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Home My WebLink About1991-5308 1 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 RESOLUTION NO. 5308 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING A CERTAIN OWNER PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND TACO TIA, INC. WHEREAS, the City of San Bernardino, California (the "City") is a municipal corporation and a charter city duly created and existing pursuant to the Constitution and the laws of the State of California; and WHEREAS, the Community Development Commission of the City of San Bernardino (the "Commission") on behalf of the Redevelopment Agency of the City of San Bernardino (the "Agency"), is a redevelopment agency, a public body, corporate and politic of the State of California, organized and existing pursuant to the Community Redevelopment Law (Part 1 of Division 24) commencing with section 33000 of the Health and Safety Code of the State of California (the "Act"); and WHEREAS, the City and the Commission have previously approved and adopted the Redevelopment Plan for the Mt. Vernon Corridor Project Redevelopment (the "Mt. Area Vernon Redevelopment Plan"); and WHEREAS, in connection with the implementation of the Mt. Vernon Redevelopment Plan, the Agency has received a request from Taco Tia, Inc.. (the "Participating Owner") to assist in the development of a certain commercial fast food facility (the - 1 - 1 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 "Project") to be located at 494 South Mt. Vernon Avenue, which is within the Project Area subject to the Redevelopment Plan; and WHEREAS, the Agency deems it desirable to assist the Participating Owner in the development of the Project to the extent that the Agency shall reimburse the Participating Owner for the costs of construction of certain public improvements necessary for the Project; and WHEREAS, the amount of the Agency reimbursement shall be in an amount not to exceed $75,000,00 and shall be paid upon the completion of the public improvements required for the Project; and WHEREAS, the public improvements consist of the widening of the rights-of-way and the improvement of the sidewalks, curbs and gutters which improvements will improve traffic and pedestrian safety conditions within the Project Area; and WHEREAS, the Agency at this time deems it desirable to approve that certain Owner Participation Agreement by and between the Agency and the Participating Owner, a copy of which is attached hereto as Exhibit "A" and incorporated herein by this reference which sets forth the terms of the Agency's assistance. III III III - 2 - 1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF 2 THE CITY OF SAN BERNARDINO, CALIFORNIA, DOES HEREBY FIND, 3 RESOLVE, DETERMINE AND ORDER AS FOLLOWS: 4 5 Section 1. The commission hereby approves the Owner 6 Participation Agreement, a copy of which is attached hereto as 7 Exhibit "A" and incorporated herein by this reference. 8 9 section 2. The commission hereby authorizes the 10 Chairman and Secretary to execute the Owner Participation 11 Agreement on behalf of the Agency with any such non-substantial 12 changes as may be approved by the Executi ve Director of the 13 Agency and Agency Counsel. 14 I I I 15 I I I 16 I I I 17 III 18 I I I 19 I I I 20 I I I 21 I I I 22 III 23 III 24 III 25 III 26 I I I 27 III 28 III - 3 - 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, CALIFORNIA, APPROVING A CERTAIN OWNER 2 PARTICIPATION AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND TACO TIA, INC. 3 4 section 3. This Resolution shall take effect upon 5 its adoption. 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly 8 adopted by the Community Development Commission of the City of 9 San Bernardino at a Regular meeting 10 thereof, held on the 7th day of 11 1991, by the following vote, to wit: October 12 13 commission Members: AYES NAYS ABSTAIN ABSENT 15 ESTRADA REILLY HERNANDEZ MAUDSLEY 16 MINOR POPE-LUDLAM 17 MILLER 18 19 x x x x x 14 x x 7th The day s~ foregoing resolution is hereb of October , 1991. /~~ /" ,/y /" . ~/ '/'/ W. R. 0 Community Development Commission of the City of San Bernardino this 20 21 22 23 24 : :::rov:;a:~:~J-?~ content: fi=';~ 27 28 8BOO\0001 \DOC\519 - 4 - 1 STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO ss 2 CITY OF SAN BERNARDINO 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 I, Kenneth J. Henderson Secretary of the Community Development Commission of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and attached copy of Community Development Commission of the City of San Bernardino Resolution No. 5308 is a full, true and correct copy of that now on file in this office. IN WITNESS WHEREOF, I have hereunto set my hand and aff ixed the off icial seal of the Community Development Commission of the ci ty of San Bernardino this 7th day of October , 1991. h Community D velopment commission of the city of San Bernardino II I' ,....., 1 ..,-" 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 EXHIBIT "A" OWNER PARTICIPATION AGREEMENT I"""'" '- l"'- '- c SBE00001/DOC/510/es 09/17/91 445 RECORDING REQUESTED BY: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND WHEN RECORDED RETURN TO: SABO & GREEN, a Professional Corporation Suite 400 6320 Canoga Avenue Woodland Hills, California 91367 (Space Above for Recorder's Use) REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO OWNER PARTICIPATION AGREEMENT (TACO TIA PROJECT) By and Between REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO and TACO TIA, INC. r '-' RECITALS section 1. section 2. Section 3. section 4. section 5. section 6. section 7. section 8. section 9. section 10. section 11. section 12. section 13. section 14. section 15. section 16. section 17. Section 18. section 19. section 20. section 21. section 22. section 23. TABLE OF CONTENTS Paae 1 Incorporation of Basic Documents................. 