Loading...
HomeMy WebLinkAboutCDC/2001-36 RESOLUTION NO. CDC/2001-36 A RESOLUTION OF THE COMMUNITY DEVEWPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS mE GOVERNING BODY OF THE REDEVEWPMENT AGENCY OF mE CITY OF SAN BERNARDINO, APPROVING THAT CERTAIN EXCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY ACQUISmON AND REDEVELOPMENT ASSISTANCE (NEW CENTURY ENTERTAINMENT, INe.) BY AND BETWEEN THE REDEVELOPMENT AGENCY OF mE CITY OF SAN BERNARDINO AND NEW CENTURY ENTERTAINMENT, INC., ON THE TERMS SET FORm IN SUCH AGREEMENT WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") own ertain real property situated in the Central City North Redevelopment Project Area of the Agency onsisting of two (2) separate parcels, generally located in the block bounded by 4th Street, "E' treet, 5th Street and "F" Street and at the northwest corner of 5th and "E" Streets in the City of Sa ernardino, respectively (the "Property"); and WHEREAS, New Century Entertainment, Inc. (the "Developer") is interested in determinin he feasibility of acquiring the Property for redevelopment with commercial/retail uses, includin estaurants, retail and other entertainment related uses and developing a specific description of suc ses in the form of a single master development plan (the "Project"); and WHEREAS, the Agency, currently, deems the disposition and redevelopment of the Propert o be integral to the implementation of the Central City North Redevelopment Project and th eveloper appears to the Agency to be well qualified to undertake the task of planning the details 0 he acquisition of the Property by the Developer from the Agency and the redevelopment of th roject on the Property in a manner compatible with the objectives of the Implementation Plan fo he Agency's Central City North Redevelopment Project; and WHEREAS, the Agency staff prepared a proposed Exclusive Right to Negotiate for Propert 1 B2001 :25793.1 CDC/2001-36 cquisition and Redevelopment Assistance (New Century Entertainment, Inc.) agreement by an etween the Agency and the Developer (the "Agreement") to provide an exclusive period for th eveloper to assess the feasibility of developing the Project on the Property and, possibly, negotiat Disposition and Development Agreement with the Agency for acquisition of the Property; and WHEREAS, it is appropriate for the Commission to take action with respect to greement, as set forth in this Resolution. NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION, AS T VERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF S ERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. On September 17, 2001, the Commission considered the Agreement at egular, open, public meeting of the Commission. The minutes of the Agency Secretary for th eptember 17, 2001, regular meeting of the Commission shall include a record of all documents an ommunication submitted to the Commission by interested persons relating to the consideration 0 he Agreement. Section 2. A copy of the Agreement in the form submitted at the September 17, 2001 eeting is on file with the Agency Secretary. Section 3. The Commission hereby finds and determines that no change in the use of th roperty or any activities on the Property will occur, under the terms and conditions of th greement and that the planning and negotiating activities to occur under the Agreement present n otential significant effect on the environment. The Agreement merely provides for an exclusivit eriod for gathering information, analysis of information and potential negotiation. The Agreemen oes not constitute a "Project" within the provisions of the California Environmental Quality Ac "CEQA"), as amended, and no environmental review is required in association with approval ofth Section 4. The Commission hereby approves the Agreement as submitted at th 2 B2001 :25793. I CDC/2001-36 eptember 17, 2001, meeting. The Executive Director is hereby authorized and directed to execut he Agreement on behalf of the Agency together with such technical and conforming changes as ma e approved by the Executive Director and Agency Special Counsel. If the Agreement is not full ecuted by the parties for any reason within ninety (90) days following the date of adoption of thi esolution, the authorization granted herein to the Executive Director to execute the Agreement 0 ehalf of the Agency shall be of no further force or effect. Section 5. Provided that the Agreement is fully executed by the parties within the perio f time set forth in Section 4 of this Resolution, the Executive Director of the Agency is hereb uthorized and directed to take all actions set forth in the Agreement on behalf of the Agency. 3 B2oo1:25793.1 CDC/2001-36 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CI F SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMEN GENCY OF THE CITY OF SAN BERNARDINO, APPROVING THAT CERTAI XCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY ACQUISITION AN DEVELOPMENT ASSISTANCE (NEW CENTURY ENTERTAINMENT, INC.) BY AN ETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDIN ND NEW CENTURY ENTERTAINMENT, INC., ON THE TERMS SET FORTH IN SUC GREEMENT I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Communit evelopment Commission of the City of San Bernardino at a i oint reg. meeting thereof, held 0 17th day of Septembe~ 2001, by the following vote, to wit: AYES X- x x NAYS ABSTAIN ABSENT x x x 4 B200 1:25793. 