HomeMy WebLinkAbout2009-320
(COMPANION RESOLUTION 2009-319)
1
2
3
4
5
6
RESOLUTION NO. 2009-320
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING AN EASEMENT, MAINTENANCE
AND OPERATION AGREEMENT BY AND BETWEEN THE CITY OF SAN
BERNARDINO AND WATERMAN HOLDINGS, LLC, CONCERNING
REAL PROPERTY (4TH STREET AND WATERMAN AVENUE-APN: 0135-
191-17) (CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA)
7 WHEREAS, the City of San Bernardino (the "City") is a municipal corporation and charter
8 city, duly organized and existing pursuant to the provisions of the constitution of the State of
9 California; and
10 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a
11 public body, corporate and politic existing under the laws of the State of Califomia, Health and
12 Safety Code Section 33100, and is charged with the mission of redeveloping blighted and
13 underutilized land; and
14 WHEREAS, on December 15,2008, the Community Development Commission of the City
15 of San Bernardino (the "Commission") adopted Resolution No. CDC/2008-46 approving
16 Amendment No.4 (the "Amendment") to the 2004 Disposition and Development Agreement (the
17 "DDA") between the Agency and Waterman Holdings, LLC (the "Buyer" or Developer"),
18 concerning the transfer of certain real property, APN: 0135-191-17 (the "Flood Control Channel
19 Property"); and
20 WHEREAS, on December 15, 2008, the Mayor and Common Council of the City of San
21 Bernardino (the "Council") adopted Resolution No. 2008-459 approving the sale of the Flood
22 Control Channel Property to the Buyer; and
23 WHEREAS, the Flood Control Channel Property is located south of the southwest corner of
24 4th Street and Waterman Avenue within the Central City East Redevelopment Project Area and is
25 presently an unimproved vacant lot; and
26 WHEREAS, the Amendment provides for the development of the Flood Control Channel
27 Property by the Developer so that it may be used as a parking lot in furtherance of the office project
28 identified in the DDA, as amended; and
1
P:\Agendas\ResolLllions\Resolulions\1009\09-08-09 Waterman Holdings, LLC - EMO Agreement MeC Reso B (Cont'd),doc
2009-320
1 WHEREAS, the Amendment added Section 2.15 to the DDA which outlined certain
2 requirements that the Buyer needed to accomplish in order to close escrow for the transfer of the
3 Flood Control Channel Property to the Buyer; and
4 WHEREAS, Section 2.15 requires that the Buyer execute a Easement, Maintenance and
5 Operation Agreement (the "EMO Agreement") with the City and that the Council approve the EMO
6 Agreement between the City and the Buyer in a public meeting.
7 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY
8 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS
9 FOLLOWS:
10
Section 1.
The Council finds and determines that the facts and circumstances set forth in
11 the Recitals hereof are true and correct in all respects.
12
Section 2.
The Council hereby approves the EMO Agreement, attached as Exhibit "A",
13 by and between the City of San Bemardino and Waterman Holdings, LLC.
14
Section 3.
This Resolution shall take effect upon its adoption and execution in the
2
P:\Agendas\Resollllions\Resolutions\2009\09-08-09 Waterman Holdings. LLC - EMO Agreement MCC Reso B (Cont'd},doc
2009-320
1
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING AN EASEMENT, MAINTENANCE
AND OPERATION AGREEMENT BY AND BETWEEN THE CITY OF SAN
BERNARDINO AND WATERMAN HOLDINGS, LLC, CONCERNING
REAL PROPERTY (4TH STREET AND WATERMAN A VENUE - APN: 0135-
191-17) (CENTRAL CITY EAST REDEVELOPMENT PROJECT AREA)
2
3
4
5
6
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a j oint regular
meeting
8 thereof, held on the 8th
9 Council Members:
10 ESTRADA
11 BAXTER
12 BRINKER
13 SHORETT
14 KELLEY
15 JOHNSON
16 MC CAMMACK
17
18
day of September ,2009, by the following vote to wit:
Absent
Abstain
Ayes Nays
x
---.lL
---...L
X
X
-
---1L
---.lL
Q,~/~C0~
Rachel G. Clark, City Clerk
19
20 The foregoing Resolution is hereby approved this 9;m day of September
,2009.
