HomeMy WebLinkAboutCDC/2010-18
1
2
3
RESOLUTION NO. CDC/2010-18
4
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE THE AMENDED AND RESTATED 2008 DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND
MAYA SAN BERNARDINO CINEMAS, LLC (CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA)
5
6
7
8
WHEREAS, the Community Development Commission of the City of San Bernardino (the
9 "Commission") is the governing board of the Redevelopment Agency of the City of San Bernardino
10 (the "Agency"); and
11 WHEREAS, on December 15, 2008, the Commission approved a 2008 Disposition and
12 Development Agreement ("Agreement") by and between the Agency and Maya Cinemas North
13 America, Inc., a Delaware Corporation (the "Developer"), and authorized the Interim Executive
14 Director of the Agency to execute the Agreement relating to the sale and development of the 20-
15 Plex Cinema building located at 450 North "E" Street and referred to as Assessor's Parcel Numbers:
16 0134-131-25, 26, 27 and 28 and 0134-121-24 (the "Property") and made certain findings thereto
17 related to the development of the Property; and
18 WHEREAS, on May 18, 2009, the Commission approved Amendment No. 1 to the
19 Agreement to extend the close of escrow deadline to October 30, 2009, due to unforeseen delays
20 caused by time constraints involved in obtaining financing from the U.S. Department of Housing
21 and Urban Development ("HUD"); and
22 WHEREAS, unforeseen delays by HUD and the current uncertainties of the financial
23 markets have caused the Developer to miss the close of escrow deadline of October 30, 2009, and
24 has necessitated drafting the modifications as contained in the Amended and Restated 2008
25 Disposition and Development Agreement; and
26 WHEREAS, the Developer has taken this opportunity to request the assignment of its rights
27 under the Amended and Restated 2008 DDA to one of its subsidiaries, Maya San Bernardino
28 Cinemas, LLC, a limited liability company; and
1
P:\Agendas\Resolutions\Resolutions\2010\04-05-10 Maya SB Cinemas, LLC - Amended and Restated DDA CDC ResQ,doc
CDC/2010-18
1 WHEREAS, the action of amending a Disposition and Development Agreement does not
2 meet the definition of a "Project" under Section 15378 of the California Environmental Quality Act
3 ("CEQA") which states that a "Project" means the whole of an action, which has a potential for
4 resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect
5 physical change in the environment; and
6 WHEREAS, it is appropriate for the Commission to approve the Amended and Restated
7 2008 Disposition and Development Agreement.
8 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION OF THE
9 CITY OF SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS
10 FOLLOWS:
11
Section 1.
The Commission hereby consents to the assignment of the rights under the
12 Amended and Restated 2008 Disposition and Development Agreement to Maya San Bernardino,
13 LLC, and approves the attached Amended and Restated 2008 Disposition and Development
14 Agreement in the form presented at the meeting at which this Resolution is adopted and as attached to
15 this Resolution as Exhibit "A" and incorporated herein by reference. The Interim Executive Director of
16 the Agency is hereby authorized and directed to execute the Amended and Restated 2008 Disposition
17 and Development Agreement on behalf of the Agency, together with such technical and conforming
18 changes as may be recommended by the Executive Director of the Agency and approved by the
19 Agency Counsel.
20
Section 2.
The approvals as contained in the Resolution shall expire as of 5:00 p.m. on
21 April 15, 2010, after which time Agency Staff shall have no further authorization to accept the
22 delivery of any documents or funds as approved and required by this Resolution, and the approvals
23 as contained in this Resolution shall automatically expire unless the following events shall have
24 occurred on or before said date and time:
25
26
27
28
(i)
Maya San Bernardino Cinemas, LLC, and the Developer, as necessary, shall have
executed and delivered to the Chicago Title Company, as Escrow Holder, all
required documents including specifically the Amended and Restated 2008
Disposition and Development Agreement and the Fund Control Agreement with
2
P:\Agendas\Resolutions\Resolutions\2010\04-0S-10 Maya SB Cinemas, LLC - Amended and Restated DDA CDC Reso.doc
1
2
3
4
5
6
7
8
9
10
(ii)
CDC/2010-18
California Fund Control and amendments, as necessary, to the current escrow
instructions with the Escrow Holder, and
the Developer andlor Maya San Bernardino Cinemas, LLC, shall have deposited
to the Escrow Holder or to the Fund Control Agent, as shall be directed by
Agency Staff, an amount equal to $2,950,000 plus the $100,000 presently on
deposit with the Escrow Holder which shall satisfy in whole the $2,600,000 cash
equity contribution of Maya San Bernardino Cinemas, LLC, and in whole the
requirement of Maya San Bernardino Cinemas, LLC, for a $450,000 letter of
credit or other cash deposit as required by the Amended and Restated 2008
Disposition and Development Agreement.
11 In the event the items as required pursuant to this Resolution to be deposited with the Escrow
12 Holder as set forth above are not certified by the Escrow Holder andlor the Fund Control Agency as
13 being on deposit therewith on or before the date and time as specified above and complying with the
14 requirements of this Resolution, the authorizations as granted by this Resolution shall automatically
15 expire and Agency Staff is hereby directed to deliver a Notice of Termination to the Developer
16 stating that the Amended and Restated 2008 Disposition and Development Agreement is terminated
17 as of the date of said Notice of Termination.
18 Section 3.
19 Commission.
20 III
21 III
22 III
23 III
24 III
25 III
26 III
27 III
28 III
This Resolution shall take effect from and after its date of adoption by this
P:\Agendas\Resolutions\Resolutions\2010\04.05-10 Maya SB Cinemas, LLC - Amended and Restated DDA CDC Reso.doc
3
CDC/2010-18
1
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF
THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE INTERIM EXECUTIVE DIRECTOR OF THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") TO
EXECUTE THE AMENDED AND RESTATED 2008 DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND
MAYA SAN BERNARDINO CINEMAS, LLC (CENTRAL CITY NORTH
REDEVELOPMENT PROJECT AREA)
2
3
4
5
6
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
7 Development Commission of the City of San Bernardino at a joint regular
meeting
8 thereof, held on the 5th day of April
9 Commission Members: Ayes Nays
10 MARQUEZ X
11 DESJARDINS x
-
12 BRINKER x
13 SHORETT ~
14 KELLEY x
15 JOHNSON x
16 MC CAMMACK x
-
17
18
, 2010, by the following vote to wit:
Abstain
Absent
~,,"""""..'.'.'.'."
._~ "
<:'f;:-,-, 'j
. .\.....,:,.. .
Secretary
19
The foregoing Resolution is hereby approved this ~/)/ day of April
20
21
22
23
,2010.
Patrick J. orris, Chairperson
ty Development Commission
of the City of San Bernardino
24
25
Approved as to Form:
26
27 By: ~~
28
4
P:\Agendas\Resolutions\Resolutions\2010\04-05-10 Maya SB Cinemas, LLC - Amended and Restated DDA CDC Reso.doc
1
EXHIBIT "A"
Amended and Restated 2008 Disposition and Development Agreement
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
P:\Agendas\Resolutions\Resolutions\20 I 0\04-05-10 Maya 58 Cinemas, LLC - Amended and Restated DDA CDC ResQ,doc
IL
STREET
@
2;o~n .g:
1;1
..
..
..
....
W
W
c:
....
00
w
FOURTH
STREET
~ r
{g)
AMENDED AND RESTATED
2008
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
MAYA SAN BERNARDINO CINEMAS, LLC
FORMERLY MAYA CINEMAS NORTH AMERICA, INC.
Dated as of AprilS, 2010
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
Section 1.05.
Section 1.06.
Section 1.07.
Section 1.08.
TABLE OF CONTENTS
Page
Purpose of Agreement................................. .......... ............................................ 1
The Project............................. ........... .............. ........ ......................... ...... .... ....... 1
Parties to this Agreement.. ................................. ....... ......................... ........ ....... 2
Defined Terms.................................................................................................. 2
Restrictions Against Change in Ownership, Management and Control of the
Developer and Assignment of Agreement........................................................ 8
Benefit to Project Area...................................................................................... 8
Limited Rights of Developer to Acquire Phase III Property............................ 8
Certain Payments by Developer with Respect to HUD 108 Loan.................. 10
ARTICLE II DISPOSITION OF THE PROPERTy.................................................................... 11
Section 2.01.
Section 2.02.
Section 2.03.
Section 2.04.
Section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 2.10.
Section 2.11.
Section 2.12.
Section 2.13.
Section 2.14.
Section 2.15.
Section 2.16.
Section 2.17.
Section 2.18.
Section 2.19.
Section 2.20.
Section 2.21.
Section 2.22.
Section 2.23.
Section 2.24.
Section 2.25.
Section 2.26.
Purchase and Sale of the Property.............. ......................................... ........... 11
Phase I Property Deposit................................................................................. 11
Opening and Closing of Escrow.................. ................. .................................. 12
Escrow Instructions........................................................................................ 14
Conveyance of Title to the Phase I Property.................................................. 14
Additional Closing Obligations of the Agency............................................... 15
Closing Obligations ofthe Developer............................................................. 16
Inspections and Review........................................................................ .......... 17
Due Diligence Investigation of the Phase I Property By the Developer......... 19
Due Diligence Certificate ............................................................................... 19
Books and Records......................................................................................... 20
Condition of the Property and the Developer's Release................................. 20
Review and Approval of Condition of Title by the Developer....................... 22
Survey.:. ............................................................................................................ 22
Extension of Due Diligence Period................... .............. ..................... ........... 23
Developer's Conditions Precedent to Close Escrow for the Phase I Property 23
Agency's Conditions Precedent to Close Escrow for the Phase I Property.... 25
Distribution of Documents to the Developer ..................................................27
Satisfaction of Conditions............................................................................... 27
RESERVED.................................................................................................... 28
Prorations, Closing Costs, Possession ..... ........................................... ............ 28
RESERVED........................... ................................. ........................................ 29
Breach by the Developer of Article II Liquidated Damages Payable by the
Developer to the Agency......................... ....................................................... 30
Representations and Warranties...................................................................... 30
Damage, Destruction and Condemnation ....................................................... 35
Purchase of the Phase III Property........... ........ ...... ......................................... 36
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
ARTICLE III DEVELOPMENT OF THE PROJECT .................................................................36
Section 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
Section 3.05A.
Section 3.058.
Section 3.06.
Section 3.07.
Section 3.08.
Section 3.09.
Section 3.10.
Development of the Project by the Developer ................................................ 36
Obligations of the Agency... ........... .... ..... ............ ......... .................... .............. 42
Taxes and Assessments................................................................................... 44
Change in Ownership, Management and Control of the Developer --
Assignment and Transfer................................................................................ 44
Developer Financing Plan......................................................................... ...... 46
Security Financing; Rights of Holders............. ............ .............. ..................... 50
Right of the Agency to Satisfy Other Liens on the Property after Conveyance
of Title............................................................................................................. 53
Certificate of Completion......................................................................... ...... 53
Purchase of the Phase III Property. .................................................. ............... 54
Federal Davis-Bacon Prevailing Wage Requirements.................................... 54
California Prevailing Wage Requirements ..................................................... 55
ARTICLE IV USE OF THE SITE................................................................................................ 56
Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Uses................................................................................................................. 56
Maintenance of the Property........................................................................... 57
Obligation to Refrain from Discrimination..................................................... 57
Form of Nondiscrimination and Nonsegregation Clauses .............................. 57
ARTICLE V DEFAULTS, REMEDIES AND TERMINATION.................... ................. ........... 59
Section 5.01.
Section 5.02.
Section 5.03.
Section 5.04.
Section 5.05.
Section 5.06.
Defaults - General........................................................................................... 59
Legal Actions.................................................................................................. 61
Rights and Remedies are Cumulative ............................................................. 62
Damages; Specific Performance........ ......... ............... ..................................... 62
RESERVED.................................................................................................... 62
Agency Rights of Termination Following Close of Escrow........................... 62
ARTICLE VI GENERAL PROVISIONS .................................................................................... 63
Section 6.01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 6.07.
Section 6.08.
Section 6.09.
Section 6.10.
Section 6.11.
Section 6.12.
Notices, Demands and Communications Between the Parties ....................... 63
Conflict of Interest.............................. .... .................. ...................................... 64
Warranty Against Payment of Consideration for Agreement......................... 64
Nonliability of Agency Officials and Employees........................................... 64
Enforced Delay: Extension of Time of Performance...................................... 65
Inspection of Books and Records ................................................................... 65
Approvals.................................................................. ...................................... 66
Real Estate Commission.......... ....... ................ ..................... .... ...66
Indemnification..... ....................... ........ ...................................................... ..... 66
Release of the Developer from Liability...... ....... ......... .................. ............ ..... 67
Attorneys ' Fees.......................................................................................... ..... 67
Effect............................................................................................................... 67
P:\CinemaStar - Maya Theater Project\M.aya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
11
ARTICLE VII ENTIRE AGREEMENT; COUNTERPARTS; NO MERGER WITH
AGENCY GRANT DEED; WAIVERS AND AMENDMENTS ................. 67
Section 7.01. Entire Agreement; Counterparts.......................................... ...... ............... ...... 67
Section 7.02. No Merger; Waivers and Amendments .......................................................... 68
ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND
RECORDATION............................................................................................ 68
Section 8.01. Execution and Recordation........ ............................... ............................. ......... 68
EXHIBIT "A-I" - PHASE I PROPERTY DESCRIPTION
EXHIBIT "A-2" - PHASE IA PROPERTY DESCRIPTION
EXHIBIT "A-3" - PHASE II PROPERTY DESCRIPTION
EXHIBIT "A-4" - PHASE III PROPERTY DESCRIPTION
EXHIBIT "B" - BUDGET
EXHIBIT "c" SCOPE OF DEVELOPMENT
EXHIBIT "D" SCHEDULE OF PERFORMANCE
EXHIBIT "E" - AGENCY GRANT DEED
EXHIBIT "F" CERTIFICATE OF COMPLETION
EXHIBIT "G" - NOTICE OF AGREEMENT
EXHIBIT "H" LOAN COVENANT AGREEMENT
EXHIBIT "I" PARKING AGREEMENT
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA _ :-29-1O-EDA-final.docx
111
AMENDED AND REST A TED
2008
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND MAYA SAN BERNARDINO CINEMAS, LLC
THIS AMENDED AND RESTATED 2008 DISPOSITION AND DEVELOPMENT
AGREEMENT (the "Amended and Restated 2008 Agreement") was initially entered into as of
December IS, 2008 (the "Effective Date"), was amended pursuant to Amendment No. I dated
June 22,2009 (the "Amendment No. I "), and is further amended and restated as of AprilS, 2010
by this Amended and Restated 2008 Agreement (the original 2008 Agreement, the Amendment
No. I and this Amended and Restated 2008 Agreement are collectively referred to herein as the
"Agreement"), by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body, corporate and politic (the "Agency") and MA Y A SAN
BERNARDINO CINEMAS, LLC, a California limited liability company (the "Developer"), as
the Agency approved successor in interest and assignee of MAYA CINEMAS NORTH
AMERICA, INC., a Delaware corporation (the "Initial Developer"), as the party to the Amended
and Restated 2008 Agreement. The Agency and the Developer hereby agree as follows:
Section 1.01. Purpose of Agreement. The purpose of this Agreement is to implement
the Redevelopment Plan by providing for: (i) the purchase and redevelopment by the Developer
of the Phase I Property (as defined below) in accordance with and pursuant to this Agreement,
(ii) to grant to the Developer, if the Developer is not in default under this Agreement, the right to
purchase all or any part of the Phase II Property, subject to the terms, covenants and conditions
of Section 3.02(e) and of Section 3.02(f), and (iii) to grant to the Developer, if the Developer is
not in default under this Agreement, the right to acquire through the subsequent purchase and
redevelopment by the Developer of the Phase III Property (as defined below) in accordance with
and pursuant to any such subsequent disposition and development agreement or agreements all
as further provided in Section 1.07 hereof. As of the Effective Date of this Agreement, the
Property was and continues to be owned by the Agency and shall be conveyed by the Agency to
the Developer subject to the terms, covenants and conditions of this Agreement. The
redevelopment of the Property pursuant to this Agreement is in the vital and best interests of the
City and of the health, safety and welfare of its residents, and is in accordance with the public
purposes and provisions of applicable state and local laws. The Agency has determined that the
development and the use of the Property contemplated by this Agreement are consistent with the
Redevelopment Plan for the Project Area (as defined below).
Section 1.02. The Proiect. Prior to or promptly following the conveyance by the
Agency to the Developer of the Phase I Property, the Developer shall promptly commence and
complete the construction, development, installation and completion of the Phase I Property
Improvements at, on or in connection with the Phase I Property.
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
I
Section 1.03. Parties to this Agreement.
(a) The Agency is a public body, corporate and politic, exerclsmg governmental
functions and powers and organized and existing under Chapter 2 of the Community
Redevelopment Law of the State of California (Health and Safety Code Section 33020, et seq.).
The principal office of the Agency is located at 201 North "E" Street, Suite 301, San Bernardino,
California 92401.
(b) The Developer is a California limited liability company. The principal office and
mailing address of the Developer for purposes of this Agreement is as set forth below, and notice
shall be sufficient when served upon the notice party whether or not a copy is similarly served
upon any other person:
To the Developer:
Maya San Bernardino Cinemas, LLC
Attn.: Moctesuma Esparza, Chief Executive Officer
1201 West 5th Street, Suite T-21O
Los Angeles, California 90017
Telephone: (213) 542-4420
with a copy to:
Maya Entertainment Group, Inc.
Attn.: Jose Martinez, Jr., General Counsel
1201 West 5th Street, Suite T-210
Los Angeles, California 90017
Telephone: (213) 542-4420
(c) The City of San Bernardino is not a party to this Agreement and shall have no
obligations pursuant to this Agreement.
Section 1.04. Defined Terms. In addition to the usage of certain terms which have
defined meaning as set forth in this Agreement certain other words and phrases are used in this
Agreement to refer to the following unless the particular context of usage of a word or phrase
may otherwise require:
"Agency" means and refers to the Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic.
"Agency Loans" means and refers to the following loans made by the Agency to the
Developer pursuant to this Agreement: (1) Agency Loan made by the Agency to the Developer
in the amount of$537,153.50, and (ii) Agency Loan made by the Agency to the Developer in the
amount of $164,197.10. The Agency Loans are evidenced and secured by the Agency Loan
Documents.
P:\CinemaStar - Maya Theater Project\M:aya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
2
"Agency Loan Documents" means and refers to the following: (i) the promissory note in
the amount of$537,153.50, dated as of the Close of Escrow, made by the Developer in favor of
the Agency and/or the subordinate deed of trust recorded encumbering the Phase I Property to
secure the obligations of said promissory note, as required by Section 1.08(a), and as recorded in
the official records of the County Recorder's Office for the County of San Bernardino, State of
California, (ii) the promissory note in the amount of $164,197.10, dated as of the Close of
Escrow, made by the Developer in favor of the Agency and/or the subordinate deed of trust
recorded encumbering the Phase I Property to secure the obligations of said promissory note, as
required by Section 1.08(a), and as recorded in the official records of the County Recorder's
Office for the County of San Bernardino, State of California, and (iii) such other instruments,
documents and/or agreements evidencing, securing, guaranteeing or relating to the Agency
Loans, or anyone of them.
"Agreement" means and refers to, collectively, the original 2008 Disposition and
Development Agreement, dated December 15, 2008 (the "Original 2008 Agreement"), by and
between the Agency and the Initial Developer, the Amendment No.1, by and between the
Agency and the Initial Developer, and this Amended and Restated 2008 Agreement, by and
between the Agency and the Developer, as may be amended from time to time. The Agreement
means and also includes all exhibits, schedules and riders attached thereto.
"Budget" means and refers to the "Budget" prepared by the Developer and approved by
the Agency in connection with the purchase, acquisition, construction, development, installation
and/or completion of the Phase I Property Improvements. The Budget is attached hereto as
Exhibit "B" and is incorporated herein by this reference.
"City" means and refers to the City of San Bernardino located in the County of San
Bernardino and in the State of California.
"CDE" means a duly organized entity treated as a domestic corporation or partnership for
federal income tax purposes that: (i) has a primary mission of serving, or providing investment
capital for, low-income communities or low-income persons, (ii) maintains accountability to
residents of low-income communities through its representation on any governing board of the
entity or any advisory board to the entity, and (iii) has been certified as a CDE by the CDFI Fund
of the US Department of Treasury.
"County" means and refers to the County of San Bernardino located in the State of
California.
"Developer" means and refers to Maya San Bernardino Cinemas, LLC, a California
limited liability company, its permitted successors and permitted assigns, subject to the terms,
covenants and conditions of this Agreement. The Developer is the successor-in-interest and
assignee of Maya Cinemas North America, Inc., a California corporation. For the avoidance of
doubt, "Developer" shall also mean any affiliated entity of Developer required in connection
with a NMTC (as hereinafter defined) trans, ,tion.
P:\CinemaSta: - Maya Theater Project\Ma:. Theater\DDA Drafts, Finals, Escrow_relatt, s\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-final,docx
3
"Escrow" means and refers to the escrow created in connection with and relating to the
Phase I Property.
"Executive Director" means and refers to the "Executive Director" or to the "Interim
Executive Director" who is then appointed and acting as the chief executive officer of the
Agency and who is authorized to exercise all administrative and executive functions on behalf of
the Agency and as may be further specifically authorized to act pursuant to this Agreement.
"HUD 1 08 Loan" means and refers to the loan made by HUD in favor of the City which
HUD 108 Loan is secured by a deed of trust (the "HUD Deed of Trust") encumbering the Phase I
Property (but excluding the Phase IA Property) and a pledge of current and future CDBG funds
of the City as required by HUD. Such pledge of CDBG funds is not released by the sale of the
Phase I Property, assumption of the HUD 108 Loan, or any other action taken pursuant to this
Agreement. The outstanding principal balance of the HUD 108 Loan as of the date of approval
of this Agreement is $4,240,000. Any modification to the HUD 108 Loan or the undertaking of
a New HUD Loan (as defined in Section 3.05A.), requires an independent action of the City of
San Bernardino. The Mayor and Common Council of the City have approved the possible
assumption of the existing HUD 108 Loan in accordance with the Developer financing plan as
further provided in Section 3.05A. hereof. Conditions or covenants appearing herein concerning
actions to be taken by the Agency with respect to the HUD 108 Loan and the New HUD Loan
(as defined in Section 3.05A.) are in addition to and separate and apart from the actions of the
City. The Developer is hereby placed on notice that it shall not act in reliance on any
representations as may appear to be contained herein, or as made by any persons, whether or not
a party to this Agreement, concerning whether the City will initiate an action for modification of
the HUD 108 Loan or approval of a New HUD Loan (as defined in Section 3.05A.) or as to the
outcome of such action as may be initiated.
"Improvements" mean and refer to the Phase I Property Improvements.
"Laws" mean and refer to all federal, state, municipal and local laws, statutes, codes,
rules, regulations, ordinances and orders, now or hereafter existing, as amended from time to
time. The Laws shall include, without limitation, the ADA and all applicable federal Davis-
Bacon and State of California prevailing wage requirements as the same may be applicable.
"License Agreement" means and refers to the License Agreement by and between the
Developer and the Agency, dated as of February 1, 2010, wherein the Agency granted to the
Developer, without limitation, from the date of such License Agreement with respect to the
Phase I Property until the termination of the License Agreement, and as to the Phase III Property,
as applicable, if deemed mutually approved by the Developer and the Executive Director of the
Agency each at their sole and absolute discretion.
"Loan Covenant Agreement" means and refers to that certain Loan Covenant Agreement
in the form as attached hereto as Exhibit "H" and as further described in Section 3.05A.
