HomeMy WebLinkAboutCDC/2004-47
(See Cornpanion::Resolutions 2004-372, CDC/2004-46)
RESOLUTION NO. CDC/2004-47
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RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN 2004 REDEVELOPMENT PARTICIPATION AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND LA CURACAO, A CALIFORNIA CORPORATION
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WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency")
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has been presented with a proposal to enter into a certain 2004 Redevelopment Participation
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Agreement with La Curacao, Inc., ("La Curacao"), for the purpose of increasing employment
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opportunities, encouraging redevelopment activities and economic development within the Tri-
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City Redevelopment Project Area ofthe Agency; and
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WHEREAS, the implementation of said 2004 Redevelopment Participation Agreement
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will encourage the goals and objectives of the Agency by providing employment opportunities
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for the residents of the City of San Bernardino, California (the "City"), and the Tri-City
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Redevelopment Project Area for which the Agency shall remit certain annual employment
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subsidy payments to La Curacao based upon the index of financial benefits accruing to the City
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calculated upon the financial performance of the project identified in the 2004 Redevelopment
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Participation Agreement; and
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WHEREAS, the Agency is required pursuant to the 2004 Redevelopment Participation
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Agreement to remit certain payments to La Curacao related to the number of employment
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opportunities generated by the new sales location within the Tri-City Redevelopment Project
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Area based upon an index of financial performance of La Curacao which has a direct positive
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financial benefit upon the City General Fund; and
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WHEREAS, the Commission deems it desirable to approve and authorize for execution
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the form of the 2004 Redevelopment Participation Agreement by and between the Agency and
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La Curacao substantially in the form as attached hereto for the purpose of encouraging
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CDC/2004-47
redevelopment activities and economIC development and providing increased employment
2 opportunities all as further set forth in the 2004 Redevelopment Participation Agreement.
3 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION, AS
4 THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
5 BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
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Section 1.
The Commission hereby finds and determines that the recitals as
7 contained herein are accurate and correct in all respects.
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Section 2.
The Commission hereby approves the form of the 2004 Redevelopment
9 Participation Agreement substantially in the form as attached hereto with such additional
10 changes and modifications as deemed necessary by the City Attorney to implement the intent of
11 this Resolution and said 2004 Redevelopment Participation Agreement.
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Section 3.
The Commission hereby authorizes the execution of the final form of the
13 2004 Redevelopment Participation Agreement by the Agency Chairperson and the Agency
14 Secretary when such final form thereof has been presented for execution by the City Attorney.
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Section 4.
The approval, execution and implementation of the 2004 Redevelopment
16 Participation Agreement does not constitute a "Project" within the provisions or meaning of the
17 California Environmental Quality Act of 1970, as amended ("CEQA"), and no environmental
18 review is required in connection with the approval, execution and implementation of the 2004
19 Redevelopment Participation Agreement in the manner and with the limitations as set forth
20 therein limiting the liability of the Agency with respect to CEQA and the approval of the 2004
21 Redevelopment Participation Agreement.
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Section 5.
This Resolution shall take effect from and after the date of adoption and
23 shall not be repealed or amended to adversely affect the rights of the parties thereto so long as
24 the 2004 Redevelopment Participation Agreement remains in effect and requires performance
25 obligations ofthe parties.
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CDC/2004-47
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RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING A
CERTAIN 2004 REDEVELOPMENT PARTICIPATION AGREEMENT
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND LA CURACAO, A CALIFORNIA CORPORATION
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I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
Community Development Commission of the City of San Bernardino at a j t. regular
meeting thereof, held on the 15th day of November ,2004, by the following vote to wit:
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Commission Members: Aves
ESTRADA X
LONGVILLE ~
MCGINNIS X
DERRY X
KELLEY X
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JOHNSON X
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MC CAMMACK
X
Navs
Abstain
Absent
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The foregoing resolution is hereby approved this 1(.. -IV' day of
/
November
,2004.