4 l?\1))JLjLc: l?\1~~()e;E!................................... 4 Construction of Public Improvements.............. 5 Construction of the Project...................... 6 Participating Owner's Responsibilities........... 6 certain Sales or Transfers of the Project........ 9 Notice of Sales and Transfers.................... 10 Public Bid and Prevailing Wage................... 10 Plans and Specifications......................... 10 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11 Obligation to Obtain Financing................... 13 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13 Applicability of Laws and Litigation Costs....... 14 Nondiscrimination and Related Covenants.......... 14 certificate of Completion........................ 16 Successors and Assigns; Assignment............... 17 Events of Default................................ 17 Entire Agreement; Amendment...................... 19 Severabili ty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 20 section Headings................................. 20 Meaning of Terms................................. 20 Indemnif ication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21 Effective Date of This Agreement; Execution; Term of Agreement.............................. 21 EXHIBIT "A" - Legal Description EXHIBIT "B" - Scope of Development EXHIBIT "c" - Description of Public Improvements EXHIBIT nD" - certificate of Completion .1""" "'- - i - c REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO OWNER PARTICIPATION AGREEMENT (TACO TIA PROJECT) This Owner Participation Agreement (the "Agreement") is entered into this 7th day of October , 1991, by and between the Redevelopment Agency of the City of San Bernardino, a pUblic body, corporate and politic duly organized and existing pursuant to the Community Redevelopment Law of the State of California (hereinafter referred to as the "Agency") and Taco Tia, Inc., a California corporation (hereinafter referred to as the "Participating Owner") and is entered into by the parties hereto wi th reference to the following facts: RECITALS WHEREAS, the Agency is authorized and empowered by the Community Redevelopment Law, Chapter 1 of Division 24 of the California Health and Safety Code, as amended (the "Law"), to permit owner participation in the redevelopment of real property; to enter into agreements for the acquisition, disposition and development of property or to otherwise assist in the redevelopment of real property within a re~evelopment project area conforming with a redevelopment plan adopted for such area; to acquire real and personal property in redevelopment project areas; to receive consideration for the provision of redevelopment assistance; to make and execute contracts and other instruments necessary or convenient to the exercise of its powers; and to incur indebtedness to finance or refinance '...~ redevelopment projects; and - 1 - .....~~ c WHEREAS, the Redevelopment Plan for the Mt. Vernon Corridor Redevelopment Project, has been approved and adopted by the City of San Bernardino, California (the "City"), by Ordinance No. Me- 733 (the "Redevelopment Plan"); and WHEREAS, the Participating Owner owns certain real property generally located at 494 So. Mt. Vernon Avenue, within the project area subject to the Redevelopment Plan (the "Project Area"), as legally described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property"); and WHEREAS, the Participating Owner intends to develop the Property by undertaking the construction of a fast food restaurant C facility on the Property (the "Project"), all as more fully described in the Scope of Development attached hereto as Exhibit "B" and incorporated herein by this reference, in order to eliminate the blighted condition of the Property and to facilitate development of the Property for uses consistent with the Redevelopment Plan; and WHEREAS, the Participating Owner has requested the Agency to exercise certain redevelopment powers, pursuant to the Community Redevelopment Law, and to assist the Participating Owner with respect to undertaking the Project; and WHEREAS, it is proposed that the Agency assistance with respect to the development of the Project will consist of reimbursing ('f,t"" -- the Participating Owner for the costs of the acquisition, construction and installation of certain pUblic facilities and - 2 - improvements (the "Public Improvements") as more fully described in ,.