HomeMy WebLinkAbout2000 CON CDC Hennessey Group - DDA 8th Street6/14/00
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY
and
HENNESSEY GROUP
100. DEFINITIONS 1
200. CONVEYANCE OF THE SITE 5
201. Disposition of Site 5
202. Escrow 5
202.1 Costs of Escrow 5
202.2 Escrow Instructions 5
202.3 Authority of Escrow Agent 6
202.4 Closing 7
202.5 Termination 7
202.6 Closing Procedure 7
203. Review of Title 8
204. Title Insurance 8
205. Conditions of Closing 9
205.1 Agency's Conditions of Closing 9
205.2 Developer's Conditions of Closing. 10
206. Representations and Warranties. 11
206.1 Agency Representations. Agency represents and warrants to
Developer as follows: 11
206.2 Developer's Representations. Developer represents and warrants
to Agency as follows• 12
207. Studies and Reports. 13
208. Condition of the Site 13
208.1 Disclosure. 13
208.2 Investigation of Site. 13
208.3 Warranties As To Site. 14
208.4 Developer Precautions After Closing 14
300. DEVELOPMENT OF TILE SITE 14
301. Scope of Development 14
301. I Developer's Obligation to Construct Improvements. 14
302. Design Review. 155
302.1 Basic Concept Drawings. 15
302.2 Site Plan Drawings. 15
302.3 Agency Review and Approval 15
302.4 Standards for Disapproval. 15
302.5 Consultation and Coordination. 16
302.6 Revisions. 16
302.7 Defects in Plans 16
303 Land Use Approvals. 17
304. Schedule of Performance 17
305. Cost of Construction 17
306. Insurance Requirements. 17
307. Rights of Access 18
308. Compliance with Laws. 18
308.1 Nondiscrimination in Employment. 18
308.2 Taxes and Assessments. 19
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309. Release of Construction Covenants 19
310. Financing of the Improvements. 19
310.1 Approval of Financing 19
310.2 No Encumbrances Except Mortgages, Deeds of Trust, or Sale
and Lease -Back for Development. 20
310.3 Holder Not Obligated to Construct Improvements. 20
310.4 Notice of Default to Mortgagee or Deed of Trust Holders; Right
to Cure. 20
400. COVENANTS AND RESTRICTIONS 21
401. Use in Accordance with Redevelopment Plan. 21
402. Use Covenants 21
403. Covenant to Pay Agency Upon Sale or Encumbrance. 21
404. Nondiscrimination Covenants. 22
405. Effect of Violation of the Terms and Provisions of this Agreement After
Completion of Construction. 23
500 DEFAULTS AND REMEDIES 23
501. Default Remedies. 23
502. Institution of Legal Actions 24
503. Termination by the Developer Prior to the Conveyance 24
504. Termination by the Agency Prior to the Conveyance. 24
505. Reentry and Revesting of Title in the Agency After the Closing and Prior to
Completion of Construction. 24
506. Acceptance of Service of Process 26
507. Rights and Remedies Are Cumulative 26
508. Inaction Not a Waiver of Default. 26
509. Applicable Law 27
510. Non -Liability of Officials and Employees of the Agency. 27
511. Attorneys' Fees 27
600. GENERAL PROVISIONS 27
601. Notices, Demands and Communications Between the Parties. 27
602. Enforced Delay; Extension of Times of Performance. 27
603. Transfers of Interest in Site or Agreement. 28
603.1 Agency Consideration of Requested Transfer. 28
603.2 Successors and Assigns 29
603.3 Assignment by Agency. 29
604. Relationship Between Agency and Developer 29
605. Agency Approvals and Actions. 29
606. Counterparts. 29
607. Integration 29
608. Real Estate Brokerage Commission. 30
609. Titles and Captions. 30
610. Interpretation. 30
611. No Waiver. 30
612. Modifications. 30
613. Severability. 30
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614. Computation of Time. 30
615. Legal Advice 30
616. Time of Essence 31
617. Cooperation. 31
618. Conflicts of Interest. 31
619. Time for Acceptance of Agreement by Agency. 31
ATTACHMENTS
Attachment No. 1
Attachment No. 2
Attachment No. 3
Attachment No. 4
Attachment No. 5
Attachment No. 6
Attachment No. 7
Attachment No. 8
Site Map
Site Legal Description
Grant Deed
Schedule of Performance
Scope of Development
Release of Construction Covenants
Agency Environmental Reports
Covenant Attached to Real Property
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"Agency's Environmental Reports" means the environmental reports which have been
submitted by the Agency to the Developer, as set forth in Section 208.1 hereof.
"Agreement" means this Disposition and Development Agreement between the Agency
and the Developer.
"Basic Concept Drawings" means the plans and drawings to be submitted by the
Developer and approved by the Agency, as set forth in Section 302.1 hereof.
"City" means the City of City of National City, a California municipal corporation.
"Closing" means the close of Escrow for the Conveyance of the Site from the Agency
to the Developer, as set forth in Section 202 hereof.
"Closing Date" means the date of the Closing, as set forth in Section 202.4 hereof.
"Condition of Title" is defined in Section 203 hereof.
"Construction Drawings" means the detailed construction drawings and plans to be
prepared with respect to the improvements, as set forth in Section 302.3 hereof.
"Conveyance" means the conveyance of the Site by the Agency to the Developer on the
Closing Date.
"Date of Agreement" means the date set forth in the first paragraph hereof.
"Default" means the failure of a party to perform any action or covenant required by
this Agreement within the time periods provided herein following notice and opportunity to
cure, as set forth in Section 501 hereof.
"Developer" means Michael J. Hennessey, an individual, and its successors and
assigns.
"Developer's Conditions Precedent" means the conditions precedent to the Closing to
the benefit of the Developer, as set forth in Section 205.2.
"Developer's Environmental Consultant" means the environmental consultant which
may be employed by the Developer pursuant to Section 208.2 hereof.
"Developer's Environmental Report" means the environmental investigation of the
Site, which may be conducted for the Developer by Developer's Environmental Consultant, as
set forth in Section 208.2 hereof.
"Eligible Persons" means any individual, partnership, corporation or association which
qualifies as a "displaced person" pursuant to the definition provided in Government Code
Section 7260(c) of the California Relocation Assistance Act of 1970, as amended, and any
other applicable federal, state, or local regulations or laws.
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"Environmental Reports" means the collective environmental investigations of the Site
as reported in the Developer's Environmental Report and any investigations conducted by or
for the Agency performed pursuant to Section 208 hereof.
"Escrow" is defined in Section 202 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Escrow Costs" are defined in Section 202.1 hereof.
"Exceptions" is defined in Section 203 hereof.
"Governmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, orders and decrees of the United States, the state, the county, the City, or any
other political subdivision in which the Site is located, and of any other political subdivision,
agency or instrumentality exercising jurisdiction over the Agency, the Developer or the Site.
"Grant Deed" means the grant deed for the conveyance of the Site from the Agency to
the Developer, in the form of Attachment No. 3 hereto which is incorporated herein.
"Hazardous Materials" means any substance, material, or waste which is or becomes,
regulated by any local governmental authority, the State of California, or the United States
Government, including, but not limited to, any material or substance which is (i) defined as a
"hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under
Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health
and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law)), (ii) defined as a
"hazardous substance" under Section 25316 of the California Health and Safety Code, Division
20, Chapter 6.8 (Carpenter -Presley -Tanner i iazardous Substance Account Act), (iii) defined as
a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of
the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials
Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section
25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
byphenyls, (viii) methyltert butylether, (ix) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article 11 of Title 22 of the California Code of
Regulations, Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to
Section 311 of the Clean Water Act (33 U.S.C. §1317), (xi) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et
seq. (42 U.S.C. §6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.
§9601 et seq.
"Lender" is defined in Section 310 hereof.
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"Improvements" means the new improvements to be constructed by the Developer
upon the Site, all more particularly described in Section 301.1 hereof and in the Scope of
Development.
"Mortgage" is defined in Section 310.1 hereof.
"Notice" shall mean a notice in the form prescribed by Section 601 hereof.
"Outside Date" shall mean the last date the Closing shall occur, as set forth in Section
202.4 hereof.
"Phase I Report" is defined in Section 208. I hereof.
"Purchase Price" means the price to be paid by the Developer to the Agency in
consideration for the Conveyance of fee title to the Site, as set forth in Section 201 hereof.
"RAP" means the remedial action plan for the rmediation of the Site, as defined in
Section 208.3 hereof.
"Redevelopment Plan" means the Redevelopment Plan for the Redevelopment Project,
adopted by Ordinance No. 95 - 2095 of the City Council of the City of National City, and
incorporated herein by reference.
"Redevelopment Project" means the National City Redevelopment Project, adopted by
the City pursuant to the Redevelopment Plan.
"Release of Construction Covenants" means the document which evidences the
Developer's satisfactory completion of the Improvements, as set forth in Section 310 hereof, in
the form of Attachment No. 6 hereto which is incorporated herein.
"Remedial Work" is defined in Section 208.3 hereof.
"Remediation Cost" is defined in Section 208.2 hereof.
"Report" means the preliminary title report, as described in Section 203 hereof.
"Schedule of Performance" means the Schedule of Performance attached hereto as
Attachment No. 4 and incorporated herein, setting out the dates and/or time periods by which
certain obligations set forth in this Agreement must be accomplished. The Schedule of
Performance is subject to revision from time to time as mutually agreed upon in writing
between the Developer and the Agency's Director. Unless otherwise specified herein, the
Agency's Director is authorized to make such revisions as he or she deems reasonably
necessary.
"Scope of Development" means the Scope of Development attached hereto as
Attachment No. 5 and incorporated herein, which describes the scope, amount and quality of
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development of the Improvements to be constructed by the Developer pursuant to the terms
and conditions of this Agreement.
"Site" means that certain approximately 49,443 square foot portion of the
Redevelopment Project located at the northwest corner of Eighth Street and Roosevelt in the
City of National City, which has previously been developed for urban use. The Site is legally
described in the Site Legal Description and depicted in the Site Map.
"Site Legal Description" means the description of the Site which is attached hereto as
Attachment No. 2 and incorporated herein.
"Site Map" means the map of the Site which is attached hereto as Attachment No. 1
and incorporated herein.
"Site Plan Drawings" means the plans and drawings to be submitted by the Developer
and approved by the Agency, as set forth in Section 302.2 hereof.
"Threshold Amount" is defined in Section 208.2 hereof.
"Title Company" is defined in Section 203 hereof.
"Title Policy" is defined in Section 204 hereof.
"Transfer" is defined in Section 603 hereof.
200. CONVEYANCE OF THE SITE
201. Disposition of Site. '1'he Developer agrees to purchase the Site from the
Agency, and the Agency agrees to sell the Site to the Developer, in accordance with and
subject to all of the terms, covenants, and conditions of this Agreement, for the all-inclusive
purchase price of Five Hundred Seventy -Two Thousand Five Hundred Fifty Dollars
($572,550) (the "Purchase Price"). The Purchase Price represents the agreed upon fair market
value of the Site.
202. Escrow. Within ten (10) days after the execution of this Agreement by the
Agency, the parties shall open escrow ("Escrow") with the escrow division of Fidelity
National Title Company in its San Diego County office, or another escrow company mutually
satisfactory to both parties (the "Escrow Agent").
202.1 Costs of Escrow. Agency shall pay the premium for the 'Title Policy as
set forth in Section 204 hereof and the documentary transfer taxes, if any, due with respect to
the conveyance of the Site. All other usual fees, charges, and costs which arise from Escrow
(the "Escrow Costs") shall be paid by Developer and Agency, one-half by each.
202.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Agency, and the Escrow Agent to whom these instructions are
delivered is hereby empowered to act under this Agreement. The parties hereto agree to do all
017.139951 .4
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acts reasonably necessary to close this Escrow in the shortest possible time. Insurance policies
for fire or casualty are not to be transferred, and Agency will cancel its own policies after the
Closing. All funds received in the Escrow shall be deposited with other escrow funds in a
general escrow account(s) and may be transferred to any other such escrow trust account in
any State or National Bank doing business in the State of California. All disbursements shall
be made by check from such account. however, if Escrow does not close within one (1)
business day from deposit of the Purchase Price, the funds shall be deposited into an interest
bearing account with such interest accruing to the benefit of the Developer.
If in the opinion of either party or the Escrow Agent it is necessary or
convenient in order to accomplish the Closing of this transaction, such party may require that
the parties sign supplemental escrow instructions within fifteen (15) days of notice thereof;
provided that if there is any inconsistency between this Agreement and the supplemental
escrow instructions, then the provisions of this Agreement shall control. The parties agree to
execute such other and further documents as may be reasonably necessary, helpful or
appropriate to effectuate the provisions of this Agreement. The Closing shall take place within
thirty (30) days after the date when both the Agency's Conditions Precedent and the
Developer's Conditions Precedent as set forth in Section 205 have been satisfied or waived by
the respective parties. Escrow Agent is instructed to release Agency's escrow closing and
Developer's escrow closing statements to the respective parties.
