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HomeMy WebLinkAboutResolution - RDA 10-02 STATE OF CALIFORNIA ) RESOLUTION NO. RDA 10-02 COUNTY OF RIVERSIDE)ss CITY OF SAN JACINTO ) A RESOLUTION OF THE CITY OF SAN JACINTO REDEVELOPMENT AGENCY APPROVING THE OPERATING COVENANT AGREEMENT WITH MSRE INC. FOR THE ACQUISITION OF COVENANTS RUNNING WITH THE LAND FOR THE PROPERTY LOCATED AT 288 E. MAIN STREET, SAN JACINTO, CALIFORNIA WHEREAS, pursuant to the California Community Redevelopment Law (Health & Safety Code Sections 33000, et seq.) ("CRL"), the City Council of the City of San Jacinto ("City") approved and adopted a redevelopment plan ("Redevelopment Plan") for the redevelopment project area known as the San Jacinto Redevelopment Project Area ("Project Area"); and WHEREAS, the Governing Board ("Board") of the San Jacinto Redevelopment Agency of the City of San Jacinto ("Agency") is engaged in activities to implement the Redevelopment Plan for the Project Area pursuant to the provisions of the CRL; and WHEREAS, MSRE Inc., a California limited liability company, is the fee owner of certain real property generally located at 288 E. Main Street ("Owner") within the Project Area ("Property"), and further described in the Operating Covenant Agreement attached hereto as Exhibit"A" and incorporated herein by reference; and WHEREAS, the Owner has acquired the Property to facilitate and operate a realty and the Owner now desires to sell interests in the Property to the Agency consisting of covenants running with the land for the Property, which are more fully set forth in the Operating Covenant Agreement (the "Covenants") attached hereto as Exhibit"A;" and WHEREAS, the Agency is authorized under the CRL Section 33391 to acquire real property or an interest in real property for purposes of redevelopment; and WHEREAS, the Agency desires to purchase the Covenants from the Owner in accordance with the terms and conditions set forth in the Operating Covenant Agreement. NOW, THEREFORE, BE IT RESOLVED, determined and ordered by the Governing Board of the San Jacinto Redevelopment Agency of the City of San Jacinto as follows: Section 1. Recitals. The above recitals are true and correct. Section 2. Approval of Agreement. The Agency hereby authorizes the purchase of the Covenants and approves the Operating Covenant Agreement in the form attached hereto. Section 3. Authorization. The Agency hereby authorizes the Agency's Executive Director (with the concurrence of Agency Counsel) to execute and deliver on behalf of the ONTARIOIRHERMANOWICZ 310112.3 Agency the Operating Covenant Agreement and such other documents and instruments as may be necessary or convenient in the furtherance of the actions authorized in this Resolution. Section 4. Filing. The Agency Secretary is hereby directed to file a copy of the executed Operating Covenant Agreement with the City Clerk at City Hall. Section 5. Direction. The Agency staff is hereby directed to do all that is necessary to effectuate the intent of the Operating Covenant Agreement and consummate the acquisition of the Covenants. Section 6. CEQA Compliance. The Agency has determined that it can be seen with certainty that there is no possibility that the conveyance the Covenants will have a significant adverse effect on the environment. Thus, the adoption of this Resolution is exempt from the requirements of the California Environmental Quality Act ("CEQA") pursuant to Section 15061(b)(3) of the CEQA Guidelines. The Agency hereby directs staff to file a Notice of Exemption with the County Clerk of Riverside County within five (5) working days following approval of this Resolution. Section 7. Certification. The Agency Secretary shall certify the adoption of this Resolution. Section 8. Effective Date. This Resolution shall become effective upon its adoption. PASSED,APPROVED AND ADOPTED this 3'd day of June, 2010 by the following vote: AYES: Ayres, Di Memmo, Mansperger, Potts NAYS: None ABSTAINED: None ABSENT: Stubblefield San Jacinto Redevelopment Agency ,116ve Di Memm , Vice ATTEST: Richard Miller, Agency Secretary ONTARIO?RHERMANO W ICZ1310112.3 2 APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP S 9 r IF ict ee� aft ger, <gency Counsel ONTARIO`,RHERMANOWICZA 10112.3 3 CERTIFICATION I, Richard Miller, Secretary of the San Jacinto Redevelopment Agency of the City of San Jacinto, do hereby certify that the foregoing Resolution No. RDA 10-02 was introduced and adopted by the San Jacinto Redevelopment Agency of the City of San Jacinto at a regular meeting thereof,held on the 3rd day of June, 2010,by the following vote: AYES: Ayres, Di Memmo, Mansperger, Potts NAYS: None ABSTAINED: None ABSENT: Stubblefield IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the San Jacinto Redevelopment Agency of the City of San Jacinto this the 3rd day of June, 2010. Richard Miller, Agency Secretary San Jacinto Redevelopment Agency (SEAL) ONTARIO`,RHERM ANO W ICZ1310112.3 4 Exhibit"A" Operating Covenant Agreement [SEE ATTACHED BEHIND THIS PAGE] 7 ONTARI&RHERMANOWICZ010112.3 5 AGENDA ITEM 