1 CDCj2001-36 TATE OF CALIFORNIA ) OUNTY OF SAN BERNARDINO) ss !TY OF SAN BERNARDINO ) I, Secretary of the Community Developmen ommission of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and attache opy of Community Development Commission of the City of San Bernardino Resolutio o. is a full, true and correct copy of that now on file in this office. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official sea f the Community Development Commission of the City of San Bernardino this day 0 2000. Secretary of the Community Development Commission of the City of San Bernardino 5 B200 I :25793.1 CDC/2001-36 THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO EXCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE (NEW CENTURY ENTERTAINMENT, INC.) THIS EXCLUSIVE RIGHT TO NEGOTIATE FOR PROPERTY ACQUISITION AND REDEVELOPMENT ASSISTANCE, is dated as of September _,2001 (this "Agreement") and is entered into by and between NEW CENTURY ENTERTAINMENT, INC., a California corporation (the "Developer"), and the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic, pursuant to Health and Safety Code Sections 33000, et seq. (the "Agency"), to coordinate mutual feasibility assessment, development planning and consideration of the sale, acquisition and redevelopment by the Developer of certain real property presently owned by the Agency, situated in the Central City North Redevelopment Project Area of the Agency, and consisting of two (2) separate parcels, generally located in the block bounded by 4th Street, "E" Street, 5th Street and "F" Street and at the northwest comer of 5th and "E" Streets in the City of San Bernardino, respectively, totaling approximately _ acres and more specifically described in the legal descriptions and vicinity maps attached hereto as Exhibit "A" and incorporated herein by this reference (the "Property"). NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES SET FORTH HEREIN, THE DEVELOPER AND THE AGENCY HEREBY AGREE, AS FOLLOWS: 1. Developer Acknowledgments. a. The Developer hereby acknowledges and agrees that no provision of this Agreement shall be deemed to be an offer by the Agency nor an acceptance by the Agency of any offer or proposal from the Developer to convey any interest in the Property to the Developer. Any studies relating to the Property or the Project (as defined herein) that may be undertaken by the Developer, in its discretion shall be the sole responsibility ofthe Developer and shall not be deemed to be undertaken for the benefit of the Agency. b. Restrictions Against Change in Ownership. Management and Control of Developer and Assignment of Agreement. (1) The qualifications and identity of the Developer and its principals are of particular concern to the Agency. The Agency relied on these qualifications and identity in entering into this Agreement with the Developer. During the term of this Agreement, no voluntary SB2001:24808.! 1 ""--- 5;./ CDC/2001-36 or involuntary successor-in-interest of the Developer shall acquire any rights or powers under this Agreement. The Developer shall not assign all or any part ofthis Agreement or any rights hereunder, without the prior written approval of the Agency Executive Director, which the Agency Executive Director may grant or refuse in his or her sole and absolute discretion. (2) The Developer shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the business entities and individuals either comprising or in control ofthe 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 partners or officers have been notified or may otherwise have knowledge or information. Upon the occurrence of 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 in writing by the Agency Executive Director, prior to the time of such change, the Agency may terminate this Agreement by serving written notice of such termination, referencing this section, on the Developer. 2. Term of Agreement. The rights and duties of the parties established by this Agreement shall commence on the seventh (7th) calendar day following both the approval of this Agreement by the governing body of the Agency and the acceptance of this Agreement by the Developer, as provided in Section 21 (the "Effective Date"). This Agreement will continue in effect for a maximum time period not to exceed eighteen (18) months, in accordance with the following activities to be completed by the Developer: a. The following work shall be completed by the Developer, within the first six (6) months following the Effective Date: (1) Development of a financial feasibility study/analysis for the development ofthe Project (as defined herein) on the Property, with the first phase being a 1,500 to 4,000 space parking structure with retail store spaces on the ground level and, potentially, a hotel/conference center on the top level, including an estimate ofproject costs, project income and a proforma statement of Project capital return including, without limitation, the following: (a) projections of Project income and operating expenses. (b) projections of debt and equity that can be drawn from the Project. (c) Project cash flow projections. (d) projections of public (City, State and Federal) financial assistance anticipated for the