HomeMy WebLinkAbout1996-350
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RESOLUTION NO. 96-350
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO APPROVING A CERTAIN DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO AND MDA - SAN
BERNARDINO ASSOCIATES, L.L.C. PERTAINING TO THE
DEVELOPMENT OF A MULTI-SCREEN CINEMA COMPLEX AND
RELATED COMMERCIAL FACILITIES
WHEREAS, the Community Development Commission of the
City of San Bernardino (the "Commission") on behalf of the
Redevelopment
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of
City
of San Bernardino (the
Agency
the
"Agency"), is a redevelopment agency,
a public body, corporate
14 and politic of the State of California, organized and existing
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pursuant to the Community Redevelopment Law (Part 1 of Division
24) commencing with Section 33000 of the Health and Safety Code
of the State of California (the "Act)"; and
WHEREAS, the Redevelopment Plan for the Central City
21 North Redevelopment Project (the "Redevelopment Plan") was
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previously approved and adopted by the Mayor and Common Council
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of the City of San Bernardino (the "Council") by duly authorized
Ordinance of the Council; and
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4 both within and outside of the redevelopment project area which
5 is subj ect to the Redevelopment Plan (the "proj ect Area") by
6 owners thereof or by parties seeking to acquire real property
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WHEREAS, the Redevelopment Plan provides for the
redevelopment of real property pursuant to the Redevelopment plan
from the Agency; and
WHEREAS;
Section 33391 of the Act provides that a
11 redevelopment agency may acquire any interest in real or personal
12 property within a redevelopment project area or for the purposes
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of redevelopment and Section 33430 of the Act provides that a
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Associates, L.L.C., a Limited Liability Company (the "Developer")
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24 as Exhibit "A" and incorporated herein by reference, pursuant to
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redevelopment agency may dispose of any interest in real or
personal property within a redevelopment project area or for the
purposes of redevelopment; and
WHEREAS,
the
and
Bernardino
Agency
MDA
San
desire to enter into a certain Disposition and Development
Agreement (the "Agreement"), a copy of which is attached hereto
which, among other matters, the Developer would acquire from the
Agency certain real property (the "Property") which is more fully
The Property is located in the
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the redevelopment of the Property, as described in the Agreement,
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4 including construction thereon by the Developer of a multi-screen
5 cinema complex and related commercial facilities (the "Project");
6 and
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10 available for public inspection a certain Summary Report (the
11 "Summary") concerning the proposed Agreement, as required by
12 Health and Safety Code Section 33433, a copy of which is on file
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17 conducted a public hearing in accordance with the requirements of
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24 public hearing in accordance with the requirements of Health and
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28 proposed Agreement; and
Project Area.
The transaction would be for purposes of causing
WHEREAS,
the
Staff
prepared
and
made
Agency
has
with the Agency and is incorporated herein by reference; and
WHEREAS, the Agency and the City have duly noticed and
Health and Safety Code Section 33433 concerning the proposed
disposition of the Property by the Agency to the Developer
pursuant to the proposed Agreement; and
WHEREAS, the Agency has duly noticed and conducted a
Safety Code Section 33431 concerning the proposed disposition of
the Property by the Agency to the Developer pursuant to the
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the City Council, it is reasonable and appropriate for the City
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4 Council to approve the proposed Agreement.
WHEREAS, based upon evidence and testimony submitted to
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NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER
AS FOLLOWS:
Section 1.
The Council finds and determines that
the development of the Property as described in the proposed
Agreement is within the scope, terms and provisions of the
Redevelopment Plan, is consistent with the Agency's previously
approved Implementation Plan and will help eliminate blighting
conditions in the Project Area by increasing the assessed
valuation in the Project Area and creating a significant number
of employment opportunities.
Section 2. The Council has held a public hearing on
the disposition of the Property in accordance with Health and
Safety Code Sections 33431 and 33433 and hereby accepts and
approves the Summary as prepared by Agency Staff.
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Section 3.
eliminate blight, to create employment opportunities
increase the value of real property in the Project Area.
Section 4.
The Council hereby further finds and
determines that the consideration to be received by the Agency
through the sale of the Property is equal to the fair market
value of the Property.
Section 5.
The Council hereby approves the proposed
Agreement and the conveyance of the Property to the Developer.
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1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
2 BERNARDINO APPROVING A CERTAIN DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
3 SAN BERNARDINO AND MDA - SAN BERNARDINO ASSOCIATES, L. L. c.
4 PERTAINING TO THE DEVELOPMENT OF A MULTI-SCREEN CINEMA COMPLEX
AND RELATED COMNERCIAL FACILITIES
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Section 6.
This Resolution shall take effect upon
the date of its adoption.
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I HEREBY CERTIFY that the foregoing Resolution was duly
9 adopted
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by
the
Mayor
and
Common
Council
of
the
City of
San Bernardino at a
joint regular
meeting
thereof, held on the
4th
day of
November
1996, by the following vote, to wit:
14 Council: AYES
NEGRETE x
15 CURLIN x
16 ARIAS x
OBERHELMAN x
17 DEVLIN x
ANDERSON
18 MILLER x
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NAYS.
ABSTAIN
ABSENT
x
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22 day of
~I/~
Ci Clerk
The foregoing resolution is hereby approved this 1/!
November , 1996.
}In,.~u /,) /J/./('/;~
Norine Miller, Mayor Pro Tem
San Bernardino
content:
ell
J-1/L
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24 Approved as to form and legal
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By:
City Attorney
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RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
201 North "En Street
Third Floor
San Bernardino, CA 92401
(Space above for Recorder's Use)
DISPOSITION AND DEVELOPMENT AGREEMENT
EXHIBIT A
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DISPOSITION AND DEVELOPMENT AGREE~NT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
and
MDA-SAN BERNARDINO ASSOCIATES, L.L.C.,
a Delaware Limited Liability Company
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ARTICLE I
SUBJECT OF AGREEMENT
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
TABLE OF CONTENTS
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Purposes of Agreement
The Project Area. . .
Parties to the Agreement.
Prohibition Against Change in Ownership,
Management and Control of Developer, for
Assignment of Agreement. ........
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ARTICLE II
DISPOSITION OF PROPERTY . . . . . . . . . . . . 3
Section 2.01. Purchase of Property. . . . 3
Section 2.02. Developer's Consideration. 4
Section 2.03. Agency Assistance. .., 4
Section 2.04. Developer's Obligations. 6
Section 2.05. Agency Participation. . 7
Section 2.06. Escrow. . . . . . . 9
Section 2.07. Conveyance of Title and Delivery of
Possession. . . . . 11
Form of Deed. . . . . 12
Condition of Title . . . . 12
Conditions for Close of Escrow. 12
Time and Place for Delivery of Documents to
Escrow. . . . . . . . . . .. .,. 18
Recordation of the Grant Deed and Other
Documents. ...... 18
Title Insurance. ..... 19
Taxes and Assessments. 19
Zoning of the Property and
the Retail Parcel. ... 19
Condition of the Land. 19
Submission of Evidence of Financing
Commitments. . . . . . . 20
Representations And Warranties
of the Agency. . . . . . . 21
Representations and Warranties of the
Developer. . . . . . . . 23
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Section 2.12.
Section 2.13.
Section 2.14.
Section 2.15.
Section 2.16.
Section 2.17 .
Section 2.18.
Section 2.19.
ARTICLE III
DEVELOPMENT OF THE
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05.
Section 3.06.
LAND . . . . . . . . . . . . .
Development by Developer. . .
Responsibilities of the Agency.
Taxes, Assessments, Encumbrances
and Liens. ...........
In Lieu Tax payments/Tax Appeals.
Prohibition Against Transfer.
Right of First Offer. .....
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Section 3.07.
Section 3.08.
Section 3.09.
ARTICLE IV
USE OF THE LAND . .
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
ARTICLE V
DEFAULTS, REMEDIES
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.08.
Section 5.09.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
Section 6.10.
Section 6.11.
Section 6.12.
Section 6.13 .
Security Financing; Right of Holders. . .
Right of the Agency to Satisfy Other Liens
the Land after Conveyance of Title.
Certificate of Completion. .......
Uses. . .
Reserved.
Obligation to Refrain from
Discrimination. . . .
Form of Nondiscrimination and
Nonsegregation Clauses. . . .
Effect and Duration of Covenants.
AND TERNINATION
Defaults - General.
Legal Actions.
Rights and Remedies are Cumulative.
Damages. ..... ......
Specific Performance. . . . . . . .
Rights and Remedies of Termination.
Right to Reenter, Repossess,
Terminate and Revest. . . . . . . .
Limitation on Rights and Remedies After
Issuance of Certificate of Completion.
No Cross-Default . . . . . . . .
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Notices, Demands and Communications
Between the Parties. .......
Conflict of Interest. . . . . . . .
Warranty Against Payment of Consideration
Agreement. . . . . . . . . .
Nonliability of Agency Officials and
Employees. . . . . . . . . .
Enforced Delay: Extension of Time of
Performance. . . . . .
Inspection of Books and Records.
Approvals. .......
Real Estate Commissions.
Indemni fication. ....
Release of Developer from Liability.
Attorneys' Fees.
Dispute Resolution.
Effect. . . . . . .
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ARTICLE VII
ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 7.01. Entire Agreement. .
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ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION 64
Section 8.01. Execution and Recordation. ...... 64
EXHIBIT "A"
EXHIBIT "A-I"
EXHIBIT "A-2"
EXHIBIT "B"
EXHIBIT "C"
EXHIBIT "D"
EXHIBIT "E"
EXHIBIT "F"
EXHIBIT "G"
EXHIBIT "H"
EXHIBIT "I"
EXHIBIT "J"
EXHIBIT "K"
EXHIBIT "L"
- SITE PLAN
- AGENCY PARCELS
- RENAINDER PARCELS
- SCOPE OF DEVELOPMENT
- AGENCY NOTE (HUD Loan)
- DEED OF TRUST (HUD Loan)
- PROMISSORY NOTE (Agency Contribution)
- THIRD DEED OF TRUST (Agency Contribution)
- GRANT DEED
- SCHEDULE OF PERFORMANCE
- CERTIFICATE OF COMPLETION
- PROJECT BUDGET
- LEGAL DESCRIPTION
- DEED OF TRUST (RETAIL PARCEL)
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Glossarv of primarv Defined Terms
Defined Term
Pace
Additional Agency contribution
Additional Developer Contribution
Agency . . . . . .
Agency Contribution
Agency Loan . .
Agency Note . .
Agency Parcels
Agency Priority Return
Agreement . . . . . . .
CCR' 5 . . . . . . . . .
central city Project Area
Certificate of Completion
City . . . . .
Close of Escrow . .
Closing Date
Common Area Parcel
Community Redevelopment Law
Deed of Trust
Deposit . . . . .
Developer . . . .
Developer Advance
Developer contribution
Developer Priority Return
Escrow Agent . . . .
Final Approval
Hazardous Substances
Intended Use
Interest Sale Price
Land . . . .
Minor Field Changes
Mortgage . . . . .
Net Distributable Cash
Notice of Revesting of Title
Parking Agreement . . . .
Permanent Financing . . .
Preliminary Title Report
Pretransfer Costs
Prevailing Wages
Project. . . .
Project Account
Project Budget
Property
Punch-List
Purchase Notice
Remainder Parcels
Retail Parcel . .
Right of First Offer
Sale Notice .
Second Agency Note
State . . . . . . .
Theater Parcel
Third Deed of Trust
Title company . . .
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SBEO\0001\DDA\METRO.8
10\29\96 400 law
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and between the
Redevelopment Agency of the City of San Bernardino (the "Agency"),
and MDA-San Bernardino Associates, L.L.C., a Delaware limited
liability company (the "Developer"). The Agency and the Developer
agree as follows:
ARTICLE I
SUBJECT OF AGREEMENT
Section 1.01. Purooses of Aareement.
The purpose of this Disposition and Development Agreement
(the "Agreement") is to effectuate redevelopment within the
boundaries of the City of San Bernardino (the "City") by providing
for the purchase and the redevelopment by the Developer of certain
real property located wi thin the duly established Central City
Redevelopment Project Area of the City (the "Central City Project
Area"), and which property is shown in the Site Plan attached
hereto as Exhibit "A" and incorporated herein by reference (the
"Land"). The purchase and the redevelopment of the Land by the
Developer pursuant to this Agreement, and the fulfillment generally
of the Agreement, are in the vital and best interests of the City,
the Agency, and the health, safety, morals, and welfare of the
City's residents, and are in accord with the public purposes and
provisions of applicable federal, state and local laws and
requirements.
Section 1.02. The Prolect Area.
The Central City Project Area was approved and adopted by
the City Council of the City of San Bernardino by duly adopted
ordinance in accordance with the provisions of the Community
Redevelopment Law of the State of California (the "Community
Redevelopment Law"). This Agreement shall be subj ect to the
provisions of the Community Redevelopment Law.
Section 1.03. Parties to the Aareement.
a. The Agency is a public body, corporate and politic,
exercising governmental functions and powers, and organized
and existing under Chapter 2 of the Community Redevelopment
Law, Health and Safety Code Section 33000, tl~. The
principal office of the Agency is located at 201 N. "E"
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Street, San Bernardino, California 92401-1507. As used in
this Agreement, the term "Agency" shall be deemed to include
the Agency and any assignee andlor successor to the Agency or
to its rights, powers and responsibilities under this
Agreement.
b. The Developer is NDA-San Bernardino Associates,
L.L.C., a Delaware limited liability company. The principal
office of the Developer for purposes of this Agreement is
located at 300 Continental Boulevard, Suite 360, EI Segundo,
CA 90245 (Telephone Number: (310) 416-1100), and for purposes
of Section 6.01 hereof, any and all notices, demands or
communications shall be sent to the Developer addressed to the
attention of Jason Kamm. Prior to the incurrence of any
obligations on behalf of the Agency under this Agreement and,
in addition, on or before ten (10) calendar days prior to the
close of escrow, as set forth hereafter, the Developer shall
provide to the Agency satisfactory evidence of the legal
formation and existence of the Developer and the good standing
of the Developer with the State of California (the "state") to
transact business within the State, to hold title to the Land
and to develop the Project, as hereinafter defined.
Section 1.04. Prohibition Against ChanGe in Ownershio.
ManaGement and Control of Develooer. for
AssiGnment of Agreement.
a. The qualifications and identities of the persons and
entities comprising the Developer are of particular concern to
the Agency. It is because of these qualifications and
identities of the Developer that the Agency has entered into
this Agreement with the Developer. No voluntary or
involuntary successor in interest of the Developer shall
acquire any rights or powers under this Agreement, except as
expressly set forth herein.
b. Except as otherwise provided in this Agreement, the
Developer shall not assign all or any part of this Agreement
prior to the issuance of a Certificate of Completion
applicable to all portions of the Land without the prior
written approval of the Agency, which approval shall not be
unreasonably withheld.
c. The Developer shall promptly notify the Agency in
writing of any and all changes whatsoever in the identity of
the parties either comprising or in control of the Developer,
as well as any and all changes in the interest or the degree
of control of the Developer by any such party, of which
information the Developer or any of its members, officers or
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shareholders has been notified or may otherwise have knowledge
or information. This Agreement may be terminated by the
Agency and the Agency may declare Developer in default if
there is any significant or material change, whether voluntary
or involuntary, in membership, ownership, management or
control of the Developer (other than such changes occasioned
by the death or incapacity of any individual) that has not
been approved by the Agency at the time of such change, prior
to issuance of a Certificate of Completion for the Property as
hereinafter provided; provided, however, that: (i) the Agency
shall first notify the Developer in writing of its intention
to terminate this Agreement pursuant hereto, and (ii) the
Developer shall have twenty (20) calendar days following the
date of receipt of such written notice to commence and
thereafter diligently and continuously proceed with the cure
of the default of the Developer under this Section 1.04.c.,
and (iii) the Developer shall submit evidence of the
satisfactory completion of such cure to the Agency within
thirty (30) calendar days following the receipt of such
written notice in a form and substance deemed satisfactory to
the Agency, in its reasonable discretion. Notwithstanding any
language herein to the contrary, the Developer may assign its
rights and obligations under this Agreement to an entity which
is controlled and managed by the Developer or by the
individuals who are the principals of the Developer as of the
date of this Agreement, Rex Swanson and Jason Kamm, subject to
the written consent of the Agency which may not be
unreasonably withheld.
ARTICLE II
DISPOSITION OF PROPERTY
Section 2.01. Purchase of Prooertv.
The Land which is the subj ect of this Agreement is
comprised of several different parcels of land all as more fully
shown on Exhibit "AH. The Agency currently owns those certain
parcelS shown on Exhibit "A-I" (the "Agency ParcelsH). With
respect to the remaining parcels as shown on Exhibit "A-2" (the
"Remainder parcelsH), it is the intent of the Parties hereto that
the Agency shall use best efforts to acquire said Remainder Parcels
directly from the current owners thereof by negotiated purchase.
The costs of acquiring the Remainder Parcels will be the sole
responsibility of the Agency. Nothing contained in this Agreement
shall require the Agency to pay a purchase price for any or all of
the Remainder Parcels which it determines to exceed the fair market
value thereof, or to undertake any action of condemnation. Unless
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otherwise agreed to by the parties hereto, and except as provided
in Section 3.0l.bb. hereof, it is the intent of the parties that
none of the development obligations of either the Developer or the
Agency as set forth herein shall arise until such time as fee title
to those portions of the Land as is necessary for the Project (the
"Property") is transferred to the Developer. Upon the assembly of
all Remainder Parcels comprising the Land, the Developer shall
purchase, and the Agency shall sell the Property in accordance with
the terms of this Agreement and the attachments hereto. If all of
the Remainder Parcels cannot be assembled within 20 months of the
date of this Agreement, and subject to Section 2.07.c., the
respective obligations of the parties hereto shall be terminated,
unless the parties agree otherwise in writing. Notwithstanding any
language herein to the contrary, the parties acknowledge that the
Project, as defined below, may require the transfer of less than
all of the Land eventually acquired by the Agency. The parties
hereto shall agree upon the extent of the Land necessary for the
proj ect and, as used herein, the term "Property" shall, except
where the context indicates otherwise, mean the portion of the Land
which the parties agree is necessary for the Project. In addition,
the parties contemplate that the Retail Parcel, as defined
hereinbelow, will be conveyed, on certain conditions, to the
Developer. At such time as the Property to be conveyed to the
Developer is finally identified, and a legal description thereof is
available, said legal description will be signed by the Agency and
the Developer confirming their respective acceptance thereof, and
will be attached hereto as Exhibit "K". This Agreement will then
be recorded.
Section 2.02. Developer's Consideration.
The covenants of the Developer set forth in this
Agreement will be the consideration for the transfer of the
Property and/or the Retail Parcel, as applicable, by the Agency,
and no cash purchase price shall be paid by the Developer.
Section 2.03. AGencv Assistance.
Upon completion of the transfer to the Developer of all
of the Property, the Agency will provide certain assistance with
respect to the development of the Property in order to assist in
the construction thereon of a multi screen cinema complex and
related common areas (the "Project") all as more fully described in
the Scope of Development as attached hereto as Exhibit "B" and
incorporated herein by this reference. The Project shall consist
of the Theater Parcel and the Common Area Parcel, as defined in
Section 3.01, but shall exclude the Retail Parcel.
a. The Agency will provide a loan (the "Agency Loan")
to the Developer in a total amount not to exceed Seven Million
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Dollars ($7,000,000) which loan shall be evidenced by a
Promissory Note in favor of the Agency (the "Agency Note") .
The Developer shall have the right to approve the terms of the
Agency Note. If the Developer disapproves the provisions
thereof, the Agency and the Developer will be excused from any
further performance under this Agreement, other than the
payment of their respective portion of any escrow fees or
costs as provided herein. The Agency Note will provide that
the Agency Loan will be fully amortized with level payments of
principal and interest over a term of twenty (20) years and
may be assumed in accordance with its terms and provisions.
The form of the Agency Note shall be more or less as set forth
in Exhibit "C" attached hereto and incorporated herein by this
reference. The Agency Note will be secured by a Deed of Trust
(in subordinate position to construction andlor permanent
financing for the Project to be obtained by the Developer in
an amount not to exceed $3,600,000, and on terms and
conditions reasonably satisfactory to the Agency) which will
be recorded and constitute a lien against the Property. The
form of the Deed of Trust will be as shown on Exhibit "D",
attached hereto and incorporated herein by this reference and
is subject to the approval of the Developer. Interest on the
Agency Loan shall accrue at the rate set by HUD, with the
Developer having the right to approve said rate. A
disapproval of the interest rate by the Developer will excuse
the Agency and the Developer from further performance under
this Agreement, other than the payment of their respective
portion of any escrow fees or costs as provided herein. The
Agency Loan is to be funded from the proceeds of a HUD Section
108 loan to the Agency and the Agency's obligations with
respect to the Agency Loan and to this Agreement are
contingent on the Agency's receipt of said proceeds.
b. In addition to the Agency Loan, and contingent upon
receipt of the HUD loan proceeds, the Agency will provide an
additional loan in an amount not to exceed One Million Three
Hundred Twenty Four Thousand Five Hundred Seventy Five Dollars
($1,324,575) (the "Agency Contribution") which shall be
evidenced by a promissory note in the form of Exhibit "E"
attached hereto and incorporated herein by reference (the
"Second Agency Note"). The Second Agency Note shall be
secured by a Third Deed of Trust in favor of the Agency in the
form of Exhibit "F" attached hereto and incorporated herein by
this reference, which will be recorded and constitute a lien
against the Property. The Agency Contribution shall be used
in connection with the construction of the Project, provided
however, that such use shall be consistent with the provisions
of the California Community Redevelopment Law. The Second
Agency Note and the Third Deed of Trust shall be subordinated
to a construction andlor permanent financing for the Property
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in an amount not to exceed $3,600,000, and on terms and
conditions reasonably satisfactory to the Agency. The Agency
shall execute such Subordination Agreements from time to time
as may be reasonably requested by the lenders whose loans
shall have a priority superior to the Second Agency Note and
the Third Deed of Trust and by the Title Company insuring the
priority of such superior loan.
c. In addition to the Agency Loan and the Agency
Contribution the Agency agrees that it shall, at its own cost
and expense, undertake, or cause to be undertaken, certain
site preparation and site clearing work in order to remove all
existing structures on the Land, including foundations,
underground vaults and existing utility lines, rough grade the
Land and bring all applicable utilities to the Land line in
capaci ties sufficient for the proj ect. I f any off-site
improvements are required as part of the Project approvals,
such off-site improvements will be accomplished at the cost
and expense of the Agency. However, the Agency shall have the
right to approve any off-site improvements, and if it
disapproves such off-site improvements, the Agency and the
Developer will be excused from further performance hereunder.
