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HomeMy WebLinkAboutR29- Economic Development Agency ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FROM: Ronald E. Winkler,Director SUBJECT: OWNER PARTICIPATION Development Department t ., AGREEMENT—ALLAN STEWARD DATE: January 18,2000 ORfufNAL ------- Previou------- ------------ ------------------ Synopsis of s Commissioo/Council/Committee Action(s): On July 18, 1991,the Community Development Commission approved deal points for the Truck-O-Mat property loan with Mr.Allan Steward. On August 3, 1991,the Community Development Commission adopted Resolution 5297 making findings and determinations as to undertaking certain blight reducing activities for the Southeast Industrial Park Redevelopment Project Area. On February 19, 1996,the Community Development Commission approved an amendment to the Owner Participation Agreement Recommended Motion(s): (Community Development Commission) MOTION: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO,AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,APPROVING AND ACCEPTING THE TERMINATION AGREEMENT(ALLAN STEWARD,INC.)(TRUCK WASH)BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,ALLAN STEWARD,INC.,AND ALLAN STEWARD,AN INDIVIDUAL Contact Person(s): Gary Van Osdel/R. Winkler Phone: 663-1044 Project Area(s) Southeast Industrial Park Ward(s): Three(3) Supporting Data Attached: ®Staff Report 0 Resolution(s) ®Agreement(s)/Contract(s)0 Map(s)0 Letter/Memo FUNDING REQUIREMENTS Amount: $ N/A Source: N/A dget Authority: N/A Z,'// (:::,7 ,,�/ SIGNATURE: - Ciryffin Osdel,Executiv irector Ronald E inkler,Director Ec omic Development Agency Develop ent Department Commission/Council Notes: GVO:REW:Iag:01-24-00 Truckwash COMMISSION MEETING AGENDA Meeting Date: 01/24/2000 Agenda Item Number: ECONOMIC DEVELOPMENT AGENCY STAFF REPORT --------------------------------------------------------------------------------------------------------------------- Owner Participation Agreement—Allan Steward BACKGROUND On August 5, 1991, the Commission entered into an Owner Participation Agreement (OPA) with Allan Steward, Inc., to acquire and remediate a contaminated property located on Hunts Lane. The OPA provided a loan to Mr. Steward in the amount of $440,000 for acquisition and site cleanup costs. Under terms of the agreement, $340,000 of loan proceeds were applied toward site purchase and the remainder for demolition and cleanup work. The agreement required Mr. Steward to pay cleanup costs in excess of$100,000. The Agency's loan was secured by a note and deed of trust on the property. Mr. Steward applied for funds from the State's Underground Storage Tank Cleanup Fund in 1992 to cover additional remediation costs. However, funding approval was not received until late in 1996. Because of delays in completing soil cleanup work, an amendment to the OPA was negotiated and approved on February 19, 1996. This action was based upon a soils engineering report that contamination still remained on site requiring an estimated 18 to 24 months work. Further, the Agency did not wish to exercise its right to foreclose on a note secured by contaminated property. The OPA amendment provided an additional 36 months to complete soil remediation work and 42 months to start development of the property. Start of development was defined as obtaining building permits, tenant leases and construction financing. The 42-month period ran concurrent with the 36-month remediation term. Also, the Agency was provided with the right to convert it's loan to a 50% ownership interest in the development following completion of remediation work. Finally, the Agency's loan was further secured by a personal guarantee from Mr. Steward together with the note and deed of trust on the property. Although the 42-month period has passed, soil remediation work remains. Some predevelopment work has been initiated but the requirements of pre-lease, permitting and financing remain to be satisfied. Consequently, Mr. Steward has been placed under notice of default. Agency options at this point include: (1) Foreclose and take title to a contaminated parcel of land; (2) pursue legal action for recovery under the personal guarantee; (3) extend the loan or(4) accept a short pay of the loan and terminate the agreement. The short pay/termination option has been discussed with Mr. Steward. Based on those discussions, the attached Termination Agreement is submitted for your consideration. It provides for a short pay of the loan in the amount of$250,000 ($25,000 immediately: $100,000 on or before February 