202.3 Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
a. Pay and charge Developer and Agency for their respective shares of the
Escrow Costs payable under Section 202.1 of this Agreement, any endorsements to the
premium of the Title Policy thereto as set forth in Section 204, and any amount necessary to
place title in the condition necessary to satisfy Section 203 of this Agreement.
b. Pay and charge Developer and Agency for their respective shares of any
escrow fees, charges, and costs.
c. Disburse funds and deliver and record the Grant Deed and Maintenance
Agreement, when both the Developer's Conditions Precedent and the Agency's Conditions
Precedent have been fulfilled or waived by Developer and Agency.
d. Do such other actions as necessary, including obtaining the Title Policy,
to fulfill its obligations under this Agreement.
e. Within the discretion of Escrow Agent, direct Agency and Developer to
execute and deliver any instrument, affidavit, and statement, and to perform any act reasonably
necessary to comply with the provisions of FIRPTA and any similar state act and regulation
promulgated thereunder. Agency agrees to execute a Certificate of Non -Foreign Status by
individual transferor and/or a Certification of Compliance with Real Estate Reporting
Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to
be supplied by Escrow Agent.
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f. Prepare and tile with all appropriate governmental or taxing authorities a
uniform settlement statement, closing statement, tax withholding forms including an IRS 1099-
S form, and be responsible for withholding taxes, if any such forms are provided for or
required by law.
202.4 Closing. This transaction shall close ("Closing") within thirty (30) days
of the parties' satisfaction of all of Agency's and Developer's Conditions Precedent to Closing
as set forth in Section 205 hereof, but in no event later than June 1, 2001 (the "Outside Date").
The Closing shall occur at a location within San Diego County at a time and place reasonably
agreed on by the parties. The "Closing" shall mean the time and day the Grant Deed is filed
for record with the San Diego County Recorder. The "Closing Date" shall mean the day on
which the Closing occurs.
202.5 Termination. If Escrow is not in condition to close by the Outside
Date, then either party which has fully performed under this Agreement may, in writing,
demand the return of money or property and terminate the Escrow. If either party makes a
written demand for return of documents or properties, the Escrow shall not terminate until five
(5) days after Escrow Agent shall have delivered copies of such demand to all other parties at
the respective addresses shown in this Agreement. If any objections are raised within said five
(5) day period, Escrow Agent is authorized to hold all papers and documents until instructed
by a court of competent jurisdiction or by mutual written instructions of the parties.
Developer, however, shall have the sole option to withdraw any money deposited by it with
respect to the Closing less Developer's share of costs of Escrow, if any. Termination of the
Escrow shall be without prejudice as to whatever legal rights either party may have against the
other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed
with the Closing as soon as possible.
202.6 Closing Procedure. Escrow Agent shall close Escrow for the Site as
follows:
a. Record the Grant Deed with instructions for the Recorder of San Diego
County, California to deliver the Grant Deed to Developer;
b. Instruct the Title Company to deliver the Title Policy to Developer;
c. File any informational reports required by Internal Revenue Code
Section 6045(e), as amended, and any other applicable requirements; and
d. Deliver the FIRPTA Certificate, if any, to Developer; and
e. Forward to both Developer and Agency a separate accounting of all
funds received and disbursed for each party and copies of all executed and recorded or filed
documents deposited into Escrow, with such recording and filing date and information
endorsed thereon.
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203. Review of Title. The Agency shall cause Fidelity National, or another title
company mutually agreeable to both parties (the "Title Company"), to deliver to Developer a
standard preliminary consolidated title report (the "Report") with respect to the title to the Site,
together with legible copies of the documents (the "Documents") underlying the exceptions
("Exceptions") set forth in the Report, within sixty (60) days from the date of this Agreement.
The Developer shall have the right to approve or disapprove the Exceptions in its sole and
absolute discretion; provided, however, that the Developer hereby approves the following
Exceptions:
a. The Redevelopment Plan.
b. The lien of any non -delinquent property taxes and assessments (to be
prorated at close of Escrow).
Developer shall have thirty (30) days from the date of its latest receipt of the Report,
the Documents and the Survey to give written notice to Agency and Escrow Holder of
Developer's approval or disapproval of any of such Exceptions. If Developer notifies Agency
of its disapproval of any Exceptions in the Report, Agency shall have the right, but not the
obligation, to remove any disapproved Exceptions within thirty (30) days after receiving
written notice of Developer's disapproval or provide assurances satisfactory to Developer in
Developer's sole and absolute discretion that such Exception(s) will be removed on or before
the Closing. If Agency cannot or does not elect to remove any of the disapproved Exceptions
within that period, Developer shall have fifteen (15) days after the expiration of such thirty
(30) day period to either give the Agency written notice that Developer elects to proceed with
the purchase of the Site subject to the disapproved Exceptions or to give the Agency written
notice that the Developer elects to terminate this Agreement. The Exceptions to title approved
by Developer as provided herein shall hereinafter be referred to as the "Condition of Title."
Developer shall have the right to approve or disapprove in its sole and absolute discretion any
further Exceptions reported by the Title Company after Developer has approved the Condition
of Title for the Site (which are not created by Developer). Agency shall not voluntarily create
any new exceptions to title following the date of this Agreement.
204. Title Insurance. Concurrently with recordation of the Grant Deed conveying
title to the Site, there shall be issued to Developer an ALTA policy of title insurance (the
"Title Policy"), together with such endorsements as are reasonably requested by the
Developer, issued by the Title Company insuring that the title to the Site is vested in
Developer in the condition required by Section 203 of this Agreement. The Title Company
shall provide the Agency with a copy of the Title Policy. The Title Policy shall be for the
amount of the Purchase Price. The Agency agrees to remove on or before the Closing any
deeds of trust or other monetary liens against the Site excepting the covenant attached to real
property, attached hereto as Attachment NO. 8. The Escrow Costs shall include the cost of
any surveys necessary to issue an ALTA 'Title Insurance Policy and that portion of the
premium for the Title Policy equal to the cost of an ALTA Standard Coverage Owner's Policy
of Title insurance in the amount of the Purchase Price.
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205. Conditions of Closing. The Closing is conditioned upon the satisfaction of the
following terms and conditions within the times designated below:
205.1 Agency's Conditions of Closing. Agency's obligation to proceed with
the Closing of the sale of the Site is subject to the fulfillment or waiver by Agency of each and
all of the conditions precedent (a) through ( k), inclusive, described below ("Agency's
Conditions Precedent"), which are solely for the benefit of Agency, and which shall be
fulfilled or waived by the time periods provided for herein:
a. Parcel Map. A Parcel Map created by the Agency which creates a
separate legal parcel comprised of the Site shall have been completed and recorded.
b. No Default. Prior to the Close of Escrow, Developer shall not be in
default in any of its obligations under the terms of this Agreement and all representations and
warranties of Developer contained herein shall be true and correct in all material respects.
c. Execution of Documents. The Developer shall have executed any other
documents required hereunder and delivered such documents into Escrow.
d. Payment of Funds. Prior to the Close of Escrow, Developer shall have
paid the Purchase Price and all required costs of Closing into Escrow in accordance with
Sections 201 and 202 hereof.
e. Design Approvals. The Developer shall have obtained approval by the
Agency and City of the Basic Concept Drawings, Site Plan application drawings, Site Plan
application, and Construction Drawings as set forth in Section 302 hereof.
f. Land Use Approvals. The Developer and the Agency shall have
received all land use approvals required pursuant to Section 303 hereof.
g. Building and Grading Permits. All building and grading permits
required for the construction of the Improvements shall be available for issuance upon the
payment of applicable fees.
h. Insurance. The Developer shall have provided proof of insurance as
required by Section 306 hereof.
i. Financing. The Agency shall have approved construction and
acquisition financing as provided in Section 310.1 hereof, and such financing shall have closed
and funded or be ready to close and fund upon the Closing.
j. Plans and Permits. The Developer shall have obtained City approval of
its final building plans for all of the Improvements, and grading and building permits shall he
ready to be issued (upon payment of necessary fees, posting of required security, and similar
items).
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k. General Contractor Contract. Developer shall have provided or have
caused to be provided by tenant or another third party a copy of a valid and binding contract
between the Developer and one or more duly licensed general contractors reasonably
acceptable to the Agency for the construction of the Improvements, certified by the Developer
to be a true and correct copy thereof.
205.2 Developer's Conditions of Closing. Developer's obligation to proceed
with the purchase of the Site is subject to the fulfillment or waiver by Developer of each and
all of the conditions precedent (a) through (I ), inclusive, described below ("Developer's
Conditions Precedent"), which are solely for the benefit of Developer, and which shall be
fulfilled or waived by the time periods provided for herein:
a. No Default. Prior to the Close of Escrow, Agency shall not be in
default in any of its obligations under the terms of this Agreement and all representations and
warranties of Agency contained herein shall be true and correct in all material respects.
b. Execution of Documents. The Agency shall have executed the Grant
Deed and Maintenance Agreement and any other documents required hereunder, and delivered
such documents into Escrow.
c. Review and Approval of Title. Developer shall have reviewed and
approved the condition of title of the Site, as provided in Section 203 hereof.
d. Title Policy. The Title Company shall, upon payment of Title
Company's regularly scheduled premium, have agreed to provide to the Developer the Title
Policy for the Site upon the Close of Escrow, in accordance with Section 204 hereof.
e. Environmental. The Developer shall have approved the environmental
condition of the Site and shall not have elected to cancel Escrow and terminate this Agreement
pursuant to Section 208 hereof.
f. Parcel Map. A Parcel Map created by the Agency which creates a
separate legal parcel comprised of the Site shall have been completed and recorded.
g. Design Approvals. The Developer shall have obtained approval by the
Agency and City of the Basic Concept Drawings, Site Plan application drawings, Site Plan
application, and Construction Drawings as set forth in Section 302 hereof.
h. Land Use Approvals. The Developer and the Agency shall have
received all land use approvals required pursuant to Section 303 hereof.
i. Building and Grading Permits. All building and grading permits
required for the construction of the Improvements shall be available for issuance upon the
payment of applicable fees.
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j. Plans and Permits. The Developer shall have obtained City approval of
its final building plans for all of the improvements, and grading and building permits shall be
ready to be issued including an "Off -Sale" beer and wine liquor license (upon payment of
necessary fees, posting of required security, and similar items).
k. Demolition of The Existing Improvements. The Agency shall
demolish all existing improvements prior to transfer to the developer.
I. Palanco Act. The Agency agrees to use as appropriate the provisions of
the Palanco Act to insulate the Developer from any liability arising from existing
contamination on the subject site.
206. Representations and Warranties.
206.1 Agency Representations. Agency represents and warrants to
Developer as follows:
a. Authority. Agency is a public body, corporate and politic, existing
pursuant to the California Community Redevelopment Law (California Health and Safety Code
Section 33000),which has been authorized to transact business pursuant to action of the City.
b. FIRPTA. Agency is not a "foreign person" within the parameters of
FiRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any
similar state statute, or that Agency has complied and will comply with all the requirements
under FIRPTA or any similar state statute.
c. No Conflict. To the best of Agency's knowledge, Agency's execution,
delivery and performance of its obligations under this Agreement will not constitute a default
or a breach under any contract, agreement or order to which Agency is a party or by which it
is bound.
d. Litigation. There are no claims, causes of action or other litigation or
proceedings pending or, to the Actual Knowledge of the Agency, threatened with respect to the
ownership, operation or environmental condition of the Site or any part thereof (including
disputes with mortgagees, governmental authorities, utility companies, contractors, adjoining
landowners or suppliers of goods and services).
e. Violation. To the Actual Knowledge of the Agency, there are no
violations of any health, safety, pollution, zoning or other laws, ordinances, rules or
regulations with respect to the Site, which have not heretofore been entirely corrected. In the
event Agency has Actual Knowledge of any such violations, Agency shall (i) immediately
provide Developer with copies of all documents evidencing such violation, and (ii) cure such
violation prior to Closing.
proceeding.
017.139951 .4
I. No Agency Bankruptcy. Agency is not the subject of a bankruptcy
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Until the Closing, Agency shall, upon the change of any fact or condition which would
cause any of the warranties and representations in this Section 206.1 not to be true as of
Closing, immediately give written notice of such changed fact or condition to Developer. Such
exception(s) to a representation shall not be deemed a breach by Agency hereunder, but shall
constitute an exception which Developer shall have a right to approve or disapprove if such
exception would have an effect on the value and/or operation of the Site. If Developer elects
to close Escrow following disclosure of such information, Agency's representations and
warranties contained herein shall be deemed to have been made as of the Closing, subject to
such exception(s). If, following the disclosure of such information, Developer elects to not
close Escrow, then this Agreement and the Escrow shall automatically terminate, and neither
party shall have any further rights, obligations or liabilities hereunder. The representations
and warranties set forth in this Section 206.1 shall survive the Closing.
g. Palanco Act. The Agency agrees to use as appropriate the provisions of
the Palanco Act to insulate the Developer from any liability arising from existing
contamination on the subject site.
206.2 Developer's Representations. Developer represents and warrants to
Agency as follows:
a. Authority. Developer is a sole proprietor in good standing under the
laws of the State of California. Developer has full right, power and lawful authority to
purchase and accept the conveyance of the Site and undertake all obligations as provided herein
and the execution, performance and delivery of this Agreement by Developer has been fully
authorized by all requisite actions on the part of the Developer.
b. No Conflict. To the best of Developer's knowledge, Developer's
execution, delivery and performance of its obligations under this Agreement will not constitute
a default or a breach under any contract, agreement or order to which the Developer is a party
or by which it is bound.
c. No Developer Bankruptcy. Developer is not the subject of a
bankruptcy proceeding.
