HomeMy WebLinkAbout1994-336
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RESOLUTION NO. 94-336
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO, CALIFORNIA,
AUTHORIZING AND DIRECTING THE ISSUANCE OF
CERTIFICATE OF COMPLIANCE, AND EXECUTION OF
CONSENT TO TRANSFER OF REAL PROPERTY
INTEREST AND RIGHTS UNDER OWNER
PARTICIPATION AGREEMENT, ASSUMPTION
AGREEMENT RELATING TO HOTEL PROPERTY AND
ESTOPPEL CERTIFICATE [FOSTER-KHOURY]
WHEREAS, the City of San Bernardino (the "City"), the
Redevelopment Agency of the City of San Bernardino (the "Agency")
and Maruko, Inc. ("Maruko") entered into that certain Owner
Participation and Development Agreement ("OPA") on or about July
20, 1987, with regard to certain real property located in the
City, described in Exhibit "A" of the OPA, which property is
improved with a hotel (the "Property"); and
WHEREAS, 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"); and
WHEREAS, Section 4.3 of the OPA provides that upon
22 completion of Improvements (as defined in Section 2.16 of the
23 OPAl and upon the opening of the hotel for the purposes of
24 receiving guests, the City and the Agency will issue a
25 Certificate of Compliance evidencing completion of Maruko's
26 obligations as set forth in the OPA, in the form attached hereto
27 as Exhibit "A"; and
28 III
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94-336
1 WHEREAS, the Improvements have been completed and the
2 hotel has opened for the purpose of receiving guests, but no
3 Certificate of Compliance has yet been issued; and
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5 WHEREAS, Maruko has filed for protection under the
6 bankruptcy laws of the United States: and
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8 WHEREAS, Maruko has entered into an agreement for the
9 sale of the Property to Foster-Khoury International, Inc., a
10 California corporation ("Foster-Khoury"): and
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12 WHEREAS, the principals of Foster-Khoury, Angela Foster
13 and Najib Khoury, intend to sell their shares and interest in
14 Foster-Khoury to Rabweh International Corporation, a California
15 corporation owned and controlled by His Royal Highness Shaikh
16 Mohamed Bin Sulman Al Khalifa ("Transferee"), contemporaneously
17 with or as soon as possible after Foster-Khoury's acquisition of
18 the Property: and
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20 WHEREAS, Section 6.5 (c) of the OPA provides that
21 neither title to the Property nor the interests of Maruko under
22 the OPA may be assigned without the prior written consent of the
23 City, which consent shall not be unreasonably withheld, and
24 further provides that the City may require the proposed assignee
25 or transferee to assume, by written agreement, all of the
26 obligations, covenants, conditions and restrictions imposed on
27 Maruko under the OPA: and
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94-336
1 WHEREAS, Section 9.10 of the OPA provides that the
2 parties to the OPA will, from time to time and upon request of
3 the other party, execute an estoppel certificate stating that the
4 OPA is unmodified and in full force and effect, the dates to
5 which Redevelopment Assistance has been paid and the existence of
6 any known default under the OPA; and
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8 WHEREAS, Foster-Khoury has requested that the City and
9 the Agency provide it with such an estoppel certificate; and
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11 WHEREAS, the City deems it to be in the public interest
12 to consent to the transfer of title of the Property, and to the
13 assignment of Maruko's interest under the OPA, to Foster-Khoury,
14 and to consent to the subsequent transfer of the ownership of the
15 shares of Foster-Khoury to Transferee, upon the condition that
16 Foster-Khoury assume all of the obligations, covenants,
17 conditions and restrictions of Maruko under the OPA, as amended.
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19 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
20 CITY OF SAN BERNARDINO, CALIFORNIA, DO HEREBY FIND, RESOLVE,
21 DETERMINE AND ORDER AS FOLLOWS:
22
23 SECTION 1. The Recitals hereinabove are true and
24 correct and are incorporated herein by this reference.
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26 SECTION 2. The City hereby authorizes and directs
27 the Mayor to execute and deliver the Certificate of Compliance in
28 the form attached hereto as Exhibit "A", with such non-
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94-336
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substantive changes as the Mayor and the city's counsel may find
reasonably necessary and acceptable.
SECTION 3. The city hereby consents to the sale of
the Property, together with related easements and rights
appurtenant thereto, from Maruko to Foster-Khoury.
SECTION 4. The City hereby consents to the
assignment of all of Maruko's rights and obligations under the
OPA, as amended, to Foster-Khoury.
SECTION 5. The City further hereby consents to the
transfer of ownership of the shares of Foster-Khoury to
Transferee at any time within l80 days of the execution of the
consent in the form attached hereto as Exhibit "B". A transfer
of said shares after that date shall require a further review and
approval by the City not to be unreasonably withheld.
SECTION 6. The city authorizes and directs the
Mayor to execute and deliver the Consent to Transfer in the form
attached hereto as Exhibit "B" and the Assumption Agreement in
the form attached hereto as Exhibit "C", with such non-
substantive changes as may be reasonable and which are acceptable
to both the Mayor and to the city Attorney.
