HomeMy WebLinkAbout1994-333
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
RESOLUTION NO.
94-333
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING AND DIRECTING THE EXECUTION OF
CONSENT TO ASSIGNMENT OF SUBLESSEE'S RIGHTS
UNDER CONVENTION CENTER SUBLEASE AND
OPERATING AGREEMENT [RABWEH-ARK SERVICES]
WHEREAS, the City of San Bernardino (the "City") and
Maruko, Inc. ("Maruko") entered into that certain City of San
Bernardino Convention Center Sublease and Operating Agreement
(the "Operating Agreement") on or about August 4, 1987, with
regard to certain real property located in the City, described in
Exhibit "A" of the Operating Agreement, which property consists
of convention center facilities and related improvements and
personal property (the "Leased Premises"); and
WHEREAS, Maruko has filed for protection under the
bankruptcy laws of the United States; and
WHEREAS, Maruko has entered into an agreement for the
sale of Maruko's hotel property (the "Property") which adjoins
the Leased Premises to Foster-Khoury International, Inc., a
California corporation ("Foster-Khoury"); and
WHEREAS, the principals of Foster-Khoury, Angela Foster
and Najib Khoury, intend to sell their shares and interest in
Foster-Khoury to Rabweh International Corporation, a California
corporation owned and controlled by His Royal Highness Shaikh
Mohamed Bin Sulman Al Khalifa ("Rabweh"), contemporaneously with
or as soon as possible after Foster-Khoury's acquisition of the
-1-
94-333
1 Property; and
2
3 WHEREAS, the City has consented or is contemporaneously
4 herewith consenting to the transfer of the Property, and of an
5 assignment of Maruko's interests in the Operating Agreement, to
6 Foster-Khoury; and of the sale of the shares of Foster-Khoury to
7 Rabweh; and
8
9 WHEREAS, it is the intention of Foster-Khoury and
10 Rabweh that the rights and obligations of Foster-Khoury in and to
11 the Operating Agreement should vest in and be exercised and
12 performed by Rabweh; and
13
14 WHEREAS, Rabweh intends to enter into that certain
15 Hotel Lease Agreement (the "Hotel Lease"), which has been or is
16 contemporaneously herewith approved by the City, whereby some,
17 but not all, of Rabweh's rights and obligations in and to the
18 Operating Agreement will be transferred to and assumed by ARK
19 Services Company, presently in formation either as a California
20 limited liability company or a limited partnership, ("Hotel
21 Lessee"), an affiliate of Northwest Lodging, Inc., a Washington
22 corporation, ("Northwest"), with the balance of the non-
23 transferred rights and obligations remaining with Rabweh, and
24 whereby Hotel Lessee will manage and operate the Leased Premises;
25 and
26
27 WHEREAS, Section 12.1 of the Operating Agreement
28 provides that the interests of Foster-Khoury under the Operating
-2-
94-333
1 Agreement may not be assigned without the prior written consent
2 of the City, which consent shall not be unreasonably withheld;
3 and
4
5 WHEREAS, the City deems it to be in the public interest
6 to consent to the assignment to Rabweh of Foster-Khoury's
7 interest under the Operating Agreement, and to consent to the
8 subsequent transfer of some of Rabweh's rights and obligations
9 under the Operating Agreement to the Hotel Lessee under the Hotel
10 Lease upon the condition that the Hotel Lessee assume all of the
11 obligations, covenants, conditions and restrictions of Rabweh and
12 Foster-Khoury under the Operating Agreement, and that Rabweh and
13 Foster-Khoury nevertheless remain fully liable to the City under
14 the Operating Agreement, notwithstanding the partial assignment
15 to Hotel Lessee, and, further, that Northwest guarantee the
16 obligations of the Hotel Lessee under the Hotel Lease,
17
18 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
19 CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE,
20 DETERMINE AND ORDER AS FOLLOWS:
21
22 SECTION 1. The Recitals hereinabove are true and
23 correct and are incorporated herein by this reference.
24
25 SECTION 2. The City hereby consents to the
26 assignment to Rabweh of all of Foster-Khoury's rights and
27 obligations under the Operating Agreement, whether by express
28 assignment or by merger or other corporate reorganization of
-3-
94-333
1 Foster-Khoury and Rabweh, providing that Foster-Khoury remains
2 fully liable under the provisions of the Operating Agreement, not
3 withstanding such assignment.
