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ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: John Hoeger
Project Manager
SUBJECT:
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TIPPECANOE RETAIL PROJECT
(HUB) -- IN-N-OUT Burgers OPA; SBT
Partners DDA; AND Harriman
Memorandum
DATE: March 19,2002
._._______________d_~_____________________________________________________________________________________________________________________.__________________
SvnoDsis of Previous Commission/CounciVCommittee ActioD(S):
On May 21, 2001, the Community Development Commission and/or the Common Council approved the Disposition and
Development Agreement between the Redevelopment Agency and SBT Partners, LLC., the EIR and the Harriman Place
Improvement Project Acquisition, Construction and Financing Agreement, authorized an application for California
Infrastructure and Economic Development Bank financing, and held the first reading of the Development Code and
General Plan Amendments.
On October I, 200 I the Community Development Commission approved an Owner Participation Agreement between
the Redevelopment Agency and In-N-Out Burgers, a California Corporation, for the relocation of an existing In-N-Out
Burgers store on Tippecanoe Avenue north of 1-10.
Recommended Motion(s):
(Communitv Develonment Commission)
MOTION:
A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE ACCEPTANCE AND APPROVAL OF THE FINAL
FORM OF VARlOUS LEGAL DESCRlPTIONS RELATING TO THE HUB PROJECT AND
EXECUTION OF THE FINAL FORM OF AN OWNER PARTICIPATION AGREEMENT, DATED
SEPTEMBER 17,2001, BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO AND IN-N-OUT BURGER, AND THE EXECUTION OF AMENDMENT
NO. I TO THE DISPOSITION AND DEVELOPMENT AGREEMENT, DATED AS OF MAY 21,
2001, BY AND BETWEEN THE AGENCY AND SBT PARTNERS, L.P., AND THE EXECUTION
OF AMENDMENT NO. I TO THE HARRlMAN PLACE IMPROVEMENT PROJECT
ACQUISITION, CONSTRUCTION AND FINANCING AGREEMENT, BY AND BETWEEN THE
AGENCY AND THE CITY OF SAN BERNARDINO (HUB PROJECT)
Contact Person(s): Gary Van OsdeVJohn Hoeger
Project Area(s) IVDA
Phone:
663-1044
Ward(s):
Third
Supporting Data Attached: 1RI Staff Report lRIResolution(s) lRIAgreement(s)/Contract(s) 0 Map(s) 0 LetterlMemo
No
FUNDING REQUIREMENTS Amount: $ Change Source: No Change
SIGNATURE:
Previously Authorized
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J eger, Project Manager
Economic Development Agency
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._________.________.____________________________________________._____________.________________________________________.n__________________________..________
Commission/Council Notes:
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COMMISSION MEETING AGENDA
Meeting Date: 04/01/02
Agenda Item Number: Rag
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ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
TIPPECANOE RETAIL PROJECT (HUB) - IN-N-OUT Bur!!er. OPA:
SBT Partner. DDA: AND Harriman Memorandum
BACKGROUND:
The Community Development Commission approved an Owner Participation Agreement (OPA)
with In-N-Out Burgers (INO) on October 1,2001. The OPA provided that the Agency would
assemble land that INO would purchase and use as a new site for the relocation of its existing
store on Tippecanoe Avenue north ofI-IO. The Agency also provided limited assistance in the
form of a land payment to INO for a remainder parcel to be purchased by the Agency after the
relocation is accomplished.
At about the same time, the Public Works Division began final design work on the extension and
realignment of Harriman Place that will connect Harriman with Laurelwood Drive at the existing
intersection of Laurelwood with Tippecanoe. That design is now complete and it affects the
specific location of a left turn entrance from westbound Harriman Place into the HUB Retail
Center adjacent to the new INO location.
CURRENT ISSUE:
In-N-Out did not sign the OPA pending completion of the design work so that it would be certain
that the final parcel dimensions would provide an acceptable site. The final design is acceptable
to INO and it has executed a copy of the attached agreement that includes the revised exhibits
and conforming changes necessary to reflect the current design of the Harriman Place extension.
This final design modified the shape and dimensions of the exhibits and legal descriptions in the
In-N-Out OPA. For example frontage on Harriman (Laurelwood) was shown as 195.94 feet in
the October document but is now 184.23 feet. While the overall concept remains the same, some
of the numbers used in calculations in the agreement must be revised to keep the deal points the
same (primarily the unit value of the remainder land to maintain a $50,000 payment to INO). The
Schedule of Performance is moved forward to match the time required to obtain the road design.
A revised site plan is included as well.
These changes also affect corresponding exhibits in the DDA with SBT Partners, LLC (the HUB
developer) and in the Harriman Place Improvement Project Acquisition, Construction and
Financing Agreement between the Agency and the City.
COMMISSION MEETING AGENDA
Meeting Date: 04/01102
Agenda Item Number: ~
.. Economic Development Agency Staff Report
Tippecanoe Retail Project
March 19,2002
Page 2
This action will approve execution of the In-N-Out OPA with revised exhibits and ratif'y
substitution of exhibits and the execution or re-execution of the DDA with SBT Partners, LLC
and the Harriman Agreement between the Agency and City as appropriate.
ENVIRONMENTAL IMPACT:
None of the changes in legal descriptions or technical modifications affect either the overall
project or the environmental effects that were analyzed in the final Environment Impact Report
that was certified on May 21, 2001.
FISCAL IMPACT:
There is no change in the fiscal impact ofthe project.
RECOMMENDATION:
That the Community Development Commission adopt the resolution set forth in the
Recommended Motion(s) section above.
..._---_._--------------------------.---.----------------------------------------------------------------------------------._---------------
COMMISSION MEETING AGENDA
Meeting Date: 04/01102
Agenda Item Number: &u.-
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RESOLUTION NO.
A RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO AUTHORIZING
THE ACCEPTANCE AND APPROVAL OF THE FINAL FORM OF
VARIOUS LEGAL DESCRIPTIONS RELATING TO THE HUB
PROJECT AND EXECUTION OF THE FINAL FORM OF AN OWNER
PARTICIPATION AGREEMENT, DATED SEPTEMBER 17, 2001, BY
AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND IN-N-OUT BURGER, AND THE EXECUTION
OF AMENDMENT NO.1 TO THE DISPOSITION AND DEVELOPMENT
AGREEMENT, DATED AS OF MAY 21, 2001, BY AND BETWEEN THE
AGENCY AND SBT PARTNERS, L.P., AND THE EXECUTION OF
AMENDMENT NO.1 TO THE HARRIMAN PLACE IMPROVEMENT
PROJECT ACQUISITION, CONSTRUCTION AND FINANCING
AGREEMENT, BY AND BETWEEN THE AGENCY AND THE CITY OF
SAN BERNARDINO (HUB PROJECT)
WHEREAS, the Inland Valley Development Agency (the "IVDA"), the City of San
Bernardino (the "City") and the Redevelopment Agency of the City of San Bernardino (the
"Agency") have previously entered into an agreement entitled "1999 Redevelopment
Cooperation Agreement", dated as of July 12, 1999, pursuant to which the IVDA, the City and
the Agency have initiated the redevelopment of a potion of the Project Area referred to in the
1999 Redevelopment Cooperation Agreement as the "Agency Implementation Area" and which
area has since been referred to by the Agency as the "HUB Project"; and
WHEREAS, the IVDA has previously designated the City to serve as the "lead agency"
as this term is defined in the California Environmental Quality Act of 1970, as amended,
("CEQA") for the purpose of conducting an environmental review of the HUB Project; and
WHEREAS, the City has certified a Final Environmental Impact Report as of May 21,
2001 (the "FEIR") for the HUB Project, in accordance with CEQA; and
WHEREAS, the HUB Project, as analyzed in the FEIR includes the following key
elements:
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(i) the realignment and construction of a new public street improvement
project referred to in the FEIR as the Harriman Place Improvement Project;
(ii) the assembly and acquisition of public street right-of-way for the
Harriman Place Improvement Project;
(iii) the assembly of land for the redevelopment of a new commercial retail
shopping center to be undertaken by SBT Partners, LLC, a California limited liability
company (the "Developer") the Developer and In-N-Out Burgers, Inc., a California
corporation ("In-N-Out");
(iv) the assembly and exchange oflands for the redevelopment of a restaurant
by In-N-Out as an owner participant in the HUB Project; and
WHEREAS, the Agency has previously approved and executed the Disposition and
Development Agency, dated as of May 21, 2001, (the "HUB Project DDN') by and between the
Developer and the Agency; and
WHEREAS, the Agency has previously approved the form of the Owner Participation
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Agreement, dated as of September 17,2001 (the "In-N-Out OPA") with In-N-Out, but such
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form of the In-N-Out OPA has not been executed by the In-N-Out pending the final completion
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and acceptance by In-N-Out of the various legal descriptions which accompany the In-N-Out
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OPA; and
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WHEREAS, the City and the Agency have previously approved and executed the
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Harriman Place Improvement Acquisition, Construction and Financing Agreement, dated as of
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May 21, 2001 (the "Harriman Place Agreement'); and
WHEREAS, the final form of the legal descriptions included in the In-N-Out OPA
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requires conforming technical changes to certain legal descriptions attached to the HUB Project
DDA and the Harriman Place Agreement, and accordingly it is necessary at this time for the
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Agency to approve the technical modifications of various legal descriptions of the lands and
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new public street alignments affected by the HUB Project and the HUB DDA and the In-N-Out
OPA, and to ratify the execution of the HUB Project DDA and the Harriman Place Agreement.
NOW THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO DOES HEREBY FIND, DETERMINE AND RESOLVE
AS FOLLOWS:
Section 1. The Commission as the governing board of the Agency hereby finds that
the technical modifications to the various legal descriptions of the lands and new public street
alignments for the HUB Project, as approved by the adoption of this Resolution, do not have
any significant environmental impacts and do not constitute any material change to the elements
of the HUB Project analyzed in the FEIR for the HUB Project. Accordingly no further
consideration under CEQA is required for the HUB Project or the FEIR at this time.
Section 2. The Agency hereby acknowledges its acceptance and approval of the
technical modifications of the legal description attached as Exhibit" I B" through Exhibit" I H",
inclusive of the HUB Project DDA. The Agency hereby approves Amendment No. I to the
HUB Project DDA in the form as on file with the Agency Secretary. The Executive Director of
the Agency is hereby authorized and directed to execute Amendment No. I to the HUB Project
DDA on behalf of the Agency.
Section 3. The Agency hereby acknowledges its acceptance and approval of the
technical modifications of the legal description attached as Exhibit "c" to the Harriman Place
Agreement. The Agency hereby approves Amendment No. I to the Harriman Place Agreement
in the form as on file with the Agency Secretary. The Executive Director of the Agency is
hereby authorized and directed to execute Amendment No. I to the Harriman Place Agreement
on behalf of the Agency.
Section 4. The Agency hereby acknowledges its acceptance and approval of Exhibit
"A" through Exhibit "E-I", inclusive of the In-N-Out OPA. The Agency hereby approves the
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In-N-Out OPA in the form as on file with the Agency Secretary. The Executive Director of the
Agency is hereby authorized to execute the In-N-Out OPA on behalf of the Agency.
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_ I A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY
_ OF SAN BERNARDINO AUTHORIZING THE ACCEPTANCE AND APPROVAL OF THE
2 FINAL FORM OF VARIOUS LEGAL DESCRIPTIONS RELATING TO THE HUB
PROJECT AND EXECUTION OF THE FINAL FORM OF AN OWNER PARTICIPATION
3 AGREEMENT, DATED SEPTEMBER 17, 2001, BY AND BETWEEN THE
4 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND IN-N-OUT
BURGER, AND THE EXECUTION OF AMENDMENT NO. I TO THE DISPOSITION AND
5 DEVELOPMENT AGREEMENT, DATED AS OF MAY 21, 2001, BY AND BETWEEN THE
AGENCY AND SBT PARTNERS, L.P., AND THE EXECUTION OF AMENDMENT NO. I
6 TO THE HARRIMAN PLACE IMPROVEMENT PROJECT ACQUISITION,
CONSTRUCTION AND FINANCING AGREEMENT, BY AND BETWEEN THE AGENCY
7 AND THE CITY OF SAN BERNARDINO (HUB PROJECT)
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8 Section 5, This Resolution shall take effect upon adoption. The Agency Secretary
9 shall certifY to the adoption of this Resolution.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Community Development Commission of the City of San Bernardino at a
meeting thereof, held on the day of , 2002, by the following vote to wit:
Commission Members:
ESTRADA
LIEN
MCGINNIS
DERRY
SUAREZ
ANDERSON
MC CAMMACK
Navs
Abstain
Absent
Aves
Secretary
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The foregoing resolution is hereby approved this
day of
,2002.
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Judith Valles, Chairperson
Community Development Commission
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OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
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AND
IN-N-OUT BURGERS,
A CALIFORNIA CORPORATION
DATED AS OF SEPTEMBER 17, 2001
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TABLE OF CONTENTS
Page
ARTICLE 1 - GENERAL PROVISIONS ................................. I
1.1 Purpose of Agreement .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1
1.2 Owner Sale Parcel .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. I
1.3 Agency Sale Parcel ....................................... 2
1.4 The Parties to this Agreement ............................... 2
1.5 Restrictions Against Assignment of this Agreement. . . . . . . . . . . . . .. 2
1.6 Legal Descriptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3
ARTICLE 2 - DEFINED TERMS.. .. .. .. .. . . .. .. . .. . . . . . .. .. .. . . . ... ... 3
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ARTICLE 3 - PURCHASE AND SALE TRANSACTIONS .................. 12
3.1 Agency Purchase of Owner Sale Property. . .. .. . . .... . .. . ... .. 12
3.2 Purchase Price for Owner Sale Property ...................... 13
3.3 Owner Purchase of Agency Sale Property ..................... 13
3.4 Purchase Price for Agency Sale Property. . . . . . . . . . . . . . . . . . . . .. 13
3.5 Opening of Escrow ...................................... 14
3.6 Payment by Owner at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
3.7 General Plan and Development Code Amendments. . . . . . . . . . . . .. 14
3.8 Land Use Approvals ;.................................... 14
3.9 Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15
3.10 Cancellation of Escrow and Termination of Agreement . . . . . . . . . .. 15
3. 11 Closing Date ........................................... 16
3.12 The Agency's Closing Documents ........................... 17
3.13 Owner's Closing Documents ............................... 18
3.14 Actions at Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18
3.15 Due Diligence Investigation of Agency Sale Property By Owner. . .. 19
3. 16 Due Diligence Investigation of Owner Sale Property By the Agency . 21
3. 17 Disclaimer of Representations and Warranties - Agency Sale Property 23
3. 18 Disclaimer of Representations and Warranties - Owner Sale Property 23
3.19 Condition of Title and Title Insurance for Agency Sale Property. . .. 24
3.20 Condition of Title and Title Insurance for Owner Sale Property. . . .. 29
3.21 Surveys ............................................... 31
3.22 Owner's Conditions Precedent to Close Escrow. . . . . . . . . . . . . . . .. 32
3.23 Failure of the Owner's Conditions; Termination. . . . . . . . . . . . . . . .. 34
3.24 Agency's Conditions Precedent to Close Escrow . . . . . . . . . . . . . . .. 35
3.25 Failure of the Agency's Conditions; Termination ............... 36
3.26 Prorations, Closing Costs, Possession ........................ 37
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3.27 Damage, Destruction and Condemnation. . . . . . . . . . . . . . . . . . . . .. 39
3.28 Demolition of Agency Sale Property Improvements. . . . . . . . . . . . .. 40
3.29 Agreement with HUB Developer. . . . . . . . . . . . . . . . . . . . . . . . . . .. 40
3.30' Waiver of Other Payments by Owner. ........................41
3.3 I Materially Adverse Changes Re Agency Sale Property ........... 4 I
3.32 Materially Adverse Changes Re Owner Sale Property . . . . . . . . . . .. 43
ARTICLE 4 - REDEVELOPMENT OF THE DEVELOPMENT SITE. . . . . . . . .. 44
4. I The Development ....................................... 44
4.2 License to Occupy Owner Sale Lands After Close of Escrow ...... 47
4.3 Assignment and Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
4.4 Certificate of Completion ................................. 48
4.5 Harriman Place Improvement Project. . . . . . . . . . . . . . . . . . . . . . . .. 50
4.6 Rosewood Drive Access .................................. 5 I
ARTICLE 5 - USE OF THE SITE. . .. .. . .. .. .. . . . . . . . . . . . . . . . . . . . . .. . .. 51
5. I Uses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5 I
5.2 Maintenance ofthe Development Site. . . . . . . . . . . . . . . . . . . . . . .. 51
5.3 Form of Nondiscrimination and Nonsegregation Clauses. . . . . . . . .. 52
5.4 Environmental Indemnities Re Agency Sale Property ............ 52
5.5 Environmental Indemnities Re Owner Sale Property ............. 54
ARTICLE 6 - DEFAULTS, REMEDIES AND TERMINATION.............. 56
6. I General Applicability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 56
6.2 Default of the Agency .................................... 56
6.3 Default of the Owner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 57
6.4 Acceptance of Service of Process. . . . . . . . . . . . . . . . . . . . . . . . . . .. 58
6.5 Rights and Remedies are Cumulative . . . . . . . . . . . . . . . . . . . . . . . .. 58
6.6 Remedies Re Existing Restaurant ........................... 59
ARTICLE 7 - GENERAL PROVISIONS ................................ 59
7. I Notices, Demands and Communications Between the Parties ...... 59
7.2 Conflict ofInterest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 60
7.3 Warranty Against Payment of Consideration for Agreement ....... 60
7.4 NonIiability of Agency Officials and Employees. . . . . . . . . . . . . . .. 60
7.5 Forced Delay: Extension of Time of Performance . . . . . . . . . . . . . .. 60
7.6 Inspection of Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6 I
7.7 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62
7.8 Real Estate Commissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62
7.9 Indemnities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 62
7. IO Release of Ownerfrom Liability ............................ 63
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7.20
7.21
7.22
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EXHIBITS
Attorneys' Fees ......................................... 63
Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 63
Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 63
Provisions not Merged with Deeds. . . . . . . . . . . . . . . . . . . . . . . . . .. 63
Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 64
Headings ......................................... . . . .. 64
Governing Law ......................................... 64
Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 64
Parties Not Co-Venturers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 64
Time of the Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 64
Agency Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 64
Identity and Authority of the Parties ......................... 64
Further Assurances ...................................... 65
Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 65
Time for Acceptance of Agreement by Agency ................. 65
"A" Legal Description of Development Site
"A-I" Depiction of Development Site
"B" Legal Description of Existing Owner Site
"B-1" Depiction of Existing Owner Site
"C" Legal Description of Owner Sale Parcel
"C-I" Depiction of Owner Sale Parcel
"D" Legal Description of Agency Sale Parcel
"D-I" Depiction of Agency Sale Parcel
"E" Legal Description of Phase I HUB Site
"E-I" Depiction of Phase I HUB Site
"F" Form of Agency Grant Deed
"G" Form of Owner Grant Deed
"H" Form of Certificate of Completion
"I" Schedule of Performance
"J" Scope of Development
"K" Site Plan with Harriman Place Extension
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OWNER PARTICIPATION AGREEMENT
(In-N-Out Burgers)
This Owner Participation Agreement ("Agreement") is entered into as of
September 17,2001, by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public body corporate and politic (the "Agency"),
and IN-N-OUT BURGERS, a California corporation (the "Owner"). The Agency and
the Owner hereby agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.1 Purpose of Agreement.
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(a) The purpose of this Agreement is to effectuate the Redevelopment
Plan for the Inland Valley Project (the "Redevelopment Plan"), which created the
Inland Valley Project Area (the "Proiect Area") of the Inland Valley Development
Agency, ajoint powers authority established under Sections 33492.4 et seq. of the
California Health and Safety Code (the "IVDA"), by providing for the development of
a new, approximately 3,300 square foot sit-down and drive-thru restaurant (the "New
Restaurant") on certain real property located in the City Qf San Bernardino, County of
San Bernardino, State of California, as more particularly described in Exhibit "A"
attached hereto and as more particularly shown on Exhibit "A-I" attached hereto (the
"Develooment Site"). Pursuant to that certain Redevelopment Cooperation Agreement.
dated as of July 12, 1999, by and among the IVDA, the Agency and the City, the
Agency has the delegated authority to carry out the Redevelopment Plan for a portion
of the Project Area, which includes the Development Site. A copy of the
Redevelopment Study Agreement is on file with the Secretary ofthe Agency.
(b) The redevelopment of the Development Site pursuant to this
Agreement is in the vital and best interests of the City and the health, safety and
welfare of its residents, and is in accord with the public purposes and provisions of
applicable state and local laws.
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1.2 Owner Sale Parcel. The Owner currently owns fee title to certain real
property located at 1944 South Tippecanoe Avenue in the City and also known as
Assessor Parcel No. 0281-082-56, as more particularly described in Exhibit "B"
attached hereto and more particularly shown on Exhibit "B-1" attached hereto (the
"Existing Owner Site"), on which the Owner currently operates a drive-thru restaurant
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(the "Existinl! Restaurant"). The Agency desires to purchase a portion of the Existing
Owner Site, as more particularly described in Exhibit "C" attached hereto and more
particularly shown on Exhibit "C-I " attached hereto (the "Owner Sale Parcel"), on the
terms and conditions set forth herein. The Agency thereafter intends to transfer a
portion of the Owner Sale Parcel to the HUB Developer (as defined in Article ~,
below), at which time such portion of the Owner Sale Parcel shall become part of the
Phase I HUB Site (as defmed in Article~, below) and will be developed by the HUB
Developer as part of the HUB Project (as defined in Article~, below).
1.3 Agency Sale Parcel. The Development Site consists of (a) the Existing
Owner Site, except for the Owner Sale Parcel, and (b) certain real property described
in Exhibit "D" attached hereto and more particularly shown on Exhibit "D-I " attached
hereto (the "Al!encv Sale Parcel"). The Owner desires to purchase the Agency Sale
Parcel from the Agency in order to construct the New Restaurant, on the terms and
conditions set forth herein.
I. 4 The Parties to this Acreement.
(a) The Agency is a public body, corporate and politic, governed by
the Community Development Commission of the City of San Bernardino (the
"Commission"), organized, existing and exercising governmental functions and
powers, under Chapter 2 of the Community Redevelopment Law of the State of
California (Health and Safety Code Section 33020 et sea.) The principal office of the
Agency is located at 201 North "E" Street, Suite 301, San Bernardino, California
9240 I.
(b) The Owner is a California corporation in good standing with the
Secretary of State of the State of California. The principal office and mailing address
of the Owner for the purposes of this Agreement is:
In-N-Out Burgers
Real Estate Department
13502 Hamburger Lane
Baldwin Park, California 91706-5885
Attention: Real Estate Finance Manager
(c) The City of San Bernardino is not a party to this Agreement.
(d) The IVDA is not a party to this Agreement.
1.5 Restrictions Against Assiemnent of this Agreement. The particular
qualifications and identity of the Owner are of particular concern to the Agency. It is
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because of those qualifications and identity that the Agency entered into this
Agreement with the Owner. Prior to the issuance of the Certificate of Completion in
accordance with Section 4.4, below, no voluntary or involuntary successor in interest
of the Owner may acquire any rights or powers under this Agreement, except as
expressly set forth in Section 4.3, below.
1.6 Legal Descriptions. For all purposes of this Agreement and notwith-
standing any general descriptions of land contained in this Agreement, the legal
descriptions of land attached as Exhibits to this Agreement shall be definitive and
controlling as to the location and size of such land, subject to the provisions of
Section 3.4, below.
ARTICLE 2
DEFINED TERMS
In addition to the terms defined elsewhere in this Agreement, the following
defined terms shall apply throughout this Agreement:
"Agencv" shall have the meaning set forth in the introductory paragraph
of this Agreement.
"Agencv Closing. Statement" shall have the meaning set forth in
Section 3 .12( c ). below.
"Agencv Default" shall have the meaning set forth in Section 6.2(a).
below.
"Agency Demolition Work" shall have the meaning set forth in
Section 3.30, below.
"Agency Deposit" shall have the meaning set forth in Section 3.9, below.
"Ag.encv Due Dilil?ence Documents" shall have the meanings set forth in
Section 3. 15(a), below.
"Agency Due Diligence Period" shall have the meaning set forth in
Section 3 .16(b ), below.
"Agencv Grant Deed" shall have the meaning set forth in
Section 3. 12(a), below.
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"Agency Parties" means, collectively, the Agency and its elected and
appointed officials and officers, attorneys, employees, agents, contractors,
subcontractors, success and assigns.
"Agency Purchase Price" shall have the meaning set forth in Section 3.2,
below.
"Agencv Sale Parcel" shall have the meaning set forth in Section 1.2,
above.
below.
"Agencv Sale Prooerty" shall have the meaning set forth in Section 3.3,
"Agencv Sale Property Title Documents" shall have the meaning set
forth in Section 3.19<a), below.
"Agencv Sale PropertY Title Revort" shall have the meaning set forth in
Section 3.19(a), below.
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below.
"Agencv's Conditions" shall have the meaning set forth in Section 3.24,
"Bankruotcv/Dissolution Event" shall mean, with respect to any Person,
the commencement or occurrence of any of the following with respect to such Person:
(i) a case under Title II ofthe U.S. Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy law or other similar law; (ii) the
appointment of (or proceeding to appoint) a trustee or receiver of any property
interests; (iii) an attachment, execution or other judicial seizure of (or a proceeding to
attach, execute or seize) a substantial property interest; (iv) an assignment for the
benefit of creditors; (v) the taking of, failure to take, or submission to any action
indicating (after reasonable investigation) an inability to meet its financial obligations
as they accrue; or (vi) a dissolution or liquidation; provided, however, that the events
described in clauses (i), (ii) or (iii) shall not be included if the same are
(A) involuntary and not at any time consented to, (B) contested within thirty (30) days
of commencement and thereafter diligently and continuously contested and
(C) dismissed or set aside, as the case may be, within ninety (90) days of
commencement.
below.
