HomeMy WebLinkAboutR11-Economic Development Agency
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IEVBlDHal' IZPARJHBtl'1' or 'mB
Cl'l'! or SIll IIERlQRDDI)
RElOOEST I'OR IY'MUTAAtclfltnmr!TT. AC'l'ICB
Fran: I<DlNElH J. HENIERSCN
Elcecutive Director
SUbject: MERIc:g !lM'ICtIAL
c:g CDIPAllY
Date: May 14, 1991
SyDopsis of PreYious ClaIIIIissiCIII/n.o-~ l/ClaIIIIittee klt!OIU
Q1 JaJ'lI.Iary 24, 1991, the Redsvel_/t Call1dttee CCI'ISidered this matter am re-
quested staff to IU-~ as New -....-rded.
Q1 April 15, 1991, the l'ronM..uty Devel_.t """"~-im ~ the deal points
am authorized 1qIn::y o:.mseJ. to prepare an ~lIWlu.alt bebllllElll the lhmI..uty IlBYe-
lcpaent ,..",..i_im am 1lDmican National Can ~ny.
RAlo ...-....-4 MotiOllI
'''''''''l1'li'' tv Develll- .._M t'nmft4..im'
'lHAT '!HE ElCEXDl'lVE ~lOK OF '!HE DEVELOHmfl' IEPARIHml' BE AI1IHlUZED '10 EXEa11'E
'!HE A'lTAaIED CMNER PARl'ICIPATIaf AGRP>>IENl' (CPA) AND StX:H IXXUCENlS AS ARE RE-
(JJIRED I'OR ITS ~, ~.LnER Wl'lH N::ti-8lJBS'mNI'1VE 0fANZS, AS APPRl\1ED
BY ~ CXXlNSEL.
~d.---
C'c:ntact Persal: Ken --....,,......../11'....,, J-
Hla1e:
5065: 5081
six (6\
Project Area (.) : Northwest: lNW'l
Ward(.) :
SU(:p:lrtin;J Data Attadled:
FUNDIOO ~:
staff ~L: CPA
Amount: S 603.750.00
1!qen:f sewer Capacity
SOJrce: RiahtslTax I1.c..-......t
r_.......... bIT Proiect
aldqet Authority:
ClaIIIIissiCIII/o:NIIcil Notesl
IOH: lab: 4350
CXHmlSICIf MBE:l'DIJ
HeetJ..nq Datel OS/20/1991
~ Item No: / J
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IEYBIDBIBtr.l' IEPARDIBlrr
IIDin ~
...Y"Il"..Aft Hat.itlNl1 AnI 1"\.._.'19 OR
since Oc::t:ctier of 1990, staff has bean in ocntact with l~ S.;1jtatives frail Ameri-
can Natialal can C<:oIpmy (ANCC) regardin;J the acquisitiat of land in the Northwest
Rsdevel........ut Project Area IMustrial Park and the devel~,t; of an ANCC carHIIak-
in; facility. American Natialal can ~ has prev1CUlly l'YWNII1....iCl'llld soils and
related rests frail local fim and en April 24, 1991, exercised ita q:tia1 to p1r-
c:i1ase ~tely twenty-five (25) acres where the ~~ facility will be
located.
Follcwin;J is a ..,1IlIM>y of the pl~eed project:
'!he pl'..,osed plan walld be awraximately 220,000 square feet in site. '!he
ZCIUn1 is m.
Ib.-.L ~ in the Devel............t. Qlde will allw the cx:nJt:r\x:tia1 of a metal
b1ildin1 withcut the filin; of a 00Ildit.ia1al Use Pe%lIdt (alP) awlicatiat.
'!he plant waUd be a twenty-four (24) haJrjt:h.ree-hurm'e, sixty-two (362) day
a year cperatiat.
'lhe OCIIpleted devel~.t. value is estimated at $55,000,000, lIUcb will gene-
rate awroximately $550,000 a year in tax inc.........t., of lIU.cb $363,000
(sixty-six peroeI,t; (66%)) walld 0CIIl8 to the Department.
'!he plant walld have its own interna1 wastewater treatment plan and wuld uss
~tely 75,000 gallaw of water par day. '!he plant waUd also be a
significant CXIl8UIIl8l' of electricity.
6. ~tely aw hI.lnd1..,d, twenty (120) jcils will be generated, with add1-
t.ia1al jcils to be geneIated as a result of future explln8ia1.
at April 15, 1991, the n-.m.nti.ty Devel............t n--i....ia1 ~ deal points with
American Natialal can ~ny, as follows:
1. Devel"i......uL Dapartment to carant ClM hllrlCb...cl (100) &eWltr ""'P"city ric;lhts va-
lued at $226,000 to ANCC as partial. payment of the $603,750.00.
2. Devel............t Department to finllnoe with IbUcipaJ. water Department differeJloe
of $377,000.00 aver five (5) years. 'lbese payments wuld be 1III!Ide as the pr0-
perty tax .i1.c...........jt is qenerated by the project.
3. Devel...........,t; Department to facilitats, to the extent possible, the acquisitien
by ANCC of Job 'l'rainirq and Partnership Act (JTPA) assistance frail the san
Bernardino Enployment and '1'rainin;J Iqercr.
~ of the deal points by the n,m.i ....ien allows the City to gain in a mmi:ler
of bqxlrt:ant ways, as follows:
1. Increasin; of our tax base.
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0 5.
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KJH: lab: 4350
CXIIaSSICB :au:z.~r.uG
JIeet:iDq Date: OS/20/111
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J:IEVBlDllMI!2r IZPARDIE:Nl' A.. IU5&'UIU'
J\meriClllll IJIltiCMl can ~"'Y OPA
P:tIlpare4I May 14, 1ll1l1
Paqe -2-
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2. Generation of cne-hurmed, twenty (120) new jdJs.
3. Generation of additional tax increlOEl11t for the Northwest R8devel""""",IL Pr0-
ject Area (sorely ~ in light of assistarx:le package for West side
Plaza) .
4. Significant water USllg8 tmic:h greatly assists cashflow of Ilmic:ipal Water
Department.
5. Significant payer of utility tax, thereby assistin;J City General !Und.
6. Increases lIaIIelib.1m for additional devel"""",,,lt in Northwest and state COllege
In::iustrial. Parks.
!la<J9d upon the above infomation, 1qercf Camsel has prepared the attadled OWner
Participation A::l............Jt (OPA), tmic:h is llCIW sul:IIIitted for n......i ....1.cn OCI'lSidera-
tiat.
staff reo ....-rx3s adqltion of the fom m:ltion.
........~ -..--
Dw8l~ L
4C:> ~:lab:43S0
n(HIISSJ:(5 1'II5I!i".....uG
IfeetiDq Datel OS/20/91
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AmeriClln
"" Nationa' Can
APR 3 _1991
DEVELOPIIEN1' DEPARTMENT
April 1, 1991
1Ir. Kenneth Henderson
Executive Dir.ctor
Development Department
City of San Bernardino
300 N. D str..t
San Bernardino, CA 92418
Dear K.n:
popowing up on our conversation of today, I am pl.ased to report
that American National Can has d.cid.d to purcha.. the .it.
identified at 5715 Industrial Parkway, in the San Bernardino
Northw..t Industrial Park, and to build a new .tat. of the art
beverage can plant.
'l'hb deciaion b condition.d on r.c.iving confination from you
that th. financial a..i.tanc. package of $603,750 d..cribed in
your l.tter of January 8, has be.n approved at all l.v.ls, which
I understand .hould be forthcoming v.ry .oon. It b alao
condition.d on receiving city grading peraita within the next f.w
day., which are n.eded in order to perfon the nece..ary
environmental cl.anup of the .it., allowing till. to take and
evaluate new .oil testa before our option. on the land expire on
April 30. W. appr.ciat. any a.sistance you can provide in
expediting this proc....
As.uming th... two isau.s are resolved in DOrt order, we will
plan to exerci.. our optiona on th. land and proce.d with
construction of th. plant.
