Loading...
HomeMy WebLinkAboutR4- Economic Development ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO r-77, rte. REQUEST FOR COMMISSION/COUNCIL ACTION - FROM: RONALD E.WINKLER SUBJECT: OAK PROPERTIES-MUTUAL Development Director RELEASE AND WAIVER AGREEMENT DATE: June 10, 1998 ------------------------------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s): On June 8, 1998,the Redevelopment Committee recommended to approve Oak Properties Mutual Release. On August 7, 1989,the Community Development Commission authorized the execution of KAY Owner Participation Agreement. On November 18, 1985,Notice of Default on Burris Disposition and Development Agreement obligations. On November 22, 1978,the Community Development Commission authorized the execution of Burris Disposition and Development Agreement. ------------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): (Community Development Commission) MOTION: That the Community Development Commission authorize execution of a Mutual Release and Waiver Agreement with Lippobank and Oak Properties for portions of the property in the Tri-City Project Area affected by the KAY Owner Participation Agreement executed August 7, 1989. ------------------------------------------------------------------------------------------------------------------------------------------- Contact Person(s): Ronald E.Winkler/John Hoepel r Phone: 5081 Project Area(s): Southeast Industrial Park(SEIP) Ward(s): One(1) Supporting Data Attached:El Staff Report❑ Resolution(s) ❑ Agreement(s)/Contract(s) ❑ Map(s) ❑Ltr/Memo FUNDING REQUIREMENTS: Amount: $ N/A Source: N/A Budget Authority: N/A SIGNATURE: Ronald E.W nkler,Director Development ------------------------------------------------------------------------------------------------------------------------------------------ Commission/Council Notes: ------------------------------------------------------------------------------------------------------------------ REW:Iag:06-15-03.cdc COMMISSION MEETING AGENDA MEETING DATE:06/15/1998 Agenda Item Number: ECONOMIC DEVELOPMENT AGENCY STAFF REPORT ------------------------------------------------------------------------------------------------------------------------------- Oak Properties-Mutual Release and Waiver Agreement In 1978,the Agency entered into a disposition agreement with T.J. Burris Corporation for the sale and development of 35.5 acres of property in the Southeast Industrial Park Project Area. The property was not developed in accordance with the agreement and a default was declared in 1985. By 1989 most the Burris property was owned by Mr.Teong Kay together with additional adjoining property in the Tri-City Project Area. On August 7, 1989,the Commission authorized an Owner Participation Agreement with Kay which provided,among other things, for the following: A payment to the Agency of$50,000 to cover damages from non-performance under the Burris Disposition and Development Agreement. A liquidated damages section under which the Agency received$100,000, in advance,as a deposit against the possibility that Kay might not be able to develop in accordance with the Kay Owner Participation Agreement. With this in place it was expected that Kay would develop either on the Burris site or on the adjacent property. In the event Kay did not develop the Agency would retain both the$100,000 deposit and the $50,000 payment. In fact,Kay did not develop and in 1993 the property was in foreclosure as part of Chapter 11 bankruptcy proceedings involving Kay. A portion of the foreclosed property is now being purchased by Oak Properties from the current owner, Lippobank. The title company does not recognize the validity of some of the documents recorded in 1989. Also,despite receipt of the$100,000 liquidated damages,the Agency cannot issue a Certificate of Completion because the property was not developed. To clear title,Agency Special Counsel has prepared the attached Mutual Release and Waiver Agreement for Oak Properties. Similar requests can be expected on other portions of the original Burris property as they are sold,however,separate agreements will be needed for each buyer and will therefore be forwarded for action as the identity of the buyers become known. The attached Release still requires Oak to comply with all applicable regulations of the City and Agency(see §2.6). It also provides clear authority for the Agency to maintain landscaping,remove graffiti,and liens the property for the costs thereof(see§ 3.2). Finally,the Release also provides for the anti-discrimination covenants of the original agreements. Based on the above and upon the recommendation of the Redevelopment Committee,staff recommends adoption of the form motion. ONALD .WINKLER,Director Development Department ------------------------------------------------------------------------------------------------------------------ REW:Iag:06-15-03.cdc COMMISSION MEETING AGENDA MEETING DATE:06/15/1998 Agenda Item Number: 1 RECORDING REQUESTED BY: WHEN RECORDED MAIL TO: SABO & GREEN 201 North "E" Street Suite 206 San Bernardino, CA 92401 Attn: Gale Schlesinger 1998 SPACE ABOVE UNE FOR RECORDERS USE ONLY REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO MUTUAL RELEASE AND WAIVER AGREEMENT (Portions of Lands Affected By Agency OPA/ Instrument Nos . 