HomeMy WebLinkAboutR30- Economic Development Agency ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Gary Van Osdel, "' ' . / ` SUBJECT: HI-WAY AUTO RECYCLERS
Executive Director
DATE: July 26,2000
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Synopsis of Previous Commission/Council/Committee Action(s):
On December 9,2000,the Redevelopment Committee reviewed a letter of interest from Hi-Way Auto Recyclers for the
acquisition of 3.61 acres of Agency-owned land.
On February 24,2000,the Redevelopment Committee recommended that this item be forwarded to the Community
Development Commission for approval.
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Recommended Motion(s):
OPEN PUBLIC HEARING
CLOSE PUBLIC HEARING
(Mayor and Common Council)
MOTION A: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ACKNOWLEDGING RECEIPT OF A REPORT RELATING TO THAT
CERTAIN DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND HI-WAY AUTO
RECYCLERS,LLC
(Community Development Commission)
MOTION B: 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 THAT CERTAIN DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO AND HI-WAY AUTO RECYCLERS,LLC,ON THE TERMS
SET FORTH IN SUCH AGREEMENT
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Contact Person(s): Gary Van Osdel/Sue Morales Phone: 663-1044
Project Area(s) Northwest Ward(s): 6th Ward
Supporting Data Attached: 2 Staff Report 0 Resolution(s)ElAgreement(s)/Contract(s) 0 Map(s) ❑Letter/Memo
FUNDING REQUIREMENTS Amount: $ N/A Source: N/A
Budget Authority: N/A
SIGNATURE: p`
Gar an Osdel,Executi e Director
nomic Development Agency
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Commission/Council Notes:
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GVO:SMM:lag:08-07-00 Highway Auto COMMISSION MEETING AGENDA
Meeting Date: 08/07/2000
Agenda Item Number: 83b
i
I
ECONOMIC DEVELOPMENT AGENCY
I
STAFF REPORT
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Hi-Way Auto Recyclers, LLC
BACKGROUND
In 1994, the Agency accepted approximately 40 acres of vacant land in lieu of foreclosure on
H.A.B. Land Development Company for property located on Industrial Parkway, between the
Cable Creek and Devil's Creek flood control channels (Northwest Redevelopment Project). The
purchase price of the property was approximately $2.6 million, or $1.50 per square foot. The
property was divided into four parcels of varying sizes, and since that time, the Agency has sold
Parcels 1, 2 and 4.
On December 9, 1999, the Redevelopment Committee reviewed a letter of interest from Hi-Way
Auto Recyclers for the purchase and development of Parcel No. 3, which consists of
approximately 3.61 acres. (See attached map). On February 24, 2000, the Redevelopment
Committee authorized the preparation of a Disposition and Development Agreement (DDA) for
Commission approval. Hi-Way Auto Recyclers, LLC, intends on relocating from Fontana to the
San Bernardino location. Prior to relocating, they would construct a 43,000 square foot building
with employee/customer parking, landscaping and related improvements. Although the building
is to be of metal construction, architectural treatments will enhance its exterior appearance. All
auto-dismantling operations are to be contained within the building. No outdoor dismantling or
storage will occur. Total estimated value of the improvement is $1.4 million. The company
currently employs 11 individuals and is expected to add 3 to 4 after the move. Efforts will be
made to hire San Bernardino residents.
It should also be noted that Hi-Way Auto does actively participate in community service
activities. In Fontana they provide the local high school with material for automotive repair
classes. They also support the school's sober driving program and have donated a recycling bin
to the Ronald McDonald House in Loma Linda.
CURRENT ISSUE
Since December, Hi-Way Auto has applied for SBA financing for their new development and
indications are the loan will be approved. Agency staff secured an updated appraisal from James
Smothers, MAI that placed the site value at $188,702 ($1.20/sf). Hi-Way Auto will pay the
Agency full market value less the estimated cost to provide flood control improvements to the
building pad area. This cost is estimated at $8,000 resulting in a net payment to the Agency of
$180,702. Currently, Hi-Way Auto's real estate agent is holding a $10,000 deposit toward
purchase of the land. Final purchase would be contingent upon approval of the SBA loan and
review of the site for environmental conditions. The land use proposed by Hi-Way Auto
Recyclers, LLC, is consistent with the land uses contemplated by the Northwest Redevelopment
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GVO:SMM:1ag:08-07-00 Highway Auto COMMISSION MEETING AGENDA
Meeting Date: 08/07/2000
Agenda Item Number: .8-3.b
Economic Development Agency Staff Report
Highway Auto Recyclers
July 13, 2000
Page Number-2-
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Plan, and the land use zoning within the project area. The potential environmental effects of the
land use was previously considered by the Northwest EIR. Therefore, it has been determined
that no further environmental analysis is required in conjunction with the approval of the DDA
(see attached Environmental Analysis of Consistency with Redevelopment Plan and Program
EIR dated July 20, 2000). Also, Hi-Way Auto would be responsible for any commission to the
real estate agent.
Finally, you will recall that our current DDA with California Bio Mass for the sale of the
adjacent property to the west requires them to install a sewer line to serve the parcel they are
purchasing together with the subject site. That agreement also requires the Agency to reimburse
California Bio Mass for up to $24,000 in sewer installation costs. Proceeds from this land sale
will provide the Agency with funds to reimburse California Bio Mass for the proportionate share
of cost pursuant to terms of the DDA.
FISCAL IMPACT
Sale of the Site will produce $180,702 in land sales proceeds, provide monies for Agency
obligations under the Cal Bio Mass DDA and result in an estimated $14,000 in annual tax
increment.
RECOMMENDATION
That the Mayor and Common Council and Community Development Commission adopt the
attached Resolutions.
Gary an Osdel, Executtve Director
Economic Development Agency
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GVO:SMM:lag:08-07-00 Highway Auto COMMISSION MEETING AGENDA
Meeting Date: 08/07/2000
Agenda Item Number:
FOREIGN
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July 27, 2000
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lion: _- -- Sue Morales
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: �1 Econimic Development Agency
� +'�"T.N City of San Bernardino
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,r�e1Gu►� 'i�.� �� ardino, CA 92401-1507
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Dear Sue:
ron: MN
.0 I : h I believe that my
� As stated to you on the pone,
Redevelopment Plan states that I must make an effort to
""��► r mC9T; hire from the community as well as do business in the
community whenever possible. I have mentioned this to my
contractor also and he is in agreement.
Hi-Way has always adhered to a policy of using community
resources. We have many tiwriteupsbonnour community
spirited and have rece ived We
uMes.it
L 5TIC look forward to working in our new community.
If there is anything we can do in the meantime please feel
free to call upon us.
n o"f 5 pz fi `- i " Respectfully,
R bert Davidyan
"A' ! HI-WAY AUTO RECYCLERS, LLC
�I :Pc
I pM1:51.i:.
I
teL428 0404
fam428 • 6499
14315 uhittraa Rve.•Fantana, cR 92335 x[800] 898 • 8634
COPV
1 RESOLUTION NO.
2 A RESOLUTION OF THE MAYOR AND COMMON 'COUNCIL OF THE CITY OF
SAN BERNARDINO ACKNOWLEDGING RECEIPT OF A REPORT RELATING
3 TO THAT CERTAIN DISPOSITION AND DEVELOPMENT AGREEMENT BY
AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
4 BERNARDINO AND HI-WAY AUTO RECYCLERS, LLC
5 WHEREAS, the Redevelopment Agency of the City of San Bernardino
6 (the "Agency") owns or has a beneficial interest in certain real
7 property which is situated within the redevelopment project area of
8 the Northwest Redevelopment Project and is generally located on the
9 south side of Industrial Parkway in the City of San Bernardino (APN
10 266-072-91) (the "Property") ; and
11 WHEREAS, the Agency staff have prepared a draft of a Disposition
12 and Development Agreement (the "'Agreement") for the disposition of the
13 Property to Hi-Way Auto Recyclers, LLC, a California limited liability
14 company (the "Developer") , together with a report which summarizes the
15 key terms of the Agreement and describes the manner in which the
16 proposed disposition of the Property to the Developer will assist in
17 the elimination of blight in accordance with Health and Safety Code
18 Section 33433 (the "33433 Report") ; and
19 WHEREAS, it is appropriate for the Mayor and Common Council to
20 take action with respect to the 33433 Report and the Agreement in
21 accordance with Health and Safety Code Section 33433 (a) (1) .
22 NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE
23 MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS :
24 Section 1 . On August 7, 2000, the Mayor and Common Council
25 conducted a full and fair joint public hearing with the Community
26 Development Commission of the City of San Bernardino relating to the
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I disposition and redevelopment of the Property by the Developer
2 pursuant to the terms and conditions of the Agreement . The minutes
3 of the City Clerk for the August 7, 2000, meeting of the Mayor and
4 Common Council shall include a record of all communication and
5 testimony submitted to the Mayor and Common Council by interested
6 persons relating to the joint public hearing, the 33433 Report and the
7 approval of the Agreement .
8 Section Z. This Resolution is adopted in order to satisfy the
9 provisions of Health and Safety Code Section 33433 as relate to the
10 disposition and sale of the Property by the Agency to the Developer
11 on the terms and conditions set forth in the Agreement . A copy of the
12 Agreement in the form submitted at the joint public hearing is on file
13 with the Agency Secretary. The Mayor and Common Council hereby find
14 and determine as follows :
15 (i) the disposition and redevelopment of the Property by the
16 Developer in accordance with the Agreement is consistent with the
17 Redevelopment Plan for the Northwest Redevelopment Project and the
18 current Agency Implementation Plan for the Project;
19 (ii) the terms and conditions of the Agreement contain assurances
20 that the Property will be redeveloped as contemplated under the
21 Redevelopment Plan;
22 (iii) the purchase price for the Property payable by the Developer
23 to the Agency, subject to the satisfaction of the terms and conditions
24 of the Agreement, is an amount which the Mayor and Common Council
25 determines to be fair, just and reasonable, and the disposition of the
26 Property on the terms set forth in the Agreement shall materially
27
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1 benefit and sustain the implementation of the Redevelopment Plan and
2 assist the community to alleviate blighting conditions caused by
3 vacant land, the underutilization of parcels and lack of adequate
4 public infrastructure;
5 (iv) the consideration payable by the Developer to the Agency for
6 the disposition of the Property ($180, 702 . 00 in cash) is an amount
7 which is not less than the fair reuse value of the Property at the use
8 and with the redevelopment and maintenance covenants and other terms,
9 conditions and development costs authorized in the Agreement.
10 Section 3 . The Mayor and Common Council hereby find and
11 determine that no further environmental review of the disposition and
12 redevelopment of the Property pursuant to the terms and conditions of
13 the Agreement is required at this time under the California
%WI 14 Environmental Quality Act, as amended ("CEQA") , because the Property
15 is situated in the Redevelopment Project Area of the Northwest
16 Redevelopment Project and: (i) no substantial changes are proposed in
17 the redevelopment project or with respect to the circumstances under
18 which the project is to be undertaken that require major revisions to
19 the EIR previously adopted for the project due to the involvement of
20 new significant environmental impacts not covered in such previous
21 EIR; (ii) no subsequent EIR or supplement to the EIR is necessary or
22 required; and (iii) the proposed disposition of property will have no
23 significant effect on the environment, except as identified and
24 considered in the previous EIR. Therefore, pursuant to the provisions
25 of Public Resources Code Section 21090 and Title 14 California Code
26 of Regulations Sections 15162 and 15180, no further review of the
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I potential environmental effects of the redevelopment of the Property
2 in accordance with the Agreement is required under CEQA.
3 Section 4 . The Mayor and Common Council hereby approve,
4 receive and file the 33433 Report and the Agreement in the forms as
5 submitted at the joint public hearing.
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I A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ACKNOWLEDGING RECEIPT OF A REPORT RELATING TO THAT CERTAIN
2 DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT
3 AGENCY OF THE CITY OF SAN BERNARDINO AND HI-WAY AUTO RECYCLERS, LLC
4 Section 5 . The Mayor and Common Council hereby approve the
5 disposition of the Property by the Agency to the Developer on the
6 terms set forth in the Agreement .
7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted
8 by the Mayor and Common Council of the City of San Bernardino at a
9 meeting thereof, held on the day of
10 2000, by the following vote, to wit :
11
12 Council : AYES NAYS ABSTAIN ABSENT
ESTRADA
13 LIEN
Or- MCGINNIS
14 SCHNETZ
SUAREZ
15 ANDERSON
McCAMMACK
16
17
18 City Clerk
The foregoing resolution is hereby approved this day
19 of 2000 .
20
Judith Valles, Mayor
21 City of San Bernardino
22
23 Appr ved as to form and legal content :
By:
24 City
Attorney
25
26
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r
a
I STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) ss
2 CITY OF SAN BERNARDINO )
3
I, City Clerk of the City of
4 San Bernardino, DO HEREBY CERTIFY that the foregoing and attached copy
of Mayor and Common Council of the City of San Bernardino Resolution
5 No. is a full, true and correct copy of that now on file in
this office.
6
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
7 the official seal of the Mayor and Common Council of the City of
San Bernardino this day of 2000 .
8
9
10 City Clerk
City of San Bernardino
11
12
13
14
NOW-
15
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COPV
1 RESOLUTION NO.
2 A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMbIISSION OF THE
CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE
3 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
APPROVING THAT CERTAIN DISPOSITION AND DEVELOPMENT
4 AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND HI-WAY AUTO RECYCLERS, LLC, ON
5 THE TERMS SET FORTH IN SUCH AGREEMENT
6 WHEREAS, the Redevelopment Agency of the City of San Bernardino
7 (the "Agency") owns or has a beneficial interest in certain real
8 property which is situated within the redevelopment project area of
9 the Northwest Redevelopment Project and is generally located on the
10 south side of Industrial Parkway in the City of San Bernardino (APN
11 266-072-91) (the "Property") ; and
12 WHEREAS, the Agency staff have prepared a draft of a Disposition
13 and Development Agreement (the "Agreement") for the disposition of the
14 Property to Hi-Way Auto Recyclers, LLC, a California limited liability
15 company (the "'Developer") , together with a report which summarizes the
16 key terms of the Agreement and describes the manner in which the
17 proposed disposition of the Property to the Developer will assist in
18 the elimination of blight (the "33433 Report") in accordance with
19 Health and Safety Code Section 33433; and
20 WHEREAS, it is appropriate for the Commission to take action with
21 respect to disposition of the Property to the Developer and approve
22 the Agreement as set forth in this Resolution.
23 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION ACTING ON
24 BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO DOES
25 HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS :
26
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I Section 1 . On August 7, 2000, the Commission conducted a full
2 and fair joint public hearing with the Mayor and Common Council of the
3 City of San Bernardino relating to the disposition and redevelopment
4 of the Property by the Developer pursuant to the terms and conditions
5 of the Agreement. The minutes of the Agency Secretary for the August
6 7, 2000, meeting of the Commission shall include a record of all
7 communication and testimony submitted to the Commission by interested
8 persons relating to the joint public hearing, the 33433 Report and the
9 approval of the Agreement.
10 Section 2 . A copy of the Agreement in the form submitted at
11 the joint public hearing is on file with the Agency Secretary. The
12 Commission hereby find and determine as follows :
13 (i) the disposition and redevelopment of the Property by the
14 Developer in accordance with the Agreement is consistent with the
15 Redevelopment Plan for the Northwest Redevelopment Project and the
16 current Agency Implementation Plan;
17 (ii) the terms and conditions of the Agreement contain assurances
18 that the Property will be redeveloped as contemplated under the
19 Redevelopment Plan;
20 (iii) the purchase price for the Property payable by the Developer
21 to the .Agency, subject to the satisfaction of the terms and conditions
22 of the Agreement, is an amount which the Commission determines to be
23 fair, just and reasonable, and the disposition of the Property on the
24 terms set forth in the Agreement shall materially benefit and sustain
25 the implementation of the Redevelopment Plan and assist the community
26 to alleviate blighting conditions caused by vacant land, the
27
28 SBEO/0001/DOC/4127
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I underutilization of parcels and lack of adequate public
2 infrastructure;
3 (iv) the consideration payable by the Developer to the Agency for
4 the disposition of the Property ($180, 702 . 00 in cash) is an amount
5 which is not less than the fair reuse value of the Property at the use
6 and with the redevelopment and maintenance covenants and other terms,
7 conditions and development costs authorized in the Agreement.
8 Section 3 . The Commission hereby find and determine that no
9 further environmental review by the Agency of the disposition and
10 redevelopment of the Property pursuant to the terms and conditions of
11 the Agreement is necessary at this time under the California
12 Environmental Quality Act (CEQA) , as amended, for the following
13 reasons : (i) the Property is situated in the redevelopment project
14 area of the Northwest Redevelopment Project; (ii) no substantial
15 changes are proposed in the redevelopment project or with respect to
16 the circumstances under which the project is to be undertaken that
17 require major revisions to the EIR previously adopted for the project
18 due to the involvement of new significant environmental impacts not
19 covered in such previous EIR; (iii) no subsequent EIR or supplement
20 to the EIR is necessary or required; and (iv) the proposed disposition
21 of property will have no significant effect on the environment, except
22 as .identified and considered in the previous EIR. Therefore, pursuant
23 to the provisions of Public Resources Code Section 21090 and Title 14
24 California Code of Regulations Sections 15162 and 15180, no further
25 review of the potential environmental effects of the redevelopment of
26 the Property in accordance with the Agreement is required under CEQA.
27
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I Section 4 . The Commission hereby approves, receives and files
2 the 33433 Report and the Agreement in the forms as submitted at the
3 joint public hearing.
4 Section 5 . The Commission hereby approves the disposition of
5 the Property to the Developer on the terms set forth in the Agreement.
6 The Chair of Commission and the Executive Director are hereby
7 authorized and directed to execute the Agreement on behalf of the
8 Agency together with such technical and conforming changes as may be
9 recommended by the Executive Director and approved by the Chair of the
10 Commission. The signatures of the Chair of the Commission and the
11 Executive Director on the Agreement shall be conclusive evidence that
12 the Agreement has taken effect. In the event that the Agreement may
13 not be fully executed by the parties for any reason within thirty (30)
14 days following the date of adoption of this Resolution, the
15 authorization granted to the Chair of the Commission and the Executive
16 Director to execute the Agreement on behalf of the Agency shall be of
17 no further force and effect .
18 Section 6 . Provided that the Agreement has been fully
19 executed by the parties within the period of time set forth in Section
20 5 of this Resolution, the Executive Director of the Agency is hereby
21 authorized and directed to take all actions set forth in the Agreement
22 on behalf of the Agency to close the escrow transactions described
23 therein.
24 Section 7 . This Resolution shall become effective immediately
25 upon its adoption.
26
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I A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF
2 THE CITY OF SAN BERNARDINO, APPROVING THAT CERTAIN DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
3 CITY OF SAN BERNARDINO AND HI-WAY AUTO RECYCLERS, LLC, ON THE TERMS
SET FORTH IN SUCH AGREEMENT
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted
5
by the Community Development Commission of the City of San Bernardino
6
at a meeting thereof, held on the day
7
of 2000, by the following vote, to wit :
8
9
Commission AYES NAYS ABSTAIN ABSENT
10 ESTRADA
LIEN
11 MCGINNIS
SCHNETZ
12 SUAREZ
ANDERSON
13 McCAMMACK
14
15 Secretary
16 The foregoing Resolution is hereby approved this day
of 2000 .
