HomeMy WebLinkAbout10/22/1998citNjo,�,�,ciC
AGENDA
Thursday, October 22,1998
Joint Public Hearing with
Diamond Bar Redevelopment Agency
5:00 p.m. Special Meeting
South Coast Air Quality Management District
Auditorium
21865 East Copley Drive
DiamondBar, California 91765
Mayor
Mayor Pro Tem
Council Member
Council Member
Council Member
City Manager
City Attorney
City Clerk
Carol Herrera
Wen Chang
Eileen Ansari
Bob Huff
Debby O'Connor
Terrence L. Belanger
Michael Jenkins
Lynda Burgess
Copies of staff reports, or other written documentation relating to agenda items, are on file in the Office of the
City Clerk, and are available for public inspection. If you have questions regarding an agenda item,
please contact the City Clerk at (909) 860-2489 during regular business hours.
In an effort to comply with the requirements of Title II of the Americans with Disabilities Act of 1990,
the City of Diamond Bar requires that any person in need of any type of special equipment, assistance or
accommodation(s) in order to communicate at a City public meeting, must inform the City Clerk
a minimum of 72 hours prior to the scheduled meeting.
Please refrain from smoking, eating or drinking
in the Council Chambers.
The City of Diamond Bar uses recycled paper
and encourages you to do the same.
I .
2.
CALL TO ORDER: 5:00 p.m., October 22, 1998
PLEDGE of ALLEGIANCE: Mayor Herrera/Chairman Huff
ROLL CALL: Council Members Ansari, Huff,
O'Connor, MPT/Chang, M/Herrera
Agency Members Chang, Herrera,
O'Connor, VC/Ansari, C/Huff
PUBLIC HEARING:
2.1 DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE DIAMOND
BAR REDEVELOPMENT AGENCY AND TOOLEY & COMPANY - Tooley
& Company (Developer) has entered into an agreement for
the purchase of Lot 2 of the Gateway Corporate Center
(Site), which Site is located within the Redevelopment
Project area. The Developer intends to construct two
office buildings, with three stories and 82,944 gross sq.
ft. each (Project). The Developer intends to lease a
portion of the Project to a Fortune 500 company, which
will employ approximately 400 employees. The Developer
has requested Diamond Bar Redevelopment Agency (Agency)
assistance in the acquisition of the Site.
Recommended Action: It is recommended that the Diamond
Bar Redevelopment Agency enter into an Agreement, with
Tooley & Company, in order to implement provisions of the
Redevelopment Plan, by providing for the Agency's
acquisition of Lot 2, Gateway Corporate Center and the
subsequent sale of Lot 2, Gateway Corporate Center, for
the construction and operation of Tooley & Company
improvements thereon.
Requested by: Executive Director
3. ADJOURNMENT:
CITY OF DIAMOND BAR
JOINT CITY COUNCIL/REDEVELOPMENT AGENCY MEETING
"QUICK CAP" MINUTES
OCTOBER 22, 1998
1. COUNCIL CALL TO ORDER: Mayor Herrera called the City Council
meeting to order at 5:13 p.m. in the Auditorium of the South
Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, California.
AGENCY CALL TO ORDER: Chairman Huff called the
Redevelopment Agency to order at 5:13 p.m.
PLEDGE OF ALLEGIANCE: Mayor Herrera lead the Pledge of
Allegiance.
CITY COUNCIL ROLL CALL: Council Members Ansari, Huff and
O'Connor, Mayor Herrera. Mayor Pro Tem Chang was absent.
AGENCY ROLL CALL: Agency Members Herrera, O'Connor,
VC/Ansari, Chair/Huff. Agency Member Chang was absent.
2. PUBLIC HEARING:
2.1 DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE
REDEVELOPMENT AGENCY AND TOOLEY & COMPANY - Tooley & Co.,
the developer, has entered into an agreement for purchase
of Lot 2 in the Gateway Corporate Center, which site is
located within the Redevelopment Project area. The
Developer intends to construct two office buildings with
three stories and 82,944 gross sq. ft. each. The
Developer intends to lease a portion of the project to a
Fortune 500 company, which will employ approximately 400
employees. The Developer has requested Redevelopment
Agency assistance in acquisition of the site.
Mayor Pro Tem Chang arrived at 5:18 P.M.
Chair/Huff declared the Public Hearing open.
Dave Sears, Tooley & Co. described the proposed project
as well as the prospective tenant.
Felice Acosta - reviewed the Summary Report prepared by
Rosenow, Spevecek Group.
Mr. Yonai reviewed the economic value of the project.
Dave McEwen, Straddling, Yocca, Carlson & Rauth.
In response to M/AM/Herrera, Mr. McEwen explained that
the first installment payment would be due upon
presentation of a fully executed lease from Traveler's
Insurance Co., the prospective tenant.
OCTOBER 22, 1998
PAGE 2 JOINT COUNCIL/RED. AGENCY
C/AM/O'Connor - What is Agency's Redevelopment Revolving
Loan fund?
McEwen - City can give or loan funds to the Agency to
provide assistance to prospective developers.
Art O'Daly - commended Council and Agency on bringing in
this type of business.
There being no further testimony offered, Chair/Huff
closed the Public Hearing.
Moved by M/Herrera, seconded by C/Ansari to adopt
Resolution No. 98-65 entitled "Resolution of the City of
Diamond Bar, California Approving a Disposition and
Development Agreement By and Between the Diamond Bar
Redevelopment Agency and Tooley and Company. Motion
carried 5-0 by Roll Call vote.
Moved by AM/Herrera, seconded by Chair Huff to adopt
Resolution No. RA98-9 entitled "Resolution of the Diamond
Bar Redevelopment Agency of Diamond Bar, California
Approving a Disposition and Development Agreement By and
Between the Diamond Bar Redevelopment Agency and Tooley
& Company. Motion carried 5-0 by Roll Call vote.
3. ADJOURNMENT: There being no further business to
conduct, Chair/Huff adjourned the Redevelopment Agency meeting
at 6:36 p.m.
There being no further business to conduct, M/Herrera
adjourned the City Council meeting at 6:36 p.m.
MEMORANDUM
TO: HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL &
HONORABLE CHAIRMAN AND MEMBERS OF AGENCY BOARD
FROM: TERRENCE L. BELANGER, CITY MANAGER/EXECUTIVE DIRECTOR �"!J
RE: DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE
DIAMOND BAR REDEVELOPMENT AGENCY AND TOOLEY &
COMPANY
DATE: OCTOBER 22, 1998
RECOMMENDATION:
It is recommended that the Diamond Bar Redevelopment Agency enter into an agreement,
with Tooley & Company, in order to implement provisions of the Redevelopment Plan, by
providing for the Agency's acquisition of Lot 2, Gateway Corporate Center and the
subsequent sale of Lot 2, Gateway Corporate Center, for the construction and operation
of Tooley & Company improvements thereon.
DISCUSSION:
Tooley & Company (Developer) has entered into an agreement for the purchase of Lot 2
of the Gateway Corporate Center (Site), which Site is located within the Redevelopment
Project Area. The Developer intends to construct two (2) office buildings, with three (3)
stories and 82,944 gross square feet each (Project). Total office square footage is
165,888 gross. The Developer intends to lease a portion of the Project to a Fortune 500
company, which will employ approximately 400 employees. The Developer has
requested Diamond Bar Redevelopment Agency (Agency) assistance in the acquisition of
the Site.
The Agency and Developer are proposing to enter into a Disposition and Development
Agreement (Agreement) in order to implement the provisions of the Redevelopment Plan
(Plan) by providing for the Agency's acquisition of the Site and the subsequent sale of the
Site to the Developer for the construction and operation of the Developer improvements.
The Agency's intent in entering into the Agreement is because, pursuant to Community
Redevelopment Law and the Plan, said action will help to eliminate blight in the Project,
increase employment opportunities within the Project, generate additional property taxes
with which the community can assist in providing an environment for the social, economic
and psychological growth and well-being of the citizens of the City.
TOOLEY: DDA
OCTOBER 22, 1998
PAGE TWO
DISCUSSION (CONT):
The Agreement provides that the Developer will assign his position in its escrow to the
Agency and fund the purchase of the Site acquisition from the current owner at the
currently agreed to price of $5,666,012.50. The Developer agrees to loan the Agency
$1,966,081 (Loan) to enable the transaction to close. The Developer will secure the
Loan with a loan agreement. The Loan will be secured and repaid from any legally
available funds of the Agency. The Developer is aware of the pending litigation
challenging the validity of the Plan. The Developer also understands and agrees that in
the event that the Agency does not receive a favorable non -appealing judgment there will
be no money available to repay the Loan, except for moneys in the Agency's
Redevelopment Revolving Loan Fund. It is anticipated that the City may make up to
$990,000 available to the Agency for the purposes of economic development. These
funds would be provided by a loan from the City to the Agency's redevelopment
Revolving Loan Fund. A more complete analysis and description of the transaction is
contained in a Draft Summary Report, dated October 8, 1998, prepared by Rosenow
Spevacek Group (attached).
DRAFT SUMMARY REPORT
OCTOBER 8, 1998
TOOLEY & COMMPANY
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS SUMMARY REPORT HAS BEEN PREPARED PURSUANT TO SECTION
33433 OF THE CALIFORNIA REDEVELOPMENT LAVs' REGARDING THE
PURCHASE, SALE, AND DEVELOPMENT OF LOT 2 OF GATEWAY
CORPORATE CENTER IDENTIFIED AS ASSESSOR PARCEL NUMBER 8293-
050-02, LOCATED AT GATEWAY CENTER DRIVE AND COPELY DIVE
WITHIN THE DIAMOND BAR ECONOMIC REVITALIZATION AREA
The Diamond Bar Redevelopment Agency (the "Agency") is considering entering into a Disposition
and Development Agreement (the "Agreement') with Tooley & Company, a California corporation (the
"Developer") for the sale of property for the development of a commercial office complex located
within the Agency's Economic Revitalization Area (the "Project Area"). The parcel under
consideration is a 429,502 square foot parcel commonly referred to as "Lot 2" within the Gateway
Corporate Center (Assessors Parcel Number 8293-050-02) (the "Site"). Development of the Site as a
commercial office complex would eliminate economic blight from the Project Area and further the
economic development efforts of the City of Diamond Bar (the "City) all in conformity with the
Redevelopment Plan for the Project Area. The proposed Agreement is provided as Exhibit A to this
Summary Report for public review pursuant to Section 33433 of the California Community
Redevelopment Law.
The Developer is proposing to acquire and develop a site of approximately 10.62 acres located in the
Gateway Corporate Center located at the southeast intersection of the Pomona (60) and Orange (57)
Freeways.
The Developer is proposing to construct a two building corporate office campus on the Site. Each
office tower will be three (3) stories and contain approximately 82,944 gross square feet. Combined,
the two office buildings will have a total of approximately 165,888 gross and approximately 156,600
net rentable square feet_ The Site will be developed with required landscaping and parking. The current
design and transaction anticipates an office development suitable for a Fortune 500 Company. The
Developer represents that he is in lease negotiations with a Fortune 500 Company to house 400
employees. It is anticipated that the term of the initial lease will be for ten years. It is further assumed
that the leasing of the second building will bring no less than 300 additional employees to the Site.
FINANCIAL AND OTHER ASPECTS OF THE AGREEMENT
The Agreement provides that the Developer will assign his position in their escrow to the Agency and
fund the purchase of the Site acquisition from the current owner at the currently agreed to price of
$5,666,012.50. The Developer agrees to loan the Agency $1,966,081 (the "Developer Loan") to
enable the transaction to close. Developer will secure the Developer Loan visa the loan agreement
included within Attachment No. 9 of the Agreement. The Developer Loan will be secured and repaid
from any legally available funds of the Agency. The Developer is aware of the pending litigation
challenging the validity of the Redevelopment Plan. The Developer also understands and agrees that in
n—ea.rr.,.:i.ymac,. Rcin-; I 10!13/98
the event that the Agency does not receive a favorable non -appealing judgement there will be no money
available to repay the Developer Loan except for moneys in the Agency's Redevelopment Revolving
Loan Fund. It is anticipated that the City may make up to $990,000 available to the Agency for the
purposes of economic development. These funds would be provided by a loan from the City to the
Agency's Redevelopment Revolving Loan Fund. The Agency will then sell the property to the
Developer at the agreed reuse value of $3,700,858. Other financial aspects of the Agreement are as
follows:
A portion of the_ Developer Loan shall be repaid in accordance with the terms and
conditions enumerated in the Developer Loan Note. Upon receipt of evidence that
the Developer has entered into a lease with a term of not less than 10 years with a
Fortune 500 company and the Release of Construction Covenants as provided in
Section 311 of the Agreement.
The Developer agrees to an "Adjustment Factor" in terms of the repayment of a
portion of the Developer Loan. The "Adjustment Factor" is defined as a percentage
of the difference between the projected hard costs of the project and the actual hard
costs incurred by the Developer. Hard Costs for the purpose of the Agreement are
defined as the costs of the architect, engineering and design services for the project as
well as the actual cost of construction of the structures, hardscape, landscaping and
required off site improvements.
• The Developer agrees to develop the Site in conformance to the Scope of
Development as set forth in Section 301 of the Agreement. Section 301 requires the
construction of two office structures of approximately 82,944 square feet.
• The Developer agrees to develop the Site within a time frame that conforms with the
Schedl:le of Performance designated as Attachment No. 3 to the Agreement.
• The Developer agrees to a minimum assessed valuation ("Minimum Project Value")
of the Project of no less than $ 22 million. Further, if the Minimum Project Value
(over the term of the Redevelopment Plan) falls below $ 22 million, the Developer
shall pay directly to the City or Agency 1 ° o of the difference of the Minimum Project
Value less the current year assessed value.
• The Developer covenants that the Site will be leased by a Fortune 500 company for a
minimum of 10 vears.
• Parking for the Site will be developed in an amount that results from the application
of a parking ratio of not less than 4.5 stalls per 1,000 net rentable square feet of
development.
n —d io_: 2 10/13/98
Economic Analvsis of Proposed Affmment
The Agency utilized tate services of Rosenow Spevacek Group, Inc. ("RSG") to review the Developer's
proposal and conducts an independent analysis of the Project. The following financial information is
based on the RSG analysis. Tables A and B attached to this Report details the findings cited below.
I..VJl vi• alL1:.1Mvlaa:11:AVLW"'%1 lv
Developer Assistance-Land_cost write down
Sl,%6,081
Cost of Funds to the Agency (a> 5% per annum for 13 years 634.377
(Based upon Tax Increment Projections of the Developer's project $2
Nfillion in tax increment will he generated by the within 13 years)
Total Agency Costs 52.600.458
POTENTIAL COST OF THE AGREEMENT TO THE CITY
Maximum City Loan Amount to Agency which may convert to
Economic Development contribution $990.000
Cost of Funds over 20 period a. 5% per annum $990,000
51.980,000
FINANCIAL BENEFITS TO THE AGENCY FROM THE AGREEMENT
Tax Increment Revenue estimatesi
Net revenue to the Agency generated by the Developer Project after
pass throughs to taxing agencies over 20 vr. period. 53,533:399
Net revenue to Vie Agency after pass throughs to taxing agencies over
life of Redevelopment Plan (45 years) 510,388,185
FINANCIAL BENEFITS TO THE CITY FROM THE AGREEMENT
Property Tax Revenue (assuming Redevelopment Plan is invalidated)
Based upon City's 5.90,o share of the 1% general levy -property tax
generated by the Developer Project over the 45 year life of the
Redevelopment Plan $950,740
INDIRECT FINANCIAL BENEFITS TO THE CITY FROM THE AGREEMENT
Direct Jobs to be produced by the development 700
Indirect Jobs to be produced within the general area 520
Total Direct & Indirect Jobs within area 1220
Total estimated annual payroll for Direct & Indirect Jobst 550.700.000
Total estimated annual sales within City of Diamond Bar from Direct
& Indirect Jobs $4,030,000
Estimated Annual Sales Tax to City 540.300
1 Z -d value olPro�ct »eroafvd by 2°i pwr angor..
2 B®d upors l9�1 nsdrun inccmt fur a 3per_cn h soenok'c! fso.:.�L'
n.,.n,..,ain_. 3 10/EV"
Esthnated Value of Lderest to be Conveyed or Leased Determined at the Highest and Best Uses
Permitted under the Plan
The Agency will purchased the Site for the owner's asking price of $5.66 million. The terms of the
Agreement provide that the Agency will resell the Site to the Developer for $3.7 million. An analysis of
land values in relation to the proposed development cost and project lease rates are presented in Exhibit
B the Reuse Analysis. Based upon the attached Reuse Analysis the Site is worth no more than eight
dollars ($8.00) a square foot of $3.7 million.
Estimated Value of the Interest to be Conveyed or Leased. Determined upon the Proposed
Fortune 5{10 Corporate Office Center (Commercial Office Use) Required by the Proposed
Agreement.
As outline in Attachment B the value of the Site determine by the proposed Corporate Office Center is
no more than $8.00 per square foot of $3.7 million. The Agreement provides for the transfer of the
property from the Agency to the Developer for a purchase price of $3.7 million.
Explanation of how • the sale will assist in the elimination of blight
The Site is currently considered to be economically blighted as documented in the Agency's 1997
Report to the City Council of the Project Area. Sale to the Developer will provide the economic relief
necessary to enable development of the Site and elimination of it's blighting conditions.
Public Hearing
Pursuant to Sectiot 33433 of the California Redevelopment law, the City Council and the Agency will
consider the proposed Agreement at a joint public hearing on October 22, 1998. A copy of the hearing
notice is attached as Exhibit C.
D i -d n -i 4 10/11/w
EXHIBIT A
DRAFT DISPOSITION AND DEVELOPMENT AGREEMENT
n .m,�nnMrr—JpyeffiS nR?rIn_t 1WIV98
EXHIBIT B
CITY OF DIAMOND BAR AND THE DIAMOND BAR
REDEVELOPMENT AGENCY NOTICE OF JOINT PUBLIC HEARING
NOTICE IS HEREBY GIVEN that the City Council of the City- of Diamond Bar and the
Diamond Bar Redevelopment Agency (the "Agency") will hold a joint public hearing on the proposed
Disposition and Development Agreement by and between the Agency and Tooley & Company Inc. or
assignee (the "DDA"). A'copy of the DDA is on file and available for public inspection with the City
Clerk at the Diamond Bar Citv Hall, 21660 E. Copley Drive, Suite 100, Diamond Bar. California
91765-4177. The DDA generally provides for the acquisition and sale of certain real property by the
Agency (the "Site") identified as "lot 2" within the Gateway Corporate Center (Assessors Parcel
Number 8293-050-02) and the development of the Site as a commercial office complex all in
conformity with the Redevelopment Plan
Any person or organization interested in expressing an opinion on this matter is invited to attend
the public hearing and offer testimony
Date: Thursday, October 22, 1998
Time: 5:00 p.m., or as soon thereafter as the matter may be heard
Place: South Coast Air Quality Management District Auditorium
21865 E. Copley Drive
Diamond Bar, California 917654177
If you challenge the item listed above in court, you may be limited to raising only those issues
you or someone else raised at the public hearing described in this notice, or in a written correspondence
delivered to the Agency at or prior to, the public hearing. Furthermore, you must exhaust any
administrative remedies prior to commencing a court challenge to the Agency ,s action.
Further details relating to the subject sale of real property, including the report required by
California: Health and Safety Code Section 33433, are on file and may be reviewed in the City Clerk's
office at the above Diamond Bar CAN, Hall address, during regular office hours. Further information on
the subject matter may also be obtained by contacting Terrence L. Belanger, City Manager at 909-396-
5666 or Felise Acosta the Redevelopment Agency consultant at 714-541-4585
Dated this 5th day of October 1998.
By: Terrance L. Belanger, City Manager
Published in the
San Gabriel Valley Tribune
Inland Valley Daily Bulletin
Thursday, October 8, 1998
Thursday, October 15, 1998
0-4 n-, 6 10113/"
TABLE A
705 Yaw PreiOdOd Ta Ylr mw t RVAMM
ID.am�nA r4 -.?,.,I yl1P61-RPr10-i 7 1Q713/9R
P.R
MFTnA(9RJ('i
pyvrovwq t41K
Net Tl
owe If hgOt4
i.e.