Until the Closing, Developer shall, upon the change of any fact or condition which
would cause any of the warranties and representations in this Section 206.2 not to be true as of
Closing, immediately give written notice of such changed fact or condition to Agency. Such
exception(s) to a representation shall not be deemed a breach by Developer hereunder, but
shall constitute an exception which Agency shall have a right to approve or disapprove if such
exception would have an effect on the value and/or operation of the Site. if Agency elects to
close Escrow following disclosure of such information, Developer's representations and
warranties contained herein shall he deemed to have been made as of the Closing, subject to
such exception(s). If, following the disclosure of such information, Agency elects to not close
Escrow, then this Agreement and the Escrow shall automatically terminate, and neither party
shall have any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 206.2 shall survive the Closing.
017.1399b1.4
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207. Studies and Reports. Prior to the Closing, representatives of Developer shall
have the right of access to all portions of the Site for the purpose of obtaining data and making
surveys and tests necessary to carry out this Agreement, including the investigation of the
environmental condition of the Site pursuant to Section 208 hereof. Any preliminary work
undertaken on the Site by Developer prior to the Closing shall be done at the sole expense of
the Developer, and the Developer's execution of a right of entry agreement to he provided by
the Agency. Any preliminary work shall be undertaken only after securing any necessary
permits from the appropriate governmental agencies.
208. Condition of the Site.
208.1 Disclosure. Prior to the execution of this Agreement, Agency also has
caused certain investigations of the environmental condition of the Site, and the land adjacent
to or near the Site, as specifically identified in Attachment No. 7 hereof which is incorporated
herein (the "Agency Environmental Reports"). Developer acknowledges that Developer has
been provided copies of each of the Agency Environmental Reports.
Except as may be set forth in the Agency Environmental Reports, the Agency
and the Developer hereby represent and warrant to the other that they have no actual
knowledge, and have not received any notice or communication from any government agency
having jurisdiction over the Site, notifying such party of, the presence of surface or subsurface
zone Hazardous Materials in, on, or under the Site, or any portion thereof. "Actual
knowledge," as used herein, shall not impose a duty of investigation, and shall be limited to
the actual knowledge of the Agency and Developer employees and agents who have
participated in the preparation of this Agreement and the management of the Site.
2118.2 Investigation of Site. Following the Developer's execution of a right of
entry agreement to be provided by the Agency, the Developer shall have the right, at its sole
cost and expense, to engage its own environmental consultant (the "Developer's Environmental
Consultant") to make such investigations as Developer deems necessary, including any "Phase
1" and/or "Phase 2" investigations of the Site, and the Agency shall promptly be provided a
copy of all reports and test results provided by the Developer's Environmental Consultant (the
"Developer's Environmental Report").
The Developer shall reasonably approve or disapprove of the environmental
condition of the Site within the time set forth in the Schedule of Performance. The
Developer's approval of the environmental condition of the Site shall be a Developer's
Condition Precedent to the Closing, as set forth in Section 205 hereof. If the Developer, based
upon the above environmental reports, reasonably disapproves the environmental condition of
the Site, then the Developer may terminate this Agreement by written Notice to the Agency
pursuant to Section 503 hereof.
Developer acknowledges that portions of the Site are undergoing remediation by
Chevron USA. Developer agrees to accept said portions of the Site and release Agency of all
responsibility as to the portions of the Site that are undergoing remediation by Chevron USA.
Notwithstanding the foregoing, or any other provision in this Agreement to the contrary,
017.139951.4
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Developer's obligations herein shall not arise unless and until Chevron USA delivers to
Developer a written agreement requiring Chevron USA to indemnify, defend and hold
Developer harmless as to all environmental conditions existing on or beneath the Site as of the
date of closing. Said written indemnity delivered by Chevron USA to Developer shall be in a
form acceptable to Developer.
208.3 Warranties As To Site. To the extent authorized by contract or law,
the Agency shall assign to the Developer all warranties and guaranties with respect to the
environmental condition of the Site, if any, that the Agency may have received from prior
owners of the Site. The Developer hereby waives, releases and discharges forever Agency and
City, employees, officers, agents and representatives, from all present and future claims,
demands, suits, legal and administrative proceedings and from all liability for damages, losses,
costs, liabilities, fees and expenses, present and future, arising out of or in any way connected
with the condition of the Site, any Hazardous Materials on the Site, or the existence of
Hazardous Materials contamination due to the generation of I lazardous Materials from the
Site, however they came to be placed there, except that arising out of the negligence or
misconduct of the Agency or its employees, officers, agents or representatives.
208.4 Developer Precautions After Closing. After the Closing and during the
time that the Developer owns all or a portion of the Site, the Developer shall take all necessary
precautions to prevent the release into the environment of any Hazardous Materials which are
located in, on or under the Site. Such precautions shall include compliance with all
Governmental Requirements with respect to Hazardous Materials. in addition, the Developer
shall install and utilize such equipment and implement and adhere to such procedures as arc
consistent with commercially reasonable standards as respects the disclosure, storage, use,
removal and disposal of Hazardous Materials.
300. DEVELOPMENT OF TilE SiTE
301. Scope of Development.
301.1 Developer's Obligation to Construct Improvements. The Developer
shall develop or cause the development of the Improvements in one phase in accordance with
the Scope of Development, the City Municipal Code, and the plans, drawings and documents
submitted by the Developer and approved by the Agency as set forth herein. The
Improvements shall generally consist of an approximately 5,000 square foot combination
gasoline station/mini-market/drive-thru fast food restaurant and all related parking area
improvements. In addition, the Agency shall develop or cause the development of any
improvements which are identified in the Scope of Development as the responsibility of the
Agency.
017.139951.4
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302. Design Review.
302.1 Basic Concept Drawings. Within the time set forth in the Schedule of
Performance, the Developer shall submit conceptual drawings for the Improvements, including
materials, color board, elevations of all four sides of the Improvements, preliminary landscape
plans, the traffic and circulation plan which has been prepared by the Agency, and a rendered
perspective (collectively, the "Basic Concept Drawings"). Within the time set forth in the
Schedule of Performance, the Agency shall either approve the Basic Concept Drawings or set
forth the reasons for its disapproval in writing.
302.2 Site Plan Drawings. After the Agency's approval of the Basic Concept
Drawings, and within the time set forth in the Schedule of Performance, the Developer shall
submit to the Agency and City the following plans and drawings with respect to the
Improvements (the "Site Plan Drawings"), which must include all documents, plans and
drawings, including any application materials required by the City Planning Services Division,
which are necessary to obtain all City approvals for the construction of the Improvements.
Within the time set forth in the Schedule of Performance, the Agency shall either approve the
Site Plan Drawings or set forth the reasons for its disapproval in writing. In the event that the
Agency fails to act within the time set forth in the Schedule of Performance, the Site Plan
Drawings shall be deemed to have been approved by the Agency.
302.3 Agency Review and Approval. The Agency shall have the right to
review and approve the Basic Concept Drawings. The Agency will not withhold approval of
plans that meet the industry standard for the type of development contemplated in this
agreement. The Agency shall have the right to review and reasonably approve or disapprove
the Site Plan Drawings; provided, however, that the Agency shall reasonably approve logical
evolutions and/or extensions of drawings which it has previously approved. The Agency may
review any and all aspects of the Basic Concept Drawings and Site Plan Drawings. The
Developer acknowledges and agrees that the Agency is entitled to approve or disapprove the
Basic Concept Drawings and Site Plan Drawings in order to satisfy the Agency's obligation to
promote the sound development and redevelopment of land within the Redevelopment Project,
to promote a high level of design which will impact the surrounding development, and to
provide an environment for the social, economic and psychological growth and well-being of
the citizens of the City and the Redevelopment Project.
302.4 Standards for Disapproval. The Agency shall have the right to
disapprove the Basic Concept Drawings in its reasonable discretion. The Agency shall have
the right to disapprove in its reasonable discretion any of the Site Plan Drawings if (a) the Site
Plan Drawings do not conform to the approved Basic Concept Drawings, or (b) the Site Plan
Drawings do not conform to the Scope of Development or this Agreement, or (c) the Site Plan
Drawings are incomplete; provided, however, that the Agency shall reasonably approve logical
evolutions and/or extensions of drawings which it has previously approved. The Agency shall
state in writing the reasons for disapproval within fifteen (I5) days of such disapproval as
stated herein, and in the event that the Agency fails to do so, the drawings shall be deemed
approved. The Developer, upon receipt of a disapproval based upon powers reserved by the
01 /.1 39951.4
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Agency hereunder, shall revise such portions and resubmit to the Agency by the time
established therefor in the Schedule of Performance.
302.5 Consultation and Coordination. During the preparation of the Basic
Concept Drawings, Site Plan Drawings and Construction Drawings, staff of the Agency and
the Developer shall hold regular progress meetings to coordinate the preparation of,
submission to, and review of the Basic Concept Drawings, Site Plan Drawings and
Construction Drawings by the Agency. The staff of the Agency and the Developer shall
communicate and consult informally as frequently as is necessary to ensure that the formal
submittal of any documents to the Agency can receive prompt and thorough consideration.
The Agency shall designate an Agency employee to serve as the project manager who is
responsible for the coordination of the Agency's activities under this Agreement and for
expediting the land use approval and permitting process.
302.6 Revisions. If the Developer desires to propose any material revisions to
the Agency -approved Basic Concept Drawings, Site Plan Drawings or Construction Drawings,
it shall submit such proposed changes to the Agency, and shall also proceed in accordance with
any and all State and local laws and regulations regarding such revisions, within the time frame
set forth in the Schedule of Performance. At the sole discretion of the Agency, if any material
change in the basic uses of the Site is proposed in the Basic Concept Drawings, Site Plan
Drawings or Construction Drawings from the basic uses of the Site as provided for in this
Agreement, then this Agreement is subject to re -negotiation of all terms and conditions,
including without limitation, the economic terms of the Agreement. If the Basic Concept
Drawings, Site Plan Drawings or Construction Drawings, as modified by the proposed change,
generally and substantially conform to the requirements of this Section 302 of this Agreement
and the Scope of Development, the Agency Director shall review the proposed change and
notify the Developer in writing within fifteen (15) days after submission to the Agency as to
whether the proposed change is approved or disapproved. In the event that the Agency fails to
act within the fifteen-(15) day time period set forth above, the proposed change or changes
shall be deemed approved by the Agency. The Agency's Director is authorized to approve
changes to the Agency -approved Basic Concept Drawings, Site Plan Drawings and
Construction Drawings provided such changes 1) do not materially reduce the quality of
materials to be used; and 2) do not reduce the imaginative and unique qualities of the project
design. Any and all change orders or revisions required by the City and its inspectors which
are required under the Municipal Code and all other applicable Uniform Codes (e.g. Building,
Plumbing, Fire, Electrical, etc.) and under other applicable laws and regulations shall be
included by the Developer in its Basic Concept Drawings, Site Plan Drawings and
Construction Drawings and completed during the construction of the Improvements.
302.7 Defects in Plans. The Agency shall not be responsible either to the
Developer or to third parties in any way for any defects in the Basic Concept Drawings, the
Site Plan Drawings or the Construction Drawings, nor for any structural or other defects in
any work done according to the approved Basic Concept Drawings, Site Plan Drawings or
Construction Drawings, nor for any delays reasonably caused by the review and approval
processes established by this Section 302.
017.139951.4
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303. Land Use Approvals. Before commencement of construction of the
Improvements or other works of improvement upon the Site, the Developer shall, at its own
expense, secure or cause to be secured any and all land use and other entitlements, permits and
approvals which may he required for the improvements by the City or any other governmental
agency affected by such construction or work, except for those which are the responsibility of
the Agency as set forth herein. The Developer also intends to enter into a Development
Agreement with the City pursuant to Government Code Section 65864 through 65869.5
concerning the Site, in implementation of the promulgated state policy to protect and promote
the sound development and redevelopment of the Redevelopment Project area in furtherance of
the goals and objectives of the Redevelopment Plan. The Agency shall exercise every
reasonable efforts to assist Developer in securing any and all land use and other entitlements,
permits and approvals from the City and any other governmental agency from which such
permits and entitlements are required. The Developer shall, without limitation, apply for and
secure the following, and pay all costs, charges and fees associated therewith:
a. Site Plan
b. Development Agreement with the City.
c. All other permits and fees required by the City, County of San Diego,
and other governmental agencies with jurisdiction over the Improvements.
d. Ally environmental studies and documents required pursuant to the
California Environmental Quality Act.
Before commencement of construction of the Improvements, the Agency shall,
at its own expense. pay the traffic mitigation fee, if any, assessed by the City in connection
with this development. However, the execution of this Agreement does not constitute the
granting of or a commitment to obtain any required land use permits, entitlements or approvals
required by the Agency or the City.
304. Schedule of Performance. The Developer shall submit all Basic Concept
Drawings, Site Plan Drawings and Construction Drawings, commence and complete all
construction of the Improvements, and satisfy all other obligations and conditions of this
Agreement, within the times established therefor in the Schedule of Performance.
305. Cost of Construction. Except to the extent otherwise expressly set forth in this
Agreement, all of the cost of planning, designing, developing and constructing all of the
Improvements, site preparation and grading shall he borne solely by the Developer.
306. Insurance Requirements. The Developer shall take out and maintain or shall
cause its contractor, tenant, or another third party to take out and maintain until the issuance of
the Release of Construction Covenants pursuant to Section 310 of this Agreement, a
comprehensive general liability policy in the amount of One Million Dollars ($1,000,000.00)
combined single limit policy, or such other policy limits as the Agency may approve at its
discretion, including contractual liability, as shall protect the Developer, City and Agency from
01 7.139951 .4
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claims for such damages, and which policy shall be issued by a "13+" rated insurance carrier.
