HomeMy WebLinkAbout1996-080
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RESOLUTION NO. 96-80
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, AUTHORIZING
AND DIRECTING THE EXECUTION OF CONSENT TO
FINANCING OF HOTEL PROPERTY, CERTIFICATES OF
COMPLIANCE AND ESTOPPEL CERTIFICATE [FOSTER
HOTELS]
WHEREAS, the City of San Bernardino (the "City") and
9 Maruko, Inc. ("Maruko") entered into that certain City of San
10 Bernardino Convention Center Sublease and Operating Agreement
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(the "Operating Agreement") on or about August 4, 1987, with
regard to certain real property located in the City, described in
Exhibit "A" of the Operating Agreement, which property consists
of convention center facilities and related improvements and
personal property (the "Leased Premises"); and
WHEREAS, the City, the Redevelopment Agency of the City
of San Bernardino (the "Agency") and Maruko entered into that
certain Owner Participation and Development Agreement ("OPA") on
22 or about July 20, 1987, with regard to certain real property
23 located in the City, described in Exhibit "A" of the OPA, which
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property is improved with a hotel (the "Property"); and
WHEREAS, the Operating Agreement and the OPA were
28 amended by virtue of that certain Amendment No. 1 to Owner
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RES 96-80
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Participation and Development Agreement and Convention Center
Sublease and Operating Agreement ("Amendment NO.1"); and
WHEREAS, Maruko sold the Property, which adjoins the
Leased Premises, to Foster Hotels International, Inc., formerly
known as Foster-Khoury International,
Inc. I
a California
corporation ("FHI") and the City previously authorized execution
of a consent to such sale; and
WHEREAS, Maruko assigned its rights in and under the
Operating Agreement and the OPA to FHI, and the City previously
authorized execution of a consent to such assignment; and
WHEREAS, the shares of FHI were transferred by the
prior principals, Angela Foster and Najib Khoury, to Hamad Bin
Mohamed Bin Sulman Al Khalifa; and
WHEREAS, Section 4.3 of the OPA provides that upon
completion of Improvements (as defined in Section 2.16 of the
OPAl and upon the opening of the hotel for the purposes of
receiving guests, the City and the Agency will issue a
Compliance
evidencing
completion
of
the
Certificate
of
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Redeveloper's obligations as set forth in the OPA, in the form
attached hereto as Exhibit "A"; and
WHEREAS, the Improvements have been completed and the
hotel has opened for the purpose of receiving guests, but no
Certificate of Compliance has yet been issued; and
WHEREAS, Section 9.10 of the OPA provides that the
parties to the OPA will, from time to time and upon request of
the other party, execute an estoppel certificate stating that the
OPA is unmodified and in full force and effect, the dates to
which Redevelopment Assistance has been paid and the existence of
any known default under the OPAi and
WHEREAS, FHI intends to acquire financing for the
purposes of improvements to and rehabilitation of the Property
and/or Leased Premises and related personal property, and
providing funds to offset operating deficits thereof which
financing will be secured by a lien or liens on the Property
and/or FHI's rights under the Operating Agreement
(the
"Financing"), and seeks the acquiescence of the City thereto; and
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RES 96-80
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WHEREAS, the City deems it to be in the public interest
to consent to the Financing.
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE,
DETERMINE AND ORDER AS FOLLOWS:
SECTION 1.
The Recitals hereinabove are true and
correct and are incorporated herein by this reference.
SECTION 2.
The City hereby authorizes and directs
the Mayor to execute and deliver the Certificate of Compliance in
the form attached hereto as Exhibit "A", with such non-
substantive changes as the Mayor and the City Attorney may find
reasonably necessary and acceptable.
SECTION 3.
The City authorizes and directs the
Mayor to execute an estoppel certificate, in a form approved by
the City Attorney, as and when requested by FHI, reflecting as of
the date of such estoppel certificate the status of the OPA,
payments due thereunder, the existence of any defaults
thereunder, and such other information as reasonably requested by
FHI and/or required under Section 9.10 of the OPA.
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RES 96-80
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The
City hereby
the
SECTION 4.
consents
to
Financing, subject to the conditions that the proceeds of such
loan be utilized solely for the purposes of improvements to and
rehabilitation of the Property and/or the Leased Premises,
including related personal property, and for offsetting operating
deficits of the Property and/or the Leased Premises, and that the
terms and conditions of the Financing are reasonable and
customary.
SECTION 5.
The City authorizes and directs the
Mayor to execute and deliver the Consent to Financing of Hotel
Property in the form attached hereto as Exhibit "E" and the
Assumption Agreement in the form attached hereto as Exhibit "C",
with such non-substantive changes as may be reasonable and which
are acceptable to both the Mayor and to the City Attorney.
SECTION 6.
No further transfers of any interest in
the Property, the Leased Premises or of the rights and
obligations under the Operating Agreement or the OPA shall occur
except in compliance with applicable sections of the Operating
Agreement and/or the OPA.
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BES 96,..80
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SECTION 7.
The City's consent set forth herein is
expressly contingent upon execution by FHI and delivery to the
City of the Assumption Agreement in the form attached hereto as
Exhibit "C", together with such non-substantive changes as may be
reasonable and which are acceptable to both the Mayor and to the
City Attorney.
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RES 96
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, AUTHORIZING AND DIRECTING THE EXECUTION
OF CONSENT TO FINANCING OF HOTEL PROPERTY, CERTIFICATE OF
COMPLIANCE AND ESTOPPEL CERTIFICATE [FOSTER HOTELS]
SECTION 8.