We look forward to bringing thb n.w operation on-line and .
entering into a long tera, autually beneficial relation.hip with
the community of San Bernardino. I appreciate all the interest
and a.s!atance provided by you, Bob Temple, your .taff and the
Community Development C01IIDbaion. As we move further into the
development and con.truction process, w. will plan to work
closely with the Employment and Training Agency towards
qualifying for and receiving the training financial assi.tanc.
which we under.tand will be available to us, and will plan to
take advantage of the help you offer.d in facilitating our
obtaining this as.istance. Fred Langmaier.and our engineering
group also look forward to any help you can provide in
facilitating the development plan and construction permit process
once we get started.
American National C.n Comp,onv 1770 Will Bryn Mawr Avenue ChicllllO, IlIInoll eoa1-3S42 13121 399.3000
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Mr. Kenneth HAnd.r.on
Page 2
4:) April 1, 1"1
I look forward to hearing from you .oon to confira the financial
a..i8tance package and the i8.uance of the grading perait..
Very truly your.,
,~ (J~- -.
Te~;';' ~au...n
A..i.tent Trea.urer
TAR/k.
(C
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OWNER PARTICIPATION AGREEMENT
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THIS AGREEMENT IS ENTERED INTO THIS
day of
3 1991, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
4 BERNARDINO (the "Agency"), and AMERICAN NATIONAL CAN COMPANY, a
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Delaware Corporation (the "Participant").
Agency and
6 Participant hereby agree as follows:
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I.
[100] SUBJECT OF AGREEMENT
[101]
A.
Purpose of Agreement
9 The purpose of this Agreement is to effectuate
10 the Redevelopment Plan for the Northwest Redevelopment Project
11 (the "Project") by providing for the development of the Site,
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12 which is situated within the Northwest Redevelopment Project
Area (the "Project Area") of the Project.
This Agreement is
14 entered into for the purpose of developing the Site and not for
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speculation in land holding.
The completion of the development
16 of the Site pursuant to this Agreement is in the vital and best
17 interest of the City of San Bernardino, California (the "City")
18 and the health, safety and welfare of its residents, and in
19 accord with the public purposes and provisions of applicable
20 state and local laws and requirements under which the Project has
21 been undertaken.
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B.
[102]
The Redevelopment Plan
23 The Redevelopment Plan was approved and adopted on
24 July 6, 1982, by Ordinance No. MC-189 of the Common Council of
25 the City of San Bernardino: said ordinance and the Redevelopment
26 Plan as so approved (the "Redevelopment Plan") are incorporated
27 herein by reference.
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DAB/ses/American.agr
May 15, 1991
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C.
[103]
The Site
The Site is that certain real property designated
3 on the Site Map (Attachment No.1) and described in the "Legal
4 Description of the Site", which is attached hereto as Attachment
5 No. 2 and is incorporated herein by this reference.
6 The Site is that certain real property, title to
7 which is held by the Participant.
O.
[104]
Parties to the Agreement
1.
[105]
The Agency
The Agency is a public body, corporate and
11 pOlitic, exercising governmental functions and powers and
12 organized and existing under Chapter 2 of the Community
13 Redevelopment Law of the State of California (Health and Safety
14 Code Section 33020 et seg.). The principal office of the Agency
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is located at 300 North "0" Street, San Bernardino, California
17 "Agency., as used in this Agreement, includes the
18 Redevelopment Agency of the City of San Bernardino, and any
19 assignee of or successor to its rights, powers and
20 responsibilities.
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2.
[106]
The Participant
The Participant is American National Can Company,'
23 a Delaware Corporation. The principal office and mailing address
24 of the Participant for purposes of this Agreement is 8770 West
25 Bryn Mawr Avenue, Chicago, IL 60631-3542.
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OAB/ses/American.agr
May 15, 1991
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1 The Participant qualifies as an owner participant
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pursuant to the Redevelopment Plan and rules promulgated
3 pursuant thereto pertaining to owner participation.
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3.
[107]
Prohibition Against Change in
Ownership, Management and Control of
the Participant
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6 The qualifications and identity of the
7 Participant are of particular concern to the City and the
8 Agency. It is because of those qualifications and identity that
9 the Agency has entered into this Agreement with the Participant.
10 No voluntary or involuntary successor in interest of the
11 Participant shall acquire any rights or powers under this
12 Agreement except as expressly set forth herein.
13 The Participant shall not assign all or any part
14 of this Agreement or any rights hereunder without the prior
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written approval of the Agency, which approval the Agency may
16 grant, withhold or deny at its discretion. In the event of such
17 transfer or assignment: (1) the assignee shall expressly assume
18 the obligations of the Participant pursuant to this Agreement in
19 writing satisfactory to the Agency; (2) the original Participant
20 shall remain fully responsible for the performance and liable for
21 the obligations of the Participant pursuant to this Agreement;
22 and (3) any guarantees provided to assure the performance of the
23 Participant's obligations under this Agreement shall remain in
24 full force and effect.
25 In the absence of specific written agreement by
26 the Agency, no such transfer, assignment or approval by the
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Agency, shall be deemed to relieve the Participant or any other
DAB/ses/American.agr 3
May 15, 1991
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1 party from any obligation under this Agreement.
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All of the terms, covenants and conditions of
3 this Agreement shall be binding upon and shall inure to the
4 benefit of the Participant and the permitted successors and
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assigns of the Participant.
Whenever the term "Participant" is
6 used herein, such term shall include any other permitted
7 successors and assigns as herein provided.
8 The restrictions of this Section 107 shall
9 terminate and be of no further force and effect upon the issuance
10 by the Agency of a Certificate of Completion in the form attached
11 hereto as Attachment No. 5 as provided in Section 324 upon
12 completion of the Participant Improvements described in Section
13 302 of this Agreement and Attachment No.4.
II.
[200] CONDITION OF THE SITE
A.
[201]
Vesting of Title to the Site
16 As of the date of this Agreement Title to the Site is
17 vested in Participant.
B.
[202]
Condition of the Site
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19 Participant assumes all risk and responsibility for
20 any demolition and clearance of the Site as necessary for the
21 provision of Participant Improvements. Participant assumes all
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22 risk and responsibility as to the suitability of the Site for
the proposed development.
Agency makes no representations or
24 warranties concerning the Site, its suitability for the use
25 intended by the Participant, or the surface or subsurface
conditions of the Site.
If the soil or other surface or
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27 subsurface conditions of the Site are not in all respects
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May 15, 1991
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1 entirely suitable for the use or uses to which the Site will be
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put as of the date of this Agreement, Participant shall not be
excused from further performance under this Agreement and it
4 shall be the responsibility and obligation of Participant and
5 not Agency to take such action as may be necessary to place the
6 Site in a condition entirely suitable for the commencement,
7 development, and completion of the Participant Improvements.
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III. [300]
DEVELOPMENT.
[301]
A.
Development by Participant
10 Participant and Agency agree that the central purpose .
11 of this Agreement is to provide for the development of the Site
12 in a manner consistent with the Redevelopment Plan. Participant
13 shall develop on the Site a beverage can plant of at least
14 220,000 square feet, with an assessed value of at least
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$55,000,000.
1.
[302]
Scope of Development
17 The Site shall be developed by Participant as
18 provided in the "Scope of Development", which is attached hereto
19 as Attachment No. 4 and is incorporated herein.
20 The development shall include any plans and
21 specifications submitted to Agency for approval, and shall
22 incorporate or show compliance with all applicable mitigation
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23 measures and entitlements.
2.
[303]
Design Concept Drawings
25 By the respective times set forth therefor in the
26 Schedule of Performance (Attachment No.3), Participant shall
27 prepare and submit to the City of San Bernardino ("The City") for
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May 15, 1991
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1 its approval Design Concept Drawings and related documents
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containing .the overall plan for development of the Site.
The
3 Site shall be developed as established in this Agreement and such
4 documents, except as changes may be mutually agreed upon between
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Participant and Agency.
Any such changes shall be within the
6 limitations of the Scope of Development (Attachment No.4).
3.
[304]
Construction Drawings and Related
Documents
By the time set forth therefor in the Schedule of
Performance (Attachment No.3), Participant shall prepare and
submit to the City, construction drawings, landscape plan, and
related documents for development of the Property for
architectural review and written approval.
