AS IS" and with all faults and without representation or
warranty, express or implied, except as otherwise expressly provided herein. The Owner hereby
acknowledges that it will rely solely upon its own investigation of the Agency Sale Property and
its own review of such information and documentation as it deems appropriate for the purpose of
accepting the condition and possession of the Agency Sale Property. The Owner is not relying
on any statement or representation by the Agency relating to the condition of the Agency Sale
Property unless such statement or representation is specifically contained in this Agreement.
Without limiting the generality of the foregoing, the Agency makes no representations or
warranties as to whether the Agency Sale Property presently complies with Environmental Laws
or whether the Agency Sale Property contains any Hazardous Substances. The Agency makes no
representations or warranties with respect to the accuracy, completeness, methodology or content
862001:20830,2
17
of the Agency Due Diligence Documents delivered by the Agency to the Owner pursuant to
Section 3 15(a). above.
(b) The Agency shall provide the Owner and its engineers, analysts,
contractors, consultants and agents with access to the Agency Sale Property at the earliest feasible
time following:
(i) the acceptance of the offer of the Agency to acquire the Agency
Sale Property from the third party owners thereof; or
(ii) following the date when the Agency or the IVDA obtains an
appropriate court order or other authorization for such access and inspection by the
Agency and the Owner.
The purpose of such access provided or made available by the Agency to the
Owner shall be to afford the Owner an opportunity to conduct such physical inspections and
testing of on the Agency Sale Property as the Owner deems prudent with respect to the conditions
of the Agency Sale Property, including the inspection or investigation of soil and subsurface soil
geoteclmica1 conditions, drainage, seismic and other geological and topographical matters and for
the potential presences of Hazardous Substances,
The Agency shall cooperate with the Owner regarding inspections and
investigations ofthe condition of the Agency Sale Property. The Agency has the right, but not
the obligation, to accompany the Owner during such investigations and/or inspections. The Owner
shall pay for all costs and expenses associated with the conduct of all such due diligence
investigation. The Owner hereby agrees to indemnifY and defend the Agency and hold the Agency
harmless from and against any and all claims, demands, actions, losses, liabilities, obligations,
damages, costs and expenses (including without limitation reasonable attorneys' fees and court
costs, whether or not any action is filed or prosecuted) arising out of the Owner's entry onto the
Agency Sale Property and performing such investigations, inspections, tests and studies thereon,
The Owner's indemnification obligations under this subsection shall survive for a period of one
(1) year following the Closing or the cancellation of the Escrow and the resulting termination of
this Agreement. The Owner's approval of any such investigations, inspections, tests or studies
shall not alter or diminish the Agency's representations and warranties under this Agreement, and
the Agency acknowledges and agrees that the Owner is relying on the Agency's representations
and warranties made herein, unless and to the extent such representation and warranty is
specifically waived by the Owner, In the event that the Closing does not occur for any reason
other than an Agency Default, the Owner shall furnish to the Agency, within ten (10) days
following the cancellation of the Escrow, copies of all reports, studies and plans prepared by or
for the Owner in connection with the due diligence activities described in this Section ~ that
relate to the Agency Sale Property; provided, however, that the Agency expressly acknowledges
and agrees that the Owner is furnishing copies of such documents to the Agency for informational
purposes only and without representation or warranty, express or implied, as to the accuracy or
completeness of the contents of such materials. The Agency acknowledges and agrees that, in
connection its review of the matters described above, the Owner and/or its agents may discuss
such matters with governmental authorities with jurisdiction over the development of the Agency
S82OO1:20830.2
18
Sale Property and other Persons with knowledge or information regarding the Agency Sale
Property.
(c) Ifwithin sixty (60) days following the date of entry by the Owner onto the
Agency Sale Property as authorized under this Section ill, the Owner delivers to the Agency
and Escrow Holder written notice of its disapproval, in its sole discretion of any matters described
in this Section liZ, the Escrow shall be cancelled and this Agreement shall tenninate in which
case the provisions of Section 3 lO(c). above, shall apply.
3.18 DisclaimerofRW-Ations and Warranties - Owner Sale Property. The Owner
and the Agency hereby acknowledge and agree that the Owner has made no representation or
warranty, express or implied, in connection with the transactions contemplated by this Agreement
as to the Owner Sale Property or its condition or fitness for use, except as otherwise expressly
provided in this Agreement, and subject to compliance by the Owner with all of the conditions and
requirements set forth in this Agreement, the Agency shall accept title to the Owner Sale Property
"AS IS" and with all faults and without representation or warranty, express or implied, except as
otherwise expressly provided herein, The Agency hereby acknowledges that it will rely solely
upon its own investigation of the Owner Sale Property and its own review of such information and
documentation as it deems appropriate for the purpose of accepting the condition and possession
of the Owner Sale Property, The Agency is not relying on any statement or representation by the
Owner relating to the condition of the Owner Sale Property unless such statement or
representation is specifically contained in this Agreement, Without limiting the generality of the
foregoing, the Owner makes no representations or warranties as to whether the Owner Sale
Property presently complies with Environmental Laws or whether the Owner Sale Property
contains any Hazardous Substances. The Owner makes no representations or warranties with
respect to the accuracy, completeness, methodology or content of the Owner Due Diligence
Documents delivered by the Owner to the Agency pursuant to Section 3 16(a). above,
3.19 Condition of Title and Title Insurance for Agency Sale Pro.peny,
(a) The Owner acknowledges and agrees that as of the date of this Agreement,
the Agency does not own the Agency Sale Property, The Agency intends to initiate proceedings
to acquire the Agency Sale Property by negotiated purchase with the third party owners thereof
concurrently with the initiation of the Site Parcel assembly program under the HUB DDA. The
Agency may hereafter request the assistance of the IVDA to complete the acquisition of the
Agency Sale Property by exercise by the IVDA of the power of eminent domain, if necessary. In
the event that the Agency may request such assistance of the IVDA, the IVDA shall transfer such
interest in the Agency Sale Property as it may acquire to the Agency for disposition as necessary
or appropriate in connection with the Harriman Improvement Project, the HUB DDA and/or this
Agreement. Wrthin thirty (30) days following the Opening of Escrow, the Agency shall cause to
be delivered to the Owner a preliminary title report or title commitment (the "Aiency Sale
Property Title Re.port") prepared by the Title Company, describing the state of the title of the
Agency Sale Property, together with copies of all documents descn'bed in the Agency Sale
Property Title Report and a plot of the Agency Sale Property showing the location of all locatable
exceptions disclosed in the Agency Sale Property Title Report (collectively, the "A.~ency Sale
Property Title Documents"). The Owner must notify the Agency in writing of any objections the
SBZOOt,Z0830,Z
19
Owner has to the title exceptions contained in the Agency Sale Property Title Report (for
purposes of this Section 3 19( It) the "Objection Notice") within thirty (30) days following the
Owner's receipt of the Agency Sale Property Title Report and all of the Agency Sale Property
Title Documents (for purposes of this Section 3 19(a)_ the "Objection Date"). In the event that
the Owner delivers an Objection Notice to the Agency on or before the Objection Date, the
Agency shall have the right, but not the obligation, at its sole expense and by delivery of written
notice (for purposes of this Section 3 19(Ji). the "Re!\ponse Notice") within thirty (30) business
days following the Agency's receipt of the Objection Notice (for purposes of this Section 3 19( It),
the "Re!\ponse Date"), to (i) agree to cause such exception(s) to be either removed or modified
to a form reasonably acceptable to the Owner or obtain the Title Company's agreement to issue
a title endorsement( s) with respect to such exception( s) reasonably acceptable to the Owner that
insures the Owner against any risks associated with such exception, and/or (ii) refuse to remove
any non-monetary exception(s) disapproved by the Objection Notice. In the event that the Agency
delivers a Response Notice to the Owner on or before the Response Date that includes a refusal
to remove a non-monetary exception disapproved in the Objection Notice, the Owner shall have
the right, by written notice to the Agency and Escrow Holder (for purposes of this
Section 3 19(1t) the "Decision Notice") within five (5) business days thereafter (for purposes of
this Section 3 19(1t). the "Decision Date"), either to (i) waive its objection to anyexception(s)
specified in the Response Notice that the Agency has not agreed to remove, modify or endorse
in the manner described above within the required thirty (30)-business day period, in which case
the exception(s) to which the waiver applies shall be conclusively deemed approved, or (ii) cancel
the Escrow, in which case the provisions of Section 3 lOll() above, shall apply. In the event that
the Owner fails to timely deliver an Objection Notice covering any exception in the Agency Sale
Property Title Documents, the Owner shall be conclusively deemed to have approved such
exception (except monetary liens). In the event that the Owner fails to timely cancel the Escrow
after receiving a Response Notice from the Agency, the Owner shall be conclusively deemed to
have approved all non-monetary exceptions specified in the Response Notice. In the event that
the Agency fails to timely deliver a Response Notice covering the exception(s) disapproved in an
Objection Notice, the Owner shall have the right, by written notice to the Agency and Escrow
Holder within ten (10) business days after the Response Date (for purposes of this Section 3 19( It).
the "Non-Re$pOnse neci.ion Date"), either to (i) waive its objection to the exception(s) specified
in the Objection Notice, in which case the exception(s) to which the waiver applies shall be
conclusively deemed approved, or (ii) cancel the Escrow, in which case the provisions of
Section 3 1Olc). above, shall apply. In the event that any portion of the foregoing process will
occur after the expiration of the Owner Due Diligence Period, then with respect to such matters
covered in the Objection Notice and Response Notice, the Owner Due Diligence Period shall
extend to and expire on the Decision Date (or the Non-Response Decision Date, if applicable), but
only with respect to the Owner's approval of the Agency Sale Property Title Documents,
Notwithstanding anything to the contrary in this Section 3 19(a). all monetary liens encumbering
the Agency Sale Property (other than non-delinquent real estate taxes and supplemental taxes
assessed after the Closing) are hereby deemed disapproved. Prior to the Closing, (a) the Agency
shall remove, or cause to be removed, all such monetary liens and (b) the Agency shall remove,
modify or endorse, or cause to be removed, modified or endorsed, any exception(s) that the
Agency agreed to cause to be removed, modified or endorsed in the Response Notice, in the
manner specified in the Response Notice. In the event that such monetary liens and other
exceptions are not removed prior to the Oosing, the Owner shall have the right either to (i) waive
SB2001:20810,2
20
its objection to such monetary liens, in which case such monetary liens shall be conclusively
deemed approved, or (ii) cancel the Escrow, in which case the provisions of Section 3 1 O( q),
above, shall apply. In the event that the Title Company delivers any supplement to the Agency
Sale Property Title Report to the Owner, or the Owner otherwise discovers the existence of any
title matter affecting the Agency Sale Property not disclosed in the Agency Sale Property Title
Report, the Owner shall have the right to object to any such title matter within ten (10) business
days following the Owner's receipt of such supplemental report or discovery of such title matter
and otherwise in accordance with the procedures described in this subsection.
(b) At the time of the Closing and as a condition thereto, Escrow Holder shall
deliver to the Owner either, as required by the Owner, a CL T A owner's standard coverage policy
of title insurance (with respect to the Agency Sale Property, the "Agency Sale Property CLTA
~") issued by the Title Company or an unconditional and unqualified commitment by the Title
Company to issue the Agency Sale Property CL T A Policy, naming the Owner as insured, in a
policy amount equal to $ , showing title to the Agency Sale Property to be vested in
the Owner, subject only to (a) the exceptions contained in the Agency Sale Property Title
Documents approved or deemed approved by the Owner pursuant to Section 3, 19(a), above,
(b) real property taxes and assessments not then delinquent, ( c) matters of title created by or with
the written consent of the Owner, (d) the effect of any conditions imposed by the City in
connection with any of the Land Use Approvals, but only to the extent that such conditions have
been recorded in the Official Records, (e) any covenants, conditions or restrictions set forth in the
Agency Grant Deed, (f) the Memorandum of OP A, and (g) the standard printed exceptions to
coverage contained in the Agency Sale Property CLTA Policy. The Owner shall have the right
to elect to receive an ALTA owner's extended coverage policy of title insurance with respect to
the Agency Sale Property (the "Agency Sale Property ALTA Poli<;y") with the same liability
amount and subject only to the same exceptions in lieu of the applicable Agency Sale Property
CLT A Policy, provided that the Owner pays the difference in premium and any other additional
costs (including without limitation any costs of required new surveys) attributable to the Agency
Sale Property AL T A Policy, and provided further that the procurement of any such Agency Sale
Property ALTA Policy shall not result in an extension of the Closing Date. The Agency Sale
Property CLTA Policy or the Agency Sale Property ALTA Policy, as applicable, shall be
conclusive evidence of good and indefeasible title as to all matters insured thereby.