"Cancellation Costs" shall have the meaning set forth in Section 3.IO(a),
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"Certificate of Completion" shall mean the certificate of completion to
be issued by the Agency pursuant to Section 4.4, below, in the form attached hereto as
Exhibit "H".
"City" shall mean the City of San Bernardino, a municipal corporation.
"Closing" shall have the meaning set forth in Section 3.1 I(a), below.
"Closing Date" shall mean the date scheduled for the close of Escrow, as
specified in Section 3.1 I(a), below.
"Code" means the Internal Revenue Code.
"Construction Loans" shall mean the loan or loans or other construction
financing, if any, obtained by the Owner to finance the purchase of the Agency Sale
Property and/or construction of any or all of the Improvements.
"County" shall mean the County of San Bernardino, State of California.
"Cure Period" shall have the meaning set forth in Section 6.2(b ), below.
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"Development" shall mean the development of the Property with the
Improvements.
"Development Code" shall mean the City of San Bernardino
Development Code, as the same may be amended, restated and/or renumbered from
time to time.
"Develovment Site" shall have the meaning set forth in Section UW,
above.
"Development Site AL T A Policy" shall have the meaning set forth in
Section 3 .19(b ). below.
"Development Site CL T A Policv" shall have the meaning set forth in
Section 3.19(b), below.
"Development Site Survey" shall have the meaning set forth in
Section 3.2I(a), below.
"Environmental Impact Reoort" shall mean that certain Final
e Environmental Impact Report (State Clearinghouse No. 200081074) dated AprilS,
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2001 and prepared by the Agency with respect to the Development and the
development of the HUB Project.
"Environmental Laws" shall mean all Laws regulating, relating to, or
imposing liability of standards of conduct concerning any Hazardous Substance or
pertaining to occupational health or industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws, ordinances, or regulations relate to
Hazardous Substances on, under, or about the Agency Sale Parcel or the Owner Sale
Parcel, as applicable), occupational or environmental conditions on, under, or about
the Agency Sale Parcel or the Owner Sale Parcel, as applicable, as now or may at any
later time be in effect, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLAn) [42 USC Section
9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (nRCRAn) [42
USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water
Pollution Control Act ("FWPCAn) [33 USC Section 1251 et eq.]; the Toxic Substances
Control Act ("TSCAn) [15 USC Section 2601 et seq.]; the Hazardous Materials
Transportation Act (nHMTA") [49 USC Section 1801 et seq.]; the Insecticide,
Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC
Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the
Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control
and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and
Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational
Safety and Health Act [29 USC Section 655 and 657]; the California Underground
Storage of Hazardous Substances Act [H & S C Section 25288 et seq.]; the California
Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California
Safe Drinking Water and Toxic Enforcement Act [H & S C Section 24249.5 et seq.]
the Porter-Cologne Water Quality Act [Water Code Section 13000 et seq.], together
with any amendments of or regulations promulgated under the statutes cited above and
any other Law now in effect or later enacted that pertains to occupational health or
industrial hygiene, and only to the extent such occupational health or industrial
hygiene Laws relate to Hazardous Substances on, under, or about the Agency Sale
Parcel or the Owner Sale Parcel, as applicable, or the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water, or
land use.
"Escrown shall have the meaning set forth in Section 3.5, below.
nEscrow Holdern shall mean the escrow department of First American
Title Company or another escrow company mutually agreed upon by the Agency and
the Owner.
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"Existing Agency Improvements" shall have the meaning set forth in
Section 3.30, below.
"Existing Owner Site" shall have the meaning set forth in Section 1.2,
below.
"Existing Restaurant" shall have the meaning set forth in Section 1.2,
below.
"General Plan" shall mean the City of San Bernardino General Plan, as
the same may be amended, restated and/or renumbered from time to time.
"General Plan/Develooment Code Amendments" means, collectively,
(a) General Plan Amendment No. 01-01 adopted by the Mayor and Common Council
of the City on May 21,2001, pursuant to Resolution No. 2001-123 and
(b) Development Code Amendment No. 01-03 adopted by the Mayor and Common
Council of the City on June 4,2001, pursuant to Ordinance No. MC-1098, pursuantto
which the General Plan and the Development Code, respectively, were amended to
permit the operation of a drive-thru restaurant on the Development Site, subject to the
approval of the New Restaurant CUP.
"Harriman Construction Agreement" means that certain Harriman Place
Improvement Project Acquisition, Construction and Financing Agreement dated as of
May 21,2001, by and between the City and the Agency, regarding the financing,
design and construction of the Harriman Place Improvement Project.
"Harriman Memorandum" shall have the meaning set forth in
Section 4.5(a), below.
"Harriman Place Extension" means the planned extension of Harriman
Place as shown on Exhibit "K".
"Harriman Place Improvement Project" means the public street
improvement project to be undertaken by the Agency (and administered by the City)
for the construction and installation of the Harriman Place Extension concurrently with
the Owner's development of the New Restaurant and the HUB Owner's development of
Phase 1 of the HUB Project. The Harriman Place Improvement Project is discussed in
Section 4.5, below, and in the Harriman Construction Agreement.
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"Hazardous Substances" shall mean:
(a) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.c. Section 9601(14)) or Section 25281(d) or 25316 of the
California Health and Safety Code;
(b) any "hazardous waste", "infectious waste" or "hazardous
material" as defined in Section 25117,25117.5 or 25501(j) of the California
Health and Safety Code;
(c) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C. Section
6901 et seq.), CERCLA Federal Water Pollution Control Act (33 U.S.c.
Section 1521 et seq.), Safe Drinking Water Act (42 U.S.c. Section 3000 (f) et
seq.), Toxic Substances Control Act (15 U.S.c. Section 2601 et seq.), Clean Air
Act (42 U.S.c. Section 7401 et seq.), California Health and Safety Code
(Section 25100 et seq., Section 3900 et seq.), or California Water Code (Section
1300 et seq.); and
(d) any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under any
other present or future environmental or other similar Laws, including without
limitation asbestos; provided, however, that Hazardous Substances shall not
include any materials commonly used in the construction and operation of
office, residential and retail buildings and restaurants when used in the ordinary
and usual manner.
"HUB Agreement" shall have the meaning set forth in Section 3.29,
below.
"HUB DDA" means that certain Disposition and Development
Agreement dated as of May 21, 2001, by and between the HUB Developer and the
Agency, pursuant to which, among other things, the HUB Developer will carry out
Phase 1 of the HUB Project and the Agency will carry out the Harriman Place
Improvement Project.
"HUB Develooer" means SBT Partners, LLC, a California limited
liability company.
"HUB Project" means the contemplated development of approximately
268,600 square feet of commercial space to be located on approximately 24.5 acres of
land at the northwest comer of Tippecanoe Avenue and the San Bernardino Freeway
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(1-10). Phase I of the HUB Project will be located adjacent to the Development Site
on the Phase I HUB Site.
"HUB Proiect Pylon Sign" shall have the meaning set forth in
Section 3.29, below.
"HUB Subdivision Man" shall have the meaning set forth in
Section 3.8(a), below.
"Improvements" shall mean the improvements to be constructed by the
Owner on the Development Site pursuant to this Agreement, including the New
Restaurant and related landscaping and improvements.
below.
"INO Parcel Map" shall have the meaning set forth in Section 3.8(a)(ii),
"IVDA" shall have the meaning set forth in Section .L..liill, above.
"Land Use Approvals" shall have the meaning set forth in Section 3.8(a),
below.
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"Laws" shall mean, collectively, all procedural and substantive federal,
state and local laws, ordinances, rules, regulations, standards, orders, directives and
other governmental requirements applicable to all or any portion of the Property or the
Improvements, including the ownership, development, construction, use, operation,
maintenance, sale, lease or encumbrance thereof.
"Loss" means all loss, costs and expenses arising out of all claims,
demands, losses, damages, liens, liabilities, injuries, deaths, penalties, relocation or
disruption of use, fines, administrative and judicial proceedings and orders, judgments,
remedial action requirements, enforcement actions of any kind and awards, including
reasonable attorneys' fees and court costs.
above.
"New Restaurant" shall have the meaning set forth in Section I. Ha),
"New Restaurant Commencement Date" shall have the meaning set forth
in Section 4. Hh), below.
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"New Restaurant CUP" shall have the meaning set forth in
Section 3.8(a), below.
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below.
"New Restaurant Fees" shall have the meaning set forth in Section 1J..(fl,
"Non-Foreign Tax Status Certificate" shall have the meaning set forth in
Section 3 .12(b ), below.
below.
"Notice of Default" shall have the meaning set forth in Section 6.2(b),
"Official Records" shall mean the Official Records of San Bernardino
County, California.
"Orders of Possession" shall have the meaning set forth in
Section 3.19(d), below.
"Owner" shall mean In-N-Out Burgers, a California corporation, and its
successors and assigns as permitted by this Agreement.
"Owner Closing Statement" shall have the meaning set forth in
Section 3.13(c), below.
below.
"Owner Default" shall have the meaning set forth in Section 6.3(a).
"Owner Deposit" shall have the meaning set forth in Section 3.9, below.
"Owner Due Diligence Documents" shall have the meaning set forth in
Section 3 .16( a ), below.
"Owner Due Diligence Period" shall have the meaning set forth in
Section 3.15(b), below.
below.
"Owner Grant Deed" shall have the meaning set forth in Section 3. 13 (a),
"Owner License" shall have the meaning set forth in Section 4.2, below.
"Owner License Expiration Date" shall have the meaning set forth in
Section 4.2, below.
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"Owner Parties" means, collectively, the Owner and its directors,
officers, shareholders, attorneys, employees, partners, members, agents, contractors,
subcontractors, affiliates, mortgagees, trustees, heirs, devisees, successors and assigns.
"Owner Sale Parcel" shall have the meaning set forth in Section 1.2,
above.
"Owner Sale Propertv" shall have the meaning set forth in Section 3.1,
below.
"Owner Sale PropertY AL T A Policy" shall have the meaning set forth in
Section 3.20(b), below.
"Owner Sale Property CLTA Policv" shall have the meaning set forth in
Section 3.20(b), below.
"Owner Sale Property Survev" shall have the meaning set forth in
Section 3.2Hb), below.
below.
"Owner's Conditions" shall have the meaning set forth in Section 3.22,
"Owner Purchase Price" shall have the meaning set forth in Section 3.4,
below.
"Parties" means, collectively, the Agency and the Owner.
"Person" shall mean any individual, trustee, corporation, limited liability
company, limited liability partnership, partnership, trust, unincorporated organization,
governmental agency or other person or entity.
"Phase 1 HUB Site" means the land described in Exhibit "E" attached
hereto and more particularly shown on Exhibit "E-l " attached hereto, on which the
HUB Developer intends to construct Phase 1 of the HUB Project pursuant to the HUB
DDA (this land is designated as "Phase lA" in the HUB DDA)..
"Phase 1 of the HUB Proiect" means the redevelopment project activities
to be undertaken by the HUB Developer under the HUB DDA on the Phase 1 HUB
Site, which is currently intended to include the development of commercial buildings
with approximately 129,995 square feet of gross interior area, as shown on Exhibit "K"
attached hereto.
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"Preiud~ent Condition" shall have the meaning set forth in
Section 3. I9( d), below.
"Proiect Area" shall have the meaning set forth in Section .L..lW, above.
"Punchlist Items" shall have the meaning set forth in Section 4.4(a),
below.
"Redevelopment Plan" shall have the meaning set forth in Section.L..lW,
above.
"Rosewood Drive Se~ent" means the portion of Rosewood Drive
between Tippecanoe Avenue and the southerly prolongation of the westerly boundary
of Lot 59 of Tract No. 2743, Lorna Linda Gardens in the County of San Bernardino,
State of California, as per plat recorded in Book 38 of Maps, Page 47, records of said
County.
"Schedule of Performance" shall mean the schedule of performance
pursuant to which the Parties shall perform certain activities under this Agreement.
The Schedule of Performance is attached hereto as Exhibit "I".
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"Scope of Development" shall have the meaning set forth in
Section 4. Ha), below. The Scope of Development is attached hereto as Exhibit "J".
"Security Financing Instrument" shall mean a mortgage, deed of trust or
other reasonable means of securing a Construction Loan for (i) the acquisition of the
Agency Sale Property and the development and construction of the Improvements.
"Title Comoanv" shall mean First American Title Insurance Company or
another title company mutually agreed upon by the Agency and the Owner.
"1099 Form" shall have the meaning set forth in Section 3. 12(f), below.
ARTICLE 3
PURCHASE AND SALE TRANSACTIONS
3.1 Agencv Purchase of Owner Sale PropertY. In accordance with and
subject to the terms and conditions of this Agreement, the Agency agrees to purchase
from the Owner, and the Owner agrees to sell to the Agency, the Owner Sale Parcel,
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hereditaments, appurtenances, rights, privileges, development rights and easements
thereto, including without limitation the Owner's right, title and interest in and to all
streets, alleys and rights-of~way in, on, across, in front of, abutting or adjoining each
such real property and all water rights and mineral rights (collectively, the "Owner
Sale Property").
3.2 Purchase Price for Owner Sale Property. The purchase price for the
Owner Sale Property (the "Agencv Purchase Price") shall be Sixty-Eight Thousand
Two Hundred Five and NollOOths Dollars ($68,205.00), which purchase price was
determined by multiplying (a) the square footage of the Owner Sale Parcel (3,641
square feet) by (b) Eighteen and 73/100ths Dollars ($18.73) per gross square foot.
3.3 Owner Purchase of Agencv Sale PropertY. In accordance with and
subject to the terms and conditions of this Agreement, the Owner agrees to purchase
from the Agency, and the Agency agrees to sell to the Owner, the Agency Sale Parcel,
together with all of the Agency's right, title and interest in and to any and all
hereditaments, appurtenances, rights, privileges, development rights and easements
thereto, including without limitation the Owner's right, title and interest in and to all
streets, alleys and rights-of-way in, on, across, in front of, abutting or adjoining each
such real property and all water rights and mineral rights (collectively, the "A~ency
Sale Propertv").
3.4 Purchase Price for Agency Sale PropertY. The purchase price for the
Agency Sale Property (the "Owner Purchase Price") shall. be One Hundred Forty-Four
Thousand Two Hundred Forty-Five and No/IOOths Dollars ($144,245.00), which
purchase price was determined by multiplying (a) the square footage of the Agency
Sale Parcel (28,849 square feet) by (b) Five and NollOOths Dollars ($5.00) per gross
square foot. The Agency and the Owner acknowledge that the legal description of the
Agency Sale Parcel may require technical modifications to conform to the final public
street right-of-way limits for the Harriman Place Extension to be set forth in the
Harriman Construction Agreement. In the event that, as a result of such technical
modifications, the gross square footage of the Agency Sale Parcel is more or less than
28,849 square feet, then the Agency Purchase Price set forth above shall be either
increased by $5.00 per gross square foot of the excess of such actual gross square
footage above 28,849 square feet or decreased by $5.00 per gross square foot of the
deficiency of such actual gross square footage under 28,849 square feet, as the case
may be. Notwithstanding the foregoing, in no event shall (a) the gross square footage
of the Agency Sale Parcel be increased or decreased by more than one percent (1%),
(b) alter any boundary of the Agency Sale Parcel other than the northerly boundary
and (c) alter the northerly boundary of the Agency Sale Parcel for any reason unrelated
to the design of the Harriman Place Extension.
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3.5 Opening of Escrow. (a) Within twenty (20) business days following the
full execution of this Agreement, the Agency and the Owner shall open an escrow (the
"Escrow") with Escrow Holder by delivering to Escrow Holder a fully-executed
original of this Agreement. The purchase and sale of the Agency Sale Property and the
Owner Sale Property shall be completed through the Escrow. The Agency and the
Owner hereby agree to execute such additional escrow instructions not inconsistent
with this Agreement as may be reasonably required by Escrow Holder. In the event of
any inconsistency between the provisions of this Agreement and any such additional
escrow instructions, the provisions of this Agreement shall control.
3.6 Payment bv Owner at Closing. On or before the Closing Date, the
Owner shall deposit into the Escrow in the form of cash, a certified or bank cashier's
check, or a confirmed wire transfer of funds, in an amount equal to the sum of (a) the
Owner Purchase Price less (i) the Agency Purchase Price and (ii) the net amount, if
any, due to the Owner following the proration and adjustments under Section 3.26,
below, plus (b) an additional amount sufficient to cover the costs payable by the
Owner with respect to the transactions contemplated by this Agreement pursuant to
Section 3.26, below.
3.7 General Plan and Develooment Code Amendments. Pursuant to the
General Plan/Development Code Amendments, the Owner has the conditional right to
operate the New Restaurant on the Development Site, subject to the approval of the
New Restaurant CUP by the City.
3.8 Land Use Aoprovals.
(a) It shall be the responsibility of the Owner to apply for and obtain
all discretionary and ministerial land use, zoning and other permits, approvals, licenses
and entitlements (collectively, the "Land Use Approvals") required for the
Development, except for the General Plan/Development Code Amendments. The
Land Use Approvals will include the following:
(i) the City's approval of a conditional use permit for the
operation of the New Restaurant (the "New Restaurant CUP");
(ii) the City's approval of (A) a parcel map (the "INO Parcel
Map") for the Development Site or (B) a parcel map or final map for both the
HUB Project site and the Development Site that includes the Development Site
as a legal lot (the "HUB Subdivision Map"); and
(iii) the City's issuance of grading and building permits for the
construction of the New Restaurant and related site work and improvements.
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(b) The Agency shall render all reasonable assistance to the Owner in
obtaining all necessary Land Use Approvals. Without limiting the generality of the
foregoing, the Agency shall execute (i) any and all applications or other documents
required by the City in order for the Owner to complete the application for any Land
Use Approval and/or (ii) documentation authorizing the Owner to sign all applications
and other documents required by the City with respect to the Land Use Approvals on
the Agency's behalf.
(c) The Owner shall submit applications for the New Restaurant CUP
and the other discretionary Land Use Approvals on or before the respective dates
established therefor in the Schedule of Performance, provided that, if the City or INO
requires the Agency and/or the HUB Developer to execute the application for any
discretionary Land Use Approval, the Owner shall not be required to submit such
application unless and until the Agency and/or the HUB Developer, as applicable, has
executed such application.
3.9 Deposits. Upon the opening of the Escrow, (a) the Agency shall deposit
into the Escrow, in the form of cash, a certified or bank cashier's check or a confirmed
wire transfer of funds, the sum of Five Thousand and No/100ths Dollars ($5,000.00)
(the "Ae:encv Deposit") toward the purchase of the Owner Sale Property, and (b) the
Owner shall deposit into the Escrow, in the form of cash, a certified or bank cashier's
check or a confmned wire transfer of funds, the sum of Five Thousand and No/100ths
Dollars ($5,000.00) (the "Owner Deoosit") toward the purchase of the Agency Sale
Property. Escrow Holder shall promptly place the Agency Deposit into an interest-
bearing account designated by the Agency with the interest thereon accruing to the
benefit of the Agency and place the Owner Deposit into a separate interest-bearing
account designated by the Owner with the interest thereon accruing to the benefit of
the Owner. At the Closing, the Agency Deposit shall be applied to the Agency
Purchase Price and the Owner Deposit shall be applied to the Owner Purchase Price.
3.10 Cancellation of Escrow and Termination of Agreement.
(a) In the event that the Closing does not occur at the time and in the
manner provided in this Agreement due to an Owner Default, the Agency shall have
the right to cancel the Escrow by written notice to the Owner and Escrow Holder, and
upon such cancellation (i) Escrow Holder shall refund the Agency Deposit, together
with all interest earned thereon, to the Agency within three (3) business days following
such cancellation and (ii) all costs of cancellation of the Escrow, including without
limitation the cost of the Agency Sale Property Title Report and the Owner Sale
Property Title Report (collectively, the "Cancellation Costs"), shall be paid by the
Owner. In the event of such cancellation of the Escrow following an Owner Default,
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the provisions of Section 6.3(d), below, shall apply and all other rights and obligations
of the Owner and the Agency under this Agreement shall tenninate (except as and to
the extent expressly set forth in this Agreement).
(b) In the event that the Closing does not occur at the time and in the
maIUler provided in this Agreement due to an Agency Default, the Owner shall have
the right to cancel the Escrow by written notice to the Agency and Escrow Holder, and
upon such cancellation (i) Escrow Holder shall refund the Owner Deposit, together
with all interest earned thereon, to the Owner within three (3) business days following
such cancellation and (ii) the Cancellation Costs shall be paid by the Agency. In the
event of such cancellation of the Escrow following an Agency Default, the provisions
of Section 6.2( d), below, shall apply and all other rights and obligations of the Owner
and the Agency under this Agreement shall tenninate (except as and to the extent
expressly set forth in this Agreement).
(c) In the event that the Closing does not occur at the time and in the
maIUler provided in this Agreement for any reason other than an Owner Default or an
Agency Default, either the Owner or the Agency may, at any time after the Closing
Date, cancel the Escrow by written notice to Escrow Holder and to the other, and upon
such cancellation (i) the Cancellation Costs shall be divided equally between the
Owner and the Agency, (ii) Escrow Holder shall refund the Agency Deposit, together
with all interest earned thereon, to the Agency within three (3) business days following
such cancellation, (iii) Escrow Holder shall refund the Owner Deposit, together with
all interest earned thereon, to the Owner within three (3) business days following such
cancellation, and (iv) all other rights and obligations of the Owner and the Agency
under this Agreement shall terminate (except as and to the extent expressly set forth in
this Agreement).
(d) Upon any cancellation of the Escrow and resulting termination of
this Agreement, all instruments and documents deposited into the Escrow shall be
returned to the parties who deposited the same.
3.11 Closing Date.
(a) The Agency Grant Deed shall be recorded (the "Closing") as soon
as possible after the satisfaction of all of the Agency's Conditions and the Owner's
Conditions, but in no event later than December 31, 2002 (the "Closing Date"), as set
forth in the Schedule of Performance, subject to the extension of the Closing Date
pursuant to Section 3.23 or 3.25, below.
(b) The Owner Grant Deed shall be recorded at the Closing as soon
as possible after the satisfaction of all of the Agency's Conditions and the Owner's
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Conditions, but in no event later than the Closing Date, subject to the extension of the
Closing Date pursuant to Section 3.23 or 3.25, below.
(c) Time is specifically of the essence as to the Closing Date and the
Closing Date shall not be extended except as otherwise expressly provided in this
Agreement or by the mutual written agreement of the Parties.
3.12 The A~encv's Closing Documents. The Agency shall deliver to Escrow
Holder, on or before 12:00 noon on the business day preceding the Closing Date, the
following documents:
(a) an original grant deed to the Agency Sale Property, in the form
attached hereto as Exhibit "F", duly executed and acknowledged by the Agency and in
recordable form (the "A~encv Grant Deed"), except as and to the extent otherwise
provided in Section 3.19( d), below;
(b) an original certificate of non-foreign tax status, duly executed by
the Agency, which satisfies the requirements of Section 1445 of the Code and
Sections 18805 and 26131 of the California Revenue and Taxation Code (a "Non-
Foreign Tax Status Certificate");
(c) an original closing statement for the Agency prepared by Escrow
Holder, duly executed by the Agency (the "A~ency Closing Statement");
(d) evidence of (i) the existence, organization and authority of the
Agency to enter into this Agreement and any other documents or agreements executed
or to be executed by Agency pursuant hereto, and to perform the obligations of the
Agency hereunder and thereunder, and (ii) the authority of the Persons executing this
Agreement and such other documents on behalf of the Agency to do so, in form and
substance reasonably satisfactory to Escrow Holder and the Title Company;
(e) a 1099 form in compliance with the Tax Reform Act of 1986
under Code Sections 6045(e), 6722, 6723 and 7203 (a" 1099 Form"); and
(f) such other instruments and documents that may be required by
Escrow Holder to transfer the Agency Sale Property to the Owner or by the Title
Company for the issuance of the Development Site CL T A Policy or the Development
Site AL T A Policy with respect to the Development Site.
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3.13 Owner's Closin!! Documents. The Owner shall deliver to Escrow
Holder, on or before 12:00 noon on the business day preceding the Closing Date, the
following documents:
(a) an original grant deed to the Owner Sale Property, in the form
attached hereto as Exhibit ':G", duly executed and acknowledged by the Owner and in
recordable form (the "Owner Grant Deed");
(b) an original Non-Foreign Tax Status Certificate;
(c) an original closing statement for the Owner prepared by Escrow
Holder, duly executed by the Owner (the "Owner Closin!! Statement");
(d) evidence of (i) the existence, organization and authority of the
Owner to enter into this Agreement and any other documents or agreements executed
or to be executed by Owner pursuant hereto, and to perform the obligations of the
Owner hereunder and thereunder, and (ii) the authority of the Persons executing this
Agreement and such other documents on behalf of the Owner to do so, in form and
substance reasonably satisfactory to Escrow Holder and the Title Company;
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(e) a 1099 Form;
(f) an original counterpart of the HUB Agreement, duly executed and
acknowledged by the Owner and in recordable form; and
(g) such other instruments and documents that may be required by
Escrow Holder to transfer the Owner Sale Property to the Agency or by the Title
Company for the issuance of the Owner Sale Property CL T A Policy or the Owner Sale
Property ALTA Policy with respect to the Owner Sale Property.