Somaw
UrmcuOd
k6dOrrrerul
re
Teul
Nen
lsW
TOW
#5,9%dtln1%
g0
!mewed)
Fwd
&me*
Ammo
T«
9i4Wmy
Muan9
Mwr"0
ROHM
Yew
IIx
vAn I
oami
V"
W..."
POw4ht.
Sr amkb
to Agovi
1997.96
BY
4.706,556
-
1199x99
0%
4709,55
-
-
-
-
-
21999d0
2%
21,937,927
1,97n,rOG
19,199,35
191%4
38,E
115,196
38,3199
153,596
14,1066'
3200001
2%
22,376,678
1,970,000
19,638;123
196381
39,276
117,629
39,276
157,15
ta364:A
42001 2
2%
72.624,212
1.970,00D
T,OB5,W
270,85.'
40,171
120,914
40,171
160695
1462E 599
521012-73
2%
?3.29ii,6%
19Tu,OW
2542,141
2x42
41,094
1232%3
411784
164,37,
1489791
6290?04
2%
23.7A6.-0+0
197m.ODD
2+.097,755
21Q0-,'@
42.016
126,047
42,016
169062
15,1 .82
72094.x1
2%
24221,23
1970.000
21462.681
214 7
42,965
126.06
42,985
171.661
15.452H3
6 200605
2%
24.705.651
1,970.000
, 21.957.196
2196'1
43,954
171.603
43.934
175.737
15,739.64
9606107
2%
6.133.774
1970,000
72461119
224.612
44,9[2
0067
44,922
179,ffsD
16.030.17
10 2V?d'@
2%
25,72 7Rt
1,9?QOT
22,95,215
229,52
45,93)
137,791
45,990
193,'22
16,32.7 52
11200903
2%
26,217,86
1,970,000
73,479,299
234,753
48,£48;
139,166
46,969
186124
16,6363
122 10
2%
26,74222
1.970,000
24,003,647
240,036
5D,599
141,411
48,007
169.439
16,940.21
13211cli1
2%
211.2;-.046
1970,0.0.0
24,539491
245.395
52.55
143,711
49,9;;
192818
17,25.75
142711-12
2%
77,822.587
1,981,000
25,034,002
2500.&10
54.54
146.096
50,15
196256
17577.3
152712.13
2%
28,379.003
1,970,000
25640,484
256.405
56,672
14502
51,2B1
199,783
17,90693
162D13.14
2%
28,946,W
1,979,000
6,218,95
252,081
59,711
150-%4
52,416
203.370
18240.81
17201415
2%
29,526552
1,970,000
25,066907
67,6770
a0,841
153,455
5354
207,04
18.582.38
12:!11516
2%
30.116.£'6:
197000)
27,3�7,58
27375
6c�C�4
156.006
5471%
210761
18,930.78
19201617
2%
30.718.384
1970000
7979.829
2797_8
65.231
t5&608
56.95
214,567
19.286.15
61017-18
1 2%
31.332.752
1,970,0001
29.594.19-,
285.942
6'.492
161202
57.199
218,450
19.648.62
21,(;1835
21201&19
2%
31,5697007
1,970000
29,220,862
232279
69,798
163.969
58,442
222,411
22 27152)
2%
32,598.5(5
1970000
29,880,M0
'98.x10
72,150
16&730
59,720
725.450
20,39547
23 2OX[ 21
29t
33,250,301
1970,0(0
30,512,012
305,120
74,50.9.
169,547
61,C24
230.51
20,780.13
242021-22
2%
33 ,83.578
1.970000
3117023
311 1)
769'
1T2R0
62,354
234,774
21,172.49
252022-23
290
34593.890
1970060
31Bru 335
.'!2.503
79.493
175,360
63.711
239,061
21572.70
2 X25-24
2%
35,295, W
1,9,!n
32547,2j3
??r t'2
8? C3
178.119
5,034
2434.21
? ,99090
T 20242
2%
26,91,483
1,9''01)00
3-3,252,926
34529
64,636
161,387
66,506
247,93
22,9728
292025
.2%
36.711,313
1570000
3G 972,758
-,3Q.728
'i 87.295
1&1.497
67,946
252443
22.821.97
292CQC-Z
216
T, 445539
1970030
34706964
347070
6633"
167.669
66,414
67.033
23.255.17
302)2'-2d
2%
38.194,451
1970000
35465.96
254,559',
9,743
190,904
70912
251,616
23,687.03
3122&23
2%
39,95,_9
1.9'0000.
35,219,794
-ISZ1901
97,248
192310
72,440
254,960
24,147.72
322!2&30
2%
9,.31.595
1,970.000
35,96,951
359.990
100.336
195.003
73,998
269,001
24,60743
33 20T,31
2%
40.5322%
1,970,000
37?a1.7,
937
1004.20
197.547
To.597
20.3,1+4
2r.�7o.33
3420312
25,b
-41,342.901
1,970,OD0
39,604;346
396,043
109,,634
2DOJ41
ii,2�'-]
2/7,349
25,56461
95 2-n
2%
42,169,756
1976,0!X0
39,431,204
'494,312
112663
202787
'8,862
291.649
26,04246
3623'0534
2%
43,013,154
1PmrCD
40,274'$1
402746
115,711
20%,465
8)549
?%M5
6.54006
372034-.5
2%
43.73417
1970090
41.134.662
411J49
1X,!441
202236
02,270
280,506
27,04762
%2D363E.
2%
44.75).965
1970CCO
429 M2.33?
42(.123
125050
211.046
64,25
?45.m1
27.5);53
9273&3'
2%
45.645.903
1,970,OW
42.907,346
429073
123349
21.1910
65,815
299,725
29.09338
4) 2197.39
2%
46,55,821
1,970,000
43,837,66
438,3]3
131,731
21&&02
6',641
304,472
28,69.00
412039,_6
2%
47,489,993
1,970,1100
44,751,443
44T514
138,219
219,811
89,0-"7.3
309,314
29,191.40
42 2033-00
2%
49,433.7977
1970,000
45,701,242
457,012
142759
222861
91,402
314,253
73.741 76
43294641
2%
49,408.593
1,970.000
46,670.008
466.70_
147413
225-81
93,340
319291
30.31337
44204142
2%
5.396,766
1970,000
V,6%,210
476.9.332
152153
229.113
95.316
324,429
30,!90.39
452041.42
2%
51,404,701
1,970,000
46,666,146
485,661
156,931
232318
97,332
329,671
31491.07
CIe.M. few!
14,0112,4731
1.6512861
7,579,6901
2,601,4961
10,16&1!6 950.740.00
............................................................................................................................................-....-....
NMPMM*V*w(&S%)
9,730.684
682921
I 211&456
7K137
I 2885.596
ID.am�nA r4 -.?,.,I yl1P61-RPr10-i 7 1Q713/9R
TABLE B
Dinnand Bar Eawwr ie Pwksintion Ana
20 Yow Ploiaabd Tax 2 m at Ravanlw
n.,. �n A„ rK.iryr iat,. M Ra i n-< x 10/1T/99
REVEMJE
TO AGENCY
Lsd 9911YDwn
CBypmpwgTm
Nd71
s m rpmod
Er ndw
PV14
F 4elmA/rwy
Aaa1NYw/Aaltd
tie.
lwawd
WwrwN
belwlnla/
omm
Tom
Nwt
Lom tod
ToW
Asmwiytnbwwt
o&9%s(lwI%
FbW
awn
Avelmd
e1
Ts
I"dar
kraft
11e1wYq
1twom
aW
*won*
Yiaw
fwwiW
%
Ywr
IarI
Vdw
9,
I111walllwt
pwNUwt
190741
of
41788,566
PM=W
Deet
1.966,081
11998-99
0%
4706.566
-
-
100,
219WW
2%
21.937,920
1,970.000
19.199,366
191.994
38.399
115.198
38.399
153,586
1,812
90
1110587
3 2000-01
2%
22378.678
.1970.000
19.638123
196,381
39.275
117.a29
39.276
157.105
1,856,381
82
1439454
42001-02
2%
72824212
1970,0W
20,085,667
200,857
40,171
128,514
40,171
160.655
1.494
74.
14,628.59
62002-03
2%
23.21D.W
1,970,000
20.542,141
205.421
41.094
m
41.004
164,337
1,33D.359
86.518
14807-91
6 20034M
2%
2$740,310
1,970.000
21,007,766
210.078
4zO1G
128,82
4201G
188.062
1. 16M7
66115
15,17202
7 200405
2%
24,221.236
1,970,000
21,482681
214827
42986
JAMB
42966
171,881
SOD,4M
40.6n
15.45283
8 200.5.06
2%
24,706,081
1,970,000
21,987,108
219,671
43,934
171885
43,594
175,737
814'm
40.TA
15,738.64
9 200607
2%
25.199,774
1,970,000
22461219
224,612
44971
134797
41922
179,690
835,
31,750
18.030.17
10 2007-08
2%
25,703.770
1,970.000
22985,216
229,852
45,930
137,1911
46.930
183,7221
461,207
2Z564
16.32752
112008-09
26&163
la258
16,83083
2%
26217.845
1,970,000
23,479,290
231753
48.669
138,195
46.969
186,124
12 200910
2%
28,742,202
1,970,000
24003,847
240,036
50,598
141,431
49.007
180,436
75,725
3,7W
18.94020
132010-11
2%
27;277.046
1,970.000
24538.481
245.385
52567
UkUl
49,077
192816
fflum
Tdp2oidmk
17,255.76
142011-12
2%
27,822587
1,970,000
25,084032
250,840
64,674
14CM
50,168
196,266
438,111
17,677-63
15 2012-13
29A
28,379,039
1,976000
25,610,494
256,406
56622
148,582
61,281
190,783
2X3X
17,905.93
16 2013-14
2%
26,946,820
1,970,000
26,209,065
282,081
58,711
158,854
61416
203370
XON
1221081
17 201446
2%
29,626,662
1,970,000
28,786997
267,870
00,841
14466
63,674
207,0291668238
18 201516
2%
30.116063
1,970,000
27,377,508
273.775
63,014
1S9.N8
54,756
210,761
18,93078
192016-17
2%
30,716394
L970,00D
27,976829
279,796
64231
158,988
54900
214667
19.298.16
202017-18
1 2%
1 31..;32752
1,970.000
28,5%,1971285.942
67,492
at"
57,180
218,450
19,618.62
WaYlr—.I 4,M.418I 967,8191 2^319 ) 313,9941 3,531,318
717.71737
N&Pwnwtllflu " I 2,p4.Sb1 589.915 1,d9,1M I M "I I 1,975{11
n.,. �n A„ rK.iryr iat,. M Ra i n-< x 10/1T/99
CITY OF UlAMUND BAR AND THL: UTA191UND HALF
REDEWFLOPMENT AGENCY NOTICE OF JOINT PUBLIC 11F.ARING
liiG iJliltlfUilli CicE. :iG:4i•C:VG3VUtiiv::L iiK`.IIL't ilii yK:.EILj i io`iii ilk"""itil:ll WUUtiti: Ji"- Lill lilt
proppo ea liiSiiii tuan anis i3t_*veffiilmem Ag-eernerii iii: amu INGi,wc n tm A$ envy anal iixiii'v 4V
f�r�mn env lhr�• iir ilYVrrin Na+ i Min r+ "iii ial •'1 �i r���mi ni th j)i iG hi" e -VA 'w�:F::Mi�. F•�r n,ria{:
i;spection with the City Clcrk, at the Diamond Bar City Hall, 21660 E. Copley Drive, Suite 100,
Diamond Bar, California 91765-4177. The DDA generally provides for the acquisition and sale
of certain real property by the Agency (the "Site") identified as "lot 2" within the Gateway
Corporate Center (Assessors Parcel Number 8293-050-02) and the development of the Site as a
commercial office complex all in conformity with the Redevelopment Plan
Any person or organization interested in expressing an opinion on this matter is invited to attend
the public hearing and offer testimony
Date: '•liurssday, October 22, 1998
�
Time: p.m., or as soon thereafter as the matter may be heard
Place: South Coast Air Quality Management District Auditorium
21865 E. Copley Drive
Diamond Bar, California 91765-4177
If you challenge the item listed above in court, you may be limited to raising only those issues
you or someone else raised at the public hearing described in this notice, or in a written correspondence
delivered to the Agency at, or prior to, the public hearing. Furthermore, you must exhaust any
administrative remedies prior to commencing a court challenge to the Agency's action.
Further details relating to the subject sale of real property, including the report required by
California Health and Safety Code Section 33433, are on file and may be reviewed in the City Clerk's
office at the above Diamond Bar City Hall address, during regular office hours. Further information on
the subject matter may also be obtained by contacting Terrence L. Belanger, City Manager at 909-396-
5666 or Felise Acosta the Redevelopment Agency consultant at 714-541-4585
Dates! this 5th day of October, 1998.
By: Terrance L. Belanger, City Manager
Published in the
San Gabriel Valley Tribune
Inland Valley Daily Bulletin
Thursday, October 8, 1998
Thursday, October 15, 1998
''n' a F. Tn' Or nt,, CT nF Cn I -)n 017 1 T_QCO_rrT I • (fT ") KI T ' C1 C'd
CITY OF DIAMOND BAR
NOTICE OF PUBLIC MEETING
AND AFFIDAVIT OF POSTING
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS.
CITY OF DIAMOND BAR )
The Diamond Bar City Council will hold a Joint Public
Hearing with the Diamond Bar Redevelopment Agency at 5:00 p.m.,
in the AQMD Auditorium, located at 21865 E. Copley Drive, Diamond
Bar, California on October 22, 1998.
I, LYNDA BURGESS declare as follows:
I am the City Clerk in the City of Diamond Bar; that a copy
of the agenda for the Joint Public Hearing of the Diamond Bar
City Council and Diamond Bar Redevelopment Agency, to be held on
October 22, 1998 was posted at their proper locations.
I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct and
that this Notice and Affidavit was executed this 19th day of
October, 1998, at Diamond Bar, California.
/s/ Lynda Burgess
Lynda Burgess, City Clerk
City of Diamond Bar
DRAFT SUMMARY REPORT
OCTOBER 8, 1998
TOOLEY & COMMPANY
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS SUMMARY REPORT HAS BEEN PREPARED PURSUANT TO SECTION
33433 OF THE CALIFORNIA REDEVELOPMENT LAW REGARDING THE
PURCHASE, SALE, AND DEVELOPMENT OF LOT 2 OF GATEWAY
CORPORATE CENTER IDENTIFIED AS ASSESSOR PARCEL NUMBER 8293-
050-02, LOCATED AT GATEWAY CENTER DRIVE AND COPELI' DIVE
WITHIN THE DIAMOND BAR ECONOMIC REVITALIZATION AREA
The Diamond Bar Redevelopment Agency (the "Agency") is considering entering into a
Disposition and Development Agreement (the "Agreement") with Tooley & Company, a California
corporation (the "Developer") for the sale of property for the development of a commercial office
complex located with the Agency's Economic Revitalization Area (the "Project Area"). The parcel
under consideration is a 429,502 square foot parcel commonly is referred to as "Lot 2" within the
Gateway Corporate Center (Assessors Parcel Number 8293-050-02) (the "Site"). Development of the
Site as a commercial office complex would eliminated economic blight from the Project Area and
further the economic development efforts of the City of Diamond Bar (the "City) all in conformity
with the Redevelopment Plan for the Project Area. The proposed Agreement is provided as Exhibit A
to this Summary Report for public review pursuant to Section 33433 of the California Community
Redevelopment Law.
The Developer is proposing to acquire and develop a site of approximately 9.86 acres located in the
Gateway Corporate Center located at the southeast intersection of the Pomona (60) and Orange (57)
Freeways. The Site contains 13.33 gross acres and 9.86 developable acres. The 3.47 -acre loss is
attributable to the existing non -developable landscaped slope areas surrounding ninety percent (901/o)
of the Site.
The Developer is proposing to construct a two building corporate office campus on the Site. Each
office tower will be three (3) stories and contain 82,944 gross square feet. Combined, the two office
buildings will have a total of 165,888 gross and 156,600 net rentable square feet. The Site will be
developed with required landscaping and parking. The current design and transaction anticipates an
office development suitable for a Fortune 500 Company. The Developer represents that he is in lease
negotiations with a Fortune 500 Company to house 400 employees. It is anticipated that the term of
the initial lease will be for ten years. It is further assumed that the leasing of the second building will
bring no less that 300 additional employees to the Site.
FINANCIAL AND OTHER ASPECTS OF THE AGREEMENT
The Agreement provides that the Developer will assign his position in their escrow to the Agency and
fund the purchase of the Site Acquisition from the current owner at the currently agreed to price of
$5,666,938. The Developer agrees to loan the Agency $2,000,000 (the "Developer Loan") to enable
the transaction to close. Developer will secure the Developer Loan visa the loan agreement included
within Attachment No. 9 of the Agreement. The Developer Loan will be secured and repaid from any
legally available funds of the Agency. The Developer is aware of the pending litigation challenging
the validity of the Redevelopment Plan. The Developer also understands and agrees that in the event
that the Agency does not receive a favorable non -appealing judgement there will be no money
available to repay the Developer Loan except for moneys in the Agency's Redevelopment Revolving
Loan Fund. It is anticipated that the City may make up to $990,000 available to the Agency for tate
purposes of economic development. These funds would be provided visa a loan from the City to the
Agency's Redevelopment Revolving Loan Fund. The Agency will then sell the property to the
Developer to the agreed reuse value of $3,666,938. Other financial aspects of the Agreement are as
follows:
A portion of the Developer Loan shall be repaid in accordance with the terms and
conditions enumerated in the Developer Loan Note. Upon receipt of evidence that
the Developer has entered into a lease with a term of not less than 10 years with a
Fortune 500 company and the Release of Construction Covenants as provide in
Section 311 of the Agreement.
The Developer agrees to an "Adjustment Factor" in terms of the repayment of a
portion of the Developer Loan. The "Adjustment Factor" is defined as the
difference between the projected hard costs of the project and the actual hard costs
incurred by the Developer. Hard Costs for the purpose of the Agreement are
defined as the costs of architect, engineering and design services for the project as
well as the actual cost of construction of the structures, hardscape, landscaping and
required off site improvements.
• The Developer agrees to develop the Site in conformance to the Scope of
Development as set forth in Section 301 of the Agreement. Section 301 requires
the construction of two office structures of approximately 82,944 square feet.
• The Developer agrees to develop the Site within a time frame that conforms with
the Schedule of Performance designated as Attachment No. 3 to the Agreement.
• The Developer agrees to a minimum assessed valuation ("Minimum Project
Value") of the project of no less than $ 22 million. Further if the Minimum Project
Value (over the term of the Redevelopment Plan) falls below $ 22 million, the
Developer shall pay directly to the City or Agency 1% of the difference of the
Minimum Project Value less the current year assessed value.
• The Developer covenants that Site will be leased by a Fortune 500 company a
minimum of 10 vears.
• Parking for the Site will be developed in an amount that results from the application
of a parking ratio of not less than 4.5 stalls per 1000 net rentable square feet of
development.
D-4 P—rr—IJdaa..., RP in.s 2 10/R/"
Economic Analvsis of Proposed Agreement
The Agency utilized the services of Rosenow Spevacek Group, Inc. ("RSG") to review the
Developer's proposal and conducts an independent analysis of the Project. The following financial
information is based on the RSG analysis. Tables A and B attached to this Report details the findings
cited below.
COST OF THE AGREEMENT TO THE AGENCY
Developer Assistance -Land cost write doiNm
Cost of Funds to the Agency q-� 5° b per annum for 13 years
(Based upon Tax Increment Projections of the Developer's project, $2
Million in tax increment will be generated by the within 13 years)
Total Agency Costs
POTENTIAL COST OF THE AGREEMENT TO THE CITY
Maximun City Loan Amount to Agency which may convert to
Economic Development contribution
Cost of Funds ovee 20 period & 5% per annum
FINANCIAL BENEFITS TO THE AGENCY FROM THE AGREEMENT
Tax Increment Revenue estimates)
Net revenue to the Agency generated by the Developer Project after
pass throughs to taxing agencies over 20 vr. period.