21
22
23
24
~
. Morris, r
an Bernardino
Approved as to Form:
25
26
27
28
3
P\Agendas\Resoll1tions\Resolulions\2009\09.08-09 Waterman Holdings, LLC - EMO Agreement Mec Reso B (Cont'd) doc
2009-320
1
EXHIBIT A
Easement, Maintenance and Operation Agreement
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
P\Agendas\Resolulions\Resoll.llions\2009\09-08-09 Waterman Holdings, LLC - EMO Agreement MeC Reso B (Conl'd),doc
ORIGINAL TAKEN 12-2-09
BY MIKE TROUT
WITH EDA
TO BE
RECORDED
2009-320
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
~(C~v
City of San Bernardino
300 North "D" Street, 6th Floor
San Bernardino, CA 92418
Attn.: City Attorney
(Space Above Line Reserved For Use By Recorder)
RECORDATION OF THIS INSTRUMENT IS
EXEMPT FROM ALL FEES AND TAXES
2009
EASEMENT, MAINTENANCE AND OPERATION AGREEMENT
BY AND BETWEEN
THE CITY OF SAN BERNARDINO
AND
WATERMAN HOLDINGS, LLC
THIS 2009 EASEMENT, MAINTENANCE AND OPERATION AGREEMENT
(this "Agreement") is dated as of September 8, 2009 (the "Effective Date"), by and between the
City of San Bernardino, a charter city (the "City"), and Waterman Holdings, LLC, a California
limited liability company (the "Buyer"). In this Agreement, the City or the Buyer may singularly be
referred to as a "Party" and may collectively be referred to as the "Parties."
RECITALS
A. The Redevelopment Agency of the City of San Bernardino, a public body, corporate
and politic (the "Agency") and the Buyer executed that certain 2004 Disposition and Development
Agreement, dated December 6, 2004 (the "DDA"), for the purchase and sale of certain real
property, as defined therein, owned by the Agency and located in the City of San Bernardino, in the
County of San Bernardino (the "County") and in the State of California (the "State"). The Agency
and the Buyer executed that certain Amendment No. I to the DDA, dated June 20, 2005 (the "First
Amendment"). The Agency and the Buyer executed that certain Amendment No.2 to the DDA,
dated June 19, 2006 (the "Second Amendment"). The Agency and the Buyer executed that certain
Amendment No.3 to the DDA, dated July 21, 2008 (the "Third Amendment"). The Agency and the
Buyer executed that certain Amendment No.4 to the DDA, dated December 15,2008 (the "Fourth
Amendment"). For purposes of this Agreement, the DDA, as amended by the First Amendment, as
further amended by the Second Amendment, as further amended by the Third Amendment and as
further amended by the Fourth Amendment shall collectively be referred to as the "DDA
Agreement."
I
P:\Agendas\Agenda Attlchments\Agenda Auachments\Agenda Attachments\Agrmts.Amend 2009\09_08_09 Waterman Holdings - EMO Agreemenl.DOC
2009-320
B The Buyer has constructed, developed, installed and/or completed, and/or has
agreed to construct, to develop, to install and to complete the improyements (collectiyely, the
"Agency Property Improvements") in connection with the Agency Property (as defined in the
Fourth Amendment) and the improvements (collectively, the "Flood Control Channel Property
Improvements") in connection with the Flood Control Channel Property (as defmed in the Fourth
Amendment), in accordance with and pursuant to the DDA Agreement.
C. Pursuant to the DDA Agreement, the Buyer has agreed, without limitation, to
maintain the Flood Control Channel Property (as defined below) and the Flood Control Channel
Property Improvements in favor of the City, as provided for and in accordance with the terms,
coyenants and conditions of this Agreement; the Parties recognize that the Flood Control Channel is
a part of larger flood control system that is maintained primarily by the County of San Bernardino
Flood Control District and that the standards of maintenance employed by the County of San
Bernardino Flood Control District shall apply to the maintenance by the Buyer of the Flood Control
Channel Property pursuant to this Agreement.
D. The legal description of the Flood Control Channel Property is attached hereto and
incorporated herein by this reference as Exhibit "A".
E. As one of the conditions precedent to the closing of the purchase and sale by the
Agency, as seller, and by the Buyer, as buyer, of the Flood Control Channel Property in Section
2.15 of the DDA Agreement, the Buyer agreed to execute, to deliver, to perform and to observe the
terms, covenants and conditions of this Agreement.
F. The Buyer and the City are willing to execute, to deliver, to perform and to observe
the terms, coyenants and conditions of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND
COVENANTS OF THE PARTIES, AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE BUYER, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS,
AND THE CITY, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, AGREE TO THE
FOLLOWING:
Section 1. Recitals. The matters set forth in the Recitals of this Agreement are
true and correct, are material inducements that caused the Parties to execute and to deliver this
Agreement, and are incorporated herein by this reference as if fully set forth in this Section 1.
Section 2. Dermitions. Except for those terms defined in the above Recitals to
this Agreement and in other sections in this Agreement, the following capitalized terms shall have
the meanings as set forth below:
time-to-time.