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22 Approved as to form and Legal Content:
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24 By:
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ORIGINAL
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
2004
REDEVELOPMENT PARTICIPATION AGREEMENT
(La Curacao)
THIS 2004 REDEVELOPMENT PARTICIPATION AGREEMENT (La Curacao) (this
"Agreement") is dated as of November _' 2004, and is entered into by and between La
Curacao, a California corporation (the "Participant") and the Redevelopment Agency of the City
of San Bernardino, a public body corporate and politic, exercising governmental functions and
powers, and organized and existing under the Community Redevelopment Law of the State of
California, Health and Safety Code Sections 33000 et seq. (the "Agency").
FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, AND THE MUTUAL
PROMISES AND COVENANTS OF THE PARTIES SET FORTH HEREIN, THE
PARTICIPANT AND THE AGENCY HEREBY AGREE, AS FOLLOWS:
SECTION 1. Purpose of A2reement. The purpose of this Agreement is to provide for
the redevelopment and economic reuse of certain lands and buildings located at 885 East
Harriman Place (the "Site") and the creation of jobs within the City by the Participant. The
Participant shall acquire a leasehold interest in the Site, and shall design, construct and finance
certain improvements on the Site, which upon completion, shall be suitable for operation by the
Participant as a Retail Department Store ("Business").
SECTION 2. Defined Terms. In addition to the usage of certain terms that are defined
in other sections of this Agreement, the following words and phrases are used in this Agreement,
as follows, unless the particular context of usage of a word or phrase requires another
interpretation:
(a) "Accounting Year" means and refers to the twelve calendar month time period
commencing on the Opening Date and, thereafter, each successive twelve calendar month period,
with the last Accounting Year ending on the tenth (1oth) anniversary of the Opening Date.
(b) "Business" means the Retail Department Store business to be conducted on the
Site by the Participant commencing on or about April 1, 2005.
(c) "City" means the City of San Bernardino.
(d) "New Jobs" means and refers to an aggregate number of not less than one hundred
(100) new hourly wage, salary or commissioned employment positions to be created by the
Participant on the Site and, thereafter, maintained, as set forth in Section 10 of this Agreement.
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(e) "New Job" means and refers to each of the hourly wage, salary or commissioned
employment position work descriptions of each of the employees of the Participant whose work
position at the Site is eligible to be included among the New Jobs for the purpose of satisfying
the New Jobs covenant of the Participant set forth in Section 10 of this Agreement.
(t) "Opening Date" means the date on which the Business is opened for retail sales
business on the Site to the general public, which date shall be on or before June 1,2005.
(g) "Permitted Transfer" means and refers to any of the following types of Transfers
by the Participant, where the person or entity to which such Transfer is made, expressly assumes
the obligations of the Participant under this Agreement in a written instrument satisfactory to the
Agency:
(1) Any Transfer of stock or equity of the Participant that does not change
the management or operational control of the Site or the Business;
(2) Any Transfer of any interest in the Participant, irrespective of the
percentage of ownership, or the Participant's interest in the Site (i) to any other owner of
any interest in the Participant; or (ii) to any affiliate of or other entity related to the
Participant, or (iii) to any other entity in which any holder of an interest (including any
beneficial interest) in the Participant is a manager, a shareholder or member (including a
beneficial participant); and
(3) [Intentionally Left Blank]
(h) "Transfer" means and refers to any of the following:
(1) Any total or partial sale, assignment, conveyance, trust, power, or
transfer in any other mode or form, by the Participant of more than 49% interest (or a
series of such sales, assignments and the like that, in the aggregate, result in a disposition
of more than a 49% interest) in this Agreement, the Site or the Business; or
(2) Any total or partial sale, assignment, conveyance, or transfer in any other
mode or form, of or with respect to any interest in the Participant (or a series of such
sales, assignments and the like that, in the aggregate, result in a disposition of more than a
49% interest); or
(3) Any merger, consolidation, sale or lease of all or substantially all of the
assets of the Participant (or a series of such sales, assignments and the like that, in the
aggregate, result in a disposition of more than a 49% interest).