3.14 Actions at Closin!!. At the Closing, Escrow Holder shall do the
following:
(a) Prorate all matters in accordance with Section 3.26, below, based
on the latest available information.
(b) Cause the Agency Grant Deed, the Owner Grant Deed and the
HUB Agreement (collectively, the "Recordable Documents") to be recorded, IN THAT
ORDER, in the Official Records.
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(c) Disburse all funds deposited with Escrow Holder by the Owner
and the Agency in connection with the Closing as follows:
(i) deduct the amount of items chargeable to the account of
the Agency and the Owner, respectively, pursuant to this Agreement; and
(ii) the net amount, if any, due to the Agency following the
prorations and adjustments under Section 3.26. below, shall be disbursed to the
Agency promptly upon the Closing.
(d) Deliver or cause to be delivered to the Owner, within three (3)
business days following the Closing Date, (i) an original of the Development Site
CL T A Policy or the Development Site AL T A Policy, as applicable, or commitment
therefor, to be issued pursuant to Section 3. 19(b), below, (ii) the original Non-Foreign
Tax Status Certificate executed by the Agency, (iii) conformed copies of each of the
Recordable Documents and (iv) the final Owner Closing Statement.
(e) Deliver or cause to be delivered to the Agency, within three (3)
business days following the Closing Date, (i) an original of the Owner Sale Property
CL T A Policy or the Owner Sale Property AL T A Policy, as applicable, or commitment
therefor, to be issued pursuant to Section 3.20(b), below, (ii) the original Non-Foreign
Tax Status Certificate executed by the Owner, (iii) conformed copies of each of the
Recordable Documents and (iv) the fmal Agency Closing Statement.
3.15 Due Diligence Investigation of Agencv Sale PropertY Bv Owner.
(a) Within five (5) business days after the full execution of this
Agreement, the Agency shall deliver to the Owner true, correct and complete copies or
originals of (i) all soils, seismic, geologic, drainage, engineering, environmental and
similar reports, studies, test results and surveys (including, but not limited to,
environmental site assessments) relating to the Agency Sale Property, if any, in the
possession of the Agency and (ii) notices of uncured violations or Laws affecting the
Agency Sale Property in the possession of the Agency (collectively, the "Agencv Due
Diligence Documents"). In the event that any Agency Due Diligence Documents are
created after the full execution of this Agreement, the Agency shall deliver to the
Owner true, correct and complete copies or originals of such documents within five
(5) business days after the Agency's receipt of the same.
(b) At any time prior to the date established therefor in the Schedule
of Performance (the "Owner Due Diligence Period"), the Owner shall have the right to
examine, inspect and investigate the Agency Sale Property and determine, in the
Owner's sole and absolute judgment and discretion, whether the Agency Sale Property
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is acceptable to the Owner; provided, however, that the Owner Due Diligence Period
shall be extended by one (I) business day for each business day of delay caused by the
Agency's failure to provide the Agency Due Diligence Documents within the time
period specified in subsection (a), above.
(c) During the Owner Due Diligence Period, the Owner and its
engineers, analysts, contractors, consultants and agents shall have the right to enter
upon the Agency Sale Property, at reasonable times after giving at least twenty-four
(24) hours' prior notice to the Agency, to conduct such physical inspections and testing
of and on the Agency Sale Property as the Owner deems prudent with respect to the
condition of the Agency Sale Property, including the inspection or investigation of soil
and subsurface soil geotechnical conditions, drainage, seismic and other geological and
topographical matters and for the potential presence of Hazardous Substances.
(d) During the Owner Due Diligence Period, the Owner shall have
the right to investigate all matters relating to the zoning, use and compliance with
applicable Laws relating to the use, development and improvement of the Agency Sale
Property, including without limitation all matters relating to the Land Use Approvals.
(e) The Agency shall cooperate with the Owner regarding inspections
and investigations of the condition of the Agency Sale Property. The Agency has the
right, but not the obligation, to accompany the Owner during such investigations
and/or inspections. The Owner shall pay for all costs and expenses associated with the
conduct of all such due diligence investigation.
(f) The Owner hereby agrees to indemnify and defend the Agency
and hold the Agency harmless from and against any and all claims, demands, actions,
losses, liabilities, obligations, damages, costs and expenses (including without
limitation reasonable attorneys' fees and court costs, whether or not any action is filed
or prosecuted) arising out of the Owner's entry onto the Agency Sale Property and
performing such investigations, inspections, tests and studies thereon. The Owner's
indemnification obligations under this subsection shall survive for a period of one (I)
year following the Closing or the cancellation of the Escrow and the resulting
termination of this Agreement. The Owner's approval of any such investigations,
inspections, tests or studies shall not alter or diminish the Agency's representations and
warranties under this Agreement, and the Agency acknowledges and agrees that the
Owner is relying on the Agency's representations and warranties made herein, unless
and to the extent such representation and warranty is specifically waived by the
Owner. In the event that the Closing does not occur for any reason other than an
Agency Default, the Owner shall furnish to the Agency, within ten (10) days following
the cancellation of the Escrow, copies of all reports, studies and plans prepared by or
for the Owner in connection with the due diligence activities described in this
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Section 3.15 that relate to the Agency Sale Property; provided, however, that the
Agency expressly acknowledges and agrees that the Owner is furnishing copies of such
documents to the Agency for informational purposes only and without representation
or warranty, express or implied, as to the accuracy or completeness of the contents of
such materials. The Agency acknowledges and agrees that, in connection its review of
the matters described above, the Owner and/or its agents may discuss such matters
with governmental authorities with jurisdiction over the development of the Agency
Sale Property and other Persons with knowledge or information regarding the Agency
Sale Property.
(g) If, at any time prior to the expiration of the Owner Due Diligence
Period, the Owner delivers to the Agency and Escrow Holder written notice of its
disapproval, in its sole discretion, of any of the matters described in this Section 3.15,
the Escrow shall be canceled and this Agreement shall terminate, in which case the
provisions of Section 3. IO(c), above, shall apply.
3. 16 Due Diligence Investigation of Owner Sale Prooertv Bv the Agencv.
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(a) Within five (5) business days after the full execution of this
Agreement, the Owner shall deliver to the Agency true, correct and complete copies or
originals of (i) all soils, seismic, geologic, drainage, engineering, environmental and
similar reports, studies, test results and surveys (including, but not limited to,
environmental site assessments) relating to the Owner Sale Property, if any, in the
possession of the Owner and (ii) notices of uncured violations or Laws affecting the
Owner Sale Property in the possession of the Owner (collectively, the "Owner Due
Diligence Documents"). In the event that any Owner Due Diligence Documents are
created after the full execution of this Agreement, the Owner shall deliver to the
Agency true, correct and complete copies or originals of such documents within five
(5) business days after the Owner's receipt of the same.
(b) At any time on or before the date specified therefor in the
Schedule of Performance (the "Agency Due Diligence Period"), the Agency shall have
the right to examine, inspect and investigate the Owner Sale Property and determine, in
the Agency's sole and absolute judgment and discretion, whether the Owner Sale
Property is acceptable to the Agency; provided, however, that the Agency Due
Diligence Period shall be extended by one (I) business day for each business day of
delay caused by the Owner's failure to provide the Owner Due Diligence Documents
within the time period specified in subsection (a), above.
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(c) During the Agency Due Diligence Period, the Agency and its
engineers, analysts, contractors, consultants and agents shall have the right to enter
upon the Owner Sale Property, at reasonable times after giving at least twenty-four
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(24)-hours' prior notice to the Owner, to conduct such physical inspections and testing
of and on the Owner Sale Property as the Agency deems prudent with respect to the
condition of the Owner Sale Property, including the inspection or investigation of soil
and subsurface soil geotechnical conditions, drainage, seismic and other geological and
topographical matters and for the potential presence of Hazardous Substances.
(d) During the Agency Due Diligence Period, the Agency shall have
the right to investigate all matters relating to the zoning, use and compliance with
applicable Laws relating to the use, development and improvement of the Owner Sale
Property.
(e) The Owner shall cooperate with the Agency regarding inspections
and investigations of the condition of the Owner Sale Property. The Owner has the
right, but not the obligation, to accompany the Agency during such investigations
and/or inspections. The Agency shall pay for all costs and expenses associated with
the conduct of all such due diligence investigation.
(f) The Agency hereby agrees to indemnify and defend the Owner
and hold the Owner harmless from and against any and all claims, demands, actions,
losses, liabilities, obligations, damages, costs and expenses (including without
limitation reasonable attorneys' fees and court costs, whether or not any action is filed
or prosecuted) arising out of the Agency's entry onto the Owner Sale Property and
performing such investigations, inspections, tests and studies thereon. The Agency's
indemnification obligations under this subsection shall survive for a period of one (1)
year following the Closing or the cancellation of the Escrow and the resulting
termination of this Agreement. The Agency's approval of any such investigations,
inspections, tests or studies shall not alter or diminish the Owner's representations and
warranties under this Agreement, and the Owner acknowledges and agrees that the
Agency is relying on the Owner's representations and warranties made herein, unless
and to the extent such representation and warranty is specifically waived by the
Agency. In the event that the Closing does not occur for any reason other than an
Owner Default, the Agency shall furnish to the Owner, within ten (10) days following
the cancellation of the Escrow, copies of all reports, studies and plans prepared by or
for the Agency in connection with the due diligence activities described in this
Section 3.16 that relate to the Owner Sale Property; provided, however, that the Owner
expressly acknowledges and agrees that the Agency is furnishing copies of such
documents to the Owner for informational purposes only and without representation or
warranty, express or implied, as to the accuracy or completeness of the contents of
such materials. The Owner acknowledges and agrees that, in connection its review of
the matters described above, the Agency and/or its agents may discuss such matters
with governmental authorities with jurisdiction over the development of the Owner
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Sale Property and other Persons with knowledge or information regarding the Owner
Sale Property.
(g) During the Agency Due Diligence Period, the Agency shall have
the right in its sole discretion to confirm that the conditions set forth in Section 2.3(b)
of the HUB DDA have been satisfied and that the Agency is in a position to initiate the
"Site Parcel assembly program", as that term is used in Section 2.3 of the HUB DDA. .
(h) If, at any time prior to the expiration of the Agency Due Diligence
Period, the Agency delivers to the Owner and Escrow Holder written notice of its
disapproval, in its sole discretion, of any of the matters described in Section 3.16,
above, the Escrow shall be canceled and this Agreement shall terminate, in which case
the provisions of Section 3 .1O( c ), above, shall apply.
3.17 Disclaimer of Reoresentations and Warranties - Agencv Sale PropertY.
The Agency and the Owner hereby acknowledge and agree that the Agency has made
no representation or warranty, express or implied, in connection with the transactions
contemplated by this Agreement as to the Agency Sale Property or its condition or
fitness for use, except as otherwise expressly provided in this Agreement, and subject
to compliance by the Agency with all of the conditions and requirements set forth in
this Agreement, the Owner shall accept title to the Agency Sale Property "AS IS" and
with all faults and without representation or warranty, express or implied, except as
otherwise expressly provided herein. The Owner hereby acknowledges that it will rely
solely upon its own investigation of the Agency Sale Property and its own review of
such information and documentation as it deems appropriate for the purpose of
accepting the condition and possession of the Agency Sale Property. The Owner is not
relying on any statement or representation by the Agency relating to the condition of
the Agency Sale Property unless such statement or representation is specifically
contained in this Agreement. Without limiting the generality of the foregoing, the
Agency makes no representations or warranties as to whether the Agency Sale
Property presently complies with Environmental Laws or whether the Agency Sale
Property contains any Hazardous Substances. The Agency makes no representations
or warranties with respect to the accuracy, completeness, methodology or content of
the Agency Due Diligence Documents delivered by the Agency to the Owner pursuant
to Section 3.15(at above.
3.18 Disclaimer of Representations and Warranties - Owner Sale Property.
The Owner and the Agency hereby acknowledge and agree that the Owner has made
no representation or warranty, express or implied, in connection with the transactions
contemplated by this Agreement as to the Owner Sale Property or its condition or
fitness for use, except as otherwise expressly provided in this Agreement, and subject
to compliance by the Owner with all of the conditions and requirements set forth in
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this Agreement, the Agency shall accept title to the Owner Sale Property "AS IS" and
with all faults and without representation or warranty, express or implied, except as
otherwise expressly provided herein. The Agency hereby acknowledges that it will
rely solely upon its own investigation of the Owner Sale Property and its own review
of such information and documentation as it deems appropriate for the purpose of
accepting the condition and possession of the Owner Sale Property. The Agency is not
relying on any statement or representation by the Owner relating to the condition of
the Owner Sale Property unless such statement or representation is specifically
contained in this Agreement. Without limiting the generality of the foregoing, the
Owner makes no representations or warranties as to whether the Owner Sale Property
presently complies with Environmental Laws or whether the Owner Sale Property
contains any Hazardous Substances. The Owner makes no representations or
warranties with respect to the accuracy, completeness, methodology or content of the
Owner Due Diligence Documents delivered by the Owner to the Agency pursuant to
Section 3. l6( a ), above.
3.19 Condition of Title and Title Insurance for A~ency Sale Propertv.
(a) Within thirty (30) days following the full execution of this
Agreement, the Agency shall cause to be delivered to the Owner a preliminary title
report or title commitment (the "A!;!encv Sale Prooertv Title Reoort") prepared by the
Title Company, describing the state of the title of the Agency Sale Property, together
with copies of all documents described in the Agency Sale Property Title Report and a
plot of the Agency Sale Property showing the location of all locatable exceptions
disclosed in the Agency Sale Property Title Report (collectively, the "A2encv Sale
Prooertv Title Documents"). The Owner must notify the Agency in writing of any
objections the Owner has to the title exceptions contained in the Agency Sale Property
Title Report (for purposes of this Section 3. 19(a), the "Obiection Notice") within sixty
(60) days following the Owner's receipt of the Agency Sale Property Title Report and
all of the Agency Sale Property Title Documents (for purposes of this Section 3.19(a),
the "Obiection Date"). In the event that the Owner delivers an Objection Notice to the
Agency on or before the Objection Date, the Agency shall have the right, but not the
obligation, at its sole expense and by delivery of written notice (for purposes of this
Section 3. 19(a), the "Resoonse Notice") within thirty (30) days following the
Agency's receipt of the Objection Notice (for purposes of this Section 3. 19(a), the
"Response Date"), to (i) agree to cause such exception(s) to be either removed or
modified to a form reasonably acceptable to the Owner or obtain the Title Company's
agreement to issue a title endorsement(s) with respect to such exception(s) reasonably
acceptable to the Owner that insures the Owner against any risks associated with such
exception, and/or (ii) refuse to remove any non-monetary exception(s) disapproved by
the Objection Notice. In the event that the Agency delivers a Response Notice to the
Owner on or before the Response Date that includes a refusal to remove a non-
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monetlll)' exception disapproved in the Objection Notice, the Owner shall have the
right, by written notice to the Agency and Escrow Holder (for purposes of this
Section 3.19( a), the "Decision Notice") within five (5) business days thereafter (for
purposes of this Section 3.19(a), the "Decision Date"), either to (i) waive its objection
to any exceptiones) specified in the Response Notice that the Agency has not agreed to
remove, modify or endorse in the manner described above within the required thirty
(30)-day period, in which case the exceptiones) to which the waiver applies shall be
conclusively deemed approved, or (ii) cancel the Escrow, in which case the provisions
of Section 3.10(c), above, shall apply. In the event that the Owner fails to timely
deliver an Objection Notice covering any exception in the Agency Sale Property Title
Documents, the Owner shall be conclusively deemed to have approved such exception
(except monetary liens). In the event that the Owner fails to timely cancel the Escrow
after receiving a Response Notice from the Agency, the Owner shall be conclusively
deemed to have approved all non-monetlll)' exceptions specified in the Response
Notice. In the event that the Agency fails to timely deliver a Response Notice covering
the exceptiones) disapproved in an Objection Notice, the Owner shall have the right,
by written notice to the Agency and Escrow Holder within ten (10) business days after
the Response Date (for purposes ofthis Section 3.19(a), the "Non-Response Decision
Date"), either to (i) waive its objection to the exceptiones) specified in the Objection
Notice, in which case the exceptiones) to which the waiver applies shall be
conclusively deemed approved, or (ii) cancel the Escrow, in which case the provisions
of Section 3.1O(c). above, shall apply. In the event that any portion of the foregoing
process will occur after the expiration of the Owner Due Diligence Period, then the
Owner Due Diligence Period shall extend to and expire on the Decision Date (or the
Non-Response Decision Date, if applicable), but only with respect to the Owner's
approval of the matters set forth in the Objection Notice. Notwithstanding anything to
the contrlll)' in this Section 3.19(a), all monetlll)' liens encumbering the Agency Sale
Property (other than non-delinquent real estate taxes and supplemental taxes assessed
after the Closing) are hereby deemed disapproved. Prior to the Closing, (a) the
Agency shall remove, or cause to be removed, all such monetlll)' liens and (b) the
Agency shall remove, modify or endorse, or cause to be removed, modified or
endorsed, any exceptiones) that the Agency agreed to cause to be removed, modified or
endorsed in the Response Notice, in the manner specified in the Response Notice. In
the event that such monetary liens and other exceptions are not removed prior to the
Closing, the Owner shall have the right either to (i) waive its objection to such
monetlll)' liens, in which case such monetlll)' liens shall be conclusively deemed
approved, or (ii) cancel the Escrow, in which case the provisions of Section 3.1O(b ),
above, shall apply. In the event that the Title Company delivers any supplement to the
Agency Sale Property Title Report to the Owner, or the Owner otherwise discovers the
existence of any title matter affecting the Agency Sale Property not disclosed in the
Agency Sale Property Title Report, the Owner shall have the right to object to any
such title matter within ten (10) business days following the Owner's receipt of such
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supplemental report or discovery of such title matter and otherwise in accordance with
the procedures described in this subsection.
(b) At the time of the Closing and as a condition thereto, Escrow
Holder shall deliver to the Owner either, as required by the Owner, a CL T A owner's
standard coverage policy of title insurance with respect to the Development Site and
the New Restaurant to be constructed thereon (the "Development Site CL T A Policy")
issued by the Title Company or an unconditional and unqualified commitment by the
Title Company to issue the Development Site CL T A Policy, naming the Owner as
insured, in a policy amount equal to $1,500,000, showing title to the Development Site
to be vested in the Owner, subject only to (a) the exceptions contained in the Agency
Sale Property Title Documents approved or deemed approved by the Owner pursuant
to Section 3 .19( at above, (b) real property taxes and assessments not then delinquent,
(c) matters of title created by or with the written consent of the Owner, (d) the effect of
any conditions imposed by the City in connection with any of the Land Use Approvals,
but only to the extent that such conditions have been recorded in the Official Records,
(e) any covenants, conditions or restrictions set forth in the Agency Grant Deed, and
(f) the standard printed exceptions to coverage contained in the Development Site
CL T A Policy; provided, however, that the Agency shall only be responsible for the
payment of the portion of the premium for the Development Site CL T A Policy
attributable to the value of the Agency Sale Parcel based on the Owner Purchase Price.
The Owner shall have the right to elect to receive an AL T A owner's extended coverage
policy of title insurance with respect to the Development Site (the "Develooment Site
AL T A Policy") with the same liability amount and subject only to the same exceptions
in lieu of the Development Site CL T A Policy, provided that the Owner pays the
difference in premium and any other additional costs (including without limitation any
costs of required new surveys) attributable to the Development Site AL T A Policy, and
provided further that the procurement of any such Development Site AL T A Policy
shall not result in an extension of the Closing Date. The Development Site CL T A
Policy or the Development Site AL T A Policy, as applicable, shall be conclusive
evidence of good and indefeasible title as to all matters insured thereby.
(c) The Owner acknowledges that, as of the date of this Agreement,
the Agency does not own the Agency Sale Property. The Agency intends to initiate
proceedings to acquire the Agency Sale Property by negotiated purchase from the
current owners thereof concurrently with the initiation of the "Site Parcel assembly
program" as described in Section 2.3 of the HUB DDA. The Agency shall deliver
offers to acquire the Agency Sale Property to the current owners thereof within the
time period specified therefor in the Schedule of Performance. The Agency may
hereafter request the assistance of the IVDA to complete the acquisition of the Agency
Sale Property by the IVDA's exercise of the power of eminent domain, if necessary. In
the event that the Agency requests such assistance from the IVDA, and the IVDA
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thereafter acquires fee title to the Agency Sale Property, the Agency shall promptly
thereafter acquire merchantable, lien-free, fee title to the Agency Sale Property from
the IVDA. The Agency agrees to exercise its best efforts to (i) acquire fee title to the
Agency Sale Property by negotiated purchase and/or through eminent domain
proceedings and (ii) cause the condition of title in the Agency Sale Property to be in a
marketable condition for the purposes of redevelopment of the Development Site by
INO; provided, however, to the extent that the performance of the foregoing
obligations of the Agency require the condemnation of all or any portion of the
Agency Sale Property, the Agency's performance of such obligations shall be subject
to the IVDA's initiation and prosecution of eminent domain proceedings to acquire the
applicable portion of the Agency Sale Property, provided that the Agency shall
exercise its best efforts to cause the IVDA to do so.
(d) Notwithstanding anything to the contrary in this Section 3.19, in
the event that the Agency has not acquired merchantable, lien-free, fee title to the
entire Agency Sale Property on or before the Closing Date, but (i) on or before the
Closing Date, the IVDA and/or the Agency has obtained an order or orders for
prejudgment possession (collectively, the "Orders of Possession ") of the portions of
the Agency Sale Property with respect to which the Agency has not acquired such fee
title, and (ii) as of the Closing Date, (A) none ofthe owners of the Agency Sale
Property have successfully challenged judicially the Agency's and/or the IVDA's right
to take any portion of the Agency Sale Property and (B) none of such owners have any
remaining rights, including without limitation any rights on appeal, to challenge
judicially the Agency's and/or the IVDA's right to take any portion of the Agency Sale
Property (collectively, the "Preiudgment Conditions"), and (iii) on or before the
Closing Date, all of the Owner's Conditions (other than the condition precedent set
forth in Section 3.22(b), below), including without limitation Section 3.22(j), below,
pursuant to which, among other things, the Title Company has committed to issue the
Development Site CL T A Policy or Development Site AL T A Policy, as applicable, in
accordance with Section 3 .19(b ), above, and (iv) as of the Closing Date, no Agency
Default remains uncured, then the Agency may satisfY the condition precedent set
forth in Section 3.22(b), below, by (A) depositing copies of the Orders of Possession
into the Escrow with respect to the applicable portion of the Agency Sale Property as
an interim alternative to acquiring merchantable, lien-free, fee title to the entire
Agency Sale Property, (B) delivering to Escrow Holder a duly executed and
acknowledged Agency Grant Deed with respect to the balance of the Agency Sale
Property with respect to which the Agency has acquired merchantable, lien-free, fee
title prior to the Closing Date, and (C) delivering lawful possession of the entire
Agency Sale Property to the Owner at the Closing. At the Closing, the Agency shall
convey to the Owner its right of possession to the portion of the Agency Sale Property
for which the Agency has not acquired such fee title by an instrument reasonably
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acceptable to the Owner and the Title Company that satisfies the condition precedent
set forth in Section 3.22(j), below.
(e) Notwithstanding anything to the contrary in Section 3.19(d),
above, in the event that, on or before the Closing Date, the Agency has obtained
Orders of Possession for the portions of the Agency Sale Property with respect to
which the Agency has not acquired merchantable, lien-free, fee title, but has otherwise
failed to satisfy the Prejudgment Conditions, and, as a result, the Agency has failed to
satisfy the Owner's Condition set forth in Section 3.22(j), below, pursuant to which,
among other things, the Title Company has committed to issue the Development Site
CLTA Policy or Development Site ALTA Policy, as applicable, in accordance with
Section 3.l9(b), above, then the provisions of Section 3.23, below, shall apply, except
that, if the Owner elects to extend the Closing Date pursuant thereto, the Closing Date
shall be extended to the earlier of (i) the frrst anniversary of the original Closing Date
or (ii) the tenth (10th) business day after all of the Prejudgment Conditions have been
satisfied.
(f) Following the Agency's delivery of the Orders of Possession to
Escrow Holder, the Agency shall diligently and continuously proceed, and/or cause the
IVDA to diligently and continuously proceed, with all required eminent domain
actions until final judgments are rendered or settlement reached with respect to all
portions of the Agency Sale Property with respect to which the Agency did not acquire
such fee title prior to the Closing. The Agency shall use its best efforts, and shall
cause the IVDA to use its best efforts, to obtain final judgments or settlements with
respect to such property as expeditiously as possible. At such time as, and each time,
the Agency acquires merchantable, lien-free, fee title to a portion of the Agency Sale
Property to which any of the Orders of Possession relate, the Agency shall deliver an
executed and acknowledged Agency Grant Deed to Escrow Holder with respect to
such property and Escrow Holder shall promptly cause the recordation of such Agency
Grant Deed.