P:\CinemaStar - Maya Theater ProjectlMaya TheaterIDDA Drafts, Finals, Escrow Jelated docslDDAslMaya Amended and Restated DDA 3-29-IO-EDA-final.docx
4
"Notice of Agreement" means and refers to the Notice of Agreement, dated of even date
of this Agreement, as executed and acknowledged by and between the Agency and the
Developer. The Notice of Agreement is attached hereto and incorporated herein by this
reference as Exhibit "G." The Escrow Officer shall record the Notice of Agreement in the
Official Records of the County Recorder's Office for the County of San Bernardino, State of
California, on the Closing Date ofthe Escrow in connection with the Phase I Property.
"Parking Agreement" means and refers to that certain parking agreement by and between
the Developer and the Agency to be entered into as of the Close of Escrow in the form as
attached hereto as Exhibit "I" and as further described in Sections 2.06(10) and 2.07(9) which
shall be delivered to the Developer as of the Close of Escrow for the Phase I Property.
"Permitted Lien Exceptions" shall mean: (i) the New HUD Loan, (ii) any New Market
Tax Credit financing that is secured, in whole or in part, by a deed of trust encumbering the
Phase I Property, (iii) the Agency Loan Documents, (iv) the Financing, (v) the Financing Loan
Documents, (vi) the Construction Financing, (vii) the Permanent Financing, (viii) the Security
Financing Interest and/or the exceptions to title identified in schedule "B" to the Phase I Property
Preliminary Title Report excluding the deed of trust encumbering the HUD 108 Loan. The
Permitted Lien Exceptions shall be subordinate to the deed of trust encumbering the Phase I
Property to secure the obligations ofthe existing HUD 108 Loan.
"Phase I Property" means and refers to that certain improved land located in the City of
San Bernardino, County of San Bernardino, and State of California, Assessor Parcel Number
0134-121-24, as described in Exhibit "A-I" to this Agreement attached hereto and incorporated
herein by this reference. The Phase 1 Property does not include the Phase lA and the Phase lA
Property Improvements.
"Phase I Property Deposit" means and refers to the deposit paid by the Developer to the
Escrow Holder for the benefit of the Agency in connection with the Escrow for the Phase I
Property, subject to the terms, covenants and conditions of this Agreement. The Phase I Property
Deposit is in the amount of$IOO,OOO, receipt of which is hereby acknowledged by the Agency.
"Phase I Property Due Diligence Certificate" means and refers to the Phase I Property
Due Diligence Certificate to be provided by the Developer to the Agency in accordance with this
Agreement.
"Phase I Property Improvements" mean and refer any and all buildings, structures,
improvements and/or fixtures, now or hereafter, existing or located on or at the Phase I Property.
The Phase I Property Improvements include, without limitation, the following: (i) the
remodeling and rebranding of the theater, (ii) the establishment of the I-Max theater, (iii) the
removal and relocation of the ticket booth, (iv) the expansion of the entry area into a public
access lobby, (v) the relocation of all concessions, (vi) the providing access to the Phase I
Property in compliance with the Americans With Disabilities Act (the "ADA"), (vii) the
modifications to the risers in each theater to assure conformity, (viii) the replacement of all
seating, (ix) the installation of digital project and sound systems and (x) payment for and
acquisition of all licensing rights for the IMAX name within a franchise area and the installation
of an IMAX movie theater screen, renovation of one (1) larger theater within the Phase I
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-finaLdocx
5
Property and the acquisition and installation of all additional projection requirement, sound
equipment and other appurtenant facilities and equipment required to obtain and to thereafter
maintain all licensing for the showing of IMAX movie format utilizing the IMAX branding at
the theater comprising the Phase I Property. The Phase I Property Improvements must be
constructed, developed, installed and completed by November 15, 2010, and the IMAX theater
must be completed and operation by April 1, 2011, or the date of title transfer for the Phase III
Property if such title transfer is scheduled to occur prior to April 1, 2011, unless such date is
extended by the Agency in its sole and absolute discretion; provided, however, that
notwithstanding said stated date the Developer shall have at least one hundred twenty (120)
calendar days from the Close of Escrow of the Phase I Property to obtain all required
construction and building permits and to complete all such construction activities.
"Phase I Property Preliminary Title Report" means and refers to the preliminary report
prepared by the Title Company in connection with the Phase I Property. The Phase I Property
Preliminary Title Report shall be delivered by the Title Company to the Developer in accordance
with this Agreement and shall list, describe and disclose all existing title exceptions, including,
without limitation, all liens, encumbrances, deeds of trust, mortgages, leases, mechanics' liens,
memorandums, covenants, conditions, restrictions and all other matters affecting, encumbering
and/or relating to the Phase I Property, as amended from time to time.
"Phase I Property Project" means and refers to the construction, development, installation
and completion by the Developer of the Phase I Property Improvements, subject to the terms,
covenants and conditions of this Agreement.
"Phase I Property Purchase Price" means and refers to the purchase price paid by the
Developer to the Agency in connection with the sale by the Agency and the purchase by the
Developer of the Phase I Property, subject to the terms, covenants and conditions of this
Agreement. The Phase I Property Purchase Price is $4,600,000 which shall be paid upon the
Close of Escrow either (i) in cash, (ii) pursuant to an assumption of the current principal balance
of the exiting HUD 108 Loan equal to $4,240,000 plus either cash equal to $537,153.50 or the
execution of a promissory note upon the Close of Escrow as further provided in Section 2.16(8)
hereof secured by a subordinate deed of trust upon the Phase I Property plus either cash equal to
$164,197.10 or the execution of a promissory note upon the Close of Escrow as further provided
in Section 2.16(8) hereof secured by a subordinate deed of trust upon the Phase I Property, or
(iii) the Developer providing for the defeasance of the existing HUD 108 Loan under such terms
and conditions as are determined by HUD.
"Phase IA Property" means and refers to the land adjacent to the theater on the Phase I
Property on which the Agency shall develop the Phase IA Property Improvements as shall
hereafter be approved by the Agency. The Phase IA Property is located in the City of San
Bernardino, County of San Bernardino, State of California, as described on Exhibit "A-2"
attached hereto and incorporated herein by this reference. The Developer shall have no right to
purchase the Phase IA Property from the Agency under this Agreement.
P:\CinemaStar ~ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-finaLdocx
6
"Phase IA Property Improvements" mean and refer to a mutually agreed upon public
feature comprised of a public seating area or amphitheater plus an additional water feature to the
existing installed fountains owned by the Agency plus some form of hardscape to be funded and
constructed and installed by the Agency at its sole design, cost and expense.
"Phase II Property" means and refers to that certain unimproved land located in the City
of San Bernardino, County of San Bernardino, and State of California, as described in Exhibit
"A-3" to this Agreement attached hereto and incorporated herein by this reference for which the
Developer shall have no development rights unless the Agency seeks to develop such Phase II
Property through another private developer in which instance the Developer may submit a
proposal for the development of the Phase II Property consistent with the Agency plans for the
development thereof.
"Phase III Property" means and refers to that certain unimproved land located in the City
of San Bernardino, County of San Bernardino, and State of California, as described in Exhibit
"A-4" to this Agreement attached hereto and incorporated herein by this reference.
"Project" means and refers to the Phase I Property Project to be undertaken by the
Developer pursuant to this Agreement and within the time requirements as set forth in this
Agreement with the time period for the Close of Escrow in accordance with Section 2.03( e).
"Project Area" means and refers to the Central City North Redevelopment Project Area
in the City of San Bernardino, County of San Bernardino, State of California.
"Property" means and refers to the Phase I Property which is the only real property that is
the subject of the Agreement and for which the Developer has the right to acquire title thereto;
provided, however: (i) that upon compliance with the requirements set forth in Section 1.07 the
Developer shall have the limited right to acquire title to the Phase III Property pursuant to this
Agreement, provided the Developer is not in default under the Agreement, and (ii) the Developer
shall have the right to purchase all or a part of the Phase II Property, subject to the terms,
covenants and conditions of Section 3.02(e) and of Section 3.02(f).
"Redevelopment Plan" means and refers to the Redevelopment Plan for the Central City
North Redevelopment Project Area of the Agency.
"Schedule of Performance" means and refers to the Schedule of Performance on which
the Agency and the Developer shall describe in detail the schedule of performance in connection
with the construction, development, installation and completion of the Phase I Property Project.
The Schedule of Performance is attached hereto and incorporated herein by this reference as
Exhibit "D."
"Scope of Development" means and refers to the construction, development, installation
and completion by the Developer of the Phase I Property Improvements. The Scope of
Development is described in Exhibit "c" to this Agreement which Exhibit is attached hereto and
incorporated herein by this reference.
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
7
"State" means and refers to the State of California.
Section 1.05. Restrictions Against Change in Ownership, Management and Control of
the Developer and Assignment of Agreement. The qualifications and identity of the Developer
are of particular concern to the Agency. It is because of those qualifications and identity that the
Agency has entered into this Agreement with the Developer. Prior to the issuance of a
Certificate of Completion as set forth in Section 3.07, no voluntary or involuntary successor in
interest of the Developer shall acquire any rights or powers under this Agreement.
The Developer shall not, except as set forth above or as authorized in Section 3.04 hereof
for a Transfer as a Permitted Transfer, assign all or any part of this Agreement or any rights
hereunder prior to the issuance of the Certificate of Completion with respect to the Project, or
any part thereof, without the prior written approval of the Interim Executive Director of the
Agency, which approval shall not be unreasonably withheld, delayed or conditioned.
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
of the 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 officers have
been notified or may otherwise have knowledge or information. This Agreement may be
terminated by the Agency prior to the Close of the Escrow as set forth in Section 2.03 if there is
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 by the Agency prior to the time of such
change or the Agency may seek other appropriate relief in the event that at any time following
the Close of Escrow and prior to issuance of the Certificate of Completion such a change in the
ownership, or control of the Developer occurs with respect to the Phase I Property pursuant to
this Agreement; provided, however, that (i) the Agency shall first notify the Developer in writing
of its intention to terminate this Agreement or to exercise any other remedy, and (ii) the
Developer shall have twenty (20) calendar days following receipt of such written notice to
commence and thereafter diligently and continuously proceed with the cure of the default of the
Developer and submit evidence of the initiation of satisfactory completion of such cure to the
Agency in a form and substance deemed satisfactory to the Agency, in its reasonable discretion.
Section 1.06. Benefit to Proiect Area. The Agency has determined that the conveyance
by the Agency to the Developer of the Property, or any portion thereof, will materially assist in
the elimination of blight and the implementation of the Redevelopment Plan for the Project Area.
Section 1.07. Limited Rights of Developer to Acquire Phase III Property.
(a) From and after the date that the Developer has (i) acquired the fee title to the
Phase I Property, (ii) timely completed the construction and installation of the Phase I Property
Improvements, (iii) received a final certificate of occupancy (the "Final C/O") from the City for
the entire rehabilitation and renovation of the Phase I Property and the completion of the Phase I
Property Improvements, (iv) completed the construction of the IMAX theater and such IMAX
theater is operational not later than April 1, 2011, or such earlier date as may be required for any
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-finaLdocx
8
scheduled transfer of the Phase III Property if prior to April 1, 2011, and (v) has provided written
notice to the Agency on or before October 1, 2010, of the election by the Developer to purchase
the Phase III Property, and provided that there is at such time no pending default by the
Developer pursuant to any term or provision of this Agreement, the Developer shall have the
right to acquire the Phase III Property pursuant to this Agreement for a cash purchase price equal
to twelve dollars ($12.00) per square foot, as provided for in the Fair Market Value Appraisal,
dated August 20, 2008, prepared by Authur Gimmy International in favor of the Agency, or the
Fair Market Value appraisal as of the date the Developer executes a mutually acceptable
disposition and development agreement with the Agency for the purchase and the development
by the Developer of the Phase III Property, whichever is less. In the event the Developer has
complied with all provisions of this Section 1.07(a), the Developer shall have the right for ninety
(90) days after the compliance with the provisions of the first sentence of this subsection (a) to
enter into a mutually acceptable disposition and development agreement with the Agency for the
purchase and for the development by the Developer of the Phase III Property. Nothing contained
herein shall unconditionally commit the governing board of the Agency or the Mayor and
Common Council to approve any such disposition and development agreement presented for
consideration and approval. At such time as the governing board of the Agency has rejected the
proposal and the form of the disposition and development agreement from the Developer for the
purchase and for the development by the Developer of the Phase III Property, the Developer
shall have no further rights pursuant to this Section 1.07(a) or this Agreement with respect to the
Phase III Property. The rights afforded to the Developer pursuant to this Section 1.07(a) shall
terminate and be of no further force and effect after either (i) October 1, 2010, if the Developer
has not timely provided notice to the Agency as set forth above, or (ii) April 1, 2011, if escrow
for the purchase of the Phase III Property has not closed due to the inability of the Developer to
timely deposit the purchase price for the Phase III Property, the inability of the Developer to
comply with the conditions set forth in subsection (c) below, if the Developer refuses to accept
the condition of title to the Phase III Property or if the Developer is in default under the
Agreement.
(b) RESERVED
(c) Prior to any Close of Escrow for the Phase III Property, the Developer shall
provide architectural plans illustrating exterior treatments for the buildings to be constructed on
the Phase III Property for which such buildings shall not exceed 15,000 square feet in gross
building square footage. The Agency and the Developer shall jointly approve all site design and
architectural controls for any development of the Phase III Property all of which shall be subject
to the reasonable approval of the Executive Director ofthe Agency. The Close of Escrow for the
Phase III Property shall occur on or before April 1, 2011, provided that the Developer has
obtained (i) building permits issued by the City of San Bernardino for the proposed development,
(ii) a bona fide, valid and enforceable financing commitment evidenced by a written commitment
executed by a commercial lender or by an investor reasonably acceptable to the Agency, and (iii)
one or more bona fide, valid, and executed leases from one or more tenants for the lease of at
least forty percent (40%) of the gross square footage of the building area to be constructed on the
Phase III Property with each such tenant being subject to the reasonable approval of the
Executive Director of the Agency, said approval not to be withheld, delayed or conditioned.
Such tenants shall be subject to disapproval by the Executive Director for stated reasons as shall
P:\CinemaStar. Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
9
be provided in writing to the Developer. The Agency shall have no further liability or
responsibility with respect to any failure of the Close of Escrow for the Phase III Property in the
event the Developer fails to comply with any of the conditions contained in the this Section 1.07
or in the event the Developer is unable to obtain the approvals and consents of the Executive
Director of the Agency as required by this Section 1.07.
(d) The improvements to the Phase III Property shall be completed within two (2)
year from and after the date of the Close of Escrow for the Phase I Property.
Section 1.08. Certain Payments by Developer with Respect to HUD 108 Loan.
(a) The Developer agrees that in consideration of the extension of the time period for
the Close of Escrow for the Phase I Property as evidenced by Amendment No. 1 to the 2008
Agreement and the approval and execution of this Amended and Restated 2008 Agreement by
the Agency, the Developer shall reimburse the Agency for the August 1, 2009, principal and
interest payment as remitted to HUD on the HUD 108 Loan in an amount equal to $537,153.50
which shall bear interest at five percent (5%) per annum from and after August 1,2009 until paid
in full, and shall have a final maturity date of June 30, 2013, and shall be evidenced by a
promissory note secured by a subordinate deed of trust upon the Phase I Property from and after
the Close of Escrow. Upon the maturity date of said promissory note, all principal and accrued
and unpaid interest shall be payable to the Agency except to the extent prior to June 30, 2013, the
Developer has undertaken the Parking Lot Construction as defined and further provided in
Section 2.16(8) hereof and is entitled to a credit against the principal and interest repayment
amounts.
(b) The Developer agrees that the interest payment due and payable on the HUD 108
Loan on February 1,2010, will be remitted by the Agency to HUD in the approximate amount of
$164,197.10, will be evidenced by a promissory note which shall bear interest at five percent
(5%) per annum from and after February 1, 2010 until paid in full, will be secured by a
subordinate deed of trust encumbering the Phase I Property, and will have a maturity date of one
hundred and twenty (I20) days after the Close of Escrow or the date that the Developer
completes the Phase I Property Improvements, whichever occurs first. . The Developer shall
have no right to exercise the election to acquire the Phase III Property in the event such February
1, 2010, interest payment has not been fully reimbursed to the Agency or alternative
arrangements for the repayment thereof have not been mutually agreed in writing between the
Developer and the Agency.
(c) The Developer agrees to remit the principal and interest payment due and payable
on the HUD 108 Loan as of August 1, 2010, and semiannually thereafter as to interest and
annually thereafter as to principal through the maturity date of the HUD 108 Loan or until the
prior defeasance or repayment in whole of the HUD 108 Loan by the Developer. In the event the
escrow has not closed prior to August 1, 2010, and the Developer has not timely remitted the full
amount of the August 1,2010, payment to HUD on the HUD 108 Loan, the Developer shall be
in default pursuant to this Agreement and shall only have the right to cure such defal t prior to
the Agency delivery of a notice of termination as to this Agret:iIltnt but in no event Ie than ten
(IO) calendar days. Upon such default by the Developer and the delivery by the Agel i. of said
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Re l'd DDA 3-29-10-EDA-final.docx
1(\
notice of termination, the Escrow shall be cancelled, this Agreement shall then be deemed to be
terminated and the Developer shall have no further rights pursuant to this Agreement.
ARTICLE II
DISPOSITION OF THE PROPERTY
Section 2.01. Purchase and Sale of the Property.
(a) Purchase and Sale of the Property. Subject to the terms, covenants, conditions
and provisions of this Agreement, the Agency agrees to sell to the Developer and the Developer
agrees to purchase from the Agency the Phase I Property at and for the Phase I Property
Purchase Price. The Phase I Property Purchase Price shall be deemed to have been paid by the
Developer to the Agency upon either (i) the HUD Loan Assumption (as hereinafter defined) by
the Developer with the approval ofHUD and execution of the $537,153.50 principal amount of
the promissory note as further provided in Section 2.16(8) together with a subordinate deed of
trust encumbering the Phase I Property to secure such repayment, and (A) the execution of the
$164,197.1 0 principal amount of the promissory note as further provided in Section 2.16(8)
together with a subordinate deed of trust encumbering the Phase I Property to secure such
repayment, and (B) the payment of the principal and interest due thereon as of August 1, 2010,
(ii) the repayment of the existing $4,240,000 principal balance of the presently outstanding HUD
108 Loan with the proceeds of any other Financing plus the amounts due and payable pursuant to
(i)(A) and (B) immediately preceding, or (iii) regardless of whether (i) or (ii) as immediately set
forth are applicable, the additional compliance with all other requirements as set forth in Section
3.05A. hereof.
(b) Phase I Property Purchase Price. The Phase I Property Purchase Price which the
Agency agrees to accept from the Developer and which the Developer agrees to pay and to
deliver to the Agency for the purchase by the Developer of the Phase I Property is $4,600,000.
The Phase I Property Purchase Price shall be delivered to the Escrow Officer on behalf of the
Agency.
Section 2.02. Phase I Property Deposit.
(a) The Agency acknowledges receipt of the Phase I Property Deposit from
Developer which has been delivered by the Agency to the Escrow Holder (as hereinafter defined)
the Phase I Property Deposit. Upon receipt of the Phase I Property Deposit together with a fully
executed copy of this Agreement, the Escrow Holder has caused the Escrow to be opened as
provided in Section 2.03, and the Escrow Holder has placed the Phase I Property Deposit into an
interest-bearing escrow account with the interest thereon to accrue to the benefit of the
Developer. At the Close of Escrow (as defined below) in connection with the Phase I Property,
the Phase I Property Deposit shall be applied as a credit to the Phase I Property Purchase Price.
(b) The Phase I Property Deposit (less an amount equal to the customary and
reasonable escrow cancellation charges of the Escrow Holder) shall be returned to the Developer
in the event that:
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-fina1.docx
11
(i) the Agency or the Developer terminates this Agreement pursuant to
Section 2.03(b); or
(ii) the Developer does not deliver its Phase I Property Due Diligence
Certificate to the Escrow Holder pursuant to Section 2.03(b) and this
Agreement is terminated; or
(iii) the conditions precedent to the obligation of the Developer to proceed
with the Close of Escrow described in Section 2.16 are not satisfied by the
Agency or other entities, as appropriate (unless satisfaction has been
waived by the Developer), and this Agreement is terminated; or
(iv) the Phase I Property is materially damaged prior to the Close of Escrow
(as defined below), or an action of eminent domain is commenced by a
governmental entity with respect to the Phase I Property prior to the Close
of Escrow, and the Developer elects to terminate this Agreement pursuant
to Section 2.25.
Section 2.03. Opening and Closing of Escrow.
(a) The transfer and sale of the Phase I Property shall take place through the Escrow
to be administered by Chicago Title Insurance Company or such other escrow or title insurance
company mutually agreed upon by the Developer and the Agency (the "Escrow Holder"). The
Escrow shall be deemed open upon the receipt by the Escrow Holder of a fully executed copy of
this Agreement and the Phase I Property Deposit. The Escrow Holder shall promptly confirm to
the parties the escrow number and the title insurance order number assigned to the Escrow.
(b) Subject to any extensions oftime pursuant to Section 2.15 hereof, in the event that
the Developer has not delivered its Phase I Property Due Diligence Certificate to the Agency and
the Escrow Holder on or before April 15, 2010, regardless of the reason, then in such event this
Agreement shall terminate upon written notice to the Escrow Holder from either the Agency or
the Developer, whereupon the Phase I Property Deposit shall be returned by the Escrow Holder
to the Developer (less an amount equal to the customary and reasonable escrow cancellation
charges payable to the Escrow Holder) without further or separate instruction to the Escrow
Holder, and the parties shall each be relieved and discharged from all further responsibility or
liability under this Agreement.
(c) Provided that the Developer has delivered the Phase I Property Due Diligence
Certificate within the period of time authorized in Section 2.10, then the Closing Date of the
Escrow shall occur within twenty (20) calendar days thereafter, unless the Close of Escrow is
extended (a) pursuant to Section 2.15 or (b) to a date that is more than twenty (20) calendar days
thereafter by mutual agreement of the Agency and the Developer.
(d) The words "Close of Escrow", "Closing Date" and "Closing" shall mean and refer
to the date when: (i) the Escrow Holder is in receipt of the Escrow documents from the parties,
(ii) the Escrow Holder is in a position to comply with the final written escrow closing
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow ~related docs\DDAs\Maya Amended and Restated DDA 3-29-] O-EDA-finaLdocx
12
instructions from the parties, (iii) the Escrow Holder is in a position to cause the Agency Grant
Deed in connection with the Phase I Property to be recorded in the official records of the County,
(iv) the Escrow Holder is in a position in connection with the Escrow relating to the Phase I
Property to record the Notice of Agreement in the Official Records of the County Recorder's
Office for the County of San Bernardino, State of California, (v) the Escrow Holder has received
all required monies and all instruments, agreements, documents, certificates and estoppels, as
executed and acknowledged, in recordable form where applicable, to Close the Escrow, (vi) the
Escrow Holder has received an executed seller and buyer's closing statement from the Developer
and from the Agency, and (vii) the Escrow Holder is in a position to deliver to the Developer the
Phase I Property Title Policy.
(e) Notwithstanding anything else contained in this Agreement and in any Exhibit to
the contrary, the Close of Escrow for the transfer of the Phase 1 Property from the Agency to the
Developer must occur not later than June 30, 2010, except as provided in the following sentence.