Net revenue to the Agency after pass througs to taxing agencies over
life of Redevelopment Plan (45 years)
FINANCIAL BENEFITS TO THE CITY FROM THE AGREEMENT
Property Tax Revenue (assuming Redevelopment Plan is invalidated)
Based upon City's 5.9% share of the I%' general lew-property tax
genterated by the Developer Project over the 4.5 year life of the
Redevelopment Plan
1 Sreiredarxmwd.dwgfNopettrrremedbyl%perovum
653,032
$2,653,032
' •`1 hfl
$990,000
$1,980,000
$3.533,399
$10.388,185
$950,740
n— Aa,.rr-1.7/eas—urnn_S J 10/R/"
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
THE DIAMOND BAR REDEVELOPMENT AGENCY,
and
TOOLEY & COMPANY
613590.2124168.0001
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is
entered into by and between the DIAMOND BAR REDEVELOPMENT AGENCY, a public body
corporate and politic (the "Agency") and TOOLEY & COMPANY, a California corporation (the
"Developer").
RECITALS
The following recitals are a substantive part of this Agreement; capitalized terms used herein
and not otherwise defined are defined in Section 101 of this Agreement:
A. The Redevelopment Plan for the Diamond Bar Economic Revitalization Area (the
"Redevelopment Project") was approved and adopted by the City Council of the City of Diamond Bar
on July 15, 1997, by Ordinance No. 03(1997).
B. The Agency is authorized -and empowered under the Community Redevelopment Law,
to enter into agreements for the acquisition, disposition and development of real property and otherwise
to assist in the redevelopment of real property within a redevelopment project area in conformity with a
redevelopment plan adopted for such area; to acquire real and personal property in redevelopment
project areas; to receive consideration for the provision by the Agency of redevelopment assistance; to
make and execute contracts and other instruments necessary or convenient to the exercise of its
powers; and to incur indebtedness to finance or refinance redevelopment projects.
C. The Developer has entered into an agreement for the purchase of that certain real
property which is approximately 13.33 acres in size of which approximately 9.86 acres is developable
and which is commonly referred to as Lot 2 of the Gateway Corporate Centers in the Redevelopment
Project (the "Site") as shown on the Site Map attached hereto as Attachment No. 1 and as more
particularly described in the Site Legal Description attached hereto as Attachment No. 2.
D. Developer intends to construct two office buildings with three stories each and 82,944
gross square feet and 78,300 net rental square feet (the "Project").
E. Developer intends to lease a portion of the Project to a Fortune 500 company which
will employ approximately 400 employees.
F. Developer is unwilling to proceed with the Project without the Agency's assistance in
the acquisition of the Site.
G. The Agency and the Developer desire to enter into this Agreement in order to
implement the provisions of the Redevelopment Plan by providing for Agency's acquisition of the Site
and the subsequent sale of the Site to the Developer for the construction and operation of the Developer
Improvements thereon.
613590.2\24168.0001
H. The Agency further desires to enter into this Agreement for the improvement of the
Site by the Developer because, pursuant to the Community Redevelopment Law and the
Redevelopment Plan, such actions will help to eliminate blight in the Redevelopment Project, increase
the employment opportunities within the Redevelopment Project, generate additional property taxes
with which the community can assist in providing an environment for the social, economic and
psychological growth and well-being of the citizens of the City.
I., The Agency's acquisition of the Site and sale of the Site to Developer and development
of the Site by Developer pursuant to this Agreement and the fulfillment generally of this Agreement are
in the vital and best interests of the City and the health, safety, and welfare of its residents and are in
accord with the provisions of applicable federal, state and local law.
NOW, THEREFORE, the Agency and the Developer hereby agree as follows:
100. INTRODUCTORY PROVISIONS
101. Definitions.
"Adjustment Factor" is defined in Section 201.3 hereof.
"Agency" means the Diamond Bar Redevelopment Agency, a public body, corporate and
politic, exercising governmental functions and powers and organized and existing under Chapter 2 of
the Community Redevelopment Law, and any assignee of or successor to its rights, powers and
responsibilities.
"Agency Improvements" means the improvements to be constructed by the Agency, as more
particularly described herein and in the Scope of Development. _.
"Agency's Conditions Precedent" is defined in Section 205.1 hereof.
"Agreement" means this Disposition and Development Agreement by and between the
Agency and the Developer.
"CC&R's" means the Declaration of Conditions, Covenants and Restrictions attached hereto
as Attachment No. 6 and incorporated herein by reference.
"City" means the City of Diamond Bar, a California municipal corporation.
"Claimant" is defined in Section 501 hereof.
"Closing" is defined in Section 202.4 hereof.
"Closing Date" is defined in Section 202.4 hereof.
"Commencement Date" is defined in Section 407 hereof.
"Community Redevelopment Law" means California Health and Safety Code
Sections 33000, et seq. as the same now exists or may hereafter be amended.
613590.2\24168.0001 -2-
"Construction Drawings" is defined in Section 302 hereof.
"Date of Agreement" means the date upon which this Agreement shall have been executed by
the Agency.
"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.
"Default Notice" is defined in Section 501 hereof.
"Developer" means Tooley & Company, a California corporation, and any assignee or
successor to the Developer permitted pursuant to the terms of this Agreement.
"Developer Costs" is defined in Section 614 hereof.
"Developer Improvements" means the improvements to be constructed by Developer, as
more particularly described herein and in the Scope of Development.
"Developer Loan" is defined in Section 201.1 hereof.
"Developer Loan Note" means the Developer Loan Note attached hereto as Attachment No. 9
and incorporated herein by reference.
"Developer Request" is defined in Section 614 hereof.
"Environmental Law" means (i) Sections 25115, 25117, 25122.7 or 25140 of the California
Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) Section 25316
of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner
Hazardous Substance Account Act), (iii) Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv)
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) Article 9 or Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (vi) Section 311 of the Clean Water Act (33 U.S.C..
Section 1317), (vii) Section 1004 of -the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seg. (42 U.S.C. Section 6903) or (viii) Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Sections 6901 et seq.
"Environmental Consultant" is defined in Section 207.2 hereof.
"Escrow" is defined in Section 202 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Exceptions" is defined in Section 203 hereof.
613590.2\24168.0001 -3-
"Governmental Requirement(s)" 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, Developer, the Developer or the Site.
"Grant Deed" means the Grant Deed for the conveyance of the Site from the Agency to
Developer which is attached hereto as Attachment No. 5 and incorporated herein by reference.
"Hard Costs" is defined in Section 201.3 hereof.
"Hazardous Materials" means any substance, material or waste which is or becomes, prior to
the Closing, 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
Sections 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 Hazardous 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) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean
Water Act (33 U.S.C. Section 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of
the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq. (42 U.S.C.
Section 6903) or (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Sections 6901, et seq.
"Improvements" means the Developer Improvements.
"Lender" is defined in Section 312.2 hereof.
"Memorandum of Agreement" means the memorandum of Agreement attached hereto as
Attachment No. 8 and incorporated herein by reference.
"Minimum Project Value" is defined in Section 405 hereof.
"Notice" is defined in Section 601 hereof. As used herein, the term "Notice" includes a
Default Notice.
"Outside Date" is defined in Section 202.4 hereof.
"Owner" shall mean Diamond Bar Business Associates, a Delaware Limited Partnership, the
present owner of the Site.
613590.2124168.0001 -4-
"Pending Litigation" shall mean Barbara Beach-Courchesne, et al. v. All Persons, et al.,
(Case No. BC 175655).
"Project" means and refers to both the Site and the Developer Improvements to be constructed
thereon.
"Redevelopment Plan" means the Redevelopment Plan for the Diamond Bar Economic
Revitalization Area (the "Redevelopment Project") which was approved and adopted by the City
Council of the City of Diamond Bar on July 15, 1997, by Ordinance No. 03(1997).
"Redevelopment Project" means the Diamond Bar Economic Revitalization Area, adopted by
the City pursuant to the Redevelopment Plan.
"Redevelopment Project Area" means the property which is within the Redevelopment
Project.
"Release of Construction Covenants" means the document which evidences Developer's
satisfactory completion of the Developer Improvements, as set forth in Section 311 hereof, in the form
of Attachment No. 7 hereto which is incorporated herein by reference.
"Report" is defined in Section 203 hereof.
"Schedule of Performance" means that certain Schedule of Performance attached hereto as
Attachment No. 3 and incorporated herein by reference, 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 Executive Director, and the Agency's Executive Director is authorized to
make such revisions as he deems reasonably necessary. _
"Scope of.Development" means that certain Scope of Development attached hereto as
Attachment No. 4 and incorporated herein by reference, which describes the scope, amount and quality
of development of the Developer Improvements to be constructed by the Developer and the Agency
Improvements which are the responsibility of the Agency pursuant to the terms and conditions of this
Agreement.
"Site" means that certain real property which is approximately 13.33 acres in size of which
approximately 9.86 acres is developable and which is commonly referred to as Lot 2 of the Gateway
Corporation Center, as depicted on the Site Map and more particularly described in the Site Legal
Description.
"Site Legal Description " means the description of the Site which is attached hereto as
Attachment No. 2 and incorporated herein by reference.
"Site Map" means the map of the Site which is attached hereto as Attachment No. 1 and
incorporated herein by reference.
"State" means the State of California.
613590.2124168.0001 -5-
"Title Company" is defined in Section 203 hereof.
"Title Policy" is defined in Section 204 hereof.
102. Representations and Warranties.
102.1 Agency Representations. Agency hereby makes the representations and
warranties contained below in this Section 102.1. All of the representations and warranties set forth in
this Section 102.1 are effective as of the Date of this Agreement. All of the representations and
warranties set forth in this Section 102.1 are made with the acknowledgment that they are material, and
with the intention that Developer and the Developer shall rely upon them as inducements to enter into
this Agreement and to perform their obligations hereunder. The representations and warranties
contained in this Section 102.1 shall each survive the execution of this Agreement without limitation as
to time.
(a) Authori . The Agency is a public body, corporate and politic, existing
pursuant to the Community Redevelopment Law, which has been authorized to transact business
pursuant to action of the City. The Agency has full right, power and lawful authority to enter into this
Agreement and the execution, performance and delivery of this Agreement by the Agency has been
fully authorized by all requisite actions.
(b) No Con ict. The 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.
(c) No AQencv Bankruptcy.. The Agency is not the subject of a bankruptcy
proceeding.
(d) Deliveries. All documents, instruments and other information
delivered by the Agency to the Developer pursuant to this Agreement are true, correct and complete.
Developer acknowledges that an action has been filed by Barbara
Beach-Courchesne and other interested parties challenging the validity of the Redevelopment Plan
(Barbara Beach-Courchesne, et al. v. All Persons, et al., Case No. BCI 75655) and Agency makes no
representation as to the possible outcome of such action. All representations made herein are made
subject to the results of such action. Each of the foregoing items (a) to (d), inclusive shall be deemed
to be an ongoing representation and warranty. The Agency shall advise Developer and the Developer
in writing if there is any change pertaining to any matters set forth or referenced in the foregoing items
(a) to (d), inclusive.
102.2 Developer's Representations. Developer hereby makes the representations
and warranties contained below in this Section 102.2. All of the representations and warranties set
forth in this Section 102.2 are effective as of the Date of this Agreement. All of the representations and
warranties set forth in this Section 102.2 are made with the acknowledgment that they are material, and
with the intention that the Agency shall rely upon them as inducements to enter into this Agreement and
to perform its obligations hereunder and to close the transactions contemplated herein. The
representations and warranties contained in this Section 102.2 shall each survive the execution of this
Agreement without limitation as to time.
613590.2\24168.0001 -6-
(a) Authority ofDeveloner. Developer is a duly organized limited liability
company organized and in good standing under the laws of the State of California and is authorized to
do business in California Developer has full right, power and lawful authority to undertake all
obligations of Developer as provided herein and the execution, performance and delivery of this
Agreement by Developer has been fiilly authorized by all requisite actions on the part of Developer.
Developer has provided the Agency with true and correct copies of documentation reasonably
acceptable to the Agency's Executive Director, or his designee, designating the party authorized to
execute this Agreement on behalf of Developer.
(b) -Authorfty o Developer. The Developer is a duly organized limited
liability company in good standing under the laws of the State of California The Developer has the
full, right, power and lawful authority to undertake all obligations of the Developer as provided herein
and the execution, performance and delivery of this Agreement by the Developer has been hilly
authorized by all requisite actions on the part of the Developer. The Developer has provided the
Agency with true and correct copies if documentation reasonably acceptable to the Agency's Executive
Director, or his designee designating the party authorized to execute this Agreement on behalf of
Developer.
(c) No Developer Conflict. Developer's execution, delivery and
performance of its obligations under this Agreement will not constitute a default or breach under any
contract, agreement or order to which Developer is a party or by which it is bound.
(d) No o Developer Bankruptcy. Developer is not the subject of a
bankruptcy proceeding.
(e) No Developer Conflict. The 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 Developer is a party or by which it is bound.
(f) Deliveries. To the extent of the actual knowledge of Developer, all
documents, instruments and other information delivered by the Developer to the Agency pursuant to
this Agreement are true, correct and complete.
Each of the foregoing items (a) to (f), inclusive shall be deemed to be an
ongoing representation and warranty. The Agency shall advise Developer and the Developer in writing
if there is any change pertaining to any matters set forth or referenced in the foregoing items (a) to (d),
inclusive.
103. Transfers of Interest in Site or Agreement.
103.1 Prohibition. The qualifications and identity of Developer are of particular
concern to the Agency. It is because of those qualifications and identity that the Agency has entered
into this Agreement with Developer. For the period commencing upon the Date of this Agreement and
until the issuance of the Release of Construction Covenants, no voluntary or involuntary successor in
interest of Developer shall acquire any rights or powers under this Agreement, nor shall Developer
make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the
whole or any part of the Site or the Developer Improvements thereon without prior written approval of
Agency, except as expressly set forth herein. Following the issuance of the Release of Construction
613590.2\24168.0001 -7-
Covenants, the Agency's approval of a transfer as contemplated under this Section 103.1 shall no
longer be required.
103.2 Permitted Transfers. Notwithstanding any other provision of this Agreement
to the contrary, Agency approval of an assignment of this Agreement or conveyance of the Site or the
Developer Improvements, or any part thereof shall not be required in connection with any of the
following (each of which shall be a "permitted transfer"):
(a) The conveyance or dedication of any portion of the Site to the City or
other appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Developer Improvements (as defined herein).
(b) Any requested assignment for financing purposes (subject to such
financing being considered and approved by Agency pursuant to Section 312 herein), including the
grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent
financing of the Developer Improvements.
(c) The lease of any portion of the Site and Developer Improvements in the
ordinary course of business.
(d) The conveyance of the Site or the Developer Improvements to arty
Affiliate of Developer.
103.3 Agency Consideration of Requested Transfer. The Agency agrees that it
will not unreasonably withhold approval of a request made pursuant to Section 103. 1, provided
Developer delivers written notice to the Agency requesting such approval. Such notice shall be
accompanied by sufficient evidence regarding the proposed assignee's or purchaser'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 Section 103 and as reasonably determined by the Agency. The Agency shall
evaluate each proposed transferee or assignee on the basis of its development and/or qualifications and
experience and its financial commitments and resources, and may reasonably disapprove any proposed
transferee or assignee, during the period for which Section 103 applies, which the Agency determines
does not possess equal or better qualifications than the transferring party. An assignment and
assumption agreement in a form reasonably satisfactory to Agency's legal counsel shall also be required
for all proposed assignments. Within thirty (3 0) days after the receipt of.a written notice requesting
Agency approval of an assignment or transfer pursuant to Section 103, the Agency shall either approve
or disapprove such proposed assignment or shall respond in writing by stating what further
information, if any, Agency requires in order to determine the request complete and determine whether
or not to grant the requested approval. Upon receipt of such a response, Developer shall promptly
furnish to the Agency such further information as may be reasonably requested.
103.4 Successors and Assigns. All of the terms, covenants and conditions of this
Agreement shall be binding upon 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.
613590.2\24169.0001 -8-
103.5 Assignment by Agency. Agency may assign or transfer any of its rights or
obligations under this Agreement at any time without the consent of Developer.
200. DISPOSITION OF SITE
201. Acquisition and Disposition of the Site. The Site shall be acquired by the Agency
and conveyed to the Developer in accordance with the terms of this section.
201.1 Acquisition by the Agency. The Developer agrees to assign its interest in the
acquisition agreement by and between the Developer and the Owner and the Agency agrees to
purchase the Site for Five Million Six Hundred Sixty -Six Thousand Nine Hundred Thirty -Eight Dollars
and No Cents ($5,666,938.00) in accordance with the terms of the Developer's acquisition agreement
and the terms and conditions of this Agreement.
201.2 Disposition of the Site to the Developer. For and in consideration of all of
Developer's obligations hereunder, including but not limited to the Developer's construction of the
Developer Improvements and the operation of the Project, the Agency hereby agrees to grant, transfer
and convey the Site to Developer and Developer agrees to acquire the Site from the Agency for the all-
inclusive purchase price of Three Million Six Hundred Sixty -Six Thousand Nine Hundred Thirty -Eight
Dollars and No Cents ($3,666,938.00). Payment of the Purchase Price represents the agreed upon
reuse value of the Site, at the use and with the covenants, conditions precedent, conditions subsequent
and development costs authorized by this Agreement. A portion of the purchase price shall be derived
from the moneys deposited in escrow as the Purchase Price for the Site pursuant to Section 201.2
hereof and the balance will derived from the proceeds of the Developer Loan as provided in
Section 201.3 hereof. The Developer and the Agency intend that the escrow for the acquisition of the
Site from the Owner and the escrow for the disposition of the Site to the Developer shall close
simultaneously. -..
201.3 Developer Loan. In connection with the purchase of the Site, Developer
agrees to loan or cause to be loaned to the Agency an amount equal to Two Million Dollars
($2,000,000) (the "Developer Loan"). The proceeds of the Developer Loan shall be deposited by the
Developer on behalf of the Agency in escrow as payment of the purchase price for the Site as provided
m Section 201.1. The Developer Loan will be secured by and paid from any legally available funds of
the Agency. The Developer understands and agrees that in the event that the Agency does not receive
a favorable non -appealable judgement in the Pending Litigation, there will be no available moneys to
repay the Developer Loan except for moneys in the Redevelopment Revolving Loan Fund. A portion
of the Developer Loan in the amount of $ shall be repaid in accordance with the terms
and provisions of the Developer Loan Note upon (i) receipt of evidence satisfactory to the Agency that
Developer has entered into a lease with a term of not less than ten (10) years with a Fortune 500
company and (ii) the issuance of the Release of Construction Covenants as provided in Section 311
hereof. The balance of the Developer Loan shall be repaid upon notification of the above conditions
and receipt of a favorable non -appealable judgement in the Pending Litigation. The principal amount
of the Developer Loan shall be adjusted downwards by an amount equal to the Adjustment Factor. For
purposes of this paragraph, the Adjustment Factor shall be the percentage difference between the
projected Hard Costs and actual Hard Costs incurred by Developer in the construction of the
Developer Improvements. "Hard Costs" shall include only the following expenses: all direct labor and
construction material costs associated with the contracts relating to preparation of the Site and
613590.2\24168.0001 -9-
Covenants, the Agency's approval of a transfer as contemplated under this Section 103.1 shall no
longer be required.
103.2 Permitted Transfers. Notwithstanding any other provision of this Agreement
to the contrary, Agency approval of an assignment of this Agreement or conveyance of the Site or the
Developer Improvements, or any part 1hereot shall not be required in connection with any of the
following (each of which shall be a "permitted transfer"):
(a) The conveyance or dedication of any portion of the Site to the City or
other appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Developer Improvements (as defined herein).
(b) Any requested assignment for financing purposes (subject to such
financing being considered and approved by Agency pursuant to Section 312 herein), including the
grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent
financing of the Developer Improvements.
(c) The lease of any portion of the Site and Developer Improvements in the
ordinary course of business.