(g) In the event that the Owner terminates this Agreement because, on
or before the Closing Date, the Agency has obtained Orders of Possession for the
portions of the Agency Sale Property with respect to which the Agency has not
acquired merchantable, lien-free, fee title, but has, despite the exercise of its best
efforts, otherwise failed to satisfy the Prejudgment Conditions, and, as a result, the
Agency has failed to satisfy the Owner's Condition set forth in Section 3.22m, below,
pursuant to which, among other things, the Title Company has committed to issue the
Development Site CL T A Policy or Development Site AL T A Policy, as applicable, in
accordance with Section 3.19(b), above, then the Agency shall, within ten (10)
business days thereafter, reimburse the Owner for all of costs and expenses incurred by
the Owner in connection with the approval, design and development of the
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Development, including without limitation the cost to obtain all of the Land Use
Approvals and all soft construction costs, including all architectural, engineering and
legal fees. Notwithstanding anything to the contrary in Section 6.2(d), below, upon the
Owner's receipt of such reimbursement, the Owner shall have no right to seek any
other damages from the Agency with respect to such Agency Default. The Agency
acknowledges and agrees that the provisions of this Section 3 .19( g) shall not apply,
and there shall be no limitation on the Owner's right to damages from the Agency, if
the Agency (i) fails to obtain the required Orders of Possession on or before the
original Closing Date and/or (ii) the Agency has failed to exercise its best efforts to
acquire fee title to the Agency Sale Property by negotiated purchase and/or through
eminent domain proceedings and cause the condition of title in the Agency Sale
Property to be in a marketable condition for the purposes of redevelopment of the
Development Site by INO, in accordance with Section 3. 19(C), above.
(h) Notwithstanding anything to the contrary in this Section 3.19, the
Owner shall be deemed to have delivered an Objection Notice to the Agency with
respect to any document that now or hereafter is recorded against all or any portion of
the Agency Sale Property by the Agency, the IVDA and/or any owner of any portion
of the Agency Sale Property with respect to the efforts of the Agency and/or the IVDA
to acquire any portion of the Agency Sale Property, regardless of whether any such
document has been identified as a title exception in the Agency Sale Property Title
Report or any supplement thereto. The provisions of Section 3. 19(a) shall apply with
respect to any such title exception at the time such title exception is recorded against
all or any portion of the Agency Sale Property.
3.20 Condition of Title and Title Insurance for Owner Sale Prooertv.
(a) Within thirty (30) days following the full execution of this
Agreement, the Owner shall cause to be delivered to the Agency a preliminary title
report or title commitment (the "Owner Sale Propertv Title Report") prepared by the
Title Company, describing the state of the title of the Owner Sale Property, together
with copies of all documents described in the Owner Sale Property Title Report and a
plot of the Owner Sale Property showing the location of all locatable exceptions
disclosed in the Owner Sale Property Title Report (collectively, the "Owner Sale
Propertv Title Documents"). The Agency must notify the Owner in writing of any
objections the Agency has to the title exceptions contained in the Owner Sale Property
Title Report (for purposes of this Section 3.20(a), the "Obiection Notice") within sixty
(60) days following the Agency's receipt of the Owner Sale Property Title Report and
all of the Owner Sale Property Title Documents. In the event that the Agency delivers
an Objection Notice to the Owner on or before the Objection Date, the Owner shall
have the right, but not the obligation, at its sole expense and by delivery of written
notice (for purposes of this Section 3.20(a). the "Response Notice") within thirty
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(30) days following the Owner's receipt of the Objection Notice (for purposes of this
Section 3.20(a), the "Resoonse Date"), to (i) agree to cause such exception(s) to be
either removed or modified to a form reasonably acceptable to the Owner or obtain the
Title Company's agreement to issue a title endorsement(s) with respect to such
exceptiones) reasonably acceptable to the Agency that insures the Agency against any
risks associated with such exception, and/or (ii) refuse to remove any non-monetary
exceptiones) disapproved by the Objection Notice. In the event that the Owner
delivers a Response Notice to the Agency on or before the Response Date that includes
a refusal to remove a non-monetary exception disapproved in the Objection Notice, the
Agency shall have the right, by written notice to the Owner and Escrow Holder (for
purposes of this Section 3.20(a), the "Decision Notice") within five (5) business days
thereafter (for purposes of this Section 3.20(a), the "Decision Date"), either to
(i) waive its objection to any exceptiones) specified in the Response Notice that the
Owner has not agreed to remove, modify or endorse in the manner described above
within the required thirty (30)-day period, in which case the exceptiones) to which the
waiver applies shall be conclusively deemed approved, or (ii) cancel the Escrow, in
which case the provisions of Section 3.1O(c), above, shall apply. In the event that the
Agency fails to timely deliver an Objection Notice covering any exception in the
Owner Sale Property Title Documents, the Agency shall be conclusively deemed to
have approved such exception (except monetary liens). In the event that the Agency
fails to timely cancel the Escrow after receiving a Response Notice from the Owner,
the Agency shall be conclusively deemed to have approved all non-monetary
exceptions specified in the Response Notice. In the event that the Owner fails to
timely deliver a Response Notice covering the exception(s) disapproved in an
Objection Notice, the Agency shall have the right, by written notice to the Owner and
Escrow Holder within ten (10) business days after the Response Date (for purposes of
this Section 3.20(a), the "Non-Response Decision Date"), either to (i) waive its
objection to the exceptiones) specified in the Objection Notice, in which case the
exceptiones) to which the waiver applies shall be conclusively deemed approved, or
(ii) cancel the Escrow, in which case the provisions of Section 3.10(c), above, shall
apply. In the event that any portion of the foregoing process will occur after the
expiration of the Agency Due Diligence Period, then the Agency Due Diligence Period
shall extend to and expire on the Decision Date (or the Non-Response Decision Date,
if applicable), but only with respect to the Agency's approval of the matters set forth in
the Objection Notice. Notwithstanding anything to the contrary in this Section 3.20(a),
all monetary liens encumbering the Owner Sale Property (other than non-delinquent
real estate taxes and supplemental taxes assessed after the Closing) are hereby deemed
disapproved. Prior to the Closing, (a) the Owner shall remove, or cause to be
removed, all such monetary liens and (b) the Owner shall remove, modify or endorse,
or cause to be removed, modified or endorsed, any exceptiones) that the Owner agreed
to cause to be removed, modified or endorsed in the Response Notice, in the manner
specified in the Response Notice. In the event that such monetary liens and other
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exceptions are not removed prior to the Closing, the Agency shall have the right either
to (i) waive its objection to such monetary liens, in which case such monetary liens
shall be conclusively deemed approved, or (ii) cancel the Escrow, in which case the
provisions of Section 3.10(a), above, shall apply. In the event that the Title Company
delivers any supplement to the Owner Sale Property Title Report to the Agency, or the
Agency otherwise discovers the existence of any title matter affecting the Owner Sale
Property not disclosed in the Owner Sale Property Title Report, the Agency shall have
the right to object to any such title matter within ten (10) business days following the
Agency's receipt of such supplemental report or discovery of such title matter and
otherwise in accordance with the procedures described in this subsection.
(b) At the time of the Closing and as a condition thereto, Escrow
Holder shall deliver to the Agency either a CLTA owner's standard coverage policy of
title insurance (the "Owner Sale PropertY CLTA Policy") issued by the Title Company
or an unconditional and unqualified commitment by the Title Company to issue the
Owner Sale Property CLTA Policy, naming the Agency as insured, in a policy amount
equal to $95,440, showing title to the Owner Sale Property to be vested in the Agency,
subject only to (a) the exceptions contained in the Owner Sale Property Title
Docwnents approved or deemed approved by the Agency pursuant to Section 3.20(a).
above, (b) real property taxes and assessments not then delinquent, (c) matters of title
created by or with the written consent of the Agency, (d) any covenants, conditions or
restrictions set forth in the Owner Grant Deed, and (e) the standard printed exceptions
to coverage contained in the Owner Sale Property CLTA Policy. The Agency shall
have the right to elect to receive an AL T A owner's extended coverage policy of title
insurance (the "Owner Sale PropertY ALTA Policv") with the same liability amount
and subject only to the same exceptions in lieu of the Owner Sale Property CLTA
Policy, provided that the Agency pays the difference in premiwn and any other
additional costs (including without limitation any costs of required new surveys)
attributable to the Owner Sale Property AL T A Policy, and provided further that the
procurement of the Owner Sale Property AL T A Policy shall not result in an extension
of the Closing Date. The Owner Sale Property CLTA Policy or the Owner Sale
Property AL T A Policy, as applicable, shall be conclusive evidence of good and
indefeasible title as to all matters insured thereby.
3.21 Surveys.
(a) The Owner may, at its sole cost and separate expense, obtain a
survey of the Development Site prepared by a land surveyor duly licensed by the State
of California and in compliance with ALTAlASCM standards (the "Development Site
Survev"). The Development Site Survey must be in a form acceptable to the Title
Company for the deletion of the standard survey exception in a CLTA owner's
standard coverage policy of title insurance relating to boundaries, without the addition
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of further exceptions, unless such additional exceptions are acceptable to the Owner in
its sole and absolute discretion. In the event that the Owner elects to obtain the
Development Site Survey, the procedures in Section 3. 19(a), above, shall apply to the
Owner's review and approval of such survey.
(b) The Agency may, at its sole cost and separate expense, obtain a
survey of the Owner Sale Property prepared by a land surveyor duly licensed by the
State of California and in compliance with ALTNASCM standards (the "Owner Sale
Prooertv Survev"). The Owner Sale Property Survey must be in a form acceptable to
the Title Company for the deletion of the standard survey exception in a CLTA
owner's standard coverage policy of title insurance relating to boundaries, without the
addition of further exceptions, unless such additional exceptions are acceptable to the
Agency in its sole and absolute discretion. In the event that the Agency elects to
obtain the Owner Sale Property Survey, the procedures in Section 3.20(a). above, shall
apply to the Agency's review and approval of such survey.
3.22 Owner's Conditions Precedent to Close Escrow. In addition to the
satisfaction of any other conditions precedent set forth herein in favor of the Owner,
the Owner's obligations to purchase the Agency Sale Property from the Agency,
convey the Owner Sale Property to the Agency and perform its obligations hereunder
to be performed after the Closing shall be subject to the satisfaction of all of the
following conditions precedent (except to the extent waived in writing by the Owner
pursuant to Section 3.23, below) prior to the earlier of (i) the Closing Date or (ii) the
time established therefor in this Agreement or the Schedule of Performance, if
applicable (collectively, the "Owner's Conditions"):
(a) The Owner Due Diligence Period shall have expired and the
Owner shall not have terminated this Agreement pursuant to Section 3.15(g), above;
(b) The Agency shall have acquired merchantable, lien-free, fee title
to the entire Agency Sale Property, except as otherwise provided in Section 3. 19(d),
above;
(c) The City shall have certified the Environmental Impact Report
and all time periods for legal challenge to the Environmental Impact Report shall have
expired without any challenge having been filed or, if such a challenge has been filed,
a resolution of such challenge satisfactory to the Owner shall have occurred;
(d) The Owner shall have obtained all of the Land Use Approvals
required for the construction and operation of the Improvements (other than non-
discretionary, ministerial permits and approvals that are not required for the
commencement of construction and which the Owner is reasonably satisfied will be
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approved on a timely basis) and the Owner shall have received a credit with respect to
each New Restaurant Fee in an amount equal to the corresponding fee or exaction that
the Owner would have been required to pay to the City if the Owner had obtained the
applicable Land Use Approval for the Existing Restaurant on the Existing Owner Site;
(e) The General Plan/Development Code Amendments shall be
urunodified and in full force and effect;
(f) All time periods for legal challenges to the Land Use Approvals
and the General Plan/Development Code Amendments shall have expired without any
challenge having been filed or, if such a challenge has been filed, a resolution of such
challenge satisfactory to the Owner shall have occurred;
(g) The Agency shall have completed the Agency Demolition Work
in accordance with Section 3.28, below;
(h) On or before June I, 2002, the HUB Developer shall have
executed, acknowledged and delivered into the Escrow the HUB Agreement;
(i) The Owner shall have approved the Agency Sale Property Title
Report, the Agency Sale Property Title Documents and the Development Site Survey,
or the same shall be deemed approved, in accordance with Sections 3 .19( a) and
3.2Ha), above;
(j) Escrow Holder shall have satisfied the condition relating to the
Development Site CL T A Policy or the Development Site AL T A Policy, as applicable,
set forth in Section 3 .19(b ), above;
(k) No Agency Default shall remain uncured and no event shall have
occurred and no condition shall exist which, with the giving of notice or the passage of
time, or both, would become an Agency Default;
(I) Each of the Agency's representations and warranties made herein
shall be true and correct as of the time at which the same is made and as of the Closing
Date, as if made on and as of the Closing Date;
(m) No Bankruptcy/Dissolution Event shall have occurred with
respect to the Agency or the City;
(n) There shall be no action pending which, if adversely decided,
would cause this Agreement, the Land Use Approvals and/or the General
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Plan/Development Code Amendments or any portion thereof to be illegal,
unenforceable or invalid in any material respect;
(0) The Agency shall have acquired and transferred to the HUB
Developer merchantable, lien-free, fee title to the Phase I HUB Site;
(P) The Agency shall have commenced physical construction of the
Harriman Place Improvement Project pursuant to a public works construction contract
awarded by, and entered into by, the City in accordance with the applicable terms of
the Harriman Construction Agreement and within the time period specified therefor in
the Schedule of Performance;
(q) The Agency shall have caused all utilities required for the
construction, operation and use of the New Restaurant and other Improvements to be
stubbed to five (5) feet inside of the Development Site on or before the date
established therefor in the Schedule of Performance;
(r) The Agency shall have delivered into Escrow the documents
listed in Section 3.12, above, within the time period specified therein, except as
otherwise provided in Section 3 .19( d). above;
(s) The HUB Developer shall have commenced construction of
"Major I" shown on Exhibit "K";
(t) The City shall not have vacated any portion of the Rosewood
Drive Segment; and
(u) The Agency shall have executed and delivered into Escrow a
letter confirming that all of the Agency's Conditions have been satisfied or waived by
the Agency.
The non-satisfaction of any of the Owner's Conditions set forth in subsections (g), (h),
(k), (I), (m), (p), (q), (r), (s), (t) or (u), above, shall constitute an Agency Default
hereunder.
3.23 Failure of the Owner's Conditions: Termination. In the event that the
Owner has fully performed its obligations under this Agreement to be performed prior
to the Closing Date, but one or more of the Owner's Conditions or other condition to
the Owner's conveyance of the Owner Sale Property and the acceptance of the
conveyance of the Agency Sale Property have not been satisfied or waived in writing
by the Owner as of the Closing Date, then the Owner shall have the right to terminate
this Agreement by written notice to the Agency at any time thereafter, in which case
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the provisions of Section 3.1 O(b) or 3.1 OC c ), above, as applicable, shall apply;
provided, however, that if no Agency Default remains uncured hereunder and the
condition which was not satisfied is capable of being satisfied by the Agency, and
provided further that the Agency notifies the Owner within ten (10) business days after
its receipt of the Owner's termination notice that the Agency intends to cause the
satisfaction of such condition and thereafter diligently and continuously proceeds to
cause the satisfaction of such condition, then the Closing Date shall be extended for
such time as is reasonably necessary for the Agency to satisfy such condition, but not
to exceed ninety (90) days. The Agency shall have the right to extend the Closing
Date only once. If such condition has not been satisfied by the extended Closing Date
or waived by the Owner, then the Owner may, at its option, terminate this Agreement
by delivering a second notice of termination to the Agency at any time within thirty
(30) days following the extended Closing Date (and such termination shall be effective
upon delivery of such notice), in which case the provisions of Section 3 .1O(b) or
3 .1O( c ), above, as applicable, shall apply.
3.24 Agency's Conditions Precedent to Close Escrow. In addition to the
satisfaction of any other conditions precedent set forth herein in favor of the Agency,
the Agency's obligations to purchase the Owner Sale Property from the Owner, convey
the Agency Sale Property to the Owner and perform its obligations hereunder to be
performed after the Closing shall be subject to the satisfaction of all of the following
conditions precedent (except to the extent waived in writing by the Agency pursuant to
Section 3.25, below) prior to the earlier of (i) the Closing Date or (ii) the time
established therefor in this Agreement or the Schedule of Performance, if applicable
(collectively, the "Agencv's Conditions"):
(a) The Agency Due Diligence Period shall have expired and the
Agency shall not have terminated this Agreement pursuant to Section 3.16(g:), above;
(b) The City shall have certified the Environmental Impact Report
and all time periods for legal challenge to the Environmental Impact Report shall have
expired without any challenge having been filed or, if such a challenge has been filed,
a resolution of such challenge satisfactory to the Agency shall have occurred;
(c) The Owner shall have obtained all of the Land Use Approvals
required for the construction and operation of the Improvements (other than non-
discretionary, ministerial permits and approvals that are not required for the
commencement of construction and which the Agency is reasonably satisfied will be
approved on a timely basis);
(d) All time periods for legal challenges to the Land Use Approvals
and the General Plan/Development Code Amendments shall have expired without any
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challenge having been filed or, if such a challenge has been filed, a resolution of such
challenge satisfactol)' to the Agency shall have occurred;
(e) The Agency shall have approved the Owner Sale Property Title
Report, the Owner Sale Property Title Docwnents and the Owner Sale Property Survey
or the same shall be deemed approved, in accordance with Sections 3.20(a) and
3.2Hb), above;
(f) Escrow Holder shall have satisfied the condition relating to the
Owner Sale Property CLTA Policy or the Owner Sale Property ALTA Policy, as
applicable, set forth in Section 3.20(b), above;
(g) No Owner Default shall remain uncured and no event shall have
occurred and no condition shall exist which, with the giving of notice or the passage of
time, or both, would become an Owner Default;
(h) Each of the Owner's representations and warranties made herein
shall be true and correct as of the time at which the same is made and as of the Closing
Date, as if made on and as of the Closing Date;
e
(i) No Bankruptcy/Dissolution Event shall have occurred with
respect to the Owner;
(j) There shall be no action pending which, if adversely decided,
would cause this Agreement, the Land Use Approvals and/or the General
Plan/Development Code Amendments or any portion thereof to be illegal,
unenforceable or invalid in any material respect;
(k) The Owner shall have delivered into Escrow (i) the funds required
pursuant to Section 3.6, above, and (ii) the docwnents listed in Section 3.13, above;
and
(I) The Owner shall have executed and delivered into Escrow a letter
confirming that all of the Owner's Conditions have been satisfied or waived by the
Owner.
The non-satisfaction of any of the Agency's Conditions set forth in subsections (g), (h),
(i), (k) or (I), above, shall constitute an Owner Default hereunder.
3.25 Failure of the Agencv's Conditions: Termination. In the event that the
Agency has fully performed its obligations under this Agreement to be performed prior
e to the Closing Date, but one or more of the Agency's Conditions or other condition to
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the Agency's conveyance of the Agency Sale Property and the acceptance of the
conveyance of the Owner Sale Property have not been satisfied or waived in writing by
the Agency as of the Closing Date, then the Agency shall have the right to terminate
this Agreement by written notice to the Owner at any time thereafter, in which case the
provisions of Section 3.1 O( a) or 3.1 O( c). above, as applicable, shall apply; provided,
however, that if no Owner Default remains uncured hereunder and the condition which
was not satisfied is capable of being satisfied by the Owner, and provided further that
the Owner notifies the Agency and the City within ten (10) business days after its
receipt of the Agency's termination notice that the Owner intends to cause the
satisfaction of such condition and thereafter diligently and continuously proceeds to
cause the satisfaction of such condition, then the Closing Date shall be extended for
such time as is reasonably necessary for the Owner to satisfy such condition, but not to
exceed ninety (90) days. The Owner shall have the right to extend the Closing Date
only once. If such condition has not been satisfied by the extended Closing Date or
waived by the Agency, then the Agency may, at its option terminate this Agreement by
delivering a second notice oftermination to the Owner at any time within thirty (30)
days following the extended Closing Date (and such termination shall be effective
upon delivery of such notice), in which case the provisions of Section 3.1 O( a) or
3. IO( c ), above, as applicable, shall apply.
3.26 Prorations. Closing Costs. Possession.
(a) Real and personal property taxes for the Agency Sale Property
and the Owner Sale Property shall be prorated by the parties to the Closing on the
basis of a three hundred sixty-five (365)-day year. The Agency is responsible for all
taxes (if any) assessed against the Agency Sale Property (i) for the fiscal year of the
applicable taxing authority occurring prior to the Current Tax Period (as defmed
below) and (ii) that portion of such taxes for the Current Tax Period to II :59 p.m. on
the day prior to the Closing Date, whether or not the taxes are payable prior to the
Closing. The Owner is responsible for all taxes assessed against the Owner Sale
Property (i) for the fiscal year of the applicable taxing authority occurring prior to the
Current Tax Period and (ii) that portion of such taxes for the Current Tax Period to
II :59 p.m. on the day prior to the Closing Date, whether or not the taxes are payable
prior to the Closing. The term "Current Tax Period" in this Agreement refers to the
fiscal year of the applicable taxing authority in which the Closing occurs. All tax
prorations shall be based upon the latest available tax statements. If the tax statements
for the fiscal tax year during which the Closing occurs do not become available until
after the Closing, then the rates and assessed values of the previous year, with known
changes, will be used, and the parties will re-prorate the taxes outside of Escrow
following the Closing when such tax statements become available. The parties are not
responsible for paying or reimbursing each other for any real or personal property
taxes payable following the Closing applicable to any period of time prior to the
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Closing that results from any change in the tax assessment by reason of reassessment,
changes in use of the real property, changes in ownership, errors by the tax assessor or
otherwise.
(b) Immediately upon the Closing, (i) the Agency shall deliver
exclusive possession of the Agency Sale Property to the Owner and (ii) the Owner
shall deliver exclusive possession of the Owner Sale Property to the Agency, subject to
the Owner License.
(c) The Agency shall pay the costs of (i) the premium for the
Development Site CL T A Policy (provided that if the Owner elects to obtain the
Development Site ALTA Policy, the Owner shall pay the additional premium for the
Development Site AL T A Policy over the premium for the Development Site CL T A
Policy and otherwise subject to the limitations set forth in Section 3.19(b), above),
(ii) the documentary transfer tax on the Agency Grant Deed, (iii) recording the Agency
Grant Deed, (iv) satisfying and removing all monetary liens encumbering all or any
portion of the Agency Sale Property and (v) one-half (Yo) of the fees charged by
Escrow Holder in connection with the Escrow.
(d) The Owner shall pay the costs of (i) the premium for the Owner
Sale Property CL T A Policy (provided that if the Agency elects to obtain the Owner
Sale Property AL T A Policy, the Agency shall pay the additional premium for the
Owner Sale Property AL T A Policy over the premium for the Owner Sale Property
CL T A Policy), (ii) the documentary transfer tax on the Owner Grant Deed,
(iii) recording the Owner Grant Deed, (iv) satisfying and removing all monetary liens
encumbering the Owner Sale Property and (v) one-half (Yo) of the fees charged by
Escrow Holder in connection with the Escrow.
(e) The Owner shall pay the cost of the Development Site Survey and
any requested title endorsements (to the extent such endorsements are unrelated to
removal of any disapproved items shown on the Agency Sale Property Title Report or
the Development Site Survey pursuant to Sections 3.19(a) and 3.21(a), above) with
respect to the Development Site CL T A Policy or the Development Site AL T A Policy,
as applicable.
(t) The Agency shall pay the cost of the Owner Sale Property Survey
and any requested title endorsements (to the extent such endorsements are unrelated to
removal of any disapproved items shown on the Owner Sale Property Preliminary Title
Report or the Owner Sale Property Survey pursuant to Sections 3.20(a) and 3.2 1 (b),
above) with respect to the Owner Sale Property CL T A Policy or the Owner Sale
Property AL T A Policy, as applicable.
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(g) The Agency and the Owner shall each pay their own legal fees
and other incidental expenses incurred in connection with the transactions
contemplated by this Agreement.
(h) Any other escrow-related transaction expenses or escrow closing
costs in connection with the transactions contemplated by this Agreement shall be
apportioned and paid for by the parties hereto in the manner customary in the County.
3.27 Damage. Destruction and Condemnation.
(a) Prior to the Agency's delivery of possession of the Agency Sale
Property to Owner at the Closing, the risk of loss or damage to the Agency Sale
Property remains upon the Agency. If the Agency Sale Property suffer damage as a
result of any casualty prior to the Closing that materially diminishes the value of the
Agency Sale Property, then the Agency shall deliver written notice of such fact to the
Owner promptly after the occurrence of the casualty. The Owner shall have the right,
within thirty (30) days following its receipt of such notice, to cancel the Escrow by
written notice to the Agency and Escrow Holder, in which case the provisions of
Section 3.1O(c). above, shall apply. For purposes of this Agreement, the initiation of
condemnation proceedings by the Agency or the IVDA to acquire all or any portion of
the Agency Sale Property, and thereafter the Agency Demolition Work, shall not be
deemed the occurrence of a casualty or to diminish materially the value of the Agency
Sale Property.
(b) Prior to the Owner's delivery of possession of the Owner Sale
Property to Agency at the Closing, the risk ofloss or damage to the Owner Sale
Property remains upon the Owner. If the Owner Sale Property suffer damage as a
result of any casualty prior to the Closing that materially diminishes the value of the
Owner Sale Property, then the Owner shall delivery written notice of such fact to the
Agency promptly after the occurrence of the casualty. The Agency shall have the
right, within thirty (30) days following its receipt of such notice, to cancel the Escrow
by written notice to the Owner and Escrow Holder, in which case the provisions of
Section 3.10(c), above, shall apply.
(c) If, prior to the Closing, any governmental entity (other than the
Agency or the IVDA) commences eminent domain or similar type proceedings to take
any portion of the Agency Sale Property, the Agency shall promptly deliver written
notice of such fact to the Owner. The Owner shall have the right, within thirty (30)
days following its receipt of such notice, to cancel the Escrow, in which case the
provisions of Section 3.10(c), above, shall apply. In the event that this Agreement is
not terminated pursuant to the provisions of the preceding sentence, the Owner agrees
to accept the Agency Sale Property subject to the taking, in which event the Agency
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shall deliver to the Owner at the Closing an assignment of all of the Agency's right,
title and interest in and to any award that has been paid or may be payable to the
Agency on account of such taking, together with any other documents reasonably
requested by the Owner to further evidence the vesting of such award in the Owner.