The landscaping and finish grading plans shall be
prepared by a professional landscape architect who may be the
same firm as Participant's landscape architect.
During the preparation of all drawings and plans,
staff of Agency and Participant shall hold regular progress
meetings to coordinate the preparation of, submission to, and
review of drawings, plans and related documents. The staff of
Agency and Participant shall communicate and consult informally
as frequently as is necessary to insure that the formal submittal
of any documents to Agency can receive prompt and complete
consideration.
4.
[305]
Cost of Construction
The cost of developing the Property and
constructing all Participant Improvements thereon shall be borne
by Participant except as provided in Section 315.
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May 15, 1991
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5.
[306]
Construction Schedule
Participant shall promptly begin and thereafter
3 diligently prosecute to completion the construction of the
4 Participant Improvements and the development of the Property.
5 Participant shall begin and complete all construction and
6 development of the Participant Improvements within the times
7 specified in the Schedule of Performance (Attachment NO.3).
8 Participant shall strictly conform to all time requirements and
9 limitations set forth in this Agreement.
6.
[307]
Bodily Injury and Property Damage
Insurance
Participant shall defend, assume all
responsibility for and hold the Agency, the City, and their
respective officers, agents and employees, harmless from, all
claims or suits for, and damages to, property and injuries to
persons, including accidental death (including attorneys fees and
costs), which may be caused by any of Participant's activities
under this Agreement, whether such activities or performance
thereof be by the Participant or anyone directly or indirectly
employed or contracted with by Participant and whether such
damage shall accrue or be discovered before or after termination
of this Agreement.
Participant shall take out and maintain a
comprehensive liability and property damage policy in the amount
of One Million Dollars ($1,000,000) combined single limit policy,
including contractual public liability, as shall protect
Participant, City and Agency from claims for such damages until
two (2) years after the issuance of a Certificate of Completion
for all of the Participant Improvements.
DAB/ses/American.agr
May 15, 1991
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1 Par~icipant shall furnish a certificate of
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insurance countersigned by an authorized agent of the insurance
3 carrier on a form of the insurance carrier setting forth the
4 general provisions of the insurance coverage. This countersigned
5 certificate shall name the City and Agency and their respective
6 officers, agents, and employees as additional insureds under the
7 policy. The certificate by the insurance carrier shall contain a
8 statement of obligation on the part of the carrier to notify City
9 and the Agency of any material change, cancellation or
10 termination of the coverage at least thirty (30) days in advance
11 of the effective date of any such material change, cancellation
12 or termination. Coverage provided hereunder by Participant shall
13 be primary insurance and not contributing with any insurance
maintained by Agency or City, and the policy shall contain such
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an endorsement.
The insurance policy or the certificate of
16 insurance shall contain a waiver of subrogation for the benefit
17 of the City and Agency.
18 Participant shall also furnish or cause to be
19 furnished to Agency evidence satisfactory to Agency that any
20 contractor with whom it has contracted for the performance of
21 work on the Site or otherwise pursuant to this Agreement carries
22 workers' compensation insurance as required by law.
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7.
[308]
City and Other Governmental Agency
Permits
Before commencement of the Participant
Improvements or other construction or development of any
buildings, structures or other works of improvement upon the
Site, Participant shall, at its own expense, secure or cause to
DAB/ses/American.agr
May 15, 1991
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1 be secured any and all permits which may be required by the City
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or any other governmental agency affected by such construction,.
development or work.
8.
[309]
Rights of Access
5 For the purpose of assuring compliance with this
6 Agreement, representatives of Agency and the City shall have the
7 right of access to the Site, without charges or fees, at normal
8 construction hours during the period of construction for the
9 purposes of this Agreement, including, but not limited to, the
10 inspection of the work being performed in constructing the
11 improvements, so long as they comply with all safety rules. Such
12 representatives of Agency or of the City shall be those who are
13 so identified in writing by the Executive Director of Agency.
14 Agency shall hold the Participant harmless from any bod~ly injury
15
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or related damages arising out of the activities of Agency and
the City as referred to in this Section 309 and resulting from
17 the gross negligence or willful misconduct of the City or Agency.
18 This Section 309 shall not be deemed to diminish or limit any
19 rights which the City or Agency may have by operation of law
21
20 irrespective of this Agreement.
9.
[310]
Local, State and Federal Laws
22 Participant shall carry out the construction of
23 the Participant Improvements and all related activities on the
24 Site in conformity with all applicable laws, including all-
25 applicable federal and state labor standards; provided, however,
26 participant and its contractors, successors, assigns,
27 transferees, and lessees are not waiving their rights to contest
DABfsesfAmerican.agr
May 15, 1991
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1 any such laws, rules or standards.
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10. [311]
Antidiscrimination During Construction
Participant, for itself and successors and
4 assigns, agrees that in the construction of the improvements
5 provided for in this Agreement, Participant shall not
6 discriminate against any employee or applicant for employment
7 because of race, color, creed, religion, age, sex, marital
8 status, handicap, national origin or ancestry.
9
[312]
B.
Taxes, Assessments, Encumbrances and Liens
10 Prior to issuance of a Certificate of Completion with
11 respect to all of the Participant Improvements pursuant to this
12 Agreement, Participant shall not place or allow to be placed on
13 the Site or any part thereof any mortgage, trust deed,
14 encumbrance or lien other than as expressly allowed by this
15
Agreement. Participant shall remove or have removed any levy or
16 attachment made on any of the Site or any part thereof, or
17 assure the satisfaction thereof within a reasonable time but in
18 any event prior to a sale thereunder.
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C.
[313]
Prohibition Against Transfer of the Site,
the Buildings or Structures Thereon and
Assignment of Agreement
21 Prior to the issuance by the Agency of a Certificate
22 of Completion as to any building or structure, Participant shall
23 not, except as permitted by this Agreement, without the prior
24 written approval of Agency, make any total or partial sale,
25 transfer, conveyance, assignment or lease of whole or any part of
26 the Site or of the buildings or structures on the Site. This
27 prohibition shall not be deemed to prevent a transfer expressly
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May 15, 1991
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1 permitted pursuant to Section 107 of this Agreement, or the
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granting of temporary or permanent easements or permits to
3 facilitate the development of the Site. This Section 313 shall
4 not be construed to restrict or limit the lease of individual
5 buildings or portions thereof by Participant in the ordinary
6 course of business.
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D.
[314]
Sewer Capacity Charge
1.
[315]
Sewer Capacity Rights
9 To partially offset the sewer capacity charge
10 anticipated to be imposed on the project by the Water Department
11 of the City of San Bernardino in the amount of Six Hundred Three
12 Thousand, Seven Hundred Fifty Dollars ($603,750.00), Agency shall
13 grant to participant One Hundred (100) sewer capacity rights
14 valued at Two Hundred Twenty Six Thousand Dollars ($226,000.00)
by the execution of a transfer document substantially in the
form of Attachment No.6.
Such document shall be executed and
17 the transfer made when payment of the sewer capacity charge is
18 required by the Water Department.
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2.
[316]
Payment of Remainder
20 Agency shall pay the remainder of the one time
21 sewer capacity charge to be imposed on the project, anticipated
22 by the parties to be Three Hundred Seventy Seven Thousand, Seven
23 Hundred Fifty Dollars ($377,750.00) but in no event shall the
24 Agency pay more than Four Hundred Thousand Dollars ($400,000.00).
25 A~ency may by separate agreement or understanding with the Water
26 Department, finance this payment over a periOd of years.
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May 15,1991
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[317] Mortgage, Deed of Trust, Sale and Lease-Back
Financing; Rights of Holders
1. [318] No Encumbrances Except Mortgages, Deeds
of Trust, or Sale and Lease-Back for
Development
Except as otherwise provided in this Agreement,
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mortgages, deeds of trust and sales and leases-back are to be
permitted before completion of the construction of the
Participant Improvements, but only for the purpose of securing
loans of funds to be used for financing the construction of the
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Participant Improvements or other improvements on the Site, and
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any other purposes necessary and appropriate in connection with
development under this Agreement, and only if the instruments
effecting such mortgages, deeds of trust and sales and leases-
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back contain the provisions of Sections 321 and 322 of this
Agreement.
