HomeMy WebLinkAboutContracts & Agreements_97-2004_CCv0001.pdf Recorded in Official Records,County of San Bernardino 7/28/2004
r= LARRY WALKER 11:00 AM
_ EM
Is%a.Batm—N!,; Auditor/Controller — Recorder
RECORDING REQUESTED BY
R Regular Mail
AND WHEN RECORDED MAIL TO: Doc#: 2004-05393$$ Titles: 1 Pages: 23
CITY CLERK Fees 0.00
CITY OF REDLANDS Taxes 0.00
P O BOX 3005 other 0.00
REDLANDS CA 92373 PAID Se.00
FEES NOT REQUIRED
PER GOVERNMENT CODE
SECTION 6103
DEVELOPMENT INCENTIVE AND CONSTRUCTION AND OPERATION COVENANT
AGREEMENT BY AND BETWEEN THE CITY OF REDLANDS AND TOM BELL INC.
This Agreement is made and entered into on this 6th day of July, 2004, by and between the
City of Redlands(the"City") and Tom Bell Inc.,a California corporation,doing business as Toyota
of Redlands(the"Developer"). For good and valuable consideration,the receipt of which is hereby
acknowledged,the City and the Developer agree as follows:
RECITALS
A. The Developer has proposed to acquire approximately eight(8)acres of real property
located in the City of Redlands,County of San Bernardino,State of California,which is depicted and
more particularly described in Exhibit"A,"which is attached hereto and incorporated herein by this
reference (the "Property"). The Developer intends to hold the Property itself or hold a majority
interest in a limited liability entity which holds the Property.
B. The City has found that it is of substantial benefit to the City and its citizens for(1)
the Property to be developed and operated by the Developer as a retail automobile dealership of not
less than forty eight thousand(48,000) square feet, and related parking improvements(all as more
fully described in the Scope of Development attached hereto as Exhibit"B" and incorporated herein
by reference),and in a"state of the art"manner as typically operated by new automobile dealerships
djm\agreelToyota Agreement.wpd 1
in California(the"Automobile Dealership"); and(2)the City to obtain a construction and operation
covenant from the Developer for the Property for the Automobile Dealership,and that these benefits
constitute valid public purposes for the City's entry into and execution of this Agreement.
C. In consideration for the Developer's agreement to be bound by the construction and
operation covenant described herein,the City has agreed to make certain payments to the Developer.
The City and the Developer agree that the amount of each City payment hereunder is a fair exchange
for the consideration actually furnished to the City by the Developer during each fiscal year of the
City in which such payment is made, that each City payment to be made hereunder has been
calculated so that it will not exceed the resources available to make the payment, and further that in
no event shall the City be immediately indebted to the Developer for the aggregate payments herein
provided.
D. Further,the purpose and intention of the City in making payments to the Developer
is to induce the Developer to construct, or cause to be constructed and operated, the Automobile
Dealership on the Property so as to further encourage development of the City, the enhancement,
well-being and safety of the citizens at large, the enhancement of local employment and the
expansion of the City's tax revenue base.
NOW,THEREFORE,in consideration ofthe mutual covenants hereinafter set forth,and for
such other good and valuable consideration,the receipt of which is hereby acknowledged, the City
of Redlands and Tom Bell Inc., doing business as Toyota of Redlands, agree as follows:
ARTICLE I
SUBJECT OF AGREEMENT
Section 1.01. Pun2ose of Agreement. The purpose of this Development Incentive and
Construction and Operation Covenant Agreement(this "Agreement")is to effectuate the economic
goals of the City by providing an incentive for the development of the Property and the construction
djmlaeree\Toyota Aareement.wpd 2
and operation of the Automobile Dealership thereon. The development of the Property by the
Developer pursuant to this Agreement, and the fulfillment generally of the requirements of this
Agreement, are in the vital and best interests of the City and the health, safety and welfare of the
City's residents, and are in accord with the provisions of applicable federal, state and local law.
Section 1.02 Prohibition against change in Ownership. Management and Control of
Developer or Assignment of Agreement.