The findings and determinations herein
shall be final and conclusive. This Resolution shall take effect
upon the date of its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Mayor and Common Council of the City of
regular
meeting
San Bernardino at a
April
1st
day of
thereof, held on the
1996, by the following vote, to wit:
Council Members Negrete. Curlin, Arias,
AYES:
Oberhelman, Devlin, Anderson, MIller
NAYS:
ABSENT:
rz~le~
The foregoing resolution is hereby approved this
3/tr?
April
,1996.~_. d' / -,
/F'YYv..... 1/(VUA'l
/
Mayor of the City of
San Bernardino
day of
Approved as to form and legal content:
CitY~AttorneY
By:.~ -~~./
SB~O 0 0 1 \noc\
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RES 96-80
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CERTIFICATE OF COMPLIANCE
After Recording,
Mail To:
City Clerk
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
CERTIFICATE OF COMPLIANCE
PROJECT NAME:
San Bernardino Hotel/Convention Center
LEGAL DESCRIPTION:
See Att. "I" and "2"
OWNER OF PROPERTY/
PARTICIPANT:
Foster Hotels International, Inc.
ADDRESS:
c/o Thomas Roberts, Esq.
Baker & Hostetler
600 Wilshire Blvd.
Los Angeles, CA 90017-3212
PROJECT DESCRIPTION: Completion of Hotel/Convention Center in
accordance with the terms of that "Owner Participation and
Development Agreement" between the City of San Bernardino, The
Redevelopment Agency of the City of San Bernardino and Maruko,
Inc., dated July 20, 1987 (the "Agreement").
NOTICE IS HEREBY GIVEN that the above described project
has been completed in compliance with the terms and conditions of
the Agreement.
DATED: '(-Ii ,/ of I.
CITY OF SAN BERNARDINO
~
,
,
"
BY~~{i!:/0_
1
RES 96-80
1 REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
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RES 96-80
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Attachment 1 to Exhibit "A"
That portion of Parcel 26, Parcel Map No. 668, in the City
of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in Parcel Map Book 25 pages 47
through 58, records of said County, described as follows:
Beginning at the Northwest corner of said Parcel 26;
thence S89" 55' 49"E 206.57 feet to the Northeast corner of
said Parcel 26; thence along the Southerly and Easterly lines
of said Parcel 26 through its various courses of SO" 04' 11"W
60.01 feet; thence N89" 55' 49"W 128.55 feet; thence SO" 04'
11"W 82.77 feet; thence S59" 38' 54"W 29.01 feet; thence N89"
55' 49"W 12.00 feet; thence SO" 04' 11"W 31.50 feet; thence
N89" 55' 49"W 46.69 feet to the Southwest corner of said Parcel
26; thence N03" 57' 39"E along the West line of said Parcel 26,
said line also being the East line of "E" Street as shown on
said Parcel Map No. 688, a distance of 86.71 feet; thence
continuing along said West line of Parcel 26 NO" 02' 37"W
102.46 feet to point of beginning.
Note: This description is based upon a field survey
performed in July, 1987, by C M Engineering Associates and
shown on the plat prepared for title insurance purposes for
Maruko.
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I RES 96-80
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Attachment 2 to Exhibit "AU
EXHIBIT HALL
That portion of Parcel 25, Parcel Map No. 688, in the City
of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in Parcel Map Book 25 pages 47
through 58, records of said County described as follows:
Beginning at the Southwest corner of Parcel 22 of said
Parcel Map No. 688; thence S89" 55'49"E along the South line of
said Parcel 22 a distance of 39.02 feet; thence SO" 04'11"W
14.67 feet; thence N89" 55' 49"W 28.63 feet; thence SO" 04'11"W
108.18 feet; thence S89" 55'49"E 0.12 feet; thence SO" 04'11"W
27.16 feet to the Northeast corner of Parcel 26 of said Parcel
Map No. 688; thence N89" 55'49"W along the North line of said
Parcel 26 a distance of 162.95 feet to a point that bears S89"
55'49"E 43.62 feet from the Northwest corner of said Parcel 26;
thence NO" 04'11"E 15.25 feet; thence N45" 04'11"E 11.55 feet;
thence NO" 04'11"E 25.17 feet; thence N45" 04'11"E 11.79 feet;
thence NO" 04'11"E 70.84 feet; thence N45" 04'11"E 11.55 feet;
thence NO" 04'11"E 14.03 to a point in the South line of said
Parcel 21 that bears S89" 55'49"E 68.64 feet from the Southwest
corner of said Parcel 21; thence S89" 55'49"E along the South
line of said Parcel 21 a distance of 127.77 feet to the point
of beginning.
Note: This description is based upon a field survey
performed in July, 1987, by C M Engineering Associates and
shown on the plat prepared for title insurance purposes for
Maruko, Inc., dated July 16, 1987.
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RES 96-80
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
On April 26, 1996 before me, LA VONDA M-PEARSON, Notary Public, personally
appeared . Tom Minor, proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signat e
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tit.. - - ..... ..... ..... ... ... ... ... ~-~1
l@....:....LAVONDAM-PE"r.soN
- i'o~. COMM.#97A738
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J "" . My Comm. Expires OCT 4, 1996
~ . . _ _ _ _ T _ _ .
RES 96-80
ESTOPPEL CERTIFICATE
(OPA - Agency)
Foster Hotels International
c/o Thomas G. Roberts, Esq.