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SECTION 3. Parties to the Al!reement.
(a) The parties to this Agreement are the Participant and the Agency. The City is not
a party to this Agreement.
(b) The address of the Participant for purposes of this Agreement is 1605 West
Olympic Boulevard, Suite # 600, Los Angeles, California 90015. As a condition precedent to the
Agency's obligations under this Agreement, the Participant shall provide the Agency with
satisfactory evidence of the legal formation and existence of the Participant and the good
standing of the Participant to transact business within the State of California and to occupy,
possess and/or hold title to the Site and the corporate action authorizing the execution of this
Agreement by the persons signing below on behalf of the Participant.
(c) The Agency is a public body, corporate and politic, exercising governmental
functions and powers, and organized and existing under the Community Redevelopment Law of
the State of California, Health and Safety Code Section 33000 et seq. The Agency's address is
201 North "E" Street, Suite 301, San Bernardino, California.
SECTION 4. Chanl!e in Manal!ement or Control of the Participant--Assil!nment
and Transfer.
(a) The Participant hereby acknowledges that the qualifications and identity of the
Participant are of particular importance to the Agency and that the Agency is relying on the
specific qualifications and identity of the Participant in entering into this Agreement with the
Participant. As a consequence, Transfers are permitted only as expressly provided in this
Agreement.
(b) Except as expressly permitted in this Agreement, the Participant shall not create
or suffer to be made or created, any Transfer, either voluntarily or by operation of law, without
the prior written approval of the Agency, prior to the third anniversary of the Opening Date, other
than a Permitted Transfer. The Participant is not required to give the Agency advance notice of a
Permitted Transfer. Any Transfer made in contravention of this Section 4 shall be voidable at the
election of the Agency and, if avoided, shall be deemed to be a default under this Agreement by
the Participant, whether or not the Participant knew of or participated in such Transfer.
(c) For any Transfer, the proposed transferee must satisfactorily demonstrate
successful experience in the ownership, operation, and management of sales and service
operations comparable in size, quality and volume of sales and service business activity to the
Business. All instruments and other legal documents proposed to effect any Transfer shall be
submitted to the Agency for review, prior to the Transfer, and the written approval or disapproval
of the Agency shall be provided to the Participant within thirty (30) calendar days of the
Agency's receipt of the Participant's request. Agency approval of a Transfer shall not be
umeasonably withheld, delayed or conditioned.
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SECTION 5. Participant Solely Responsible for Other Approvals. The Participant
shall be solely responsible for applying for and obtaining any and all permits and approvals that
may be required by the City or any other governmental agency with jurisdiction over the Site or
the business operations or the Business, before commencement of improvement of any building
or structure on the Site or operation of the Business on the Site. The Participant shall also be
solely responsible for obtaining all necessary consents or approvals required from third-party
property owners or tenants, as may be necessary or appropriate.
SECTION 6. rRESERVED - NO TEXT1.
SECTION 7. Participant Representations. Warranties and Covenants Rel!ardinl!
OtherRetail Department Stores.
(a) For the purpose of satisfying the requirements of Health and Safety Code Section
33426.7(e), to the extent applicable, the Participant hereby represents and warrants to the Agency
that the opening of the Business on the Site is not a "relocation" of the Business "within the same
market area", as these terms are defined in California Statutes of 1999, Chapter 462, Section 3.
(b) The Participant for itself, its successors and assigns hereby covenants and agrees
that, from the date of this Agreement and continuing until the tenth (10th) anniversary of the
Opening Date, neither the Participant, any successor-in-interest to the Participant, any person
associated with the Participant, nor any entity related to the Participant will establish a Retail
Department Store business within a ten (10) mile radius of the Site.
SECTION 8. Business Operation Covenants of the Participant.