90-067475 and 90-067476, Recorded February 21, 1990 -- KAY, et al . ) (TITLE OF DOCUMENT) f1TLE ORDER NO.: 1998 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO MUTUAL RELEASE AND WAIVER AGREEMENT AND COMMUNITY REDEVELOPMENT COVENANT (Portions of Lands Affected By Agency OPA/ Instrument Nos . 90-067475 and 90-067476, Recorded February 21, 1990 -- KAY, et al. ) This Mutual Release and Waiver Agreement and Community Redevelopment Covenant ("Agreement") is entered into as of this day of , 1998, by and among the Redevelopment Agency of the City of San Bernardino, a body corporate and politic (the "Agency") , Lippobank, a California banking corporation ("Seller") and Oak Properties, a California general partnership ("Buyer") . The provisions of this Agreement are organized under four (4) separate headings or labels : "RECITALS, " "MUTUAL RELEASE AND WAIVER AGREEMENT, " "COMMUNITY REDEVELOPMENT COVENANT" AND "GENERAL PROVISIONS . " PART ONE -- RECITALS -- WHEREAS, on or about August 14, 1989, the Agency and Teong Kay and Joyce Kay (the "Participants") entered into that certain Owner Participation Agreement, recorded February 21, 1990, as Instrument Nos . 90-067475 and 90-067476, Official Records, County of San Bernardino ("1989 OPA") providing for the development of certain real property legally described therein (the "Site") ; and WHEREAS, the 1989 OPA includes a Release Affecting Real Property attached thereto as Attachment No. 8 (the "Kay Release") , which provides that the Site shall cease to be subject to the development obligations set forth in that certain Disposition and Joint Development Agreement dated December 28, 1978 (the "Burris Agreement") ; and WHEREAS, the Kay Release was executed by the Agency and the Participants and recorded as an exhibit together with the 1989 OPA; and SBEO/0001/DOC/3331 614198 ah 1 L� WHEREAS, in accordance with Section 613 of the 1989 OPA, on or about , 19_, the Agency received an amount equal to One Hundred Thousand Dollars ($100, 000) as liquidated damages for Participant' s default of certain terms and conditions of the 1989 OPA; and WHEREAS, pursuant to that certain Trustee' s Deed Upon Sale, recorded November 21, 1994, as Instrument No. 94466577, Official Records, County of San Bernardino, attached hereto as Exhibit "A" (the "Deed") , a portion of the Site as legally described therein was conveyed to Seller (the "Property") ; and WHEREAS, Buyer intends to purchase the Property from the Seller and Seller intends to convey the Property to Buyer; and WHEREAS, Buyer has requested that the Agency and Seller execute this Agreement since it has been determined that the Kay Release, as recorded, fails to properly release the Property from the development obligations set forth in the Burris Agreement; and WHEREAS, the parties hereto desire to enter into this Agreement to terminate their interests in the Burris Agreement with respect to the Property, and mutually release each other from certain obligations under the OPA as hereinafter set forth. NOW, THEREFORE, IN CONSIDERATION OF THE MATTERS REFERENCED IN THE RECITALS, ABOVE, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE SELLER, THE BUYER AND THE AGENCY HEREBY AGREE AS FOLLOWS: PART TWO MUTUAL RELEASE AND WAIVER AGREEMENT 2 .1 . Effective upon the date of execution of this Agreement by all parties hereto, the Agency shall be relieved and discharged of its duties and obligations under the Burris Agreement and the 1989 OPA which benefit the Property, and the Agency shall be deemed to have disclaimed and waived its right, title and interest in the Property, except with respect to the covenants as set forth in Part Three hereof. 2.2 . Effective upon the date of execution of this Agreement by all parties hereto, Seller shall be deemed to have disclaimed and waived any and all right or interest in the Burris SBEO/D001/DOC/3331 6/4/98 ah 2 �I Agreement and in the 1989 OPA as each applies to the Property, and the Seller shall be relieved and discharged of any further duty or obligation thereunder. 