The Developer shall have the right to extend the Close of Escrow for the Phase I Property to a
date not later than September 30, 2010, if prior to June 30, 2010, the Developer completes either
of the following actions and provides timely notice to the Agency on or prior to June 30, 2010,
stating and providing written evidence or other substantial verification as approved in writing by
the Executive Director that one of the required following actions has been accomplished as of or
prior to the date of such notice:
(i) the Developer executes the $164,197.1 0 promissory note and the
subordinate deed of trust encumbering the Phase I Property, or pays cash to the
Escrow Holder in the amount of $164,197.10, as required by Section 1.08(b) and
Section 2.16(8), and either
(1) the Developer has deposited the amount of the Developer equity
contribution of $2,600,000 (i.e., an additional $2,500,000 less any funds expended
by the Developer pursuant to the Project budget which the Developer has
documented and submitted evidence of said expenditures to the Agency as
reasonably approved by the Agency together with the $100,000 currently on
deposit with the Escrow Holder shall constitute the full amount of the Developer
equity contribution) with the Escrow Holder, executes the $537,153.50
promissory note and subordinate deed of trust, or pays cash to the Escrow Holder
in the amount of$537,153.50, as required by Section 1.08(a) and Section 2.16(8)
and deposits the additional cash or a letter of credit equal to $450,000 with the
Escrow Holder to be subsequently delivered to an account at Far East National
Bank or an account designated by Developer; or
(2) the Developer has expended an amount equal at least $2,500,000
on third party expenditures related to the physical structure of the Phase I
Property including any other on-site improvements or other off-site public
improvements subject to reasonable verification by the Executive Director of the
Agency nd all applicable prevailing wage requirements were met as to the
expendit? of said funds.
P CinemaStar - Maya Theater Project\Maya 1 'DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-fina1.docx
13
In the event the Close of Escrow has not occurred by the applicable date for the Close of Escrow,
the Agency shall be entitled to exercise all rights and remedies as set forth in this Agreement and
in Article V subject to notice of default from the Agency to the Developer without any right to
cure such default by the Developer after said date.
Section 2.04. Escrow Instructions. This Agreement also constitutes escrow instructions
of the parties to the Escrow Holder. Additionally, the Developer and the Agency each agree to
execute the customary supplemental escrow instructions of the Escrow Holder in the form
provided by the Escrow Holder to its clients in real property escrow transactions administered by
it. In the event of a conflict between the additional terms of such customary supplemental
escrow instructions of the Escrow Holder and the provisions of this Agreement, this Agreement
shall supersede and be controlling. Upon any termination of this Agreement or cancellation of
the Escrow, the Developer shall be solely responsible for the payment of the escrow cancellation
costs of the Escrow Holder, the Escrow Holder shall forthwith return all monies (as provided in
this Agreement) and documents, less only the Escrow Holder's customary and reasonable escrow
cancellation fees and expenses, as set forth herein.
Section 2.05. Conveyance of Title to the Phase I Property. On or before 12:00 noon on
the business day preceding the Closing Date for the Escrow the Agency shall deliver to the
Escrow Holder a grant deed in the form attached hereto as Exhibit "E" (the "Agency Grant
Deed") duly executed and acknowledged by the Agency, which Agency Grant Deed shall convey
all of its merchantable lien free right, title and interest of the Agency in the Phase I Property to
the Developer. The Escrow Holder shall be instructed to record the Agency Grant Deed in the
Official Records of San Bernardino County, State of California, if and when the Escrow Holder
holds the various instruments of the parties as set forth herein and can obtain for the Developer a
CL T A owner's coverage policy of title insurance ("Title Policy") issued by Chicago Title
Insurance Company or such other title insurance company mutually agreed upon by the parties
("Title Company") with liability in an amount equal to the Phase I Property Purchase Price for
the Phase I Property Title Policy, together with such endorsements to the policy as may be
reasonably requested by the Developer, insuring that the title to the Phase I Property is vested in
fee title in the Developer and is free and clear of options, rights of first refusal or other purchase
rights, leases or other possessory interests and monetary liens and/or encumbrances and subject
only to:
(1) non-delinquent real property taxes;
(2) non-monetary title exceptions approved by the Developer pursuant to
Section 2.13 below;
(3) applicable provlSlons encumbering or affecting the parcel map or
subdivision map for the Phase I Property;
(4) the effect of any conditions imposed by the City as part of the
development plan approvals for the Phase I Property Project, or any part thereof, accepted by the
Developer in its sole discretion;
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-final.docx
14
(5) the provisions ofthe Agency Grant Deed;
(6) the applicable provisions of this Agreement and the Notice of Agreement;
(7) the assumed existing HUD 108 Loan and/or the New HUD Loan, as
applicable, or any other deed of trust, mortgage or security interest encumbering the Phase I
Property;
(8) such other title exceptions, if any, resulting from documents being
recorded or delivered through Escrow;
(9) the effect of the Redevelopment Plan for the Project Area.
Section 2.06. Additional Closing Obligations of the Agency. On or before 12:00 noon
on the business day preceding the Closing Date for the Escrow (and unless indicated otherwise),
the Agency shall deliver to the Escrow Holder (unless indicated to be delivered directly to the
Developer) copies of the following documents and other items:
(1) a certificate of non-foreign status executed by the Agency, in the
customary form provided by the Escrow Holder, and a California
Franchise Tax Board Form 590-RE executed by the Agency;
(2) all soils, seismic, geologic, drainage, and environmental reports, and
surveys, with respect to the Phase I Property, if any, which the Agency has
in its possession and/or control to the extent that originals of such items
have not been delivered previously by the Agency to the Developer
pursuant to Section 2.08 below;
(3) two (2) duplicate original copies of the Closing Statement described in
Section 2.21, duly executed by the Agency;
(4) evidence of the existence, organization and authority of the Agency and of
the authority of persons executing documents on behalf of the Agency
reasonably satisfactory to the Escrow Holder and Title Company;
(5) any other documents, instruments, funds and records required to be
delivered to the Developer under the terms of this Agreement which have
not been previously delivered;
(6) one (1) original of the Notice of Agreement, as executed and
acknowledged by the Agency (in connection with the Escrow relating to
the Phase I Property);
(7) one (1) original of the Scope of Development and one (1) original of the
Schedule of Performance, as executed by the Agency and by the
Developer;
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
15
(8) one (1) original of the Agency Grant Deed, as executed and notarized by
the Agency, in connection with the Phase I Property;
(9) one (1) original of the License Agreement, in connection with Escrow
relating to the Phase I Property; and
(10) one (1) original executed copy of the (i) Loan Covenant Agreement upon
either an assumption of the existing HUD 108 Loan and/or the origination
of a New HUD Loan, as applicable, and (ii) the Parking Agreement.
Section 2.07. Closing Obligations of the Developer. On or before 12:00 noon on the
business day preceding the Closing Date for the Escrow, the Developer shall deliver to the
Escrow Holder copies of the following documents and other items:
(1) an acknowledgment and acceptance of the Agency Grant Deed, duly
executed and acknowledged by the Developer;
(2) two (2) duplicate original copies of the Closing Statement, duly executed
by the Developer;
(3) one (1) original of the Notice of Agreement, as executed and
acknowledged by the Developer (in connection with the Escrow relating to
the Phase I Property);
(4) evidence of the existence, organization and authority of the Developer and
of the authority of persons executing documents on behalf of the
Developer reasonably satisfactory to the Escrow Holder and the Title
Company;
(5) documentation of present commitment of financial resources as
determined to be reasonably satisfactory by the Agency to provide for the
purchase of the Phase I Property, and to provide for the construction, the
development, the installation and the completion of the Phase I Property
Project, as appropriate;
(6) one (1) original of the Scope of Development and one (1) original of the
Schedule of Performance, as executed by the Agency and by the
Developer;
(7) one (1) original of the Agency Grant Deed, as executed and notarized by
the Developer, accepting the conveyance from the Agency to the
Developer in connection with the Phase I Property;
(8) any other documents, instruments or funds required to be delivered by the
Developer under the terms of this Agreement or as otherwise required by
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
16
Escrow Holder or Title Company in order to close the Escrow, which have
not previously been delivered; and.
(9) one (1) original executed copy of (i) the Loan Covenant Agreement upon
either an assumption of the existing HUD 108 Loan and/or the origination
of a New HUD Loan, as applicable, and (ii) the Parking Agreement.
Section 2.08. Inspections and Review.
(a) Due Diligence Items. Within five (5) business days after the execution of this
Agreement, the Agency shall deliver true, correct and complete copies or originals of the
following documents and items (collectively, "Due Diligence Items") to the Developer:
(1) copies of all soils, seismic, geologic, drainage, engineering, environmental
and similar type reports and surveys including, but not limited to, any
Property Environmental Site Assessments, surveys, relating to the Phase I
Property, if any, in the possession or the control of the Agency.
(2) notices of violations, including, but not limited to, zoning ordinances,
development or building codes affecting the Phase I Property within the
Agency's possession or control.
(3) disclosure of any legal matters affecting the use, occupancy or condition
of the Phase I Property within the knowledge of the Agency.
(b) Certain Definitions. For the purpose of this Agreement, the terms set forth below
shall have the following meaning:
(i) "environmental laws" means all federal, state, local, or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of
any government authority regulating, relating to, or imposing liability of standards
of conduct concerning any hazardous substance (as later defined), or pertaining to
occupational health or industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws, ordinances, or regulations relate to
hazardous substances on, at, in, above, under, from or about the Phase I Property,
occupational or environmental conditions on, under, or about the Property, as now
or may at any later time be in effect, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA") [42 USC Section 9601 et seq.]; the Resource Conservation
and Recovery Act of 1976 ("RCRA") [42 USC Section 6901 et seq.]; the Clean
Water Act, also known as the Federal Water Pollution Control Act ("FWPCA")
[33 USC Section 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15
USC Section 2601 et seq.]; the Hazardous Materials Transportation Act
("HMTA") [49 USC Section 1801 et seq.]; the Insecticide, Fungicide,
Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section
7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-fina1.docx
17
Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining
Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency
Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the
Occupational Safety and Health Act [29 USC Section 655 and 657]; the
California Underground Storage of Hazardous Substances Act [H & S C Section
25288 et seq.]; the California Hazardous Substances Account Act [H & S C
Section 25300 et seq.]; the California Safe Drinking Water and Toxic
Enforcement Act [H & S C Section 24249.5 et seq.] the Porter-Cologne Water
Quality Act [Water Code Section 13000 et seq.] together with any amendments of
or regulations promulgated under the statutes cited above and any other federal,
state, or local law, statute, ordinance, or regulation now in effect or later enacted,
as amended from time to time, that pertains to occupational health or industrial
hygiene, and only to the extent the occupational health or industrial hygiene laws,
ordinances, or regulations relate to hazardous substances on, at, in, above, under,
from or about the Phase I Property, or the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water,
or land use.
(ii) "hazardous substances" includes without limitation:
those substances included within the definitions of "hazardous substance,"
"hazardous waste," "hazardous material," "toxic substance," "solid waste," or
"pollutant or contaminate" in CERCLA, RCRA, TSCA, HMT A, or under any
other environmental law; and
those substances listed in the United States Department of Transportation
(DOT)Table [49 CFR 172.101], or by the EPA, or any successor agency, as
hazardous substances [40 CFR Part 302]; and
other substances, materials, and wastes that are or become regulated or classified
as hazardous or toxic under federal, state, or local laws or regulations; and
any material, waste, or substance that is:
(1) a petroleum or refined petroleum product,
(2) asbestos,
(3) polychlorinated biphenyl,
(4) designated as a hazardous substance pursuant to 33 USC Section
1321 orlisted pursuant to 33 USC Section 1317,
(5) a flammable explosive,
(6) a radioactive material,
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
18
(7) lead or lead-containing materials.
Section 2.09. Due Diligence Investigation ofthe Phase I Property By the Developer.
(a) On or before April 15, 2010, for the Escrow in connection with the Phase I
Property, and subject to the extensions of time set forth below in Section 2.15, the Developer
shall have the right to examine, inspect and investigate the Property Phase I Property (the "Due
Diligence Period") to determine whether the condition of the Phase I Property is acceptable to
the Developer and to obtain such development project approvals from the City for the
improvement of the Phase I Property Project, as the Developer may require in its sole and
absolute discretion.
(b) During the Due Diligence Period, the Agency shall permit the Developer, its
engineers, analysts, contractors and agents to conduct such physical inspections and testing of
the Phase I Property as the Developer deems prudent with respect to the physical condition of the
Phase I Property including the inspection or investigation of soil and subsurface soil geotechnical
condition, drainage, seismic and other geological and topographical matters, surveys the
potential presence of any hazardous substances, if any.
(c) Any such investigation work on the Phase I Property may be conducted by the
Developer and/or its agents during any normal business hours upon twenty-four (24) hours prior
notice to the Agency, which notice will include a reasonable description of any investigation
work or tests to be conducted by the Developer on the Phase I Property. Upon the Agency's
request, the Developer will provide the Agency with copies of any test results obtained pursuant
to the separate License Agreement.
(d) During the Due Diligence Period, the Developer shall also have the right to
investigate all matters relating to the zoning, use and compliance with other applicable laws
which relate to the use and development and improvement of the Phase I Property. The
Developer may submit an application to the City and any other regulatory agency with
jurisdiction for any and all necessary development project approvals for the Project. The Agency
hereby consents to the submission of such development project approval applications by the
Developer.
(e) The Agency shall cooperate fully to assist the Developer in completing such
inspections and investigations of the condition of the Phase I Property. The Agency shall have
the right, but not the obligation, to accompany the Developer during such investigations and/or
inspections. The Developer shall pay for all costs and expenses associated with the conduct of
all such Due Diligence investigation including the cost of submitting any development project
approval application as relates to the Phase I Property Project to any regulatory jurisdiction. The
costs of such investigations and/or inspections associated with the conduct of all such Due
Diligence investigation are or may be included in the Budget.
Section 2.10. Due Diligence Certificate. Within thirty (30) calendar days following the
Opening of Escrow in connection with the Phase I Property, the Developer shall complete its
P:\CinemaStar ~ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-fina1.docx
19
investigation of the Phase I Property (subject to any extensions of time as provided in Section
2.15 and deliver a due diligence certificate signed by the Developer (the "Due Diligence
Certificate") to the Escrow Holder which either:
(i) indicates that the Developer accepts the condition of the Phase I Property,
or;
(ii) contains a description of the matters or exceptions relating to the condition
of the Phase I Property which the Developer was not able to accept or
resolve to its satisfaction during the Due Diligence Period. In the event
that there are matters that the Developer is unable to accept or resolve,
such matters shall be deemed conditions to Closing for the benefit of the
Developer and the Closing Date shall automatically be deemed extended
for such period as maybe necessary to resolve such matters except as to
otherwise required by Section 5.01(i).
Section 2.11. Books and Records. As part of the Developer's due diligence
investigations during the Due Diligence Period, the Developer shall be afforded full opportunity
by the Agency to examine all books and records which relate to the Phase I Property in the
possession or direct or indirect control of the Agency and/or the Agency's agents or employees,
including the reasonable right to make copies of such books and records. During the Due
Diligence Period, the Agency will make sufficient staff available to assist the Developer with
obtaining access to information relating to the Phase I Property which is in the possession or
control of the Agency.
Section 2.12. Condition of the Property and the Developer's Release. The Developer
acknowledges and agrees that it shall be given a full opportunity under this Agreement to inspect
and investigate every aspect of the Phase I Property during the Due Diligence Period. The
Developer shall accept the delivery of possession to the Phase I Property on the Close of Escrow
in an "AS IS", "WHERE IS" and "SUBJECT TO ALL F AUL TS" condition. The Developer
further agrees and represents to the Agency that by a date no later than the end of the Due
Diligence Period, the Developer shall have conducted and completed (or waived the completion)
of all of its independent investigation of the condition of the Phase I Property, which the
Developer may believe to be indicated. The Developer hereby acknowledges that it shall rely
solely upon its own investigation of the Property I Property and its own review of such
information and documentation as it deems appropriate for the purpose of accepting the
condition and possession of the Phase I Property. The Developer is not relying on any statement
or representation by the Agency relating to the condition of the Phase I Property unless such
statement or representation is specifically contained in this Agreement. Without limiting the
foregoing, the Agency makes no representations or warranties as to whether the Phase I Property
presently complies with environmental laws or whether the Phase I Property contains any
hazardous substance, as these terms are defined in Section 2.08(b) hereof. Furthermore, to the
extent that the Agency has provided the Developer with information relating to the condition of
the Phase I Property including information and reports prepared 'lY or on behalf of the City of
San Bernardino, the Agency makes no representation or warran: 'vith respect to the accuracy,
completeness or methodology or content of such reports or infom:i on.
P:\CinemaStar - Maya Theater Project\Maya Theater\DD '\. Drafts, Finals, Escrow Jel.. ,.J docs\DDAs\Maya Amended and Restate j A 3-29-1 O-EDA-final.docx
20
Without limiting the above, except to the extent covered by an express representation or
warranty of the Agency set forth in this Agreement, the Developer, on behalf of itself and its
successors and assigns, waives and release the Agency and its successors and assigns from any
and all costs or expenses whatsoever (including, without limitation, attorneys' fees and costs),
whether direct or indirect, known or unknown, foreseen or unforeseen, arising from or relating to
the physical condition of the Phase I Property, the condition of the soils, the suitability of the
soils for the improvement of the Phase I Property Project, as proposed, or any law or regulation
applicable thereto, including the presence or alleged presence or harmful or hazardous
substances in, at, on, above, under, from or about the Phase I Property, including, without
limitation, any claims under or on account of (i) CERCLA and similar statutes and any
regulations promulgated thereunder or (ii) any other environmental laws.
The Developer expressly waives any rights or benefits available to it with respect to the
foregoing release under any provision of applicable law which generally provides that a general
release does not extend to claims which the creditor does not know of suspect to exist in his or
her favor at the time the release is agreed to, which, if known to such creditor, would materially
affect a settlement. By execution of this Agreement, the Developer acknowledges that it fully
understands the foregoing, and with this understanding, nonetheless elects to and does assume all
risk for claims known or unknown, described in this Section 2.12 without limiting the generality
of the foregoing:
The undersigned acknowledges that it has been advised by legal counsel and is familiar
with the provisions of California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND
TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM OR HER, MUST HAVE
MA TERIALL Y AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR."
The undersigned, being aware of this code section, hereby expressly waives any rights it
may have thereunder, as well as under any other stat~tes or common law principles of similar
effect. \. r~'K... ./
Initials of the DeVe!opeo/
The provisions of this Section 2.12 shall survive ~he Close of Escrow for the Phase I
Property.
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-IO-EDA-finaLdocx
21
Section 2.13. Review and Approval of Condition of Title by the Developer.
(a) Within fifteen (15) calendar days following the Opening of Escrow, the Agency
has caused to be delivered to the Developer a preliminary title report or title commitment for a
CL T A coverage policy of title insurance issued by the Title Company describing the state of title
of the Phase I Property together with (i) copies of all exceptions specified therein and with all
easements plotted and (ii) a survey prepared in compliance with ALTAI ASCM standards and in
a form acceptable to the Title Company for the deletion of the standard survey exception in the
Phase I Property Title Policy relating to boundaries, without the addition of further exceptions
unless the same are acceptable to the Developer in its sole and absolute discretion (the
"Preliminary Title Report"). The Developer shall notify the Agency in writing of any objections
the Developer may have to the title exceptions contained in the Preliminary Title Report for the
Phase I Property (the "Developer's Objection Notice") prior to the expiration of the Due
Diligence Period in connection with the Escrow. The Developer may condition its approval on
the Agency's cure of any matters objected to by the Developer.
(b) The Agency covenants not to further encumber and not to place any further liens
or encumbrances on the Phase I Property, including, but not limited to, covenants, conditions,
restrictions, easements, liens, options to purchase, options to lease, leases, tenancies, or other
possessory interests without the prior written consent of the Developer. Upon the issuance of
any amendment or supplement to the Phase I Property Preliminary Title Report, which adds
additional exceptions, the foregoing right of review and approval shall also apply to said
amendment or supplement (provided that the period for the Developer to review such
amendment or supplement shall be the later of the expiration of the Due Diligence Period for the
Escrow or ten (10) calendar days from receipt of the amendment or supplement) and the Escrow
shall be deemed extended by the amount of time necessary to allow such review and approval in
the time and manner set forth above except as otherwise required by Section 5.01(i).
Section 2.14. Survey. The Developer may at its sole cost and separate expense obtain a
survey of the Phase I Property prepared by a land surveyor duly licensed by the State of
California and in compliance with ALTAlASCM standards (the "Survey"). The Survey shall be
in a form acceptable to the Title Company for the deletion of the standard survey exception in
the Title Policy relating to boundaries, without the addition of further exceptions unless the same
are acceptable to the Developer in its sole and absolute discretion. The Developer shall have
until the end of the Due Diligence Period in connection with the Phase I Property to complete
and examine the Survey and to notify Agency in writing of any objections the Developer has to
the Survey (the "Developer's Survey Objection Notice"). The Agency shall have a period of five
(5) calendar days after receipt of the Developer's Survey Objection Notice in which to deliver
written notice to the Developer (the "Agency's Survey Notice") of the Agency's election to
either (i) agree to remove the objectionable items prior to the Close of Escrow for the Phase I
Property or (ii) decline to remove such items which shall then give the Agency the right to
terminate the Escrow for failure of the Developer to comply with the provisions of Section
2.17(2). If the Agency notifies the Developer of its intention to not remove the objectionable
items and to thereupon terminate the Escrow for failure of the condition as set forth in Section
2.17(2), the Developer shall have the right, by written notice delivered to the Agency within five
(5) calendar days after the Developer's receipt of Agency's Survey Notice, to agree to accept the
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
22
Phase I Property subject to the objectionable items, in which event, the Agency's election to
terminate the Escrow shall be of no effect, and the Developer shall accept the Phase I Property at
the Close of Escrow for the Phase I Property, subject to such objectionable items. Prior to the
Closing, the Survey shall be recertified to the Developer and the Title Company. The Survey
will be performed at the Developer's sole cost and expense.
Section 2.15. Extension of Due Diligence Period.
(a) In the event the Agency fails to provide to the Developer the documents and other
information required by Sections 2.08 and 2.11 by the date or dates set forth therein, the Due
Diligence Period for such information shall be extended by one (1) day for each day of the delay
by the Agency to permit the Developer to perform an adequate due diligence review not to
exceed thirty (30) calendar days in connection with the Phase I Property but not to exceed the
time limits for the Close of Escrow as set forth pursuant to Section 2.03( e). The Developer will
use its best efforts to notify the Agency of any documents the Agency has failed to deliver to the
Developer within the time periods provided in Sections 2.08 and 2.11.
(b) In the event that the Interim Executive Director makes a finding that the
Developer has undertaken substantial work to complete its investigation of the Phase I Property,
the Interim Executive Director shall upon the written request of the Developer, authorize an
extension of the Due Diligence Period for an additional sixty (60) calendar days upon written
notice to the Agency on or before the end of the Due Diligence Period in connection with the
Escrow.
(c) Nothing contained in this Section 2.15 shall extend the Close of Escrow dates for
the Phase I Property as set forth in Section 2.03(e).