5.6 0 , RECORDING REQUESTED BY ANDL� WHEN RECORDED MAIL TO: San Jacinto Redevelopment Agency 595 S. San Jacinto Avenue San Jacinto, CA 92583 ATTN: Executive Director SPACE ABOVE THIS LINE FOR RECORDER'S USE EXEMPT FROM RECORDING FEES PURSUANT TO GOV. CODE § 27383 OPERATING COVENANT AGREEMENT by and between the SAN JACINTO REDEVELOPMENT AGENCY, a public body,corporate and politic, and MSRE, INC. a California corporation [Dated June 3,2010 for reference purposes only] PACKET PAGE: 91 AGENDA ITEM 5.6 1. Definitions. All initially capitalized terms used in this Agreement shall have the meanings set forth in this Section I or, if not defined in this Section 1, where such term first appears in this Agreement, unless the context of usage clearly requires another meaning. 1.1 Agency. The San Jacinto Redevelopment Agency, a public body,corporate and politic. 1.2 Agency Counsel. The attorney for the Redevelopment Agency. 1.3 Agency Parties. Collectively,the Agency, its elected officials, employees, attorneys and other agents. 1.4 Agency Party. Individually, the Agency, its elected officials, employees, attorneys or other agents. 1.5 Affiliate. In reference to any Person means any other Person Controlling or Controlled by or under common Control with the specified Person. "Affiliated" shall have the correlative meaning. 1.6 Approval. Any license, permit, approval, consent, certificate, ruling, variance, authorization, conditional use permit, or amendment to any of the foregoing, as shall be necessary or appropriate under any Law to develop or operate the Project. 1.7 City. The City of San Jacinto, a California municipal corporation and general law city. 1.8 Claim. Any claim, loss, cost, damage, expense, liability, lien, action, cause of action (whether in tort, contract,under statute, at law, in equity or otherwise), charge,award, assessment, fine or penalty of any kind (including consultant and expert fees and expenses and investigation costs of whatever kind or nature, challenge to the Agency's authority to enter into or perform this Agreement or approval of this Agreement in any form, if an Indemnitor improperly fails to provide a defense for an Indemnitee,then Legal Costs of counsel retained by the Indemnitee), and any judgment. 1.9 Covenant Payment. Two thousand five hundred dollars ($2,500). 1.10 Covenant Term. The time period beginning on the Effective Date and ending three (3) years thereafter. 1.11 Default. Defined in Section 9. 1.12 Default Interest. Interest at an annual rate equal to the lesser of: (a) eight percent(8%) per annum; or(b)the Usury Limit. 1.13 Downtown Sign Guidelines. Article 10A of the Zoning Ordinance of the City of San Jacinto. 1.14 Effective Date. Defined in Section 2.1. 1.15 Executive Director. The Executive Director of the Agency or his or her designee or successor in function. -3- PACKET PAGE: 93 AGENDA ITEM 5.6 r 1.28 Party. Individually, Owner or the Agency, as applicable. 1.29 Person. Any association, corporation, governmental entity or agency, individual,joint venture,joint-stock company, limited liability company, partnership,trust, unincorporated organization or other entity of any kind. 1.30 Property. That certain real property specifically described in Exhibit A attached to this Agreement. 1.31 Sign Regulations. Article 16 of the Zoning Ordinance of the City of San Jacinto. 1.32 Unavoidable Delay. Delay in either Party performing any obligation under this Agreement, except payment of money except when due to one of the causes described below that prevents or materially limits the ability to transfer funds by or between financial institutions, arising from or on account of any cause whatsoever beyond the Party's reasonable control, including strikes, labor troubles or other union activities, casualty, war, acts of terrorism, riots, litigation, Government action or inaction, regional natural disasters, or inability to obtain materials. Unavoidable Delay shall not include delay caused by a Party's financial condition, illiquidity, or insolvency. 1.33 Usury Limit. The highest rate of interest, if any, that Law allows under the circumstances. 2. Effective Date. 2.1 Definition. This Agreement shall not become binding on either Party, unless and until the first date on which all of the following occur, if at all (the"Effective Date"): (a) Signature and Delivery of Agreement by Owner. Three (3) originals of this Agreement are signed by the authorized representative(s)of Owner and delivered to the Agency; and (b) Approval of Agreement by Agency Board. This Agreement is approved by the Agency Board at a public meeting of the Agency Board, following all legally required notices and hearings; and (c) Signature and Delivery of Agreement by Agency. One (1) original of this Agreement is signed by the authorized representative(s)of the Agency and delivered to Owner. 2.2 Failure of Conditions. If the Effective Date does not occur on or before the Outside Effective Date, then no part of this Agreement shall become binding on or enforceable against either Party and any prior signatures or approvals of this Agreement by either the Agency or Owner shall be void and of no further force or effect. 