2 .3. Effective upon the date of execution of this Agreement by all parties hereto, Buyer shall be deemed to have disclaimed and waived any and all right or interest in the Burris Agreement and in the 1989 OPA as each applies to the Property, and the Buyer shall be relieved and discharged of any further duty or obligation thereunder. 2 .4 . Each party represents to the other parties that each party has conducted such investigation of the facts relating to this Agreement each deems appropriate, and that each has obtained such legal consultation relating to the matters covered by this Agreement as each may deem appropriate and are not relying upon any representations or acknowledgment, whether oral or in writing, of any other party hereto except as contained herein. 2 .5 . The Agency, Seller and Buyer, and each of them, on their own behalf and on behalf of their respective agents, transferees, representatives and successors in interest of each, hereby irrevocably and unconditionally mutually release and forever discharge each other and their respective officers, directors, agents, partners, limited partners, employees, consultants, successors, assigns and attorneys, and each of them, and all persons acting by, through, under or in concert with them, or any of them, from any and all actions, causes of action, suits, debts, contracts, agreements, obligations, promises, liabilities, claims, rights, demands, damages, judgments, losses, costs and expenses, including, without limitation, attorneys' fees, of any nature whatsoever, known or unknown, suspected or unsuspected, fixed or contingent, which they now own or hold, or claim to have, own or hold, which arise from, are based upon, or are in any manner related to the development of the Property under the OPA and the development of the Property under the Burris Agreement (collectively, the "Released Claims") . The parties hereto specifically assume any and all risk related to the Released Claims . Each of the parties hereto individually acknowledges that the release set forth herein is a full and complete general release of the claims for damages, debts, liabilities, demands, obligations, costs, expenses, compensation, actions, and causes of action which are described herein, and is intended to encompass all known and unknown, foreseen and unforeseen claims SBEO/0001/DOC/3331 614198 ah 3 lI which the parties or any of them may have against each other arising from or related to the matters released in this Agreement. Accordingly, each party hereto expressly waives and relinquishes any and all rights and benefits which each may otherwise have against the other pursuant to Section 1542 of the California Civil Code which provides as follows : A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. Each of the parties acknowledges that it may hereafter discover facts different from, or in addition to, those which it now knows or believes to be true, with respect to the matters which are the subject of this Agreement and the parties each hereby expressly agree to assume the risk of the possible discovery of additional and different facts, and agree that this Agreement shall be and remain effective in all respects regardless of such additional or different facts . The parties hereto each warrant to each other that, except as provided herein, each has the power to release fully and completely all claims, causes of action, demands, charges, and liabilities against the other, arising out of or relating to the OPA as provided herein, and that each person is duly authorized and empowered to sign this Agreement on behalf of and bind the party each purports to represent. 2 . 6. The Seller and the Buyer each acknowledge and agree that no provision of this Agreement shall be deemed to create an exemption or exception of any proposed use or development of the Property from compliance with the applicable zoning and property development standards and regulations of the City of San Bernardino. Nothing herein shall be deemed to be a finding or determination by the Agency that any such development or improvement of the Property which the Seller or the Buyer, or their successors or assigns, may hereafter propose is consistent with the Redevelopment Plan for the Southeast Industrial Park Project Area adopted by Ordinance No. 3583 of the Mayor and Common Council of the City of San Bernardino (the "Redevelopment Plan") . SBEO/0001/DOC/3331 614198 ah 4 �j PART THREE COMMUNITY REDEVELOPMENT COVENANT 3. 1 . The parties hereby agree to establish the community redevelopment covenants contained in this PART THREE as community redevelopment which effect the Property and benefit the Southeast Industrial Park Project Area and which shall run with the land for the term as provided in Section 3 . 4, below. 