Section 2.16. Developer's Conditions Precedent to Close Escrow for the Phase I
Property. The Developer's obligation to complete the purchase of the Phase I Property and to
Close the Escrow thereto shall be conditioned upon the fulfillment of the following conditions
precedent, all of which shall be satisfied (or waived in writing pursuant to Section 2.19) prior to
the Close of Escrow for either the Phase I Property:
(1) the Agency shall not have defaulted on any material term of this
Agreement to be performed by the Agency hereunder, and each
representation and warranty made by the Agency in this Agreement shall
remain true and correct;
(2) the Developer's approval of the Phase I Property Preliminary Title Report
within the time period specified in Sections 2.13 and cure of objectionable
items by the Agency;
(3) the Developer's approval of the contents of all Due Diligence Items, and
the other investigations of the Phase I Property made by the Developer
and/or its designees pursuant to Sections 2.08 and 2.09 herein on or before
the expiration of the Due Diligence Period in connection with the Escrow,
or such later date if such Due Diligence Period is extended pursuant to
P:\Cir; tar - Maya Theater Project\J\..1aya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10.EDA-finaLdocx
23
Section 2.15 or any other provision hereof. The Developer shall be
deemed to have disapproved such Due Diligence Items unless they are
approved (conditionally or otherwise) on or before 5:00 p.m. on the day of
the Due Diligence Period in connection with the Escrow, or such later date
if such Due Diligence Period is extended pursuant to Section 2.15 or any
other provision hereof;
(4) the Developer's approval of any notice of change in representation or
warranty given by the Agency pursuant to Section 2.24(a) hereof;
(5) the Title Company has committed to issue the Title Policy in connection
with the Phase I Property in favor of the Developer in the form described
in Section 2.05;
(6) the Developer has received the Scope of Development and the Schedule of
Performance, as executed by the Agency;
(7) the Developer has received purchase money and construction financing to
enable the Developer to purchase, to construct, to develop and to install
the Improvements in connection with the Phase I Property; and
(8) in the event the Developer elects to assume the exiting HUD 108 Loan: (i)
the Developer shall either deposit cash equal to $164,197.10 with the
Escrow Officer prior to the Close of Escrow or the Developer shall
execute and deliver to the Agency through the Escrow Holder a
promissory note in favor of the Agency equal to $164,197.10, having a
maturity date of one hundred and twenty (120) days after the Close of
Escrow, or the date that the Developer completes the Phase I Property
Improvements, whichever occurs first, and a subordinate deed of trust
encumbering the Phase I Property to secure the obligations of such
promissory note; and (ii) the Developer shall either deposit cash equal to
$537,153.50 with the Escrow Holder prior to the Close of Escrow or the
Developer may execute and deliver to the Agency through the Escrow
Holder a promissory note equal to $537,153.50 and a subordinate deed of
trust, securing the obligations of such promissory note in favor of the
Agency and encumbering the Phase I Property which may be satisfied in
whole or in part by the construction by the Developer of an approximate
50 to 75 vehicle parking lot located on an Agency owned parcel at 450 "F"
Street equal to approximately one-half acre in size (the "Parking Lot
Construction"). Such Parking Lot Construction may be commenced by
the Developer at anytime after the Close of Escrow as evidenced by
receipt of all necessary City permits and initiation of physical site
development activities. To the extent the Developer has undertaken the
Parking Lot Construction, the Developer shall receive a credit not to
exceed the entire principal amount of such promissory note in the original
principal amount of $537,153.50, plus accrued and unpaid interest
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-finaLdocx
24
thereon, for the dollar amount of the Parking Lot Construction that has
been expended by the Developer prior to the maturity date of said
promissory note, or any extension thereof. The Developer shall provide
invoices from third parties for the engineering design, payment of City
fees and actual construction costs which upon verification by the
Executive Director of the Agency shall be deemed to be a payment by the
Developer of the amounts owed pursuant to such promissory note. Any
amounts not disbursed by the Developer for the Parking Lot Construction
shall be paid in cash to the Agency upon the maturity date of such
promissory note, or any extension thereof. The Developer recognizes that
the Parking Lot Construction is a "public works" project as defined in the
California Labor Code Section 1770, et seq., for which the Developer shall
pay the prevailing wage rates as required by California Law.
Section 2.17. Agency's Conditions Precedent to Close Escrow for the Phase I Property.
The Agency's obligation to convey the Property Phase I Property to the Developer shall be
conditioned upon the fulfillment of the following conditions precedent, all of which shall be
satisfied (or waived in writing pursuant to Section 2.19) prior to the Close of Escrow:
(1) the Developer has accepted the condition of the Phase I Property and
submitted its Phase I Property Due Diligence Certification to the Escrow
Holder within the time period set forth in Section 2.03 of this Agreement,
as such time period may be extended pursuant to Section 2.15 or any other
provision hereof;
(2) the Developer has accepted the condition of title of the Phase I Property
on or before the date set forth in Section 2.13;
(3) the Developer shall not be in default of any material term of this
Agreement to be performed by the Developer hereunder and each
representation and warranty of the Developer made ih this Agreement
shall remain true and correct;
(4) the Developer shall be satisfied (or waive satisfaction) of each of the
conditions precedent set forth in Section 2.16);
(5) the Developer shall have executed the documents typically required by the
Escrow Holder and as further required by this Agreement in such form as
to allow the recordation of the Agency Grant Deed and the Notice of
Agreement in the Official Records of the County Recorder's Office for the
County of San Bernardino, shall have deposited the Phase I Property
Purchase Price, the Phase I Property Deposit and all other amounts due
and owing by the Developer in connection with this Agreement and the
Closing of the Escrow relating to the Phase I Property, and shall have
executed and acknowledged, if required, all other instruments, documents,
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-final.docx
25
agreements, certificates and estoppels, as required by the Agency or the
Escrow Holder to close the Escrow relating to the Phase I Property;
(6) the Escrow Holder is in a condition to close the Escrow in connection with
the Phase I Property thirty (30) calendar days following the Opening of
Escrow, subject to the provisions of Section 2.15 and 2.25 but not to
exceed the dates set forth in Section 2.03(e);
(7) the Developer must have deposited the Scope of Development and the
Schedule of Performance, as executed by the Developer;
(8) the Executive Director of the Agency must have reasonably approved the
following: (i) the HUD 108 Loan documents and other closing certificates,
after the approval of any new HUD 108 Loan by the Mayor and Common
Council, and all other loans, institutional lenders and/or financings to
enable the Developer to purchase the Phase I Property, and to construct, to
develop, to install and to complete the Phase I Property Project, (ii) the
Developer must have executed and acknowledged, where required, in
recordable form for recordation in the Official Records of the County of
San Bernardino, State of California, all agreements, documents, and
instruments evidencing, securing, guaranteeing and/or relating to the
Financing (as defined below), as amended from time to time (singularly
and collectively, the "Financing Loan Documents" as further provided in
Section 3.05A. hereof) or (iii) the assumption by the Developer of the
existing HUD 108 Loan (the "HUD Loan Assumption") and all other
loans, institutional lenders and/or financings to enable the Developer to
purchase the Phase I Property and to construct, to develop, to install and to
complete the Phase I Property Project (the matters identified in this
Section 2.17(8) and as additionally provided in Section 3.05A. hereof shall
singularly and collectively be referred to as the "Financing"); and
(9) upon the Developer assumption of the existing HUD 108 Loan: (i) the
Developer shall either deposit cash equal to $537,153.50 with the Escrow
Holder prior to the Close of Escrow or the Developer may execute and
deliver to the Agency through the Escrow Holder a promissory note
secured by a subordinate deed of trust on the Phase I Property equal to
$537,153.50 in the manner as provided in Section 2.16(8), and (ii) the
Developer may execute and deliver to the Agency through the Escrow
Holder a promissory note secured by a subordinate deed of trust on the
Phase I Property equal to $164,197.10 in the manner as provided in
Section 2.16(8).
(10) the Developer shall have executed and delivered to the Agency a Fund
Control Agreement in form and substance acceptable to the Agency
pursuant to which all funds including the Developer's equity contribution,
all proceeds of the New HUD Loan and the proceeds of the NMTC
P:\CinemaStar ~ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-final.docx
26
financings described in Section 3.05A and any and all other construction
funds shall be deposited and administered by the California Fund Control,
a subsidiary of First American Title Company, to assure compliance with
the requirements of this Agreement and the payment of the prevailing
wages as set forth in Sections 3.09 and 3.10, as applicable; the Agency
shall be responsible for the payment of all costs and fees due to California
Fund Control. Provided that the Developer timely deposited the
$2,600,000 of the amount required pursuant to the resolution approving
the execution of this agreement and all and any portion of such deposit
have been used and applied for the purposes of payment of hard project
costs (such hard costs are limited to labor and materials that have been
directly applied for the renovation, modeling and betterment of the theater
paid after the date of this agreement) pursuant to the Fund Control
Agreement, the Agency shall reimburse the Developer all such hard
project costs that have been paid in the event escrow does not close
regardless of the reason for such failure for escrow to close and the
Developer has released the Agency from all further obligations under this
agreement.
(11) upon the assumption of the HUD 108 Loan and/or the origination of a
New HUD Loan, the Developer shall have deposited with the Escrow
Holder one (1) mutually executed original of the Loan Covenant
Agreement and one (1) mutually executed original of the Parking
Agreement.
(12) the Developer shall have deposited with the Escrow Holder the $2,600,000
equity contribution (as hereinafter set forth in Section 3.05A), in cash or
equivalent acceptable to the Agency in its sole discretion or such greater
amount as required by HUD for the consummation of either the New HUD
Loan or the HUD Loan Assumption.
(13) the Developer shall have deposited with the Escrow Holder cash or an
irrevocable letter of credit issued by Wells Fargo Bank, by Bank of
America or by any other commercial bank, in favor of the Agency and
acceptable to the Agency in its sole discretion, in the amount of $450,000,
or cash equivalent to be held at an account at Far East National Bank or an
account designated by Developer.
Section 2.18. Distribution of Documents to the Developer. After the Closing Date by
Escrow Holder, the Escrow Holder shall deliver to the Developer within three (3) business days
following the Closing Date in connection with the Escrow for the Phase I Property a conformed
copy of the Agency Grant Deed in connection with the transfer of the Phase I Property, as
recorded, and the policy of title insurance issued by the Title Company in favor of the Developer.
Section 2.19. Satisfaction of Conditions. Where satisfaction of any of the foregoing
conditions requires action by the Developer or by the Agency, each party shall use its diligent
P:\CinernaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-: 9-1 O-EDA-tinal.docx
27
best efforts, in good faith, and at its own cost, to satisfy such condition. Where satisfaction of
any of the foregoing conditions requires the approval of a party, such approval shall be in such
party's sole and absolute discretion.
Either party may waive any of the conditions set forth in this Agreement as to items that
are intended to be performed by the other party, but any such waiver as to performance by the
other party shall be effective only if contained in a writing signed by the applicable party and
delivered to the Escrow Holder.
Section 2.20. RESERVED.
Section 2.21. Prorations, Closing Costs, Possession.
(a) Real and personal property taxes for the Phase I Property shall be prorated by the
parties to the applicable Closing Date on the basis of a three hundred sixty-five (365) day year on
the basis that the Agency is responsible for (i) all such taxes (if any) for the fiscal year of the
applicable taxing authority occurring prior to the Current Tax Period (as defined below) and (ii)
that portion of such taxes for the Current Tax Period to 11 :59 p.m. on the Closing Date, whether
or not the same shall be payable prior to the Closing Date. The phrase "Current Tax Period"
refers to the fiscal year of the applicable taxing authority in which the Closing occurs. All tax
prorations shall be based upon the latest available tax statement. If the tax statements for the
fiscal tax year during which Escrow closes do not become available until after the Closing Date,
then the rates and assessed values of the previous year, with known changes, shall be used, and
the parties shall re-prorate said taxes outside of Escrow following the Closing Date when such
tax statements become available. The Agency shall be responsible for and shall payor reimburse
the Developer upon demand for any taxes that were due and payable by the Agency, or were paid
by the Developer upon the Closing Date for taxes assessed and which were due and payable by
the Agency, during the period of Agency ownership of the Phase I Property. The Agency shall
have no responsibility for the payment of any costs at the Closing Date for the Phase I Property,
and shall not be responsible for any real or personal property taxes payable following the Closing
Date applicable to any period of time prior to the Closing Date as a result of any change in the
tax assessment by reason of reassessment, changes in use of the Phase I Property, changes in
ownership, errors by the Assessor or otherwise.
(b) The Developer shall be entitled to exclusive possession of the Phase I Property
immediately upon the Close of the Escrow.
(c) The Agency shall pay one hundred percent (100%) of the cost of the premium for
the Title Policy equal to the cost of a CL T A owner's coverage policy of title insurance on the
Property Phase I Property for coverage in the amount of the Phase I Property Purchase Price
together with all title charges reasonably requested by the Developer to remove disapproved
items shown on the Phase I Property Preliminary Title Report pursuant to Sections 2.13 and 2.14
above but subject to Section 2.05 above. The Developer shall pay one-half (112) of the
customary and reasonable escrow fees which may be charged by the Escrow Holder in
connection with the Close of Escrow.
P:\CinemaStar - Maya Theater ProjectIMaya TheaterIDDA Drafts, Finals, EscrowJelated docslDDAslMaya Amended and Restated DDA 3-29-IO-EDA-finaLdocx
28
The Developer shall be responsible for paying the difference in cost between a CL T A
policy of title insurance and the cost of an AL T A extended owner's policy oftitle insurance that
is to be delivered to the Developer at the Close of Escrow for the Phase I Property in addition to
the cost of all title endorsements, plus one-half (112) of the cost of recording the Agency Grant
Deed and the Notice of Agreement in connection with the Escrow relating to the Phase I
Property, together with one-half (1/2) of the cost of the customary and reasonable escrow fees
charged by the Escrow Holder in connection with the Close of Escrow for the Phase I Property.
Any other Escrow-related transaction expenses or escrow closing costs incurred by the
Escrow Holder in connection with this transaction shall be apportioned and paid for by the
parties to this Agreement in the manner customary in San Bernardino County, California.
No later than three (3) business days prior to the Closing Date in connection with the
Escrow, the Escrow Holder shall prepare for approval by the Developer and the Agency a
closing statement ("Closing Statement") on the Escrow Holder's standard form indicating,
among other things, the Escrow Holder's estimate of all closing costs, and pay-off amounts for
the release and reconveyance of all liens secured by the Phase I Property and prorations made
pursuant to this Agreement. The Developer and the Agency shall assist the Escrow Holder in
determining the amount of all prorations.
Section 2.22. RESERVED.
P:\CinemaStar _ Maya Theater ProjectlMaya TheaterIDDA Drafts, Finals, EscrowJelated docslDDAslMaya Amended and Restated DDA 3-29-IO-EDA-finaLdocx
29
Section 2.23. Breach by the Developer of Article II Liquidated Damages Payable by the
Developer to the Agency. IN THE EVENT THAT THE DEVELOPER COMMITS A
MATERIAL BREACH, WHICH REMAINS UNCURED OR WHICH DEVELOPER HAS
FAILED TO COMMENCE TO CURE AFTER RECEIPT OF NOTICE, OF ITS
OBLIGATIONS UNDER THIS ARTICLE II PRIOR TO THE CLOSE OF ESCROW IN
CONNECTION WITH THE PHASE I PROPERTY OR FAILS TO CLOSE ESCROW IN
CONNECTION WITH THE PHASE I PROPERTY, THE DAMAGES THAT THE AGENCY
WILL INCUR BY REASON THEREOF ARE AND WILL BE IMPRACTICAL AND
EXTREMEL Y DIFFICULT TO ESTABLISH. THE DEVELOPER AND THE AGENCY, IN A
REASONABLE EFFORT TO ASCERTAIN WHAT THE AGENCY'S DAMAGES WOULD
BE IN THE EVENT OF SUCH A DEFAULT BY THE DEVELOPER HAVE AGREED THAT
SUCH DAMAGES SHALL BE IN THE AMOUNT OF ONE HUNDRED THOUSAND
DOLLARS ($100,000) AS LIQUIDATED DAMAGES IN CONNECTION WITH THE
ESCROW RELATING TO THE PHASE I PROPERTY. DAMAGES OF SUCH SUMS
SHALL BE PAID TO THE AGENCY IN THE EVENT OF DEF AUL T BY THE DEVELOPER
AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE AGENCY'S SOLE
AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF AND FOR
SUCH DEF AUL T BY THE DEVELOPER. WITHOUT LIMITING THE FOREGOING
PROVISIONS OF THIS PARAGRAPH, THE AGENCY WAIVES ANY AND ALL RIGHTS
WHICH THAT THE AGENCY WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389
TO SPECIFICALL Y ENFORCE THIS AGREEMENT. THE AGENCY AND THE
DEVELOPER ACKNOWLEDGE AND AGREE THAT EACH OF THEM HAS READ AND
UNDERSTANDS THE PROVISIONS OF THIS SECTION AND EACH AGREES TO BE
BOUND BY S ERMS.
\
\
\
Initials of the Agency
Section 2.24. Representations and Warranties.
(a) Warranties and Representations by the Agency. The Agency hereby makes the
following representations, covenants and warranties and acknowledges that the execution of this
Agreement by the Developer and the acquisition by the Developer of the Phase I Property will be
made in material reliance by the Developer on such covenants, representations and warranties:
(1) Warranties True. Each and every undertaking and obligation of the
Agency under this Agreement shall be performed by the Agency timely
when due; and that all representations and warranties of the Agency under
this Agreement and its exhibits shall be true in all material respects at the
Closing as though they were made at the time of Closing.
(2) Due Organization. The Agency is a community redevelopment agency,
duly formed and operating under the laws of California. The Agency has
the legal power, right nd authority to enter into this Agreement and to
t:Xi;\.:ute the instrum~ . <; and documents referenced herein, and to
consummate the tranSf.. .ms contemplated hereby.
P:\CinemaStar _ Maya Theater Project\Maya 'heater\DDA Drafts, Finals, Escrow _relateo ' DDAs\M.aya Amended and Restated DDA 3-29-1O-EDA-final.docx
30
(3) Requisite Action. The Agency has taken all requisite action and obtained
all requisite consents in connection with entering into this Agreement and
the instruments and documents referenced herein and the consummation
of the transactions contemplated hereby, and no consent of any other party
is required.
(4) Enforceability of Agreement. The persons executing any instruments for
or on behalf of the Agency have been authorized to act on behalf of the
Agency and that this Agreement is valid and enforceable against the
Agency in accordance with its terms and each instrument to be executed
by the Agency pursuant hereto or in connection therewith will, when
executed, be valid and enforceable against the Agency in accordance with
its terms. No approval, consent, order or authorization of, or designation
or declaration of any other person, is required in connection with the valid
execution and delivery of and compliance with this Agreement by the
Agency.
(5) Title. Prior to the Closing for the Phase I Property the Agency will be the
owner of (and the Developer will acquire hereunder) the entire right, title
and interest in the Phase I Property to effectively vest in the Developer
good and marketable fee simple title to the Phase I Property that the
Developer will acquire the Phase I Property free and clear of all liens,
encumbrances, claims, rights, demands, easements, leases or other
possessory interests, agreements, covenants, conditions, and restrictions of
any kind or character (including, without limiting the generality of the
foregoing, liens or claims for taxes, mortgages, conditional sales contracts,
or other title retention agreement, deeds of trust, security agreements and
pledges and mechanics lien) except: (i) the matters described in Section
2.05, and (ii) the exceptions to title approved by the Developer pursuant to
Section 2.13 including the sidewalk encroachment as identified in Section
3.02(a).
(6) No Litigation. There are no pending or, to the best of the Agency's
knowledge, threatened claims, actions, allegations or lawsuits of any kind,
whether for personal injury, property damage, property taxes or otherwise,
that could materially and adversely affect the value or use of the Phase I
Property or prohibit the sale thereof, nor to the best of the Agency's
knowledge, is there any governmental investigation of any type or nature
pending or threatened against or relating to the Phase I Property or the
transactions contemplated hereby.
(7)
Operation and Condition Pending Closing. Between the date of this
Agreement and the Close of Escrow, the Agency will continue to manage,
operate and maintain the Phase I Property in the same manner as existed
prior to the execution of this Agreement.
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
31
(8) Contracts. There are no contracts or agreements to which the Agency is a
party relating to the operation, maintenance, development, improvement
or ownership of the Phase I Property which will survive the Close of
Escrow except as may be set forth in the Agency Grant Deed in
connection with the transfer of the Phase I Property.
(9) Development of Proiect. Although the Agency makes no representation or
warranty that the Phase I Property is suitable for the development or
operation of the Phase I Property Project, the Agency has no present
knowledge of any condition of the Phase I Property which would prevent
its development in accordance with the Scope of Development.
(10) Special Studies Zone. The Phase I Property is not located within a
designated earthquake fault zone pursuant to California Public Resources
Code Section 2621.9 and a designated area that is particularly susceptible
to ground shaking, liquefaction, landslides or other ground failure during
an earthquake pursuant to California Public Resources Code Section 2694.
(11) The Agency's Knowledge. For purposes of this Section 2.24, the terms
"to the best of the Agency's knowledge" or "to the Agency's knowledge"
shall mean the actual knowledge of Interim Executive Director Emil A.
Marzullo.
(12) Financing. The Agency has not consented to any Financing (except for
the approval by the Agency of the assumption by the Developer of the
existing HUD 108 Loan) and, to the best knowledge of the Agency, HUD
has not consented to the HUD Loan Assumption by the Developer nor has
HUD consented to the making of any New HUD Loan to the Developer
and/or to the Agency to enable the Developer to Purchase the Phase I
Property and/or to construct, to develop, to install and to complete the
Phase I Property Project.
If the Agency becomes aware of any act or circumstance which would change or render
incorrect, in whole or in part, any representation or warranty made by the Agency under this
Agreement, whether as of the date given or any time thereafter through the Closing Date of the
Escrow and whether or not such representation or warranty was based upon the Agency's
knowledge and/or belief as of a certain date, the Agency will give immediate written notice of
such changed fact or circumstance to the Developer, but such notice shall not release the Agency
of its liabilities or obligations with respect thereto.
All representations and warranties contained in this Section 2.24(a) are true and correct
on the date hereof and on the Closing Date of the Escrow and the Agency's liability for
misrepresentation or breach of warranty, representation or covenant, wherever contained in this
Agreement, shall survive the execution and delivery ofthis Agreement and the Close of Escrow.
P:\CinemaStar . Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-] O-EDA-final.docx
32
(b) Warranties and Representations by the Developer. The Developer makes the
following representations, covenants and warranties and acknowledges that the execution of this
Agreement by the Agency made in material reliance by the Agency on such covenants,
representations and warranties:
(1) The Developer is a duly organized and validly existing California limited
liability company. The Developer has the legal right, power and authority
to enter into this Agreement and the instruments and documents
referenced herein and to consummate the transactions contemplated
hereby. The persons executing this Agreement and the instruments
referenced herein on behalf of the Developer hereby represent and warrant
that such persons have the power, right and authority to bind the
Developer.
(2) The Developer has taken all requisite action and obtained all requisite
consents in connection with entering into this Agreement and the
instruments and documents referenced herein and the consummation of
the transactions contemplated hereby, and no consent of any other party is
required.
(3) This Agreement is, and all agreements, instruments and documents to be
executed by the Developer pursuant to this Agreement shall be, duly
executed by and are or shall be valid and legally binding upon the
Developer and enforceable in accordance with their respective terms.
(4) Neither the execution of this Agreement nor the consummation of the
transactions contemplated hereby shall result in a breach of or constitute a
default under any other agreement, document, instrument or other
obligation to which the Developer is a party or by which the Developer
may be bound, or under law, statute, ordinance, rule, governmental
regulation or any writ, injunction, order or decree of any court or
governmental body applicable to the Developer or to the Phase I Property.
(5) The Developer shall notify the Agency in writing of any default under any
Financing, under the Financing Loan Documents, under the Construction
Financing (as defined below) and/or under the Permanent Financing (as
defined below). Further, in the event the Developer obtains a New HUD
Loan and/or the HUD Loan Assumption to enable the Developer to
purchase the Phase I Property and/or to construct, to develop, to install and
to complete the Phase I Property Project, the Developer, without
limitation, shall do the following: (i) on or prior to the date of the closing
of the New HUD Loan or the HUD Loan Assumption, the Developer shall
cause an unconditional letter of credit in the amount of $450,000 to be
issued by Wells Fargo Bank, by Bank of America, Far East National Bank
or by such other commercial lender reasonably acceptable to the Agency,
in favor of the Agency, which letter of credit shall have a minimum term
P:\CinemaStar. Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
33
of forty-two (42) months or the Developer shall deliver a cash deposit in
the amount of $450,000 to be held at an account at Far East National Bank
or an account designated by Developer as security for the obligations and
liabilities of the New HUD Loan or the HUD Loan Assumption, (ii) the
Developer shall fully defease, discharge and payoff either the assumed
HUD 108 Loan and/or the New HUD Loan, as applicable, at the end ofthe
third year of such loan or three (3) years from and after any assumption of
the existing HUD 108 Loan, and (iii) the Agency, without limitation, shall
be permitted to draw against the Letter of Credit or the Cash Deposit, in its
entirety, and to apply the proceeds of the Letter of Credit (as defined
below) or the Cash Deposit (as defined below), as appropriate, against the
assumed HUD 108 Loan or the New HUD Loan, as applicable, in the
event the Developer does not fully discharge and payoff the assumed
HUD 108 Loan and/or the New HUD Loan, as applicable, at the end of the
third year of such loan.