17
18
Judith Valles, Chairperson
19 Community Development Commission
of the City of San Bernardino
20
Approve s to f m
21 and leg to
22 By
Agency Counse
23
24
25
26
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1 STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) ss
2 CITY OF SAN BERNARDINO )
3 I, Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
4 CERTIFY that the foregoing and attached copy of Community Development
Commission of the City of San Bernardino Resolution No. is
5 a full, true and correct copy of that now on file in this office.
6 IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the official seal of the Community Development Commission of the City
7 of San Bernardino this day of 2000 .
8
9 Secretary of the
Community Development Commission
10 of the City of San Bernardino
11
12
13
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EXHIBIT "E"
PARCELS AFTER ADJUSTMENT
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DISTRICT BK. 2266/148.
d PARCEL 1 ; �{
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T ' N 2522'33" E
/ A ry 240.00• �i
Subject Parcel : Y ` 390.11'' J :
INDUSTRIAL PKWY
PER EASEMENT
TO CITY OF SAN
BERNARDINO
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RDA ASSESSOR'S EXISTING GENERAL PLAN
PROJECT NUMBER LAND USE LAND USE DESIGNATION AREA THOMAS GUIDE'
PAGE GRID
Within Northwest
Project
llndustriW Area) 266-072-91 Vacant Land IH-Heavy Industrial 3.61 Ac.W/L 546 A-5
?homas Guide San Bernardino County,1997 Edition
NOTICE OF JOINT PUBLIC HEARING OF THE CITY COUNCIL OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, AND THE COMMUNITY
DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO,
THE GOVERNING BOARD OF THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, PURSUANT TO HEALTH AND SAFETY
CODE SECTIONS 33431 AND 33433 REGARDING THE APPROVAL OF A
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND HI-WAY AUTO RECYCLERS, LLC.
PLEASE TAKE NOTICE that the City Council of the City of San Bernardino,
California (the "City Council") and the Community Development Commission of the City of
San Bernardino (the"Commission"), the governing board of the Redevelopment Agency of
the City of San Bernardino (the "Agency"), will conduct a joint public hearing of the City
Council and the Commission at 2:00 p.m. on August 7, 2000, in the City Council Chambers
at City Hall, 300 North "D" Street, San Bernardino, California 92418. At the public hearing,
the City Council and the Commission shall receive evidence and testimony and consider
the approval of the proposed Disposition and Development Agreement (the "Agreement")
by and between the Agency and Hi-Way Auto Recyclers, LLC (the "Developer").
NOTICE IS FURTHER GIVEN that any and all persons are invited to appear before
the City Council and Commission and present evidence and/or testimony concerning the
foregoing matters at the time, date and place set forth herein.
The public hearing will be conducted pursuant to the provisions of Health and Safety
Code Sections 33431 and 33433. Among other matters, the Agreement concerns the
proposed disposition by the Agency to the Developer of certain real property generally
located on the northeast side of Industrial Parkway between the San Bernardino Flood
Control Channel and the Interstate 215 Freeway in the City of San Bernardino. The
Agreement provides that the Agency will convey the property to the Developer in order to
assist in the elimination of blight and the implementation of the Redevelopment Plan for the
Northwest Project Area. The Developer proposes to develop and operate an automobile
recycling facility on the subject property.
The Agreement is within the scope of the current Implementation Plan for the
Northwest Redevelopment Project and the Environmental Impact Report dated April 1982
("Program EIR"), prepared at the time of adoption of the Redevelopment Plan for the
Northwest Redevelopment Project. The Program EIR includes an assessment of the type
of activity proposed to take place on the subject property under the Agreement and at the
present time, no information indicates that the proposed activity may have on the
environment for the purposes of compliance with the California Environmental Quality Act
which was not considered in the Program EIR. The Commission, as the governing board of
the Agency, intends to make the above-stated findings at the public hearing as authorized
under Public Resources Code Section 21090.
1
A Summary Report setting forth certain details of the proposed Agreement has been
prepared pursuant to the requirements of Section 33433 of the Health and Safety Code.
Copies of the proposed Agreement and the Summary Report are on file with the Agency
Secretary and are available for inspection and copying at a cost not to exceed the cost of
duplication, during normal business hours at the office of the Agency Secretary at 201
North "E" Street, Suite 301, San Bernardino, California 92401.
Notice given this 5' day of July, 2000.
CITY OF SAN BERNARDINO
City Clerk
REDEVELOPMENT AGENCY OF THE CITY
OF
SAN�RNAR INO
By: li Z
gency Secretary
2
.......... .
SUMMARY REPORT
PURSUANT TO HEALTH AND SAFETY CODE SECTION 33433 OF THE
CALIFORNIA COMMUNITY REDEVELOPMENT LAW ON A DISPOSITION
AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND
HI-WAY AUTO RECYCLERS, LLC
INTRODUCTION
This summary report has been prepared pursuant to Section 33433 of the
California Health and Safety Code. This report sets forth certain details of the
proposed disposition of certain real property pursuant to a Disposition and
Development Agreement (Agreement) by and between the San Bernardino
Redevelopment Agency (Agency) and Hi-Way Auto Recyclers, LLC (Developer).
Said real property is located on the northeast side of Industrial Parkway, between
the San Bernardino County Flood Control Channel and the Interstate 215
Freeway in the City of San Bernardino (APN 266-072-91).
This report is organized into the following seven sections:
A. Salient Points of the Proposed Agreement: This section includes a
description of the project and the major responsibilities to be assumed by
the Agency and the Developer.
B. Cost of the Agreement to the Agency: This section outlines the total
and net costs of the proposed Agreement to the Agency.
C. Estimated Value of the Interests to be Conveyed Determined at the
Highest and Best Use Permitted Under the Redevelopment Plan:
This section summarizes the value of the Site to be conveyed to the
Developer at the highest and best use permitted.
D. Estimated Value of the Interests to be Conveyed Determined Based
at the Use and with the Conditions, Covenants and Development
Costs Required by the Proposed Agreement: This section summarizes
the value of the Site determined at the use required by the proposed
Agreement, recognizing the impact of the proposed Agreement's terms
and conditions.
E. Comparison of the Estimated Value of the Interests to be Conveyed
Determined at the Highest and Best Use Permitted Under the
Redevelopment Plan and Determined at the Use and with the
Conditions, Covenants and Development Costs Required by the
Proposed Agreement. This section describes the compensation to be
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P.�Development Dept�SusanWl WAY AUTO RECYCLEMSUMMARY REPORT.doe
received by the Agency, and the reasons for any difference between the
compensation and the fair reuse value.
F. Blight Alleviation: This section describes the existing blighting
conditions on the Site, and an explanation of how the proposed
Agreement will assist in alleviating the blighting conditions.
G. Conformance with the AB 1290 Implementation Plan: This section
identifies how the proposed Agreement will result in a development that
fulfills the goals and objectives established in the Agency's AB 1290 Five
Year Implementation Plan.
A. SALIENT POINTS OF THE PROPOSED AGREEMENT
1. Description of the Proposed Project
The Agency previously acquired approximately 3.61 acres of certain real
property generally situated at the northeast side of Industrial Parkway,
between the San Bernardino County Flood Control Channel and the
Interstate 215 Freeway in the City of San Bernardino (APN 266-072-91).
The property is more particularly described in the Agreement and is
located within the Northwest Redevelopment Project Area. The Agency
intends to sell the property to the Developer in return for the Developer's
agreement to cause the construction thereon of an automobile recycling
facility. The facility shall consist of an approximately 43,000 square foot
metal building with architectural treatments, employee and customer
parking, landscaping and related improvements. All auto dismantling
operations will be contained within the building. No outdoor dismantling or
storage will occur.
2. Agency Responsibilities:
a) Upon completion of the Developer's Due Diligence investigation of
the property, the Agency shall transfer the property to the
Developer for a sales price of$180,702.
3. Developer Responsibilities
a) Purchase the property for $180,702.
b) Complete the construction of the automobile recycling facility within
one year.
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P:\Development DeptlSusanWl WAY AUTO RECYCLEMSU MARY REPORT.doc
B. COST OF THE AGREEMENT TO THE AGENCY
The costs incurred by the Agency as a result of the proposed agreement
are provided below:
Site Acquisition $235,877.40
Total Agency Costs $235,877.40
C. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED
DETERMINED AT THE HIGHEST AND BEST USE PERMITTED UNDER
THE REDEVELOPMENT PLAN.
The estimated fair market value of the interest to be conveyed, determined
at the highest and best use permitted, is approximately One Hundred
Eighty-Eight Thousand Seven Hundred and Two Dollars ($188,702), less
the cost to provide sewer connection improvements valued at $8,000,
resulting in net payment to Agency of$180,702. This value is supported
by an appraisal report prepared by James Smothers, MAI, dated February
7, 2000.
D. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED
DETERMINED AT THE USE AND WITH THE CONDITIONS,
COVENANTS AND DEVELOPMENT COSTS REQUIRED BY THE
PROPOSED AGREEMENT
The Site will be conveyed to the Developer for the highest and best use
value permitted.
E. CONSIDERATION RECEIVED AND COMPARISON WITH THE FAIR
REUSE VALUE
As noted above, the Site is being conveyed to the Developer at its highest
and best use value.
F. BLIGHT ALLEVIATION
The Development will alleviate blighting conditions caused by the vacant
land, the under-utilization of the parcel and lack of adequate public
infrastructure improvements within the Northwest Industrial Park. The
development will contribute employment opportunities with the relocation
of 11 jobs and the creation of approximately 3 to 4 new jobs.
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r '
G. CONFORMANCE WITH THE AB 1290 IMPLEMENTATION PLAN
The Five-Year Implementation Plan adopted by the Agency contains
several broad operational goals and objectives. Among these are the
following:
1. Creation of incentive programs for existing property owners
to reinvest in their properties, including the utilization of
Disposition and Development Agreements and Owner
Participation Agreements.
2. Creation of viable housing options within the Redevelopment
Project that span a range of incomes, including housing for
the homeless and formerly homeless.
3. Creative implementation of catalyst projects which spur
reinvestment on surrounding blocks.
4. Land acquisition for the creation of public facilities, which
serve both the immediate neighborhood and the community
at large.
5. Enhancement of ceremonial streets that function as the focal
points in their individual neighborhoods.
6. Continued preservation of historically significant structures.
7. Improvements to existing water and sewer lines, streets,
sidewalks, parkways and lighting in the public right-of-way.
8. Continued participation in the enhancement of the public
infrastructure system.
9. Acquisition and development of property to abate nuisance
uses and provide for future development.
The proposed Agreement will assist the Agency in meeting some of the
objectives and goals of its Five-Year Implementation Plan in the following
ways:
1. The Agreement encourages reinvestment revitalization in the
blighted area.
2. The project will provide for necessary public infrastructure
improvements.
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3. The project will provide for the creation of new employment
opportunities for San Bernardino residents.
CONCLUSION
Based upon the preceding factors, the proposed Agreement is consistent with
the adopted Five-Year Implementation Plan.
The execution of a Disposition and Development Agreement is subject to the
closure of the corresponding public hearing with a majority approval vote by the
Community Development Commission, the governing board of the Agency.
Dated: June 28, 2000 REDEVELOP ENT AGENCY OF THE
CITY OF,S�M BER RDINO
ary an Osdel, Execyfive Director
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P:0"clopment Dept\Susan\M WAY AUTO RECYCLERMSUMMARY REPORT.doc
THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
Environmental Analysis of Consistency
with Redevelopment Plan and Proaram EIR
(Proposed Disposition of Agency-Owned Property to
Hi-Way Auto Recyclers, LLC)
July 2000
The Redevelopment Agency of the City of San Bernardino (the
"Agency") has received a proposal from Hi-Way Auto Recyclers, LLC,
to acquire certain property owned by the Agency in the Northwest
Project Area . The specific terms of such acquisition .are analyzed
in a written report of the Agency prepared in accordance with the
provisions of Health and Safety Code Section 33433 . Hi-Way Auto
Recyclers, LLC, will pay the Agency the fair market value for such
property, subject to the satisfactory completion by the purchaser
of certain due diligence and regulatory approval investigations
relating to the property.
An Environmental Impact Report ("EIR") was prepared at the
time of adoption of the Redevelopment Plan for the Northwest
Project Area . The EIR for the Northwest Project Area considered
the potential significant environmental effects of the types of
land uses contemplated by the redevelopment project as a whole and
consistent with the Heavy Industrial land use zoning specific to
the project area and the land use zoning in the areas surrounding
the project area .
The land use proposed by Hi-Way Auto Recyclers, LLC, is the
type of land use contemplated by the Northwest Redevelopment
Project and the land use zoning within the project area and is
consistent with the Redevelopment Plan for the Northwest Project
Area. The potential significant environmental effects of the type
of land use proposed by Hi-Way Auto Recyclers, LLC, was previously
considered and analyzed by the EIR.
At this time, no substantial changes are proposed by Hi-Way
Auto Recyclers, LLC, and no other substantial changes have occurred
with respect to the circumstances under which the redevelopment
project is undertaken, which will require major revisions of the
EIR due to the involvement of new significant environmental effects
or a substantial increase in the severity of previously identified
significant effects .
Further, no new information exists today relating to the
activities contemplated by Hi-Way Auto Recyclers, LLC, showing that
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(i) the redevelopment project will have one or more significant
effects not discussed in the EIR or (ii) a significant effect
previously examined will be substantially more severe than shown in
the EIR or (iii) mitigation measures or alternatives previously
found not to be feasible would in fact be feasible and would
substantially reduce one or more significant effects of the
redevelopment project, but the mitigation measure or alternative
has not been adopted or (iv) mitigation measures or alternatives
which are considerably different than those analyzed in the EIR
would substantially reduce one or more significant effects of the
redevelopment project, but the mitigation measure or alternative
has not been adopted.
Furthermore, the City of San Bernardino (the "City") Planning
Department is responsible for reviewing and confirming that the
development project permit applications which may be submitted to '
the City by Hi-Way Auto Recyclers, LLC are complete and
satisfactorily address each and every relevant mitigation measure
identified in the EIR or as may be required under other City
development or building regulations. The approval by the Agency of
the terms and conditions of the proposed land disposition agreement
with Hi-Way Auto Recyclers, LLC, as analyzed in the report prepared
in accordance with Health and Safety Code Section 33433, shall be
without prejudice to the development planning and building
regulatory jurisdiction of the City over the specific improvement
and use of the subject property as proposed by Hi-Way Auto
Recyclers, LLC.
Therefore, in accordance with Public Resources Code Section
21090 and Title 14 California Code of Regulations Sections 15180
and 15162, the undersigned officer on behalf of the Agency hereby
determines that the Agency is not required to undertake any further
environmental analysis of the land use proposed by Hi-Way Auto
Recyclers, LLC, at this time, in conjunction with approval of a
disposition and development agreement between the Agency and Hi-Way
Auto Recyclers, LLC for redevelopment of land within the Northwest
Redevelopment Project Area .