15, 2000 with the remainder on or before March 1, 2000). Terms also provide full indemnification to the Agency for any liabilities associated with the soil conditions. ------------------------------------------------------------------------------------------------------------------------------------------- GVO:REW:lag:01-24-00 Truckwash COMMISSION MEETING AGENDA Meeting Date: 01/24/2000 Agenda Item Number: &4 Economic Development Agency Staff Report Owner Participation Agreement January 13,2000 Page Number-2- --------------------------------------------------------------------------------------------------------------------- FISCAL IMPACT Accepting the short pay causes the Agency to loose the receipt of$190,000 at some undetermined future date. However, it will enable the Agency to avoid the expense of litigation in pursuit of remedies under the personal guarantee. Further, it avoids any lender seeking Agency guarantees or subordination to construction financing. RECOMMENDATION That the Community Development Commission adopt the attached Resolution. 4(ll. — Ronald E. inkier, Director Development Department -------------------------------------------------------------------------------------------------------------------------------------------- GVO:REW:Iag:01-24-00 Truckwash COMMISSION MEETING AGENDA Meeting Date: 01/24/2000 { Agenda Item Number: UF_ i C�Op�I 1 RESOLUTION NO. 2 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS 3 THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, APPROVING AND 4 ACCEPTING THE TERMINATION AGREEMENT (ALLAN STEWARD, INC. ) (TRUCK WASH) BETWEEN THE 5 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, ALLAN STEWARD, INC. , AND ALLAN 6 STEWARD, AN INDIVIDUAL 7 8 WHEREAS, the Redevelopment Agency of the City of San 9 Bernardino (the "Agency") entered into that certain Owner 10 Participation Agreement with Allan Steward, Inc. , dated August 5, 11 1991, as amended by that certain Amendment No. 1 to Owner 12 Participation Agreement (Allan Steward, Inc. ) (Truck Wash) 13 (hereinafter referred to collectively as the "OPA") ; and 14 15 WHEREAS, Allan Steward personally guaranteed the 16 obligations of Allan Steward, Inc. , under the OPA to the Agency by 17 execution of a personal guarantee; and 18 19 WHEREAS, the OPA was originally entered into between the 20 Agency and Allan Steward, Inc. , to facilitate the development by 21 Allan Steward, Inc. , of certain real property located adjacent to 22 the Southeast Industrial Park Redevelopment Project Area, in 23 accordance with the goals and objectives of the Redevelopment Plan 24 for the Southeast Industrial Park Redevelopment Project Area, all 25 as more fully set forth in the OPA; and 26 27 WHEREAS, the OPA provided that the Agency would assist 28 Allan Steward, Inc. , in the acquisition and development of the real OSBEO/0001/DOC/3610 1/13/00 300 Ct 1 1 property by providing certain financial assistance not to exceed 2 Four Hundred Forty Thousand Dollars ($440, 000 .00) to fund a portion 3 of the costs of acquisition of the real property and certain work 4 required for the proposed development of the real property, subject 5 to certain terms and conditions; and 6 7 WHEREAS, Allan Steward, Inc. , has not pursued the 8 development of the Project in the time or the manner contemplated 9 by the OPA and, accordingly, the Agency, Allan Steward, Inc. , and 10 Allan Steward, now, mutually desire to terminate their respective 11 rights and obligations under the OPA and the personal guarantee, 12 subject to the terms and conditions of the Termination Agreement 13 (Allan Steward, Inc. ) (Truck Wash) between the Agency, Allan 14 Steward, Inc. , and Allan Steward, an individual, as attached hereto 15 as Attachment No. 1 (the "Termination Agreement") , and incorporated 16 herein by this reference; 17 18 NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY 19 THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, 20 AS FOLLOWS: 21 22 Section 1. The facts set forth in the Recitals of 23 this Resolution are true and correct . 24 25 Section 2 . Based upon the record submitted at the 26 meeting at which this Resolution was approved by the Commission, as 27 the governing body of the Agency, the Commission hereby finds and 28 determines that the terms of the Termination Agreement are ® SBEO/0001/DOC/3610 1/13/00 300 ct 2 1 acceptable to the Commission. The Commission is informed by the 2 principals of Allan Steward, Inc. , and Allan Steward that the terms 3 of the Termination Agreement are acceptable to each of them. 4 5 Section 3 . The Commission hereby approves and accepts 6 the Termination Agreement, as attached hereto as Attachment 7 No. 1 . , and incorporated herein by this reference. The Chairperson 8 of the Commission is hereby authorized and directed to execute the 9 Termination Agreement, as approved as to form by the City Attorney 10 on behalf of the Agency. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SBEO/0001/DOC/3610 1/13/00 300 Ct 3 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY 2 OF THE CITY OF SAN BERNARDINO, APPROVING AND ACCEPTING THE TERMINATION AGREEMENT (ALLAN STEWARD, INC. ) (TRUCK WASH) BETWEEN 3 THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, ALLAN STEWARD, INC. , AND ALLAN STEWARD, AN INDIVIDUAL 4 5 Section 4 . This Resolution shall become effective 6 immediately upon its adoption. 7 8 I HEREBY CERTIFY that the foregoing Resolution was duly 9 adopted by the Community Development Commission of the City of 10 San Bernardino at a meeting 11 thereof, held on the day of 2000, by the 12 following vote, to wit : 13 Commission AYES NAYS ABSTAIN ABSENT 14 ESTRADA LIEN 15 MCGINNIS SCHNETZ 16 SUAREZ ANDERSON 17 MILLER 18 19 Secretary 20 The foregoing Resolution is hereby approved this 21 day of 2000 . 22 23 Judith Valles, Chairperson 24 Community Development Commission 25 of the City of San Bernardino 26 Approv"Counse legal content : 27 By: 28 © SBEO/0001/DOC/3610 1/13/00 300 ct 4 CDC 2000-2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO TERMINATION AGREEMENT (ALLAN STEWARD, INC. ) (TRUCK WASH) This Termination Agreement is entered into as of January 24th, 2000, by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO (the "Agency, " as defined in the OPA, as set forth below) , ALLAN STEWARD, INC. , a California corporation (the "Participant") and ALLAN STEWARD, an individual . RECITALS WHEREAS, the purpose of this Termination Agreement is to terminate the rights and obligations of the Parties hereto under that certain Owner Participation Agreement by and between the Agency and the Participant dated August 5, 1991, as amended by that certain Amendment No. 1 to Owner Participation Agreement (Allan Steward, Inc. ) (Truck Wash) (hereinafter collectively referred to as the "OPA") . Words and phrases indicated with initial capitalization in this Termination Agreement shall have the same meaning given to them in the OPA, unless another meaning is specifically indicated herein. WHEREAS, the OPA was originally entered into between the Agency and the Participant to facilitate the development by the Participant of certain real property located adjacent to the Southeast Industrial Park Redevelopment Project Area, as more specifically described in the legal description attached hereto as Exhibit "A" and incorporated herein by this reference (the "Property") , in accordance with the goals and objectives of the Redevelopment Plan for the Southeast Industrial Park Redevelopment Project Area. WHEREAS, the OPA provided that the Agency would assist the Participant in the acquisition and development of the Property by providing certain Agency assistance not to exceed Four Hundred Forty Thousand Dollars ($440, 000 . 00) to fund a portion of the costs of acquisition of the Property and certain work required for the proposed development of the Property. WHEREAS, as a result of certain economic and other conditions outside of the control of the Agency, the Participant has not pursued the development of the Project in the time or the manner contemplated by the OPA and, therefore, the Participant and the Agency desire by this Termination Agreement to terminate their SBEO/0001/DOC/3607-2 1/19/00 10:30 dg. —1- CDC 2000-2 respective rights and obligations under the OPA, subject to the terms and conditions set forth herein. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN AND GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS : TERMS AND CONDITIONS 1 . The Recitals set forth above are hereby incorporated into this Termination Agreement by this reference, as though fully set forth herein. 2 . This Termination Agreement shall be binding only as to the rights, obligations and liabilities of the Participant, Allan Steward, the Agency and the City of San Bernardino (the "City") under the terms and provisions of the OPA. Any rights of the Parties to otherwise cure any defaults under the terms of the OPA are hereby forfeited, waived and terminated. 3 . The Participant shall pay to the Agency the following amounts at the following indicated times in cash or by cashier' s check drawn on a national bank which participates in the United States Federal Reserve System: a. Twenty Five Thousand Dollars ($25, 000 . 