3.20 Condition of Title and Title Insurance for Owner Sale Property.
(a) Within thirty (30) days following the Opening of Escrow, the Owner shall
cause to be delivered to the Agency a preliminary title report or title commitment (the "Owner
Sale PrQperty Title Rq:Klrt") prepared by the Title Company, describing the state of the title of the
Owner Sale Property, together with copies of all documents described in the Owner Sale Property
Title Report and a plot of the Owner Sale Property showing the location of all locatable
exceptions disclosed in the Owner Sale Property Title Report (collectively, the "Owner Sale
PrQpert)' Title Documents"), The Agency must notifY the Owner in writing of any objections the
Agency has to the title exceptions contained in the Owner Sale Property Title Report (for
purposes of this Section 3 20(11), the "Ol1jection Notice") within thirty (30) days following the
Agency's receipt of the Owner Sale Property Title Report and all of the Owner Sale Property Title
Documents, In the event that the Agency delivers an Objection Notice to the Owner on or before
SB2001,20830,2
21
the Objection Date, the Owner shall have the right, but not the obligation, at its sole expense and
by delivery ofwritten notice (for purposes of this Section 3 20W. the "Re!ij1onse Notice") within
fifteen (15) business days following the Owner's receipt ofthe Objection Notice (for purposes of
this Section 3 20(a). the "Re!ij1onse Date"), to (i) agree to cause such exception(s) to be either
removed or modified to a form reasonably acceptable to the Owner or obtain the Title Company's
agreement to issue a title endorsement( s) with respect to such exception( s) reasonably acceptable
to the Agency that insures the Agency against any risks associated with such exception, and/or
(ii) refuse to remove any non-monetary exception(s) disapproved by the Objection Notice. In the
event that the Owner delivers a Response Notice to the Agency on or before the Response Date
that includes a refusal to remove a non-monetary exception disapproved in the Objection Notice,
the Agency shall have the right, by written notice to the Owner and Escrow Holder (for purposes
of this Section 3 20(1\). the "Decision Notice") within five (5) business days thereafter (for
purposes of this Section 3 20(11), the "Decision Date"), either to (i) waive its objection to any
exception(s) specified in the Response Notice that the Owner has not agreed to remove, modifY
or endorse in the manner described above within the required fifteen (15)-business day period, in
which case the exception(s) to which the waiver applies shall be conclusively deemed approved,
or (ii) cancel the Escrow, in which case the provisions of Section 3.10(<;), above, shall apply, In
the event that the Agency fails to timely deliver an Objection Notice covering any exception in the
Owner Sale Property Title Documents, the Agency shall be conclusively deemed to have approved
such exception (except monetary liens). In the event that the Agency fails to timely cancel the
Escrow after receiving a Response Notice from the Owner, the Agency shall be conclusively
deemed to have approved all non-monetary exceptions specified in the Response Notice. In the
event that the Owner fails to timely deliver a Response Notice covering the exception(s)
disapproved in an Objection Notice, the Agency shall have the right, by written notice to the
Owner and Escrow Holder within ten (10) business days after the Response Date (for purposes
of this Section 3 20(a), the ''Non-Re!ij1onse Decision Date"), either to (i) waive its objection to the
exception(s) specified in the Objection Notice, in which case the exception(s) to which the waiver
applies shall be conclusively deemed approved, or (ii) cancel the Escrow, in which case the
provisions of Section 3 1 0(<;), above, shall apply. In the event that any portion of the foregoing
process will occur after the expiration of the Agency Due Diligence Period, then the Agency Due
Diligence Period shall extend to and expire on the Decision Date (or the Non-Response Decision
Date, if applicable), but only with respect to the Agency's approval of the Owner Sale Property
Title Documents. Notwithstanding anything to the contrary in this Section 3 20(11). all monetary
liens encumbering the Owner Sale Property (other than non-delinquent real estate taxes and
supplemental taxes assessed after the Closing) are hereby deemed disapproved. Prior to the
Closing, (a) the Owner shall remove, or cause to be removed, all such monetary liens and (b) the
Owner shall remove, modify or endorse, or cause to be removed, modified or endorsed, any
exception(s) that the Owner agreed to cause to be removed, modified or endorsed in the Response
Notice, in the manner specified in the Response Notice. In the event that such monetary liens and
other exceptions are not removed prior to the Closing, the Agency shall have the right either to
(i) waive its objection to such monetary liens, in which case such monetary liens shall be
conclusively deemed approved, or (ii) cancel the Escrow, in which case the provisions of
Section 3 10(a) above, shall apply, In the event that the Title Company delivers any supplement
to the Owner Sale Property Title Report to the Agency, or the Agency otherwise discovers the
existence of any title matter affecting the Owner Sale Property not disclosed in the Owner Sale
Property Title Report, the Agency shall have the right to object to any such title matter within ten
8B2001:20830,2
22
(10) business days following the Agency's receipt of such supplemental report or discovery of such
title matter and otherwise in accordance with the procedures described in this subsection.
(b) At the time of the Closing and as a condition thereto, Escrow Holder shall
deliver to the Agency either a CLTA owner's standard coverage policy of title insurance (the
"Owner Sale Property CLTA Policy") issued by the Title Company or an unconditional and
unqualified commitment by the Title Company to issue the Owner Sale Property CLTA Policy,
naming the Agency as insured, in a policy amount equal to $ , showing title to the
Owner Sale Property to be vested in the Agency, subject only to (a) the exceptions contained in
the Owner Sale Property Title Documents approved or deemed approved by the Agency pursuant
to Section 3 20(a) above, (b) real property taxes and assessments not then delinquent, (c) matters
of title created by or with the written consent of the Agency, (d) any covenants, conditions or
restrictions set forth in the Owner Grant Deed, (e) the Memorandum of OP A, and (f) the standard
printed exceptions to coverage contained in the Owner Sale Property CLTA Policy, The Agency
shall have the right to elect to receive an ALTA owner's extended coverage policy of title
insurance (the "Owner Sale Property ALTA Policy") with the same liability amount and subject
only to the same exceptions in lieu of the Owner Sale Property CLTAPolicy, provided that the
Agency pays the difference in premium and any other additional costs (including without limitation
any costs of required new surveys) attributable to the Owner Sale Property AL T A Policy, and
provided further that the procurement of the Owner Sale Property AL T A Policy shall not result
in an extension of the Closing Date. The Owner Sale Property CLTA Policy or the Owner Sale
Property ALTA Policy, as applicable, shall be conclusive evidence of good and indefeasible title
as to all matters insured thereby,
3.21 Surveys.
(a) The Owner may, at its sole cost and separate expense, obtain a survey of
the Agency Sale Property prepared by a land surveyor duly licensed by the State of California and
in compliance with ALTNASCM standards (the "A~enc.y Sale Prqperty Survey"). The Agency
Sale Property Survey must be in a form acceptable to the Title Company for the deletion of the
standard survey exception in a CL T A owner's standard coverage policy of title insurance relating
to boundaries, without the addition of further exceptions, unless such additional exceptions are
acceptable to the Owner in its sole and absolute discretion. In the event that the Owner elects to
obtain the Agency Sale Property Survey, the procedures in Section 3 19( lV. above, shall apply to
the Owner's review and approval of such survey.
(b) The Agency may, at its sole cost and separate expense, obtain a survey of
the Owner Sale Property prepared by a land surveyor duly licensed by the State of California and
in compliance with ALTNASCM standards (the "Owner Sale PrQperty Survey"). The Owner
Sale Property Survey must be in a form acceptable to the Title Company for the deletion of the
standard survey exception in a CL T A owner's standard coverage policy of title insurance relating
to boundaries, without the addition of further exceptions, unless such additional exceptions are
acceptable to the Agency in its sole and absolute discretion, In the event that the Agency elects
to obtain the Owner Sale Property Survey, the procedures in Section 3 20W, above, shall apply
to the Agency's review and approval of such survey.
S82001:20830,2
23
3,22 Owner's Conditions Precedent to Close Escrow. In addition to the satisfaction of
any other conditions precedent set forth herein in favor of the Owner, the Owner's obligations to
purchase the Agency Sale Property from the Agency, convey the Owner Sale Property to the
Agency and perform its obligations hereunder to be performed after the Closing shall be subject
to the satisfaction of all of the following conditions precedent (except to the extent waived in
writing by the Owner pursuant to Section 1.ll below) prior to the earlier of (i) the Closing Date
or (ii) the time established therefor in this Agreement or the Schedule of Performance, if applicable
(collectively, the "Owner's Conditions"):
(a) The Owner Due Diligence Period shall have expired and the Owner shall
not have terminated this Agreement pursuant to Section 3 lS(d) or Section 3 17();). above;
(b) The Agency shall have acquired merchantable, lien-free, fee title to the
Agency Sale Property and/or the Agency has obtained or cause the IVDA to have obtained an
order for prejudgment possession of the Agency Sale Property which includes terms acceptable
to the Owner in satisfaction of the Agency's Response Notice as set forth in Section 3 19(11), if
applicable;
(c) The 1///IAgency///// shall have certified the Environmental Impact Report
and all time periods for legal challenge to the Environmental Impact Report shall have expired
without any challenge having been filed or, if such a challenge has been filed, a resolution of such
challenge satisfactory to the Owner shall have occurred;
(d) The Owner shall have obtained all of the Land Use Approvals required for
the construction and operation of the Improvements (other than non-discretionary, ministerial
permits and approvals that are not required for the commencement of construction and which the
Owner is reasonably satisfied will be approved on a timely basis) and the Owner shall have
confumed its eligibility for a credit from the City with respect to each New Restaurant Fee in an
amount equal to the corresponding fee or exaction that the Owner would have been required to
pay to the City ifthe Owner had obtained the applicable Land Use Approval for the Existing
Restaurant on the Existing Owner Site;
(e) [RESERVED - NO TEXT];
(f) All time periods for legal challenges to the Land Use Approvals shall have
expired without any challenge having been filed or, if such a challenge has been filed, a resolution
of such challenge satisfactory to the Owner shall have occurred;
(g) The Agency shall have completed the Agency Demolition Work in
accordance with Section 3 30, below;
(h) The HUB Developer shall have executed, acknowledged and delivered into
the Escrow the HUB Agreement;
SB200t:20830,2
24
(i) The Owner shall have approved the Agency Sale Property Title Report, the
Agency Sale Property Title Documents and the Agency Sale Property Survey, or the same shall
be deemed approved, in accordance with Sections 3 19(a) and 3 2] (a), above;
(j) Escrow Holder shall have satisfied the condition relating to the Agency Sale
Property CLTA Policy or the Agency Sale Property ALTA Policy, as applicable, set forth in
Section 3 ] 90>,), above;
(k) No Agency Default shall remain uncured and no event shall have occurred
and no condition shall exist which, with the giving of notice or the passage of time, or both, would
become an Agency Default;
(1) Each of the Agency's representations and warranties made herein shall be
true and correct as of the time at which the same is made and as of the Closing Date, as if made
on and as of the Closing Date;
(m) No Bankruptcy/Disso1ution Event shall have occurred with respect to the
Agency;
(n) There shall be no action pending which, if adversely decided, would cause
this Agreement, the Land Use Approvals and/or the General P1an!Development Code
Amendments or any portion thereof to be illegal, unenforceable or invalid in any material respect;
(0) The Agency shall have acquired and transferred to the HUB Developer title
and/or possession to the Phase 1A HUB Site in form acceptable to the HUB Developer;
(P) The construction of the Harriman Place Improvement Project shall have
been commenced under a public works construction contract awarded by the City as set forth in
the Harriman Construction Agreement;
(q) The Agency shall have provided the Owner with satisfactory evidence that
it has arranged for or caused all utilities required for the construction, operation and use of the
New Restaurant to be stubbed to within five (5) feet of the Development Site by a date not later
than sixty (60) days fonowing the Closing Date or within 180 days fonowing the commencement
of the Harriman Improvement Project, which date may last occur;
(r) The Agency shall have delivered into Escrow the documents listed in
Section ~, above, within the time period specified therein; and
(s) The Agency shall have executed and delivered into Escrow a letter
confirming that all of the Agency's Conditions have been satisfied or waived by the Agency,
The non-satisfaction of any of the Ownei's Conditions set forth in subsections (g), (h), (k), (I), (m),
(q), (r) or (s), above, shall constitute an Agency Default hereunder.
SB2001:20830,2
25
3.23 Failure of the Owner's Conditions' Tennination. In the event that the Owner has
fully performed its obligations under this Agreement to be performed prior to the Closing Date,
but one or more of the Owner's Conditions or other condition to the Owner's conveyance of the
Owner Sale Property and the acceptance of the conveyance of the Agency Sale Property have not
been satisfied or waived in writing by the Owner as of the Closing Date, then the Owner shall have
the right to terminate this Agreement by written notice to the Agency at any time within thirty (30)
days after the Oosing Date, in which case the provisions of Section 3 IO(P) or 3 1 O( q) above, as
applicable, shall apply; provided, however, that if no Agency Default remains uncured hereunder
and the condition which was not satisfied is capable of being satisfied by the Agency, and provided
further that the Agency notifies the Owner within ten (10) business days after its receipt of the
Owner's termination notice that the Agency intends to cause the satisfaction of such condition and
thereafter diligently and continuously proceeds to cause the satisfaction of such condition, then
the Closing Date shall be extended for such time as is reasonably necessary for the Agency to
satisfY such condition, but not to exceed ninety (90) days. The Agency shall have the right to
extend the Closing Date; provided however, that any such extension by the Agency shall have the
effect of extending the date by which the Owner shall commence the work of improvement of the
New Restaurant (and thereafter complete such work) on a day-for-day basis of such extension,
If such condition has not been satisfied by the extended Closing Date or waived by the Owner,
then the Owner may, at its option, terminate this Agreement by delivering a second notice of
termination to the Agency at any time within thirty (30) days following the extended Closing Date
(and such termination shall be effective upon delivery of such notice), in which case the provisions
of Section 3 1 O(P) or 3 1 Of c), above, as applicable, shall apply,
3,24 Agency's Conditions Precedent to Close Escrow. In addition to the satisfaction
of any other conditions precedent set forth herein in favor of the Agency, the Agency's obligations
to purchase the Owner Sale Property from the Owner, convey the Agency Sale Property to the
Owner and perform its obligations hereunder to be performed after the Closing shall be subject
to the satisfaction of all of the following conditions precedent (except to the extent waived in
writing by the Agency pursuant to Section ~ below) prior to the earlier of (i) the Closing Date
or (ii) the time established therefor in this Agreement or the Schedule of Performance, if applicable
(collectively, the "Agency's Conditions"):
(a) The Agency Due Diligence Period shall have expired and the Agency shall
not have terminated this Agreement pursuant to Section 3 16(h), above;
(b) The I///Agencyl///I shall have certified the Environmental Impact Report
and all time periods for legal challenge to the Environmental Impact Report shall have expired
without any challenge having been filed or, if such a challenge has been filed, a resolution of such
challenge satisfactory to the Agency shall have occurred;
(c) The Owner shall have applied for the Land Use Approvals by a date not
later than December 31, 200 1, and thereafter shall diligently proceed to obtain, by a date not later
than June 30,2002, subject to the discretion of the City, all of the Land Use Approvals required
for the construction and operation of the Improvements (other than non-discretionary, ministerial
permits and approvals that are not required for the commencement of construction and which the
SB200t:20830.2
26
Agency is reasonably satisfied will be approved on a timely basis which ministerial permits and
approvals of the City shall be in a condition to be issued concurrently upon the Closing);
(d) [RESERVED - NO TEXT];
(e) All time periods for legal challenges to the Land Use Approvals shall have
expired without any challenge having been filed or, if such a challenge has been filed, a resolution
of such challenge satisfactory to the Agency shall have occurred;
(f) The Agency shall have approved the Owner Sale Property Title Report, the
Owner Sale Property Title Documents and the Owner Sale Property Survey or the same shall be
deemed approved, in accordance with Sections 3 20(a) and 3 21(h). above;
(g) Escrow Holder shall have satisfied the condition relating to the Owner Sale
Property CLTA Policy or the Owner Sale Property ALTA Policy, as applicable, set forth in
Section 3 20(1)), above;
(h) No Owner Default shall remain uncured and no event shall have occurred
and no condition shall exist which, with the giving of notice or the passage of time, or both, would
become an Owner Default;
(i) Each of the Owner's representations and warranties made herein shall be
true and correct as of the time at which the same is made and as of the Closing Date, as if made
on and as of the Closing Date;
(j) No Bankruptcy/Disso1ution Event shall have occurred with respect to the
Owner;
(k) There shall be no action pending which, if adversely decided, would cause
this Agreement, the Land Use Approvals and/or the General P1anlDeve10pment Code
Amendments or any portion thereof to be illegal, unenforceable or invalid in any material respect;
(1) The Owner shall have delivered into Escrow (i) the funds required pursuant
to Section M, above, and (ii) the documents listed in Section 3 13. above;
(m) The Owner has executed the HUB Agreement; and
(n) The Owner shall have executed and delivered into Escrow a letter
confirming that all of the Owner's Conditions have been satisfied or waived by the Owner.