4
5 SECTION 3. The City further consents to the
6 assignment to the Hotel Lessee of Rabweh's rights, or some
7 portion thereof, under the Operating Agreement, as is provided in
8 the Hotel Lease, providing that Rabweh and Foster-Khoury remain
9 fully liable under the provisions of the Operating Agreement, not
10 withstanding such assignment.
11
12 SECTION 4. The consents provided in Sections 2 and
13 3 above are contingent upon: (i) an assumption by the Hotel
14 Lessee of the obligations of Rabweh and Foster-Khoury under the
15 Operating Agreement; (ii) Rabweh and Foster-Khoury remaining
16 fully liable to the City for the performance of the Operating
17 Agreement notwithstanding the assumption of obligations by the
18 Hotel Lessee; (iii) the execution by Rabweh, Foster-Khoury and
19 the Hotel Lessee of the Assumption Agreement in the form attached
20 hereto as Exhibit "A" and incorporated herein by reference; and
21 (iv) a guarantee by Northwest of the Hotel Lessee's obligations
22 under the Hotel Lease, which guaranty shall be in a form
23 satisfactory to the Mayor and the City Attorney.
24
25 SECTION 5. The consents contained in Sections 2 and
26 3 hereof are contingent upon such assignments being completed
27 within 180 days of the date of execution of the Consent to
28 Transfer attached hereto as Exhibit "C". A transfer under either
-4-
94-333
1 of said Sections after such period shall require a further review
2 and approval by the City not to be unreasonably withheld.
3
4 SECTION 6, The City authorizes and directs the
5 Mayor to execute and deliver the Consent to Transfer in the form
6 attached hereto as Exhibit "C", and incorporated herein by
7 reference, and the Assumption Agreement in the form attached
8 hereto as Exhibit "B", with such non-substantive changes as may
9 be reasonable and which are acceptable to both the Mayor and to
10 the City Attorney.
11
12 SECTION 7. No subsequent transfers of any interest
13 in the Property or of the rights and obligations under the
14 Operating Agreement shall occur except in compliance with
15 Section 12.1 of the Operating Agreement.
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
94-333
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, AUTHORIZING AND DIRECTING THE EXECUTION
OF CONSENT TO ASSIGNMENT OF SUBLESSEE'S RIGHTS UNDER CONVENTION
CENTER SUBLEASE AND OPERATING AGREEMENT [RABWEH-ARK SERVICES]
SECTION 8.
The findings and determinations herein
shall be final and conclusive. This Resolution shall take effect
upon the date of its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Mayor and Common Council of the City of
San Bernardino at a
regular
meeting
thereof, held on the
17th
October
day of
1994, by the following vote, to wit:
AYES:
Council Members Negrete, Curlin, Hernandez,
Oberhelman, Devlin, Pope-Ludlam
and Miller
NAYS:
ABSENT:
a~~
'-.City Clerk
The foregoing
resolution is hereby approved this
---
.;L...,/J..;
October
day of
, 1994.
_~I l~
o
Ralph Hernandez, Mayor Pro Tern
San Bernardino
Approved as to form and legal content:
City })~~:~~~~ ~_ b,
BY~.J S" 4.rSr, '-=0/'/
SBEO\OOOl\DOC\1032
-6-
94-333
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXHIBIT "A"
ASSUMPTION AGREEMENT
[RABWEH-ARK SERVICES]
This Assumption Agreement ("Agreement") is entered into
as of October , 1994, by and between the City of San
Bernardino, California (the "City"), the Redevelopment Agency of
the City of San Bernardino (the "Agency"), Foster-Khoury
International, Inc., a California corporation ("Foster-Khoury"),
a California corporation, Rabweh International, Inc" a
California corporation ("Rabweh") and ARK Services Company
("ARK") .