"CEQA" shall mean the California Environmental Quality Act, as amended from
"City" shall mean the City of San Bernardino, in the County of San Bernardino,
State of California.
2
P:\Asendu\Asenda Atachmenu\Apnd1 Anachmems\Asmda At1aehmenu\ABnrlls-Amend 200Wl9.(l8-09 WItmIWI Holdings. EMO A!Jftmenl_OOC
2009-320
"County" shall mean the County of San Bernardino, in the State of California.
"DDA" shall mean the 2004 Disposition and Development Agreement, dated
December 6, 2004, as executed and delivered by and between the Agency and the Buyer.
"DDA Agreement" shall mean the DDA, as amended by the First Amendment, as
further amended by the Second Amendment, as further amended by the Third Amendment and shall
further be amended by the Fourth Amendment.
"Easement" shall mean an easement from the Buyer to the City to, over, in, above,
under, beneath, through, from or across the Agency Property, the Agency Property Improvements,
the Flood Control Channel Property and/or the Flood Control Channel Property Improvements to
the extent reasonably necessary to enable the City to exercise its rights and remedies under this
Agreement, including, without limitation, the following: (i) the right, subject to the terms of this
Agreement, to access, to enter, to inspect, to repair and/or to maintain the Flood Control Channel
Property andlor the Flood Control Channel Property Improvements pursuant to this Agreement and
in compliance with all applicable laws, (ii) the right, subject to the terms of this Agreement, to
access, to enter, to inspect, to repair and/or to maintain the Flood Control Channel Property and/or
the Flood Control Channel Property Improvements to assure the free flow of water, to remove all
debris and debris blockages from, to prevent and to mitigate against flooding, and to prevent and to
mitigate against injury or loss oflife and/or of property damage from water flows, from flood water
and from debris flow and debris blockages that cause or could cause flooding or water damage to,
the Agency Property, the Agency Property Improvements, the Flood Control Channel Property, the
Flood Control Channel Property Improvements andlor to any other real or personal property.
"Effective Date" shall mean the date that this Agreement is executed by and between
the City and the Buyer, as provided for in the preamble of this Agreement.
"Environmental Laws" shall mean the "Environmental Laws" as defined in the DDA
Agreement, as amended from time-to-time.
"First Amendment" shall mean the Amendment No. 1 to the DDA, dated June 20,
2005, as executed and delivered by and between the Agency and the Buyer.
"Flood Control Channel" shall mean those properties within the banks of the Warm
Creek Channel.
"Flood Control Channel Property" shall mean that portion of the Flood Control
Channel located within and comprising the Flood Control Channel Property, as set forth in Exhibit
"A" attached hereto and by this reference made a part hereof and shall not include any other
contiguous portions of the Flood Control Channel not illustrated on said Exhibit "A".
"Flood Control Channel Property Improvements" shall mean the improvements to
the Flood Control Channel Property, as described in Exhibit "B" attached hereto and by this
reference made a part hereof.
3
P:\Agendas\Agenda Attac:hments\Agenda Altachments\Agenda Attachlnents\Agrmts-Amend 2009\09.08-09 Waterman Holdings. EMO Agref:menl,DQC
2009-320
"Fourth Amendment" shall mean the Amendment No.4 to the DDA, dated
December 15,2008, as executed and delivered by and between the Agency and the Buyer.
"Laws" shaU mean aU federal, state, municipal and local laws, statutes, codes,
regulations, ordinances, orders, permits, approvals, rules, policies andlor procedures, now or
hereafter in effect, as amended from time-to-time, including, without limitation, California
Environmental Quality Act ("CEQA"), National Environmental Protection Act ("NEPA"), aU
applicable Environmental Laws and all applicable Laws pertaining to flooding, to flood prevention
and mitigation, to flood control channels andlor to the maintenance and repair of flood control
channels.
"NEPA" shall mean the National Environmental Protection Act, as amended from
time-to-time.
"Official Records" shall mean the official records of the county recorder's office for
the County of San Bernardino, State of California.
"Second Amendment" shall mean the Second Amendment to the DDA, dated June
19,2006, to the DDA, as executed and delivered by and between the Agency and the Buyer.
"State" shall mean the State of California.
"Third Amendment" shall mean the Amendment No.3 to the DDA, dated July 21,
2008, as executed and delivered by and between the Agency and the Buyer.