- Exhibit "C" attached hereto and incorporated herein by this '- reference; and WHEREAS, the Participating owner has submitted information to the Agency, based upon good faith representations to the Agency made by the Participating owner, that the pri vate improvements comprising the Project, upon completion and installation, shall have an assessed valuation, attributable to land and improvements, including machinery and equipment thereon, for ~ valorem property tax purposes, equal to approximately Two Hundred Thousand Dollars ($200,000); and WHEREAS, it is currently anticipated that the Project, upon C completion, shall generate gross sales revenues, based upon good faith representations made to the Agency by the Participating Owner, equal to approximately Five Hundred Twenty Five Thousand Dollars ($525,000) per year and will create emploYment opportunities for approximately fifteen (15) persons; and WHEREAS, the Agency intends to assist the Participating Owner in completing the Project to the extent that the Agency shall reimburse the Participating Owner for the costs of the acquisition, construction and installation of the Public Improvements as described on Exhibit "C" in an amount not to exceed Seventy Five Thousand Dollars ($75,000) (the "Agency Assistance"); and r '- WHEREAS, the development of the Project will benefit the Project Area by eliminating a blighted condition within the Project - 3 - Area and will facilitate development of the Property in a manner ~~ consistent with the Redevelopment Plan and help encourage economic '''''"- growth and revitalization within the Project Area; and WHEREAS, the construction of the Public Improvements will benefit the Project Area by improving existing right of way and creating safer traffic and pedestrian conditions; and WHEREAS, the Participating owner has demonstrated to the satisfaction of the Agency its financial ability to undertake the completion of the Project. NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: c section 1. IncorDoration of Basic Documents. The Redevelopment Plan, as amended, is by reference incorporated herein and made a part of this Agreement with the same force and effect as though set forth in full herein; provided, however, that any amendments to the Redevelopment Plan after the date of this Agreement shall not affect any rights granted hereby to the Participating Owner, except as may otherwise be required by law. All terms not otherwise defined herein shall have the same meaning as used in the community Redevelopment Law, Health and Safety Code Section 33000, et ~. (the "Law"). The recitals are by reference incorporated herein and made a part of this Agreement. Section 2. PU1?lic Purpose. The Agency and the '- Participating Owner agree that the completion of the Project shall be undertaken for the common benefit of the parties hereto and the - 4 - ~ residents of the City in order to eliminate blight within the Project \~ Area. The Agency and the Participating Owner further agree that the development of the Project shall not only eliminate bli9~t on the Property, but will also assist in creating an environment which will encourage and facilitate the elimination of blight within the Project Area. Therefore, the completion of the Project will be of benefit to the Project Area, and will help improve, upgrade and revitalize, both economically and physically, a portion of the City located within the Project Area that manifests itself as a blighted area. In addition, the construction of the Public Improvements necessary for the completion of the Project will enhance traffic and pedestrian safety conditions. c Section 3. Construction of Public ImDrovements. The Agency hereby agrees that in order to assist the Participating Owner in the development of the Project, the Agency shall, upon the fulfillment of the conditions and obligations of the Participating OWner hereunder, provide the Agency Assistance through the reimbursement to the Participating Owner of its costs of causing the acquisition, installation and construction of the Public Improvements as more fully described in Exhibit "C". The Agency shall provide the Agency Assistance, in an amount not to exceed Seventy Five Thousand Dollars ($75,000), within thirty (30) days of completion of the Public Improvements, as evidenced by the written verification of the City Engineer, or his designee, which verification shall not be unreasonably withheld and upon receipt by the Agency of invoices '-' - 5 - c representing costs incurred and paid by the Participating Owner in connection with the construction of the Public Improvements. Section 4. Construction of the proj ect. The Participating Owner, solely at its own cost, shall undertake or cause to be undertaken the acquisition, construction and installation of the private improvements comprising the Project. The Participating Owner shall pay any and all fees and assessments that may be levied against the Project or the Property or which may be required in connection with the construction of the private improvements which comprise the Project. The Participating Owner shall commence construction of such private improvements prior to January 31, 1992 and shall complete such construction prior to July 1st, 1992 subject to any extensions by mutual written consent of the parties hereto. c In addition, the Participating Owner shall cause the acquisition, construction and installation of the Public Improvements, the costs of which are to be reimbursed by the Agency in the form of the Agency Assistance. Such Public Improvements shall be completed prior to the completion