The non-satisfaction of any of the Agency's Conditions set forth in subsections (c),
(h), (i), (j), (I) or (n), above, shall constitute an Owner Default hereunder.
3.25 Failure of the Aienl;y's Conditions. Termination. In the event that the Agency has
fully performed their respective obligations under this Agreement to be performed prior to the
Closing Date, but one or more of the Agency's Conditions or other condition to the Agency's
SB2001:20830,2
27
conveyance of the Agency Sale Property and the acceptance of the conveyance of the Owner Sale
Property have not been satisfied or waived in writing by the Agency as of the Closing Date, then
the Agency shall have the right to tenninate this Agreement by written notice to the Owner at any
time within thirty (30) days after the Closing Date, in which case the provisions of Section 3 10(1\)
or 3 10(<;) above, as applicable, shall apply; provided, however, that if no Owner Default remains
uncured hereunder and the condition which was not satisfied is capable of being satisfied by the
Owner, and provided further that the Owner notifies the Agency and the City within ten (10)
business days after its receipt of the Agency's termination notice that the Owner intends to cause
the satisfaction of such condition and thereafter diligently and continuously proceeds to cause the
satisfaction of such condition, then the Closing Date shall be extended for such time as is
reasonably necessary for the Owner to satisfy such condition, but not to exceed ninety (90) days.
The Owner shall have the right to extend the Closing Date only once, If such condition has not
been satisfied by the extended Closing Date or waived by the Agency, then the Agency may, at
its option tenninate this Agreement by delivering a second notice oftennination to the Owner at
any time within thirty (30) days following the extended Closing Date (and such termination shall
be effective upon delivery of such notice), in which case the provisions of Section 3 IO(a) or
3 10(1;), above, as applicable, shall apply,
3,26 Prorations C10sinll Costs, Possession.
(a) Real and personal property taxes for the Agency Sale Property and the
Owner Sale Property shall be prorated by the parties to the Closing on the basis of a three hundred
sixty-five (365)-day year. The Agency is responsible for all taxes (if any) assessed against the
Agency Sale Property (i) for the fiscal year of the applicable taxing authority occurring prior to
the Current Tax Period (as defined below) and (ii) that portion of such taxes for the Current Tax
Period to 11 :59 p,m. on the day prior to the Closing Date, whether or not the taxes are payable
prior to the Closing. The Owner is responsible for all taxes assessed against the Owner Sale
Property (i) for the fiscal year of the applicable taxing authority occurring prior to the Current Tax
Period and (Ii) that portion of such taxes for the Current Tax Period to 11 :59 p.m. on the day prior
to the Closing Date, whether or not the taxes are payable prior to the Closing. The tenD "Current
Tax Period" in this Agreement refers to the fiscal year of the applicable taxing authority in which
the Closing occurs, All tax prorations shall be based upon the latest available tax statements. If
the tax statements for the fiscal tax year during which the Closing occurs do not become available
until after the Closing, then the rates and assessed values of the previous year, with known
changes, will be used, and the parties will re-prorate the taxes outside of Escrow following the
Closing when such tax statements become available. The parties are not responsible for paying
or reimbursing each other for any real or personal property taxes payable following the Closing
applicable to any period of time prior to the Closing that results from any change in the tax
assessment by reason of reassessment, changes in use of the real property, changes in ownership,
errors by the tax assessor or otherwise.
(b) Immediately upon the Closing, (i) the Agency shall deliver exclusive
possession of the Agency Sale Property to the Owner and (ii) the Owner shall deliver exclusive
possession of the Owner Sale Property to the Agency, subject to the Owner License.
882001:20830,2
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(c) The Agency shall pay the costs of (i) the premium for the Agency Sale
Property CL T A Policy (provided that if the Owner elects to obtain the Agency Sale Property
ALTA Policy, the Owner shall pay the additional premium for the Agency Sale Property ALTA
Policy over the premium for the Agency Sale Property CLTA Policy), (ii) the documentary
transfer tax on the Agency Grant Deed, (ill) recording the Agency Grant Deed and the
Memorandum ofOPA, (iv) satisfYing and removing all monetary liens encumbering all or any
portion of the Agency Sale Property and (v) one-half (V,) of the fees charged by Escrow Holder
in connection with the Escrow,
(d) The Owner shall pay the costs of (i) the premium for the Owner Sale
Property CLTA Policy (provided that if the Agency elects to obtain the Owner Sale Property
AL T A Policy, the Agency shall pay the additional premium for the Owner Sale Property AL T A
Policy over the premium for the Owner Sale Property CL T A Policy), (ii) the documentary transfer
tax on the Owner Grant Deed, (ill) recording the Owner Grant Deed, (iv) satisfying and removing
all monetary liens encumbering the Owner Sale Property and (v) one-half (V,) of the fees charged
by Escrow Holder in connection with the Escrow,
( e) The Owner shall pay the cost ofthe Agency Sale Property Survey and any
requested title endorsements (to the extent such endorsements are unrelated to removal of any
disapproved items shown on the Agency Sale Property Title Report or the Agency Sale Property
Survey pursuant to Sections 3 19W and 3 21(~, above) with respect to the Agency Sale Property
CL T A Policy or the Agency Sale Property AL T A Policy, as applicable.
(f) The Agency shall pay the cost of the Owner Sale Property Survey and any
requested title endorsements (to the extent such endorsements are unrelated to removal of any
disapproved items shown on the Owner Sale Property Preliminary Title Report or the Owner Sale
Property Survey pursuant to Sections 3 20(a) and 3 21 (h). above) with respect to the Owner Sale
Property CL T A Policy or the Owner Sale Property AL T A Policy, as applicable.
(g) The Agency and the Owner shall each pay their own legal fees and other
incidental expenses incurred in connection with the transactions contemplated by this Agreement.
(h) Any other escrow-related transaction expenses or escrow closing costs in
connection with the transactions contemplated by this Agreement shall be apportioned and paid
for by the parties hereto in the manner customary in the County.
3,27 Liqn;tl~tM DlIIDllics on Aiency 11efanlt Prior to Closing:. THE AGENCY AND
THE OWNER HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT OF
AN AGENCY DEFAULT WITH RESPECT TO THE AGENCY'S COVENANTS,
OBLIGATIONS OR AGREEMENTS UNDER THIS ARTICLE ~ PRIOR TO THE
CLOSING, THE DAMAGES THAT THE OWNER WILL INCUR BY REASON OF
SUCH AN AGENCY DEFAULT WILL BE EXTREMELY DIFFICULT TO ESTABLISH.
IN ADDmON, THE AGENCY WISHES TO HAVE A LIMITATION PLACED UPON
THE POTENTIAL LIABILITY OF THE AGENCY TO THE OWNER IN THE EVENT
OF SUCH AN AGENCY DEFAULT, AND WISHES TO INDUCE THE OWNER TO
WAIVE ALL OTHER REMEDIES THAT THE OWNER MAY HAVE IN THE EVENT
SB2001:20830,2
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OF SUCH AN AGENCY DEFAULT. THE AGENCY AND THE OWNER. AFTER DUE
NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF
THE AGENCY DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE
DAMAGES THAT THE OWNER WILL SUSTAIN IN THE EVENT OF SUCH AN
AGENCY DEFAULT. THE AGENCY AND THE OWNER HEREBY AGREE THAT
THE OWNER MAY, IN THE EVENT OF SUCH AN AGENCY DEFAULT,
UNILATERALLY CANCEL THE ESCROW AND TERMINATE THIS AGREEMENT
PURSUANT TO SECTION 3.100U, ABOVE, AND RETAIN THE AGENCY DEPOSIT
AS LIQUIDATED DAMAGES, IN LIEU OF ALL OTHER RIGHTS AND REMEDIES
OF THE OWNER AT LAW, IN EQUITY OR OTHERWISE. SUCH RETENTION OF
THE AGENCY DEPOSIT BY THE OWNER IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO THE OWNER PURSUANT TO SECTIONS 1671, 1676
AND 1677 OF THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO
CONSTITUTE A FORFEITURE OR PENALTY WIntIN' THE MEANING OF SECTION
3275 OR 3369 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR PROVISION.
THE OWNER'S RETENTION OF THE AGENCY DEPOSIT AS LIQUIDATED
DAMAGES AND CANCELLATION OF THE ESCROW AND RESULTING
TERMINATION OF THIS AGREEMENT AS PROVIDED HEREIN SHALL BE THE
OWNER'S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF SUCH AN AGENCY
DEFAULT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING
PROVISIONS OF THIS SECTION, THE OWNER WAIVES ANY AND ALL RIGHTS
THAT THE OWNER HAS UNDER SECTION 3389 OF THE CALIFORNIA CIVIL
CODE TO SPECIFICALLY ENFORCE THIS AGREEMENT PRIOR TO THE
CLOSING. THE OWNER AND THE AGENCY ACKNOWLEDGE AND AGREE THAT
EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS
SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS.
Initials of Agency
Initials of Owner
3,28 LiQllidated Damages on Owner Default Prior to Closing, THE OWNER AND
THE AGENCY HEREBY ACKNOWLEDGE AND AGREE THAT, IN THE EVENT OF
AN OWNER DEFAULT WITH RESPECT TO THE OWNER'S COVENANTS,
OBLIGATIONS OR AGREEMENTS UNDER THIS ARTICLE J PRIOR TO THE
CLOSING, THE DAMAGES THAT THE AGENCY WILL INCUR BY REASON OF
SUCHAN OWNER DEFAULT WILL BE EXTREMELY DIFFICULT TO ESTABLISH.
IN ADDmON, THE OWNER WISHES TO HAVE A LIMITATION PLACED UPON
THE POTENTIAL LIABILITY OF THE OWNER TO THE AGENCY IN THE EVENT
OF SUCH AN OWNER DEFAULT, AND WISHES TO INDUCE THE AGENCY TO
WAIVE ALL OTHER REMEDIES THAT THE AGENCY MAY HAVE IN THE EVENT
OF SUCH AN OWNER DEFAULT. THE OWNER AND THE AGENCY, AFTER DUE
NEGOTIATION, HEREBY ACKNOWLEDGE AND AGREE THAT THE AMOUNT OF
THE OWNER DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE
DAMAGES THAT THE AGENCY WILL SUSTAIN IN THE EVENT OF SUCH AN
OWNER DEFAULT. THE OWNER AND THE AGENCY HEREBY AGREE THAT THE
AGENCY MAY, IN THE EVENT OF SUCH AN OWNER DEFAULT, UNILATERALLY
SB2001:20830,2
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CANCEL THE ESCROW AND TERMINATE THIS AGREEMENT PURSUANT TO
SECTION 3.]0(1\). ABOVE, AND RETAIN THE OWNER DEPOSIT AS LIQUIDATED
DAMAGES. IN LIEU OF ALL OTHER RIGHTS AND REMEDIES OF THE AGENCY
AT LAW, IN EQUITY OR OTHERWISE. SUCH RETENTION OF THE OWNER
DEPOSIT BY THE AGENCY IS INTENDED TO CONSTITUTE LIQUIDATED
DAMAGES TO THE AGENCY PURSUANT TO SECTIONS 1671, 1676 AND 1677 OF
THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE
A FORFEITURE OR PENALTY WITHiN THE MEANING OF SECTION 3275 OR 3369
OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR PROVISION. THE
AGENCY'S RETENTION OF THE OWNER DEPOSIT AS LIQUIDATED DAMAGES
AND CANCELLATION OF THE ESCROW AND RESULTING TERMINATION OF
THIS AGREEMENT AS PROVIDED HEREIN SHALL BE THE AGENCY'S SOLE AND
EXCLUSIVE REMEDY IN THE EVENT OF SUCH AN OWNER DEFAULT. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS OF THIS
SECTION, THE AGENCY WAIVES ANY AND ALL RIGHTS THAT THE AGENCY
HAS UNDER SECTION 3389 OF THE CALIFORNIA CIVIL CODE TO SPECIFICALLY
ENFORCE THIS AGREEMENT PRIOR TO THE CLOSING. THE AGENCY AND THE
OWNER ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND
UNDERSTANDS THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE
BOUND BY ITS TERMS.