Dated: 710 200
ry an Osdel
Age cy Secretary
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' f
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street
Suite 301
San Bernardino, California 92401
(Space Above Line for Use By Recorder)
2000
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
HI-WAY AUTO RECYCLERS, LLC
SBEO/0001/DOC/4014-2
612100 dgw
� 1
TABLE OF CONTENTS
Page
Section 1 . 01 . Purpose of Agreement . . . . . . . . . . . . 1
Section 1 . 02 . The Property and the Project . . . . . . . . . . 1
Section 1 . 03 . Parties to the Agreement . . . . . . . . . . 1
Section 1 . 04 . Restrictions Against Change in Ownership,
Management and Control of Developer and
Assignment of Agreement . . . . . . . . . . . . 2
Section 1 . 05 . Benefit to Project Area . . . . . . . . . . . . 3
ARTICLE II
DISPOSITION OF THE PROPERTY . . . . . . . 3
Section 2 . 01 . Purchase and Sale of the Property . . . . . . . 3
Section 2 . 02 . Deposit and Payment of Purchase Price . . . 4
Section 2 . 03 . Opening and Closing of Escrow . . . . . 5
Section 2 . 04 . Escrow Instructions . . . . . . . . . • 6
Section 2 . 05 . Conveyance of Title . . . . . . . . . 6
Section 2 . 06. Additional Closing Obligations of Agency . . . . 7
Section 2 . 07 . Closing Obligations of Developer . . . . . . 8. -
Section 2 . 08 . Inspections and Review . . . . . . . . . . 8
Section 2 . 09 . Due Diligence Investigation of the Property
By the Developer . . . . . . 11
Section 2 . 10 . Due Diligence Approval Certificate . . . 12
Section 2 . 11 . Books and Records . . . . . . . . . . . 12
Section 2 . 12 . Condition of the Property-Developer' s
Release . 12
Section 2 . 13 . Review and Approval of Condition of Title
by the Developer . . . . . . . . . . . 14
Section 2 . 14 . Survey . . . . . . . . . . . . . 15
Section 2 . 15 . Extension of Due Diligence Period . . . . . . 16
Section 2 . 16. Developer ' s Conditions Precedent to Close
Escrow . . . . . . . . . . . . . 16
Section 2 . 17 . The Agency' s Conditions Precedent to Close
of Escrow . . . . . . . . . . 17
Section 2 . 18 . Distribution of Documents and Purchase
Price After Closing Date by Escrow Holder 18
Section 2 . 19 . Satisfaction of Conditions . . . . 18
Section 2 . 20 . [RESERVED -- NO TEXT] . . . . . . . . . . . . 18
Section 2 .21 . Prorations, Closing Costs, Possession . . . . 18
Section 2 . 22 . BREACH OF ARTICLE II BY THE AGENCY;
LIQUIDATED DAMAGES PAYABLE BY THE AGENCY
TO THE DEVELOPER . . . . . . . . 20
Section 2 . 23 . BREACH BY THE DEVELOPER OF ARTICLE II;
LIQUIDATED DAMAGES PAYABLE BY THE DEVELOPER
TO THE AGENCY • . • . 20
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7
1
Section 2 .24 . Statements of the Agency and Representations
and Warranties of the Developer . . . . . . . 21
Section 2 .25 . Damage, Destruction and Condemnation . . . . . 24
Section 2. 26. Sewer Improvement . . . . . . . . . . . . . . 24
ARTICLE III
DEVELOPMENT OF THE PROJECT . . . . . . . 25
Section 3 . 01 . Development of the Project by Developer . . . 25
Section 3 . 02 . [RESERVED -- NO TEXT] . . . . . . . . . . . . 31
Section 3 . 03 . Taxes, Assessments, Encumbrances and Liens 31
Section 3 . 04 . Change in Ownership Management and Control
of the Developer -- Assignment and Transfer 32
Section 3 . 05 . Security Financing; Right of Holders . . . . 35
Section 3 . 06 . Right of the Agency to Satisfy Other Liens
on the Property after Conveyance of Title 38
Section 3 . 07 . Certificate of Completion . . . . . . . . . . 38
ARTICLE IV
USE OF THE SITE . . . . . . . . . . 40
Section 4 . 01 . Uses . . . . . . . . . . . . . . . . . . . . . 40
Section 4 . 02 . Maintenance of the Property . . . . . . . . . 40
Section 4 . 03 . Obligation to Refrain from Discrimination . . 41
Section 4 . 04 . Form of Nondiscrimination and Nonsegregation
Clauses . . . . . . . . . . . . . . . . . . . 41
ARTICLE V
DEFAULTS, REMEDIES AND TERMINATION . . . . . 42
Section 5 . 01 . Defaults - General . . . . . . . . . . . . . 42
Section 5 . 02 . Legal Actions . . . . . . . . . . . . . . . . 43
Section 5 . 03 . Rights and Remedies are Cumulative . . . . . . 44
Section 5 . 04 . Damages . . . . . . . . . . . . . . . . . . . 44
Section 5 . 05 . Specific Performance Prior to close of
Escrow . . . . . . . . . . . . . . . . . . 44
Section 5 . 06. Agency Rights of Termination Following
Close of Escrow . . . . . . . . . . . . . . . 45
Section 5 . 07 . Right to Reenter, Repossess and Revest . . . . 46
ARTICLE VI
GENERAL PROVISIONS . . . . . . . . . 48
Section 6 . 01 . Notices, Demands and Communications
Between the Parties . . . . . . . . . . . . . 48
Section 6 . 02 . Conflict of Interest . . . . . . . . . . . . . 49
Section 6 . 03 . Warranty Against Payment of Consideration
for Agreement . . . 49
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Section 6. 04 . Nonliability of Agency Officials and
Employees . . . . . . . . . . . . . . . . . 50
Section 6. 05 . Enforced Delay: Extension of Time of
Performance . . . . . . . . . . . . . . . . . 50
Section 6. 06. Inspection of Books and Records . . . . . . . 51
Section 6 . 07 . Approvals . . . . . . . . . . . . . . . . . . 51
Section 6. 08 . Real Estate Commissions . . . . . . . . . . . 51
Section 6. 09. Indemnification . . . . . . . . . . . . . . . 51
Section 6. 10 . Release of Developer from Liability . . . . . 52
Section 6. 11 . Attorneys ' Fees . . . . . . . . . . . . . . . 52
Section 6 . 12 . Effect . . . . . . . . . . . . . . . . . . . . 52
ARTICLE• VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT 52
Section 7 . 01 . Entire Agreement . . . . . . . . . . . . . . . 52
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
AND RECORDATION . . . . . . . . . . 53
Section 8 . 01 . Execution and Recordation . . . . . . . . . . 53
EXHIBIT "A" - LEGAL DESCRIPTION
EXHIBIT "B" - AGENCY GRANT DEED
EXHIBIT "C" - SCOPE OF DEVELOPMENT
EXHIBIT "D" - SCHEDULE OF PERFORMANCE
EXHIBIT "E" - CERTIFICATE OF COMPLETION
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2000
DISPOSITION AND DEVELOPMENT AGREEMENT
(Hi-Way Auto Recyclers)
THIS 2000 DISPOSITION AND DEVELOPMENT AGREEMENT (the
"Agreement") is entered into as of _, 2000, by and between
the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public
body corporate and politic (the "Agency") , and HI-WAY AUTO
RECYCLERS, LLC, a California limited liability company (the
"Developer") . The Agency and the Developer hereby agree as
follows :
Section 1 . 01 . Purpose of Agreement. The purpose of this
Agreement is to implement the Redevelopment Plan for the Northwest
Redevelopment Project by providing for the purchase and
redevelopment of certain unimproved lands by the Developer. The
lands which are subject to this Agreement are referred to herein as
the "Property" . As of the date of this Agreement, the Property is
owned by the Agency. The Property is more particularly described
in the legal description attached as Exhibit "A" hereto. The
redevelopment of the Property pursuant to this Agreement is in the
vital and best interests of the City of San Bernardino (the "City")
and the health, safety and welfare of its residents, and is in
accord with the public purposes and provisions of applicable state
and local laws . The Agency has determined that the development and
use of the Property contemplated by this Agreement is consistent
with the Redevelopment Implementation Plan for the Northwest
Redevelopment Project .
Section 1 . 02 . The Property and the Project . The
Property includes approximately Three and sixty One Hundredths
(3 . 61) acres of land, more or less, and is generally situated at
Industrial Parkway (APN 0266-072-91) , San Bernardino, California .
Promptly following the purchase of the Property from the Agency,
the Developer shall commence to undertake the redevelopment,
improvement, and use of the Property as an automobile recycling
facility (the "Project") . The Project is more particularly
described in Exhibit "B" attached hereto.
Section 1 . 03 . Parties to the Agreement .
(a) The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and
existing under Chapter 2 of the . Community Redevelopment Law of the
State of California (Health and Safety Code Section 33020, et sea. )
The principal office of the Agency is located at 201 North "E"
Street, Suite 301, San Bernardino, California 92401 .
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• r
(b) The Developer consists of the members of the firm
known as Hi-Way Auto Recyclers, LLC, a California limited liability
company. The principals of the Developer are
The principal office and mailing address of the Developer for
purposes of this Agreement is :
Hi-Way Auto Recyclers, LLC
Attention:
14315 Whittram Avenue
Fontana, California 92335-3071
(c) The City of San Bernardino is not a party to this
Agreement.
Section 1 . 04 . Restrictions Aaainst Change in Ownership
Manaaement and Control of Developer and As ianment of Agreement .
The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those
qualifications and identity that the Agency has entered into this
Agreement with the Developer. Prior to the issuance of a
Certificate of Completion, as set forth in Section 3 . 07, no
voluntary or involuntary successor in interest of the Developer
shall acquire any rights or powers under this Agreement, except as
expressly set forth herein. Except as set forth in Section 3 . 04,
the Developer shall not assign all or any part of this Agreement or
any rights hereunder, prior to the issuance of the Certificate of
Completion, with respect to the Project, without the prior written
approval of the Executive Director of the Agency, which approval
shall not be unreasonably withheld.
The Developer shall promptly notify the Agency in writing
of any and all changes whatsoever in the identity of the business
entities and individuals either comprising or in control of the
Developer, as well as any and all changes in the interest or the
degree of control of the Developer by any such party, of which
information the Developer or any of its partners, members or
officers have been notified or may otherwise have knowledge or
information. This Agreement may be terminated by the Agency prior
to the Close of the Escrow, as set forth in Section 2 . 03, if there
is any significant or material change, whether voluntary or
involuntary, in membership, ownership, management or control of the
Developer (other than such changes occasioned by the death or
incapacity of any individual) that has not been approved by the
Agency prior to the time of such change or the Agency may seek
other appropriate relief in the event that at any time following
the Close of Escrow and prior to issuance of the Certificate of
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Completion such a change in the ownership, or control of the
Developer occurs with respect to the Property; provided, however,
that (i) the Agency shall first notify the Developer in writing of
its intention to terminate this Agreement or to exercise any other
remedy, and (ii) the Developer shall have twenty (20) calendar days
following its receipt of such written notice to commence and
thereafter diligently and continuously proceed to cure the default
of the Developer hereunder and submit evidence of the initiation
and satisfactory completion of such cure to the Agency in a form
and substance deemed satisfactory to the Agency, in its reasonable
discretion.
Section 1 . 05 . Benefit to Project Area. The Agency has
determined that the development of the Property in accordance with
this Agreement will materially assist in the elimination of blight
and the implementation of the Redevelopment Plan for the Project
Area.
ARTICLE II
DISPOSITION OF THE PROPERTY
Section 2 . 01 . Purchase and Sale of the Property.
Subject to all of the terms, conditions and provisions of this
Agreement, and for the consideration of the Purchase Price as
herein set forth, the Agency hereby agrees to sell via grant deed
to the Developer merchantable lien free title and the Developer
hereby agrees to purchase the following:
all of the right, title and interest of the Agency in the
Property as more fully described in legal description
attached hereto as Exhibit "A, " including all right,
title and interest of the Agency in and to any land lying
in the right-of-way of any existing or proposed highway,
street, road, avenue or alley abutting or adjoining the
Property.
The purchase price which the Agency agrees to accept from
the Developer and which the Developer agrees to pay to the Agency
for the Property is the sum of ONE HUNDRED EIGHTY THOUSAND SEVEN
HUNDRED TWO DOLLARS ($180, 702 . 00) in United States currency (the
"Purchase Price") .
For all purposes of this Agreement, the legal description
of the Property attached hereto as Exhibit "A" shall be definitive
and controlling as to the location, size or other aspect of the
Property.
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a �
Section 2 . 02 . ' Deposit and Payment - of- Purchase Price.
(a) Within five (5) calendar days following the
execution of this Agreement by both parties, the Developer shall
deliver to the Escrow Holder (as hereinafter defined) the sum of
Ten Thousand Dollars ($10, 000 . 00) . This sum, upon its receipt by
the Escrow Holder, is referred to in this Agreement as the
"Deposit . " Upon receipt of the Deposit and a fully executed copy
of this Agreement, the Escrow Holder shall cause the Escrow (as
hereinafter defined) to be opened, as provided in Section 2 . 03 .
The Escrow Holder shall place the Deposit into an interest-bearing
escrow account with the interest thereon to accrue to the benefit
of the Developer.
At the Close of Escrow (as hereinafter defined) , the
Deposit shall be applied as a credit to the Purchase Price .
(b) Payment of Balance of Purchase Price. The Purchase
Price, less the Deposit, shall be tendered by the Developer to the--
Escrow Holder on the Closing Date (as hereinafter defined) for
disbursement to the Agency at the Close of Escrow in cash or
immediately available funds . The parties acknowledge that, as of
the date of this Agreement, an estimate of the balance of the
Purchase Price payable in cash (net of the Deposit, but without
deductions for other charges, credits or lien releases) appears to
be approximately ONE HUNDRED SEVENTY THOUSAND SEVEN HUNDRED TWO
DOLLARS ($170, 702 . 00) .
(c) The Deposit (less an amount equal to the customary
and reasonable escrow cancellation charges of the Escrow Holder)
shall be returned to the Developer in the event that :
(i) the Agency or the Developer terminates this
Agreement pursuant to Section 2 . 03 (a) ; or
(ii) the Developer does not deliver its Due
Diligence Approval Certificate (as hereinafter defined)
to the Escrow Holder pursuant to Section 2 . 03 (b) and this
Agreement is terminated; or
(iii) the Developer' s conditions precedent to the
Close of Escrow described in Section 2 . 16 (1) , (2) , (3) ,
(5) , (6) or (7) are not satisfied (unless satisfaction
has been waived by the Developer) and this Agreement is
terminated; or
(iv) the Property is materially damaged prior to
the Close of Escrow, or an action of eminent domain is
commenced by a governmental entity with respect to the
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Property prior to the Close of Escrow, and the Developer
elects to terminate this Agreement pursuant to Section
2 . 25 .
Section 2 . 03 . Opening and Closing of Escrow.
(a) The transfer and sale of the Property shall take
place through an Escrow (the "Escrow") to be administered by First
American Title Insurance Company Escrow Department or such other
escrow or title insurance company mutually agreed upon by the
Seller and the Agency (the "Escrow Holder") . The Escrow shall be
deemed open ("Opening of Escrow") upon the receipt by the Escrow
Holder of a copy of this Agreement fully executed by both parties
hereto and the Deposit . The Escrow Holder shall promptly confirm
to the parties the escrow number and the title insurance order
number assigned to the Escrow.
(b) In the event that the Developer has not delivered
its Due Diligence Approval Certificate to the Agency and the Escrow
Holder within one hundred twenty (120) days from the Opening of
Escrow for any reason, then in such event this Agreement shall
terminate upon written notice to the Escrow Holder from either the
Agency or the Developer, whereupon the Deposit shall be returned by
the Escrow Holder to the Developer (less an amount equal to the
customary and reasonable escrow cancellation charges payable to the
Escrow Holder) without further or separate instruction to the
Escrow Holder, and the parties shall each be relieved and
discharged from all further responsibility or liability under this
Agreement . -
(c) Provided that the Developer has delivered its Due
Diligence Approval Certificate within the period of time authorized
in Section 2 . 03 (b) , then the Closing Date of the Escrow shall occur
within sixty (60) days thereafter, subject to the provisions of
Section 2 . 16 and Section 2 . 17 . The words "Close of Escrow, "
"Closing Date" and "Closing" shall mean and refer to the date when
the Escrow Holder is in receipt of the Purchase Price and the
related Escrow documents of the parties and the Escrow Holder is in
a position to comply with the final written escrow closing
instructions of the parties and cause the Agency Grant Deed for the
Property to be recorded and the policy of title insurance for the
Property to be delivered to the Developer.
Section 2 . 04 . Escrow Instructions . This Agreement shall
also constitute the escrow instructions of the parties to the
Escrow Holder. Additionally, the Developer and the Agency each
agree to execute the customary supplemental escrow instructions of
the Escrow Holder in the form provided by the Escrow Holder to its
clients in real property escrow transactions administered by it .
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In the event of a conflict between the additional terms of such
customary supplemental escrow instructions of the Escrow Holder and
the provisions of this Agreement, this Agreement shall supersede
and be controlling. Upon any termination of this Agreement or
cancellation of the Escrow, the Developer shall be solely
responsible for the payment of the escrow cancellation costs of the
Escrow Holder, the Escrow Holder shall forthwith return all monies
(as provided in this Agreement) and documents, less only the Escrow
Holder ' s customary and reasonable escrow cancellation fees and
expenses, as set forth herein.
Section 2 . 05 . Conveyance of Title. On or before 12 : 00
noon on the business day preceding the Closing Date, the Agency
shall deliver to the Escrow Holder a grant deed in the form
attached hereto as Exhibit "C" (the "Agency Grant Deed") duly
executed and acknowledged by the Agency, which Agency Grant Deed
shall convey all of its merchantable lien free right, title and
interest in the Property to the Developer. The Escrow Holder shall
be instructed to record the Agency Grant Deed in the Official
Records of the Recorder of the County of San Bernardino,
California, if and when Escrow Holder holds the various instruments
and funds for the accounts of the parties, as set forth herein, and
can obtain for the Developer a CLTA owner ' s extended coverage
Policy of title insurance ("Title Policy") issued by First American
Title Insurance Company or such other title insurance company
mutually agreed upon by the parties ("Title Company") with
liability in an amount equal to the Purchase Price, together with
such endorsements to the policy as may be reasonably requested by
the Developer, insuring that the fee title to the Property vested
in the Developer is free and clear of options, rights of first
refusal or other purchase rights, leases or other possessory
interests, lis pendens and monetary liens and/or encumbrances and
subject only to:
(1) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the
Developer pursuant to Section 2 . 13 below;
(3) applicable provisions of the parcel map/subdivision
map for the Property;
(4 ) the effect of the Redevelopment Plan for the
Northwest Redevelopment Project;
(5) the effect of the initiation of the sewer
maintenance and assessment district affecting the
Property, as provided under Section 2 . 26;
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(6) the effect of any conditions imposed by the City as
part of the development plan approvals for the
Project;
(7) the provision of the Agency Grant Deed;
(8) the applicable provisions of this Agreement; and
(9) such other title exceptions, if any, resulting from
documents being recorded or delivered through
Escrow.
Section 2 . 06 . Additional Clo ina Obligations of Agency.
On or before 12 : 00 noon on the business day preceding the Closing
Date (unless indicated otherwise) , the Agency shall deliver to the
Escrow Holder (unless indicated to be delivered directly to the
Developer) copies of the following documents and other items :
(1) a certificate of non-foreign status (the "Non-
Foreign Affidavit") executed by the Agency, in the
customary form provided by the Escrow Holder, and a
California Franchise Tax Board Form 590-RE executed
by the Agency;
(2) all soils, seismic, geologic, drainage, and
environmental reports, and surveys, with respect to
the Property, if any, which the Agency has in its
possession and/or control to the extent that
originals of such items have not been delivered
previously by the Agency to the Developer pursuant
to Section 2 . 08 below;
(3) two (2) duplicate original copies of the Closing
Statement described in Section 2 . 21, duly executed
by the Agency;
(4 ) evidence of the existence, organization and
authority of the Agency and of the authority of
persons executing documents on behalf of the Agency
reasonably satisfactory to the Escrow Holder and
Title Company; and
(5) any other documents, instruments, funds and records
required to be delivered to the Developer under the
terms of this Agreement which have not been
previously delivered.
Section 2 . 07 . Closing Obligations of Developer . On or
before 12 : 00 noon on the business day preceding the Closing Date,
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the Developer shall deliver to the Escrow Holder copies of the
following documents and other items :
(1) an acknowledgment and acceptance of the Agency
Grant Deed, duly executed and acknowledged by the
Developer.
(2) two (2) duplicate original copies of the Closing
Statement, duly executed by the Developer.
(3) evidence of the existence, organization and
authority of the Developer and of the authority of
persons executing documents on behalf of the
Developer reasonably satisfactory to the Escrow
Holder and the Title Company.
(4) evidence of construction financing in favor of the
Developer already funded for the Project .
(5) evidence of the ability of the Developer to obtain
building permits from the City and any other
required permits, licenses or approvals for the
Project .
(6) any other documents, instruments or funds required
to be delivered by the Developer under the terms of
this Agreement or as otherwise required by Escrow
Holder or Title Company in order to close Escrow
which have not previously been delivered.
Section 2 . 08 . Inspections and Review.
(a) Due Diligence Items . Within five (5) days after the
execution of this Agreement, the Agency shall deliver true; correct
and complete copies or originals of the following documents and
items (collectively, "Due Diligence Items") to the Developer:
(1) copies of all soils, seismic, geologic, drainage,
engineering, environmental and similar type reports
and surveys (including, but not limited to, any
Property Environmental Site Assessments) , surveys,
relating to the Property if any, in the possession
or control of the Agency.
(2) notices of violations, including, but not limited
to, zoning ordinances, development or building
codes affecting the Property within the Agency' s
possession or control .
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(3) disclosure of any legal matters affectin g the use
or condition of the Property within the knowledge
of the Agency.
(4 ) a copy of the Redevelopment Plan for the Northwest
Redevelopment Project .
