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HomeMy WebLinkAbout10- Economic Development Agency ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO © REQUEST FOR COMMISSION/COUNCIL ACTION FROM: TIMOTHY C.STEINHAUS SUBJECT: SAN BERNARDINO COUNTY Agency Administrator LAW LIBRARY RETENTION DATE: May 11,1994 --_---------------°'—-------------—---------—""'--'—-------------- .... --'--'------- Synapsis of Previous Commission/CouncilfCommittee Action(s): The Commission previously approved in closed session the punccase of the old Security Bank building at 402 North*D" Street as the new quarters for the County Law Library On April 18, 1994,the Community Development Commission authorized the Executive Director to execute an Agreement of Purchase and Sale and Joint Escrow Instructions between Bank of America and the Redevelopment Agency and set ajoint public hearing for May 16, 1994,to consider the approval of a Disposition and Development Agreement with the Law Library. Recommended Motion(s): (Mayor and Common Council) (Community Development Commission) OPEN PUBLIC HEARING CLOSE PUBLIC BEARING (Communty Development Commission) MOTION A: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF TBE CITY OF SAN BERNARDINO APPROVING A CERTAIN DISPOSITION AND DEVELOPMENT AGREENIENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF TRUSTEES k (—TIMOTHY C.STEEQHAUS Agency Administrator Contact Person(s): Timothy C.SteinhausUblin Wood Phone: 5081 Project Area(s): Central City North(CCN) Ward(s): One(1) Supporting Data Attached: Staff Report:Draft Disposition and Development Agreement Resolution FUNDMIZEQUIIffinuxrs: Amount: $400.000n w.�mci� .) Source: Bond Proceeds Budget Authority: Previously A XRroved --------------------------------—----- ..... .......—....................—................—...........—..................... Commission/Council Notes: _r_.—-------—---------_------_----_---------—---_---—---M-------------—---------------_----- KJH:JMW:Iag:05-02-04.cdc COMMISSION MEETING AGENDA MEETING DATE: 05/1611994 Agenda Item Number. /0 REQUEST FOR COMMISSION/COUNCII.ACTION San Bernardino County Law Library Retention May 11, 1994 Page Number-2- ---------------------------------------------------------------------------------------------------------------------------------- Recommended Motionb) Continued: MOTION B: That the Community Development Commission authorize the Executive Director to execute an Assignment and Assumption Agreement(pertaining to an asbestos removal contract)between the Redevelopment Agency and Bank of America National Trust and Savings Association. MOTION C: That the Community Development Commission reaffirm its motion from the meeting of April 18, 1994, authorizing the Executive Director to execute an Agreement of Purchase and Sale and Joint Escrow Instructions between Bank of America National Trust and Savings Association and the Redevelopment Agency. ------------------------------------------------------------------------------------------------------------------ KJH:JMW:lag:05-02-04.cdc COMMISSION MEETING AGENDA MEETING DATE: 05/16119J9,4 Agenda Item Number: /U ECONOMIC DEVELOPMENT AGENCY STAFF REPORT ----------------------------------------------------------------------------------------------------------------- San Bernardino County Law Library Retention Staff has been assisting the County Law Library("Library")in its search for larger quarters in the downtown area. The old Security Pacific Bank Building at 402 North "D" Street has been selected as the best alternative for the library's expansion needs, allowing it to approximately double its current building area. The Community Development Commission previously approved the purchase of 402 North "D" Street from Bank of America in closed session. The purchase price is $1 million, with $600,000 coming from the Library and $400,000 from the Redevelopment Agency. Upon escrow closing, the Library would hold title to the building,the land underneath it and the land necessary for a 5,000 square foot building expansion. The Agency would hold title to the balance of the property. A lot merger is currently being processed to split the property accordingly. There will be two escrows for this transaction. One will be between Bank of America and the Agency and will be effected by the Agreement of Purchase and Sale and Joint Escrow Instructions between Bank of America National Trust and Savings Association and the Redevelopment Agency. Though execution of this agreement was approved on April 18, 1994, Agency Special Counsel has advised that the Commission should reaffirm its action. The other will be between the Agency and the Library and will be effected by the Disposition and Development Agreement between the San Bernardino County Law Library Board of Trustees and the Redevelopment Agency. Though staff fully expects to complete the sale to the Law Library, were this not to occur for some reason, it would be of benefit to the Superblock project to acquire the building from Bank of America anyway. One of the stipulations of our agreement with Bank of America is that the Bank will enter into a contract for the removal of asbestos which has been found in 402 North "D" Street. The Bank will leave the amount of the total contract in the purchase escrow and assign the contract to the Agency to administer. With some understood exceptions, all asbestos must be removed from the building before the Library will take occupancy of it. An Assignment and Assumption Agreement will allow the contract to be transferred from the Bank to the Agency. ------------------------------------------------------------------------------------------------------------------ IUI-I:JMW:Iag:05-02-04.cdc COMMISSION MEETING AGENDA MEETING DATE: 05/16/1994 Agenda Item Number: Id ECONOMIC DEVELOPMENT AGENCY STAFF REPORT San Bernardino County Law Library Retention May 11, 1994 Page Number-2- Another agreement which will be necessary in order to complete this transaction is a Parking Easement, which will give the Library the right to use the existing parking surrounding the building(the area which will pass into the Agency's ownership upon escrow closing). There will be a stipulation that, should the existing parking area be needed for some other use associated with the Superblock project, the Agency will be obligated to provide suitable replacement parking (most likely in a future multi-level structure). Since the building ownership will technically be passing through the Agency during the escrow process, there is a necessity for both the aforementioned Disposition and Development Agreement and a joint public hearing under Health and Safety Code Section 33433. California law requires that the purchase and sale of property purchased with tax increment revenues be accomplished by a duly adopted resolution after a public hearing(which was set on April 18, 1994). It is necessary and appropriate that the Community Development Commission adopt the attached resolution to approve the Disposition and Development Agreement (draft also attached) in order to complete the sale of the project. In summary, this transaction will secure the retention of the San Bernardino County Law Library as a downtown institution for many years to come. In the process, a large, vacant building will be reoccupied and put to productive use. Staff recommends adoption of form motions "A", "B", and "C". �fhlU16 4M TIMOTHY C. STEINHAUS,Administrator Economic Development Agency ------------------------------------------------------------------------------------------------------------------ KJH:JMW:1ag:05-02-04.cdc COMMISSION MEETING AGENDA MEETING DATE: 05/16/1994 Agenda Item Number: /Q 0 1 RESOLUTION NO. 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO 3 APPROVING A CERTAIN DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY 4 OF THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF TRUSTEES 5 6 WHEREAS, the City of San Bernardino, California (the 7 "City") is a municipal corporation duly created and existing 8 pursuant to the Constitution and the laws of the State of 9 California; and 10 11 WHEREAS, the Redevelopment Agency of the City of 12 San Bernardino (the "Agency") , is a redevelopment agency, a 13 public body, corporate and politic of the State of California, 14 organized and existing pursuant to the Community Redevelopment 15 Law (Part 1 of Division 24) commencing with Section 33000 of the 16 Health and Safety Code of the State of California (the "Act") ; 17 and 18 19 WHEREAS, the San Bernardino County Law Library Board of 20 Trustees (the "Law Library") is a California statutory entity 21 existing pursuant to the laws of the State of California; and 22 23 WHEREAS, the City and the Agency have previously 24 approved and adopted the Redevelopment Plan (the "Redevelopment 25 Plan") for the Agency's Central City North Redevelopment Project 26 Area; and 27 28 / 0 1 WHEREAS, the Agency seeks to acquire a building (the 2 "Project") located within the Project Area subject to the 3 Redevelopment Plan which it deems should be developed in order to 4 further carry out the Redevelopment Plan; and 5 6 WHEREAS, the Law Library has indicated that it desires 7 to purchase said Project and perform improvements in order to 8 provide for a public law library thereon; and 9 10 WHEREAS, the Agency deems that the sale of the Project 11 and the construction of improvements for a public law library 12 will be of benefit to the Agency and the City by aiding in the 13 elimination of blighting conditions, improving job opportunities 14 and promoting redevelopment within the Project Area consistent 15 with the Redevelopment Plan; and 16 17 WHEREAS, the consideration to be paid to the Agency 18 would be not less than the fair reuse value at the use and with 19 the covenants, conditions and development costs authorized by the 20 Disposition and Development Agreement; and 21 22 WHEREAS, the Agency at this time deems it desirable to 23 approve the sale of the Project and that certain Disposition and 24 Development Agreement by and between the Agency and the Law 25 Library, a copy of which is attached hereto as Exhibit "A" and 26 incorporated herein by this reference. ® 27 28 - 2 - /G� 1 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION 2 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF 3 SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS 4 FOLLOWS: 5 Section 1. The foregoing recitals are true and 6 correct and are incorporated herein by this reference. 7 8 Section 2 . The Agency hereby finds and determines 9 that the sale of the Parcel to the Law Library will aid in the 10 elimination of blight and promote redevelopment within the 11 Project Area. 12 13 Section 3 . The Agency further finds and determines 14 that the consideration to be paid to the Agency would be not less 15 than the fair reuse value at the use and with the covenants, 16 conditions and development costs authorized by the Disposition 17 and Development Agreement. 18 19 Section 4. The Agency hereby approves the sale of 20 the Project and the Disposition and Development Agreement, a copy 21 of which is attached hereto as Exhibit "A" and incorporated 22 herein by this reference. 23 24 Section 5. The Agency hereby authorizes the 25 Chairman or the Executive Director of the Agency, and Secretary 26 to execute the Disposition and Development Agreement on behalf of 27 the Agency with any such changes as may be approved by the 28 Executive Director of the Agency and Agency Counsel. /� 3 - /& 0 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING A CERTAIN DISPOSITION AND DEVELOPMENT 2 AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF 3 TRUSTEES 4 5 Section 6. The findings and determinations herein 6 shall be final and conclusive. This Resolution shall take effect 7 upon the date of its adoption. 8 I HEREBY CERTIFY that the foregoing Resolution was duly 9 adopted by the Community Development Commission of the City of 10 San Bernardino at a meeting 11 thereof, held on the day of 12 1994, by the following vote, to wit: 13 Commission Members: AYES NAYS ABSTAIN ABSENT 14 NEGRETE 15 CURLIN HERNANDEZ 16 OBERHELMAN DEVLIN 17 POPE-LUDLAM MILLER _ 18 19 Secretary 20 The foregoing resolution is hereby approved this day of 1994. 21 22 Tom Minor, Chairman Community Development 23 Commission of the City of San Bernardino 24 Approved as to form and legal content: 25 By: 26 Agency Counsel 27 SBE0\00011D00765 28 / /g 4 - 1 U © 4 1 EXHIBIT "A" 2 DISPOSITION AND DEVELOPMENT AGREEMENT 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 Second D -F SngIDDA/uWGB 429/94 xs RECORDING REQUESTED BY: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO WHEN RECORDED MAIL TO: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 201 North "E" Street, Third Floor San Bernardino, California 92401 (Space above for Recorder's Use) DISPOSMON AND DEVELOPMENT AGREEMENT by and between REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO and THE SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF TRUSTEES, a California Statutory Entity � I ,Q , TABLE OF CONTENTS Page ARTICLE I SUBJECT OF AGREEMENT Section 1. 01. Purposes of Agreement . . . . . . . . . . . . . 1 Section 1. 