Participant shall notify Agency in advance of any
mortgage, deed of trust or sale and lease-back financing. The
words "mortgage" and "trust deed" as used hereinafter shall
include sale and lease-back.
Participant shall not enter into
any such conveyance for financing without the prior written
approval of Agency, which approval Agency agrees to give if any
such conveyance for financing is given to a bank, savings and
loan association, or other similar lending institution and such
lender shall be deemed approved unless rejected in writing by the
Agency within fifteen (15) days after written notice thereof is
received by the Agency. The form of approval by Agency shall be
in writing which references this Section 318, executed by the
Executive Director of the Agency.
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2.
[319]
Holder Not Obligated to Construct
Improvements
The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated by the
provisions of this Agreement to construct or complete the
Participant Improvements or to guarantee such construction or
completion.
Nothing in this Agreement shall be deemed to
construe, permit or authorize any such hOlder to devote the Site
to any uses or to construct any improvements thereon, other than
those uses or Participant Improvements provided for or authorized
by this Agreement.
3.
[320]
Notice of Default to Mortgagee or Deed
or Trust HOlders: Right to Cure
13 With respect to any mortgage or deed of trust
14 granted by Participant as provided herein, whenever Agency shall
deliver any notice or demand to Participant with respect to any
breach or default by Participant in completion of construction of
17 the Participant Improvements, Agency shall at the same time
18 deliver to each holder of record of any mortgage or deed of trust
19 authorized by this Agreement a copy of such notice or demand.
20 Each such holder shall (inSOfar as the rights of Agency are
21 concerned) have the right, at its option, within thirty (30) days
22 after the receipt of the notice, to cure or remedy or commence to
24
23 cure or remedy any such default and to add the cost thereof to
the mortgage debt and the lien of its mortgage.
Nothing
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25 contained in this Agreement shall be deemed to permit or
26 authorize such holder to undertake or continue the construction
27 or completion of the Participant Improvements (beyond the extent
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DAB/ses/American.agr
May 15, 1991
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1 necessary to conserve or protect the Participant Improvements or
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construction already made) without first having expressly assumed
3 the Participant's obligations to Agency by written agreement
4 satisfactory to Agency. The hOlder, in that event, must agree to
5 complete, in the manner provided in this Agreement, the
6 Participant Improvements to which the lien or title of such
7 hOlder relates, and submit evidence satisfactory to Agency that
8 it has the qualifications and financial responsibility necessary
9 to perform such obligations. Any such holder properly completing
10 such Participant Improvements shall be entitled, upon compliance
11 with the requirements of Section 324 of this Agreement, to a
12 Certificate of Completion (as therein defined).
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4.
[321]
Failure of Holder to Complete
Improvements
14
In any case where, thirty (30) days after default
by the Participant in completion of construction of Participant
Improvements under this Agreement, the holder of any mortgage or
deed of trust creating a lien or encumbrance upon the Site or
any part thereof has not exercised the option to construct, or if
it has exercised the option and has not proceeded diligently with
construction, Agency may purchase the mortgage or deed of trust
by payment to the hOlder of the amount of the unpaid mortgage or
deed of trust debt, including principal and interest and all
other sums secured by the mortgage or deed of trust.
If the
ownership of the Site or any part thereof has vested in the
holder, Agency, if it so desires, shall be entitled to a
conveyance from the holder to Agency upon payment to the hOlder
of an amount equal to the sum of the following:
DABjsesjAmerican.agr
May 15, 1991
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a.
The unpaid mortgage or deed of trust debt at the time
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title became vested in the hOlder (less all
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appropriate credits, including those resulting from
collection and application of rentals and other income
received during foreclosure proceedings);
b.
All expenses with respect to foreclosure;
c.
The net expense, if any (exclusive of general
overhead), incurred by the hOlder as a direct result
of the subsequent management of the Site or part
thereof;
d.
The costs of any Participant Improvements made by such
hOlder; and
An amount equivalent to the interest that would have
e.
accrued on the aggregate of such amounts had all such
amounts become part of the mortgage or deed of trust
debt and such debt had continued in existence to the
f.
date of payment by Agency; less
Any income derived by the lender from operations
19 conducted on the Site (the receipt of principal and
20 interest payments in the ordinary course of business
21 shall not constitute income for the purposes of this
22 subsection (f)).
23 The foregoing portion of this Section 321 shall
24 be in addition to and shall not limit rights or remedies
25 available to Agency by virtue of its ownership of the Site.
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5.
[322]
Right of the Agency to Cure Mortgage or
Deed of Trust Default
In the event of a mortgage or deed of trust
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1 default or breach by Participant prior to the completion of any
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part thereof and the hOlder of any mortgage or deed of trust has
3 not exercised its option to construct, Agency may cure the
4
default.
In such event, Agency shall be entitled to
5 reimbursement from Participant of all proper costs and expenses
6 incurred by Agency in curing such default, and such costs and
7 expenses shall be included as part of the loan proceeds under
8 Section 315.
F.
[323]
Right of Agency to Satisfy Other Liens on
the Site
Prior to the completion of construction of the
Participant Improvements, and after Participant has had written
notice and has failed after a reasonable time, but in any event
not less than thirty (30) days, to challenge, cure, adequately
bond against, or satisfy any liens or encumbrances on the Site
which are not otherwise permitted under this Agreement, Agency
shall have the right but not the obligation to satisfy any such
liens or encumbrances and to include the cost thereof as part of
the loan proceeds under Section 315.
G.
[324]
Certificate of COmpletion
Promptly after completion of all Participant
Improvements in conformity with this Agreement and the issuance
by the City of San Bernardino of Certificates of Occupancy for
all buildings on the Site, Agency shall furnish Participant with
a Certificate of Completion (Attachment NO.5) upon written
request therefor by Participant.
Agency shall not unreasonably
withhold any such Certificate of Completion.
The Executive
Director may execute such Certificate of COmpletion on behalf of
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May IS, 1991
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Agency.
Such Certificate of Completion shall be a conclusive
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determination of satisfactory completion of the construction
3 required by this Agreement upon the Site and the Certificate of
4 Completion shall so state. Agency may also furnish Participant
5 with a Certificate of Completion for portions of the improvements
6 upon the Site as they are properly completed and ready to use if
7
Participant is not in default under this Agreement.
After
8 recordation of such Certificate of Completion, any party then
9 owning or thereafter purchasing, leasing or otherwise acquiring
10 any interest in the Site or the Participant Improvements shall
11 not (because of such ownership, purchase, lease or acquisition),
12 incur any obligation or liability under this Agreement except
13 that such party shall be bound by any covenants contained in the
14 documents establishing covenants on the Site in accordance with
16 applicable according to its terms.
the provisions of Section 401 of this Agreement which shall be
17 If the Agency refuses or fails to furnish a
18 Certificate of Completion for the Site, or part thereof, after
19 written request from Participant, the Agency shall, within thirty
.20 (30) days of written request therefor, provide Participant with a
21 written statement of the reasons Agency refused or failed to
22 furnish a Certificate of Completion. The statement shall also
23 contain Agency's opinion of the actions that Participant must
24
take to obtain a Certificate of Completion.
If the reason for
25 such refusal is confined to the immediate availability of
26 specific items of materials for landscaping, Agency will issue
27 its Certificate of Completion upon the posting of a bond by the
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May 15, 1991
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the work not yet completed.
If Agency shall have failed to
3
provide such written statement within said thirty (30) day
4 period, Participant shall be deemed entitled to the Certificate
5 of Completion.
6 Such Certificate of Completion shall not constitute
7 evidence of compliance with or satisfaction of any obligation of
8 the Participant to any holder of any mortgage, or any insurer of
9 a mortgage securing money loaned to finance the Participant
10
Improvements, or any part thereof.
Such Certificate of
11 Completion is not a notice of completion as referred to in the
12 California Civil COde, Section 3093.
13
G.
[325]
Conditions, Covenants and Restrictions
Prior to the issuance of the Certificate of Completion
Participant shall prepare, and following approval by Agency shall
record conditions, covenants and restrictions affecting the Site
17 which shall, among other things, contain the nondiscrimination
18 provisions of Section 401.