Project. SB2001 :24808.1 2 ~J- CDC/2001-36 (e) projections of overall Project value, revenue, sales and property taxes. (f) projections of the costs and benefits to the City and the Agency for all construction, maintenance and operations of all proposed public improvements, the costs of additional or increased levels of public services and any new public revenues anticipated to be generated by the Project, by phase, if applicable, and upon completion ofthe Project. (2) Commence development ofthe conceptual site planning and imaging for the Project. (3) Consult with US Bank/Pipper J affery regarding necessary adjustments to the financial feasibility study for the Project. b. The following additional work shall be completed by the Developer, within the first twelve (12) months following the Effective Date: (I) Development of tenant marketing materials and contracts, including, without limitation, the following: (a) Demographic and economic data. (b) Vicinity and area maps (to include completion maps). (2) a proposed conceptual development plan for the Project on the Property, including, without limitation: (a) proposed land use categories on a parcel-by-parcel basis, including any proposed zoning and General Plan changes, if any, necessary to accommodate the Project; (b) a proposed time schedule and cost estimates for the development of proposed public and private infrastructure upgrades, development of a 1,500 to 4,000 space parking structure, development of other proposed publicly owned facilities, public improvements, public infrastructure and private development; (c) a proposed financing plan identifying financing sources for all private and public improvements proposed in the Project, by phase, if appropriate; (d) a proposed financing plan for the acquisition by the Developer of the CinemaStar theater complex from the Agency; and 882001 :24808.1 3 r/" CDCj2001-36 (3) a list of potential users or tenants and anticipated lease rates and resale land prices, including, without limitation, initial tenant contracts, if applicable; (4) preparation of working materials for the leSe convention in Las Vegas for 2002. c. The Developer shall determine whether the Project is feasible for the Developer within the first twelve (12) months following the Effective Date. If the Developer determines the Project is feasible, it shall so inform the Agency Executive Director in writing before the expiration of the first twelve (12) months following the Effective Date. Thereafter, the Developer and the Agency may proceed to negotiate the final form of the Property DDA. f. The Developer shall submit each ofthe items of information described in this section to the Agency Executive Director, within the time periods set forth above. Within ten (10) days of receipt of any such information, the Agency Executive Director shall determine whether such information is satisfactory, in the Agency Executive Director's sole and absolute discretion. Ifthe specific item of information is satisfactory to the Agency Executive Director, he or she shall notify the Developer in writing that this Agreement shall continue in effect, until the deadline for the submission of the next item of information, as set forth above. If the specific item of information is unsatisfactory to the Agency Executive Director, he or she shall notify the Developer in writing of the reason( s) that the information is unsatisfactory and that this Agreement is suspended, until the Developer re-submits the information in a satisfactory form and receives the written approval ofthe Agency Executive Director. If the Agency Executive Director does not make a determination regarding any item of information submitted by the Developer under this Section 2, within ten (10) days of receipt of such information, the information shall be deemed approved. If the Developer fails to timely submit any of the information set forth above, this Agency may elect, in its sole and absolute discretion, to terminate this Agreement by serving written notice of such termination, referencing this section, on the Developer. The approvals to be issued by the Agency Executive Director under this subsection only relate to the continuance, suspension or termination of the term of this Agreement and in no way bind or constitute the approval of the Agency regarding, without limitation, plans, specification, engineering, architecture, uses, tenants, sale prices, rental rates, the Project or the Property DDA. g. This Agreement shall automatically terminate, without furthernotice or action, and be of no further force or effect at the end ofthe eighteenth (18th) month following the Effective Date, unless prior to that time: (1 ) the parties execute a separate disposition and development agreement (the "Property DDA") for a specific program of disposition and redevelopment of the Property to be undertaken by the Developer, other relevant community redevelopment covenants acceptable to the Agency and such other terms and conditions mutually acceptable to S82001 :24808.1 4 i;l CDC/2001-36 the parties, in which case this Agreement will terminate on the effective date of the Property DDA; or (2) the parties each agree to extend the term of this Agreement to a specific date, subject to the Agency first making a finding that satisfactory progress is being made to complete the activities to be performed by the Developer set forth in Section 2, as determined in the sole and absolute discretion ofthe Agency Executive Director; or (3) the Agency terminates this Agreement under subsection f, above. h. The initial term ofthis Agreement (and all extensions oftime approved by the Agency) is referred to in this Agreement as the "Negotiation Period". 