00) on or before January 7, 2000; and b. An additional One Hundred Thousand Dollars ($100, 000 . 00) on or before February 15, 2000; and C. An additional One Hundred Twenty Five Thousand Dollars ($125, 000 . 00) on or before March 1, 2000; The total consideration to be paid by the Participant hereunder shall be two hundred fifty thousand dollars ($250, 000 . 00) . The first payment required in this Paragraph 3 shall be paid by the Participant, whether or not the Agency has formally approved this Termination Agreement as of the date such payment is due . 4 . On the date on which the Agency has received all of the payments required in Paragraph 3, above (the "Termination Date") , the following shall occur: a . the OPA shall be terminated and be of no further force or effect; and SBEO/0001/DOC/3607-2 1/19/00 10:30 dgw -2- CDC 2000-2 b. the Agency shall reconvey its deed of trust recorded against the Property in the Official Records of the Recorder of the County of San Bernardino as Instrument No. 91-311757 within fifteen (15) business days of the Termination Date; and C . the Personal Guarantee executed by Allan B. Steward guaranteeing the Participant' s promissory note to the Agency shall be terminated and be of no further force or effect. 5 . Prior to the satisfaction of each of the conditions precedent described in Section 4, above, and occurrence of the Termination Date, the Agency shall have all right and power to exercise any of its remedies under the OPA and/or the Personal Guarantee, in the event of a breach of this Termination Agreement . Provided that no breach has occurred under this Termination Agreement, the Agency hereby agrees to suspend any further enforcement of its rights under the OPA and the Personal Guarantee, until March 1, 2000 . 6 . As of the date of execution of this Termination Agreement by the Participant and Allan Steward, both the Participant and Allan Steward hereby acknowledge and agree that neither the City of San Bernardino nor the Agency shall have any further duty to perform any obligation or any act under the OPA or the Personal Guarantee of Allan Steward. The OPA is immediately terminated as to the obligations of the Agency, and is of no further force or effect regarding the accrual of any damages to the Participant or Allan Steward on any claim for damages arising under the OPA or for any other purpose of the Participant or Allan Steward. The obligations of the Agency and/or the City under the terms of the OPA are hereby deemed satisfied. The Participant and Allan Steward hereby jointly and severally release the Agency and the City and their respective officers, agents, attorneys and employees from any and all claims, costs or expenses arising out of or relating in any way to the OPA, its implementation and/or its termination. 7 . The parties to this Termination Agreement hereby agree, state and acknowledge that the releases which follow in Sections 8 through 12, inclusive, apply to all claims known or unknown as related to the Property, the OPA and the Personal Guarantee and shall not apply to any other claims of the Parties relating to other contracts, agreements or arrangements between the Agency or the City and the Participant, Allan Steward or any related entity regarding other lands, projects or activities . SBEO/0001/DOC/3607-2 1/19/00 10:30 dgw —3— CDC 2000-2 Furthermore, the releases which follow in Sections 8 through 12, inclusive, do not apply to any indemnity provisions of this Termination Agreement, nor to any "violations of federal, state or local laws, statutes, regulations, ordinances or other legal restrictions or requirements regarding hazardous or toxic materials which may be present on the Property. The express exceptions of this Section 7 shall be the only exceptions to the releases which follow in Sections 8 through 12, inclusive. 8 . Except as otherwise expressly provided herein, the parties hereto on behalf of themselves and no others, hereby release and discharge each other, their officers, directors, share- holders, employees, agents, attorneys, beneficiaries, representatives, successors and assigns from any and all debts, claims, demands, liabilities, obligations, causes of action and rights, whether known or unknown, which each party now owns or holds, or at any time heretofore owned or held, by reason of any act, matter, cause or thing whatsoever, arising in any way from the OPA, including attorney' s fees and court costs . 