Section 2.04. Developer's Obliaations.
In addition to its obligation to cause the construction
of the Project the Developer agrees that, upon receipt of fee title
to all portions of the Property, the Developer shall contribute not
less than Two Hundred Fifty Thousand Four Hundred Twenty Five
Dollars ($250,425) of its own funds to pay certain Project
construction costs (the "Developer Contribution") .
Upon completion of the Project and in consideration for
the provision of the Developer Contribution the Developer shall be
entitled to an annual priority return (the "Developer Priority
Return") equal to an eight percent (8%) return on the principal
amount of the Developer Contribution, as said principal may be
reduced by the distribution of Net Distributable Cash, as defined
below, which return will be paid from the revenues of the Project,
as and when such revenues are available. Interest on the Developer
Contribution shall not begin to accrue until the earlier of (i) the
date the theater operator commences operations, or (ii) twelve (12)
months from the date the Developer tenders possession of the
Theater Parcel to the theater operator. Said Developer Priority
Return shall be calculated and distributed at the same time as the
Agency Priority Return, as hereinafter described. Thereafter, the
Developer will be entitled to twenty-five percent (25%) of Net
Distributable Cash, as hereinafter defined, which is generated by
the Project and which is available after the Agency has received
the Agency Priority Return as hereafter defined. The amounts of
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Net Distributable Cash received by the Developer (but exclusive of
the Developer Priority Return) shall be deemed to reduce the
principal amount of the Developer Contribution such that thereafter
the Developer Priority Return shall be calculated on the Developer
Contribution, less the amount of Net Distributable Cash received by
the Developer.
At the time of the opening of the Project, it is
understood the Developer anticipates creating at least 105 full and
part time jobs with Developer, reserving the right to modify its
employment pattern from time to time in a manner consistent with
its normal operations.
Section 2.05. Aoencv Particioation.
In consideration for the Agency Assistance as provided in
Section 2.03 hereof, the Agency shall be entitled to participate in
certain revenues generated by the Project based upon the following
formula:
(i) The Agency shall receive an annual priority
return (the "Agency Priority Return") equal to an eight
percent (8%) return on the principal amount of the Agency
Contribution, as said principal may be reduced by Net
Distributable Cash, as defined below, received by the Agency,
which return will be paid from the revenues of the Project, as
and when such revenues are available, to be calculated and
distributed at the same time as the Developer Priority Return.
Interest on the Agency Contribution shall not begin to accrue
until the earlier of Ii) the date the theater operator
commences operations or Iii) twelve (12) months from the date
the Developer tenders possession of the Theater Parcel to the
theater operator. The amounts of Net Distributable Cash
received by the Agency (but exclusive of the Agency Priority
Return), shall be deemed to reduce the principal amount of the
Agency Contribution such that the Agency Priority Return shall
be calculated on the Agency Contribution, less the amount of
Net Distributable Cash received by the Agency.
Iii) The Agency shall thereafter be entitled to
seventy-five percent (75%) of all "Net Distributable Cash" of
the Proj ect. Net Distributable Cash shall mean all cash
available for distribution from the Project, taking into
account all rent, other income from the Project and tenant
reimbursements, after the deduction of the Developer Priority
Return and the Agency Priority Return, and net of all Project
costs, including debt service on the first trust deed loan and
the Agency Loan, operating expenses, property management fees,
utilities, common area maintenance, parking charges, insurance
expenses, repair and maintenance, a reserve for replacement of
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capital items, including but not limited to, Project reserves
equal to one percent (1%) of gross rental income and a Project
Management fee equal to three percent (3%) of gross rental
income. The Developer Priority Return and the Agency Priority
Return shall have equal status. In the event that there is
insufficient Net Distributable Cash to pay the total of both
Priority Returns, each shall be proportionately reduced. The
Developer shall provide the Agency with property management
reports on a monthly basis, not later than the twentieth day
of the succeeding month, setting forth, at a minimum, all
income and expenses, including the Project reserves, related
to the Project. All distributions of Net Distributable Cash
will be made on a monthly basis, and paid at the same time the
monthly property management report is distributed, adjusted as
necessary at the end of the fiscal year which applies to the
Project. Until the Agency no longer has a right to
participate in the revenues of the Project, it may inspect
andlor audit the books and records of the Developer as
necessary to verify the performance of this Agreement, which
inspection or audit will occur at the offices of the Developer
on reasonable notice. The Developer agrees to maintain
separate books of account for the Project, including a
separate account for the reserves of one percent (1%). The
rights of the Agency to inspect and audit the Developer's
books and records shall survive the recordation of any
Certificate of Completion as hereinafter defined. In the
event that Project reserves, or any portion thereof, are
distributed, such distribution shall be deemed a distribution
of Net Distributable Cash and will be done in accordance with
the terms of this Agreement.
(iii) It is contemplated that, after completion of
the proj ect, and from time to time, it may be necessary to
advance funds for the purposes of meeting ongoing operating
costs of the Project. The Developer may advance any such
funds as are necessary, up to an amount equal to 60 days of
normal operating expenses of the Project, without the prior
approval of the Agency (a "Developer Advance"), and the amount
so advanced shall become an operating expense of the Project
and the Developer shall be entitled to repayment thereof from
the revenues of the Project, together with eight percent (8%)
interest. Repayment of a Developer Advance shall be
subordinate to debt service of the permanentlconstruction
financing permitted under Section 2.03.a. and to the Agency
Note, but shall have priority over any payment for the Second
Agency Note, the Agency Priority Return and the Developer
Priority Return. The Developer may advance operating expenses
which exceed the amount of the Developer Advance, and shall be
entitled to reimbursement thereof with eight percent (8%)
interest from the revenues of the Project, but such repayment
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shall be subordinate to debt service on the
permanentlconstruction financing permitted under Section
2.03.a., the Agency Note, the Agency Second Note, the Agency
Priority Return and the Developer Priority Return, unless,
within 30 days of beginning to advance the Developer Advance,
the Developer serves written notice on the Agency of its
intention to advance operating expenses in excess of the
Developer Advance, together with such information concerning
the financial status andlor operations of the Project as the
Agency may reasonably require. I f the Agency, in its sole
discretion, either (i) approves in writing the proposed
advance of further funds, or (ii) fails to reject the proposed
advance of further funds wi thin 30 days of receiving the
Developer's written notice, the additional funds advanced
shall have the same priority for repayment as the Developer
Advance. Notwithstanding any language in this Agreement to
the contrary, the Developer may not make more than one (1)
Developer Advance in any given twelve (12) month period,
unless the Agency shall agree otherwise in writing. No
advances by the Developer under this Section 2.05 (iii) shall
become part of the Developer Contribution.
(iv) The participation by the Agency as provided in
this Section 2.05 is by way of contingent interest and the
return of principal. Nothing provided in this Agreement
creates, or shall be construed to create, a partnership or
joint venture between the Agency and the Developer, and the
Agency shall have no responsibility for or obligation to share
in any losses incurred with respect to the Property, the
Project or the Retail Parcel.
Section 2.06. Escrow.
a. The Agency and the Developer agree to establish an
escrow for the purchase and sale of the Property with an
escrow holder to be determined by mutual agreement (the
"Escrow Agent"). The Agency and the Developer likewise agree
to establish an escrow for the purchase and sale of the Retail
Parcel with the Escrow Agent, as and when the condi tions
precedent to the transfer of the Retail Parcel as set forth in
Section 2.l0.c.l. through 8., inclusive, have been satisfied.
All of the provisions of this Section 2.06 shall be deemed to
apply to the Retail Parcel escrow when opened.
The escrow shall be opened within thirty (30) days after
all of the Property is owned by the Agency or under a binding
agreement of purchase and sale or binding option agreement.
The Retail Parcel escrow shall be opened within thirty (30)
days of the satisfaction of the conditions precedent set forth
in Section 2.10.
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b. The Agency and the Developer shall provide and
execute such additional escrow instructions consistent with
this Agreement as shall be necessary. The Escrow Agent hereby
is empowered to act under this Agreement, and, upon indicating
its acceptance of this Section in writing, delivered to the
Agency and the Developer, within five (5) calendar days after
the establishment of the escrow, shall carry out its duties as
the Escrow Agent hereunder.
c. The Agency and the Developer shall deliver to the
Escrow Agent all documents necessary for the conveyance of
ti tie to or to create a lien on, as the case may be, the
Property, or to the Retail Parcel, as applicable, to the
extent provided in this Agreement, in conformity with, within
the times, and in the manner provided in this Agreement.
d. The Agency and the Developer shall pay all fees,
related to the transfer of the Property andlor the Retail
Parcel, as applicable, from the Agency to the Developer,
promptly after the Escrow Agent has notified the Developer and
the Agency of the amount of such fees, charges, pro rations
and costs. The allocation of fees, charges, pro rations and
costs shall be in accordance with the customary practice of
Escrow Agent.
e. The Agency shall timely and properly execute,
acknowledge and deliver to the Escrow Agent a grant deed
conveying to the Developer title to the Property and/or the
Retail Parcel, as applicable, in accordance with the
requirements of this Agreement and the Developer shall timely
and properly execute, acknowledge and deliver to the Escrow
Agent, the deed or deeds of trust pertaining thereto, as
required by this Agreement.
f. The Agency will cause a Preliminary Title Report to
be prepared and issued by a title company to be determined by
agreement (the "Title Company") and will provide the Developer
with copies thereof along with legible copies of all reported
title exceptions. The Agency and the Developer must approve
the Preliminary Title Report in writing as a condition
precedent to close of escrow.
g. All funds received in escrow shall be deposited by
the Escrow Agent in an insured account with any state or
national bank doing business in the State of California, and
such funds may be combined with other escrow funds of the
Escrow Agent. Such funds shall draw the highest reasonable
rate of interest and such interest shall accrue to the party
to this Agreement who shall have made the deposit thereof with
the Escrow Agent.
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h. All communications from the Escrow Agent to the
Agency or the Developer shall be directed to the respective
parties at the addresses set forth in Section 6.01 of this
Agreement for notices, demands and communications between the
Agency and the Developer.
Section 2.07. Convevance of Title and Deliverv of
Possession.
a. Subj ect to the date set forth in Section 2.07. c.
below, and to any mutually agreed upon written extension of
time or extensions otherwise authorized by this Agreement,
conveyance to the Developer of title to the Property and/or
the Retail Parcel, as applicable, in accordance with the
provisions of this Agreement shall be completed as soon as the
conditions set forth in Section 2.10. hereof have been
satisfied ("Close of Escrow"). The Agency and the Developer
agree to perform all acts necessary for conveyance of title to
the Property, and/or title to the Retail Parcel, as
applicable, in the form and to the extent required herein, in
sufficient time for title to be conveyed in accordance with
this provision.
b. Possession of the Property, andlor the Retail
Parcel, as applicable, shall be delivered to the Developer
concurrently with the conveyance of title, or as otherwise
provided in this Section. The Developer shall accept title
and possession to the Property, and or to the Retail Parcel,
as applicable, on the date established therefor in this
Section.
c. The transfer of fee title to the Property from the
Agency to the Developer must occur prior to sixty (60) days
after the assembly of all of the Land, but in no event later
than twenty (20) months from the date of this Agreement,
unless the parties agree otherwise in writing. The title to
the Retail Parcel must be conveyed within thirty-six (36)
months from the conveyance of the Property, and construction
of the improvements thereon must be commenced immediately upon
conveyance and diligently pursued to completion. In the event
that the date for Close of Escrow of either the Property or
the Retail Parcel cannot be met due to one or more of the
conditions for Close of Escrow set forth in Section 2.10 of
this Agreement having not been sa tis fied or waived, this
Agreement shall be automatically extended for an additional
period of one hundred twenty (120) days to permit the
satisfaction or waiver of such unsatisfied conditions. The
Agency and Developer may agree to such additional extensions
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not to exceed an additional ninety (90) days, provided there
is a reasonable likelihood that such additional time will
permit the satisfaction of the unsatisfied condition or
conditions. At the end of the time permitted, if the Close of
Escrow as to either the Property or the Retail Parcel cannot
occur, the parties shall be released from any and all
obligations hereunder with respect to that parcel, and all
funds and documents shall be returned to the party depositing
them in escrow, and the parties shall bear equal
responsibility for payment of any costs associated with the
escrow, and shall bear their own costs and expenditures
incurred to that point. Notwithstanding any language in this
Agreement to the contrary, the parties agree that the Agency
shall have no obligation to transfer title to the Retail
Parcel unless and until the title to the Property has been
conveyed to the Developer, or simultaneously therewith, and on
the further condition that the Developer not be in default of
this Agreement in any material way. Further, notwithstanding
any language in this Agreement to the contrary, the Developer
shall not be required to, but may elect to, take title to the
Property unless and until it takes title to the Retail Parcel.
Section 2.08. Form of Deed.
The Agency shall convey to the Developer title to the
Property andlor the Retail Parcel, as applicable, in the condition
provided in Section 2.09 of this Agreement by a Grant Deed
substantially in the form attached hereto as Exhibit "G".
Section 2.09. Condition of Title.
The Title to the Property and/or the Retail Parcel
conveyed by the Agency to the Developer shall be a marketable title
free and clear of encumbrances and exceptions, except for: (a) the
agreements, covenants and conditions of this Agreement, the Grant
Deed, the Deed of Trust securing the construction and/or permanent
loan and the Deeds of Trust granted to the Agency under
Section 2.03 hereof (in the case of the Property) and Section
2.l0.c.8. (in the case of the Retail Parcel); (b) such pre-existing
easements or rights-of-way as may be disclosed by the Preliminary
Title Report and approved by the Agency and the Developer; and (c)
real property taxes for the fiscal year in which escrow closes
which constitute a lien not yet payable.
Section 2.10. Conditions for Close of Escrow.
a. The Agency's obligation to convey the Property to
the Developer and the Close of Escrow shall be expressly
conditioned upon satisfaction or waiver by the Agency of each
of the following:
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1. The Developer shall have deposited into the escrow
all sums required to be deposited by it pursuant to
this Agreement with respect to the Property,
including the Developer's Contribution, with a
credit for any Pretransfer Costs, as defined in
Section 3.01. bb. below, advanced by the Developer.
2. The Developer shall have provided to the Agency
satisfactory evidence of the legal formation and
existence of the Developer and the good standing of
the Developer with the State to transact business
within the state, to hold title to the Property and
to develop the Project, as provided in
Section 3.0l.a. hereof and evidence of approval of
this Agreement and the transaction contemplated
hereby by the Developer's Board of Directors or
other governing body.
3. The Developer shall have received approval from the
Agency of financing commitments as set forth in
Section 2.17 hereof.
4. The City shall be prepared to issue building
permits for the final grading and improvement of
the site andlor building improvements of the
Project.
5. The Agency shall have received funding of the HUD
Section 108 loan which is to provide the funds for
the Agency Loan.
6. The Developer shall have received final approval of
any changes in zoning, variances, special use
permits, site plan approvals, environmental
approvals or other approvals under applicable law
as are required for Developer's intended use of the
Property as described in the scope of Development
(the "Intended Use"). For the purposes of this
Agreement, "final approval" shall mean approval by
the applicable governmental agency authorized to
grant such approval and expiration of any and all
appeal or challenge periods with respect to any
such approval without any appeal being taken or
judicial challenge to such approval being filed.
7. The Developer shall have obtained an executed and
binding lease of the theater complex to a
recognized cinema operator. The terms of the lease
and the identity of the operator are subject to the
reasonable approval of the Agency.
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8. The representations and warranties of the Developer
shall be true and correct at the time of Close of
Escrow.
b. The Developer's obligation to purchase the Property
from the Agency and the Close of Escrow shall be expressly
conditioned upon satisfaction or waiver by the Developer of
each of the following:
1. The Agency shall be able to convey good, marketable
and insurable title to the Property, subject only
to those exceptions as set forth in Section 2.09 of
this Agreement and delivery of title insurance
evidencing such title as set forth in Section 2.13
of this Agreement.
2. The Agency shall have deposited into escrow the
proceeds of the Agency Loan and the Agency
Contribution, with a credit to the Agency
Contribution of any Pretransfer Costs, as defined
in Section 3.0l.bb. below, advanced by the Agency.
3. The results of any inspection, soil tests, drainage
tests, survey, topographical analysis, engineering
andlor architectural drawings (all to be performed
at Developer's expense) do not disclose that the
Property is unsuitable for the Intended Use. The
Agency shall provide to Developer, its employees
and agents, a license for access over and through
the portions of the Property controlled by the
Agency for the purposes of conducting any of the
foregoing tests, inspections or surveys, provided
the Developer shall hold the Agency harmless from
any liability, damage or expense which either may
incur by reason thereof.
4. The results of any hazardous substance site
assessment to be performed on the Property does not
disclose evidence suggesting the presence of any
hazardous materials or environmental contamination,
or if present, the same shall have been approved by
Developer based on such assessment or remediated by
the Agency. The Developer agrees and acknowledges
that Developer's reliance on any previously
completed environmental assessment performed for
the benefit of the Agency shall be at Developer's
own risk and shall not impose any liability upon
the Agency. The Agency agrees that it will cause
the engineer/consultant who prepares any
environmental assessment of the Property andlor the
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Retail Parcel to issue its certification in the
name of both the Agency and the Developer. Any
incremental cost associated with naming the
Developer in such certification shall be at the
expense of the Developer, except that the Developer
shall have the option of choosing not to be named
in the certification if it so elects, in which case
it shall bear no responsibility for the cost of any
such assessment.
5. The representations and warranties of the Agency
shall be true and correct at the time of Close of
Escrow.
6. The Agency shall have performed its obligations
under Section 3.0l.a.l.
c. The Agency's obligation to convey the Retail Parcel
to the Developer and the Close of Escrow shall be expressly
conditioned upon satisfaction or waiver by the Agency of each
of the following:
1. The Developer shall have deposited into the escrow
all sums required to be deposited by it pursuant to
this Agreement with respect to the costs of
transfer of the Retail Parcel.
2. The Developer shall have provided to the Agency
satisfactory evidence of the legal formation and
existence of the Developer and the good standing of
the Developer with the State to transact business
within the State, to hold title to the Retail
Parcel and to develop the Retail Parcel, as
provided in Section 3.0l.a. hereof and evidence of
approval of this Agreement and the transaction
contemplated hereby by the Developer's Board of
Directors or other governing body.
3. The Developer shall have received approval from the
Agency of financing commitments as set forth in
Section 2.17 hereof with respect to the Retail
Parcel.
4. The City shall be prepared to issue building
permits for the final grading and improvement of
the site andlor building improvements of the Retail
Parcel.
5. The Developer shall have received final approval of
any changes in zoning, variances, special use
15
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tit)
350
d.
Parcel
permits, site plan approvals, environmental
approvals or other approvals under applicable law
as are required for Developer's Intended Use of the
Retail Parcel.
6.
The representations and warranties of the Developer
shall be true and correct at the time of Close of
Escrow.
7.
The Developer shall provide evidence reasonably
satisfactory to the Agency that it has pre-leased
not less than fifty percent (50%) of the rentable
area of the proposed improvements on the Retail
Parcel, and that the proposed lessees are bound to
enter or have entered into leases at such rental
rates and for such terms as is commercially
reasonable at the time. The Agency shall have the
reasonable right of approval of the terms of any
such lease, the identity of the proposed lessee,
and the nature of the business to be conducted by
said lessee on the Retail Parcel.
8 .
The Developer shall have deposited in escrow a deed
of trust on the Retail Parcel in favor of the
Agency, in the form attached hereto as Exhibit "L",
which is incorporated herein by reference, securing
performance by the Developer of each and every
covenant specified therein pertaining to the Retail
Parcel, which shall be recorded at Close of Escrow
in first lien position, subject to the
subordination requirement set forth hereinafter.
Said deed of trust shall remain a lien against the
Retail Parcel unless and until a Certificate of
Completion issued by the Agency is recorded against
the Retail Parcel. The Agency agrees that it will
subordinate the deed of trust provided for herein
to a construction andlor permanent financing for
the improvements to the Retail Parcel in an amount
not to exceed $2,200,000, on terms and conditions
reasonably satisfactory to the Agency. The Agency
shall execute such Subordination Agreements from
time to time as may be reasonably requested by the
lender or lenders whose loan or loans shall have a
priority superior to the Agency deed of trust and
by the Title Company insuring the priority of such
superior loan(s)
The Developer's obligation to purchase the Retail
from the Agency and the Close of Escrow shall be
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expressly conditioned upon satisfaction or waiver by the
Developer of each of the following:
1. The Agency shall be able to convey good, marketable
and insurable title to the Retail Parcel, subject
only to those exceptions as set forth in Section
2.09 of this Agreement and delivery of title
insurance evidencing such title as set forth in
Section 2.13 of this Agreement.
2. The results of any inspection, soil tests, drainage
tests, survey, topographical analysis, engineering
and/or architectural drawings (all to be performed
at Developer's expense) do not disclose that the
Retail Parcel is unsuitable for the Intended Use.
The Agency shall provide to Developer, its
employees and agents, a license for access over and
through the portions of the Retail Parcel
controlled by the Agency for the purposes of
conducting any of the foregoing tests, inspections
or surveys, provided the Developer shall hold the
Agency harmless from any liability, damage or
expense which either may incur by reason thereof.