Baker & Hostetler
600 Wilshire Blvd., suite 1200
Los Angeles, California 90017
Re: Owner Participation and Development
Agreement Dated July 20, 1987
Ladies and Gentlemen:
This Estoppel certificate is delivered pursuant to that
certain Owner Participation and Development Agreement, dated July 20,
1987, between the city of San Bernardino, the Redevelopment Agency
of the City of San Bernardino (the "Agency"), and Maruko, Inc.
("Maruko"), as amended by Amendment No.1, dated August 26, 1992
(collectively the "OPA"). Maruko's interest under the OPA has been
transferred to Foster Hotels International, a California corporation
("FHI").
1. The Agency hereby certifies as follows:
A. Authoritv. That it has entered into the OPA, a full and
complete copy of which is attached hereto as Exhibit "A,"
and that the OPA has been duly authorized, executed and
delivered by the undersigned and is binding on the
undersigned. The transfer of Maruko's interest in the OPA
to FHI has been duly authorized by the Agency.
B.
Status of OPA. The OPA
has not been modified,
indicated above.
is in full force and effect and
amended or assigned, except as
C. No Default. That insofar as is known to the undersigned,
no party to the OPA is, as of the date hereof, in default
in the performance of the OPA, nor does any condition
exist or has any event occurred which, with the passage of
time, or the giving of notice, or both, would constitute
a default or breach under the OPA.
D.
Rental Assistance.
(as defined in the
'31, (4. \it.
All Redevelopment Assistance payments
OPAl have been paid through (1/\(;,,-<---1-/(
E. Entire Aareement. The OPA constitutes the entire
agreement between the parties thereto with respect to the
subject matter thereof.
JSG3373\75800\00001\OPY-AGC3.CER
RES 96-80
F. parkino Aoreement.
(l) Authoritv and status. The Agency has entered into
that certain Covenant and Agreement Regarding Parking
("Parking Agreement") dated August 4,1987, and
recorded on August 4, 1987 in the Official Records of
the County of San Bernardino, California, as
Instrument No. 87-270245. The Parking Agreement has
been duly authorized, executed and delivered by the
Agency and is binding on the Agency. Maruko' s
interest in the Parking Agreement has been
transferred to FHI. The transfer of Maruko's
interest in the Parking Agreement to FHI is permitted
under the terms of the Parking Agreement and the
Agency has no objection thereto. The Parking
Agreement is in full force and effect and has not
been modified or amended. The Agency has not
assigned its interest in the Parking Agreement.
(2) No Default. As of the date hereof, none of the
parties to the Parking Agreement is in default in the
performance of any of its obligations thereunder, nor
does any condition exist or has any event occurred
which, with the passage of time, or the giving of
notice, or both, would constitute a default or breach
by any party.
(3) Entire Aoreement. The Parking Agreement constitutes
the entire agreement between the parties thereto with
respect to the subject matter thereof.
(4) Lease Aoreement. That certain Lease Agreement
(Parking Facility) between the city as Lessee and the
Redevelopment Agency of the city of San Bernardino,
as Landlord, dated September 4, 1972 has been duly
authorized, executed and delivered by the Agency, is
in full force and effect and has not been modified,
amended or assigned. No party to such Lease
Agreement is in default thereunder, nor does any
condition exist or has any event occurred which, with
the passage of time, or the giving of notice, or
both, would constitute a default or breach by either
party thereto.
G. Easement Aoreement.
(1) Authoritv and Status. The Agency has entered into
that certain Easement Agreement dated August 4, 1987
and recorded on August 4, 1987, in the Official
Records of the County of San Bernardino, California,
as Instrument No. 87-270244 ("Easement Agreement").
The Easement Agreement has been duly authorized,
executed and delivered by the Agency and is binding
JSG3373\75800\00001\OPY-AGC3.CER
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US 'Jb-llU
on the Agency. Maruko' s interest in the Easement
Agreement has been transferred to FHI. The transfer
of the Easement Agreement to FHI is permitted under
the terms of the Easement Agreement and the Agency
has no objection thereto. The Easement Agreement is
in full force and effect and has not been modified or
amended. The Agency has not transferred its interest
in the Easement Agreement. No party to the Easement
Agreement is, as of the date hereof, in default of
the performance of the Easement Agreement, nor does
any condition exist or has any event occurred which,
with the passage of time, or the giving of notice, or
both, would constitute a default or breach under the
Easement Agreement.
H. No Litiqation. To the best of the Agency's knowledge,
there is no pending or threatened litigation or other
proceeding which would affect, or which arises out of the
use and occupancy of, the premises which is the subject of
the OPA, nor does the Agency know of the existence of any
facts which might give rise to any such litigation or
proceeding.
2. The statements and agreements made herein may be relied upon by
FHI and its successors, assignees and sublessees, and any
mortgagee of the aforesaid parties.
Dated:
y/u/?/.
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO
--/ )/1 \
By; / ~---:;nL U~LL.?--\.
Tom Minor, Chairman
APPROVED AS TO FORM AND
LEGAL CONTENT:
C~
Agency Counsel
---------
By:
JSG3373\75800\00001\OPY'AGC3.CER
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RES 96-80
ESTOPPEL CERTIFICATE
(Sublease - city)
Foster Hotels International
c/o Thomas G. Roberts, Esq.
Baker & Hostetler
600 Wilshire Blvd., suite 1200
Los Angeles, California 90017
Re: city of San Bernardino convention Center
Sublease and operating Agreement Dated
August 4, 1987
Ladies and Gentlemen:
This Estoppel Certificate is delivered pursuant to that
certain City of San Bernardino Convention Center Sublease and
Operating Agreement, dated August 4, 1987, between the city of
San Bernardino (the "city"), as sublessor, and Maruko, Inc.