III. [400]
USE OF THE SITE
19
20
21
A.
[401]
Uses
22 successors, its assigns, and every successor in interest to the
Participant covenants and agrees for itself, its
23 Site or any part thereof, that during construction and
24 thereafter, Participant and such successors and such assignees,
25 shall devote the Site to the uses specified in the Redevelopment
26 Plan as may be amended from time to time for the periods of time
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specified therein.
The Participant further covenants and
DABjsesjAmerican.agr
May 15, 1991
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1 warrants that Participant shall develop improvements on the Site
2
in accordance with the Scope of Development (Attachment No.4).
3 Participant covenants to develop and operate the Site (or cause
4 it to be operated) in conformity with all applicable laws. The
5 foregoing covenants shall run with the land.
6 Participant covenants by and for itself and any
7 successors in interest that there shall be no discrimination
8 against or segregation of any person or group of persons on
9 account of race, color, creed, religion, sex, marital status,
10 age, handicap, national origin or ancestry in the sale, lease,
11 sublease, transfer, use, occupancy, tenure or enjoyment of the
12 Site, nor shall Participant itself or any person claiming under
13 or through it establish or permit any such practice or practices
14 of discrimination or segregation with reference to the selection,
15
16
location, number, use or occupancy of tenants, lessees,
subtenants, sub1essees or vendees of the Site.
The foregoing
17 covenants shall run with the land.
18 Participant shall refrain from restricting the rental,
19 sale or lease of the Site on the basis of race, color, creed,
21
20 religion, sex, marital status, handicap, national origin or
ancestry of any person.
All such deeds, leases or contracts
22 shall contain or be subject to substantially the following
24
23 nondiscrimination or non-segregation clauses:
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1.
In deeds: "The grantee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through them, that there shall be no
DAB/ses/American.agr
May 15, 1991
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discrimination against or segregation of, any person
or group of persons on account of race, cOlor, creed,
religion, sex, marital status, age, handicap, national
origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through him or
her, establish or permit any such practice or
practices of discrimination or segregation with
reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees
or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
2.
In leases:
"The lessee herein covenants by and for
himself or herself, his or her heirs, executors,
administrators and assigns, and all persons claiming
under or through him or her, and this lease is made
and accepted upon and subject to the following
conditions:
"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, handicap, age, ancestry or national origin in
the leasing, subleasing, transferring, use, occupancy,
tenure or enjoyment of the premises herein leased nor
shall the lessee himself or herself, or any person
claiming under or through him or her, establish or
DAB/ses/American.agr
May 15, 1991
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permit any such practice or practices of
discrimination or segregation with reference to the
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selection, location, number, use or occupancy of
4
tenants, lessees, sublessees, subtenants or vendees in
the premises herein leased."
3.
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, age, handicap, ancestry or
national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the
premises, nor shall the transferee himself or herself
or any person claiming under or through him or her,
establish or permit any such practice or practices of
discrimination or segregation with reference to the
selection, location, number use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of
the premises."
B..
[402]
Maintenance of the Site
20 Participant shall maintain the Participant
21 Improvements and all other improvements on the Site and shall
22 keep the Property free from any accumulation of debris or waste
23 materials.
24 Participant further agrees to maintain the Site in a
25 neat and attractive manner until construction of the improvements
26 described in this Agreement is complete so as not to, in the
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reasonable determination of an appropriate officer of the City,
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May 15, 1991
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1 be a public nuisance, or be detrimental to the health, safety and
2
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welfare, or impair value of property within one thousand (1,000)
feet of the Site, and agrees that in the event Participant fails
4 to do so, Agency may enter upon the Site for the purposes of
5 performing necessary and desirable maintenance, that Participant
6 will be responsible for the cost of any such maintenance
7 undertaken by Agency, which shall be paid within thirty (30) days
8 after receipt by Participant of written demand therefor.
9 Participant agrees to prepare and record Covenants, Conditions
10 and Restrictions approved by Agency, consistent with this Section
11 402 including the maintenance responsibilities outlined in this
12 Agreement which may not be amended nor revoked without the
13 approval of Agency.
14 Participant shall also maintain the landscaping
required to be planted under the Scope of Development (Attachment
NO.4) in a healthy condition.
If, at any time, Participant
17 fails to maintain said landscaping, and said condition is not
18 corrected after expiration of thirty (30) days from date of
19 written notice from Agency, Agency may perform the necessary
20 landscape maintenance and Participant shall pay such costs as are
21 reasonably incurred for such maintenance.
22 Issuance of a Certificate of Completion by Agency
23 shall not affect Participant's obligations under this Section.
24
C.
[403]
Rights of Access
25 Participant hereby grants to Agency, for itself and>
26 for the City and other public agencies, at their sole risk and
27 expense, the right to enter the Site or any part thereof at all
28
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May 15, 1991
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reasonable times for the purpose of construction,
2
reconstruction, maintenance, repair or service of any public
3 improvements or public facilities located on the Site. Any such
4 entry shall be made only after reasonable notice to Participant,
5 and Agency shall indemnify and hold Participant harmless from any
6 costs, claims, damages or liabilities pertaining to any entry..
7 This Section 403 shall not be deemed to diminish or limit any
8 rights which the City or Agency may have by operation of law
9 irrespective of this Agreement.
D.
[404]
Effect of Violation of the Terms and
provisions of this Agreement After
Completion of Construction
12 The covenants established in this Agreement shall,
13 without regard to technical classification and designation, be
14
15
binding for the benefit and in favor of Agency, its successors
and assigns, as to those covenants which are for its benefit.
16 The covenants contained in this Agreement shall remain in effect
17
until the termination date of the Redevelopment Plan.
The
18 covenants against racial discrimination shall remain in
19 perpetuity.
20 Agency is deemed the beneficiary of the terms and
21 provisions of this Agreement and of the covenants running with
22 the land, for and in its own rights and for the purposes of
23 protecting the interests of the community and other parties,
24 public or private, in whose favor and for whose benefit this
25 Agreement and the covenants running with the land have been
26 provided. The Agreement and the covenants shall run in favor of
27
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DAB/ses/American.agr 23
May 15, 1991
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1 an owner of any land or interest therein in the Site or in the
2
3
Project Area. Agency shall have the right, if the Agreement or
covenants are breached, to exercise all rights and remedies, and
4 to maintain any actions or suits at law or in equity or other
5 proper proceedings to enforce the curing of such breaches to
6 which it or any other beneficiaries of this Agreement and
7 covenants may be entitled.
8
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[500]
V.
GENERAL PROVISIONS
[501]
A.
Notices, Demands and Communications Between
the Parties
11
Written notices, demands and communications between
12
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Agency and Participant shall be sufficiently given if delivered
by hand (and a receipt therefor is obtained or is refused to be
given) or dispatched by registered or certified mail, postage
prepaid, return receipt requested, to the principal offices of
Agency and Participant.
Such written notices, demands and
communications may be sent in the same manner to such other
addresses as such party may from time to time designate by mail
as provided in this Section 501.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked
if delivered by registered or certified mail.
B.
[502]
Conflicts of Interest; Nonliability
No member, official or employee of Agency shall have
any personal interest, direct or indirect, in this Agreement. No
member, official or employee shall participate in any decision
relating to the Agreement which affects his personal interests or
DAB/ses/American.agr 24
May 15, 1991
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2
which he is directly or indirectly interested.
No member,
3
official or employee of Agency shall be personally liable to
4 Participant, or any successor in interest, in the event of any
5 default or breach by Agency or Participant, or for any amount
6 which may become due to Participant or its successor or on any
7 obligations under the terms of this Agreement.
8 Participant represents and warrants that it has not
9 paid or given, and shall not payor give, any third party any
10 money or other oonsideration for obtaining this Agreement.