(6) The Developer shall not transfer any moneys generated from the cash flow
of the Phase I Property or the Phase I Property Improvements for the
payment of any other unsecured subordinate debt or used and applied for
the payment of any other administrative expenses, overhead or operating
costs of any related party, including but not limited to Maya Cinemas
North America, Inc., whether an individual or other parent or subsidiary
entity related to the Developer until such time as both the HUD 108 Loan
and the New HUD Loan have been paid in full or have been fully defeased
as to the principal amount then outstanding; provided, however, on an
annual basis, the Developer shall be permitted to transfer to Maya
Cinemas North America, Inc., for corporate purposes, twenty-five percent
(25%) of the cash flow generated from the Phase I Property and from the
operation of the Phase I Property Improvements, or Five Hundred
Thousand Dollars ($500,000), whichever is less. The Developer shall use
seventy-five percent (75%) of such cash flow to pay: (i) all principal
and/or interest payments due and payable in connection with the
assumption of the HUD 108 Loan and any early redemptions of such HUD
108 Loan; the New HUD 108 Loan, the NMTC financing encumbering the
Phase I Property and/or the Phase I Property Improvements to the extent
any such prepayments will not conflict with or cause a default by the
Developer pursuant to any such New HUD 108 Loan or the NMTC
financing: the Agency Loan Documents, the Financing, the Financing
Loan Documents, the Construction Financing, the Permanent Financing,
any Security Financing Interest, and any other loan, security or transaction
now or hereafter encumbering the Phase I Property and/or the Phase I
Property Improvements and approved by the Agency and HUD in their
sole and absolute discretion (collectively, the "Phase I Property
Indebtedness") and (ii) to pay the principal on all such Phase I
Indebtedness prior to the maturity date for such Phase I Indebtedness
except as limited above with respect to the New HUD 108 Loan and the
NMTC financing.
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Je!ated docs\DDAs\Maya Amended and Restated DDA 3-29.1O-EDA-finaLdocx
34
(7) Except for the Permitted Lien Exceptions, no subordinate financings shall
be undertaken by the Developer for which any revenues or assets of the
Phase I Project are intended to be pledged for the repayment thereof
without the express written consent of the Agency and HUD nor such any
liens, encumbrances or other security instruments be placed upon the
Phase I Property and the Phase I Property Improvements without the
express written consent of the Agency and HUD; provided, however, that
after such time as the existing HUD 108 Loan and all Agency Loans have
been paid in whole and the principal of and interest thereon are no longer
outstanding, the Developer may record deeds of trust as to the Phase I
Property to secure other loans of the Developer to the extent such deeds of
trust may be permitted pursuant to the terms and provisions of the NMTC
financing and the New HUD 108 Loan.
All representations and warranties contained in this Section 2.24(b) are true and correct
on the date hereof and on the Closing Date of the Escrow and the Developer's liability for
misrepresentation or breach of warranty, representation or covenant, wherever contained in this
Agreement, shall survive the execution and delivery of this Agreement and the Closing of the
Escrow.
Section 2.25. Damage, Destruction and Condemnation. Prior to the Agency's delivery
of possession of the Phase I Property to the Developer at the Close of Escrow, the risk of loss or
damage to the Phase I Property shall remain upon the Agency. If the Phase I Property suffers
damages as a result of any casualty prior to the Close of Escrow which may materially diminish
its value, then the Agency shall give written notice thereof to the Developer promptly after the
occurrence of the casualty. The Developer can elect to either: (i) accept the Phase I Property in
its damaged condition or (ii) the Developer may terminate this Agreement and recover the Phase
I Property Deposit (or portion thereof) as set forth in Section 2.02. The Developer shall confirm
the exercise of its election under subparagraph (i) or (ii) of the preceding sentence within thirty
(30) calendar days after its receipt of notice from the Agency.
In the event that, prior to the Close of Escrow for the Phase I Property any governmental
entity shall commence any actions of eminent domain or similar type proceedings to take any
portion of the Phase I Property, the Agency shall give prompt written notice thereof to the
Developer, and the Developer shall have the option either: (i) to elect not to acquire the Phase I
Property and terminate this Agreement and recover the Phase I Property Deposit (or portion
thereof), as set forth in Section 2.02; or (ii) the Developer may complete the acquisition of the
Phase I Property under this Agreement, in which case the Developer shall be entitled to all the
proceeds of such taking; provided however, that the Agency agrees that it shall not settle or
compromise the proceedings before the Close of Escrow, without the Developer's prior written
consent, which consent will not be unreasonably withheld or delayed. The Developer shall
confirm the exercise of its election under subparagraph (i) or (ii) of the preceding sentence
within thirty (30) calendar days of its receipt of notice from the Agency.
P:\CinemaStar _ Maya Theater Project\1v1aya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
35
Section 2.26. Purchase of the Phase III Property. Subject to the conditions and other
requirements as set forth in Section 1.07 hereof for the exercise by the Developer of the election
to purchase the Phase III Property, in the event the Developer timely exercises such election for
the purchase of the Phase III Property, an escrow shall be established in a similar manner as
herein provided for the Phase I Property and all such provisions of Article II for the purchase of
the Phase I Property and the Close of Escrow for the Phase I Property shall, to the extent
applicable, be utilized and applied for the purchase and Close of Escrow for the Phase III
Property.
ARTICLE III
DEVELOPMENT OF THE PROJECT
Section 3.01. Development of the Proiect by the Developer.
(a) Scope of Development: Schedule of Performance. It is the intent of the parties
that promptly following the Close of Escrow for the Phase I Property, the Developer shall
commence the construction and development of the Phase I Property Project, subject to
applicable City approvals. In connection with the Phase I Property Project, the Developer shall,
without limitation, design, construct, develop, install, assemble, attach and complete the Phase I
Property Improvements located at, on or in connection with the Phase I Property in accordance
with the terms, covenants and conditions of this Agreement (the "Phase I Property
Construction"). The scope of the Phase I Property Construction is generally described in the
Scope of Development. As set forth in Section 2.17(10), all construction funds regardless of the
source of said funds shall be administered by the Fund Control Agent pursuant to the Fund
Control Agreement as required pursuant to said Section.
(b) The City's zoning ordinance and the City's building requirements will be
applicable to the use and development of the Phase I Property. The Developer acknowledges
that any change in the plans for the development of the Phase I Property as set forth in the Scope
of Development shall be subject to the City's zoning ordinance and building requirements. No
action by the Agency or by the City with reference to this Agreement or related documents shall
be deemed to constitute a waiver of any City requirements which are applicable to the Phase I
Property or to the Developer, any successor.in interest of the Developer or any successor in
interest pertaining to the Phase I Property except by modification or variance approved by the
City consistent with this Agreement.
(c) The Scope of Development for the Phase I Property Project is hereby approved by
the Agency upon its execution of this Agreement as to the minimum requirements thereof subject
to the final development and building permit approvals to be obtained by the Developer from the
City prior to the Close of Escrow and approval by the Agency of the Scope of Development prior
to the Close of Escrow. The Phase I Property Project shall be developed and completed by the
Developer in conformance with this Agreement and the approved Scope of Development for the
Phase I Property, all applicable Laws, and any and all other plans, specifications and similar
development documents required by this Agreement, except for such changes as may be
mutually agreed upon in writing by and between the Developer and the Agency.
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docsIDDAs\Maya Amended and Restated DDA 3-29-10-EDA-fina1.docx
36
(d) The approval of the Scope of Development by the Agency hereunder shall not be
binding upon the City Councilor the Planning Commission of the City with respect to any
approvals of the Phase I Property Project required by such other bodies. If any revisions of the
Scope of Development as approved by the Agency shall be required by another government
official, agency, department or bureau having jurisdiction over the development of the Phase I
Property, the Developer and the Agency shall cooperate in efforts to obtain waivers of such
revisions, or to obtain approvals of any such revisions which have been made by the Developer
and have thereafter been approved by the Agency. The Agency shall not unreasonably withhold
approval of such revisions.
(e) Notwithstanding any provision to the contrary in this Agreement, the Developer
agrees to accept and comply fully with any and all conditions of approval applicable to all
permits and other governmental actions imposed by the City and all other governmental agencies
and regulatory agencies affecting the development of the Phase I Property and consistent with
this Agreement.
(f) The Developer shall cause landscaping plans in connection with development of
the Phase I Property to be prepared by a licensed landscape architect. The Developer shall
prepare and submit to the City for its approval landscaping plans for the Phase I Property if
required by the City, which are consistent with City Code requirements. These plans shall be
prepared, submitted and approved within the times respectively established therefor in the
Schedule of Performance and shall be consistent with the Scope of Development.
(g) The Developer shall prepare and submit to the City development plans,
construction drawings and related documents for the development of the Phase I Property
consistent with the Scope of Development. The development plans, construction drawings and
related documents shall be in the form of drawings, plans and specifications. Drawings, plans
and specifications are hereby defined as those which contain sufficient detail necessary to obtain
a building permit from the City.
(h) During the preparation of all drawings and plans in connection with the
development of the Phase I Property, the Developer shall provide to the Agency regular progress
reports to advise the Agency of the status of the preparation by the Developer, and the
submission to and review by the City of construction plans and related documents. The
Developer shall communicate and consult with the Agency as frequently as is reasonably
necessary to ensure that any such plans and related documents submitted by the Developer to the
City are being processed in a timely fashion.
(i) The Agency shall have the right of reasonable architectural review and approval
of building exteriors and design of the structures to be constructed on the Phase I Property or for
the Phase I Property Project which approval shall not be unreasonably withheld or delayed. The
Agency shall also have the right to review all plans, drawings and related documents pertinent to
the development of the Phase I Property in order to ensure that they are consistent with this
Agreement and with the Scope of Development. If the Agency shall determine t1 1t plans,
drawings or related document are not consistent with this Agreement and with the 'ope of
Development, it shall notify the Developer in writing of such determination setting fort I detail
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DD/,s\Maya Amended and Resla' J DDA 3-29-1 Q-EDA-finaLdocx
37
the reason for any disapproval. Said written disapproval notice shall be sent to the Developer by
the Agency within thirty (30) calendar days after the receipt by the Agency from the Developer
of any plans and the failure to deliver said notice shall be deemed a waiver of any disapproval
rights. The Developer, upon receipt of such notice from the Agency, shall promptly revise the
applicable plans, drawings or related documents in a manner that addresses the inconsistency
with the Scope of Development and shall resubmit such revised plans, drawings or related
documents to the Agency no later than thirty (30) calendar days after its receipt of such notice
from the Agency.
(j) The Developer shall timely submit to the City for its review and approval any and
all plans, drawings and related documents pertinent to the development of the Phase I Property as
required by the City. Provided that all such plans, drawings and related documents comply with
City standards for submission of completed filings to the City, any failure by the City to approve
any of such plans or to issue necessary permits for the development of the Phase I Property
within thirty (30) calendar days after receipt thereof shall constitute an enforced delay hereunder,
and the Schedule of Performance shall be extended by that period of time beyond said thirty (30)
calendar day period in which the City approves said plans; provided, however, that in the event
that the City disapproves of any of such plans, the Developer shall within thirty (30) calendar
days after receipt of such written disapproval reasonably revise and resubmit such plans in
accordance with the City's requirements and in such form and substance so as to obtain the
City's approval thereof. No enforced delay shall apply in the event the City is unable to accept
any such plans, drawings and related documents due to the lack of quality or the incompleteness
of such plans, drawings and related documents. No enforced delay shall be applicable to either
party unless the party claiming the enforced delay has provided the other party with written
notice of the alleged enforced delay within ten (10) calendar days after the date upon which the
alleged enforced delay had occurred and specifying in detail the circumstances that gave rise to
such alleged enforced delay and certifying that the party claiming the occurrence of the enforced
delay did not in any manner contribute either directly or indirectly to the reasons causing the
alleged enforced delay.
(k) The Agency shall in good faith use its best efforts to cause the City to approve in
timely fashion any and all plans, drawings and documents submitted by the Developer which are
consistent with the Scope of Development.
(1) The Agency shall approve any modified or revised plans, drawings and related
documents for the Phase I Property Project as long as such plans, drawings and related
documents are generally consistent with the Scope of Development and any other plans, which
have been approved by the Agency. Upon any disapproval of plans, drawings or related
documents, the Agency shall state in writing the reasons for such disapproval. The Developer,
upon receipt of notice of any disapproval, shall promptly revise such disapproved portions of the
plans, drawings or related documents in a manner that addresses the reasons for disapproval and
reasonably meets the requirements of the Agency in order to obtain the Agency's approval
thereof. The Developer shall resubmit such revised plans, drawings and related documents to the
Agency as soon as possible after its receipt of the notice of disapproval and, in any event, no
later than thirty (30) calendar days thereafter. The Agency shall approve or disapprove such
revised plans, drawings and related documents in the same manner and within the same times as
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 Q-EDA-finaLdocx
38
provided in this Section for approval or disapproval of plans, drawings and related documents
initially submitted to the Agency.
(m) If the Developer desires to make any change in the plans, drawings and related
documents after their review by the Agency for consistency with the Scope of Development, the
Developer shall submit the proposed change in writing to the Agency for its review for
consistency with the Scope of Development. The Agency shall notify the Developer in writing
of any determination that the change is not consistent with the Scope of Development, within
thirty (30) calendar days after submission to the Agency setting forth in detail the reason for any
non-conformity. Said written disapproval notice shall be sent to the Developer within thirty (30)
calendar days from the receipt by the Agency from the Developer of any plans and the failure to
deliver said notice shall be deemed a waiver of any disapproval rights. If the Developer desires
to make any change in the plans, drawings and related documents after their approval by the
City, the Developer shall submit the proposed change to the City for approval. The Agency shall
use its best efforts to cause the City to review and approve or disapprove any such change as
provided in Section 3.01(k) hereof.
(n) The Developer, upon receipt of a notice of disapproval by the Agency and/or the
City, may revise such portions of the proposed change in construction drawings, plans and
specifications and related documents as are rejected and shall thereafter resubmit such revisions
to the Agency and/or the City for approval in the manner provided in Section 3.01(1) hereof.
(0) The Developer shall have the right during the course of construction to make
changes in construction of structures and "minor field changes" without seeking the approval of
the Agency; provided, however, that such changes do not affect the type of use to be conducted
within all or any portion of a structure. Said "minor field changes" shall be defined as those
changes from the approved construction drawings, plans and specifications which have no
substantial effect on the improvements and are made in order to expedite the work of
construction in response to field conditions. Nothing contained in this Section shall be deemed
to constitute a waiver of or change in the City's Building Code requirements governing such
"minor field changes" or in any and all approvals by the City otherwise required for such "minor
field changes."
(p) The cost of constructing privately owned components of the Phase I Property
Project, in addition to all off-site public improvements, shall be borne by the Developer which, if
any, are required by the City as a condition of approval for the Phase I Property Project. The
Developer shall comply with all applicable State laws relative to the payment of prevailing
wages and compliance with the federal Davis-Bacon prevailing wages and reporting
requirements as further set forth in Section 3.09 hereof with respect to those components of the
Phase I Property Project for the Phase I Property Project if any HUD moneys remain outstanding
with respect to the Phase I Property or which are public improvements or other public
infrastructure intended to be dedicated to a governmental agency, including the off-site public
improvements, and the Developer shall provide written verification of such compliance to the
Agency in the form of, but not limited to, certified payroll upon written request from the Agency
to the Developer.
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
39
(q) The Developer shall at its expense cause to be prepared, and shall pay any and all
fees pertaining to the review and approval of the development project approvals by the City,
including the cost and preparation of all required construction, planning and other documents
reasonably required by governmental bodies pertinent to the development of the Phase I Property
hereunder including, but not limited to, specifications, drawings, plans, maps, permit
applications, land use applications, zoning applications and design review documents.
(r) The Developer shall pay for any and all costs, including but not limited to the
costs of design, construction, relocation and securing of permits for utility improvements and
connections, which may be required in developing the Phase I Property. The Developer shall
obtain any and all necessary approvals prior to the commencement of applicable portions of said
construction, and the Developer shall take reasonable precautions to ensure the safety and
stability of surrounding properties during said construction.
(s) The Developer shall commence the work of improvements in connection with the
Phase I Property Project within sixty (60) calendar days following the issuance of building
permits for the Phase I Property Project and thereafter shall diligently pursue such construction
to completion. The Developer shall substantially complete the improvements of the Phase I
Property Project no later than November 15, 2010, and the IMAX theater must be completed
and operational by April 1, 2011, unless either or both of said dates are extended by the
Executive Director of the Agency in his sole and absolute discretion; provided, however, that
notwithstanding said stated date the Developer shall have at least one hundred twenty (120)
calendar days from the Close of Escrow of the Phase I Property and receipt of all required
construction and building permits to complete all such activities for the Phase I Property Project,
exclusive of the IMAX theater. The Developer recognizes and agrees to submit the required
applications to the City in preparation for the receipt of all construction and building permits to
timely commence and complete the Phase I Property Project by the time limits required herein.
Any and all performance commitments hereunder shall be extended for any times
attributable to delays, which are not the fault of the performing party and are caused by the other
party, other than periods for review and approval or reasonable disapprovals of plans, drawings
and related documents, specifications or applications for permits as provided in this Agreement.
(t) [ RESERVED]
(u) [RESERVED]
(v) [RESERVED]
(w) During the period of construction of the Phase I Property Project, the Developer
shall submit to the Agency written progress reports when and as reasonably requested by the
Agency but in no event more frequently than every four (4) weeks. The reports shall be in such
form and detail as may reasonably be required by the Agency, and shall include a reasonable
number of construction 1 'lOtographs taken since the last such report submitted by the Developer.
In addition, the Develo, .. will attend Agency meetings when requested to do so by Agency
Staff.
P:\t ,nemaStar - Maya Theater Project\Maya Th~ )DA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
40
(x) Prior to the commencement of any construction, the Developer shall furnish, or
shall cause to be furnished, to the Agency duplicate originals or appropriate certificates of public
indemnity and liability insurance in the amount of Three Million Dollars ($3,000,000.00)
combined single limit, naming the Agency and the City and the elected officials, officers,
employees, attorneys and agents of each of them as additional insureds. Said insurance shall
cover comprehensive general liability including, but not limited to, contractual liability; acts of
subcontractors; premises-operations; explosion, collapse and underground hazards, if applicable;
broad form property damage, and personal injury including libel, slander and false arrest. In
addition, the Developer shall provide to the Agency adequate proof of comprehensive
automobile liability insurance covering owned, non-owned and hired vehicles, combined single
limit in the amount of One Million Dollars ($1,000,000.00) each occurrence; and proof of
workers' compensation insurance. Any and all insurance policies required hereunder shall be
obtained from insurance companies admitted in the State of California and rated at least B+: XII
in the most current Best's Key Rating Insurance Guide. All said insurance policies shall provide
that they may not be canceled unless the Agency and the City receive written notice of
cancellation at least thirty (30) calendar days prior to the effective date of cancellation. Any and
all insurance obtained by the Developer hereunder shall be primary to any and all insurance
which the Agency and/or City may otherwise carry, including self insurance, which for all
purposes of this Agreement shall be separate and apart from the requirements of this Agreement.
Any insurance policies governing the Property as obtained by the Agency shall not be transferred
from the Agency to the Developer. Appropriate insurance means those insurance policies
approved by Agency Counsel consistent with the foregoing. Any and all insurance required
hereunder shall be maintained and kept in force until the Agency has issued a Certificate of
Completion in substantially the form set forth in Exhibit "F" hereof (the "Certificate of
Completion") in connection with the development of the Phase I Property. The Developer
waives subrogation and agrees that the Developer and the Agency are co-insured. The
Developer will use its best efforts to cause each insurance carrier obtained by it to waive any
subrogation claim.
(y) The Developer for itself and its successors and assigns agrees that in the
construction of the Phase I Property Project, the Developer will not discriminate against any
employee or applicant for employment because of sex, marital status, race, color, religion, creed,
national origin, or ancestry. Notwithstanding the foregoing, the Developer will use its best
efforts to offer employment opportunities to local residents and will seek to acquire goods and
services from local vendors.
(z) The Developer shall carry out its construction of the Phase I Property Project in
conformity with all applicable Laws, including, without limitation, all applicable state labor
standards, requirements and prevailing wage laws and in particular shall comply with the
provisions of Section 3.09 hereof.
(aa) The Developer shall, at its own expense, secure or shall cause to be secured, any
and all permits which may be required for such construction, development or work by the City or
any other governmental agency having jurisdiction thereof. The Agency shall cooperate in good
faith with the Developer in the Developer's efforts to obtain from the City or any other
P:\CinemaStar . Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow ~related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-finaLdocx
41
appropriate governmental agency any and all such permits applicable to the development of the
Phase I Property.
(bb) Officers, employees, agents or representatives of the Agency shall have the right
of reasonable access to the Phase I Property without the payment of charges or fees, during
normal construction hours during the period of construction of the Phase I Property Project for
the purpose of verifying compliance by the Developer within the terms of this Agreement. Such
officers, employees, agents or representatives of the Agency shall be those persons who are so
identified by the Interim Executive Director. Any and all officers, employees, agents or
representatives of the Agency who enter the Phase I Property pursuant hereto shall identify
themselves at the job site office upon their entrance on to the Phase I Property, and shall at all
times be accompanied by a representative of the Developer while on the Phase I Property;
provided, however, that the Developer shall make a representative of the Developer available for
this purpose at all times during normal construction hours upon reasonable notice from the
Agency. The Agency shall indemnify and hold the Developer harmless from injury, property
damage or liability arising out of the exercise by the Agency and/or the City of this right of
access, other than injury, property damage or liability relating to the negligence of the Developer
or its officers, agents or employees.
(cc) The Agency shall inspect relevant portions of the construction site prior to issuing
any written statements reflecting adversely on the Developer's compliance with the terms and
conditions of this Agreement pertaining to development of the Phase I Property.
Section 3.02. Obligations of the Agency. The Agency hereby agrees to perform the
following obligations as set forth in subsections (a) through (d) below.
(a) The Agency shall file the initial application with the City for the sidewalk
encroachment currently existing on "E" Street. After such time as the encroachment permit has
been issued by the City and from and after the Close of Escrow, the Developer shall thereafter be
responsible for all subsequent monitoring and payment of fees and compliance with all other
terms and provisions of such encroachment permit.
(b) Prior to the issuance by the City of Final C/O for the Phase I Property Project, the
Agency shall cause the existing driveway entrance on "E" Street to be redesigned and
reconstructed at the sole cost and expense of the Agency. Such redesigned and reconstructed
driveway approach shall comply with all then current City regulations for driveway approaches
from public rights-of-way onto private property. The Developer recognizes that some or all of
such driveway approach work together with additional right turn lanes for southbound "E" Street
may be required by the construction by Omnitrans of the sbX Bus Rapid Transit line that will
traverse "E" Street. To the extent any such roadway or driveway improvements will be
undertaken by Omnitrans, the Agency shall not be required to undertake such driveway
improvements if the Agency obtains a written document illustrating the timely performance and
commitment of Omnitrans to construct such required driveway approach and/or additional
southbound travel lanes as part of the sbX Bus Rapid Transit line construction project in
conformity to any plans and timing requirements of the Developer.