A. The qualifications and identities ofthe persons and entities comprising the Developer
are of particular concern to the City. It is because of these unique qualifications and identities of the
Developer that the City has entered into this Agreement with the Developer. No voluntary or
involuntary successor-in-interest of the Developer shall acquire any rights or powers under this
Agreement, except as expressly set forth herein.
B. Except as otherwise provided in this Agreement, the Developer shall not assign all
or any part of this Agreement,prior to the issuance of a Certificate of Occupancy by the City for the
Automobile Dealership, without the prior written approval of the City which shall not be
unreasonably withheld.
C. The Developer may, subject to the prior written approval of the City, assign this
Agreement to a separate development ownership entity which would assume all of the obligations
of the Developer hereunder. Notwithstanding the foregoing, if the aforementioned separate
development ownership entity is a limited liability entity (such as, without limitation, a limited
partnership or limited liability company)in which the Developer owns a majority of the voting and
ownership interests, or a majority of the general partners' interests (an "Approved Assignee"), no
approval by the City shall be required for such assignment; provided, however, in the event of a
proposed transfer of any interest in such Approved Assignee whereby the Developer would cease
to own a majority of such shares of voting and ownership interests, or general partners' interests
(except as a result of transfer by inheritance), such transfer shall be deemed an assignment to which
djm\a-jee\Toyota Aorcement.wpd 3
the prior written approval of the City shall be required. For purposes of this Agreement, there shall
be considered to be no transfer and no prior written approval of the City shall be required in the
event any or all of the Developer's interests in the Approved Assignee are transferred to a revocable
trust of which Mr. Thomas O. Bell, as an individual, is sole trustee, provided such transferee trust
shall hold the interests subject to all of the provisions of this Agreement.
D. The Developer shall promptly notify the City in writing of any and all changes
whatsoever in the identity of the persons and/or entities either comprising, or in control of, the
Developer, as well as any and all changes in the interest or degree of the control of the Developer
by any such person and/or entity, of which the Developer or any of its members, officers or
shareholders has been notified or may otherwise have knowledge or information. This Agreement
may be terminated by the City if there is any significant or material change, whether voluntary or
involuntary, in membership, ownership, management or control of the Developer(other than such
changes occasioned by the death or incapacity of any individual) that has not been approved by the
City at the time of such change,prior to issuance of the Certificate of Occupancy for the Automobile
Dealership.
E. The Developer may, with prior written notice to the City, but without the City's
consent,assign this Agreement to a subsidiary of the Developer or to an entity with which the parent
or subsidiary of the Developer may merge or consolidate.
ARTICLE II
DEVELOPMENT OF THE PROPERTY
Section 2.01. Development by Developer.
A. The Automobile Dealership shall be developed and completed in conformance with
the Scope of Development, and any and all other plans, specifications and similar development
documents required by this Agreement, except for such changes as may mutually be agreed upon in
djmtagreffayota Agreemenovpd 4
writing by and between the Developer and the City. Not withstanding the foregoing,the Developer
acknowledges and agrees that certain entitlements and permits,pursuant to the City's General Plan,
Municipal Code and other laws,may need to be obtained by the Developer for construction of the
Automobile Dealership, and that the City shall be under no obligation whatsoever to authorize or
approve any such entitlements or permits despite the City's entry into and execution of this
Agreement.
B. The approval ofthe Scope of Development by the Cityliereunder shall notbebinding
upon the City Council or the Planning Commission of the City, or with respect to any approvals of
the Automobile Dealership required by other governmental agencies. If any revisions of the Scope
of Development shall be required by another government agency or department having jurisdiction
over the development of the Property,the Developer and the City shall,to the extent consistent with
law, cooperate in efforts to obtain waivers of such revisions, or to obtain approvals of any such
revisions which have been made by the Developer and have thereafter been approved by the City.
The City shall not unreasonably withhold approval of such revisions.
C. Notwithstanding any provision to the contrary in this Agreement,the Developer shall
accept and comply fully with any and all reasonable conditions of approval applicable to all permits
and other goverinnental actions affecting the Automobile Dealership which are consistent with this
Agreement.