Section 3. Maintenance bv the Buver of the Flood Control Channel Propertv
and the Flood Control Channel Property Improvements. Upon the execution and the delivery
by the Parties of this Agreement, the Buyer, for itself, its successors and assigns, hereby covenants
and agrees that:
(a) The City shall have the right, but not the obligation, to enter the Flood
Control Channel Property andlor the Flood Control Channel Property Improvements to conduct, or
to cause to be conducted, such tests, studies, assessments andlor observations, without limitation,
for the following reasons: (i) to determine and to assess that the Flood Control Channel Property
and/or the Flood Control Channel Property Improvements are in compliance with this Agreement
and all applicable Laws, including, without limitation, (I) compliance with aU mitigation measures
imposed under applicable Laws consistent with the CEQA, with the NEP A and the Environmental
Laws, and (2) aU permits and approvals, as amended, supplemented andlor required from time-to-
time, as issued by any and all federal, state, municipal or local governmental agencies having
jurisdiction over the Flood Control Channel Property andlor over the Flood Control Channel
Property Improvements, including, without limitation, the United States Corps of Engineers, and (ii)
to determine and to assess whether any debris or debris blockages exist or may exist, whether
flooding or any flooding conditions exist or may exist, and/or whether any blockage of the free flow
of water exists or may exist, at the Flood Control Channel Property and/or at the Flood Control
Channel Property Improvements, and (iii) to determine and to assess whether loss of life or injury,
or damage to real or personal property, has occurred or wiU occur, including, without limitation, any
damage or loss to the Agency Property, to the Agency Property Improvements, to the Flood Control
4
P.\AgendasIAgenda. Attachments\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2009\09-08-09 Waterman Holdings - EMQ Agreement DOC
2009-320
Channel Property, to the Flood Control Channel Property Improvements and/or to any other real or
personal property.
(b) (I) The Parties mutually understand and agree that from and after the
Effective Date, the Buyer shall maintain the Flood Control Channel Property andlor the Flood
Control Channel Property Improvements (including all now or hereafter existing improvements,
paving, walkways, landscaping, exterior signage, ornamentation and flood control channel) in good
repair, neat, clean and orderly condition, free from all adverse conditions described in clauses (ii)
and (iii) of paragraph 3(a) above and in compliance with ail applicable Laws and with this
Agreement (the "Maintenance Standard").
(2) In the event the City Manager, or his or her designee, determines that the
Developer is not maintaining the Flood Control Channel Property and/or the Flood Control Channel
Property Improvements in compliance with the Maintenance Standard (the "Maintenance
Deficiency"), the City shall notify the Buyer in writing of the Maintenance Deficiency. The City
shall give the Buyer thirty (30) calendar days from receipt of such notice to cure or commence to
cure the Maintenance Deficiency as identified in the notice. If the Buyer shall commence to cure
but shall not have completed the cure within the thirty (30) calendar days, the Buyer shall within
such thirty (30) calendar days provide the City with a written schedule for completion. The schedule
must be approved by the City in writing for the Buyer to avoid violation under this section. In the
event the Buyer fails to cure the Maintenance Deficiency within the thirty (30) calendar days or the
time otherwise agreed to by the City in writing, the City shall have the right, but not the obligation,
to enter the Agency Property, the Agency Property Improvements, the Flood Control Channel
Property and/or the Flood Control Channel Property Improvements and to perform all acts deemed
necessary by the City consistent with County of San Bernardino Flood Control District maintenance
standards to cure the Maintenance Deficiency, or to take other action at law or in equity which the
City may have a good faith belief it has a right to exercise to accomplish the abatement of the
Maintenance Deficiency.
(3) Failure of the Buyer to cure the Maintenance Deficiency shall in addition
to all other remedies available to the City, constitute a nuisance and a violation of the parking
conditions for occupancy of the Agency Property Improvement. The City may commence an action
against the Buyer, its successors, or assigns in abatement of the nuisance. Such abatement action
shall include recovery of all direct and incidental costs of abatement of the nuisance, assessment of
penalties, and further remedial action up to and including revocation of the occupancy permit for
the Agency Property Improvements.