3. The Proiect. The Developer shall take all reasonable actions required or necessary for determining the feasibility of the redevelopment of the Property for the development of commercial/retail uses, including restaurants, retail and other entertainment related uses and development of a specific description of such uses in the form of a single master development plan, at the Developer's sole cost and expense (the "Project"). 4. Obligations of the Develooer. During the Negotiation Period, the Developer shall proceed diligently and in good faith to: a. Review and provide legitimate comments on draft versions of the Property DDA and, if acceptable to the Developer, submit an executed copy ofthe final form ofthe Property DDA to the Agency Executive Director by a date no later than eighteen (18) months following the Effective Date (or such later date corresponding to an authorized extension of the Negotiation Period). b. Keep the Agency advised on the progress ofthe Developer in completing its obligations under this Agreement, on a regular basis or as requested by Agency staff. c. Pay all fees and expenses for engineers, architects, financial consultants, attorneys, planning and other consultants and contractors as required for the Developer to perform the Developer's obligations under this Agreement. The Agency shall not be obligated to payor reimburse any costs or fees incurred by the Developer to perform the Developer's obligations under this Agreement, whether or not this Agreement is terminated early or extended through its potential term. 5. Agency Not To Negotiate With Others. a. The Agency, currently, deems the disposition and redevelopment of the Property to be necessary and the Developer appears to be well qualified to undertake the task of S82001 :24808.1 5 ~ CDC/2001-36 planning the details of the sale of the Property by the Agency to the Developer and the redevelopment of the Project on the Property in a manner compatible with the objectives of the Agency's Central City North Redevelopment Plan. b. During the Negotiation Period, the Agency shall not negotiate with any other person or entity regarding either the disposition of the Property or the redevelopment of the Project on the Property. The term "negotiate", as used herein, shall be deemed to preclude the Agency from accepting any other offer or proposal from a third party to either acquire any interest in the Property (in whole or in part) or redevelop the Property, and from discussing other redevelopment proposals for the Property with third persons or entities; provided, however, any person may submit and the Agency may consider any proposal for the disposition and/or redevelopment of any lands adjacent to the Property. c. Notwithstanding any other prOViSIOn of this Agreement, during the Negotiation Period, the Agency shall not be precluded from furnishing to persons or entities umelated to the Developer information in the possession of the Agency relating to the redevelopment of any other land owned or controlled by the Agency in close proximity to the Property and related to the implementation ofthe Central City North Redevelopment Plan. Implementation ofthe Central City North Redevelopment Plan shall remain in the sole and exclusive purview ofthe Agency. The Agency may also provide any other information in its possession that would customarily be furnished to persons requesting information from the Agency concerning its activities, goals, and matters of a similar nature or as required by law to be disclosed, upon request. 6. efforts to: Agency Cooperation. During the Negotiation Period, the Agency shall use its best a. Assemble, at the request and sole expense of the Developer, written materials and documents relating to the Property that are in the possession of the Agency. The Agency shall also provide appropriate comment to the Developer with respect to one or more conceptual development plans, as may be proposed by the Developer for the Project, and the redevelopment of the Property, including, but not limited to, conceptual plans or studies of vacation, realignment or abandonment of public property and facilities, the installation and improvement of public improvements and environmental evaluation of the Project. b. Provide the Developer with limited access to the Property, during the Negotiation Period, for the purpose of conducting customary due diligence investigations thereon, including environmental investigations of the subsurface or any structure thereon, subject to the terms and conditions of a separate environmental investigation and inspection license agreement to be agreed upon by the Agency and the Developer, at some later date, if applicable. 