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C"
[503]
Enforoed Delay; Extension of Times of
Performance
In addition to specifio provisions of this Agreement,
performanoe by either party hereunder shall not be deemed to be
in default, and all performance and other dates speoified in this
Agreement shall be extended, where delays or defaults are due to:
war; insurrection; floods; earthquakes; fires; oasua1ties; acts
of God; aots of the pub1io enemy; freight embargoes;
governmental restrictions or priority; litigation; unusually
severe weather; acts or omissions of another party; acts or
failures to aot of the City of San Bernardino or any other public
or governmental agency or entity (other than the acts or failures
to act of Agency which shall not excuse performance by Agency);
or any other causes beyond the control or without the fault of
the party olaiming an extension of time to perform.
Notwithstanding anything to the contrary in this Agreement, an
extension of time for any such cause shall be for the period of
the enforced delay and shall oommence to run from the time of the
DAB/ses/American.agr
May 15, 1991
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1 commencement of the cause, if notice by the party claiming such
2
extension is sent to the other party within thirty (30) days of
3 the commencement of the cause. Times of performance under this
4 Agreement may also be extended in writing by the mutual agreement
5 of Agency and Participant.
6 Participant is not entitled pursuant to this Section
7 503 to an extension of time to perform because of past, present,
8 or future difficulty in obtaining suitable temporary or permanent
9 financing for the development of the Site.
10
[504]
D.
Inspection of Books and Records
11 Agency has the right at all reasonable times to
12 inspect the books and records of Participant pertaining to the
13 Site as pertinent to the purposes of this Agreement. Participant
14 has the right at all reasonable times to inspect the public
15
16 purposes of the Agreement.
records of Agency pertaining to the Property as pertinent to the
17
18
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VI.
[600]
DEFAULTS AND REMEDIES
A.
[601]
Defaults - - General
Subject to the extensions of time set forth in Section
20 503, failure or delay by any party to perform any term or
22
21 provision of this Agreement constitutes a default under this
Agreement.
The party who so fails or delays must immediately
23 commence to cure, correct, or remedy such failure or delay, and
24 shall complete such cure, correction or remedy with diligence.
25 The injured party shall give written notice of default
26 to the party in default, specifying the default complained of by
27
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the injured party. Except as required to protect against further
DAB/ses/American.agr 26
May 15, 1991
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the injured party may not institute proceedings against the party
in default until thirty (30) days after giving such notice.
4 Failure or delay in giving such notice shall not constitute a
5 waiver of any default, nor shall it change the time of default.
6
[602]
B.
Legal Actions
7
[603]
1.
Institution of Legal Actions
8 In addition to any other rights or remedies
9 hereunder, Agency or Participant may institute legal action to
10 cure, correct or remedy any default, to recover damages for any
11 default, or to obtain any other remedy consistent with the
12 purpose of this Agreement. Any legal actions initiated pursuant
13 to this Agreement or otherwise with respect to its subject matter
14 must be instituted in the Superior Court of the County of San
15
16
17
Bernardino, State of California, or in an appropriate municipal
court in that county.
2.
[604]
Applicable Law
18 The laws of the State of California shall govern
19 the interpretation and enforcement of this Agreement.
3.
[605]
Acceptance of Service of Process
20
21 In the event that any legal action is commenced
22 by Participant against Agency, service of process on Agency shall
23 be made by personal service upon the Executive Director or in
24 such other manner as may be provided by law.
25 In the event that any legal action is commenced
26 by any party against Participant, service of process on such
27 party shall be made by personal service upon Participant or in
28
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May 15, 1991
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whether made within or without the state of California.
3
C.
[606]
Rights and Remedies Are Cumulative
4 Except as otherwise expressly stated in this
5 Agreement, the rights and remedies of the parties are cumulative,
6 and the exercise by any party of one or more of such rights or
7 remedies shall not preclude the exercise by it, at the same or
8 different times, of any other rights or remedies for the same
9 default or any other default by any other party.
10
D.
[607]
Inaction Not a Waiver of Default
11 Any failures or delays by any party in asserting any
12 of its rights and remedies as to any default shall not operate as
13 a waiver of any default or of any such rights or remedies, or
14
deprive any party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect,
15
16 assert or enforce any such rights or remedies.
17
[608]
E.
Remedies and Rights of Termination
1.
[609]
Damages
19 Prior to the recordation of a Certificate of
20 Completion with respect to all of the Participant Improvements,
21 if either Participant or Agency defaults with regard to any of
22 the provisions of this Agreement, the non-defaulting party shall
23 serve written notice of such default upon the defaulting party.
24 If the default is not cured by the defaulting party within thirty
25 (30) days after service of the notice of default, the defaulting
26 party shall be liable to the other for any damages caused by such
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default.
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May 15, 1991
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[610]
Action for Specific Performance
2
If either Participant or Agency defaults under
3 any of the provisions of this Agreement prior to the recordation
4 of a Certificate of Completion for the Participant Improvements
5 to be made thereon, the non-defaulting party shall serve written
6 notice of such default upon the defaulting party with a copy to
7 the remaining party. If the default is not commenced to be cured
8 by the defaulting party within thirty (30) days after service of
9 the notice of default, the non-defaulting party at its option may
10 institute an action for specific performance of the terms of this
11 Agreement.
12
VII. [700]
SPECIAL PROVISIONS
13
[701]
A.
Submission of Documents to Agency for
Approval.
14
Whenever this Agreement requires Participant to submit
plans, drawings or other documents to Agency for approval, which
shall be deemed approved if not acted on by Agency within the
specified time, said plans, drawings or other documents shall be
accompanied by a letter stating that they are being submitted and
will be deemed approved unless rejected by Agency within the
stated time.
If there is not a time specified herein for such
Agency action, Participant may submit a letter requiring Agency
approval or rejection of documents within thirty (30) days after
submission to Agency or such documents shall be deemed approved.
B.
[702]
Successors In Interest
The terms, covenants, conditions and restrictions of
this Agreement shall extend to and shall be binding upon and
inure to the benefit of the heirs, executors, administrators,
DAB/ses/American.agr
May 15, 1991
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1 successors and assigns of Participant.
2
Upon the termination of the restrictions imposed by
3 Section 107 of this Agreement, which terminate upon the issuance
4 by Agency of a Certificate of Completion with respect to all of
5 the Participant Improvements pursuant to this Agreement, all of
6 the terms, covenants, conditions and restrictions of this
7 Agreement which do not terminate upon the issuance of such
8 Certificate of Completion shall be deemed to be, and shall,
9 constitute terms, covenants, conditions and restrictions running
10 with the land.
11
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VIII. [800]
ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in four (4) duplicate
13 originals, each of which is deemed to be an original. This
14 Agreement includes pages 1 through 34 and Attachments 1 through
15
6, which constitute the entire understanding and agreement of the
16 parties.
17 No private entity shall be deemed to be a third party
18 beneficiary with respect to any provisions of this Agreement.
19 This Agreement integrates all of the terms and
20 conditions mentioned herein or incidental hereto, and supersedes
21 all negotiations or previous agreements among the parties or
22 their predecessors in interest with respect to all or any part of
23 the subject matter hereof.
24 All waivers of the provisions of this Agreement must
25 be in writing by the appropriate authorities of Agency and
26 Participant, and all amendments hereto must be in writing by the
27 appropriate authorities of Agency and Participant.
28
DAB/ses/American.agr
May 15, 1991
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Each individual signing below represents and warrants
that he has the authority to execute this Agreement on behalf of
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IX.
3 and bind the party he purports to represent.
[900]
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
5 This Agreement, when executed by Participant and delivered
6 to Agency, must be authorized, executed and delivered by Agency
7 on or before sixty (60) days after signing and delivery of this
8 Agreement by Participant or this Agreement shall be void, except
9 to the extent that Participant shall consent in writing to a
10 further extension of time for the authorization, execution and
11 delivery of this Agreement. The date of this Agreement shall be
12 the date when it shall have been signed by the Agency as
13 evidenced by the date first above shown.
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May 15, 1991
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IN WITNESS WHEREOF, Agency, and Participant have executed
this Agreement on the day and date first above shown.
"Agency"
REDEVELOPMENT AGENCY OF THE CITY
OF SAN BERNARDINO
By:
Executive Director
"Participant"
AMERICAN NATIONAL CAN COMPANY
By:
By:
APPROVED AS TO PROGRAM:
By:
APPROVED AS TO FORM
17 AND LEGAL CONTENT:
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DAB/ses/American.agr
May 15, 1991.