Initials of Owner
Initials of Agency
3.29 Damase Destruction and Condemnation.
(a) Prior to the Agency's delivery of possession of the Agency Sale Property
to Owner at the Closing, the risk ofloss or damage to the Agency Sale Property remains upon the
Agency. If the Agency Sale Property suffer damage as a result of any casualty prior to the Closing
that materially diminishes the value of the Agency Sale Property, then the Agency shall deliver
written notice of such fact to the Owner promptly after the occurrence of the casualty. The Owner
shall have the right, within thirty (30) days following its receipt of such notice, to cancel the
Escrow by written notice to the Agency and Escrow Holder, in which case the provisions of
Section 3 lO(c), above, shall apply. For the purposes hereof, the initiation of condemnation
proceedings by the City, the Agency or the IVDA, to acquire the Agency Sale Property, and
thereafter the demolition of the structures thereon by the Agency as provided in Section ~ shall
not be deemed to be occurrences of a casualty, or to materially diminish the value of the Agency
Sale Property,
(b) Prior to the Owner's delivery of possession of the Owner Sale Property to
Agency at the Closing, the risk ofloss or damage to the Owner Sale Property remains upon the
Owner. If the Owner Sale Property suffer damage as a result of any casualty prior to the Closing
that materially diminishes the value of the Owner Sale Property, then the Owner shall delivery
written notice of such fact to the Agency promptly after the occurrence of the casualty. The
Agency shall have the right, within thirty (30) days following its receipt of such notice, to cancel
SB200L20830,2
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the Escrow by written notice to the Owner and Escrow Holder, in which case the provisions of
Section 3 to( <;). above, shall apply.
( c) If, prior to the Closing, any governmental entity (other than the City, the
Agency or the IVDA) commences eminent domain or similar type proceedings to take any portion
of the Agency Sale Property, the Agency shall promptly deliver written notice of such fact to the
Owner. The Owner shall have the right, within thirty (30) days following its receipt of such
notice, to cancel the Escrow, in which case the provisions of Section 3 IO(l:), above, shall apply.
In the event that this Agreement is not terminated pursuant to the provisions of the preceding
sentence, the Owner agrees to accept the Agency Sale Property subject to the taking, in which
event the Agency shall deliver to the Owner at the Closing an assignment of all of the Agency's
right, title and interest in and to any award that has been paid or may be payable to the Agency on
account of such taking, together with any other documents reasonably requested by the Owner
to further evidence the vesting of such award in the Owner. The Agency agrees that it will not
settle or compromise the proceedings before the Closing without the Owner's prior written
consent, which consent shall not be unreasonably withheld or delayed,
(d) If, prior to the Closing, any governmental entity commences eminent
domain or similar type proceedings to take any portion of the Owner Sale Property, the Owner
shall promptly deliver written notice of such fact to the Agency. The Agency shall have the right,
within thirty (30) days following its receipt of such notice, to cancel the Escrow, in which case the
provisions of Section 3 10(l:) above, shall apply. In the event that this Agreement is not
tenninated pursuant to the provisions of the preceding sentence, the Agency agrees to accept the
Owner Sale Property subject to the taking, in which event the Owner shall deliver to the Agency
at the Closing an assignment of all of the Owner's right, title and interest in and to any award that
has been paid or may be payable to the Owner on account of such taking, together with any other
documents reasonably requested by the Agency to further evidence the vesting of such award in
the Agency, The Owner agrees that it will not settle or compromise the proceedings before the
Closing without the Agency's prior written consent, which consent shall not be unreasonably
withheld or delayed.
3.30 Demolition of Agency Sale Property Im.vrovements. Prior to the Closing, the
Agency shall, at its sole cost and expense and in compliance with all applicable Environmental
Laws, demolish and remove all existing improvements and utility lines (collectively, the "Existing
Agency Improvements") on and under the Agency Sale Property (the "Agenqy Demolition
Will:k"). The Agency acknowledges that the Existing Agency Improvements include asbestos-
containing materials ("ACM;") and lead-based paint ("Lll.f"). The Agency shall be solely
responsible, at no cost to the Owner, for abating and transporting such ACM and LBP-containing
demolition wastes for disposal offsite at a lawful waste disposal facility in the manner required by
Law. The Agency acknowledges that the Owner assumes no liability for damages for personal
injwy, illness, disability or death to any agent, employee or contractor of the Agency or any other
person, including members of the general public, arising from or incident to the use, abatement,
handling, removal, transportation or disposal of any ACM or LBP from or in any of the Existing
Agency Improvements or the Agency Sale Property.
SB2001:20830.2
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3.31 Agreement with HUB Developer, In order to carry out the Development and
operate the New Restaurant, the Owner requires the HUB Developer to provide the Owner with
certain rights relating to the Phase 1A HUB Site. The Owner shall execute and acknowledge, in
accordance with this Agreement, an easement and covenant agreement (the "HUB Agreement"),
in form and substance satisfactory to the Owner and the HUB Developer, in the sole and absolute
discretion of each of them, pursuant to which, among other things, (a) the HUB Developer grants
easements to the Owner for (i) the construction and maintenance of the Improvements,
(ii) pedestrian and vehicular access across the Phase 1A HUB Site to the Development Site and
(iii) other matters of mutual interest to the Owner and the HUB Developer.
3.32 Waiver of Other Payments by Owner. Upon the Closing, the Owner expressly
waives any and all claims, rights, title and interests ofthe Owner in any amount of compensation
that the Owner might claim to be payable by the Agency, the City or the IVDA to the Owner
under the provisions of California Govenunent Code Section 7260~, (relocation benefits, loss
of goodwill and the like) with respect to the Owner Sale Property. The Closing in accordance
with the terms and conditions of this Agreement fully satisfies all claims of the Owner relating to
the acquisition of the Owner Sale Property by the Agency,
3.33 Minor Corrections of Legal Description Attached As Exhibits, The legal
description of the Agency Sale Property and the Phase IA HUB Site shall be subject to technical
and conforming corrections so as to conform to the final public street right-of-way limits
established under the Harriman Construction Agreement. To the extent that the legal description
of the Agency Sale Property may otherwise be in conflict with any legal description attached to
the HUB DDA, the Owner and the Agency agree to make such technical and conforming
modifications to the legal description of the Agency Sale Property so as to conform to such HUB
DDA legal description, and to the extent applicable, any increase or decrease in the land area
included in the Agency Sale Property shall result in a corresponding adjustment to the Agency
Purchase Price payable by the Owner to the Agency.
3.34, Owner and Agency COQperation With Development Proiect Permit Applications
for Phase 1 A HUB PrQject. The Owner and the Agency hereby covenant and agree to cooperate
in the joint execution of development project permit applications relating to the Phase 1A HUB
Project, as may be deemed by the City to be necessary or convenient in connection with the
submission by the HUB Developer of one or more development project permit applications to the
City. The Agency hereby covenants to exercise best efforts to cause the HUB Developer to
cooperate in the joint execution of development project permit applications relating to the Land
\, Use Applications, as may be deemed by the City to be necessary or convenient in connection with
the submission by the Owner of the applications for the Land Use Applications,
ARTICLE 4
REDEVELOPMENT OF THE DEVELOPMENT SITE
4.1 The Deve10'pment.
SB200t:20830.2 33
(a) The Owner shall pay all costs associated with the design, construction and
improvement and furnishing of the Development Site with the Improvements for use and operation
of the New Restaurant by the Owner. The Agency shall have no responSIbility for paying or
contributing for any such costs. Following the Closing, the Development Site shall be developed
with the New Restaurant and the Improvements in accordance with the "Scope of Development"
attached hereto as Exlnbit "K" (the "Scope ofDeve1o.pment"). The Improvements that comprise
the Development are described in the Scope of Development,
(b) The Development Code and the City's building requirements will be
applicable to the development and the use of the Development Site. Nothing contained in this
Agreement shall limit in any way the City's discretion to approve or disapprove any Land Use
Approval necessary for the construction or operation of the Improvements,
(c) The Scope of0eve10pment shall be deemed approved by the Agency upon
its execution of this Agreement. The Improvements shall be developed and completed in
conformance with the approved Scope of Development, except for changes mutually agreed upon
in writing by the Owner and the Agency.
(d) The approval ofthe Scope of Development by the Agency is not binding
upon the City Council or the Planning Commission of the City with respect to any Land Use
Approvals required for the Development.
(e) Except as otherwise provided in this Agreement, with respect to the
Harriman Improvement Project and the availability of utility improvementS to the Development
Site as set forth in Section 3.22{lj), and the credits as may be authorized by the City under Section
3 22(sl), the cost of planning, designing and constructing the Improvements will be borne entirely
by the Owner.
(f) The Owner shall pay any and all fees and exactions pertaining to the Land
Use Approvals required for the Development (collectively, the "New Restaurant Fees"), subject
to the provisions of Section 3 22( d), above.
(g) The Owner shall have no responsibility whatsoever for the plan, design,
approval or construction of any off site public improvements required by the City with respect to
the use of the Development Site, including without limitation the Haniman Place Improvement
Project.
(h) As set forth in the Schedule of Performance, the Owner shall commence
construction of the Improvements no later than January 1, 2003, or within thirty (30) days of the
Closing, whichever date may later occur, subject to the provisions of Section L2, below, As set
forth in the Schedule of Performance, the Owner shall substantially complete the Improvements
within 180 days following the commencement of construction, subject to the provisions of
Section 1.2, below. The Schedule of Performance is subject to revision from time to time as
mutually agreed upon in writing by and between the Owner and the Agency,
SB2001:Z0830.2
34
(i) Prior to the commencement of any construction of the Improvements, the
Owner shall furnish, or cause to be furnished, to the Agency duplicate originals or appropriate
certificates of comprehensive genera1liability insurance in the amount of One Million Dollars
($1,000,000) combined single limit, naming the Agency and the City as additional insureds, which
shall include the following coverages: contractual liability; acts of subcontractors; premises-
operations; broadform property damage; and personal injury including libel, slander and false
arrest. In addition, the Owner must provide to the Agency adequate proof of comprehensive
automobile liability insurance covering owned, non-owned and hired vehicles, combined single
limit in the amount of One Million Dollars ($1,000,000) each occurrence and proof of workers'
compensation insurance. Any and all insurance policies required hereunder must be obtained from
insurance companies admitted in the State of California and rated at least B+: XII in lksfi
Insurance Cmide. All insurance policies must provide that they may not be canceled unless the
Agency and the City receive written notice of cancellation at least ten (10) calendar days prior to
the effective date of cancellation. Any and all insurance obtained by the Owner hereunder will be
primaIy to any and all insurance that the Agency and/or City may otherwise carry, including self
insurance, which for all purposes of this Agreement will be separate and apart from the
requirements of this Agreement. Any insurance policies governing the Development Site as
obtained by the Agency will not be transferred from the Agency to the Owner. Any and all
insurance required hereunder shall be maintained and kept in force until the Agency issues the
Certificate of Completion in connection with the Development.
(j) The Owner for itself, its successors and assigns agrees that in the
construction of the Development, the Owner will not discriminate against any employee or
applicant for employment because of sex, marital status, race, color, religion, creed, national
origin, or ancestry,
(k) The Owner will cany out its construction of the Development in conformity
with all applicable Laws, including all applicable state labor standards and requirements,
(1) The officers, employees, agents and representatives of the Agency shall
have the right of reasonable access to the Development Site, without the payment of charges or
fees, during normal construction hours during the period of construction of the Improvements for
the purpose of verifying compliance by the Owner with the terms of this Agreement. The
Executive Director of the Agency shall provide to the Owner a list of such officers, employees,
agents or representatives prior to the entry of any such persons onto the Development Site. Any
and all officers, employees, agents or representatives of the Agency who enter the Development
Site pursuant to this Agreement must identifY themselves at the job site office upon their entrance
on to the Development Site and must be accompanied by a representative of the Owner while on
the Development Site. The Owner shall make a representative of the Owner available for this
purpose during normal construction hours upon not less than twenty-four (24) hours notice from
the Agency. The Agency hereby agrees to indemnify and defend the Owner and hold the Owner
harmless from and against any and all claims, demands, actions, losses, liabilities, obligations,
damages, costs and expenses (including without limitation reasonable attorneys' fees and court
costs, whether or not any action is filed or prosecuted) arising out of the entry by any officers,
employees, agents or representatives of the Agency onto the Development Site,
SB200t:20830,2
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4.2 License to 0ccQpy Owner Sale l.ands After Close of Escrow. The Agency hereby
grants to the Owner a temporary, exclusive license (the "Owner License") to occupy the Owner
Sale Property, for the purpose of operating the Existing Restaurant on the Existing Owner Site,
commencing upon the Oosing wrtil the earlier of (a) the City's issuance of a temporary certificate
of occupancy with respect to the Improvements or (b) the first anniversary of the date on which
the Owner commences construction of the Improvements whereupon, such license shall terminate
without further notice to the Owner. Upon the request of the Owner, the Executive Director may
extend the tenn of the Owner License in his or her sole and absolute discretion. Upon the
expiration of the Owner License, the Owner shall surrender the Owner Sale Property to the
Agency in its then existing condition. Notwithstanding anything to the contrary in this Section 1.2,
the Owner shall not be required to remove the Existing INO Sign from the Owner Sale Lands until
the termination date of the Owner License.
4.3 AssiifiI1lent and Transfer. This Agreement, the Development Site or any interest
in either may not be assigned or transferred by the Owner in any manner, including without
limitation a sale or transfer of equity in the Owner or any related entity, association or individual,
or a sale or transfer of assets or liabilities of the Owner or any related entity, association or
individual (a "Transfer"), without the express written consent of the Executive Director, which
consent shall not be unreasonably withheld or delayed. The limitation on Transfers set forth in the
preceding sentence shall only apply from the Closing Date until the issuance of the Certificate of
Completion. Notwithstanding anything to the contrary in this Section 4.3. the following Transfers
shall be pennitted without the prior written consent of the Executive Director:
(a) Any Transfer creating a Security Financing Instrument, which may include
any related collateral assigmnent or pledge of or security interest in the Owner's right, title and
interest in, to and under this Agreement.
(b) Any Transfer directly resulting from the foreclosure of a Security Financing
Instrument or the granting of a deed in lieu of foreclosure of a Security Financing Instrument,
( c) Any Transfer to a joint venture, general or limited partnership, limited
liability company, joint stock association or other entity in which the Owner holds at least a forty-
nine percent (49"10) interest;
(d) Any Transfer to a limited partnership the sole general partner of which is
the Owner or a corporation or other entity controlled by the Owner, In connection with any such
Transfer, the Owner shall, not less than thirty (30) days prior to such Transfer, submit to the
Agency, on a confidential basis, the proposed limited partnership agreement and any other
documents reasonably required by the Agency to detennine the compliance of such Transfer with
the requirements of this subsection.
(e) Any Transfer of a limited partnership interest in a limited partnership
occurring after a Transfer pennitted pursuant to subsection (c) or (d), above,
SB2001:20830,2
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(1) The granting of easements encumbering all or any portion of the Agency
Sale Property to facilitate the development or operation of the Property as contemplated in this
Agreement.