(a) The Participant hereby makes the following representations, covenants and
warranties, as of the date of its execution of this Agreement, and hereby acknowledges that the
execution of this Agreement by the Agency is made in material reliance by the Agency on each
such covenant, representation and warranty:
(I) The Participant shall cause the Business to be open for business to the
general public on the Site on or before June 1,2005; and
(2) There are no pending or threatened claims, actions, allegations or
lawsuits of any kind, whether for personal injury, property damage, landlord-tenant
disputes, property taxes or otherwise, that are not covered by insurance or that expose the
Participant to liability of more than $ on any given claim, action, allegation
or lawsuit, or that could materially and adversely affect or prevent the performance of any
provision of this Agreement by the Participant, nor to the best of Participant's knowledge,
is there any governmental investigation of any type or nature pending or threatened
against the Participant or any of its principals or relating to the Site, the Business or the
transactions contemplated in this Agreement and the Participant will hold the Agency
harmless from any and all liability, loss, cost and expense resulting from claims arising or
becoming applicable during or as a result of the Participant's possession or ownership of
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the Site. For purposes of this subsection, the phrases "to the best of Participant's
knowledge" or "to Participant's knowledge" shall mean the actual knowledge of Mike
Falkenstein, Senior Vice President of the Participant, orRon Sabar Azarkman, C.E.G. of
the Participant.
(b) If after the Business is open for business, the Business ceases to operate for a
continuous period of ninety (90) calendar days, the obligation of the Agency to pay any
Employment Subsidy to the Participant shall cease for the entire Accounting Year or Accounting
Years in which any part of such extended cessation of operations of the Business occurs.
SECTION 9. Al!encv Emplovment Subsidy.
(a) "Site Employment Index" refers to the total amount of local sales and use taxes
paid to the City, under Revenue and Taxation Code Section 7200, et seq. (as may hereafter be
amended, substituted or modified by any successor local sales and use tax law), on the gross
receipts of the Participant from the sale or lease of all tangible personal property from the
Business in each Accounting Year, in excess of Fifty Thousand Dollars ($50,000.00). The Site
Employment Index correlates the amount of sales and use taxes generated and the number of
employees required to generate such sales and use taxes.
(b) "Employment Subsidy" means and refers to the amount derived by multiplying
the Site Employment Index for each Accounting Year by the following percentages for each
respective Accounting Year:
Accounting Year 1 - _50%
Accounting Year 2 - _50%
Accounting Year 3 - _50%
Accounting Year 4 - _50%
Accounting Year 5 - _50%
Accounting Year 6 - _50%
Accounting Year 7 - _50%
Accounting Year 8 - _50%
Accounting Year 9 - _50%
Accounting Year 10 -_50%
[i.e., in Accounting Year 1, Site Employment Index (total sales and use tax revenues to
the City from the gross receipts of the Participant - $50,000) x .50 = Employment
Subsidy].
(c) The precise amount of the Employment Subsidy shall be determined by the
Agency for each Accounting Year by reference to Revenue and Taxation Code Sections 7200 et
seq., sales and use tax remittance advice or information provided to the City by the State Board
of Equalization related to the operation of the Business on the Site by the Participant and the
foregoing percentages. Upon request by the Agency, the Participant shall provide the Agency
with copies of sales and use tax collection and remittance accounting records prepared by the
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Participant during any Accounting Year and submitted to the State Board of Equalization. If
Revenue and Taxation Code Sections 7200, et seq., are amended, substituted or modified in a
manner that reduces the total amount of local sales and use taxes paid to the City on the gross
receipts of the Participant from the sale or lease of all tangible personal property from the
Business on the Site below the levels that would otherwise be allocated and paid to the City
under Revenue and Taxation Code Sections 7200, et seq., in effect on the date of this Agreement,
then the Employment Subsidy shall be computed in each such Accounting Year in accordance
with such amendment, substitution or modification of Revenue and Taxation Code Sections
7200, et seq.