("Maruko"), as sublessee, as amended by Amendment No.1, dated
August 26, 1992 (collectively the "Sublease"). Pursuant to that
certain Assignment and Assumption of Lease dated December 9, 1994,
Maruko assigned its interest under the Sublease to Foster-Khoury
International, Inc., a California corporation, the predecessor to
Foster Hotels International, a California corporation
("Sublessee").
l. The City hereby certifies as follows:
A. Authoritv. That it has entered into the Sublease, and
that the Sublease has been duly authorized, executed and
delivered by the undersigned and is binding on the
undersigned. The transfer of Maruko's interest in the
Sublease to Sublessee has been duly authorized by the
city.
B. Status of Sublease. The Sublease is in full force and
effect and has not been modified, amended or assigned,
except as indicated above.
D.
Rent. All Rent (as defined i,9;' Section 3.1 of the
Sublease) has been paid through "TA U , 197'
No Default. Insofar as is known to the undersigned, the
Sublessee is not, as of the date hereof, in default in
the performance of the Sublease, nor has the Sublessee
committed any uncured breach thereof, nor does any
condition exist or has any event occurred which, with the
passage of time, or the giving of notice, or both, would
constitute a default or breach by the Sublessee.
C.
JSG3373\75800\OOOOl\ESTOPCE3.SUB
RES 96-80
E. Entire Aoreement. The Sublease constitutes the entire
agreement between the parties thereto with respect to the
subject matter thereof.
F. Master Lease. That with regard to that certain city
Hall-Exhibit Hall Ground Lease, dated May 1, 1970,
between the city of San Bernardino, as lessor, and the
San Bernardino civic Center Authority, as lessee, and
that certain City Hall-Exhibit Hall Facilities Sublease
dated May 1, 1970, between the San Bernardino Civic
Center Authority, as sublessor, and the City of San
Bernardino, as sublessee, both as thereafter amended
(collectively the "Master Lease"), the San Bernardino
civic Center Authority has assigned, transferred and
released its interests under the Master Lease in favor of
the city, which now holds all ownership and lease rights
under the Master Lease in the subject property. As a
result of such assignment, the Sublease is currently a
direct lease between the City and Sublessee.
G. Condition of the Leased Premises. The city acknowledges
that the following defects exist on the premises leased
under the Sublease (the "Leased Premises"), the repair of
which are city's responsibility under the Sublease:
damage to the ceiling resulting from leaks in the roof of
the improvements. Except for the foregoing, the City is
not in default under the Sublease, and no event has
occurred and no condition exists which, with the giving
of notice, or the lapse of time, or both, will constitute
a default by the City under the Sublease.
H. parkino Aoreement.
(1) Authoritv and Status. The City has entered into
that certain Covenant and Agreement Regarding
Parking ("Parking Agreement") dated August 4, 1987
and recorded on August 4, 1987 in the Official
Records of the County of San Bernardino,
California, as Instrument No. 87-270245. The
Parking Agreement has been duly authorized,
executed and delivered by the City and is binding
on the City. Maruko' s interest in the Parking
Agreement has been transferred to Sublessee. The
transfer of Maruko's interest in the Parking
Agreement to Sublessee is authorized under the
terms of the Parking Agreement and the city has no
objection thereto. The Parking Agreement is in
full force and effect and has not been modified or
amended. The City has not assigned its interest in
the Parking Agreement.
(2) No Default. As of the date hereof, none of the
parties to the Parking Agreement is in default in
JSG3373\75800\OOOOl \ESTOPCE3. SUB
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RES 96-80
.,
the performance of any of its obligations
thereunder, nor does any condition exist or has any
event occurred which, with the passage of time, or
the giving of notice, or both, would constitute a
default or breach by any party.
(3) Entire Aqreement. The Parking Agreement
constitutes the entire agreement between the
parties thereto with respect to the subject matter
thereof.
(4) Lease Aqreement. That certain Lease Agreement
(Parking Facility) between the City as Lessee and
the Redevelopment Agency of the City of San
Bernardino, as Landlord, dated September 4, 1972,
has been duly authorized, executed and delivered by
the city, is in full force and effect and has not
been modified, amended or assigned. No party to
such Lease Agreement is in default thereunder, nor
does any condition exist or has any event occurred
which, with the passage of time, or the giving of
notice, or both, would constitute a default or
breach by either party thereto.
I. Easement Aqreement.
(1) Authoritv and Status. The City has entered into
that certain Easement Agreement dated August 4,
1987 and recorded on August 4, 1987 in the official
Records of the County of San Bernardino,
California, as Instrument No. 87-270244 ("Easement
Agreement") . Maruko' s interest in the Easement
Agreement has been transferred to Sublessee. The
Easement Agreement has been duly authorized,
executed and delivered by the city and is binding
on the city. The transfer of the Easement
Agreement to Sublessee is authorized under the
terms thereof and the City has no objection
thereto. The Easement Agreement is in full force
and effect and has not been modified or amended.
The City has not transferred its interest in the
Easement Agreement. No party to the Easement
Agreement is, as of the date hereof, in default of
the performance of the Easement Agreement, nor has
any party committed any breach thereof, nor does
any condition exist or has any event occurred
which, with the passage of time, or the giving of
notice, or both, would constitute a default or
breach under the Easement Agreement.