Affiliate of Developer. (d) The conveyance of the Site or the Developer Improvements to any
103.3 Agency Consideration of Requested Transfer. The Agency agrees that it
will not unreasonably withhold approval of a request made pursuant to Section 103. 1, provided
Developer delivers written notice to the Agency requesting such approval. Such notice shall be
accompanied by sufficient evidence regarding the proposed assignee's or purchaser's development
and/or operational qualifications and experience, and its financial commitments and resources, in
sucient detail to enable the Agency to evaluate the proposed assignee or purchaser pursuant to the
criffiteria set forth in Section 103 and as reasonably determined by the Agency. The Agency shall
evaluate each proposed transferee or assignee on the basis of its development and/or qualifications and
experience and its financial commitments and resources, and may reasonably disapprove any proposed
transferee or assignee, during the period for which Section 103. applies, which the Agency determines
does not possess equal or better qualifications than the transferring party. An assignment and
assumption agreement in a form reasonably satisfactory to Agency's legal counsel shall also be required
for all proposed assignments. Within thirty (30) days after the receipt of.a written notice requesting
Agency approval of an assignment or transfer pursuant to Section 103, the Agency shall either approve
or disapprove such proposed assignment or shall respond in writing by stating what further
information, if any, Agency requires in order to determine the request complete and determine whether
or not to grant the requested approval. Upon receipt of such a response, Developer shall promptly
famish to the Agency such further information as may be reasonably requested.
103.4 Successors and Assigns. All of the terms, covenants and conditions of this
Agreement shall be binding upon 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.
613590.2\24168.0001 _g_
development and construction of all Improvements on the Site. This would include, but not be limited
to, any remaining demolition and grading for Site preparation, the installation of the foundation system
for the structure, the construction of the office buildings,
lls, exterior
facades, interior facades, electrical work for common areas cand all inddi luding dual offices, g, walls. stairweuired fire and
life safety systems, heating, venting and air conditioning systems for the common areas and all
individual offices, light fixtures for the common areas and all individual offices, all required plumbiing
fixtures for the common areas and all individuals officers, installation of approved floor coverings for
the common areas and all individual offices. Any and all exterior site work for the approved project
site design plan shall include, but not be limited to, all walkways,
parkin areasconcrete curbs, paved walkways
Parking , appropriately installed irrigation systems in all planted areas, all code and design
required exterior lighting, including any and all freestanding light standards
required as part of this Agreement, and anany and other items
certificate of occupancy for the entire structure and individual units. "fid Costs" the
the
t of a
costs of architect, engineering and design services related to the above items, but shall not include
development, permit and inspection fees imposed by public agencies; bond premiums; marketing,
advertising and promotions; legal fees and insurance.
Costs. No adjustment shall be made in the event that actual Hard Costs exceed projected Hard
202. Escrow. Within the time set forth in the Schedule of Performance the parties shall
Open escrow (the "Escrow") with First American Title Insurance Company Escrow or another escrow
company mutually satisfactory to both parties (the "Escrow Agent,,).
202.1 Costs of Escrow. The Developer shall pay the premium for the Title Policy as
set forth in Section 204 hereof, the documentary transfer taxes, if any, due with respect to the
conveyance of the Site, and all other usual fees, charges, and costs which arise from the Escrow.
202.2 Escrow Instructions. -This Agreement constitutes the joint escrow
instructions of Developer, the 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 actsreasonably
policies for fire necessary to close the Escrow in the shortest possible time. licies after the Closing. All funds received Insurance re or casualty are
not to be transferred, and the Agency will cancel its own po
in the Escrow shall be deposited with other escrow funds in a general escrow account(s) and may
trust account in any State or National Bank doing business in the
transferred to any other such escrow
State. All disbursements shall be made by check from such account.
If in the opinion of any party it is necessary or convenient in order to accomplish the
Closing, such party may require that the parties sign supplemental escrow instructions; 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 when both the Agency's Conditions Precedent and the
Developer's Conditions Precedent as set forth in Section 205 have been satisfied or waived 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. The Escrow Agent is authorized to, and shall:
613590.2\24168.0001
-10-
(a) Pay and charge the Developer for the premium of the Title Policy as set
forth in Section 204 hereof.
(b) Pay and charge Developer any escrow fees, payable
under Section 202.1 of this Agreement. charges, and costs
Section 204 hereof. (c) Pay and charge the Developer for title insurance as provided in
.
(d) Disburse funds and deliver and record the Grant Deed and the CC&R's
when both Developer's Conditions Precedent and the Agency's Conditions Precedent have been
fulfilled or waived by Developer on the one hand, and the Agency on the other hand.
Poli(e) Do such other actions as necessary, including obtaining the Title
Policy, fiilfill its obligations with respect to the Site under this Agreement.
(� Within the discretion of the Escrow Agent and, if necessary, direct the
Agency and Developer to execute and deliver an
any act reasonably necessary to comply with the anyan
oInstrumenf affidavit, and statement, and to perform
regulation promulgated thereunder. Agency p FIRPTA and any similar state act and
individual transferor and/or a Certification of Compliance with Real F,stees to execute a Certificate f Non -Foreign Status by
the 1986 Tax Reform Act as may be required by the Escrow Agent, on the form to eRequirement
s supplied en the
Escrow Agent.,
(9) Prepare and file with all appropriate governmental or taxing authorities
a uniform settlement statement, closing statement, tax withholding forms including an -xi 109th
form, and be responsible for withholding taxes, if any such forms are provided for or required by law,.
202.4 Closing. The conveyance of the Site shall close (the "Closin "
days of the parties'satisfaction or waiver of all ofthe Agency's and the Developer's Conditionswithin ten (10)
Precedent as set forth in Section 205 hereof, but in no event later than October 30 1998
Date"), unless an extension is mutually agreed to by all parties. The "Closing" shall mean thethe time n
time and
day the Grant Deed is filed for record with the Los Angeles County Recorder. The "Closing Date"
shall mean the day on which the Closing occurs.
202.5 Termination. If the Escrow i
then either Developer or Agency, s not in condition to close by the Outside Date,
if such
writing, demand the return of mon or o� has fully performed under this Agreement may, in
the Agency makes a written demand forpeturn of docty and tumeritsator propee this rties, this A If reem either eloper or
terminate until five (5) days after the Escrow Agent shall have delivered copies o ch demand to all
other parties at the respective addresses shown in this Agreement. If any objections are raised within
said five (5) day period, the Escrow Agent is authorized to hold all
instructed by a court of competent jurisdiction or by mutual written instructionpapers ds of the partieocuments an s
Termination of this Agreement shall be without prejudice as to whatever legal rights either party
have against the other arising from this Agreement. If no demands are made the Escrow AY
Proceed with the Closing as soon as possible. bent shall
613590.2124168.0001
-11-
follows: 202.6 Closing Procedure. The Escrow Agent shall close the Escrow for the Site as
(a) Record the Grant Deed with instructions for the Recorder of Los
Angeles County, California to deliver the Grant Deed to Developer and
a conformed copy to Developer,
(b) Record the CC&Rs with instructions for the Recorder of Los Angeles
County, California to deliver the CC&Rs to the Agency;
(c) Instruct the Title Company to deliver the Title Policy to the Developer;
(d) File any informational reports required by Internal Revenue Code
Section 6045(e), as amended, and any other applicable requirements;
(e) Deliver the FRU TA Certificate, if any, to Developer;
M Forward to Developer, the Developer and the Agency a separate
accounting of all funds received and disbursed for each
copies of all executed and recorded or filed documents deposited and
the Escrow, with such recording and film intoendorsed thereon; and g date and information
(g) Record documents requested by Developer subsequent to the
recordation of the Grant Deed and the CC&R's and provide conformed
copies thereof to Developer.
203. Review of Title. Within the time set forth in the Schedule of Performance, the Agency
shall cause First American Title Insurance Company, or another title company mutuall
both parties (the "Title Company" ), to deliver to Developer a standard CLTA re ' y agreeable to
(the "Report") with respect to the title to the Site, to P hminary title report
underlying the exceptions ("Exceptions") set forth in the RePortlandba plat shoies ofwing all easements
Developer shall have the right to reasonably approve or disapproveThe
the Exceptions.
Within the time set forth in the Schedule of Performance, the Developer shall give written
notice to the Agency and the Escrow Agent of Developer's approval or disapproval of any of such
Exceptions or the Survey. Developer's failure to give written disapproval of the Report or the
within such time limit shall be deemed Survey
therein. If the Developer notifies the Agency of ts dis Spey, the Report and the Exceptions set forth
Spey, the Agency shall have the ri approval of any Exceptions in the Report or the
within fifteen 15daght, but not the obligation, to remove any disapproved Exceptions
reasonably satisfactory to the receiving toper tilt sum Enoticxception(s) f Developer's disapproval or provide assurances
Closing. ff the Agency, ce removed on or before the
annot or does not elect to remove any of the disapproved Exceptions within
that period, the Agency shall provide written notice of such election to Developer within such fifteen
0 5) day period. The Developer shall then have ten (10) business days after the expiration of such ten
(10) business day period either give the Agency elects
to pr
the Purchase of the Site subject to the disapproved Exceptions or totgiDeve e Agenveloper written eed with
Developer elects to that
terminate this Agreement The Developer shall have the right to notice
� approve or
613590.2124168.0001
-12-
WrtlnQ--
disapprove any Exceptions reported by the Title Company after the Developer has approved the Report
for the Site (which are not created by Developer). The 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 to Developer, there shall be issued to Developer a CLTA owner's policy of title insurance (the
"Title Policy"), together with such endorsements as are reasonably requested by 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 Developer shall pay the
premium for the Title Policy including the cost of an ALTA policy or any endorsements requested by
Developer.
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 conveyance of the Site is subject to the fulfillment or waiver by the Agency in writing of
each and all of the conditions precedent (a). through (e), inclusive, described below ("Agency's
Conditions Precedent"), which are solely for the benefit of the Agency, and which shall be filled or
waived in writing by the Agency by the time periods provided for herein:
(a) No De ault. Prior to the Close of Escrow, Developer is not in default
in any of its obligations under the terms of this Agreement and all representations and warranties of
Developer and the Developer contained herein shall be true and correct in all material respects.
(b) Execution ofDocuments and Funding ofDeveloper Loan. Developer
shall have executed and delivered the CC&R's and any other document to which it is a party and shall
have delivered the proceeds of the Developer Loan to the Escrow Agent.
(c) Payment of Closing Costs. Developer has paid or submitted to Escrow
all costs of Closing which are Developer's obligation in accordance with Section 202.1 hereof.
(d) ProofofFinancing. Developer shall have provided the evidence of
financing to the Agency in accordance with Section 312.1 hereof and the Agency's Executive Director
or his designee has approved such proof of financing.
(e) Articles of Organization. Developer shall have submitted to the
Agency its articles of organization and such other organizational documents reasonably requested by
the Agency. .
205.2 Developer's Conditions of Closing. Developer's obligation to accept
conveyance of the Site is subject to the fulfillment or waiver by Developer in writing of each and all of
the conditions precedent (a) through (g), inclusive, described below ("Developer's Conditions
Precedent"), which are solely for the benefit Developer, and which shall be fiilfilled or waived in
writing by Developer (or by Developer on behalf of Developer) by the time periods provided for
herein:
613590.2124168.0001 -13-
(a) No De ault. The Agency is not in default in any of its obligations under
the terms of this Agreement and all representations and warranties of the Agency contained herein shall
be true and correct and not misleading in all material respects.
(b)Execunon ofDocuments. The Agency shall have executed and
delivered the Grant Deed, CC&R's and the Developer Loan Note and any other document to which it is
a party.
(c) Review and Approval of Title. Developer shall have reviewed and
approved the Report, as provided in Section 203 hereof.
(d) Title a Policy. The Title Company shall be prepared to issue the Title
Policy to Developer in the form required under Section 204 of this Agreement.
206. Condition of the Site.
206.1 As -Is Condition. Notwithstanding any provisions of this Agreement to the
contrary, the Site shall be conveyed in an "as is" condition, with no warranty, express or implied by the
Agency, as to the condition of improvements on the Site, the soil, its geology, the presence of known or
unknown faults or Hazardous Materials or toxic substances. It shall be the sole responsibility of
Developer at its expense to investigate and determine the soil and improvement conditions for the
development to be constructed. If the soil environmental condition is not in all respects entirely suitable
for the use or uses to which the Site will be put, then, the Developer may terminate this Agreement or
may take such action as may be necessary to place the soil conditions of the Site in a condition entirely
suitable for its development.
206.2 Investigation of Site. Developer, with the approval of the Owner, shall have
the right, at its sole cost and expense, to engage its own environmental consultant (the "Environmental
Consultant") to make such investigations as Developer deems necessary, including any "Phase 2"
investigations of the Site. The Developer shall provide the Agency with a copy of any and all studies
and reports provided to Developer by the Environmental Consultant, or such other consultant engaged
by Developer.
206.3 Developer Precautions After Closing. Upon the Closing, 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 are consistent with
commercially reasonable standards as respects the disclosure, storage, use, removal and disposal of
Hazardous Materials in, on or under the Site.
206.4 Required Disclosures After Closing. After the Closing, the Developer shall
notify the Agency, and provide to the Agency a copy or copies, of all notices of violation, notices to
comply, citations, inquiries, clean up or abatement orders, cease and desist orders, reports filed
pursuant to self -reporting requirements and reports filed or applications made pursuant to any
Governmental Requirement relating to Hazardous Materials and underground tanks. The Developer
shall report to the Agency, as soon as possible after each incident, any known Hazardous Materials
release or known circumstances which would potentially lead to such a release.
613390.2\24168.Ooo1 -14-
206.5 Developer indemnity - Hazardous Materials. LT
Developer agrees to indemnify, defend and hold the A andt the Closing, the
employees, agents, representatives and volunteers Agency and the City, their respective officers,
proceeding, loss, cost, damage, liability,, harmless from and agate any cl
(including, without limitation, attorneys- f deficiency. fine, Penalty. Punitive damage, ori action, suit,
se
Presence, release, use, generati )' resulting from, arising out ol; or based pori G)
in or about, or the transportation�' ��rge, storage or disposal of any Hazardous Materials n (i) the
Developer at its success any such Hazardous Materials to or from, the Site, by the on, ander,
alleged violation, y sns arising or occurring after the Closing Date or (ii)the violation, or
�, b the Developer or its successors or assigns of
regulation, pelt judgment or license relatingani' she, ordinance, order, rule,
disposal or transportation OfHazardous
to the use, generation, release, disc
indemnityHazardous MateriAls on, under, in or about, to or fro fie' storage,
shall include, without limitation, any damage, liabili nh, the Site. This
closing cost or expertise arising from to out of ancl ' ty' fine, Penalty, parallel indemnity after
(including sickness, disease or death y �' �O� suit or proceeding for personal injury
wages, business income, profits or other economic lor *oss,
property eco
dig , compensation for lost
environment, nuisance, contamination, leak, , damage to the natural resource or the
This indemnity shall not include the sP�, release or other adverse effect on the environment.
the negligent or intentional Portion of any Claim resulting from, arising out of, or based upon
acts or omissions of the Agency, or any of its officers, employees or agents.
207• Taws and Assessments. Ad valorem taxes and assessments, if anon
levied, assessed, or imposed for an
y Period ad valorem taxes and assessments levied o Proposed forrior to the y' the Site
Ing, shall be home by the Owner. All such
Developer. y Period after the Closing shall be paid by
300. DEVELOPMENT OF THE SITE
301. Scope of Development. The Developer shall develop the Developer
Improvements upon the Site in accordance witttlhe Scope ofDevelopmentand
approvals for the Site includin P
Periods set forth in the Schedule without
h t limitation,
the t toRe the Redevelopment plan and within entitlements
drawings and documents submitted by Develo er and provisions of Section 602 and the plans,
Developer Improvements P approved by Agency S set forth herein. The
hundred forty-four (82,91 generally consist of two approximate eighty-two
the Scope of Development.) Withe -foot in the time frame se o thousand nine
buildings'
each with three storiesched , as more fully described in
shall submit to the Agency and the City for review and approval, schematic buildingule erformanCe' Developer
("Building Elevations") which shall depict the exterior
the Site. Any Building Elevations set forth in any subsequent Co gto elevations
app of the building to be constructed on
Developer pursuant to Section 302 below Construction Drawings Buildingwhich are in substantial conformance with the approved by
Elevations, Specific Plan, Design Guidelines and CCR's shall be deemed a approved
Agency and the City. approved by the
613590.2124168.0001
-15-
302. Construction Drawings and Related Documents. Within the time set forth in the
Schedule of Performance, the Developer shall prepare and submit to the City and the Agency,
construction drawings, landscape Plans, and related documents required for the development of the Site
(the "Construction Drawings"). The City shall have the right Drawings, including any Proposed changes therein. The 8mo review and approve all Construction
attempt to coordinate with the City to cause the reviews and Agency shall utilize reasonable efforts in an
Developer Improvements to occur in as expeditious a mannerd approvals
required in connection with the
possible.
303• Land Use Approvals. Except as otherwise expressly set forth here'
n, prior to
commencement of construction of the Developer Improvements or other works of improvement upon
the Site, Developer shall, at its own expense, secure any and all land use and other entitlements, and
approvals which may be required for the Developer Improvements by the City and/or any other
govemmental agency affected by such construction or work. Developer shall, on behalf of Developer
without limitation, apply for and secure all permits required by the City, County of Los Angeles and
Other governmental agencies with jurisdiction over the Developer Improvements..
304. Schedule of Performance. Developer shall submit the Construction Drawings,
commence and complete all construction of the Developer Improvements, and satisfy all other
obligations and conditions of this Agreement which are the obligation of Developer within the times
established therefor in the Schedule of Performance. The Schedule of Performance is subject to
revision from time -to -time as mutually agreed upon in writing by the Developer and the Agency's
Executive Director and Agency's Executive Director is authorized to make such revisions as he deems
reasonably necessary.
305. Cost of Construction. Ail of the cost ofPlanning,
constructing all of the Developer Improvements, shall be bornolelydesigning,
by D Developer.
and
306. Payment of Fees by Developer. Developer shall
satisfied, any City development impact fees pay, or otherwise cause to be
P payable in connection with the Developer vnprovements.
307. Insurance Requirements. The Developer shall take out and maintain or shall cause
its contractor to take out and maintain until the issuance of the Release of Construction Covenants
Pursuant to Section 311 of this Agreement, a comprehensive general liability policy in the amount of
Two Million Dollars ($2,000,000.00) combined single limitoli
liability policy in the amount of Two Million Dollars ($2,000 00 0�0), combined sand a hingle limitensive or such
other policy limits as the Agency may approve at its discretion, including contractual liability, as shall
protect Developer, the City and the Agency from claims for such damages. 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 the Developer and
contracted for the performance of work on the Site or otherwise pursuant tttothis greemen whom has
workers' compensation insurance as required by law. The Developer shall furnish a certificate of
insurance countersigned by an authorized agent of the insurance carrier setting forth the general
provisions of the insurance coverage. This countersigned certificate shall name Developer, 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 the City and the Agency of any material
613590.2124168.0001
-16-
change, cancellation or termination of the coverage at least thirty (30) days (or such shorter period as
approved by the Executive Director) 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 the 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 prior to the commencement of construction of the Developer Improvements.
308. Developer's Indemnity. The Developer shall defend, indemnify, assume all
responsibility for, and hold the Agency and the City, .and their representatives, officers, employees and
agents, harmless from, all claims, demands, damages, defense costs or liability of arty kind or nature
relating to the subject matter of this Agreement or the implementation hereof and for any damages to
property or injuries to persons, including accidental death (including attorneys fees and costs), which
are legally caused by any acts or omissions of the Developer under this Agreement, whether such
activities or performance thereof be by the Developer or by anyone directly or indirectly employed or
contracted with by the Developer and whether such damage shall accrue or be discovered before or
after termination of this Agreement. This indemnity shall not include the portion of any claim resulting
from, arising out of, or based upon the negligent or intentional acts or omissions of the Agency, or any
of its officers, employees or agents.
309. Rights of Access. 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 Developer Improvements so long as Agency representatives comply with all safety
rules and do not unreasonably interfere with the work of Developer.
310. Compliance With Laws. The Developer shall carry out the design and construction
of the Developer 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's Municipal Code, and all applicable disabled and
handicapped access requirements, including without limitation the Americans With Disabilities Act, 42
U.S.C. Sections 12 10 1, et seq., California Government Code Sections 4450, et seq., Califomia
Government Code Sections 11135, et seq., and the Unruh Civil Rights Act, California Civil Code
Sections 51, et seq.
310.1 Nondiscrimination in Employment. The Developer certifies and 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 VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 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. Sections 621, et seq., the Immigration Reform and Control Act of 1986, 8 U.S.C.