of the private improvements which comprise the Project. Section 5. Participatinq Owner's ResDonsibilities. A substantial portion of the consideration which supports the agreement as herein contained of the Agency to assist in the redevelopment of the Property is the agreement of the Participating Owner to complete .,- - 6 - r- '-' the Project as set forth in the Scope of Development attached hereto as Exhibit "B", including the construction of the Public Improvements, and cause the commencement of commerctal retail operations prior to July 1, 1992, all as evidenced by the issuance of a certificate of Completion in the form attached hereto as Exhibit "0", subject to any extensions as mutually agreed upon by the Parties hereto. However, the foregoing responsibility of the Participating owner shall be subject to the following limitations: By reason of acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the Government of the united States or of the state of California or any department, agency, c:: political subdivision, court or official of any of them, or any civil or military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; volcanoes; fires; hurricanes; tornados; storms; floods; washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions; breakage or accident to machinery; partial or entire failure of utilities; or any cause or event not reasonably within the control of the Participating Owner, the Participating Owner is unable in whole or in part to carry out anyone or more of its agreements or obligations contained in this Agreement, the Participating Owner shall, for the time of said delay or such longer period as shall be agreed in writing by the Agency, not be deemed in default pursuant to Section 17 hereof by reason of not carrying out said agreement or agreements or performing said r .,- - 7 - c c ........... .~--- obligation or obligations during the continuance of such inability. The Participating Owner shall make reasonable effort to remedy with all reasonable dispatch the cause or causes preventing - it from carrying out its agreements; provided, that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of the Participating Owner, and the Participating Owner shall not be required to make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is in the judgment of the Participating Owner unfavorable to the Participating Owner. The completion and operation of the Project by the Participating Owner shall substantially assist the Agency to implement the Redevelopment Plan. Therefore, the Participating Owner will take all reasonable steps to enable the Project, including the Public Improvements, to be completed prior to July 1, 1992. In addition, the Participating Owner hereby estimates that following completion of construction, improvement and commencement of operations, the Project, including the Property, shall have an assessed valuation attributable to land and improvements for ad valorem property tax purposes equal to at least Two Hundred Thousand Dollars ($200,000) for each fiscal year following such completion. Furthermore, the Participating Owner agrees, based on information available to it at the present time, that the completion of the Project and the commencement of commercial retail operations should - 8 - c ,,-... if '-' #-'~ .",-, result in the generation of gross sales revenues attributable to the Project in an annual amount equal to at least Five Hundred Twenty Five Thousand Dollars ($525,000). The Agency has relied~upon such representations as to valuation and sales tax generation in determining the scope of the Agency Assistance that would be warranted under the circumstances to encourage the construction of the Project. For the purposes hereof, completion of the Project shall mean the date on which the Agency approves the issuance of a Certificate of Completion provided that such approval shall not be unreasonably withheld and which Certificate of Completion shall be substantially in the form attached hereto as Exhibit "0", certifying that the construction of the Project, including the installation of any operating machinery and equipment and the construction of the Public Improvements, has been completed and that the commercial retail operations as contemplated by the construction of the Project by the Participating Owner have commenced. Section 6. Certain Sales or Transfers of the Pro;ect. The participating owner hereby covenants and agrees not to sell, transfer or otherwise dispose of the Property or the project located thereon prior to the completion of the Project and for a period of ten (10) years therefrom without obtaining the prior express written consent of the Agency which consent shall not be unreasonably - 9 - .