9 . Except as otherwise expressly provided herein, this Termination Agreement extends to any and all claims arising in any way under the OPA, whether or not claimed or suspected, by the parties herein, to and including the date of execution hereof, and constitutes a waiver of each and all of the provisions of California Civil Code Section 1542, which Civil Code Section reads as follows : "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. " 10 . The parties herein hereby acknowledge that the import of the provisions of Civil Code Section 1542 have been explained to them by their own counsel and that they understand the same . 11 . It is expressly understood and agreed by the Parties that the facts with respect to which the releases given herein may hereinafter turn out to be other than or different from the facts in that connection now known or believed by the Parties to be true, and the Parties expressly assume the risk of the facts turning out to be so different, and agree that this Termination Agreement shall be in all respects effective and not subject to termination or rescission by reason of any such difference in facts . The parties SEED/0001/DCC/3907-2 1/19/00 10:30 dgw —4— CDC 2000-2 understand and acknowledge the significance and the consequence of such a specific waiver of unknown claims related to the OPA and hereby assume full responsibility for any injuries, damages, losses or liabilities that they may hereinafter incur from the waiver of said unknown claims . 12 . Except as otherwise expressly provided herein, the Participant and Allan Steward agree to indemnify and hold the Agency and the City harmless from any claims of third parties which arise as a result of any actions or failures to act of the Participant under the terms of the OPA, including, without limitation, reasonable attorney' s fees and costs . For the purposes of this Section 12, the words "reasonable attorney' s fees and costs" includes the salary, wages, benefits and overhead of the lawyers employed by the office of the City Attorney of the City of San Bernardino. 13 . Participant and Allan Steward hereby jointly and severally agree, at their sole cost and expense, to indemnify, protect, hold harmless and defend (with counsel of the Agency' s choice) the Agency and the City from and against any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses (including, without limitation, fees, disbursements and costs of attorneys, environmental consultants and experts) , and all foreseeable and unforeseeable consequential damages of any kind or of any nature whatsoever (collectively, "Losses") which may at any time be imposed upon, incurred or suffered by, or asserted or awarded against, the Agency or the City directly or indirectly relating to or arising from any of the following "Environmental Matters" : (a) Any past, present or future presence of any "Hazardous Materials" (as such term is defined in Exhibit "B" attached hereto) on, in, under or affecting all or any portion of the Property or on, in, under or affecting all or any portion of any property adjacent or proximate to the Property, if such Hazardous Materials originated on or from the Property prior to the Termination Date; or (b) Any past, present or future storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Materials on, in, under or from the Property or any portion thereof occurring prior to the Termination Date; or (c) Any violation, at any time prior to the Termination Date, of any laws, rules, regulations, judgments, orders, permits, licenses, agreements, covenants, restrictions, requirements or the SBEO/0001/00C/3607-2 1119/00 10:30 Qqv - -fj- CDC 2000-2 like now or hereafter relating to or governing in any way the environmental condition of the Property or the presence of Hazardous Materials on, in, under or affecting all or any portion of the Property, including, without limitation, all statutes referenced in Exhibit "B" attached hereto (collectively, "Environmental Laws") ; or (d) The failure of Participant to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like relative to any Environmental Matters described herein in connection with the Property or the ownership, use, operation or enjoyment thereof; or (e) The extraction, removal, containment, transportation or disposal of any and all Hazardous Materials from any portion of the Property or any other property adjacent or proximate to the Property, if such Hazardous Materials originated on or from the Property prior to the Termination Date; or (f) Any past, present or future presence, permitting, operation, closure, abandonment or removal from the Property of any storage tank