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
42
(c) The Agency shall be responsible for the construction and the payment of all costs
for the Phase IA Project consisting of the public area to the south and adjacent to the Phase I
Property Project. The Agency shall provide proposed site plans to the Developer prior to
submittal to the City for review and comment by the Developer for at least twenty (20) calendar
days prior to the Agency commencing to undertake the actual construction thereof. The parties
agree that the Developer shall be permitted pursuant to a separate license agreement to operate
the existing ticket booth structure until such time as the facility improvements and the relocation
of the ticket booth function has been completed. After such time as the ticket booth function has
been relocated to the structure of the Phase I Property Project, the Developer at its sole cost and
expense shall demolish the existing ticket booth structure and coordinate the replacement of
paving materials with the construction activities of the Agency on the Phase IA Project to avoid
any avoidable dangers to the general public ingress to and egress from the Phase I Property
Project.
(d) The Agency has prepared and processed a lot line adjustment with the City that
alters the legal descriptions of the Phase I Property and the Phase lA Property. The Developer
has reviewed and approved the final adopted lot line adjustment.
(e) The Agency hereby grants to the Developer a right of first refusal to purchase the
Phase II Property. In the event the Agency receives from any third person or entity a bona fide
written offer to purchase all or any part of the Phase II Property at a purchase price and subject to
other terms, covenants and conditions acceptable to the Agency in its sole discretion (the "Offer
to Purchase"), or in the event the Agency proposes to make a written bona fide offer to sell all or
any part of the Phase II Property to any third person or entity for a purchase price and subject to
the terms, covenants and conditions acceptable to the Agency in its sole discretion (the "Offer to
Sell"), then the Agency shall first tender such Offer to Purchase or such Offer to Sell to the
Developer provided the Developer is not in default under the Agreement. Developer shall have
fifteen (15) business days after the date of receipt of such tender to exercise the right of first
refusal to purchase the Phase II Property, or part thereof, that is identified in the Offer to
Purchase or in the Offer to Sell. During said fifteen (15) business day time period, the Developer
shall have the irrevocable right and power to purchase the Phase II Property (or any part thereof)
at the same purchase price and subject to the same terms, covenants and conditions as set forth in
the Offer to Sell or in the Offer to Purchase. Developer shall exercise its right of first refusal by
delivering a written notice of the same to the Agency by hand-delivery, facsimile, email or
overnight mail within the fifteen (15) business day time period. If the Developer refuses, fails
or does not notify the Agency, in writing, of the exercise by the Developer of its right of first
refusal within the time frame set forth above, then the Developer shall have no further right to
purchase the Phase II Property, or any part thereof, and the Agency shall be entitled to enter into
a disposition and development agreement in connection with the purchase and/or development of
all or any part of the Phase II Property, or any other written agreement, with the third person or
entity to sell all or any part of the Phase II Property, provided however that said disposition and
development agreement or other agreement must have the same purchase price as set forth in the
Offer to Purchase or in the Offer to Sell that was delivered by the Agency to the Developer. In
the event the Developer timely exercises the Offer to Purchase or the Offer to Sell, the Developer
and the Agency shall mutually agree and execute a disposition and development agreement no
later than ninety (90) calendar days after the receipt by the Agency of written notice from the
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
43
Developer of its exercise of the Offer to Purchase or the Offer to Sell. Developer and Agency
agree to negotiate the terms of a disposition and development agreement in good faith and
further agree to not frustrate the intent of this provision. In the event, the Agency and the
Developer are unable to agree to and do not execute a disposition and development agreement in
connection with the purchase of all or any part of the Phase II Property within ninety (90)
calendar days after the receipt by the Agency of the election by the Developer to purchase all or
any part of the Phase II Property, the Developer shall have no further right to purchase all or any
part of the Phase II Property. This right of first refusal to purchase all or any part of the Phase II
Property shall automatically terminate and expire, without any written notice from the Agency to
the Developer, on April 1,2012, unless mutually extended in writing by the Agency and by the
Developer.
(f) Nothing contain in Section 3.02(e) or in the Agreement, shall unconditionally
commit the governing board of the Agency or the Mayor and Common Council to approve the
exercise by the Developer of its right of first refusal to purchase all or in part of the Phase II
Property pursuant to Section 3.02(e) or to approve any such disposition and development
agreement, or any other agreement, presented for consideration and approval, in connection with
the timely exercise by the Developer of its right to purchase all or any part of the Phase II
Property pursuant to Section 3.02(e). At such time as the governing board of the Agency has
rejected the exercise by the Developer of its right of first refusal to purchase all or any part of the
Phase II Property and has rejected the form of the disposition and development agreement, or
other agreement, the Developer shall have no further right to purchase all or any part of the
Phase II Property.
Section 3.03. Taxes and Assessments. The Developer shall pay prior to delinquency all
real property taxes and assessments assessed and levied on or against the Phase I Property
subsequent to the Close of Escrow for the Phase I Property. Nothing herein contained shall be
deemed to prohibit the Developer from contesting the validity or amounts of any tax assessment,
encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto.
Section 3.04. Change in Ownership, Management and Control of the Developer
Assignment and Transfer.
(a) As used in this Section 3.04, the term "Transfer" means:
(1) Any total or partial sale, assignment or conveyance, or any trust or power,
or any transfer in any other mode or form, by the Developer or an entity
controlled by it of more than a forty-nine percent (49%) interest (or series
of such sales, assignments and the like which in the aggregate exceed a
disposition of more than a forty-nine percent (49%) interest) with respect
to its interest in this Agreement, the Phase I Property or the Phase I
Property Project, or any part thereof or any interest therein or of the
improvements constructed thereon, or any contract or agreement to do any
of the same; or
P:\CinemaStar - Maya Theater ProjectIMaya TheaterIDDA Drafts, Finals, EscrowJelated docsIDDAsIMaya Amended and Restated DDA 3-29-10-EDA-finaLdocx
44
(2) Any merger, consolidation, sale or lease of all or substantially all of the
assets of the Developer or an entity controlled by it (or series of such
sales, assignments and the like which in the aggregate exceeded a
disposition of more than a forty-nine percent (49%) interest).
(b) This Agreement is entered into solely for the purpose of the development of the
Phase I Property Project on the Phase I Property by the Developer in accordance with the terms
hereof. The Developer recognizes that the qualifications and identity of the Developer are of
particular concern to the Agency, in view of:
(1) the importance of the development of the Phase I Property to the general
welfare of the community; and
(2) the fact that a Transfer is for all practical purposes a transfer or disposition
of the responsibilities of the Developer, as applicable, with respect to the
development of the Phase I Property Project on the Phase I Property.
The Developer further recognizes and acknowledges that it is because of the
qualifications and identity of the Developer that the Agency is entering into this Agreement with
the Developer, and, as a consequence, Transfers are permitted only as provided in this
Agreement.
(c) The limitations on a Transfer as set forth in this Section 3.04 shall apply until
such time as a Certificate of Completion is approved by the Agency and filed for recordation as
provided in Section 3.07. Except as expressly permitted in this Agreement, the Developer
represents and agrees that it has not made nor shall it 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 until such time as a Certificate of Completion has been recorded. After the date of
recordation of a Certificate of Completion, certain other provisions of this Agreement shall
nonetheless be applicable to subsequent conveyances of interest in the Phase I Property as
provided in Article IV of this Agreement. Any Transfer made in contravention of this Section
3.04 shall be voidable at the election of the Agency and shall then be deemed to be a default
under this Agreement.
(d) The following types of a Transfer shall be permitted and approved by the Agency
and are referred to herein as a "Permitted Transfer":
(1) Any Transfer by the Developer creating a security interest in all or part of
the Phase I Property for the acquisition of the Phase I Property or any
financing for the construction and improvement of the all or part of the
Phase I Property Project, including without limitation any security interest
created with respect of any financing for furniture, fixtures and equipment
("FF&E") or other items of personal property (singularly and collectively,
a "Security Financing Interest");
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-IO-EDA-fina1.docx
45
(2) Any Transfer directly resulting from the foreclosure of a Security
Financing Interest created by the Developer in all or part of the Phase I
Property or the granting of a deed in lieu of foreclosure of a Security
Financing Interest;
(3) Any Transfer of stock or equity of the Developer, which does not change
management, or operational control of the Phase I Property or of the Phase
I Property Project;
(4) Any Transfer of any interest in the Developer, irrespective of the
percentage of ownership to any entity in which the Developer owns a
controlling interest.
(e) Provided the particular transaction satisfies the applicable provisions of Section
3.04(d), the Developer is not required to give the Agency advance notice of such a Permitted
Transfer. The Agency may, in its reasonable discretion, approve in writing any other Transfer as
requested by the Developer, provided such proposed transferee can demonstrate successful and
satisfactory experience in the ownership, operation, and management of an operation similar to
the Phase I Property Project. Any such transferee for itself and its successors and assigns, and
for the benefit of the Agency shall expressly assume all of the obligations of the Developer to the
Agency under this Agreement. There shall be submitted to the Agency for review all
instruments and other legal documents proposed to effect any such other Transfer; and the
approval or disapproval of the Agency shall be provided to the Developer, in writing within
thirty (30) calendar days of receipt by the Agency of the request therefore, and the Agency
approval of a transfer shall not be unreasonably withheld or delayed.
(f) Following the issuance of a Certificate of Completion in connection with the
Phase I Property, the Developer shall be released by the Agency pursuant to terms of the final
Certificate of Completion to be issued by the Agency for said properties from any liability under
this Agreement which may arise from a default of a successor in interest occurring after the date
of such a Transfer; provided, however that the covenants of the Developer as set forth in Article
IV of this Agreement shall run with the land for the term as provided in Article IV.
Section 3.05A.
Developer Financing Plan.
The Developer shall have the obligation to obtain financing pursuant to a new HUD
Section 108 loan (the "New HUD Loan"), and to assume the existing HUD 108 Loan, together
with the use of its own equity funds and funds obtained through the NMTC (as defined herein) to
purchase the Phase I Property and to construct, to develop, to install and to complete the Phase I
Property Improvements on the Phase I Property pursuant to this Agreement all as further set
forth in this Section 3.05A.
Agency acknowledges that the Developer will be using the proceeds of New Market Tax
Credits (the "NMTC") as part of the financing for the acquisition and the construction of the
Phase I Property and of the Phase I Property Improvements and such NMTC transaction will
require the encumbrance of the Phase I Property and certain items of personal property by a CDE
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-finaLdocx
46
lender. Agency acknowledges that the aforementioned encumbrance of the Phase I Property by a
CDE lender shall be deemed a Permitted Lien Exception and such encumbrance of the Phase I
Property by the CDE lender shall be subordinate to the existing HUD 108 Loan. Developer
represents to the Agency that to the extent the Developer is required to achieve necessary
leveraging valuation and/or loan-to-value ratios or any other financing requirements, in
connection with the assumption of the existing HUD 108 Loan, or in connection with the NMTC
transaction, the Developer will obtain a "day lender" to accommodate the required structure for
the NMTC financing portion without any obligation of either the City and/or of the Agency to
make such loan.
The Developer will have the obligation to obtain one or more of the financings as set
forth in the first paragraph hereof as required by this Agreement. The Agency shall use best
efforts to cooperate with the Developer to obtain the New HUD Loan, including the NMTC
financing.
The Agency and the City have not approved the New HUD Loan nor has the HUD
underwriting criteria been approved as shall be utilized by the Developer in connection with the
purchase of the Phase I Property and the construction, the development, the installation and the
completion of the Phase I Property Improvements on the Phase I Property. Any such New HUD
Loan will require the approval by the governing body of the Agency and the Mayor and
Common Council on behalf of the City at a later date. The Developer shall have the obligation
to defease the existing HUD 108 Loan at its sole cost and expense with the cooperation of the
Agency to process such documents and payments as required by HUD if so elected by the
Developer at a later date. The financing obligation to be pursued by the Developer is set forth as
follows:
(a) New HUD Loan.
The Developer shall procure and obtain from HUD a New HUD Loan to enable the
Developer to construct, to develop, to install and to complete in part the Phase I Property
Improvements on the Phase I Property and the Developer shall comply with the following terms,
covenants and conditions:
(1) the New HUD Loan shall have a term of seven (7) years and shall be
payable as an interest only loan with a principal amount of approximately $4,760,000 or
such other principal amount as may be approved by HUD together with other credit
requirements as may be imposed by HUD.
(2) the Developer shall refinance the New HUD Loan at the end of the third
year.
(3) The Developer shall deposit with the Agency: (i) an irrevocable letter of
credit in the amount of $450,000 in favor of the Agency issued by the Bank of America,
by Wells Fargo Bank, by Far East National Bank or by any 'omparable commercial bank
reasonably acceptable to the Agency (the "Letter of Credit , which Letter of Credit shall
have a term of forty-tvV'o (42) months from the date of the " N HUD Loan, or (ii) a cash
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow _relah..'{: docs\DDAs\M.aya Amended and Restated 1: ~ ).29-IO-EDA-final.docx
47
deposit to be held at an account at Far East National Bank or an account designated by
Developer in the amount of $450,000 to secure the obligations and liabilities of the
Developer under the New HUD Loan (the "Cash Deposit"). If the Developer does not or
is unable to refinance the New HUD Loan at the end of the third year of the New HUD
Loan, in whole or in part, or if the Developer does not or is unable to refinance the
existing HUD 108 Loan at the end of the third year after the date that the existing HUD
108 Loan has been assumed by the Developer, in whole or in part, if the Developer is in
material default under this Agreement, under the Parking Agreement or under the License
Agreement or if any other material default which remains uncured or which Developer
has not commenced to cure under this Agreement has occurred: (A) the Agency shall
have the right to fully or partially draw against the Letter of Credit and to use such
proceeds to pay and to offset against the outstanding principal, accrued and unpaid
interest, fees, charges and/or penalties then due and payable in connection with the New
HUD Loan (or the HUD Loan Assumption as provided in subsection (b)) or (B) the
Agency shall have the right to fully or partially draw against the Cash Deposit and to use
such proceeds to pay and to offset against the outstanding principal, accrued and unpaid
interest, fees, charges and/or penalties then due and payable in connection with the New
HUD Loan (or the HUD Loan Assumption as provided in subsection (b)).
(4) The Developer shall deposit $2,500,000 to the Escrow Holder which
together with the $100,000 presently on deposit with the Escrow Holder shall thus equal
the equity contribution of the Developer of $2,600,000 with such deposit of the
$2,500,000 amount being made less any funds expended by the Developer pursuant to the
Project budget which the Developer has documented and submitted evidence of said
expenditures to the Agency as reasonably approved by the Agency not later than one (1)
business day prior to the Close of Escrow, or such earlier date as may be required by
HUD or the Escrow Holder, in connection with the purchase of the Phase I Property
representing the equity contribution of the Developer or such greater amount as may be
required by HUD for the consummation of either the New HUD Loan (or the HUD Loan
Assumption as provided in subsection (b)).
(5) If the Developer pays off the New HUD Loan or the HUD Loan
Assumption as provided in subsection (b) on or prior to the end of the third year of the
New HUD Loan and the HUD Loan Assumption, provided no material default remains
uncured or which the Developer has not commenced to cure under this Agreement, the
Agency will consider using NMTC and/or Section 108 HUD financing for the purchase
by the Developer from the Agency of the Phase III Property and the construction, the
development, the installation and the completion of the Phase III Property Improvements
at the Phase III Property; provided, however, that the Developer has timely exercised the
election to purchase the Phase III Property as provided in Section 1.07 hereof.
(6) The Developer and the Executive Director of the Agency shall approve,
execute and enter into the Section 108 Loan Covenant Agreement as further specified in
subsection (b) below.
P:\CinemaStar - Maya Theater ProjectIMaya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAslMaya Amended and Restated DDA 3-29-1 O-EDA-final.docx
48
(7) The provisions of Section 2.16(8) shall have been met by the Developer
upon the election of this financing option as set forth in this subsection (a) and the
Developer shall comply with Section 3.05(A)(b) below.
(b)
Financing.
Assumption of Existing HUD 108 Loan with New HUD Loan and NMTC
(1) The Developer shall have the right to assume the existing HUD 108 Loan
in the current principal balance of $4,240,000 plus the cash payment by the Developer to
the Escrow Holder in the amount of$537,153.50 or the execution of the promissory note
for $537,153.50 and the execution of a subordinate deed of trust encumbering the Phase I
Property and securing the obligations of such promissory note as provided in Section
1.08(a) and in Section 2.16(8) hereof, and cash payment by the Developer to the Escrow
Holder of the February 1,2010, interest payment of$164,197.10 or the execution of the
promissory note for $164,197.10 and the execution of a subordinate deed of trust
encumbering the Phase I Property and securing the obligations of such promissory note
as provided in Section 1.08(b) and in Section 2.16(8), as of the Close of Escrow, and
become obligated for a New HUD Loan in the principal amount of $4,760,000 subject to
final approvals by HUD, preparation of final documentation by HUD and approvals of
the New HUD Loan by the governing board of the Agency and by the Mayor and
Common Council of the City.
(2) Upon the Developer assumption of the existing HUD 108 Loan, the
issuance of a New HUD Loan, and the execution and delivery of the Agency Loan
Documents by the Developer as provided in Section 3.05A(b)(l), a condition precedent
to such series of transactions shall be the execution and delivery by and between the
Developer and the Agency of the "Section 108 Loan Covenant Agreement" that includes,
without limitation, the following items and as such Section 108 Loan Covenant
Agreement is attached hereto as Exhibit "H" which shall be executed by the Developer
and the Executive Director of the Agency upon the loan closing for the first to occur of
either the assumption of the existing HUD 108 Loan and/or the funding a New HUD
Loan:
(i) the right of the Agency and its staff and consultants to conduct
periodic site inspections of the Phase I Property of the public areas at anytime and
of the other areas upon reasonable written or verbal notice to the Developer;
(ii) the right of the Agency to review all records, accounting books and
operating records of the Developer as to the line item payments being made as to
all construction costs in connection with the construction by the Developer of the
Phase I Property Improvements and/or to all operating costs of the Phase I
Property;
(iii) the right of the Agency to review the dollar amounts of all reserve
and replacement figures for the normal repair, replacement and improvements of
the Phase I Property and all components of the theater operations, including,
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\M:aya Amended and Restated DDA 3-29-10-EDA-final.docx
49
concessions, projection and sound equipment, seating, floor coverings and other
fixtures, furnishings and equipment; and
(iv) the Developer shall submit an annual summary on or before
January 15 of each calendar year demonstrating for the prior calendar year the
financial operations of the theater including gross revenues and all line item
expenditures.
(3) The Section 108 Loan Covenant Agreement shall also provide the
Developer the right to use the financing structure together with the NMTC.
(4) The Section 108 Loan Covenant Agreement shall also provide the Agency
with the right to make recommendations to the Developer in the event an independent
consultant retained by the Agency determines in its professional judgment that the
Developer is not operating the theater in a manner that is consistent with industry
standards.
(5) Any default by the Developer pursuant to the Section 108 Loan Covenant
Agreement shall be a default under this Agreement and shall entitle the Agency to seek
remedies as provided herein. The Section 108 Loan Covenant Agreement shall no longer
be outstanding upon payment in whole of both the HUD 108 Loan and the New HUD
Loan.
(6) The Developer shall procure additional conventional financing, or use its
own funds and/or the NMTC funds, to construct, to develop, to install and to complete
the Phase I Property Improvements as provided for in the Budget. The Developer shall
assume the HUD 108 Loan, shall obtain the New HUD Loan, shall obtain the NMTC
financing, shall procure additional conventional financing, and/or use its own funds, to
construct, to develop, to install and to complete the Phase I Property Improvements.
(7) The deed of trust securing the HUD 108 Loan shall not be subordinated
under any circumstances to any of the financings as described above. Except for the
Permitted Lien Exceptions, no additional subordinate financings of any type shall be
obtained by the Developer that pledges any revenues of the Phase I Property or the Phase
I Property Improvements nor shall any lien, encumbrance of other deed of trust be placed
upon the Phase I Property or the Phase I Property Improvements by the Developer either
directly or indirectly.
Section 3.05B.
Security Financing; Rights of Holders.
(a) Notwithstanding any provision of Section 3.04 to the contrary, mortgages, deeds
of 1 1st, or any other form of lien required for any reasonable method of financing the
con. 'lction and improvement of the Phase I Property (singularly and collectively, the
"Co \ ruction Financing") and one or more mortgages, deeds of trust, or other forms of lien
P:\Cim>r i .f - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-finaLdocx
50
required for any reasonable financing that takes out the construction financing (singularly and
collectively, the "Permanent Financing") is permitted. The Developer shall notify the Agency in
writing in advance of any mortgage, deed of trust, or other form of lien for Construction
Financing or for Permanent Financing. The Developer shall not enter into any such conveyance
for Permanent Financing without the prior written approval of the Agency, which approval shall
not be unreasonably withheld, delayed or conditioned.
(b) The Developer shall promptly notify the Agency of any mortgage, deed of trust or
other refinancing, encumbrance or lien that has been created with respect to the Phase I Property
whether by voluntary act of the Developer or otherwise; provided, however, that no notice of
filing of preliminary notices or mechanic's liens need be given by the Developer to the Agency
prior to suit being filed to foreclose such mechanic's lien.
(c) The words "mortgage" and "deed of trust" as used herein shall be deemed to
include all other customary and appropriate modes of financing real estate construction and land
development.
(d) The holder of any mortgage, deed of trust or other security interest authorized by
this Agreement shall in no manner be obligated by the provisions of this Agreement to construct
or complete the improvement of the Phase I Property or to guarantee such construction or
completion.
(e) Whenever the Agency shall deliver any notice or demand to the Developer with
respect to any breach or default by the Developer in the completion of construction of the
improvements, or any breach or default of any other obligations which, if not cured by the
Developer, entitle the Agency to terminate this Agreement or exercise its right to re-enter the
Phase I Property, the Agency shall at the same time deliver to each holder of record of any
mortgage, deed of trust or other security interest authorized by this Agreement a copy of such
notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned)
have the right, at its option, to commence the cure or remedy of any such default and to
diligently and continuously proceed with such cure or remedy, within one hundred twenty (120)
calendar days after the receipt of the notice; and to add the cost thereof to the security interest
debt and the lien of its security interest. If such default shall be a default which can only be
remedied or cured by such holder upon obtaining possession, such holder shall seek to obtain
possession with diligence and continuity through a receiver or otherwise, and shall remedy or
cure such default within one hundred twenty (120) calendar days after obtaining possession;
provided that in the case of a default which cannot with diligence be remedied or cured, or the
remedy or cure of which cannot be commenced, within such one hundred twenty (120) calendar
day period, such holder shall have such additional time as is reasonably necessary to remedy or
cure such default of the Developer. Nothing contained in this Agreement shall be deemed to
permit or authorize such holder to undertake or continue the construction or completion of the
improvements (beyond the extent necessary to conserve or protect the improvements or
construction already made) or to operate the Phase I Property Project without first having
expressly assumed the Developer's obligations by written agreement satisfactory to the Agency.
The holder in that event must submit evidence satisfactory to the Agency that it has the
qualifications and financial responsibility necessary to perform such obligations. Any such
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29~ 1 Q-EDA-final.docx
51
holder that undertakes and completes construction of the improvements on the Phase I Property
in accordance herewith shall be entitled, upon written request made to the Agency, to be issued
the Certificate of Completion by the Agency.
(f) In any case where, one hundred eighty (180) calendar days after default by the
Developer the holder of any mortgage, deed of trust or other security interest creating a lien or
encumbrance upon the Phase I Property, or any portion thereof, has not exercised the option to
construct the applicable portions of the Phase I Property Project or to operate the Phase I
Property following completion of construction, or has exercised the option but has not proceeded
diligently and continuously with construction or operation of the Phase I Property Project, the
Agency may purchase the mortgage, deed of trust or other security interest by payment to the
holder of the amount of the unpaid debt, including principal, accrued and unpaid interest, late
charges, costs, expenses and other amounts payable to the holder by the Developer under the
loan documents between holder and the Developer. If the ownership of the Phase I Property has
vested in the holder, the Agency may at its option (but does not have an obligation to) seek a
conveyance from the holder to the Agency upon payment to the holder of an amount equal to the
sum of the following:
(1) The unpaid mortgage, deed of trust or other security interest debt,
including principal, accrued and unpaid interest, late charges, costs,
expenses and other amounts payable to the holder by the Developer under
the loan documents between the holder and the Developer, at the time title
became vested in the holder (less all appropriate credits, including those
resulting from collection and application of rentals and other income
received during foreclosure proceedings).
