HomeMy WebLinkAbout1994-335
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RESOLUTION NO. 94-335
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, AND ESTOPPEL
CERTIFICATE [FOSTER-KHOURY]
WHEREAS, the City of San Bernardino (the "City") and
Maruko, Inc. ("Maruko") entered into that certain City of San
9 Bernardino Convention Center Sublease and Operating Agreement
10 (the "Operating Agreement") on or about August 4, 1987, with
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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 which adjoins the Leased Premises
to Foster-Khoury International, Inc., a California corporation
("Foster-Khoury"); and
WHEREAS, Maruko and Foster-Khoury desire to assign
25 Maruko's rights and obligations under the Operating Agreement to
26 Foster-Khoury; and
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28 WHEREAS, the principals of Foster-Khoury, Angela Foster
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94-335
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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 ("Transferee"), contemporaneously
with or as soon as possible after Foster-Khoury's acquisition of
the Property; and
WHEREAS, Section l2.l 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;
and
WHEREAS, section 17.17 of the Operating Agreement
provides that the parties to the Operating Agreement will, upon
request by the other party, execute an estoppel certificate
stating that the Operating Agreement is unmodified and in full
force and effect, the date to which rent is paid and the
existence of any known default under the Operating Agreement;
WHEREAS, Foster-Khoury has requested that the City
provide it with such an estoppel certificate; and
WHEREAS, the City deems it to be in the public interest
to consent to the transfer of Maruko' s interests under the
Operating Agreement.
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94-335
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE,
DETERMINE AND ORDER AS FOLLOWS:
SECTION l. The Recitals hereinabove are true and
correct and are incorporated herein by this reference.
SECTION 2. The City hereby authorizes and directs
the Mayor to execute and deliver the Consent to Transfer in the
form attached hereto as Exhibit "A", with such non-substantive
changes as the Mayor and the City Attorney may find reasonably
necessary and acceptable.
SECTION 3. The City further hereby consents to the
transfer of ownership of the shares of Foster-Khoury to
Transferee at any time within 180 days of the execution of the
consent in the form attached hereto as Exhibit "A". A transfer
of said shares after that date shall require a further review and
approval by the City not to be unreasonably withheld.
SECTION 4. The City hereby consents to the
assignment of all of Maruko's rights and obligations under the
Operating Agreement to Foster-Khoury.
SECTION 5. The city authorizes and directs the
Mayor to execute an estoppel certificate, in a form approved by
the City Attorney, as and when requested by Foster-Khoury,
reflecting, as of the date of such estoppel certificate, the
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94-335
1 status of the Operating Agreement, the date to which rent has
2 been paid, the existence of any known default, and such other
3 information as reasonably requested by Foster-Khoury and/or
4 required under Section 17.17 of the Operating Agreement.
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6 SECTION 6. No subsequent transfers of any interest
7 in the Leased Premises or of the rights and obligations under the
8 Operating Agreement shall occur except in compliance with
9 section 12.1 of the Operating Agreement.
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11 SECTION 7. The city I s consent is expressly
12 contingent upon execution by Foster-Khoury and delivery to the
13 city of the assumption by Foster-Khoury of all of the obligations
14 of Maruko under the Operating Agreement, which assumption shall
15 be substantially in the form attached hereto as Exhibit "B".
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94-335
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, AND ESTOPPEL CERTIFICATE
[FOSTER-KHOURY]
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 day of october
1994, by the following vote, to wit:
AYES:
Council Members Neqrete" Curl~ll"Hernandez,
Oberhelman, Devlin, Pope-Ludlam,
and Miller
NAYS:
ABSENT:
~k~
The foregoing resolution is hereby approved this
;Ur~
day of
O~T.ohp-r
, 1994.
~l((
Ralph
~-
...:."-""'"
Hernandez, Mayor Pro Tern
San Bernardino
Approved as to form and
Ci~
By: ~
legal content:
~h, /Jr$.-. tit /hy
SBEO\OOOI\DOC\1023
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94-335
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EXHIBIT "A"
CONSENT TO TRANSFER
[Convention Center Sublease and Operating Agreement]
This Consent to Transfer is made as of October
1994, by the City of San Bernardino, California (the "City")
respect to the following facts:
,
with
Recitals
A. The City and Maruko, Inc. ("Maruko") entered into
that certain City of San Bernardino Convention Center Sublease
and Operating Agreement (the "Operating Agreement") on or about
August 4, 1987, with regard to certain real property located in
the city, described in Exhibit "A" of the Operating Agreement,
which property consists of convention center facilities with
related improvements and personal property (the "Leased
Premises").
B. Maruko has filed for protection under the
bankruptcy laws of the united States.
C. 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"),
and Maruko and Foster-Khoury desire to transfer and assign
Maruko's rights and obligations under the operating Agreement to
Foster-Khoury. Further, 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 ("Transferee") ,
contemporaneously with or as soon as possible after Foster-
Khoury's acquisition of the hotel and of rights under the
Operating Agreement.
D. 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 condition set
forth in section 4 below, to Maruko's assignment of all of its
rights and obligations under the operating Agreement to Foster-
Khoury.
2. The city hereby consents that Angela Foster and
Najib Khoury may, at any time within 180 days of execution of
this consent, sell, transfer or assign their shares in Foster-
Khoury to Transferee. Any such sale, transfer or assignment
occurring after the 180 day period will require a further review
and approval by the City and the Agency, not to be unreasonably
withheld.