3. The results of any hazardous substance site
assessment to be performed on the Retail Parcel do
not disclose evidence suggesting the presence of
any hazardous materials or environmental
contamination, or if present, the same shall have
been approved by Developer based on such assessment
or remediated by the Agency. The Developer agrees
and acknowledges that Developer's reliance on any
previously completed environmental assessment
performed for the benefit of the Agency shall be at
Developer's own risk and shall not impose any
liability upon the Agency. The Agency agrees that
it will cause the engineerlconsultant who prepares
any environmental assessment of the Property andlor
the Retail Parcel to issue its certification in the
name of both the Agency and the Developer. Any
incremental cost associated with naming the
Developer in such certification shall be at the
expense of the Developer, except that the Developer
shall have the option of choosing not to be named
in the certification if it so elects, in which case
it shall bear no responsibility for the cost of any
such assessment.
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4. The representations and warranties of the Agency
shall be true and correct at the time of Close of
Escrow.
5. The Agency shall have performed its obligations
under Section 3.0l.a.l.
Section 2.11. Time and Place for Deliverv of Documents
to Escrow.
Subject to any mutually agreed upon written extensions of
time or any extensions otherwise authorized by this Agreement, the
parties shall deposit with the Escrow Agent promptly at such time
as such documents have been fully prepared and executed, but in no
event later than ten (10) calendar days before the date established
for the conveyance of the Property or the Retail Parcel, as
applicable, or any remaining portions thereof, any and all
documents which are required in order for escrow to close in
accordance with this Agreement. The grant deed conveying any
remaining portions of the Property or the Retail Parcel, as
applicable, from the Agency to the Developer hereunder shall be
prepared by the Agency, at the Agency's expense. The legal
descriptions regarding the Property and the Retail Parcel will be
supplied by the Agency. All other documents required to be recorded
in order to permit the Close of Escrow shall be prepared by the
Developer at its cost and expense.
Section 2.12. Recordation of the Grant Deed and Other
Documents.
When the parties have deposited into escrow all documents
and funds as required by this Agreement and all conditions for the
Close of Escrow as to the Property or the Retail Parcel, as
applicable, have been satisfied, the Escrow Agent shall promptly
file for recordation among the land records in the Office of the
County Recorder where the Property or the Retail Parcel, as
applicable, is located: (i) the grant deed to the Property or the
Retail Parcel, as applicable; (ii) the Deeds of Trust granted by
the Developer to the Agency in accordance with Section 2.03 hereof
(as to the Property) or Section 2.l0.c.8. (as to the Retail
Parcel); and (iii) this Agreement. The Escrow Agent shall
thereafter promptly provide a copy of said recorded documents to
both parties, and shall promptly deliver to the Developer a title
insurance policy insuring title in conformity with this Agreement.
As to the Property, the Escrow Agent shall transfer to the Project
Account, as defined hereinafter, all proceeds, including the Agency
Loan, the Agency Contribution and the Developer Contribution.
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Section 2.13. Title Insurance.
Concurrently with recordation of the grant deed to the
Property andlor the Retail Parcel, as applicable, the Title Company
shall provide and deliver to the Developer an ALTA owner's policy
of title insurance, and such additional title endorsements as the
Developer may reasonably request, issued by the Title Company
insuring that the title to the Property andlor the Retail Parcel,
as applicable, is as required pursuant to the terms of this
Agreement. The title insurance policy shall be in an amount to be
determined by agreement of the parties.
Section 2.14. Taxes and Assessments.
Ad valorem taxes and assessments, if any, on the Property
and/or the Retail Parcel, as applicable, and taxes upon this
Agreement or any rights hereunder levied, assessed or imposed as to
any period prior to conveyance of title to the Property andlor the
Retail Parcel, as applicable, through the escrow, shall be borne by
the Agency.
Parcel.
Section 2.15. Zonina of the Prooertv and the Retail
The Developer will undertake the obligation to confirm
that the City's general plan and zoning ordinance permit the
contemplated development, construction and operation of the
Property andlor the Retail Parcel, as applicable, in accordance
with this Agreement, and Developer agrees to obtain any and all
necessary conditional use permits required pursuant to the zoning
ordinance, and Developer agrees to obtain any and all modifications
or variances including, but not limited to, those modifications or
variances necessary for height, parking, signs and any and all
other matters.
Section 2.16. Condition of the Land.
a. The Land shall be conveyed in an "as is" condition
with no warranty or liability, except as otherwise provided
herein, express or implied on the part of the Agency as to the
condition of the soil, its geology or the presence of known or
unknown faults or defects.
b. It shall be the responsibility solely of the
Developer, at the Developer'S expense, to investigate and
determine the soil and seismic conditions of the Land, and its
suitability for the development to be constructed thereon.
The Developer shall not disapprove any soils report or soils
condi tion which would permit the construction with normal
foundation conditions of the contemplated improvements.
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Section 2.17. Submission of Evidence of Financino
Commitments.
a. As a condition to the Close of Escrow as to either
the Property or the Retail Parcel, as applicable, the
Developer shall submi t to the Agency evidence reasonably
sa tis factory to the Agency that the Developer: (i) has
obtained sufficient equity capital for Project financing or
financing of the improvements to the Retail Parcel, as
applicable; (ii) either has obtained or can obtain, as
evidenced by a letter of intent or similar instrument,
sufficient equity capital and firm and binding commitments for
construction financing; and (iii) either has obtained or can
obtain, as evidenced by a letter of intent or similar
instrument, sufficient equity capital and firm and binding
commitments for permanent financing; all as may be necessary
for the construction of the Project on the Property or of the
improvements on the Retail Parcel, as applicable, in
accordance with this Agreement. In lieu of the foregoing, the
Developer may submit evidence to the Agency that it has
sufficient funds of its own for the purposes set forth in this
Section, which evidence shall be acceptable to the Agency in
its sole discretion. As used in this Agreement, "permanent
financing" may consist of a post-construction loan with a five
(5) to seven (7) year fully amortizing term (although it may
have a longer amortization schedule), with payment of
principal and interest on terms and conditions reasonably
acceptable to the Agency.
b. Any and all financing for the development of the
Land shall be obtained from reputable, recognized and well-
established financial institutions or lending sources
including, but not limited to, banks, savings and loan
institutions, insurance companies, real estate investment
trusts, pension programs and the like. Whenever the source of
financing for all or any part of the development is from other
than the Developer, the Developer shall promptly submit the
following to the Agency:
1. Copies of all construction andlor land purchase
financing commitments received by the Developer;
and
2. Proof of acceptance of each such loan commitment by
the Developer and proof of payment of all up-front
loan commitment fees, if any.
c. The Director of the Agency shall approve or
disapprove such documents andlor financing commitments or
sources within fifteen (15) business days of receipt by the
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Agency of the documents and information required hereunder; provided,
however, that the failure of the Director to disapprove any of the
foregoing matters in writing within said fifteen (15) business day period
shall be deemed to constitute approval thereof. As used in this
Agreement, "Director of the Agency' shall mean the Development Director.
d. Prior to submitting documents and evidence to the Agency
as required by this Section, the Developer shall obtain approval by
its lender for the project andlor the improvements to the Retail
Parcel of the transaction as provided in this Agreement. In the
event that said lender selected by the Developer disapproves of the
transaction as provided in this Agreement, the Developer shall in
good faith use its best efforts to obtain the necessary financing
for the Project andlor the improvements to the Retail Parcel, from
other lender or lenders who approve thereof.
Section 2.18.
Reoresentations And Warranties of the Agencv.
The Agency hereby represents and warrants the following to the
Developer for the purpose of inducing the Developer to enter into this
Agreement and to consummate the transactions contemplated hereby, all of
which shall be true as of the date hereof and as of the date of Close of
Escrow of either the Property or the Retail Parcel, and shall survive the
Close of Escrow and the conveyance of title to the Property andlor the
Retail Parcel, as applicable.
(a) The Agency is a duly organized and validly existing
Redevelopment Agency created under the laws of the State of California,
The Agency has the legal power, right and authority to enter into this
Agreement and the instruments and documents referenced herein, and to
consummate the transactions contemplated hereby. The Director of the
Agency executing this Agreement and the instruments referenced herein on
behalf of the Agency hereby represents and warrants that he has the
power, right and authority to bind the Agency.
(b) The Agency has taken all requisite action and obtained
all requisite consents in connection with entering into this Agreement
and the instruments and documents referenced herein and the consummation
of the transactions contemplated hereby, and no consent of any other
party is required.
(c) This Agreement is, and all agreements, instruments and
documents to be executed by the Agency pursuant to this Agreement shall
be, duly executed by and are or shall be valid and legally binding upon
the Agency and enforceable in accordance with their respective terms.
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(d) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby shall result
in a breach of or constitute a default under any agreement,
document, instrument or other obligation to which the Agency is a
party, or by which the Agency may be bound, or under law, statute,
ordinance, rule, governmental regulation or any writ, injunction,
order or decree of any court or governmental body applicable to the
Agency or to the Land.
(e) There is no claim, action, litigation, arbitration
or other proceeding pending or to the best of the Agency's
knowledge, threatened against the Agency which relates to the Land
or the transactions contemplated hereby or which could result in
the imposition of a lien against the Land. If the Agency receives
notice of any claim, litigation or proceeding prior to Close of
Escrow, the Agency shall promptly notify the Developer of the same
in writing.
(f) The uses and improvements to be constructed on the
Property and/or the Retail Parcel, as applicable, in accordance
with the Scope of Development attached hereto as Exhibit "B" and
incorporated herein by reference, comply with the California
Community Redevelopment Law and the use of funds comprising the
Agency Contribution for the construction of the Project and/or the
improvements on the Retail Parcel, as applicable, as described in
the Scope of Development attached hereto is consistent with the
provisions of the California Community Redevelopment Law and is not
violative thereof.
(g) The Agency has no knowledge that the Land is in
violation of any federal, state or local law, ordinance or
regulation relating to "Hazardous Substances" on, under or about
the Land including, but not limited to, soil and ground water
condition. The Agency has no knowledge that any third party has
used, generated, manufactured, stored or disposed of on, under or
about the Land or transported to or from the Land any hazardous
materials. "Hazardous Materials" shall mean any flammable,
explosives, radioactive materials, hazardous waste or substances,
toxic waste or substances and other related materials including,
without limitation, any substances defined as or included in the
definition of "Hazardous Substances", "Hazardous Waste", "Hazardous
Materials" or "Toxic Substances" under any applicable, federal,
state or local laws or regulations.
i
I
I
I _
(h) To the knowledge of the Agency, the Land is not in
violation of, and the Agency has not received any notice of any
violation of law, ordinance, regulation order or requirement
applicable to the Land including, without limitation, requirements
imposed under any recorded covenants, conditions, restrictions,
easements or other rights affecting the Land. The Agency has not
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received any notice from any governmental authority or any private
person that the Agency or the Land or any portion thereof is in
violation of any governmental or legal requirements. If the Agency
receives such a notice prior to the Close of Escrow on either
parcel, the Agency shall immediately notify the Developer in
writing.
The representations and warranties contained in this
Section 2.18 are true and correct on the date hereof and no
representation or warranty made by the Agency or in any statement
or exhibit required to be furnished hereunder misstates, omits or
shall misstate or omit a fact necessary to make the statement
therein not misleading. The Agency shall promptly notify the
Developer upon the Agency's discovery of any fact which would
render any representation or warranty in this Agreement untrue,
incorrect or misleading in any respect. The knowledge of the
"Agency" shall be the actual knowledge of the following officials
of the Agency: Timothy C. Steinhaus, Ronald E. Winkler and Adam
Eliason or their replacements.
Section 2.19. ReDresentations and Warranties of the
DeveloDer.
The Developer hereby represents and warrants the
following to the Agency for the purpose of inducing the Agency to
enter into this Agreement and to consummate the transactions
contemplated hereby, all of which shall be true as of the date
hereof and as of the date of Close of Escrow as to either parcel
and shall survive the Close of Escrow and the conveyance of title
to either Parcel hereunder.
(a) The Developer is a duly organized and validly
existing limited liability company created under the laws of the
state of Delaware and has qualified to do business in the State of
California. The Developer has the legal right, power and authority
to enter into this Agreement and the instruments and documents
referenced herein and to consummate the transactions contemplated
hereby. The persons executing this Agreement and the instruments
referenced herein on behalf of the Developer hereby represent and
warrant that such persons have the power, right and authority to
bind the Developer.
(b) The Developer has taken all requisite action and
obtained all requisite consents in connection with entering into
this Agreement and the instruments and documents referenced herein
and the consummation of the transactions contemplated hereby, and
no consent of any other party is required.
(c) This Agreement is, and all agreements, instruments
and documents to be executed by the Developer pursuant to this
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Agreement shall be, duly executed by and are or shall be valid and
legally binding upon the Developer and enforceable in accordance
with their respective terms.
(d) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby shall result
in a breach of or constitute a default under any agreement,
document, instrument or other obligation to which the Developer is
a party or by which the Developer may be bound, or under law,
statute, ordinance, rule, governmental regulation or any writ,
injunction, order or decree of any court or governmental body
applicable to the Developer or to the Land.
The representations and warranties contained in this
Section 2.19 are true and correct on the date hereof, and no
representation or warranty made by the Developer or in any
statement or exhibit required to be furnished hereunder misstates,
omits or shall misstate or omit a fact necessary to make the
statement therein not misleading. The Developer shall promptly
notify the Agency upon the Developer's discovery of any fact which
would render any representation or warranty in this Agreement
untrue, incorrect or misleading in any respect.
ARTICLE III
DEVELOPNENT OF THE LAND
Section 3.01. Development bv Developer.
a. A parcel map will be prepared with respect to the
Land, creating not less than three (3) separate legal parcels,
which shall be (i) a parcel to be utilized for a multi screen
cinema complex (the "Theater Parcel"), (ii) a parcel to be
utilized for construction of up to 20,000 square feet of
retai 1 and I or restaurants (the "Retail Parcel") and (iii) a
parcel which shall consist of areas common to the Theater
Parcel and the Retail Parcel (the "Common Area Parcel"). The
Retail Parcel may consist of multiple parcels.
1. The Theater Parcel and the Common Area Parcel
comprise the Project as defined in this Agreement. The
Theater Parcel, the Common Area Parcel and the Retail Parcel
will be transferred in fee to the Developer in accordance with
this Agreement, with all structures, underground vaults and
underground utili ties, if any removed, in a rough grade
condition and with adequate utilities to the property line
thereof. If any of the existing improvements contain
hazardous substances, the Agency shall dispose of such
hazardous substances lawfully and at its expense, subject to
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the provisions of Section 3.02.b. The Developer may
develop the Retail Parcel and shall be responsible
costs and financing thereof. The Agency shall bear
associated therewith, nor shall it receive any
generated thereby.
seek to
for all
no cost
revenues
2.
and approval
accorded with
The Agency shall have the same rights
of the design of the Retail Parcel
respect to the Project.
of review
as it is
3. Upon completion of development of any portion
of the Retail Parcel, the costs of owning, maintaining and
insuring the Common Area Parcel shall be paid by the owner(s)
of the Theater Parcel and the Retail Parcel in the same ratio
as the square footage of completed improvements on the Theater
Parcel bears to the square footage of completed improvements
on the Retail Parcel, with said ratio changing as improvements
may be added or completed.
4. The Developer shall be solely responsible for
obtaining all required building permits, approvals, variances,
condi tional use permits or other governmental permits or
approvals required for the development of the Project or the
Retail Parcel, or the uses contemplated thereon. The tenants
of the Retail Parcel shall have the same non-exclusive right
as the tenant(s) of the Theater Parcel to utilize the parking
provided by the Agency, as well as a non-exclusive right to
access to the Common Area Parcel.
5. The Developer agrees to develop the Theater
Parcel as an approximately eighty thousand (80,000) square
foot multi screen cinema complex and related commercial
facility to be occupied by, among others, CinemaStar Luxury
Theaters, Inc., all as more fully described in the Scope of
Development set forth in Exhibit "B" attached hereto and
incorporated herein by reference, and to develop the Common
Area Parcel with appropriate improvements as agreed by the
Agency and the Developer.
6. The parties hereto agree that the condition and
appearance of the Retail Parcel has a substantial impact on
the success of the Project. Accordingly, the Developer agrees
that it will, prior to the issuance of a Certificate of
Occupancy for the Theatre Parcel, install, construct and
maintain landscaping, together with appropriate watering
systems, on the Retail Parcel which will compliment and
enhance the Project. Said landscaping will be subject to the
reasonable approval of the Agency. The Agency will grant the
Developer a license for entry on the Retail Parcel and for the
work of installing the landscaping. The Developer's
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obligation with respect to the landscaping on the Retail
Parcel shall commence as of the date of issuance of the
Certificate of Occupancy for the Theater Parcel and run until
the earlier of (i) such time as the Developer no longer has an
ownership in the Project; or (ii) such time as the Developer's
right to purchase the Retail Parcel has expired due to a
failure to satisfy the conditions precedent set forth in
Section 2.l0.c. and d. within the thirty-six (36) month period
provided in Section 2.07.c.
b. The City's zoning ordinance including, but not
limited to, parking and height requirements, and the City's
building requirements are applicable to the use and
development of the Land pursuant to this Agreement. The
Developer acknowledges that any change in the plans for
development or the use of the Land as set forth in the Scope
of Development shall be subject to the City's zoning ordinance
and building requirements. No action by the Agency or the
City with reference to this Agreement or related documents
shall be deemed to constitute a waiver of any City parking,
height or other requirements which are applicable to the Land
or to the Developer, any successor in interest or tenant of
the Developer or any tenant or successor in interest
pertaining to the Land, except by modification or variance
approved by the City consistent with this Agreement. The
Agency shall cooperate with and shall assist the Developer in
efforts to obtain modifications or variances from City zoning
regulations necessary to develop the Project consistent with
this Agreement and, in particular, with the Scope of
Development, wi thin forty- fi ve (45) calendar days following
written application therefor by the Developer. Any failure by
the City either to approve or disapprove any of such
modifications or variances within said forty-five (45)
calendar day period shall constitute an enforced delay
hereunder, and the Schedule of Performance, as defined
hereinafter, shall be extended by that period of time beyond
said forty-five (45) calendar day period in which the City
approves or disapproves such modifications or variances.
c. The Scope of Development set forth in Exhibit "B" is
hereby approved by the Agency upon its execution of this
Agreement. The Project and the Retail Parcel shall be
developed and completed in conformance with the approved Scope
of Development and any and all other plans, specifications and
similar development documents required by this Agreement,
except for such changes as may be mutually agreed upon in
writing by and between the Developer and the Agency. The
Agency agrees to approve preliminary and final construction
plans and preliminary and final landscaping plans, if
reasonably consistent with the approved Scope of Development.
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d. The approval of the Scope of Development by the
Agency hereunder shall not be binding upon the City Councilor
the Planning Commission of the City with respect to any
approvals of the Project and the Retail Parcel required by
such other bodies. If any revisions of the Scope of
Development as approved by the Agency shall be required by
another government official, agency, department or bureau
having jurisdiction over the development of the Land, the
Developer and the Agency shall cooperate in efforts to obtain
waivers of such revisions, or to obtain approvals of any such
revisions which have been made by the Developer and have
thereafter been approved by the Agency. The Agency shall not
unreasonably withhold approval of such revisions.
e. Notwi thstanding any provision to the contrary in
this Agreement, the Developer agrees to accept and comply
fully with any and all reasonable conditions of approval
applicable to all permi ts and other governmental actions
affecting the Project and/or the Retail Parcel and consistent
with this Agreement.
f. The Developer shall cause landscaping plans for the
Project and the Retail Parcel to be prepared by a licensed
landscape architect. The Developer shall prepare and submit
to the Agency for its approval, preliminary and final
landscaping plans for the Proj ect and the Retail Parcel.
These plans shall be prepared, submitted and approved within
the times respectively established therefore in the Schedule
of Performance as shown on Exhibit "H" attached hereto and
incorporated herein by reference and shall be consistent with
the Scope of Development.
g. The Developer shall prepare and submit development
plans, construction drawings and related documents for the
development of the Project and the Retail Parcel consistent
with the Scope of Development to the City and the Agency for
review (inClUding, but not limited to, architectural review of
the exterior of structures); provided, however, that the
Agency shall not have the right or responsibility to approve
development plans, construction drawings or related documents
for purposes of the issuance of a building permit or otherwise
on behalf of the City, but shall only have the right of review
and approval of such plans, drawings and documents for
purposes of: (al architecture and design of structures and the
overall development of the Project andlor the Retail Parcel,
and (bl conformity of such plans, drawings and documents with
the terms and conditions of this Agreement. The development
plans, construction drawings and related documents for both
the Project and the Retail Parcel shall be submitted in two
stages preliminary and final drawings (i.e., working
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drawings), plans and specifications.
and specifications are hereby defined
sufficient detail necessary to obtain
the City. Any such items submitted to
by the Agency shall not be subject to
by the Agency, and any such Agency
unreasonably withheld.
Final drawings, plans
as those which contain
a building permit from
and approved in writing
subsequent disapproval
approval shall not be
h. During the preparation of all drawings and plans for
the Project andlor the Retail Parcel, the Agency Staff and the
Developer shall hold regular progress meetings to coordinate
the preparation by the Developer, and the submission to and
review by the City and the Agency of construction plans and
related documents. The Agency Staff and the Developer shall
communicate and consult informally as frequently as is
necessary to ensure that any such plans and related documents
submitted by the Developer to the City and the Agency can
receive prompt and speedy consideration.
i. The Agency shall have the right of reasonable
architectural review and approval of building exteriors and
design of the Project and of the Retail Parcel. The Agency
shall also have the right to review all plans, drawings and
related documents pertinent to the development of the Project
and the Retail Parcel in order to ensure that they are
consistent with this Agreement and with the Scope of
Development set forth in Exhibit "B".
j. The Developer shall timely submit to the City for
its review and approval any and all plans, drawings and
related documents pertinent to the development of the Project
and the Retail Parcel, as required by the City. The Agency
shall cooperate with and shall assist the Developer in an
effort to obtain the approval of any and all development
plans, construction drawings and related documents submitted
by the Developer to the City consistent with this Agreement
within thirty (30) calendar days following the City's receipt
of said plans. Any failure by the City to approve any of such
plans or to issue necessary permits for the development of the
Property andlor the Retail Parcel, as applicable, within said
thirty (30) calendar day period shall constitute an enforced
delay hereunder, and the Schedule of Performance shall be
extended by that period of time beyond said thirty (30)
calendar day period in which the City approves said plans;
provided, however, that in the event that the City disapproves
of any of such plans, the Developer shall within thirty (30)
calendar days after receipt of such disapproval revise and
resubmit such plans in accordance with the City's requirements
and in such form and substance so as to obtain the City's
approval thereof.