which at any time contains or contained Hazardous Materials located on, in or under the Property or any portion thereof occurring prior to the Termination Date; or (g) The implementation and enforcement of any monitoring, notification or other precautionary measures which may at any time become necessary to protect against the release or discharge of Hazardous Materials on, in under or affecting the Property or in the air, any body of water, any other public domain or any property adjacent or proximate to the Property; or (h) Any failure of any Hazardous Materials generated on or moved from the Property to be removed, contained, transported and disposed of in compliance with all applicable Environmental Laws; or (i) Any investigation, inquiry, order, hearing, action or other proceeding by or before any governmental agency in connection with any Hazardous Materials or violation of any Environmental Law occurring or allegedly occurring at any time prior to the Termination Date; or (j ) Any required procedural, administrative and/or remedial response to the correspondence from Betti MacGregor of the County of San Bernardino Fire Department, Hazardous Materials Division, to Allan Steward dated October 13, 1999 . S8E0/0001/DOC/3607-2 1/19/00 10:30 dgw —6— . CDC 2000-2 14 . Except as otherwise expressly provided herein, this Termination Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the parties and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the parties . 15 . Failure or delay by any party to this Termination Agreement to perform any material term or provision of this Termination Agreement shall constitute a default under this Termination Agreement; provided however, that if the party who is otherwise claimed to be in default by the other party commences to cure, correct or remedy the alleged default within seven (7) calendar days after receipt of written notice specifying such default and shall diligently complete such cure, correction or remedy, such party shall not be deemed to be in default hereunder. The party which may claim that a default has occurred shall give written notice of default to the party in default, specifying the, alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice as specified herein. Any failure to delay by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Agency under the OPA, the Personal Guarantee and this Termination Agreement are cumulative and the exercise by the Agency of one or more of such rights or remedies shall not preclude the exercise by it, at the same or, different times, of any other rights or remedies for the same default or any other default by the other party. In the event that a default of any party to this Termination Agreement may remain uncured for more than seven (7) calendar days following written notice, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the injured party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings . 16 . No provision of this Termination Agreement may be amended, modified, changed, waived, discharged or terminated orally, by telephone or by any other means except by an instrument in writing signed by the party against whom enforcement of the SBEO/0001/DOC/3607-2 1119100 10:30 dqw —7— CDC 2000-2 amendment, modification, change, waiver, discharge or termination is sought . 17 . Every provision of this Termination Agreement is intended to be severable . If any provision of this Termination Agreement or the application of any provision hereof to any party_ or circumstance is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the other terms and provisions hereof or the application of the provision in question to any other party or circumstance, all of which shall continue in full force and effect. 18 . The Participant and/or Allan Steward shall pay to the Agency all costs and expenses (including, without limitation, reasonable attorney' s fees and costs) incurred by the Agency in connection with the enforcement of this Termination Agreement. For the purposes of the preceding sentence the words "reasonable attorney' s fees and costs" includes the salary, wages, benefits and overhead of the lawyers employed by the office of the City Attorney of the City of San Bernardino. 19 . This Termination Agreement shall be governed by and construed in accordance with the laws of the State of California . 