The Agency agrees that it will not settle or compromise the proceedings before the
Closing without the Owner's prior written consent, which consent shall not be
unreasonably withheld or delayed.
(d) If, prior to the Closing, any governrnental entity commences
eminent domain or similar type proceedings to take any portion of the Owner Sale
Property, the Owner shall promptly deliver written notice of such fact to the Agency.
The Agency shall have the right, within thirty (30) days following its receipt of such
notice, to cancel the Escrow, in which case the provisions of Section 3.1O(c). above,
shall apply. In the event that this Agreement is not terminated pursuant to the
provisions of the preceding sentence, the Agency agrees to accept the Owner Sale
Property subject to the taking, in which event the Owner shall deliver to the Agency at
the Closing an assignment of all of the Owner's right, title and interest in and to any
award that has been paid or may be payable to the Owner on account of such taking,
together with any other documents reasonably requested by the Agency to further
evidence the vesting of such award in the Agency. The Owner agrees that it will not
settle or compromise the proceedings before the Closing without the Agency's prior
written consent, which consent shall not be unreasonably withheld or delayed.
3.28 Demolition of Agency Sale Property Improvements. Prior to the
Closing, the Agency shall, at its sole cost and expense and in compliance with all
applicable Environmental Laws, demolish and remove all existing improvements and
utility lines (collectively, the "Existing Agencv Imorovements") on and under the
Agency Sale Property (the "Agency Demolition Work"). The Agency acknowledges
that the Existing Agency Improvements include asbestos-containing materials
("ACM") and lead-based paint ("LBP"). The Agency shall be solely responsible, at no
cost to the Owner, for abating and transporting such ACM and LBP-containing
demolition wastes for disposal offsite at a lawful waste disposal facility in the manner
required by Law. The Agency acknowledges that the Owner assumes no liability for
damages for personal injury, illness, disability or death to any agent, employee or
contractor of the Agency or any other person, including members of the general public,
arising from or incident to the use, abatement, handling, removal, transportation or
disposal of any ACM or LBP from or in any of the Existing Agency Improvements or
the Agency Sale Property.
3.29 Agreement with HUB Develooer. In order to carry out the Development
and operate the New Restaurant, the Owner requires the HUB Developer to provide
the Owner with certain rights relating to the Phase 1 HUB Site. The Owner shall
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execute and acknowledge, and the Agency shall cause the HUB Developer to execute,
acknowledge and deposit into the Escrow, in accordance with this Agreement, an
easement and covenant agreement (the "HUB Agreement"), in form and substance
satisfactory to the Owner in its sole and absolute discretion, pursuant to which, among
other things, (a) the HUB Developer grants easements to the Owner for the
construction and maintenance of the Improvements and pedestrian and vehicular
access across the Phase 1 HUB Site to the Development Site, (b) the HUB Developer
shall provide the Owner with suitable space on at least one of the pylon signs (the
"HUB Proiect Pylon Sign") that it constructs in connection with the development of
the Phase 1 HUB Site, and (c) the Owner and the HUB Developer reach agreement on
all other matters that the Owner determines in its sole and absolute discretion are
necessary for the construction and operation of the New Restaurant.
3.30 Waiver of Other Payments bv Owner. Upon the Closing, the Owner
expressly waives any and all claims, rights, title and interests of the Owner in any
amount of compensation that the Owner might claim to be payable by the Agency, the
City or the IVDA to the Owner under the provisions of California Government Code
Section 7260 et seq. (relocation benefits, loss of goodwill and the like) with respect to
the Owner Sale Property. The Closing in accordance with the terms and conditions of
this Agreement fully satisfies all claims of the Owner relating to the acquisition of the
Owner Sale Property by the Agency.
3.31 Materiallv Adverse Changes Re Agency Sale Property. Following the
execution of this Agreement, and until the Closing:
(a) no change shall have occurred with respect to the physical
condition of the Agency Sale Property that could (i) have a material adverse effect on
the value of the Agency Sale Property or its intended use, (ii) cause a material delay in
the contemplated development of the Agency Sale Property as set forth in the HUB
DDA due to such change or (iii) materially increase the cost of developing the Agency
Sale Property in the manner contemplated in this Agreement as a result of such change;
and
(b) no change shall have occurred with respect to any matter that
renders untrue any representation or warranty of the Agency under this Agreement in
any material respect (for purposes of this Section 3.3 L in each case, a "Material
Change").
In the event that the Agency discovers any Material Change, the Agency shall deliver
written notice of such Material Change to the Owner (for purposes of this
Section 3.31, the "Change Notice"). The Owner shall have the right, within five
(5) business days following the Owner's receipt of a Change Notice or written notice
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of a Material Change from any other source (for purposes of this Section 3.31. the
"Change Obiection Date"), to object to the Material Change by written notice to the
Agency (for purposes of this Section 3.31. the "Change Obiection Notice"). In the
event that the Owner delivers a Change Objection Notice to the Agency on or before
the Change Objection Date, the Agency shall have the right, within seven (7) business
days following the Agency'sreceipt of the Change Objection Notice (for purposes of
this Section 3.31, the "Change Response Date"), to (d) cause such Material Change to
be resolved in the manner specified in the Change Response Notice (for purposes of
this Section 3.31, the "Material Change Action") or (e) refuse to take any action with
respect to such Material Change by written notice to the Owner (for purposes of this
Section 3.31, the "Change Response Notice"). In the event that the Agency delivers a
Change Response Notice on or before the Change Response Date, the Owner shall
have the right, by written notice to the Agency and Escrow Holder (for purposes of
this Section 3.31, the "Change Decision Notice") within five (5) business days after its
receipt of the Change Response Notice (for purposes of this Section 3.31, the "Change
Decision Date"), either to (i) waive its objection to the Material Change specified in
the Response Notice, in which case such Material Change shall be conclusively
deemed approved, or (ii) cancel the Escrow, in which case the provisions of
Section 3.1 O( c ), above, shall apply (unless such Material Change constitutes or results
from an Agency Default, in which event the provisions of Section 3.1 O( a), above, shall
apply). In the event that the Owner fails to timely deliver a Change Objection Notice
covering any Material Change following its receipt of a Change Notice, the Owner
shall be conclusively deemed to have approved such Material Change. In the event
that the Owner fails to timely cancel the Escrow after receiving a Change Response
Notice from the Agency, the Owner shall be conclusively deemed to have approved the
Material Change specified in the Change Response Notice (subject to the Agency's
completion of the Material Change Action prior to the Closing). In the event that the
Agency fails to timely deliver a Change Response Notice covering any Material
Change disapproved in a Change Objection Notice, the Owner shall have the right, by
written notice to the Agency and Escrow Holder within five (5) business days after the
Change Response Date (for purposes of this Section 3.31, the "Non-Response Change
Decision Date"), either to (i) waive its objection to the Material Change specified in
the Change Objection Notice, in which case such Material Change shall be
conclusively deemed approved, or (ii) cancel the Escrow, in which case the provisions
of Section 3.10(c). above, shall apply (unless such Material Change constitutes or
results from an Agency Default, in which event the provisions of Section 3.1 O( a ),
above, shall apply). In the event that the Agency timely delivers a Change Response
Notice and the Owner does not thereafter validly cancel the Escrow pursuant to this
Section 3.31, then the Agency shall cause the Material Change to be resolved prior to
the Closing in the manner specified in the Change Response Notice. In the event that
any portion of the foregoing process would occur after the Closing Date, the Closing
Date shall extend to and expire on the earlier of (t) the thirtieth (30th) day following
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the Change Decision Date (or the Non-Response Change Decision Date, if applicable)
or (g) the fifth (5th) business day following the date on which the Agency completes
the Material Change Action.
3.32 Materially Adverse Changes Re Owner Sale Property. Following the
execution of this Agreement, and until the Closing:
(a) no change shall have occurred with respect to the physical
condition of the Owner Sale Property that could (i) have a material adverse effect on
the value of the Owner Sale Property or its intended use, (ii) cause a material delay in
the Agency's contemplated development of the Owner Sale Property as set forth in the
HUB DDA due to such change or (iii) materially increase the cost of developing the
Owner Sale Property in the manner contemplated in the HUB DDA as a result of such
change; and
(b) no change shall have occurred with respect to any matter that
renders untrue any representation or warranty of the Owner under this Agreement in
any material respect (for purposes of this Section 3.32, in each case, a "Material
Change").
In the event that the Owner discovers any Material Change, the Owner shall deliver
written notice of such Material Change to the Agency (for purposes of this
Section 3.32, the "Change Notice"). The Agency shall have the right, within five
(5) business days following the Agency's receipt of a Change Notice or written notice
of a Material Change from any other source (for purposes of this Section 3.32, the
"Change Obiection Date"), to object to the Material Change by written notice to the
Owner (for purposes of this Section 3.32, the "Change Obiection Notice"). In the
event that the Agency delivers a Change Objection Notice to the Owner on or before
the Change Objection Date, the Owner shall have the right, within seven (7) business
days following the Owner's receipt of the Change Objection Notice (for purposes of
this Section 3.32, the "Change Response Date"), to (d) cause such Material Change to
be resolved in the manner specified in the Change Response Notice (for purposes of
this Section 3.32, the "Material Change Action") or (e) refuse to take any action with
respect to such Material Change by written notice to the Agency (for purposes of this
Section 3.32, the "Change Response Notice"). In the event that the Owner delivers a
Change Response Notice on or before the Change Response Date, the Agency shall
have the right, by written notice to the Owner and Escrow Holder (for purposes of this
Section 3.32. the "Change Decision Notice") within five (5) business days after its
receipt of the Change Response Notice (for purposes of this Section 3.32, the "Change
Decision Date"), either to (i) waive its objection to the Material Change specified in
the Response Notice, in which case such Material Change shall be conclusively
deemed approved, or (ii) cancel the Escrow, in which case the provisions of
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Section 3.1 Of c ), above, shall apply (unless such Material Change constitutes or results
from an Owner Default, in which event the provisions of Section 3.1 O(b ), above, shall
apply). In the event that the Agency fails to timely deliver a Change Objection Notice
covering any Material Change following its receipt of a Change Notice, the Agency
shall be conclusively deemed to have approved such Material Change. In the event
that the Agency fails to timely cancel the Escrow after receiving a Change Response
Notice from the Owner, the Agency shall be conclusively deemed to have approved the
Material Change specified in the Change Response Notice (subject to the Owner's
completion of the Material Change Action prior to the Closing). In the event that the
Owner fails to timely deliver a Change Response Notice covering any Material Change
disapproved in a Change Objection Notice, the Agency shall have the right, by written
notice to the Owner and Escrow Holder within five (5) business days after the Change
Response Date (for purposes of this Section 3.32. the "Non-Resoonse Change
Decision Date"), either to (i) waive its objection to the Material Change specified in
the Change Objection Notice, in which case such Material Change shall be
conclusively deemed approved, or (ii) cancel the Escrow, in which case the provisions
of Section 3.1 Of c ), above, shall apply (unless such Material Change constitutes or
results from an Owner Default, in which event the provisions of Section 3.1 O(b ).
above, shall apply). In the event that the Owner timely delivers a Change Response
Notice and the Agency does not thereafter validly cancel the Escrow pursuant to this
Section 3.32, then the Owner shall cause the Material Change to be resolved prior to
the Closing in the manner specified in the Change Response Notice. In the event that
any portion of the foregoing process would occur after the Closing Date, the Closing
Date shall extend to and expire on the earlier of (f) the thirtieth (30th) day following
the Change Decision Date (or the Non-Response Change Decision Date, if applicable)
or (g) the fifth (5th) business day following the date on which the Owner completes the
Material Change Action.
ARTICLE 4
REDEVELOPMENT OF THE DEVELOPMENT SITE
4.1 The Develooment.
(a) Following the Closing, the Development Site shall be developed
with the New Restaurant and the other Improvements in accordance with the "Scope of
Development" attached hereto as Exhibit "J" (the "Scope of Development"). The
Improvements that comprise the Development are described in the Scope of .
Development.
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(b) The Development Code and the City's building requirements will
be applicable to the development and the use of the Development Site. Nothing
contained in this Agreement shall limit in any way the City's discretion to approve or
disapprove any Land Use Approval necessary for the construction or operation of the
Improvements.
(c) The Scope of Development shall be deemed approved by the
Agency upon its execution of this Agreement. The Improvements shall be developed
and completed in conformance with the approved Scope of Development, except for
changes mutually agreed upon in writing by the Owner and the Agency.
(d) The approval of the Scope of Development by the Agency is not
binding upon the Common Councilor the Planning Commission of the City with
respect to any Land Use Approvals required for the Development.
(e) Except as otherwise provided in this Agreement, including
without limitation Section 3.22( d), above, with respect to the New Restaurant Fee
credits, Section 3 .22( q ), above, with respect to the utilities required for the New
Restaurant and Section 4.U g). below, with respect to the offsite public improvements
required with respect to the use of the Development Site, the complete cost of
planning, designing and constructing the Improvements will be borne entirely by the
Owner.
(f) The Owner shall pay any and all fees and exactions pertaining to
the Land Use Approvals required for the Development (collectively, the "New
Restaurant Fees"), subject to the provisions of Section 3.22( d)' above.
(g) The Owner shall have no responsibility whatsoever for the plan,
design, approval or construction of any offsite public improvements required either by
the City or the Owner with respect to the use of the Development Site, including
without limitation the Harriman Place Improvement Project.
(h) As set forth in the Schedule of Performance, the Owner shall
commence construction of the Improvements by the later of (i) January 1,2003, or
(ii) the thirtieth (30th) day following the Closing, in either case (the "New Restaurant
Commencement Date"), subject to the provisions of Section 7.5, below. As set forth in
the Schedule of Performance, the Owner shall substantially complete the Improve-
ments within two hundred seventy (270) days following the commencement of
construction, subject to the provisions of Section 7.5, below. The Schedule Of
Performance is subject to revision from time to time as mutually agreed upon in
writing by and between the Owner and the Agency.
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(i) Prior to the commencement of any construction of the
Improvements, the Owner shall furnish, or cause to be furnished, to the Agency
duplicate originals or appropriate certificates of comprehensive general liability
insurance in the amount of One Million Dollars ($1,000,000) combined single limit,
naming the Agency and the City as additional insureds, which shall include the
following coverages: contractual liability; acts of subcontractors; premises-operations;
broadform property damage; and personal injury including libel, slander and false
arrest. In addition, the Owner must provide to the Agency adequate proof of
comprehensive automobile liability insurance covering owned, non-owned and hired
vehicles, combined single limit in the amount of One Million Dollars ($1,000,000)
each occurrence and proof of workers' compensation insurance. Any and all insurance
policies required hereunder must be obtained from insurance companies admitted in
the State of California and rated at least B+: XlI in Best's Insurance Guide. All
insurance policies must provide that they may not be canceled unless the Agency and
the City receive written notice of cancellation at least ten (10) calendar days prior to
the effective date of cancellation. Any and all insurance obtained by the Owner
hereunder will be primary to any and all insurance that the Agency and/or City may
otherwise carry, including self insurance, which for all purposes of this Agreement will
be separate and apart from the requirements of this Agreement. Any insurance policies
governing the Development Site as obtained by the Agency will not be transferred
from the Agency to the Owner. Any and all insurance required hereunder shall be
maintained and kept in force until the Agency issues the Certificate of Completion in
connection with the Development.
(j) The Owner for itself, its successors and assigns agrees that in the
construction of the Development, the Owner will not discriminate against any
employee or applicant for employment because of sex, marital status, race, color,
religion, creed, national origin, or ancestry.
(k) The Owner will carry out its construction of the Development in
conformity with all applicable Laws, including all applicable state labor standards and
requirements.
(1) The officers, employees, agents and representatives of the Agency
shall have the right of reasonable access to the Development Site, without the payment
of charges or fees, during normal construction hours during the period of construction
of the Improvements for the purpose of verifying compliance by the Owner with the
terms of this Agreement. The Executive Director of the Agency shall provide to the
Owner a list of such officers, employees, agents or representatives prior to the entry of
any such persons onto the Development Site. Any and all officers, employees, agents
or representatives of the Agency who enter the Development Site pursuant to this
Agreement must identify themselves at the job site office upon their entrance on to the
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Development Site and must be accompanied by a representative of the Owner while on
the Development Site. The Owner shall make a representative of the Owner available
for this purpose during normal construction hours upon not less than twenty-four (24)
hours notice from the Agency. The Agency hereby agrees to indemnify and defend the
Owner and hold the Owner harmless from and against any and all claims, demands,
actions, losses, liabilities, obligations, damages, costs and expenses (including without
limitation reasonable attorneys' fees and court costs, whether or not any action is filed
or prosecuted) arising out of the entry by any officers, employees, agents or
representatives of the Agency onto the Development Site.
4.2 License to Occupv Owner Sale Lands After Close of Escrow. The
Agency hereby grants to the Owner a temporary, exclusive license (the "Owner
License") to occupy the Owner Sale Property, for the purpose of operating the Existing
Restaurant on the Existing Owner Site and to provide access to and from the Existing
Restaurant on the Existing Owner Site via Tippecanoe Avenue, commencing upon the
Closing until the earlier of (a) the City's issuance of a temporary certificate of
occupancy with respect to the Improvements or (b) the first anniversary of the New
Restaurant Commencement Date (the "Owner License Exoiration Date"), whereupon
the Owner License shall terminate without further notice to the Owner. Upon the
request of the Owner, the Executive Director may extend the term of the Owner
License in his or her sole and absolute discretion. Upon the Owner License Expiration
Date, the Owner shall surrender the Owner Sale Property to the Agency in its then
existing condition. Notwithstanding anything to the contrary in this Section 4.2, the
Owner shall not be required to remove the Existing !NO Sign, nor shall the Agency
remove, or permit to be removed, the Existing !NO Sign, unless and until the HUB
Developer shall have erected and placed into operation the HUB Project Pylon Sign in
accordance with the HUB Agreement.
4.3 Assil!IlIl1ent and Transfer. This Agreement, the Development Site or any
interest in either may not be assigned or transferred by the Owner in any manner,
including without limitation a sale or transfer of equity in the Owner or any related
entity, association or individual, or a sale or transfer of assets or liabilities of the
Owner or any related entity, association or individual (a "Transfer"), without the
express written consent of the Executive Director, which consent shall not be
unreasonably withheld or delayed. The limitation on Transfers set forth in the
preceding sentence shall only apply from the Closing Date until the issuance of the
Certificate of Completion. Notwithstanding anything to the contrary in this
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Section 4.3, the following Transfers shall be pennitted without the prior written
consent of the Executive Director:
(a) Any Transfer creating a Security Financing Instrument, which
may include any related collateral assignment or pledge of or security interest in the
Owner's right, title and interest in, to and under this Agreement.
(b) Any Transfer directly resulting from the foreclosure of a Security
Financing Instrument or the granting of a deed in lieu of foreclosure of a Security
Financing Instrument.
(c) Any Transfer to a joint venture, general or limited partnership,
limited liability company, joint stock association or other entity in which the Owner
holds at least a forty-nine percent (49%) interest;
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(d) Any Transfer to a limited partnership the sole general partner of
which is the Owner or a corporation or other entity controlled by the Owner. In
connection with any such Transfer, the Owner shall, not less than thirty (30) days prior
to such Transfer, submit to the Agency, on a confidential basis, the proposed limited
partnership agreement and any other documents reasonably required by the Agency to
determine the compliance of such Transfer with the requirements of this subsection.
(e) Any Transfer of a limited partnership interest in a limited
partnership occurring after a Transfer pennitted pursuant to subsection (c) or (d),
above.
(f) The granting of easements encumbering all or any portion of the
Agency Sale Property to facilitate the development or operation of the Property as
contemplated in this Agreement.
4.4 Certificate of Completion.
(a) Following the completion of construction of the Improvements,
excluding any normal and minor building "punchlist" items to be completed by the
Owner (the "Punchlist Items"), and within five (5) business days following the written
request of the Owner, the Agency shall furnish the Owner with the Certificate of
Completion.
(b) The Certificate of Completion is the Agency's conclusive
determination of the Owner's full and satisfactory completion of the Development in
accordance with the terms and conditions of this Agreement and the Owner's full and
e satisfactory performance of all of its obligations under this Agreement, including
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without limitation compliance with the Schedule of Performance and the Scope of
Development, expect for the Owner's indemnification obligations under Section
7.9(a), below. After the issuance of the Certificate of Completion, any party then
owning or thereafter purchasing, leasing or otherwise acquiring any interest in the
Development Site shall not (because of such ownership, purchase, lease or acquisition)
incur any obligation or liability whatsoever under this Agreement, provided that such
party shall be bound by any covenants contained in the Agency Grant Deed. In
addition, after the issuance of the Certificate of Completion, neither the Agency nor
any other Person shall have any rights, remedies or controls with respect to the Agency
Sale Property or any other portion of the Development Site that it would otherwise
have or be entitled to exercise under this Agreement as a result of an Owner Default
and the respective rights and obligations of the parties hereto with respect to the
Agency Sale Property shall be limited thereafter to those set forth in the Agency Grant
Deed.
(c) The Certificate of Completion may be recorded in the Official
Records.
(d) The Agency shall not unreasonably withhold the issuance of the
Certificate of Completion. If the Agency refuses or fails to furnish the Certificate of
Completion after written request from the Owner, the Agency shall, within five (5)
business days of a written request, provide the Owner with a written statement setting
forth the reasons for the Agency's refusal or failure to furnish the Certificate of
Completion. The statement shall also contain the Agency's opinion of the actions the
Owner must take to obtain the Certificate of Completion from the Agency. If the
reason for such refusal is confined to the immediate unavailability of specific items or
materials for construction or landscaping at a price reasonably acceptable to the Owner
or other Punchlist Items that, in the reasonable judgment of the Agency, will not
adversely affect the occupancy of the Improvements, the Agency shall issue the
Certificate of Completion upon the posting of a bond or irrevocable letter of credit by
the Owner in an amount the parties hereto mutually and reasonably determine
represents the fair market value of the work not yet completed and otherwise in form
and substance reasonably satisfactory to the Agency. If the Agency fails to provide the
written statement within the specified five (5)-business day period, the Owner shall
conclusively be deemed entitled to the Certificate of Completion and may enforce the
Agency's obligation to issue the same by specific performance.
(e) The Certificate of Completion shall not be evidence of
compliance with City codes and ordinances or satisfaction of any obligation of the
Owner to any holder of a Security Financing Instrument. The Certificate of
Completion is not a notice of completion as referred to in Section 3093 of the
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California Civil Code, nor will it act to terminate the continuing covenants or
conditions subsequent contained in the Agency Grant Deed.
4.5 Harriman Place lmorovement Project.
(a) Within the time established therefor in the Schedule of
Performance, the Agency and the HUB Developer shall prepare, approve and execute a
public improvement scheduling memorandum for the Harriman Place Improvement
Project (the "Harriman Memorandum"). The Harriman Memorandum shall provide for
the coordination of the development of the Harriman Place Improvement Project under
the Harriman Construction Agreement with the development of Phase 1 of the HUB
Project by the HUB Developer. The Agency shall deliver a copy of the fully-executed
Harriman Memorandum to the Owner within three (3) business days following its
execution by the Agency and the HUB Developer. The provisions of this
Section 4.5(a) shall not apply if the Agency and the HUB Developer amend in writing
the HUB DDA to delete Section 2.12 thereof.
(b) Subject to the Agency's confirmation, prior to the expiration of the
Agency Due Diligence Period, that the City has sufficient funds available to undertake
the construction of the Harriman Place Improvement Project, the Agency shall
(i) cause the commencement of the Harriman Place Improvement Project on or before
the date specified therefor in the Schedule of Performance and (ii) cause the Harriman
Place Improvement Project to be constructed and installed in accordance with the
terms, conditions and schedule of completion set forth in the Harriman Construction
Agreement, the Harriman Memorandum and as shown on Exhibit "K", subject to the
provisions of Section 4.5(c), below.
(c) The Agency covenants to the Owner that neither the City nor the
Agency shall approve any change to the new Harriman Place Extension right-of-way
alignment that abuts the Phase 1 HUB Site, or approve any material change to design
elements of the Harriman Place Improvement Project set forth in Exhibit "K", that
would materially and adversely affect access to or from the Development Site or
otherwise materially and adversely affect the interests of the Owner under this
Agreement or with respect to the Development Site or the New Restaurant, without the
prior written approval of the Owner, which approval shall not be unreasonably
withheld; provided, however, that (i) any proposed change to the Harriman Place
Extension or the Harriman Place Improvement Project that would decrease the size of
the Development Site by more than one percent (1%) shall be deemed to materially
and adversely affect the Owner's interest with respect to the Development Site and the
Owner may withhold its consent to any such decrease in its sole and absolute
discretion and (ii) any proposed change to the median break and/or related left-turn
pocket on the Harriman Place Extension (as shown on Exhibit "K" below the word
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"PLACE") shall be deemed to materially and adversely affect the Owner's interest with
respect to the Development Site and the Owner may withhold its consent to any such
change in its sole and absolute discretion.
(d) The Agency acknowledges and agrees that the Owner shall have
no responsibility whatsoever with respect to the construction and installation of, or
payment for, any portion or aspect of the Harriman Place Improvement Project.