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k. The Agency shall in good faith use its best efforts
to cause the City to approve in a timely fashion any and all
plans, drawings and documents submitted by the Developer
hereunder and to cause the City not to impose new conditions
inconsistent with: (a) prior plans, drawings and documents
approved by the City; or (b) the Scope of Development.
I. The Agency shall approve any modified or revised
plans, drawings and related documents to which reference is
made in this Agreement within the times established in the
Schedule of Performance as long as such plans, drawings and
related documents are generally consistent with the Scope of
Development and any other plans which have been approved by
the Agency. Upon any disapproval of plans, drawings or
related documents, the Agency shall state in writing the
reasons for such disapproval. The Developer, upon receipt of
notice of any disapproval, shall promptly revise such
disapproved portions of the plans, drawings or related
documents in a manner that addresses the reasons for
disapproval and reasonably meets the requirements of the
Agency in order to obtain the Agency's approval thereof. The
Developer shall resubmit such revised plans, drawings and
related documents to the Agency as soon as possible after its
receipt of the notice of disapproval and, in any event, no
later than thirty (30) calendar days thereafter. The Agency
shall approve or disapprove such revised plans, drawings and
related documents in the same manner and within the same times
as provided in this Section for approval or disapproval of
plans, drawings and related documents initially submitted to
the Agency.
m. If the Developer desires to make any change in the
final construction drawings, plans and specifications and
related documents after their approval by the Agency andlor
the city, the Developer shall submit the proposed change in
writing to the Agency and/or the City for approval. The
Agency shall notify the Developer of approval or disapproval
thereof in writing within fifteen (15) calendar days after
submission to the Agency. This fifteen (15) calendar day
periOd may be extended by mutual consent of the Developer and
the Agency. Any such change shall, in any event, be deemed to
be approved by the Agency unless rej ected, in whole or in
part, by written notice thereof submitted by the Agency to the
Developer, setting forth in detail the reasons therefor, and
such rejection shall be made within said fifteen (15) calendar
day periOd unless extended as permitted herein. The Agency
shall use its best efforts to cause the City to review and
approve or disapprove any such change as provided in
Section 3.0l.b. hereof.
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n. The Developer, upon receipt of a notice of
disapproval by the Agency and/or the City, may revise such
portions of the proposed change in construction drawings,
plans and specifications and related documents as are rejected
and shall thereafter resubmit such revisions to the Agency
and/or the City for approval in the manner provided in
Section 3.0l.b. hereof.
o. The Developer shall have the right during the course
of construction to make changes in construction concerning the
interior of structures and "minor field changes" without
seeking the approval of the Agency; provided, however, that
such changes do not affect the type of use to be conducted
within all or any portion of a structure. Said "minor field
changes" shall be defined as those changes from the approved
final construction drawings, plans and specifications which
have no substantial effect on the improvements and are made in
order to expedite the work of construction in response to
field conditions. Nothing contained in this Section shall be
deemed to constitute a waiver of or change in the city's
Building Code requirements governing such "minor field
changes" or in any and all approvals by the City otherwise
required for such "minor field changes."
p. The costs of developing the Property and/or the
Retail Parcel and of constructing all improvements thereon and
adjacent thereto as set forth in the Scope of Development
shall be borne by the Developer. It is understood and agreed
by the parties that, prior to conveyance of the Property to
the Developer, the Agency shall cause the Land to be cleared
of structures including foundations, underground vaults and
underground utilities, if any, and to be rough graded and
shall pay for the costs of those certain off-site improvements
described in the Scope of Development as the obligations and
responsibility of the Agency to complete hereunder.
q. The Developer shall at its expense cause to be
prepared, and shall pay any and all fees pertaining to the
review and approval thereof by the City, all required
construction, planning and other documents reasonably required
by governmental bodies pertinent to the development of the
Property andlor the Retail Parcel hereunder including, but not
limited to, specifications, drawings, plans, maps, permit
applications, land use applications, zoning applications and
design review documents.
r. The Developer shall pay for any and all costs as
described in the Scope of Development which are attributable
to the Developer concerning the design, construction,
relocation and securing of permits for utility improvements
and connections. The Developer shall obtain any and all
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necessary approvals prior to the commencement of applicable
portions of said construction, and the Developer shall take
reasonable precautions to ensure the safety and stability of
surrounding properties during said construction.
s. The Developer shall begin and complete all
construction and development and undertake all obligations and
responsibilities of the Developer within the times specified
in the Schedule of Performance shown in Exhibit "H" attached
hereto, or within such reasonable extensions of such times as
may be granted by the Agency or as otherwise provided for in
this Agreement. The Schedule of Performance shall be subject
to revision from time to time as mutually agreed upon in
writing by and between the Developer and the Director of the
Agency. Any and all deadlines for performance by the parties
shall be extended for any times attributable to delays which
are not the fault of the performing party and are caused by
the other party, other than periods for review and approval or
reasonable disapprovals of plans, drawings and related
documents, specifications or applications for permits as
provided in this Agreement. The Developer shall obtain, or
cause to be obtained, a completion bond or other form of
financial guaranty assuring completion of the development of
the Project andlor the Retail Parcel, as applicable, which
bond or guaranty shall be in an amount, on terms and issued by
a guarantor satisfactory to the Agency, and shall run in favor
of the Agency or name the Agency as a third party beneficiary.
The cost of such bond shall be a Project expense. The filing
of a Certificate of Completion shall not serve to release any
bond or guaranty given hereunder, which bond or guaranty will
only be exonerated or released when all punch-list items are
completed.
t. Prior to and during the period of construction of
the Project andlor the improvements to the Retail Parcel, as
applicable, the Developer shall submit to the Agency written
progress reports when and as reasonably requested by the
Agency but in no event more frequently than every two (2)
weeks. The reports shall be in such form and detail as may
reasonably be required by the Agency, and shall include a
reasonable number of construction photographs taken since the
last such report submitted by the Developer.
u. Prior to the commencement of construction on the
Land, the Developer shall furnish, or shall cause to be
furnished, to the Agency duplicate originals or appropriate
certificates of public indemnity and liability insurance in
the amount of One Million Dollars ($1,000,000.00) combined
single limit, naming the Agency and the City as additional
insureds. Said insurance shall cover comprehensive general
liability including, but not limited to: contractual
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liabili ty; acts of subcontractors; premises-operations;
explosion, collapse and underground hazards, if applicable;
broad form property damage; and personal injury including
libel, slander and false arrest. In addition, the Developer
shall provide to the Agency adequate proof of comprehensive
automobile liability insurance covering owned, non-owned and
hired vehicles, combined single limit in the amount of One
Million Dollars ($1,000,000.00) each occurrence; and proof of
workers' compensation insurance. Any and all insurance
policies required hereunder shall be obtained from insurance
companies admitted in the state of California and rated at
least B+: XII in Best's Insurance Guide. All said insurance
policies shall provide that they may not be canceled unless
the Agency and the City receive written notice of cancellation
at least thirty (30) calendar days prior to the effective date
of cancellation. Any and all insurance obtained by the
Developer hereunder shall be primary to any and all insurance
which the Agency andlor City may otherwise carry, including
self insurance, which for all purposes of this Agreement shall
be separate and apart from the requirements of this Agreement.
Any insurance policies governing the Land as obtained by the
Agency shall not be transferred from the Agency to the
Developer. Appropriate insurance means those insurance
policies approved by the Agency Counsel consistent with the
foregoing. Any and all insurance required hereunder shall be
maintained and kept in force until the Agency has issued the
Certificate of Completion for the Property or the Retail
Parcel, as applicable.
v. The Developer for itself and its
assigns agrees that in the construction of the
the Land provided for in this Agreement, the
not discriminate against any employee or
employment because of sex, marital status,
religion, creed, national origin, or ancestry.
successors and
improvements on
Developer will
applicant for
race, color,
w. The Developer shall carry out its construction of
the improvements on and off the Land in conformity with all
applicable laws, including all applicable federal and state
labor standards and requirements, and acknowledges that it is
required to pay "prevailing wages" under applicable statutes.
The Agency covenants and agrees likewise to meet the
requirements set forth in this Subsection with regard to any
and all construction undertaken by the Agency in accordance
with this Agreement.
x. Before commencement of construction and development
of any buildings, structures or other work or improvements
upon the Land, the Developer shall, at its own expense, secure
or shall cause to be secured, any and all permits which may be
required for such construction, development or work by the
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Ci ty or any other governmental agency having jurisdiction
thereof. The Agency shall cooperate in good faith with the
Developer in the Developer's efforts to obtain from the City
or any other appropriate governmental agency any and all such
permits and, upon completion of applicable portions of the
Project andlor the Retail Parcel, as applicable, certificates
of occupancy.
y. Officers, employees, agents or representatives of
the Agency and the City shall have the right of reasonable
access to the Land, without the payment of charges or fees,
during normal construction hours during the period of
construction of the Project andlor the improvements to the
Retail Parcel, for the purposes of this Agreement including,
but not limited to, the inspection of the work being performed
in constructing the Project andlor the improvements to the
Retail Parcel. Such access and inspection will be undertaken
in such a way as not to unreasonably interfere with
construction and development activities. Such officers,
employees, agents or representatives of the Agency and/or the
Ci ty shall be those persons who are so identified by the
Director. Any and all officers, employees, agents or
representatives of the Agency and the City who enter the
Property, or after conveyance thereof, the Retail Parcel,
pursuant hereto shall identify themselves at the job site
office upon their entrance thereon and shall at all times be
accompanied by a representative of the Developer; provided,
however, that the Developer shall make a representative of the
Developer available for this purpose at all times during
normal construction hours upon reasonable notice from the
Agency. The Agency shall indemnify and hold the Developer
harmless from injury, property damage or liability arising out
of the exercise by the Agency andlor the City of this right of
access, other than injury, property damage or liability
relating to the negligence of the Developer or its officers,
agents or employees.
z. The Agency shall inspect relevant portions of the
construction site prior to issuing any written statements
reflecting adversely on the Developer's compliance with the
terms and conditions of this Agreement pertaining to
construction of the Project andlor the improvements to the
Retail Parcel, as applicable.
aa. The parties have agreed to a budget for the
development and construction of the Project, a copy of which
is attached hereto as Exhibit RJH and incorporated herein by
reference (the "Project Budget"). In the event that the costs
of completing the Project exceed the total amount provided in
the Project Budget, the Developer will contribute the first
Two Hundred Fifty Thousand Dollars ($250,000) of such
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addi tional costs. Excess proj ect costs which exceed said
amount will be paid by the Developer and the Agency in the
ratio that the Developer Contribution bears to the Agency
Contribution. Any sums advanced by the Developer under this
Section 3.01.aa. will be known as the "Additional Developer
Contribution" and any such sums advanced by the Agency shall
be known as the "Additional Agency Contribution". The
Additional Developer Contribution and the Additional Agency
Contribution, once advanced by the respective party, shall
become part of the Developer Contribution or the Agency
Contribution, as applicable, and the Party advancing said
additional contribution shall be entitled to receive the eight
percent (8%) priority return on the Additional Contribution as
is applicable to the original Developer Contribution or Agency
Contribution, and the Additional Developer Contribution and
the Additional Agency Contribution will be similarly reduced
by application of the respective Party's share of Net
Distributable Cash.
bb. Notwithstanding any language in this Agreement to
the contrary, the parties hereto acknowledge and agree that
certain Project costs will be advanced by each of them prior
to the transfer to the Developer of title to the Property, for
the payment of costs necessarily incurred prior to the
transfer (the "Pretransfer Costs"). Neither party shall be
obligated to advance Pretransfer Costs until the final
execution and approval of this Agreement, and the execution
and delivery of a multi-screen theater facility lease between
the Developer and a recognized cinema operator whose identity
is subj ect to the reasonable approval of the Agency. The
Developer will advance the first $150,000 of such Pretransfer
Costs. Thereafter, the Pretransfer Costs will be advanced by
the parties in the ratio that the Developer Contribution bears
to the Agency Contribution, except that the Developer will not
be required, prior to title transfer, to advance Pretransfer
Costs in excess of the amount of the Developer Contribution,
and the Agency will not be required, prior to title transfer,
to advance Pretrans fer Costs which exceed $ 4 00,000.
Pretransfer Costs shall consist only of costs included in the
proj ect Budget and approved by both parties. Any sums
advanced by either party as Pretransfer Costs will be credited
to the Developer Contribution or the Agency Contribution, as
applicable. In the event that, after the advance of any
Pretransfer Costs by either party, the title to the Property
is not transferred to the Developer as provided herein, each
party will bear the loss of Pretransfer Costs advanced by it
and shall not be entitled to any reimbursement by or offset
against the other party, except in the case where the Property
is not transferred due to the default of a party hereunder, in
which case the non-defaulting party shall be entitled, in
addition to any other claims against the defaulting party, to
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recover the Pretransfer Costs advanced by it from the
defaulting party. Providing that the Agency has not committed
a material breach of this Agreement, any plans, designs,
specifications, studies, reports or other work product created
as a result of the advance of Pretransfer Costs by either
party shall be the property of the Agency.
cc. Prior to the transfer to the Developer of title to
the Property, the Developer shall, by the fifth day of each
month, submit to the Agency a draw request, together with
copies of bills, invoices or other evidence reasonably
satisfactory to the Agency, establishing Pretransfer Costs
incurred in the preceding month and a request for that portion
of said Pretransfer Costs which are the responsibility of the
Agency under Section 3.01.bb. above. The Agency and the
Developer shall each pay that portion of the Pretransfer Costs
agreed to be paid by such party in Section 3.0l.bb. above as
set out in each draw request within fifteen (15) days of
receipt of said draw request by the Agency. The Agency may
require, as a condition precedent to its payment of
Pre transfer Costs, reasonable assurances as to the non-
existence or payment of liens against the Project related to
the Pretransfer Costs being paid and of payment to those
persons entitled thereto of any Pretransfer Costs previously
advanced.
dd. The Project Budget will provide for a fee to the
Developer for its services in developing the Proj ect. The
total allocated to such services will not exceed $350,000.
Such fee may be drawn in such amounts and at such times as the
parties may agree, but in all events, Developer shall have the
right to draw upon the fee no later than the issuance of the
Certificate of Occupancy.
ee. The line items set forth in the Project Budget may
be revised, deleted, increased or decreased by the Developer,
with the written consent of the Agency, so as to adjust to
changing circumstances, provided that (i) the total amount of
the Project Budget may not be increased without the written
consent of the Agency and (ii) no increase in the development
fee payable to the Developer may occur. Any cost
reimbursement received from a construction loan or other
source shall be deposited in the Project Account, as defined
below, and utilized for Project costs. Notwithstanding any
language in this Section 3.0l.ee. to the contrary, the Project
Budget may increase up to a maximum of $250,000 without the
consent of the Agency, wi th said increase being paid as
provided in Section 3.0l.aa. above.
gg. If the Project is completed at a total cost of less
than the Project Budget, the amount of savings generated
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thereby will be applied to reduce the principal amount of the
permanent financing which is secured by the first trust deed.
hh. Upon transfer of title to the Property to the
Developer, the Developer shall place the Developer
contribution in an account opened with the holder of the first
trust deed or other responsible financial institution
acceptable to the parties (the "Project Account"). At such
time, the Agency will likewise deposit the proceeds of the
Agency Loan and the Agency Contribution in the Project
Account. Deposit of the Agency Loan is subj ect to federal
regulations. The Agency will receive a credit to the Agency
Contribution in the amount of any Pretransfer Costs advanced
by the Agency. Disbursements will be made from the Project
Account by the holder thereof in accordance with the Project
Budget and instructions on which the parties shall agree, and
in accordance with subsection 3.0l.bb. above.
ii. The Agency agrees that it will enter into a license
agreement, on terms acceptable to the parties, which will
permit the Developer access to those portions of the Land not
conveyed to the Developer, as is reasonable given the use and
condi tion of such portions at the time, or to such areas
thereof as are available, with such access for the purposes of
facilitating grading and development of the Property conveyed
to the Developer.
Section 3.02. Responsibilities of the Aaencv.
a. The Agency, without any expense of the Developer
therefor and without the creation of assessments or claims
against the Land as a result thereof, shall perform the work
specified for the Agency to perform and shall assume the other
obligations imposed on the Agency as set forth in the Scope of
Development.
b. The Agency will, at Agency expense, cause the
preparation of a Phase I environmental assessment of the Land,
and will provide the Developer with a copy of same. The
Agency, at Agency expense, will undertake such remediation of
any environmental condition discovered on the Land in such a
way and to the extent necessary to receive approval thereof by
any governmental agency having jurisdiction thereof. The
Agency reserves the right to withdraw from this Agreement and
terminate all of its obligations hereunder if it determines in
its sole discretion that the cost of remediation is excessive
or that any environmental condition precludes the effective
development of the Project and/or the Retail Parcel as
contemplated in this Agreement. The Agency agrees that it will
cause the engineerlconsultant who prepares any environmental
assessment of the Property and/or the Retail Parcel to issue
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its certification in the name of both the Agency and the
Developer. Any incremental cost associated with naming the
Developer in such certification shall be at the expense of the
Developer, except that the Developer shall have the option of
choosing not to be named in the Certification if it so elects,
in which case it shall bear no responsibility for the costs of
any such assessment.
c. The Agency agrees that it will provide approximately
1,700 non-exclusive peak hour parking spaces for the use of
patrons and employees of tenants of the Project and the Retail
Parcel. The parties agree that they will enter into an
agreement setting forth the terms and conditions pertaining to
such parking (the "Parking AgreementH), which will include,
among other things, provisions as follows: (i) parking will be
free to the patrons and employees of tenants of the Project
and the Retail Parcel, or may be validated, as applicable;
(ii) the tenants of the Project and the Retail Parcel will pay
to the Developer, and the Developer will pay to the Agency, an
annual charge for parking, calculated on the square footage of
completed improvements occupied by each tenant at the rate of
$.75 per square foot, with annual increases equivalent to
increases in the Consumer Price Index; (iii) the parking
spaces provided by the Agency may include public curbside
parking; (iv) parking will be off-site and within a radius of
1,600 feet from the center point of the Land; (v) the Agency
obligation under this Section 3.02. c. as to duration and
location shall be as further defined in the Parking Agreement,
except that the number of parking spaces to be provided is
subject to reasonable reduction if the use of the Property
andlor the Retail Parcel changes so as to require less parking
under applicable City codes; (vi) the Agency may substitute
alternative parking for the parking originally specified in
the Parking Agreement, providing the alternative parking is
wi thin the radius from the center point of the Land as
provided above; and (vii) the Agency obligation under the
Parking Agreement shall be relieved, at the Agency's option,
as to any tenant of the Project or Retail Parcel which is
engaged in any business related to sexually oriented adult
only entertainment, or any business which is not in accordance
with applicable City codes.
Section 3.03. Taxes, Assessments,
Liens.
Encumbrances and
The Developer shall pay prior to delinquency all real
property taxes and assessments assessed and levied on or against
the Property andlor the Retail Parcel subsequent to the close of
the escrow and the conveyance to the Developer of title to the
Property or the Retail Parcel, as applicable, hereunder. The
Developer shall not place and shall not allow to be placed on the
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Property or the Retail Parcel any mortgage, trust deed, deed of
trust, encumbrance or lien not otherwise authorized by this
Agreement. The Developer shall remove, or shall have removed, any
levy or attachment made on the Property or the Retail Parcel, or
shall assure the satisfaction thereof, within a reasonable time but
in any event prior to a sale thereof. Nothing herein contained
shall be deemed to prohibit the Developer from contesting the
validity or amounts of any tax assessment, encumbrance or lien, nor
to limit the remedies available to the Developer in respect
thereto. The covenants of the Developer set forth in this Section
relating to the placement of any unauthorized mortgage, trust deed,
deed of trust, encumbrance or lien, shall remain in effect only
until all Certificates of Completion have been recorded with
respect to the Property or the Retail Parcel, as applicable.
Section 3.04. In Lieu Tax PaYments/Tax Aooeals.
In the event the Developer fails to develop the Property
andlor the Retail Parcel in accordance with the terms and
provisions of this Agreement, and in the time provided and in the
further event that such failure is not excused under the terms of
this Agreement, the Developer shall pay to the Agency an in lieu
tax payment in the amount equal to the tax increment which the
Agency would have received on the Proj ect, and I or the Retail
Parcel, as applicable, had the Project and/or the Retail Parcel
been constructed as agreed herein. Said payment shall be made for
each tax year during which the Project andlor the Retail Parcel is
not completed in violation of this Agreement, or any portion of
such year, and shall be paid to the Agency at the same time as
other regularly assessed property taxes on the Property andlor the
Retail Parcel are due. Neither the Developer nor its successors or
assigns shall institute, file or participate in any property tax
assessed valuation appeals or challenges related to the Property
andlor the Retail Parcel or any portion thereof without the prior
written consent of the Agency. Notwithstanding anything herein to
the contrary, this paragraph shall only apply to those portions of
the Land which Developer takes fee title to.