(2) All expenses, if any, incurred by the holder with respect to foreclosure.
(3) The net expenses, if any (exclusive of general overhead), incurred by the
holder as a direct result of the subsequent ownership or management of the
Phase I Property such as insurance premiums and real estate taxes.
(4) The cost of any improvements made by such holder.
(5) An amount equivalent to the interest that would have accrued on the
aggregate on such amounts had all such amounts become part of the
mortgage or deed of trust debt and such debt had continued in existence to
the date of payment by the Agency.
(6) After expiration of the aforesaid one hundred eighty (180) calendar day
period, the holder of any mortgage, deed of trust or other security affected
by the option created by this Section, may demand, in writing, that the
Agency act pursuant to the option granted hereby. If the Agency fails to
exercise the right herein granted within sixty (60) calendar days from the
date of such written demand, the Agency shall be conclusively deemed to
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
52
have waived such right of purchase of the mortgage, deed of trust or other
security interest.
(g) In the event of a default or breach by the Developer of a mortgage, deed of trust
or other security interest with respect to the Phase I Property, or any portion thereof, where the
holder has not exercised its option to complete the development or to operate the Phase I
Property Project, the Agency may cure the default but is under no obligation to do so prior to
completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement
from the Developer of all direct and verifiable costs and expenses incurred by the Agency in
curing the default. The Agency shall also be deemed to have a lien of the Agency as may arise
under this Section 3.05B.(g) upon the Phase I Property, or any portion thereof, to the extent of
such costs and disbursements. Any such lien shall be subordinate and subject to mortgages,
deeds of trust or other security instruments executed by the Developer for the purpose of
obtaining the funds to construct and improve the Property or for the purpose of obtaining the
Permanent Financing as authorized herein.
Section 3.06. Right of the Agency to Satisfy Other Liens on the Property after
Conveyance of Title. After the conveyance of title to the Phase I Property by the Agency to the
Developer and after the Developer has had a reasonable time to challenge, cure or satisfy any
unauthorized liens or encumbrances on the Phase I Property the Agency shall after one hundred
twenty (120) calendar days prior written notice to the Developer have the right to satisfy any
such liens or encumbrances; provided, however, that nothing in this Agreement shall require the
Developer to payor make provisions for the payment of any tax, assessment, lien or charge so
long as the Developer in good faith shall contest the validity or amount thereof, and so long as
such delay in payment shall not subject the Phase I Property to forfeiture or sale.
Section 3.07. Certificate of Completion.
(a) Following the written request therefore by the Developer and the completion of
construction of each phase of the Phase I Property Project excluding any normal and minor
building "punch-list" items to be completed by the Developer, the Agency shall furnish the
Developer with a Certificate of Completion for the Phase I Property in the form set forth in
Exhibit "F" which Exhibit is attached hereto and incorporated herein by this reference.
(b) The Agency shall not unreasonably withhold the issuance of a Certificate of
Completion in connection with the Phase I Property Project. A Certificate of Completion shall
be, and shall so state, that it is a conclusive determination of satisfactory completion of
construction of the applicable phase of the Phase I Property Project. After the recordation of the
Certificate of Completion in connection with the Phase I Property Project, any party then owning
or thereafter purchasing, leasing or otherwise acquiring any interest in the Phase I Property
identified in the Certificate of Completion shall not (because of such ownership, purchase, lease
or acquisition) incur any obligation or liability under this Agreement, except that such party shall
be bound by any covenants contained in the grant deed or other instrument of transfer which
grant deed or other instrument of transfer shall include the provisions of Sections 4.01 through
4.04, inclusive, of this Agreement.
P:\CinemaStar. Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
53
(c) Any Certificate of Completion shall be in such form as to permit it to be recorded
in the Recorder's Office of the County where the Phase I Property is located.
(d) If the Agency refuses or fails to furnish a Certificate of Completion in connection
with the Phase I Property Project after written request from the Developer, the Agency shall,
within the later of (i) forty-five (45) calendar days after Agency receipt of the written request or
(ii) within three (3) business days after the second regular meeting as conducted by the Agency
for which an agenda item may by timely submitted for such regular meeting agenda, provide to
the Developer a written statement setting forth the reasons with respect to the Agency's refusal
or failure to furnish a Certificate of Completion. The statement shall also contain the Agency's
opinion ofthe action the Developer must take to obtain a Certificate of Completion in connection
with the Phase I Property Project. If the reason for such refusal is confined to the immediate
unavailability of specific items or materials for construction or landscaping at a price reasonably
acceptable to the Developer or other minor building "punch-list" items, the Agency may issue its
Certificate of Completion in connection with the Phase I Property Project upon the posting of a
bond or irrevocable letter of credit, reasonably approved as to form and substance by the Agency
Counsel and obtained by the Developer in an amount representing a fair value of the work not
yet completed as reasonably determined by the Agency. If the Agency shall have failed to
provide such written statement within the foregoing period, the Developer shall be deemed
conclusively and without further action of the Agency to have satisfied the requirements of this
Agreement with respect to the Phase I Property as if a Certificate of Completion had been issued
therefore. For purposes of this subsection (d), it shall be considered reasonable if the Agency
response as to the failure or refusal to issue a Certificate of Completion is based upon
deficiencies or lack of compliance by the Developer with the building plans and site plans as
approved by the Development Services Department of the City.
(e) A Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements described herein, or any part
thereof. A Certificate of Completion shall not be deemed to constitute a notice of completion as
referred to in Section 3093 of the California Civil Code, nor shall it act to terminate the
continuing covenants or conditions subsequent contained in the Agency Grant Deed.
Section 3.08. Purchase of the Phase III Property. The Developer may acquire the Phase
III Property in the manner and subject to the requirements as set forth in Section 1.07 hereof.
Section 3.09. Federal Davis-Bacon Prevailing Wage Requirements. The Developer recognizes
and agrees that for such period of time as either the existing HUD 108 Loan or the New HUD
Loan are outstanding and not paid in whole, the provisions of the federal Davis-Bacon prevailing
wage laws shall apply as to all construction activities performed upon the properties to be
acquired by the Developer from the Agency pursuant to this Agreement or as otherwise provided
in Section 1.07 and Section 3.08 above, including, the Phase I Property, the Phase II Property
and the Phase III Property. The Developer shall have the obligation to determine whether any
activity to be undertaken by the Developer requires the payment of prevailing wages and
compliance with the other provisions of the Davis-Bacon prevailing wage laws. IheDeveloper
shall not relay upon any recommendations as may be provided by the Agency or any other
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow~related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-fina1.docx
54
person acting on behalf of the Agency as to the manner in which the Davis-Bacon prevailing
wage requirements may apply to each construction and maintenance related activity of the
Developer upon the properties to be acquired pursuant to this Agreement. Neither the City nor
the Agency shall ever be responsible for the payment of any sums under the federal Davis-Bacon
prevailing wage requirements, or other prevailing wage requirements, as the result of the
activities of the Developer and the development and improvement of any of the properties to be
acquired by the Developer pursuant to this Agreement. The Developer shall defend, indemnify
and hold harmless the Agency and the City and all officers, officials, employees, consultants and
attorneys of the Agency and the City with respect to all such prevailing wage compliance issues
arising out of the activities of the Developer in the acquisition of the properties from the Agency
pursuant to this Agreement and in constructing the Phase I Project, subsequent phases or any
other public improvements under this Agreement or other agreements between the Developer
with third parties. The Developer agrees to apprise in writing all third parties seeking to provide
labor and construction work on any of the properties for which the Developer has the right to
perform or cause to be performed such labor and work as to the provisions of this Section 3.09
and the compliance required pursuant to applicable law regarding the payment of prevailing
wages. Any indemnifications received by the Developer from such third parties shall not relieve
the Developer of its indemnification obligations to the Agency and the City pursuant to this
Section 3.09. The provisions of the federal Davis-Bacon prevailing wage laws shall not be
applicable if confirmed in writing by HUD at such time as the Developer elects at its discretion
to defease the existing HUD 108 Loan and provided that HUD considers such defeasance, or the
initiation of the a defeasance procedure, to warrant the determination by HUD of the non-
applicability of any federal Davis-Bacon prevailing wage laws to construction activities related
to the Phase I Property, the Phase II Property and/or the Phase III Property pursuant to this
Section 3.09.
Section 3.10. Compliance with Prevailing Wage Requirements.
(a) The Phase I Property Improvements, together with the other construction and
performance obligations of the Developer pursuant to this Agreement, constitute is a "public
work" as this term is defined in California Labor Code Section 1720. All employees of both the
Developer and any employee of the Developer's contractors and their subcontractors, who
perform construction work pursuant to this Agreement, shall be compensated at prevailing wage
rates and the Developer for itself and its contractors and subcontractors, shall pay prevailing
wage rates under California and Federal law, as applicable, in performance of any such
construction work.
(b) The Developer recognizes and is aware of the existence of State legislation
adopted by the California Legislature in 2001 and generally referred to as SB975 and the present
provisions contained in Labor Code Section 1720, et seq. The Developer shall prepare and
maintain, or cause each of its construction contractors and subcontractors to prepare and
maintain certified payroll records for all work of improvement undertaken by the Developer on
the Phase I Property and other construction work undertaken pursuant to this Agreement. The
Developer shall provide the Agency with copies of all certified payroll records as prepared and
maintained by the Developer and its contractors and subcontractors, for all work of improvement
undertaken by the Developer on the Phase I Property or as otherwise undertaken pursuant to this
P\CinemaStar - Maya Theater ProjectIMaya TheaterIDDA Drafts, Finals, EscrowJelated docslDDAslMaya Amended and Restated DDA 3-29-10-EDA-finaLdocx
55
Agreement within ten (10) calendar days following written request thereof as provided in Labor
Code Section 1776. The Developer shall cause to be included in all of its third-party
construction contracts relating to the construction and improvement of the Phase I Property
suitable provisions which compel its contractors and each subcontractor to pay not less than
prevailing wages to their employees engaged in the work of improvement of the Phase I Property
and to provide the Agency with copies of the certified payroll records maintained by such
contractors and subcontractors upon ten (to) calendar days written notice of request for
inspection by the Agency.
(c) The Agency shall never be responsible for the payment of any sums under Labor
Code Section 1720, et seq., or other prevailing wage requirements as the result of the activities of
the Developer and the development and improvement of the Phase I Property and the
undertaking of other construction activities pursuant to this Agreement. The Developer shall
indemnifY and hold harmless the Agency and all officers, officials, employees, consultants and
attorneys of the Agency with respect to all such prevailing wage compliance issues arising out of
the activities of the Developer in acquiring portions of the Phase I Property from the Agency
pursuant to this Agreement and in constructing the Phase I Property Improvements or other
public improvements or private improvements under this Agreement or other agreements
between the Developer and third parties. The Developer agrees to apprise in writing all third
parties seeking to provide labor and construction work on the Phase I Property and other
construction work undertaken pursuant to this Agreement as to the provisions of this Section
3.10 and the compliance required pursuant to State law regarding the payment of prevailing
wages. Any indemnifications received by the Developer from such third parties shall not relieve
the Developer of its indemnification obligations to the Agency.
ARTICLE IV
USE OF THE SITE
Section 4.01. Uses.
(a) The Developer covenants and agrees for itself, its successors and assigns, that
upon completion of the development of the Phase I Property Project that the portion of the Phase
I Property that is to be improved as a commercial, restaurant, office and/or retail center or as may
otherwise be permitted by the applicable City zoning and City Development Code requirements
and shall be used solely for such purposes. The covenant of this Section 4.01(a) shall run with
the land as set forth in the Agency Grant Deed.
(b) The Developer further covenants and agrees for itself, its successors and assigns,
that the Phase I Property shall be improved and developed in accordance with this Agreement,
the Scope of Development and/or the Schedule of Performance. The Developer covenants to
develop the Phase I Property in conformity with all applicable Laws. The covenants of this
Section 4.01 (b) shall also run with the land until the date on which the Certificate of Completion
in connection with the Phase I Property is recorded or the fifth (5th) anniversary date of
recordation of the Agency Grant Deed in connection with the Phase I Property whichever is the
last of said events to have occurred.
P:\CinemaStar - Maya Theater Project\M.aya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10.EDA-final.docx
56
(c) Neither the Developer, nor its assigns or successors, shall use or otherwise sell,
transfer, convey, assign, lease, leaseback or hypothecate the Phase I Property, or any portion
thereof, to any entity or party, or for any use of the Phase I Property that is partially or wholly
exempt from the payment of real property taxes pertinent to the Phase I Property, or any portion
thereof, or which would cause the exemption of the payment of all or any portion of such real
property taxes. The covenant of this Section 4.01(c) shall run with the land for the term as set
forth in the Agency Grant Deed in connection with the Phase I Property.
Section 4.02. Maintenance of the Property. The Developer covenants and agrees for
itself, its successors and assigns, to maintain the Phase I Property consistent with the
maintenance level of a first class multiple screen movie theater or as shall be reasonably
comparable to other commercial, restaurant, office and/or retail centers in the metropolitan areas
of the City all as shall be determined by the Agency at its sole discretion. The Developer
covenants and agrees that for itself, its successors and assigns, to maintain the Phase I Property
in a good condition free from any accumulation of debris or waste material, subject to normal
construction job-site conditions, and shall maintain in a neat, orderly, healthy and good condition
the landscaping required to be planted in accordance with the Agreement, the Scope of
Development and/or the Schedule of Performance. In the event the Developer, or its successors
or assigns, fails to perform the maintenance as required herein, the Agency shall have the right,
but not the obligation, to enter the Phase I Property and undertake, such maintenance activities.
In such event, the Developer (or such successor as may then own the Phase I Property) shall
reimburse the Agency for all reasonable sums incurred by it for such maintenance activities as
set forth in the Agency Grant Deed for the Phase I Property. The covenant of this Section 4.02
shall run with the land for the term as set forth in the Agency Grant Deed for the Phase I
Property.
Section 4.03. Obligation to Refrain from Discrimination. The Developer covenants and
agrees for itself, its successors, its assigns and every successor in interest to the Phase I Property,
or any part thereof, that there shall be no discrimination against or segregation of any person, or
group of persons, on account of age, disabili.y, sex, marital status, race, color, religion, creed,
national origin or ancestry, including all other protected classes of persons and groups of persons
as may be considered as such by any local, St<:te or Federal law and as shall be required pursuant
to Health & Safety Code Section 33435 and Section 33436, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the Phase I Property, or any part thereof; nor shall the
Developer, 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, sublessee or vendees of the Phase I
Property, or any part thereof. The covenant of this Section 4.03 shall run with the land for the
term as set forth in the Agency Grant Deed for the Phase I Property.
Section 4.04. Form of Nondiscrimination and Nonsegregation Clauses. The Developer
covenants and agrees for itself, its successors. its assigns, and every successor in interest to the
Phase I Property, or any part thereof, that the )eveloper, such successors and such assigns, shall
refrain from restricting the sale, lease, sub, <;e, rental, transfer, use, occupancy, tenure or
enjoyment of the Phase I Property, or any part i ~reof, on the basis of age, disability, sex, marital
P:\CinemaStar - ~'aya Theater Project\Maya 1 ,:?ter\DDA Drafts, Finals, EscrowJelated 0(' ')As\Maya Amended and Restated DDA 3-29-1O-EDA~final.docx
7
status, race, color, religion, creed, ancestry or national origin of any person, including all other
protected classes of persons and groups of persons as may be considered as such by any local,
State or Federal law and as shall be required pursuant to Health & Safety Code Section 33435
and Section 33436. All deeds, leases or contracts pertaining thereto shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
(1) In deeds: "The grantee herein covenants by and for itself, its successors
and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or group
of persons on account of age, disability, race, color, creed, religion, sex,
marital status, national origin, or ancestry, including all other protected
classes of persons and groups of persons as may be considered as such by
any local, State or Federal law and as shall be required pursuant to Health
& Safety Code Section 33435 and Section 33436, in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the premises
herein conveyed, nor shall the grantee 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, sublessee, or
vendees in the premises herein conveyed. The foregoing covenants shall
run with the land."
(2) In leases: "The Lessee herein covenants by and for itself, its successors
and assigns, and all 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 age, disability, race, color, creed, religion,
sex, marital status, national origin, or ancestry, including all other
protected classes of persons and groups of persons as may be considered
as such by any local, State or Federal law and as shall be required pursuant
to Health & Safety Code Section 33435 and Section 33436, in the leasing,
subleasing, transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee 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, sublessee, subtenants, or
vendees in the premises herein leased."
(3) In contracts: "There shall be no discrimination against or segregation of
any person or group of persons on account of age, disability, race, color,
creed, religion, sex, marital status, national origin, or ancestry, including
all other protected classes of persons and groups of persons as may be
considered as such by any local, State or Federal law and as shall be
required pursuant to Health & Safety Code Section 33435 and Section
33436, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed or leased, nor shall the
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
58
transferee 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, sublessees, subtenants, or vendees of the premises herein
transferred." The foregoing provision shall be binding upon and shall
obligate the contracting party or parties and any subcontracting party or
parties, or other transferees under the instrument. The covenant of this
Section 4.04 shall run with the land in perpetuity.
ARTICLE V
DEFAULTS, REMEDIES AND TERMINATION
Section 5.01. Defaults - General.
(a) In the event that a breach or default may occur prior to the Close of Escrow, the
remedies of the parties shall be as set forth in Article II of this Agreement.
(b) From and after the Close of Escrow for the Phase I Property, and subject to the
extensions of time set forth in Section 6.05 hereof, failure or delay by either party to perform any
term or provision of this Agreement shall constitute a default under this Agreement; provided,
however, that if a party otherwise in default commences to cure, correct or remedy such default
within thirty (30) calendar days after receipt of written notice specifying such default and shall
diligently and continuously prosecute such cure, correction or remedy to completion (and where
any time limits for the completion of such cure, correction or remedy are specifically set forth in
this Agreement, then within said time limits), such party shall not be deemed to be in default
hereunder. Further, a default under this Agreement shall occur whenever: (i) the Developer fails
to comply with the terms, covenants and conditions of the Financing, the Financing Loan
Documents, the Construction Financing, the Permanent Financing, under any Security Financing
Interest, of the Agency Loan Documents, or anyone of them, including the Loan Covenant
Agreement, the Parking Agreement or the License Agreement, or (ii) any representation or
warranty made by the Developer or by the Agency under this Agreement or by the Developer
under the Financing, the Financing Loan Documents, the Construction Financing, the Permanent
Financing, under the Security Financing Interest, of the Agency Loan Documents, or anyone of
them, the Loan Covenant Agreement, the Parking Agreement and/or the License Agreement is or
becomes false; provided, however, that if Developer commences to cure, correct or remedy a
curable default within thirty (30) calendar days after receipt of written notice specifying such
default and shall diligently and continuously prosecute such cure, correction or remedy to
completion (and where any time limits for the completion of such cure, correction or remedy are
specifically set forth in any Financing, the Financing Loan Documents, the Construction
Financing, the Permanent Financing, under the Security Financing Interest or under the Agency
Loan Documents, or anyone of them, then within said time limits), Developer shall not be
deemed to be in default hereunder.
P:\CinemaStar - Maya Theater ProjectIMaya TheaterIDDA Drafts, Finals, Escrow Jelated docslDDAslMaya Amended and Restated DDA 3-29-] O-EDA-finaLdocx
59
(c) The injured party shall give written notice of default to the party in default,
specifying the default complained of by the nondefaulting party. Delay in giving such notice
shall not constitute a waiver of any default nor shall it change the time of default.
(d) Any failure or delays by either party in asserting any of its rights and remedies as
to any default shall not operate as a waiver of any default or of any such rights or remedies.
Delays by either party in asserting any of its rights and remedies shall not deprive either party of
its right to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
(e) Any failure or refusal by the Developer to timely pay any principal, interest
and/or any other amounts due and owing in connection with the Financing, the Financing Loan
Documents, the Construction Financing, the Permanent Financing, any Security Financing
Interest or with the Agency Loan Documents, or anyone of them, to repay the New HUD Loan
or the HUD Loan Assumption when due or at the end of the seven-year term of the New HUD
Loan or at the end of seven (7) years from and after the HUD Loan Assumption shall be a default
under this Agreement, without any further notice by the Agency to the Developer and the
Developer will: (i) deliver a deed in lieu of foreclosure to the Agency, (ii) immediately terminate
its occupancy and possession of the Phase I Property and/or of the Phase I Property
Improvements, (iii) transfer to the Agency by bill of sale all equipment and fixtures that are
subject to the lien of the New HUD Loan or the HUD Loan Assumption, and (iv) quit claim to
the Agency all right, title and interest of the Developer in the undeveloped pads located at the
Phase I Property. The Developer recognizes that HUD may require as a condition to obtaining
either the New HUD Loan or the HUD Loan Assumption, that the documents specified in items
(i) and (iii) of the immediately preceding sentence be delivered to the Agency or to an escrow
holder in an executed and undated form in the event such default should occur. After a default
by the Developer, the Developer and the Agency may consider a lease for the Phase I Property
and for the Phase I Property Improvements but neither the Developer nor the Agency will be
obligated to lease, occupy or operate the Phase I Property and/or the Phase I Property
Improvements unless mutually agreed upon in the sole and absolute discretion ofthe Agency and
of the Developer.
(f) Upon a default by the Developer to timely pay the principal, interest and/or all
other amounts due and owing by the Developer under the Financing, under the Financing Loan
Documents, under the Construction Financing, under the Permanent Financing, under any
Security Interest Financing, and/or under the Agency Loan Documents, or anyone of them" and
failure by the Developer to repay the New HUD Loan or the HUD Loan Assumption, as
applicable, this Agreement will be terminated immediately upon notice from the Agency to the
Developer. The Developer shall remain liable to the Agency for all reasonable attorneys' fees,
court costs and all other fees, costs and expenses required to defend any actions of the Developer
or any other challenges to the termination by the Agency of this Agreement.
(g) Failure of the Developer to timely comply with the provisions of Section 1.08(a),
Section 1.08(b), Section 1.08( c), Section 2.03( e), Section 2.16(8), Section 2.17(9), Section
2.17(10), Section 2.17 (11), Section 2.17(12), Section 2.17(13), Section 2.24(b)(5) hereof as to
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
60
the representations and warranties of the Developer in Section 2.24(b)(5), Section 3.05A. and
Section 3.05B.
(h) A default shall be deemed to have occurred in the event the Developer has not
completed the Phase I Property Improvements on or before November 15, 2010, except as
otherwise provided pursuant to Section 3.0l(s), and has not received the Final C/O or other final
City approvals for the completion of such intended construction by said date in the event neither
a New HUD Loan or a HUD Loan Assumption has been undertaken to finance in whole or in
part the costs of the construction for the Phase I Property Improvements. The Agency shall be
entitled at its option to terminate this Agreement and/or pursue all other rights and remedies as
set forth in this Agreement.
(i) A default shall be deemed to have occurred for failure of the Developer to comply
with the provisions of Section 2.03( e), regardless of whether the Phase I Property Improvements
have been completed by said date, in the event a Close of Escrow for the Phase I Property has
not occurred on or before June 30, 2010, unless extended pursuant to Section 2.03(e) to
September 30, 2010, upon notice of default being delivered after said date by the Agency to the
Developer without any right to cure such default by the Developer after June 30, 2010, or
September 30, 2010, as applicable. The Agency shall be entitled at its option to terminate this
Agreement and/or pursue all other rights and remedies as set forth in this Agreement after June
30,2010, or September 30, 2010, as applicable upon the conditions having been satisfied for the
extension of the June 30, 2010, date to the subsequent date of September 30, 2010, as set forth in
Section 2.03(e).