(b) Certain Definitions . For the purpose of this
Agreement, the terms set forth below shall have the following
meaning:
(i) "environmental laws" means all federal,
state, local, or municipal laws, rules, orders, .
regulations, statutes, ordinances, codes, ' decrees, or
requirements of any government authority regulating,
relating to, or imposing liability of standards of
conduct concerning any hazardous substance (as later
defined) , or pertaining to occupational health or
industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws,
ordinances, or regulations relate to hazardous substances
on, under, or about the Property) , occupational or
environmental conditions on, under, or about the
Property, as now or may at any later time be in effect,
including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA") [42 USC Section 9601 et seq. ] ; the
Resource Conservation and Recovery Act of 1976 ("RCRA")
[42 USC Section 6901 et seq. ] ; the Clean Water Act, also
known as the Federal Water Pollution Control Act
("FWPCA") [33 USC Section 1251 et eq. ] ; the Toxic
Substances Control Act ("TSCA") [15 USC Section 2601 et
seq. ] ; the Hazardous Materials Transportation Act
("HMTA") [49 USC Section 1801 et seq. ] ; the Insecticide,
Fungicide, Rodenticide Act [7 USC Section 6901 et seq. ]
the Clean Air Act [42 USC Section 7401 et seq. ] ; the Safe
Drinking Water Act [42 USC Section 300f et seq. ] ; the
Solid Waste Disposal Act [42 USC Section 6901 et seq. ] ;
the Surface Mining Control and Reclamation Act [30 USC
Section 101 et seq. ] the Emergency Planning and Community
Right to Know Act [42 USC Section 11001 et seq. ] ; the
Occupational Safety and Health Act [29 USC Section 655
and 657] ; the California Underground Storage of Hazardous
Substances Act [H & S C Section 25288 et seq. ] ; the
California Hazardous Substances Account Act [H & S C
Section 25300 et seq. ] ; the California Safe Drinking
Water and Toxic Enforcement Act [H & S C Section 24249 . 5
et seq. ] the Porter-Cologne Water Quality Act [Water Code
Section 13000 et seq. ] together with any amendments of or
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regulations promulgated under the statutes cited above
and any other federal, state, or * local law, statute,
ordinance, or regulation now in effect or later enacted
that pertains to occupational health or industrial
hygiene, and only to the extent the occupational health
or industrial hygiene laws, ordinances, or regulations
relate to hazardous substances on, under, or about the
Property, or the regulation or protection of the
environment, including ambient air, soil, soil vapor,
groundwater, surface water, or land use.
(ii) "hazardous substances" includes without
limitation:
those substances included within the definitions of
"hazardous substance, " "hazardous waste, " "hazardous
material, " "toxic substance, " "solid waste, " or -
%%pollutant or contaminate" in CERCLA, RCRA, TSCA, HMTA,
or under any other environmental law; and
those substances listed in the United States Department
of Transportation (DOT) Table [49 CFR 172 . 101] , or by the
EPA, or any successor agency, as hazardous substances [40
CFR Part 302] ; and
other substances, materials, and wastes that are or
become regulated or classified as hazardous or toxic
under federal, state, or local laws or regulations; and
any material, waste, or substance that is :
(1) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4 ) designated as a hazardous substance pursuant to 33
USC Section 1321 or listed pursuant to 33 USC
Section 1317,
(5) a flammable explosive, or
(6) a radioactive material .
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Section 2 . 09 . Due Diligence Inv iciation of the
Property By the Developer.
` (a) Within one hundred and twenty (120) days from and
after the Opening of Escrow, and subject to the extensions of time
set forth below in Section 2 . 15, the Developer shall have the right
to examine, inspect and investigate the Property (the "Due
Diligence Period") to determine whether the condition of the
Property is acceptable to the Developer and to obtain such
development project approvals from the City for the improvement of
the Project, as the Developer may require in its sole and absolute
discretion.
(b) During the Due Diligence Period, the Agency shall
permit the Developer, its engineers, analysts, contractors and
agents to conduct such physical inspections and testing of the
Property as the Buyer deems prudent with respect to the physical
condition of the Property, including the inspection or
investigation of soil and subsurface soil geotechnical condition,
drainage, seismic and other geological and topographical matters,
surveys the potential presence of any hazardous substances, if any.
(c) Any such investigation work on the Property may be
conducted by the Developer and/or its agents during any normal
business hours upon seventy-two (72) hours prior notice to the
Agency, which notice will include a description of any
investigation work or tests to be conducted by the Developer on the
Property. Upon the Agency' s request, the Developer will provide
the Agency with copies of any test results .
(d) During the Due Diligence Period, the Developer shall
also have the right to investigate all matters relating to the
zoning, use and compliance with other applicable laws which relate
to the use and development and improvement of the Property. The
Developer may submit an application to the City and any other
regulatory agency with jurisdiction for any and all necessary
development project approvals for the improvement of the Project .
The Agency hereby consents to the submission of such development
project approval applications by the Developer.
(e) The Agency shall cooperate fully to allow the
Developer to complete such inspections and investigations of the
condition of the Property. The Agency shall have the right, but
not the obligation, to accompany the Developer during such
investigations and/or inspections . The Developer shall pay for all
costs and expenses associated with the conduct of all such Due
Diligence investigation, including the cost of submitting any
development project approval application, as relates to the
Project, to any regulatory jurisdiction.
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Section 2 . 10 . Due Diligence Approval Certificate.
Within one hundred twenty (120) days following the Opening of
Escrow, the Developer shall complete its Due Diligence
investigation of the Property (subject to the extensions of time
set forth in Section 2 . 15) and deliver a due diligence approval
certificate signed by the Developer (the "Due Diligence Approval
Certificate") to the Escrow Holder which either:
(i) indicates that the Developer accepts the condition
of the Property or;
(ii) contains a description of the matters or exceptions
relating to the condition of the Property which the
Developer was not able to accept or resolve to its
satisfaction during the Due Diligence Period.
Section 2 . 11 . Books and Records . As part of the
Developer ' s Due Diligence . investigations during the Due Diligence
Period, the Developer shall be afforded full opportunity by the
Agency to examine all books and records in the possession of the
Agency and/or the Agency' s agents or employees, which relate to the
Property including the reasonable right to make copies of such
books and records at the expense of the Developer. During the Due
Diligence Period, the Agency will make sufficient staff available
to assist the Developer with obtaining access to information
relating to the Property which is in the possession or control of
the Agency.
Section 2 . 12 . Condition of the Property-Developer' s
Release . The Developer acknowledges and agrees that it shall be
given a full opportunity under this Agreement to inspect and
investigate every aspect of the Property during the Due Diligence
Period. Upon issuance to the Escrow Holder of a Due Diligence
Approval Certificate under Section 2 . 10 which accepts the condition
of the Property, the Developer shall, thereafter, accept delivery
of possession to the Property on the Close of Escrow in an "AS IS, "
"WHERE IS" and "SUBJECT TO ALL FAULTS" condition. The Developer
further agrees and represents to the Agency that by a date no later
than the end of the Due Diligence Period, the Developer shall have
conducted and completed (or waived the completion) of all of its
independent investigation of the condition of the Property which
the Developer may believe to be indicated. The Developer hereby
acknowledges that it shall rely solely upon its own investigation
of the Property and its own review of such information and
documentation as it deems appropriate for the purpose of accepting
the condition and possession of the Property. The Developer is not
relying on any statement or representation by the Agency relating
to the condition of the Property unless such statement or
representation is specifically contained in this Agreement .
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Y
Without limiting the foregoing, the Agency makes no representations
or warranties as to whether the Property presently complies with
environmental laws or whether the Property contains any hazardous
substance, as these terms are defined in Section 2 . 08 (b) hereof.
Furthermore, to the extent that the Agency has provided the
Developer with information relating to the condition of the
Property, including information and reports prepared by or on
behalf of the City of San Bernardino, the Agency makes no
representation or warranty with respect to the accuracy,
completeness, methodology or content of such reports or
information.
Without limiting the above, except to the extent covered
by an express representation or warranty of the Agency 'set forth in
this Agreement, the Developer, on behalf of itself and its
successors and assigns, waives and releases the Agency and its
successors and assigns from any and all costs or expenses
whatsoever (including, without limitation, attorneys ' fees and
costs) , whether direct or indirect, known or unknown, foreseen or
unforeseen, arising from or relating to the physical condition of
the Property, the condition of the soils, the suitability of the
soils for the improvement of the Project as proposed, or any law or
regulation applicable thereto, including the presence or alleged
presence or harmful or hazardous substances in, under or about the
Property including, without limitation, any claims under or on
account of (i) CERCLA and similar statutes and any regulations
promulgated thereunder or (ii) any other environmental laws .
The Developer expressly waives any rights or benefits
available to it with respect to the foregoing release under any
provision of applicable law which generally provides that a general
release does not extend to claims which the creditor does not know
of suspect to exist in his or her favor at the time the release is
agreed to, which, if known to such creditor, would materially
affect a settlement . By execution of this Agreement, the Developer
acknowledges that it fully understands the foregoing, and with this
understanding, nonetheless elects to and does assume all risk for
claims known or unknown, described in this Section 2 . 12 without
limiting the generality of the foregoing:
The undersigned acknowledges that it has been advised by legal
counsel and is familiar with the provisions of California
Civil Code Section 1542, which provides as follows :
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"A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT KNOWN
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. "
The undersigned, being aware of this code section, hereby
expressly waives any rights it may have thereunder, as well as
under any other statutes or common law principles of similar
effect.
Initials of Developer:
The provisions of this Section 2 . 12 shall survive the
Close of Escrow.
Section 2 . 13 . Review and Approval of Condition of Title
by the Developer.
(a) Within fifteen (15) days following the Opening of
Escrow, the Agency shall cause to be delivered to the Developer a
preliminary title report or title commitment for a CLTA extended
coverage policy of title insurance issued by the Title Company,
describing the state of the title of the Property, together with
copies of all exceptions specified therein and with all easements
plotted, but excluding matters disclosed on a survey (the
"Preliminary Title Report") . The Developer shall notify the Agency
in writing of any objections the Developer may have to the title
exceptions contained in the Preliminary Title Report ( "Developer' s
Title Objection Notice") prior to the expiration of the Due
Diligence Period. The Agency shall have a period of five (5) days
after receipt of the Developer' s Title Objection Notice in which to
deliver written notice to the Developer ("Agency' s Title Notice")
of the Agency' s election to either (i) agree to remove the
objectionable items prior to the Close of Escrow, or (ii) decline
to remove any such title exceptions; provided, however, that the
Agency shall be required to remove all monetary liens and
encumbrances created by or as a result of the Agency' s activities .
If the Agency notifies the Developer of its election to terminate
Escrow rather than remove the objectionable items, the Developer
shall have the right, by written notice delivered to the Agency
within five (5) days after the Developer' s receipt of the Agency' s
Title Notice, to agree to accept the Property subject to the
objectionable items, in which event the Agency' s election to
terminate the Escrow shall be of no effect, and the Developer shall
take title to the Property at the Close of Escrow subject to such
objectionable title items .
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(b) The Agency hereby covenants not to encumber place
any liens or encumbrances on the Property, including, but not
limited to, covenants, conditions, restrictions, easements, liens,
options to purchase, options to lease, leases, tenancies, or other
possessory interests without the prior written consent of the
Developer following execution of this Agreement by the Agency.
Upon the issuance of any amendment or supplement to the Preliminary
Title Report which adds additional exceptions (including, but not
limited to, adding additional exceptions for matters shown on the
Survey as hereinafter defined) , the foregoing right of review and
approval shall also apply to said amendment or supplement (provided
that the period for the Developer to review such amendment or
supplement shall be the later of the expiration of the Due
Diligence Period or ten (10) days from receipt of the amendment or
supplement) and Escrow shall be deemed extended by the amount of
time necessary to allow such review and approval in the time and
manner set forth above .
Section 2 . 14 . Survey. The Developer may at its sole
cost and separate expense obtain a survey of the Property prepared
by a land surveyor duly licensed by the State of California and in
compliance with ALTA/ASCM standards (the "Survey") . The Survey
shall be in a form acceptable to the Title Company for the deletion
of the standard survey exception in the Title Policy relating to
boundaries, without the addition of further exceptions, unless the
same are acceptable to the Developer in its sole and absolute
discretion. The Developer shall have until the end of the Due
Diligence Period to complete and examine the Survey and to notify
the Agency in writing of any objections the Developer has to the
Survey ("Developer ' s Survey Objection Notice") . The Agency shall
have a period of five (5) days after receipt of the Developer ' s
Survey Objection Notice in which to deliver written notice to the
Develope-r ( "Agency' s Survey Notice") of the Agency' s election to
either (i) agree to remove the objectionable items prior to the
Close of Escrow or (ii) decline to remove such items . If the
Agency notifies the Developer of its intention not to remove the
objectionable items, the Developer shall have the right, by written
notice delivered to the Agency within ten (10) days after the
Developer ' s receipt of Agency' s Survey Notice, to agree to accept
the Property subject to the objectionable items, in which event,
the Agency' s election to terminate the Escrow shall be of no
effect, and the Developer shall accept the Property at the Close of
Escrow subject to such objectionable items . Prior to the Close of
Escrow, the Survey shall be recertified to the Developer, Title
Company and the Developer ' s lender, if any.
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Section 2 . 15 . Extension of Due Diligence Period.
(a) In the event the Agency fails to provide the
Developer with documents or other information required by Sections
2 . 08 and 2 . 11 by the date (s) set forth therein, the Due Diligence
Period regarding such information shall be extended by one (1) day
for each day of the delay by the Agency to permit the Developer to
perform an adequate due diligence review of such documents or
information (but shall not exceed a total of sixty (60) days) . The
Developer will use its best efforts to notify the Agency of any
documents or information the Agency has failed to deliver to the
Developer within the time periods provided in Sections 2 . 08 and
2 . 11 .
(b) In the event that the Executive Director makes a
finding that the Developer has undertaken substantial work to
complete the due diligence implementation of the Project, the
Executive Director shall upon the written request of the Developer
authorize an extension of the Due Diligence Period for up to an
additional thirty (30) days .
Section 2 . 16 . Developer' s Conditions Precedent to Close
Escrow. The Developer' s obligation to complete the purchase of the
Property and Close the Escrow shall be conditioned upon the
fulfillment of the following conditions precedent, all of which
shall be satisfied (or waived in writing pursuant to Section 2 . 19)
prior to the Close of Escrow:
(1) The Agency shall not have defaulted on any material
term of this Agreement to be performed by the
Agency, hereunder, and each representation and
warranty made by the Agency in this Agreement shall
remain true and correct . For purposes of this
subsection (1) only, a representation that is
limited to the Agency' s knowledge or notice shall
be false, if the factual matter that is subject to
the representation is false, notwithstanding any
lack of knowledge or notice to the Agency;
(2) the Developer ' s approval of the Preliminary Title
Report and the Survey, if applicable, within the
time periods specified in Sections 2 . 13 and 2 . 14 ;
(3) the Developer' s approval of the contents of all due
diligence items, and the other investigations of
the Property made by the Developer and/or its
designees pursuant to Sections 2 . 08 and 2 . 09
herein, on or before the expiration of the Due
Diligence Period, or such later date, if the Due
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Diligence Period is extended
q . pursuant to Section
2 . 15 . The Developer shall be deemed to have
disapproved such due diligence items unless they
are approved on or before 5 : 00 p.m. on the day
ending the Due Diligence Period, or such later
date, if the Due Diligence Period is extended
pursuant to Section 2 . 15 herein;
(4 ) the Developer has obtained a loan commitment for
the acquisition of the Property and the
construction of the Project from an institutional
lender on terms reasonably acceptable to the
Developer in a principal amount of at least One
Hundred Fifty Two Thousand five Hundred Sixty
Dollars ($152, 561 . 00) ;
(5) the Developer and the Agency have jointly approved
the Sewer Service Plan as set forth in Section
2 . 26;
(6) the Developer' s approval of any notice of change in
representation or warranty given by the Agency
pursuant to Section 2 .25 (a) hereof; and
(9) the Title Company has committed to issue the Title
Policy, in favor of the Developer in the form
described in Section 2 . 05 .
Section 2 . 17 . The Agency' s Conditions Precedent to Close
of Escrow. The Agency' s obligation to convey the Property to the
Developer shall be conditioned upon the fulfillment of the
following conditions precedent, all of which shall be satisfied (or
waived in writing pursuant to Section 2 . 19) prior to the Close of
Escrow:
(1) the Developer has accepted the condition of the
Property and submitted its Due Diligence Approval
Certification to the Escrow Holder on or before the
date set forth in Section 2 . 10 of this Agreement;
(2) the Developer has accepted the condition of title
of the Property on or before the date set forth in
Section 2 . 13;
(3) the Developer shall not be in default of any
material term of this Agreement to be performed by
the Developer hereunder and each representation and
warranty of the Developer made in this Agreement
shall remain true and correct; and
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(4 ) the Developer shall be satisfied shed (or waive
satisfaction) of each of the conditions precedent
set forth in Section 2 . 16 and the Escrow shall be
in a condition to close within one hundred and
eighty (180) days following the Opening of Escrow
(subject to Section 2 . 15, if applicable) .
Section 2 . 18 . Distribution of Documents and Purchase
Price After Closina Date by Escrow Holder. The Escrow Holder shall
deliver to the Developer, within three (3) business days following
the Closing Date, a conformed copy of the Agency Grant Deed, as
recorded, and the policy of title insurance issued by the Title
Company in favor of the Developer. The Escrow Holder shall deliver
to the Agency the Purchase Price, less sums paid to discharge any
liens, less Escrow costs, expenses and the various prorations
chargeable to the Agency hereunder.
Section 2 . 19 . Satisfaction of Conditions . Where
satisfaction of any of the foregoing conditions requires action by
the Developer or by the Agency, each party shall use its best
efforts, in good faith, and at its own cost, to satisfy such
conditions . Where satisfaction of any of the foregoing conditions
�r requires the approval of a party, such approval shall be in such
party' s sole and absolute discretion.
Either party may waive any of the conditions set forth in
this Agreement, but any such waiver shall be effective only if
contained in a writing signed by the applicable party and delivered
to the Escrow Holder.
Section 2 . 20 . [RESERVED -- NO TEXT]
Section 2 . 21 . Prorations, Closing Costs Possession.
(a) Real and personal property taxes for the Property
shall be prorated by the parties to the Close of Escrow on the
basis of a three hundred sixty-five (365) day year. The Agency is
responsible for (i) all taxes (if any) for the fiscal year of the
applicable taxing authority occurring prior to the Current Tax
Period (as defined below) and (ii) that portion of such taxes for
the Current Tax Period to 11 : 59 p.m. upon the Close of Escrow,
whether or not the same shall be payable prior to the Close of
Escrow. The phrase "Current Tax Period" refers to the fiscal year
of the applicable taxing authority in which the Close of Escrow
occurs . All tax prorations shall be based upon the latest
available tax statement. If the tax statements for the fiscal tax
year during which the Close of Escrow occurs do not become
available until after the Close of Escrow, then the rates and
assessed values of the previous year, with known changes, shall be
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used, and the parties shall re-prorate said taxes outside of Escrow
following the Close of Escrow when such tax statements become
available. The Agency shall be responsible for and shall pay or
reimburse the Developer upon demand for any real or personal
property taxes payable following the Close of Escrow applicable to
any period of time prior to the Close of Escrow as a result of any
change in the tax assessment by reason of reassessment, changes in
use of the Property, changes in ownership, errors by the Assessor
or otherwise .
(b) The Developer shall be entitled to exclusive
possession of the Property immediately upon the Close of Escrow.
(c) The Agency shall pay the cost of the premium for a
CLTA owner' s extended coverage policy of title insurance on the
Property in the amount of the Purchase Price, together with all
title charges (including endorsements reasonably requested by the
Developer to remove disapproved items shown on the Preliminary
Title Report or Survey pursuant to Sections 2 . 13 and 2 . 14 above) .