~ withheld to the extent that the objectives of the Agency under this '- Agreement are being or will be met. Section 7. Notice of Sales and Transfers. Notwithstanding the foregoing, and for the term of this Agreement, the Participating owner agrees to notify the Agency in writing of any sales or transfers of any portion of the Property or the Project prior to the consummation of such sale and/or transfer, which notice shall contain the name, address and formal description of the entity so acquiring interests in the Project or the Property. Section 8. Public Bid and prevailina Waae. The Participating Owner shall comply with any public bid procedures and c:: shall comply with any prevailing wage requirements, as applicable, in connection with the construction of the Public Improvements and the Project. section 9. Plans and SDecifications. The Participating Owner agrees that the plans and specifications to be prepared for the acquisition, construction and installation of the improvements comprising the Project shall be submitted to the appropriate department of the City for approval prior to commencement of construction; provided, however, that said plans and specifications shall be in all respects in accordance and in conformity with this Agreement, the Redevelopment Plan and all appropriate plans or .""..... '- building standards of the City. In the event said plans and - 10 - c ..,- '~ t""""" '-' specifications are not reasonably acceptable to such department of the City and in compliance with this Agreement, then, in such event, the Participating OWner agrees to amend or modify said-plans and specif ications or to submi t such further or addi tional plans and specifications as may reasonably be required by the appropriate department of the city. The plans and specifications approved by the appropriate department of the City shall not be amended or modified in any material respect subsequent to such date of approval without the prior written approval of either or both the City or the Agency, as applicable. Section 10. Remedies. In the event the Participating Owner breaches any of its covenants or obligations under this Agreement, the Participating Owner shall, at the option of the Agency and upon demand by the Agency to the Participating Owner, immediately reimburse to the Agency the amount of the Agency Assistance. As a further and cumulative remedy, the Participating Owner, for itself, legal representatives, successors and assigns, agrees that the Aqency, its successors and assiqns, shall have the riqht and power to institute and prosecute any proceedinq at law or in equity to enforce any covenants and aqreements herein contained and to enj oin the threatened or attempted violation thereof by the Participating Owner, legal representatives, successors, tenants and assiqns and/or to collect damaqes from the aforesaid, whomsoever of which may violate said covenants and aqreements; and in addition, the Participatinq Owner for itself, leqal representatives, successors and assiqns does - 11 - r hereby grant the Agency such right and power to institute and '-" prosecute such proceedings. The remedies for the benefit of the Agency set forth in this section 10 shall be in addition to any and all other remedies available to the Agency under this Agreement or as a matter of law. The parties acknowledge and agree that the Agency may exercise any and all legal and equitable remedies available to the Agency under the laws of the State of California to enable the Agency to exercise the rights of the Agency hereunder and to enforce the provisions of this Agreement including, but not limi ted to, those which are contained in this Section 10. The Participating Owner further agrees to pay upon written demand of the Agency all costs, fees and expenses of the Agency including, but not limited to, attorneys' fees, court costs and costs attributable to Agency Staff time, incurred in connection with any enforcement by the Agency of the provisions of this section 10 or the seeking of any remedies legally available to the Agency related to this Agreement. In the event the Agency breaches any of its covenants or obligations under this Agreement, the Participating Owner may exercise all legal and equitable remedies available to the Participating Owner under the laws of the State of California. ,,1'/;.."""'- '- - 12 - I"'" \..r Section 11. Obliaation to Obtain Financina. The Agency shall have no obligation or commitment to provide any form of financial assistance to the Participating Owner in conneetion with the Property or the completion of the Project, except as is specifically provided in this Agreement. section 12. Notices. All notices and demands of any kind which any party hereto may be required to serve upon any other party under the terms of this Agreement shall be served in writing on such other party by personal service or by leaving a copy of such notice or demand at the address hereinafter set forth, whereupon service shall be deemed complete and notices and demands shall be deemed to have been received on the date of such personal service; or c:: by mailing a copy thereof by certified or registered mail, postage prepaid, airmail if the address is outside the State in which the same is mailed, with return receipt requested, addressed as follows: If to the Agency: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, California 92401-1507 Attention: Executive Director with copy to: Sabo & Green 6320 Canoga Avenue suite 400 Woodland Hills, California 91367 Attention: Timothy J. Sabo If to the Participating Owner: Taco Tia, Inc. 2396 Steel Road Colton, California 92324 Attention: Tod Mc Donald, President r-- .,-, - 13 - ..~.