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Home My WebLink AboutCDC/2011-27 1 2 3 4 5 6 RESOLUTION NO. CDC/2011-27 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO TERMINATE THE 1996 LOAN PARTICIPATION AGREEMENT BY AND BETWEEN THE AGENCY AND SUBARU OF SAN BERNARDINO, A CALIFORNIA CORPORATION ("PARTICIPANT") (SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), is a public body, corporate and politic existing under the laws of the State of California, California Community Redevelopment Law, Health and Safety Code Section 33000, et seq. (the "CRL"), and is charged with the mission of redeveloping blighted and underutilized land; and WHEREAS, the Community Development Commission of the City of San Bernardino (the "Commission") is the governing body for the Agency; and WHEREAS, in February of 1996 the Agency and the Participant entered into a certain Loan Participation Agreement (the "Participation Agreement") providing for, amongst other things, a loan from the Agency to the Participant in the original principle amount of $190,000 (the "Agency Loan"); and WHEREAS, the Participant intends to sell the Participant's Subaru New Motor Vehicle dealership business to Imperial Imports, Inc., a California corporation doing business as Toyota of San Bernardino (the "Buyer"); and WHEREAS, the Participant would not be in a position to conclude this sale to the buyer unless the Participation Agreement were terminated; and WHEREAS, the Agency has determined that it would benefit from consummation of the sale of the Subaru Dealership to the Buyer and as a result the Agency is willing to enter into the Termination of Loan Participation Agreement ("Termination Agreement") attached hereto as Exhibit "A", concurrently with the closing of the sale to the Buyer; and WHEREAS, a Termination Agreement of this type does not meet the definition of a "project" under Section 15378 of the California Environmental Quality Act (CEQA). 1 P:\Agendas\Resolutions\Resolutions\201 1\05-16-1 I Subaru - Termination of Loan Participation Agreement CDC Reso.docx CDC/2011-27 1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE 2 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS 3 FOLLOWS: 4 Section 1. 5 correct. 6 Section 2. The information set forth in the above recitals of this Resolution is true and The Commission hereby approves and hereby authorizes the Interim 7 Executive Director of the Agency to terminate the Termination Agreement with the Participant, on 8 behalf of the Agency together with such technical and conforming changes as may be recommended 9 by the Interim Executive Director and approved by the Agency Counsel and the City Attorney. 10 Section 3. The Commission hereby approves that a Termination Agreement of this type does 11 not meet the definition ofa "project" under Section 15378 of the California Environmental Quality 12 Act (CEQA). 13 Section 4. 14 Commission. 15 III 16 III 17 III 18 III 19 III 20 III 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 III This Resolution shall take effect from and after its date of adoption by this P:\Agendas\Resolutions\Resolutions\201l\OS-16-11 Subaru - Termination of Loan Participation Agreement CDC Reso.docx 2 CDC/2011-27 1 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO TERMINATE THE 1996 LOAN P ARTICIP A TION AGREEMENT BY AND BETWEEN THE AGENCY AND SUBARU OF SAN BERNARDINO, A CALIFORNIA CORPORATION ("PARTICIPANT") (SOUTHEAST INDUSTRIAL PARK REDEVELOPMENT PROJECT AREA) 3 4 5 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community 7 Development Commission of the City of San Bernardino at a j oint regular 8 meeting thereof, held on the 16th day of May 9 , 2011, by the following vote to wit: 10 Commission Members: 11 MARQUEZ 12 VACANT 13 BRINKER 14 SHORETT 15 KELLEY 16 JOHNSON 17 MC CAMMACK Abstain Absent Nays Ayes -1L x x x x x ~-) secreta~ c. u '","" /" 18 19 20 1'~ The foregoing Resolution is hereby approved this ~ day of 21 22 May , 2011. 23 24 25 Approved as to Form: 26 By: V;;;;: iJU 27 Agenc nsel atric . Morris, rson o unity Development Commission of the City of San Bernardino 28 3 P:\Agendas\Resolutions\Resolutions\20 11 \05-16-11 Subaru - T ennination of Loan Participation Agreement CDC Reso.docx CDC/2011-27 EXHIBIT "A" CDC/2011-27 TERMINATION OF LOAN PARTICIPATION AGREEMENT THIS TERMINATION OF LOAN PARTICIPATION AGREEMENT (the "Termination Agreement") is entered into as ofthis 16th day of May, 2011, by and between the Redevelopment Agency of the City of San Bernardino (the "Agency"), a public body, corporate and politic and Subaru of San Bernardino, a California corporation (the "Participant"). The Agency and the Participant hereby agree as follows: RECIT ALS WHEREAS, on or about February 20, 1996, the Agency and the Participant entered into that certain Loan Participation Agreement (the "Participation Agreement") providing for, among other