Such policy or policies shall be written on an occurrence form. The Developer shall also
furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that any
contractor with whom it has contracted for the performance of work on the Site or otherwise
pursuant to this Agreement carries workers' compensation insurance as required by law. The
Developer shall furnish a certificate of insurance countersigned by an authorized agent of the
insurance carrier on a form approved by the Agency setting forth the general provisions of the
insurance coverage. This countersigned certificate shall name the City and the Agency and
their respective officers, agents, and employees as additionally insured parties under the
policy, and the certificate shall be accompanied by a duly executed endorsement evidencing
such additional insured status. The certificate and endorsement by the insurance carrier shall
contain a statement of obligation on the part of the carrier to notify City and the Agency of any
material change, cancellation or termination of the coverage at least thirty (30) days in advance
of the effective date of any such material change, cancellation or termination. Coverage
provided hereunder by the Developer shall be primary insurance and not be contributing with
any insurance maintained by the Agency or City, and the policy shall contain such an
endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation
for the benefit of the City and the Agency. The required certificate shall be furnished by the
Developer at the time set forth therefor in the Schedule of Performance.
307. Rights of Access. Prior to the issuance of a Release of Construction Covenants
(as specified in Section 310 of this Agreement), for purposes of assuring compliance with this
Agreement, representatives of the Agency shall have the right of access to the Site, without
charges or fees, at normal construction hours during the period of construction for the
purposes of this Agreement, including but not limited to, the inspection of the work being
performed in constructing the Improvements so long as Agency representatives comply with all
safety rules. The Agency (or its representatives) shall, except in emergency situations, notify
the Developer at least forty-eight (48) hours prior to exercising its rights pursuant to this
Section 308.
308. Compliance with Laws. The Developer shall carry out the design, construction
and operation of the Improvements in conformity with all applicable laws, including all
applicable state labor standards, the City zoning and development standards, building,
plumbing, mechanical and electrical codes, and all other provisions of the City Municipal
Code, and all applicable disabled and handicapped access requirements, including without
limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government
Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil
Rights Act, Civil Code Section 51, et seq.
308.1 Nondiscrimination in Employment. Developer agrees that all persons
employed or applying for employment by it, its affiliates, subsidiaries, or holding companies,
and all subcontractors, bidders and vendors, are and will be treated equally by it without
regard to, or because of race, color, religion, ancestry, national origin, sex, age, pregnancy,
childbirth or related medical condition, medical condition (cancer related) or physical or
mental disability, and in compliance with Title V►i of the Civil Rights Act of 1964, 42 U.S.C.
01/.139951.4
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Section 2000, et seq., the Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the Age
Discrimination in Employment Act of 1967, 29 U.S.C. Section 621, et seq., the Immigration
Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42 U.S.C. Section 1981,
the California Fair Employment and Housing Act, Cal. Government Code Section 12900, et
seq., the California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code
Section 11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and all
other anti -discrimination laws and regulations of the United States and the State of California
as they now exist or may hereafter be amended.
308.2 Taxes and Assessments. Upon and after the Closing, the Developer
shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Site,
subject to the Developer's right to contest in good faith any such taxes. The Developer agrees
that during all times that the Agency is permitted to receive property tax increment from the
Redevelopment Project pursuant to Health and Safety Code Section 33670 (as it may be
amended or substituted).
309. Release of Construction Covenants. Promptly after completion of the
Improvements in conformity with this Agreement, the Agency shall furnish the Developer with
a "Release of Construction Covenants," in the form of Attachment No. 6 hereto which is
incorporated herein by reference. The Agency shall not unreasonably withhold such Release
of Construction Covenants. The Release of Construction Covenants shall he a conclusive
determination of satisfactory completion of the Improvements and the Release of Construction
Covenants shall so state. Any party then owning or thereafter purchasing, leasing or otherwise
acquiring any interest in the Site shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement except for those continuing
covenants as described in the Grant Deed.
If the Agency refuses or fails to furnish the Release of Construction Covenants,
after written request from the Developer, the Agency shall, within fifteen (15) days of written
request therefor, provide the Developer with a written statement of the reasons the Agency
refused or failed to furnish the Release of Construction Covenants. The statement shall also
contain the Agency's opinion of the actions the Developer must take to obtain the Release of
Construction Covenants. The Release of Construction Covenants shall not constitute evidence
of compliance with or satisfaction of any obligation of the Developer to any holder of any
mortgage, or any insurer of a mortgage securing money loaned to finance the Improvements,
or any part thereof. The Release of Construction Covenants is not a notice of completion as
referred to in Section 3093 of the California Civil Code.
310. Financing of the Improvements.
310.1 Approval of Financing. As required herein and as an Agency
Condition Precedent to the Closing, Developer shall submit to Agency evidence that Developer
has obtained sufficient commitments for construction and permanent financing necessary to
undertake the development of the Site and the construction of the Improvements in accordance
with this Agreement. The Agency shall approve or disapprove such evidence of financing
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01 1.1399b 1 .4
commitments within fifteen (15) days of receipt of a complete submission. Approval shall not
be unreasonably withheld or conditioned. If Agency shall disapprove any such evidence of
financing, Agency shall do so by Notice to Developer stating the reasons for such disapproval
and Developer shall promptly obtain and submit to Agency new evidence of financing.
Agency shall approve or disapprove such new evidence of financing in the same manner and
within the same times established in this Section 310. I for the approval or disapproval of the
evidence of financing as initially submitted to Agency.
Such evidence of financing shall include the following: (a) a copy of letter of
interest(s) obtained by Developer from one or more financial institutions for the mortgage loan
or loans for financing to fund the construction and completion of the Improvements, subject to
such lenders' reasonable, customary and normal conditions and terms, and/or (b) evidence that
Developer has sufficient funds for such construction, and that such funds have been committed
to such construction, and/or other documentation satisfactory to the Agency as evidence of
other sources of capital sufficient to demonstrate that Developer has adequate funds to cover
the difference between the total cost of the construction and completion of the Improvements,
less financing authorized by those loans set forth in subparagraph (a) above.
310.2 No Encumbrances Except Mortgages, Deeds of Trust, or Sale and
Lease -Back for Development. Mortgages, deeds of trust and sales and leases -back shall be
permitted for the purpose of securing loans of funds to be used for financing the construction
of the Improvements (including architecture, engineering, legal, and related direct costs as well
as indirect costs) on or in connection with the Site, permanent financing, and any other
purposes necessary and appropriate in connection with development under this Agreement. In
no event, however, shall the amount or amounts of indebtedness secured by mortgages or
deeds of trust which are prior to and senior to the Agency's Deed of Trust exceed the projected
cost of constructing the Improvements, as evidenced by a pro forma and a construction
contract which set forth such construction costs. The Developer shall notify the Agency in
advance of any mortgage, deed of trust or sale and lease -back financing, if the Developer
proposes to enter into the same before completion of the construction of the Improvements.
The words "mortgage" and "trust deed" as used hereinafter shall include sale and lease -back.
310.3 Holder Not Obligated to Construct Improvements. The holder of any
mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions
of this Agreement to construct or complete the Improvements or any portion thereof, or to
guarantee such construction or completion: nor shall any covenant or any other provision in
this Agreement be construed so to obligate such holder. Nothing in this Agreement shall be
deemed to construe, permit or authorize any such holder to devote the Site to any uses or to
construct any improvements thereon, other than those uses or improvements provided for or
authorized by this Agreement.
310.4 Notice of Default to Mortgagee or Deed of '!'rust Holders; Right to
Cure. With respect to any mortgage or deed of trust granted by Developer as provided herein,
whenever the Agency may deliver any notice or demand to Developer with respect to any
breach or default by the Developer in completion of construction of the Improvements, the
017.139951.4
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Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust
authorized by this Agreement a copy of such notice or demand. Each such holder shall
(insofar as the rights granted by the Agency are concerned) have the right, at its option, within
sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or
remedy and thereafter to pursue with due diligence the cure or remedy of any such default and
to add the cost thereof to the mortgage debt and the lien of its mortgage. 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, or any portion thereof (beyond the extent
necessary to conserve or protect the improvements or construction already made) without first
having expressly assumed the Developer's obligations to the Agency by written agreement
reasonably 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. Any such holder properly completing such improvement shall be entitled, upon
compliance with the requirements of Section 310 of this Agreement, to a Release of
Construction Covenants. It is understood that a holder shall be deemed to have satisfied the
sixty (60) day time limit set forth above for commencing to cure or remedy a Developer
default which requires title and/or possession of the Site (or portion thereof) if and to the extent
any such holder has within such sixty (60) day period commenced proceedings to obtain title
and/or possession and thereafter the holder diligently pursues such proceedings to completion
and cures or remedies the default.
400. COVENANTS AND RESTRICTIONS
401. Use in Accordance with Redevelopment Plan. The Developer covenants and
agrees for itself, its successors, assigns, and every successor in interest to the Site or any part
thereof, that upon the Closing and during construction, operation, and thereafter, the
Developer shall devote the Site to the uses specified in the Redevelopment Plan and this
Agreement for the periods of time specified therein. All uses conducted on the Site, including,
without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall
conform to the Redevelopment Plan and all applicable provisions of the City Municipal Code.
The foregoing covenants shall run with the land.
402. Use Covenants. For a term commencing upon the Conveyance and ending
upon the expiration of the effectiveness of the current Redevelopment Plan, excluding any
extensions of the plan. The Developer hereby covenants and agrees for itself, its successors, its
assigns and all voluntary and involuntary successors in interest to the Site, or any part thereof,
that the Site will only be used for a commercial use.
403. Covenant to Pay Agency Upon Sale or Encumbrance. For the period
commencing upon the date the Covenant Attached to Real Property (Attachment No. 8) is
recorded and until five (5) years thereafter, the Developer shall not make any total or partial
sale, transfer, conveyance, assignment, or subdivision nor suffer to be placed on the property
any lien or encumbrance other than mortgages, deeds of trust or any other form of conveyance
required for financing the construction of the improvements on the Site and any other
expenditures necessary and or appropriate to develop the Site as provided in Section 310.2 of
017.139951.4
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the DDA (Developer may, however, refinance at any time to obtain a more favorable interest
rate provided that no equity is withdrawn by Developer) without concurrently making payment
to the Agency in an amount not to exceed 75 I of the proceeds of said sale or refinancing
above the actual Developer's verified cost as provided in this Agreement. The Agency's share
will not exceed the "Contingent Supplemental Price", equal to $416,310 plus the consumer
price index adjustment provided for herein. Both the Developer's cost and the Agency's share
may be adjusted to reflect cumulative changes in the cost of living (using the Consumer Price
Index for All Urban Consumers (CPI) U.S. City Average, All Items) from the date of
recording, or such other amount as the Agency may then agree to accept in full or partial
discharge of this obligation as Agency deems appropriate to the terms of the proposed
transaction.
404. Nondiscrimination Covenants. The Developer covenants by and for itself and
any successors in interest 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 Site, 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 Site. The foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the Site on the
basis of race, color, religion, sex, marital status, ancestry or national origin 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, national origin
or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the grantee 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:
017.139951.4
"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,
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or ancestry 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, 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, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises."
405. Effect of Violation of the Terms and lrovisions of this Agreement After
Completion of Construction. The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the land, for and in its own
right and for the purposes of protecting the interests of the community and other parties, public
or private, in whose favor and for whose benefit this Agreement and the covenants running
with the land have been provided, without regard to whether the Agency has been, remains or
is an owner of any land or interest therein in the Site or in the Redevelopment Project. The
Agency shall have the right, if the Agreement or covenants are breached, to exercise all rights
and remedies, and to maintain any actions or suits at law or in equity or other proper
proceedings to enforce the curing of such breaches and to avail itself of the rights granted
herein to which it or any other beneficiaries of this Agreement and covenants may be entitled.
The covenants contained in this Agreement shall remain in effect for the periods described
herein, specifically including, without limitation, the following:
a. The covenants pertaining to use of the Site which are set forth in
Sections 401 and 402 shall remain in effect for the term of the Redevelopment Plan.
b. The covenants against discrimination, as set forth in Section 404, shall
remain in effect in perpetuity.
500. DEFAULTS AND REMEDIES
501. Default Remedies. Subject to the extensions of time set forth in Section 602 of
this Agreement, failure by either party to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and failure to cure as
described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default
shall give written notice of Default to the other party specifying the Default complained of.
Except as otherwise expressly provided in this Agreement, the claimant shall not institute any
proceeding against any other party, and the other party shall not be in Default if such party
017.1399131.4
-23-
within thirty (30) days from receipt of such notice immediately, with due diligence,
commences to cure, correct or remedy such failure or delay and shall complete such cure,
correction or remedy with diligence.
502. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restrictions otherwise set forth in this Agreement, either party may institute an
action at law or equity to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default, to recover damages for any Default, or to obtain any other
remedy available at law or in equity. Such legal actions must be instituted in the Superior
Court of the County of San Diego, State of California, in an appropriate municipal court in
that county, or in the District of the United States District Court in which such county is
located.