D. The Developer shall prepare and submit development plans, construction drawings
and related documents for the development of the Property, consistent with the Scope of the
Development, to the City for review (including, but not limited to, architectural review of the
exterior of the structures). The development plans, construction drawings and related documents
shall be submitted in two stages--preliminary and final drawings(i.e.working drawings),plans and
specifications. Final drawings,plans and specifications are hereby defined as those which contain
sufficient detail necessary to obtain a building permit from the City.
djrntagree\7oyota Agreeuunt.wpd 5
E. During the preparation of all drawings and plans for the Automobile Dealership,the
City's staff and the Developer shall hold regular progress meetings to coordinate the preparation by
the Developer, and the submission to and review by the City, of construction plans and related
documents. The City staff and the Developer shall communicate and consult informally as
frequently as is necessary to ensure that any such plans and related documents submitted by the
Developer to the City can receive prompt and speedy consideration.
F. The City shall in good faith use its best efforts to approve in a timely manner any and
all plans,drawings and documents submitted by the Developer hereunder which are consistent with
this Agreement.
G. The cost of developing the Property and of constructing the Automobile Dealership,
including all improvements thereon and adjacent thereto, as set forth in the Scope of Development
shall be borne by the Developer.
H. The Developer shall, at its sole expense, cause to be prepared, and shall pay all fees
pertaining to the review and approval of the Automobile Dealership by the City, all required
construction, planning and other documents reasonably required by the City pertinent to the
development of the Property, including,but not limited to, specifications, drawings,plans, maps,
permit applications, land use applications, zoning applications and design review documents.
1. The Developer shall begin and complete all construction and development and
undertake all obligations and responsibilities of the Developer within the time specified in the
Schedule of Performance shown in Exhibit"C," which is attached hereto and incorporated herein
by this reference,or within such reasonable extensions of such times as may be granted by the City.
The Schedule of Performance shall be subject to revision from time to time as mutually agreed upon
in writing by and between the Developer and the City. Any and all deadlines for performance by the
parties shall be extended for any times attributable to delays which are not the fault of the performing
party,other than periods for review and approval or reasonable disapprovals of plans,drawings and
d}m\agree\Toyota Agreement.wpd 6
related documents, specifications or obligations for permits as provided in this Agreement.
ARTICLE III
CONSTRUCTION AND OPERATING COVENANT
Section 3.01. Covenant.
A. Provided the regulations imposed on such construction by the City or any other
governmental entity are commercially reasonable(as determined by the Developer in its sole and
absolute discretion), and subject to events of force majeure as defined in Section 5.07 hereof, the
Developer shall use its good faith and commercially reasonable efforts to complete, or cause the
completion of, the construction of the Automobile Dealership on the Property within eighteen(18)
months following the Developer's acquisition of the Property, in accordance with Exhibits"B" and
"C"hereof,and the Developer shall operate the Automobile Dealership for a period of ten(10)years.
B. During the operation of the Automobile Dealership the Developer shall keep and
maintain the Property, and all the improvements thereon and all facilities appurtenant thereto, in a
clean,sanitary and orderly condition free from debris,graffiti and waste materials and in good order,
repair.and safe condition consistent with comparable retail automobile dealership operations located
in California. In addition, the Developer shall observe and comply with all Governmental
Requirements,as that term is defined in Section 5.01 hereof;provided,however,that the Developer
does not waive its right to challenge the validity or applicability of any such Governmental
Requirements.
C. The foregoing two subparagraphs of this Section 3.01 are hereinafter collectively
referred to in this Agreement as the "Covenant."
Section 3.02. Consideration. In consideration for the Developer's agreement to be bound
by the Covenant,the City shall pay to the Developer, in the manner provided in subparagraph"A"
djnM-,,ree\Toyota Agrecmentmpd 7
hereof, amounts equal to the following percentages of the Sales Tax Revenues received by the City
in each of the City's fiscal years as a direct result of the Developer's operation of the Automobile
Dealership for the period commencing upon the first "July 1 st" date after the City's issuance of a
Certificate of Occupancy for the Automobile Dealership and continuing for ten of the City's fiscal
years thereafter:
Year 1 ten percent(10%) of the amount of Sales Tax Revenue received by the City
in excess of$ 225,549.00.
Years 2-4 seventy-five percent(75%)of the amount of Sales Tax Revenue received by
the City in excess of$ 225,549.00.