(c) In addition to the maintenance obligations provided for in Section 3(b), the
Buyer shall maintain the Flood Control Channel Property and/or the Flood Control Channel
Property Improvements in conformance with standards as shall be set by the City Engineer or
equivalent (the "City Engineer") for the City, from time-to-time consistent with County of San
Bernardino Flood Control District maintenance standards (the "City Engineer Maintenance
Requirements") after the Effective Date of this Agreement. The City shall notify the Buyer in
writing of the City Engineer Maintenance Requirements that the Buyer is obligated to perform and
complete, at its sole cost and expense, and shall give the Buyer thirty (30) calendar days from
receipt of such notice to perform, to repair, to remediate, to cure and/or to complete the City
Engineer Maintenance Requirements as identified in the notice. In the event the Buyer fails to
5
P:\Agernlu\Agenda Attachrnents\Agcnda Attachments\Agenda Attachments\Agrmts-Amend 2009\09.08-09 Waterman Holdings - EMO Agrcemcnt.DOC
2009-320
perform, to repair, to remediate, or to cure andlor to complete the City Engineer Maintenance
Requirements within the time allowed, the City shall have the right, but not the obligation, to enter
Agency Property, the Agency Property Improvements, the Flood Control Channel Property and/or
the Flood Control Channel Property Improvements and to perform all acts necessary to repair, to
remediate, to cure and/or to complete the City Engineer Maintenance Requirements, or to take other
action at which the City in the sole exercise of its discretion consistent with County of San
Bernardino Flood Control District maintenance standards may then determine to take to repair, to
remediate, to cure and/or to complete the City Engineer Maintenance Requirements. The City may
take all such actions against the Buyer for failure to timely implement the City Engineer
Maintenance Requirements as for a failure under Section 3(b) above. The City Engineer
Maintenance Requirements may, without limitation, require the Buyer to repair and/or to maintain
the Flood Control Channel Property andlor the Flood Control Channel Property Improvements at a
level of performance greater than the Maintenance Standard, at the sole cost and expense of the
Buyer.
(d) Graffiti, as this term is defined in Government Code Section 38772, which
has been applied to any exterior surface of a structure or improvement on the Flood Control
Channel Property and/or on the Flood Control Channel Property Improvements which is visible
from any public right-of-way adjacent or contiguous to the Flood Control Channel Property and/or
to the Flood Control Channel Property Improvements, shall be removed by the Buyer by either
painting over the evidence of such vandalism with a paint which has been color-matched to the
surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water
as appropriate. In the event that such graffiti may become visible from an adjacent or contiguous
public right-of-way but is not removed within seventy-two (72) hours following the time of such
application, the City shall have the right, but not the obligation, to enter the Flood Control Channel
Property and/or the Flood Control Channel Property Improvements and to remove the graffiti
without notice to the Buyer. The Buyer shall be subject to abatement and recovery of costs as
authorized under San Bernardino Municipal Code Chapter 8.69.
(e) From and after the Effective Date, the provisions of this Section 3(a), Section
3(b), Section 3(c), Section 3(d) and Section 3(e) shall be covenants running with the land in
perpetuity, and shall be enforceable by the City. Nothing in the foregoing provisions of Section
3(a), Section 3(b), Section 3(c), Section 3(d) and this Section 3(e) shall be deemed to preclude the
Buyer from making any alteration, addition, or other change to any structure or improvement or
landscaping on the Flood Control Channel Property and/or in connection with the Flood Control
Channel Property Improvements provided that any such changes comply with applicable Laws,
including, without limitation, all zoning and building regulations of the City.
Section 4. Easement. The Buyer hereby grants the Easement to the City. From
and after the Effective Date, the Easement shall run with the land in perpetuity.
Section 5. Representations and Warranties of the Buver. The Buyer makes
the following representations and warranties to the City and the Buyer acknowledges that the
execution of this Agreement by the City is made in material reliance by the City on such
representations and warranties:
6
P:\Agendas\Agenda Attachlllcnls\Agenda Attllchments\Agenda Attachments\Agrmts-Amend 2009\09-08-09 Waterman Holdings. EMO Agreement.DOC
2009-320
(a) The Buyer has the legal right, power and authority to enter into this
Agreement and the instruments, documents and agreements referenced in this Agreement, and the
Buyer has taken all requisite action and obtained all requisite consents in connection with entering
into this Agreement.
(b) This Agreement has been duly executed by the Buyer and shall be
enforceable in accordance with its terms.
(c) The execution of this Agreement shall not result in a breach of, nor constitute
a default under any other agreement, document, instrument or other obligation to which the Buyer is
a party, or under any federal, state, municipal or local laws, statutes, ordinances, rules,
governmental regulations or any writ, injunction, order or decree of any court or governmental body
applicable to the Buyer, the Flood Control Channel Property and/or the Flood Control Channel
Property Improvements, now or hereafter in effect, and as may be amended from time-to-time.
(d) The Buyer shall timely perform the terms, covenants and conditions of this
Agreement and shall comply with all applicable Laws.
(e) The Buyer is not in default under the DDA Agreement and shall perform the
terms, covenants and conditions of the DDA Agreement.
Section 6.
Events of Default.