503. Termination by the Developer Prior to the Conveyance. In the event that
prior to the Conveyance the Developer is not in default under this Agreement and (a) the
Agency does not tender title to the Site pursuant to the Grant Deed in the manner and condition
and by the date provided in this Agreement, or (b) one or more of the Developer's Conditions
Precedent to the Closing is not fulfilled on or before the time set forth in the Schedule of
Performance and such failure is not caused by the Developer, or (c) any default of the Agency
prior to the Closing is not cured within the time set forth in Section 501 hereof, after written
demand by the Developer, or (d) the Developer timely disapproves the environmental condition
of the Site pursuant to Section 208 hereof, then this Agreement may, at the option of the
Developer, be terminated by written Notice thereof to the Agency (the "Notice of
Termination"). From the date of the written Notice of Termination of this Agreement by the
Developer to the Agency and thereafter this Agreement shall be deemed terminated and there
shall he no further rights or obligations between the parties with respect to the Site by virtue of
or with respect to this Agreement.
504. Termination by the Agency Prior to the Conveyance. In the event that prior
to the Conveyance the Agency is not in Default under this Agreement and (a) the Developer
(or any successor in interest) assigns or attempts to assign the Agreement or any rights therein
or in the Site in violation of this Agreement; or (b) one or more of the Agency's Conditions
Precedent to the Closing is not fulfilled on or before the time set forth in the Schedule of
Performance and such failure is not caused by the Agency or City; or (c) the Developer is
otherwise in default of this Agreement and fails to cure such default within the time set forth in
Section 501 hereof; then this Agreement and any rights of the Developer or any assignee or
transferee with respect to or arising out of the Agreement or the Site, shall, at the option of the
Agency, be terminated by the Agency by written Notice thereof to the Developer. From the
date of the written Notice of Termination of this Agreement by the Agency to the Developer
and thereafter this Agreement shall be deemed terminated and there shall be no further rights
or obligations between the parties.
505. Reentry and Revesting of Title in the Agency After the Closing and Prior to
Completion of Construction. The Agency has the right, at its election, to reenter and take
possession of the Site, with all improvements thereon, and terminate and revest in the Agency
01 7.1 39951.4
-24-
the estate conveyed to the Developer if after the Closing and prior to the issuance of the
Release of Construction Covenants, the Developer (or its successors in interest) shall:
a. Unless due to an Enforced Delay as described in Section 602 hereof, fail
to start the construction of the Improvements as required by this Agreement for a period of
ninety (90) days after written notice thereof from the Agency; or
b. Abandon or substantially suspend construction of the Improvements
required by this Agreement for a period of sixty (60) days after written notice thereof from the
Agency; or
c. Contrary to the provisions of Section 603 Transfer or suffer any
involuntary Transfer in violation of this Agreement.
Such right to reenter, terminate and revest shall he subject to and he limited by
and shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by this Agreement;
2. Any rights or interests provided in this Agreement for the protection of
the holders of such mortgages or deeds of trust; or
3. Any rights or interests held by a lessee in and to the property.
The Grant Deed shall contain appropriate reference and provision to give effect
to the Agency's right as set forth in this Section 505, under specified circumstances prior to
recordation of the Release of Construction Covenants, to reenter and take possession of the
Site, with all improvements thereon, and to terminate and revest in the Agency the estate
conveyed to the Developer. Upon the revesting in the Agency of title to the Site as provided in
this Section 505, the Agency shall, pursuant to its responsibilities under state law, use its
reasonable efforts to resell the Site as soon and in such manner as the Agency shall find
feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it
exists or may be amended, to a qualified and responsible party or parties (as determined by the
Agency) who will assume the obligation of making or completing the Improvements, or such
improvements in their stead as shall he satisfactory to the Agency and in accordance with the
uses specified for such Site or part thereof in the Redevelopment Plan. Upon such resale of the
Site, the net proceeds thereof after repayment of any mortgage or deed of trust encumbering
the Site which is permitted by this Agreement, shall he applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of the
City, all costs and expenses incurred by the Agency, excluding City and
Agency staff costs, but specifically, including, but not limited to, any
expenditures by the Agency or the City in connection with the recapture,
management and resale of the Site or part thereof (but less any income
derived by the Agency from the Site or part thereof in connection with
such management); all taxes, assessments and water or sewer charges
017.1 39951 .4
-25-
with respect to the Site or part thereof which the Developer has not paid
(or, in the event that Site is exempt from taxation or assessment of such
charges during the period of ownership thereof by the Agency, an
amount, if paid, equal to such taxes, assessments, or charges as would
have been payable if the Site were not so exempt); any payments made
or necessary to be made to discharge any encumbrances or liens existing
on the Site or part thereof at the time or revesting of title thereto in the
Agency, or to discharge or prevent from attaching or being made any
subsequent encumbrances or liens due to obligations, defaults or acts of
the Developer, its successors or transferees; any expenditures made or
obligations incurred with respect to the making or completion of the
improvements or any part thereof on the Site, or part thereof; and any
amounts otherwise owing the Agency, and in the event additional
proceeds are thereafter available, then
ii. Second, to reimburse the Developer, its successor or transferee, up to
the amount equal to the sum of the costs incurred for the acquisition and
development of the Site and for the improvements existing on the Site at
the time of the reentry and possession.
Any balance remaining after such reimbursements shall be retained by the
Agency as its property. The rights established in this Section 505 are not intended to be
exclusive of any other right, power or remedy, but each and every such right, power, and
remedy shall be cumulative and concurrent and shall be in addition to any other right, power
and remedy authorized herein or now or hereafter existing at law or in equity. These rights
are to be interpreted in light of the fact that the Agency will have conveyed the Site to the
Developer for redevelopment purposes and not for speculation in undeveloped land.
506. Acceptance of Service of Process. 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 Director of the Agency or in such other manner as may be
provided by law. In the event that any legal action is commenced by the Agency against the
Developer, service of process on the Developer shall he made by personal service on the
Developer, whether made within or outside the State of California, or in such other manner as
may be provided by law.
507. Rights and Remedies Are Cumulative. Except as otherwise expressly stated
in this Agreement, the rights and remedies of the parties arc 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.
508. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver of any
Default or of any such rights or remedies, or deprive either such party of its right to institute
017.1 39951.4
-26-
A/c-2-
and maintain any actions or proceedings which it may deem necessary to protect, assert or
enforce any such rights or remedies.
509. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
510. Non -Liability of Officials and Employees of the Agency. No member,
official or employee of the Agency or the City shall be personally liable to the Developer, or
any successor in interest, in the event of any Default or breach by the Agency (or the City) or
for any amount which may become due to the Developer or its successors, or on any
obligations under the terms of this Agreement.
511. Attorneys' Fees. In any action between the parties to interpret, enforce,
reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing party in the action shall be entitled, in addition to damages,
injunctive relief, or any other relief to which it might be entitled, reasonable costs and
expenses including, without limitation, litigation costs and reasonable attorneys' fees.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("Notice") which either party may desire to
give to the other party under this Agreement must he in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the address of
the party as set forth below, or at any other address as that party may later designate by
Notice.
To Agency:
Community Development Commission
of the City of National City
140 E. 12th Street, Suite B
National City, CA 91950-3312
Attention: Executive Director
To Developer: Michael J. Hennessey
Hennessey Group
17581 Irvine Boulevard, Suite 108
Tustin, CA 92780
Any written notice, demand or communication shall be deemed received
immediately if delivered by hand and shall be deemed received on the third day from the date
it is postmarked if delivered by registered or certified mail.
602. Enforced Delay; Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by either party hereunder shall not he deemed to be
in Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to causes beyond the reasonable control or without the fault
of the party claiming an extension of time to perform, which may include the following: war;
017.139951.4
-27-
insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of
the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation;
governmental restrictions or priority; litigation; severe weather; inability to secure necessary
labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions
of the other party; acts or failures to act of the City or ally other public or governmental
agency or entity (other than the acts or failures to act of the Agency which shall not excuse
performance by the Agency). Notwithstanding anything to the contrary in this Agreement, an
extension of time for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause, if notice by the party
claiming such extension is sent to the other party within thirty (30) days of the commencement
of the cause. Times of performance under this Agreement may also be extended in writing by
the mutual agreement of Agency and Developer. Notwithstanding any provision of this
Agreement to the contrary, the lack of funding to complete the improvements shall not
constitute grounds of enforced delay pursuant to this Section 602.
603. Transfers of Interest in Site or Agreement. The qualifications and identity of
the Developer as the developer of high quality fast food restaurants are of particular concern to
the Agency. Furthermore, the parties acknowledge that the Agency has negotiated the terms of
this Agreement in contemplation of the development and operation of a gasoline service station
with a mini -market and a drive-thru fast food restaurant on the Site and the property tax
increment to be generated by the operation of the gasoline service station with a mini -market
and a drive-thru fast food restaurant on the Site. Accordingly, for the period commencing
upon the date of this Agreement and until the Agency's issuance of the Release of Construction
Covenants as set forth in Section 310 hereof, (a) no voluntary or involuntary successor in
interest of the Developer shall acquire any rights or powers under this Agreement, (b) nor shall
the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, of
the whole or any part of the Site or the Improvements thereon, (c) nor shall any business other
than a gasoline service station with a mini -market and a drive-thru fast food restaurant be
operated thereon, without the prior written approval of the Agency, except as expressly set
forth herein.
603.1 Agency Consideration of Requested Transfer. The Agency agrees that
it will not unreasonably withhold approval of a request for approval of a Transfer made
pursuant to this Section 603, provided the Developer delivers written notice to the Agency
requesting such approval. Such notice shall be accompanied by evidence regarding the
proposed transferee's development and/or operational qualifications and experience, and its
financial commitments and resources, in sufficient detail to enable the Agency to evaluate the
proposed assignee or purchaser pursuant to the criteria set forth in this Section 603 and as
reasonably determined by the Agency. The Agency may, in considering any such request, take
into consideration such factors as (i) the quality of any new and/or replacement operator, (ii)
the transferee's past performance as an operator of fast food restaurants, (iii) the current
financial condition of the transferee, and similar factors. The Agency agrees not to
unreasonably withhold its approval of any such requested Transfer, taking into consideration
the foregoing factors.
01 /.139951.4
-28-
An assignment and assumption agreement in form satisfactory to the Agency's
legal counsel shall also be required for all proposed 'Transfers. Within thirty (30) days after
the receipt of the Developer's written notice requesting Agency approval of a Transfer
pursuant to this Section 603, the Agency shall either approve or disapprove such proposed
assignment or shall respond in writing by stating what further information, if any, the Agency
reasonably requires in order to complete the request and determine whether or not to grant the
requested approval. Upon receipt of such a response, the Developer shall promptly furnish to
the Agency such further information as may be reasonably requested.
603.2 Successors and Assigns. All of the terms, covenants and conditions of
this Agreement shall be binding upon the Developer and its permitted successors and assigns.
Whenever the term "Developer" is used in this Agreement, such term shall include any other
permitted successors and assigns as herein provided.
603.3 Assignment by Agency. The Agency may assign or transfer any of its
rights or obligations under this Agreement without the approval of the Developer.
604. Relationship Between Agency and Developer. It is hereby acknowledged that
the relationship between the Agency and the Developer is not that of a partnership or joint
venture and that the Agency and the Developer shall not he deemed or construed for any
purpose to be the agent of the other. Accordingly, except as expressly provided herein or in
the Attachments hereto, the Agency shall have no rights, powers, duties or obligations with
respect to the development, operation, maintenance or management of the Improvements.
605. Agency Approvals and Actions. The Agency shall maintain authority of this
Agreement and the authority to implement this Agreement through the Agency Director (or his
duly authorized representative). The Agency Director shall have the authority to make
approvals, issue interpretations, waive provisions, and/or enter into certain amendments of this
Agreement on behalf of the Agency so long as such actions do not materially or substantially
change the uses or development permitted on the Site, or add to the costs incurred or to be
incurred by the Agency as specified herein, and such approvals, interpretations, waivers and/or
amendments may include extensions of time to perform as specified in the Schedule of
Performance. All other material and/or substantive interpretations, waivers, or amendments
shall require the consideration, action and written consent of the Agency Board.
606. Counterparts. This Agreement may be signed in multiple counterparts which,
when signed by all parties, shall constitute a binding agreement. This Agreement is executed
in three (3) originals, each of which is deemed to he an original.
607. integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement, notwithstanding any
previous negotiations or agreements between the parties or their predecessors in interest with
respect to all or any part of the subject matter hereof. All prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged in this
Agreement and shall he of no further force or effect. Each party is entering this Agreement
based solely upon the representations set forth herein and upon each party's own independent
017.139951.4
-29-
,
,,
investigation of any and all facts such party deems material. This Agreement includes
Attachment Nos. 1 through 8, which are incorporated herein.
608. Real Estate Brokerage Conunission. The Agency and the Developer each
represent and warrant to the other that no broker or finder is entitled to any commission or
finder's fee in connection with the Developer's acquisition of the Site from the Agency. The
parties agree to defend and hold harmless the other party from any claim to any such
commission or fee from any other broker, agent or finder with respect to this Agreement which
is payable by such party.
609. Titles and Captions. Titles and captions are for convenience of reference only
and do not define, describe or limit the scope or the intent of this Agreement or of any of its
terms. Reference to section numbers are to sections in this Agreement, unless expressly stated
otherwise.
610. Interpretation. As used in this Agreement, masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to include the others where and
when the context so dictates. The word "including" shall be construed as if followed by the
words "without limitation." This Agreement shall be interpreted as though prepared jointly by
both parties.
611. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other covenants, agreements,
restrictions or conditions of this Agreement.