The Agency shall pay one-half ('-�) of the customary and reasonable
escrow fees which may be charged by the Escrow Holder in connection
with the Close of Escrow.
The Developer shall pay the additional cost of the Survey
and requested CLTA survey policy endorsements (to the extent such
endorsements are unrelated to removal of any disapproved items
shown on the Preliminary Title Report or Survey pursuant to
Sections 2 . 13 and 2 . 14 above) which exceeds the premium for a CLTA
owner' s extended coverage policy of title insurance on the
Property, plus the cost of recording the Agency Grant Deed,
together with one-half ('-�) of the cost of the customary and
reasonable escrow fees charged by Escrow Holder in connection with
the Close of Escrow. The Developer shall pay any documentary or
other transfer taxes payable on account of the conveyance of the
Property to the Developer.
Any other Escrow-related transaction expenses or escrow
closing costs incurred by the Escrow Holder in connection with this
transaction shall be apportioned and paid for by the parties to
this Agreement in the proportion of one-half ('-t) payable by each
party.
No later than three (3) business days prior to the Close
of Escrow, the Escrow Holder shall prepare a closing statement
( "Closing Statement") on the Escrow Holder ' s standard form
indicating, among other things, the Escrow Holder' s estimate of all
closing costs, pay-off amounts for the release and reconveyance of
all liens secured by the Property and prorations made pursuant to
this Agreement for approval by the Developer and the Agency. The
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Developer and the Agency shall assist the Escrow Holder in
determining the amount of all prorations .
Section 2 . 22 . BREACH OF ARTICLE II BY THE AGENCY;
LIQUIDATED DAMAGES PAYABLE BY THE AGENCY TO THE DEVELOPER. IN THE
EVENT THAT THE AGENCY COMMITS A MATERIAL BREACH OF ITS OBLIGATIONS
UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE DAMAGES
THAT THE DEVELOPER WILL INCUR BY REASON THEREOF ARE AND WILL BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
DEVELOPER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE
AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT EQUAL
TO THE SUM OF TEN THOUSAND DOLLARS ($10,000 . 00) AS LIQUIDATED
DAMAGES. SUCH SUM SHALL BE PAID TO THE DEVELOPER IN THE EVENT OF
SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF THIS AGREEMENT
AND CANCELLATION OF THE ESCROW, AS LIQUIDATED DAMAGES, WHICH
DAMAGES SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY AT LAW
OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE AGENCY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE
DEVELOPER WAIVES ANY AND ALL RIGHTS WHICH THE DEVELOPER OTHERWISE_
WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY
ENFORCE THIS AGREEMENT. THE DEVELOPER AND THE AGENCY ACKNOWLEDGE-
AND AGREE THAT EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS
OF THIS SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS .
Initials of Agency Initials of Developer
Section 2 . 23 . BREACH BY THE DEVELOPER OF ARTICLE II •
LIQUIDATED DAMAGES PAYABLE BY THE DEVELOPER TO THE AGENCY. IN THE
EVENT THAT THE DEVELOPER COMMITS A MATERIAL BREACH OF ITS
OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW, THE
DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL
BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER
AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE
AGENCY' S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE
DEVELOPER, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT
EQUAL TO THE SUM OF TEN THOUSAND DOLLARS ($10,000 .00) AS LIQUIDATED
DAMAGES. SUCH SUM SHALL BE PAID TO THE AGENCY IN THE EVENT OF SUCH
DEFAULT BY THE DEVELOPER AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL
BE THE AGENCY' S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN
THE EVENT OF AND FOR SUCH DEFAULT BY THE DEVELOPER. WITHOUT
LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THE AGENCY
WAIVES ANY AND ALL RIGHTS WHICH THE AGENCY OTHERWISE WOULD HAVE HAD
UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS
AGREEMENT. THE AGENCY AND THE DEVELOPER ACKNOWLEDGE AND AGREE THAT
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EACH OF THEM HAS READ AND UNDERSTANDS THE PROVISIONS OF THIS
SECTION AND EACH AGREES TO BE BOUND BY ITS TERMS.
Initials of Developer Initials of Agency
Section 2 . 24 . Statements of the Agency and
Representations and Warranties of the Developer.
(a) Statements of the Agency. Without waiving any of
the immunity applicable to the Agency under Government Code Section
818 . 8, the Agency hereby makes the following statements :
(1) Each and every undertaking and obligation of the
Agency under this Agreement shall be performed by .
the Agency timely when due .
(2) The Agency is a community redevelopment agency,
duly formed and operating under the laws of the
State of California . The Agency has the legal
power, right and authority to enter into this
Agreement and to execute the instruments and
documents referenced herein, and to consummate the
transactions contemplated hereby.
(3) The Agency has taken all requisite action and
obtained all requisite consents, approvals and
authorizations in connection with entering into
this Agreement and the instruments and documents
referenced herein and the consummation of the
transactions contemplated hereby, and no consent
approval or authorization of any other party is
required.
(4 ) The persons executing any instruments for or on
behalf of the Agency have been authorized to act on
behalf of the Agency and the Agreement is valid and
enforceable against the Agency in accordance with
its terms and each instrument to be executed by the
Agency pursuant hereto or in connection therewith
will, when executed, be valid and enforceable
against the Agency in accordance with its terms .
No approval, consent, order or authorization of, or
designation or declaration of any other person, is
required in connection with the valid execution and
delivery of and compliance with this Agreement by
the Agency.
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(5) Prior to the Close of Escrow, the Agency will be
the owner of (and the Developer will acquire
hereunder) the entire right, title and interest in
the Property to effectively vest in the Developer
good and marketable fee simple title to the
Property, and the Developer will acquire the
Property free and clear of all liens, encumbrances,
claims, rights, demands, easements, leases or other
possessory interests, agreements, covenants,
conditions, and restrictions of any kind or
character (including, without limiting the
generality of the foregoing, liens or claims for
taxes, mortgages, conditional sales contracts, or
other title retention agreement, deeds of trust,
security agreements and pledges and mechanics lien)
except : (i) the matters described in Section 2 . 05,
and (ii) the exceptions to title approved by the
Buyer pursuant to Section 2 . 13 .
(6) There are no pending or threatened claims, actions,
allegations or lawsuits of any kind, whether for
personal injury, property damage, property taxes or
otherwise, that could materially and adversely
affect the value or use of the Property or prohibit
the sale thereof nor is there any governmental
investigation of any type or nature pending or
threatened against or relating to the Property or
the transactions contemplated hereby.
(7) Between the date of this Agreement and the Close of
Escrow, the Agency will continue to manage, operate
and maintain the Property in the same manner as
existed prior to the execution of this Agreement .
(8 ) There are no contracts or agreements to which the
Agency is a party relating to the operation,
maintenance, development, improvement or ownership
of the Property which will survive the Close of
Escrow, except as may be set forth in the Agency
Grant Deed or in the Deed of Trust .
(9) The Agency has no present knowledge of any
condition of the Property which would prevent its
development in accordance with the Scope of
Development .
(10) The Property (is/is not] located within a
designated earthquake fault zone pursuant to
California Public Resources Code Section 2621 . 9 and
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r a designated area that is particularly susceptible
to ground shaking, liquefaction, landslides or
other ground failure during an earthquake pursuant
to California Public Resources Code Section 2694 .
(b) Warranties and Representations by the Developer.
The Developer hereby makes the following representations, covenants
and warranties and acknowledges that the execution of this
Agreement by the Agency has been made in material reliance by the
Agency on such covenants, representations and warranties :
(1) The Developer is a duly organized and validly
existing California limited liability company. The
Developer has the legal right, power and authority
to enter into this Agreement and the instruments
and documents referenced herein and to consummate
the transactions contemplated hereby. The persons
executing this Agreement and the instruments
referenced herein on behalf of the Developer hereby
represent and warrant that such persons have the
power, right and authority to bind the Developer.
(2) The Developer has taken all requisite action and
obtained all requisite consents in connection with
entering into this Agreement and the instruments
and documents referenced herein and the
consummation of the transactions contemplated
hereby, and no consent of any other party is
required.
(3) This Agreement is, and all agreements, instruments
and documents to be executed by the Developer
pursuant to this Agreement shall be, duly executed
by and are or shall be valid and legally binding
upon the Developer and enforceable in accordance
with their respective terms .
(4 ) Neither the execution of this Agreement nor the
consummation of the transactions contemplated
hereby shall result in a breach of or constitute a
default under any other agreement, document,
instrument or other obligation to which the
Developer is a party or by which the Developer may
be bound, or under any law, statute, ordinance,
rule, governmental regulation or any writ,
injunction, order or decree of any court or
governmental body applicable to the Developer or to
the Property.
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All representations and warranties contained in this
Section 2 .24 (b) are true and correct on the date hereof and on the
Close of Escrow and Developer' s liability for misrepresentation or
breach of warranty, representation or covenant, wherever contained
in this Agreement, shall survive the execution and delivery of this
Agreement and the Close of Escrow.
Section 2 . 25 . Damaae, Destruction . and Condemnation.
Prior to the Agency' s delivery of possession of the Property to
Developer at the Close of Escrow, the risk of loss or damage to the
Property shall remain upon the Agency. If the Property suffers
damages as a result of any casualty, prior to the Close Escrow,
which may materially diminish its value, then the Agency shall give
written notice thereof to Developer promptly after the occurrence
of the casualty. Thereafter the Developer can elect to either: (i)
accept the Property in its damaged condition or (ii) the Developer
may terminate this Agreement and recover the Deposit, as set forth
in Section 2 . 02 . The Developer shall confirm the exercise of its
election under subparagraph (i) or (ii) of the preceding sentence
within thirty (30) days of its receipt of notice from the Agency
that the Property suffered material damages .
In the event that, prior to the Close of Escrow, any
governmental entity shall commence any actions of eminent domain or
similar type proceedings to take any portion of the Property, the
Agency shall give prompt written notice thereof to Developer, and
Developer shall have the option either: (i) to elect not to acquire
the Property, terminate the Agreement and recover the Deposit, as
set forth in Section 2 . 02; or (ii) the Developer may complete the
acquisition of the Property under this Agreement, in which case the
Developer shall be entitled to all of the proceeds paid in
compensation for such taking; provided, however, that the Agency
agrees that it shall not settle or compromise the proceedings
before the Close of Escrow without the Developer' s prior written
consent, which consent will not be unreasonably withheld or
delayed. The Developer shall confirm the exercise of its election
under subparagraph (i) or (ii) of the preceding sentence within
thirty (30) days of its receipt of notice from the Agency of
commencement of eminent domain proceedings against the Property.
Section 2 . 26 . Sewer Improvement . At any time following
the Close of Escrow, if public sewer improvements related to the
Property, as required by the City for the Developer ' s planned use
of the Property set forth in this Agreement, are not installed or
in the process of being installed, the Developer may make a formal
written request to -the Agency for the installation of such public
improvements . Upon receipt of such a formal written request from
the Developer for installation of such public sewer improvements
related to the Property, the Agency shall be obligated to cause the
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installation of such public improvements, either through other
development and/or participation agreements _or through a public
works project, within two hundred forty (240) days of the Agency' s
receipt of such request .
If the Agency elects to satisfy its obligation to cause
the installation of public sewer improvements related to the
Property under this Section 2 .26 through a public works project,
the Agency shall have no obligation to award any such public works
contract, until the Agency is reasonably satisfied that the
Developer has been issued all necessary building permits from the
city for commencement of the Developer' s improvements of the
Property and/or the Project required under this Agreement.
Issuance by the City of all necessary building permits for
commencement of the Developer' s improvements of the Property and/or
the Project required under this Agreement is an express conditoin
precedent to any obligation of the Agency to award a public works
contract for installation of public sewer improvements related to
the Property.
ARTICLE III
DEVELOPMENT OF THE PROJECT
Section 3 . 01 . Development of the Protect by Developer.
(a) Scope of Development . It is the intent of the
parties that promptly following the Close of Escrow the Developer
shall redevelop the Project on the Property. The Project consists
of the elements set forth in Exhibit "B" (Scope of Development) .
(b) The City' s zoning ordinance and the City' s building
requirements will be applicable to the use and development of the
Property. The Developer acknowledges that any change in the plans
for development of the Property, as set forth in the Scope of
Development, shall be subject to the City' s zoning ordinance and
building requirements . No action by the Agency or the City with
reference to this Agreement or related documents shall be deemed to
constitute a waiver of any City requirements which are applicable
to the Property or to the Developer, any successor-in-interest of
the Developer or any successor-in-interest pertaining to the
Property, except by modification or variance approved by the City
consistent with this Agreement .
(c) The Scope of Development set forth in Exhibit "B" is
hereby approved by the Agency upon its execution of this Agreement.
The Project shall be developed and completed in conformance with
the approved Scope of Development and any and all other plans,
specifications and similar development documents required by this
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Agreement, except for such changes as may be mutually agreed upon
in writing by and between the Developer and the Agency. The Agency
agrees to approve preliminary and construction plans and
preliminary and landscaping plans, if reasonably consistent with
the approved Scope of Development.
(d) The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the City Council or the
Planning Commission of the City with respect to any approvals of
the Project required by such other bodies . If any revisions of the
Scope of Development, as approved by the Agency, shall be required
by another governmental official, agency, department or bureau
having jurisdiction over the development of the Property, the
Developer and the Agency shall cooperate to obtain waivers of such
revisions, or to obtain approvals of any such revisions which have
been made by the Developer and have thereafter been approved by the
Agency. The Agency shall not unreasonably withhold approval of any
such revisions .
(e) Notwithstanding any provision to the contrary in
this Agreement, the Developer agrees to accept and comply fully
with any and all reasonable conditions of approval applicable to
all permits and other governmental actions affecting the
(W development of the Property and consistent with this Agreement.
(f) The Developer shall cause landscaping plans in
connection with development of the Property to be prepared by a
licensed landscape architect . The Developer shall prepare and
submit to the City for its approval, preliminary and final
landscaping plans for the Property which are consistent with City
Code requirements . These plans shall be prepared, submitted and
approved within the times respectively established therefor in the
Schedule of Performance, as shown on Exhibit "E" attached hereto
and incorporated herein by this reference, and shall be consistent
with the Scope of Development .
(g) The Developer shall prepare and submit development
plans, construction drawings and related documents for the
development of the Property consistent with the Scope of
Development to the City. The development plans, construction
drawings and related documents shall be in the form of drawings,
plans and specifications . Drawings, plans and specifications are
hereby defined as renderings of the Project which contain
sufficient detail necessary to obtain a building permit from the
City.
(h) During the preparation of all drawings, plans and
specifications in connection with the development of the Property,
the Developer shall provide to the Agency regular progress reports
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Ito advise the Agency of the status of the preparation of the
Project by the Developer, and the submission . to and review by the
City of construction plans and related documents . The Developer
shall communicate and consult with the Agency as frequently as is
necessary to assure the Agency that any such plans and related
documents submitted by the Developer to the City are being
processed in a timely fashion.
(i) The Agency shall have the right of reasonable
architectural review and approval of building exteriors and design
of the structures to be constructed on the Property. The Agency
shall also have the right to review all plans, drawings and related
documents pertinent to the development of the Property in order to
ensure that they are consistent with this Agreement and with the
Scope of Development.
(j ) The Developer shall timely submit to the City for
its review and approval any and all plans, drawings and related
documents pertinent to the development of the Property, as required
by the City. The Agency shall cooperate with and shall assist the
Developer in order for the Developer to obtain the approval of any
and all development plans, construction drawings and related
documents submitted by the Developer to the City consistent with
this Agreement within thirty (30) calendar days following the
City' s receipt of said plans . Any failure by the City to approve
any such plans or to issue necessary permits for the development of
the Property within said thirty (30) calendar day period shall
constitute an enforced delay hereunder, and the Schedule of
Performance shall be extended by that period of time beyond said
thirty (30) calendar day period in which the City approves said
plans; provided, however, that in the event that the City
disapproves of any of such plans, the Developer shall within thirty
(30) calendar days after receipt of such disapproval revise and
resubmit such plans in accordance with the City' s requirements and
in such form and substance so as to obtain the City' s approval
thereof.
(k) The Agency shall in good faith use its best efforts
to cause the City to approve in a timely fashion any and all plans,
drawings and documents submitted by the Developer which are
consistent with the Scope of Development .
(1) The Agency shall approve any modified or revised
plans, drawings and related documents to which reference is made in
this Agreement within the times established in the Schedule of
Performance, as long as such plans, drawings and related documents
are generally consistent with the Scope of Development and any
other plans which have been approved by the Agency. Upon any
disapproval of plans, drawings or related documents, the Agency
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shall state in writing the reasons for such disapproval . The
Developer, upon receipt of notice of any. disapproval, shall
promptly revise such disapproved portions of the plans, drawings or
related documents in a manner that addresses the reasons for
disapproval and reasonably meets the requirements of the Agency in
order to obtain the Agency' s approval thereof. The Developer shall
resubmit such revised plans, drawings and related documents to the
Agency as soon as possible after its receipt of the notice of
disapproval and, in any event, no later than thirty (30) calendar
days thereafter. The Agency shall approve or disapprove such
revised plans, drawings and related documents in the same manner
and within the same times as provided in this Section for approval
or disapproval of plans, drawings and related documents initially
submitted to the Agency.
(m) If the Developer desires to make any change in the
construction drawings, plans and specifications and related
documents after their approval by the Agency and/or the City, the-
Developer shall submit the proposed change in writing to the Agency
and/or the City for approval . The Agency shall notify the
Developer of approval or disapproval thereof in writing within
thirty (30) calendar days after submission to the Agency. This
thirty (30) calendar day period may be extended by mutual consent
of the Developer and the Agency. Any such change shall, in any
event, be deemed to be approved by the Agency unless rejected, in
whole or in part, by written notice thereof submitted by the Agency
to the Developer, setting forth in detail the reasons therefor, and
such rejection shall be made within said thirty (30) calendar day
period unless extended as permitted herein. The Agency shall use
its best efforts to cause the City to review and approve or
disapprove any such change as provided in Section 3 . 01 (b) hereof.
(n) The Developer, upon receipt of a notice of
disapproval by the Agency and/or the City, may revise such portions
of the proposed change in construction drawings, plans and
specifications and related documents as are rejected and shall
thereafter resubmit such revisions to the Agency and/or the City
for approval in the manner provided in Section 3 . 01 (b) hereof.
(o) The Developer shall have the right during the course
of construction to make changes in construction of structures and
"minor field changes" without seeking the approval of the Agency;
provided, however, that such changes do not affect the type of use
to be conducted within all or any portion of a structure . Said
"minor field changes" shall be defined as those changes from the
approved construction drawings, plans and specifications which
have no substantial effect on the improvements and are made in
order to expedite the work of construction in response to field
conditions . Nothing contained in this Section shall be deemed to
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(WO constitute a waiver of or change in the City' s Building Code
requirements governing such "minor field changes" or in any and all
approvals by the City otherwise required for such "minor field
changes . " '
(p) The cost of constructing the Project shall be borne
by the Developer.