J. Condemnation. To the best of the City's knowledge, there
is no pending or threatened proceeding in eminent domain
which would affect the Leased Premises or any portion
JSG3373\75800\00001\ESTOPCE3.SUB
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RES 96-80
thereof, nor does the City know of the existence of any
facts which might give rise to such action or proceeding.
K. Litiaation. To the best of the City's knowledge, there
is no pending or threatened litigation or other
proceeding which would affect, or which arises out of the
use and occupancy of, the Leased Premises or the garage
facilities adjacent to the Leased Premises. Nor does the
City know of the existence of any facts which might give
rise to any such litigation or proceeding.
2. The statements and agreements made herein may be relied upon
by Sublessee and its successors, assignees and sublessees, and
any mortgagee of the aforesaid Sublease or any interest
therein.
Dated:
t/J,('/h
CITY OF SAN BERNARDINO, CALIFORNIA
By :0~)1~1J(tt/?~~
Tom M1nor, Mayor
APPROVED AS TO FORM AND
LEGAL CONTENT:
By' ~d!/
Ai Y At rney
JSG3373\75800\00001\ESTOPCE3.SUB
-4-
RES 96-80
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CONSENT TO FINANCING
OF HOTEL PROPERTY
[Foster Hotels International]
This Consent to Financing of Hotel Property is made as
of ~, 1996, by the City of San Bernardino, California
(the "City") and by the Redevelopment Agency of the City of San
Bernardino (the "Agency"), with respect to the following facts:
Recitals
A. The City and Maruko, Inc. ("Maruko") entered into
that certain City of San Bernardino Convention Center Sublease
and Operating Agreement (the "Operating Agreement") on or about
August 4, 1987, with regard to certain real property located in
the City, described in Exhibit "A" to the Operation Agreement,
which property consists of convention center facilities and
related improvements and personal property.
B. The City, the Agency and Maruko entered into that
certain Owner Participation and Development Agreement ("OPA") on
or about July 20, 1987, with regard to certain real property
located in the City, described in Exhibit "A" of the OPA, which
property is improved with a hotel (the "Property"). The
Operating Agreement and the OPA were amended by virtue of that
certain Amendment No. 1 to Owner Participation and Development
Agreement and Convention Center Sublease and Operating Agreement
("Amendment No.1"). As used herein, the terms "Operating
Agreement" and "OPA" mean those respective agreements as amended
by Amendment No.1.
C. Maruko filed for protection under the bankruptcy
laws of the United States.
D. Maruko entered into an agreement for the sale of
the Property to Foster-Khoury International, Inc., a California
corporation ("Foster-Khoury"). The City and the Agency consented
to the transfer of title to the Property and the interests of
Maruko under the Operating Agreement and the OPA to Foster-
Khoury.
E. Foster-Khoury has changed its corporate name to
Foster Hotels International, a California corporation ("FHI").
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RES 96-80
t,
1 The stock of FHI is wholly owned by Hamad Bin Mohamed Bin Sulman
Al Khalifa.
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Consent
1. The City and the Agency hereby consent, upon the
condition set forth in Section 3 below, to the following:
a. The conveyance of the Property to FHI.
b. FHI may, without further consent of the City
or the Agency, enter into financing transactions whereby a lien
or liens are created against the Property and/or FHI's rights
under the Operating Agreement, provided that the proceeds of such
financing are used solely for improvements and rehabilitation of
the Property and/or the Leased Premises, including related
personal property, and for offsetting operating deficits of the
Property and/or the Leased Premises, and further provided that
the terms and conditions of the financing are reasonable and
customary.
2. No further transfers or assignments of the
Property, the rights under the Operating Agreement or the OPA
shall occur without compliance with the applicable provisions of
the Operating Agreement and the OPA.
3. This consent is expressly contingent upon
execution by FHI of the Assumption Agreement approved by the City
and the Agency, and delivery thereof to the City and the Agency.
CITY OF SAN BERNARDINO, CALIFORNIA
BY~'l #)It//~~.
Tom Minor
Mayor
APPROVED AS TO FORM
AND LEGAL CONTENT:
BY:.~~
g,..~ C~ty At ney
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RES 96-80
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APPROVED AS TO FORM
AND LEGAL CONTENT:
Sabo & Green
By: '
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:~~J/UV~
{ Tom t-linor
Chairman
Counsel
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RES 96-80
ESTOPPEL CERTIFICATE
(OPA - city)
Foster Hotels International
c/o Thomas G. Roberts, Esq.
Baker & Hostetler
600 wilshire Boulevard, 10th Floor
Los Angeles, California 90017
Re: Owner Participation and Development
Agreement Dated July 20, 1987
Ladies and Gentlemen:
This Estoppel Certificate is delivered pursuant to that certain
Owner Participation and Development Agreement, dated July 20, 1987,
between the city of San Bernardino (the "City"), the Redevelopment
Agency of the city of San Bernardino (the "Agency"), and Maruko,
Inc. ("Maruko"), as amended by Amendment No.1, dated August 26,
1992 (collectively the "OPA"). Maruko's interest under the OPA has
been transferred to Foster Hotels International, a California
corporation ("FHI").
1. The City hereby certifies as follows:
A. Authori tv. That it has entered into the OPA and that the
OPA has been duly authorized, executed and delivered by
the undersigned and is binding on the undersigned. The
transfer of Maruko's interest in the OPA to FHI has been
duly authorized by the city.
B. Status of OPA. The OPA is in full force and effect and
has not been modified, amended or assigned, except as
indicated above.
C. No Default. That insofar as is known to the undersigned,
no party to the OPA is, as of the date hereof, in default
in the performance of the OPA, nor does any condition
exist or has any event occurred which, with the passage
of time, or the giving of notice, or both, would
constitute a default or breach under the OPA.