SECTION 7. 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,
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94-336
1 reflecting, as of the date of such estoppel certificate, the
2 status of the OPA, payments due thereunder, the existence of any
3 defaults thereunder, and such other information as reasonably
4 requested by Foster-Khoury and/or required under Section 9.10 of
5 the OPA.
6
7 SECTION 8. No subsequent transfers of any interest
8 in the Property or of the rights and obligations under the OPA
9 shall occur except in compliance with Section 6.5 of the OPA.
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11 SECTION 9. The City'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 OPA, as amended, which assumption shall be
15 substantially in the form attached hereto as Exhibit "C".
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94-336
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, AUTHORIZING AND DIRECTING THE ISSUANCE OF
CERTIFICATE OF COMPLIANCE, AND EXECUTION OF CONSENT TO TRANSFER
OF REAL PROPERTY INTEREST AND RIGHTS UNDER OWNER PARTICIPATION
AGREEMENT, ASSUMPTION AGREEMENT RELATING TO HOTEL PROPERTY AND
ESTOPPEL CERTIFICATE [FOSTER-KHOURY]
SECTION 10.
The findings and determinations herein
6 shall be final and conclusive. This Resolution shall take effect
7 upon the date of its adoption.
8
9 I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Mayor
and Common Council of
the
City of
San Bernardino at a
meeting
rp.Q1l1~r
thereof, held on the
17th day of October
1994, by the following vote, to wit:
AYES:
council Members Negrete, Curlin, Hernandez,
Oberhelman, Devlln, Pope-Ludlam
and Miller
NAYS:
ABSENT:
~k~
The foregoing resolution is hereby approved this
M fil-..
ttJc7(J ~,
V J~ t'--
Ralph Hernandez, Mayor
San Bernardino
Pro Tern
day of
, 1994.
0-
Approved as to form and legal content:
City Attorney //
B~~ ~r. ()w; ~/a-
SEE 0001 \DOC\1021 '7
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94-336
EXHIBIT "A"
After Recording, Mail to:
City Clerk
City of San Bernardino
300 North "D" Street
San Bernardino, California 92418
CERTIFICATE OF COMPLIANCE
PROJECT NAME:
San Bernardino Hotel/Convention Center
LEGAl DESCRIPTION:
See Exhibit "A"
OWNER OF PROPERTY/
PARTICIPANT:
Maruko, Inc.
c/o KOAR, Inc., 555 S. Flower Street,
Los Angeles, CA 90071
PROJECT DESCRIPTION: Completion of Hotel/Convention Center in
accordance with the terms of that "Owner Participation Agreement"
between the City of San Bernardino, the Redevelopment Agency of
the City of San Bernardino and Maruko, Inc., dated July 20, 1987
(the "Agreement").
ADDRESS:
NOTICE IS HEREBY GIVEN that the above described project
has been completed in compliance with the terms and conditions of
the Agreement.
DATED:
CITY OF SAN BERNARDINO
By:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
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94-336
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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)
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)
A - 2
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94-336
EXHIBIT "B"
CONSENT TO TRANSFER
[Owner Participation and Development Agreement]
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, the Agency and Maruko, Inc. ("Maruko")
entered into that certain Owner Participation and Development
Agreement ("OPA") on or about July 20, 1987, with regard to
certain real property located in the City, described in Exhibit
"A" of the OPA, which property is improved with a hotel (the
"Property") . 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 Agency have issued a Certificate of
Compliance as required under Section 4.3 of the OPA.
C. Maruko has filed for protection under the
bankruptcy laws of the United States.
D. Maruko has entered into an agreement for the sale
of the Property 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 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.
E. 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,
all of the obligations, covenants, conditions and restrictions
imposed on Maruko under the OPA.
Consent
1. The City and the Agency hereby consent, upon the
condition set forth in Section 3 below, to the following:
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94-336
a. Maruko may transfer to Foster-Khoury title to
the Property, together with related easements and rights
appurtenant thereto.
b. Maruko may assign to Foster-Khoury all of
Maruko's rights and obligations under the OPA, as amended.
c. 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.
2. No subsequent transfers or assignments of the
Property, the rights under the OPA or of ownership of Foster-
Khoury, other than as permitted hereunder, shall occur without
compliance with Section 6.5 of the OPA.
3. This consent is expressly contingent upon
execution by Foster-Khoury of the Assumption Agreement approved
by the City and the Agency, and delivery thereof to the City and
the Agency, whereby Foster-Khoury assumes all of the rights and
obligations of Maruko under the OPA, as amended.
CITY OF SAN BERNARDINO, CALIFORNIA
By:
Tom Minor
Mayor
APPROVED AS TO FORM
AND LEGAL CONTENT:
B~~
)~. -;- City torney
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Tom Minor
Chairman
APPROVED AS TO FORM
AND LEGAL CONTENT:
Sabo & Green
By:
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94-336
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EXHIBIT "c"
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 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
("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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94 335
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all of the obligations, covenants, conditions and restrictions
imposed on Maruko under the OPA.
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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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 Naj ib 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:
~~,O~-'
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Tom Minor
Chairman
APPROVED AS TO FORM
AND LEGAL CONTENT:
Saba & Green
~~
~ .
By: "-.../ ~ '/
Agency sel
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94-336
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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94-336
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)