02 . The Project Area . . . . . . . . . . . . . . . . 1 Section 1. 03 . Parties to the Agreement . . . . . . . . 1 Section 1. 04 . Prohibition Against Change in Ownership or Assignment of Agreement . . . . . . . . . . . . 2 ARTICLE II DISPOSITION OF PROJECT Section 2 . 01. Purchase of Project . . . . . . . . . . . . 4 Section 2 . 02 . Developer's Purchase Price . . . . . . 4 Section 2 . 03 . Damages and Remedies for Agency' s Failure to Convey Project . . . . . . . . . . . . . . 4 Section 2 . 04 . Good Faith Deposit . . . . . . . . . . . . . . . 4 Section 2 . 05. Escrow . . . . . . . . . 5 Section 2 . 06. Conveyance of Title and Delivery of Possession . 6 Section 2 . 07 . Form of Deed . . . . . . . . . . . . . . . . 6 Section 2 . 08 . Condition of Title . . . . . . . . . . . . . . . 6 Section 2 . 09 . Conditions for Close of Escrow . . . . . . . 7 Section 2 . 10. Time and Place for Delivery of Documents to Escrow . . . 7 Section 2 . 11. Payment of the Consideration and Recordation of the Grant Deed(s) and other Documents . . . 8 Section 2 . 12 . Title Insurance . . . . . . . . . . . . . 8 Section 2 . 13 . (Intentionally Omitted] . . . . . . 8 Section 2 . 14. Zoning of the Project and Environmental Approvals . . . . . . . . . . . . . 8 Section 2. 15. Condition of the Project . . . . . . . . . . . . 8 ARTICLE III DEVELOPMENT OF THE SITE Section 3 . 01. Development by Developer . . . . . . . . . . . 10 Section 3 . 02 Responsibility of the Agency . . . . . . . 17 Section 3 . 03 . Assessments, Encumbrances and Liens . . . . . 17 Section 3 . 04 . Prohibition Against Transfer . . . . . . 17 Section 3 . 05. Security Financing; Right of Holders . . . 17 Section 3 . 06. Right of the Agency to Satisfy Other Liens on the Project after Conveyance of Title . . . 21 Section 3 . 07 . Certificate of Completion . . . . . . . . . . 21 - i - ARTICLE IV USE OF THE SITE Section 4 . 01. Uses . . . . . . . . . . . . . . 24 Section 4 . 02 . Maintenance of the Project . . . 24 Section 4 . 03 . Obligation to Refrain from Discrimination . . 24 Section 4 . 04 . Form of Nondiscrimination and Nonsegregation Clauses . . . . . . . . . 24 Section 4 . 05. Effect and Duration of Covenants . . . . . . . 25 ARTICLE V DEFAULTS, REMEDIES AND TERMINATION Section 5. 01. Defaults - General . . . . . . . . . . . . . . 27 Section 5. 02 . Legal Actions . . . . . . . . . . 27 Section 5. 03 . Rights and Remedies are Cumulative . . . . 28 Section 5. 04 . Damages . . . . . . . . . . . . . . . . . 28 Section 5. 05. Specific Performance . . . . . . . . . 28 Section 5. 06. Rights and Remedies of Termination . . . . . . 28 Section 5. 07. Right to Reenter, Repossess, Terminate and Revest . . . . . . . . . . . . . . . . . . . 30 ARTICLE VI GENERAL PROVISIONS Section 6. 01. Notices, Demands and Communications Between the Parties . . . . . . . . . . . . . . . . 33 Section 6. 02 . Conflict of Interest . . . . 34 Section 6. 03 . Warranty Against Payment of Consideration for Agreement . . . . . . . 34 Section 6 . 04 . Nonliability of Agency Officials and Employees 34 Section 6. 05. Enforced Delay: Extension of Time of Performance . . . . . . . . 34 Section 6. 06. Inspection of Books and Records . . . . . . . 35 Section 6. 07. Approvals . . . . . . . . . . 35 Section 6. 08. Real Estate Commissions . . . . . . . . 35 Section 6. 09. Indemnification . . . . . . 35 Section 6. 10. Release of Developer from Liability . . . . . 35 Section 6. 11. Attorneys ' Fees . . . . . . . . . . . . . . . 35 Section 6. 12 . Dispute Resolution . . . . . . . . . . . . . . 36 Section 6. 13 . Effect . . . . . . . . . . . . . . . . . . . . 37 - ii - ARTICLE VII ENTIRE AGREEMENT, WAIVERS AND AMENDMENT Section 7 . 01. Entire Agreement . . . . . . . . . . . . . . . 38 ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION Section 8 . 01. Execution and Recordation . . . . . . . . . . 39 EXHIBIT "A" - LEGAL DESCRIPTION EXHIBIT "B" - SCOPE OF DEVELOPMENT EXHIBIT "C" - GRANT DEED EXHIBIT "D" - SCHEDULE OF PERFORMANCE EXHIBIT "E" - CERTIFICATE OF COMPLETION EXHIBIT "F" - EASEMENT EXHIBIT "G" - ENVIRONMENTAL CONTRACT senrDDAiuwcm 4/11/91300 THIS AGREEMENT is entered into by and between the Redevelopment Agency of the City of San Bernardino (the "Agency") , and the San Bernardino County Law Library Board of Trustees, a California statutory entity (the "Developer") . The Agency and the Developer agree as follows: ARTICLE I SUBJECT OF AGREEMENT Section 1.01. Purposes of Agreement. The purpose of this Disposition and Development Agreement (the "Agreement") is to effectuate redevelopment within the boundaries of the City of San Bernardino (the "City") by providing for the purchase and the redevelopment by the Developer of a certain structure (the "Structure") and real property (the "Property") , including an easement for certain parking facilities (the "Easement") , located within the duly established redevelopment project area of the City known as the Central City North Project Area (the "Project Area") , and as described in Exhibit "A" attached hereto and incorporated herein by reference (the Structure and the Property collectively shall be referred to herein as the "Project") . The purchase and the redevelopment of the Property by the Developer pursuant to this Agreement, and the fulfillment generally of the Agreement, are in the vital and best interests of the City, the Agency, and the health, safety, morals, and welfare of the City's residents, and are in accord with the public purposes and provisions of applicable federal, state and local laws and requirements. Section 1. 02 . The Protect Area. The Project Area was approved and adopted by the City Council of the City of San Bernardino by Ordinance No. 3366 in accordance with the provisions of the Community Redevelopment Law of the State of California (the "Community Redevelopment Law") . This Agreement shall be subject to the provisions of the Community Redevelopment Law. Agency represents and warrants that the uses and improvements to be constructed on the Project in accordance with the scope of Development attached hereto as Exhibit "B" and incorporated herein by reference comply with the provisions of the Community Redevelopment Law. Section 1. 03 . Parties to the Agreement. a. Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under Chapter 2 of the Community Redevelopment Law, Health and Safety Code Section 33000, et sea. The - 1 - ( V principal office of the Agency is located at 201 North "E" Street, Third Floor, San Bernardino, California 92401. As used in this Agreement, the term "Agency" shall be deemed to include the Agency and any assignee and/or successor to the Agency or to its rights, powers and responsibilities under this Agreement. b. The Developer is the San Bernardino County Law Library Board of Trustees, a California statutory entity. The principal office of the Developer for purposes of this Agreement is located at P.O. Box 213 , San Bernardino, California 92402, (Telephone Number: (909) 885-3020) , and for purposes of Section 6. 01 hereof, any and all notices, demands or communications shall be sent to the Developer addressed to the attention of "County Law Librarian" . Section 1. 04 . Prohibition Against Change in Ownership or f� Assignment of Agreement. a. The qualifications and identities of the persons and entities comprising the Developer are of particular concern to the Agency. It is because of these qualifications and identities of the Developer that the Agency has entered into this Agreement with the Developer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement, except as expressly set forth herein. b. Except as otherwise provided in this Agreement, the Developer shall not assign all or any part of this Agreement prior to the issuance of a Certificate of Completion applicable to all portions of the Project without the prior written approval of the Agency, which approval shall not be unreasonably withheld. C. The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the parties either comprising or in control of the Developer, as well as any and all changes in the interest or the degree of control of the Developer by any such party, of which information the Developer or any of its members, officers or shareholders has been notified or may otherwise have knowledge or information. A - 2 - O g ARTICLE II DISPOSITION OF PROJECT Section 2 . 01. Purchase of Project. The Developer shall purchase, and the Agency shall sell, the Project under the terms of this Agreement, and the attachments hereto, provided, however, that the Agency has received title to the Project from the Current Owner thereof (the "Owner") . Section 2.02 . Developer's Purchase Price. As the purchase price for the Project, the Developer shall pay to the Agency on or before the Close of Escrow, as hereinafter defined, and by means of the escrow hereunder the sum of Six Hundred Thousand Dollars ($600, 000) . Said purchase price to be Nineteen Dollars and Eighty-Eight Cents ($19.88) per square foot (the "Purchase Price") . Section 2 . 03 . (Internally omitted] A Section 2 . 04. Good Faith Deposit. a. As part of the Purchase Price and not in addition thereto, the Developer shall provide to the escrow a good faith deposit (the "Deposit") in the form of cash in the principal amount of Twenty-Five Thousand Dollars ($25, 000) . The Deposit shall, at the direction of the Developer, be applied to the Purchase Price or be returned to the Developer upon payment otherwise by the Developer of the Purchase Price. In the event that the escrow for the sale of the Project is canceled or terminated by the Agency in accordance with Section 5.06 (b) (1) to (b) (4) hereof, or if the escrow is canceled because of a failure on the part of the Developer to obtain adequate financing commitments for the Project, then the Agency shall have the right to retain a portion of the Deposit equal to the costs and expenses incurred by the Agency in causing the establishment of an escrow with the Owner and the establishment of the escrow as contemplated herein, plus legal costs, which legal costs shall not exceed the sum of Twenty-Five Thousand Dollars ($25, 000) as liquidated damages and/or compensation for its expenses, time and effort in attempting to implement this Agreement. The parties acknowledge agreement to the foregoing provision and reasonableness thereof under the circumstances by execution of this Agreement. Developer Agency b. In the event that this Agreement is terminated by the Developer pursuant to Section 5. 06(a) of this Agreement, the Deposit shall be returned in full to the Developer. 3 - 16' C. The Deposit shall be remitted by the Developer concurrently with the opening of escrow and the Deposit shall be either: (a) applied to the Purchase Price at the close of escrow, solely upon the written notice and instruction of the Developer to the Escrow Agent and to the Agency, or (b) returned to the Developer through the escrow concurrently with the close of escrow, if the Developer otherwise pays the full Purchase Price through the escrow. Section 2 .05. Escrow. a. The Agency and the Developer agree to establish an escrow for the purchase and sale of the Project at a title company mutually agreeable to both parties (the "Escrow Agent") . The escrow shall be opened by September 1, 1994. b. The Agency and the Developer shall provide and execute such additional escrow instructions consistent with this Agreement as shall be necessary. The Escrow Agent hereby is empowered to act under this Agreement, and, upon indicating its acceptance of this Section in writing, delivered to the Agency and the Developer, within five (5) calendar days after the establishment of the escrow, shall carry out its duties as the Escrow Agent hereunder. C. The Agency and the Developer shall deliver to the Escrow Agent all documents necessary for the conveyance of title to the Project, to the extent provided in this Agreement, in conformity with, within the times, and in the manner provided in this Agreement. d. The Developer shall pay all fees related to the transfer of the Project from the Agency to the Developer, as well as all fees and costs incurred by the Agency in causing the Project to be transferred from the Owner to the Agency, promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than three (3) days before the date for the conveyance of the Project. Such fees include: (i) all documentary transfer taxes; (ii) any transfer, assumption and prepayment fees; (iii) all document recording charges; (iv) Agency's share of escrow fees incurred for the purchase of the Project by the Agency; (v) the Agency's share of prorations incurred for the purchase of the Project by the Agency; (vi) all escrow fees for sale to Developer (vii) all premiums for a title policy for the sale between Agency and Developer. e. The Agency shall timely and properly execute, acknowledge and deliver to the Escrow Agent a grant deed conveying to the Developer title to the Project in accordance with the requirements of this Agreement. f. The Escrow Agent shall cause a Preliminary Title Report to be prepared and issued by a title company mutually 4 - /a agreeable to both parties (the "Title Company") and shall promptly provide the Agency and the Developer with copies thereof. The Agency and the Developer must approve the Preliminary Title Report in writing as a condition precedent to close of escrow. g. All funds received in escrow shall be deposited by the Escrow Agent in an insured account with any state or national bank doing business in the State of California, and such funds may be combined with other escrow funds of the Escrow Agent. Such funds shall draw the highest reasonable rate of interest and such interest shall accrue to the party to this Agreement who shall have made the deposit thereof with the Escrow Agent. h. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the respective parties at the addresses set forth in Section 6.01 of this Agreement for notices, demands and communications between the Agency and the Developer. Section 2. 06. Conveyance of Title and Delivery of Possession. a. Subject to the conditions set forth in Section 2.09 hereof and to any mutually agreed upon written extension of time or extensions otherwise authorized by this Agreement, conveyance to the Developer of title to the Project in - accordance with the provisions of this Section and Section 2.08 of this Agreement shall be completed on or prior to within One Hundred Eighty (180) days of the opening of escrow ("Close of Escrow") . The Agency and the Developer agree to perform all acts necessary for conveyance of title to the Project, in the form and to the extent required herein, in sufficient time for title to be conveyed in accordance with this provision. b. Possession of the Project shall be delivered to the Developer concurrently with the conveyance of title, or as otherwise provided in this Section. The Developer shall accept title and possession to the Project on the date established therefor in this Section. Section 2 .07. Form of Deed. The Agency shall convey to the Developer title to the Project in the condition provided in Section 2 . 08 of this Agreement by a grant deed substantially in the form attached hereto as Exhibit "C". Section 2 . 08 . Condition of Title. The Title to the Project conveyed by the Agency to the Developer shall be a marketable title free and clear of encumbrances and exceptions, except for: (a) the agreements, covenants and conditions of this Agreement and the Grant Deed and (b) such pre-existing easements or 5 - / ,Q rights-of-way as may be disclosed by the Preliminary Title Report and approved by the Agency and the Developer. Section 2 .09. Conditions for Close of Escrow. T h e Agency's obligation to convey the Project to the Developer and the Close of Escrow shall be expressly conditioned upon satisfaction or waiver by the Agency of each of the following: a. The Agency shall have received title to the Project from the Owner by the closing date of the subject escrow. b. The Developer shall receive certification that (i) the building is free of asbestos, except as provided in W the environmental contracts attached hereto as Exhibit I (ii) the floors and elevators are structurally sufficient forfft library purposes and (iii) the building meets earthquake Lti standards established by the State of California. C. The Developer shall have deposited into the escrow the Purchase Price and all other sums required to be deposited by it into the escrow pursuant to this Agreement; d. The Developer shall be in good standing as a statutory entity of the State of California to transact business within the State, to hold title and to develop the Project, as provided in Section 3.01(a) hereof; and e. The Developer shall have received approval from the Agency of financing commitments as set forth in Section 2 .16 hereof. Section 2 . 10. Time and Place for Delivery of Documents to Escrow. Subject to any mutually agreed upon written extensions of time or any extensions otherwise authorized by this Agreement, the parties shall deposit with the Escrow Agent promptly at such time as such documents have been fully prepared and executed, but in no event later than ten (10) calendar days before the date established for the conveyance of the Project, any and all documents which are required in order for escrow to close in accordance with this Agreement. The grant deed conveying the Project from the Agency to the Developer hereunder shall be prepared by the Agency, at the Agen ' s expense. The legal descriptions regarding the Project/dill b supplied by the Agency. All other documents required to be record in order to permit the Close of Escrow listed in xh;hHt a ra�tod hPrPrn shall be prepared by the Developer at its =the expense. Section 2 . 11. Payment Consideration and Recordation of the Grant Deed(s) and other Documents. Payment of the Purchase Price shall be made by the Developer to the Escrow Agent within seven (7) business days following the date that the Escrow Agent submits notice to the Developer in writing that the grant deed conveying the Project to the Developer has been \ delivered to the Escrow Agent, that title is in the condition to be 6 61 conveyed in conformity with the provisions of this Agreement and that escrow otherwise is in a condition to close. When the parties have deposited into escrow all documents and funds as required by this Agreement and all conditions for the Close of Escrow have been satisfied, the Escrow Agent shall promptly file for recordation among the land records in the Office of the County Recorder where the Project is located: (i) the grant deed to the Project, and (ii) this Agreement. The Escrow Agent shall thereafter promptly provide a copy of said recorded documents to both parties, shall promptly deliver the Purchase Price to the Agency and shall promptly deliver to the Developer a title insurance policy insuring title in conformity with this Agreement. section 2 . 12 . Title Insurance. Concurrently with recordation of the grant deed to the Project, the Title Company shall provide and deliver to the Developer a policy of title insurance issued by the Title Company insuring that the title to the Project is as required pursuant to the terms of this Agreement. The title insurance policy shall be in the amount of the Purchase Price of the Project. Section 2 . 13 . Intentionally Omitted. Section 2 . 14 . Zoning of the Project and Environmental Approvals. The Agency represents and warrants that the City's general plan and zoning ordinance permit the contemplated operation of the Project in accordance with this Agreement, subject to the Developer obtaining any and all necessary conditional use permits required pursuant to the zoning ordinance, and further subject to the Developer obtaining any and all modifications or variances including, but not limited to, those modifications or variances necessary for height, signs and any and all other matters. The Developer shall apply for all necessary permits applicable to the Project. All applicable environmental requirements pertinent to the development of the Project shal . have eeeenn completed, (except the isbestos removal as rovided sbestos`Removal A reement " oval etween Ban ca Natrona Trus and Savin s Association and a e 1.99.41 on or before C rose of scrow but in any eve t prior to comm cement of reconstruction of 'the Project. --// Section 2 . 15. Condition of the Proiect. a. The Project shall be conveyed in an "as is" condition with no warranty or liability, except as otherwise provided herein, express or implied on the part of the Agency as to the condition of the soil, its geology or the presence © of known or unknown faults or defects. 7 - M +� r f b. It shall be the responsibility solely of the Developer, at the Developer' s expense, to investigate and determine the soil and seismic conditions of the structure and the Property and its suitability for the use contemplated thereon. It shall be the responsibility solely of the Developer, at the Developer' s expense, to perform all work necessary to prepare the Project for development. A - 8 .a q ARTICLE III DEVELOPMENT OF THE SITE Section 3 . 01. Development by Developer. a. It is the intent of the parties that the Project be developed as a public law library in accordance with and within the limitations established in the Scope of Development set forth in Exhibit "B" attached hereto and incorporated herein by reference. In the event such development is not commercially feasible, the Project may be developed in a manner and for uses which are consistent with goals and policies of the Agency and which conform to the City' s General Plan and any other zoning ordinances or similar regulations of the City. b. The City's zoning ordinance including, but not limited to, parking and height requirements, and the City's building requirements are applicable to the use and development of the Project pursuant to this Agreement. The Developer acknowledges that any change in the plans for development or the use of the Project as set forth in the Scope of Development shall be subject to the City's zoning ordinance and building requirements. No action by the Agency or the City with reference to this Agreement or related documents shall be deemed to constitute a waiver of any City parking, height or other requirements which are applicable to the Project or to the Developer, any successor in interest or tenant of the Developer or any tenant or successor in interest pertaining to the Project, except by modification or variance approved by the City consistent with this Agreement. The Agency shall cooperate with and shall assist the Developer in order to obtain modifications or variances from City zoning regulations necessary to develop the Project consistent with this Agreement and, in particular, with the Scope of Development, within one hundred eighty (180) calendar days following written application therefor by the Developer. Any failure by the City to approve any of such modifications or variances within said one hundred eighty (180) calendar day period shall constitute an enforced delay hereunder, and the Schedule of Performance, as defined hereinafter, shall be extended by that period of time beyond said one hundred eighty (180) calendar day period necessary to modify the project to the mutual satisfaction of the parties to the Agreement and the City. C. The Scope of Development set forth in Exhibit "B" is hereby approved by the Agency upon its execution of this Agreement. The Project shall be developed and completed in conformance with the approved Scope of Development and any and rj all other plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and between the 9 - //f / (1 Developer and the Agency. The Agency agrees to approve preliminary and final construction plans and preliminary and final landscaping plans, if any, if reasonably consistent with the approved Scope of Development. d. The approval of the Scope of Development by the Agency hereunder shall not be binding upon the City Council or the Planning Commission of the City with respect to any approvals of the Project required by such other bodies. If any revisions of the Scope of Development as approved by the Agency shall be required by another government official, agency, department or bureau having jurisdiction over the development of the Project, the Developer and the Agency shall cooperate in efforts to obtain waivers of such revisions, or to obtain approvals of any such revisions which have been made by the Developer and have thereafter been approved by the Agency. The Agency shall not unreasonably withhold approval of such revisions. e. Notwithstanding any provision to the contrary in this Agreement, the Developer agrees to accept and comply fully with any and all reasonable conditions of approval applicable to all permits and other governmental actions affecting the Project and consistent with this Agreement. f. (Intentionally Omitted] g. The Developer shall prepare and submit development plans, construction drawings and related documents for the development of the Project consistent with the Scope of Development to the City and the Agency for review (including, but not limited to, architectural review of the exterior of structures) ; provided, however, that the Agency shall not have the right or responsibility to approve development plans, construction drawings or related documents for purposes of the issuance of a building permit or otherwise on behalf of the City, but shall only have the right of review and approval of such plans, drawings and documents for purposes of: (a) architecture and design of structures and the overall development of the Project, and (b) conformity of such plans, drawings and documents with the terms and conditions of this Agreement. The development plans, construction drawings and © related documents shall be submitted in two stages -- preliminary and final drawings (i.e. , working drawings) , plans and specifications. Final drawings, plans and specifications are hereby defined as those which contain sufficient detail - 10 - id necessary to obtain a building permit from the City. Any such items submitted to and approved in writing by the Agency shall not be subject to subsequent disapproval by the Agency, and any such Agency approval shall not be unreasonably withheld. h. During the preparation of all drawings and