3. Operating Covenants. 3.1 Operating and Use Covenant. Owner covenants to the Agency to continuously operate (no period of inoperation of more than forty-five (45) consecutive days) the Project on the Property throughout the entirety of the Covenant Term. Owner shall, for the entirety of the Covenant Term, at Owner's sole cost and expense, obtain and maintain all franchises, permits, contractual arrangements, licenses, and registrations necessary for the continuous operation of the Project in a manner consistent -5- PACKET PAGE: 95 AGENDA ITEM 5.6 lien or other encumbrance against the Property in the manner provided under Civil Code Sections 2924, 2924b and 2924c in the amount as reasonably necessary to restore the Fagade Improvements and the Property to the maintenance standard required under this Section 3.2, including attorneys' fees and costs of the Agency associated with the abatement of the Maintenance Deficiency or removal of graffiti and the collection of the costs of the Agency in connection with such action. For the purposes of the preceding sentence the words "reasonable attorneys' fees and costs of the Agency" mean and refer to the salaries, benefits and costs of the Agency General Counsel and the lawyers employed in the office of the Agency General Counsel. Nothing in this Section 3.2 shall be deemed to preclude the Owner from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that such changes are in compliance with the City's zoning and development regulations and other applicable laws. 3.3 Property Taxes. Owner covenants to pay, prior to delinquency, all ad valorem real estate taxes and assessments assessed by the Riverside County Treasurer-Tax Collector for the Project. 3.4 Covenant to Maintain Property on Tax Rolls. Owner shall assure that the entire Property shall remain on the County of Riverside, California secured real property tax rolls so long as the Agency is authorized to receive property taxes from the Project Area pursuant to CRL Section 33670(b). 4. Obligation to Refrain from Discrimination. The Owner covenants and agrees for itself, its successors, its assigns and every successor-in-interest to the Property or any portion thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Owner, 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, sub-tenants, sub- lessees or vendees of the Property. Owner acknowledges and agrees for itself, its successors, its assigns and every successor-in-interest to the Property or any portion thereof that Community Redevelopment Law (Cal. Health and Safety Code §§ 33000 et. seq.) establishes certain policies, covenants, provisions and obligations related to the redevelopment of property and the inclusion of certain non-discrimination and non-segregation covenants, provisions and obligations within deeds, leases, and contracts ("Non- discrimination Covenants"). To the extent that these Non-discrimination Covenants, as may be amended from time to time, are applicable to this Property as a result of this Agreement, Owner covenants and agrees for itself, its successors, its assigns and every successor-in-interest to the Property or any portion thereof that these Non-discrimination Covenants shall be complied with to the fall extent of the law. The covenant of this Section 4 shall run with the land of the Property in perpetuity. 5. Owner Option to Defend this Agreement. The Owner acknowledges that the Agency is a"public entity" and/or a"public agency" as defined under applicable California law. Therefore, the Agency must satisfy the requirements of certain California statutes relating to the actions of public entities and redevelopment agencies, including, without limitation, CEQA. Also, as a public body, the Agency's action in approving this Agreement may be subject to proceedings to invalidate this Agreement or mandamus. The Owner assumes the risk of delays and damages that may result to the Owner from any third-party legal actions related to the Agency's approval of this Agreement or the pursuit of the activities contemplated by this Agreement, even in the event that an error, omission or abuse of discretion by the Agency is determined to have occurred. If a third-party files a legal action regarding the Agency's approval of this Agreement or the pursuit of the activities contemplated by this Agreement, the Agency may terminate this Agreement on thirty (30) days written notice to the Owner of the Agency's intent to terminate this Agreement, referencing this Section 5, without any further obligation to perform the terms -7- PACKET PAGE: 97 AGENDA ITEM 5.6 any reimbursement or other compensation from the Agency for any costs incurred by Owner in performing or preparing to perform its covenants or other obligations under this Agreement. 