4.6 Rosewood Drive Access. The Agency covenants and agrees that (a) the
Agency shall not initiate, join in, support, permit or consent to, either directly or
indirectly, the vacation of all or any portion of the Rosewood Drive Segment as a
public street or otherwise prevent the use of the Rosewood Drive Segment for access
to and from the Existing Restaurant via Tippecanoe Avenue until the earlier of (i) the
date on which the New Restaurant opens for business or (ii) the Owner License
Expiration Date and (b) if this Agreement terminates and the Closing does not occur
for any reason, the Agency shall not initiate, join in, support, permit or consent to,
either directly or indirectly, the vacation of all or any portion of the Rosewood Drive
Segment or otherwise prevent the use of the Rosewood Drive Segment for access to
and from the Existing Restaurant via Tippecanoe Avenue.
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ARTICLE 5
USE OF THE SITE
5.1 Uses. The Owner covenants and agrees that the Development Site shall
be. improved and developed in accordance with the Scope of Development. The
covenant in this Section 5.1 shall remain in effect until the earlier of the date on which
the Certificate of Completion is issued or the fifth (5th) anniversary of the Closing.
5.2 Maintenance of the Develonment Site. The Owner covenants and agrees
to maintain the Development Site in a good condition during the construction of the
Improvements free from any accumulation of debris or waste material, subject to
normal construction job-site conditions. If the Owner fails to perform the maintenance
required by this Agreement, the Agency shall notify the Owner in writing of such
failure and the Owner shall thereafter have a period of thirty (30) days from receipt of
such notice to cure such failure. If the Owner fails to cure or recondition within the
specified time, the Agency shall have the right, but not the obligation, to enter the
Development Site and undertake any maintenance activities reasonably determined to
be necessary by the Agency. The Owner shall reimburse the Agency for all reasonable
costs incurred by the Agency to carry out such maintenance activities within ten (10)
e business days following the Agency's written demand, together with reasonable
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supporting documentation regarding such costs. The covenants contained in this
Section 5.2 shall remain in effect until the issuance of the Certificate of Completion.
5.3 Form of Nondiscrimination and Nonsegregation Clauses. All deeds,
leases or contracts pertaining to the Agency Sale Property must contain or be subject to
substantially the following nondiscrimination and nonsegregation clauses:
(a) In deeds: "The grantee covenants by and for itself, its successors
and assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of persons, on account of
race, color, creed, religion, sex, marital status, national origin or ancestry, in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein
conveyed, nor shall the grantee or any person claiming under or through the grantee
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the property herein conveyed. The foregoing
covenants shall run with the land."
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(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 or ancestry, in the
leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property
herein leased nor shall the lessee itself, or any person claiming under or through the
lessee, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, sub lessees, subtenants or vendees in the property herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the property, nor shall the transferee
or any person claiming under or through the transferee, establish or 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 property."
5.4 Environmental Indemnities Re Agencv Sale Property.
(a) Agency Indemnity. Without limiting the generality of the
e indemnification in the Agency's favor set forth in Section 7.9(a). below, the Owner
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hereby agrees to indeIlUlify, protect, hold harmless and defend (by counsel reasonably
satisfactory to the Agency) the Agency Parties from and against any and all Loss
arising directly or indirectly, in whole or in part, out of (i) the failure of any Owner
Party to comply with any Environmental Law relating in any way whatsoever to the
handling, treatment, presence, removal, storage, decontamination, cleanup,
transportation or disposal of Hazardous Substances into, on, under or from the Agency
Sale Property, (ii) the presence in, on or under the Agency Sale Property of any
Hazardous Substances or any releases or discharges of any Hazardous Substances into,
on, under or from the Agency Sale Property, or (iii) the migration of any Hazardous
Substances into, onto or under the Agency Sale Property from offsite sources, other
than real property or improvements owned by the Agency, the City or the HUB
Developer, in each case subseauent to the Closing. The foregoing indemnity shall
further apply to any residual contamination on or under the Agency Sale Property
affecting any natural resources and to any contamination of any property or natural
resources arising in connection with the generation, use, handling, treatment, storage,
transport or disposal of any such Hazardous Substances, and irrespective of whether
any of such activities were or will be undertaken in accordance with Environmental
Laws. This indeIlUlification of the Agency Parties by the Owner includes, without
limitation, costs incurred with respect to any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because of Hazardous Substances present
or alleged to be present in the soil or groundwater in, or under the Agency Sale
Property subsequent to the Closing. The indemnity described in the preceding two
sentences shall not apply with respect to any Hazardous Substances located in, on or
under the Agency Sale Property or the Existing Agency Improvements prior to the
Closing. This subsection (a) shall survive the expiration or earlier termination of this
Agreement.
(b) Owner Indemnitv. Without limiting the generality of the
indemnification in the Owner's favor set forth in Section 7.9(b), below, the Agency
hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably
satisfactory to the Agency) the Owner Parties from and against any and all Loss arising
directly or indirectly, in whole or in part, out of (i) the failure of any Agency Party to
comply with any Environmental Law relating in any way whatsoever to the handling,
treatment, presence, removal, storage, decontamination, cleanup, transportation or
disposal of Hazardous Substances into, on, under or from the Agency Sale Property or
the Existing Agency Improvements, (ii) the presence in, on or under the Agency Sale
Property or the Existing Agency Improvements of any Hazardous Substances or any
releases or discharges of any Hazardous Substances into, on, under or from the Agency
Sale Property or the Existing Agency Improvements, or (iii) the migration of any
Hazardous Substances into, onto or under the Agency Sale Property or the Existing
Agency Improvements from offsite sources, in each case prior to the Closing. The
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foregoing indemnity shall further apply to any residual contamination in, on or under
the Agency Sale Property affecting any natural resources and to any contamination of
any property or natural resources arising in connection with the generation, use,
handling, treatment, storage, transport or disposal of any such Hazardous Substances,
and irrespective of whether any of such activities were or will be undertaken in
accordance with Environmental Laws. This indemnification of the Owner Parties by
the Agency includes, without limitation, costs incurred with respect to any
investigation of site conditions or any cleanup, remedial, removal or restoration work
required by any federal, state or local governmental agency or political subdivision
because of Hazardous Substances present or alleged to be present in the soil or
groundwater in, on or under the Agency Sale Property or the Existing Agency
Improvements prior to the Closing. The indemnity described in the preceding two
sentences shall not apply with respect to any Hazardous Substances first located in, on
or under the Agency Sale Property subsequent to the Closing. This subsection (b)
shall survive the expiration or earlier termination of this Agreement.
5.5 Environmental Indemnities Re Owner Sale ProDerty.
(a) Agency Indemnitv. Without limiting the generality of the
indemnification in the Agency's favor set forth in Section 7.9(a), below, the Owner
hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably
satisfactory to the Agency) the Agency Parties from and against any and all Loss
arising directly or indirectly, in whole or in part, out of (i) the failure of any Owner
Party to comply with any Environmental Law relating in any way whatsoever to the
handling, treatment, presence, removal, storage, decontamination, cleanup, trans-
portation or disposal of Hazardous Substances into, on, under or from the Owner Sale
Property, (ii) the presence in, on or under the Owner Sale Property of any Hazardous
Substances or any releases or discharges of any Hazardous Substances into, on, under
or from the Owner Sale Property, or (iii) the migration of any Hazardous Substances
into, onto or under the Owner Sale Property from offsite sources, other than real
property or improvements owned by the Agency, the City or the HUB Developer, in
each case prior to the termination of the Owner License. The foregoing indemnity
shall further apply to any residual contamination on or under the Owner Sale Property
affecting any natural resources and to any contamination of any property or natural
resources arising in connection with the generation, use, handling, treatment, storage,
transport or disposal of any such Hazardous Substances, and irrespective of whether
any of such activities were or will be undertaken in accordance with Environmental
Laws. This indemnification of the Agency Parties by the Owner includes, without
limitation, costs incurred with respect to any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any federal, state or local
governmental agency or political subdivision because of Hazardous Substances present
or alleged to be present in the soil or groundwater in, or under the Owner Sale
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Property prior to the tennination of the Owner License. The indemnity described in
the preceding two sentences shall not apply with respect to any Hazardous Substances
fIrst located in, on or under the Owner Sale Property subsequent to the tennination of
the Owner License. This subsection (a) shall survive the expiration or earlier
tennination of this Agreement.
(b) Owner Indemnity. Without limiting the generality of the
indemnifIcation in the Owner's favor set forth in Section 7.9(b), below, the Agency
hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably
satisfactory to the Agency) the Owner Parties from and against any and all Loss arising
directly or indirectly, in whole or in part, out of (i) the failure of any Agency Party to
comply with any Environmental Law relating in any way whatsoever to the handling,
treatment, presence, removal, storage, decontamination, cleanup, transportation or
disposal of Hazardous Substances into, on, under or from the Owner Sale Property,
(ii) the presence in, on or under the Owner Sale Property of any Hazardous Substances
or any releases or discharges of any Hazardous Substances into, on, under or from the
Owner Sale Property, or (iii) the migration of any Hazardous Substances into, onto or
under the Owner Sale Property from off site sources, in each case subsequent to the
tennination of the Owner License. The foregoing indemnity shall further apply to any
residual contamination in, on or under the Owner Sale Property affecting any natural
resources and to any contamination of any property or natural resources arising in
connection with the generation, use, handling, treatment, storage, transport or disposal
of any such Hazardous Substances, and irrespective of whether any of such activities
were or will be undertaken in accordance with Environmeptal Laws. This indemni-
fIcation of the Owner Parties by the Agency includes, without limitation, costs
incurred with respect to any investigation of site conditions or any cleanup, remedial,
removal or restoration work required by any federal, state or local goverrunental
agency or political subdivision because of Hazardous Substances present or alleged to
be present in the soil or groundwater in, on or under the Owner Sale Property
subseauent to the tennination of the Owner License. The indemnity described in the
preceding two sentences shall not apply with respect to any Hazardous Substances
located in, on or under the Owner Sale Property prior to the tennination of the Owner
License. This subsection (b) shall survive the expiration or earlier tennination of this
Agreement.
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ARTICLE 6
DEFAULTS. REMEDIES AND TERMINATION
6.1 General Apolicabilitv. The provisions of this Article Q shall govern the
Agency's and the Owner's remedies for breach or default of this Agreement.
6.2 Default of the Agencv.
(a) The failure or delay by the Agency to perform any term or
provision of this Agreement, including without limitation the Agency's failure to
convey the Agency Sale Property to the Owner, or accept title to the Owner Sale
Property under a tender of conveyance by the Owner, within the time and in the
manner established therefor in this Agreement shall constitute a default under this
Agreement ("Agency Default").
(b) The Owner shall give written notice of any Agency Default to the
Agency specifying the Agency Default ("Notice of Default"). Upon receipt of a
Notice of Default, the Agency shall have thirty (30) days ("Cure Period") to cure, or
cause the City to cure, the applicable Agency Default; provided, however, that if any
non-monetary Agency Default is not reasonably susceptible of cure within such thirty
(30)-day period, then provided that the Agency commences to cure, or causes the City
to cure, such Agency Default promptly upon receipt of the Notice of Default and
thereafter diligently and continuously prosecutes such cure to completion, the Cure
Period shall be extended by the amount of time reasonably necessary to cure such
Agency Default, provided that in no event shall the Cure Period exceed ninety (90)
days. Notwithstanding anything to the contrary in this Section 6.2, the occurrence of a
Bankruptcy/Dissolution Event with respect to the Agency or the City shall constitute
an Agency Default and there shall be no Cure Period applicable thereto.
(c) The failure or delay in giving such notice shall not constitute a
waiver of any Agency Default, nor shall it change the time of such Agency Default.
No failure or delay by the Owner in asserting any of its rights or remedies as to any
Agency Default shall operate as a waiver of any such rights or remedies or deprive the
Owner of its rights to institute and maintain any action or proceedings which it may
deem necessary to protect, assert or enforce any such rights or remedies.
(d) In the event that an Agency Default is not cured within the
applicable Cure Period, or inunediately following an Agency Default for which no
Cure Period is provided in this Section 6.2, the Owner shall have the right, at its
option, to exercise any and all of its rights and remedies at law, in equity or otherwise,
including without limitation the right to (i) cancel the Escrow and terminate this
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Agreement by written notice to the Agency and Escrow Holder pursuant to
Section 3.IO(b), above, (ii) institute legal action for specific performance, the recovery
of damages and/or to cure, correct or remedy the applicable Agency Default, and/or
(iii) except as otherwise expressly provided in this Agreement, to obtain any other
remedy consistent with the purpose of this Agreement.
6.3 Default of the Owner.
(a) Each of the following events shall constitute a default by the
Owner under this Agreement ("Owner Default"):
(i) The Owner is obligated to, but does not, convey the Owner
Sale Property to the Agency or accept title to the Agency Sale Property under a
tender of conveyance by the Agency pursuant to this Agreement, provided that
all conditions precedent to the Owner's conveyance of the Owner Sale Property
and acceptance of the Agency Sale Property at the Closing have been satisfied,
including without limitation the Owner's Conditions;
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(ii) The Owner fails to commence construction of the
Improvements on or before the New Restaurant Commencement Date, subject
to the provisions of Section 7.5, below;
(iii) The Owner abandons or suspends construction of the
Improvements prior to completion of such construction for a period of sixty
(60) consecutive days after written notice by the Agency of such abandonment
or suspension (except for the Punchlist Items), subject to the provisions of
Section 7.5, below;
(iv) The Owner fails to complete the construction of the
Improvements (except for the Punchlist Items) within two hundred seventy
(270) days following the New Restaurant Commencement Date, subject to the
provisions of Section 7.5, below;
(v) A Transfer occurs either voluntarily or involuntarily in
violation of Section 4.3, above; or
(vi) The Owner breaches any other material provision of this
Agreement.
(b) The Agency shall give a Notice of Default to the Owner of any
Owner Default and specifying the Owner Default. Upon receipt of a Notice of
e Default, the Owner shall have a Cure Period of thirty (30) days to cure the applicable
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Owner Default; provided, however, that if any non-monetary Owner Default is not
reasonably susceptible of cure within such thirty (30)-day period, then provided that
the Owner commences to cure such Owner Default promptly upon receipt of the
Notice of Default and thereafter diligently and continuously prosecutes such cure to
completion, the Cure Period shall be extended by the amount of time reasonably
necessary to cure such Owner Default, but in no event shall the Cure Period exceed
ninety (90) days. Notwithstanding anything to the contrary in this Section 6.3, the
occurrence of a Bankruptcy/Dissolution Event with respect to the Owner shall
constitute an Agency Default and there shall be no Cure Period applicable thereto.
(c) The failure or delay in giving such notice shall not constitute a
waiver of any Owner Default, nor shall it change the time of such Owner Default. No
failure or delay by the Agency in asserting any of its rights or remedies as to any
Owner Default shall operate as a waiver of any such rights or remedies or deprive the
Agency of its rights to institute and maintain any action or proceedings which it may
deem necessary to protect, assert or enforce any such rights or remedies.
(d) In the event that a Owner Default is not cured within the
applicable Cure Period, or immediately following a Owner Default for which no Cure
Period is provided in this Section 6.3, the Agency shall have the right, at its option, to
exercise any and all of its rights and remedies at law or in equity, including without
limitation the right to (i) cancel the Escrow and terminate this Agreement by written
notice to the Owner and Escrow Holder pursuant to Section 3.1 O( a ), above,
(ii) institute legal action for specific performance, the recovery of damages and/or to
cure, correct or remedy the applicable Owner Default, or (iii) except as otherwise
. expressly provided in this Agreement, to obtain any other remedy consistent with the
purpose of this Agreement.
6.4 Acceptance of Service of Process. In the event that any legal action is
commenced by the Owner against the Agency, service of process on the Agency shall
be made by personal service upon the Chairman, Executive Director or Secretary of
the Agency, or in such other manner as may be provided by law. In the event that any
legal action is commenced by the Agency against the Owner, service of process on the
Owner shall be made by personal service upon one of the officers of Owner or in such
other manner as may be provided by law.
6.5 Rights and Remedies are Cumulative. The rights and remedies of the
parties set forth in this Article Q are cumulative and the exercise by either Party of one
or more of such rights or remedies does not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other
default by the other Party.
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6.6 Remedies Re Existing Restaurant. The Owner reserves all of its rights
and remedies at law, in equity or otherwise with respect to any act or omission by the
Agency, the City, the IVDA and/or any other Person that interferes in any way with
the Owner's operation of the Existing Restaurant, including without limitation any
interference with access to or from the Existing Restaurant via Tippecanoe Avenue or
Rosewood Drive, whether or not such act or omission constitutes an Agency Default.
ARTICLE 7
GENERAL PROVISIONS
7.1 Notices. Demands and Communications Between the Parties.
(a) Any and all notices, demands or communications between the
Agency and the Owner pursuant to or as required by this Agreement shall be
sufficiently given if, and shall not be deemed given unless, in writing and delivered
personally, delivered by courier or by registered or certified United States mail,
postage prepaid, return receipt requested, to the following addresses:
If to Owner:
!nON-Out Burgers
Real Estate Department
13502 Hamburger Lane
Baldwin Park, California 91706-5885
Attention: Real Estate Finance Manager
Fax No.: (626) 338-9173
with a copy to:
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
Attention: Jack H. Rubens, Esq.
Fax No.: (213) 620-1398
If to Agency:
Redevelopment Agency of the City
of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attention: Executive Director
Fax No.: (909) 888-9413
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with a copy to:
Lewis, D'Amato, Brisbois & Bisgaard, w>
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Attention: Timothy J. Sabo, Esq.
Fax No.: (909) 387-1138
Any notice, demand or communication shall be deemed given, received, made or
communicated on the date personal delivery is effected or, if mailed or sent by courier
in the manner specified above, on the delivery date or date delivery is refused by the
addressee, as shown on the return receipt. Notices may also be sent by facsimile,
which shall be deemed delivered upon actual receipt (except if a facsimile is sent on a
non-business day or after 5:00 p.m. on a business day, in which case the facsimile
shall be deemed delivered on the next business day), and receipt shall be
telephonically confirmed by the sending party. Addresses, facsimile numbers and
parties for notice may be changed from time to time by written notice to all other
parties in accordance with this Section 7.1.
7.2 Conflict oflnterest. No member, official or employee of the Agency
having any conflict of interest, direct or indirect, related to this Agreement or the
development of the Development Site may participate in any decision relating to this
Agreement. Each Party represents and warrants that it does not know of any such
conflict of interest.
7.3 Warranty Against Payment of Consideration for Agreement. Each Party
represents and warrants that it has not paid or given, and will not payor give, any third
party any money or other consideration for obtaining this Agreement. Third parties,
for the purposes of this Section, shall not include persons to whom fees are paid for
professional services if rendered by attorneys, financial consultants, accountants,
engineers, architects and the like when such fees are considered necessary by the
Owner or the Agency, as applicable.
7.4 Nonliability of Agency Officials and Employees. No member, official or
employee of the Agency shall be personally liable to the Owner, or any successor in
interest, in the event of any Agency Default or for any amount that may become due to
the Owner or to its successor, or with respect to any obligations of the Agency under
the terms of this Agreement, except for the gross negligence or willful misconduct of
such member, officer or employee.
7.5 Forced Delav: Extension of Time of Performance. In addition to the
specific provisions of this Agreement, performance by either Party hereunder shall not
be deemed to be in default, or considered to be in default, where delays or defaults are
due to the following: war; insurrection; strikes; lockouts; riots; floods; earthquakes;
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fIres; casualties; acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes or lack of transportation; governmental restrictions or
priority; litigation (including lawsuits fIled by third parties concerning or arising out of
this Agreement); weather or soils conditions that necessitate delay; inability to secure
necessary labor, materials or tools; delays of any contractors, subcontractor or supplier
that are not attributable to the fault of the Party claiming an extension of time; acts or
failure to act of any public or governmental entity (provided that acts or failure to act
of the City or Agency shall not extend the time for the Agency to act under this
Agreement except for delays associated with injunctions or court orders including,
without limitation, lawsuits pertaining to the approval of this Agreement); acts of the
other Party; or any other causes (other than the Owner's inability to obtain fInancing
for the Improvements) beyond the reasonable control or without the fault of the Party
claiming an extension of time to perform. An extension of time for any such force
majeure cause will be for the period of the delay and shall commence on the date of
occurrence of the delay. An extension of time for any such cause shall be deemed
granted if written notice by the Party claiming such extension is sent to the other
within ten (10) business days from the date the Party seeking the extension fIrst
discovered the cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of the Agency and the Owner.
The inability of the Owner to obtain a satisfactory commitment from a
construction lender for construction of the Improvements shall not be a force majeure
event or other ground for the assertion of the existence of a delay under this
Section 7.5. Changes in general economic conditions that may have provided a basis
for entering into this Agreement and that occur after the execution of this Agreement
shall not be force majeure events and shall not provide any Party with grounds for
asserting the existence of a delay in the performance of any covenant or undertaking
arising under this Agreement. Each party expressly assumes the risk that changes in
general economic conditions could impose an inconvenience or hardship on the
continued performance of such Party under this Agreement, but that such
inconvenience or hardship is not a force majeure event and does not excuse the
performance by such Party of its obligations under this Agreement.
7.6 Inspection of Books and Records. The Agency shall have the right, at
reasonable times, on a confIdential basis, and at its sole cost and expense, to inspect
the books and records of the Owner pertaining to the Development as reasonably
necessary, but only to the extent reasonably necessary, for the Agency to enforce its
rights under this Agreement. Matters discovered by the Agency may not be disclosed
to third parties unless required by law or unless otherwise resulting from or related to
the pursuit of any remedies or the assertion of any rights of the Agency under this
Agreement. The Owner shall also have the right, at reasonable times, on a confIdential
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basis, and at its sole cost and expense, to inspect the books and records of the Agency
pertaining to the Development and the Agency's obligations under this Agreement.
7.7 Approvals.
(a) Approvals required from the Agency or the Owner, or any
governing bodies, officers, agents or employees of either the Agency or the Owner,
may not be unreasonably withheld and approval or disapproval must be given within
the applicable time period set forth in the Schedule of Performance or elsewhere in this
Agreement or, ifno time is given; within a reasonable time.
(b) The Executive Director of the Agency is authorized to sign, on his
or her own authority, the Certificate of Completion and amendments to this Agreement
that are of routine or technical nature, including, but not limited to, minor adjustments
to the Schedule of Performance, extensions of time to perform obligations under this
Agreement, escrow instructions, and any other documents necessary to carry out the
terms of this Agreement.
7.8 Real Estate Commissions. Neither Party shall be responsible to the other
for any real estate commissions or brokerage fees that may arise from this Agreement
or otherwise be incurred by the other Party. The Agency is not be liable for any real
estate commissions, brokerage fees or fmder fees that may arise from or be related to
this Agreement. The Owner must pay any fees or commissions or other expenses
related to its retention or employment of real estate brokers, agents or other
professionals.
7.9 Indenmities.
(a) The Owner shall defend, indenmify and hold the Agency Parties
free and harmless from and against any and all Loss arising from or relating to (i) the
Owner's ownership and use of the Owner Sale Property prior to the Closing, (ii) any
untruth of the representations and warranties made by the Owner in this Agreement
and (iii) any Owner Default. The indenmification obligation set forth in the preceding
sentence shall not apply to (A) any costs or expenses not reasonably incurred by the
applicable Agency Party or (B) any Loss or portion thereof resulting from the
negligence or willful misconduct of any Agency Party. The Owner's obligations under
this Section 7. 9( a) shall survive for a period of three (3) years following the issuance
of the Certificate of Completion.
(b) The Agency shall defend, indemnify and hold the Owner Parties
free and harmless from and against any and all Loss arising from or relating to (i) the
Agency's ownership and use of the Agency Sale Property prior to the Closing, (ii) any
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untruth of the representations and warranties made by the Agency in this Agreement
and (iii) any Agency Default. The indemnification obligation set forth in the preceding
sentence shall not apply to (A) any costs or expenses not reasonably incurred by the
applicable OWner Party or (B) any Loss or portion thereof resulting from the
negligence or willful misconduct of any Owner Party. The Agency's obligations under
this Section 7. 9(b) shall survive for a period of three (3) years following the issuance
of the Certificate of Completion.
7.10 Release of Owner from Liabilitv. Notwithstanding any provision of this
Agreement to the contrary, the Owner is relieved of any and all liability for the
obligations of the Owner regarding the Development Site when the Certificate of
Completion is issued by the Agency under this Agreement, other than any covenants
and obligations provided by the Agency Grant Deed by which the Agency Sale
Property is conveyed to the Owner. .
7.11 Attorneys' Fees. If either party to this Agreement files any action or
brings any action or proceeding against the other arising out of this Agreement, or is
made a party to any action or proceeding brought by Escrow Holder, then as between
the Owner and the Agency, the prevailing party shall be entitled to recover as an
element of its costs of suit, and not as damages, its reasonable attorneys' fees and costs
as determined by the court in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys' fees in a court of competent jurisdiction.
The reasonable costs, salary and expenses of the City Attorney and members of his
office in enforcing this Agreement are considered "attorneys' fees" for purposes of this
Agreement.
7.12 Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
7.13 Entire Agreement. This Agreement is executed in four (4) duplicate
originals, each of which is deemed to be an original. This Agreement includes
66 pages and 16 Exhibits, which constitute the entire understanding and agreement of
the Parties. 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 portion of the Development Site and the
Development thereof.
7.14 Provisions not Merged with Deeds. None of the terms, covenants,
agreements or conditions set forth in this Agreement is intended to or shall be merged
with the Agency Grant Deed or the Owner Grant Deed, and neither the Agency Grant
LA:LRE\AGRWLL\70284363.10
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Deed nor the OMler Grant Deed shall be deemed to affect or impair the provisions and
covenants of this Agreement.