-r r In case of service by mail, service shall be deemed complete and \-' notices and demands shall be deemed to have been received at the expiration of the third calendar day after the date of- -mailing, notwithstanding any other date for receipt set forth on any return receipt or the failure of any party to receive a return receipt. The addresses to which notices and demands may be delivered or sent may be changed from time to time by service of notice as hereinabove provided by any party upon the other party. section 13. ADDlicabilitv of Laws and Litiaation Costs. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Should any action be brought in any court of competent jurisdiction, the prevailing party in such action I"'" ........ shall be enti tled to reimbursement by the other party for all reasonable attorney's fees, court costs and other costs related to such litiqation. section 14. Nondiscrimination and Related Covenants. The Participating OWner agrees that, in addi tion to the other provisions set forth in this Agreement, every conveyance of the Property, in whole or in part to the extent as permitted pursuant to this Agreement, shall, in addition to any other covenants, contain covenants on the part of the Participating Owner, for itself, its successors and assigns of the Property and which covenants shall be covenants running with the land and shall bind the Participating "-' - 14 - r' OWner, its successors and assigns and all persons claiming under or ~ through it to effectuate the following: (a) That the work of the redevelopment of the Property or part or parts thereof as in this Agreement provided shall be implemented as intended by this Agreement. (b) 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 premises to be conveyed, nor shall the participating OWner or any grantees or any persons claiming under or <:: through the Participating Owner establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the premises to be conveyed. (c) That, after the satisfactory completion of the Project made necessary by this Agreement, the Property shall be devoted to the uses specified in this Agreement and consistent with the Redevelopment Plan and shall not, in whole or in part, be devoted to any other use or used for any other purposes. (d) That such agreements and covenants shall run with the land, and shall inure to the benefit of and be enforceable by the c - 15 - " Agency, its successors and assigns. Furthermore, it is intended and <'-"" agreed that the covenants contained in subsection (b) of this section 14 shall remain in effect without limitation as to-time. (e) Such agreements and covenants shall run in favor of the Agency for the entire period during which such agreements shall remain in force and effect without regard to whether the Agency has at any time been, remains, or is an owner of any land or interest therein to which these covenants relate. In the event of any breach, the Agency shall have the right to exercise all the rights and remedies available at law or in equity to enforce the curing of such breach. c (f) That no portion of the Project or the Property shall be sold or used by any tax-exempt entity for the duration of the Redevelopment Plan without written consent of the Agency. It is the intent hereof that the provisions of subsections (a) through (f), inclusive, hereof shall survive the termination of the other operative provisions of this Agreement and as may additionally be required by the Constitution and laws of the State of California and the Law. Section 15. Certificate of ComDletion. The Agency, its successors and assigns agree that upon the full compliance by the Participating Owner with the terms of this Agreement which pertain to ,r~"'--""" "'-' - 16 - ,...... the construction of the Project upon the Property, and following "'-' completion of the Project, the receipt by the Agency of a written request from the Participating OWner for a certificate of ~ompletion and notification that the Property is ready for occupancy, the Agency shall provide promptly and furnish to the Participating Owner a certificate of Completion, substantially in the form as attached hereto as Exhibit "0", certifying that the construction and acquisition or installation of the Project, as required pursuant to this Agreement, has been completed to the satisfaction of the Agency, its successors and assigns. Upon issuance of the Certificate of Completion by the Agency, each of the covenants, restrictions, warranties and conditions contained in this Agreement relating to the construction of the Project shall be deemed satisfied and shall c:: terminate. section 16. Successors and Assians: Assianment. The provisions of this Agreement shall be binding upon and inure to the benef it of the heirs, executors, administrators, successors and assigns of the parties hereto. The Participating Owner shall not assign, transfer or in any manner hypothecate any or all of the rights and obligations of the Participating Owner under this Agreement or with respect to the Property without the prior written approval and consent of the Agency. Section 17. Events of Defaul t. "Event of Default" wherever used in this Section, means anyone of the following events I""" '-- - 17 - .