3.2 . The Buyer and Seller, and each of them, on their own behalf and on behalf of their respective successors and assigns (the "Property Owner") hereby covenant and agree with the Agency that: (a) The areas of the Property which are subject to public view (including all existing improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. In the event that at any time until the expiration date of the Redevelopment Plan, there is an occurrence of an adverse condition on any area of the Property which is subject to public view in contravention of the general maintenance standard described above, (a "Maintenance Deficiency") then the Agency shall notify the Property Owner in writing of the Maintenance Deficiency and give the Property Owner thirty (30) days from receipt of such notice to cure the Maintenance Deficiency as identified in the notice. In the event the Property Owner fails to cure or commence to cure the Maintenance Deficiency within the time allowed, the Agency may conduct a public hearing following transmittal of written notice thereof to the Property Owner ten (10) days prior to the scheduled date of such public hearing in order to verify whether a Maintenance Deficiency exists and whether the Property Owner has failed to comply with the provisions of this Section 3 . 1 (a) . Upon the conclusion of a public hearing, if the Agency makes a finding that a Maintenance Deficiency exists and that there appears to be non-compliance with the general maintenance standard described above, thereafter the Agency shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take other action at law or equity the Agency may then have to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Agency for the abatement of a Maintenance Deficiency on the Property authorized by this Section 3. 1 (a) shall become a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand for payment by the Agency to the SBEO/0001/DOC/3331 614198 ah 5 Property Owner, the Agency shall have the right to enforce the lien in the manner as provided in Section 3 . 1 (c) . (b) "Graffiti" as this term is defined in Government Code Section 38772, which has been applied to any exterior surface of a structure or improvement on the Property which is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Property Owner by either painting over the evidence of such vandalism with a paint which has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water as appropriate. In the event that such graffiti may become visible from an adjacent or contiguous public right-of-way but is not removed within seventy-two (72) hours following the time of such application, the Agency shall have the right to enter the Property and remove the graffiti without notice to the Property Owner. Any sum expended by the Agency for the removal of such graffiti from the Property authorized by this Section 3. 1 (b) in an amount not to exceed $250 . 00 per entry by the Agency, shall become a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand for payment by the Agency to the Property Owner, the Agency shall have the right to enforce its lien in the manner as provided in Section 3 . 1 (c) . (c) The parties hereto further mutually understand and agree that the rights conferred upon the Agency under this Section 3. 1 expressly include the power to establish and enforce a lien or other encumbrance against the Property, or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c in the amount reasonably necessary to restore the Property to the maintenance standard required under Section 3.1 (a) or Section 3 . 1 (b) , including attorneys fees and costs of the Agency associated with the abatement of the Maintenance Deficiency or removal of graffiti and the collection of the costs of the Agency in connection with such action. The provisions of this Section 3. 1, shall be a covenant running with the land until the expiration date of the Redevelopment Plan and shall be enforceable by the Agency. Nothing in the foregoing provisions of this Section 3 . 1 shall be deemed to preclude the Property Owner from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that such changes comply with applicable zoning and building regulations of the City of San Bernardino. 3. 3 . The Property Owner covenants that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, SBE010001/DOC/3331 5/4/98 ah 6 marital status, age, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Property Owner 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 foregoing covenants shall run with the land. The Property Owner shall be liable for compliance with the foregoing, only so long as it owns the Property. The Property Owner shall refrain from restricting the rental, sale or lease of the Property on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or non-segregation clauses : (a) In deeds : "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " (b) In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, age, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, SBEO/0001/DOC/3331 514/98 ah 7 lessees, sublessees, subtenants or vendees in the premises herein leased." (c) In contracts : "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, age, handicap, ancestry or national origin, in the sale; lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees of the premises . " 3 . 