(d) Subject to the express conditions precedent that the Business is open for business
to the general public on the Site on or before June I, 2005, and the satisfaction of all other terms
and conditions of this Agreement by the Participant, the Agency shall begin annual disbursement
of the Employment Subsidy to the Participant, on the thirtieth (30th) calendar day following each
of the first through the tenth anniversaries of the Opening Date, in exchange for the New Jobs
creation and maintenance covenant set forth in Section 10.
( e) The Agency shall make payments under subsection (d) from legally available
funds of the Agency. Such pledge of legally available funds is expressly subject to the prior
pledge of such funds to the payment of existing debts, obligations, notes, bonds and other forms
of indebtedness of the Agency and any extensions or refinancings of such existing debt, etc.
Although, one of the elements of the Site Employment Index is the sales and use taxes generated
from the Site, the Agency is not entitled to receive local sales and use tax revenues and, thus,
cannot pay and is not promising to pay sales or use tax revenues to the Participant.
SECTION 10. Covenant ofthe Participant to Create New Jobs on the Site.
(a) Subject to the terms of this Agreement, the Participant hereby covenants and
agrees to exercise its best efforts to create and, thereafter, maintain New Jobs on the Site, in
exchange for receipt of the Employment Subsidy related to such New Jobs, as follows:
(1) within twelve (12) months following the Opening Date, at least one
hundred (100) New Job positions shall have been created and be
maintained on the Site; and
(2)
within twenty four (24) months following the Opening Date, an aggregate
of at least one hundred twenty (120~ New Job positions shall have been
created and be maintained on the Site; and
(3)
within thirty six (36) months following the Opening Date, an aggregate of
at least one hundred thirty (130) New Job positions shall have been created
and be maintained on the Site; and
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(4) thereafter, on each of the next seven (7) anniversaries of the Opening Date,
there shall remain a total of, at least, one hundred forty (140) New Job
positions being maintained on the Site.
(b) An employee is eligible to be classified as holding a New Job position, when each
of the following conditions exist:
(I) the employee is paid an hourly wage of at least seven and one-half Dollars
($7.50) per hour or an equivalent salary or commission plus eligibility for
full health benefits if employed by Participant for more than six (6)
months;
(2) the employee is assigned to work (or is eligible to work) at least One
Thousand Five Hundred Fifty (1, 550) hours per year;
(3) the employee is based at the Site; and
(4) the employee started working for the Participant on or after February I,
2005.
(c) Within thirty (30) days of the first anniversary of the Opening Date and,
thereafter, on each of the following ten (10) anniversaries of the Opening Date, the Participant
shall file a written affidavit with the Agency's Executive Director, certifying, under penalty of
perjury under the laws of the State of California, the Participant's compliance with the New Jobs
creation and maintenance covenant set forth in this Section 10. The Participant's affidavit shall
include a certification that each employee who is claimed by the Participant to have held a New
Job position during the preceding year satisfies the requirements of Section I O(b) and, shall
include appropriately detailed payroll accounting information relating to the total hourly wage
compensation amounts paid to such persons, the total number of hours worked by such persons
and the total number of persons who were recruited, hired or released from employment for each
New Job position. Such annual affidavit need not identify any employee by name, by specific
job description nor by new hire date, and the payroll accounting information may aggregate the
hours worked and wages paid to all persons claimed by the Participant to hold New Job
positions.
(d) The Participant agrees to allow the Agency or its agents access to inspect the
payroll accounting records of the Participant relating to the New Jobs and the confirmation by the
Agency of the information included in each annual affidavit of the Participant, at reasonable
times, upon reasonable prior written notice, and without cost charged by the Participant to the
Agency.
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SECTION 11. Participant Covenant Rel!ardinl! Maintenance of the Site and the
Business
(a) The Participant for itself, its successors and assigns hereby covenants and agrees
that from and after the Opening Date, all areas of the Site and the Business subject to public view
(including all other improvements constructed or installed following the Opening Date, including
paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained by the
Participant in good repair and in a neat, clean and orderly condition customary in the Retail
Department Store business, ordinary wear and tear excepted.