Section 3.05. Prohibition Aaainst Transfer.
a. Prior to the recordation of all Certificates of
Completion with respect to the Property and I or the Retail
Parcel, as applicable, as set forth in Section 3.09 of this
Agreement, the Developer shall not, without prior written
approval of the Agency, or except as permitted by this
Agreement, (i) assign or attempt to assign this Agreement or
any right herein or (ii) make any total or partial sale,
transfer, conveyance, lease, leaseback, or assignment of the
whole or any part of the Property and/or the Retail Parcel, as
applicable, or the improvements thereon. This prohibition
shall not apply to any of the following: (i) the reasonable
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grant of limited easements or permits to facilitate the
development of the Property andlor the Retail Parcel, as
applicable; or (ii) leases, other than ground leases, to
prospective tenants whose use of the Property andlor the
Retail Parcel, as applicable, is in conformity with the
Community Redevelopment Law and all applicable zoning laws or
ordinances.
b. It is understood and agreed by the Developer that
nei ther the Developer, nor its assigns or successors in
interest to the Property or the Retail Parcel or this
Agreement, shall use or otherwise sell, transfer, convey,
assign, lease, leaseback or hypothecate the Property or the
Retail Parcel or any portion of either to any entity or party,
or for any use of the Property or the Retail Parcel, that is
partially or wholly exempt from the payment of real property
taxes pertinent to the Property or the Retail Parcel, or any
portion thereof, or which would cause the exemption of the
payment of all or any portion of such real property taxes.
c. In the absence of specific written agreement or
approval by the Agency, no unauthorized sale, transfer,
conveyance, lease, leaseback or assignment of the Property or
the Retail Parcel shall be deemed to relieve the Developer or
any other party from any obligations under this Agreement.
d. With respect to the Retail Parcel, the Agency will
permit the transfer of the Developer's rights hereunder prior
to the recordation of a Certificate of Completion with respect
to said parcel, on the condition that: Ii) the proposed
transferee has the demonstrated ability, experience and
financial resources to complete the development of the Retail
Parcel under the terms of this Agreement; (ii) the Developer
is not in material default of any provision of this Agreement
or any exhibit hereto; and (iii) the proposed transferee
assumes in writing all of the obligations of the Developer
with respect to the Retail Parcel under this Agreement or any
exhibits hereto, as well as the deed of trust in favor the
Agency recorded against the Retail Parcel.
Section 3.06. Riaht of First Offer.
a. The rights provided for under this Section 3.06 may
not be exercised by the Developer until three (3) years have
expired following the issuance of a Certificate of Completion
covering the Project, and until said period has elapsed, the
Developer may not sell the Project. At any time thereafter,
if the Developer desires to sell the Project, and prior to
listing the Project for sale with a broker, the Developer
shall first give a Sale Notice to the Agency which Sale Notice
shall include the price and other material terms and
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condi tions on which the Proj ect would be sold. The Sale
Notice shall provide that the purchase price shall be payable
by cash consideration rather than for property or any other
asset. It may, however, provide that the sale of the Project
shall be subject to, or with the buyer assuming, the existing
First Trust Deed financing and the Agency Loan.
b. The Agency shall have thirty (30) days from receipt
of the Sale Notice to give a Purchase Notice to the Developer
stating that the Agency shall purchase the interest of the
Developer at the Interest Sale Price. The Interest Sale Price
means the net amount that would be received by the Developer
for its interest in the Project if the Project were sold to an
outside third party at the Sale Notice price and terms and the
proceeds of sale were distributed to the Developer and the
Agency in accordance with the terms and provisions of this
Agreement. The Purchase Notice shall (i) not be effective
unless it is accompanied by a deposit ("Deposit") of three
percent (3%) of the Interest Sale Price, and (ii) state a
closing date ("Closing Date") of the sale and purchase of the
Developer's interest, which shall be not less than ten (10)
days nor more than sixty (60) days from the date of the
Purchase Notice. On or before the Closing Date set forth in
the Purchase Notice, the Developer shall execute all documents
and make all payments required to transfer the Developer's
interest to the Agency upon the terms and provisions set forth
in the Sale Notice and Purchase Notice.
c. If the Agency does not give the Developer a Purchase
Notice within the thirty (30) day period set forth in
Section 3.06. b. above, or fails to close the escrow as
specified, then the Developer may cause the Project to be sold
at any time within two hundred seventy (270) days after the
expiration of the thirty (30) day period referred to above, or
after the Closing Date (as applicable) at a sale price which
is not less than ninety-five percent (95%) of the price stated
in the Sale Notice and on other terms which are not more
favorable to the buyer than the terms proposed in the Sale
Notice. Any such sale must provide for payment in full to the
Agency of all the sums owed to it with respect to the Agency
Contribution, unless the Agency agrees otherwise in writing,
and at its sole discretion. If the sale of the Project is
consummated within said two hundred seventy (270) day period,
then the Agency shall execute all documents necessary or
desirable in order to evidence or document the sale of the
Project. In connection with the Developer's efforts to sell
the Project on the terms and conditions set forth herein, the
Developer may cause the Project to be marketed for sale with
a licensed reputable real estate broker at the price and on
the terms and conditions set forth in the Sale Notice. The
proceeds of the sale of the Project after deduction of all
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brokerage commissions, sales expenses and liabilities, shall
be distributed promptly to the Agency and the Developer in
accordance with the terms and provisions of this Agreement
relating to the sale of the Project. In determining whether
the terms of a sale to a third party are more favorable than
the terms set forth in the Sale Notice, the Developer shall
take into account the fact that no commission would be payable
on a sale to the Agency, resulting in a lower cost of sale and
a higher distribution to the Developer. If the sale of the
Project is not consummated within said two hundred seventy
(270) day period on the terms and conditions set forth herein,
then the Developer shall no longer have the right to cause the
Agency to agree to the sale of the Project pursuant to this
Section 3.06 and shall further be precluded from delivering a
Sale Notice to the Agency for a period of one (1) year
following the expiration of said two hundred seventy (270) day
period.
d. The Agency's purchase of the Developer's interest
shall be on reasonable terms and conditions as is customary in
transactions of a similar nature, including, without
limitation, title review, environmental issues, and the like.
e. This Right of First Offer shall run with the land
and be binding on all successors or assigns of the Developer,
unless and until the Agency Contribution has been paid in
full, at which time the Right of First Offer shall terminate.
Section 3.07. Securitv Financina: Riaht of Holders.
a. Notwithstanding any provision set forth in
Section 3.08 hereof to the contrary, mortgages, deeds of
trust, or any other form of lien required for any reasonable
method of financing are permitted against either the Property
or the Retail Parcel before the recordation of the Certificate
of Completion (referred to in Section 3.09 of this Agreement),
but only for the purpose of securing loans of funds to be used
for expenditures necessary and appropriate to develop the
Property and/or the Retail Parcel, as applicable, under this
Agreement. The Developer shall notify the Agency in writing
in advance of any mortgage, deed of trust, or other form of
lien for financing if the Developer proposes to enter into the
same before the recordation of the Certificate of Completion.
The Developer shall not enter into any such conveyance for
financing without prior written approval of the Agency, which
approval the Agency agrees to grant if any such conveyance is
given to a responsible financial or lending institution
including, without limitation, banks, savings and loan
institutions, insurance companies, real estate investment
trusts, pension programs and the like, or other acceptable
persons or entities. Such lender shall be deemed approved
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unless rej ected in writing by the Agency wi thin seven (7)
calendar days following its receipt of notice from the
Developer, subject to written extension or shortening of time
signed by both parties. Any lender approved by the Agency
pursuant to this Section shall not be bound by any amendment,
implementation agreement or modification to this Agreement
occurring after recordation of said lender's lien.
b. In any event, the Developer shall promptly notify
the Agency of any mortgage, deed of trust or other
refinancing, encumbrance or lien on either the Property or the
Retail Parcel that has been created or attached thereto prior
to recordation of the Certificate of Completion on the
Property or the Retail Parcel, as applicable, whether by
voluntary act of the Developer or otherwise; provided,
however, that no notice of filing of preliminary notices or
mechanic's liens need be given by the Developer to the Agency
prior to suit being filed to foreclose such mechanic's lien.
c. The words "mortgage" and "deed of trust" as used
herein shall be deemed to include all other customary and
appropriate modes of financing real estate acquisition,
construction and land development. The Agency agrees to make
such amendments regarding the rights of any lender as the
approved lender shall reasonably require.
d. The holder of any mortgage, deed of trust or other
security interest authorized by this Agreement shall in no
manner be obligated by the provisions of this Agreement to
construct or complete the improvements or to guaranty such
construction or completion; nor shall any covenant or any
other provision in the grant deed for the Property or the
Retail Parcel be construed so to obligate such holder.
Nothing in this Agreement shall be deemed to permit or
authorize any such holder to devote the Property or the Retail
Parcel to any uses, or to construct any improvements thereon,
other than those uses or improvements provided for or
authorized by this Agreement.
e. Whenever the Agency shall deliver any notice or
demand to the Developer with respect to any breach or default
by the Developer in the completion of construction of the
improvements, or any breach or defaul t of any other
obligations which might entitle the Agency to terminate this
Agreement or exercise its right to re-enter under Section 5.07
hereof, the Agency shall at the same time deliver to each
holder of record of any mortgage, deed of trust or other
security interest authorized by this Agreement a copy of such
notice or demand. Each such holder shall (insofar as the
rights of the Agency are concerned) have the right, at its
option, to commence the cure or remedy of any such default and
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to diligently and continuously proceed with such cure or
remedy, within ninety (90) calendar days after the receipt of
the notice; and to add the cost thereof to the security
interest debt and the lien of its security interest. If such
default shall be a default which can only be remedied or cured
by such holder upon obtaining possession, such holder shall
seek to obtain possession with diligence and continuity
through a receiver or otherwise, and shall remedy or cure such
default within sixty (60) calendar days after obtaining
possession; provided that in the case of a default which
cannot with diligence be remedied or cured, or the remedy or
cure of which cannot be commenced, within such sixty (60)
calendar day period, such holder shall have such additional
time as is reasonably necessary to remedy or cure such default
of the Developer. Nothing contained in this Agreement shall
be deemed to permit or authorize such holder to undertake or
continue the construction or completion of the improvements
(beyond the extent necessary to conserve or protect the
improvements or construction already made) without first
having expressly assumed the Developer's obligations by
written agreement satisfactory to the Agency. 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
such holder relates and must submit evidence satisfactory to
the Agency that it has the qualifications and financial
responsibili ty necessary to perform such obligations. Any
such holder completing such improvements in accordance
herewith shall be entitled, upon written request made to the
Agency, to be issued a Certi ficate of Completion by the
Agency.
f. In any case where, one hundred twenty (120) calendar
days after default by the Developer in the completion of
construction of improvements under this Agreement, the holder
of any mortgage, deed of trust or other security interest
creating a lien or encumbrance upon the Property andlor the
Retail Parcel or any portion thereof has not exercised the
option to construct the applicable portions of the Project or
the improvements on the Retail Parcel, or has exercised the
option but has not proceeded diligently and continuously with
construction, the Agency may purchase the mortgage, deed of
trust or other security interest by payment to the holder of
the amount of the unpaid debt, including principal, accrued
and unpaid interest, late charges, costs, expenses and other
amounts payable to the holder by the Developer under the loan
documents between holder and the Developer. If the ownership
of the Property and/or the Retail Parcel, as applicable, 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:
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1. The unpaid mortgage, deed of trust or other
security interest debt, including principal,
accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by
the Developer under the loan documents between the
holder and the Developer, 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.)
2. All expenses, if any, incurred by the holder with
respect to foreclosure.
3. The net expenses, if any (exclusive of general
overhead) , incurred by the holder as a direct
result of the subsequent ownership or management of
the Property andlor the Retail Parcel, as
applicable, such as insurance premiums and real
estate taxes.
4. The cost of any improvements made by such holder.
5. An amount equivalent to the interest that would
have accrued on the aggregate on 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.
6. After expiration of the aforesaid one hundred
twenty (120) calendar day period, the holder of any
mortgage, deed of trust or other security affected
by the option created by this Section, may demand,
in writing, that the Agency act pursuant to the
option granted in Section 3.07. f. If the Agency
fails to exercise the right therein granted within
ninety (90) calendar days from the date of such
written demand, the Agency shall be conclusively
deemed to have waived such right of purchase of the
applicable portion of the Property and/or the
Retail Parcel or the mortgage, deed of trust or
other security interest.
g. In the event of a default or breach by the Developer
of a mortgage, deed of trust or other security interest with
respect to the Property andlor the Retail Parcel (or any
portion thereof) prior to the issuance of a Certificate of
Completion for the applicable portion or portions of the
Property and/or the Retail Parcel, and the holder has not
exercised its option to complete the development, the Agency
may cure the default prior to completion of any foreclosure.
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In such event, the Agency shall be entitled to reimbursement
from the Developer of all costs and expenses incurred by the
Agency in curing the default. The Agency shall also be deemed
to have a lien upon the Property and/or the Retail Parcel, as
applicable (or any portion thereof) to the extent of such
costs and disbursements. Any such lien shall be subordinate
and subject to mortgages, deeds of trust or other security
instruments executed for the sole purpose of obtaining funds
to develop the Property andlor the Retail Parcel, as
applicable, as authorized herein.
h. I f any lender making a loan to the Developer, in
accordance with the terms of this Agreement, shall request
changes to the provisions of this Section 3.07 which do not
substantially affect the Agency's rights hereunder, the Agency
agrees that it will make reasonable modifications hereof.
Section 3.08.
Riaht of
Liens on
Title.
the Aaencv to
the Land after
Satisfy Other
Conveyance of
After the conveyance of title to the Property andlor the
Retail Parcel, as applicable, by the Agency to the Developer and
prior to the recordation of the Certificate of Completion (referred
to in Section 3.09 of this Agreement), and after the Developer has
had a reasonable time to challenge, cure or satisfy any
unauthorized liens or encumbrances on the Property and/or the
Retail Parcel, as applicable, the Agency shall after sixty (60)
calendar days prior written notice to the Developer have the right
to satisfy any such liens or encumbrances; provided, however, that
nothing in this Agreement shall require the Developer to payor
make provisions for the payment of any tax, assessment, lien or
charge so long as the Developer in good faith shall contest the
validity or amount thereof, and so long as such delay in payment
shall not SUbject the Property or the Retail Parcel, or any portion
thereof, to forfeiture or sale.
Section 3.09. Certificate of ComDletion.
a. Following the written request therefor by the
Developer and the completion of construction and development
of the improvements, excluding any normal and customary tenant
improvements and reasonable building "punch-list" items, to be
completed by the Developer for the proj ect or the Retail
Parcel, the Agency shall furnish the Developer with a
Certificate of Completion for the Project or the Retail
Parcel, as is applicable, substantially in the form in Exhibit
"I" attached hereto. Notwithstanding any provision set forth
herein to the contrary, the completion of construction and
development of improvements for the Project or the Retail
Parcel, as applicable, shall be deemed to include the
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completion of
buildings and
improvements
requirements
occupancy for
construction and development of any and all
any and all parking, landscaping and related
necessary to support or which meet the
applicable to the building and its use and
the Project or the Retail Parcel, as applicable.
b. The Agency shall not unreasonably withhold the
issuance of either such Certificate of Completion. The
Certificate of Completion shall be, and shall state that it
is, a conclusive determination of satisfactory completion of
all of the obligations of this Agreement with respect to the
development of the Project or the Retail Parcel, as
applicable. After the recordation of the Certificate of
Completion, any party then owning or thereafter purchasing,
leasing or otherwise acquiring any interest in the Project or
the Retail Parcel, as applicable, shall not (because of such
ownership, purchase, lease or acquisition) incur any
obligation or liability under this Agreement, except that such
party shall be bound by any covenants contained in the grant
deed, lease or other instrument of transfer which grant deed,
lease or other instrument of transfer shall include the
provisions of Section 4.01 through 4.05, inclusive, of this
Agreement. Neither the Agency nor any other person, after the
recordation of the Certificate of Completion, shall have any
rights remedies or controls that it would otherwise have or be
entitled to exercise under this Agreement with respect to the
Project or the Retail Parcel, as applicable, as a result of a
default in or breach of any provision of this Agreement, and
the respective rights and obligations of the parties shall be
limited to those set forth in the grant deed.
c. The Certificates of Completion shall be in such form
as to permit them to be recorded in the Recorder's Office of
the County where the Property is located.
d. If the Agency refuses or fails to furnish a
Certificate of Completion for either the Project or the Retail
Parcel after written request from the Developer, the Agency
shall, within fifteen (15) calendar days of the written
request or wi thin three (3) calendar days after the next
regular meeting of the Agency, whichever date occurs later,
provide to the Developer a written statement setting forth the
reasons with respect to the Agency's refusal or failure to
furnish a Certificate of Completion. The statement shall also
contain the Agency's opinion of the action the Developer must
take to obtain a Certificate of Completion. If the reason for
such refusal is confined to the immediate unavailability of
specific items or materials for construction or landscaping at
a price reasonably acceptable to the Developer or other
reasonable building "punch-list" items, the Agency will issue
its Certificate of Completion upon the posting of a bond or
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irrevocable letter of credit, reasonably approved as to form
and substance by the Agency Counsel and obtained by the
Developer in an amount representing a fair value of the work
not yet completed as reasonably determined by the Agency. If
the Agency shall have failed to provide such written statement
within the foregoing period, the Developer shall be deemed
conclusively and without further action of the Agency to have
satisfied the requirements of this Agreement with respect to
the applicable portion of the Property as if a Certificate of
Completion had been issued therefor. Notwithstanding any
language in this Agreement or in a Certificate of Completion
to the contrary, the issuance of a Certificate of Completion
does not relieve the Developer from the obligation to
complete, free of liens against the Property or the Retail
Parcel, as applicable, any such remaining works of
improvement.
e. Such Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation
of the Developer to any holder of a mortgage, or any insurer
of a mortgage securing money loaned to finance the
improvements described herein, or any part thereof. Such
Certificate of Completion shall not be deemed to constitute a
notice of completion as referred to in Section 3093 of the
California Civil Code, nor shall it act to terminate the
continuing covenants or conditions subsequent contained in the
Grant Deed attached hereto as Exhibit "GH.
f. As a condition precedent to the issuance of any
Certificate of Completion, the Developer will create
conditions, covenants and restrictions ("CCR'sH) which will be
recorded against the Property andlor the Retail Parcel, as
applicable, and run with the land, requiring the owner of each
parcel of the Property and/or the Retail Parcel, as
applicable, to maintain its portion thereof. The CCR's will
be subject to the reasonable prior written approval of the
Agency, and will designate the City and the Agency as third
party beneficiaries of the CCR' s. The CCR's shall provide
that the Developer and its successors and assigns shall
maintain in good condition the improvements on the Property
and/or the Retail Parcel, as applicable, shall keep the
Property and/or the Retail Parcel, as applicable, free from
any accumulation of debris or waste material, subject to
normal construction jOb-site conditions, and shall maintain in
a neat, orderly, healthy and good condition the landscaping
required to be planted in accordance with the Scope of
Development. In the event the Developer, or its successors or
assigns, fails to perform the maintenance as required herein,
the Agency andlor the City shall have the right, but not the
obligation, to enter the Property andlor the Retail Parcel, as
applicable, and undertake such maintenance acti vi ties. In
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such event, the Developer
city for all reasonable
maintenance activities.
shall reimburse the Agency andlor
sums incurred by it for such
ARTICLE IV
USE OF THE LAND
Section 4.01. ~.
The Developer covenants and agrees for itself, its
successors, assigns, and every successor in interest to the
Property, or any part thereof, that upon completion of
construction, Developer shall lease to tenants and the tenants
shall cause to be opened on the Theater Parcel a fully fixtured
multi screen cinema complex and related common areas.
The Developer covenants and agrees for itself, its
successors, assigns and every successor in interest to the Retail
Parcel, or any part thereof, that it will develop the Retail Parcel
for commercial uses as provided in this Agreement, and will, upon
completion of the improvements thereon, lease to tenants who shall
operate retail businesses consistent with this Agreement.
It is understood and agreed by the Developer that neither
the Developer, nor its assigns or successors in interest to the
Property andlor the Retail Parcel, or any portion thereof, or this
Agreement, shall use or otherwise sell, transfer, convey, assign,
lease, leaseback or hypothecate any portion thereof to any entity
or party, or for any use of the Property andlor the Retail Parcel,
that is partially or wholly exempt from the payment of real
property taxes pertinent thereto, or which would cause the
exemption of the payment of all or any portion of such real
property taxes.
Section 4.02. Reserved.
Section 4.03. Obliaation to Refrain from Discrimination.
The Developer covenants and agrees for itself, its
successors, its assigns and every successor in interest to the
Property or the Retail Parcel, as applicable, or any part 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 or the Retail Parcel, as applicable; nor
shall the Developer, itself or any person claiming under or through
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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,
sublessee or vendees of the Property or the Retail Parcel, as
applicable.
Section 4.04. Form of Nondiscrimination and
Nonseoreoation Clauses.
The Developer covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Property or the Retail Parcel, as applicable, or any part thereof,
that the Developer, such successors and such assigns shall refrain
from restricting the sale, lease, sublease, rental, transfer, use,
occupancy, tenure or enjoyment of the Property or the Retail
Parcel, as applicable (or any part thereof) on the basis of sex,
marital status, race, color, religion, creed, ancestry or national
origin of any person. All deeds, leases or contracts pertaining
thereto shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for
itself, its successors 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,
national origin, or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed, nor shall the grantee 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, sublessee, or vendees in the premises
herein conveyed. The foregoing covenants shall run with the
land. "
b. In leases: "The Lessee herein covenants by and for
itself, its successors and assigns, and all persons claiming
under or through them, and this lease is made and accepted
upon and subj ect to the following conditions: 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, national origin, or ancestry,
in the leasing, subleasing, transferring, use, occupancy,
tenure, or enjoyment of the premises herein leased nor shall
the lessee 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,
sublessee, subtenants, or vendees in the premises herein
leased."
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c. In contracts: "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,
national origin, or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed or leased, nor shall the transferee or any
person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation
wi th reference to the selection, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or
vendees of the premises herein transferred." The foregoing
provision shall be binding upon and shall obligate the
contracting party or parties and any subcontracting party or
parties, or other transferees under the instrument.
Section 4.05. Effect and Duration of Covenants.