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STATE OF CALIFORNIA
)
)ss.
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COUNTY OF SAN BERNARDINO
4 On this day of , in the year
, before me, the undersigned, a Notary Public in and for
5 the State of California, personally appeared Kenneth J. Henderson
personally known to me (or proved to me on the basis of
6 satisfactory evidence) t<;> be the person who executed this
instrument as the Executive Director of the REDEVELOPMENT AGENCY
7 OF THE CITY OF SAN BERNARDINO and acknowledged to me said Agency
executed it.
8
9
Signature of Notary Public
(SEAL)
DAB/ses/American.agr
May 15, 1991
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STATE OF CALIFORNIA
)
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8
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COUNTY OF SAN BERNARDINO
On
undersigned, a
appeared
personally
satisfactory
who executed
before me, the
Notary Public in and for said State, personally
,
known to me or proved to me on the basis of
evidence to be the person
the within instrument as the President and the
of the corporation that executed the
within instrument, and acknowledged to me that such corporation
executed the same.
WITNESS my hand and official seal.
DAB/ses/American.agr 34
May 15, 1991
Attachment 1
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LEGAL DESCRIPTION
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I All that land situated in the State of California, County of San
2
3
Bernardino, described as follows:
4 PARCEL NO.1:
5
6 Parcel 2 of Parcel Map No. 4202, as shown by Map on file in Book 40,
7 page(s) 45 and 46 of Parcel Maps, records of San Bernardino County,
8 California.
9
10 PARCEL llO. 2:
11
12 An easement. 80 feet wide for road purposes over a portion of Sections 12
13 and 13, Township 1 North, Range 5 West, San Bernardino Base and Meridian,
14
15
16
according to the extension of the lines of the Official Government Survey
extended into Rancho Muscupiabe, described as follows:
17 Being 40 feet on either side of the center line which is described as
18 follows:
19
20 (The 40 foot lines being lengthened or shortened to intersect the
21 Southeasterly line of Palm Avenue and the Westerly lines of the property
22 conveyed to San Bernardino County Flood Control District, by deed
23 recorded July 27, 1948, in Book 2268, page 146, Official Records of San
24 Bernardino County, California).
25
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ATTACHMENT NO. 2
.Page 1 of 3
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1 Beginning at the Southwest corner of that certain parcel of land as
2
conveyed to the State of California, by deed recorded October 25, 1955 in
3 Book 3772, page 93, of Official Records, and described as Parcel "C" in
4 the above mentioned deed, said Southwest corner being on the Easterly
5 line of Palm Avenue, 40 feet wide, as it now exists; thence South 27
6 degrees 15 minutes 41 sections West, 642.71 feet to the true point of
i beginning of said center line; thence South 38 degrees 55 minutes 29
8 seconds East, 1366.00 feet to a tangent curve concave to the Northeast,
9 having a radius of 464.00 feet and a central angle of 61 degrees 22
10 minutes 04 seconds; thence Southeasterly and Easterly along the center
11 line of said curve a distance of 496.98 feet to a tangent line; thence
12 North 79 degrees 42 minutes 27 seconds East, 354.26 feet to a tangent
13 curve concave to the South, having a radius of 286.00 feet, and a central
14 angle of 61 degrees 34 minutes; thence Easterly and Southeasterly along
15
the center line of said curve a distance of 307.32 feet to a tangent
16 line; thence South 38 degrees 43 minutes 33 seconds East, 780.25 feet to
17 a tangent curve concave to the Southwest, having a radius of 1986.00
18 feet, and a central angle of 11 degrees 29 minutes 20 seconds; thence
19 Southeasterly 398.23 feet along the center line of said curve to a
20 tangent line; thence South 27 degrees 14 minutes 13 seconds East, 1207.52
21 feet along said line to a point in a tangent curve concave to the
22 Northeast and having a radius of 300.00 feet; thence Southeasterly and
23 Easterly along said curve a distance of 471.24 feet to a point in a
24 tangent line; thence North 62 degrees 45 minutes 47 seconds East along
25 said line a distance of 120.00 feet to a point in a tangent curve concave
26
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to the Southeast and having a radius of 640.00 feet; thence Northeasterly
and Easterly along said curve a distance of 245.56 feet to a point of
ATTACHMENT NO. 2
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termination in said right-of-way, of the San Bernardino County Flood
Control DIstrict. (Shown as Industrial Parkway (private) on said Parcel
3 Maps. )
5 Except any portion lying within Parcell.
6
i JH:kak:3916H
ATTACHMENT NO. 2
Page 3 of 3
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3. Execution of Agreement
by Agency. Agency shall
4 approve and execute this
Agreement, and shall
5 deliver one (1) copy
thereof to Participant.
6
2. Obtain Design Review
Approval. Agency and
8 City approve Design
Concept Drawings
9 (sufficient time should
be allowed for possible
10 initial denial by either
Agency or City).
11
l:a. Sub m i t Com p 1 e t e d
Construction and
13 g r a din g p 1 a n s .
Participant will submit
14 completed construction
and grading plans and
15 all other plans and
documents required by
16 Section 304.
17
4.
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6.
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Obtain plan check
approval, obtain
building permits and
commence construction,
Participant shall
obtain necessary plan
check approval, obtain
all building permits and
begin construction.
Complete Construction
Participant shall
complete construction
and obtain a Certi-
ficate of Completion.
DAB/ses/American.agr
May 15, 1991
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ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
Not later than sixty (60)
days after the date of
execution and submission of
two (2) copies of this
Agreement to Agency by
Participant.
Not later than one hundred
twenty (120) days after the
effective date of this
Agreement.
Not later than one hundred
fifty (150) days after the
effective date of this
Agreement.
Not later than two hundred
ten (210) days after the
effective date of this
Agreement.
Not later than nineteen
(19) calendar months from
the effective date of this
Agreement.
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ATTACHMENT NO. 4
2
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SCOPE OF DEVELOPMENT
I.
GENERAL DESCRIPTION
4 The Site is specifically delineated on the Site Map
(Attachment No.1) and the Legal Description (Attachment No.2)
5 pursuant to Section 103 of this Agreement.
6
II.
DEVELOPMENT
7 Participant shall develop the Site with a beverage can
plant consisting of at least 220,000 square feet, having a
8 completed assessed value of at least $55,000,000.
9 Participant shall complete all of the improvements set
forth in this Scope of Development (Attachment No.4) to be
10 constructed in one phase. All of the improvements to be provided
by the Participant on the Site constitute the "Basic Participant
11 Improvements." The Basic Participant Improvements and all those
off-sit~ improvements, which are required in connection with this
12 development (if any), and which are required to be provided by
the Participant (the "Off-Site Improvements") together
13 constitute the "Participant Improvements".
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The Participant shall commence and complete the
Participant Improvements by the respective times established
therefor in the Schedule of Performance (Attachment No.3).
The Participant shall provide parking in conformity with
all applicable City requirements.
III. DEVELOPMENT STANDARDS
The following development standards shall apply to the
19 Participant Improvements:
20 A. Setbacks. Minimum setbacks shall conform to the San
Bernardino Municipal Code (the "City Code"); and the
21 Redevelopment Plan.
22 B. Vehicular Access. The placement of vehicular
driveways shall be coordinated with the needs of proper street
23 traffic flow. In the interest of minimizing traffic congestion,
Agency will control the number and location of curb breaks for
24 access to the Property for off-street parking and truck loading.
25 C. Loading. Adequate loading and unloading space shall
be provided. Loading spaces visible from streets shall be
26 landscaped or screened to prevent an unsightly or barren
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May 15, 1991
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appearance.
Code.
Said requirements shall also conform to the City
2
D. Signs. Signs shall be limited in size, subdued and
3 otherwise designed to contribute positively to the environment.
Signs identifying the use will be permitted, but their height,
4 size, location, color, lighting and design will be subject to
Agency and City approval, and signs must conform to the City
5 Code.
6 E. Screening. All outdoor storage of materials or
equipment shall be enclosed or screened to the extent and in the
7 manner required by Agency and the City.