7.15 Amendments and Waivers. All waivers of the provisions of this
Agreement and all amendments or modifications to this Agreement must be in writing
and signed by the Agency and the OMler.
7.16 Headings. The paragraph headings and captions in this Agreement are
for convenience only and shall not limit or defme the contents of this Agreement.
7.17 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
7.18 Severability. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall continue in full force and effect
unless the rights and obligations of the Parties have been materially altered or abridged
by such invalidation, voiding or unenforceability.
7.19 Parties Not Co-Venturers. Nothing in this Agreement is intended to or
does establish the Parties as partners, co-venturers, or principal and agent with one
another.
7.20 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.21 Agency Approval. Except where approval by the Agency Board is
expressly described, all references in this Agreement to Agency approval shall mean
approval by the Agency Executive Director.
7.22 Identity and Authority of the Parties.
(a) The person executing this Agreement on behalf of the OMler does
hereby covenant, represent and warrant: that the OMler is and shall remain in good
standing and qualified to do business in the State of California; that the OMler has full
right, power and authority to enter into this Agreement and to carry out all actions on
its part contemplated by this Agreement; that the execution and delivery of this
Agreement were duly authorized by proper action of the OMler and no consent,
authorization or approval of any person is necessary in connection with such execution
and delivery or to carry out all actions on the OMler's part contemplated by this
Agreement, except as have been obtained and are in full force and effect; that the
person executing this Agreement on behalf of the OMler has full corporate authority to
LkLRE\AGR\VLL\70284363.10
031502
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do so; and that this Agreement constitutes the valid, binding and enforceable obligation
of the Owner.
(b) The person executing this Agreement on behalf of the Agency
does hereby covenant, represent and warrant: that the Agency is and shall remain in
good standing and qualified to do business in the State of California; that the Agency
has full right, power and authority to enter into this Agreement and to carry out all
actions on its part contemplated by this Agreement; that the execution and delivery of
this Agreement were duly authorized by proper action of the Agency and no consent,
authorization or approval of any person is necessary in connection with such execution
and delivery or to carry out all actions on the Agency's part contemplated by this
Agreement, except as have been obtained and are in full force and effect; that the
person executing this Agreement on behalf of the Agency has full corporate authority
to do so; and that this Agreement constitutes the valid, binding and enforceable
obligation of the Agency.
7.23 Further Assurances. From time to time following the Closing, each Party
shall, if requested by the other Party, make, execute and deliver to such other Party any
such additional deeds, assignments, bills of sale and other instruments, documents and
agreements as may be reasonably necessary or appropriate to confirm the transfer to
such other Party of all right, title and interest in and to the real property transferred to
such other Party pursuant to the terms of this Agreement, including any necessary
consents to any such instruments and agreements by third parties.
7.24 Exhibits. All Exhibits attached hereto are incorporated herein by this
reference and made a part of this Agreement.
7.25 Time for Acceptance of Agreement bv Agencv. The acceptance of this
Agreement by the Agency is subject to the approval of the same by a majority vote of
its governing board following a public hearing. The authorized signatories of the
Parties shall execute this Agreement within a reasonable period following such
approval by the governing board of the Agency, provided that this Agreement may be
LA:LRE\AGRWLL\70284363.10
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withdrawn at any time by the Owner prior to the Owner's execution of this Agreement
pursuant to written notice to the Agency.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
"Agency":
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO,
a public body corporate and politic
By
Gary Van Osdel,
Executive Director
APPROVED AS TO FORM:
Agency Special Counsel
"Owner":
IN-N-OUT BURGERS,
a California corporation
By
(Printed Name and Title)
LkLREIAGRIVLL\70284363.10
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EXHIBIT "A"
LEGAL DESCRIPTION OF DEVELOPMENT SITE
THOSE PORTIONS OF LOTS 21 THROUGH 27,58 AND 59 OF TRACT NO. 2743, IN THE
CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER PLAT RECORDED IN BOOK 38, PAGE 47, OF MAPS, RECORDS
OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTER LINES OF TIPPECANOE
A VENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 276.85 FEET ALONG SAID CENTERLINE OF LAURELWOOD DRIVE;
THENCE SOUTH 00011 '20" WEST 42.00 FEET, PERPENDICULAR TO SAID
CENTERUNE, TO A POINT ON A LINE THAT IS PARALLEL WITH AND DISTANT
SOUTHERLY 42.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE
OF LAURELWOOD DRIVE, SAID POINT BEING THE TRUE POINT OF BEGINNING;
THENCE SOUTH 00011'31" WEST ]42.31 FEET; THENCE SOUTH 42010'55" EAST
145.98 FEET; THENCE EAST 115.61 FEET; THENCE NORTH 01016'44" WEST 174.27
FEET TO A LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 68.00 FEET,
MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF TIPPECANOE
AVENUE; THENCE NORTH 00008'00" WEST 50.71 FEET ALONG SAID PARALLEL
LINE; THENCE NORTH 44058'20" WEST 35.26 FEET TO SAID LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET FROM THE CENTERLINE
OF LAURELWOOD DRIVE: THENCE NORTH 89048'40" WEST 184.23 FEET ALONG
SAID PAR.A.LLEL UNE TO THE TRUE POINT OF BEGINNING.
EXHIBIT "A"
Page 1 of 1
~
~~
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:J:Q.
<&
-I
TITlE:
r--------------~--~-----~--T------- ~-~--------~--~----l
I
--I-
I 68'
! . '. _______-'-_ __________~.~_:;.Jr-
.. - (POR":" ")"Bt AB!:N6oN(~L/-~>~::~ _::~ 'c_--'~Fc NO:';~4i2foof((~"~~~4.W~!~~~~--Jp.O.c.
/. , . 1. 1 l2
.....~/ >/ .....-------------- -----::. "~',,,//;>' / ,<,,/ I
" / . / ..,- ...,,/--~_....., 68'
/"-: ".' //".... .=~ '../':,',,/ #V".:/" 11
"/ ,/ 0'" - - Il .
/ /- 0- /~O~t,'J::_
,/ , -/ Z ,.' ~"~~ "/...
I ,,/'" '.~ /. /:"
I ,,::'.:./ " "'/' <,..'-/ /~.
I ...../ t-:Vf r\ ""~/,.. /22~'.rO-
/' ~'r/, ,/ >...., / %/
1 ~-;;:~~~ ;.....< .' \ ..~ '~'l ','~ ~j:t ~ / 1~~~~1~7
r ~~. /" \ '
;.-- - - . /....../ _ u \
. ~:.-""" __\ ROSEWOOD DRIvE
r- ------,\ .__.Un_ -~ . ._..._____JSTREET_~~~BE ~_~~~?N~oj
I I,
: \
I \
I \
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I \
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I \
I \
I \
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: --~--- .~~~~~
I
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EXHIBIT "A-I"
DEPICTION OF DEVELOPMENT SITE
. lAVRELYI()()() DRIvE. PER
TRACT No. 2].113. ....B. 38/47
- __u - r
--- - --I.
--- I
I
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)
/
J
--
---
--
--
--
---
or - 'II~'(
R\(;t\1 -
---
COURSE DATA
--
---
L 1 NOO'OB'OO~w
50.71'
L2 N44"5B"20.w
35.26'
NW
THE HUB
CORNER TIPPECANOE
SAN BERNARDINO.
D" INDICATES SUBJECT PARCEL
. " AREA - 1.082 ACRES
AND
CA
1-10
I'':~e~. ~~~~1~~~~ N
162 I'blh I.W1lai1 AII9Ul. 9Ae ro . Ll:lin:1 CA gua; . ~-m7 1"= 200'
DATE OF PREPARATION: 2/15/02
EXHIBIT "A-I"
Page I of I
...
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JOB NO. 00313
U: \OO-.lt.l\MIl9Pin9\lC'901S\In-N-0u1_8.11~.dw9
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EXHIBIT "B"
LEGAL DESCRIPTION OF EXISTING OWNER SITE
THOSE PORTIONS OF LOTS 23, 24, 25 AND 79 OF TRACT NO. 2743, IN THE CITY OF
SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS
PER PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47, RECORDS OF SAID
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID LOT 23; THENCE NORTH
89048'36" WEST 20.00 FEET ALONG THE NORTHERLY LINE OF SAID LOT 23 TO A
POINT OF INTERSECTION WITH A LINE THAT IS PARALLEL WITH AND DISTANT
WESTERLY 50.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE
OF TIPPECANOE A VENUE, 60.00 FEET WIDE, AS SHOWN ON SAID MAP, SAID POINT
OF INTERSECTION BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH
00008'00" EAST 155.03 FEET ALONG SAID PARALLEL LINE, ALSO BEING THE
WESTERLY LINE OF THOSE PORTIONS OF SAID LOT 23, 24, 25 AND 79, AS
CONVEYED TO THE COUNTY OF SAN BERNARDINO IN A GRANT DEED RECORDED
IN BOOK 7126, PAGE 422 OF OFFICIAL RECORDS OF SAID COUNTY, TO THE
BEGINNING OF A CURVE CONCA VE NORTHWESTERLY, HAVING A RADIUS OF
20.00 FEET; THENCE SOUTHWESTERLY 31.53 FEET ALONG SAID CURVE AND THE
NORTHWESTERLY LINE OF SAID PORTION OF LOTS 25 AND 79 CONVEYED TO THE
COUNTY OF SAN BERNARDINO, THROUGH A CENTRAL ANGLE OF 90019'37" TO A
LINE THAT IS PARALLEL WITH AND DISTANT NORTHERLY 30.00 FEET, MEASURED
A T RIGHT ANGLES, FROM THE CENTERLINE OF ROSEWOOD DRIVE. 50.00 FEET
WIDE, AS SHOWN ON SAID MAP, SAID PARALLEL LINE ALSO BEING THE
NORTHERLY LINE OF THAT PORTION OF LOTS 79 AND 25 CONVEYED TO THE
COUNTY OF SAN BERNARDINO IN SAID GRANT DEED; THENCE NORTH 89048'23"
WEST 1 20~88 FEET ALONG SAID PARALLEL LINE TO THE WESTERLY LINE OF SAID
LOT 25: THENCE NORTH 00001'58" WEST 175.14 FEET ALONG SAID WESTERLY
LINE OF LOT 25 AND THE WESTERLY LINES OF LOTS 24 AND 23 TO THE
NORTHWEST CORNER OF SAID LOT 23: THENCE SOUTH 89048'36" EAST 141.00
FEET ALONG THE NORTHERLY LINE OF SAID LOT 23 TO THE TRUE POINT OF
8EG1I'\NING.
EXHIBIT "B"
Page 1 of 1
EXHIBIT "B-1"
DEPICTION OF EXISTING OWNER SITE
lAURElWOOO DmVE. PER
TRACT No. 2743. w.B. 38/47
~
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1
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I' '. , I r;
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..(PORiiONX6~~~_~~~NOON._ . EO) _ ...
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",/ .,/".' ----------------- -,"""'7------~ coo
.: /',/ : --:--- I" 'I IZN
I / / .// I TPO.aU I
/ ~ ",/ J ...
: // /~..../ : reT / I ~JRNER
.: // / // . \ :,_, '/. I ,SO" LOT 2'
I '. .... ...6: /- , 1<::'/;;/ /ll'~ :~
I' . //~y: /' \ , /~~~..,/ "
U:-~~":)A i . \" '< " "~~':~~ ~ :~
t'\~ /: \ '/. ,/ i
--.... __n_;.,'""//' \ '" -.- '.__m.. ROsEWOOO'-ORIVE-- '. g L - C1
,-----..,_\::.._:.__u '1' n, !SiREET TOBE ASANOONED) ."----=-----l-,.-',...
I I, : I 0
: \--\ :~
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I '\ I ~
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I \ I
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'"
COORS!" DATA'
---
--
--
--
Ll NB9'48'J6~w
141.00'
l2 NOO-o7'5ij.w
175.14'
U N89".8'2J&W
120.88'
L 4 NOO"08'OO.w
155.0'}'
TI11.E:
THE HUB
NW CORNER TIPPECANOE
SAN BERNARDINO.
..... Hall & FOreman, Inc.
... ~ Civil Engineering. Planning . StA'veying . PubliC Works
162 N:rlh t.bJ1lai'l AYlJUl, SJe m ' LI*n1 CA 9lI8'i . rmt'i15l-77T7
CUR\/!: DATA:
C1 0"90"19',}7&
R-20.00'
l-,}'.5J"
r"20.11'
AND
CA
1-10
N
r-7'1INOICA n::s SU8JECT PARCEL
~ AREA'"' 24.607 S.F'.
DATE OF PREPARATION:
'''=200'
JOB NO. 00313
u; \00- J1 J\Uopp~ \Le9Ols \In -N-Out_8.tt \t.fstJn-N- 0,,1.'*-9
2/15/02
EXHIBIT
Page 1 of 1
I
e
e
e
EXHIBIT "c"
LEGAL DESCRIPTION OF OWNER SALE PARCEL
THOSE PORTIONS OF LOTS 25 AND 79 OF TRACT NO. 2743, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47, RECORDS OF SAID COUNTY,
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
AVENUE, 60.00 FEET WIDE, AND LAUREL WOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 276.85 FEET ALONG SAID CENTERLINE; THENCE SOUTH 00011'20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAURELWOOD DRIVE; THENCE SOUTH
0001l'31" WEST 142.31 FEET; THENCE SOUTH 42010'55" EAST 129.74 FEET TO A
POINT ON THE WESTERLY LINE OF SAID LOT 25, SAID POINT BEING THE TRUE
POINT OF BEGINNING; THENCE CONTINUING SOUTH 42010'55" EAST 16.24 FEET;
THENCE EAST ll5.61 FEET; THENCE SOUTH 01016'44" EAST 27.48 FEET TO THE
INTERSECTION OF A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY,
HAVING A RADIUS OF 20.00 FEET, A LINE RADIAL TO SAID INTERSECTION BEARS
SOUTH 17041'28" EAST; THENCE SOUTHWESTERLY 6.24 FEET ALONG SAID NON-
TANGENT CURVE, ALSO BEING THE NORTHWESTERLY LINE OF THAT PORTION
OF SAID LOT 79 CONVEYED TO THE COUNTY OF SAN BERNARDINO IN A GRANT
DEED RECORDED IN BOOK 7126, PAGE 422 OF OFFICIAL RECORDS OF SAID
COUNTY, THROUGH A CENTRAL ANGLE OF 17053'05" TO A LINE THAT IS
PARALLEL WITH AND DISTANT NORTHERLY 30.00 FEET, MEASURED AT RIGHT
ANGLES, FROM THE CENTERLINE OF ROSEWOOD DRIVE, 50.00 FEET WIDE, AS
SHOWN ON SAID MAP, SAID PARALLEL LINE ALSO BEING THE NORTHERLY LINE
OF THAT PORTION OF LOTS 79 AND 25 CONVEYED TO THE COUNTY OF SAN
BERNARDINO IN SAID GRANT DEED; THENCE NORTH 89048'23" WEST 120.88 FEET
ALONG SAID PARALLEL LINE TO THE WESTERLY LINE OF SAID LOT 25; THENCE
NORTH 00007'58" WEST 40.04 FEET ALONG SAID WESTERLY LINE OF LOT 25 TO
THE TRUE POINT OF BEGINNING.
EXHIBIT "c"
Page 1 of 1
EXHIBIT "C-l"
DEPICTION OF OWNER SALE PARCEL
LAUR[tWOOO DRIVE. PER
TRACT No. 27.3. ".8. 38/41
,
I 1---------, ---- -11 :
---;---------1-
I i
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L--=-~PoR~~TO ~- A8AN~D) --~-- ;>:;;-~=-=:~-~=~~~f~~~;~2~-~i:=-.;91~~~--;76~S! ~P.o.c.
, ( -- -- ------T------;;;-/ ~~ -------,--l~ 42.00', -- ---- I
I I I // ; /' _----r-7--T- ------- -,.------'" I I
I. ." - . -- I .... I ' . '\
~-::. 01" i j ~- ' ~ . /1 ~-' ~-;:, ~~ I 1",' i.!l 3D Z:, 2e I~.;;;l 1 :;6 __,_......i I
I k I <;.,. ....9 /.), ,,' - ","" ...- . I " I I
I "/ " ';:<:'Ii I''''
Z // ",," I 'g:!,' .--___~4 I __, b~
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I~: ii~,,~7~/ 1-" - --l-I ~-- --:+Y:~:59! T'~~O'B.]JI' ~'!<
%~ .'. I i").,,/:~~'/. t'{?'L,{ I \ . ,-, I '" 51 5' 5: " i o,,,'<'tt,, __It-l! 1
-! I~. --1,,:"_'-""'/1 "'I' I \ i I I I to l I I
J..---' . t\~ . //. : \ i ~s //' /- l3
- ;;__ ...~O>-"- ----- - -..:::-:-::.\-= - =- - -~___(S;..E~~~ ~':..~O)- - ___. __. _ _ ~4_ ---; _ ,-:
-r I' ;\ I ':! I i !!!r!!~.:!'-1-}1 i'"
1,1 : ." 7, 7' i ~\. t. __ __ i " : 6' ,. GS I." " "___(RAIl,,. ,I 6CII_~1 0
i~
1------------ 1------ T-i:
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I --
I -----
----
L----
~
CUR~ DATA'
CI 6-17"53'05-
R-20.00'
l-6.24'
T-3.1S'
COURSE DATA:
11 N42'O'55-W
16.24'
l2 N90'OO'OO"[
115.61'
LJ NO'16'44-W
27.48'
L4 N89".8'2J-W
120.88'
L5 N(X)"07'58-W
40.04'
TIllE:
NW
THE HUB
CORNER TIPPECANOE
SAN BERNARDINO,
AND
CA
1-10
....Hall & }breman, InC.
... ~ Civil Engine8ling . P1aMing . Surveying , Pubfoc WorkS
Tli2 tblll.bn1ai1 A_ 9Ae OJ . Ll:tn1 CA 917ffi ' ~-m7
1// ,'/. I'NOOCAItS SU8~CT PARCEL
/ AREA _ 3.64' S.F,
N
DATE OF PREPARATION:
2/28/02
1"=200'
EXHIBIT "C-l"
Page 1 of 1
JOB NO. 00313
U: \OO-J13\MoppiAl)\Le9O'S,,"-N-0u1-"'11\Lol-25.",
e
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EXHIBIT "0"
LEGAL DESCRIPTION OF AGENCY SALE PARCEL
THOSE PORTIONS OF LOTS 21, 22, 26, 27, 58 AND 59 OF TRACT NO. 2743, IN THE
CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER PLAT RECORDED IN BOOK 38 OF MAPS, AT PAGE 47,
RECORDS OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
A VENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 276.85 FEET ALONG SAID CENTERLINE; THENCE SOUTH 00011 '20"
WEST 42.00 FEET, PERPENDICULAR TO SAID CENTERLINE, TO A LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID CENTERLINE OF LAURELWOOD DRIVE, SAID POINT BEING
THE TRUE POINT OF BEGINNING; THENCE SOUTH 00011'31" WEST ]42.31 FEET;
THENCE SOUTH 42010'55" EAST 129.74 FEET TO A POINT ON THE EASTERLY LINE
OF SAID LOT 59; THENCE NORTH 00007'58" WEST 135.10 FEET ALONG SAID
EASTERLY LINE OF LOT 59, ALSO BEING THE WESTERLY LINES OF LOTS 25, 24
AND 23 OF SAID TRACT, TO THE NORTHWEST CORNER OF SAID LOT 23, SAID
CORNER ALSO BEING THE SOUTHWEST CORNER OF SAID LOT 22; THENCE SOUTH
89048'36" EAST 123.55 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 22 AND
THE NORTHERLY LINE OF SAID LOT 23; THENCE NORTH 01016'44" WEST 27.51
FEET TO A LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 68.00 FEET,
MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF TIPPECANOE
A VENUE: THENCE NORTH 00008'00" \VEST 50.71 FEET ALONG SAID PARALLEL
LINE; THENCE NORTH 44058'20" WEST 35.26 FEET TO SAID LINE THAT IS
PARALLEL WITH AND DISTANT SOUTHERLY 42.00 FEET. MEASURED AT RIGHT
ANGLES FROM SAID CENTERLINE OF LAUREL\VOOD DRIVE: THENCE NORTH
89048'40" WEST 184.23 FEET ALONG SAID PARALLEL LINE TO THE TRUE POINT OF
BEGINNING.
EXHIBIT "0"
Page 1 of 1
EXHIBIT "D-l"
DEPICTION OF AGENCY SALE PARCEL
'- LAUREL WOOD ORlvE. PER
TRACT No. 274J. ".8. 38/47
~
~~
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XCI.
C>'
I
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I
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I'
.- ,'hi
. ... -. '._....l -... _/-<--":::=::-'-===-'~F""----""""~-!!.~ii;;_-;;i:~~JP.O.c.
. (PORTION") BE'~'''OoNE~~~;?~~::~~::.' ~~~...~t'~NOOi~'f~l' .NB!'~'4;':. .... l4
'/./' j _-- I i :~ /1...'T.f:'.O.V/./
: //( .,. i //....r "- ~~ '-.~~~":/0'- ..:,:~.~-,//
/ / ,/ 0" " / ..... / /
/' 0- ,..: ..'
/ / z - - 1I &aJ
/ , / ~ ~
///_ "/' / 2~ :,;Z;
/-L._./ 1-r///~;""- ~
i . /~f!" /'\ "~f :/ -~.- 1<
i:~~'/~// ' '\.' ..... '. ."'.!.:sE~ ORi~ ,- f~~' -Z='_'_'r+~ _I~
1/' '\:~'_--'_d . ______..:..(~iR(EiTOBt:A8.N00EOC.. h ~
1.1 I ' CI.
I, , t=
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I \ I
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\ _--------~ _ ",,..i
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-- \0
_\../- - ~S1,..1t
-- \~
---
---
--
---
r--------------~--~--------~--;-------:-
I ' ' ,
I" ,
I
COURSE DATA:
L --
--
Ll N89""8'J6.w
123.55'
L2 NOI"16'''-w
27.5"
LJ NOO"OS'OO.W
50.11'
l" N44"58'20..
35.26'
TITLE;
NW
THE HUB
CORNER TIPPECANOE
SAN BERNARDINO,
AND
CA
1-10
D- -' INDICATES SUBJECT PARCEL
. - AREA - 28.849 S.F.
N
,"=200'
JOB NO. 00313
u; \OO_J13\"GP9in9\l~\In_N_Out_e.11\(#-Pddw9
DATI: OF PREPARATION:
2/15/02
EXHIBIT "D-l"
Page 1 of 1
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EXHIBIT "E"
LEGAL DESCRIPTION OF PHASE i' HUB SITE
THOSE PORTIONS OF LOTS 25, 27 THROUGH 38,47 THROUGH 59, AND 60 THROUGH
73 AND 79 OF.TRACT NO. 2743, IN THE CITY OF SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, TOGETHER WITH THAT PORTION OF
ROSEWOOD DRIVE, AS PER PLAT RECORDED IN BOOK 38, PAGE 47, OF MAPS,
RECORDS OF SAID COUNTY, TOGETHER WITH THAT PORTION OF LOT 5 OF BLOCK
72, RANCHO SAN BERNARDINO, AS PER PLAT RECORDED IN BOOK 7, PAGE 2 OF
MAPS, RECORDS OF SAID COUNTY, TOGETHER MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE CENTERLINES OF TIPPECANOE
A VENUE, 60.00 FEET WIDE, AND LAURELWOOD DRIVE, 50.00 FEET WIDE, AS SAID
STREETS ARE SHOWN ON SAID MAP OF TRACT NO. 2743; THENCE NORTH
89048'40" WEST 276.85 FEET ALONG SAID CENTERLINE OF LAURELWOOD DRIVE;
THENCE SOUTH 0001 I '20" WEST 42.00 FEET, PERPENDICULAR TO SAID
CENTERLINE, TO A POINT ON A LINE THAT IS PARALLEL WITH AND DISTANT
SOUTHERLY 42.00 FEET, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE
OF LAURELWOOD DRIVE, SAID POINT BEING THE TRUE POINT OF BEGINNING;
THENCE SOUTH 00011'31" WEST 142.31 FEET; THENCE SOUTH 42010'55" EAST
145.98 FEET; THENCE EAST 115.61 FEET; THENCE SOUTH 01016'44" EAST 225.89
FEET; THENCE SOUTH 40.34 FEET; THENCE SOUTH 29058' 17" WEST 52.80 FEET;
THENCE SOUTH 76020'45" WEST 803.74 FEET ALONG THE SOUTHERLY LINE OF
SAID PORTION OF LOT 5 OF BLOCK 72 DESCRIBED AS PARCEL 3 IN THAT CERTAIN
DIRECTOR'S DEED RECORDED IN BOOK 6272, PAGE 820 OF OFFICIAL RECORDS OF
SAID COUNTY; THENCE LEAVING SAID SOUTHERLY LINE NORTH 13023'28" WEST
258.92 FEET TO THE BEGINNING OF A CURVE, CONCA VE EASTERLY, HAVING A
RADIUS OF 75.00 FEET: THENCE NORTHERLY 7.20 FEET ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 05030'01"; THENCE NORTH 07053'27" WEST 86.67
FEET TO THE BEGINNING OF A CURVE CONCA VE WESTERLY. HAVING A RADIUS
OF 75.00 FEET; THENCE NORTHERLY 7.20 FEET ALONG SAID CURVE. THROUGH A
CENTRAL ANGLE OF 05030'01"; THENCE NORTH 13023'2~" WEST 37.87 FEET;
THENCE SOUTH 76036'32" WEST 9.00 FEET; THENCE NORTH 13023'28" WEST 158.09
FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY, HAVING A
RADIUS OF 52.00 FEET; THENCE NORTHWESTERLY 21.83 FEET ALONG SAID
CURVE, THROUGH A CENTRAL ANGLE OF 24003'31" TO THE BEGINNING OF A
COMPOUND CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 35.00
FEET, A LINE RADIAL TO SAID BEGINNING OF CURVE BEARS NORTH 52033'01"
EAST; THENCE NORTHWESTERLY 31.06 FEET ALONG SAID CURVE, THROUGH A
CENTRAL ANGLE OF 50050'27" TO A NON-TANGENT LINE; THENCE NORTH
46008'10" EAST 54.67 FEET ALONG SAID NON-TANGENT LINE TO THE BEGINNING
OF A CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 508.00 FEET;
THENCE NORTHEASTERLY 390.59 FEET ALONG SAID CURVE, THROUGH A
CENTRAL ANGLE OF 44003'10" TO SAID LINE THAT IS PARALLEL WITH AND
DISTANT SOUTHERLY 42.00 FEET FROM THE CENTERLINE OF LAURELWOOD
EXHIBIT "E"
Page 1 of 2
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DRIVE; THENCE SOUTH 89048'40" EAST 360.81 FEET ALONG SAID PARALLEL LINE
TO THE TRUE POINT OF BEGINNING.