plans for the Project, the Agency Staff and the Developer shall hold regular progress meetings to coordinate the preparation by the Developer, and the submission to and review by the City and the Agency of construction plans and related documents. The Agency Staff and the Developer shall communicate and consult informally as frequently as is necessary to ensure that any such plans and related documents submitted by the Developer to the City and the Agency can receive prompt and speedy- consideration. i. The Agency shall have the right of reasonable architectural review and approval of building exteriors and design of the Project. The Agency shall also have the right to review all plans, drawings and related documents pertinent to the development of the Project in order to ensure that they are consistent with this Agreement and with the Scope of Development set forth in Exhibit "B". j . The Developer shall timely submit to the City for C its review and approval any and all plans, drawings and related documents pertinent to the development of the Project, as required by the City. The Agency shall cooperate with and shall assist the Developer in order for the Developer to obtain the approval of any and all development plans, struction drawings and related documents submitted by the Deve er to the City consistent with this Agreement within forty 0) calendar days following the City's receipt of said plans. Any failure by the City to approve any of such plans or to issue necessary permits for the development of the Project within said three hundred sixty (360) calendar day period shall constitute an enforced delay hereunder, and the Schedule of Performance shall be extended by that period of time beyond said three hundred sixty (360) calendar day period in which the City approves said plans; provided, however, that in the event that the City disapproves of any of such plans, the Developer shall within forty-five (45) calendar days after receipt of such disapproval revise and resubmit such plans in accordance with the City's requirements and in such form and substance so as to obtain the City' s approval thereof. k. The Agency shall in good faith use its best efforts to cause the City to approve in a timely fashion any and all plans, drawings and documents submitted by the Developer hereunder and to cause the City not to impose new conditions inconsistent with: (a) prior plans, drawings and documents approved by the City or (b) the Scope of Development. Q 1. The Agency shall approve any modified or revised plans, drawings and related documents to which reference is made in this Agreement within the times established in the Schedule of Performance as long as such plans, drawings and related documents are generally consistent with the Scope of Development and any other plans which have been approved by the Agency. Upon any disapproval of plans, drawings or related documents, the Agency shall state in writing the reasons for such disapproval. The Developer, upon receipt of notice of any disapproval, shall promptly revise such disapproved portions of the plans, drawings or related documents in a manner that addresses the reasons for disapproval and reasonably meets the requirements of the Agency in order to obtain the Agency's approval thereof. The Developer shall resubmit such revised plans, drawings and related documents to the Agency as soon as possible after its receipt of the notice of disapproval and, in any event, no later than forty-five (45) calendar days thereafter. The Agency shall approve or disapprove such revised plans, drawings and related documents in the same manner and within the same times as provided in this Section for approval or disapproval of plans, drawings and related documents initially submitted to the Agency. M. If the Developer desires to make any change in the final construction drawings, plans and specifications and related documents after their approval by the Agency and/or the City, the Developer shall submit the proposed change in writing to the Agency and/or the city for approval. The Agency shall notify the Developer of approval or disapproval thereof in writing within thirty (30) calendar days after submission to the Agency. This thirty (30) calendar day period may be extended by mutual consent of the Developer and the Agency. Any such change shall, in any event, be deemed to be approved by the Agency unless rejected, in whole or in part, by written notice thereof submitted by the Agency to the Developer, setting forth in detail the reasons therefor, and such rejection shall be made within said thirty (30) calendar day period unless extended as permitted herein. The Agency shall use its best efforts to cause the City to review and approve or disapprove any such change as provided in Section 3 . 01(b) hereof. n. The Developer, upon receipt of a notice of disapproval by the Agency and/or the City, may revise such portions of the proposed change in construction drawings, plans and specifications and related documents as are rejected and shall thereafter resubmit such revisions to the Agency and/or the City for approval in the manner provided in Section 3.01 (b) hereof. o. The Developer shall have the right during the course of construction to make changes in construction concerning the interior of structures and "minor field changes" without - 12 - Id seeking the approval of the Agency; provided, however, that such changes do not affect the type of use to be conducted within all or any portion of a structure. Said "minor field changes" shall be defined as those changes from the approved final construction drawings, plans and specifications which have no substantial effect on the improvements and are made in order to expedite the work of construction in response to field conditions. Nothing contained in this Section shall be deemed to constitute a waiver of or change in the City's Building Code requirements governing such "minor field changes" or in any and all approvals by the City otherwise required for such "minor field changes. " P. The costs of developing the Project and of constructing all improvements thereon and adjacent thereto as set forth in the Scope of Development shall be borne by the Developer. Except with respect to parking facilities, it is understood and agreed by the parties that the Developer shall pay for the costs of any and all off-site improvements described in the Scope of Development as the obligations and responsibility of the Developer to complete hereunder. q. The Developer shall at its expense cause to be prepared, and shall pay any and all fees pertaining to the review and approval thereof by the City, all required construction, planning and other documents reasonably required by governmental bodies pertinent to the development of the Project hereunder. r. The Developer shall pay for any and all costs concerning the design, construction, relocation and securing of permits for utility improvements and connections, including sewers and sewer lines, power lines and poles, water lines, gas lines, cable lines and related vaults, storm drains and vaults, traffic access ways, lighting poles and standards, handicapped access ramps, construction of tree wells and landscaping. The Developer shall obtain any and all necessary approvals prior to the commencement of applicable portions of said construction, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction. S. The Developer shall begin and complete all construction and development and undertake all obligations and responsibilities of the Developer within the times specified in the Schedule of Performance shown in Exhibit "D" attached hereto, or within such reasonable extensions of such times as may be granted by the Agency or as otherwise provided for in this Agreement. The Schedule of Performance shall be subject to revision from time to time as mutually agreed upon in writing by and between the Developer and the Agency. Any and r` all deadlines for performance by the parties shall be extended for any times attributable to delays which are not the fault of the performing party and are caused by the other party, - 13 - 1/l other than periods for review and approval or reasonable disapprovals of plans, drawings and related documents, specifications or applications for permits as provided in this Agreement. t. Prior to and during the period of construction of the Project, the Developer shall submit to the Agency written progress reports when and as reasonably requested by the Agency but in no event more frequently than every two (2) weeks. The reports shall be in such form and detail as may reasonably be required by the Agency, and shall include a reasonable number of construction photographs taken since the last such report submitted by the Developer. U. Prior to the commencement of construction on the Project, the Developer shall furnish, or shall cause to be furnished, to the Agency duplicate originals or appropriate certificates of public indemnity and liability insurance in the amount of One Million Dollars ($1, 000, 000. 00) combined single limit, naming the Agency and the City as additional insureds. Said insurance shall cover comprehensive general liability including, but not limited to, contractual liability; acts of subcontractors; premises-operations; explosion, collapse and underground hazards, if applicable; broad form property damage, and personal injury including libel, slander and false arrest. In addition, the Developer shall provide to the Agency adequate proof of comprehensive automobile liability insurance covering owned, non-owned and hired vehicles, combined single limit in the amount of One Million Dollars ($1, 000, 000. 00) each occurrence; and proof of workers' compensation insurance. Any and all insurance policies required hereunder shall be obtained from insurance companies admitted in the State of California and rated at least B+: XII in Best's Insurance Guide. All said insurance policies shall provide that they may not be canceled unless the Agency and the City receive written notice of cancellation at least thirty (30) calendar days prior to the effective date of cancellation. Any and all insurance obtained by the Developer hereunder shall be primary to any and all insurance which the Agency and/or City may otherwise carry, including self insurance, which for all purposes of this Agreement shall be separate and apart from the requirements of this Agreement. Any insurance policies governing the Project as obtained by the Agency shall not be transferred from the Agency to the Developer. Appropriate insurance means those insurance policies approved by the Agency Counsel consistent with the foregoing. Any and all insurance required hereunder shall be maintained and kept in force until the Agency has issued the Certificate of Completion for the Project. V. The Developer for itself and its successors and assigns agrees that in the construction of the improvements to `r the Project provided for in this Agreement, the Developer will not discriminate against any employee or applicant for - 14 - / y G employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry. W. The Developer shall carry out its construction of the improvements on and around the Project in conformity with all applicable laws, including all applicable federal and state labor standards and requirements. The Agency covenants and agrees likewise to meet the requirements set forth in this Subsection with regard to any and all construction undertaken by the Agency in accordance with this Agreement. X. Before commencement of construction and development of any work or improvements to the Project, the Developer shall, at its own expense, secure or shall cause to be secured, any and all permits which may be required for such construction, development or work by the City or any other governmental agency having jurisdiction thereof. The Agency shall cooperate in good faith with the Developer in the Developer's efforts to obtain from the City or any other appropriate governmental agency any and all such permits and, upon completion of applicable portions of the Project, certificates of occupancy. Y. Officers, employees, agents or representatives of the Agency and the City shall have the right of reasonable r^ access to the Project, without the payment of charges or fees, during normal construction hours during the period of construction of the Project for the purposes of this Agreement including, but not limited to, the inspection of the work being performed in constructing the Project. Such officers, employees, agents or representatives of the Agency and/or the City shall be those persons who are so identified by the Executive Director. Any and all officers, employees, agents or representatives of the Agency and the City who enter the Project pursuant hereto shall identify themselves at the job site office upon their entrance on to the Project and shall at all times be accompanied by a representative of the Developer while on the Project; provided, however, that the Developer shall make a representative of the Developer available for this purpose at all times during normal construction hours upon reasonable notice from the Agency. The Agency shall indemnify and hold the Developer harmless from injury, property damage or liability arising out of the exercise by the Agency and/or the City of this right of access, other than injury, property damage or liability relating to the negligence of the Developer or its officers, agents or employees. Z. The Agency shall inspect relevant portions of the construction site prior to issuing any written statements reflecting adversely on the Developer's compliance with the terms and conditions of this Agreement pertaining to construction of the Project. - 15 - 7 Section 3 . 