Recitals
A, The City, the Agency, Foster-Khoury and Maruko,
Inc. ("Maruko") have entered or are contemporaneously herewith
entering into an assumption agreement (the "Foster-Khoury
Assumption Agreement") whereby Foster-Khoury assumes the rights
and obligations of Maruko under in and to that certain Owner
Participation Agreement ("OPA") entered into on or about July 20,
1987. The OPA concerns certain real property located in the City
(described in Exhibit "A" to the OPA) , which property is improved
with a hotel (the "Property"). The OPA was amended by virtue of
that certain Amendment No. 1 to Owner Participation and
Development Agreement and Convention Center Sublease and
Operating Agreement,
B. Under the Foster-Khoury Assumption Agreement,
Foster-Khoury also assumes the rights and obligations of Maruko
under that certain City of San Bernardino Convention Center
Sublease and Operating Agreement (the "Operating Agreement")
dated as of August 4, 1987. The Operating Agreement concerns
certain convention center facilities (the "Leased Premises")
located adjacent to the Property.
C. The City and the Agency have consented or are
contemporaneously herewith consenting to the transfer of the
shares of Foster-Khoury from Angela Foster and Najib Khoury to
Rabweh.
D, It is the desire and intention of Foster-Khoury
and Rabweh that the rights and obligations of Foster-Khoury in
and to the OPA and the Operating Agreement vest in Rabweh and be
exercised and performed by Rabweh.
E. Section 6.5 (c) of the OPA provides that neither
title to the Property nor the interests of Foster-Khoury under
the OPA may be assigned without the prior written consent of the
ci ty and the Agency, which consent shall not be unreasonably
withheld, and further provides that the City and the Agency may
require the proposed assignee or transferee to assume, by written
agreement, all of the obligations, covenants, conditions and
restrictions imposed on Foster-Khoury under the OPA.
A-I
94 333
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
F. Section 12,1 of the Operating Agreement provides
that Foster-Khoury may not assign its interests under the
Operating Agreement without the City's prior written consent, not
to be unreasonably withheld.
G. The City and the Agency have consented to the
transfer to Rabweh of Foster-Khoury's interests in the Property,
together with related easements and rights appurtenant thereto,
Foster-Khoury's rights and obligations under the OPA, as amended,
and Foster-Khoury's rights and obligations under the Operating
Agreement, whether by express transfer and assignment or by
merger or other corporate reorganization of Foster-Khoury and
Rabweh,
H, Rabweh and ARK have or will enter into that
certain Hotel Lease Agreement (the "Hotel Lease"), whereby ARK
will lease the Property and sublease the Leased Premises from
Rabweh, acquire some, but not all, of Rabweh's rights and
obligations under the OPA and the Operating Agreement and whereby
ARK will manage and operate the Property and the Leased Premises,
Pursuant to the Hotel Lease, Rabweh shall execute a deed of trust
("Tenant Deed of Trust") in favor of ARK, encumbering Rabweh's
interest in the Property and the Leased Premises, as security for
Rabweh's performance of certain obligations under the Hotel
Lease. The City and the Agency have consented to the Hotel Lease
and the Tenant Deed of Trust upon certain conditions as set forth
in that certain Consent to Transfer [Convention Center Sublease
and Operating Agreement] executed by the City concurrently
herewith,
NOW, THEREFORE, THE PARTIES HERETO AGREE AS HEREINAFTER
PROVIDED.
Terms and Conditions
1. The Recitals stated above are true and correct and
incorporated herein by reference.
2. Rabweh assumes all of Foster-Khoury' s obligations,
without exception, and acquires all of Foster-Khoury's rights,
under the provisions of the OPA, as amended.
3, Rabweh hereby assumes all of Foster-Khoury's
obligations, without exception, and acquires all of Foster-
Khoury's rights, under the provisions of the Operating Agreement.
4. By the assumptions set forth in Sections 2 and 3
above, Rabweh agrees to perform each and every obligation of
Foster-Khoury under the OPA and/or the Operating Agreement,
including obligations, if any, previously due but unperformed.
Foster-Khoury agrees to remain fully liable for all of its
obligations under the OPA and/or the Operating Agreement,
notwithstanding Rabweh's assumption thereof,
A - 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
94 l3 3 During the term of the Hotel Lease, ARK shall
operate the Property and the Leased Premises in a manner
consistent. with the terms and conditions of the OPA and the
Operating Agreement. As more particularly set forth in the Hotel
Lease, ARK shall, during the term of the Hotel Lease, assume
certain of the obligations of Rabweh and Foster-Khoury under the
OPA and the Operating Agreement, This assumption by ARK shall in
no way release Foster-Khoury or Rabweh from their obligations
under the OPA and the Operating Agreement, and they shall remain
fully liable therefor.