612. Modifications. Any alteration, change or modification of or to this Agreement,
in order to become effective, shall be made in writing and in each instance signed on behalf of
each party.
613. Severability. If any term, provision, condition or covenant of this Agreement
or its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
614. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and
including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day
is also excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and
6701 of the California Government Code. If any act is to be done by a particular time during a
day, that time shall be Pacific Time Zone time.
615. Legal Advice. Each party represents and warrants to the other the following:
they have carefully read this Agreement, and in signing this Agreement, they do so with full
01 7.139951.4
-30-
knowledge of any right which they may have; they have received independent legal advice
from their respective legal counsel as to the matters set forth in this Agreement, or have
knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement;
and, they have freely signed this Agreement without any reliance upon any agreement,
promise, statement or representation by or on behalf of the other party, or their respective
agents, employees, or attorneys, except as specifically set forth in this Agreement, and without
duress or coercion, whether economic or otherwise.
616. Time of Essence. Time is expressly made of the essence with respect to the
performance by the Agency, the Developer of each and every obligation and condition of this
Agreement.
617. Cooperation. Each party agrees to cooperate with the other in this transaction
and, in that regard, to sign any and all documents which may be reasonably necessary, helpful,
or appropriate to carry out the purposes and intent of this Agreement including, but not limited
to, releases or additional agreements.
618. Conflicts of Interest. No member, official or employee of the Agency shall
have any personal interest, direct or indirect, in this Agreement, nor shall any such member,
official or employee participate in any decision relating to the Agreement which affects his
personal interests or the interests of any corporation, partnership or association in which he is
directly or indirectly interested.
619. Time for Acceptance of Agreement by Agency. This Agreement, when
executed by the Developer and delivered to the Agency, must be authorized, executed and
delivered by the Agency on or before forty-five (45) days after signing and delivery of this
Agreement by the Developer or this Agreement shall be void, except to the extent that the
Developer shall consent in writing to a further extension of time for the authorization,
execution and delivery of this Agreement. iN WITNESS WHEREOF, the Agency and the
Developer have executed this Disposition and Development Agreement as of the date set forth
above.
AGENCY:
COMMUNITY DEVELOPMENT COMMISSION OF
THE OF THE CITY OF NATIONAL CiTY, a public
body, corporate and politic
By:
ATTEST:
George H. Waters, Chairman
017.1 39951.4
-3f-
A7
Agency Secretary
APPROVED S `I'O FQR
L:
di/c
Agency .unsel
DEVELOPER:
MICHAEL J. IJENNESSEY, an individual
By:
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RECORDING REQUESTED BY,
MAIL TAX STATEMENTS TO
AND WHEN RECORDED MAIL TO:
Michael J. Hennessey
Hennessey Group
17300 17`h Street, J-251
Tustin, CA 92780
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This document is exempt from payment of a recording fee
pursuant to Government Code Section 27383
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, The
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL
CITY, a public body, corporate and politic (the "Agency"), acting to carry out the
Redevelopment Plan ("Redevelopment Plan") for the National City Redevelopment
Project (the "Project"), under the Community Redevelopment Law of California, as of
July 31, 2001, hereby grants to HG - 8`h & Roosevelt, LLC, a limited liability company
("Developer"), the real property hereinafter referred to as the "Site," described in Exhibit
A attached hereto and incorporated herein, subject to the existing easements, restrictions
and covenants of record described there.
1. Reservation of Mineral Rights. Agency excepts and reserves from the
conveyance herein described all interest of the Agency in oil, gas, hydrocarbon
substances and minerals of every kind and character lying more than five hundred (500)
feet below the surface, together with the right to drill into, through, and to use and occupy
all parts of the Site lying more than five hundred (500) feet below the surface thereof for
any and all purposes incidental to the exploration for and production of oil, gas,
hydrocarbon substances or minerals from said Site or other lands, but without, however,
any right to use either the surface of the Site or any portion thereof within five hundred
(500) feet of the surface for any purpose or purposes whatsoever, or to use the Site in
such a manner as to create a disturbance to the use or enjoyment of the Site.
2. Conveyance in Accordance With Redevelopment Plan, Disposition
and Development Agreement. The Site is conveyed in accordance with and subject to
the Redevelopment Plan which was approved and adopted by Ordinance No. 95-2095 of
the City Council of the City of National City, and a Disposition and Development
Agreement entered into between Agency and Developer dated June 20, 2000 (the
"DDA"), a copy of which is on file with the Agency at its offices as a public record and
which is incorporated herein by reference. The DDA generally requires the Developer to
construct a combination gasoline station with a mini -market and a drive-thru fast food
restaurant on the Site (the " Improvements"), and other requirements as set forth therein.
All terms used herein shall have the same meaning as those used in the DDA.
3. Restrictions on Transfer. The Developer further agrees as follows:
(a) For the period commencing upon the date of this Grant Deed and
until the Agency's issuance of the Release of Construction Covenants as set forth in
Section 310 of the DDA, no voluntary or involuntary successor in interest of the
Developer shall acquire any rights or powers under the DDA or this Grant Deed, nor shall
the Developer make any total or partial sale, transfer, conveyance, assignment,
subdivision, without the prior written approval of the Agency pursuant to Section 603 of
the DDA.
(b) The Developer shall not place or suffer to be placed on the Site any
lien or encumbrance other than mortgages, deeds of trust, or any other form of
conveyance required for financing of the construction of the Improvements on the Site,
and any other expenditures necessary and or appropriate to develop the Site as provided
in Section 310.2 of the DDA..
(c) All of the terms, covenants and conditions of this Grant Deed shall
be binding upon the Developer and the permitted successors and assigns of the
Developer. Whenever the term "Developer" is used in this Grant Deed, such term shall
include any other successors and assigns as herein provided.
4. Nondiscrimination. The Developer herein covenants by and for itself, its
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, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land herein conveyed, nor shall the Developer itself or any person claiming under or
through Developer, 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.
The Developer shall refrain from restricting the rental, sale or lease of the Site on
the basis of race, color, religion, sex, marital status, ancestry or national origin of any
person. All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation 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,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee 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:
"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 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 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, national origin, or ancestry, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or
herself or any person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees
of the premises."
5. Agency Right of Reentry. The Agency has the right, at its election, to
reenter and take possession of the Site, with all improvements thereon, and terminate and
revest in the Agency the estate conveyed to the Developer if after the Closing and prior to
the issuance of the Release of Construction Covenants, the Developer (or its successors in
interest) shall:
a. fail to start the construction of the Improvements as required by the
DDA for a period of ninety (90) days after written notice thereof from the Agency; or
b. abandon or substantially suspend construction of the
Improvements required by the DDA for a period of sixty (60) days after written notice
thereof from the Agency; or
c. contrary to the provisions of Section 603 of the DDA transfer or
suffer any involuntary Transfer in violation of the DDA.
Such right to reenter, terminate and revest shall be subject to and be
limited by and shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by the DDA; or
2. Any rights or interests provided in the DDA for the protection of
the holders of such mortgages or deeds of trust.
3. Any rights or interests held by a lessee in and to the property.
Upon the revesting in the Agency of title to the Site as provided in this
Section 5, the Agency shall, pursuant to its responsibilities under state law, use its
reasonable efforts to resell the Site as soon and in such manner as the Agency shall find
feasible and consistent with the objectives of such law and of the Redevelopment Plan, as
it exists or may be amended, to a qualified and responsible party or parties (as determined
by the Agency) who will assume the obligation of making or completing the
Improvements, or such improvements in their stead as shall be satisfactory to the Agency
and in accordance with the uses specified for the Site or part thereof in the
Redevelopment Plan. Upon such resale of the Site, the net proceeds thereof after
repayment of any mortgage or deed of trust encumbering the Site which is permitted by
this Agreement, shall be applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of
the City, all costs and expenses incurred by the Agency, excluding City and Agency staff
costs, but specifically, including, but not limited to, any expenditures by the Agency or
the City in connection with the recapture, management and resale of the Site or part
thereof (but less any income derived by the Agency from the Site or part thereof in
connection with such management); all taxes, assessments and water or sewer charges
with respect to the Site or part thereof which the Developer has not paid (or, in the event
that Site is exempt from taxation or assessment of such charges during the period of
ownership thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or
charges as would have been payable if the Site were not so exempt); any payments made
or necessary to be made to discharge any encumbrances or liens existing on the Site or
part thereof at the time or revesting of title thereto in the Agency, or to discharge or
prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees; any
expenditures made or obligations incurred with respect to the making or completion of
the improvements or any part thereof on the Site, or part thereof; and any amounts
otherwise owing the Agency, and in the event additional proceeds are thereafter
available, then
ii. Second, to reimburse the Developer, its successor or transferee, up
to the amount equal to the sum of (a) the costs incurred for the acquisition and
development of the Site and for the improvements existing on the Site at the time of the
reentry and possession. Any balance remaining after such reimbursements shall be
retained by the Agency as its property. The rights established in this Section 6 are not
intended to be exclusive of any other right, power or remedy, but each and every such
right, power, and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy authorized herein or now or hereafter existing at law
or in equity. These rights are to be interpreted in light of the fact that the Agency will
have conveyed the Site to the Developer for redevelopment purposes.
6. Violations Do Not Impair Liens. No violation or breach of the
covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed
shall defeat or render invalid or in any way impair the lien or charge of any mortgage or
deed of trust or security interest permitted by paragraph 4 of this Grant Deed; provided,
however, that any subsequent owner of the Site shall be bound by such remaining
covenants, conditions, restrictions, limitations and provisions, whether such owner's title
was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
7. Covenants Run With Land. All covenants contained in this Grant Deed
shall be covenants running with the land. All of Developer's obligations hereunder
except as provided hereunder shall terminate and shall become null and void upon the
expiration of the Redevelopment Plan. Every covenant contained in this Grant Deed
against discrimination contained in paragraph 4 of this Grant Deed shall remain in effect
in perpetuity.
8. Covenants For Benefit of Agency. All covenants without regard to
technical classification or designation shall be binding for the benefit of the Agency, and
such covenants shall run in favor of the Agency for the entire period during which such
covenants shall be in force and effect, without regard to whether the Agency is or remains
an owner of any land or interest therein to which such covenants relate. The Agency, in
the event of any breach of any such covenants, shall have the right to exercise all the
rights and remedies and to maintain any actions at law or suits in equity or other proper
proceedings to enforce the curing of such breach.
9. Revisions to Grant Deed. Both Agency, its successors and assigns, and
Developer and the successors and assigns of Developer in and to all or any
part of the fee title to the Site shall have the right with the mutual consent
of the Agency to consent and agree to changes in, or to eliminate in whole
or in part, any of the covenants, easements or restrictions contained in this
Grant Deed without the consent of any tenant, lessee, easement holder,
licensee, mortgagee, trustee, beneficiary under a deed of trust or any other
person or entity having any interest less than a fee in the Site. However,
Developer and Agency are obligated to give written notice to and obtain
the consent of any first mortgagee prior to consent or agreement between
the parties concerning such changes to this Grant Deed. The covenants
contained in this Grant Deed, without regard to technical classification,
shall not benefit or be enforceable by any owner of any other real property
within or outside the Project Area, or any person or entity having any
interest in any other such realty. No amendment to the Redevelopment
Plan shall require the consent of the Developer.
10. Enforced Delay; Extension of Times of Performance. In addition to
specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in Default, and all performance and
other dates specified in this Agreement shall be extended, where delays or
Defaults are due to causes beyond the reasonable control or without the
fault of the party claiming an extension of time to perform, which may
include the following: war; insurrection; strikes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority; litigation; severe
weather; inability to secure necessary labor, materials or tools; delays of
any contractor, subcontractor or supplier; acts or omissions of the other
party; acts or failures to act of the City or any other public or
governmental agency or entity (other than the acts or failures to act of the
Agency which shall not excuse performance by the Agency).
Notwithstanding anything to the contrary in this Agreement, an extension
of time for any such cause shall be for the period of the enforced delay and
shall commence to run from the time of the commencement of the cause,
if notice by the party claiming such extension is sent to the other party
within thirty (30) days of the commencement of the cause. Times of
performance under this Agreement may also be extended in writing by the
mutual agreement of Agency and Developer. Notwithstanding any
provision of this Agreement to the contrary, the lack of funding to
complete the Improvements shall not constitute grounds of enforced delay
pursuant to this Section 10.
APPROVED AS TO FORM:
ar
George Eiser, CDC Attorney
AGENCY:
COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF
NATIONAL CITY, a public body, corporate
and politic
By:
George H. Waters, Chairman
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
Parcel 1, as shown on Parcel Map No. 18733, in the City of National City, County of San
Diego, State of California, according to the Map thereof, filed in the office of the County
Recorder of San Diego, June 21, 2001.
Assessor's Parcel No's: 555-054-03, 555-054-07, 555-054-08, 555-054-09, 555-054-10
& 555-054-11
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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crpe7sonally known to me - OR -.716ved to
NORMA P. URIAS
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SAN O4EGO COUNTY
My CCMAWSSION EXNRES DEC a. 2004
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me on the basis of satisfactory evidence to be the person*
whose namekaave subscribed to the within instrument
and acknowledged to me tha e1ehe1Shey executed the
same it he#414eir authorized capacity(iec), and that by
herftiwir signatures) on the instrument the person
or the entity upon behalf of which the persons) acted,
executed the instrument.
WITNESS my hand and official seal.