02 . Responsibility of the Agency. The Agency, �- without any expense of the Developer therefor and without the creation of the assessments or claims against the Project as a result thereof, shall perform the work specified for the Agency to perform, if any, and shall assume the other obligations imposed on the Agency, if any, as set forth in the Scope of Development, including but not limited to the provision of off-site parking pursuant to the Easement provided to the Developer. Section 3 . 03 . Assessments. Encumbrances and Liens. The Developer shall not place and shall not allow to be placed on the Project any mortgage, trust deed, deed of trust, encumbrance or lien not otherwise authorized by this Agreement. The Developer shall remove, or shall have removed, any levy or attachment made on the Project, or shall assure the satisfaction thereof, within a reasonable time but in any event prior to a sale of the Project, or any portion thereof, thereunder. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amounts of anyAencumbrance or lien, nor to limit the remedies available to thd Developer in respect thereto. The covenants of the Developer set forth in this Section relating to the placement of any unauthorized mortgage, trust deed, deed of trust, encumbrance or lien, shall remain in effect only until all Certificates of Completion have been recorded with respect to the Project. Section 3 .04. Prohibition Against Transfer. a. Prior to the recordation of all Certificates of Completion with respect to the Project as set forth in Section 3 . 07 of this Agreement, the Developer shall not, without prior written approval of the Agency, or except as permitted by this Agreement, (i) assign or attempt to assign this Agreement or any right herein or (ii) make any total or partial sale, transfer, conveyance, lease, leaseback, or assignment of the whole or any part of the Project. This prohibition shall not apply to any of the following: (i) the reasonable grant of limited easements or permits to facilitate the development of the Project; (ii) leases, other than ground leases, to prospective tenants whose use of the Project is in conformity with the Community Redevelopment Law and all applicable zoning laws or ordinances. b. In the absence of specific written agreement or approval by the Agency, no unauthorized sale, transfer, conveyance, lease, leaseback or assignment of the Project shall be deemed to relieve the Developer or any other party from any obligations under this Agreement. Section 3 . 05. security Financing: Right of Holders. (� a. Notwithstanding any provision set forth in �✓ Section 3 . 04 hereof to the contrary, mortgages, deeds of trust, or any other form of lien required for any reasonable - 16 - i�1 method of financing are permitted before the recordation of the Certificate of Completion (referred to in Section 3 . 07 of this Agreement) , but only for the purpose of securing loans of funds to be used for financing the acquisition of the Project, and any other expenditures necessary and appropriate to develop the Project under this Agreement. The Developer shall notify the Agency in writing in advance of any mortgage, deed of trust, or other form of lien for financing if the Developer proposes to enter into the same before the recordation of the Certificate of Completion. The Developer shall not enter into any such conveyance for financing without prior written approval of the Agency, which approval the Agency agrees to grant if any such conveyance is given to a responsible financial or lending institution including, without limitation, banks, savings and loan institutions, insurance companies, real estate investment trusts, pension programs and the like, or other acceptable persons or entities. Such lender shall be deemed approved unless rejected in writing by the Agency within seven (7) calendar days following its receipt of notice from the Developer, subject to written extension or shortening of time signed by both parties. Any lender approved by the Agency pursuant to this Section shall not be bound by any amendment, implementation agreement or modification to this Agreement occurring after recordation of said lender's lien. b. In any event, the Developer shall promptly notify the Agency of any mortgage, deed of trust or other refinancing, encumbrance or lien that has been created or attached thereto prior to completion of the reconstruction of the Project whether by voluntary act of the Developer or otherwise; provided, however, that no notice of filing of preliminary notices or mechanic's liens need be given by the Developer to the Agency prior to suit being filed to foreclose such mechanic's lien. C. The words "mortgage" and "deed of trust" as used herein shall be deemed to include all other customary and appropriate modes of financing real estate acquisition, construction and land development. The Agency agrees to make such amendments regarding the rights of any lender as the approved lender shall reasonably require. d. The holder of any mortgage, deed of trust or other security interest authorized by this Agreement shall in no manner be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in the grant deed for the Project be construed so to obligate such holder. Nothing in this Agreement shall be deemed to permit or authorize any such holder to devote the Project to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. - 17 e. Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in the completion of construction of the improvements, or any breach or default of any other obligations which might entitle the Agency to terminate this Agreement or exercise its right to re-enter under Section 5. 07 hereof, the Agency shall at the same time deliver to each holder of record of any mortgage, deed of trust or other security interest authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, to commence the cure or remedy of any such default and to diligently and continuously proceed with such cure or remedy, within ninety (90) calendar days after the receipt of the notice; and to add the cost thereof to the security interest debt and the lien of its security interest. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default within sixty (60) calendar days after obtaining possession; provided that in the case of a default which cannot with diligence be remedied or cured, or the remedy or cure of which cannot be commenced, within such sixty (60) calendar day period, such holder shall have such additional time as is reasonably necessary to remedy or cure such default of the Developer. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates and must submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder completing such improvements in accordance herewith shall be entitled, upon written request made to the Agency, to be issued a Certificate of Completion by the Agency. f. In any case where, one hundred eighty (180) calendar days after default by the Developer in the completion of construction of improvements under this Agreement, the holder of any mortgage, deed of trust or other security interest creating a lien or encumbrance upon the Project or any portion thereof has not exercised the option to construct the applicable portions of the Project, or has exercised the option but has not proceeded diligently and continuously with construction, the Agency may purchase the mortgage, deed of trust or other security interest by payment to the holder of the amount of the unpaid debt, including principal, accrued - 18 - r� ,© and unpaid interest, late charges, costs, expenses and other tt amounts payable to the holder by the Developer under the loan documents between holder and the Developer. If the ownership of the Project has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: 1. The unpaid mortgage, deed of trust or other security interest debt, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the holder by the Developer under the loan documents between the holder and the Developer, at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings. ) 2 . All expenses, if any, incurred by the holder with respect to foreclosure. 3 . The net expenses, if any (exclusive of general overhead) , incurred by the holder as a direct result of the subsequent ownership or management of the Project, such as insurance premiums. �- 4 . The cost of any improvements made by such holder. 5. An amount equivalent to the interest that would have accrued on the aggregate on such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency. 6. After expiration of the aforesaid one hundred eighty (180) calendar day period, the holder of any mortgage, deed of trust or other security affected by the option created by this Section, may demand, in writing, that the Agency act pursuant to the option granted hereby. If the Agency fails to exercise the right herein granted within ninety (90) calendar days from the date of such written demand, the Agency shall be conclusively deemed to have waived such right of purchase of the applicable portion of the Project or the mortgage, deed of trust or other security interest. g. In the event of a default or breach by the Developer of a mortgage, deed of trust or other security interest with respect to the Project (or any portion thereof) prior to the issuance of a Certificate of Completion for the applicable portion or portions of the Project, and the holder has not exercised its option to complete the development, the Agency 19 - f/f may cure the default prior to completion of any foreclosure. 4._._ In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be deemed to have a lien upon the Project (or any portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to mortgages, deeds of trust or other security instruments executed for the sole purpose of obtaining funds to purchase and develop the Project as authorized herein. Section 3 . 06. Right of the Agency to Satisfy Other Liens on the Project after Conveyance of Title. After the conveyance of title to the Project by the Agency to the Developer and prior to the recordation of the Certificate of Completion (referred to in Section 3.07 of this Agreement) , and after the Developer has had a reasonable time to challenge, cure or satisfy any unauthorized liens or encumbrances on the Project, the Agency shall after sixty (60) calendar days prior written notice to the Developer have the right to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Project, or any portion thereof, to forfeiture or sale. Section 3 .07. Certificate of Completion. a. Following the written request therefor by the Developer and the completion of reconstructionA of the improvements, excluding any normal and customary tenant improvements o be completed by the Developer upon the Project, the Agency shall furnish the Developer with a Certificate of Completion for the Project, substantially in the form in Exhibit "E" attached hereto. Notwithstanding any provision set forth herein to the contrary, the completion of construction and development of improvements on the Project shall be deemed to include the completion of reconstruction and development of any and all buildings on said Project. / b. The Agency shall not unreasonably withhold the issuance of such Certificate of Completion. The Certificate of Completion shall be, and shall so state, that it is a conclusive determination of satisfactory completion of all of the obligations of this Agreement with respect to the development of the Project. After the recordation of the Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Project shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement, except that such party shall be bound by any covenants contained in the grant deed, lease or other instrument of transfer which grant deed, lease or other - 20 - c instrument of transfer shall include the provisions of Section 4 . 01 through 4. 05, inclusive, of this Agreement. Neither the Agency nor any other person, after the recordation of the Certificate of Completion, shall have any rights remedies or controls that it would otherwise have or be entitled to exercise under this Agreement with respect to the Project, as a result of a default in or breach of any provision of this Agreement, and the respective rights and obligations of the parties shall be limited to those set forth in the grant deed. C. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder' s Office of the County where the Project is located. d. If the Agency refuses or fails to furnish a Certificate of Completion for the Project after written request from the Developer, the Agency shall, within fifteen (15) calendar days of the written request or within three (3) calendar days after the next regular meeting of the Agency, whichever date occurs later, provide to the Developer a written statement setting forth the reasons with respect to the Agency's refusal or failure to furnish a Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate unavailability of specific items or materials for construction at a price reasonably acceptable to the Developer or other minor building "punch-list" items, the Agency will issue its Certificate of Completion upon the posting of a bond or irrevocable letter of credit, reasonably approved as to form and substance by the Agency Counsel and obtained by the Developer in an amount representing a fair value of the work not yet completed as reasonably determined by the Agency. If the Agency shall have failed to provide such written statement within the foregoing period, the Developer shall be deemed conclusively and without further action of the Agency to have satisfied the requirements of this Agreement with respect to the applicable portion of the Project as if a Certificate of Completion had been issued therefor. e. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements described herein, or any part thereof. Such Certificate of Completion shall not be deemed to constitute a notice of completion as referred to in Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants or conditions subsequent contained in the Grant Deed attached hereto as Exhibit "C" . V 21 - ARTICLE IV USE OF THE SITE Section 4 . 01. Uses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Project, or any part thereof, that during construction of the development of the Project hereunder and for the period specified in Section 4 . 05 thereafter the Developer, such successors and such assigns shall devote the Project (or any part thereof) to the use as a public law library or to such use as may be permitted pursuant to Section 3 . 01(a) hereof. The Developer agrees to employ, within ninety (90) days /1 from receiving the Certificate of Completion, at least eight (8) full-time employees at the completed facility for a period of not less than ten (10) years. In addition, the Developer shall commit to hire, to the extent feasible, the majority of employees from local job training agencies. Section 4. 02 . Maintenance of the Project. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Project, or any part thereof, that the Developer, such successors and such assigns shall maintain r" the Project in good condition and shall keep the Project free from rp any accumulation of debris or waste material, subject to normal construction job-site conditions. In the event the Developer, ori'o its successors or assigns, fails to perform the maintenance as required herein, the Agency and/or the City shall have the right, ,4A d but not the obligation, to enter the Project and undertake, such maintenance activities. In such event, the Developer shall reimburse the Agency and/or City for all reasonable sums incurred s�5ta by it for such maintenance activities. by Section 4 .03 . Obligation to Refrain from Discrimination. � Q The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Project or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Project; nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees of the Project. Section 4. 04. Form of Nondiscrimination and Nonseareaation Clauses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Project, or any part thereof, that the Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Project (or any part thereof) on the basis of sex, - 22 - /l` '0 marital status, race, color, religion, creed, ancestry, disability or national origin of any person. All deeds, leases or contracts pertaining thereto shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, disability or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land. " b. In leases: "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, disability or ` ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sublessee, subtenants, or vendees in the premises herein leased. " C. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, disability or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the premises herein transferred. " The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. �.r Section 4 . 05. Effect and Duration of Covenants. The covenants established against discrimination shall remain in effect - 23 - in perpetuity. The covenants respecting uses of the Project shall remain in effect for a period of ten (10) years from the date of execution of this Agreement, shall run with the land and shall constitute equitable servitudes thereon, and shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, including the City. The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land for and in its own rights and for the purposes of protecting the interests of the community. The Agency shall have the right, if such covenants are breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or such other proper proceedings to enforce the curing of such breaches to which it or any other beneficiary of such covenants may be entitled, including, without limitation, to specific performance, damages and injunctive relief. The Agency shall have the right to assign all of its rights and benefits hereunder to the City. - 24 - /�f ARTICLE V DEFAULTS, REMEDIES AND TERMINATION 1� Section 5. 01. Defaults - General. a. Subject to the extensions of time set forth in Section 6.05 hereof, failure or delay by either party to perform any term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if a party otherwise in default commences to cure, correct or remedy such default within thirty (30) calendar days after receipt of written notice specifying such default and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits) , such party shall not be deemed to be in default hereunder. b. The injured party shall give written notice of default to the party in default, specifying the default complained of by the nondefaulting party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. C. Any failure or delays by either 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 such rights or remedies. Delays by either party in asserting any of its rights and remedies shall not deprive either party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Section 5. 02. Legal Actions. a. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, in any other appropriate court in that County, or in the Federal District Court in the Eastern District of California. b. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. C. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive - 25 - C� Director or Chairman or the Agency, or in such other manner as may be provided by law. d. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service on the Developer (or such other Agent for service of process and at such address as may be specified in written notice to the Agency) , or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. Section 5.03 . Rights and Remedies are Cumulative. Except with respect to any rights and remedies expressly declared to be exclusive in this Agreement, 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. Section 5. 04. Damages. If either party defaults with regard to any provision of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the defaulting party does not diligently commence to cure such default within thirty (30) calendar days after service of the notice of default and promptly complete the cure of such default within a reasonable time, not to exceed ninety (90) calendar days (or such shorter period as may otherwise be specified in this Agreement for any specific default) , after the service of written notice of such default, the defaulting party shall be liable to the other party for damages caused by such default. Section 5. 05. Specific Performance. If either party defaults under any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon such defaulting party. If the defaulting party does not commence to cure the default and diligently and continuously proceed with such cure within thirty (30) calendar days after service of the notice of default, and such default is not cured within a reasonable time thereafter (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits) , the nondefaulting party, at its option, may institute an action for specific performance of the terms of this Agreement, except as otherwise provided in Section 5. 04 hereof. Section 5. 06. Rights and Remedies of Termination. a. Termination by the Developer. The Developer may terminate this Agreement if the Agency does not tender conveyance of title to and possession of the Project to the Developer in the manner and condition and by the date provided in this Agreement (or any and all extensions - 26 - fh thereof as authorized by this Agreement) , and if any such failure is not cured within thirty (30) calendar days after written demand therefor submitted by the Developer to the Agency. Such written demand shall specify the Agency' s default and the action required to cure same. b. Termination by the Agency. 1. Notwithstanding any provision set forth in this Agreement to the contrary, upon written notice of default which shall specify the Developer's default and the action required to cure same and upon thirty (30) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if following satisfaction of all conditions precedent for conveyance of the Project by the Agency to the Developer and at the time the Developer is required to deposit into escrow the Purchase Price, the Developer has not in fact made such deposit. 2. Subject to written notice of default which shall specify the Developer' s default and the action required to cure same and upon thirty (30) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if the Developer in breach of this Agreement assigns or attempts to assign this Agreement, or any right therein, or attempts to make any total or partial sale, lease or leaseback, transfer or conveyance of the whole or any part of the Project in violation of the terms of this Agreement, and the Developer does not correct such violation within thirty (30) calendar days from the date of receipt of such notice. 3 . Subject to written notice of default, which shall specify the Developer's default and the action required to cure same and upon thirty (30) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if the Developer: (a) does not within the time limits set forth in this Agreement or as specifically provided in the Schedule of Performance, subject to extensions authorized by this Agreement due to force majeure or otherwise, submit development plans, construction drawings and related documents acceptable to the Planning Department and Building Division of the City for G plan check purposes and in order to obtain building permits for the Project, together with applicable - 27 - �G� fees therefor, all prepared to the minimum acceptable standards as required by the Planning Department and Building Division of the City for commencement of formal review of such documents and as required by this Agreement, or (b) does not carry out its other responsibilities under this Agreement or in accordance with any modification or variance, precise plan, design review and other environmental or governmental approvals and such default is not cured or the Developer does not commence and diligently and continuously proceed with such cure within thirty (30) calendar days after the date of receipt of written demand therefor from the Agency. 4 . Subject to written notice of default which shall specify the Developer's default and the action required to cure same and upon thirty (30) calendar days notice to the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option may terminate this Agreement if upon satisfaction of all conditions precedent and concurrent therefor under this Agreement, the Developer does not take title to the Project under tender of conveyance by the Agency, and such breach is not cured within thirty (30) calendar days after the date of receipt by the Developer of written demand therefor from the Agency. Section 5. 07. Right to Reenter, Repossess, Terminate and Revest. a. The Agency shall, upon thirty (30) calendar days notice to the Developer which notice shall specify this Section, have the right, at its option, to re-enter and take possession of all or any portion of the Project and to terminate and revest in the Agency the estate conveyed to the Developer hereunder, if after conveyance of title, the Developer (or its successors in interest) shall: 1. Fail to commence construction of all or any portion of the improvements as required by this Agreement for a period of ninety (90) calendar days after written notice to proceed from the Agency; provided that the Developer shall not have obtained an extension or postponement to which the Developer may be entitled pursuant to Section 6. 