Years 5-7 fifty percent(50%)of the amount of Sales Tax Revenue received by the City
in excess of$ 225,549.00.
Years 8.10 twenty five percent(25%)of the amount of Sales Tax Revenue received by
the City in excess of$ 225,549.00.
The City shall have no obligation to make any payment to the Developer for any fiscal year in which
the amount of Sales Tax Revenues received by the City as a direct result of the Developer's operation
of the Automobile Dealership is less than or equal to $225,549.00.
"Sales Tax Revenues" shall mean that portion of taxes derived and received by the City and legally
available for unrestricted use by the City's general fund from the imposition of the Bradley Burns
Uniform Local Sales and Use Tax Law, commencing with Section 7200 of the California Revenue
and Taxation Code,as amended,arising from all businesses conducted on the Property in accordance
herewith from time to time, which are subject to such Sales and Use Tax Law. The amounts due
hereunder shall be payable from any source of funds legally available to the City. The determination
of the source of funds for the City's payments shall be in the sole and absolute discretion of the City.
The Developer acknowledges that the City is not making a pledge of Sales Tax Revenues, or any
other particular source of funds;the definition of Sales Tax Revenues,as used herein,is used merely
as a measure of the amount of payment due hereunder and as a means of computing the City's
payment in consideration for the Covenant. It is acknowledged that the City's obligation to make
dj"fiagree\Toyota Agreement.wpd 8
the payments provided herein is specifically contingent upon receipt by the City of Sales Tax
Revenues derived from operation of the Automobile Dealership. The City shall not be obligated to
make any payments hereunder if Sales Tax Revenues are not received by the City which are derived
from operations of the Automobile Dealership. Further, in no event shall the amount of payments
hereunder exceed the amount of Sales Tax Revenues derived from such source in the fiscal year in
which such payment is to be made.
A. The City's payments to the Developer hereunder shall be made semi-annually,on or
before February 1st and August 1st of each year during the payment period described herein. The
amount of the payment due on each payment date shall be based upon the total Sales Tax Revenues
received by the City (less any State Board of Equalization adjustments that would have modified
previous payments to the Developer)during the applicable preceding semi-annual period(for sales
occurring during the months of April through September-February 1 st payment and for the months
of October through March-August 1 st payment)as confirmed by the report provided to the City by
the State Board of Equalization and the sales tax returns filed by the Developer for the Automobile
Dealership. The Developer, in its behalf and in behalf of its successors-in-interest, hereby waives
its right to protect against disclosure of the information contained in its sales tax returns(to comply
with the terms of this Agreement)and further authorizes the release of such information by the City
to the extent necessary to comply with the terms of this Agreement.
B. It is acknowledged and agreed to by the City and the Developer that any payments
by the City shall be made only for those periods in which the Developer is in compliance with the
Covenant described herein. Therefore,the failure of the City to make any payments required by this
Agreement because of any default by the Developer in complying with the Covenant shall not cause
the acceleration of any future payments by the City to the Developer beyond the date of such default.
Section 3.43. Conditions Precedent.
A. The obligation of the Developer to construct and operate the Automobile Dealership
djm\agree\Toyota Agreenxnt.wpd 9
is contingent upon satisfaction or written waiver by the Developer of each of the following:
1. The Developer is satisfied, in its sole and absolute discretion, with the
condition of title to the Property, the suitability of the Property for the development of the
Automobile Dealership,and with all other aspects ofthe Property and the Developer's contemplated
use thereof.
2. The Developer has acquired the Property.
3. The Developer has secured approval from the City of all plans and
specifications for the proposed construction of the Automobile Dealership and has been issued a
building permit for the Automobile Dealership.
4. There is no litigation challenging the validity of any provision of this
Agreement or that may have a material adverse effect on the Property, the Developer's intended
development or use thereof,or the City's payment obligations hereunder.
B. The obligation of the City to make payments to the Developer is contingent upon
satisfaction or written waiver by the City of each of the following:
1. The Developer has acquired title to the Property.
2. The Developer has secured approval from the City of all plans and
specifications for the proposed construction ofthe Automobile Dealership and has paid all necessary
fees to entitle the Developer to the issuance of a building permit for the Automobile Dealership.