242Ac
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document .x ejzi
Q
Document Date: _ S' 2 c ci r3/
SignerN)ther Than Named Above:
Capacity(ies),Claimed by Signer(
Sig ner\Name:
L Individual
II Corporate Officer
Title(s):
1-1 Partner — U Limited i General
D. Attorney -in -Fact
U Trustee
Li Guardian or Conservator
4/Other: t t It
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Signer Is Representing:
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RIGHT THUMBPRINT
OF SIGNER
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Signer's Name:
Number of Pages:
U Individual
E.? Corporate Officer
Title(s):
Partner — LJ Limited i-7 General
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U Trustee
LI Guardian or Conservator
Li Other:
Signer Is Representing:
7
RIGHT THUMBPRINT
OF SIGNER
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0 1995 Natrona' Notary Associntinn • 8236 flerornet Ave., P.O. Box 7184 • Canoga Park. CA 91309-7184
Prod. No. 5907
Reorder. Call Top Free 1.800-876-6921
ATTACHMENT NO. 3
RECORDING REQUESTED BY, )
MAIL TAX STATEMENTS TO )
AND WHEN RECORDED MAIL TO: )
)
Michael J. Hennessey )
17581 Irvine Boulevard )
Suite 108 )
Tustin, CA 92780 )
This document is exempt from payment of a recording
fee pursuant to Government Code Section 27383
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, The
COMMUNITY DEVELOPMENT COMMISSION OF TIIE CITY OF NATIONAL CITY, a
public body, corporate and politic (the "Agency"), acting to carry out the Redevelopment Plan
("Redevelopment Plan") for the National City Redevelopment Project (the "Project"), under
the Community Redevelopment Law of California, as of , 2000, hereby
grants to MICHAEL J. HENNESSEY, an individual or assigns ("Developer"), the real
property hereinafter referred to as the "Site," described in Exhibit A attached hereto and
incorporated herein, subject to the existing casements, restrictions and covenants of record
described there.
1. Reservation of Mineral Rights. Agency excepts and reserves from the
conveyance herein described all interest of the Agency in oil, gas, hydrocarbon substances and
minerals of every kind and character lying more than five hundred (500) feet below the
surface, together with the right to drill into, through, and to use and occupy all parts of the Site
lying more than five hundred (500) feet below the surface thereof for any and all purposes
incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals
from said Site or other lands, but without, however, any right to use either the surface of the
Site or any portion thereof within five hundred (500) feet of the surface for any purpose or
purposes whatsoever, or to use the Site in such a manner as to create a disturbance to the use
or enjoyment of the Site.
2. Conveyance in Accordance With Redevelopment Plan, Disposition and
Development Agreement. The Site is conveyed in accordance with and subject to the
Redevelopment Plan which was approved and adopted by Ordinance No. 95-2095 of the City
Council of the City of National City, and a Disposition and Development Agreement entered
into between Agency and Developer dated , 2000 (the "DDA"), a
copy of which is on file with the Agency at its offices as a public record and which is
017.139951A
-35-
incorporated herein by reference. The DDA generally requires the Developer to construct a
combination gasoline station with a mini -market and a drive-thru fast food restaurant on the
Site (the " improvements"), and other requirements as set forth therein. All terms used herein
shall have the same meaning as those used in the DDA.
3. Restrictions on Transfer. The Developer further agrees as follows:
(a) For the period commencing upon the date of this Grant Deed and until
the Agency's issuance of the Release of Construction Covenants as set forth in Section 310 of
the DDA, no voluntary or involuntary successor in interest of the Developer shall acquire any
rights or powers under the DDA or this Grant Deed, nor shall the Developer make any total or
partial sale, transfer, conveyance, assignment, subdivision, without the prior written approval
of the Agency pursuant to Section 603 of the DDA.
(b) The Developer shall not place or suffer to be placed on the Site any lien
or encumbrance other than mortgages, deeds of trust, or any other form of conveyance
required for financing of the construction of the improvements on the Site, and any other
expenditures necessary and or appropriate to develop the Site as provided in Section 310.2 of
the DDA. .
(c) All of the terms, covenants and conditions of this Grant Deed shall be
binding upon the Developer and the permitted successors and assigns of the Developer.
Whenever the term "Developer" is used in this Grant Deed, such term shall include any other
successors and assigns as herein provided.
4. Nondiscrimination. The Developer herein covenants by and for itself, its
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, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the Developer itself or any person claiming under or through Developer,
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.
The Developer shall refrain from restricting the rental, sale or lease of the Site on the
basis of race, color, religion, sex, marital status, ancestry or national origin of any person.
All such deeds, leases or contracts shall contain or he subject to substantially the following
nondiscrimination or nonsegregation 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, national origin
or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
017.i399bi.4
-36-
land herein conveyed, nor shall the grantee 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:
"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 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 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, national origin, or ancestry, 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 ally such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises."
5. Agency Right of Reentry. The Agency has the right, at its election, to reenter
and take possession of the Site, with all improvements thereon, and terminate and revest in the
Agency the estate conveyed to the Developer if after the Closing and prior to the issuance of
the Release of Construction Covenants, the Developer (or its successors in interest) shall:
a. fail to start the construction of the Improvements as required by the
DDA for a period of ninety (90) days after written notice thereof from the Agency; or
b. abandon or substantially suspend construction of the Improvements
required by the DDA for a period of sixty (60) days after written notice thereof from the
Agency; or
c. contrary to the provisions of Section 603 of the DDA transfer or suffer
any involuntary Transfer in violation of the DDA.
017.139951.4
-37-
Such right to reenter, terminate and revest shall be subject to and be limited by
and shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by the DDA; or
2. Any rights or interests provided in the DDA for the protection of the
holders of such mortgages or deeds of trust.
3. Any rights or interests held by a lessee in and to the property.
Upon the revesting in the Agency of title to the Site as provided in this Section
5, the Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to
resell the Site as soon and in such manner as the Agency shall find feasible and consistent with
the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a
qualified and responsible party or parties (as determined by the Agency) who will assume the
obligation of making or completing the Improvements, or such improvements in their stead as
shall be satisfactory to the Agency and in accordance with the uses specified for the Site or part
thereof in the Redevelopment Plan. Upon such resale of the Site, the net proceeds thereof after
repayment of any mortgage or deed of trust encumbering the Site which is permitted by this
Agreement, shall he applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of the
City, all costs and expenses incurred by the Agency, excluding City and Agency staff costs,
but specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Site or part thereof (but less any
income derived by the Agency from the Site or part thereof in connection with such
management); all taxes, assessments and water or sewer charges with respect to the Site or part
thereof which the Developer has not paid (or, in the event that Site is exempt from taxation or
assessment of such charges during the period of ownership thereof by the Agency, an amount,
if paid, equal to such taxes, assessments, or charges as would have been payable if the Site
were not so exempt); any payments made or necessary to be made to discharge any
encumbrances or liens existing on the Site or part thereof at the time or revesting of title
thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or
transferees; any expenditures made or obligations incurred with respect to the making or
completion of the improvements or any part thereof on the Site, or part thereof; and any
amounts otherwise owing the Agency, and in the event additional proceeds are thereafter
available, then
ii. Second, to reimburse the Developer, its successor or transferee, up to
the amount equal to the sum of (a) the costs incurred for the acquisition and development of the
Site and for the improvements existing on the Site at the time of the reentry and possession.
Any balance remaining after such reimbursements shall be retained by the Agency as its
property. The rights established in this Section 6 are not intended to be exclusive of any other
right, power or remedy, but each and every such right, power, and remedy shall be cumulative
and concurrent and shall he in addition to any other right, power and remedy authorized herein
017.139951.4
-38-
4e-
or now or hereafter existing at law or in equity. These rights are to be interpreted in light of
the fact that the Agency will have conveyed the Site to the Developer for redevelopment
purposes.
6. Violations Do Not Impair Liens. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or
render invalid or in any way impair the lien or charge of any mortgage or deed of trust or
security interest permitted by paragraph 4 of this Grant Deed; provided, however, that any
subsequent owner of the Site shall be bound by such remaining covenants, conditions,
restrictions, limitations and provisions, whether such owner's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
7. Covenants Run With Land. All covenants contained in this Grant Deed shall
be covenants running with the land. All of Developer's obligations hereunder except as
provided hereunder shall terminate and shall become null and void upon the expiration of the
Redevelopment Plan. Every covenant contained in this Grant Deed against discrimination
contained in paragraph 4 of this Grant Deed shall remain in effect in perpetuity.
8. Covenants For Benefit of Agency. All covenants without regard to technical
classification or designation shall be binding for the benefit of the Agency, and such covenants
shall run in favor of the Agency for the entire period during which such covenants shall be in
force and effect, without regard to whether the Agency is or remains an owner of any land or
interest therein to which such covenants relate. The Agency, in the event of any breach of any
such covenants, shall have the right to exercise all the rights and remedies and to maintain any
actions at law or suits in equity or other proper proceedings to enforce the curing of such
breach.
017.139951.4
9. Revisions to Grant Deed. Both Agency, its successors and assigns, and
Developer and the successors and assigns of Developer in and to all or any part
of the fee title to the Site shall have the right with the mutual consent of the
Agency to consent and agree to changes in, or to eliminate in whole or in part,
any of the covenants, easements or restrictions contained in this Grant Deed
without the consent of any tenant, lessee, easement holder, licensee, mortgagee,
trustee, beneficiary under a deed of trust or any other person or entity having
any interest less than a fee in the Site. However, Developer and Agency are
obligated to give written notice to and obtain the consent of any first mortgagee
prior to consent or agreement between the parties concerning such changes to
this Grant Decd. The covenants contained in this Grant Deed, without regard to
technical classification, shall not benefit or be enforceable by any owner of any
other real property within or outside the Project Area, or any person or entity
having any interest in any other such realty. No amendment to the
Redevelopment Plan shall require the consent of the Developer.
10. Enforced Delay; Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by either party hereunder shall not
-39-
be deemed to be in Default, and all performance and other dates specified in this
Agreement shall be extended, where delays or Defaults are due to causes
beyond the reasonable control or without the fault of the party claiming an
extension of time to perform, which may include the following: war;
insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts
of God; acts of the public enemy; epidemics; quarantine restrictions; freight
embargoes; lack of transportation; governmental restrictions or priority;
litigation; severe weather; inability to secure necessary labor, materials or tools;
delays of any contractor, subcontractor or supplier; acts or omissions of the
other party; acts or failures to act of the City or any other public or
governmental agency or entity (other than the acts or failures to act of the
Agency which shall not excuse performance by the Agency). Notwithstanding
anything to the contrary in this Agreement, an extension of time for any such
cause shall he for the period of the enforced delay and shall commence to run
from the time of the commencement of the cause, if notice by the party claiming
such extension is sent to the other party within thirty (30) days of the
commencement of the cause. Times of performance under this Agreement may
also be extended in writing by the mutual agreement of Agency and Developer.
Notwithstanding any provision of this Agreement to the contrary, the lack of
funding to complete the Improvements shall not constitute grounds of enforced
delay pursuant to this Section 10.
ATTEST:
Secretary of the Agency
APPROVED AS TO FORM:
Agency Counsel
017.139951.4
AGENCY:
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY, a public
body, corporate and politic
By:
-40-
George II. Waters, Chairman
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ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
1. Consideration of Agreement by the Agency
Board. The Agency Board shall consider this
Agreement, and if approved, shall deliver one
executed copy thereof to the Developer.
2. Submission of Basic Concept Drawings.
Developer submits Basic Concept Drawings to
Agency.
3. Agency Approval or Disapproval of Basic
Concept Drawings. Agency shall review the
Basic Concept Drawings and approve or
disapprove same.
4. Submission of Site Plan and Other Entitlement
Applications for the Project. The Developer
shall prepare and submit to the City and
Agency a complete Site Plan application and
other entitlements necessary for the
development and operation of the
Improvements on the Site.
5. Review of Site Plan Application and Approval
or Disapproval Thereof. The Agency shall
cause the Planning Commission (or applicable
governmental entity) to consider and take
action to approve or disapprove the Site Plan
application, Site Plan Drawings, and other
entitlement applications.
6. Agency/City Council Review of Site Plan and
Approval or Disapproval Thereof. If required
the Agency and/or City Council shall consider
and approve or disapprove the Site Plan
application and Site Plan Drawings.
7. Submission of Construction Drawings.
Developer shall submit to the
Building/Engineering Department complete
Site Improvement and Construction Drawings.
01 7.1 39951 .4
-42-
Within fifteen (15) days after
delivery to the Agency of three (3)
executed copies of this Agreement.
Completed.
Completed
Completed
Within thirty (30) days of
submission of Site Plan
application.
Within thirty (30) days of approval
of Site Plan by the Planning
Commission .
Within sixty (60) days after
approval of Site Plan by the
Planning Commission and/or City
Council.
8. Building/Engineering Review of Complete
Site Improvement and Construction Drawings.
The Building/Engineering Department shall
approve or disapprove the complete Site
Improvement and Construction Drawings and
Street Improvement Plans (collectively
"Construction Drawings".)
Within thirty (30) days of
submission.
9. Revisions of Construction Drawings By the Within thirty (30) days after receipt
Developer. Developer shall prepare revised of Building/Engineering's
Construction Drawings as necessary, and comments.
resubmit them to the Building/Engineering
Department for review.
10. Final Review of Complete Construction
Drawings. The Building/Engineering
Department shall approve or disapprove the
revisions submitted by Developer provided
that the revisions necessary to accommodate
the Department's comments have been made.