D. Entire Aqreement. The OPA constitutes the entire
agreement between the parties thereto with respect to the
subject matter thereof.
E. Li tiqation. To the best of the Agency I s knowledge, there
is no pending or threatened litigation or other
proceeding which would affect, or which arises out of the
JSG3373\75800\OOOOl\ESTOPCE3.OPA
RES 96-80
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use and occupancy of, the premises which is the subject
of the OPA, nor does the Agency know of the existence of
any facts which might give rise to any such litigation or
proceeding.
2. The statements and
by FHI and its
mortgagees.
Dated: tl~ 2t..{ (f'1t
J
agreements made herein may be relied upon
successors, assignees, sublessees, and
CITY OF SAN BERNARDINO, CALIFORNIA
By~~"('jt(ftL&/1
/ , 'Mayor
APPROVED AS TO FORM AND
LEGAL CONTENT:
By: ./L~H' W2_~. ~
/6~~/:X~(
JSG3373\75800\00001\ESTOPCE3.0PA
-2-
RES !96::ID>-l'IAR-SB 14'51 PROM. ERNBT+YOUNG-BAHRAIN ID. 873+53541115
.:If..... LJ'.~ ""~ u........... I u.... wu '''V'''__. ,-"-. - ---.----
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~JI(."""I: 'tlM :atz'I~
T . AaSUlllPtiOD Agreeaaent ("I'qreement") is entered into
.. ot' .' 7 , 199&, by and between the city of San Bernardino.
Cdito a' the "City. I , the :aeda"eloplUDt Agency of tM City. of
San Se=arcl1no (the .~.ncY" I and roster Hotels International, ..
California corporation (.JRI.).
."l!t~.ltl
A. The City, the ~.ncy and Marum, Inc. ("Haruko")
entered into that certain 0Itft\8r Participation iU1d Development
AGreement ("OllA") on or lIbout July 20, 1987, with l'84)iIlN to certain
real property located in the City (doaodbed in Exhibit .A" of the
orA), which property 1. blproved with a hotel (the "Property.l.
B. The City end Marulco entered into that certain City
of SAn Bernardino Convention center S\lblea.e and Operatibg
Agrooaent (the "apeutill9 ~re..-nt") dated .a of August: 4, 1997,
wherebY the city, a. .abl...or, II\1bl....d the Leased Pr_ise.
(describe<1 in Exhibit "A" of the Operatinq A4Jreeaent), qenerallY
COD81atinq of convention center facilities acljacent to the
Property, to Marulco a8 .ubl...... The OPA and the Operating
1I9J:eement _re 0--"''''' by "b't.. af thllt. certain AlIoncJIIt"l\t 110. 1 to
OWner participation and DeveloV,..,"t AQre8ent and COnvent1on Center
Sublease and. Operating A9~eelllent. A5 use<1 herein, the terlU
"operating Aqreemout" and "'OPA" ..an those respective agX'eeJDenta as
a:aeDcled by ~t 110. 1.
C. The CUy, as ower of the Leased Pr8llliaes, had
previously leaaed the ._ to the San Bernardino C1vic center
Authority (the "Authority.) as 1..... by way ot a lease recorded
Jl;lne .., 1970. 'lhe Authority, in turn, aubleased the Lea.eel
Pruli..UJ back to tile C1.ty by virtue af . .ubleaae recorded June ..,
1910. Si-nce the date of tbe operatin9 Aqreement, the Al1thorit:y has
..siped, trlUl8ferrecS or I.'el.ued. its intere.ts in the Leaaed
prelllhes in favor of the City, which now holda all ownership and
luse r1CJhbl in the Leased Prem...., save for the ri9ht8 or1qlnally
beld by Karuko under the Operat1nq A9re8llllmt.
D. Maruko acId the Property JU1d transferred Karuko'.
rights under the OPA and the Operatin'll Aqreell.ent to Foster-ICboury
:tnternational, lnc., a California corporation ("'Foster-Khoury"l.
E. The sh.rea of Foster-!lhoury were previously
transferred to Haaad Bin Moh.-od Bin Sulman Al Khalif..
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I' . }'oater-JCboury has cbanqed it. corporate D8lll8 to IHI.
C. 1'111 intend8 to entu- into financing- transactions,
lIecuracl by . lieD OJ: l1ena agaiIWt the ftOperty end/or rBI' II rights
\JDcIer the Operating AQr.....t, tor the purposes of obta1ninq fuJlda
to uk. iDlprov-.nte to Pel rehabilitate the Property and/or the
Lea.ed Pr_188s and related perllODal property, and for off..tt1Dg
operatin., deficits ot the PI:Oio-rty IDIJ/or the Le...lIC!' ft4llll1... (tlw
-l'iDmlcin9"') . nu aeelea the acqul..clIIlC;:. of the City and the
Aqency to the Ffft.ftciDg.
PROVIDIlD.
NOM, nERBroaE, THIl PMTIJ:S DRETO AGREF. M HERZIHAl'rER
~.~ .ftd r~~~~lnn.
1. 'l'he Recital. .tated above are true and correct and
1ncoxpolC'ated herein by retermace.
2. nrI h.rllby ....-. all of X.ruko'lI obliqat;\.OAll,
w.lthout exception, and acquires allot' 1Iarukg'.. righte, under the
pravhloDa of the OPA.