Sections 1324b, et seq., 42 U:S.C. Section 1981, the California Fair Employment and Housing Act,
California Government Code Sections 12900, et seq., the California Equal Pay Law, California Labor
Code Sections 1197.5, California Government Code Section 11135, the Americans with Disabilities
Act, 42 U.S.C. Sections 12101, et seq., and all other anti -discrimination laws and regulations of the
613590.2124168.0001 -17-
United States and the State of California as they now exist or may hereafter be amended The
Developer shall allow representatives of the Agency access to its employment records related to this
Agreement during regular business hours at Developer's principal office in Santa Monica, California to
verify compliance with these provisions when so requested by the Agency.
310.2 Taxes and Assessments. Following the Closing, Developer shall pay prior to
delinquency all ad valorem real estate taxes and assessments on the Site. Developer shall remove or
have removed any levy or attachment made on any of the Site, or any part thereof; or assure the
satisfaction thereof within a reasonable time.
311. Release of Construction Covenants. Promptly after completion of the Developer
Improvements in conformity with this Agreement and written request of the Developer, the Agency
shall furnish the Developer with a Release of Construction Covenants in the form of Attachment No. 7
hereto. The Agency shall not unreasonably withhold or delay such Release of Construction Covenants.
The Release of Construction Covenants shall be a conclusive determination of satisfactory completion
of the Developer 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 set forth in Sections 400 of this Agreement If the
Agency refuses or fails to furnish the Release of Construction Covenants for the Site after written
request from the Developer, the Agency shall, within thirty (30) working days of such written request,
provide Developer with a written statement setting forth the reasons the Agency has refused or failed to
furnish the Release of Construction Covenants for the Site. The statement shall also contain a list of the
actions the Developer must take to obtain a Release of Construction Covenants.
Such 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. Such Release of
Construction Covenants is not a notice of completion as referred to in the California Civil Code,
Section 3093.
312. Financing of the Developer Improvements.
312.1 Approval of Financing. Prior to the Effective Date of this Agreement, Developer has
submitted evidence to the Agency that Developer has an equity capital commitment from Developer for
the construction and permanent financing necessary to undertake the development of the Site and the
construction of the Developer Improvements in accordance with this Agreement. By its execution of
this Agreement, Agency acknowledges that the Agency's Executive Director has approved such
evidence of financing.
312.2 No Encumbrances Except Mortgages, Deeds of Trust, or Sale and
Lease -Back for Development. Mortgages, deeds of trust and sales and leases -back are to be
permitted before completion of the construction of the Developer Improvements with the Agency's
prior written approval, which shall not be unreasonably withheld or delayed, but only for the purpose of
securing loans of funds to be used for financing the construction of the Developer Improvements;
permanent financing; and any other purposes necessary and appropriate in connection with
development under this Agreement. Developer shall notify the Agency in advance of any mortgage,
deed of trust or sale and lease -back financing, if Developer proposes to enter into the same before
613590.2\24168.0001 _18-
completion of the construction of the Developer Improvements. The words "mortgage" and "trust
deed" as used hereinafter shall include sale and lease -back. Developer shall not enter into any such
conveyance for financing without the prior written approval of the Agency, which approval the Agency
agrees to give if any such conveyance for financing is given to a responsible financial lending institution
or person or entity including, without limitation, any Affiliate of Developer ("Lender"). Developer may
enter into a conveyance for financing after the completion of the Developer Improvements as evidenced
by the issuance of the Release of Construction Covenants as set forth in Section 310 hereof without the
approval of the Agency. Nothing herein shall affect any Permitted Transfer in accordance with
Section 103.2.
3123 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 Developer 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.
312.4 Notice of Default to Developer, Mortgagee or Deed of Trust Holders;
Right to Cure. With respect to any mortgage or deed of trust granted by the Developer as provided
herein, whenever the Agency delivers any Default Notice or demand to the Developer with respect to
any breach or default by the Developer in completion of construction of the Developer's Improvements,
the Agency shall deliver to Developer and to each holder of record of any mortgage or deed of trust
authorized by this Agreement a copy of such notice or demand if the Developer fails to cure the
Default within the time set forth in Section 501 hereof. Developer and/or each such holder shall
(insofar as the rights granted by the Agency are concerned) have the right, at its option, within thirty
(3 0) 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 curear 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 Developer or such holder to undertake or continue the construction or
completion of the Developer 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. Developer or 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 Developer or such holder relates. Developer
or any such holder properly completing such improvement shall be entitled, upon compliance with the
requirements of Section 311 of this Agreement, to a Release of Construction Covenants. It is
understood that a holder shall be deemed to have satisfied the thirty (30) 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 thirty (30) 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.
312.5 Failure of Holder to Complete Improvements. In any case where, thirty
(30) days after Developer or the holder of any mortgage or deed of trust creating alien or encumbrance
upon the Site or any part thereof receives a notice from the Agency of a default by the Developer in
613590.2124168.0001 -19-
completion of construction of any of the Developer's Improvements under this Agreement, and such
party has not exercised the option to construct as set forth in Section 312.4, or if it has exercised the
option but has defaulted hereunder and failed to timely cure such default, the Agency may purchase the
mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of
trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust.
If the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so desires,
shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an
amount equal to the sum of the following:
(a) The unpaid mortgage or deed of trust debt at the time title became
vested in the holder (less all appropriate credits, including those resulting from collection and
application of rentals and other income received during foreclosure proceedings);
fees; (b) All expenses with respect to foreclosure including reasonable attorneys'
(c) The net expense, if any (exclusive of general overhead), incurred by the
holder as a direct result of the subsequent management of the Site or part thereof;
(d) The costs of any improvements made by such holder;
(e) , An amount equivalent to the interest that would have accrued on the
aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and
such debt had continued in existence to the date of payment by the Agency; and
(f) Any customary prepayment charges imposed by the lender pursuant to
its loan documents and agreed to by the Developer.
312.6 Right of the Agency to Cure Mortgage or Deed of Trust Default. In the
event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the
construction of any of the Developer's Improvements or any part thereof, Developer shall immediately
deliver to Agency a copy of any holder's notice of default. If the holder of any mortgage or deed of
trust has not exercised its option to construct, the Agency shall have the right but no obligation to cure
the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all
proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be
entitled to alien upon the Site to the extent of such costs and disbursements. Any such lien shall be
junior and subordinate to the mortgages or deeds of trust pursuant to this Section 312.
400. COVENANTS AND RESTRICTIONS
401. Covenant to Use Site In Accordance with Redevelopment Plan. Developer
covenants and agrees for itself and its successors, assigns, and every successor in interest to the Site or
any part thereof that Developer, and such successors and assignees, shall devote the Site only to those
uses specified or permitted in the Redevelopment Plan and this Agreement for the periods of time
specified therein.
613590.2124168.0001 _20.
402. Operating Covenant. Developer covenants and agrees for itself; its successors and
assigns and any successor in interest to the Site or any part thereof that the Site shall be used, operated,
and occupied solely as a corporate office center, a portion of which will be leased to a Fortune 500
company or such other use permitted in the Redevelopment Plan which is approved by the Agency in
writing for a period of not less than ten (I o) years commencing upon the issuance of the Release of
Construction Covenants. Notwithstanding the foregoing, the Developer represents and warrants to the
Agency that it intends as of the Date of this Agreement to operate the Project on the Site for the period
of not less than fifteen (15) years following the issuance of the Release of Construction Covenants.
403. Maintenance Covenants. Developer covenants and agrees for itself, its successors
and assigns and any successor in interest to the Site or part thereof to maintain the Site and all
improvements thereon in compliance with the terms of the Redevelopment Plan and with all applicable
provisions of the City of Diamond Bar Municipal Code.
404. Nondiscrimination Covenant. Developer covenants and agrees for itself and its
successors, assigns, and every successor in interest to the Site or any part thereof 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, physical or mental disability or medical condition, handicap, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site,
nor shall Developer, 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 covenant
shall run with the land.
Developer shall refrain from restricting the rental, sale or lease of the Site on the basis
of race, color, creed, religion, sex, marital status, physical or mental disability or medical condition,
handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or
be subject to substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or herself,
his heirs, executors, administrators and assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of, arty person or group of persons on account of
race, color, creed, religion, sex, marital status, physical or mental disability or medical condition,
handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming
under or through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with
the land."
(b) In leases: "The lessee herein covenants by and for himself or herself,
his 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:
613590.2124168.0001 -21-
"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, physical or mental disability or medical condition,
handicap, ancestry or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the premises
herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the premises herein leased."
(c) In contracts relating to the sale, transfer or leasing of the Site or any .
interest therein: "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, physical or mental disability or
medical condition, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any
person claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the premises."
The covenants established in this Agreement shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its successors and
assigns, the City and any successor in interest to the Site, together with any property acquired by
Developer pursuant to this Agreement, or any part thereof.
405. Minimum Project Value Covenant. Developer covenants and agrees for itself~ its
successors, assigns and every successor and interest to the Site or any part thereof, that the minimum
assessed value of the Developer Improvements, the Site, and such other property which is -assessed for
purposes of the secured or unsecured roll to be -installed, placed or constructed on the Site upon
completion of such.installation and construction shall not be less than Twenty -Two Million Dollars
($22,000,000.00) (the "Minimum Project Value"). Should the assessed valuation fall below the
Minimum Project Value in any year, Developer shall pay directly to the Agency the difference of the
Minimum Project Valueless the current year assessed value multiplied by 1% payment by the
Developer shall be made annually on or prior to December 10 to the Agency.
406. Minimum Assessed Valuation. Developer covenants and agrees by and for itself; its
successors, assigns and every successor in interest to the Site or any part thereof, that Developer shall
not take action (or permit Developer to take action) to decrease the assessed value (including the value
of the Developer Improvements) of the Site for property tax purposes below the Minimum Project
Value.
407. Commencement of Operation. Subject to the extensions of time set forth in
Section 602 hereof, the Developer covenants and agrees by and for itself, its successors and assigns
and every successor in interest to the Site or any part thereof, to use its best and commercially
reasonable efforts to cause the Project to be open and operational on the Site on or before January 1,
2000 (the "Commencement Date").
613590.2\24168.0001 _22_
408. Effect of Violation of the Terms and Provisions of this Agreement. 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. 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 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 term of the Redevelopment Plan that is until July 15,
2027, provided however, that notwithstanding the foregoing, the use covenant set forth in Section 402
hereof shall remain in effect for the period of time set forth therein and the covenants against
discrimination, as set forth in Section 404 hereof, 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 (the "Claimant") shall give written notice
to the other party specifying the alleged grounds for the Default (the "Default Notice"). 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 within thirty (30) days from
receipt of the notice required by this Section 501 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, any 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 consistent with the purpose
of this Agreement. Such legal actions must be instituted in the Superior Court of the County of
Los Angeles, State of California, in an appropriate municipal court in that county, or in the United
States District Court for the Central District of California
503. Termination by Developer. Prior to the Conveyance of the Site to Developer, in the
event of any other Default of the Agency, which is not cured within the time set forth in Section 501
hereof, and provided that Developer is not in Default of this Agreement, this Agreement may, at the
option of Developer, be terminated by Notice thereof to the Agency. From the date of the Notice of
termination of this Agreement by Developer to the Agency and thereafter this Agreement shall be
deemed terminated and there shall be no further rights or obligations between the parties.
504. Termination by Agency. Prior to the Conveyance of the Site to Developer, in the
event of any other Default of Developer, which is not cured within the time set forth in Section 501
hereof, and provided that the Agency is not in Default of this Agreement, this Agreement may, at the
option of the Agency, be terminated by Notice thereof to Developer. From the date of the Notice of
613590.2\24168.0001 -23-
termination of this Agreement by the Agency to Developer and thereafter this Agreement shall be
deemed terminated and there shall be no further rights or obligations between the parties.
505. Acceptance of Service of Process. In the event that any legal action is commenced by
Developer against the Agency, service of process on the Agency shall be made by personal service
upon the Executive 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 Developer, service of process on
Developer shall be made in such manner as may be provided by law.
506. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of
one or more of such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default by the other party.
507. 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 and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
508. Applicable Law. The laws of the State shall govern the interpretation and
enforcement of this Agreement.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("Notice") required or permitted under this Agreement
must be in writing and shall be sufficiently given if delivered by hand (and a receipt therefor is obtained
or is refused to be given) or dispatched by registered or certified mail, postage prepaid, return receipt
requested, or delivered by telecopy or ovemiglit delivery service to:
To Agency: Diamond Bar Redevelopment Agency
21660 E. Copley Drive, Suite 100
Diamond Bar, CA 91765
Attention: Executive Director
To Developer: Tooley & Company
11150 Santa Monica Blvd., Suite 200
Los Angeles, CA 90025
Attention: David C. Sears
Such written notices, demands and communications may be sent in the same manner to such
other addresses as either party may from time to time designate by mail as provided in this Section 601.
602. 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: litigation challenging the validity of this transaction or any element
6I3590.2\24168.0001 -24-
thereof or the right of either party to engage in the acts and transactions contemplated by this
Agreement, inability to secure necessary labor materials or tools; or withdrawal of financing not caused
by any act or omission of Developer; 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; unusually severe weather, 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); or any other causes beyond the control or without the fault of the party
claiming an extension of time to perform. 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 forty-five (45) days of the commencement of the cause.
Times of performance under this Agreement may also be extended in writing by the mutual agreement
of the Agency and the Developer. Notwithstanding any provision of this Agreement to the contrary,
the lack of funding to complete the Developer Improvements shall not constitute grounds of enforced
delay pursuant to this Section 602.
603. Non -Liability of Officials and Employees of Agency and Developer. No member,
official or employee of the Agency or the City shall be personally liable to Developer, or any successor
in interest, in the event of any Default or breach by the Agency or for any amount which may become
due to Developer or their successors, or on any obligations under the terms of this Agreement.
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 be 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 Site. Developer agrees to indemnify, hold harmless and defend the Agency from
any claim made against the Agency arising from a claimed relationship of partnership or joint venture
between the Agency and the Developer with respect to the development, operation, maintenance or
management of the Site.
605. Agency Approvals and Actions. Whenever a reference is made herein to an action or
approval to be undertaken by the Agency, the Executive Director of Agency or his designee is
authorized to act on behalf of Agency unless specifically provided otherwise or the context should
require otherwise.
606. Commencement of Agency Review Period. The time periods set forth herein for the
Agency's approval of agreements, plans, drawings, or other information submitted to the Agency by
Developer and for any other Agency consideration and approval hereunder which is contingent upon
documentation required to be submitted by Developer shall only apply and commence upon the
complete submittal of all the required information. In no event shall an incomplete submittal by
Developer trigger any of the Agency's obligations of review and/or approval hereunder, provided,
however, that the Agency shall notify Developer of an incomplete submittal as soon as is practicable
and in no event later than the applicable time set forth for the Agency's action on the particular item in
question.
613590.2\24168.0001 -25-
607. 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 be an original.
608. Integration. This Agreement contains the entire understanding between the parties
relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this Agreement and- shall
be 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 investigation of any and all facts
such party deems material. This Agreement includes pages 1 through 31 and Attachment Nos. 1
through 10, which constitute the entire understanding and agreement of the parties, 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.
609. Attorneys' Fees. In any action between the parties to interpret, enforce, reform,
modify, rescind or otherwise in connection with any of the tends 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. Costs recoverable for enforcement of any judgment shall
be deemed to include reasonable attorneys' fees.
610. Administration. This Agreement shall be administered and executed by the Agency's
Executive Director, or his designated representative, following approval of this Agreement by the
Agency. The Agency shall maintain authority of this Agreement through the Executive Director (or his
authorized representative). The Executive Director shall have the authority to issue interpretations,
waive provisions and enter into amendments of this Agreement on behalf of the Agency so long as such
actions do not substantially change the uses or development permitted on the Site, or add to the costs to
the Agency as specified herein as agreed to by the Agency Board, and such amendments may include
extensions of time specified in the Schedule of -Performance. All other waivers or amendments shall
require the written consent of the Agency Board.
611. Amendments of Agreement. Developer and the Agency agree to mutually consider
reasonable requests for amendments to this Agreement. The Developer shall be responsible for the
costs incurred by the Agency, including without limitation attorneys' fees (the "Developer Costs"), in
connection with any amendments to this Agreement which are requested by the Developer (the
"Developer Request"). The Developer shall be responsible for payment of the Developer Costs as
provided in this Section 611 regardless of the outcome of the Developer Request.
612. 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.
613. 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.
613590.2\24168.0001 -26-
614. 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.
615. 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.
616. 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.
617. 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.
618. 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 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.
619. Time of Essence. Time is expressly made of the essence with respect to the
performance by the Agency and the Developer of each and every obligation and condition of this
Agreement.
620. 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.
621. Conflicts of Interest. No member, official or employee of 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.
622. Time for Acceptance of Agreement by Agency. This Agreement, when executed by
Developer and delivered to Agency, must be authorized, executed and delivered by Agency on or
before thirty (3 0) days after signing and delivery of this Agreement by Developer or this Agreement
shall be void, except to the extent that Developer shall consent in writing to a further extension of time
for the authorization, execution and delivery of this Agreement.
613590.2\24168.0001 -27-
IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement on
the respective dates set forth below.
AGENCY:
DIAMOND BAR REDEVELOPMENT AGENCY,
a public body, corporate and politic
Dated: , 1998 By:
ATTEST:
Agency Secretary
Executive Director
DEVELOPER:
TOOLEY & COMPANY, a California corporation
Dated: , 1998 By:
Its:
President
613590.2\24168.0001 -28-
ATTACHMENT NO.1
SITE MAP
613590.2\24168.0001 ATTACHMENT NO. 1
Page 1 of 1
ATTACHMENT NO.2
SITE LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT 39679, AS PER MAP RECORDED IN BOOK 1083 PAGES 14 TO 23
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS
NOW OR AT ANy TIME HEREAFTER SITUATED THEREIN AND
HEREL
TOGETHER WITH THE EXCLUSIVE RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE
AND MINE THEREFROM, SUCH OIL, GAS AND OTHER HYDROCARBONS AND
MQNERALS, AND TO STORE THE SAME UPON THE SURFACE OFSAID LASTOREND, OR
BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT To
UPON
THE SURFACE OF SAID LAND, OIL, GAS ANDOTHER HYDROCARBONS AND
MINERALS WHICH MAY BE PRODUCED FROM OTHER LAND, WITH THE RIGHT OF
ENTRY THEREON FOR SAID PURPOSES AND THE
MAINTAIN, ERECT, REPAIR, REPLACE AND REMOVE TTEREONAND THEREFROM
USE,
PIPE LINES, TELEPHONE AND TELEGRAPH LINES TANKS,T REFROD ALL
INGS
AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND REQ SRITE To�CARRY
ON OPERATION ON SAID LAND, WITH THE FUR
OPERATE AND REMOVE A PLANT WITH FURTHER RIGHT TO ERECT, PURTENANCESMAINFORTAIN,
EXTRACTION OF GASOLINE FROM GAS,, INCLUDINGG ALESSARY L RIGHT NECESSARYORCONVENIENT THERETO, AS RESERVED IN DEED,
DEVELOPMENT COMPANY, A CORPORATION RECORDED FROM
MARCH ANS lA E CA
BOOK D 3955 PAGE 185, OFFICIAL RECORDS, 'AND RE-RECORDED JUNE , 968 B
IN
BOOK D 4407 PAGE 591, OFFICIAL RECORDS.
BY QUITCLAIM DEED RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 81-1004553
TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION FORMERLY CAPITAL
COMPANY, A CORPORATION RELEASED AND
DEVELOPMENT SURRENDERED TO THE DIAMOND BAR
CORPORATION, A CORPORATION, THE SURFACE RIGHT TO SAID
LAND FOR A DISTANCE OF NOT MORE THAN 500 FEET IN DEPTH, AND NOTHING
THEREIN CONTAINED SHALL IN ANY WAY BE CONSTRUED TO PREVENT, HINDER OR
DELAY THE FREE AND UNLIMITED RIGHT TO MINE, DRILL, BORE, OPERATE AND
REMOVE FROM BENEATH THE SURFACE OF SAID LAND OR LANDS, AT ANY LEVEL,
OR LEVELS 500 FEET OR MORE BELOW THE SURFACE OF
R
PURPOSE OF DEVELOPMENT OR REMOVAL OF ALL OIL, SAID LAND, FOR THE GAS, MINERALS AND OTHER
HYDROCARBONS SITUATED THEREIN OR THEREUND
ER, OR PRODUCIBLE
THEREFROM, TOGETHER WITH ALL WATER NECESSARY IN CONNECTION
PRODUCIBLE THEREFROM TOGETHER WITH ALL WATER NECESSARY IN
CONNECTION WITH ITS DRILLING OR U24ING OPERATION THEREUNDER.