(b) If at any time following the Opening Date, there is an occurrence of an adverse
condition in contravention of the general maintenance standard described in the preceding
paragraph (a "Maintenance Deficiency"), then the Agency shall notify the Participant in writing
of such Maintenance Deficiency, giving Participant sixty (60) days from receipt of such notice to
cure the Maintenance Deficiency. If the Participant fails to cure or commence to cure the
Maintenance Deficiency, within the time allowed, any sales or use tax generated from the Site
during the pendency of such Maintenance Deficiency shall not be counted in determining Site
Employment Index under Section 9. Nothing in this Section 11 shall be deemed to preclude the
Participant from making any alterations, additions, or other changes to any improvement
(including landscaping) on the Site following the Opening Date. Any such alterations shall
comply with the Redevelopment Plan and applicable development regulations of the City.
SECTION 12. Covenant of Participant to Pavor Cause to Be Paid Property Taxes
on the Site. The Participant hereby covenants and agrees to payor cause to be paid, prior to
delinquency, all real property, personal property and possessory interest taxes, if any, assessed
against the Business or the business inventory or operations of the Participant on the Site. The
Participant shall provide the Agency with written evidence of the payment of all such taxes, upon
request of the Agency's Executive Director.
SECTION 13. Oblil!ation to Refrain from Discrimination. The Participant
covenants and agrees for itself, its successors, assigns and every successor-in-interest to the
Business or any portion thereof, that there shall be no discrimination against or segregation of
any person, or group of persons, on account of sex, marital status, race, color, religion, creed,
national original or ancestry, in the sale, lease, sublease, transfer, use occupancy, tenure or
enjoyment of the Site or operation of the Business. Further, the Participant, or any person
claiming under or through it, shall not establish or permit any such practice or practices of
unlawful discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sub lessees or vendees on the Site or operation of the
Business.
SECTION 14. Form of Nondiscrimination and Nonsel!rel!ation Clauses. The
Participant shall refrain from restricting the lease, sublease, rental, transfer, use, occupancy,
tenure or enjoyment of the Site (or any portion thereof) on the basis of sex, marital status, race,
color, religion, creed, ancestry or national original of any person. All such deeds, leases or
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contracts pertaining to the Site or the Business shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(1) INTENTIONALLY LEFT BLANK
(2) [in leases]:
"The lessee herein covenants by and for itself, its successors and assigns, and al
persons claiming under or through them, and this lease is made and accepted upon
and subject to the following conditions: That there shall be no discrimination
against or segregation of any person or group of persons, on account of sex,
marital status, race, color, religion, creed, national origin or ancestry, in the
leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of
the land herein lease, nor shall lessee itself, or any person claiming under or
through it, establish or permit such practice or practices of discrimination or
segregation with reference to the selection, location, number or occupancy of
tenants, lessees, sublessees, tenants or vendees in the land herein lease."
(3) [in material contracts]:
"There shall be no discrimination against or segregation of, any person or group of
persons on account of sex, marital status, race, color, religion, creed, national
origin or ancestry in the sale, lease, sublease, rental, transfer, use, occupancy,
tenure or enjoyment of the land, nor shall the transferee itself or any person
claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the
land."
SECTION 15. [RESERVED - NO TEXT.]
SECTION 16. Defaults--General. Failure or delay by a party to perform any term or
provision of this Agreement constitutes a default under this Agreement. The party in default
must immediately commence to cure, correct, or remedy such default, and shall diligently
complete such cure, correction or remedy promptly upon receipt of written notice of such default.
The party claiming that a default or breach exists shall give written notice of default, specifying
the claimed default. Except as required to protect against further damage, the injured party may
not institute proceedings against the party in default, until thirty (30) days after giving such
notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor
shall it change the time of default.
SECTION 17. Bankruptcv and Insolvencv of Participant. If the Participant files for
bankruptcy protection or reorganization or becomes the subject of any proceedings under the
bankruptcy laws of the United States, or the Participant becomes insolvent, or a receiver is
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appointed for the Participant under state or federal law, the Participant shall be in material default
of this Agreement.