The covenants established against discrimination shall
remain in effect in perpetuity. The covenants respecting uses of
the Property and/or the Retail Parcel shall remain in effect for a
period of ten (10) years from the date of execution of this
Agreement, shall run with the land and shall constitute equitable
servitudes thereon, and shall, without regard to technical
classification and designation, be binding for the benefit and in
favor of the Agency, its successors and assigns, and the City.
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 rights and for the purposes of protecting
the interests of the community. The Agency shall have the right,
if such covenants are breached, to exercise all rights and remedies
and to maintain any actions or suits at law or in equity or such
other proper proceedings to enforce the curing of such breaches to
which it or any other beneficiary of such covenants may be
entitled, including, without limitation, to specific performance,
damages and injunctive relief. The Agency shall have the right to
assign all of its rights and benefits hereunder to the City.
ARTICLE V
DEFAULTS. REMEDIES AND TERMINATION
Section 5.01. Defaults - General.
a. Subj ect to the extensions 0 f time set forth in
Section 6.05 hereof, failure or unexcused delay by either
party to perform any term or provision of this Agreement shall
constitute a default under this Agreement; provided, however,
that if a party otherwise in default commences to cure,
correct or remedy such defaul t wi thin thirty (30) calendar
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days after receipt of written notice specifying such default
and shall diligently and continuously prosecute such cure,
correction or remedy to completion (and where any time limits
for the completion of such cure, correction or remedy are
specifically set forth in this Agreement, then wi thin said
time limits), such party shall not be deemed to be in default
hereunder.
b. The injured party shall give written notice of
default to the party in default, specifying the default
complained of by the nondefaulting party. Delay in giving
such notice shall not constitute a waiver of any default nor
shall it change the time of default.
c. Any failure 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. Delays by either party in asserting any of its
rights and remedies shall not deprive either 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.
Section 5.02. LeGal Actions.
a. In addition to any other rights or remedies, either
party may institute legal action to cure, correct or remedy
any default, to recover damages for any default, or to obtain
any other remedy consistent with the purposes of this
Agreement. Such legal actions must be instituted in the
Superior Court of the County of San Bernardino, State of
California, in any other appropriate court in that County, or
in the Federal District Court in the Eastern District of
California.
b. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
c. In the event that any legal action is commenced by
the Developer against the Agency, service of process on the
Agency shall be made by personal service upon the Director or
Chairman of the Agency, or in such other manner as may be
provided by law.
d. In the event that any legal action is commenced by
the Agency against the Developer, service of process shall be
by personal service on the Developer (or such other Agent for
service of process and at such address as may be specified in
written notice to the Agency), or in such other manner as may
be provided by law, and shall be valid whether made within or
without the State of California.
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Section 5.03. Riahts and Remedies are Cumulative.
Except with respect to any rights and remedies expressly
declared to be exclusive 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.
Section 5.04. Damaaes.
If either party defaults with regard to any provision of
this Agreement, the nondefaulting party shall serve written notice
of such default upon the defaulting party. If the defaulting party
does not diligently commence to cure such default within thirty
(30) calendar days after service of the notice of default and
promptly complete the cure of such default within a reasonable
time, not to exceed ninety (90) calendar days (or such shorter
period as may otherwise be specified in this Agreement for any
specific default), after the service of written notice of such
default, the defaulting party shall be liable to the other party
for damages caused by such default.
Section 5.05. Soecific Performance.
If either party defaults under any of the provisions of
this Agreement, the nondefaulting party shall serve written notice
of such default upon such defaulting party. If the defaulting
party does not commence to cure the default and diligently and
con tinuously proceed wi th such cure wi thin thirty (30) calendar
days after service of the notice of default, and such default is
not cured within a reasonable time thereafter (and where any time
limits for the completion of such cure, correction or remedy are
specifically set forth in this Agreement, then within said time
limits), the nondefaulting party, at its option, may institute an
action for specific performance of the terms of this Agreement,
except as otherwise provided in Section 5.04 hereof.
Section 5.06. Riahts and Remedies of Termination.
a. Termination bv the Developer.
The Developer may terminate this Agreement as to the
Property andlor the Retail Parcel, as applicable, if the Agency
does not tender conveyance of title to and possession of the
Property andlor the Retail Parcel, as applicable, to the Developer
in the manner and condition and by the date provided in this
Agreement (or any and all extensions thereof as authorized by this
Agreement), and if any such failure is not cured within thirty (30)
calendar days after written demand therefor submitted by the
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Developer to the Agency. Such written demand shall specify the
Agency's default and the action required to cure same. The
Developer may also terminate this Agreement as to the Property
and/or the Retail Parcel, as applicable, if one or more of the
conditions set forth in Section 2.l0.b. of this Agreement as to the
Property and/or Section 2.10. c. as to the Retail Parcel, as
applicable, have not been satisfied or otherwise waived by the
Developer by the date set for Close of Escrow, such termination to
be effective thirty (30) calendar days after receipt by Agency of
wri tten notice from the Developer specifying the one or more
conditions set forth in Section 2.l0.b. or 2.l0.c., as applicable,
which have not been satisfied or waived by Developer.
b. Termination bv the Agencv.
1. Notwithstanding any provision set forth in this
Agreement to the contrary, upon written notice of
default which shall specify the Developer's default
and the action required to cure same and upon
thirty (30) calendar days notice to the Developer
of the Agency's intent to terminate this Agreement
pursuant to this Section as to the Property andlor
the Retail Parcel, as applicable, the Agency at its
option may terminate this Agreement if following
satisfaction of all conditions precedent for
conveyance of the Property andlor the Retail
Parcel, as applicable, by the Agency to the
Developer and at the time the Developer is required
to deposit into escrow any funds required by this
Agreement to be deposited by the Developer, the
Developer fails to deposit such funds.
2. Subj ect to written notice of default which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement pursuant to this
Section, the Agency at its option may terminate
this Agreement if the Developer, in breach of this
Agreement, assigns or attempts to assign this
Agreement, or any right therein, or attempts to
make any total or partial sale, lease or leaseback,
transfer or conveyance of the whole or any part of
the Property and/or the Retail Parcel or the
improvements to be developed thereon in violation
of the terms of this Agreement, and the Developer
does not correct such violation within thirty (30)
calendar days from the date of receipt of such
notice.
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3. Subject to written notice of default, which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement as to either the
Property andlor the Retail Parcel, or both, as
applicable, pursuant to this Section, the Agency at
its option may terminate this Agreement if the
Developer: (a) does not within the time limits set
forth in this Agreement or as specifically provided
in the Schedule of Performance, subject to
extensions authorized by this Agreement due to
force majeure or otherwise, submit development
plans, construction drawings and related documents
acceptable to the Planning Department and Building
Division of the City for plan check purposes and in
order to obtain building permits for the Project
andlor the Retail Parcel, as applicable , together
with applicable fees therefor, all prepared to the
minimum acceptable standards as required by the
Planning Department and Building Division of the
Ci ty for commencement of formal review of such
documents and as required by this Agreement, or (b)
does not carry out its other responsibilities under
this Agreement or in accordance with any
modification or variance, precise plan, design
review and other environmental or governmental
approvals and such default is not cured or the
Developer does not commence and diligently and
continuously proceed with such cure within thirty
(30) calendar days after the date of receipt of
written demand therefor from the Agency.
4. Subject to written notice of default which shall
specify the Developer's default and the action
required to cure same and upon thirty (30) calendar
days notice to the Developer of the Agency's intent
to terminate this Agreement pursuant to this
Section, the Agency at its option may terminate
this Agreement as to either the Property or the
Retail Parcel, or both, as applicable, if upon
satisfaction of all conditions precedent and
concurrent therefor under this Agreement, the
Developer does not take title to the Property or
the Retail Parcel, as applicable, under tender of
conveyance by the Agency, and such breach is not
cured within thirty (30) calendar days after the
date of receipt by the Developer of written demand
therefor from the Agency.
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section 5.07. Riaht to Reenter. Reoossess. Terminate and
Revest.
a. The Agency shall, upon thirty (30) calendar days
notice to the Developer, which notice shall specify this
Section, have the right, at its option, to re-enter and take
possession of all or any portion of the Property andlor the
Retail Parcel, as applicable, together with all improvements
thereon, and to terminate and revest in the Agency the estate
conveyed to the Developer hereunder, if after conveyance of
title, the Developer (or its successors in interest) shall:
1. Fail to commence construction of all or any portion
of the improvements as required by this Agreement
for a period of ninety (90) calendar days after
written notice to proceed from the Agency; provided
that the Developer shall not have obtained an
extension or postponement to which the Developer
may be entitled pursuant to Section 6.05 hereof; or
2. Abandon or substantially suspend construction of
all or any portion of the improvements for a period
of ninety (90) calendar days after written notice
of such abandonment or suspension from the Agency;
provided that the Developer shall not have obtained
an extension or postponement to which the Developer
may be entitled to pursuant to Section 6.05 hereof;
or
3. Assign or attempt to assign this Agreement, or any
rights herein, or transfer, or suffer any
involuntary transfer, of the Property andlor the
Retail Parcel, as applicable, or any part thereof,
in violation of this Agreement, and such violation
shall not have been cured within thirty (30)
calendar days after the date of receipt of written
notice thereof from the Agency to the Developer.
4. Fail to pay the in lieu tax, if applicable, as
provided in Section 3.04 hereof.
5. Trans fer ti tie to the Property and/or the Retail
Parcel to a tax exempt entity, or otherwise violate
Section 3.G5.b. hereof.
b. The thirty (30) calendar day written notice
specified in this Section shall specify that the Agency
proposes to take action pursuant to this Section and shall
specify which of the Developer's obligations set forth in
Section 5.07.a. 1. through 5. have been breached. The Agency
shall proceed with its remedy set forth herein only in the
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event that the Developer continues in default of
obligation(s) for a period of thirty (30) calendar
following such notice or, upon commencing to cure
default, fails to diligently and continuously prosecute
cure to satisfactory conclusion.
said
days
such
said
c. The right of the Agency to reenter, repossess,
terminate, and revest shall be subject and subordinate to,
shall be limited by and shall not defeat, render invalid or
limit:
1.
Any mortgage, deed of trust or other
interest permitted by this Agreement;
security
2.
Any rights or interests provided in this
for the protection of the holders
mortgages, deeds of trust or other
interests;
Agreement
of such
security
3. Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other
recorded documents applicable to the Property
and/or the Retail Parcel, as applicable.
d. The grant deed or ground lease to any portion of the
Property or the Retail Parcel conveyed or leased by the
Developer to another party shall contain appropriate
references and provisions to give effect to the Agency's
right, as set forth in this Section under specified
circumstances prior to the recordation of the Certificate of
Completion, to reenter and take possession of such parcel, or
any part thereof, with all improvements thereon, and to
terminate and revest in the Agency the estate conveyed to the
Developer.
e. Upon the revesting in the Agency of title to the
Property and/or the Retail Parcel, or any part thereof, as
provided in this Section, the Agency shall, pursuant to its
responsibilities under State law, use its best efforts to
resell the Property and/or the Retail Parcel, as applicable,
or any part thereof, at fair market value as soon and in such
manner as the Agency shall find feasible and consistent with
the objectives of such law, to a qualified and responsible
party or parties (as determined by the Agency) who will assume
the obligations of making or completing the improvements, or
such other improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses
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specified for the Property and/or the Retail Parcel, as
applicable, or any part thereof. Upon such resale of the
Property, or any part thereof, the proceeds thereof shall be
applied:
1. First, to make any payment made or necessary to be
made to discharge or prevent from attaching or
being made any subsequent encumbrances or liens due
to obligations incurred with respect to the making
or completion of the agreed improvements or any
part thereof on the Property and/or the Retail
Parcel, as applicable, or part thereof; next to
reimburse the Agency on its own behalf or on behalf
of the City for all actual costs and expenses
incurred by the Agency and the City, including but
not limited to customary and reasonable fees or
salaries to third party personnel engaged in such
action (but excluding the Agency's or the City's
general overhead expense), in connection with the
recapture, management and resale of the Property
and/or the Retail Parcel, as applicable, or part
thereof; all taxes, assessments and water and sewer
charges paid by the Ci ty and/or the Agency with
respect to the Property and/or the Retail Parcel,
as applicable, or part thereof; any amounts
otherwise owing to the Agency by the Developer and
its successor transferee; and
2. Second, to the extent that any and all funds which
are proceeds from such resale are thereafter
available, to reimburse the Developer, or its
successor transferee, up to the amount equal to the
costs incurred for the development of the Property
andlor the Retail Parcel, as applicable, or
applicable part thereof, or for the construction of
the improvements thereon including, but not limited
to, costs of carry, taxes and items set forth in
the Developer's cost statement which shall be
submitted to and approved by the Agency.
3 .
Any balance
application of
Agency.
remaining after the foregoing
proceeds shall be retained by the
f. The rights set forth in this Section 5.07 shall
apply to the Property and the Retail Parcel, jointly and
separately, as is applicable.
g. In the event of the exercise of the rights provided
in this Section 5.07 with respect to any parcel, the Agency
may record a Notice of Revesting of Title, executed by the
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Administrator or Director of the Agency, specifying the parcel
or parcels as to which title is revested in the Agency, and
may record such a notice as to each parcel as and when allowed
under this Agreement. The recordation of a Notice of
Revesting of Title shall conclusively revest title in the
subject parcel or parcels in the Agency as if the Developer,
or its successors or assigns, had executed and delivered to
the Agency a grant deed conveying such parcel or parcels.
Section 5.08. Limitation on Riahts and Remedies After
Issuance of Certificate of Comoletion.
After issuance by the Agency of the Certificate of
Completion under Section 3.09 of this Agreement as to either the
Property or the Retail Parcel, the rights and remedies contained in
this Article V shall be applicable as to said parcel only with
respect to the covenants and agreements contained in Article IV of
this Agreement.
Section 5.09. No Cross-Default.
The Agency and Developer hereby acknowledge that this
Agreement and all covenants contained herein are made with respect
to the Property and the Retail Parcel, severally and not jointly;
that all provisions regarding defaults, including but not limited
to this Article V, are to be construed solely against the parcel
upon which the contractual obligation underlying the default is
made, including any default respecting any covenant or agreement to
any mortgagor (including the Agency); and that a default by
Developer respecting the Property shall not be deemed a default
with respect to the Retail Parcel, nor shall a default respecting
the Retail Parcel be deemed a default with respect to the Property.
Accordingly, no mortgage, lien or security interest of any kind may
encumber the Land which provides that a default against either the
Property or the Retail Parcel singularly shall give such mortgagee,
lien holder or secured party the right to declare a default on both
the Property and the Retail Parcel.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices. Demands and
Between the Parties.
Communications
a. Any and all notices, demands or communications
submitted by any party to another party pursuant to or as
required by this Agreement shall be proper if in writing and
dispatched by messenger for immediate personal delivery, or by
registered or certified United States mail, postage prepaid,
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return receipt requested, to the principal office of the Agency and the
Developer, as applicable, as designated in Section l,03.a. and Section
1.03.b. hereof. 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 as provided in this Section. Any such notice,
demand or communication shall be deemed to be received by the addressee,
regardless of whether or when any return receipt is received by the
sender or the date set forth on such return receipt, on the day that it
is dispatched by messenger for immediate personal delivery, or two (2)
calendar days after it is placed in the United States mail as heretofore
provided.
b. In addition to the submission of notices, demands or
communications to the parties as set forth above, copies of all
notices to any party shall also be sent to:
(If to Developer) MDA-San Bernardino Associates,
L.L.C.
300 Continental Boulevard,
Suite 360
EI Segundo, CA 90245
Attn: Jason Kamm
(with copy to) Greenberg, Glusker, Fields,
Claman & Machtinger
1900 Avenue of the Stars
Suite 2100
Los Angeles, CA 90067
Attn: Stephen Claman, Esq.
(If to Agency) Redevelopment Agency of the City
of San Bernardino
201 N. "E" Street, 3rd Floor
San Bernardino, CA 92401-1507
Attn: Development Director
(with copy to) Sabo & Green,
A Professional Corporation
2380l Calabasas Road, Ste.1015
Calabasas, CA 91302
Attn: Charles R, Green, Esq.
Section 6.02. Conflict of Interest.
No member, official or employee of the Agency having any
conflict of interest, direct or indirect, related to this Agreement and
the development of the Land shall participate in any decision relating
to the Agreement. The parties represent and warrant that they do not
have knowledge of any such conflict of interest.
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Section 6.03. Warrant v Aaainst PaYment of Consideration
for Aareement.
The Developer warrants that it has not paid or given, and
will not payor give, any third party any money or other
consideration for obtaining this Agreement. Third parties, for the
purposes of this Section, shall not include persons to whom fees
are paid for professional services if rendered by attorneys,
financial consultants, accountants, engineers, architects and the
like when such fees are considered necessary by the Developer.
Section 6.04. Nonliabilitv of Aaencv Officials and
EmDlovees.
No member, official or employee of the Agency shall be
personally liable to the 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 the Developer or to its successor,
or on any obligations under the terms of this Agreement, except for
gross negligence or willful acts of such member, officer or
employee.
Section 6.05. Enforced Delav: Extension of Time of
Performance.
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be in
default where delays or defaults are due to war; insurrection;
strikes; lockouts; riots; floods; earthquakes; fires; casualties;
acts of God; acts of public enemy; epidemics; quarantine
restrictions; freight embargoes or lack of transportation; weather-
caused delays; inability to secure necessary labor, materials or
tools; delays of any contractors, subcontractor or supplier; acts
of the other party other than as permitted or required by the terms
of this Agreement; acts or failure to act of any public or
governmental agency or entity other than as permitted or required
by the terms of this Agreement (except that action or failure to
act by the City or the Agency shall not extend the time for the
Agency to act unless such extension is otherwise expressly
authorized herewith unless such action or failure to act is the
result of a lawsuit or injunction including by way of illustration,
but not limi ted to, lawsui ts pertaining to the adoption of the
Agreement, the EIR and any other environmental documentation and
procedures, eminent domain, and the like) or any other causes
beyond the control or without the fault of the party claiming an
extension of time to perform. Any extension of time for any such
cause hereunder 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 wi thin thirty (30) calendar days of the
commencement of the cause. Times of performance under this
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96 350
Agreement may also be extended by mutual agreement in writing by
and between the Agency and the Developer.
Section 6.06. Insoection of Books and Records.
The Agency shall have the right at all reasonable times
at the Agency's cost and expense to inspect the books and records
of the Developer pertaining to the Land andlor the development
thereof as necessary for the Agency, in its reasonable discretion,
to enforce its rights under this Agreement. Matters discovered by
the Agency shall not be disclosed to third parties unless required
by law or unless otherwise resulting from or related to the pursuit
of any remedies or the assertion of any rights of the Agency
hereunder. The Developer shall also have the right at all
reasonable times to inspect and audit the books and records of the
Agency pertaining to the Land andlor the development thereof as
pertinent to the purposes of this Agreement. The rights of
inspection and audit provided hereunder shall survive the
recordation of any Certificates of Completion and will continue
until the Agency has been paid all sums as provided in this
Agreement.
Section 6.07. Aoorovals.
a. Approvals required of the Agency or the Developer,
or any officers, agents or employees of either the Agency or
the Developer, shall not be unreasonably withheld and approval
or disapproval shall be given within the time set forth in the
Schedule of Performance or, if no time is given, within a
reasonable time.
b. The Director of the Agency is authorized to sign on
his own authority amendments to this Agreement which are of
routine or technical nature, including minor adjustments to
the Schedule of Performance.
Section 6.08. Real Estate Commissions.
The Agency shall not be
commissions, brokerage fees or finder
related to this Agreement.
liable for any real estate
fees which may arise from or
The Agency
retained or entered
connection wi th the
Agreement.
represents to Developer that it has not
into any Agreement with any broker in
sale of the Land or negotiation of this
Section 6.09. Indemnification.
The Developer agrees to indemnify and hold the City and
the Agency, and their officers, employees and agents, harmless from
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and against all damages, judgments, costs, expenses and fees
arising from or related to any act or omission of the Developer in
performing its obligations hereunder. The Agency agrees to
indemnify and hold the Developer and its officers, employees and
agents, harmless from and against all damages, judgments, costs,
expenses and fees arising from or related to any act or omission of
the Agency in performing its obligations hereunder.
Section 6.10. Release of Develooer from Liabilitv.
Notwithstanding any provision herein to the contrary, the
Developer shall be relieved of any and all liability for the
obligations of the Developer hereunder with regard to the Property
or the Retail Parcel, as applicable, when a Certificate of
Completion has been issued by the Agency hereunder with respect to
said parcel, other than any covenants and obligations provided by
the grant deeds by which the Land is conveyed to the Developer
hereunder.
Section 6.11. Attornevs' Fees.
If either party hereto files any action or brings any
action or proceeding against the other arising out of this
Agreement, seeks the resolution of disputes pursuant to Section
6.12 hereof, or is made a party to any action or proceeding brought
by the Escrow Agent, then as between the Developer and the Agency,
the prevailing party shall be entitled to recover as an element of
its costs of suit or resolution of disputes pursuant to Section
6.12 hereof, and not as damages, its reasonable attorneys' fees as
fixed by the Court or other forum for resolution of disputes as set
forth in Section 6.12 hereof, in such action or proceeding or in a
separate action or proceeding brought to recover such attorneys'
fees.
Section 6.12. Dispute Resolution.
Any controversy or dispute arising from or relating to
this Agreement shall be heard by a reference pursuant to California
Code of Civil Procedure Sections 638(1), 640 and 641 through 645.1,
inclusive, by the Court in an action or proceeding to be commenced
only in San Bernardino County, California. Upon commencement of
any such action or proceeding, the parties hereto shall endeavor to
agree upon and have appointed by the Court a retired Superior Court
Judge or Court of Appeal Justice from the then current list of
retired judges and justices available to serve as referees in San
Bernardino County. If the parties are unable to agree upon the
referee within five (5) business days after service of the
complaint, or the referee selected by the parties is unable or
unwilling to serve and the parties cannot agree on an alternate
within five (5) business days of notice thereof, then either party
may make application to the Court in which the action or proceeding
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is pending for the appointment of a judge or justice from said list
to serve as the referee. In connection therewith, the parties each
shall be entitled to submit the names of three names from said
list, each party shall be entitled to strike one name proposed by
the other party, and the appointment shall be made from the
remaining four names, unless each of them are unwilling or unable
to serve, in which case the Court shall exercise its powers under
California Code of Civil Procedure Section 640. The referee shall
try any or all of the issues in the action or proceeding, whether
of fact or of law, and shall report a statement of decision
thereon. The parties shall advance, in equal shares, the fees and
expenses of the referee selected pursuant to this Section 6.12.