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EXHIBIT "E"
Page 2 of 2
TiTlE:
EXHIBIT "E-l"
DEPICTION OF PHASE 1 HUB SITE
LAUREl WOOD DRIvE, PER
TRACT No. 274.3. 1104.8. J8/47
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COURSE DATA
CURVE DATA
C1 0:05".30'01-
R:75.00'
L=7.20'
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11 N07"53'2Tw
86.67'
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D INDICATES SUBXCT PARCEL
AREA'"' 12.036 ACRES
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THE HUB
CORNER TIPPECANOE
SAN BERNARDINO.
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DATE OF PREPARATION:
/"=200'
JOB NO. 00313
u; \OO-J'J\..oppin9\l~'\In-H-O"I_e.'I\Pt11..:~."9
2/15/02
EXHIBIT 'E 1
Page 1 of 1
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RECORDING REQUESTED BY:
EXHIBIT "F"
Redevelopment Agency of the
City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
AFTER RECORDATION, MAIL TO
AND MAIL TAX STATEMENTS TO:
In-N-Out Burgers
13502 Hamburger Lane
Baldwin Park, California 91706-5885
Attention: Real Estate Department
No fee for recording pursuant to
Government Code Section 27383
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THIS SPACE ABOVE FOR RECORDER'S USE
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 ("Grantor"), hereby grants
to IN-N-OUT BURGERS, a California corporation ("Grantee"), the real property
legally described in Exhibit "A" attached hereto and incorporated herein by this
reference (the "Property").
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1. The Property is conveyed subject to that certain Owner
Participation Agreement (the "OPA") dated as of September 17, 2001, by and between
Grantor and Grantee. The OPA is a public document on file in the City Clerk's office
of the City of San Bernardino, located at 300 N, "D" Street, San Bernardino, California
92401. The OPA shall be conclusively deemed to have fully and satisfactorily
performed all of its obligations under the OP A, including without limitation .
compliance with the Schedule of Performance and the Scope of Development, and this
Section 1 shall terminate and become null and void with respect to the Property, on the
date the Certificate of Completion is issued by Grantor for the Improvements;
LA:LRE\AGRWLL\70284363.10
031502
EXHIBIT "F"
Page 1 of 5
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provided, however, that Grantee's indemnification obligations under Section 7.9 of the
OP A shall survive the issuance of the Certificate of Completion and expire in
accordance with its terms. Capitalized terms used and not otherwise defined herein
shall have the meanings set forth for them in the OPA.
2. All deeds, leases or contracts pertaining to the Property must
contain or be subject to substantially the following nondiscrimination and
nonsegregation clauses:
(a) . In deeds: "The grantee covenants by and for itself, its
successors and assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, marital status, national
origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the property herein conveyed, nor shall the grantee or any
person claiming under or through the grantee establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the property 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 or ancestry, in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the property herein leased nor shall the
lessee itself, or any person claiming under or through the lessee, establish or
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 in the property herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons, on account of race, color, creed,
religion, sex, marital status, national origin or ancestry, in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the property, nor
shall the transferee or any person claiming under or through the transferee,
establish or 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 property. "
LA:LRE\AGR\VLL\70284363.10
031502
EXHIBIT "F"
Page 2 of5
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3. The following provisions are incorporated from Section 5.4 of the
OPA and shall survive the issuance of the Certificate of Completion:
(a) Grantor Indemnitv. Without limiting the generality of the
indemnification in Grantor's favor set forth in Section 7.9(a) of the OPA,
Grantee hereby agrees to indemnify, protect, hold harmless and defend (by
counsel reasonably satisfactory to Grantor) the Agency Parties from and against
any and all Loss arising directly or indirectly, in whole or in part, out of (i) the
failure of any Owner Party to comply with any Environmental Law relating in
any way whatsoever to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Substances
into, on, under or from the Property, (ii) the presence in, on or under the
Property of any Hazardous Substances or any releases or discharges of any
Hazardous Substances into, on, under or from the Property, or (iii) the
migration of any Hazardous Substances into, onto or under the Property from
offsite sources, other than real property or improvements owned by Grantor, the
City or the HUB Developer, in each case subsequent to the Closing. The
foregoing indemnity shall further apply to any residual contamination on or
under the Property affecting any natural resources and to any contamination of
any property or natural resources arising in connection with the generation, use,
handling, treatment, storage, transport or disposal of any such Hazardous
Substances, and irrespective of whether any of such activities were or will be
undertaken in accordance with Environmental Laws. This indemnification of
the Agency Parties by Grantor includes, without limitation, costs incurred with
respect to any investigation of site conditions or any cleanup, remedial, removal
or restoration work required by any federal, state or local governmental agency
or political subdivision because of Hazardous Substances present or alleged to
be present in the soil or groundwater in, or under the Property subsequent to the
Closing. The indemnity described in the preceding two sentences shall not
apply with respect to any Hazardous Substances located in, on or under the
Property or the Existing Agency Improvements Drior to the Closing.
(b) Grantee Indemnity. Without limiting the generality of the
indemnification in the Grantee's favor set forth in Section 7.9(b) of the OPA,
Grantor hereby agrees to indemnify, protect, hold harmless and defend (by
counsel reasonably satisfactory to Grantor) the Owner Parties from and against
any and all Loss arising directly or indirectly, in whole or in part, out of (i) the
failure of any Agency Party to comply with any Environmental Law relating in
any way whatsoever to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Substances
into, on, under or from the Property or the Existing Agency Improvements,
(ii) the presence in, on or under the Property of any Hazardous Substances or
L~lJUE~CiR\"lJL\70284363.10
031:502
EXHIBIT "F"
Page 3 of5
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any releases or discharges of any Hazardous Substances into, on, under or from
the Property or the Existing Agency Improvements, or (iii) the migration of any
Hazardous Substances into, onto or under the Property or the Existing Agency
Improvements from offsite sources, in each case Drior to the Closing. The
foregoing indemnity shall further apply to any residual contamination in, on or
under the Property or. the Existing Agency Improvements affecting any natural
resources and to any contamination of any property or natural resources arising
in connection with the generation, use, handling, treatment, storage, transport or
disposal of any such Hazardous Substances, and irrespective of whether any of
such activities were or will be undertaken in accordance with Environmental
Laws. This indemnification of the Owner Parties by Grantor includes, without
limitation, costs incurred with respect to any investigation of site conditions or
any cleanup, remedial, removal or restoration work required by any federal,
state or local governmental agency or political subdivision because of
Hazardous Substances present or alleged to be present in the soil or
groundwater in, on or under the Property or the Existing Agency Improvements
prior to the Closing. The indemnity described in the preceding two sentences
shall not apply with respect to any Hazardous Substances first located in, on or
under the Property subseauent to the Closing.
4. 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 Security
Financing Instrument permitted by the OPA; provided, however, that any successor of
Grantee to the Property shall be bound by all remaining covenants, conditions,
restrictions, limitations and provisions, whether such successor's title is acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
5. The covenants set forth in Sections ~ and}, above, shall remain in
effect in perpetuity or for so long as they may be enforceable.
6. The covenants contained in Sections ~ and 1, above, are, to the
fullest extent permitted by law and equity, binding for the benefit of Grantor or
Grantee, as applicable, and its successors and assigns, as applicable, and such
covenants shall run in favor of Grantor or Grantee, as applicable, for the entire period
that such covenants are in full force and effect, regardless of whether Grantor or
Grantee, as applicable, is or remains an owner of any land or interest in land to which
such covenants relate. In the event of any breach of any such covenants, Grantor or
Grantee, as applicable, shall have the right to exercise all of its 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. The covenants' contained in Sections ~ and 1,
LA:LRE\AGRWLL\70284363.IO
031502
EXHIBIT "F"
Page 4 of5
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above, shall be for the benefit of and shall be enforceable only by Grantor or Grantee,
as applicable, and its successors and assigns.
IN WITNESS WHEREOF, Grantor and Grantee have caused this Grant
Deed to be duly executed this _ day of ,2003.
"Grantor":
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
By
Chairperson
By
Secretary
e APPROVED AS TO FORM:
By
Agency Special Counsel
The provisions of this Grant Deed are hereby approved and accepted.
"Grantee";
IN-N-OUT BURGERS,
a California corporation
By
(Printed Name and Title)
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LA:LRE\AGRWLL\70284363.10
031S02
EXHIBIT "F"
Page 5 of 5
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
EXHillIT "G"
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
201 North "En Street, Suite 301
San Bernardino, California 9240 I
Attention: Executive Director
No fee for recording pursuant to
Government Code Section 27383
THIS SPACE ABOVE FOR RECORDER'S USE
GRANT DEED
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For valuable consideration, the receipt of which is hereby acknowledged,
IN-N-OUT BURGERS, a California corporation ("Grantor"), hereby grants to the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public
body, corporate and politic of the State of California ("Grantee"), the real property
legally described in Exhibit "A" attached hereto and by this reference incorporated
herein (the "Property"),
1. The Property is conveyed subject to that certain Owner
Participation Agreement (the "OPA") dated as of September 17,2001, by and between
the Grantor and the Grantee. The OP A is a public document on file in the City Clerk's
office of the City of San Bernardino, located at 300 N. "D" Street, San Bernardino,
California 9240 I,
2. This conveyance is made and accepted subject to non-delinquent
taxes and assessments and all matters of record and off-record affecting title to the
Property, including without limitation matters that could be ascertained by an
inspection or survey of the property. Grantor disclaims any and all express or implied
warranties regarding the Property, other than the implied warranties stated in sub-
paragraph I in Section 1113 of the California Civil Code.
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3. This conveyance is also subject to the Owner License granted by
Grantee to Grantor pursuant to Section 4.2 of the OPA, pursuant to which Grantor has
LA:LRE\AGRWLL\70284363.10
031S02
EXHIBIT "G"
Page I of 4
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a temporary, exclusive license to occupy the Property for the purpose of operating the
Existing Restaurant on the Existing Owner Site until the earlier of (a) the City of
San Bernardino's issuance of a temporary certificate of occupancy with respect to the
Improvements or (b) the first anniversary of the date of recordation of this Grant Deed,
whereupon the Owner License shall terminate without further notice to Grantor. Upon
the request of Grantor, the Executive Director of Grantee may extend the term of the
Owner License in his or her sole and absolute discretion. Upon the expiration of the
Owner License, Grantor shall surrender the Property to Grantee in its then existing
condition. Notwithstanding the foregoing, Grantor shall not be required to remove the
Existing INO Sign on the Property, nor shall Grantee remove, or permit to be removed,
the Existing INO Sign, unless and until the HUB Developer shall have erected and
placed into operation the HUB Property Pylon Sign in accordance with the HUB
Agreement.
4. The following provisions are incorporated from Section 5.5 of the
OPA and shall survive the issuance of the Certificate of Completion:
(a) Grantee Indemnitv. Without limiting the generality of the
indemnification in Grantee's favor set forth in Section 7.9(a) of the OPA,
Grantor hereby agrees to indemnify, protect, hold harmless and defend (by
counsel reasonably satisfactory to Grantee) the Agency Parties from and against
any and all Loss arising directly or indirectly, in whole or in part, out of (i) the
failure of any Owner Party to comply with any Environmental Law relating in
any way whatsoever to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Substances
into, on, under or from the Property, (ii) the presence in, on or under the
Property of any Hazardous Substances or any releases or discharges of any
Hazardous Substances into, on, under or from the Property, or (iii) the
migration of any Hazardous Substances into, onto or under the Property from
offsite sources, other than real property or improvements owned by Grantee, the
City or the HUB Developer, in each case prior to the termination of the Owner
License. The foregoing indemnity shall further apply to any residual
contamination on or under the Property affecting any natural resources and to
any contamination of any property or natural resources arising in connection
with the generation, use, handling, treatment, storage, transport or disposal of
any such Hazardous Substances, and irrespective of whether any of such
activities were or will be undertaken in accordance with Environmental Laws.
This indemnification of the Agency Parties by Grantor includes, without
limitation, costs incurred with respect to any investigation of site conditions or
any cleanup, remedial, removal or restoration work required by any federal,
state or local governmental agency or political subdivision because of
Hazardous Substances present or alleged to be present in the soil or
LA:LRE\AGR\VLL\10284363.10
031S02
EXHIBIT "G"
Page 2 of 4
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groundwater in, or under the Property orior to the termination of the Owner
License. The indemnity described in the preceding two sentences shall not
apply with respect to .any Hazardous Substances fIrst located in, on or under the
Property subsequent to the termination of the Owner License.
(b) Grantor Indemnity. Without limiting the generality of the
indemnifIcation in Grantor's favor set forth in Section 7.9(b) of the OPA,
Grantee hereby agrees to indemnify, protect, hold harmless and defend (by
counsel reasonably satisfactory to Grantee) the Owner Parties from and against
any and all Loss arising directly or indirectly, in whole or in part, out of (i) the
failure of any Agency Party to comply with any Environmental Law relating in
any way whatsoever to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Substances
into, on, under or from the Property, (ii) the presence in, on or under the
Property of any Hazardous Substances or any releases or discharges of any
Hazardous Substances into, on, under or from the Property, or (iii) the
migration of any Hazardous Substances into, onto or under the Property from
offsite sources, in each case subsequent to the termination ofthe Owner
License. The foregoing indemnity shall further apply to any residual
contamination in, on or under the Property affecting any natural resources and
to any contamination of any property or natural resources arising in connection
with the generation, use, handling, treatment, storage, transport or disposal of
any such Hazardous Substances, and irrespective of whether any of such
activities were or will be undertaken in accordance with Environmental Laws.
This indemnifIcation of the Owner Parties by Grantee includes, without
limitation, costs incurred with respect to any investigation of site conditions or
any cleanup, remedial, removal or restoration work required by any federal,
state or local governmental agency or political subdivision because of
Hazardous Substances present or alleged to be present in the soil or
groundwater in, on or under the Property subsequent to the termination of the
Owner License. The indemnity described in the preceding two sentences shall
not apply with respect to any Hazardous Substances located in, on or under the
Property prior to the termination of the Owner License.
5. The covenants contained in this Agreement are to the fullest
extent permitted by law and equity, binding for the benefIt of Grantor or Grantee, as
applicable, and its successors and assigns, and such covenants shall run in favor of
Grantor or Grantee, as applicable, for the entire period that such covenants are in full
force and effect, regardless of whether Grantor or Grantee, as applicable, is or remains
an owner of any land or interest in land to which such covenants relate. In the event of
any breach of any such covenants, Grantor or Grantee, as applicable, shall have the
right to exercise all of its rights and remedies, and to maintain any actions at law or
LA:LRE\AGR\VLL\70284363.10
031502
EXHIBIT "G"
Page 3 of 4
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suits in equity or other proper proceedings, to enforce the curing of such breach. The
covenants contained in this Agreement shall be for the benefit of and shall be
enforceable only by Grantor or Grantee, as applicable, and its successors and assigns.
IN WITNESS WHEREOF, Grantor and Grantee have caused this Grant
Deed to be duly executed this _ day of , 2002.
"Grantor":
IN-N-OUT BURGERS,
a California corporation
By
(Printed Name and Title)
The provisions of this Grant Deed are hereby approved and accepted.
"Grantee":
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
By
Chairperson
By
Secretary
APPROVED AS TO FORM:
By
Agency Special Counsel
LA:LRE\AGR\VLL\70284363.10
031502
EXHIBIT "G"
Page 4 of 4
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
EXHIBIT "H"
SHEPPARD, MULLIN, RICHTER & .
HAMPTON LLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
Attention: Jack H. Rubens, Esq.
TInS SPACE ABOVE FOR RECORDER'S USE
CERTIFICATE OF COMPLETION
We, , Chairperson and , Secretary
of the Redevelopment Agency of the City of San Bernardino (the "Agency"), hereby
certify as follows:
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By its Resolution No. , adopted and approved on
200_, the Agency has resolved as follows:
Section I. Pursuant to that certain Owner Participation Agreement
(the "Agreement") dated as of September 17, 2001, by and between the Agency and
In-N-Out Burgers, a California corporation, the Owner agreed to undertake the
"Development" of certain real property situated in the City of San Bernardino,
California, as more particularly described in Exhibit A attached hereto and
incorporated herein by this reference (the "Development Site"). Capitalized terms
used and not otherwise defined herein shall have the meanings set forth for them in the
Agreement.
Section 2. The Agency has conclusively determined that the
Development of the Development Site required under the Agreement has been fully
and satisfactorily performed and completed, excluding any normal and minor building
"punchlist" items.
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Section 3. This Certificate of Completion shall constitute the
Agency's conclusive determination of the Owner's full and satisfactory completion of
the Development in accordance with the terms and conditions of the Agreement and
the Owner's full and satisfactory performance of all of its obligations under this
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Agreement, including without limitation any and all buildings and any and all parking,
landscaping and related improvements necessary to support or which meet the
requirements applicable to such buildings and its use and occupancy on the
Development Site, whether or not said improvements are on the Development Site or
on other property subject to the Agreement, all as described in the Agreement.
Section 4. This Certificate of Completion shall not modify or affect
any of the provisions in that certain Grant Deed dated , 2002, executed by
the Agency in favor of the Owner, and recorded on , 2002 as Instrument
No. in the Official Records of San Bernardino County, California.
IN WITNESS WHEREOF, the Agency has executed this Certificate of
Completion on , 200_.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, a public
body corporate and politic
By
Chairperson
By
Secretary
APPROVED AS TO FORM:
By
Agency Special Counsel
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EXHIBIT "I"
SCHEDULE OF PERFORMANCE
(All dates herein are subject to change due to force majeure
in accordance with Section 7.5 of this Agreement)
1.
Opening of Escrow. The Parties
shall open the Escrow for the
conveyance of the Agency Sale
Property and the Owner Sale
Property.
2.
Deposits in Escrow. The Agency
shall deposit the Agency Deposit
and the Owner shall deposit the
Owner Deposit.
3.
Acquisition of Agency Sale
Prooerty. The Agency delivers
offers to acquire the Agency Sale
Property to the current owners
thereof.
4.
Agencv Due Diligence. The
Agency shall carry out and
complete its due diligence
investigation of the Owner Sale
Property.
5.
Title Documents. The Agency
shall deliver to the Owner the
Agency Sale Property Title Report
and the Agency Sale Property Title
Documents and the Owner shall
deliver to the Agency the Owner
Sale Property Title Report and the
Owner Sale Property Title
Documents.
Within twenty (20) business days
following execution of this Agreement
by the Parties. (Section 3.5)
Upon the opening of Escrow.
(Section 3.9)
Within five (5) business days after the
execution of this Agreement by the
Parties. (Section 3. 19(c))
Commencing on the fifth (5th) business
day after the execution of this
Agreement by the Parties and ending on
or before May 31,2002. (Section 3.16)
Within thirty (30) days after the
execution of this Agreement by the
Parties. (Sections 3.19 and 3.20)
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e 6. Owner Due Diligence. The Owner Commencing on the fifth (5th) business
shall carry out and complete its day following the execution of this
due diligence investigation of the Agreement by the Parties and ending on
Agency Sale Property. or before the sixtieth (60th) day
following the date on which the Agency
obtains lawful possession of the
Agency Sale Property and provides the
Owner with lawful access to the
Agency Sale Property. (Section 3.15)
7. Harriman Memorandum. The April 30, 2002. (Section 4.5(a))
Agency and the HUB Developer
shall prepare, approve and execute
and Harriman Memorandum,
subject to Section 4.5(a).
8. Aoolications for Discretionarv Within sixty (60) days following the
Land Use Approvals. The Owner expiration of the Owner Due Diligence
shall apply for the New Restaurant Period. (Section 3.8(c))
CUP and the other discretionary
e Land Use Approvals.
9. Harriman Extension Imorovement On or before June I, 2002.
Proiect. The Agency shall (Sections 3.22(q) and 4.5(b))
commence physical construction
of the Harriman Place
Improvement Project.
10. Ownership of Agencv Sale Prior to the Closing.
ProjJertv. The Agency shall obtain (Sections 3.22(b), 3.22(j) and 3.l9(d))
merchantable, lien-free, fee title or
an insurable title interest under
Orders of Possession with respect
to the Agency Sale Property
sufficient to satisfy the condition
precedent set forth in Section
3.22(j).
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tit 11. Utilities. The Agency shall cause By the earlier of (a) the 90th day
all utilities required for the following the commencement of
construction, operation and use of construction of the Harriman Place
the New Restaurant and other Improvement Project or
Improvements to be stubbed to five (b) December 30,2002.
(5) feet inside of the Development (Section 3.22(q))
Site.
12. Agencv Demolition Work. The On or before the Closing.
Agency shall carry out and (Section 3.28)
complete the Agency Demolition
Work.
13. HUB Agreement. The Owner On or before the Closing.
shall execute, acknowledge and (Section 3. 13 (g))
deliver to Escrow Holder the HUB
Agreement.
14. Closing. The Closing shall occur December 31, 2002, subject to
as soon as possible after the extension pursuant to Section 3.23 or
tit satisfaction of all of the Agency's 3.25. (Section 3.11)
Conditions and the Owner's
Conditions.
15. Commencement of Improvements. By the later of (a) January 1, 2003, or
The Owner shall commence (b) the thirtieth (30th) day following the
construction of the Improvements. Closing (defmed in this Agreement as
the "New Restaurant Commencement
Date"). (Section 4.I(h))
16. Completion of Improvements. The Within two hundred seventy (270) days
Owner shall complete the following the New Restaurant
Improvements. Commencement Date. (Section 4. 1 (h))
17. Termination of Owner License. On or before the first anniversary of the
The Owner License shall New Restaurant Commencement Date.
commence as of the Closing and (Section 4.2)
shall thereafter terminate.
tit
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18. Issuance of Certificate of
Completion. The Agency shall
issue tl1e Certificate of Completion
after the completion of
construction of the Improvements
(excluding the Punchlist Items).
Within five (5) business days following
the written request of the Owner.
(Section 4.4(a))
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SCOPE OF DEVELOPMENT
The Owner shall construct a new sit-down and drive-thru restaurant with
a maximum square footage of 3,300 square feet substantially in accordance with the
Owner's standard development and design requirements. The Improvements shall
include, without limitation, the above-described restaurant facility and related
landscaping, parking areas and sidewalk areas within the Development Site.
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r----
,
"".-.......
"...-:t
ECONOMIC DEVELOPMENT AGENcRECErVED-CIT'f CLERK
'02 HAY 3D P 4 :49
TO: RACHEL CLARK, CITY CLERK
FROM: JOHN HOEGER, PROJECT MANAGER
SUBJECT: TlPP - AMENDMENT NO.1 TO HUB DDA
DATE: 4/25/02
CC: FRED STEMMLER C'fI / ORIG); MIKE TROUT C'fI /ORIG); DAVE GONDEK C'fI /COPY); GARY
VAN OSDEL; FILE
Rachel, here is a fully executed original of Amendment No. 1 To Disposition and
Development Agreement (Tippecanoe Study Area). By means of a copy of this memo I am
also forwarding a fully executed original to SBT Partners, liC and a third original to Mike
Trout, Contracts Administrator.
This Amendment was authorized on April 1, 2002 by Resolution CDC2002-14. Please
call me if there are any questions. Thank you.
. .
.
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): -'\ - \ --(j~ Item #
Vote: Ayes /-') Nays --e--
Change to motion to amend original documents: -
~~ g Resolution #
Abstain ..e-
c: rxj ;) Cf),) -I "t
Absent if
Reso. # On Attachments: ~ Contract term: -
Note on Resolution of Attachment stored separately: -=-
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY
vr
Date Sent to Mayor: i - ~ ():J.--
Date of Mayor's Signature: LI- 4~ 0 'd
Date of ClerklCDC Signature: "i -4 -0 ?-
Date MemolLetter Sent for Signature: Ell A- 61517\11\ IlIb S, I b.S See Attached:
60 Day Reminder Letter Sent on 30th day: See Attached:
90 Day Reminder Letter Sent on 45th day: See Attached:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
City Attorney Code Compliance
Dev. Services
Parks & Rec,
Police
Public Services
Water
Notes:
NulllVoid After: -
By: -
/'
Reso. Log Updated:
Seal Impressed:
Date Returned: ~
'/-11-0 ?-
Yes /
Yes
Yes
Yes
Yes
EDA
/
No By
No /" By
No L By
No / By
No ,/' By
Finance
MIS
Others:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: ;rn- Date: 1-( 7-<:>;;r
Revised 01/12/01