4 . The covenants and agreements contained in Section 3.1 relating to the maintenance of the Property shall remain in effect until the expiration date of the Redevelopment Plan. The covenants against discrimination contained in Section 3 .3 shall remain in effect in perpetuity in accordance with the California Community Redevelopment Law (Health and Safety Code Section 33000, et gLq. ) . PART FOUR GENERAL PROVISIONS 4 . 1 . This Agreement contains the entire understanding of the parties and supersedes all prior understandings, negotiations and agreements with respect to this subject matter hereof. No modification or waiver of any of the provisions hereof shall be valid unless and until it is put into writing and executed by the party (s) to be bound thereby. 4 .2 . This Agreement shall be governed in accordance with the laws of the State of California. Any action brought to enforce or interpret this Agreement, or any part thereof, shall be brought in the State of California, in the County of San Bernardino. 4 . 3 . Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable California law; but, if any provision of this Agreement shall be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and any such illegal or invalid part, term or provision shall not be deemed to be part of this Agreement. SBEO/00011DOC/3331 5/4198 ah 8 �-1 4 . 4 . This Agreement contains the entire agreement between the parties and the terms of this Agreement are contractual and not a mere . recital. This Agreement shall be construed without regard to who drafted the same and shall be construed as though all parties hereto participated equally in the drafting of this Agreement. 4 . 5. In the event that any party hereto shall institute any action or proceeding to enforce or interpret any of the rights granted or released hereunder, the prevailing party in such action or proceeding shall be entitled to recover all of their costs and expenses incurred in the action or proceeding, including, but not limited to, reasonable attorneys ' fees and court costs . 4 . 6. This Agreement may be executed in counterparts, and when executed by each of the parties, each counterpart shall be deemed to be a part of the same instrument. The effective date of this Agreement shall be the date when the Agency accepts, approves and executes this Agreement. SBEO/0001/DOC/3331 6/4198 ah 9 4) IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date set forth above. AGENCY Redevelopment Agency of the City of San Bernardino, a body corporate and politic Date: By: Ronald E. Winkler Development Director ATTEST: By: Agency Secretary Approved as to form: By: Agency Counsel SELLER Lippobank, a California Banking Corporation Date: By: Duston L. Richards Vice President Credit Administration BUYER Oak Properties, a California General Partnership Date: By: Michael D. Gay General Partner Date: By: Nobel A. Gay General Partner Date: By: Laura M. Gay General Partner [ATTACH NOTARY JURAT FOR ALL SIGNATURES] SBEO/0001/DOC/3331 5/4/98 ah 10 EXHIBIT "A" TRUSTEE' S DEED [TO BE INSERTED] STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) , or the entity upon behalf of which the person (s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) , or the entity upon behalf of which the person (s) acted, executed the instrument. WITNESS my hand and official seal . Signature (Seal) y STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person (s) whose name (s) is/are subscribed. to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) , or the entity upon behalf of which the person (s) acted, executed the instrument. WITNESS my hand and official seal . Signature (Seal) STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) , or the entity upon behalf of which the person (s) acted, executed the instrument. WITNESS my hand and official seal . Signature (Seal) STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) On before me, (here insert name and title of the officer) , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature (s) on the instrument the person (s) , or the entity upon behalf of which the person (s) acted, executed the instrument. WITNESS my hand and official seal . Signature (Seal) `7