(a) Any event of default shall occur under this Agreement whenever: (i) any
Party fails to timely pay any amount due and owing under this Agreement and/or the DDA
Agreement, (ii) any Party fails to perform any term, covenant or condition in this Agreement, (iii)
the occurrence of a default under the DDA Agreement, (iv) any representation or warranty made by
any Party in this Agreement and/or in the DDA Agreement is or becomes false and untrue, or (v)
the Buyer files, or has filed against it, a petition in bankruptcy under federal or state bankruptcy
laws, the Buyer is or becomes insolvent, the Buyer assigns its assets for the benefit of creditors, or
whenever a court appoints a receiver or custodian over all or substantially all of the assets of the
Buyer and such appointment is not discharged within sixty (60) calendar days thereafter.
(b) The Party which may claim that a default has occurred shall give written
notice of default to the Party in default, specifying the alleged default. Delay in giving such notice
shall not constitute a waiver of any default nor shall it change the time of default; provided,
however, the injured Party shall have no right to exercise any remedy for a default hereunder
without delivering the written default notice.
(c) Any failure or delay by a Party in asserting any of its rights and remedies as
to any default shall not operate as a waiver of any default or of any rights or remedies associated
with a default. The rights and remedies of the Parties are cumulative and the exercise by either
Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the other
Party.
7
P\Agendas\Agcnda Attachments\Agenda AUllchments\Agenda AU8chmcnls\Agrmts-Amend 2oo9\09..(l8.09 Watennan Holdings - EMQ AgreementDOC
2009-320
(d) In the event that a default by either Party may remain uncured for more than
thirty (30) calendar days following written notice, as provided above, a "breach" shall be deemed to
have occurred. In the event of a breach, the Party who is not in default shall be entitled to seek any
appropriate remedy or damages by initiating legal proceedings including, without limitation, the
right to terminate this Agreement upon written notice to the Party in default and the right to enforce
all rights and exercise all remedies provided for in this Agreement, at law and in equity.
(e) Emergency - The in default Party shall have a lesser time to cure when
failure to cure creates an imminent threat to the health, safety, or welfare of persons located on or
off the Flood Control Channel Property and/or the Flood Control Channel Improvements. The
threat shall be as determined by officials of the City in the exercise of their discretion in any such
emergency situation. Upon a finding of such threat, Buyer may be required to take immediate
action, including the destruction and removal of the Flood Control Channel Property Improvements
without compensation to cure the condition giving rise to the emergency.
Section 7.
General Provisions.
(a) Amendment. This Agreement may be amended or modified only by a written
agreement executed by each of the Parties to this Agreement which amendment or modification
must be approved by the Mayor and Common Council of the City.
(b) Attorneys' Fees and Costs. In the event that litigation is brought by any party
in connection with this Agreement, the prevailing party shall be entitled to recover from the
opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any
of the terms, conditions or provisions hereof. The value of the work of the City Attorney and
members of his office in enforcing this Agreement on behalf of the City shall be considered as
"attorneys' fees" for the purposes of this paragraph. The fees for the work City Attorney and
members of his office shall be calculated at prevailing market rates in the local community for
comparable services.
(c) Authority. Each signatory of this Agreement represents that such signatory is
duly authorized to execute this Agreement on behalf of the Party for which such signatory executes
this Agreement. Each Party represents that it has the appropriate legal authority to enter into this
Agreement and to perform all obligations under this Agreement.
(d) Construction and Interpretation. This Agreement has been arrived at through
negotiations and each Party has had a full and fair opportunity to revise the terms of this
Agreement. As a result, the normal rule of construction that any ambiguities are to be resolved
against the drafting Party shall not apply in the construction or interpretation of this Agreement.
Further, the singular form shall include the plural, the masculine shall include the feminine, and
vice versa.
(e) Compliance with Laws. In performing their respective obligations under this
Agreement, the Parties shall comply with and conform to all applicable Laws.
8
P:\Agendas\Agenda Attachments\Agenda Attacllments\Agenda Attacbments\Agrmts-Amend 2009\09-08-09 Waterman Holdings - EMO Agreement.DOC
2009-320
(f) Conflicts of Interest; No Individual Liability. No official or employee of the
Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any official
or employee of the City participate in any decision relating to this Agreement which affects such
official's or employee's pecuniary interest in any corporation, partnership, limited liability
company, or association in which such official or employee is directly or indirectly interested. No
official or employee of the City shall be personally liable in the event of a breach of this Agreement
by the City.
(g) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute but one
and the same instrument.
(h) Effectiveness of Agreement. This Agreement shall not be binding on the
Buyer until executed by an authorized representative of the Buyer, approved by the Mayor and
Common Council of the City and executed by the Mayor or his designee.