05 hereof; or 2 . Abandon or substantially suspend construction of all or any portion of the improvements for a period of ninety (90) calendar days after written notice of such abandonment or suspension from the Agency; provided that the Developer shall not have obtained - 28 - / 9 an extension or postponement to which the Developer may be entitled to pursuant to Section 6.05 hereof; .. or 3 . Assign or attempt to assign this Agreement, or any rights herein, or transfer, or suffer any involuntary transfer, of the Project or any part thereof, in violation of this Agreement, and such violation shall not have been cured within thirty (30) calendar days after the date of receipt of written notice thereof from the Agency to the Developer. b. The thirty (30) calendar day written notice specified in this Section shall specify that the Agency proposes to take action pursuant to this Section and shall specify which of the Developer's obligations set forth in Subsections (1) through (3) herein have been breached. The Agency shall proceed with its remedy set forth herein only in the event that the Developer continues in default of said obligation(s) for a period of thirty (30) calendar days following such notice or, upon commencing to cure such default, fails to diligently and continuously prosecute said cure to satisfactory conclusion. C. The right of the Agency to reenter, repossess, terminate, and revest shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit: 1. Any mortgage, deed of trust or other security interest permitted by this Agreement; 2 . Any rights or interests provided in this Agreement for the protection of the holders of such mortgages, deeds of trust or other security interests; 3 . Any leases, declarations of covenants, conditions and restrictions, easement agreements or other recorded documents applicable to the Project. d. The grant deed or ground lease to any portion of the Project conveyed or leased by the Developer to another party shall contain appropriate references and provisions to give effect to the Agency's right, as set forth in this Section under specified circumstances prior to the recordation of the Certificate of Completion, to reenter and take possession of such parcel, or any part thereof, with all improvements thereon, and to terminate and revest in the Agency the estate conveyed to the Developer. (" e. Upon the revesting in the Agency of title to the �✓ Project, or any part thereof, as provided in this Section, the - 29 - Agency shall, pursuant to its responsibilities under State law, use its best efforts to resell the Project, or any part N-I thereof, at fair market value as soon and in such manner as the Agency shall find feasible and consistent with the objectives of such law, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligations of making or completing the improvements, or such other improvements in their stead as shall be satisfactory to the Agency and in accordance with the uses specified for the Project, or any part thereof. Upon such resale of the Project, or any part thereof, the proceeds thereof shall be applied: 1. First, to make any payment made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred with respect to the making or completion of the agreed improvements or any part thereof on the Project, or part thereof; next to reimburse the Agency on its own behalf or on behalf of the City for all actual costs and expenses incurred by the Agency and the City, including but not limited to customary and reasonable fees or salaries to third party personnel engaged in such action (but excluding the Agency's or the City's general overhead expense) , in connection with the recapture, management and resale of the Project or part thereof; water and sewer charges paid by the City and/or the Agency with respect to the Project or part thereof; any amounts otherwise owing to the Agency by the Developer and its successor transferee; and 2. Second, to the extent that any and all funds which are proceeds from such resale are thereafter available, to reimburse the Developer, or its successor transferee, up to the amount equal to the sum of: (1) the Purchase Price paid by the Developer for the Project (or allocable to the applicable part thereof) ; and (2) the costs incurred for the development of the Project, or applicable part thereof, or for the construction of the improvements thereon including, but not limited to, costs of carry and items set forth in the Developer's cost statement which shall be submitted to and approved by the Agency. 3 . Any balance remaining after the foregoing application of proceeds shall be retained by the Agency. 30 - /d ARTICLE VI GENERAL PROVISIONS Section 6 . 01. Notices. Demands and Communications Between the Parties. a. Any and all notices, demands or communications submitted by any party to another party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, to the principal office of the Agency and the Developer, as applicable, as designated in Section 1. 04 (a) and Section 1.04 (b) hereof. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, or two (2) calendar days after it is placed in the United States mail as heretofore provided. b. In addition to the submission of notices, demands or communications to the parties as set forth above, copies of all notices to any party shall also be sent to: (if the Developer) San Bernardino County Law Library P.O. 213 San Bernardino, CA 92402 Attn: Carolyn Witlock, Law Librarian (with a copy to) County Law Library Board of Trustees 290 North "D" Street, Suite 707 San Bernardino, CA 92401 Attn: Elliott D. Whitlock, President (if the Agency) Redevelopment Agency of the City of San Bernardino 201 North "E" Street, 3rd Floor San Bernardino, CA 92401 (with a copy to) Sabo & Green, A Professional Corporation 6320 Canoga Avenue, Suite 400 Woodland Hills, CA 91367 - 31 - f Section 6. 02. Conflict of Interest. No member, official or employee of the Agency or the Developer having any conflict of interest, direct or indirect, related to this Agreement and the development of the Project shall participate in any decision relating to the Agreement. The parties represent and warrant that they do not have knowledge of any such conflict of interest. Section 6.03 . Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section, shall not include persons to whom fees are paid for professional services if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by the Developer. Section 6. 04. Nonliability of Agency Officials and Employees: Nonliability of Developer's Officers and Employees. A. No member, official or employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement, except for gross negligence or willful acts of such member, officer or employee. B. No member, official or employee of the Developer shall be personally liable to the Agency, or any successor in interest, in the event of any default or breach by the Developer or for any amount which may become due to the Agency or to its successor, or on any obligations under the terms of this Agreement, except for gross negligence or willful acts of such member, officer or employee. Section 6. 05. Enforced Delay: Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of public enemy; epidemics; quarantine restrictions; freight embargoes or lack of transportation; weather- caused delays; inability to secure necessary labor, materials or tools; delays of any contractors, subcontractor or supplier; acts of the other party other than as permitted or required by the terms of this Agreement; acts or failure to act of any public or governmental agency or entity other than as permitted or required by the terms of this Agreement (except that action or failure to act by the City or the Agency shall not extend the time for the Agency to act unless such action or failure to act is the result of a lawsuit or injunction including by way of illustration, but not limited to, lawsuits pertaining to the adoption of the Agreement, an EIR and any other environmental documentation and procedures, eminent domain, and the like) or any other causes beyond the - 32 - control or without the fault of the party claiming an extension of time to perform. Any extension of time for any such cause hereunder shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) calendar days of the commencement of the cause. Times of performance under this Agreement may also be extended by mutual agreement in writing by and between the Agency and the Developer. Section 6. 06. Inspection of Books and Records. The Agency shall have the right at all reasonable times at the Agency's cost and expense to inspect the books and records of the Developer pertaining to the Project and/or the development thereof as necessary for the Agency, in its reasonable discretion, to enforce its rights under this Agreement. Matters discovered by the Agency shall not be disclosed to third parties unless required by law or unless otherwise resulting from or related to the pursuit of any remedies or the assertion of any rights of the Agency hereunder. The Developer shall also have the right at all reasonable times to inspect the books and records of the Agency pertaining to the Project and/or the development thereof as pertinent to the purposes of this Agreement. Section 6. 07. Approvals. a. Approvals required of the Agency or the Developer, or any officers, agents or employees of either the Agency or the Developer, shall not be unreasonably withheld and approval or disapproval shall be given within the time set forth in the Schedule of Performance or, if no time is given, within a reasonable time. b. The Executive Director of the Agency is authorized to sign on his own authority amendments to this Agreement which are of routine or technical nature, including minor adjustments to the Schedule of Performance. Section 6. 08 . Real Estate Commissions. Nei h the Agency nor the Developer shall be liable for any real estate commissions, brokerage fees or finder fees which may arise from or related to this Agreement. Section 6. 09 . Indemnification. The Developer agrees to indemnify and hold the City and the Agency, and their officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Developer in performing its obligations hereunder. The Agency agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Agency in performing its obligations hereunder. - 33 - Id Section 6. 10. Release of Developer from Liability. Notwithstanding any provision herein to the contrary, the Developer \ . shall be relieved of any and all liability for the obligations of the Developer hereunder with regard to the Project when a Certificate of Completion has been issued by the Agency hereunder, other than any covenants and obligations provided by the grant deed by which the Project is conveyed to the Developer hereunder. Section 6. 11. Attorneys' Fees. If either party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, seeks the resolution of disputes pursuant to Section 6. 12 hereof, or is made a party to any action or proceeding brought by the Escrow Agent, then as between the Developer and the Agency, the prevailing party shall be entitled to recover as an element of its costs of suit or resolution of disputes pursuant to Section 6. 12 hereof, and not as damages, its reasonable attorneys' fees as fixed by the Court or other forum for resolution of disputes as set forth in Section 6. 12 hereof, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. Section 6. 12 . Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. d� - 34 - //� /LI ARTICLE VII ENTIRE AGREEMENT, WAIVERS AND AMENDMENT Section 7. 01. Entire Agreement. a. This Agreemen all be executed in five (5) duplicate originals eac f w 'ch is deemed to be an original. This Agreement includ pages and 6 attachments, which constitute the entir unders ending and Agreement of the parties. b. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the Project and the development thereof. C. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the grant deed conveying title to the Project, and this Agreement shall continue in full force and effect before and after such conveyance until issuance of the Certificate of Completion for the Project. d. All waivers of the provisions of this Agreement and all amendments hereto must be in writing and signed by the (� appropriate authorities of the Agency and the Developer. 35 - i'L1 ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION Section 8. 01. Execution and Recordation. a. Following its execution by the Developer and prompt delivery thereafter to the Agency, this Agreement must be approved, executed and delivered by the Agency to the Developer within forty-five (45) calendar days after the date of signature by the Developer. In the event that the Agency has not approved, executed and delivered the Agreement to the Developer within the foregoing period, then this Agreement shall be deemed to be of no further force or effect unless the time for such approval, execution and delivery is extended by written notice from the Developer to the Agency. The date of this Agreement shall be the date when the Agreement shall have been approved by the Agency. b. The Developer and the Agency agree to permit recordation of this Agreement or any portion thereof against the Project in the Office of the County Recorder for the County where the Project is located. - 36 - i IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the dates set forth below. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO Date: By: Chairman (SEAL) By. Secretary APPROVED AS TO FORM AND LEGAL CONTENT SABO & GREEN, A Professional Corporation Agency Counsel APPROVED AS TO PROGRAM Stafford Parker Deputy Director SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF TRUSTEES Developer Date: By: Its• (All Signatures Must Be Notarized) SBE0\00011DDA\fA W.LM - 37 - �(i STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signatures) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 38 - ��7 STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signature(s) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) - 39 - ,C Q EXHIBIT "A" �.- LEGAL DESCRIPTION 0 9 EXHIBIT "B" SCOPE OF DEVELOPMENT The Project shall be developed as a public law library, all as described herein. The Project may be developed in accordance with this Agreement, but subject to the requirements of the zoning ordinance of the City and any variances or modifications therefrom as approved by the City. The Developer shall cause the redesign and reconstruction of the 30, 176 square foot Project in accordance with the Schedule of Performance (Exhibit "D") and this Agreement as follows: A public law library. The development shall be constructed of quality materials, to City Code, and shall be unified in architectural theme and treatment throughout the Project, insofar as reasonable and practicable. All improvements to be constructed by the Developer shall be constructed or installed in accordance with the technical specifications, standards and practices of the City and in accordance with plans and specifications approved by the City. The Developer shall cause the proper documents to be filed and fees paid to all governmental or regulatory agencies, including utilities, for applications for all required permits and approvals. AThe Developer shall design all structures and landscaping, if any, to achieve a high degree of attractiveness and compatibility with the area in which the Project is located. The Developer has heretofore at its cost and expense undertaken and completed any and all soils, utility and drainage studies, plans and reports pertinent to the development of the Project, if any, and has provided a copy of said studies and reports to the Agency. The Agency shall provide an easement for parking facilities appurtenant to the Project to run in perpetuity or until other parking is provided by the Agency subject to an agreement of the parties, whichever is earlrr. The Agency shall a so prjde the marking as a loading zone of the curb on the °;oue of the Project and the removal of the bus stop on t e side of the Project. B - ,Q 4 EXHIBIT "C" GRANT DEED RECORDING REQUESTED BY: AFTER RECORDATION, MAIL TO: San Bernardino County Law Library P.O. Box 213 San Bernardino, California 92402 MAIL TAX STATEMENTS TO: GRANT DEED For valuable consideration, the receipt of which is hereby acknowledged, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic, of the State of California (the "Grantor") , pursuant to and in accordance with the Community Redevelopment Law of the State of California, hereby grants to SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF TRUSTEES (the "Grantee") , a certain structure located upon real property (the "Property") legally described in the document attached hereto, labeled Exhibit A, and incorporated herein by this reference. 1. Th Property is conveyed subject to the Disposition and Develop nt Agreement a tered into between the Grantor and the Grantee, da ed 1994 (herein referred to as the "Agreement") . The provis ons of the Agreement are incorporated herein by thi reference d shall be deemed to be a part hereof as if set forth a length rein. 2 . The Grantee covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property. C - 1 Al All deeds, leases or contracts made relative to the Property, (� discrimination clauses: (a) In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee, himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " (b) In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, subtenants, sublessees or vendees in the land herein leased. " (c) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. " 3 . No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted by the Agreement; provided, however, `tom. that any successor of Grantee to the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and C - 2 i6' P provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 4. The terms and conditions set forth in Article IV of the Agreement and the covenants otherwise contai in this Grant Deed shall remain in effect for a period of five ars from the date hereof, except that the covenants against iscri 'nation set forth in Article IV of the Agreement shall emain in effect in perpetuity and the covenants set forth in Sect'ons _ w ich shall remain in effect until they are satisfied in ull 5. The covenants contained in this ant D d shall be binding for the benefit of the Grantor and it cessors and assigns, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in full force and effect, without regard to whether the Grantor is or remains an owner of any land or interest herein to which such covenants relate. The grantor, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach as provided in the Agreement or by law. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor and its successor. C - 3 IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized, this _ day of , 19 Grantor: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Chairperson By: Secretary APPROVED AS TO FORM AND LEGAL CONTENT: By: Counsel for Grantor r- The provisions of this Grant Deed are hereby approved and accepted. Grantee: SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF TRUSTEES By: Title: By: Title: APPROVED AS TO FORM AND LEGAL CONTENT: By: Counsel for Grantee C - 4 iV EXHIBIT "D" SCHEDULE OF PERFORMANCE (Days shall be calendar days, and all dates herein are subject to change due to force majeure in accordance with Section 6. 05 of the Agreement) (1) Developer submits to Agency and Within 120 days of close City, construction plans and related of escrow documents (2) City and Agency review and Within 360 days of Close- , approve or disapprove construction of Escrow plans and related documents C4. (3) Developer pulls permits, begins Within 30 days of,Step ''- reconstruction (4) Completion of construction Within 12 months of Step 3 above a D - 1 /7 EXHIBIT "E" When Recorded, Mail to: CERTIFICATE OF COMPLETION We, , Chairman and , Secretary of the Redevelopment Agency of the City of San Bernardino (the "Agency") hereby certify as follows: By its Resolution No. , adopted and approved 199_, the Agency has resolved as follows: Section 1. The improvements required to be constructed in accordance with that certain Disposition and Development Agreement (the "Agreement") dated , by and between the Agency and the San Bernardino County Law Library Board of Trustees, a California statutory corporation (the "Developer") , to that certain structure located upon certain real property (collectively, the "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 agreements and covenants contained in the Agreement with respect to the obligations of the Developer, and its successors and assigns, to construct and develop the improvements to the Property, excluding any normal and customary tenant improvements and minor building "punch-list" items, and including any and all buildings and landscaping, if any, and related improvements necessary to support or which meet the requirements applicable to the building and its use and occupancy on the Property, whether or not said improvements are on the Property or on other property subject to the Agreement, all as described in the Agreement, and to otherwise comply with the Developer's obligations under the Agreement with respect to the Property and the dates for the beginning and completion of construction of improvements thereto under the Agreement; provided, however, that the Agency may enforce any covenant surviving this Certificate of Completion in accordance with the terms and conditions of the Agreement and the grant deed pursuant to which the Property was conveyed under the Agreement. Said Agreement is an official record of the Agency 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 E - 1 ` / 0 201 North "E" Street, Third Floor, San Bernardino, California 92401, during regular business hours. section 3 . The Property to which this Certificate of Completion pertains is more fully described in Exhibit "A" attached hereto. DATED AND ISSUED this day of , 199_. Executive Director of the Redevelopment Agency of the City of San Bernardino E - 2 10 Q EXHIBIT "F" EASEMENT RECORDING REQUESTED BY: Redevelopment Agency of the City of San Bernardino AFTER RECORDATION, MAIL TO: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, California 92401 Space Above for Recorder's Use EASEMENT AGREEMENT This Agreement is entered into this day of 1994, by and between the Redevelopment Agency for the City of San Bernardino (the "Grantor") and the San Bernardino County Law Library Board of Trustees (the "Grantee") . WHEREAS, Grantor is the owner of certain real property situated in the City of San Bernardino, County of San Bernardino, California, (hereinafter referred to as the "Servient Tenement") and more particularly described in Exhibit "A" attached hereto and made a part of this A eem by this reference; and WHEREAS, G n % the owner of certain real property adjacent to the Serve enement located in the City of San Bernardino, County of San Bernardino, California, as more particularly described in Exhibit "B" attached hereto and made a part of this Agreement by this reference (the "Dominant Tenement") ; and WHEREAS, Grantee desires to purchase the Dominant Tenement from Grantor and to acquire certain rights in the Servient J Teneme/ntt._ F lV l �/L ✓lam r.+� U� ICrv1r F 1 SGl ✓1."' r- *n�--iv' Y0 h �, vtnd�-✓�.l r' F O�C�CVJ NOW THEREFORE, GRANTOR AND GRANTEE AGREE AS FOLLOWS: 1. In consideration of the sum of Six Hundred Thousand Dollars ($600, 000) , Grantor has conveyed the Dominant Tenement to Grantee by that certain Grant Deed dated , 1994 , and hereby grants to Grantee an exclusive easement on the Servient Tenement, subject to the terms of this Agreement. 2. The easement granted in this Agreement is appurtenant to the Dominant Tenement, and is an easement for ingress and egress over and across the Servient Tenement for the parking of vehicles, maintenance, and use of the Servient Tenement. 3. Grantee's use of the easement granted in this Agreement shall be exclusive. Grantor shall not grant or assign to others any right of way or easement in the Servient Tenement. Notwithstanding the terms of this provision, Grantor reserves the right to use the Servient Tenement in a manner consistent with Grantee's free use and enjoyment of the easement. 4 . Grantee must use reasonable care and may not unreasonably increase the burden on the Servient Tenement or make any material changes to the Servient Tenement without the express permission of the Grantor. 5. The easement grante in this Agreement shall extend until Grantor provides Grantee an asement to property within the City of San Bernardino, County of San Bernardino, California, for the purposes of parking u on the consent of Grantee, which con sent shall not be unreasonab 6. This Agreement, including any interest in this Agreement, shall not be assigned without the prior written consent of the other party but may be conveyed if Law Library building is conveyed. y 7. If any legal action or proce\din arin out of or relating to this Agreement is brought by eit� si g er party to this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to any other relief which may be granted, the reasonable attorneys ' fees, costs, and expenses incurred in the action or proceeding by the prevailing party. 8 . This Agreement constitutes the entire Agreement between Grantor and Grantee relating to this easement. Any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to this Agreement shall be of no force and effect unless it is in writing and signed by Grantor and Grantee. F - 2 1(i 9. This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of Grantor and Grantee. GRANTOR REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Executive Director ATTEST: Agency Secretary [SEAL] GRANTEE SAN BERNARDINO COUNTY LAW LIBRARY BOARD OF TRUSTEES By: ATTEST: Secretary [SEAL] F - 3 10 4 STATE OF CALIFORNIA ) COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared ' personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signatures) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) F - 4 b/ STATE OF CALIFORNIA COUNTY OF ) On before me, (here insert name and title of the officer) , personally appeared ' personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) , and that by his/her/their signatures) on the instrument the person(s) , or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) F - 5 �/ 1 0 4 EXHIBIT "A" LEGAL DESCRIPTION [SERVIENT TENEMENT] r 0 F - 6 r.. EXHIBIT "B" LEGAL DESCRIPTION [DOMINANT TENEMENT] F - 7