4.4 Certificate of Completion,
(a) Following the completion of construction of the Improvements, excluding
any normal and minor building "punchlist" items to be completed by the Owner (the "Punchlist
~"), and within five (5) business days following the written request of the Owner, the Agency
shall furnish the Owner with the Certificate of Completion,
(b) The Certificate of Completion is the Agency's conclusive determination of
the Owner's full and satisfactory completion of the Development in accordance with the terms and
conditions of this Agreement and the Owner's full and satisfactory performance of all of its
obligations under this Agreement, including without limitation compliance with the Schedule of
Performance and the Scope of Development. After the issuance of the Certificate of Completion,
any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the
Development Site shall not (because of such ownership, purchase, lease or acquisition) incur any
obligation or liability whatsoever under this Agreement, provided that such party shall be bound
by any covenants contained in the Agency Grant Deed. In addition, after the issuance of the
Certificate of Completion, neither the Agency nor any other Person shall have any rights, remedies
or controls with respect to the Agency Sale Property or any other portion of the Development Site
that it would otherwise have or be entitled to exercise under this Agreement as a result of an
Owner Default and the respective rights and obligations of the parties hereto with respect to the
Agency Sale Property shall be limited thereafter to those set forth in the Agency Grant Deed.
(c) The Certificate of Completion may be recorded in the Official Records,
(d) The Agency shall not unreasonably withhold the issuance of the Certificate
of Completion, If the Agency refuses or fails to furnish the Certificate of Completion after written
request from the Owner, the Agency shall, within five (5) business days of a written request,
provide the Owner with a written statement setting forth the reasons for the Agency's refusal or
failure to furnish the Certificate of Completion, The statement shall also contain the Agency's
opinion of the actions the Owner must take to obtain the Certificate of Completion from the
Agency. If the reason for such refusal is confined to the immediate unavailability of specific items
or materials for construction or landscaping at a price reasonably acceptable to the Owner or other
Punchlist Items that, in the reasonable judgment of the Agency, will not adversely affect the
occupancy of the Improvements, the Agency shall issue the Certificate of Completion upon the
posting of a bond or irrevocable letter of credit by the Owner in an amount the parties hereto
mutually and reasonably determine represents the fair market value of the work not yet completed
and otherwise in form and substance reasonably satisfactory to the Agency. If the Agency fails
to provide the written statement within the specified five (5)-business day period, the Owner shall
conclusively be deemed entitled to the Certificate of Completion and may enforce the Agency's
obligation to issue the same by specific performance.
SB2001:20830.2
37
(e) The Certificate of Completion shall not be evidence of compliance with City
codes and ordinances or satisfaction of any obligation of the Owner to any holder of a Security
Financing Instrument. The Certificate of Completion is not a notice of completion as referred to
in Section 3093 of the California Civil Code, nor will it act to terminate the continuing covenants
or conditions subsequent contained in the Agency Grant Deed.
4.5 Harriman Place Improvement Project.
( a) Subject to the Agency's confinnation that the City has obtained funds under
the Haniman Construction Agreement or otherwise made funds available for such public works
project prior to the end of the Agency Due Diligence Period, the Agency shall cause the Harriman
Place Improvement Project to be constructed and installed by October 1,2002.
(b) The Agency covenants to the Owner that the Agency shall not approve any
change to the new Harriman Place Extension right-of-way alignment that abuts the Agency Sale
Lands, or approve any material change to design elements of the Harriman Place Improvement
Project set forth in Exhibit "L". which may adversely and materially affect the interests of the
Owner under the HUB Agreement without the prior written approval of the Owner, which
approval shall not be unreasonably withheld.
(c) The Agency acknowledges and agrees that the Owner shall have no
responsibility whatsoever with respect to the construction and installation of, or payment for, any
portion or aspect of the Harriman Place Improvement Project; provided however, that all costs
of driveway entrances, curb returns and on-site drainage structures and the like which may
encroach into Harriman Place and/or Tippecanoe Avenue, and which may be imposed by the City
on the Owner as conditions of the issuance of Land Use Approvals to accommodate access from
the Development to abutting public streets shall be the responsibility of the Owner.
ARTICLE 5
USE OF THE SITE
5.1 ~. The Owner covenants and agrees that the Development Site shall be
improved and developed in accordance with the Scope of Development. The covenant in this
Section II shall remain in effect until the earlier of the date on which the Certificate of
Completion is issued or the fifth (5th) anniversary ofthe date of recordation of the Agency Grant
Deed,
5.2 Maintenance of the Development Site. The Owner covenants and agrees to
maintain the Development Site in a good condition during the construction of the Improvements
free from any accumulation of debris or waste material, subject to normal construction job-site
conditions. If the Owner fails to perform the maintenance required by this Agreement, the Agency
shall notify the Owner in writing of such failure and the Owner shall thereafter have a period of
thirty (30) days from receipt of such notice to cure such failure. If the Owner fails to cure or
recondition within the specified time, the Agency shall have the right, but not the obligation, to
SB2001:20830,2
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enter the Development Site and undertake any maintenance activities reasonably determined to be
necessary by the Agency. The Owner shall reimburse the Agency for all reasonable costs incurred
by the Agency to cany out such maintenance activities within ten (10) business days following the
Agency's written demand, together with reasonable supporting documentation regarding such
costs. The covenants contained in this Section ~ shall remain in effect until the issuance of the
Certificate of Completion.
5.3 Form of Nondiscrimination and Nonsejp"ellation Clauses. All deeds, leases or
contracts pertaining to the Agency Sale Property must contain or be subject to substantially the
following nondiscrimination and nonsegregation clauses:
(a) In deeds: "The grantee covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of any person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin or ancestry, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the property herein conveyed, nor shall the grantee or any
person claiming under or through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sub1essees or vendees in the property herein conveyed. The
foregoing covenants shall run with the land,"
(b) In Jp"'"",,: "The lessee herein covenants by and for itself, its successors and
assigns, and all persons claiming under or through them, and this lease is made and accepted upon
and subject to the following conditions: That there shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed, religion, sex,
marital status, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the property herein leased nor shall the lessee itself, or any person claiming
under or through the lessee, establish or pennit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, sub1essees, subtenants or vendees in the property herein leased. "
( c) In contracts: "There shall be no discrimination against or segregation of
any person or group of persons, on account of race, color, creed, religion, sex, marital status,
national origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the property, nor shall the transferee or any person claiming under or through the
transferee, establish or pennit any such practice or practices of discrimination or segregation with
, reference to the selection, location, number, use or occupancy of tenants, lessees, sub1essees,
subtenants, or vendees of the property."
5,4 Environmental Indemnities Re Allency Sale Pro.l)erty,
(a) Agency Indemnity. Without limiting the generality of the indemnification
in the Agency's favor set forth in Section 7 9(a), below, the Owner hereby agrees to indemnify,
protect, hold hannless and defend (by counsel reasonably satisfactory to the Agency) the Agency
Parties from and against any and all Loss, arising directly or indirectly, in whole or in part, out of
(i) the failure of any Owner Party to comply with any Environmental Law relating in any way
SB200 1 020830,2
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whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup,
transportation or disposal of Hazardous Substances into, on, under or from the Agency Sale
Property, (ii) the presence in, on or under the Agency Sale Property of any Hazardous Substances
or any releases or discharges of any Hazardous Substances into, on, under or from the Agency
Sale Property, or (ill) the migration of any Hazardous Substances into, onto or under the Agency
Sale Property from offsite sources, other than real property or improvements owned by the
Agency, the City or the HUB Developer, in each case sub5eQllent to the recordation of the Agency
Grant Deed, The foregoing indemnity shall further apply to any residual contamination on or
under the Agency Sale Property affecting any natural resources and to any contamination of any
property or natural resources arising in connection with the generation, use, handling, treatment,
storage, transport or disposal of any such Hazardous Substances, and irrespective of whether any
of such activities were or will be undertaken in accordance with Environmental Laws. This
indemnification of the Agency Parties by the Owner includes, without limitation, costs incurred
with respect to any investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or political
subdivision because of Hazardous Substances present or alleged to be present in the soil or
groundwater in, or under the Agency Sale Property subsequent to the recordation of the Agency
Grant Deed, The indemnity descnbed in the preceding two sentences shall not apply with respect
to any Hazardous Substances located in, on or under the Agency Sale Property or the Existing
Agency Improvements p,tiQr to the recordation of the Agency Grant Deed, This subsection (a)
shall survive the expiration or earlier termination of this Agreement.
(b) Owner Indemnity, Without limiting the generality of the indemnification
in the Owner's favor set forth in Section 7 9(1:1). below, the Agency hereby agrees to indemnify,
protect, hold harmless and defend (by counsel reasonably satisfactory to the Agency) the Owner
Parties from and against any and all Loss arising directly or indirectly, in whole or in part, out of
(i) the failure of any Agency Party to comply with any Environmental Law relating in any way
whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup,
transportation or disposal of Hazardous Substances into, on, under or from the Agency Sale
Property, (ii) the presence in, on or under the Agency Sale Property of any Hazardous Substances
or any releases or discharges of any Hazardous Substances into, on, under or from the Agency
Sale Property, or (ill) the migration of any Hazardous Substances into, onto or under the Agency
Sale Property from off site sources, in each case p,tiQr to the recordation of the Agency Grant
Deed. The foregoing indemnity shall further apply to any residual contamination in, on or under
the Agency Sale Property affecting any natural resources and to any contamination of any property
or natural resources arising in connection with the generation, use, handling, treatment, storage,
transport or disposal of any such Hazardous Substances, and irrespective of whether any of such
activities were or will be undertaken in accordance with Environmental Laws. This
indemnification of the Owner Parties by the Agency includes, without limitation, costs incurred
with respect to any investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or political
subdivision because of Hazardous Substances present or alleged to be present in the soil or
groundwater in, on or under the Agency Sale Property priQr to the recordation of the Agency
Grant Deed. The indemnity descnbed in the preceding two sentences shall not apply with respect
to any Hazardous Substances first located in, on or under the Agency Sale Property subseqJlent
8B2ool:20830.2
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to the recordation of the Agency Grant Deed. This subsection (b) shall survive the expiration or
earlier termination of this Agreement.
5.5 Environmental Indemnities and Covenants Re Owner Sale Property.
(a) AiffiCY Indemnity, Without limiting the generality of the indemnification
in the Agency's favor set forth in Section UW, below, the Owner hereby agrees to indemnify,
protect, hold harmless and defend (by counsel reasonably satisfactory to the Agency) the Agency
Parties from and against any and all Loss, arising directly or indirectly, in whole or in part, out of
(i) the failure of any Owner Party to comply with any Environmental Law relating in any way
whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup,
transportation or disposal of Hazardous Substances into, on, under or from the Owner Sale
Property, (ii) the presence in, on or under the Owner Sale Property of any Hazardous Substances
or any releases or discharges of any Hazardous Substances into, on, under or from the Owner Sale
Property, or (Iii) the migration of any Hazardous Substances into, onto or under the Owner Sale
Property from off site sources, other than real property or improvements owned by the Agency,
the City or the HUB Developer, in each case prim: to the recordation of the Owner Grant Deed,
The foregoing indemnity shall further apply to any residual contamination on or under the Owner
Sale Property affecting any natural resources and to any contamination of any property or natural
resources arising in connection with the generation, use, handling, treatment, storage, transport
or disposal of any such Hazardous Substances, and irrespective of whether any of such activities
were or will be undertaken in accordance with Environmental Laws. This indemnification of the
Agency Parties by the Owner includes, without limitation, costs incurred with respect to any
investigation of site conditions or any cleanup, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision because of Hazardous
Substances present or alleged to be present in the soil or groundwater in, or under the Owner Sale
Property priQr to the recordation of the Owner Grant Deed, The indemnity described in the
preceding two sentences shall not apply with respect to any Hazardous Substances first located
in, on or under the Owner Sale Property or the Existing Agency Improvements subseqpent to the
tennination of the Owner License. This subsection (a) shall survive the expiration or earlier
termination of this Agreement.
(b) Owner Indemnity. Without limiting the generality of the indemnification
in the Owner's favor set forth in Section 7 9(b). below, the Agency hereby agrees to indemnify,
protect, hold harmless and defend (by counsel reasonably satisfactory to the Agency) the Owner
Parties from and against any and all Loss arising directly or indirectly, in whole or in part, out of
(i) the failure of any Agency Party to comply with any Environmental Law relating in any way
whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup,
transportation or disposal of Hazardous Substances into, on, under or from the Owner Sale
Property, (ii) the presence in, on or under the Owner Sale Property of any Hazardous Substances
or any releases or discharges of any Hazardous Substances into, on, under or from the Owner Sale
Property, or (iii) the migration of any Hazardous Substances into, onto or under the Owner Sale
Property from off site sources, in each case subseqpent to the recordation of the Owner Grant
Deed. The foregoing indemnity shall further apply to any residual contamination in, on or under
the Owner Sale Property affecting any natural resources and to any contamination of any property
or natural resources arising in connection with the generation, use, handling, treatment, storage,
SB2001:20830,2
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transport or disposal of any such Hazardous Substances, and irrespective of whether any of such
activities were or will be undertaken in accordance with Environmental Laws. This
indemnification of the Owner Parties by the Agency includes, without limitation, costs incurred
with respect to any investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or political
subdivision because of Hazardous Substances present or alleged to be present in the soil or
groundwater in, on or under the Owner Sale Property subseqJ1ent to the recordation of the Owner
Grant Deed. The indemnity descn"bed in the preceding two sentences shall not apply with respect
to any Hazardous Substances located in, on or under the Owner Sale Property _ to the
termination of the Owner License. This subsection (b) shall survive the expiration or earlier
tennination of this Agreement.
ARTICLE 6
DEFAULTS. REMEDIES AND TERMINATION
6.1 General Applicability,
The provisions of this Article ~ shall govern the Agency's and the Owner's remedies for
breach or default of the Agreement.