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94-335
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3. No subsequent transfers or assignments of the
Leased Premises or the rights under the Operating Agreement shall
occur without compliance with section 12.l of the Operating
Agreement.
4. This consent is expressly contingent upon
execution by Foster-Khoury of the Assumption Agreement approved
by the city and delivery thereof to the City whereby Foster-
Khoury assumes all of the rights and obligations of Maruko under
the Operating Agreement.
CITY OF SAN BERNARDINO, CALIFORNIA
By:
Tom Minor
Mayor
APPROVED AS TO FORM
AND LEGAL CONTE T'
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94-335
EXHIBIT "B"
ASSUMPTION AGREEMENT
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")
and Maruko, Inc., a Japanese corporation.
Recitals
A. The City, the Agency and Maruko, Inc. ("Maruko")
entered into that certain Owner Participation and Development
Agreement ("OPA") on or about July 20, 1987, with regard to
certain real property located in the City (described in
Exhibit "A" of the OPAl, 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
("Amendment No.1").
B. The City and Maruko entered into that certain city
of San Bernardino Convention Center Sublease and Operating
Agreement (the "Operating Agreement") dated as of August 4, 1987,
whereby the city, as sublessor, subleased the Leased Premises
(described in Exhibit "A" of the Operating Agreement), generally
consisting of convention center facilities adjacent to the
Property, to Maruko as sublessee.
C. The city, as owner of the Leased Premises, had
previously leased the same to the San Bernardino civic Center
Authority (the "Authority") as lessee by way of a lease recorded
June 4, 1970. The Authority, in turn, subleased the Leased
Premises back to the City by virtue of a sublease recorded
June 4, 1970. Since the date of the Operating Agreement, the
Authority has assigned, transferred or released its interests in
the Leased Premises in favor of the city, which now holds all
ownership and lease rights in the Leased Premises, save for the
rights held by Maruko under the Operating Agreement.
D. Maruko has filed for protection under the
bankruptcy laws of the united States.
E. Maruko has entered into an agreement for the sale
of the Property to Foster-Khoury, subject to the approval of the
bankruptcy court.
F. section 6.5 (c) of the OPA provides that neither
title to the Property nor the interests of Maruko under the OPA
may be assigned without the prior written consent of the City 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,
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94 33!1
1 all of the obligations, covenants, conditions and restrictions
imposed on Maruko under the OPA.
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G. section 12.1 of the Operating Agreement provides
that Maruko may not assign its interests under the Operating
Agreement without the City's prior written consent, not to
unreasonably be withheld.
H. The City and the Agency have consented to the
transfer of Maruko's title to the Property to Foster-Khoury, and
to an assignment of Maruko's rights and obligations under the OPA
and the Operating Agreement, contingent upon execution of this
Agreement.
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. Foster-Khoury hereby assumes all of
obligations, without exception, and acquires all of
rights, under the provisions of the OPA, as amended.
Maruko's
Maruko's
3. Foster-Khoury hereby assumes all of Maruko's
obligations, without exception, and acquires all of Maruko's
rights, under the provisions of the Operating Agreement.
4. By the assumptions set forth in sections 2 and 3
above, Foster-Khoury agrees to perform each and every obligation
of Maruko under the OPA and/or the Operating Agreement, including
obligations, if any, previously due but unperformed.
5. The City and the Agency agree that Maruko shall
have no further obligations under either the OPA or the Operating
Agreement, and Maruko agrees that it shall have no further rights
under either the OPA or the operating Agreement.
6. The city and Foster-Khoury acknowledge and agree
that the operating Agreement shall hereinafter be deemed to be a
lease from the City, as owner of the Leased Premises, to Foster-
Khoury as lessee, and that the Authority has no further rights or
interests in the Leased Premises. They further agree to execute
a restated lease form, if requested by the City, which reflects
the provisions of this Section, providing that no other
substantive provision of the operating Agreement is altered.
7. Foster-Khoury agrees that no further transfer of
any right in or title to the Property or of rights under the OPA
or the Operating Agreement may occur except in compliance with
the applicable provisions of the OPA and/or the operating
Agreement, save for a transfer of ownership rights in the shares
of Foster-Khoury to which the City and the Agency have agreed.
No transfer or assignment of any of Foster-Khoury's rights and
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94-335
obligations
obligations
transferred
under the OPA may be made unless
under the operating Agreement
or assigned to the same transferee,
its rights and
are likewise
and vice versa.
8. 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.
9. By its execution of this Agreement, Maruko agrees
to all of the foregoing terms and provisions, subject to approval
by the United States Bankruptcy Court.
10. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
CITY OF SAN BERNARDINO, CALIFORNIA
By:
Tom Minor
Mayor
APPROVED AS TO FORM
AND LEGAL CONTENT:
BY:~~
J'r;~JrCity orney
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Tom Minor
Chairman
APPROVED AS TO FORM
AND LEGAL CONTENT:
Saba & Green
~'
BY:.~ ~.
Agency u el
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94-335
FOSTER-KHOURY INTERNATIONAL, INC.,
a California corporation
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Attorneys for Foster-Khoury
International, Inc.
MARUKO, INC.,
a Japanese corporation
By:
Name:
Title or capacity:
APPROVED AS TO FORM:
By:
Attorneys for Maruko, Inc.
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94-335
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.
signature
(Seal)