613590.2124168.0001 ATTACHMENT NO.2
Page 1 of 2
ALSO EXCEPT FROM THAT PORTION OF SAID LAND
BOUNDARIES OF THE LAND DESCRIBED IN THE DEED
INCLUDID WITHIN THE
REDLANDS, ET AL., RECORDED DECEMBER 28, 1950, FROM UNIVERSITY OF
OFFICIAL RECORDS, AN AGGREGATE OF ONE-FOURTH OF BALL OIL,
AND
CASINGHEAD GAS AND OTHER HYDROCARBON SUBSTANCES AND
OR UNDER THE SURFACE OF SAID PREMISES, IT BEING THE MINERALS IN,
ON
GRANTOR THEREBY RESERVES IN SERVERALTy, A THAT
PARTF SAID
ONE-FOURTH CORRESPONDING EXACTLY WITH THE RESPECTTVE INTERESTS OF THE
GRANTORS SET FORTH FOLLOWING THEIR NAMES IN THE DEED, AS RESERVED IN
THEBARTHOLODEED FROM UNIVERSITY OF REDLANDS, A CORPORATION, ET ALTO
MAE CORPORATION, A CORPORATION .,
, RECORDID DECEMBER 28, 1950 IN
BOOK 35170 PAGE 74, OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS NOW OR AT ANY TIME HEREAFTER SITUATED IN SAID LAND OR
THEREUNDER OR PRODUCIBLE TfErREFROM, TOGETHER WITH THE FREE AND
UNLMTED RIGHT TO MINE, STORE, DRILL AND BORE BENEATH THE SURFACE OF
SAID LAND AT ANY LEVEL OR LEVELS FIVE
0) FEET OR MORE BELOW
THE SURFACE OF SAID LAND, FOR THE PURPOSE OFD DED EVELOPING OR REMOVAL OF
SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF SUCH WELL AND
ALL OTHER SURFACE FACILITIES SHALL BE LOCATED ON LAND OTHER THAN THAT
DESCRIBED HEREIN AND SHALL NOT PENETRATE ANY PART
ABOVE DESCRIBED REAL PROPERTY WITHIN FIVE
SURFACE THEREOF, AND ALL OF THE RIGHTS SO TO D (500) FEET REMOVE OR PORTION OF THE
SUCH SUBSTANCES
ARE HEREBY SPECIFICALLY RESERVED, INCLUDING THE RIGHT TO DRILL FOR,
PRODUCE AND USE WATER FROM SAID REAL, PROPERTY IN CONNECTION WITH
SUCH OPERATIONS, AS EXCEPTED AND RESERVED BY
DEVELOPMENT COMPANY, A T CORPORATION, FORMERLY CAPITALp S��Cp
CORPORATION, DEED RECORDED JUNE 30, 1965 AS INSTRUMENT No.
BOOK D 2959 PAGE 114, OFFICIAL RECORDS. 1027 IN
613590.2\24168.0001 ATTACHMENT NO. 2
Page 2 of 2
ATTACHMENT NO.3
SCHEDULE OF PERFORMANCE
Delivery Of Executed Atereements to the
Ate. Developer shall deliver three (3)
copies of the Agreement which have been
executed by the Developer to the Agency.
2. Execution of Aereementby the Agenc ,, The
Agency shall execute the Agreement and
deliver one fully executed copy of the
Agreement to Developer.
3. Developer pr vi D�umentation of
Exceufions to Title and Survey. Developer
shall provide the Agency with the Report and
legible copies of the documents underlying the
Exceptions set forth in the Report.
4. AvDrOyaVDis nproval of Exc tions and
S—UY. Agency shall provide Developer with
written notification of approval or disapproval
of the Exception(s) set forth in the Report.
5.
Q
Agency Removes Disap—rovT ed Exceptions if
Agency provides Developer with written
notification of Agency's disapproval of
Exception(s) set forth in the Report, Developer
may cause such disapproved Exception(s) to be
removed or provide measurable assurance that
such Exception(s) will be removed on or before
the Closing.
Developer Election to Proceed or Terminate. If
Agency cannot or does not elect to remove any
of the disapproved Exception(s) or provide
reasonable measurable assurances that such
Exception(s) will be removed on or before the
Closing within the time set forth in paragraph 5
above, Agency shall either give Developer
written notice that Agency elects to proceed
with the Conveyance subject to the disapproved
Exception(s) or that Agency elects to terminate
this Agreement.
No later than October 22, 1998 for
consideration of the Agreement by the Agency
Board and City Council.
Upon approval of the City Council and/or
Agency Board.
Developer will provide the Report and Survey
by October 8, 1998 to the Agency and City
Council.
No later than October 20, 1998 after Agency's
receipt of legible copies of the documents
underlying the Exceptions referred to in the
Preceding Section 3 and Survey.
Within seven (7) days after receiving written
notice of Agency's disapproval.
Within two (2) business days after the
expiration of the seven (7) day period set forth
in paragraph 5 above.
613590.2124168.0001 ATTACHMENT NO.3
Page 1 of 3
7. Opening/Assignment of Escrow. The parties Within the two (2) business days of the Date of
shall open/assign escrow with the Escrow this Agreement.
Agent.
Q
10
11
12.
1.3
14
15.
Close of Escrow. The Escrow for the
conveyance of the Site to Developer shall close.
Submittal of City Planning Commission
Review and Final Development Photos. The
Developer shall submit Building Elevations and
Development Photos for consideration by the
Agency and the City.
Consideration of Construction Drawings by the
Agency. The City shall consider and approve
or disapprove the Construction Drawings
submitted by the Developer.
Anchor Tenant Lease. Developer shall submit
to Agency a fully executed lease between
Developer and major tenant. Major tenant shall
occupy 40% of the total project.
Start of Construction. The Developer shall start
grading and construction of Developer
Improvements on the Site.
Submittal of Certificates of Insurance.
Developer shall furnish all Certificates of
Insurance as required pursuant to Section 307
of the Agreement
Start of Construction of Agency Improvements.
The Agency shall begin development of the
Agency Improvements as described within the
Scope of Development
Completion of Construction of Developer
Improvements. Subject to the provisions of
Section 602 of this Agreement, the Developer
shall complete the Developer Improvements.
Upon satisfaction of all of Agency's and
Developer's conditions precedent but in no
event later than October 30, 1998 unless
mutually agreed to by the parties in writing.
Developer shall receive approval no later than
October 14, 1998.
Within thirty (30) business days of the
Developer's submittal of the Construction
Drawings.
Within thirty (30) days of the close of escrow.
Within thirty (30) days of the City and Agency
approval of Construction Drawings and
issuance of building permits.
Prior to commencement of construction of
Developer Improvements.
Within one hundred eighty (180) days of the
City and Agency approval of Construction
Drawings.
Within twelve (12) months from the start of
construction pursuant to paragraph 12 above
but no later than January 1, 2000.
613590.2\24168.0001 ATTACHMENT NO.3
Page 2 of 3
It is understood that the foregoing Schedule of Performance is subject to all terms and
conditions set forth in this Agreement. The summary of the items of performance in this Schedule of
Performance is not intended to supersede or modify the more complete description in the text; in the
event of any inconsistency between this Schedule of Performance and the text of this Agreement, the
text shall govern.
The time periods set forth herein for the City's approval of plans and drawings, and other
submittals, submitted to the City by Developer, or its representatives, shall only apply and commence
upon the complete submittal of all the required information. In no event shall an incomplete submittal
by Developer trigger any of the City's obligations of review and/or approval hereunder; provided,
however, that the City shall notify Developer or its representatives of an incomplete submittal as soon
as is practicable and in no event later than the applicable time set forth for the Agency's action on the
particular item in question.
613590.2\24168.0001 ATTACHMENT NO.3
Page 3 of 3
ATTACHMENT NO.4
SCOPE OF DEVELOPMENT
I. DEVELOPMENT STANDARDS OVERVIEW
The Improvements to be constructed on the Site shall be of high architectural quality, shall be
well landscaped, and shall be effectively and aesthetically designed consistent with'a concrete tilt -up,
building with steel frame flooring or such other material as may be approved by the City. The
Developer's plans, drawings, and proposals submitted to the City for approval shall describe in
reasonable detail the architectural character intended for the Improvements. The total development
shall be in conformance with the Specific Plan, Design Guidelines, CC&Rs of Gateway Corporate
Center, the City of Diamond Bar Planning Commission and the Redevelopment Agency of the City of
Diamond Bar.
II. DEVELOPER I1"ROVEMENTS
The Developer shall develop the Site as two, three-story office buildings of approximately
82,000 square feet each or 164,000 gross square feet. The Developer shall be responsible for the
design and construction of the entire Site. The buildings shall be developed in accordance with the
Developees.plans, drawings and proposals submitted to and as approved by the City of Diamond Bar
Planning Commission, the Specific Plan, Design Guidelines, the CC&Rs of Gateway Corporate Center
and the Redevelopment Agency of the City of Diamond Bar, as applicable. Additionally, the
Developer shall comply with any conditions of approval for on-site development improvements which
may be prescribed under any discretionary permits required for approval of the Developer's proposal,
as well as a parking ration of not less than 4.5 stalls per 1,000 net rentable square feet of development.
The Developer shall be responsible for the payment of all development fees and all permit fees required
for the development of the Site.
III. AGENCY EvIPROVEMENTS
Utilities. The Agency will provide or cause to be provided a fully signaled intersection, as part
of the Developer's project costs, at the entrance to the property.
613590.2\24168.0001 ATTACHMENT NO.4
Page 1 of 1
ATTACHMENT NO.5
RECORDING REQUESTED BY
AND WBEN RECORDED MAIL TO:
TOOLEY & COMPANY
11150 Santa Monica Blvd., Suite 200
Los Angeles, California 90025
Attn: David C. Sears
GRANT DEED
This document is exempt from payment of a recording fee
pursuant to government Code Section 6103.
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged,
The DIAMOND BAR REDEVELOPMENT AGENCY, a public body, corporate and
politic (the "Grantor"), acting to carry out the Redevelopment Plan (the "Redevelopment Plan") for the
Redevelopment Project Area (the "Project"), under the Community
Redevelopment Law of California, hereby grants to TOOLEY & COMPANY, a California
corporation (the "Grantee"), 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. Grantor excepts and reserves from the conveyance herein described all interest of
Grantor 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. The Site is conveyed in accordance with and subject to the Redevelopment Plan for the
Diamond Bar Economic Revitalization Area (the "Redevelopment Project") was approved and adopted
by the City Council of the City of Diamond Bar on July 15, 1997, by Ordinance No. 03(1997); and the
Disposition and Development Agreement entered into between Grantor and Grantee (the "DDA"), a
copy of which is on file with Grantor at its offices as a public record and which is incorporated herein
by reference. All terms used herein shall have the same meaning as those used in the DDA.
613590.2124168.0001 ATTACHMENT NO.5
Pagel of 2
It is expressly understood that the rights of the Agency under this paragraph 3 shall
cease and be of no further force and effect upon the issuance of the Release of Construction covenants
in accordance with the provisions of Section 311 of the DDA.
GRANTOR:
DIAMOND BAR REDEVELOPMENT
AGENCY, a public body corporate and politic
Dated: .1998 By:
Executive Director
ATTEST:
Agency Secretary
GRANTEE:
TOOLEY & COMPANY, a California
corporation
Dated: , 1998 By:
Its: President
613590.2\24168.0001 ATTACHMENT NO. S
Page 2 of 2
State of California
County of
0
personally appeared
) ss.
199____, before me,
(name, title of officer, e.g., "Jane Doe, Notary Public")
(name(s) of signer(s))
❑ personally known to me, OR,
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity/ies, and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
Witness my hand and official seal.
Capacity claimed by signer:
❑
Individual
❑
Corporate Officer(s): .
❑
Partner(s):
❑ General ❑ Limited
❑
Attorney-in-fact
❑
Trustee(s)
❑
Guardian/Conservator
❑
Other:
Signer is representing:
(signature of notary)
(7his section is OPTIONAL.)
(name of person(s) or entity(ies))
Attention Notary: Although the information requested below is OPTIONAL, it could prevent
fraudulent attachment of this certificate to an unauthorized document.
THIS CERTIFICATE
MUST BE ATTACHED
TO THE DOCUMENT
DESCRIBED AT RIGHT:
Title or Type of Document
Number of Pages Date of Document
Signer(s) Other than Named Above
613390.2\24168.0001 ATTACHMENT NO. 5
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT 39679, AS PER MAP RECORDED IN BOOK 1083 PAGES 14 TO 23
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF' SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS
NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AND TMtEUNDER,
TOGETHER WITH THE EXCLUSIVE RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE
AND MINE THEREFROM, SUCH OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID LAND, OR
BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON
THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS WHICH MAY BE PRODUCED FROM OTHER LAND, WITH THE RIGHT OF
ENTRY THEREON FOR SAID PURPOSES AND WITH THE RIGHT TO CONSTRUCT, USE,
MAINTAIN, ERECT, REPAIR, REPLACE AND REMOVE THEREON AND THEREFROM ALL
PIPE LINES, TELEPHONE AND TELEGRAPH LINES, TANKS, MACHINERY, BUILDINGS
AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND REQUISITE TO CARRY
ON OPERATION ON SAID LAND, WITH THE FURTHER RIGHT TO ERECT, MAINTAIN,
OPERATE AND REMOVE A PLANT WITH ALL NECESSARY APPURTENANCES FOR THE
EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHT NECESSARY OR
CONVENIENT THERETO, AS RESERVED IN DEED, FROM TRANSAMERICA
DEVELOPMENT COMPANY, A CORPORATION RECORDED MARCH 29, 1968 IN
BOOK D 3955 PAGE 185, OFFICIAL RECORDS, AND RE-RECORDED JUNE 19, 1969 IN
BOOK D 4407 PAGE 591, OFFICIAL RECORDS.
BY QUITCLAIM DEED RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 81-1004553,
TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION FORMERLY CAPITAL
COMPANY, A CORPORATION RELEASED AND SURRENDERED TO THE DIAMOND BAR
DEVELOPMENT CORPORATION, A CORPORATION, THE SURFACE RIGHT TO SAID
LAND FOR A DISTANCE OF NOT MORE THAN 500 FEET IN DEPTH, AND NOTHING
THEREIN CONTAINED SHALL IN ANY WAY BE CONSTRUED TO PREVENT, HINDER OR
DELAY THE FREE AND UNlWrED RIGHT TO MINE, DRILL, BORE, OPERATE AND
REMOVE FROM BENEATH THE SURFACE OF SAID LAND OR LANDS, AT ANY LEVEL
OR LEVELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE
PURPOSE OF DEVELOPMENT OR REMOVAL OF ALL OIL, GAS, MINERALS AND OTHER
HYDROCARBONS SITUATED THEREIN OR THEREUNDER, OR PRODUCIBLE
THEREFROM, TOGETHER WITH ALL WATER NECESSARY IN CONNECTION
PRODUCIBLE THEREFROM TOGETHER WITH ALL WATER NECESSARY IN
CONNECTION WITH ITS DRILLING OR MINING OPERATION THEREUNDER
613590.2124168.0001 EXHEBIT "A" TO
ATTACHMENT NO.5
ALSO EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE
BOUNDARIES OF THE LAND DESCRIBED IN THE DEED FROM UNIVERSITY OF
REDLANDS, ET AL., RECORDED DECEMBER 28, 1950, IN BOOK 35179 PAGE 74,
OFFICIAL RECORDS, AN AGGREGATE OF ONE-FOURTH OF ALL OIL, GAS AND
CASINGHEAD GAS AND OTHER HYDROCARBON SUBSTANCES AND MINERALS IN, ON
OR UNDER THE SURFACE OF SAID PREMISES, IT BEING THE INTENTION THAT EACH
GRANTOR THEREBY RESERVES IN SERVERALTY, A FRACTIONAL PART OF SAID
ONE-FOURTH CORRESPONDING EXACTLY WITH THE RESPECTIVE INTERESTS OF THE
GRANTORS SET FORTH FOLLOWING THEIR NAMES IN THE DEED, AS RESERVED IN
THE DEED FROM UNIVERSITY OF REDLANDS, A CORPORATION, ET AL., TO
BARTHOLOMAE CORPORATION, A CORPORATION, RECORDED DECEMBER 28, 1950 IN
BOOK 35170 PAGE 74, OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS NOW OR AT ANY TIlVIE HEREAFTER SITUATED IN SAID LAND OR
THEREUNDER OR PRODUCIBLE THEREFROM, TOGETHER WITH THE FREE AND
UNLIMITED RIGHT TO MINE, STORE, DRILL AND BORE BENEATH THE SURFACE OF
SAID LAND AT ANY LEVEL OR LEVELS FIVE HUNDRED (500) FEET OR MORE BELOW
THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPING OR REMOVAL OF
SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF SUCH WELL AND
ALL OTHER SURFACE FACILITIES SHALL BE LOCATED ON LAND OTHER THAN THAT
DESCRIBED HEREIN AND SHALL NOT PENETRATE ANY PART OR PORTION OF THE
ABOVE DESCRIBED REAL PROPERTY WITHIN FIVE HUNDRED (500) FEET OF THE
SURFACE THEREOF, AND ALL OF THE RIGHTS SO TO REMOVE SUCH SUBSTANCES
ARE HEREBY SPECIFICALLY RESERVED, INCLUDING THE RIGHT TO DRILL FOR,
PRODUCE AND USE WATER FROM SAID REAL PROPERTY IN CONNECTION WITH
SUCH OPERATIONS, AS EXCEPTED AND RESERVED BY TRANSAMERICA
DEVELOPMENT COMPANY, A CORPORATION, FORMERLY CAPITAL COMPANY, A
CORPORATION, DEED RECORDED JUNE 30, 1965 AS INSTRUMENT NO. 1027 IN
BOOK D 2959 PAGE 114, OFFICIAL RECORDS.
613590.2\24168.0001 EXHIBIT"A" TO
ATTACHMENT NO.5
ATTACHMENT NO.6
DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
Diamond Bar Redevelopment Agency )
21660 E. Copley Drive, Suite 100 )
Diamond Bar, California 91765 )
Attn: Executive Director 1
This dommut u exempt Gam the payment of a r000rdmg fee yurvmd to
Govermnda Code Section 6103.
DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS
THIS DECLARATION OF CONDITIONS, COVENANTS AND RESTRICTIONS
(this 'Declaration") is entered into this _ day of , 1998 by and between the DIAMOND
BAR REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency") and
TOOLEY & COMPANY, a California corporation (the 'Developer") with reference to the following
facts:
A. The Agency and the Developer have entered into that certain Disposition and
Development Agreement dated (the 'DDA") which provides for the conveyance
by the Agency to Developer of that certain reaLproperty which is legally described in Exhibit "A"
which is attached hereto and incorporated herein by this reference (the "Site") and the development, use
and operation of improvements by Developer upon the Site. The DDA is available for public
inspection at the Agency's offices located at 21660 E. Copley Drive, Suite 100, Diamond Bar,
California 91765. Capitalized terms utilized in this Declaration and not otherwise defined shall have
the same meaning as set forth in Section 101 of the DDA.
B. The Site is within the Redevelopment Plan in the City of Diamond Bar and is subject to
the provisions of the Redevelopment Plan for the Diamond Bar Economic Revitalization Area (the
"Redevelopment Project") which was approved and adopted by the City Council of the City of
Diamond Bar on July 15, 1997, by Ordinance No. 03(1997).
C. Developer has agreed with Agency to execute and record this Declaration in order to
bind itself and future owners and operators of the Site to certain obligations regarding the on-going use,
operation and maintenance of the Site and certain other covenants, all as more particularly set forth
herein.
D. The enforcement of the covenants and requirements set forth herein will ensure the
proper implementation of the Redevelopment Plan and will, therefore, benefit Developer, the City of
Diamond Bar, the Agency, and the properties located within the Redevelopment Project.
613590.2\24168.0001 ATTACHMENT NO.6
Page 1 of 5
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto,
and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Developer on behalf of itself and its successors, assigns and each successor in interest to the Site or any
part thereof, hereby covenants and agrees as follows:
1. Use Covenants. The Site shall be occupied and used only for those uses specified or
permitted in the Redevelopment Plan and the DDA.