8 F. Landscaping. The Participant shall provide and
maintain landscaping within the public rights-of-way and within
9 setback area along all street frontages and conforming with the
Design COncept Drawings as approved by Agency.
Landscaping shall consist of trees, shrubs and
11 installation of an automatic irrigation system adequate to
maintain such plant material. The type and size of trees to be
12 planted, together with a landscaping plan, shall be subject to
approval by the City's Planning Department prior to planting.
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G. utilities. Sewer drainage and utility lines, conduits
or systems shall not be constructed or maintained above the
ground level of the Property unless such installations are within
approv~4 enclosed structures, and shall conform to requirements
of the City of San Bernardino or other applicable governmental or
private agency having jurisdiction of the work. Storm drainage
for all hard surfaced areas shall be drained or may be sheet
flowed to storm sewers. No drainage shall flow across public
sidewalks. All non polluted waste water, such as waste air
conditioning water, shall be drained to the storm or sanitary
drainage systems as permitted by local codes.
IV. PUBLIC IMPROVEMENTS AND UTILITIES
Participant, at its own cost and expense, shall provide or
21 cause to be provided the following public impro~ements within the
time set forth for the completion of the Participant Improvements
22 in the Schedule of Performance (Attachment No.3):
23
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1.
Improvement as required by the City by resurfacing,
rebuilding or new construction of the existing
streets, alleys or other public rights-of-way
(inCluding catch basins, curbs and gutters, drive and
curb cuts, and drives between the property line of the
Property and the public rights-of-way) abutting on the
Property. No street widening is anticipated in
connection with the Property.
Page 2 of 3
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May 15, 1991
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2.
Installation of street lighting, signs and fire
hydrants in connection wi th the Property as may be
required.
Installation of public sidewalks along the frontage of
the pUblic streets abutting on the Property or within
the rights-of-way lines of such public streets, and
appropriate street landscaping which Agency or City
might require.
2
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3.
5
4.
Installation or relocation by the public utility
companies of such sewers, drains, water and gas
distribution lines, electric, telephone and telegraph
lines, and all other public utility lines,
installations and facilities as are necessary to be
installed or relocated on or in connection with the
Property by reason of the redevelopment contemplated
by the Redevelopment Plan and the development of the
Property. Agency shall not be responsible for, nor
bear any portion of the cost of, installing the
necessary utility connections within the boundaries of
the Property between the improvements to be
constructed by Participant and the water, sanitary
sewer, and storm drains, mains or other publiC
utilities owned by the City or by any public utility
company within or without such boundaries, or
electric, gas, telephone or other public lines owned
by a public utility company within or without such
boundaries, and Participant shall secure any permits
required for any such installation without expense to
Agency.
17 Those of the improvements required to be provided pursuant to
this Part IV of the Scope of Development (Attachment No.4)
18 constitute the "Off-Site Improvements."
19
V.
DEMOLITION AND SOILS
20 Participant assumes all responsibility for surface and
subsurface conditions at the Property, and the suitability of the
21 Property for the Participant Improvements. If the surface and
subsurface conditions are not entirely suitable for such
22 development and use, Participant shall at its cost take all
actions necessary to render the Property entirely suitable for
23 such development. Participant has undertaken all investigation
of the Property it has deemed necessary and has not received or
24 relied upon any representations of Agency, the City, or their
respective officers, agents and employees. Participant shall
25 undertake at its cost all demolition required in connection with
the development of Participant Improvements.
Page 3 of 3
DAB/ses/American.agr
May 15, 1991
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Attachment No. 5
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
)
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[Space above for Recorder.]
3
4
5
6
CERTIFICATE OF COMPLETION FOR
7 CONSTRUCTION AND DEVELOPMENT
8 WHEREAS, pursuant to that certain Owner's Participation
Agreement entered into between the Agency, and American National
9 Can Company ("Participant-) dated as of
("OPA"), the Participant is entitled to the issuance of a
10 Certificate of Completion upon the completion of those
improvements required by the OPA to be developed by the
11 Participant, (the "Participant Improvements"): and
12 WHEREAS, such certificate shall be conclusive determination
of satisfactory completion of the construction required by the
13 OPA: and
14
15
WHEREAS, the Agency has conclusively determined that the
construction on the above described Property required by the OPA
has been satisfactorily completed:
16 NOW THEREFORE,
17 1. The Agency does hereby certify that the construction
of the Participant Improvements has been fully and satisfactorily
18 performed and completed.
19 2. Nothing contained in this instrument shall modify in
any other way other provisions of the OPA. All executory
20 obligations of the Participant pursuant to the OPA shall remain
in full force and effect.
21
IN WITNESS WHEREOF, the Agency has executed this
22 certificate this day of , 19
23 REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
24
25
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By:
Executive Director
Page 1 of 3
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May 15, 1991
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STATE OF CALIFORNIA
)
)ss.
)
COUNTY OF SAN BERNARDINO
4 On this day of ,19 before me,
the undersigned, a Notary Public in and for-slaid State,
5 personally appeared
, known to me (or proved to me on the basis of
6 satisfactory evidence) to be the person who executed this
instrument as the Executive Director of the Redevelopment Agency
7 of the City of San Bernardino and acknowledged to me that the
Redevelopment Agency of the City of San Bernardino executed it.
8
9
Signature of Notary Public
SEAL
Page 2 of 3
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May 15, 1991
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1 EXHIBIT 1
2
0 3 (DESCRIPTION)
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Page 3 of 3
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DAB/ses/American.agr
May 15, 1991
Contract No.
\,'A TER DEPARTME~O'T
o CITY HALL
100 N. "0" STREET 92401 . P. O. BOX 710 92402
SAN BERNARDINO. CALIFORNIA
(714) 383.5141
Assignment No.
^ BOARD OF' WATER COMMIS.IONERS
..., PRESIDENT
MARGARET H. CHANDLER
COMMI.SIONIRS
ROBERT BIVENS
EMILIA GARCIA
JAMES H. URATA
HAROLD W. WJLLIS
if". e.~..
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"l'tR ott
HERBERT .. WESSEL
aI:H."AL MANAGEII
.JOSEPH F. STEJSKAL
Dlltl!eTOIt. ENGINEERING.
CONSTRUCTION.MAINTENANCE
BERNARD C. KERSEY
DIItIl:CTOIII, ADMINISTRATION
. FINANe.
hereby assigns III right, title Ind Interest for capecity
right(sl purchased in Iccordenee with the terms Ind conditions of the Purchase Agreement or the Term Purchlse Agreement for sewer
cepecity rights between the City of Son Bernardino Ind the undersigned to:
(II The City of Son Bernerdino for the purpose of resele by the City.
(bl The City of Son Bernerdino, in setisflction of the sewer connection fee pursuent to Section 13.08.05O(B) of the
Code of Ordinlnces, City of Son Bernerdlno, Celifornil, or the City of Loml Linde or EISt Viney Wiler District
in sltisflCtion of the sewer connection fee due to the City of Son Bernerdino pursuent to their Ipplicable ordinlnces.
(c) Nlme
Address
in conjunction with the sele of eertlln rell property described In Exhibit "A" which is Itteched to this Assignment
Form. This Issignment is not effective until the close of escrow for the sele of the Exhibit "A" property.
(d)
Name
o
Address
which is I qUllified finlnelll Institution Ind which provided In, or I portion of tha funds with which this sewer
Clpecity right WIS purchlSed.
Assignor Icknowledges thlt the City of Son Bernardino shill not be held IIlble for Iny legal or other consequences of this ISslgnment.
Assignor further Icknowledges thll thl City of Son Bernardino is not privy to any contract or egreement with any other perty Ind to
the extent that this assignment is mlde pursuant to, or in derogation of, any contract or Igreement, or in accordence with any obli.
gllion of the Assignor, by acceptance of this Assignment the City of Son Bernardino Issumes no liability for demages or loss resulting
from any breach of seid contract or agreement.
ASSIGNOR:
Compeny (Type Or Print)
Dete:
By:
Title
INDIVIDUAL ASSIGNOR:
OIIe:
Slgnlture
Print or Type Nlme
Qlte:
ACCEPTED:
CITY OF SAN BERNARDINO
By:
Title
Attachment 6