However, the referee's statement of decision shall award the party
that, in light of the issues litigated and the referee's decision
on those issues, was the more successful in the reference, all of
its actual attorneys' fees reasonably incurred in good faith, all
of its fees and expenses associated with the reference, including,
without limitation, any administrative fees, room charges, and
referee fees, and those costs allowable in an action at law.
Notwithstanding anything contained herein to the contrary, the
parties hereto expressly preserve all rights and remedies they may
have at law or in equity unless and until a referee is appointed
pursuant to this Section 6.12, including, without limitation, the
right to seek provisional remedies or injunctive relief.
Section 6.13. Effect.
This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and
assigns.
ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND ANENDMENT
Section 7.01. Entire Aareement.
a. This Agreement shall be executed in four (4)
duplicate originals each of which is deemed to be an original.
This Agreement, and the attachments hereto, constitute the
entire understanding and Agreement of the parties.
b. This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and
supersedes all negotiations or previous agreements between the
parties with respect to all or any part of the Property and
the development thereof.
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c. None of the terms, covenants, agreements or
conditions set forth in this Agreement shall be deemed to be
merged with the grant deed conveying title to the Property
and/or the Retail Parcel, as applicable, and this Agreement
shall continue in full force and effect as to the Property and
the Retail Parcel before and after such conveyance until
issuance of the Certificate of Completion for the Property or
the Retail Parcel, as applicable.
d. All waivers of the provisions of this Agreement and
all amendments hereto must be in writing and signed by the
appropriate authorities of the Agency and the Developer.
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01. Execution and Recordation.
a. Following its execution by the Developer and prompt
delivery thereafter to the Agency, this Agreement must be
approved, executed and delivered by the Agency to the
Developer within thirty (30) calendar days after the date of
signature by the Developer. In the event that the Agency has
not approved, executed and delivered the Agreement to the
Developer within the foregoing period, then this Agreement
shall be deemed to be of no further force or effect unless the
time for such approval, execution and delivery is extended by
written notice from the Developer to the Agency. The date of
this Agreement shall be the date when the Agreement shall have
been approved by the Agency.
b. The Developer and the Agency agree to permit
recordation of this Agreement or any portion thereof against
the Land in the Office of the County Recorder for the County
where the Property is located.
- END OF THIS PAGE -
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96 350
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
Date:
(SEAL)
Agency Special Counsel
Date:
/o,}. r~q~
APPROVED AS TO FORM:
GREENBERG, GLUSKER, FIELDS, CLAMAN
& MACHTINGER, L.L.P.
By:
stephen Claman
Attorneys for Developer
REDEVELOPNENT AGENCY OF THE
CITY OF SAN BERNARDINO
MDA-SAN BERNARDINO ASSOCIATES,
L.L.C., a Delaware limited
liability company,
By: SK Netro Development, L.P.,
a California limited
partnership, its managing
member
By: SK Metro Corp., a
California corporation,
its general partner
By:
Re Swanson, President
(All Signatures Must Be Notarized)
SBEO\OOOl\DDA\METRO.7
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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~ Date L..-.i J ,i,. i Name and Title of Officer (~, "Jane Doe, Notary Public") ~
l~. ....' personally appeared -j{. >>-, (/. U Ll,-' ) N,m,',} 01 S,ge",,} ~'"'@i..''' :',
:J' (ersonally known to me - OR - C proved to me on the basis of salisfactory evidence 10 be the person(st ,;s
whose name(5j is/!tf€ subscribed to the wilhin inslrumenl
and acknowledged to me thai he/~ execuled Ihe
~, same in his/I,(;I,~I,eir aulhorized capacily(ies), and thai by
(:1 his/her,'tl,eil signature(57 on the instrument the person(*,
~,". or the entity upon behalf of which the person(st acted,
/;! 'i \IIItIIWICI8 executed the instrument
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~,.. My'e-~ WITN~SS my hand and official seal.
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OPTIONAL
Though the information be/ow is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Dale:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
Signer's Name:
D Individual
D Corporate Officer
Title(s):
D Partner - C Limiled D General
D Altorney-in-Facl
C Trustee
C Guardian or Conservator
" Other:
..J Individual
D Corporate Officer
Title(s):
D Partner - D Limiled = General
D Altorney-in-Facl
D Trustee
D Guardian or Conservator
D Other:
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RIGHT THUMBPRINT
OF SIGNER
RIGHT THUMBPRINT
OF SIGNER
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Signer Is Representing:
Signer Is Represenling:
@1995NationaINotaryAssociation'8236RemmetAve., P,O. Box 7184' Canoga Park, CA91309-7184
Prod. No. 5907
Reorder: Call Toll.Free 1-800-876-6827
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STATE OF CALIFORNIA
COUNTY OF u:; An681AS
On /C-pI40 before me, t!oU-GC~ rtf, &p~?tZ:1
(here insert name and title of the officer), personally appeared
;f2er: ~vJMS~,J , personally known to me (GE ~roved to-
ms A~ ;hQ J;>"Ii; Ii of' i:ltiClfaGtgry evidel,ce) to be the person (;r1 whose
nameJS) is/~subscribed to the within instrument and acknowledged
to me that heh:hg/t!.:lgy executed the same in his/acr/thgir
authorized capacityUesl, and that by his/ngr/thQir signature (,s1 on
the instrument the person ~, or the entity upon behalf of which
the person)%i acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(/d~1il ~
(Seal)
\------- -----
ii@ COllEEN M. RAfFERTY ~
f C"""., 1023067 <(
. IIJTNrt PI..IBlK: CAlFORNA <
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. >>1 Camm. Expfts Apr. 25. 1998 ..&
--- --~-----__t
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ACKNOWLEDGMENTS AS APPROPRIATE BY DEVELOPER
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the dates set forth below.
Date:
(SEAL)
APPROVED AS TO FORN:
Agency Special Counsel
Date:
APPROVED AS TO FORN:
GREENBERG, GLUSKER, FIELDS, CLAMAN
& MACHT INGER, L.L.P.
By:
])~;J Ie . -if/is}! ~ t--
DEBBY. . ZU L, ESQ.
Attorneys for Developer
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Chairman
By:
Secretary
MDA-SAN BERNARDINO ASSOCIATES,
L.L.C., a Delaware limited
liability company,
By: SK Metro Development, L.P.,
a California limited
partnership, its managing
member
By: SK Metro Corp., a
California corporation,
its general partner
By:
Rex Swanson, President
SBEO\OOOl\DDA\METRO.7
(All Signatures Must Be Notarized)
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96 350
STATE OF CALIFORNIA
COUNTY OF L,,->) A.v'V...FW' \
On ~.<..o \'-<"l- before me, ~yV\J' \" s,. WI(. \k
insert name and'title of the offlcer), personally appeared
, ~\o , personally known to me (or proved to
me on th basis of satisfactory evidence) to be the person(s) whose
name(s) ~re subscribed to the within instrument and acknQwledged
to me "t:i:at he/~they executed the~me in his/~their
authorized capacity(1es), and that by his/~their signature(s) on
the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
SignatuS ~~'::..~.
(Seal)
r:.....-......................d1.........'1I;
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~ ; a : COMM #985174 z
2 . - 0 Notary Public - California 2
.. . . LOS ANGElES COUNTY "
My Comm. Expiro3 FEB ~9. 1997
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EXHIBIT "A"
(SITE PLAN)
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EXHIBIT "A-I"
AGENCY PARCELS
0134-121-16
0134-121-15
0134-121-17
0134-131-01
0134-131-11
0134-131-02
0134-131-16
0134-131-17
0134-131-04
0134-131-05
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EXHIBIT "A-2"
RENAINDER PARCELS
0134-121-19
0134-121-20
0134-121-12
0134-131-15
0134-131-06
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EXHIBIT "C"
AGENCY NOTE
(HUD Loan)
Final form to be reviewed by Developer and Agency.
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EXHIBIT "D"
DEED OF TRUST
(HUD Loan)
Final form to be reviewed by Developer and Agency.
D - 1
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EXHIBIT "B"
SCOPE OF DEVELOPMENT
The Property shall be developed as an approximately 80,000 square
foot multi screen cinema complex and the Retail Parcel as a related
commercial facility complex consisting of up to 20,000 square feet
of commercial structures, all as described herein. Structures on
the Property and/or the Retail Parcel shall generally be located as
shown on the Site Plan approved by the City. The Property and the
Retail Parcel may be developed in accordance with this Agreement,
but subject to the requirements of the zoning ordinance of the City
and any variances or modifications therefrom as approved by the
City.
The Developer shall cause the design and construction of
approximately 5.5 plus/minus acres of the Land as shown in the Site
Plan in accordance with the Schedule of Performance (Exhibit "R")
and this Agreement as follows:
The development shall be first class, constructed of quality
materials, to City Code, and shall be unified in architectural
theme and treatment throughout the Property and the Retail Parcel
and adjacent off-site areas, insofar as reasonable and practicable.
All improvements
constructed or
specifications,
accordance with
to be constructed by the Developer shall be
installed in accordance with the technical
standards and practices of the City and in
plans and specifications approved by the City.
The Developer shall cause the proper documents to be filed and fees
paid to all governmental or regulatory agencies, including
utilities, for applications for all required permits and approvals.
The Project and the Retail Parcel shall include parking in
accordance with applicable City regulations, pursuant to a parking
agreement to be entered into between the Agency and the Developer.
The Developer shall design all structures, landscaping and parking
areas to achieve a high degree of attractiveness and compatibility
with the Property and the Retail Parcel and the area in which they
are located.
Prior to the conveyance of fee title to the Property or the Retail
Parcel, or any part thereof, the Developer shall, at its cost and
expense, undertake and complete any and all soils, utility and
drainage studies, plans and reports pertinent to the development of
the Property or the Retail Parcel and shall provide a copy of said
studies and reports to the Agency.
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EXHIBIT "c"
AGENCY NOTE
(HUD Loan)
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EXHIBIT "D"
DEED OF TRUST
(HUD Loan)
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EXHIBIT "E"
PROMISSORY NOTE
(Agency Contribution)
$1,324,575.00
Date:
For value received, MDA-San Bernardino Associates, L.L.C., a
Delaware limited liability company (the "Developer"), hereby
promises to pay to the Redevelopment Agency of the City of San
Bernardino, (the "Agency"), or order, in united States currency,
the principal sum of One Million Three Hundred Twenty Four Thousand
Five Hundred Seventy Five Dollars ($1,324,575) together with
interest thereon from the date hereof, as provided below.
1. Disposition and Development Aareement. This Promissory Note
("Note") is entered into in connection with and pursuant to
that certain Disposition and Development Agreement (the
"Agreement") by and between the Agency and the Developer,
dated , wherein the Agency agrees to convey to the
Developer fee title to certain property described in the
Agreement, consisting of the Theater Parcel and the Common
Area Parcel (together referred to herein as the "Project").
In the event of a conflict between the provisions of this
Note and the Agreement, the provisions of the Agreement will
govern. Defined terms used in this Note will have the
meanings set forth in the Agreement unless otherwise defined
herein. This Note is the "Second Agency Note" as defined in
the Agreement.
2. Security. As security for payment of this Note, the Developer
has granted to the Agency a deed of trust on the land and
improvements comprising the Project which deed of trust will
be subordinate only to a first trust deed for construction and
permanent financing in a principal amount not to exceed Three
Million Six Hundred Thousand Dollars ($3,600,000), and to a
deed of trust in second position securing the Agency Loan.
3. Participation and Reoavment. This is a participation note,
wherein principal and interest are repayable solely from (i)
participation in the revenues generated by the Project and/or
(ii) the proceeds of a sale or refinance of the Property, and
there shall be no personal liability for the payment of this
Note or interest accruing hereon. Repayment of principal and
interest shall be made as follows:
a. The Agency shall receive an Agency Priority Return in the
form of contingent interest calculated as eight percent
E - 1
96 350
(8%) per annum on the unpaid principal balance of this
Note, with interest commencing to accrue as of the date
the theater commences operations, but not later than
twel ve (12) months from the date possession of the
Theater Parcel is tendered to the lessee. The Developer
shall give the Agency written notice of the date when
possession is tendered, simultaneously with the giving of
notice to the lessee. The Agency Priority Return and the
Developer Priority Return will be paid simultaneously,
and will be calculated on and payable out of the
Project's gross revenues. Payments of the Agency
Priority Return shall be made in arrears on a monthly
basis, within ten (10) days of the end of each calendar
month.
b. In addition to the Agency Priority Return, the Agency
will receive seventy-five percent (75%) of the Net
Distributable Cash, as defined in the Agreement. The
portion of Net Distributable Cash paid to the Agency
shall reduce the principal amount of this Note. After
the principal amount of this Note is paid in full, the
Agency will continue to receive seventy-five percent
(75%) of the Net Distributable Cash so long as the
Developer owns the Project. The Developer shall provide
to the Agency monthly property management reports, not
later than the twentieth day of the succeeding month,
setting forth, at a minimum, all income and expenses,
including the Project reserves, related to the Project.
All distributions of Net Distributable Cash to either the
Agency or the Developer will be made on a monthly basis,
and will accompany the monthly property management report
for the given month, and will be adjusted as necessary at
the end of the fiscal year which applies to the Project.
c. In the event that the Project is refinanced so as to
generate excess proceeds which are available for
distribution, the Agency will receive seventy-five
percent (75%) of such proceeds and the Developer will
receive twenty-five percent (25%) thereof. Any costs
associated with such refinance shall be reasonable and
ordinary for such transactions, and shall not include any
commission or fee to the Developer.
In the event that Project reserves are distributed to the
Agency and/or the Developer, such reserves shall be
treated as Net Distributable Cash and distributed in
accordance with this Note.
d. In the event of a sale or trans fer of the proj ect by the
Developer, the proceeds of such sale or transfer will be
allocated as follows:
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96 350
(1) First to the payment of the first trust deed in
full, unless the loan evidenced thereby is assumed
by the purchaser of the Project with the consent of
the lender (if required), in which event any
interest or principal or other sums then due but
unpaid under said loan shall be paid.
(2) Secondly, to the payment in full of the Agency Loan
secured by the Agency Trust Deed, unless the loan
evidenced thereby is assumed by the purchaser of
the Proj ect with the concurrence 0 f HUD and the
Agency, in which event any interest or principal
installments or other sums due but unpaid under
said loan shall be paid.
(3) Thirdly, to the payment of the unpaid principal
amount of this Note, and, to the extent necessary,
such additional sums as are necessary to cause the
Agency to have received not less than an eight
percent (8%) per annum return on the principal
hereof, as to each portion of the principal hereof
advanced by the Agency with said interest to be
calculated from the date on which the term of the
theater lease on the Theater Parcel commences,
through the date of the payment of the Agency
Contribution, plus any unpaid interest thereon at
eight percent (8%).
(4) Fourth, to the costs of the sale, including
commissions, which costs shall be reasonable and
ordinary for similar transactions and shall not
include any commission or fee for the Developer,
and which shall include normal prorations and
allocations of income and expenses, including real
property taxes.
(5) Seventy-five percent (75%) of the remaining
proceeds of the sale will be distributed to the
Agency and twenty-five percent (25%) will be
distributed to the Developer, less reasonable
reserves for contingent liabilities, if any. Any
such reserves will be thereafter distributed, in
the percentages provided in this Section 3.d. (5),
when the contingent liabilities have been paid or
otherwise resolved.
4. Miscellaneous Provisions.
a. The Developer waives notice 0 f non-payment and
protest, presentment and notice of dishonor.
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96 350
b. In the event of any legal action with respect to
the terms or enforcement of this Note, the
prevailing party shall be entitled to an award of
its attorney's fees and costs of suit.
c. Notwithstanding any language herein to the
contrary, this Note shall become immediately due
and payable in the amount of all unpaid principal,
together with interest in an amount sufficient to
represent an eight percent (8%) return to the
Agency as to each portion of the principal hereof
advanced by the Agency from the date provided for
commencement of interest in Section 3.a. hereof,
upon any transfer in violation of the Agreement of
title to the Project described in the Agreement to
any person, firm or corporation other than the
Developer and except as provided in said Agreement,
whether such transfer of title be voluntary,
involuntary, or by operation of law.
d. All payments on this Note shall be applied first to
the interest due on the Note and then to the
principal due on the Note.
e. In the event the Developer shall fail to pay the
payments when due, and if such failure be
subsisting thirty (30) days thereafter, the unpaid
principal amount of this Note, together with
accrued interest and late charges, shall become due
and payable, at the option of the Agency, without
notice to the undersigned. Failure of the Agency
to exercise such option shall not constitute a
waiver of such default. If the payments on this
Note are not paid within ten (10) days of the due
date, the undersigned shall pay to the Agency a
late charge of six percent (6%) on the amount past
due and remaining paid.
f. Until all sums due under this Note have been paid
and the Agency no longer participates in the
revenues of the Project, the Agency has the right
to inspect and audit the books and records of the
Developer related to the Project as necessary to
verify the performance of the terms hereof, which
inspection or audit will occur at the offices of
the Developer on reasonable notice. The Developer
agrees to maintain separate books of account for
the Project, including a separate account for the
Project reserves of one percent (1%) of gross
revenues. The rights of the Agency to inspect and
audit the Developer's books and records shall
E - 4
96 350
survive the recordation of any Certificates of
Completion.
MDA-SAN BERNARDINO ASSOCIATES,
L.L.C., a Delaware limited
liability company,
By: SK Metro Development, L.P.,
a California limited
partnership, its managing
member
By: SK Metro Corp., a
California corporation,
its general partner
By:
Rex Swanson, President
APPROVED AS TO FORM:
GREENBERG, GLUSKER, FIELDS, CLAMAN
& MACHT INGER, L.L.P.
By:
Stephen Claman
Attorneys for Developer
E - 5
96 350
EXHIBIT "F"
THIRD DEED OF TRUST
(Agency Contribution)
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deed of trust made on by MDA-San
Bernardino Associates, L.L.C., a Delaware limited liability
company, hereinafter called "Trustor", whose address is 300
Continental Boulevard, Suite 360, El Segundo, California 90245,
NORTH AMERICAN TITLE COMPANY, hereinafter referred to as "Trustee",
whose business address is 721 South Parker Avenue, Suite 100,
Orange, California 92668, in favor of the REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO, hereinafter referred to as
"Beneficiary", whose business address is 201 North "E" Street,
Third Floor, San Bernardino, California 92401.
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
San Bernardino, State of California, described as follows:
Tha t certain property located in the City of
San Bernardino, County of San Bernardino, State of California, more
particularly described as:
SEE EXHIBIT "A" HERETO
together with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and profits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under that certain
Promissory Note which was executed in connection with that certain
Disposition and Development Agreement by and between Trustor and
Beneficiary, dated as of , 1996 (the "DDA"), and any
liability, cost or charge incurred or advanced by Beneficiary under
said Promissory Note, including principal, interest and/or late
charges; and performance of each agreement to Trustor incorporated
F - 1
96 350
herein by reference or contained herein. Upon breach of any
obligation or agreement secured hereby after notice and opportunity
to cure as provided herein, Beneficiary shall have the right to
foreclose upon such breach under this Deed of Trust. Defined terms
used in this Deed of Trust shall have the meanings set forth in the
DDA, unless otherwise defined herein.
A. To protect the security of this Deed of Trust, Trustor agrees:
1. To maintain the property in good condition and
repair; not to remove or demolish any building or improvement
thereon; to complete promptly in workmanlike manner any improvement
hereafter constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is damaged or
destroyed, and to pay when due all costs incurred therefor or in
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereof or any act upon
the property in violation of law or of covenants, conditions or
restrictions affecting the property.
2. To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
sum.
3. To pay (a) prior to delinquency, all taxes and
assessments affecting the property, all assessment upon water
company stock, and all rents, assessments and charges for water
appurtenant to or used in connection with the property; (b) when
due, all encumbrances, charges and liens, with interest, on the
property or any part thereof, which appear to be prior or superior
hereto; and (c) all costs, fees and expenses of this trust.
4. If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or Trustee (but without
obligation so to do, and with or without notice to or demand upon
Trustor, and without releasing Trustor from any obligation hereof)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon the property for such
purpose; (b) appear in or commence any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; (c) pay, purchase, contest, or compromise
any encumbrance, charge or lien that, in the judgment of either,
appears to be superior hereto; and in exercising any such power,
F - 2
96 350
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys' fees.
5. To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with interest from
date of expenditure at the annual rate of five percentage points
over Bank of America's published prime rate.
B. It is mutually agreed that:
I. Subject and subordinate to the rights of superior trust deed
holders, any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
1. The acceptance by Beneficiary of any payment less
than the amount then due shall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the entire sum then due or of Beneficiary's right either to
require prompt payment of all sums then due or to declare default.
The acceptance of payment of any sum secured hereby after its due
date will not waive the right of Beneficiary either to require
prompt payment when due of all other sums so secured or to declare
default for failure so to pay. No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
2. At any time upon the occurrence of a default,
without liability therefor and with or without notice, upon written
request of Beneficiary and presentation of this deed for
endorsement, and without affecting the personal liability of any
person, Trustee may reconvey any part of the property, consent to
the making of any map or plat thereof, join in granting any
easement or join in any extension agreement or any agreement
subordinating the lien or charge thereof.
3. Upon written request of Beneficiary, surrender of
this deed to Trustee for cancellation and retention, and payment of
its fees, Trustee shall reconvey, without warranty the property
then held hereunder. The recitals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
designated in such reconveyance as "the person or persons legally
entitled thereto."