~ (whatever the reason for such Event of Default and whether it shall "-"'" be voluntary or involuntary, or be effectual by operation of law pursuant to any judgment, decree or order of any court or~ny order, rule or regulation of any administrative or governmental body superior to the Agency): (a) Default in the performance, or breach, of any provision of this Agreement by the Participating Owner, and continuance of such Default or breach for a period of thirty (30) calendar days after the Agency has given notice as specified in Section 12, and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (b) The entry of a decree or order by a court having jurisdiction in the premises adjudging the Participating Owner bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Participating Owner under the Federal Bankruptcy Act or any other applicable federal or state law, or appointing a recei ver , liquidator, assignee, trustee, sequestrator, or other similar official of the Participating Owner or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) calendar days; or "- - 18 - c (c) The institution by the Participating OWner of proceedings to be adjudged bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Act or any other applicable federal or state law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Participating Owner or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Participating Owner in furtherance of any such action. :- ..'-' section 18. Entire Aareement: Amendment. Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporary agreements and understandings. The parties intend this Agreement to be the final expression of their agreement with respect to the terms hereof and a complete and exclusive statement of such terms. No modification, amendment or wai ver of any term hereof shall be binding unless executed in writing by any party or parties to be bound thereby. This Agreement may be amended from time-to-time as deemed necessary by the parties hereto upon written instruments duly - 19 - #.~...... C' , , approved and executed by the parties hereto. Any such amendments or modifications shall be valid, binding and legally enforceable only if in written form and executed by both the Participating Owner and the Agency after the same have been duly approved and authorized for execution. Section 19. Severability. Each and every section of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall to any extent be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable shall not be affected thereby, and /.,.<-'.,., ',- each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. Section 20. Section .Headinas. The headings of the several sections of this Agreement are inserted solely for convenience of reference, and are not a part of and are not intended to govern, limit or aid in the construction of any term or provision hereof. Section 21. Meanina of Terms. Where the context so requires, the use of the masculine gender shall include the feminine and the neuter gender, and the singular shall include the plural and vice versa. ,..... '-" - 20 - '-' c c Section 22. Indemnification. It is understood and agreed that no official, employee or agent of the Agency shall be personally liable to the Participating Owner or to anyone~lseas to any obligation or obligations under the terms of this Agreement. The Participating Owner shall save the Agency, and all parties in privity to it, harmless from all claims, demands, causes of action, expenses, and liability of whatsoever kind or nature which may arise out of, because of, concerning, or incident to the performance of the Participating Owner under this Agreement, including all court actions, costs and expenses and attorney's fees relative to the Agency being a party to this Agreement as may be initiated by the Participating Owner or any third party for any reason whatsoever, including any claims for damages or with respect to personal injuries on the Property. Section 23. Effective Date of This Agreement: Execution; Term of Aareement. This Agreement shall not be effective for any purpose whatsoever or binding and enforceable upon the Agency until such time as this Agreement has been approved pursuant to official action of the Agency in accordance with a duly adopted and approved Agency resolution authorizing the Chairman and Secretary of the Agency to execute this Agreement on behalf of the Agency. This Agreement may be executed in original counterparts, each of which shall be deemed to be an original for all purposes, and such counterparts shall constitute one and the same instrument. This - 21 - " Agreement shall remain in full force and effect until all of the \..... obligations hereunder have been satisfied in full. ,,-... '-- - 22 - c IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the year and day first hereinabove written. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: ~ (SEAL) Attest: By: /J Ii. .J6. / A\ A S;;~ Approved as to Form: c "PARTICIPATING OWNER" TACO TIA, INC., a California corporation BY: ~JJ y d Mc Donald, President Q) ;: i= c '" u .~ E c( >- u; ; "" Q iI: E ~o Cu .2 Q) - u ~ ~ the corporation therein named, and acknowledged to me that Cl.... 0;: such corporation executed the within instrument pursuant to its ; l Cbyolaws or a resolution of its board of directors. i ~ WITNESS my hand ,and 0 icial seal. !e l STATE OF CALI~NIA J!? ". JA-YJ"". .