9. Defaults. Subject to any extensions of time provided for in this Agreement for Unavoidable Delay, and in addition to the terms and timeframes provided for in Section 3.2, the occurrence of any of the following events shall constitute a"Default": 9.1 Monetary Default. The failure by any Party to perform any obligation of such Party under this Agreement for the payment of money, if such failure is not cured within fifteen (15) days after the non-performing Party's receipt of Notice from the injured Party that such obligation was not performed, as and when due; or 9.2 Non-Monetary Default. Except as otherwise provided for in Section 3.2, the failure by any Party to perform any of its obligations set forth in this Agreement, other than obligations subject to Section 9.1, if such failure is not cured within thirty(30) days after the non-performing Party's receipt of Notice from the injured Party that such obligation was not performed, as and when due, or, if such failure is of a nature that cannot reasonably be cured within thirty (30) days, the failure by such Party to commence such cure within thirty (30) days after receipt of such Notice and to, thereafter, diligently prosecute such cure to completion. 10. Agency's Remedies. 10.1 For any Default, pursue any available legal or equitable action or remedy to (i) recover damages to the Agency arising from such Default, including, without limitation, to collect any amount of money due to the Agency from Owner, or (ii) preclude a breach of this Agreement or compel Owner to perform in accordance with the requirements of this Agreement, following the notice and opportunity to cure provided herein; and 10.2 For any Default, off-set any amount of money due to the Agency from Owner, following the notice and opportunity to cure provided herein, as applicable, against any Covenant Payment(s)due or becoming due to Owner; and 10.3 For any Default of an obligation arising under any of Section 3, suspend any Covenant Payments due hereunder during any period during which such a Default exists. Additionally, Agency may, at its option, elect to immediately terminate this Agreement and all of its obligations hereunder, including any obligations concerning unaccrued and suspended Covenant Payments, without cost, expense or liability; and 10.4 For any Default of an obligation arising under Section 3 that remains uncured as provided herein, if Agency terminates this Agreement Agency shall be entitled to recover the prorated amount of the Covenant Payment for the remainder of the Covenant Term. If the Agency does not terminate the Agreement,Agency shall be entitled to recover the prorated rate amount of the Covenant Payment for the period of the uncured Default; and 10.5 For any Default which consists of the failure by Owner to complete all material elements of the Project, immediately terminate this Agreement and all of the Agency's obligations hereunder, including any obligations concerning unaccrued and suspended Covenant Payments, without cost, expense or liability. -9- PACKET PAGE: 99 AGENDA ITEM 5.6 Executive Director has the authority to approve or consent to those matters in this Agreement requiring the Agency's approval or consent and to make all other decisions on behalf of the Agency, subject to the Executive Director's retained and reserved sole and absolute discretion to seek Agency Board approval of any such matter. 14. Governing Law, Jurisdiction, Venue. This Agreement shall be deemed to have been made in the State of California, and the validity of this Agreement, its construction, interpretation, and enforcement, and the Parties' rights hereunder and concerning the Property, shall be decided under, governed by, and construed in accordance with the laws of the State of California. The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated only in the state courts located in the County of Riverside, State of California, or the United States District Court with jurisdiction in the County of Riverside, State of California. Owner waives any right Owner may have to assert the doctrine of forum non conveniens or to object to such venue. 15. ' Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties under this Agreement are cumulative and the exercise by any 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 another Party. 16. No Effect on Agency's Authority. Nothing in this Agreement shall limit or restrict the authority of the Agency Board to take any other actions with respect to the Project or Property or Owner without notice to or consent from Owner, except as may otherwise be expressly provided by applicable Law. The approval of this Agreement by the Agency shall not be binding on the Agency Board, or any other commission, committee, board or body of the Agency regarding any Approvals regarding the Property or Project required by such bodies. No action by the Agency with reference to this Agreement or any related documents shall be deemed to constitute issuance or waiver of any required Agency Approval regarding the Property or Project. 