6.2 Default of the Allency.
(a) The failure or delay by the Agency to perform any term or provision of this
Agreement, including without limitation the Agency's failure to convey the Agency Sale Property
to the Owner, or accept title to the Owner Sale Property under a tender of conveyance by the
Owner, within the time and in the manner established therefor in this Agreement shall constitute
a default under this Agreement ("Agency Default").
(b) The Owner sha1I give written notice of any Agency Default to the Agency
specifying the Agency Default ("Notice of Default"), Upon receipt ofa Notice of Default, the
Agency shall have thirty (30) days ("Cure Period") to cure, or cause the cure, as applicable, of the
Agency Defauh; provided, however, that if any non-monetary Agency Default is not reasonably
susceptible of cure within such thirty (30)-day period, then provided that the Agency commences
to cure, such Agency Default promptly upon receipt of the Notice of Default and thereafter
diligently and continuously prosecutes such cure to completion, the Cure Period shall be extended
by the amount of time reasonably necessary to cure such Agency Default, provided that in no
event shall the Cure Period exceed ninety (90) days. Notwithstanding anything to the contrary in
this Section U the occurrence of a Bankruptcy/Disso1ution Event with respect to the Agency
shall constitute an Agency Default and there shall be no Cure Period applicable thereto.
(c) The failure or delay in giving such notice shall not constitute a waiver of
any Agency Default, nor shall it change the time of such Agency Default. No failure or delay by
the Owner in asserting any of its rights or remedies as to any Agency Default shall operate as a
waiver of any such rights or remedies or deprive the Owner of its rights to institute and maintain
SB2001 :20830,2
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any action or proceedings which it may deem necessary to protect, assert or enforce any such
rights or remedies.
(d) In the event that an Agency Default is not cured within the applicable Cure
Period, or immediately following an Agency Default for which no Cure Period is provided in this
Section U the Owner shall have the right, at its option, to exercise any and all of its rights and
remedies at law, in equity, or otherwise, including without limitation the right to (i) cancel the
Escrow and terminate this Agreement by written notice to the Agency and Escrow Holder
pursuant to Section 3 1O(b). above, (Ii) institute legal action for specific performance, the recovery
of damages and/or to cure, correct or remedy the applicable Agency Default, and/or (iii) except
as otherwise expressly provided in this Agreement, to obtain any other remedy consistent with the
purpose of this Agreement.
6.3 Default of the Owner,
(a) Each of the following events shall constitute a default by the Owner under
this Agreement ("Owner Default"):
(i) The Owner is obligated to, but does not, convey the Owner Sale
Property to the Agency or accept title to the Agency Sale Property under a tender of
conveyance by the Agency pursuant to this Agreement, provided that all conditions
precedent to the Owner's conveyance of the Owner Sale Property and acceptance of the
Agency Sale Property at the Closing have been satisfied, including without limitation the
Owner's Conditions;
(ii) The Owner fails to commence construction of all or any portion of
the Improvements within the period of time set forth in Section 4.l(h), subject to the
provisions of Section 12, below;
(iii) The Owner abandons or suspends construction of the Improvements
prior to completion of such construction for a period of sixty (60) consecutive days after
written notice by the Agency of such abandonment or suspension, except for the Punchlist
Items, and subject to the provisions of Section 7 5, below;
(iv) The Owner fails to complete the construction of the Improvements
within 180 days following the commencement of such Improvements, except for the
Punchlist Items, and subject to the provisions of Section 1.2, below;
(v) A Transfer occurs either voluntarily or involuntarily in violation of
Section U, above; or
(vi) The Owner breaches any other material provision of this
Agreement.
(b) The Agency shall give a Notice of Default to the Owner of any Owner
Default and specifYing the Owner Default. Upon receipt ofa Notice ofDefauh, the Owner shall
SB2001:20830,2
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have a Cure Period of thirty (30) days to cure the applicable Owner Default; provided, however,
that if any non-monetary Owner Default is not reasonably susceptible of cure within such thirty
(30)-day period, then provided that the Owner commences to cure such Owner Default promptly
upon receipt of the Notice of Default and thtl\"eafter diligently and continuously prosecutes such
cure to completion, the Cure Period shall be extended by the amount of time reasonably necessary
to cure such Owner Default, but in no event shall the Cure Period exceed ninety (90) days,
Notwithstanding anything to the contrary in this Section Q.1, the occurrence of a
Bankruptcy/Disso1ution Event with respect to the Owner shall constitute an Agency Default and
there shall be no Cure Period applicable thereto,
(c) The failure or delay in giving such notice shall not constitute a waiver of
any Owner Default, nor shall it change the time of such Owner Default. No failure or delay by the
Agency in asserting any of its rights or remedies as to any Owner Default shall operate as a waiver
of any such rights or remedies or deprive the Agency of its rights to institute and maintain any
action or proceedings which it may deem necessary to protect, assert or enforce any such rights
or remedies,
(d) In the event that a Owner Default is not cured within the applicable Cure
Period, or immediately following a Owner Default for which no Cure Period is provided in this
Section Q.1, the Agency shall have the right, at its option, to exercise any and all of its rights and
remedies at law or in equity, including without limitation the right to (i) cancel the Escrow and
terminate this Agreement by written notice to the Owner and Escrow Holder pursuant to
Section 3 10(a), above, (ii) institute legal action for specific performance, the recovery of damages
and/or to cure, correct or remedy the applicable Owner Default, or (ill) except as otherwise
expressly provided in this Agreement, to obtain any other remedy consistent with the purpose of
this Agreement.
6.4 A~ce of Service of Process, In the event that any legal action is commenced
by the Owner against the Agency, service of process on the Agency shall be made by personal
service upon the Chairman, Executive Director or Secretary of the Agency, or in such other
manner as may be provided by law, In the event that any legal action is commenced by the Agency
against the Owner, service of process on the Owner shall be made by personal service upon one
of the officers of Owner or in such other manner as may be provided by law.
6.5 Riihts and Remedies are Cumulative. Except with respect to the rights and
remedies expressly declared to be exclusive in Sections W and ~ above, regarding an Agency
Defauh or Owner Default that occurs prior to the Closing, the rights and remedies of the parties
set forth in this Article Q are cumulative and the exercise by either Party of one or more of such
rights or remedies does not preclude the exercise by it, at the same or different times, of any other
rights or remedies for the same default or any other default by the other Party,
6.6 Limitations on Remedies Prior to C10siDi. Prior to the Closing, the remedies of
the Parties shall be limited in the manner set forth in Sections 1.21 and ~, above.
SB200 1 :20830.2
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.6,7 RiiPIt to Reenter RllPossess and Revest.
(a) In the event that, following the Closing and prior to the issuance of the
Certificate of Completion, the Agency validly terminates this Agreement following an Owner
Defauh described in subsections (ii), (ill), (iv) or (v) of Section 6 3(a). above, then upon thirty (30)
calendar days notice to the Owner referencing this Section Q.1, the Agency shall have the right to
reenter and take possession of all or any portion of the Agency Sale Property; together with all
Improvements located thereon, and to terminate and revest in the Agency the estate of the Owner
in the Agency Sale Property,
(b) Any rights of the Agency under this Section Q.1 shall be subject to and
limited by, and shall not defeat, render invalid or limit (i) any Security Financing Instrument
permitted by this Agreement, (ii) any rights or interests provided in this Agreement for the
protection of the holders of such Security Financing Instruments, or (ill) any leases, declarations
of covenants, conditions and restrictions, easement agreements or other recorded documents
applicable to the Agency Sale Property or any other portion of the Development Site.
(c) Upon the revesting in the Agency of title to the Agency Sale Property or
any portion thereof in accordance with this Section 6 7, the Agency shall promptly offer such
Agency Sale Property to the HUB Developer for transfer consistent with the HUB Agreement
and/or use its best efforts to resell the Agency Sale Property or the applicable portion thereof
consistent with its obligations under State law. Upon such sale, the proceeds shall be applied as
follows:
(i) First, to reimburse the Agency for any costs it incurs in managing
or selling the applicable portion of the Agency Sale Property (after exercising its right of
reverter), including without limitation amounts to discharge or prevent liens or
encumbrances arising from any acts or omissions of the Owner with respect to the
construction of the Improvements prior to the termination of this Agreement;
(ii) Second, to reimburse the Agency for damages to which it is entitled
under this Agreement by reason of the applicable Owner Default, as determined by a court
of competent jurisdiction;
(ill) Third, to the sum of: (A) the Owner Purchase Price (or the
prorated portion thereof) paid by the Owner for the Agency Sale Property; and (B) the
.' costs incurred by the Owner in connection with the Development of the Development Site,
including, but not limited to, the cost of the Improvements thereon at the time of reentry
and repossession, costs of carry, taxes and insurance, provided that the Owner delivers to
the Agency reasonably satisfactory evidence of such costs; and
(iv) Fourth, any balance remaining after the foregoing application of
proceeds shall be retained by the Agency.
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ARTICLE 7
GENERAL PROVISIONS
7.1 Notices. Demands and Communications Between the Parties.
(a) Any and all notices, demands or communications between the Agency and
the Owner pursuant to or as required by this Agreement shall be sufficiently given if, and shall not
be deemed given unless, in writing and delivered personally, delivered by courier or by registered
or certified United States mail, postage prepaid, return receipt requested, to the following
addresses:
If to Owner:
with a copy to:
If to Agency:
with a copy to:
In-N-Out Burgers
Real Estate Department
13502 Hamburger Lane
Baldwin Park, California 91706-5885
Attention: Real Estate Finance Manager
Fax No,: (626) 338-9173
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
Attention: Jack H. Rubens, Esq.
Fax No,: (213)620-1398
Redevelopment Agency of the City
of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attention: Executive Director
Fax No.: (909) 888-9413
Lewis, D'Amato, Brisbois & Bisgaard, LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Attention: Timothy 1. Sabo, Esq,
Fax No.: (909) 387-1138
Any notice, demand or communication shall be deemed given, received, made or communicated
on the date personal delivery is effected or, if mailed or sent by courier in the manner specified
above, on the delivery date or date delivery is refused by the addressee, as shown on the return
receipt. Notices may also be sent by facsimile, which shaI1 be deemed delivered upon actual
receipt (except ifa facsimile is sent on a non-business day or after 5:00 p.m, on a business day, in
which case the facsimile shaI1 be deemed delivered on the next business day), and receipt shaI1 be
telephonically confirmed by the sending party. Addresses, facsimile numbers and parties for notice
SB200U0830.2
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may be changed from time to time by written notice to all other parties in accordance with this
Section 7,1.
7.2 Conflict of Interest. No member, official or employee of the Agency having any
conflict of interest, direct or indirect, related to this Agreement or the development of the
Development Site may participate in any decision relating to this Agreement, Each Party
represents and warrants that it does not know of any such conflict of interest.
7.3 Warranty Against Payment of Consideration for AWeement. Each Party represents
and warrants that it has not paid or given, and will not payor give, any third party any money or
other consideration for obtaining this Agreement. Third parties, for the purposes of this Section,
shall not include persons to whom fees are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the like when such fees are considered
necessary by the Owner or the Agency, as applicable.
7.4 Nnnliahility of Aieru;y Officials and EtIlP10yees, No member, official or employee
of the Agency shall be personally liable to the Owner, or any successor in interest, in the event of
any Agency Defauh or for any amount that may become due to the Owner or to its successor, or
with respect to any obligations of the Agency under the terms of this Agreement, except for the
gross negligence or willful misconduct of such member, officer or employee,
7.5 Forced Delay' Extension of Time of Performance. In addition to the specific
provisions of this Agreement, performance by either Party hereunder shall not be deemed to be
in default, or considered to be in default, where delays or defaults are due to the following: war;
insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the
public enemy; epidemics; quarantine restrictions; freight embargoes or lack of transportation;
governmental restrictions or priority; litigation (including lawsuits filed by third parties concerning
or arising out of this Agreement); weather or soils conditions that necessitate delay; inability to
secure necessary labor, materials or tools; delays of any contractors, subcontractor or supplier that
are not attnbutab1e to the fault of the Party claiming an extension of time; acts or failure to act of
any public or governmental entity (provided that acts or failure to act of the City or Agency shall
not extend the time for the Agency to act under this Agreement except for delays associated with
injunctions or court orders including, without limitation, lawsuits pertaining to the approval of this
Agreement); acts of the other Party; or any other causes (other than the Owners inability to obtain
financing for the Improvements) beyond the reasonable control or without the fault of the Party
claiming an extension of time to perform. An extension of time for any such force majeure cause
will be for the period of the delay and shall commence on the date of occurrence of the delay. An
extension of time for any such cause shall be deemed granted if written notice by the Party
claiming such extension is sent to the other within ten (10) business days from the date the Party
seeking the extension first discovered the cause, Times of performance under this Agreement may
also be extended in writing by the mutual agreement of the Agency and the Owner.
The inability of the Owner to obtain a satisfactOlY commitment from a construction
lender for construction of the Improvements shall not be a force majeure event or other ground
fur the assertion of the existence of a delay under this Section U. Changes in general economic
conditions that may have provided a basis for entering into this Agreement and that occur after
sB200t:20830.2
47
the execution of this Agreement shall not be force majeure events and shall not provide any Party
with grounds for asserting the existence of a delay in the performance of any covenant or
undertaking arising under this Agreement. Each party expressly assumes the risk that changes in
general economic conditions could impose an inconvenience or hardship on the continued
performance of such Party under this Agreement, but that such inconvenience or hardship is not
a force majeure event and does not excuse the performance by such Party of its obligations under
this Agreement.
7,6 ~ection of Books and Records. The Agency shall have the right, at reasonable
times, on a confidential basis, and at its sole cost and expense, to inspect the books and records
of the Owner pertaining to the Development as reasonably necessary, but only to the extent
reasonably necessary, for the Agency to enforce its rights under this Agreement. Matters
discovered by the Agency may not be disclosed to third parties unless required by law or unless
otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of
the Agency under this Agreement. The Owner shall also have the right, at reasonable times, on
a confidential basis, and at its sole cost and expense, to inspect the books and records of the
Agency pertaining to the Development and the Agency's obligations under this Agreement.