(i) Entire Agreement. This Agreement constitutes the entire agreement of the
Parties with respect to the subject matter of this Agreement and supersedes any and all prior oral or
written agreement, understanding or representation relating to the subject matter of this Agreement.
G) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California.
(k) Headings. The paragraph headings used in this Agreement are intended for
convenience only and shall not be used in interpreting this Agreement or in determining any of the
rights or obligations ofthe Parties to this Agreement.
(I) Jurisdiction and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, except for its conflicts of law rules. Any suit,
action or proceeding brought under the scope of this Agreement shall be brought and maintained to
the extent allowed by law in the County of San Bernardino, State of California.
(m) Necessary Actions. Each Party agrees to execute and to deliver additional
agreements, documents and instruments and to take any additional actions as may be reasonably
required to carry out the purposes of this Agreement.
(n) Notices. All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing unless provided otherwise in this Agreement and
shall be deemed to have been duly given and received on: (i) the date of service if served personally
or served by facsimile transmission on the Party to whom notice is to be given at the address or
addresses as provided below, (ii) on the first business day after mailing, if mailed or dispatched by
Federal Express, U.S. Express Mail, or other similar overnight courier service, postage prepaid and
addressed as provided below, or (iii) on the third (3rd) business day after mailing if mailed to the
Party to whom notice is to be given by first class mail, registered or certified, postage prepaid,
addressed as follows:
9
P:\Agendu\Agenda Attachmenls\Agenda Attachmcnts\Agcnda AllachmclItslAgrmts-Amtnd 2009\09-08-09 Waterman Holdings _ EMO Agreement,DOC
2009-320
To the Buyer:
Waterman Holdings, LLC
Attention: Jian Torkan
4221 Wilshire Boulevard, Suite 240
Los Angeles, California 90010
To the City:
City of San Bemardino
Attention: City Attorney
300 North "D" Street, 6th Floor
San Bemardino, California 92418
To the Agency:
Redevelopment Agency of the City of San Bernardino
Attention: Interim Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
(0) Partial Invalidity. If, after the date of execution of this Agreement, any
provision of this Agreement is held to be illegal, invalid or unenforceable under present or future
laws effective during the term of this Agreement, such provision shall be fully severable.
(P) Representations and Warranties. Each representation and warranty contained
herein or made pursuant hereto shall be deemed to be material and to have been relied upon and
shall survive the execution, delivery, performance, expiration or termination of this Agreement.
(q) Successors and Assigns. This Agreement shall constitute covenants running
with the land and shall be binding on all successors and assigns of the Buyer. The Buyer and each
successive owner of the Flood Control Channel Property and the Flood Control Channel Property
Improvements shall have liability hereunder only to the extent same arises from events or
circumstances existing or occurring during its period of ownership of the Flood Control Channel
Property and of the Flood Control Channel Property Improvements. This Agreement may not be
assigned by the Buyer except to a person or entity who is concurrently acquiring Buyer's ownership
of the Agency Property, of the Agency Property Improvements, of the Flood Control Channel
Property and of the Flood Control Channel Property Improvements. The City may assign and
delegate its rights, title, interest and obligations in, to and under this Agreement without obtaining
the prior consent of the Buyer.
(r) Third Party Beneficiaries. Except for the Agency, this Agreement shall not
create any right or interest in any non-Party or in any member of the public as a third party
beneficiary. The Agency is not a party to this Agreement but the Agency shall have the right to
enforce this Agreement in the event the City does not enforce the payment obligations or non-
payment obligations of the Buyer under this Agreement.
(s) Time is of the Essence. Time is ofthe essence in this Agreement.
(t) Waivers. Waiver of any breach or default hereunder shall not constitute a
continuing waiver or a waiver of any subsequent breach either of the same or of another provision
of this Agreement and forbearance to enforce one or more of the remedies provided in this
Agreement shall not be deemed to be a waiver of thaI remedy.
10
P,\Agendas\Agenda AUlchmenls\Agenda AttllchmenU\Agenda Attachmellts\Agrmls-Amend 2009\09.08.09 Waterman Holdings _ EMO AgreemenlDOC
2009-320
(u) Estoppel Certificate. The City agrees to, within twenty (20) calendar days
following any written request from the Buyer, deliver to any potential purchaser or lender a
commercially reasonable estoppel certificate certifying: (i) whether, to the City's knowledge, there
are any then current claims or defaults under this Agreement, and (ii) any other information
regarding this Agreement reasonably requested by such purchaser or lender.
IN WITNESS WHEREOF, the City and the Buyer have executed this Agreement on the
date set forth above.