F - 3
96 350
4. Trustor may give such notice to Beneficiary at any
time before there is a Trustee's sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
5. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default, Trustor or such owner shall pay to Beneficiary
in advance on the first day of each month a reasonable rental for
the premises so occupied. On failure to pay such reasonable
rental, Trustor or such owner may be removed from the premises by
summary dispossession proceedings or by any other appropriate
action or proceeding.
6. If default is made in performance of any agreement
hereby secured, then Beneficiary, with or without notice to
Trustor, may institute suit for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall deposit with Trustee this deed, and all documents
evidencing expenditures secured hereby.
7. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful money of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
F - 4
96 350
8. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at five percentage points over Bank of America's published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
9. Before Trustee's sale, Beneficiary may rescind such
notices of default and its election to cause the property to be
sold by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
10. Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
11. If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
12. All leases of any structures on the Property which
consti tute the proj ect as defined in the DDA, now or hereafter
affecting the Property are hereby assigned and transferred to
Beneficiary by Trustor. Trustor hereby covenants that none of such
leases will be modified or terminated without the written consent
of Beneficiary. Beneficiary will, when reasonably requested to do
so, provide to tenants, under leases approved by it, agreements of
non-disturbance of such tenancy In the event that Beneficiary
acquires title to the Property, providing that such tenant attorns
F - 5
96 350
in writing to the interests of Beneficiary and pays to Beneficiary
the rent and other sums owed under the lease.
13. I f a default is made in the performance of any
agreement hereby secured, Trustor when requested to do so, shall
give such further written assignments of rents, royalties, issues
and profits; of all security for the performance of leases; and of
all money payable under any option to purchase, and shall give
executed originals of all leases, now or hereafter on or affecting
the property.
14. Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor's right to collect such moneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
defaul t hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in collecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
15. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, Beneficiary may release any
person now or hereafter liable for performance of such obligation,
and may extend the time for payment or performance, accept
additional security, and alter, substitute or release any security.
16. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys' fees in a reasonable sum, to be fixed by the court.
17.
exclusive of
future law.
No remedy hereby given to Beneficiary or Trustee is
any other remedy hereunder or under any present or
F - 6
96 350
defense
waived,
18.
to any
to the
The pleading of any statute of limitations as a
and all obligations secured by this deed is hereby
full extent permissible by law.
19.
furnish the
operations of
Trustor shall,
Beneficiary with
the property.
upon request made by Beneficiary,
annual statements covering the
20. Beneficiary may collect a "late charge" not to
exceed an amount equal to five percent (5%) on the amount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
21. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devises,
administrators, executors, successors, successors in interest, and
assigns. The term "Beneficiary" means the owner and holder,
including pledgees, of the Agreement secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
22. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
23. Trustor agrees that, so long as Beneficiary has any
interest in any income generated on the Site, Beneficiary shall
have the right to inspect and audit the books and records of
Trustor with respect to the Project, which inspection and audit
will take place at the offices of Trustor and on reasonable notice.
Trustor covenants to maintain separate books and records for the
Project, including a separate account for reserves. Trustor agrees
to provide Beneficiary with property management reports setting
forth, at a minimum, all income and expenses of the Project,
including the Project reserves, on a monthly basis, not later than
the fifth day of the succeeding month.
24. Trustor, and its successors and assigns, shall
maintain in good condition the improvements on the Property, shall
keep the Property free from any accumulation of debris or waste
material, subject to normal construction job-site conditions, and
shall maintain in a neat, orderly, healthy and good condition the
landscaping on the Property. In the event Trustor, or its
successors or assigns, fails to perform the maintenance as required
herein, Beneficiary shall have the right, but not the obligation,
F - 7
96 350
to enter the Property and undertake such maintenance activities.
In such event, Beneficiary shall reimburse the Agency for all
reasonable sums incurred by it for such maintenance activities.
25. Beneficiary agrees that it will enter into
subordination agreements, and execute such other documents which
are reasonably required to effect such subordinations, on terms
reasonably acceptable to it, with the lenders under any deeds of
trust which are in compliance with the provisions of the DDA and
are intended by the parties to the DDA to be superior to this Deed
of Trust.
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F - 8
"
96 350
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below:
MAILING ADDRESSES FOR NOTICES:
MDA-San Bernardino Associates, L.L.C.
as Trustor:
300 Continental Blvd., Suite 360
El Segundo, California 90245
Attn: Jason Kamm
Executed at San Bernardino, California, on the date first
above written.
MDA-SAN BERNARDINO ASSOCIATES,
L.L.C., a Delaware limited
liability company,
By: SK Metro Development, L.P.,
a California limited
partnership, its managing
member
By: SK Metro Corp. , a
California corporation,
its general partner
By:
Rex Swanson, President
APPROVED AS TO FORM:
GREENBERG, GLUSKER, FIELDS, CLAMAN
& MACHT INGER, L.L.P.
By:
Stephen Claman
Attorneys for Developer
F - 9
96 350
,
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EXHIBIT "A" TO DEED OF TRUST
LEGAL DESCRIPTION
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96 350
EXHIBIT "G"
GRANT DEED
Recording Requested by:
After Recordation, Mail to:
Redevelopment Agency of the city of San Bernardino
Mail Tax Statements to:
GRANT DEED
For valuable consideration, the receipt of which is hereby
acknowledged,
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a
public body, corporate and politic, of the State of California (the
"Grantor"), pursuant to and in accordance with the Community
Redevelopment Law of the State of California, hereby grants to MDA-
San Bernardino Associates, L.L.C., a Delaware limited liability
company (the "Grantee") the real property (the "Real Property")
legally described in the document attached hereto, labeled Exhibit
"A", and incorporated herein by this reference.
1. The Real Property is conveyed subject to the
Disposi tion and Development Agreement entered into between the
Grantor and the Grantee, dated , 1996 (herein referred to
as the "Agreement"). The provisions of the Agreement are
incorporated herein by this reference and shall be deemed to be a
part hereof as if set forth at length herein.
2. The Grantee covenants by and for itself, its 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, age, marital status, national
origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Real Property, 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 in the Real Property.
G - 1
96 350
All deeds, leases or contracts made relative to the Real
Property, shall contain the following nondiscrimination clauses:
(a) In deeds: "The grantee herein covenants by and for
himself, 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, age, marital status, 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 any person claiming under or through him,
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, his heirs, executors, administrators and assigns, and
all persons claiming under or through him, and this lease is
made and accepted upon and subject to the following
conditions:
That there shall be no discrimination against or segregation
of any person or group of persons on account of race, color,
creed, religion, sex, age, marital status, national origin or
ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the land herein leased, nor
shall the lessee himself, or any person claiming under or
through him, 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
leased."
(c) In contracts: "There shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, age, marital
status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
land, nor shall the transferee himself, or any person claiming
under or through him, 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 land."
3. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant
Deed shall defeat or render invalid or in any way impair the lien
or charge of any mortgage, deed of trust or other financing or
G - 2
96 350
security instrument permitted by the Agreement; provided, however,
that any successor of Grantee to the Real Property shall be bound
by such remaining covenants, conditions, restrictions, limitations
and provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
4. The terms and conditions set forth in Article IV of
the Agreement and the covenants otherwise contained in this Grant
Deed shall remain in effect for a period of ten (10) years from the
date hereof, except that the covenants against discrimination set
forth in Article IV of the Agreement shall remain in effect in
perpetui ty and the covenants set forth in Article II I of the
Agreement shall remain in effect until they are satisfied in full.
5. The covenants contained in this Grant Deed shall be
binding for the benefit of the Grantor and its successors and
assigns, and such covenants shall run in favor of the Grantor for
the entire period during which such covenants shall be in full
force and effect, without regard to whether the Grantor is or
remains an owner of any land or interest herein to which such
covenants relate. The grantor, in the event of any breach of any
such covenants, shall have the right to exercise all of the rights
and remedies, and to maintain any actions at law or suits in equity
or other proper proceedings to enforce the curing of such breach as
provided in the Agreement or by law. The covenants contained in
this Grant Deed shall be for the benefit of and shall be
enforceable only by the Grantor and its successor.
- END OF THIS PAGE -
G - 3
96 350
IN WITNESS WHEREOF, the Grantor and Grantee have caused
this instrument to be executed on their behalf by their respective
officers thereunto duly authorized, this day of
19
Grantor:
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO
By:
Chairperson
By:
Secretary
APPROVED AS TO FORM:
By:
Counsel for Grantor
The provisions of this Grant Deed are hereby approved and
accepted.
Date:
Grantee:
MDA-SAN BERNARDINO ASSOCIATES,
L.L.C., a Delaware limited
liability company,
By: SK Metro Development, L.P.,
a California limited
partnership, its managing
member
By: SK Metro Corp., a
California corporation,
its general partner
By:
Rex Swanson, President
APPROVED AS TO FORM:
GREENBERG, GLUSKER, FIELDS, CLAMAN
& MACHTINGER, L.L.P.
By:
Stephen Claman
Attorneys for Developer
G - 4
96 350
EXHIBIT "A" TO GRANT DEED
LEGAL DESCRIPTION
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96 350
EXHIBIT H
SCHEDULE OF PERFO~~CE
(Days shall be cAlendar o~y$, a~ long as the last aay does not fall on a
Saturday, Sunday or leg_l boliday, ~nd .11 dates he~ein are subject eo ch$nge
due to force majuere in accord~~ce with Section 6.05 of the Agreement.)
SCHEDULE ITEM TIME FRAME FOR COMPLETION
1. Agency approval of Disposition and Within 30 days of Developer signing.
, oevelopment Agreement (DDA) .
2. oeveloper commences tre.ffic study Within 30 days of OOA a~proval.
and items necessary for filing for
project entitlements.
3. Agency to make application to HUD Within 30 days of DDA approval.
for a lOa loan for the project and
comme:nces with the site acquisition.
4. Agency to cOl1'~lete site acquisition. within 20 months of Agency approval
of OOA. subject to extensions
S. Agency prepa~es and deposits in Within 30 oays of Agency's effective
escrow, CC&.R I S I Grant Deed and any site control and the ability to
other items required for opening of , convey site to Developer and within
l!i$crO"N pu::suant to Section 2.10 (b) i 20 months of the apprOval of the
e:: the Agreement including the DOl., subject to extensions.
~vid"nce of Agency Loan and Agency
Contribution.
6. Developer, satisfies all Within 20 months from the approval
requirements unoer Section 2.10 (a) of the DDA, subject to extensions.
,0< the Agreement.
7. Escrow Closes and Theater Parcel Within 60 days of conditions: in 2.10
and/or Retail Parcel (at oeveloper's being met, within 20 months from
election} is conveyed to Developer, approval or the DDA, subj ect to
extensions,
B. I Devaloper commences site work and Within 3 C days of B:scrow closing.
Project construction.
I .
9. Completion of Project construction. Wl.thin 18 months from cons:.ruceion
cOlMlencement.
10. Retail Parcels to start construction At the eime of conveyance of the
yDeveloper, Theater Parcels or within 36 months
from conveyance of the Theater
Parcel. at Developer's OptiOn
,
Exhibit H - Page 1
g6 350
EXHIBIT "I"
When Recorded, Mail to:
CERTIFICATE OF COMPLETION
We, Chairman and
, Secretary of the Redevelopment Agency of the City of
San Bernardino (the "Agency") hereby certify as follows:
By its Resolution No. adopted and approved
, 199_, the Agency has resolved as follows:
Section 1. Certain of the improvements required to be
constructed in accordance with that certain Disposition and
Development Agreement (the "Agreement") dated , by
and between the Agency and MDA-San Bernardino Associates, L.L.C.,
a Delaware limited liability company (the "Developer"), on that
certain real property (the "Completed Property") more fully
described in Exhibit "A" attached hereto and incorporated herein by
this reference, have been completed in accordance with the
provisions of said Agreement.
Section 2. This Certificate of Completion shall
constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to
the obligations of the Developer, and its successors and assigns,
to construct and develop the improvements on the Completed
Property, excluding any normal and customary tenant improvements
and reasonable building "punch-list" items, which the Developer
shall remain liable to complete without creating any liens against
the Completed Property, and including any and all buildings and any
and all parking, landscaping and related improvements necessary to
support or which meet the requirements applicable to the building
and its use and occupancy on the Completed Property, whether or not
said improvements are on the Completed Property or on other
property subject to the Agreement, all as described in the
Agreement, and to otherwise comply with the Developer's obligations
under the Agreement with respect to the Completed Property and the
dates for the beginning and completion of construction of
improvements thereon under the Agreement; provided, however, that
the Agency may enforce any covenant surviving this Certificate of
Completion in accordance with the terms and conditions of the
I - 1
96 350
Agreement, the grant deed pursuant to which the Completed Property
was conveyed under the Agreement, and any deed of trust in favor of
the Agency. The Agreement is an official record of the Agency and
a copy of the Agreement may be inspected in the office of the
Secretary of the Redevelopment Agency of the City of San Bernardino
located at the 201 N. "E" Street, 3rd Floor, San Bernardino,
California 93514, during regular business hours.
Section 3. The Agreement contains provisions relating
to multiple parcels of land and the improvements to be constructed
thereon. This Certificate of Completion applies only to the
parcels(s) indicated in Exhibit "A".
DATED AND ISSUED this
day of
, 199_.
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Chairman of the Agency
ATTEST:
Secretary of the Agency
1-2
96 350
EXHIBIT "A" TO CERTIFICATE OF COMPLETION
LEGAL DESCRIPTION
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EXIBIT "J"
(Project Budget)
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EXHIBIT "K"
LEGAL DESCRIPTION
\
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K - 1
\.
96 350
EXHIBIT "L"
THIRD DEED OF TRUST
(Retail Parcel)
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
(Space Above for Recorder's Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deed of trust made on by MDA-San
Bernardino Associates, L.L.C., a Delaware limited liability
company, hereinafter called "Trustor", whose address is 300
Continental Boulevard, Suite 360, El Segundo, California 90245,
NORTH AMERICAN TITLE COMPANY, hereinafter referred to as "Trustee",
whose business address is 721 South Parker Avenue, Suite 100,
Orange, California 92668, in favor of the REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO, hereinafter referred to as
"Beneficiary", whose business address is 201 North "E" Street,
Third Floor, San Bernardino, California 92401.
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
San Bernardino, State of California, described as follows:
That certain property located in the City of
San Bernardino, County of San Bernardino, State of California, more
particularly described as:
SEE EXHIBIT "A" HERETO
together with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and profits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under Sections 1.04,
2 . 19, 3. 01, 3 . 03, 3 . 04, 3 . 05, 4. 01, 4. 03, 4. 04, 6 . 03 and 6. 07,
inclusive, as said sections relate to the real property described
in Exhibit "A" of that certain Disposition and Development
Agreement by and between Trustor and Beneficiary, dated as of
, 1996 (the "DDA"); and performance of each agreement to
L - 1
r
96 350
Trustor incorporated herein by reference or contained herein. A
breach of any obligation or agreement secured hereby shall, at
Beneficiary's sole option, be deemed a breach of all such
obligations or agreements, and Beneficiary shall have the right to
accelerate all such obligations or agreements and to foreclose upon
such breaches under this Deed of Trust. Defined terms used in this
Deed of Trust shall have the meanings set forth in the DDA, unless
otherwise defined herein.
A. To protect the security of this Deed of Trust, Trustor agrees:
23. To maintain the property in good condition and
repair; not to remove or demolish any building or improvement
thereon; to complete promptly in workmanlike manner any improvement
hereafter constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is damaged or
destroyed, and to pay when due all costs incurred therefor or in
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereof or any act upon
the property in violation of law or of covenants, conditions or
restrictions affecting the property,
24. To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
sum.
25. To pay (a) prior to delinquency, all taxes and
assessments affecting the property, all assessment upon water
company stock, and all rents, assessments and charges for water
appurtenant to or used in connection with the property; (b) when
due, all encumbrances, charges and liens, with interest, on the
property or any part thereof, which appear to be prior or superior
hereto; and (c) all costs, fees and expenses of this trust.
26, If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or Trustee (but without
obligation so to do, and with or without notice to or demand upon
Trustor, and without releasing Trustor from any obligation hereof)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon the property for such
purpose; (b) appear in or commence any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; (c) pay, purchase, contest, or compromise
L - 2
!16 350
any encumbrance, charge or lien that, in the judgment of either,
appears to be superior hereto; and in exercising any such power,
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys' fees.
27. To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with interest from
date of expenditure at the annual rate of five percentage points
over Bank of America's published prime rate.
B. It is mutually agreed that:
I. Subject and subordinate to the rights of superior trust deed
holders, any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
1. The acceptance by Beneficiary of any payment less
than the amount then due shall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the entire sum then due or of Beneficiary's right either to
require prompt payment of all sums then due or to declare default.
The acceptance of payment of any sum secured hereby after its due
date will not waive the right of Beneficiary either to require
prompt payment when due of all other sums so secured or to declare
default for failure so to pay, No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
2. At any time upon the occurrence of a default,
without liability therefor and with or without notice, upon written
request of Beneficiary and presentation of this deed for
endorsement, and without affecting the personal liability of any
person, Trustee may reconvey any part of the property, consent to
the making of any map or plat thereof, join in granting any
easement or join in any extension agreement or any agreement
subordinating the lien or charge thereof.
3. Upon written request of Beneficiary, surrender of
this deed to Trustee for cancellation and retention, and payment of
its fees, Trustee shall reconvey, without warranty the property
then held hereunder. The recitals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
L - 3
96 350
designated in such reconveyance as "the person or persons legally
entitled thereto."
4. Trustor may give such notice to Beneficiary at any
time before there is a Trustee's sale of the property. At any time
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt,
5. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default, Trustor or such owner shall pay to Beneficiary
in advance on the first day of each month a reasonable rental for
the premises so occupied. On failure to pay such reasonable
rental, Trustor or such owner may be removed from the premises by
summary dispossession proceedings or by any other appropriate
action or proceeding.
6. If default is made in performance of any agreement
hereby secured, then Beneficiary, with or without notice to
Trustor, may institute suit for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall deposit with Trustee this deed, and all documents
evidencing expenditures secured hereby,
7. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, at public auction,
to the highest bidder, for cash in lawful money of the United
States, payable at the time of sale. Trustee may postpone from
time to time sale of all or any portion of the property by public
announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
L - 4
96 350
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
8. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at five percentage points over Bank of America's published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
9. Before Trustee's sale, Beneficiary may rescind such
notices of default and its election to cause the property to be
sold by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
10. Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
11. If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns,
12. All leases of any structures on the Retail Parcel as
defined in the DDA, now or hereafter affecting the Retail Parcel
are hereby assigned and transferred to Beneficiary by Trustor.
Trustor hereby covenants that none of such leases will be modified
or terminated without the written consent of Beneficiary.
Beneficiary will, when reasonably requested to do so, provide to
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tenants, under leases approved by it, agreements of non-disturbance
of such tenancy in the event that Beneficiary acquires title to the
Retail Parcel, providing that such tenant attorns in writing to the
interests of Beneficiary and pays to Beneficiary the rent and other
sums owed under the lease.
13. If a default is made in the performance of any
agreement hereby secured, Trustor when requested to do so, shall
give such further written assignments of rents, royalties, issues
and profits; of all security for the performance of leases; and of
all money payable under any option to purchase, and shall give
executed originals of all leases, now or hereafter on or affecting
the property.
14. Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor's right to collect such moneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
default hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in collecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
15. Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, Beneficiary may release any
person now or hereafter liable for performance of such obligation,
and may extend the time for payment or performance, accept
additional security, and alter, substitute or release any security.
16. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys' fees in a reasonable sum, to be fixed by the court,
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17.
exclusive of
future law.
No remedy hereby given to Beneficiary or Trustee is
any other remedy hereunder or under any present or
defense
waived,
18.
to any
to the
The pleading of any statute of limitations as a
and all obligations secured by this deed is hereby
full extent permissible by law.
19.
furnish the
operations of
Trustor shall, upon request made by Beneficiary,
Beneficiary with annual statements covering the
the property.
20. Beneficiary may collect a "late charge" not to
exceed an amount equal to five percent (5%) on the amount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
21. This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devises,
administrators, executors, successors, successors in interest, and
assigns. The term "Beneficiary" means the owner and holder,
including pledgees, of the Agreement secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
22. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
23. Trustor, and its successors and assigns, shall
maintain in good condition the improvements on the Retail Parcel,
shall keep the Retail Parcel free from any accumulation of debris
or waste material, subject to normal construction job-site
conditions, and shall maintain in a neat, orderly, healthy and good
condi tion the landscaping on the Retail Parcel. In the event
Trustor, or its successors or assigns, fails to perform the
maintenance as required herein, Beneficiary shall have the right,
but not the obligation, to enter the Retail Parcel and undertake
such maintenance activities. In such event, Beneficiary shall
reimburse the Agency for all reasonable sums incurred by it for
such maintenance activities.
24. Beneficiary agrees that it will enter
subordination agreements, and execute such other documents
are reasonably required to effect such subordinations, on
into
which
terms
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reasonably acceptable to it, with the lenders under any deeds of
trust which are in compliance with the provisions of the DDA and
are intended by the parties to the DDA to be superior to this Deed
of Trust.
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below:
MAILING ADDRESSES FOR NOTICES:
MDA-San Bernardino Associates, L.L.C.
as Trustor:
300 Continental Blvd., Suite 360
El Segundo, California 90245
Attn: Jason Kamm
Executed at San Bernardino, California, on the date first
above written.
MDA-SAN BERNARDINO ASSOCIATES,
L.L.C., a Delaware limited
liability company,
By: SK Metro Development, L.P.,
a California limited
partnership, its managing
member
By: SK Metro Corp. , a
California corporation,
its general partner
By:
Rex Swanson, President
APPROVED AS TO FORM:
GREENBERG, GLUSKER, FIELDS, CLAMAN
& MACHTINGER, L.L.P.
By:
Stephen Claman
Attorneys for Developer
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EXHIBIT "A" TO DEED OF TRUST (RETAIL PARCEL)
LEGAL DESCRIPTION
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