things, a loan from the Agency to the Participant in the original principle amount of$190,000 (the "Agency Loan"); and WHEREAS, the Participant intends to sell the Participant's Subaru New Motor Vehicle dealership business to Imperial Imports, Inc, a California corporation doing business as Toyota of San Bernardino (the "Buyer"); and WHEREAS, the Participant would not be in a position to conclude this sale to the Buyer unless and until the Participation Agreement were terminated; and WHEREAS, the Agency has determined that it would benefit from consummation of the sale of the Subaru Dealership to the Buyer and as a result, the Agency is willing to enter into this Termination Agreement concurrently with the closing of the sale to the Buyer; and NOW THEREFORE, in consideration of the mutual covenants, conditions herein set forth and intending to be legally bound, the parties hereby agree as follows: 1. Definitions. Defined terms used in this Termination Agreement as indicated by words being capitalized shall have the same meaning as set forth in the Participation Agreement unless specifically set forth herein. 2. Termination. Effective and conditioned upon the closing ofthe sale of substantially all of the assets of the Participant's Subaru New Motor Vehicle Dealership to the Buyer, and the Buyer's taking possession of said Assets and the Dealership premises located at 1790 South "E" Street, San Bernardino, California 92408 (the "Closing"), and Buyer's contractual obligation to Participant to retain the Subaru dealership in the City of San Bernardino, the Participation Agreement shall for all purposes be deemed terminated, and of no further force and effect, and amounts of principal, interest, or other charges, if any owed under the Agency Loan or otherwise owing under the Participation Agreement shall be deemed discharged and fully and completely satisfied. Such termination and discharge of obligations shall be effective as to the Participation Agreement, the Buyer, and any of their respective shareholders, directors, officers, or agents. 1 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2011\05-16-11 Subaru - Termination of Loan Participation Agreement.doc CDC/2011-27 3. Survivin2 Obli2ation. Notwithstanding the foregoing termination of the Participation Agreement, the obligations of the Participant to defend and hold harmless, the Agency and others as set forth in the first sentence of Section 4 of the Participation Agreement shall survive the foregoing termination ofthe Participation Agreement. However, the obligations imposed by the second sentence of Section 4 concerning insurance shall terminate concurrently with termination of the Participation Agreement. 4. Successors. This Termination Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors, assigns, heirs, and personal representatives. 5. Amendments. Amendments, supplements, or waivers affecting any of the terms of this Termination Agreement shall be void and of no effect unless in writing and signed by the party to be charged. 6. Entire A2reement. This Termination Agreement contains the entire agreement and understanding of the parties respecting its subject matter and supercedes any promises, agreements, or understandings, written or oral, related thereto. 7. Attorneys' Fees. In any judicial or administrative action to enforce the terms of this Termination Agreement, or where the terms of this Termination Agreement provide an effective defense to an action in tort, contract, or otherwise, the prevailing party shall be entitled to recover costs and reasonable attorneys' fees, paralegal fees, accounting and expert witness fees incurred, it being stipulated that attorneys' fees for enforcement of judgment shall be allowable as post- judgment costs. 8. Counterparts. This Termination Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument, and shall be binding upon each Party even if both Parties are not signatories to the same counterpart or counterparts. Signatures on this Termination Agreement delivered by facsimile or email transmission shall be given the same force and effect as the original signatures. III III III III III III III 2 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2011\05-16-11 Subaru - Termination of Loan Participation Agreement.doc CDC/2011-27 IN WITNESS WHEREOF, the Parties hereto execute this Termination Agreement on the date set forth opposite their respective signatures. AGENCY Dated: i),l)tJ/ Redevelopment Agency of the City of San Bernardino, a public body, corporate andp()litic (~ . ~.~- ":... By: Emil A. Marzullo, Approved as to Form and Legal Content: By: ([~(;.L'-LrtkJ t )~(ll([~f~ Ag ncy Counsel . P ARTICIP ANT Subaru of San Bernardino, a California corporation Dated: By: / [ Harris, President 3 P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2011 \05-16-11 Subaru - Termination of Loan Participation Agreement.doc