CITY
City of San Bernardino,
a charter city
Date:
9-//-t:J '7
~~D~~~~m~.-e.e/J-
Its: /J7,q.v IJ-e-
,
Approved as to Form:
Dated:~\ IS" \, Vi
BUYER
Waterman Holdings, LLC,
a CalifOC:: 12pan ,2
~:;". ~,::. '::;,v~(7
Title: 'N\.r:.. vJ.;1lA
11
P\Agendu\Agenda AttachrnentslAgcndll Al1achrnenls\Agenda AltRchments\Agrmts-Amcud 2009\09.08.09 Waterman Holdings - EMO Agreement,DOC
2009-320
State of California )
County of San Bernardino )
On -'11"'+ \ l ~'1 before me ~dY1. 0-~, m...tt.....~ v1~~~ ?..j.I:<..
personally a~d . 'r1. .c..k.. :J. (Y\/3r..: 5 who proved to me on thef
basis of satisfactory evidence to be the perso~ whose name~is/~subscribed to the within
instrument and acknowledged to me that he/~~ executed the same in hism,fi~ authorized
capacity(~), and that by his~tIl:ir signatur~ on the instrument the perso~, or the entity,
upon behalf of which the person~acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
.. . .. .. ..wLlEM~F~:~l
jl~=-~
' ~ 1aIl=.._.'& COUIIIr,
,~__ _'r
s;g""~i. M..~
(Seal)
State of California )
County of San BCl.uUJ.difto )
LoS A.rlC)ek'S . Ii) {.
On S~\- IS ::;?OOGj before me tv\CW U Vav rvoll'c--
personally appeared ---:\j a (\ \ ('sY 1(0. ~ who roved to me on the
basis of satisfactory evidence to be the person~ whose name(}1 is.- subscribed to the within
instrument and acknowledged to me that he/sk8.<tR8)' executed the same in his~/their authorized
capacity(~, and that by his/h '11 fir signature~ on the instrument the person~, or the entity,
upon behalf of which the person(8i) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
J
Signature
MAIIlLU VM8AI
Commllllon lit 171011I
j Notary Pul:IIIc .. ClIIlfomla I
LOI Ange'" Countr -
J _ _ _ _ _ Jt_"I~'"
(Seal)
12
P:\AgendasIAgenda Atlachments\Agenda Attachments\Agenda Attllchlnents\Agrmls-Amend 2009\09-08-09 Waterman Holdings - EMO AgreemenLDOC
2009-320
EXHIBIT "A"
Legal Description of the Flood Control Channel Property
APN: 0135-191-17
PARCEL 9 OF PARCEL MAP NO. 7140, LOCATED IN THE CITY OF SAN BERNARDINO,
AS PER MAP RECORDED IN BOOK 69 OF PARCEL MAPS, PAGES 1 AND 2, RECORDS OF
THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA
TOGETHER WITH THAT PORTION OF PARCEL 1 OF SAID PARCEL MAP NO. 7140,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL I, SAID POINT ALSO
BEING THE NORTHWEST CORNER OF SAID PARCEL 9;
THENCE NORTH 00.07'14" EAST 16.70 FEET ALONG THE WEST LINE OF SAID PARCEL
I;
THENCE LEAVING SAID WEST LINE SOUTH 89.56'51" EAST 275.19;
THENCE SOUTH 86.24'16" EAST 260.00 TO A POINT ON THE SOUTH LINE OF SAID
PARCEL I, SAID SOUTH LINE BEING THE NORTH LINE OF SAID PARCEL 9;
THENCE SOUTH 89.59'06" WEST 534.71 FEET ALONG SAID SOUTH LINE AND SAID
NORTH LINE TO THE SOUTHWEST CORNER OF SAID PARCEL I, AND THE POINT OF
BEGINNING.
13
P-\Agendas\Agenda Attachmenls\Agenda Altllchmenls\Agenda Allachments\Agrmls-Amend 2009\09.08-09 Waterman Holdings - EMO Agreement.DOC
2009-320
EXHIBIT "B"
Flood Control Channel Property Improvements
The Improvement of the Flood Control Channel Property shall consist of a single floor structure
built above that portion of the Flood Control Channel located on and within the Flood Control
Channel Property to provide additional parking spaces for the 2-story, 45,000 square foot building
as constructed adjacent to the Food Control Channel Property. The construction, landscaping, etc.,
of the single floor parking structure shall comply with the City's Development Code and
requirements from any federal and/or state governmental agency, concerning improvements to
andlor near the Flood Control Channel land, that may be imposed on the Developer.
14
P\Agendas\Ayenda Attachmenls\Agenda Attachments\Agenda Atlachments\Agnnts-Amend 2009\09-08-09 WlI.temlan Holdings - EMQ Agreement.OOC