7. Negotiation of Pro pert v DDA. During the Negotiation Period, the Agency and the Developer shall negotiate diligently and in good faith to prepare and enter into the Property DDA. Both ofthe parties shall exercise best efforts to complete discussions relating to the final terms and SB200 1:24808.1 6 '~o.f'_- ~ CDC/2001-36 conditions ofthe Property DDA and such other matters, as may be mutually acceptable to the parties for the redevelopment of the Project on the Property, prior to the expiration of the Negotiation Period. 8. Consideration for this Agreement and Reservation of Rights. In consideration for the Agency's entering into this Agreement, the Developer will undertake its obligations under this Agreement and provide the Agency with copies of all studies and reports and other information generated by the Developer or its consultants regarding the Proj ect or the Property. The parties agree that, ifthis Agreement terminates for any reason, the Agency fails to extend the Negotiation Period, or the Property DDA is not finally approved by the Agency, for any reason, neither party shall be under any further obligation to the other regarding the disposition, acquisition, reuse, redevelopment or development of the Project or the Property. 9. Planning and Design - Related Acknowledgments of the Parties. Certain development standards and design controls for the Project may be established between the Developer and the Agency in negotiation of or in the final form of the Property DDA, but it is understood by both parties that the Project and the redevelopment of the Property must conform to City of San Bernardino development, design and architectural standards. The Agency shall fully cooperate with the Developer's professional associates in providing information and assistance in connection with the Developer's preparation of drawings, plans and specifications. Nothing in this Agreement shall be considered approval of any plans or specifications for the Project or the Proj ect itselfby either the Agency or the City. 10. Developer Financial Disclosures. The Developer acknowledges that it may be requested to make certain confidential financial disclosures to the Agency, its staff or legal counsel, as part of the financial due diligence investigations ofthe Agency relating to the potential disposition of the Property to the Developer. The parties recognize that such financial disclosures may contain sensitive information relating to other business transactions ofthe Developer, that the disclosure of such information to third parties could impose commercially umeasonable and/or anti-competitive burdens on the Developer and, correspondingly, diminish the value or fiscal benefit that may accrue to the Agency upon the disposition of the Property to the Developer, if terms for such disposition are mutually agreed upon. Accordingly, the Agency agrees to maintain the confidentiality of any business records described in Government Code Section 6254.15, as may be provided by the Developer to the Agency or its consultants, to the maximum extent permitted by law. The Agency shall not provide a copy of any business record protected from disclosure under Government Code Section 6254.15 to a third party, unless the Developer first consents to such disclosure in writing or, unless a court of competent jurisdiction compels disclosure. 11. Developer Acquires No Interest in Real Property or in the Property from the Agencv. The Developer hereby acknowledges that it has not acquired and will not acquire, by virtue of the terms of this Agreement, any legal or equitable interest in real or personal property from the Agency. SB2001 :24808.1 7 ,,:. ~ CDC/2001-36 12. Nondiscrimination. The Developer shall not discriminate against nor segregate any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in undertaking its obligations under this Agreement. 13. Compliance with Law. The Developer acknowledges that the Property DDA, if mutually agreeable terms are established, is likely to require the Developer (among other things) to carry out the construction of certain improvements in conformity with all applicable laws, including all applicable planning and zoning laws, environmental planning and safety laws and federal and state labor and wage laws. 14. Required Approvals. No Property DDA between the parties shall have any force or effect nor shall the Agency be deemed to be a party to any agreement for the disposition of real or personal property to the Developer, until the terms and conditions of the Property DDA are considered and approved by the governing body ofthe Agency, following the conclusion of a public hearing, as required by law. 15. Press Releases. The Developer agrees to discuss any press releases it may propose relating to the Property with the Agency Executive Director or his/her designee, prior to publication, to assure accuracy and consistency of the information. 16. Notice. All notices required hereunder shall be presented in person or by FAX and confirmed by First Class certified or registered United States mail with return receipt requested. Notice shall be deemed confirmed by United States mail effective the second business day after deposit with the United States Postal Service. Notice by personal service shall be deemed effective upon delivery. Either party may change their address for receipt of notice by notifying the other party in writing. TO DEVELOPER: New Century Entertainment, Inc. P.O. Box 8846 Rancho Santa Fe, California 92067 Attn: Ben Cipranic (858) 756-8681 TO AGENCY: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn: Executive Director (909) 663-1044 17. Acceptance of Agreement by the Developer. The Developer shall acknowledge its acceptance of this Agreement by delivering two (2) counterpart executed copies ofthis Agreement SB2001 :24808.1 8 v~> ~ CDC/2001-36 signed by at least two (2) authorized officers of the Developer, on or before the seventh (7th) calendar day following the approval ofthis Agreement by the governing body of the Agency. 