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HomeMy WebLinkAboutContracts & Agreements_199-2004_CCv0001.pdf Recorded in Official Records. County of San Bernardino 12/2712004 -- LARRY WALKER3:08 PM LM Auditor/Controller — Recorder RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: � R Regular Mail CITY CLERK Doc#: 2004—0950871 Titles: 1 Pages: 23 CITY OF REDLANDS I P O BOX 3005 Fees 0.00 Taxes 0.00 REDLANDS CA 92373 Other 0.00 PAID $0.00 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 21'day ofDecember, 2004,by and between the City of Redlands(the "City")and Dick Deweese Chevrolet Inc., a California corporation, doing business as Tom Bell Chevrolet(the "Developer"). For good and valuable consideration,the receipt of which is hereby acknowledged, the City and the Developer agree as follows: REC_ A. The Developer has proposed to acquire approximately 10 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, 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 in California (the "Automobile Dealership"),- and dlmkWee'Ehevv_T ax Incentive Agreement-wpd 1 (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 oflocal employment and the expansion of the City's tax revenue base. NOW, THEREFORE, in consideration of the 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 Dick Deweese Chevrolet Inc., doing business as Tom Bell Chevrolet, agree as follows: ARTICLE I SUBJECT OF AGREEMENT Section 1.01. Purpose of Agreement. The purpose of this Development Incentive and Construction and Operation Covenant Agreement(this "Agreement")is to effectuate the economic crn�age6t7hevyjax Incentive Agrvernent wpd 2 goals of the City by providing an incentive for the development of the Property and the construction 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 aszainst change in Ownership Manaizement and Control offleveloper or Assignment of Agreement. A. The qualifications and identities of the 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,ifthe 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 djm',aUee'1Chevy—T&x Incentive Agreernent.wpd 3 by inheritance), such transfer shall be deemed an assignment to which 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 ifthere 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 11 DEVELOPMENT OF THE PROPERTY Section 2.01. Development bvDeveloi)er. 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 djm',agee\Chcvy-Tax Incentive Agreement%Td 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 of the Scope of Development by the City hereunder shall not be binding 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 governmental 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 ofthe 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. djm1,igee\Chew—Tax Incentive Ageement.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. I. 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 T," 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 dim',agreckchevyJax Incentive 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 ofthe Automobile Dealership on the Property within twenty-four(24) 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" djm1,agtee',,Che,w_Tax Incentive Agrcernent.wpd 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 I 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$ 421,885.00, Years 2-4 seventy-five percent(75%) of the amount of Sales Tax Revenue received by the City in excess of$ 421,885.00. Years 5-7 fifty percent(50%) of the amount of Sales Tax Revenue received by the City in excess of$ 421,885.00. Years 8-10 twenty five percent (25%) of the amount of Sales Tax Revenue received by the City in excess of$ 421,885.00. 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 $ 421,885.00. "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 Bums 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 the cjp`,agee\Chew_Tax Incentive Ag eement.wpd 8 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 I st and August I st 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 I st payment and for the months of October through March-August I 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 ofthe 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 3.03. Conditions Precedent. A. The obligation of the Developer to construct and operate the Automobile Dealership diml,agree"Chevy-Tax Incentive Agreenient,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 of the 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 of the 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. djmWeeChevy T&x Incentive Agreernentw-pil 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 4.41. Default. The occurrence of any or all ofthe 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 djmkageetChmyjax Incentive Ageement.wpd I I 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 seq.) and the Unruh Civil Rights Act, Civil Code Section 51 et §.e�q. ("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 I 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 suspect to exist in his favor at the time of executing the release, which if known by djrn'Agrce'ChevyTax incentive Agreenrient,wpil 12 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: Tom Bell Chevrolet 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. AttorneysFees. 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). djrn1,WeeXhe4v—Tax Incentive Agreement wpd 13 Section 5.05. Indemnity, 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 of the 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)of the 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, fights 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 of the 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 Majeure. 