SECTION 18. Institution of Lel!al Actions. Subject to the default provIsIons of
Section 16, any party may institute legal action to cure, correct or remedy any default, to recover
damages for any default, or to obtain any other remedy consistent with the purposes of this
Agreement. Any legal action, initiated pursuant to this Agreement, or otherwise, with respect to
its subject matter, must be instituted in the Superior Court of the County of San Bernardino, San
Bernardino District, State of California, or in the United States District Court for the Central
District of California.
SECTION 19. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
SECTION 20. Ril!hts and Remedies are Cumulative. Except as otherwise expressly
stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise
by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the
same or different times, of any other rights or remedies for the same default or any other default
by any other party.
SECTION 21. Inaction Not a Waiver of Default. Any failure or delay by a party in
asserting any of its rights or remedies regarding any default shall not operate as a waiver of any
default or of any such rights or remedies, or deprive any party of its right to institute and maintain
any actions or proceedings that it may deem necessary to protect, assert or enforce any such
rights or remedies. Waiver of any default under this Agreement must be expressly set forth in a
written document executed by the party asserting the default being waived and delivered to the
party asserted to be in default.
SECTION 22. Notices. Demands and Communications Between the Parties.
Notices, demands and communications between the Agency and the Participant, as allowed or
required by this Agreement, shall be in writing and shall be deemed to be duly given when
personally delivered or, if mailed, upon receipt or rejection. Ifnotice is given by mailing, it shall
be sent by registered or certified mail, postage prepaid, return receipt requested, and properly
addressed to the principal office of the party, as designated in Section 3. Such written notices,
demands and communications may be sent in the same manner to such other addresses as either
party may from time to time designate in writing to the other.
SECTION 23. [RESERVED - NO TEXT
SECTION 24. Warranty Al!ainst Payment of Consideration for Al!reement. The
Participant hereby warrants that it has not paid or given, and will not payor give, any third-party
money or other consideration for obtaining this Agreement. For the purpose of this Section 24,
the term "third-party" shall not include persons to whom fees were paid for professional services,
if rendered by attorneys, financial consultants, accountants, engineers, architects and the like,
when such fees are considered necessary by the Participant.
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SECTION 25. Non-Liability of A2encv Officials or Emplovees. No member,
official, employee, agent, consultant or attorney of the Agency shall be personally liable to the
Participant, or any successor-in-interest of either of them, upon any default or breach by the
Agency or for any amount becoming due to the Participant or to its successor or on any
obligations arising under this Agreement.
SECTION 26. A2encv Ri2ht to Terminate Upon Filin2 of Le2al Challen2e.
Participant hereby acknowledges that the Agency is a "public entity" and/or a "public agency" as
defined under applicable California law. Therefore, the Agency must satisfy the requirements of
certain California statutes relating to the actions of public entities, including, without limitation,
the California Environmental Quality Act ("CEQA"). Also, as a public body, the Agency's
action in approving this Agreement may be subject to proceedings to invalidate the Agreement.
The Participant hereby assumes the risk of delays and damages that may result to the Participant
from any such third-party legal actions related to the Agency's approval of this Agreement or the
pursuit of activities contemplated by this Agreement, filed within two hundred fifteen (215) days
of the Agency's formal approval of this Agreement, even in the event that an error, omission or
abuse of discretion by the Agency is determined to have occurred. If a third-party files such a
legal action regarding the Agency's approval of this Agreement or the pursuit of activities
contemplated by this Agreement, the Agency may terminate this Agreement on 30 days written
notice to the Participant of the Agency's intent to terminate this Agreement, referencing this
Section 26, without any further obligation to perform the terms of this Agreement or any liability
to the Participant resulting from such termination, unless the Participant unconditionally agrees
to indemnify and defend the Agency against such third-party legal action, as provided herein.