6", The City and the Agency hereby agree that so long
as the Hotel Lease shall remain in effect or the Tenant Deed of
Trust shall remain a lien on Rabweh's interest in the Property
and the Leased Premises, the City shall not accept a voluntary
surrender of the Operating Agreement and the City and the Agency
shall not accept a voluntary termination of the OPA by Rabweh,
unless the City is legally required or contractually bound to do
so.
7. In the event of a default by Rabweh or Foster-
Khoury under the OPA or the Operating Agreement, the City and the
Agency shall give to ARK all of the rights and remedies given to
an approved "Lender" under Article 18 of the Operating Agreement,
which is incorporated herein by this reference, Without limiting
the generality of the foregoing, the City and the Agency agree to
deliver any notices of default under the Operating Agreement
and/or the OPA to ARK concurrently with delivery to Rabweh, and
to afford ARK the opportunity to cure such defaults within the
time periods set forth in Article 18 of the Operating Agreement.
8. The various transfers and assumptions contained in
this Agreement are subject to the provisions of the OPA, the
Operating Agreement, the Consent to Transfer in favor of Foster-
Khoury previously given by the City and the Agency, and the
Foster-Khoury Assumption Agreement,
9. The parties hereto agree that no further transfer
of any right in or title to the Property or of rights under the
OPA or the Operating Agreement may occur except in compliance
with the applicable provisions of the OPA and/or the Operating
Agreement. No transfer or assignment of any rights and
obligations under the OPA may be made unless the rights and
obligations under the Operating Agreement are likewise
transferred or assigned to the same transferee, and vice versa.
10. This Agreement shall become effective upon the
Closing Date of Foster-Khoury's purchase of the Property from
Maruko (as "Closing Date" is defined in the Purchase and Sale
Agreement and Escrow Instructions dated August 5, 1994, by and
between Maruko and Najib Khoury and Angela Foster). No rights or
obligations of any party to this Agreement shall be deemed to be
changed, amended or modified hereby until the effective date
hereof.
A - 3
94 333
,-
94-333
11. This Agreement may be executed in counterparts.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
APPROVED AS TO FORM
:~
s.-..AI1r,City orney
APPROVED AS TO FORM
AND LEGAL CONTENT:
Sabo & Green
~"
, r;;- JJ..-
By: "-/k~ . . -
Agency 0 , sel
CITY OF SAN BERNARDINO, CALIFORNIA
By:
Tom Minor
Mayor
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Tom Minor
Chairman
A - 4
IU
94-333
1
2
3
4
5
6
7
8
9
10
11
12
13 APPROVED AS TO FORM:
14 By:
94 333
APPROVED AS TO FORM:
By:
FOSTER-KHOURY INTERNATIONAL, INC"
a California corporation
By:
Name:
Title:
Attorneys for Foster-Khoury
RABWEH INTERNATIONAL CORPORATION,
a California corporation
By:
Name:
Title or Capacity:
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Attorneys for Rabweh
APPROVED AS TO FORM:
By:
ARK SERVICES COMPANY
By:
Name:
Title or Capacity:
Attorneys for ARK
A - 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
94 333
EXHIBIT "B"
CONSENT TO TRANSFER
[Convention Center Sublease and Operating Agreement]
[RABWEH-ARK SERVICES]
This Consent to Transfer is made as of October ,
1994, by the City of San Bernardino, California (the "City") and
by the Redevelopment Agency of the City of San Bernardino (the
"Agency"), with respect to the following facts:
Recitals
A. The City and Maruko, Inc. ("Maruko") entered into
that certain City of San Bernardino Convention Center Sublease
and Operating Agreement ("Operating Agreement") on or about
August 4, 1987, with regard to certain real property located in
the City, described in Exhibit "A" of the Operating Agreement,
which property consists of convention center facilities with
related improvements and personal property (the "Leased
Premises"), The Operating Agreement was amended by virtue of
that certain Amendment No. 1 to Owner Participation and
Development Agreement and Convention Center Sublease and
Operating Agreement ("Amendment No.1"),
B. Maruko has entered into an agreement for the sale
of Maruko's adjacent hotel facility to Foster-Khoury
International, Inc" a California corporation ("Foster-Khoury"),
The principals of Foster-Khoury, Angela Foster and Najib Khoury,
intend to sell their shares and interest in Foster-Khoury to
Rabweh International Corporation, a California corporation
("Rabweh") owned and controlled by His Royal Highness Shaikh
Mohamed Bin Sulman Al Khalifa, contemporaneously with or as soon
as possible after Foster-Khoury's acquisition of the hotel and of
rights under the Operating Agreement. The City has consented or
is contemporaneously herewith consenting to the assignment of
Maruko's rights and obligations under the Operating Agreement and
to the transfer of the shares of Foster-Khoury to Rabweh.