3. The Developer has performed and complied in all material respects,with all
agreements and covenants required by this Agreement to be performed or complied with by it within
the time periods required hereunder.
djm'%grce\Toyotu Agrcemenimpd 10
4. There is no litigation challenging this Agreement or the implementation hereof
as to which the Developer is not providing a defense and indemnity in accordance with Section 5.05
hereof.
ARTICLE IV
DEFAULTS AND REMEDIES
Section 4.01. Default. The occurrence of any or all of the following shall constitute a
default ("Default") under this Agreement.
1. The Developer's material Default, as hereinafter defined, of the Covenant.
2. The City's material Default, as hereinafter defined, of Section 3.02 hereof.
3. The filing of a petition in bankruptcy by or against the Developer or appointment of
the receiver or trustee for the Developer, or an assignment by the Developer for the benefit of
creditors,or any adjudication that the Developer is insolvent by a court,and failure of the Developer
to cause such petition,appointment or assignment to be removed or discharged within sixty(60)days
from the date of such adjudication.
Section 4.02. Cure. In the event of any Default under the terms of this Agreement, the
nondefaulting party shall give written notice to the defaulting party. The defaulting party shall
commence and diligently thereafter pursue the curing of the Default within thirty (30) days after
receipt of notice of such Default;provided,however,if such a cure cannot reasonably be completed
within such thirty(30)day period,such failure shall not be a Default so long as such party promptly
commences a cure within the thirty(30)day period and thereafter diligently prosecutes such cure to
completion.
Section 4.03. Remedies. Failure to cure, as specified above, shall be a Default hereunder.
Nothing herein is intended to limit or restrict whatever specific performance or other equitable
remedies either party may have in accordance with applicable law; provided, however, that
djtn\agrce\Toyota Agrecnxut.wpd 11
notwithstanding any other provision ofthis Agreement,the City shall not have the remedy of specific
performance to enforce the Developer's Default of the Covenant, or any portion thereof
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.01. Compliance With Governmental Requirements. The Developer shall carry
out the design, construction and operation of the Automobile Dealership in substantial conformity
with all applicable laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the
United States,the State of California,the County of San Bernardino,the City and any other political
subdivision in which the Property is located, and of any other political subdivision, agency or
instrumentality exercising jurisdiction over the City, the Developer or the Property, including all
applicable federal, state and local occupation, safety and health laws, rules, regulations and
standards, applicable state and labor standards, applicable prevailing wage requirements,
development standards (as they apply to the Automobile Dealership); building, plumbing,
mechanical and electrical codes, as they apply to the Property and the Automobile Dealership, and
all other provisions of the City (as they apply to the Automobile Dealership), and all applicable
disabled and handicapped access requirements, including, without the limitation, the Americans
With Disabilities Act, (42 U.S.C.§ 12101 et sed.) and the Unruh Civil Rights Act, Civil Code
Section 51 et sect. ("Governmental Requirements"). The Developer hereby expressly waives and
releases any and all rights it may have now, or in the future,to recover any costs or damages from
the City pursuant to California Labor Code section 1781 in the event that any governmental authority
or any court classifies the construction of the Automobile Dealership, or any related improvements
made to the Property by Developer, a"public work" as defined in Chapter 1 of Part 7 of Division 2
of the California Labor Code. The Developer makes this express waiver with full knowledge of
California Civil Code section 1542 and hereby waives any and all rights thereunder to the extent of
this waiver and release if such Civil Code section 1542 is applicable. Civil Code section 1542
provides as follows:
"A general release does not extend to claims which the creditor does not know or
djan\agree\Toyota Agreement.wpd 12
suspect to exist in his favor at the time of executing the release,which if known by
him must have materially affected his settlement with the debtor."
Nothing in this Section 5.00 shall be construed to require the Developer to comply with any laws,
regulations or standards which would not be applicable in the absence of this Agreement.
Section 5.02. Notices. All notices under this Agreement shall be given in writing by
personal delivery,by certified mail or registered United States Mail,return receipt requested,postage
prepaid, or by facsimile and shall be deemed communicated when received if given by personal
delivery or upon receipt or rejection if mailed as provided above or upon receipt by facsimile on a
business day during business hours in the location where received, and if not then on the next
business day, as the case may be. Mailed notices shall be addressed as set forth below, but either,
party may change its address by giving written notice thereof to the other in accordance with the
provision of this paragraph.