18. Authoritv. Each signatory to this Agreement represents and warrants that he or she has the authority to execute this Agreement on behalf of the principal whom he or she purports to represent. 19. Disputes. If a dispute arises between the parties to this Agreement, the parties hereto agree to use the following procedure to resolve such dispute, prior to pursuing other legal remedies: a. A meeting shall be held promptly between the parties that will be attended by executive-level individuals representing each of the parties hereto, who will attempt in good faith to negotiate a resolution of the dispute. b. above, they may: If the parties are unsuccessful in resolving the dispute under subsection a, (1) agree to submit the matter to mediation or binding arbitration or a private adjudicator (ifboth the Developer and the Agency so agree); or (2) initiate litigation upon forty five (45) days advanced written notice to the other party. c. If any party should bring an action against the other(s) to enforce the terms ofthis Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, as determined by a court of competent jurisdiction in said proceeding. 20. Default. If a party fails to fulfill any material obligation of this Agreement, the other party may give written notice to that party of such failure and, if that party fails to remedy such failure within ten (10) calendar days of receipt of such notice, the notifying party may terminate this Agreement by a second written notice and/or pursue whatever other legal or equitable remedies are available. 21. Governing Law: Venue. The parties hereto acknowledge that this Agreement has been negotiated and entered into in California. The parties hereto expressly agree that this Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California. Further, the parties to this Agreement hereby agree that any legal actions arising from this Agreement shall be filed in California Superior Court, in the Court of San Bernardino, Central District. 22. Partial Invaliditv. If any term, provision or portion of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, SB2001 :24808.1 9 '"" V CDCj2001-36 the remainder of this Agreement, or the application of such term or provision or portion thereof to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 23. No Intent to Create Third Party Beneficiaries. The parties intend that the rights and obligations under this Agreement shall benefit and burden only the parties hereto, and do not intend to create any rights in, or right of action to or for the use or benefit of any third party, including any governmental agency, who is not one of the parties to this Agreement. 24. Waivers. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension ofthe time for performance of any obligation or act to be performed herein shall not be deemed to be an extension ofthe time for performance of any other obligation or act to be performed under this Agreement. 25. Entire Agreement. This Agreement (including all Exhibits attached hereto) is the final expression of, and contains the entire agreement between, the parties with respect to the subj ect matter hereof and supersedes all prior understandings with respect thereto. This Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein. This Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. 26. Time of Essence. Time is strictly of the essence with respect to each and every term, condition, obligation and provision hereof and that failure to timely perform any of the terms, conditions, obligations or provisions hereof by either party shall constitute a material breach of and a non-curable (but waivable) default under this Agreement by the party so failing to perform. 27. Construction. Headings at the beginning of each section, paragraph and subparagraph are solely for the convenience ofthe parties and are not a part ofthis Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated, all references to sections are to this Agreement. All exhibits referred to in this Agreement are attached hereto and incorporated herein by this reference. SB2001 :24808.1 10 i,;/ CDC/2001-36 IN WITNESS WHEREOF, New Century Entertainment, Inc., and the Redevelopment Agency of the City of San Bernardino execute this Exclusive Right to Negotiate for Property Acquisition and Redevelopment Assistance on the dates indicated next to each of the signatures of their authorized representatives as appear below. DEVELOPER New Century Entertainment, Inc., a California corporation Dated: .. ~- . --, 7 _ --:- ... .~- L / ,~ .. By: dJ President -?_./,~"-/l/-'- ,- Dated: t-:1?-()1 AGENCY Date: /c// /c/ / / By: APPROVED AS TO FORM: /~. ~ l~-I-)6L' Agency Special Counsel SB2001 :24808.1 II r-. ; ,..... CDC/2001-36 EXHIBIT "A" Legal Descriptions of the Property 12 8B200 I :24808.1