3. JBI herllby ....... all of Karuko's obligation.,
wlU1cmt excepUon, and ac:qq11C'.. all of llaz:ulco's r!CJhte, under the
prov1aions of the OperatinCJ ~r""llt.
4 . By the ..RllPtion. .et forth in Section. 2 and 3
above, rill Agne. to perf On! each and every obllqaticm at Marulco
under the OPA udJor the OperatiDg Agreement, Includ1nCJ
obll\1aUona, if any, previously due but UIlPezofo:allCld.
!5. I1JI agne. tbat DO turthc u8D8fer Of any r1qht 1D.
or title to the Property or of right. under tlw OPA or the
Operating Aqr_t uy occur except in COIIpl1ance with tbe
appllcable pro,,1a1cma of the OPA ll:AdJor the OpuaUnlJ A4Jre-.nt.
No transfer or Ua1lJ111181lt of any of JBI'. right. ad obli9AtioDll
IUlder t.be OPA may be IUde unless it. rights lUld obllqaUona UDdeIC'
tM OperaUnq Jlqreeaent are litew1l1e trlllUlferred or a.signed to the
.... tranatare., and vice vera..
.
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RES9ti=80--
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6. i'he City aDd the ~")' alJrtlO tbat I1II NY, without
!ul'tMr action by the City or the Agngy, ente~ ato the l'in.n("tu'i.
lnc:lw:11n9 the grant of a lien or 11_ an the Propertyand/or on
!'HI's rights UDder the Oper.taV A4Jr.-.at .. security tlwrefor,
JmWided that the PEOCeeda o~ tile ftuDc1nv an UII_ solely ~or the
Pupo... of b1p~ov..ant. to UId rehabilitation of the Property
UlllJ/or the La_ad. l'~s.s and nIabld pel'eonal property, ancl for
offs.ttinq operatinq deficits of tbe P~rty and/or the Leased
Pr8Ii... .
7. rw.. AtrelllWlt uy 1M eqeutecl in counteq)Uts.
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IN WI1'D88 IIIIDF.OI', the partl_ hezoeto have ..outed thi.
A9npent a8 of tJ. date firet above written.
CITY or SAM BDIUUWUfO, CALIFORNIA
DDOVlCD AS TO !'OJII
AIm LEcat COIrraIT:
~/~!
8YI /~~~ ML'/'1..
( !'ClII r
Mayor .
.--
~/
l.ty :mey
MDSVZLOPJmII'1' JlGDCY or TBI
CIn or 11M BDtWWIHO
APPItavKD AS '1'0 PO.
J\IIJ) Lli:G1d. COIn'EIft:
8a!lo , Green
By. ~.~ -
fOS'rD II01'BLS Ihl:IiNIA'tIOlIAL,
. california corpontioD
~:SA13AH ~~lAk 'AL-;U.MAHI
Title: Sec.~C TAl<.. Y
~}il
.YI I~~~~
CU1ru!:1.
IIIO\OOOl\DOC\3101
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973+535405
P,07
RES 96-80
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EXHIBIT "c"
ASSUMPTION AGREEMENT
This Assumption Agreement ("Agreement") is entered into
as of 1996, by and between the City of San
Bernardino, California (the "City"), the Redevelopment Agency of
the City of San Bernardino (the "Agency") and Foster Hotels
International, a California corporation ("FHI").
Recitals
A. The Ci t y, the Agency and Maruko, Inc. (" Maruko" )
entered into that certain Owner Participation and Development
Agreement ("OPA") on or about July 20, 1987, with regard to
certain real property located in the City (described in
Exhibit "A" of the OPA) , which property is improved with a hotel
(the "Property").
B. The City and Maruko entered into that certain City
of San Bernardino Convention Center Sublease and Operating
Agreement (the "Operating Agreement") dated as of August 4, 1987,
whereby the City, as sublessor, subleased the Leased Premises
(described in Exhibit "A" of the Operating Agreement), generally
consisting of convention center facilities adjacent to the
Property, to Maruko as sublessee. The OPA and the Operating
Agreement were amended by virtue of that certain Amendment No. 1
to Owner Participation and Development Agreement and Convention
Center Sublease and Operating Agreement. As used herein, the
terms "Operating Agreement" and "OPA" mean those respective
agreements as amended by Amendment No.1.
C. The City, as owner of the Leased Premises, had
previously leased the same to the San Bernardino Civic Center
Authority (the "Authority") as lessee by way of a lease recorded
June 4, 1970. The Authority, in turn, subleased the Leased
Premises back to the City by virtue of a sublease recorded
June 4, 1970. Since the date of the Operating Agreement, the
Authority has assigned, transferred or released its interests in
the Leased Premises in favor of the City, which now holds all
ownership and lease rights in the Leased Premises, save for the
rights originally held by Maruko under the Operating Agreement.
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D.
consent of the
Maruko sold the Property and transferred, with the
City and the Agency, Maruko's rights under the OPA
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lllil; ~b-llU
1 and the Operating Agreement to Foster-Khoury International, Inc.,
a California corporation ("Foster-Khoury").
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E. The shares
transferred to Hamad Bin
("Shareholder") .
of Foster-Khoury were
Mohamed Bin SuI man
previously
Al Khalifa
F.
Foster-Khoury has changed its corporate name to
FHI.
G. FHI intends to enter into financing transactions,
secured by a lien or liens against the Property and/or FHI's
rights under the Operating Agreement, for the purposes of
obtaining funds to make improvements to and rehabilitate the
Property and/or the Leased Premises and related personal
property, and for offsetting operating deficits of the Property
and/or the Leased Premises (the "Financing"). FHI seeks the
acquiescence of the City and the Agency to the Financing.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS HEREINAFTER
PROVIDED.