CITY: DEVELOPER:
City Manager Thomas O. Bell
City of Redlands dba: Toyota of Redlands
P.O. Box 3005 1139 West Redlands Blvd.
Redlands CA 92373 Redlands, CA 92373
Section 5.03. Entire Agreement. This Agreement constitutes the entire agreement between
the City and the Developer concerning the subject matter hereof,and supersedes all prior agreements
and understandings whether written or verbal. This Agreement may not be modified or amended
except in a writing signed by the parties hereto.
Section 5.04. Attorneys'Fees. In the event any action is commenced to enforce or interpret
any term or condition of this Agreement the prevailing party in such action,in addition to any costs
and other relief, shall be entitled to recover its reasonable attorneys'fees (including reasonable in-
house counsel fees of the City at the rate of$250 per hour).
dji0agrcc\Toyo1a AgTeement.wpd 13
Section 5.05. Indemnitv. The Developer shall defend (with counsel of the Developer's
choosing),indemnify and hold harmless the City,its elected officials,officers,employees and agents
from and against (i) any and all third party claims, losses, proceedings, damages,causes of action,
liability,costs and expenses(including reasonable attorneys'fees)arising from or in connection with
or caused by any act, omission or negligence of the Developer and its contractors, agents and
employees in connection with the construction of the Automobile Dealership (other than to the
extent arising as a result ofthe City's negligence or willful misconduct);(ii)any action or proceeding
brought by any third party challenging the validity of any provision of, or the entirety of, this
Agreement; and (iii) any action commenced by a third party challenging the construction or
operation of the Automobile Dealership on the grounds that any permit, license or grant of
entitlement to develop the Automobile Dealership should not have been issued or was issued without
proper authority or adequate findings. The City shall fully cooperate in the defense of any such
actions and shall provide to the Developer such documents and records as are relevant to such
actions.
Section 5.06. Police Power. Nothing contained in this Agreement shall be deemed to limit,
restrict, amend or modify, or to constitute a waiver or release of, any ordinances, notices, orders,
rules,regulations or requirements(now or hereafter enacted or adopted and/or as amended from time
to time)ofthe City or its departments,commissions,agencies and boards and the officers of the City,
including without limitation, any general plan or zoning ordinances, or any of the City's duties,
obligations,rights or remedies thereunder or pursuant thereto or the general policy powers,rights,
privileges and discretion of the City in the furtherance of the public health,welfare and safety ofthe
inhabitants of the City;provided,however,that the City agrees not to take any action to frustrate or
hinder the intent or effect of this Agreement.
Section 5.07. Force Ma'eure. Time for performance hereunder shall be extended by any
period of delay caused by circumstances beyond the reasonable control of the party claiming the
delay despite the party's diligent efforts,other than financial ability,provided the party claiming the
delay provides written notice to the other party within a reasonable period following commencement
djmNa;rce\Toyota Agrcementmpd 14
of any such circumstances which circumstances shall include,without limitation,fire/casualty losses;
strikes;litigation; unusually severe weather;inability to secure necessary labor,materials,or tools;
environmental remediation; including governmental review and processing of environmental
remediation;delays of any contractor,subcontractor or supplier;delay caused by the other party,and
acts of God (collectively, "Force Majeure").
Section 5.08. Interpretation. In this Agreement the neuter gender includes the feminine and
masculine,and the singular number includes the plural,and the words"person"and"party"include
corporation,partnership,firm,trust or association where the context so requires. The parties agree
that each party and its counsel have reviewed this Agreement and that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not apply in the
interpretation of this Agreement or any amendments or exhibits to this Agreement.
Section 5.09. Time of the Essence. Time is of the essence of this Agreement and the parties'
obligations under this Agreement.
Section 5.10. Authority to Execute. The person or persons executing this Agreement in
behalf of the Developer warrant and represent that they have the authority to execute this Agreement
in behalf of its corporation,partnership or business entity and warrant and represent that they have
the authority to bind the Developer to the performance of its obligations hereunder.