7.7 Ap.provals.
(a) Approvals required from the Agency or the Owner, or any governing
bodies, officers, agents or employees of either the Agency or the Owner, may not be unreasonably
withheld and approval or disapproval must be given within the applicable time period set forth in
the Schedule of Performance or elsewhere in this Agreement or, if no time is given, within a
reasonable time,
(b) The Executive Director of the Agency is authorized to sign, on his or her
own authority, the Certificate of Completion and amendments to this Agreement that are of
routine or technical nature, including, but not limited to, minor adjustments to the Schedule of
Performance, extensions of time to perform obligations under this Agreement, escrow instructions,
and any other documents necessary to carry out the terms of this Agreement.
7,8 Rp.al Estate Commissions. Neither Party shall be responsible to the other for any
real estate commissions or brokerage fees that may arise from this Agreement or otherwise be
incurred by the other Party. The Agency is not be liable for any real estate commissions,
brokerage fees or finder fees that may arise from or be related to this Agreement, The Owner
must pay any fees or commissions or other expenses related to its retention or employment of real
estate brokers, agents or other professionals,
7,9 Indemnities,
(a) The Owner shall defend, indemnifY and hold the Agency Parties free and
harmless from and against any and all Loss arising from or relating to (i) the Owner's ownership
and use of the Owner Sale Property prior to the Closing, (Ii) any untruth of the representations and
warranties made by the Owner in this Agreement and (Iii) any Owner Default. The indemnification
obligation set forth in the preceding sentence shall not apply to (A) any costs or expenses not
SB2001:20830.2
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reasonably incurred by the applicable Agency Party or (B) any Loss or portion thereof resulting
from the negligence or willful misconduct of any Agency Party. The Owner's obligations under
this Section 1.2W shall survive for a period of three (3) years following the issuance of the
Certificate of Completion.
(b) The Agency shall defend, indemnifY and hold the Owner Parties free and
hannless from and against any and all Loss arising from or relating to (i) the Agency's ownership
and use of the Agency Sale Property prior to the Closing, (ii) any untruth of the representations
and warranties made by the Agency in this Agreement and (iii) any Agency Default. The
indemnification obligation set forth in the preceding sentence shall not apply to (A) any costs or
expenses not reasonably incurred by the applicable Owner Party or (B) any Loss or portion thereof
resulting from the negligence or willful misconduct of any Owner Party. The Agency's obligations
under this Section 1.2(b) shall survive for a period of three (3) years following the issuance of the
Certificate of Completion,
7.10 Release of Owner from Liabi1~. Notwithstanding any provision of this Agreement
to the contrary, the Owner is relieved of any and all liability for the obligations of the Owner
regarding the Development Site when the Certificate of Completion is issued by the Agency under
this Agreement, other than any covenants and obligations provided by the Agency Grant Deed by
which the Agency Sale Property is conveyed to the Owner.
7.11 Attorneys' Fees. If either party to this Agreement files any action or brings any
action or proceeding against the other arising out of this Agreement, or is made a party to any
action or proceeding brought by Escrow Holder, then as between the Owner and the Agency, the
prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages,
its reasonable attorneys' fees and costs as determined by the court in such action or proceeding or
in a separate action or proceeding brought to recover such attorneys' fees in a court of competent
jurisdiction. The reasonable costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement are considered "attorneys' fees" for purposes of this Agreement.
7.12 Effi:g, This Agreement shall be binding upon and inure to the benefit of the parties
and their respective heirs, executors, administrators, legal representatives, successors and assigns.
7.13 Entire J\ireement. This Agreement is executed in four (4) duplicate originals, each
of which is deemed to be an original. This Agreement includes _ pages and _ Exhibits, which
constitute the entire understanding and agreement of the Parties. This Agreement integrates all
of the tenns and conditions mentioned herein or incidental hereto, and supersedes all negotiations
or previous agreements between the Parties with respect to all or any portion of the Development
Site and the Development thereof.
7,14 Provisions not MP.liM with Deeds. None of the terms, covenants, agreements or
conditions set forth in this Agreement is intended to or shall be merged with the Agency Grant
Deed or the Owner Grant Deed, and neither the Agency Grant Deed nor the Owner Grant Deed
shall be deemed to affect or impair the provisions and covenants of this Agreement.
SB200t:20830,2
49
7,15 Amendments and Waivers, All waivers of the provisions of this Agreement and
all amendments or modifications to this Agreement must be in writing and signed by the Agency
and the Owner.
7.16 Headinis. The paragraph headings and captions in this Agreement are for
convenience only and shall not limit or define the contents of this Agreement.
7,17 Govemins Law, This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
7,18 Severability, If any term, provision, covenant or condition of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall continue in full force and effect unless the rights and obligations of the Parties
have been materially altered or abridged by such invalidation, voiding or unenforceability.
7,19 Parties Not Co-Venturers. Nothing in this Agreement is intended to or does
establish the Parties as partners, co-venturers, or principal and agent with one another.
7.20 Time of the Essence, In all matters under this Agreement, time is of the essence.
7,21 AgenGY Approval, Except where approval by the Agency Board is expressly
described, all references in this Agreement to Agency approval shall mean approval by the Agency
Executive Director.
7,22 Identity and Authority of the Parties.
(a) The person executing this Agreement on behalf of the Owner does hereby
covenant, represent and warrant: that the Owner is and shall remain in good standing and qualified
to do business in the State of California; that the Owner has full right, power and authority to enter
into this Agreement and to carry out all actions on its part contemplated by this Agreement; that
the execution and delivery of this Agreement were duly authorized by proper action of the Owner
and no consent, authorization or approval of any person is necessary in connection with such
execution and delivery or to carry out all actions on the Owner's part contemplated by this
Agreement, except as have been obtained and are in full force and effect; that the person executing
this Agreement on behalf of the Owner has full corporate authority to do so; and that this
Agreement constitutes the valid, binding and enforceable obligation of the Owner.
(b) The person executing this Agreement on behalf of the Agency does hereby
covenant, represent and warrant: that the Agency is and shall remain in good standing and
qualified to do business in the State of California; that the Agency has full right, power and
authority to enter into this Agreement and to carry out all actions on its part contemplated by this
Agreement; that the execution and delivery of this Agreement were duly authorized by proper
action of the Agency and no consent, authorization or approval of any person is necessary in
connection with such execution and delivery or to carry out all actions on the Agency's part
contemplated by this Agreement, except as have been obtained and are in full force and effect; that
the person executing this Agreement on behalf of the Agency has full corporate authority to do
SB200I:20830,2
50
so; and that this Agreement constitutes the valid, binding and enforceable obligation of the
Agency,
7.23 Further A..Iln1n"""" From time to time following the Closing, each Party shall, if
requested by the other Party, make, execute and deliver to such other Party any such additional
deeds, assignments, bills of sale and other instruments, documents and agreements as may be
reasonably necessary or appropriate to confinn the transfer to such other Party of all right, title
and interest in and to the real property transferred to such other Party pursuant to the terms of this
Agreement, including any necessary consents to any such instruments and agreements by third
parties,
7.24 Memorandum of OPA. The Parties' rights and obligations pursuant to this
Agreement shall be set forth in the Memorandum of OPA, which shall be executed and
acknowledged by the Parties and recorded in the Official Records at the Closing.
7.25 Exlubits, All Exhibits attached hereto are incorporated herein by this reference and
made a part of this Agreement.
7,26 Time for A=:ptance of Agreement by Agenl(y. The acceptance of this Agreement
by the Agency is subject to an approving majority vote of its governing board upon the conclusion
of a public hearing, Subject to such acceptance by the governing board of the Agency the
authorized officers of the parties shall jointly execute this Agreement within ten (10) business days
after the date of a public hearing of the Agency approving its execution, or this Agreement may
be withdrawn by either party pursuant to written notice to the other party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
" Agency"
REDEVELOPMENT AGENCY OF
TIIE CITY OF SAN BERNARDINO,
a public body corporate and politic
,
,.
By
Gary Van Osde1,
Executive Director
APPROVED AS TO FORM:
Agency Special Counsel
SB2001;20830,2
51
"Owner"
IN-N-OUT BURGERS,
a California corporation
By
(Printed Name and Title)
882001:20830,2
52
EXlDBIT "A"
882001:20830,2
LEGAL DESCRIPTION OF THE DEVELOPMENT SITE
1
EXlllBIT "A-I"
DEPICTION OF ORVF.LOPMENT SITE
882001:20830,2
1
8B2oo1:20830.2
EXlllBIT liB"
LEGAL DESCRIPTION OF EXISTING OWNER SITE
1
EXHIBIT "B-1"
DEPICTION OF EXISTING OWNER SITE
.
.
8B2OO1:20830,2
1
8B2oo1:20830,2
EXlllBIT "C"
LEGAL DESCRIPTION OF OWNER SAT.F PROPERTY
1
EXlllBIT "C-1"
DEPICTION OF OWNER SAT ,E PARCEL
8B2001,20830.2
1
881001:20830,2
EXlllBIT "D"
LEGAL DESCRIPTION OF AGENCY SAT ,1<. PARCEL
1
EXHIBIT "D-1"
DEPICTION OF AGENCY SAI.R PARCEL
SB2001:20830.2
1
SB200t:20830.2
EXHIBIT "E"
LEGAL DESCRIPTION OF PHASE lA HUB SITE
I
EXIllBIT "E-1"
DEPICTION OF PHASE 1A HUB SITE
.
.
8B2oo1:20830,2
1
EXHIBIT "F"
RECORDING REQUESTED BY
AND WHEN RECORDED MAlL TO:
IN-N-OUT BURGERS
4199 Campus Drive, 9th Floor
Irvine, California 92612
Attention:
THIS SPACE ABOVE FOR RECORDER'S USE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
GRANT DEED OF A PUBLIC AGENCY
(Disposition and Development Agreement with In-N-Out Burgers,
a California corporation)
For valuable consideration, the receipt of which is hereby acknowledged, the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic of the State of California (the "Grantor"), hereby grants to IN-N-OUT
BURGERS, a California corporation ( the "Grantee"), the real property legally described in
Exhibit A and by this reference incorporated herein (the "Property").
1. The Property is conveyed subject to that certain Disposition and
Development Agreement dated as of ,2001, by and between the Grantor and the
Grantee (the "Agreement"). The provisions of the Agreement are hereby incorporated into this
Grant Deed by this reference and are deemed to be a part of this Grant Deed, as if fully set forth
herein.
2, The Grantee covenants by and for itself; its heirs, executors, administrators
and assigns, and all persons claiming under or through them, that there will be no discrimination
against or segregation of any person or group of persons on accowrt of race, color, creed, religion,
sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, nor will the Grantee or any person claiming under
or through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sub1essees or vendees in or on the Property.
All deeds, leases or contracts made relative to the Property must contain the
following nondiscrimination clauses:
(a) In deeds: "The grantee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of any person or group of persons
SB2001 :20830.2
1
on account of race, color, creed, religion, sex, age, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the grantee, or any person claiming under or through the
grantee, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, locations, number, use or occupancy of tenants, lessees,
subtenants, sub1essees or vendees in or on the land herein conveyed, The foregoing
covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, and
this lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person
or group of persons on account of race, color, creed, religion, sex, age, marital status,
national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming
under or through it, establish or pennit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy, of tenants,
lessees, subtenants, sub1essees or vendees in the land herein leased. "
(c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land, nor shall the transferee itself, or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the land."
3. No violation or breach of the covenants, conditions, restrictions, provisions
or limitations contained in this Grant Deed will defeat or render invalid or in any way impair the
lien or charge of any mortgage, deed of trust or other financing or security instrument permitted
by the Agreement, Any successor of the Grantee to the Property is bound by all remaining
covenants, conditions, restrictions, limitations and provisions, whether such successor's title is
acquired by foreclosure, deed in lieu offoreclosure, trustee's sale or otherwise.
4. The terms and conditions set forth in Section 4 of the Agreement and the
covenants otherwise contained in this Grant Deed will remain in effect for a period of five (5)
years from the date of the recordation of this Grant Deed in the Official Records of the Recorder
of the County of San Bernardino, except that the covenants against discrimination set forth in
Section 4 of the Agreement will remain in effect in perpetuity.
5. The covenants contained in this Grant Deed are binding for the benefit of
the Grantor and its successors and assigns, and such covenants run in favor of the Grantor for the
entire period that such covenants are in full force and effect, regardless of whether the Grantor is
or remains an owner of any land or interest in land to which such covenants relate. The Grantor,
in the event of any breach of any such covenants, has the right to exercise all of the rights and
SB2001:20830,2
2
remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to
enforce the curing of such breach, as provided in the Agreement or by law. The covenants
contained in this Grant Deed are for the benefit of and are enforceable only by the Grantor and its
successors.
IN WITNESS WHEREOF, the Grantor and the Grantee have caused this
instrument to be executed on their behalfby their respective duly authorized officers on this _
day of , 2001.
"Grantor":
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
By
Chairperson
By
Secretary
[SIGNATURES TO BE ACKNOWLEDGED
FOR RECORDATION]
APPROVED AS TO FORM:
By
Agency Special Counsel
The provisions of this Grant Deed are hereby approved and accepted,
"Grantee":
IN-N-OUT BURGERS,
a California corporation
By
SB200t:20830,2
3
smoo 1 :20830.2
(printed Name and Title)
By
(printed Name and Title)
4
EXlllBIT "G"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
IN-N-OUT BURGERS
4199 Campus Drive, 9th Floor
Irvine, California 92612
Attention:
TInS SPACE ABOVE FOR RECORDER'S USE
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, IN-N-
OUT BURGERS, a California corporation ( the "Grantor"), hereby grants to the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic of the State of California (the "Grantee"), the real property legally described
in Exhibit A and by this reference incorporated herein (the "Property").
1. The Property is conveyed subject to that certain Disposition and
Development Agreement dated as of ,2001, by and between the Grantor and the
Grantee (the "Agreement"), The provisions of the Agreement are hereby incorporated into this
Grant Deed by this reference and are deemed to be a part of this Grant Deed, as iffully set forth
herein,
2. The Grantee covenants by and for itself; its heirs, executors, administrators
and assigns, and all persons claiming under or through them, that there will be no discrimination
against or segregation of any person or group of persons on account of race, color, creed, religion,
sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, nor will the Grantee or any person claiming under
or through it, establish or pennit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sub1essees or vendees in or on the Property.