(q) The Developer shall pay any and all fees pertaining
to the review and approval of the development project by the City,
including the cost and preparation of all required construction,
planning and other documents reasonably required by governmental
bodies pertinent to the development of the Property hereunder
including, but not limited to, specifications, drawings, plans,
maps, permit applications, land use applications, zoning
applications and design review documents .
(r) The Developer shall pay for any and all costs,
including but not limited to the costs of design, construction,
relocation and securing of permits for sever or utility
improvements and connections, which may be required in developing
the Property. The Developer shall obtain any and all necessary
approvals prior to the commencement of applicable portions of said
construction, and the Developer shall take reasonable precautions
to ensure the safety and stability of surrounding properties during
said construction.
(s) The Developer shall commence the work of
improvements of the Project on the Property within ninety (90) days
following the Close of Escrow and thereafter shall diligently
prosecute such construction to completion. All construction and
development obligations and responsibilities of the Developer as
related to the Project shall be initiated and completed within the
times specified in the Schedule of Performance attached hereto, or
within such reasonable extensions of such times as may be granted
by the Agency or as otherwise provided for in this Agreement. The
Developer shall substantially complete the improvements of the
Project within the two hundred and seventy (270) days following the
commencement of the work of improvements . The Schedule of
Performance shall be subject to revision from time to time as
mutually agreed upon in writing by and between the Developer and
the Agency. Any and all deadlines for performance by the parties
shall be extended for any times attributable to delays which are
not the fault of the performing party and are caused by the other
party, other than periods for review and approval or reasonable
disapprovals of plans, drawings and related documents,
specifications or applications for permits as provided in this
Agreement .
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(t) The Developer will attend Agency meetings when
requested to do so by Agency Staff.
(u) Prior to the commencement of any construction, the
Developer shall furnish, or shall cause to be furnished, to the
Agency duplicate originals or appropriate certificates of public
indemnity and liability insurance in the amount of One Million
Dollars ($1, 000, 000 . 00) combined single limit, naming the Agency
and the City as additional insureds . Said insurance shall cover
comprehensive general liability including, but not limited to,
contractual liability; acts of subcontractors; premises-operations;
explosion, collapse and underground hazards, if applicable; broad
form property damage, and personal injury including libel, slander
and false arrest. In addition, the Developer shall provide to the
Agency adequate proof of comprehensive automobile liability
insurance covering owned, non-owned and hired vehicles, combined
single limit in the amount of One Million Dollars ($1, 000, 000. 00)
each occurrence; and proof of workers ' compensation insurance. Any
and all insurance policies required hereunder shall be obtained
from insurance companies admitted in the State of California and
rated at least B+: XII in Best ' s Insurance Guide . All said
insurance policies shall provide that they may not be canceled
unless the Agency and the City receive written notice of
cancellation at least thirty (30) calendar days prior to the
effective date of cancellation. Any and all insurance obtained by
the Developer hereunder shall be primary to any and all insurance
which the Agency and/or City may otherwise carry, including self
insurance, which for all purposes of this Agreement shall be
separate and apart from the requirements of this Agreement . Any
insurance policies governing the Property as obtained by the Agency
shall not be transferred from the Agency to the Developer.
Appropriate insurance means those insurance policies approved by
the Agency Counsel consistent with the foregoing. Any and all
insurance required hereunder shall be maintained and kept in force
until the Agency has issued the Certificate of Completion in
connection with the development of the Property.
(v) The Developer for itself and its successors and
assigns agrees that in the construction of the Project, the
Developer will not discriminate against any employee or applicant
for employment because of sex, marital status, race, color,
religion, creed, national origin, or ancestry. Notwithstanding the
foregoing, the Developer will use best efforts to offer employment
opportunities to local residents and will seek to acquire goods and
services from local vendors .
(w) The Developer shall carry out its construction of
the Project in conformity with all applicable laws, including all
applicable state labor standards and requirements .
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(x) The Developer shall, at its own expense, secure or
shall cause to be secured, any and all permits which may be
required for such construction, development or work by the City or
any other governmental agency having jurisdiction thereof. The
Agency shall cooperate in good faith with the Developer in the
Developer' s efforts to obtain from the City or any other
appropriate governmental agency any and all such permits applicable
to the development of the Property.
(y) Officers, employees, agents or representatives of
the Agency shall have the right of reasonable access to the
Property, without the payment of charges or fees, during normal
construction hours during the period of construction of the Project
for the purpose of verifying compliance by the Developer within the
terms of this Agreement . Such officers, employees, agents or
representatives of the Agency shall be those persons who are so
identified by the Executive Director. Any and all officers,
employees, agents or representatives of the Agency who enter the
Property pursuant hereto shall identify themselves at the job site
office upon their entrance on to the Property and shall at all
times be accompanied by a representative of the Developer while on
the Property; provided, however, that the Developer shall make a
representative of the Developer available for this purpose at all
times during normal construction hours upon reasonable notice from
the Agency. The Agency shall indemnify and hold the Developer
harmless from injury, property damage or liability arising out of
the exercise by the Agency and/or the City of this right of access,
other than injury, property damage or liability relating to the
negligence of the Developer or its officers, agents or employees .
(z) The Agency shall inspect relevant portions of the
construction site prior to issuing any written statements
reflecting adversely on the Developer ' s compliance with the terms
and conditions of this Agreement pertaining to development of the
Property.
Section 3 . 02 . [RESERVED -- NO TEXT]
Section 3 . 03 . Taxes, Assessments Encumbrances and
Liens . The Developer shall pay, prior to delinquency, all real
property taxes and assessments assessed and levied upon or against
the Property subsequent to the Close of Escrow. The Developer
shall not place and shall not allow to be placed on the Property
any mortgage, trust deed, deed of trust, encumbrance or lien not
otherwise authorized by this ' Agreement. The Developer shall
remove, or shall have removed, any levy or attachment made on the
Property, or shall assure the satisfaction thereof. Nothing herein
contained shall be deemed to prohibit the Developer from contesting
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the validity or amounts of any tax assessment, encumbrance or lien,
nor to limit the remedies available to the .Developer in respect
thereto. The covenants of the Developer set forth in this Section
3 . 03 relating to the placement of any unauthorized mortgage, trust
deed, deed of trust, encumbrance or lien, shall remain in effect
only until the Certificate of Completion has been recorded with
respect to redevelopment of the Property.
Section 3 . 04 . Chanae in Ownership Management and Control
of the Developer -- Assignment and Transfer.
(a) As used in this Section 3 . 04, the term "Transfer"
means :
(1) Any total or partial sale, assignment or
conveyance, or any trust or power, or any transfer
in any other mode or form, by the Developer of more
than a 49% interest (or series of such sales,
assignments and the like which in the aggregate
result in a disposition of more than a 49%
interest) with respect to its interest in this
Agreement, the Property, or the Project, or any
part thereof or any interest therein or of the
improvements constructed thereon, or any contract
or agreement to do any of the same; or
(2) Any total or partial sale, assignment, conveyance,
or transfer in any other mode or form, of or with
respect to any ownership interest in the Developer
(or series of such sales, assignments and the like
which in the aggregate result in a disposition of
more than a 49% interest) ; or
(3) Any merger, consolidation, sale or lease of all or
substantially all of the assets of the Developer in
the Agreement, the Property or the Project (or
series of such sales, assignments and the like
which in the aggregate result in a disposition of
more than a 49% interest) ; or
(4 ) The leasing of part or all of the Property or the
Project .
(b) This Agreement is entered into solely for the
purpose of the redevelopment of the Property and the improvement of
the Project and the subsequent operation and use of the Property by
the Developer in accordance with the terms hereof. The Developer
recognizes that the qualifications and identity of the Developer
are of particular concern to the Agency, in view of:
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(1) the importance of the redevelopment of the Site to
the general welfare of the community; and
(2) the fact that a Transfer is for all practical
purposes a transfer or disposition of the
responsibilities of the Developer, as applicable,
with respect to the redevelopment of the Property
and the Project.
The Developer further recognizes and acknowledges that it
is because of the qualifications and identity of the Developer that
the Agency is entering into this Agreement with the Developer, and,
as a consequence, Transfers are permitted only as provided in this
Agreement .
(c) The limitations on a Transfer as set forth in this
Section 3 . 04 shall apply until such time as a Certificate of
Completion is approved by the Agency and filed for recordation as
provided in Section 3 . 07 . Except as expressly permitted in this
Agreement, the Developer represents and agrees that it has not
made nor shall it create or suffer to be made or created, any
Transfer, either voluntarily or by operation of law without the
prior written approval of the Agency until such time as a
Certificate of Completion has been recorded. After the date of
recordation of a Certificate of Completion, certain other
provisions of this Agreement shall nonetheless be applicable to
subsequent conveyances of interests in the Property, or portions
thereof, as provided in Article IV of this Agreement . Any Transfer
made in contravention of this Section 3 . 04 shall be voidable at the
election of the Agency and shall then be deemed to be a default
under this Agreement .
(d) The following types of Transfers shall be permitted
and approved by the Agency and are referred to herein as a
"Permitted Transfer" :
(1) Any Transfer by the Developer creating a "Security
Financing Interest" in the Property which conforms
to the provisions of Section 3 . 05;
(2 ) Any Transfer directly resulting from the
foreclosure of a Security Financing Interest
created by the Developer in the Property or the
granting of a deed in lieu of foreclosure of a
Security Financing Interest;
(3) Any Transfer of stock or equity of the Developer
which does not change management or operational
control of the Property or the Project;
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(4 ) Any Transfer of any interest in the Developer,
irrespective of the percentage. of ownership: (A) to
members of the family (i .e. spouse, brother,
sister, nephew, niece, parent, child and/or issue
of any of the same) of the members of the Developer
or; (B) to a trust for the benefit of any such
family member; or (C) to any affiliate of or other
entity controlled by the Developer, or (D) to any
other entity in which the Developer owns a
controlling interest.
(e) No Permitted Transfer of this Agreement or any
interest in the Property or the Project, by the Developer (other
than a Permitted Transfer created pursuant to a Security Financing
Interest) shall be effective unless, at the time of the Permitted
Transfer, the person or entity to which such Transfer is made,
shall expressly assume the obligations of the Developer under this
Agreement and such person also agrees to be subject to the
conditions and restrictions to which the Developer is subject under
this Agreement . Such an assumption shall be evidenced by a written
instrument delivered to the Agency in a recordable form which is
satisfactory to the Agency and approved by the Agency.
(f) Provided the particular transaction satisfies the
applicable provisions of Section 3 . 04 (d) , the Developer is not
required to give the Agency advance notice of such a Permitted
Transfer. The Agency may, in its reasonable discretion, approve in
writing any other Transfer as requested by the Developer, provided
the proposed transferee can demonstrate successful and satisfactory
experience in the ownership, operation, and management of an
operation similar to the Project. Any such transferee for itself
and its successors and assigns, and for the benefit of the Agency
shall expressly assume all of the obligations of the Developer to
the Agency under this Agreement . There shall be submitted to the
Agency for review all instruments and other legal documents
proposed to effect any Transfer; and the approval or disapproval of
the Agency shall be provided to the Developer in writing within
thirty (30) days of receipt by the Agency of the Developer' s
request . The Agency approval of a Transfer shall not be
unreasonably withheld or delayed.
(g) Following the issuance of a Certificate of
Completion, the Developer shall be released by the Agency from any
liability under this Agreement which may arise from a default of a
successor-in-interest occurring after the date of such a Transfer;
provided, however, that the covenants of the Developer, as set
forth in Article IV of this Agreement, shall run with the land for
the term of this Agreement as provided in Article IV.
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Section 3 . 05 . Security Financing;-Right of Holders .
(a) Notwithstanding any provision of Section 3. 04 to the
contrary, ` mortgages, deeds of trust, or any other form of lien
required for any reasonable method of financing the construction
and improvement of the Property are permitted before the
recordation of the Certificate of Completion (referred to in
Section 3 . 07 of this Agreement) . The Developer shall notify the
Agency in writing in advance of obtaining any mortgage, deed of
trust, or other form of lien for financing for improvement of the
Project, if the Developer proposes to enter into the such financing
before the recordation of any Certificate of Completion. The
Developer shall not enter into any such conveyance for construction
financing without the prior written approval of the Agency, which
approval the Agency may grant if: (i) any such conveyance is to be
given to a responsible financial or lending institution including,
without limitation, banks, savings and loan institutions, insurance
companies, real estate investment trusts, pension programs and the
like, or other persons or entities acceptable to the Agency for the
purpose of constructing the Project on the Property.
(b) The Developer shall promptly notify the Agency of
any mortgage, deed of trust or other refinancing, encumbrance or
lien that has been created or attached thereto prior to completion
of the construction of the improvements on the Property whether by
voluntary act of the Developer or otherwise; provided, however,
that no notice of filing of preliminary notices or mechanic' s liens
need be given by the Developer to the Agency prior to suit being
filed to foreclose such mechanic ' s lien.-
(c) The words "mortgage" and "deed of trust" as used
herein shall be deemed to include all other customary and
appropriate modes of financing real estate construction and land
development .
(d) The holder of any mortgage, deed of trust or other
security interest authorized by this Agreement shall in no manner
be obligated by the provisions of this Agreement to construct or
complete the improvement of the Property or to guarantee such
construction or completion.
(e) Whenever the Agency shall deliver any notice or
demand to the Developer with respect to any breach or default by
the Developer in the completion of construction of the improvements
of the Project, or any breach or default of any other obligations
which, if not cured by the Developer, entitle the Agency to
terminate this Agreement or exercise its right to re-enter the
Property, or a portion thereof under Section 5 . 07, the Agency shall
concurrently deliver to each holder of record of any mortgage, deed
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of trust or other security interest authorized by this Agreement a
copy of such notice or demand. Each such holder shall (insofar as
the rights of the Agency are concerned) have the right, at its
option, to commence the cure or remedy of any such default and to
diligently and continuously proceed with such cure or remedy,
within one hundred twenty (120) calendar days after the receipt of
the notice; and to add the cost thereof to the security interest
debt and the lien of its security interest. If such default shall
be a default which can only be remedied or cured by such holder
upon obtaining possession, such holder shall seek to obtain
possession with diligence and continuity through a receiver or
otherwise, and shall remedy or cure such default within one hundred
twenty (120) calendar days after obtaining possession; provided
that in the case of a default which cannot with diligence be
remedied or cured, or the remedy or cure of which cannot be
commenced, within such one hundred twenty (120) calendar day
period, such holder shall have such additional time as is
reasonably necessary to remedy or cure such default of the
Developer. Nothing contained in this Agreement shall be deemed to
permit or authorize such holder to undertake or continue the
construction or completion of the improvements (beyond the extent
necessary to conserve or protect the improvements or construction
already made) without first having expressly assumed the
Developer ' s obligations by written agreement satisfactory to the
Agency. The holder in that event must agree to complete, in the
manner provided in this Agreement, the improvements to which the
lien or title of such holder relates and must submit evidence
satisfactory to the Agency that it has the qualifications and
financial responsibility necessary to perform such obligations .
Any such holder completing such improvements in accordance herewith
shall be entitled, upon written request made to the Agency, to be
issued Certificate of Completion by the Agency.
(f) In any case where, one hundred eighty (180) calendar
days after default by the Developer the holder of any mortgage,
deed of trust or other security interest creating a lien or
encumbrance upon the Property or any portion thereof has not
exercised the option to construct the applicable portions of the
Project, or has exercised the option but has not proceeded
diligently and continuously with construction, the Agency may
purchase the mortgage, deed of trust or other security interest by
payment to the holder of the amount of the unpaid debt, including
principal, accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by the Developer
under the loan documents between holder and the Developer. If the
ownership of the Property has vested in the holder, the Agency, at
its option, but not its obligation, shall be entitled to a
conveyance from the holder to the Agency upon payment to the holder
of an amount equal to the sum of the following:
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(1) The unpaid mortgage, deed of trust or other
security interest debt, including principal,
accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by
the Developer under the loan documents between the
holder and the Developer, at the time title became
vested in the holder (less all appropriate credits,
including those resulting from collection and
application of rentals and other income received
during foreclosure proceedings . )
(2) All expenses, if any, incurred by the holder with
respect to foreclosure.
(3) The net expenses, if any (exclusive of general
overhead) , incurred by the holder as a direct
result of the subsequent ownership or management of
the Property, such as insurance premiums and real
estate taxes .
(4 ) The cost of any improvements made by such holder.
(5) An amount equivalent to the interest that would
have accrued on the aggregate of such amounts had
all such amounts become part of the mortgage, deed
of trust debt or other debt and such debt had
continued in existence to the date of payment by
the Agency.
(6) After expiration of the aforesaid one hundred
eighty (180) calendar day period, the holder of any
mortgage, deed of trust or other security affected
by the option created by this Section, may demand,
in writing, that the Agency act pursuant to the
option granted hereby. If the Agency fails to
exercise the right herein granted within sixty (60)
calendar days from the date of such written demand,
the Agency shall be conclusively deemed to have
waived such right of purchase of the mortgage, deed
of trust or other security interest .
(g) In the event of a default or breach by the Developer
of a mortgage, deed of trust or other security interest with
respect to the Property (or any portion thereof) prior to the
issuance of a Certificate of Completion for the Property (or any
portion thereof) , where the holder has not exercised its option to
complete the development, the Agency may cure the default, but is
under no obligation to do so prior to completion of any
foreclosure . In such event, the Agency shall be entitled to
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reimbursement from the Developer of all costs and expenses incurred
by the Agency in curing the default . The Agency shall also be
deemed to have a lien under this Section 3 . 05 (g) upon the Property
(or any portion thereof) to the extent of such costs and
disbursements . Any such lien shall be subordinate and subject to
mortgages, deeds of trust or other security instruments executed by
the Developer for the purpose of obtaining funds to construct and
improve the Project as authorized herein.
Section 3 . 06 . Right of the Agency to Satisfy Other Liens
on the Property after Conveyance of Title. After the conveyance of
title to the Property by the Agency to the Developer and prior to
the recordation of the Certificate of Completion (referred to in
Section 3 . 07 of this Agreement) , and after the Developer has had a
reasonable time to challenge, cure or satisfy any unauthorized
liens or encumbrances on the Property, the Agency shall after one
hundred twenty (120) calendar days prior written notice to the
Developer have the right to satisfy any such liens or encumbrances;
provided, however, that nothing in this Agreement shall require the
Developer to pay or make provisions for the payment of any tax,
assessment, lien or charge so long as the Developer in good faith
shall contest the validity or amount thereof, and so long as such
delay in payment shall not subject the Property, or any portion
thereof, to forfeiture or sale .
Section 3 . 07 . Certificate of Completion.
(a) Following the completion of construction of the
Project excluding any normal and minor building "punch-list" items
to be completed by the Developer and written request therefor from
the Developer, the Agency shall furnish the Developer with a
Certificate of Completion for the Property substantially in the
form set forth in Exhibit "F" attached hereto.