Section 5.11. Release of City Officials. No elected official, officer, employee or agent of
the City shall be personally liable to the Developer, or any successors-in-interest of the Developer,
in the event of any default or breach by 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. The Developer
hereby waives and releases any claim it may have against the elected officials, officers,employees
and agents of the City with respect to any default or breach by the City or for any amount which may
be come due to the Developer or its successors, or on any obligations under the terms of this
Agreement. The Developer makes such release with full knowledge of California Civil Code section
djnAagreelToyota Agreentent.wpd 15
1542,and hereby waives any and all rights thereunder to the extent ofthis release,if such Civil Code
section 1542 is applicable. Civil Code section 1542 provides as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor."
Section 5.12. Headings. The headings to the sections of this Agreement have been inserted
for convenience only and shall not, to any extent, have the effect of modifying, amending or
changing the expressed terms and provisions of this Agreement.
Section 5.13. Venue. In the event of any litigation under this Agreement, all such actions
shall be instituted in the Superior Court of the County of San Bernardino, State of California,in an
appropriate municipal court in the County of San Bernardino, State of California, or.
Section 5.14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
Section 5.15. Successors and Assigns. The provisions of this Agreement shall be binding
upon,and inure to the benefit of,the City and the Developer and their successors and assigns as the
case or context may require.
Section 5.16. No Joint Venture. Nothing contained in this Agreement shall be construed to
render the City in any way, or for any purpose, a partner, joint venturer, or associated in any
relationship with the Developer, nor shall this Agreement be construed to authorize any party to act
as an agent for the other.
Section 5.17, No Third Party Beneficiaries. No provision, term or condition of this
Agreement is intended to,nor shall be construed as conferring any benefit to, any third party,person
djm\ab,,rcc\Toyota Agrecnicnt.wpd 16
or entity.
Section 5.18. Notice of Acquisition and Recordation. Within ten (10) days after the
Developer's acquisition of title to the Property,the Developer shall provide written notice to the City
Clerk of the City. This Agreement and any amendment hereto shall, within ten (10) days of the
Developer's acquisition of title to the Property,be recorded in the Official Records of the County of
San Bernardino by the City Clerk for the City.
Section 5.19. Waiver. The waiver by the City or the Developer of any breach by the other
party of any term, covenant or condition contained in this Agreement shall not be deemed to be a
waiver of such term,covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. Any party's acceptance of any performance by the other
party after the due date of such performance shall not be deemed to be a waiver by any parry or any
preceding breach by the other party of any term,covenant or condition of this Agreement,regardless
of such party's knowledge of such preceding breach at the time of acceptance of such performance.
Section 5.20. Counterparts. This Agreement maybe executed and acknowledged in multiple
counterparts each of which shall be deemed an original, but all of which shall constitute one
Agreement,binding on the parties hereto.
djm\agrec\Toyota Agrcement.wpd 17
IN WITNESS WHEREOF,the parties have executed this Agreement as of the date and year
first written above.
CITY OF REDLANDS TOM BELL INC., dba TOYOTA OF
REDLANDS
ay
By: '
ATTEST: Thomas O. Bell
Title: ort
C;ty lerk
...: MARGARET E.ANDRADE
COMM.#1387812 n
X ' °¢'_ NOTARY PUBLIC-CALIFORNIA A
U SAN BERNARDINO COUNTY
My COMm.Exp.Nov.28.2006
djmWgree Tovota Agrement.wpd 18
ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO ) SS
CITY OF REDLANDS )
By the authority granted under Chapter 4, Article 3, Section 1181, of the California Civil Code,
and Chapter 2, Division 3, Section 40814, of the California Government Code, on July 22, 2004,
before me, Beatrice Sanchez, Deputy City Clerk, on behalf of Lorrie Poyzer, City Clerk of the
City of Redlands, California, personally appeared Susan Peppler and Lorrie Poyzer
{ X} personally known to me - or - } proved to me on the basis of satisfactory evidence to
be the persons whose names) are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacities and that by their signatures on the instrument
the persons, or the entity upon behalf of which the persons acted, executed the instrument.
\`001111111011�� WITNESS my hand and official seal.
\N\\N�
LORRIE POYZER, CITY CLERK
C� : GoaFaayr N y
i
* 1888 :
By:
'••••••'''•� . �.�` Beatrice Sanchez, eputy City Clerkof
v0'.