All deeds, leases or contracts made relative to the Property must contain the
following nondiscrimination clauses:
(a) In deeds: "The grantee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, that
there sha1I be no discrimination against or segregation of any person or group of persons
on account of race, color, creed, religion, sex, age, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the grantee, or any person claiming under or through the
SB2001:20S30,2
1
grantee, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, locations, number, use or occupancy of tenants, lessees,
subtenants, sub1essees or vendees in or on the land herein conveyed, The foregoing
covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, and
this lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person
or group of persons on account ofrace, color, creed, religion, sex, age, marital status,
national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure
or enjoyment of the land herein leased, nor shall the lessee itself, or any person claiming
under or through it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy, of tenants,
lessees, subtenants, sub1essees or vendees in the land herein leased. "
( c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land, nor shall the transferee itself, or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sub1essees or vendees of the land,"
3. No violation or breach of the covenants, conditions, restrictions, provisions
or limitations contained in this Grant Deed will defeat or render invalid or in any way impair the
lien or charge of any mortgage, deed of trust or other financing or security instrument permitted
by the Agreement. Any successor of the Grantee to the Property is bound by all remaining
covenants, conditions, restrictions, limitations and provisions, whether such successor's title is
acquired by foreclosure, deed in lieu offoreclosure, trustee's sale or otherwise,
4, The tenns and conditions set forth in Section 4 of the Agreement and the
covenants otherwise contained in this Grant Deed will remain in effect for a period of five (5)
years from the date of the recordation of this Grant Deed in the Official Records of the Recorder
of the County of San Bernardino, except that the covenants against discrimination set forth in
\ Section 4 of the Agreement will remain in effect in perpetuity.
5. The covenants contained in this Grant Deed are binding for the benefit of
the Grantor and its successors and assigns, and such covenants run in favor of the Grantor for the
entire period that such covenants are in full force and effect, regardless of whether the Grantor is
or remains an owner of any land or interest in land to which such covenants relate, The Grantor,
in the event of any breach of any such covenants, has the right to exercise all of the rights and
remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to
enforce the curing of such breach, as provided in the Agreement or by law, The covenants
SB200t:20830,2
2
contained in this Grant Deed are for the benefit of and are enforceable only by the Grantor and its
successors.
IN WITNESS WHEREOF, the Grantor and the Grantee have caused this
instrument to be executed on their behalfby their respective duly authorized officers on this _
day of .2001.
"Grantor":
IN-N-OUT BURGERS,
a California corporation
By
(Printed Name and Title)
By
(printed Name and Title)
The provisions of this Grant Deed are hereby approved and accepted,
"Grantee":
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
By
Executive Director
[SIGNATURES TO BE ACKNOWLEDGED
FOR RECORDATION]
APPROVED AS TO FORM:
By
Agency Special Counsel
S82001:20830.2
3
EXHIBIT "H"
FORM OF MEMORANDUM OF OPA
8B2oo1,20830,2
1
EXHIBIT "I"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SHEPPARD, MULLIN, RICHTER &
HAMPTON lLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
Attention: Jack H Rubens, Esq,
TInS SPACE ABOVE FOR RECORDER'S USE
CERTIFICATE OF COMPLETION
We, , Chairperson and , Secretary of the
Redevelopment Agency of the City of San Bernardino (the "Agency"), hereby certifY as follows:
By its Resolution No.
Agency has resolved as follows:
, adopted and approved on
, 200-, the
Section 1. Pursuant to that certain Owner Participation Agreement (the
"Agreement") dated as of ,2001, by and between the Agency and In-N-Out Burgers,
a California corporation, the Owner agreed to undertake the "Development" of certain real
property situated in the City of San Bernardino, California, as more particularly described in
Exhibit "A" attached hereto and incorporated herein by this reference (the "DevelQpment Site").
Capitalized terms used and not otherwise defined herein shall have the meanings set forth for them
in the Agreement.
Section 2. The Agency has conclusively determined that the Development of
the Development Site required under the Agreement has been fully and satisfactorily performed
and completed, excluding any normal and minor building "punchlist" items.
Section 3. This Certificate of Completion shall constitute the Agency's
conclusive determination of the Owner's full and satisfactory completion of the Development in
accordance with the terms and conditions of the Agreement and the Owner's full and satisfactory
performance of all of its obligations under this Agreement, including without limitation any and
all buildings and any and all parking, landscaping and related improvements necessary to support
or which meet the requirements applicable to such buildings and its use and occupancy on the
Development Site, whether or not said improvements are on the Development Site or on other
property subject to the Agreement, all as described in the Agreement.
SB2001,20830,2
1
Section 4. This Certificate of Completion shall not modifY or affect any of the
provisions in that certain Grant Deed dated , 200-, executed by the Agency in favor
of the Owner, and recorded on , 200_ as Instrument No. in the Official
Records of San Bernardino County, California.
on
IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion
,200_.
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, a public body corporate and
politic
By
Chairperson
By
Secretary
8B2001:20830.2
2
8B2001:20830.2
EXlllBIT "J"
SCHF.nT IT.F. OF PERFORMANCE
(Days shall be calendar days, and all dates herein are
subject to change due to force majeure in accordance with
Section 6.5 of the Agreement)
Agency approval ofOPA
,2001
[TO BE COMPLETED BY OWNER AND AGENCY STAFF]
1
EXlllBIT "K"
SCOPE OF DEVELOPMENT
,
,.
882001:20830.2
1
STATE OF CALIFORNIA
)
) ss
COUNTY OF SAN BERNARDINO)
On , 2000, before me, the undersigned, a Notary Public in and
for said State, personally appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the Executive Director of the
Redevelopment Agency of the City of San Bernardino that executed the within instrument on
behalf of said Agency and acknowledged to me that said instrument was authorized to be executed
pursuant to a duly adopted resolution of said Agency.
WITNESS my hand and official seal.
Signature:
882001:20830.2
2
STATE OF CALIFORNIA
)
\ ..
) ..
COUNTY OF SAN BERNARDINO)
, 2000, before me, the undersigned, a Notary Public in and
, personally known to me (or proved
that executed the
On
for said State, personally appeared
to me on the basis of satisfactory evidence) to be the
within instrument on behalf of
WITNESS my hand and official seal.
Signature:
SB2oo1:20830.2
3
TABLE OF CONTENTS
~
ARTICLE 1 - GENERAL PROVISIONS ...................................... 1
1.1 Purpose of Agreement ......................................... 1
1.2 Owner Sale Parcel ............................................ 1
1.3 Agency Sale Parcel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
1.4 The Parties to this Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2
1.5 Restrictions Against Assignment of this Agreement ................... 2
1.6 Legal Descriptions ............................................ 3
ARTICLE 2 - DEFINED TERMS. . . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . . -. 3
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
3.19
3.20
3.21
3.22
3.23
3.24
3.25
3.26
3.27
3.28
3.29
3.30
3.31
ARTICLE 3 - PURCHASE AND SALE TRANSACTIONS . . . . . . . . . . . . . . . . . . . . . .. 12
12
12
12
12
12
13
13
13
14
14
15
16
16
17
18
20
21
22
23
25
27
28
30
30
32
33
34
35
37
38
38
SB2oo1:20830.2
Agency Purchase of Owner Sale Property ..........................
Purchase Price for Owner Sale Property ...........................
Owner Purchase of Agency Sale Property ..........................
Purchase Price for Agency Sale Property ..........................
Opening and Closing of Escrow .................................
Payment by Owner at Closing ...................................
General Plan and Development Code Amendments . . . . . . . . . . . . . . . . . . .
Land Use Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cancellation of Escrow and Termination of Agreement. . . . . . . . . . . . . . . .
Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Agency's Closing Documents ................................
Owner's Closing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Actions at Closing ...........................................
Due Diligence Investigation of Agency Sale Property By Owner. . . . . . . . .
Due Diligence Investigation of Owner Sale Property By the Agency . . . . . .
Disclaimer of Representations and Warranties - Agency Sale Property ....
Disclaimer of Representations and Warranties - Owner Sale Property . . . . .
Condition of Title and Title Insurance for Agency Sale Property . . . . . . . . .
Condition of Title and Title Insurance for Owner Sale Property .........
Surveys ...................................................
Owner's Conditions Precedent to Close Escrow .....................
Failure of the Owner's Conditions; Termination .....................
Agency's Conditions Precedent to Close Escrow. . . . . . . . . . . . . . . . . . . . .
Failure of the Agency's Conditions; Termination ....................
Prorations, Closing Costs, Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Liquidated Damages on Agency Default Prior to Closing ..............
Liquidated Damages on Owner Default Prior to Closing . . . . . . . . . . . . . . .
Damage, Destruction and Condemnation ..........................
Demolition of Agency Sale Property Improvements ..................
Agreement with HUB Developer ................................
1
3.32 Waiver of Other Payments by Owner ............................. 39
ARTICLE 4 - REDEVELOPMENT OF THE DEVELOPMENT SITE. . . . . . . . . . . . . .. 39
4.1 The Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
4.2 License to Occupy Owner Sale Lands After Close of Escrow . . . . . . . . . .. 41
4.3 Assignment and Transfer ...................................... 42
4.4 Certificate of Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 43
4.5 HarrimanPlacelmprovementProject............................. 44
4.6 HUB Project Pylon Sign. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
ARTICLE 5 - USE OF THE SITE .......................................... 45
5.1 Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
5.2 Maintenance of the Development Site. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 45
5.3 Form of Nondiscrimination and Nonsegregation Clauses. . . . . . . . . . . . . .. 46
5.4 Environmentallndemnities Re Agency Sale Property ................. 46
5.5 Environmental Indemnities and Covenants Re Owner Sale Property. . . . .. 48
ARTICLE 6 - DEFAULTS, REMEDIES AND TERMINATION. . . . . . . . . . . . . . . . . .. 49
6.1 General Applicability ........................................ _ 49
6.2 Default of the Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 50
6.3 Default of the Owner ......................................... 51
6.4 Acceptance of Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 52
6.5 Rights and Remedies are Cumulative ............................. 52
6.6 Limitations on Remedies Prior to Closing . . . . . . . . . . . . . . . . . . . . . . . . .. 52
6.7 Right to Reenter, Repossess and Revest . . . . . . . . . . . . . . . . . . . . . . . . . .. 52
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
ARTICLE 7 - GENERAL PROVISIONS ..................................... 54
54
55
55
55
55
56
57
57
57
58
58
58
58
58
59
59
59
59
59
S81oo1:20830.2
Notices, Demands and Communications Between the Parties ...........
ConflictofInterest ...........................................
Warranty Against Payment of Consideration for Agreement. . . . . . . . . . . .
Nonliability of Agency Officials and Employees .....................
Forced Delay: Extension of Time of Performance . . . . . . . . . . . . . . . . . . . .
Inspection of Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Real Estate Commissions ......................................
Indemnities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Release of Owner from Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EntireAgreement ............................................
Provisions not Merged with Deeds ...............................
Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Headings ..................................................
GoverningLaw............................................. .
Severability. . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . . . . . . . . . . . . . . .
Parties Not Co-Venturers ......................................
11
EXlllBITS
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,
.
7.20 Time of the Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 59
7.21 Agency Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 59
7.22 Identity and Authority of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 59
7.23 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 60
7.24 Memorandum ofOPA ........................................ 60
7.25 Exhibits................................................... 60
7.26 Time for Acceptance of Agreement by Agency. . . . . . . . . . . . . . . . . . . . .. 60
Legal Description of Development Site
Depiction of Development Site
Legal Description of Existing Owner Site
Depiction of Existing Owner Site
Legal Description of Owner Sale Parcel
Depiction of Owner Sale Parcel
Legal Description of Agency Sale Parcel
Depiction of Agency Sale Parcel
Legal Description of Phase lA HUB Site
Depiction of Phase lA HUB Site
Form of Agency Grant Deed
Form of Owner Grant Deed
Form of Memorandum ofOPA
Form of Certificate of Completion
Schedule of Performance
Scope of Development
Harriman Place Improvement Project
SB2001:20830.2
m
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): 1(9- \ -0 \ Item # (L3'lS
Vote: Ayes \- -I') Nays JET Abstain
Change to motion to amend original documents: -
Resolution # '2.. cJ:::, l - 311
..0- Absent -e
SE:E c.OCj 2 tJO I - 39
Reso. # On Attachments: ~ Contract term:
Note on Resolution of Attachment stored separately: -==--
Direct City Clerk to (circle 1): PUBLISH, POST, RECORD W/COUNTY
NullNoid After; -
By: -
Date Sent to Mayor: \ t>--- 3~O I
Date of Mayor's Signature: I ()-?'---(:)I
Date of ClerklCDC Signature: \ 0- 3, ---0 ,
Reso. Log Updated:
Seal Impressed:
./
/
Date Mem
ent for Signature:
See Attached:
See Attached:
See Attac ed;
Date Returned: ~
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634);
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234,655,92-389):
Yes ,/' No By
Yes No ~ By
Yes No ./ By
Yes No ---L By
Yes No 7 By
Copies Distributed to:
City Attorney V Code Compliance
Dev. Services
EDA
V"
Finance
MIS
Parks & Rec.
Police
Public Services
Water
Others;
Notes:
BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc.)
Ready to File:.fI:l::L...- Date: #
Revised 01112/01
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): la-I-O \ Item # ~ ':1.,1\
Vote: Ayes 1-"1 Nays ~ Abstain
Change to motion to amend original documents: -
Reso. # On Attachments: - Contract term: -
-
Note on Resolution of Attachment stored separately: -----=
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY By:
Date Sent to Mayor: \O-?,.- G\
Date of Mayor's Signature: \o--:,-()/
Date of ClerklCDC Signature: \ (y-",,> -0 \
Date e
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached:
See Attached:
See
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234,655,92-389):
Copies Distributed to:
City Attorney
Parks & Rec.
Code Compliance
Dev. Services
Police
Public Services
Water
Notes:
Resolution # c.OC{?'Of'l \ - :s'l
.e-- Absent --er
SEE '2('(') \ - 3n
NulVVoid After: -
Reso. Log Updated:
Seal Impressed:
,,/
.,/
Date Returned:
Yes ,,/ No By
-
Yes No-L By
Yes No --.L By
Yes No ;/ By
-
Yes No / By
EDA /
Finance
MIS
Others:
BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc.)
Ready to File: r'l11"
Date: 1<{G( 0/
Revised 01112/01