17. Non-liability of Agency Officials and Employees. No elected official, officer, contractor, consultant, attorney, employee or agent of the Agency shall be personally liable to Owner, any voluntary or involuntary successor or assign of Owner, or any lender or other Person holding an interest in Owner, in the event of any Default or breach of this Agreement by the Agency, or for any amount that may be or become due to Owner or its successors or assigns under this Agreement, or on any obligations arising under this Agreement. No shareholder, member, partner, principal, officer, attorney, employee or agent of Owner shall be personally liable to the Agency, any voluntary or involuntary successor or assign of the Agency, in the event of any Default or breach of this Agreement by Owner, or for any amount that may be or become due to the Agency or its successors or assigns under this Agreement, or on any obligations arising under this Agreement. 18. Notices. 18.1 Delivery. Any and all Notices submitted by either Party to the other Party pursuant to or as required by this Agreement shall be in writing and addressed to the Agency or Owner (and their designated copy recipients) as set forth in Section 18.2. Notices (including any required copies) shall be delivered personally, by Federal Express, United Parcel Service or other nationally recognized overnight (one-night) courier service or by registered or certified United States mail, return receipt requested and postage prepaid, to the addresses set forth in Section 18.2, in which case they shall be deemed delivered on the date of delivery (or when delivery has been attempted twice, as evidenced by the written report of the courier service)to such address(es) or on the fourth(4'") day following deposit with the United States -It- PACKET PAGE: 101 AGENDA ITEM 5.6 understanding or agreements between the Parties with respect to all or any part of the subject matter of this Agreement. 23. Severability. If any term or provision of this Agreement or its application to any Person or circumstance shall to any extent be invalid or unenforceable,then the remainder of this Agreement or the application of such term or provision to Persons or circumstances, except those as to which it is invalid or unenforceable, shall not be affected by such invalidity. All remaining provisions of this Agreement shall be valid and be enforced to the fullest extent Law allows. 24. No Waiver. Failure by a Party to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers under this Agreement at any one time or more times be deemed a waiver or relinquishment of such right or power at any other time or times. 25. Time is of the Essence. Time is of the essence in the performance of the Parties' obligations under this Agreement. 26. Unavoidable Delav: Extension of Time of Performance. 26.1 Notice. Performance by either Party under this Agreement shall not be deemed, or considered to be in Default, where any such Default is due to an Unavoidable Delay. Any Party claiming Unavoidable Delay shall Notify the other Party: (a) within ten (10) days after such Party knows of any such Unavoidable Delay;and(b)within five(5)days after such Unavoidable Delay ceases to exist. To be effective, any Notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The extension of time for an Unavoidable Delay shall commence on the date of the occurrence of the Unavoidable Delay and shall continue until the end of the condition causing the Unavoidable Delay. The Party seeking to be excused from performance shall exercise its best efforts to cure the condition causing the Unavoidable Delay, within a reasonable time. 26.2 Assumption of Economic Risks. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES OR MARKET DEMAND/CONDITIONS AND WAIVE, TO THE GREATEST LEGAL EXTENT, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. EACH PARTY AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, EITHER OF SUCH PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMANDS, SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT OBSERVANCE OF EACH AND EVERY OF THE OBLIGATIONS, COVENANTS, CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET CHANGES,WHETHER OR NOT FORESEEABLE AS OF THE REFERENCE DATE. INITIALS OF AUTHORIZED AGENCY INITIALS OF AUTHORIZED OWNER REPRESENTATIVE(S) REPRESENTATIVES) -13- PACKET PAGE: 103 AGENDA ITEM 5.6 SIGNATURE PAGE TO OPERATING COVENANT AGREEMENT MSRE,Inc.,a California corporation SAN JACINTO REDEVELOPMENT AGENCY,a public body,corporate and politic, By: By: Leticia Arciniega Interim Executive Director Dated: Dated: By: ATTEST: Dated: By: Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST&KRIEGER LLP By: Jeff Ballinger,Agency General Counsel -IS- PACKET PAGE: 105 AGENDA ITEM 5.6 ALL-PURPOSE ACKNOWLEDGMENT FOR CALIFORNIA STATE OF CALIFORNIA COUNTY OF On , before me, , i i i personally appeared lqame(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature ol Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual ❑ Corporate Officer Title(s) Title or Type of Document ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney-In-Fact Number Of Pages ❑ Trustee(s) ❑ Guardian/Conservator ❑ Other: Date Of Document Signer is representing: Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above PACKET PAGE: 107