20 . This Termination Agreement shall not be binding on the Agency, until signed by an authorized representative of the Participant, signed by Allan Steward, approved by the Common Council and/or the Community Development Commission of the City of San Bernardino, approved as to form by the City Attorney for the City of San Bernardino and executed by the Mayor of the City of San Bernardino and shall require only its execution by an authorized representative of the Participant and by Allan Steward for its effectiveness as against the. Participant and Allan Steward. i c i V SBEO/3001/DOC/3607-2 1/19/00 10:30 dgw -8- IN WITNESS WHEREOF, the Parties hereto have executed this Termination Agreement as of the date set forth opposite their signatures . "Agency" COMMUNITY DEVELOPMENT COMMISSION* OF THE CITY OF SAN BERNARDINO Dated: By: MAYOR JUDITH VALLES Chairperson of the Community Development Commission ATTEST: APPROVED AS TQ FORM: Agency Counsel "Part span " ALLAN STEW D, I a Ca iforn' a r or ttionn Date : By Al n Stewa esident "Alla Stew rd" Date: By; 11 Steward SBEO/0001/DOC/3607-2 1/19/00 10:30 dgw CDC 2000-2 IN WITNESS WHEREOF, the Parties hereto have executed this Termination Agreement as of the date set forth opposite their signatures . "Agency" COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO Dated: y//27,0 o By: � ,.� F /��/L��e-t• � Norine Miller Vice Chairman A EST AP V AS FOR Agency Counsel "Participant" ALLAN STEWARD, INC. , a California corporation Date : By: Allan Steward President "Allan Steward" Date : By: Allan Steward //�//p -RCIC%✓Cal/ C.[, 4?om -05� " Saeo/0001/ooc/3607-2 �110 hooey /irrLGlI otl --, l' 1/19/00 10:30 dga !� 1�, �rrm OAc,d:A/1W ?5 ` CDC 2000-2 Ex:I5IT "A" Legal Description THAT PORTION OF THE SOUTHERLY 860 FEET OF THE WESTERLY 375 FEET OF LOT 1, BLOCK 54 , RANCHO SAN BERNARDINO,- IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE 2 , RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE WEST LINE OF SAID LOT 1 , AT THE NORTHWESTERLY CORNER OF THAT CERTAIN PARCEL OF LAND, DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED FEBRUARY 14 , 1962 , IN BOOK 5646, PAGE 453 , OFFICIAL RECORDS, IN SAID RECORDER' S OFFICE, SAID POINT BEING DISTANT ALONG SAID WEST LINE, SOUTH 0 DEG . 22 ' 48 " EAST , 60 . 28 FEET FROM A 2 -INCH IRON PIPE MARKING THE NORTHEAST CORNER OF THE SOUTH 660 FEET OF LOT 2 IN SAID BLOCK 54 ; THENCE ALONG TE BOUNDARY OF SAID PARCEL OF LAND, THROUGH THE FOL LOWING 2 `COURSES (1) NORTH 59 D---G. 42 ' 57" EAST, 42 . 27 FEET AND ( 2 ) SOUTHEASTERLY ALONG A TANGENT CURVE , CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 195 FEET, TROUGH A CENTRAL ANGLE OF 129 DEG . 31 ' 35" , A DISTANCE OF 440 . 83 FEET TO THE SOUTHEASTERLY TERMINUS THEREOF; THENCE COURSE "A" , NORTH 85 DEG. 47 ' 03 " WEST , 327 . 17 FEET TO SAID WEST LINE OF LOT 1 ; THENCE ALONG SAID WEST LINE , NORTH 0 DEG. 22 ' 4 8 " WEST , 154 . 34 FEET_ TO THE POINT OF BEGINNING. CDC 2000-2 EXHIBIT B HAZARDOUS MATERIALS DEFINED "Hazardous Materials" as used in this Indemnity shall mean any hazardous or toxic materials, pollutants, effluents, contaminants, radioactive materials, flammable explosives, chemicals known to cause cancer or reproductive toxicity, emissions or wastes and any other chemical, material or substance, the handling, storage, release, transportation, or disposal of which is or becomes prohibited, limited or regulated, is or becomes known to pose a hazard to the health and safety of the occupants of the Property including, without limitation, (i) asbestos, (ii) petroleum and petroleum by-products, (iii) urea formaldehyde foam insulation, (iv) polychlorinated biphenyls, (v) all substances now or hereafter designated as "hazardous substances", "hazardous materials", or "toxic substances" pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") , 42 U.S .C . Section 9601, et seq. , as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA") , the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq. , . the Clean Air Act, 42 U. S .C. Section 7401 et seq. , the Hazardous Materials Transportation Act, 49 U. S .C. Section 1801 et seq. , or the Resource, Conservation and Recovery Act, 42 U. S .C. Section 6901 et seq. ; (vi) all substances now or hereafter designated as "hazardous wastes" in Section 25117 of the California Health and Safety Code; (vii) all substances now or hereafter designated by the Governor of the State of California pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 as being known to cause cancer or reproductive toxicity, or (viii) all substances now or hereafter designated "hazardous substances", "hazardous materials" or "toxic substances" under any other federal, state or local laws or in any regulations adopted and publications promulgated pursuant to said laws . SBEO/OCC1/DOC/3607-2 1/19/00 10:30 dgw