2. Operating Covenant. Subject to Section 402 of the DDA, the Site shall be used,
operated, and occupied by Developer solely as a corporate office center, a portion of which will be
leased to a Fortune 500 company or as such other use permitted in the Redevelopment Plan which is
approved by the Agency in writing.
3. Maintenance Covenant. To cause Developer to maintain the Site and all
improvements thereon in compliance with the terms of the Redevelopment Plan and with all applicable
provisions of the City of Diamond Bar Municipal Code.
4. Nondiscrimination Covenant. 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, physical or mental disability or medical condition, handicap, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall 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 covenant shall run with
the land.
Developer shall refrain from restricting the rental, sale or lease of the Site on the basis
of race, color, creed, religion, sex, marital status, physical or mental disability or medical condition,
handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or
be subject to substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or herself, his
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, physical or mental disability or medical condition, handicap,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or
through him or her, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for himself or herself, his heirs,
executors, administrators and assigns, and all persons claiming under or through him or her, and this
lease is made and accepted upon and subject to the following conditions:
"There shall be no discrimination against or segregation of any person or group
613590.2\24168.0001 ATTACHMENT NO.6
Page 2 of 5
of persons on account of race, color, creed, religion, sex, marital status, physical or mental disability or
medical condition, handicap, ancestry or national origin in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself or
any person claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, sublessees, subtenants or vendees in the premises herein leased."
(c) In contracts: In contracts relating to the sale, transfer or leasing of the Site or
any interest therein: "There shall be no discrimination against or segregation of any person, or group
of persons on account of rice, color, creed, religion, sex, marital status, physical or mental disability or
medical condition, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any
person claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the premises."
S. Minimum Project Value Covenant. That the minimum assessed value of the
Developer Improvements, the Site, and such other property which is assessed for purposes of the
secured or unsecured roll to be installed, placed or constructed on the Site upon the completion of such
installation and construction shall not be less than Twenty -Two Million Dollars ($22,000,000) (the
"Minimum Project Value"). Should the assessed valuation fall below the Minimum Project Value in
any year, Developer shall pay directly to the City or Agency the difference of the Minimum Project
Value less the current year assessed value multiplied by 1% payment by the Developer shall be made
annually to the City or Agency.
6. Minimum Assessed Valuation. That no action shall be taken to decrease the
assessed value (including the value of the Development Improvements) of the Site for property tax
purposes below the Minimum Project Value.
7. Commencement of Operation. Subject to the provisions of Section 602 of the DDA,
the Project shall be open and operational on the Site on or before January 1, 2000 (the
"Commencement Date").
8. Term. The covenants contained herein and in the Agreement shall remain in effect for
the term of the Redevelopment Plan, that is until , 20_ except for (i) the operating
covenant set forth in paragraph 2 of this Declaration which shall remain in effect for a period of ten
(10) years commencing- upon the issuance of the Release of Construction Covenants and (ii) the
nondiscrimination covenant set forth in paragraph 4 of this Declaration which shall remain in effect in
perpetuity.
9. Covenants Run with the Land. The covenants and agreements established in this
Declaration shall, without regard to technical classification or designation, be binding on Developer and
its successors and assigns and any successor in interest to the Site, or any part thereof, for the benefit of
and in favor of the Agency, its successors and assigns, and the City.
10. Remedies. The Agency in an event of any breach of any of the covenants contained
herein 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 the breach.
613590.2124168.0001 ATTACHMENT NO.6
Page 3 of 5
11. Severability. If any term, provision, condition or covenant of this Declaration or its
application to any parry or circumstances shall be held, to any extent, invalid or unenforceable, the
remainder of this Declaration, 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.
12. 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 Declaration.
13. Modification. The Agency, its successors and assigns and Developer and its
successors and assigns 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 herein without the consent of any tenant (other than Developer), 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, the Agency and Developer 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 Declaration. The covenants contained in this
Declaration, without regard to technical classification, shall not benefit or be enforceable by any owner
of any other real property within or outside the Redevelopment Project, or any person or entity having
any interest in any other such realty.
613590.2124168.0001 ATTACHMENT NO.6
Page 4 of 5
IN WITNESS WHEREOF, the parties have executed this Declaration as of the date and year
first written above.
AGENCY:
DIAMOND BAR REDEVELOPMENT AGENCY,
a public body, corporate and politic
Dated: , 1998 By:
ATTEST:
Agency Secretary
Executive Director
DEVELOPER:
TOOLEY & COMPANY, a California corporation
Dated: , 1998 By.-
Its:
y:Its:
613590.2124168.0001 ATTACHMENT NO.6
Page 5 of 5
State of California
County of
0
personally appeared
) ss.
199_, before me,
(name, title of officer, e.g., "Jane Doe, Notary Public")
(name(s) of signer(s))
❑ personally known to me, OR,
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacitylies, and that by his/herhheir signature(s) on the instrument the
person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
Witness my hand and official seal.
Capacity claimed by signer:
❑
Individual
❑
Corporate Officer(s): .
❑
Partner(s):
❑ General ❑ Limited
❑
Attomey-in-fact
❑
. Trustee(s)
❑
Guardian/Conservator
❑
Other:
Signer is representing:
(signature of notary)
(77ds section is OP77ONAL.)
(name of persons) or entity(ies))
Attention Notary: Although the information requested below is OPTIONAL, it could prevent
fraudulent attachment of this certificate to an unauthorized document.
THIS CERTIFICATE
MUST BE ATTACHED
TO THE DOCUMENT
DESCRIBED AT RIGHT:
Title or Type of Document
Number of Pages Date of Document
Signer(s) Other than Named Above
613590.2\24168.0001 ATTACHMENT NO.6
EXHIBIT "A"
SITE LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT 39679, AS PER MAP RECORDED IN BOOK 1083 PAGES 14 TO 23
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MDMRALS
NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AND THEREUNDER,
TOGETHER WITH THE EXCLUSIVE RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE
AND MINE THEREFROM, SUCH OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID LAND, OR
BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON
THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS WHICH MAY BE PRODUCED FROM OTHER LAND, WITH THE RIGHT OF
ENTRY THEREON FOR SAID PURPOSES AND WITH THE RIGHT TO CONSTRUCT, USE,
MAINTAIN, ERECT, REPAIR, REPLACE AND REMOVE THEREON AND THEREFROM ALL
PIPE LINES, TELEPHONE AND TELEGRAPH LINES, TANKS, MACHINERY, BUILDINGS
AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND REQUISITE TO CARRY
ON OPERATION ON SAID LAND, WITH THE FURTHER RIGHT TO ERECT, MAINTAIN,
OPERATE AND REMOVE A PLANT WITH ALL NECESSARY APPURTENANCES FOR THE
EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHT NECESSARY OR
CONVENIENT THERETO, AS RESERVED IN DEED, FROM TRANSAMERICA
DEVELOPMENT COMPANY, A CORPORATION RECORDED MARCH 29, 1968 IN
BOOK D 3955 PAGE 185, OFFICIAL RECORDS, AND RE-RECORDED JUNE 19, 1969 IN
BOOK D 4407 PAGE 591, OFFICIAL RECORDS.
BY QUITCLAIM DEED RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 81-1004553,
TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION FORMERLY CAPITAL
COMPANY, A CORPORATION RELEASED AND SURRENDERED TO THE DIAMOND BAR
DEVELOPMENT CORPORATION, A CORPORATION, THE SURFACE RIGHT TO SAID
LAND FOR A DISTANCE OF NOT MORE THAN 500 FEET IN DEPTH, AND NOTHING
THEREIN CONTAINED SHALL IN ANY WAY BE CONSTRUED TO PREVENT, HINDER OR
DELAY THE FREE AND UNLIN=D RIGHT TO MINE, DRU -J, BORE, OPERATE AND
REMOVE FROM BENEATH THE SURFACE OF SAID LAND OR LANDS, AT ANY LEVEL
OR LEVELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE
PURPOSE OF DEVELOPMENT OR REMOVAL OF ALL OIL, GAS, MINERALS AND OTHER
HYDROCARBONS SITUATED THEREIN OR THEREUNDER, OR PRODUCIBLE
THEREFROM, TOGETHER WITH ALL WATER NECESSARY IN CONNECTION
PRODUCIBLE THEREFROM TOGETHER WITH ALL WATER NECESSARY IN
CONNECTION WITH ITS DRILLING OR MINING OPERATION THEREUNDER -
613 590.2\24168.ODO 1
HEREUNDER
613590.2\24168.0001 EXHIBIT"A" TO
ATTACHMENT NO.6
ALSO EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE
BOUNDARIES OF THE LAND DESCRIBED IN THE DEED FROM UNIVERSITY OF
REDLANDS, ET AL., RECORDED DECEMBER 28, 1950, IN BOOK 35179 PAGE 74,
OFFICIAL RECORDS, AN AGGREGATE OF ONE-FOURTH OF ALL OIL, GAS AND
CASINGHEAD GAS AND OTHER HYDROCARBON SUBSTANCES AND MINERALS IN, ON
OR UNDER THE SURFACE OF SAID PREMISES, IT BEING THE INTENTION THAT EACH
GRANTOR THEREBY RESERVES IN SERVERALTY, A FRACTIONAL PART OF SAID
ONE-FOURTH CORRESPONDING EXACTLY WITH THE RESPECTIVE INTERESTS OF THE
GRANTORS SET FORTH FOLLOWING THEIR NAMES IN THE DEED, AS RESERVED IN
THE DEED FROM UNIVERSITY OF REDLANDS, A CORPORATION, ET AL., TO
BARTHOLOMAE CORPORATION, A CORPORATION, RECORDED DECEMBER 28, 1950 IN
BOOK 35170 PAGE 74, OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS NOW OR AT ANY TIME HEREAFTER SITUATED IN SAID LAND OR
THEREUNDER OR PRODUCIBLE THEREFROM, TOGETHER WITH THE FREE AND
UNLIMITED RIGHT TO MINE, STORE, DRILL AND BORE BENEATH THE SURFACE OF
SAID LAND AT ANY LEVEL OR LEVELS FIVE HUNDRED (500) FEET OR MORE BELOW
THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPING OR REMOVAL OF
SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF SUCH WELL AND
ALL OTHER SURFACE FACILITIES SHALL BE LOCATED ON LAND OTHER THAN THAT
DESCRIBED HEREIN AND. SHALL NOT PENETRATE ANY PART OR PORTION OF THE
ABOVE DESCRIBED REAL PROPERTY WITHIN FIVE HUNDRED (500) FEET OF THE
SURFACE THEREOF, AND ALL OF THE RIGHTS SO TO REMOVE SUCH SUBSTANCES
ARE HEREBY SPECIFICALLY RESERVED, INCLUDING THE RIGHT TO DRILL FOR,
PRODUCE AND USE WATER FROM SAID REAL PROPERTY IN CONNECTION WITH
SUCH OPERATIONS, AS EXCEPTED AND RESERVED BY TRANSAMERICA
DEVELOPMENT COMPANY, A CORPORATION, FORMERLY CAPITAL COMPANY, A
CORPORATION, -.DEED RECORDED JUNE 30, 1965 AS INSTRUMENT NO. 1027 IN
BOOK D 2959 PAGE 114, OFFICIAL RECORDS.
613590.2\2416&0001 E1HEBIT "A" TO
ATTACHMENT NO.6
ATTACHMENT NO.7
RECORDING REQUESTED BY )
AND WIMN RECORDED MAIL TO: )
TOOLEY & COMPANY )
11150 Santa Monica Blvd., Suite 200 )
Los Angeles, California 90025 )
Attention: David C. Sears )
This document is exempt from the paymmt of a rwaiding
fee pursuant to Government Code Section 6103.
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release") is made by the
DIAMOND BAR REDEVELOPMENT AGENCY, a public body corporate and politic (the
"Agency"), in favor of TOOLEY & COMPANY, a California corporation ("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 . 1998 concerning the redevelopment of
certain real property situated in the City of Diamond Bar, California as more fully described in
Exhibit "A" attached hereto and made a part hereof. All capitalized terms utilized herein and not
otherwise defined shall have the same meaning as set forth in the DDA.
B. As referenced in Section 311 of the DDA, the Agency is required to furnish Developer
or its successors with a Release upon completion of construction of the Improvements which Release is
required to be in such form as to permit it to be recorded in the Recorder's Office of Los Angeles
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 completed by Developer in conformity with the DDA, the Redevelopment Plan and all applicable
provisions of the City of Diamond Bar Municipal Code.
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, the Redevelopment Plan and all applicable
provisions of the City of Diamond Bar Municipal Code. Sections 402, 403, 404, 405 and 406 of the
DDA shall remain in effect and enforceable according to their terms.
613590.2\24168.0001 ATTACHMENT NO.7
Page 1 of 2
2. Nothing contained in this instrument shall modify m any other way any other provisions
of the DDA.
IN WITNESS WHEREOF, the Agency has executed this Release this
199_ day of
DIAMOND BAR REDEVELOPMENT AGENCY,
a public body corporate and'politic
By:
ATTEST:
Agency Secretary
Executive Director
613590.2124168.0001 ATTACHMENT NO.7
Page 2 of 2
State of California
) ss.
County of
On , 199_, before me,
(name, title of officer, e.g., "Jane Doe, Notary Public")
personally appeared
(name(s) of signer(s))
❑ personally known to me, OR,
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacityries, and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
Witness my hand and official seal.
Capacity claimed by signer:
❑
Individual
❑
Corporate Officer(s): .
❑
Partner(s):
❑ General ❑ Limited
❑
Attorney-in-fact
❑
, Trustee(s)
❑
Guardian/Conservator
❑
Other:
Signer is representing:
(signature of notary)
(This section is OP7YONAL)
(name of person(s) or endty(ies))
Attention Notary: Although the information requested below is OPTIONAL, it could prevent
fraudulent attachment of this certificate to an unauthorized document.
THIS CERTIFICATE
MUST BE ATTACHED
TO THE DOCUMENT
DESCRIBED AT RIGHT:
Title or Type of Document
Number of Pages Date of Document
Signer(s) Other than Named Above
613390.2124168.0001 ATTACHMENT NO.7
EXHIBIT "A"
SITE LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT 39679, AS PER MAP RECORDED IN BOOK 1083 PAGES 14 TO 23
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS
NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AND THEREUNDER,
TOGETHER WITH THE EXCLUSIVE RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE
AND MINE THEREFROM, SUCH OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID LAND, OR
BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON
THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS WHICH MAY BE PRODUCED FROM OTHER LAND, WITH THE RIGHT OF
ENTRY THEREON FOR SAID PURPOSES AND WITH THE RIGHT TO CONSTRUCT, USE,
MAINTAIN, ERECT, REPAIR, REPLACE AND REMOVE THEREON AND THEREFROM ALL
PIPE LINES, TELEPHONE AND TELEGRAPH LINES, TANKS, MACHINERY, BUILDINGS
AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND REQUISITE TO CARRY
ON OPERATION ON SAID LAND, WITH THE FURTHER RIGHT TO ERECT, MAINTAIN,
OPERATE AND REMOVE A PLANT WITH ALL NECESSARY APPURTENANCES FOR THE
EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHT NECESSARY OR
CONVENIENT TfIERETO, AS RESERVED IN DEED, FROM TRANSAMERICA
DEVELOPMENT COMPANY, A CORPORATION RECORDED MARCH 29, 1968 IN
BOOK D3955 PAGE 185, OFFICIAL RECORDS, .AND RE-RECORDED JUNE -19, 1969 IN
BOOK D 4407 PAGE 591, OFFICIAL RECORDS.
BY QUITCLAIM DEED RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 81-1004553,
TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION FORMERLY CAPITAL
COMPANY, A CORPORATION RELEASED AND SURRENDERED TO THE DIAMOND BAR
DEVELOPMENT CORPORATION, A CORPORATION, THE SURFACE RIGHT TO SAID
LAND FOR A DISTANCE OF NOT MORE THAN 500 FEET IN DEPTH, AND NOTHING
THEREIN CONTAINED SHALL IN ANY WAY BE CONSTRUED TO PREVENT, HINDER OR
DELAY THE FREE AND UNLIMITED RIGHT TO MINE, DRILL, BORE, OPERATE AND
REMOVE FROM BENEATH THE SURFACE OF SAID LAND OR LANDS, AT ANY LEVEL
OR LEVELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE
PURPOSE OF DEVELOPMENT OR REMOVAL OF ALL OIL, GAS, MRMRALS AND OTHER
HYDROCARBONS SITUATED THEREIN OR TIMREUNDER, OR PRODUCIBLE
THEREFROM, TOGETHER WITH ALL WATER NECESSARY IN CONNECTION
PRODUCIBLE THEREFROM TOGETHER WITH ALL WATER NECESSARY IN
CONNECTION WITH ITS DRILLING OR MINING OPERATION THEREUNDER-
613590.2\24169.0001
HEREUNDER
613590.2124168.0001 EXHIBIT "A" TO
ATTACHMENT NO.7
ALSO EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WITHIN THE
BOUNDARIES OF THE LAND DESCRIBED IN THE DEED FROM UNIVERSITY OF
REDLANDS, ET AL., RECORDED DECEMBER 28, 1950, IN BOOK 35179 PAGE 74,
OFFICIAL RECORDS, AN AGGREGATE OF ONE-FOURTH OF ALL OIL, GAS AND
CASINGHEAD GAS AND OTHER HYDROCARBON SUBSTANCES AND MINERALS IN, ON
OR UNDER THE SURFACE OF SAID PREMISES, IT BEING THE INTENTION THAT EACH
GRANTOR THEREBY RESERVES INSERVERALTY, A FRACTIONAL PART OF SAID
ONE-FOURTH CORRESPONDING EXACTLY WITH THE RESPECTIVE INTERESTS OF THE
GRANTORS SET FORTH FOLLOWING THEIR NAMES IN THE DEED, AS RESERVED IN
THE DEED FROM UNIVERSITY OF REDLANDS, A CORPORATION, ET AL., TO
BARTHOLOMAE CORPORATION, A CORPORATION, RECORDED DECEMBER 28, 1950 IN
BOOK 35170 PAGE 74, OFFICIAL RECORDS.
ALSO EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS NOW OR AT ANY TIME HEREAFTER SITUATED IN SAID LAND OR
THEREUNDER OR PRODUCIBLE THEREFROM, TOGETHER WITH THE FREE AND
UNLIMITED RIGHT TO MINE, STORE, DRILL AND BORE BENEATH THE SURFACE OF
SAID LAND AT ANY LEVEL OR LEVELS FIVE HUNDRED (500) FEET OR MORE BELOW
THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPING OR REMOVAL OF
SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF SUCH WELL AND
ALL OTHER SURFACE FACILITIES SHALL BE LOCATED ON LAND OTHER THAN THAT
DESCRIBED HEREIN AND SHALL NOT PENETRATE ANY PART OR PORTION OF THE
ABOVE DESCRIBED REAL PROPERTY WITHIN FIVE HUNDRED (500) FEET OF THE
SURFACE THEREOF, AND ALL OF THE RIGHTS SO TO REMOVE SUCH SUBSTANCES
ARE HEREBY SPECIFICALLY RESERVED, INCLUDING THE RIGHT TO DRILL FOR,
PRODUCE AND USE WATER FROM SAID REAL PROPERTY IN CONNECTION WITH
SUCH OPERATIONS, AS EXCEPTED AND RESERVED BY TRANSAMERICA
DEVELOPMENT COMPANY, A CORPORATION, FORMERLY CAPITAL COMPANY, A
CORPORATION, DEED RECORDED JUNE 30, 1965 AS INSTRUMENT NO. 1027 IN
BOOK D 2959 PAGE 114, OFFICIAL RECORDS.
613590.2\24168.0001 EXHIBIT "A" TO
ATTACHMENT NO.7
ATTACHMENT NO.8
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
Diamond Bar Redevelopment Agency )
21660 E. Copley Drive, Suite 100 )
Diamond Bar, California 91765 )
Attention: Executive Director )
This document is exempt from the payment of a recording
fee pursuant to Government Code Section 6103.
MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT ("Memorandum"), dated for identification
purposes as of *1999, is entered into by and between the DIAMOND BAR
REDEVELOPMENT AGENCY, a public body corporate and politic ("Agency"), and TOOLEY &
COMPANY, a California corporation ("Developer").