(b) The Agency shall not unreasonably withhold the
issuance of a Certificate of Completion. A Certificate of
Completion shall be, and shall so state, that it is a conclusive
determination of satisfactory completion of the Project . After the
recordation of the Certificate of Completion, any party then owning
or thereafter purchasing, leasing or otherwise acquiring any
interest in the Property shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or liability
under this Agreement, except that such party shall be bound by any
covenants contained in the grant deed or other instrument of
transfer which grant deed or other instrument of transfer shall
include the provisions of Section 4 . 01 through 4 . 04, inclusive, of
this Agreement .
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(c) Any Certificate of Completion shall be in such form
as to permit it to be recorded in the Recorder' s Office of the
County where the Property is located.
(d) If the Agency refuses or fails to furnish a
Certificate of Completion after written request from the Developer,
the Agency shall, within fifteen (15) calendar days of the written
request or within three (3) calendar days after the next regular
meeting of the Agency, whichever date occurs later, provide
Developer with a written statement setting forth the reasons for
the Agency' s refusal or failure to furnish a Certificate of
Completion. The statement shall also contain the Agency' s opinion
of the action the Developer must take to obtain a Certificate of
Completion from the Agency. If the reason for such refusal is
confined to the immediate unavailability of specific items or
materials for construction or landscaping at a price reasonably
acceptable to the Developer or other minor building "punch-list"
items, the Agency may issue its Certificate of Completion upon the
posting of a bond or irrevocable letter of credit, reasonably
approved as to form and substance by the Agency Counsel and
obtained by the Developer in an amount representing a fair value of
the work not yet completed as reasonably determined by the Agency.
If the Agency shall have failed to provide such written statement
within the foregoing period, the Developer shall be deemed
conclusively and without further action of the Agency to have
satisfied the requirements of this Agreement with respect to the
Property, as if a Certificate of Completion had been issued
therefor.
(e) A Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation of
the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements
described herein, or any part thereof. A Certificate of .Completion
shall not be deemed to constitute a notice of _completion as
referred to in Section 3093 of the California Civil Code, nor shall
it act to terminate the continuing covenants or conditions
subsequent contained in the Agency Grant Deed attached hereto as
Exhibit "C" .
ARTICLE IV
USE OF THE SITE
Section 4 . 01 . Uses .
(a) The Developer covenants and agrees for itself, its
successors and assigns that the Property shall be improved and
developed in accordance with the Scope of Development . Developer
covenants to develop the Property in conformity with all applicable
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laws . The covenants of this Section 4 . 01 (a) shall also run with
the land until the earlier of the date on which the Certificate of
Completion is recorded or the fifth (5th) anniversary date of the
recordation of the Agency Grant Deed.
(b) It is understood and agreed by the Developer that
neither the Developer, nor its assigns or successors shall use or
otherwise sell, transfer, convey, assign, lease, leaseback or
hypothecate the Property or any portion thereof to any entity or
party, or for any use of the Property, that is partially or wholly
exempt from the payment of real property taxes pertinent to the
Property, or any portion thereof, or which would cause the
exemption of the payment of all or any portion of such real
property taxes without the prior written consent of the Agency.
The covenant of this Section 4 . 01 (b) shall run with the land for
the time period set forth in the Agency Grant Deed.
Section 4 . 02 . Maintenance of the Property. The
Developer covenants and agrees for itself, its successors, and
assigns to maintain the Property in a good condition free from any
accumulation of debris or waste material, subject to normal
construction job-site conditions, and shall maintain in a neat,
orderly, healthy, safe and good condition the landscaping required
to be planted in accordance with the Scope of Development . In the
event the Developer, or its successors or assigns, fails to perform
the maintenance required herein, the Agency shall have the right,
but not the obligation, to enter the Property and undertake, such
maintenance activities . In such event the Developer shall
reimburse the Agency for all reasonable costs incurred for such
maintenance activities, as set forth in the Agency Grant Deed. The
covenant of this Section 4 . 02 shall run with the land for the time
period set forth in the Agency Grant Deed.
Section 4 . 03 . Obliaation to Refrain from Discrimination.
The Developer covenants and agrees for itself, its successors, its
assigns and every successor-in-interest to the Property or any part
thereof, that there shall be no discrimination against or
segregation of any person, or group of persons, on account of sex,
marital status, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property; nor shall the Developer,
itself or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees
of the Property. The covenant of this Section 4 . 03 shall run with
the land for the time period set forth in the Agency Grant Deed.
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Section 4 . 04 . Form of Nondiscrimination and
Nonsegregation Clauses . The Developer covenants and agrees for
itself, its successors, its assigns, and every successor-in-
interest to the Property, or any part thereof, that the Developer,
such successors and such assigns shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure or
enjoyment of the Property (or any part thereof) on the basis of
sex, marital status, race, color, religion, creed, ancestry or
national origin of any person. All deeds, leases or contracts
pertaining thereto shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses :
(1) In deeds : "The grantee herein covenants by and for
itself, its successors and assigns, and all persons
claiming under or through them, that there shall be
no discrimination against or segregation of, any
person or group of persons on account of race,
color, creed, religion, sex, marital status,
national origin, or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor
shall the grantee or any person claiming under or
through it, establish or permit any such practice
AV
or practices of discrimination or segregation with
reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants,
sublessee, or vendees in the premises herein
conveyed. The foregoing covenants shall run with
the land. "
(2) In leases : "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons
claiming under or through them, and this lease is
made and accepted upon and subject to the following
conditions : That there shall be no discrimination
against or segregation of any person or group of
persons, on account of race, color, creed,
religion, sex, marital status, national origin, or
ancestry, in the leasing, subleasing, transferring,
use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee itself,
or any person claiming under or through it,
establish or permit any such practice or practices
of discrimination or segregation with reference to
the selection, location, number, use, or occupancy,
of tenants lessees, sublessee, subtenants, or
vendees in the premises herein leased. "
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(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, national origin, or ancestry,
in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises
herein conveyed or leased, nor shall the transferee
or any person claiming under or through it,
establish or permit any such practice or practices
of discrimination or segregation with reference to
the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or
vendees of the premises herein transferred. " The
foregoing provision shall be binding upon and shall
obligate the contracting party or parties and any
subcontracting party or parties, or other
transferees under the instrument . The covenant of
this Section 4 . 04 shall run with the land in
perpetuity.
ARTICLE V
DEFAULTS, REMEDIES AND TERMINATION
Section 5 . 01 . Defaults - General .
(a) In the event that a breach or default may occur
prior to the Close of Escrow, the remedies of the parties shall be
as set forth in Article II of this Agreement .
(b) From and after the Close of Escrow and subject to
the extensions of time set forth in Section 6. 05 hereof, failure or
delay by either party to perform any term or provision of this
Agreement shall constitute a default under this Agreement;
provided, however, that if a party otherwise in default commences
to cure, correct or remedy such default within thirty (30) calendar
days after receipt of written notice from the injured party
specifying such default, and shall diligently and continuously
prosecute such cure, correction or remedy to completion (and where
any time limits for the completion of such cure, correction or
remedy are specifically set .forth in this Agreement, then within
said time limits) , such party shall not be deemed to be in default
hereunder.
(c) The injured party shall give written notice of
default to the party in default, specifying the default complained
of by the nondefaulting party. Delay in giving such notice shall
not constitute a waiver of any default nor shall it change the time
of default .
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(d) Any failure or delays by either party in asserting
any of their rights and/or remedies as to any default shall not
operate as a waiver of any default or of any such rights or
remedies . Delays by either party in asserting any of their rights
and/or remedies shall not deprive either party of its right to
institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or
remedies .
Section 5 . 02 . Legal Actions .
(a) In addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy any
default, to recover damages for any default, or to obtain any other
remedy consistent with the purposes of this Agreement. Such legal _
actions must be instituted in the Superior Court of the State of
California in and for the County. of San Bernardino in any other
appropriate court within said County, or in the Federal District
Court for the Central District of California .
(b) The laws of the State of California shall govern the
interpretation and enforcement of this Agreement .
(c) In the event that any legal action is commenced by
the Developer against the Agency, service of process on the Agency
shall be made by personal service upon the Executive Director or
Chair of the Community Development Commission, or in such other
manner as may be provided by law.
(d) In the event that any legal action is commenced by
the Agency against the Developer, service of process on the
Developer shall be made by personal service on
(or such other Agent for service of process and at such address as
may be specified in written notice to the Agency) , or in such other
manner as may be provided by law, and shall be valid whether made
within or without the State of California .
Section 5 . 03 . Riahts and Remedies are Cumulative.
Except with respect to any rights and remedies expressly declared
to be exclusive in Article II of this Agreement as relates to a
default or breach occurring before the Close of Escrow, the rights
and remedies of the parties as set forth in this Article V
following the Close of Escrow are cumulative and the exercise by
either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default
by the other party.
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Section 5 . 04 . Damages . If either party defaults with
regard to any provision of this Agreement, the nondefaulting party
shall serve written notice of such default upon the defaulting
party. If the defaulting party does not diligently commence to
cure such default after service of such notice of default and
promptly complete the cure of such default within a reasonable
time, not to exceed ninety (90) calendar days (or such shorter
period as may otherwise be specified in this Agreement for
default) , after the service of written notice of such a default.
In the event that a default relates to a matter arising after the
Close of Escrow, the defaulting party shall be liable to the other
party for damages caused by such default. In the event that a
default relates to a matter arising before the Close of Escrow, the
remedies of the parties shall be limited to the liquidated damage
sums as set forth in Article II of the Agreement .
Section 5 . 05 . Specific Performance Prior to close of
Escrow. Prior to the Close of Escrow neither party shall have or
assert the equitable remedy of specific performance in the event of
a default or breach, and the remedies of the parties with respect
to such a breach or default prior to the Close of Escrow shall be
limited to the termination rights and liquidated damage amounts set
forth in Article II of this Agreement . After the Close of Escrow,
if either art
p y defaults under an of the
y provisions s of this
Agreement, the nondefaulting party shall serve written notice of
such default upon such defaulting party. If the defaulting party
does not commence to cure the default and diligently and
continuously proceed with such cure within thirty (30) calendar
days after service of the notice of default, and such default is
not cured within a reasonable time thereafter (and where any time
limits for the completion of such cure, correction or remedy are
specifically set forth in this Agreement, then within said time
limits) , the nondefaulting party, at its option, may institute an
action for specific performance of the terms of this Agreement,
except as otherwise provided in Section 5 . 04 hereof.
Section 5 . 06 . Aaencv Rights of Termination Following
Close of Escrow.
(a) Subject to written notice of default which shall
specify the Developer' s default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency' s intent to terminate this Agreement
pursuant to this Section 5 . 06, the Agency at its option may
terminate this Agreement if the Developer in breach of this
Agreement assigns or attempts to assign this Agreement, or any
right therein, or attempts to make any total or partial sale, lease
or leaseback, transfer or conveyance of the whole or any part of
the Property or the improvements to be developed thereon in
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y
violation of the terms of this Agreement, and the Developer does
not correct such violation within thirty (30) calendar days from
the date of receipt of such notice .
(b) Subject to written notice of default, which shall
specify the Developer' s default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency' s intent to terminate this Agreement
pursuant to this Section, the Agency at its option may terminate
this Agreement if the Developer: (a) does not within the time
limits set forth in this Agreement or as specifically provided in
the Schedule of Performance, subject to extensions authorized by
this Agreement due to force majeure or otherwise, submit
development plans, construction drawings and related documents
acceptable to the Planning Department and Building Division of the
City for plan check purposes and in order to obtain building
permits for the Project, together with applicable fees therefor,
all prepared to the minimum acceptable standards as required by the
Planning Department and Building Division of the City for
commencement of formal review of such documents and as required by
this Agreement, or (b) does not carry out its other
responsibilities under this Agreement or in accordance with any
modification or variance, precise plan, design review and other
environmental or governmental approvals and such default is not
cured or the Developer does not commence and diligently and
continuously proceed with such cure within thirty (30) calendar
days after the date of receipt of written demand therefor from the
Agency.
(c) Subject to written notice of default which shall
specify the Developer' s default and the action required to commence
cure of same and upon thirty (30) calendar days notice to the
Developer of the Agency' s intent to terminate this Agreement
pursuant to this Section, the Agency at its option may terminate
this Agreement if upon satisfaction of all conditions precedent and
concurrent therefor under this Agreement, the Developer does not
take title to the Property under tender of conveyance by the
Agency, and such breach is not cured within thirty (30) calendar
days after the date of receipt by the Developer of written demand
therefor from the Agency.
Section 5 . 07 . Right to Reenter, Repossess and Revest .
(a) The Agency shall, upon thirty (30) calendar days
notice to the Developer which notice shall specify this Section
5 . 07, have the right, at its option, to re-enter and take
possession of all or any portion of the Property, together with all
improvements thereon, and to terminate and revest in the Agency the
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estate conveyed to the Developer hereunder, if after conveyance of
title, the Developer (or its successors in interest) shall :
(1) Fail to commence construction of all or any portion
of the improvements as required by this Agreement
for a period of one hundred eighty (180) calendar
days following execution of this Agreement by the
Agency; provided that the Developer shall not have
obtained an extension or postponement to which the
Developer may be entitled pursuant to Section 6. 05
hereof; or
(2) Abandon or substantially suspend construction of
all or any portion of the improvements .for a period
of ninety (90) calendar days following execution of
this Agreement by the Agency; provided that the
Developer shall not have obtained an extension or
postponement to which the Developer may be entitled
to pursuant to Section 6 . 05 hereof; or
(3) Assign or attempt to assign this Agreement, or any
rights herein, or transfer, or suffer any
involuntary transfer, of the Property or any part
thereof, in violation of this Agreement, and such
violation shall not have been cured within thirty
(30) calendar days after the date of receipt of
written notice thereof from the Agency to the
Developer.
(b) The thirty (30) calendar day written notice
specified in this Section shall specify that the Agency proposes to
take action pursuant to this Section and shall specify which of the
Developer ' s obligations set forth in Subsections (a) (1) through
(a) (3) herein have been breached. The Agency shall proceed with
its remedy set forth herein only in the event that the Developer
continues in default of said obligation (s) for a period of thirty
(30) calendar days following such notice or, upon commencing to
cure such default, fails to diligently and continuously prosecute
said cure to satisfactory conclusion.
(c) The right of the Agency to reenter, repossess,
terminate, and revest shall be subject and subordinate to, shall be
limited by and shall not defeat, render invalid or limit :
(1) Any mortgage, deed of trust or other security
interest permitted by this Agreement;
(2) Any rights or interests provided in this Agreement
for the protection of the holders of such
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mortgages, deeds of trust or other security
interests;
° (3) Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other
recorded documents applicable to the Property.
(d) The grant deed to the Property or to any portion
thereof conveyed by the Developer to another party shall contain
appropriate references and provisions to give effect to the
Agency' s right, as set forth in this Section under specified
circumstances prior to the recordation of a Certificate of
Completion with respect to such portion, to reenter and take
possession of such portion, or any part thereof, with all
improvements thereon, and to terminate and revest in the Agency the
estate conveyed to the Developer .
(e) Upon the revesting in the Agency of title to the
Property, or any part thereof, as provided in this Section, the
Agency shall, pursuant to its responsibilities under State law, use
its best efforts to resell the Property, or any part thereof, at
fair market value as soon and in such manner as the Agency shall
find feasible and consistent with the objectives of such law, to a
qualified and responsible party or parties (as determined by the
Agency) who will assume the obligations of making or completing the
improvements, or such other improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses
specified for the Property, or any part thereof . Upon such resale
of the Property, or any part thereof, the-proceeds thereof shall be
applied:
(1) First, to make any payment made or necessary to be
made to discharge or prevent from attaching or
being made any subsequent encumbrances or liens due
to obligations incurred with respect to the making
or completion of the agreed improvements or any
part thereof on the Property or any portion
thereof; next to reimburse the Agency on its own
behalf or on behalf of the City for all actual
costs and expenses incurred by the Agency and the
City, including but not limited to customary and
reasonable fees or salaries to third party
personnel engaged in such action (but excluding the
Agency' s or the City' s general overhead expense) ,
in connection with the recapture, management and
resale of the Property or any portion thereof; all
taxes, assessments and water and sewer charges paid
by the City and/or the Agency with respect to the
Property or any portion thereof; any amounts
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otherwise owing to the Agency by the Developer and
its successor transferee; and .
(2) Second, to the extent that any and all funds which
are proceeds from such resale are thereafter
available, to reimburse the Developer, or its
successor transferee, up to the amount equal to the
sum of: (1) the Purchase Price paid by the
Developer for the Property (or allocable to the
applicable part thereof) ; and (2) the costs
incurred for the development of the Property, or
applicable part thereof, or for the construction of
the improvements thereon including, but not limited
to, costs of carry, taxes and items set forth in
the Developer ' s cost statement which shall be
submitted to and approved by the Agency.
(3) Any balance remaining after the foregoing
application of proceeds shall be retained by the
Agency.
ARTICLE VI
GENERAL PROVISIONS
Section 6 . 01 . Not-ices . Demands and Communications
Between the Parties .
(a) Any and all notices, demands or communications
submitted by any party to another party pursuant to or as required
by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal delivery, or by registered or
certified United States mail, postage prepaid, return receipt
requested, to the principal office of the Agency and the Developer,
as applicable, as designated in Section 1 . 04 (a) and Section 1 . 04 (b)
hereof . Such written notices, demands and communications may be
sent in the same manner to such other addresses as either party may
from time to time designate, as provided in this Section. Any such
notice, demand or communication shall be deemed to be received by
the addressee, regardless of whether or when any return receipt is
received by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for
immediate personal delivery, or two (2) calendar days after it is
placed in the United States mail, as heretofore provided.
(b) In addition to the submission of notices, demands or
communications to the parties as set forth above, copies of all
notices shall also be delivered by facsimile as follows :
to the Developer: Hi-Way Auto Recyclers, LLC
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Attention:
14315 Whittram Avenue
Fontana, California 92335-3071
Fax
the Agency: Redevelopment Agency of the City
of San Bernardino
201 North "E" Street
Suite 301
San Bernardino, California 92401
FAX: (909) 384-5135
with copy to: Sabo & Green, LLP
201 North "E" Street
Suite 300
San. Bernardino, California 92401
FAX: (909) 383-9378
Section 6 . 02 . Conflict of Interest. No member, official
or employee of the Agency having any conflict of interest, direct
or indirect, related to this Agreement and the development of the
Property shall participate in any decision relating to the
Agreement . The parties represent and warrant that they do not have
knowledge of any such conflict of interest .
Section 6 . 03 . Warranty Against Payment of Consideration
for Agreement . The Developer warrants that it has not paid or
given, and will not pay or give, any third party any money or other
consideration for obtaining this Agreement. Third parties, for the
purposes of this Section, shall not include persons to whom fees
are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Developer.
Section 6 . 04 . Nonliability of Agency Officials and
Employees . No member, official or employee of the Agency shall be
personally liable to the Developer, or any successor in interest,
in the event of any default or breach by the Agency or for any
amount which may become due to the Developer or to its successor,
or on any obligations under the terms of this Agreement, except for
gross negligence or willful acts of such member, officer or
employee .