C. It is the desire and intention of Foster-Khoury
and Rabweh that the rights and obligations of Foster-Khoury in
and to the Operating Agreement vest in and be exercised and
performed by Rabweh,
D. Rabweh and ARK Services Company ("ARK") have or
will enter into a certain Hotel Lease Agreement (the "Hotel
Lease") whereby ARK will sublease the Leased Premises and acquire
some, but not all, of Rabweh's rights and obligations under the
Operating Agreement and whereby ARK will manage and operate the
Leased Premises. Pursuant to the Hotel Lease, certain of
Rabweh's obligations will be secured by a deed of trust in favor
of ARK, encumbering Rabweh's interest in the Leased Premises and
the Hotel (" Tenant Deed of Trust") .
B-1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
S4 333
E. Section 12.1 of the Operating Agreement provides
that the interests of Maruko under the Operating Agreement may
not be assigned without the prior written consent of the City,
which consent shall not be unreasonably withheld.
Consent
1. The City hereby consents, upon the conditions set
forth in Sections 2 and 3 below, to the following:
a, Foster-Khoury may assign to Rabweh all of
Foster-Khoury's rights and obligations under the Operating
Agreement whether by express assignment or by merger or other
corporate reorganization of Foster-Khoury and Rabweh, Foster-
Khoury shall remain fully liable under the provisions of the
Operating Agreement, notwithstanding the assignment to Rabweh.
b. Rabweh and ARK may enter into the Hotel
Lease, in the form approved by the City with such changes as may
be reasonably acceptable to the City, Rabweh and Foster-Khoury
shall remain fully liable under the provisions of the Operating
Agreement, notwithstanding the Hotel Lease.
c. Rabweh and ARK may enter into the Tenant Deed
of Trust, in a form to be approved by the Chairman and Agency
Counsel, with such approval not to be unreasonably withheld, and
ARK shall be recognized as a "Lender" as defined in Section 18.1
of the Operating Agreement,
2. The consents set forth in Section 1 above are
contingent upon the following, to which the parties hereto agree:
a. During the term of the Hotel Lease, and
pursuant thereto, ARK shall sublease the Leased Premises and
shall assume certain of the obligations of Rabweh and Foster-
Khoury under the Operating Agreement, which assumption shall not
release Rabweh and Foster-Khoury from their obligations under the
Operating Agreement.
b. ARK, Rabweh and Foster-Khoury shall execute
and deliver to the City the Assumption Agreement in the form
required by the City.
c. Northwest Lodging, Inc. , a
corporation and affiliate of ARK ("Northwest") shall
the obligations of ARK under the Operating Agreement,
guaranty to be in a form acceptable to the City.
Washington
guarantee
with such
3 . The consents set forth in this agreement are
contingent upon completion of the contemplated transactions
within 180 days of the date hereof. Any transaction not
completed within that time shall require the further review and
consent of the City.
B-2
94-333
4. No subsequent transfers or assignments of the
Leased Premises or the rights under the Operating Agreement shall
occur without compliance with Section 12,1 of the Operating
Agreement.
1
2
3
4
5
6
7 APPROVED AS TO FORM
AND LEGAL CONTENT:
: Yu~~'
10
CITY OF SAN BERNARDINO, CALIFORNIA
By:
Tom Minor
Mayor
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B-3
94-333
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STATE OF CALIFORNIA
COUNTY OF
On before me,
(here insert name and title of the officer), personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s)
whose name (s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(Seal)
Signature