Terms and Conditions
1. The Recitals stated above are true and correct and
17 incorporated herein by reference.
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2. FHI hereby assumes all of Maruko's obligations,
without exception, and acquires all of Maruko's rights, under the
provisions of the OPA.
3. FHI hereby assumes all of Maruko's obligations,
without exception, and acquires all of Maruko's rights, under the
provisions of the Operating Agreement.
4. By the assumptions set forth in Sections 2 and 3
above, FHI agrees to perform each and every obligation of Maruko
under the OPA and/or the Operating Agreement, including
obligations, if any, previously due but unperformed.
5. FHI agrees that no further transfer of any right
in or title to the Property or of rights under the OPA or the
Operating Agreement may occur except in compliance with the
applicable provisions of the OPA and/or the Operating Agreement.
C - 2
RES 96-80
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No transfer or assignment of any of FHI's rights and obligations
under the OPA may be made unless its rights and obligations under
the Operating Agreement are likewise transferred or assigned to
the same transferee, and vice versa.
6. The City and the Agency agree that FHI may,
without further action by the City or the Agency, enter into the
Financing, including the grant of a lien or liens on the Property
and/or on FHI's rights under the Operating Agreement as security
therefor, provided that the proceeds of the Financing are used
solely for the purposes of improvements to and rehabilitation of
the Property and/or the Leased Premises and related personal
property, and for offsetting operating deficits of the Property
and/or the Leased Premises.
7. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
CITY OF SAN BERNARDINO, CALIFORNIA
"""--\/1 \
BF/ OV~1 rU{,U0
Tom Mlnor
Mayor
APPROVED AS TO FORM
AND LEGAL CONTENT:
By: kJ,.,,~~
t;Jii:ity A orney
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
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...____--.... . .1 .
By: !c~ n' Ii J! (~"--
I ,_-0,...;
Tom Minor
Chairman
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APPROVED AS TO FORM
AND LEGAL CONTENT:
Sabo & Green
v- -"/ 9~L
,_/,;o1~"O - "-Q
( ~
. \
By:
C - 3
RES 96-80
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EXHIBIT "B"
CONSENT TO FINANCING
OF HOTEL PROPERTY
[Foster Hotels International]
This Consent to Financing of Hotel Property is made as
of 1996, by the City of San Bernardino, California
(the "City") and by the Redevelopment Agency of the City of San
Bernardino (the "Agency"), with respect to the following facts:
Recitals
A. The City and Maruko, Inc. ("Maruko") entered into
that certain City of San Bernardino Convention Center Sublease
and Operating Agreement (the "Operating Agreement") on or about
August 4, 1987, with regard to certain real property located in
the City, described in Exhibit "A" to the Operation Agreement,
which property consists of convention center facilities and
related improvements and personal property.
B. The City, the Agency and Maruko entered into that
certain Owner Participation and Development Agreement ("OPA") on
or about July 20, 1987, with regard to certain real property
located in the City, described in Exhibit "A" of the OPA, which
property is improved with a hotel (the "Property"). The
Operating Agreement and the OPA were amended by virtue of that
certain Amendment No. 1 to Owner Participation and Development
Agreement and Convention Center Sublease and Operating Agreement
("Amendment No.1") As used herein, the terms "Operating
Agreement" and "OPA" mean those respective agreements as amended
by Amendment No.1.
C. Maruko filed for protection under the bankruptcy
laws of the United States.
into an agreement for the sale of
International, Inc., a California
The City and the Agency consented
the Property and the interests of
Agreement and the OPA to Foster-
D. Maruko entered
the Property to Foster-Khoury
corporation ("Foster-Khoury")
to the transfer of title to
Maruko under the Operating
Khoury.
E. Foster-Khoury has changed its corporate name to
Foster Hotels International, a California corporation ("FHI").
B-1
RES 96-80
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The stock of FHI is wholly owned by Hamad Bin Mohamed Bin SuI man
Al Khalifa.
Consent
1. The City and the Agency hereby consent, upon the
5 condition set forth in Section 3 below, to the following:
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a.
The conveyance of the Property to FHI.
b. FHI may, without further consent of the City
or the Agency, enter into financing transactions whereby a lien
or liens are created against the Property and/or FHI's rights
under the Operating Agreement, provided that the proceeds of such
financing are used solely for improvements and rehabilitation of
the Property and/or the Leased Premises, including related
personal property, and for offsetting operating deficits of the
Property and/or the Leased Premises, and further provided that
the terms and conditions of the financing are reasonable and
customary.
2. No further transfers or assignments of the
Property, the rights under the Operating Agreement or the OPA
shall occur without compliance with the applicable provisions of
the Operating Agreement and the OPA.
3. This consent is expressly contingent upon
execution by FHI of the Assumption Agreement approved by the City
and the Agency, and delivery thereof to the City and the Agency.
CITY OF SAN BERNARDINO, CALIFORNIA
.--/ , l (! ( A
By: -L (~;;'I' I ,[ail ~
Tom Minor
Mayor
APPROVED AS TO FORM
AND LEGAL CONTENT:
BY:~~"'.)
-':.4ti:City orney
B-2
RES 96-80
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REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERN&~.DINO
----.-_-\ i, \
By: ,/ r/7 J .." t..Lu.,,~
Tom Mino~.
Chairman
APPROVED AS TO FORM
AND LEGAL CONTENT:
Saba & Green
By:
-. /.,/
ecial Counsel
B-3