Section 6 . 05 . Enforced Delay: Extension of Time of
Performance . In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default, or considered to be a default, where delays or defaults
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P fx`
are due to the force majeure events of war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of
God, acts of the public enemy, epidemics, quarantine restrictions,
freight embargoes or lack of transportation, weather-caused delays,
inability to secure necessary labor, materials or tools, delays of
any contractors, subcontractor or supplier, which are not
attributable to the fault of the party claiming an extension of
time to prepare or acts or failure to act of any public or
governmental agency or entity (provided that acts or failure to act
of the City or Agency shall not extend the time for the Agency to
act hereunder except for delays associated with lawsuit or
injunction including but without limitation to lawsuits pertaining
to the approval of the Agreement, and the like) . An extension of
time for any such force majeure cause shall be for the period of
the enforced delay and shall commence to run from the date of
occurrence of the delay; provided however, that the party which
claims the existence of the delay has first provided the other
party with written notice of the occurrence of the delay within ten
(10) days of the commencement of such occurrence of delay.
The inability of the Developer to obtain a satisfactory
commitment from a construction lender for the improvement of the
Property or to satisfy any other condition of this Agreement
relating to the redevelopment of the Property shall not be deemed
to be a force majeure event or otherwise provide grounds for the
assertion of the existence of a delay under this Section 6. 05 . The
parties hereto expressly acknowledge and agree that changes in
either general economic conditions or changes in the economic
assumptions of any of them which may have provided a basis for
entering into this Agreement and which occur at any time after the
execution of this Agreement, are not force majeure events and do
not provide any party with grounds for asserting the existence of
a delay in the performance of any covenant or undertaking which may
arise under this Agreement . Each party expressly assumes the risk
that changes in general economic conditions or changes in such
economic assumptions relating to the terms and covenants of this
Agreement could impose an inconvenience or hardship on the
continued performance of such party under this Agreement, but that
such inconvenience or hardship is not a force majeure event and
does not excuse the performance by such party of its obligations
under this Agreement .
Section 6 . 06 . Inspection of Books and Records . The
Agency shall have the right at all reasonable times at the Agency' s
cost and expense to inspect the books and records of the Developer
pertaining to the Property and/or the development thereof as
necessary for the Agency, in its reasonable discretion, to enforce
its rights under this Agreement. Matters discovered by the Agency
shall not be disclosed to third parties unless required by law or
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unless otherwise resulting from or related to the pursuit of any
remedies or the assertion of any rights of the Agency hereunder.
The Developer shall also have the right at all reasonable times to
inspect the books and records of the Agency pertaining to the
Property and/or the development thereof as pertinent to the
purposes of this Agreement.
Section 6 . 07 . Approvals .
(a) Approvals required of the Agency or the Developer,
or any officers, agents or employees of either the Agency or the
Developer, shall not be unreasonably withheld and approval or
disapproval shall be given within the time set forth in the
Schedule of Performance or, if no time is given, within a
reasonable time .
(b) The Executive Director of the Agency is authorized
to sign on his or her own authority amendments to this Agreement
which are of routine or technical nature, including minor
adjustments to the Schedule of Performance.
Section 6. 08 . Real Estate Commissions . The Agency shall
not be liable for any real estate commissions, brokerage fees or
finder fees which may arise from or be related to this Agreement.
The Developer shall pay any fees or commissions or other expenses
related to its retention or employment of real estate brokers,
agents or other professionals .
Section 6 . 09 . Indemnification . The Developer agrees to
indemnify and hold the City and the Agency, and their officers,
employees and agents, harmless from and against all damages,
judgments, costs, expenses and fees arising from or related to any
act or omission of the Developer in performing its obligations
hereunder . The Agency agrees to indemnify and hold the Developer
and its officers, employees and agents, harmless from and against
all damages, judgments, costs, expenses and fees arising from or
related to any act or omission of the Agency in performing its
obligations hereunder.
Section 6 . 10 . Release of Developer from Liability.
Notwithstanding any provision herein to the contrary, the Developer
shall be relieved of any and all liability for the obligations of
the Developer hereunder with regard to the Property when a
Certificate of Completion has been issued by the Agency hereunder
with respect thereto, other than any covenants and obligations
provided by the grant deed by which the Property is conveyed to the
Developer hereunder.
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Section 6 . 11 . -Attorneys ' Fees . If either party hereto
files any action or brings any action or proceeding against the
other arising out of this Agreement, seeks the resolution of
disputes pursuant to Section 6. 12 hereof, or is made a party to any
action or proceeding brought by the Escrow Agent, then as between
the Developer and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit or
resolution of disputes pursuant to Section 6. 12 hereof, and not as
damages, its reasonable attorneys ' fees as fixed by the Court or
other forum for resolution of disputes as set forth in Section 6. 12
hereof, in such action or proceeding or in a separate action or
proceeding brought to recover such attorneys ' fees . The costs,
salary and expenses of the City Attorney and members of his office
in enforcing this Agreement shall be considered as. "attorneys '
fees" for purposes of this Section.
Section 6 . 12 . Effect . This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives,
successors and assigns .
ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 7 . 01 . Entire Agreement .
(a) This Agreement shall be executed in four (4)
duplicate originals each of which is deemed to be an original .
This Agreement includes pages and attachments, which
constitute the entire understanding and Agreement of the parties .
(b) This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and supersedes
all negotiations or previous agreements between the parties with
respect to all or any portion of the Property and the development
thereof.
(c) None of the terms, covenants, agreements or
conditions set forth in this Agreement shall be deemed to be merged
with the grant deed conveying title to the Property, and this
Agreement shall continue in full force and effect before and after
such conveyance until issuance of the Certificate of Completion.
(d) All waivers of the provisions of this Agreement and
all amendments hereto must be in writing and signed by the
appropriate authorities of the Agency and the Developer.
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
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Section 8 . 01 . Execution and Recordation.
' (a) Following its execution by the Developer and prompt
delivery thereafter to the Agency, this Agreement shall be subject
to the review and approval by the governing board of the Agency in
its sole and absolute discretion no later than forty-five (45)
calendar days after the date of signature by the Developer. In the
event that the Agency has not approved, executed and delivered the
Agreement to the Developer within the foregoing period, then no
provision of this Agreement shall be of any force or effect for any
purpose . The date of this Agreement shall be the date when the
Agreement shall have been approved by the Agency.
(b) The Developer and the Agency agree to permit
recordation of this Agreement, or a notice of agreement in
customary form, concurrently upon the Close of Escrow in the Office
of the County Recorder for the County where the Property is
located.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
AGENCY
Redevelopment Agency of the
City of San Bernardino
Date: By:
Judith Valles
Chair of the Community
Development Commission
Date: By:
Gary Van Osdel
Executive Director
APPR AS 0 F R
Agen y Counsel
DEVELOPER
Hi-Way Auto cyclers, LLC
Date :
By:
Printed Name:
Date: By:
Printed Name:
[All Signatures Must Be Notarized)
I
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• 4
STATE OF CALIFORNIA )
ss
COUNTY OF SAN BERNARDINO )
On 2000, before me, the undersigned, a
Notary Public in and for said State, personally appeared
, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the Executive Director
of the Redevelopment Agency of the City of San Bernardino that
executed the within instrument on behalf of said Agency and
acknowledged to me that said instrument was authorized to be
executed pursuant to a duly adopted resolution of said Agency.
WITNESS my hand and official seal .
Signature:
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1 -
STATE OF CALIFORNIA )
ss
COUNTY OF SAN BERNARDINO )
On 2000, before me, the undersigned, a
Notary Public in and for said State, personally appeared
, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the that
executed the within instrument on behalf of Hi-Way Auto Recyclers,
LLC.
WITNESS my hand and official seal .
Signature:
56
EXHIBIT"A"
Legal Description of Property
PARCEL NO. 1:
BEING A PORTION OF SECTION 18,TOWNSHIP I NORTH,RANGE 4 WEST,BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE SOUTHWESTERLY LINE OF THAT CERTAIN PARCEL OF LAND AS
CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED IN BOOK 3772,PAGE 93,OFFICIAL RECORDS
(INTERSTATE 215) AND THE NORTHERLY LINE OF THAT PARCEL OF LAND CONVEYED TO THE SAN
BERNARDINO COUNTY FLOOD CONTROL DISTRICT BY DEED RECORDED IN BOOK 2268,PAGE 142,OFFICIAL
RECORDS (DEVIL CREEK CHANNEL), SAID POINT OF INTERSECTION BEING THE TRUE POINT OF BEGINNING
FOR THIS DESCRIPTION;THENCE FROM SAID POINT NORTH 35 DEG. 03' 36"WEST, 368.13 FEET ALONG SAID
SOUTHWESTERLY LINE OF INTERSTATE 215; THENCE SOUTH 54 DEG. 56' 24" WEST 493.49 FEET; THENCE
SOUTH 37 DEG. 21' 55" EAST, 333.18 FEET TO A POINT IN THE NORTHERLY LINE OF SAID DEVIL CREEK
CHANNEL; THENCE ALONG SAID NORTHERLY LINE NORTH 59 DEG. 08' 09"EAST,481.38 FEET TO CLOSE ON
THE TRUE POINT OF BEGINNING.
THIS LEGAL IS MADE PURSUANT TO THAT CERTAIN CERTIFICATE OF COMPLIANCE,CERTIFICATE NO.9A-06,
RECORDED DECEMBER 14, 1994,INSTRUMENT NO.94-493165,OFFICIAL RECORDS.
PARCEL NO.2
AN EASEMENT,80 FEET WIDE,FOR ROAD PURPOSES OVER A PORTION OF SECTIONS 12 AND 13,TOWNSHIP 1
NORTH, RANGE 5 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO THE EXTENSION OF THE LINES OF THE OFFICIAL GOVERNMENT
SURVEY EXTENDED INTO RANCHO MUSCUPIABE,DESCRIBED AS FOLLOWS:
BEING 40 FEET ON EITHER SIDE OF THE CENTER LINE WHICH IS DESCRIBED AS FOLLOWS:
(THE 40 FEET LINES BEING LENGTHENED OR SHORTENED TO INTERSECT THE SOUTHEASTERLY LINE OF
PALM AVENUE AND THE WESTERLY LINES OF THE PROPERTY CONVEYED TO SAN BERNARDINO COUNTY
FLOOD CONTROL DISTRICT BY DEED RECORDED JULY 27, 1948,IN BOOK 2268,PAGE 146,OFFICIAL RECORDS,
AS DOCUMENT NO. 131.)
BEGINNING AT THE SOUTHWEST CORNER OF THAT CERTAIN PARCEL OF LAND, AS CONVEYED TO THE
STATE OF CALIFORNIA BY DEED RECORDED OCTOBER 25, 1955,IN BOOK 3772,PAGE 93,OFFICIAL RECORDS,
AND DESCRIBED AS PARCEL "C" IN THE ABOVE MENTIONED DEED, SAID SOUTHWEST CORNER BEING ON
THE EASTERLY LINE OF PALM AVENUE, 40 FEET WIDE, AS IT NOW EXISTS; THENCE SOUTH 27 DEG. 15' 41"
WEST,642.71 FEET TO THE TRUE POINT OF BEGINNING OF SAID CENTER LINE;THENCE SOUTH 38 DEG.55'29"
EAST, 1,285.30 FEET TO A TANGENT CURVE CONCAVE TO THE NORTHEAST,HAVING A RADIUS OF 600.00 FEET
AND A CENTRAL ANGLE OF 61 DEG.22' 04";THENCE SOUTHEASTERLY AND EASTERLY ALONG THE CENTER
LINE OF SAID CURVE,A DISTANCE OF 642.64 FEET TO A TANGENT LINE;THENCE NORTH 79 DEG.42'27"EAST,
273.56 FEET TO A TANGENT CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 286.00 FEET AND A
CENTRAL ANGLE OF 61 DEG. 34'; THENCE EASTERLY AND SOUTHEASTERLY ALONG THE CENTER LINE OF
SAID CURVE,A DISTANCE OF 307.32 FEET TO A TANGENT LINE;THENCE SOUTH 38 DEG. 43' 33"EAST 780.25
FEET TO A TANGENT CURVE
CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 1,986.00 FEET AND A
CENTRAL ANGLE OF 11 DEG. 29' 20"• THENCE SOUTHEASTERLY 398.23 FEET ALONG THE CENTER LINE OF
SAID CURVE TO A TANGENT LINE;THENCE SOUTH 27 DEG. 14' 13"EAST,920.65 FEET ALONG SAID LINE TO A
POINT IN A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 600.00 FEET;
THENCE SOUTHEASTERLY AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 81 DEG.39'
12",AN ARC DISTANCE OF 855.07 FEET TO A POINT OF REVERSE CURVE CONCAVE TO THE SOUTHEAST AND
HAVING A RADIUS OF 640.00 FEET; THENCE NORTHEASTERLY AND EASTERLY ALONG SAID CURVE, A
DISTANCE OF 152.33 FEET TO A POINT OF TERMINATION IN SAID RIGHT-OF-WAY OF THE SAN BERNARDINO
COUNTY FLOOD CONTROL DISTRICT. (SHOWN AS INDUSTRIAL PARKWAY (PRIVATE) ON SAID PARCEL
MAPS.)
x
EXHIBIT "B"
DESCRIPTION OF PROJECT
Acquisition of approximately 3 . 61 acres of real property from the
Redevelopment Agency of the City of San Bernardino, for the purpose
of constructing a 43, 000 square foot building constructed of steel
building systems with architecturally enhanced exterior design
features . Development on Site to be constructed, asphalt paved and
landscaped to meet all applicable City requirements .
This building will house an automotive disassembly plant in 40, 000
square feet, with 3, 000 square feet devoted to a sales and office
area.
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f
J
or A EXHIBIT "C"
AGENCY GRANT DEED
[TO COME]
I
�I
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EXHIBIT "D"
2000
HI-WAY AUTO RECYCLERS, LLC, DISPOSITION AND DEVELOPMENT AGREEMENT
SCHEDULE OF PERFORMANCE
Unless otherwise indicated herein, the meaning of words and phrases
used in this Schedule of Performance shall be as set forth in the
Agreement.
Within five (5) days following Developer shall deliver to
execution of the Agreement by Escrow Holder the sum of Ten
the Agency and the Developer Thousand Dollars ($10, 000. 00)
Escrow opened upon receipt by
the Escrow Holder of a fully
executed copy of the Agreement
and the Deposit from the
Developer.
Agency shall deliver originals
of Due Diligence Items
(Section 2 . 08)
Within fifteen (15) days of Agency shall deliver to the
the Opening of Escrow Developer a preliminary title
report or title commitment for
a CLTA extended coverage
Policy of title insurance
During Due Diligence Period Developer must submit
development project site plan
approval application for the
Project to the City for City
review and approval
Within one hundred twenty days Developer shall deliver its
(120) from the Opening of Due Diligence Approval
Escrow Certificate to the Agency and
the Escrow Holder
Developer shall submit
Developer' s Title Objection
Notice and Developer' s Survey
Objection Notice, if any, to
the Agency
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r
Within five (5) days of Agency to deliver Agency' s
receipt of Developer' s Title Title Notice and Agency' s
Objection Notice and Survey Notice, if any, to
Developer' s Survey Objection Developer
Notice, if any .
Within five (5) days of Developer to deliver an
receipt of Agency' s Title acceptance or rejection of the
Notice items in the Agency' s Title
Notice
Within ten (10) days of Developer to deliver an
receipt of Agency' s Survey acceptance or rejection of the
Notice items in the Agency' s Survey
Notice
Within sixty (60) days after The Close of Escrow shall
the delivery of a Due occur
Diligence Approval Certificate
from the Developer
No later than three (3) Escrow Holder shall prepare
business days prior to the for approval by the Developer
Closing Date and the Agency a Closing
Statement (Section 2 .21)
On or before 12 : 00 noon on the The Agency shall deliver to
business day preceding the the Escrow Holder a grant deed
Closing Date for the Property to the
Developer
The Agency shall deliver to
the Escrow Holder copies of
the documents set forth in
Section 2 . 06 of the Agreement
The Developer shall deliver to
the Escrow Holder copies of
the documents set forth in
Section 2 . 07 of the Agreement
At Close of Escrow Developer deposits the balance
of the Purchase Price, less
the Deposit amount, with the
Escrow Holder
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I
Within three (3) business days Escrow Holder shall deliver to
following the Closing Date. Developer a conformed copy of
the Agency' s Grant Deed, as
recorded, and the policy of
title insurance issued in
favor of the Developer
Escrow holder shall deliver to
the Agency the Purchase price,
less sums paid to discharge
any liens, escrow costs and
any prorations chargeable to
the Agency
Promptly following City Developer completes and
approval of site plan of submits construction design
improvement for the Project plans and specifications to
City Building Department for
issuance of necessary building
permits
Within ninety (90) days Developer commences work of
following Close of Escrow improvement of Project on the
Property
Within two hundred seventy Developer substantially
(270) days following completes improvement of the
commencement of work of Project
improvement of the Project
Promptly following completion Agency issues a Certificate of
of improvements to the Completion to Developer
Property Developer submits
written request to the Agency
for issuance of Certificate of
Completion; but by a date not
later than one (1) year
following Close of Escrow
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a
EXHIBIT "E"
When Recorded, Mail to:
CERTIFICATE OF COMPLETION
We, Chairperson . and
Secretary of the Redevelopment Agency of the City of
San Bernardino (the "Agency") hereby certify as follows :
By its Resolution No. , adopted and approved
, the Agency has resolved as follows :
Section 1 . The improvements required to be constructed
in accordance with that certain Disposition and Development
Agreement (the "Agreement") dated r by and between
the Agency and , a California
(the "Developer") on certain real property, as more specifically
described in the legal description attached hereto as Exhibit "A"
and incorporated herein by this reference (the "Property") , have
been completed in accordance with the provisions of said Agreement.
Section 2 . This Certificate of Completion shall
constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to
the obligations of the Developer, and its successors and assigns,
to construct and develop the improvements on the Property,
excluding any normal and customary tenant improvements and minor
building "punch-list" items, and including any and all buildings
and any and all parking, landscaping and related improvements
necessary to support or which meet the requirements applicable to
the building and its use and occupancy on the Property, whether or
not said improvements are on the Property or on other property
subject to the Agreement, all as described in the Agreement, and to
otherwise comply with the Developer ' s obligations under the
Agreement with respect to the Property and the dates for the
beginning and completion of construction of improvements thereon
under the Agreement; provided, however, that the Agency may enforce
any covenant surviving this Certificate of Completion in accordance
with the terms and conditions of the Agreement and the grant deed
pursuant to which the property containing the Property was conveyed
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under the Agreement . Said Agreement is an official record of the
Agency and a copy of said Agreement may be inspected in the office
of the Secretary of the Redevelopment Agency of the City of San
Bernardino located at 201 North E"
Bernardino, California, during regular business� h hours .
301, San
Section The Property to which this Certificate of
Completion pertains is more fully described in Exhibit "A" attached
hereto.
DATED AND ISSUED this day of
Executive Director of the Redevelopment Agency
of the City of San Bernardino
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