~ lss. COUNTYOF ~~~~u/A/C/ l On ...5e~ /&:;..e o?" / '14/ , before me, the undersigned, a Notary Public in and for ---;?;.b /1J t2A!:A/A t...L> said State, personally appeared and I ' personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as President and Secretary, on behalf of T /1110 T/I1" 7,u(! . r . .... :e /OFFICIAL SEALI KIMBERLY KING NOTARY PUBLIC. CAliFORNIA SAN BERNARDINO COUNTY ~y Commission Expires Nov. 20. 1992.... .."0""" _ ..... 'N o o ,M Sign- (This area for official notarial seal) EXHIBIT "A" LEGAL DESCRIPTION r '-' PARCEL 1: The South 42 feet of Lots 1 and 2, Block 9, Martin Tract, in the City of San Bernardino, State of California as per plat recorded in Book 3 of Maps, Page 27, in the County of San Bernardino. PARCEL 2: Lots 9, 10, and 11, Block 9, Martin Tract, in the City of San Bernardino, State of California, as per plat recorded in Book 3 of Maps, Page 27, in the County of San Bernardino. " ~' '- A-I .",..~,..... EXHIBIT "B" SCOPE OF DEVELOPMENT I"" '-' All demolition, relocation and construction of existing and new utilities services and right-of-way improvements required to accomplish the widening of Mt. Vernon Avenue and Mill Street to its ultimate width as designated by the Ci ty of San Bernardino's engineering general plan. These improvements shall be constructed only as required to the parcels as described in Exhibit "A". /"'~'... f \..- ~,- ~ ~ '- (""'" '- ~ '-'" EXHIBIT "C" DESCRIPTION OF PUBLIC IMPROVEMENTS All street, driveway, sidewalk and utility services within the public right-of-way providing services to the parcels as noted in Exhibit "A". Inclusive of, but not entirely limited to, the following: 1. Demolition of existing street, driveway and sidewalk improvements. 2. Relocation of existing utility services, manholes, traffic signals, pOles, signs and fire hydrants. 3. Construction and installation of all street paving, concrete curbs and gutters, driveways and sidewalks. r '- c ,!",f,.til~ ~ EXHIBIT "D" When Recorded, Mail to: CERTIFICATE OF COMPLETION We, , Chairman and Secretary of the Red~velopment Agency of the City of San Bernardino hereby certify as follows: October By its Resolution No. 5308, adopted and approved 199-L-, the Redevelopment Agency of the City of , San Bernardino has resolved as follows: Section 1. The improvements [or that certain portion of the improvements described as ] required to be constructed in accordance with that certain Owner Participation Agreement (the "Agreement") dated , 199__, by and between the Redevelopment Agency of the City of San Bernardino and Taco Tia, Inc., a California corporation (the "Participating Owner") on that certain real property more fully described in Exhibit "A" attached hereto and incorporated herein by this reference have been completed in accordance with the provisions of said Agreement. Section 2. This Certificate of Completion shall constitute a conclusive determination of satisfaction of the D - 1 of 4 ,- '- agreements and covenants contained in the Agreement with respect to the obligations ,of the Participating Owner, and its successors and assigns, to construct the improvements and the dateS' - for the beginning and completion thereof; provided, however, that the Agency may enter the Property for purposes of enforcing any covenant of the Agreement and shall have the right to offset such expenditures against sums otherwise due to the Participating Owner under the Agreement. Said Agreement is an official record of the Redevelopment Agency of the City of San Bernardino and a copy of said Agreement may be inspected in the office of the Secretary of the Redevelopment Agency of the City of San Bernardino located at 201 North "E" Street, Third Floor, San Bernardino, California 92401-1507 during regular business hours. -, '-- Section 3. The real property to which this certificate of Completion pertains is more fully described in Exhibit "A" attached hereto. DATED AND ISSUED this day of , 199_. Chairman of the Redevelopment Agency of the City of San Bernardino ( SEAL) ATTEST: Secretary of the Redevelopment Agency of r-' city of San Bernardino '-' D - 2 of 4 c I" ,-,. ~ ~ STATE OF CALIFORNIA ) ) SSe ) COUNTY OF On this day of , 1991, before me, the undersigned, a Notary Public in and for the said county and state, personally appeared known to me to be the Chairman and known to me to be the Secretary, respectively, of the Redevelopment Agency of the City of San Bernardino (the "Agency"), who executed the within instrument on behalf of said Agency therein named, and acknowledged to me that such Agency executed the with instrument pursuant to a resolution of said Agency. WITNESS my hand and official seal. (SEAL) Notary Public in and for the State of California D - 3 of 4 - ,- EXHIBIT "A" '- (Legal Description) '-" 1"'"""'" \ ,,-. D - 4 of 4 c c t"lf''''i''''' I....- ..~...- STATE OF CALIFORNIA ) ) SSe ) COUNTY OF this day of , 1991, before me, the a Notary Public in and for the said County and State, appeared and , personally known to me or proved to me on the basis of satisfactory evidence to be the and , respectively, of the Redevelopment Agency of the City of San Bernardino (the "Agency"), who executed the within instrument on behalf of said Agency therein named, and acknowledged to me that such Agency executed the within instrument pursuant to a resolution of said Agency. On undersigned, personally WITNESS my hand and official seal. Notary Public in and for the State of California [SEAL]