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 ofany such circumstances which circumstances shall include,without limitation,fire/casualty losses;strikes; djtn',agee\Chmy_Tax Incentive Agreemenowpd 14 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 ofCity 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 1542, and hereby waives any and all rights thereunder to the extent of this release, if such Civil Code section 1542 is djni\agee',Chcvy T&x Incentive Ageement,wpil 15 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 or entity. djM\wcc',Chm,y_Ta,x Incentive Agreement."d 16 Section 5.18. Notice of Acguisition and Recordation. Within ten (10) days after the Developer's acquisition oftitle 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 ether term., covenant or condition herein contained. Any party's acceptance of any performance by the ether party after the due date of such performance shall not be deemed to be a waiver by any party or any preceding breach by the other party of any term,covenant or condition ofthis Agreement,regardless of such party's knowledge of such preceding breach at the time of acceptance of such performance. Section .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. dim Chevy Tax Incentive Agre=ent.wpd 17 IN WITNESS WIIER.EOF, the parties have executed this Agreement as of the date and year first written above. CITY OF REDLANDS DICK DEWEESE INC., dba TOM BELL CHEVROLET h 'Ma r 4 ATTEST: By �ThomasO. Bell Title: City Clerk MARGARET E,ANDRADE th COMM.#1387812 t W. NOTARY PUBLIC-CALIFORNIA SAN BERNARDINO COUNTY My Comm,Exp.Nov.28,27 7 'O djm�agree\Chevy_1'ax Incentive Agreement.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 December 21, 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 I Xj 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. WITNESS my hand and official seal. ........... LORRIE POYZER, CITY CLERK By: CA 0"% L I F Beatrice Sanchez, Deputy City Clerk (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 & Construction & Operation Covenant Agreement Signer(s) Other Than Named Above: Tom Bell CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT rr i. State of California ss. County of 5,4161&' 12 1E)A k-0 IAI& On ID C. / 7 c-,2 00 before me, f. Date Name and Tole of Officer(e.g.,'Jana Doe,Notary Public') personally appeared TQ/W7 U, / c- Name(s)of Signer{s) i `R personally known to me El proved to me on the basis of satisfactory evidence to be the person(4 whose name.( 4 (Dare subscribed to the within instrument and 1 acknowledged to me that/ he/they executed the same in &her/their authorized � MARGARET E.ANDRAGI capacity(+es}; and that by is er/their �' COMM.#1387812 n signature(s}-on the instrument the person(s) or NOTARY PUBLIC-CALIFORNIA U SAN BERNARDINO COUNTY U the entity upon behalf of which the persons) My Comm.Exp.Nov.28,2006 b., acted, executed the instrument. WITNESS my hand and official seal. t 11 Signature of 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. I Description of Attached Document f Title or Type of Document: 7 Document Date: Number of Pages: Signer(s)Other Than Named Above: j Capacity(ies) Claimed by Signer Signer's Name: Individual Top of thumb here Corporate Officer—Title(s): 7 Partner—Ci Limited 11 General Attorney-in-Fact Trustee L Guardian or Conservator — — 71 Other: Signer Is Representing:______________ ) 0 1999 National Notary Assoctatlon•9350 De Soto Ave.,P.O-Box 2402•Chatsworth,CA 91313-2402•.—nationalnoiary.org Prod,No.5907 Reorder Catl Tol!-Free 1-500-876-6827 Exhibit "A" LEGEND EXISTING PARCEL LINE TO REMAIN N89*23'53"W — — — — EXISTING PARCEL LINE w TO BE ADJUSTED 0 PROPOSED PARCEL LINE 4O, 1.94' 4.0 1*--- (Ssg*23'53'E 533.76 REC) PARCEL 1 aat 4a,29 00' LO f PARCEL C vit, n- N f N 8.63 ACRES ka ul) Ol 109*23'53'w 1029-57' m z -A 0 25' WIDE EASEMENT OF THE CITY PME3 20 1 33 OF REDLANDS FOR A SEWER PIPELINE C., n 11 PER INST. No. 2004-786778 O.R. REC. N89*56'57"W ,rlto TV\ 11 10/28/2004 yrs 24.00":-.!! N00.00'45'E 279 -------Project Site- BROCKTON 10' WIDE EASEMENT OF THE CITY • 'AV-ENUE Ly LINE OF REDLANDS FOR SEWERS PER �PPCL 1. CLR. 6932/186 PM8 20/46 M ova PARCEL 13 Go 0 10-00 ACRES MIWV11% p *? _EL J POR- PARCEL J cc N89*56'57"W 75a.84' LAND V11% ...-110.62, PMS 20 1 46 10' WIDE EASEMENT OF THE STATE DAVID D. KNELL OF CALIFORNIA FOR UTILITIES PER 5301 0 INST. NO. 87-337568 REC. 9/21/87 EXP.�12-31-07 PARCEL A Ic OF C 8-00 ACRES E•-p Cp 50, w z -00A 20' WIDE EASEMENT OF THE CITY OF REDLANDS FOR SEWERS PER It P48 192/4-8 06, oe C� 0 10' WIDE EASEMENT OF THE CITY 0 110 OF REDLANDS FOR SEWERS PER XIQ" '0 INST- NO. 01 80-043742 X, \00 5' WIDE EASEMENT OF THE CITY OF REDLANDS FOR SEWERS PERCAL 1 A_ 200, PMB 192/4-8 SE: 142904VIn Exhibit "B" Scope of Development TOM BELL CHEVROLET REDLANDS, CALIFORNIA Site: Stand alone Chevrolet Dealership Pending Plans Stand alone Body and Repair Shop Pending Plans Chevrolet Dealership: Pending Plans Construction: Building inclusive of Sales & Service Steel frame metal building with EIFS coating Showroom with glass walls to outside. Paved Parking for Customers and Inventory Body and Repair Shop: Pending Plans Construction: Steel frame metal building with EIFS coating Adequate Paved parking for customers & inventory. EXI-HBIT "C" City of Redlands RE: SCHEDULE OF PERFORMANCE December 21, 2004 City Council Meeting Chevrolet Incentive Agreement Tom Bell Chevrolet is currently in negotiations to purchase 10 acres specified in EXHIBIT "A". After full approval from financing sources and agreements are met between the landowner and Tom Bell Chevrolet, the scheduled date for closure of escrow is planned to be approximately 120 days after entering into escrow. Tom Bell Chevrolet anticipates that after closure of escrow, it can go to the City for approval procedures thus allowing us to begin breaking ground soon after those approvals. Considering the construction and approval procedures go smoothly, Tom Bell Chevrolet could be occupying the site for sales and service approximately 12 to 18 months following the close of escrow.