1. Disposition and Development Agreement. Agency and Developer have entered into
a Disposition and Development Agreement ("Agreement"), dated as of , which
provides for the development of that certain real property located in the City of Diamond Bar, County
of Los Angeles, State of California, more fully described in Exhibit "A' attached hereto and
incorporated herein by this reference (the "Site"). The Agreement is available for public inspection and
copying at the office of the Diamond Bar Agency, 21660 E. Copley Drive, Suite 100, Diamond Bar,
California. All of the terms, conditions, provisions and covenants of the Agreement are incorporated in
this Memorandum by reference as though written out at length herein, and the Agreement and this
Memorandum shall be deemed to constitute a single instrument or document.
2. -Purpose of Memorandum. This Memorandum is prepared for recordation purposes
only, and in no way modifies the terms, conditions, provisions and covenants of the Agreement. In the
event of any inconsistency between the terns, conditions, provisions and covenants of this
Memorandum and the Agreement, the terms, conditions, provisions and covenants of the Agreement
shall prevail.
613590.2\24168.0001 ATTACHMENT NO.8
Pagel of 2
The parties have executed this Memorandum of Agreement on the dates specified immediately
adjacent to their respective signatures
AGENCY:
DIAMOND BAR REDEVELOPMENT AGENCY,
a public body, corporate and politic
Dated: , 1998 By:
ATTEST:
Agency Secretary
Executive Director
DEVELOPER:
TOOLEY & COMPANY, a California corporation
Dated: , 1998 By:
Its:
President
613590.2\24168.0001 ATTACHMENT NO. 8
Page 2 of 2
EXHIBIT "A"
SITE LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOT 2 OF TRACT 39679, AS PER MAP RECORDED IN BOOK 1083 PAGES 14 TO 23
INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS
NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AND THEREUNDER,
TOGETHER WITH THE EXCLUSIVE RIGHT TO DRILL FOR, PRODUCE, EXTRACT, TAKE
AND MINE THEREFROM, SUCH OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS, AND TO STORE THE SAME UPON THE SURFACE OF SAID LAND, OR
BELOW THE SURFACE OF SAID LAND, TOGETHER WITH THE RIGHT TO STORE UPON
THE SURFACE OF SAID LAND, OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS WHICH MAY BE PRODUCED FROM OTHER LAND, WITH THE RIGHT OF
ENTRY THEREON FOR SAID PURPOSES AND WnH THE RIGHT TO CONSTRUCT, USE,
MAINTAIN, ERECT, REPAIR, REPLACE AND REMOVE THEREON AND THEREFROM ALL
PIPE LINES, TELEPHONE AND TELEGRAPH LINES, TANKS, MACHINERY, BUILDINGS
AND OTHER STRUCTURES, WHICH MAY BE NECESSARY AND REQUISITE TO CARRY
ON OPERATION ON SAID LAND, WITH THE FURTHER RIGHT TO ERECT, MAINTAIN,
OPERATE AND REMOVE A PLANT WITH ALL NECESSARY APPURTENANCES FOR THE
EXTRACTION OF GASOLINE FROM GAS, INCLUDING ALL RIGHT NECESSARY OR
CONVENIENT THERETO, AS RESERVED IN DEED, FROM TRANSAMERICA
DEVELOPMENT COMPANY, A CORPORATION RECORDED MARCH 29, 1968 IN
.BOOK D 3955 PAGE 185, OFFICIAL RECORDS, AND RE-RECORDED JUNE 19, 1969 IN
BOOK D 4407 PAGE 591, OFFICIAL RECORDS.
BY QUITCLAIM DEED RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 81-1004553,
TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION FORMERLY CAPITAL
COMPANY, A CORPORATION RELEASED AND SURRENDERED TO THE DIAMOND BAR
DEVELOPMENT CORPORATION, A CORPORATION, THE SURFACE RIGHT TO SAID
LAND FOR A DISTANCE OF NOT MORE THAN 500 FEET IN DEPTH, AND NOTHING
THEREIN CONTAINED SHALL IN ANY WAY BE CONSTRUED TO PREVENT, HINDER OR
DELAY THE FREE AND UNU IITED RIGHT TO MINE, DRILL, BORE, OPERATE AND
REMOVE FROM BENEATH THE SURFACE OF SAID LAND OR LANDS, AT ANY LEVEL
OR LEVELS 500 FEET OR MORE BELOW THE SURFACE OF SAID LAND, FOR THE
PURPOSE OF DEVELOPMENT OR REMOVAL OF ALL OIL, GAS, MINERALS AND OTHER
HYDROCARBONS SITUATED THEREIN OR THEREUNDER, OR PRODUCIBLE
THEREFROM, TOGETHER WITH ALL WATER NECESSARY IN CONNECTION
PRODUCIBLE THEREFROM TOGETHER WITH ALL WATER NECESSARY IN
CONNECTION WITH ITS DRILLING OR MINING OPERATION THEREUNDER
613590.2\24168.0001 EXHIBTT "A" TO
ATTACHMENT NO.8
ALSO EXCEPT FROM THAT PORTION OF SAID LAND INCLUDED WMIEN THE
BOUNDARIES OF THE LAND DESCRIBED IN THE DEED FROM UNIVERSITY OF
REDLANDS, ET AL., RECORDED DECEMBER 28, 1950, IN BOOK 35179 PAGE 74,
OFFICIAL RECORDS, AN AGGREGATE OF ONE-FOURTH OF ALL OIL, GAS AND
CASINGHEAD GAS AND OTHER HYDROCARBON SUBSTANCES AND MINERALS IN, ON
OR UNDER THE SURFACE OF SAID PREMISES, IT BEING THE INTENTION THAT EACH
GRANTOR THEREBY RESERVES IN SERVERALTY, A FRACTIONAL PART OF SAID
ONE-FOURTH CORRESPONDING EXACTLY WITH THE RESPECTIVE INTERESTS OF THE
GRANTORS SET FORTH FOLLOWING THEIR NAMES IN THE DEED, AS RESERVED IN
THE DEED FROM UNIVERSITY OF REDLANDS, A CORPORATION, ET AL., TO
BARTHOLOMAE CORPORATION, A CORPORATION, RECORDED DECEMBER 28, 1950 IN
BOOK 35170 PAGE 74, OFFICIAL RECORDS.
ALSO EXCEPT 'ITMREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND
MINERALS NOW OR AT ANY TIME HEREAFTER SITUATED IN SAID LAND OR
THEREUNDER OR PRODUCIBLE THEREFROM, TOGETHER WITH THE FREE AND
UNLM[TED RIGHT TO MINE, STORE, DRILL AND BORE BENEATH THE SURFACE OF
SAID LAND AT ANY LEVEL OR LEVELS FIVE HUNDRED (500) FEET OR MORE BELOW
THE SURFACE OF SAID LAND, FOR THE PURPOSE OF DEVELOPING OR REMOVAL OF
SUCH SUBSTANCES, PROVIDED THAT THE SURFACE OPENING OF SUCH WELL AND
ALL OTHER SURFACE FACILITIES SHALL BE LOCATED ON LAND OTHER THAN THAT
DESCRIBED HEREIN AND SHALL NOT PENETRATE ANY PART OR PORTION OF THE
ABOVE DESCRIBED REAL PROPERTY WITHIN FIVE HUNDRED (500) FEET OF THE
SURFACE THEREOF, AND ALL OF THE RIGHTS SO TO REMOVE SUCH SUBSTANCES
ARE HEREBY SPECIFICALLY RESERVED, INCLUDING THE RIGHT TO DRILL FOR,
PRODUCE AND USE WATER FROM SAID REAL PROPERTY IN CONNECTION WITH
SUCH OPERATIONS, AS EXCEPTED AND RESERVED BY TRANSAMEWCA
DEVELOPMENT COMPANY, A CORPORATION, FORMERLY CAPITAL COMPANY, A
CORPORATION, DEED RECORDED JUNE 30, 1965 AS INSTRUMENT NO. 1027 IN
BOOK D 2959 PAGE 114, OFFICIAL RECORDS.
613590.2\24168.0001 EXHIBIT "A" TO
ATTACHMENT NO.8
ATTACHMENT NO.9
DEVELOPER LOAN NOTE
$2,000,000
October 1998
Diamond Bar, California
FOR VALUE RECEIVED, THE DIAMOND BAR REDEVELOPMENT AGENCY, a
public body, corporate and politic ("Agency"), promises to pay to the TOOLEY & COMPANY, a
California corporation ("Developer"), or order at the Agency's office at 21660 E. Copley Drive,
Suite 100, Diamond Bar, California 91765, or such other place as the Developer may designate in
writing, the principal sum of Two Million Dollars ($2,000,000) (the "Note "Amount"), or so much of
the Note Amount as has been disbursed by the Developer to or on behalf of the Agency, in currency of
the United States of America, which at the time of payment is lawful for the payment of public and
private debts.
1. Agreement. This Developer Loan Note (the "Note") is given in accordance with that
certain Disposition and Development Agreement executed by the Agency and the Developer, dated as
of , 1998 (the "Agreement"). The rights and obligations of the Owner and the
Agency under this Note shall be governed by the Agreement and by the additional terms set forth in
this Note. The Note Amount shall be disbursed to the Agency in accordance with the provisions of the
Agreement upon satisfaction of the Conditions Precedent set forth in the Agreement.
2. Interest. The Note Amount shall bear interest at a rate of 01/o per annum.
Repayment of Note Amount. A portion of the Developer Loan in the amount of
$ shall be repaid upon (i) receipt of evidence satisfactory to the Agency that Developer
has entered into a lease with a term of not less than ten (10) years with a Fortune 500 company and
(ii) the issuance of the Release of Construction Covenants as provided in Section 311 of the
Agreement. The balance of the Developer Loan shall be repaid upon notification of the above
conditions and receipt of a favorable non -appealable judgement in the Pending Litigation. The
principal amount of the Developer Loan shall be adjusted downwards by an amount equal to the
Adjustment Factor. For purposes of this paragraph, the Adjustment Factor shall be the percentage
difference between the projected Hard Costs and actual Hard Costs incurred by Developer in the
construction of the Developer Improvements. "Hard Costs" shall include only the following expenses:
all direct labor and construction material costs associated with the contracts relating to preparation of
the Site and development and construction of all Improvements on the Site. This would include, but
not be limited to, any remaining demolition and grading for Site preparation, the installation of the
foundation system for the structure, the construction of the office buildings, including flooring, walls,
stairwells, exterior facades, interior facades, electrical work for common areas and all individual
offices, required fire and life safety systems, heating, venting and air conditioning systems for the
common areas and all individual offices, light fixtures for the common areas and all individual offices,
all required plumbiing fixtures for the common areas and all individuals officers, installation of
approved floor coverings for the common areas and all individual offices. Arly and all exterior site
work for the approved project site design plan shall include, but not be limited to, all walkways,
concrete curbs, paved walkways, parking areas, appropriately installed irrigation systems in all planted
613590.2124168.0001 ATTACHMENT NO.9
Page I of 3
areas, all code and design required exterior lighting, including any and all freestanding light standards,
any and all other items required as part of this Agreement, and any government code which shall
include the receipt of a certificate of occupancy for the entire structure and individual units. "Hard
Costs" shall include the costs of architect, engineering and design services related to the above items,
but shall not include development, permit and inspection fees imposed by public agencies; bond
premiums; marketing, advertising and promotions; legal fees and insurance.
No adjustment shall be made in the event that actual Hard Costs exceed
projected �Iard Costs.
1. Security. This Note shall be secured by a pledge of any legally available moneys of
the Agency.
2. Waivers
(a) Developer expressly agrees that this Note or any payment hereunder may be
extended from time to time at the Agency's sole discretion and that the Developer may accept security
in consideration for any such extension or release any security for this Note at its sole discretion all
without in any way affecting the liability of Agency.
(b) No extension of time for payment of this Note made by agreement by the
Developer with the Agency shall operate to release, discharge, modify, change or affect the original
liability of Agency under this Note, either in whole or in part.
(c) The obligations of Agency under this Note shall be absolute and Agency
waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for
any reasons whatsoever.
(d) Agency waives presentment, demand, notice of protest and nonpayment, notice
of default or delinquency, notice of acceleration, notice of costs, expenses or leases or interest thereon,
notice of dishonor, diligence in collection or in proceeding against any of the rights of interests in or to
properties securing of this Note, and the benefit of any exemption under any homestead exemption
laws, if applicable.
(e) No previous waiver and no failure or delay by Developer in acting with respect
to the terms of this Note shall constitute a waiver of any breach, default, or failure or condition under
this Note or the obligations secured thereby. A waiver of any term of this Note or of any of the
obligations secured thereby must be made in writing and shall be limited to the express written terms
of such waiver.
3. Amendments and Modifications. This Note may not be changed orally, but only by
an amendment in writing signed by Developer and by the Agency.
4. Developer May Assign. Developer may, at its option, assign its right to receive
payment under this Note without necessity of obtaining the consent of the Agency.
5. Terms. Any terms not separately defined herein shall have the same meanings as set
forth in the Agreement.
613590.2\24168.0001 ATTACHMENT NO.9
Page 2 of 3
6. Successors and Assigns. Whenever "Agency" is referred to in this Note, such
reference shall be deemed to include the Diamond Bar Redevelopment Agency and its successors and
assigns. All covenants, provisions and agreements by or on behalf of Agency, and on behalf of airy
makers, endorsers, guarantors and sureties hereof which are contained herein shall inure to the benefit
of the Developer and Developer's successors and assigns.
613590.2124168.0001 ATTACHMENT NO.9
Page 3 of 3
7. Miscellaneous. Time is of the essence hereof. This Note shall be governed by and
construed under the laws of the State of California except to the extent Federal laws preempt the laws
of the State of California. Agency and Developer acknowledge that this Note was entered into and is to
be performed in the County of Los Angeles and irrevocably and unconditionally submits to the
jurisdiction of the Superior Court of the State of California for the County of Los Angeles or the United
States District Court of the Central District of California, as Agency hereof may deem appropriate, or,
if required, the Municipal Court of the State of Califomia for the County of Los Angeles, in connection
with any legal action or proceeding arising out of or relating to this Note. Owner also waives any
objection regarding personal or in rem jurisdiction or venue.
AGENCY:
DIAMOND BAR REDEVELOPMENT AGENCY,
a public body corporate and politic
Lo
613590.2124168.0001 ATTACHMENT NO.9
Page 4 of 3
TABLE OF CONTENTS
Page
100. INTRODUCTORY PROVISIONS........................................................................................2
101.
Definitions.....................................................................................................................2
102.
Representations and Warranties.....................................................................................6
102.1 Agency Representations ................................. ..................
.................................
6
102.2 Developer's Representations..............................................................................6
103.
Transfers of Interest in Site or Agreement ...................................... :..............................
7
103.1 Prohibition....................................................................... .......................7
.. ...........
103.2 Permitted Transfers...........................................................................................
8
103.3 Agency Consideration of Requested Transfer ...................................................
8
103.4 Successors and Assigns.....................................................................................
8
103.5 Assignment by Agency......................................................................................9
200. DISPOSITION OF SITE........................................................................................................9
201.
Acquisition and Disposition of the Site..........................................................................9
201.1 Acquisition by the Agency.................................................................................9
201.2 Disposition of the Site to the Developer............................................................9
201.3 Developer Loan .................................................................................................9
202.
Escrow.........................................................................................................................10
202.1 Costs of Escrow..............................................................................................10
202.2 Escrow Instructions.........................................................................................10
202.3 Authority of Escrow Agent..............................................................................
11
202.4 Closing............................................................................................................11
202.5 Termination.....................................................................................................11
202.6 Closing Procedure........:...................................................................................12
203.
Review of Title......................................................................................12
204.
Title Insurance.............................................................................................................13
205.
Conditions of Closing..................................................................................................13
205.1 Agency's Conditions of Closing.......................................................................13
205.2 Developer's Conditions of Closing..................................................................14
206.
Condition of the Site....................................................................................................14
206.1 As -Is Condition...............................................................................................14
206.2 Investigation of Site.........................................................................................14
206.3 Developer Precautions After Closing..............................................................14
206.4 Required Disclosures After Closing................................................................15
206.5 Developer Indemnity - Hazardous Materials...................................................15
207.
Taxes and Assessments...............................................................................................15
300. DEVELOPMENT OF THE SITE........................................................................................15
301.
Scope of Development ............................. .................15
...................................................
302.
Construction Drawings and Related Documents....................................................:.....16
IM
303.
Land Use Approvals ........................................................................16
............................
304.
Schedule of Performance.............................................................................................16
305.
Cost of Construction....................................................................................................16
306.
Payment of Fees by Developer....................................................................................16
307.
Insurance Requirements...............................................................................................16
308.
Developer's Indemnity ...................................... ...........................................................17
309.
Rights of Access..........................................................................................................17
310.
Compliance With Laws................................................................................................17
310.1 Nondiscrimination in Employment .............................................. ............
......17
310.2 Taxes and Assessments...................................................................................18
311.
Release of Construction Covenants..............................................................................18
312.
Financing of the Developer Improvements ........................•••••
18
312.1 Approval of Financing.....................................................................................18
312.2 No Encumbrances Except Mortgages, Deeds of Trust, or Sale
and Lease -Back for Development...................................................................19
312.3 Holder Not Obligated to Construct Improvements..........................................19
312.4 Notice of Default to Developer, Mortgagee or Deed of Trust
Holders; Right to Cure....................................................................................19
312.5 Failure of Holder to Complete Improvements .................................................
20
312.6 Right of the Agency to Cure Mortgage or Deed of Trust
Default..............................................................................................
20
400. COVENANTS AND RESTRICTIONS...............................................................................21
401.
Covenant to Use Site In Accordance with Redevelopment Plan ..................................21
402.
Operating Covenant.....................................................................................................
21
403.
Maintenance Covenants......................................... ....................................x................21
404.
Nondiscrimination Covenant........................................................................................21
405.
Minimum Project Value Covenant...............................................................................22
406.
Minimum Assessed Valuation.....................................................................................22
407.
Commencement of Operation..............................................22
408.
Effect of Violation of the Terms and Provisions of this Agreement .............................23
500. DEFAULTS AND REMEDIES............................................................................................23
501.
Default Remedies ................................................ ........................................................23
502.
Institution of Legal Actions..........................................................................................23
503.
Termination by Developer ................................. ..........................................................
23
504.
Termination by Agency................................................................................................23
505.
Acceptance of Service of Process.........................................24
.......................................
506.
Rights and Remedies Are Cumulative.........................................................................
24
507.
Inaction Not a Waiver of Default.................................................................................
24
508.
Applicable Law............................................................................................................
24
600. GENERAL PROVISIONS ...................... .............................................................................24
601.
Notices, Demands and Communications Between the Parties.....................................24
602.
Enforced Delay; Extension of Times of Performance ..................................................
7A
603.
Non -Liability of Officials and Employees of Agency and Developer ...........................25
604. Relationship Between Agency and Developer .............................................................25
605. Agency Approvals and Actions ......................• -. ............25
...............................................
606. Commencement of Agency Review Period .......................... ............... 25
........................
607. Counterparts.........:..........................................................26
............................................
608. Integration..................................................... .
609. Attorneys' Fees ......................... ..............................26
.....................................................
610. Administration .................................
611. Amendments of Agreement........................................................... ... 26
...........................
612. Titles and Captions .................................................... ...26
...............................................
613. Interpretation ............................................... .....27
............................................................
614. No Waiver............................................................. .......
.............................................27
615. Modifications ..................... ........27
616. Severability ...............................
617. Computation of Time ........................................... .......27
......................................
618. Legal Advice................................................................27
619. Time of Essence...........................................................
620. Cooperation ............................................................27
.....................................................
621. Conflicts of Interest ............................... 27
.............................................................
622. Time for Acceptance of Agreement by Agency........................................................... 28
ATTACHMENTS
Attachment No. 1
Site Map
Attachment No. 2
Site Legal Description
Attachment No. 3
Schedule of Performance
Attachment No. 4
Scope of Development
Attachment No. 5
Grant Deed
Attachment No. 6
Declaration of Conditions, Covenants and Restrictions
Attachment No. 7
Release of Construction Covenants
Attachment No. 8
Memorandum of Agreement
Attachment No. 9
Developer Loan Note