(909)798-7531
CAPACITY CLAIMED BY SIGNER(S)
{ } Individual(s) signing for oneself/themselves
} Corporate Officer(s)
Title(s)
Company
{ }
Partner(s)
Partnership
{ } Attorney-In-Fact
Principal(s)
}
Trustee(s)
Trust
€ x } Other
Title(s): Mayor and City Clerk
Entity Represented: City of Redlands, a municipal corporation
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
Title or Type of Document: Development Incentive and Construction and Operation Covenant...
Date of Document: July 5, 2004
Signer(s) Other Than Named Above: Thomas 0. Bell
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of S
On before me, {Wlvt � &ritJ[7�Edo �
r� Dare // Name and Title of Officer(e.g..'Jane Doe,Notary Public 1
personally appeared T/7/22?AS �`t 13�Z.0
Narne(s)of Signer(s)
r5;, Iii personally known to me
Z' 0 proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s)on the instrument the person(s), or
the entity upon behalf of which the person(s) 2,
acted, executed the instrument. 5
NMRCtr;HE E.ANDRADE ?�
v, UOfu M #1387812 O ?�
�S tx •;" '`_ NOTARY PUBLIC GALIFOANIA WIT S my hand and official seal.
SAN BERNARDINO COUNTY ;5
My Comm.Exp.Nov.28,2006 k
S;- Signature o1 Notary Public
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
r�
Zhh; Title or Type of Document:
Document Date: Number of Pages:
Signer(s)Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
To
0 Individual a of thumb here
Ct Corporate Officer—Title(s):
01 Partner—El Limited r'General
El Attorney-in-Fact
0 Trustee
El Guardian or Conservator
r5 ❑ Other:
r: Signer Is Representing:
a 1999 National Notary ASSOCrabOn-9350 De Soto Ave.,P.O.Box 2402•Chatswarth.CA 91313.2402•www,nationainotaryorg Prod.No.5907 Reorder.Call Toll-Free 1.800.876.6827
EXHIBIT 'A-l '
1
NEW YORK STREET N£WY�IRKSTREET
.. , 7 T
x
iter
S. AG �t 4�{'I..LSFI
SIGN
}r SIGN
MGNL! 4SIGN
Qq,
}rfr� PARCEL°A"
BAC
W
LACK'-l-.--T]HE-8O
N ¢ I=xISnNc paraCEs.re°
raMI7 - r 14A AC
J
�. GARDEN �rrtiyrt�'l �
� y
CENTER
EXISTING
r��4trFtttrztt�rs.. /'
€sA5 ST7rn4N
MONUMENT �Eh1�£S
SIG 4�AVEM
T£
0 100 200 400
GAS. : 1 200`-0"
EXHIBIT "B"
City of Redlands
RE: Scope of Development- Toyota of Redlands
With the approval and guidance of Toyota Motor Sales,Toyota of Redlands plans to build a
minimum 48,000 square feet, state of the art facility.
This building will consist of a minimum 36 stall Service department, Parts department,New Car
showroom, Business Office, Sales offices, Financial Services offices, and Executive offices all
enclosed in one building.
This building shall also house the Scion of Redlands Franchise.
Parking for this facility shall consist of at least if not more than the following:
500 parking stalls for display of New and Used Vehicles
100 parking stalls for employees
200 parking stalls for Service department vehicles
75 parking stalls for Customer Parking
***Number of parking stalls is estimated and are subject to change per Toyota Motor Sales
specifications
EXHIBIT"C"
City of Redlands
RE: SCHEDULE OF PERFORMANCE
July 6'h- City Council Meeting - Incentive Agreement
Toyota of Redlands is currently beginning to open escrow on the 8 acres specified in Exhibit A.
After full approval from financing sources and agreements are met between the land owner and
Toyota of Redlands, the scheduled date for closure of escrow is planned to be October 1 2004.
Toyota of Redlands anticipates that after closure of escrow, it can go to the City for approval
procedures thus allowing us to begin breaking ground by January 2005.
Considering that construction and approval procedures are smooth, Toyota of Redlands and Scion
of Redlands anticipates Occupancy no later than August 12006