11. Revisions of Construction Drawings by the
Developer. Developer shall prepare revised
Construction Drawings as necessary, and
resubmit them to the Building/Engineering
Department for review.
12. Final Review of Complete Construction
Drawings. The Building/Engineering
Department and shall approve or disapprove
the revisions submitted by the Developer, and
Developer shall be ready to obtain building
permits, provided that the revisions necessary
to accommodate the Department's comments
have been made.
Within ten (10) days after
submission.
Within twenty (20) days after
Building/ Engineering's approval
of Site Improvement Drawings.
Within fifteen (15) days after
submission.
13. Opening of Escrow. The Agency shall open Not later than June 30, 2000.
an Escrow with an Escrow Agent.
14. Conditions Precedent. Developer and Agency
shall satisfy (or waive) all of their respective
Conditions Precedent to Closing.
017.139951.4
-43-
Not later than October 2, 2000.
15. Close of Escrow for Conveyance. Agency Not later than November 23, 2000.
shall convey the Site to the Developer.
16. Commencement of Construction. Developer
shall commence construction of the
Improvements to be constructed on the Site.
17. Completion of Construction. Developer shall
complete construction of the Improvements.
18. Release of Construction Covenants. After the
completion of the construction of the
Improvements the Agency shall record the
Release of Construction Covenants
Within thirty (30) days of the
Closing.
Within two hundred (200) days of
the Commencement of
construction.
Within fifteen (15) days following
the issuance of an occupancy
permit.
114/-
017.139951.4
-44-
ATTACHMENT NO. 5
SCOPE OF DEVELOPMENT
I. GENERAL
This Scope of Development presents general requirements for all improvements to the
Site, including on -site and off -site public improvements (collectively, the "Improvements").
Detailed requirements and approval of specific construction plans and documents will be
addressed in the development review process.
II. DEVELOPMENT CONCEPT
The Developer shall develop the Site in accordance with the Site Plan attached hereto as
Exhibit 1 to Attachment No. 5 and incorporated herein, as it may be approved by the City and
the Agency. Developer shall construct: 1) a first quality gasoline station with a mini -market
and a drive-thru fast food restaurant and shall include the number of parking spaces as
established in the entitlement for the Property; 2) parking lot and driveway improvements on
the Site consisting of pavement, curbing, textured pavement, striping, gutters and sidewalks; 3)
high quality signage, including: a pole sign visible from the freeway, monument signs,
directional and traffic control signs; 4) landscaping, including, but not limited to: trees, shrubs,
ground cover, entry treatments, decorative paving, and decorative, security and parking lot
lighting.
Project Design
The attainable building area will be dependent upon a detailed Site Plan review process.
Developer agrees to incorporate the following standards into the project in accordance with the
National City Municipal Code: (1) a parking area which shall provide adequate parking for the
Site; (2) a screened trash enclosure area sufficient to serve the project; (2) points of ingress and
egress which comply with the requirements of the City's Traffic Engineer Division.
A. Site Description
The Site upon which development will occur is located on the northeast corner
of Eighth Street and Roosevelt. The Site consists of approximately 49,443 square feet.
B. Uses
The Developer shall devote the property to the uses specific in Section 401 of
the DDA.
Ill. ON -SITE DEVELOPMENT AND IMPROVEMENTS
The following Improvements shall be the sole financial responsibility of the Developer
and shall be completed in accordance with the Schedule of Performance.
-45-
017.139951.4
A. Project - The Developer shall construct a first quality gasoline station/ mini-
market/ drive-thru fast food restaurant (in one -phase) as well as all appurtenant vehicle
parking, common areas and Site amenities.
B. Site Preparation - Except as provided in Section 301 and 301.1 of the DDA, the
Developer shall be solely responsible for preparing the Site for construction, and shall ready
the Site for the construction of the Improvements. The Developer shall be responsible for the
removal of all known and/or discovered conduits, pipes, poles, concrete, asphalt and trash that
may appear upon grading the Site.
C. Easements - The Developer shall grant and permit all necessary and appropriate
utility easements and rights for the development of the Site, including but not limited to
sanitary sewers, storm drains, water, electrical power, telephone, natural gas, etc.
D. Off -Site Improvements - The Developer shall, at its sole expense, be responsible
for the construction of all off -site improvements pursuant to reasonable City / CDC Design
Standards.
IV. AGENCY RESPONSIBILITIES
The Agency and the City shall retain reasonable discretion of the Site Plan, including
all Conditions of Approval, and the entitlement for the Developer Improvements to be
processed for review by the City and the Agency.
The Agency shall secure, or cause to he secured and recorded, a Parcel Map .
V. DEVELOPMENT STANDARDS
All development on the Site shall be in accordance with the development standards
applicable to the Community Center Specific Plan as set forth in the Zoning Ordinance
contained in the National City Municipal Code and development standards contained in the
Redevelopment Plan.
A. Building Design
Goal: To develop an architecturally pleasing combination gasoline station/
mini -market/ drive-thru fast food restaurant.
1. All outdoor storage of materials or equipment shall be enclosed or
screened to the extent and in the manner required by and shown on the approved Site Plan.
2. Buildings shall be constructed such that the Developer Improvements arc
of high architectural quality, and shall be effectively and aesthetically designed.
B. Groundscapes
"ze.
017.1 39951.4
-46-
1. The Developer shall provide and maintain landscaping within the public
rights -of -way and within any setback areas along all street frontages, to conform with the Site
Plan as approved by the City and Agency.
2. Landscaping shall consist of trees, shrubs and installation of an automatic
irrigation system adequate to maintain such plant material. The type and size of trees to be
planted, together with a landscaping plan, shall be subject to City approval prior to any
planting.
VI. DESIGN STANDARDS
The Agency Director, or his designee, shall review and approve all plans prior to Site
Plan review to insure compliance with reasonable City / CDC Design Standards.
-47-
01 /.139951.4
EXHIBIT 1 TO ATTACHMENT NO. 5
SITE PLAN
ROOSEVELT AVE.
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(p I CONCEPTUAL ORE PLAN
.Mil • _ 1a41o02 - BLDO TYPE
B.
NATIONAL CITY, CAUFORNN
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ATTACHMENT NO. 6
RECORDING REQUESTED BY, )
MAIL TAX STATEMENTS TO )
AND WHEN RECORDED MAIL TO: )
)
Michael J. Hennessey )
17581 Irvine Boulevard )
Suite 108 )
Tustin, CA 92780 )
This document is exempt from payment of a recording
fee pursuant to Government Code Section 27383
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release") is made by
the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL
CITY, a public body, corporate and politic (the "Agency"), in favor of MICHAEL J.
HENNESSEY, an individual or assigns (the "Developer"), as of the date set forth below.
RECITALS
A. The Agency and the Developer have entered into that certain Disposition and
Development Agreement (the "DDA") dated , 2000 concerning the
redevelopment of certain real property situated in the City of National City, California as more
fully described in Exhibit "A" attached hereto and made a part hereof.
B. As referenced in Section 309 of the DDA, the Agency is required to furnish the
Developer or its successors with a Release of Construction Covenants upon completion of
construction of the Improvements (as defined in Section 100 of the DDA), which Release is
required to be in such form as to permit it to be recorded in the Recorder's office of San Diego
County. This Release is conclusive determination of satisfactory completion of the
construction and development required by the DDA.
C. The Agency has conclusively determined that such construction and
development has been satisfactorily completed.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The Improvements to be constructed by the Developer have been fully and
satisfactorily completed in conformance with the DDA. Any operating requirements and all
use, maintenance or nondiscrimination covenants contained in the DDA and other documents
017.139951.4
-49-
executed and recorded pursuant to the DDA shall remain in effect and enforceable according to
their terms.
2. Nothing contained in this instrument shall modify in any other way any other
provisions of the DDA.
IN WITNESS WHEREOF, the Agency has executed this Release this
day of 2000.
COMMUNITY DEVELOPMENT COMMISSION OF
TIIE CITY OF NATIONAL CITY, a public body,
corporate and politic
By:
George H. Waters, Chairman
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
Agency Counsel
APPROVED BY DEVELOPER:
MICIIAEL J. HENNESSEY, an individual
B
hael . Hennessey
017.139951.4
-50-
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A PORTION OF EP_K 57 MA. NO 346
NATIONAL CITY
eASLAND ENGINEERING
11,0101, 941.1 1 fr, • [MK. WIT
ATTACHMENT NO. 7
AGENCY ENVIRONMENTAL REPORTS
Agency Environmental Reports shall mean the reports listed herein, copies of which have been
provided to Developer, and the originals of which are on file at the office of the Community
Development Commission of the City of National City:
1. Phase I Environmental Site Assessment for Potential Hazardous Materials/Waste
Contamination at 704, 710, 712 Roosevelt Avenue, National City, California; Project No.
4940154-01; March 31, 1994; Leighton and Associates, Inc., 3934 Murphy Canyon Road,
Suite B205, San Diego, California 92123.
2. Letter Report of the Phase I Environmental Site Assessment for the Property Located at
139 West 8th Street, National City, California (Site); Project Number: 99E1789.8; May 5,
2000; Environmental Business Solutions, Inc., 8799 Balboa Avenue, Suite 290, San Diego,
California 92123.
017.139951.4
-52-
ATTACHMENT NO. 8
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
National City Community Development )
Commission )
140 E. 12th Street, Ste. B )
National City, CA 91950-3312 )
Attn: Benjamin Martinez, Project Manager )
This document is exempt from the payment of
a recording fee pursuant to Government Code
Section 27383.
COVENANT ATTACHED TO REAL PROPERTY
THIS COVENANT ATTACHED TO REAL PROPERTY (the "Covenant") is made by
MICHAEL J. HENNESSEY, an individual or assigns (the "Developer") in favor of the
COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a
public body, corporate and politic (the "Agency"), as of the date set forth below.
RECITALS
A. The Agency and the Developer have entered into that certain Disposition and
Development Agreement (the "DDA") dated , 2000 concerning the
redevelopment of certain real property situated in the City of National City, California as more
fully described in Exhibit A attached hereto and made a part hereof (the "Property").
B. The land comprising the Property described in Exhibit A was acquired by the
Developer from the Community Development Commission of the City of National City and
will be developed in furtherance of the Redevelopment Plan for the National City
Redevelopment Project adopted by Ordinance No. 95-2095 of the City Council of the City of
National City.
C. The Agency incurred substantial public expenses for property acquisition,
relocation, demolition, clearance, public improvements and financing costs in connection with
the assembly and preparation for development of the land comprising the Property.
D. In order to permit the Agency to recover all or part of the expenses incurred and
the fair market value of the property to be developed in accordance with the Plan, and to
participate in the values created in the property in order to pay for its redevelopment costs, the
Developer has agreed to pay a specific sum to the Agency from the proceeds of any sale or
encumbrances of all or any portion of the Property within five (5) years from the date of the
recording of this Covenant.
NOW, THEREFORE, Developer hereby covenants as follows:
1. Covenant to Pay Agency Upon Sale or Encumbrances. For the period
commencing upon the date the Covenant Attached to Real Property is recorded and until five
(5) years thereafter, the Developer shall not make any total or partial sale, transfer,
conveyance, assignment, or subdivision nor suffer to be placed on the property any lien or
017.139602.1
-1-
encumbrance other than mortgages, deeds of trust or any other form of conveyance required
for financing the construction of the improvements on the Site and any other expenditures
necessary and or appropriate to develop the Site pursuant to the DDA, except as provided in
Section 310.2 of the DDA. (Developer may, however, refinance at any time to obtain a more
favorable interest rate provided that no equity is withdrawn by Developer) without
concurrently making payment to the Agency in an amount not to exceed 75% of the proceeds
of said sale or refinancing above the actual Developer's verified cost as provided in this
Agreement. The Agency's share will not exceed the "Contingent Supplemental Price", equal
to $416,310 plus the consumer price index adjustment provided for herein. Both the
Developer's cost and the Agency's share may be adjusted to reflect cumulative changes in the
cost of living (using the Consumer Price Index for All Urban Consumers (CPI) U.S. City
Average, All Items) from the date of recording, or such other amount as the Agency may then
agree to accept in full or partial discharge of this obligation as Agency deems appropriate to
the terms of the proposed transaction.
2. Covenant to Run With the Land. This Covenant shall be a covenant running
with the land. All of Developer's obligations hereunder shall terminate and shall become null
and void upon the expiration of Five years from the date of recording of this Covenant.
3. Covenant for Benefit of Agency. This Covenant, without regard to technical
classification or designation, shall be binding for the benefit of the Agency, and such Covenant
shall run in favor of the Agency for the entire period during which such Covenant shall be in
force and effect, without regard to whether the Agency is or remains an owner of any land or
interest therein to which such Covenant relates. The Agency, in the event of any breach of
said Covenant, shall have the right to exercise all the rights and remedies and to maintain any
actions at law or suits in equity or other proper proceedings to enforce the curing of such
breach.
�_, IN WITNESS WHEREOF, the Developer has executed this Covenant, this
/ day of - Iv , 2000.
State of California
County of (I)
) ss.
DEVELOPER:
MICHAEL J. HE
By:
hael
SSEY, an individual
Subscribed and sworn to (or affirmed) before me on this t\ day of t‘,t
2,000 •
(Signature of Notary)
017.139602.1
-2-
DARLENE T. MAES
Commission # 1191219
Notary Public - California
Orange County
MyCarvn. E piesAug 14.2032