Within 30 days of receipt of the Agency's notice of intent to terminate this Agreement, as
provided in the preceding sentence, the Participant may offer to defend the Agency in the third-
party legal action and pay all of the court costs, attorney fees, monetary awards, sanctions,
attorney fee awards, expert witness and consultant fees, and the expenses of any and all financial
or performance obligations resulting from the disposition of the legal action. Any such offer
from the Participant must be in writing and in a form reasonably acceptable to the Agency. If the
Agency accepts such an offer by the Participant, as provided for herein, the Agency shall
reasonably cooperate with the Participant in the defense of the legal action.
SECTION 27. A2enCY Approvals. Approvals required from the Agency under this
Agreement shall not be unreasonably withheld, conditioned or delayed and approval or
disapproval shall be given within the time set forth in the Schedule of Performance, or as set
forth in this Agreement or, if no specific time is set forth for such approval, within thirty (30)
days. If no disapproval is given within the time stated therefore, the item in question shall
conclusively be deemed approved.
SECTION 28. Indemnification of A2enCY by Participant. The Participant hereby
agrees to defend, indemnify and hold the Agency, its members, officials, employees, agents,
consultants and attorneys, harmless from and against all damages, judgments, costs, expenses,
and fees including attorney's fees, expert witness and consultant fees and expenses incurred by
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the Agency as a result of any alleged or actual act or omission of the Participant in performing its
obligations under this Agreement.
SECTION 29. No Partnership or Joint Venture. Nothing in this Agreement, nor any
acts of the parties hereto, shall be deemed or construed by the parties hereto, or by any third
person, to create the relationship of principal and agent, or of partnership, or of joint venture, or
of any association between any of the parties to this Agreement.
SECTION 30. Attornev's Fees. If any party hereto files any action or brings any action
or proceeding against the other arising out of this Agreement, the prevailing party in any such
action or proceeding shall be entitled to recover, as an element of its costs of suit and not as
damages, its reasonable attorney's fees, as determined by the Court in such action or proceeding
or in a separate action or proceeding brought to recover such attorney's fees. For the purposes of
this Agreement, the phrase "reasonable attorney's fees" includes the salary, wages, benefits and
overhead of the City Attorney of the City of San Bernardino and members of his staff.
SECTION 31. Severabilitv. If any clause, sentence or any other portion of this
Agreement becomes invalid, void or unenforceable for any reason, or is held by any court of
competent jurisdiction to be invalid, void or unenforceable, the remaining portions of this
Agreement shall remain in full force and effect, provided the resulting agreement preserves the
material effect of this Agreement.
SECTION 32. Attachments. This Agreement includes 18 pages and one (1)
attachment that constitute the entire understanding and agreement between the parties.
SECTION 33. Amendment of Al!reement. This Agreement may only be amended,
modified, revised or changed by written agreement executed by both of the parties.
SECTION 34. Date of Execution of Al!reement. This Agreement is dated as of
November _, 2004, for purposes of reference and convenience. The terms "date of
execution of this Agreement" or "date of this Agreement," and the like, refer to the date on which
this Agreement is approved by the governing board of the Agency. This Agreement shall be of
no force or effect as against the Agency, until it is formally approved by the Community
Development Commission of the City of San Bernardino.
SECTION 35. Execution in Counterpart Oril!inals. This Agreement may be
executed by the parties in counterparts and when each such counterpart is delivered by the
parties, this Agreement shall be deemed to be fully executed and in effect.
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. ,
IN WITNESS WHEREOF, the Agency and the Participant, by and through their duly
authorized representatives' signatures below, hereby execute this Agreement, as of the dates set
forth below:
PARTICIPANT
u~_
By: ;/1
Sa,,"''- v. . . .
By ~-.-
;1stf - 6",h~( U//#Jt I
Dated:~
Dated: (Z! <~4 r
AGENCY
Redevelopment Agency of the City
of San Bernardino
Dated: Jf- ((, '6 Cf
By:
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