G) A default shall have occurred as the result of the Developer to remit the timely
payments required in accordance with the promissory note or the completion of the timely
performance obligations of the Developer pursuant to Section 2.16(8) hereof.
Section 5.02. Legal Actions.
(a) In addition to any other rights or remedies, either 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. Such legal actions must be instituted in
the Superior Court of the County of San Bernardino, State of California, in any other appropriate
court in that County, or in the Federal District Court in the Central District of California.
(b) The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
(c) In the event that any legal action is commenced by the Developer against the
Agency, service of process on the Agency shall be made by personal service upon the Interim
Executive Director or the Chair of the Agency or in such other manner as may be provided by
law.
(d) In the event that any legal action is commenced by the Agency against the
Developer, service of process on the Developer shall be made by personal service on Moctesuma
P:\CinemaStar _ Maya Theater Project'Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3.29-1 O-EDA-fina1.docx
61
Esparza at the address set forth in Section 1.03(b) (or such other Agent for service of process and
at such address as may be specified in written notice to the Agency), or in such other manner as
may be provided by law, and shall be valid whether made within or without the State of
California.
Section 5.03. Rights and Remedies are Cumulative. Except with respect to any rights
and remedies expressly declared to be exclusive in Article II of this Agreement as relates to a
default or breach occurring before the Close of Escrow for the Phase I Property, the rights and
remedies of the parties as set forth in this Article V following the Close of Escrow for the Phase I
Property are cumulative and the exercise by either 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 the other party.
Section 5.04. Damages; Specific Performance. If either party defaults with regard to
any provision of this Agreement, the nondefaulting party shall serve written notice of such
default upon the defaulting party. If the defaulting party does not diligently commence to cure
such default after service of the notice of default and promptly complete the cure of such default
within a reasonable time, not to exceed ninety (90) calendar days (or such shorter period as may
otherwise be specified in this Agreement for default) after the service of written notice of such a
default, then the non-defaulting party shall be entitled to maintain an action for damages or an
action for specific performance in addition to such other remedies as it may have at law or in
equity; provided, however, that in the event of a breach by the Developer of its obligations under
Article II of this Agreement prior to the Close of Escrow for the Phase I Property, the Agency
shall not be entitled to bring an action against the Developer for specific performance and shall
be entitled only to the liquidated damages set forth in Section 2.23 hereof.
Section 5.05. RESERVED.
Section 5.06. Agency Rights of Termination Following Close of Escrow.
(a) Unless otherwise permitted pursuant to the terms of this Agreement and subject to
written notice of default which shall specify the Developer's default and the action required to
commence cure of same and upon ninety (90) calendar days notice to the Developer of the
Agency's intent to terminate this Agreement pursuant to this Section, the Agency at its option
may terminate this Agreement if the Developer in breach of this Agreement assigns or attempts
to assign this Agreement, or any right therein, or attempts to make any total or partial sale, lease
or leaseback, transfer or conveyance of the Property the Phase I Property and the Developer does
not correct such violation within sixty (60) calendar days from the date of receipt of such notice.
(b) Subject to written notice of default, which shall specify the Developer's default
and the action required to commence cure of same and upon ninety (90) calendar days notice to
the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the
Agency at its option may terminate this Agreement if the Developer: (i) does not within the time
limits set forth in this Agreement or as specifically provided in the Schedule of Performance,
subject to extensions authorized by this Agreement due to force majeure or otherwise, submit
development plans, construction drawings and related documents acceptable to the Planning
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3.29-10-EDA-final.docx
62
Department and Building Division of the City for plan check purposes and in order to obtain
building permits for the Phase I Property Project together with applicable fees therefore, all
prepared to the minimum acceptable standards as required by the Planning Department and
Building Division of the City for commencement of formal review of such documents and as
required by this Agreement, or (ii) does not carry out its other responsibilities under this
Agreement or in accordance with any modification or variance, precise plan, design review and
other environmental or governmental approvals and such default is not cured or the Developer
does not commence and diligently and continuously proceed with such cure within sixty (60)
calendar days after the date of receipt of written demand therefore from the Agency.
(c) Subject to written notice of default which shall specify the Developer's default
and the action required to commence cure of same and upon ninety (90) calendar days notice to
the Developer of the Agency's intent to terminate this Agreement pursuant to this Section, the
Agency at its option may terminate this Agreement if upon satisfaction of all conditions
precedent and concurrent therefore under this Agreement, the Developer does not take title to the
Phase I Property under tender of conveyance by the Agency, and such breach is not cured within
sixty (60) calendar days after the date of receipt by the Developer of written demand therefore
from the Agency.
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. Notices, Demands and Communications Between the Parties.
(a) Any and all notices, demands or communications submitted by any party to
another party pursuant to or as required by this Agreement shall be proper if in writing and
dispatched by messenger for immediate personal delivery, or by registered or certified United
States mail, postage prepaid, return receipt requested, to the principal office of the Agency and
the Developer, as applicable, as designated in Section 1.03(a) and Section 1.03(b) hereof. 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 as provided in this Section. Any such
notice, demand or communication shall be deemed to be received by the addressee, regardless of
whether or when any return receipt is received by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for immediate personal delivery, or two (2)
calendar business days after it is placed in the United States mail as heretofore provided.
(b) In addition to the submission of notices, demands or communications to the
parties as set forth above, copies of all notices shall also be delivered by facsimile as follows
provided copies to other than the Developer shall be informational only and delivery of such
informational or courtesy copies shall not be required to perfect delivery of any notices pursuant
to this Agreement:
P:\CinemaStar - Maya Theater Project\1o..1aya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
63
To the Developer:
Maya San Bernardino Cinemas, LLC
Attn.: Moctesuma Esparza, Chief Executive Officer
1201 West 5th Street, Suite T-210
Los Angeles, California 90017
Telephone: (213) 542-4420
with copy to:
Maya Entertainment Group, Inc.
Attn.: Jose Martinez, Jr., General Counsel
1201 West 5th Street, Suite T-21O
Los Angeles, California 90017
Telephone: (213) 542-4420
To the Agency:
Redevelopment Agency of the City
of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, California 92401
Attn.: Interim Executive Director
Telephone: (909) 663-1044
Fax: (909) 888-9413
with copy to:
Lewis Brisbois Bisgaard & Smith LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Attn.: Timothy J. Sabo
Telephone: (909) 387-1130
Fax: (909) 387-1138
Section 6.02. Conflict of Interest. No member, official or employee of the Agency
having any conflict of interest, direct or indirect, related to this Agreement and the development
of the Phase I Property shall participate in any decision relating to this Agreement. The parties
represent and warrant that they do not have knowledge of any such conflict of interest.
Section 6.03. Warranty Against Payment of Consideration for Agreement. The
Developer warrants that it has not paid or given, and will not payor give, any third party any
money or other consideration for obtaining this Agreement. Third parties, for the purposes of
this Section, shall not include persons to whom fees are paid for professional services if rendered
by attorneys, financial consultants, accountants, engineers, architects and the like when such fees
are considered necessary by the Developer.
Section 6.04. Nonliability of Agency Officials and Employees. No member, official or
employee of the Agency shall be personally liable to the Developer, or any succes'\or in interest,
in the event of any default or breach by the Agency or for any amount which may become due to
the Developer or to its successor, or on any obligations under the terms of this Agreement,
except for gross negligence or willful acts of such member, officer or employee.
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Je!ated docs\DDAs' \faya Amended and Restatec I )DA 3-29-1 O-EDA-finaLdocx
64
Section 6.05. Enforced Delay: Extension of Time of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not be
deemed to be in default, or considered to be a default, where delays or defaults are due to the
force majeure including, without limitation, events of war, insurrection, strikes, lockouts, riots,
floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics,
quarantine restrictions, freight embargoes or lack of transportation, weather-caused delays,
inability to secure necessary labor, materials or tools, delays of any contractors, subcontractor or
supplier, which are not attributable to the fault of the party claiming an extension of time to
prepare or acts or failure to act of any public or governmental agency or entity, or any delay
caused by a third party, including, without limitation, independent vendors and suppliers, whose
performance is not within the control of the Developer. An extension of time for any such force
majeure cause shall be for the period of the enforced delay and shall commence to run from the
date of occurrence of the delay; provided, however, that the party seeking to invoke such force
majeure provision has duly given written notice to the other party within ten (10) calendar days
of the date that the force majeure event has occurred specifying (i) the date from which the
enforced delay shall commence and the actual or the expected final date, as applicable, for which
an enforced delay extension of time of performance is then being sought, and (ii) the detailed
description of the particular circumstances, events, facts or occurrences which have give rise to
the force majeure; provided, however, that the provisions of this Section shall not apply to (i) the
final date for the Close of Escrow of June 30, 2010 or September 30, 2010, as applicable,
pursuant to Sections 2.03(e) and 5.01(i) hereof, (ii) the date of three (3) years from and after the
Close of Escrow and the assumption of the existing HUD 108 Loan or the issuance of the New
HUD Loan, as applicable, as provided in Section 2.24(b)(5) hereof, or (iii) the date that is seven
(7) years from the Close of Escrow and the assumption of the existing HUD 108 Loan or the
issuance of the New HUD Loan, as applicable, as provided in Sections 3.05A.(a)(1) and 5.01(f).
The inability of the Developer to obtain a satisfactory commitment from a construction
lender for the improvement of the Phase I Property or to satisfy any other condition of this
Agreement relating to the redevelopment of the Phase I Property shall not be deemed to be a
force majeure event or otherwise provide grounds for the assertion of the existence of a delay
under this Section 6.05. The parties hereto expressly acknowledge and agree that changes in
either general economic conditions or changes in the economic assumptions of any of them
which may have provided a basis for entering into this Agreement and which occur at any time
after the execution of this Agreement, are not force majeure events and do not provide any party
with grounds for asserting the existence of a delay in the performance of any covenant or
undertaking which may arise under this Agreement. Each party expressly assumes the risk that
changes in general economic conditions or changes in such economic assumptions relating to the
terms and covenants of this Agreement could impose an inconvenience or hardship on the
continued performance of such party under this Agreement, but that such inconvenience or
hardship is not a force majeure event and does not excuse the performance by such party of its
obligations under this Agreement.
Section 6.06. Inspection of Books and Records. The Agency shall have the right at all
reasonable times at the Agency's cost and expense to inspect the books and records of the
Developer pertaining to the Phase I Property and/or the development thereof as necessary for the
Agency, in its reasonable discretion, to enforce its rights under this Agreement including the
P:\CinemaStar. Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
65
right to review the financial records of the Developer. Matters discovered by the Agency shall
not be disclosed to third parties unless required by law or unless otherwise resulting from or
related to the pursuit of any remedies or the assertion of any rights of the Agency hereunder.
The Developer shall also have the right at all reasonable times to inspect the books and records
of the Agency pertaining to the Phase I Property and/or the development thereof as pertinent to
the purposes of this Agreement.
Section 6.07. Approvals.
(a) Approvals required of the Agency or the Developer, or any officers, agents or
employees of either the Agency or the Developer, shall not be unreasonably withheld and
approval or disapproval shall be given within the time set forth in the Schedule of Performance
or, if no time is given, within a reasonable time.
(b) All amendments or modifications to this Agreement whether substantive or those
which are of routine or technical nature, including minor adjustments to the Schedule of
Performance, shall require the official action of the governing body of the Agency to approve
any and all such items.
(c) All approvals required of the Agency shall be interpreted to mean the official
actions of the governing board of the Agency unless the context clearly delegates the specific
approval authority to the ~xecutive Director of the Agency for such item of approval.
Section 6.08. Real Estate Commissions. The Agency shall not be liable for any real
estate commissions, brokerage fees or finder fees which may arise from or related to this
Agreement.
Section 6.09. Indemnification. The Developer agrees to indemnify, defend with legal
counsel reasonably acceptable to the Agency, protect and hold the City and the Agency, and their
directors, officers, members, managers, consultants, contractors, employees, agents and
attorneys, and the successors and assigns of each of them (collectively, the "Agency Parties"
which defined term shall also include the Agency), harmless from and against all actions, causes
of action, claims, demands, liabilities, damages, judgments, costs, expenses and fees (including,
without limitation, reasonable attorneys' fees and court costs), now or hereafter arising from or
related to a: (i) any act or omission of the Developer, and/or of any of the Developer's directors,
officers, members, managers, consultants, contractors, employees and agents, and the successors
and/or assigns of each of them (collectively, the "Developer Parties" which defined term shall
also include the Developer), in performing, or failing to perform, its obligations hereunder, (ii)
any default by the Developer under this Agreement, subject to any applicable cure period, (iii)
any violation by the Developer Parties of any applicable Law, including, without limitation, the
violation of any applicable Environmental Law, relating to, in connection with, without
limitation, the Phase I Property or the maintenance and/or operation of one (1) or more
businesses now or hereafter conducted on or at the Property, or any part thereof, (iv) the
discharge or presence of, or the threat of discharge or presence of, one (1) or more hazardous
substances located at, in, on, above, below, from, and/or about the Phase I Property, or (v)' any
warranty or representation made in this Agreement that becomes false and untrue. The Agency
P:\CinemaStar - Maya Theater projectIMaya TheaterIDDA Drafts, Finals, Escrow_related docslDDAslMaya Amended and Restated DDA 3-29-10-EDA-finaLdocx
66
agrees to indemnify, defend, protect and hold the Developer Parties harmless from and against
all damages, judgments, costs, expenses and fees (including, without limitation, reasonable
attorneys' fees and court costs) (collectively, the "Developer Party Claims"), now or hereafter,
arising from or related to any act or omission of the Agency in performing its obligations
hereunder; provided, however, the Agency shall have no liability under this Section 6.09 should
one (1) or more of the Developer Party Claims result directly or indirectly from the gross
negligence or wrongful conduct of the Developer Parties, or anyone of them. This indemnity
provision shall survive the execution, delivery, performance and early termination of this
Agreement.
Section 6.10. Release of the Developer from Liability. Notwithstanding any provision
herein to the contrary, the Developer shall be relieved of any and all liability for the obligations
of the Developer hereunder with regard to the Phase I Property Project when the Certificate of
Completion for the Phase I Property Project has been issued by the Agency hereunder with
respect thereto, other than any covenants and obligations contained in the grant deed by which
the Phase I Property is conveyed to the Developer.
Section 6.11. Attorneys' Fees. If either party hereto files any action or brings any action
or proceeding against the other arising out of this Agreement, seeks the resolution of disputes
pursuant to Section 5.02 hereof, or is made a party to any action or proceeding brought by the
Escrow Holder, then as between the Developer and the Agency, the prevailing party shall be
entitled to recover as an element of its costs of suit or resolution of disputes pursuant to Section
5.02 hereof, and not as damages, its reasonable attorneys' fees as fixed by the Court or other
forum for resolution in such action or proceeding or in a separate action or proceeding brought to
recover such attorneys' fees. The costs, salary and expenses of the City Attorney and members
of his office in enforcing this Agreement shall be considered as "attorneys' fees" for purposes of
this Section.
Section 6.12. Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
ARTICLE VII
ENTIRE AGREEMENT; COUNTERPARTS; NO MERGER WITH AGENCY GRANT
DEED; WAIVERS AND AMENDMENTS
Section 7.01. Entire Agreement; Counterparts.
(a) This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the parties
with respect to all or any portion of the Phase I Property, of the Phase 1A Property, of the Phase
II Property and/or of the Phase III Property and the development thereof as was contained in the
2008 Agreement. This. greement cancels and supersedes the following agreements: (i) the
Reut:vtlopment Project S iy and Exclusive Right to Negotiate Agreement, dated as of October
20, 2008, by and betw(. the Agency and the Developer and (ii) the Temporary License
P:\Cir<:iTlaStar - Maya Theater Project\Maya Theaq IA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-fina1.docx
67
Agreement, dated as of October 20, 2008, by and between the Agency and the Developer, and
this Agreement supercedes in their entirety the 2008 Agreement and the Amendment No. 1
thereto.
(b) This Agreement shall be executed in four (4) duplicate originals each of which is
deemed to be an original.
Section 7.02. No Merger; Waivers and Amendments.
(a) None of the terms, covenants, agreements or conditions set forth in this
Agreement shall be deemed to be merged with the Agency Grant Deed conveying title to the
Phase I Property and this Agreement shall continue in full force and effect before and after such
conveyance.
(b) All waivers of the provisions of this Agreement and all amendments hereto must
be in writing and signed by the appropriate authorities ofthe Agency and the Developer.
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION
Section 8.01. Execution and Recordation.
(a) Following its execution by the Developer and prompt delivery thereafter to the
Agency, this Agreement shall be subject to the review and approval by the governing board of
the Agency in its sole and absolute discretion within forty-five (45) calendar days after the date
of signature by the Developer. In the event that the Agency has not approved, executed and
delivered this Agreement to the Developer within the foregoing period, then no provision of this
Agreement shall be of any force or effect for any purpose. The date of this Agreement shall be
the date when this Agreement shall have been approved by the Agency.
(b) The Developer and the Agency agree to permit recordation of this Agreement, or
the Notice of Agreement, concurrently upon the Close of Escrow for the Phase I Property in the
Office of the County Recorder for San Bernardino County.
11/
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-fina1.docx
68
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the dates set forth below.
AGENCY
Redevelopment Agency of the
City of San Bernardino,
a public body, corporate and politic
By:
Emil A. Marzullo
Interim Executive Director
Dated:
APProv~
By: ~
Agency C n I
DEVELOPER
Dated: ?j3//;tJ
/
B4.
V. }
Namtl
Title:
[ALL SIGNATURES MUST BE NOTARIZED]
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_reL ted docs\DDAs\Maya A.nt. d and Restated DDA 3.29-1O-EDA-finaL( il.
69
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
&d'~~R#-<J<:~~vC<!~~vC<'vC<'vC<!-<J<:0'::@~m~~mR#~:tSS'&9#X'~~~-<J<:~~
State of California
County of (~\\ ~~\\~':\l\\G
On\\lo.n:l\ '?\, III i C before me,
Date
'"'\1\
~:\I'B
personally appeared
,
~J' , '\
i \D:::..-k~>l "WI ~ l)l~'j
}
r'~
, -.:~l~.{1~~
-- . I NamejJ;) of Signer(s)
J ... ....... ... ... ;~: C;';;TH: .... F
_ @ Commission /I 1694902
i -iii Notary Public - California f
j - Son Bemordlno County i
_ _ _ ~:o:m~Ex~~~1~2~
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(~ whose name(~ is/.ai=Q-subscribed to the
within instrument and acknowledged to me that
he/sAeftfley-executed the same in his/f::lefAfteir authorized
capacity(ies}, and that by his/!:usrAReif. signature{-s) on the
instrument the person(~r or the entity upon behalf of
which the person(.s) acted, executed HIe instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California tRat the foregoing paragraph is
'"
true and correct : I '
:t
,-
Signature
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document, ,lIH..:!\c.Lrl '1
Document Date: ''''11iU\ [-=),LliU
Signer(s) Other Than Named Above: '. :~'\\\\ --~~ .
~1.1c-ki. ,UcF \i)\1J.:.,~Ol '~ 1)''112 \C()\\~ILi
I\~
..'~ ~i \~ I.vlict
j
Capacity(ies) Claimed by Signer(s)
Signer's Name:
D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
D Attorney in Fact
[J Trustee
D Guardian or Conservator
D Other:
Top of fhumb here
Signer Is Representing:
c.<;;.~~'QV'<%':C0'C<;:'C:<A""",'g;;-<,'*;<':1v~'<Xc~~'Cfo=~~'{ ~ ""*~~~~~'Cfo'C<:;.,'QV~
@2007 National Notary Association. 9350 De Soto Ave., P.O. Box 2402. Chatsworth, CA 91313.2402. www.NafionaINotary.org Item #5907 Reorder: Call Toll-Free 1.800.876.6827
Number of Pages:
H('AiycJ lA'
j v
Signer's Name:
D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
.
Top of thumb here
Signer Is Representing:
EXHIBIT "A-I"
LEGAL DESCRIPTION OF PHASE I PROPERTY
The land referred to in the Agreement is situated in the County of San Bernardino, State of
California, and is described as follows:
Parcel 1 of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per
plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County.
P:\CinemaStar _ Maya Theater Project \Maya Theater\DDA Drafts, Finals, Escrow_related DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
EXHIBIT "A-2"
LEGAL DESCRIPTION OF PHASE IA PROPERTY
[To be provided when available]
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-final.docx
EXHIBIT "A-3"
LEGAL DESCRIPTION OF PHASE II PROPERTY
[To be provided when available]
P:\CinemaStar - Maya Theater Project\M:aya Theater\DDA Drafts, Finals, EscrowJeJated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-finaLdocx
EXHIBIT "A-4"
LEGAL DESCRIPTION OF PHASE III PROPERTY
[To be provided when available]
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
EXHIBIT "B"
BUDGET
See Schedule of Performance "EXHIBIT D" for Details
PHASE I
Fixtures, Furnishings and Equipment (FF&E)
Building Repairs and Code Compliance
Upgrades
(To include Lobby extension and I-Max equipment)
Soft Costs
Total Phase I
$2,172,650
$1,264,500
$3,795,000
$ 895,000
$8,127,150
P:\CinemaStar - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA.final.docx
EXHIBIT "C"
SCOPE OF DEVELOPMENT
PHASE I
FF&E IMPROVEMENTS:
. Projection and Sound Equipment
. Carpet - Lobby & Auditoriums
. Seats - 4,158 Chairs
. Lobby Tile and Base
. Wall Coverings
. Auditorium Wall Carpet
. Masking - Screens
. Lighting
. Concession Equipment
. Box Office System
. Poster Cases
. Aisle Lighting
. Acoustical Wall Panels
. Security Cameras
. Flat Screens
. Menu Boards
BUILDING REPAIRS & CODE COMPLIANCE:
. HV AC Repair
. Roof Repair
. Concession Counters Repair
. Restroom Stalls & Upgrades
. Misc. Tile Repairs
. Paint Exterior and Interior
. Step Stairways Correction to Comply with Code ADA Correction
UPGRADES:
. New Concession Stand in Front of the Theater
. Demo Concession & New Game Room
. New Blade Signs
. Lobby Extension
. Retrofit Screen #9 to IMAX Configuration
. 3D Digital Projectors
. Digital Projector
. IMAX Licenses and Proj ector
P:\CinemaStar - Maya Theater Project \Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3~29- I D-EDA-finaJ.docx
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
On or before one hundred twenty (120) calendar days after the Close of Escrow on the Phase I
Property the following shall be completed for at least eight (8) theaters, as applicable:
(i) Relocation of all concession booths,
(ii) Provide access to the Phase I Property in compliance with the Americans With
Disabilities Act (the "ADA"),
(iii) Modifications to the risers in each theater to assure conformity,
(iv) Replacement of all seating,
(v) Installation of digital project and sound systems,
(vi) Completion and opening for business of at least eight (8) theaters.
On or before two hundred ten (210) calendar days after the Close of Escrow on the Phase I
Property the following shall be completed:
(i) Remodeling and re-branding of the theater complex as a whole,
(ii) Completion of the items (ii), (iii), (iv) and (v) above for at least ten (10) of the
remaining theaters,
(iii) opening of at least ten (10) of the remaining theaters,
(iv) Expansion of the entry area into a public access lobby_
On or before three hundred (300) calendar days after the Close of Escrow on the Phase I
Property the following shall be completed:
(i) Removal and relocation of the ticket booth,
(ii) Opening of the I-Max theater for public showings,
(iii) Issuance of a Final Certificate of Occupancy for the entire Phase I Property.
P:\CinemaSI3T - Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_rei, docs\DDAs\Maya Amended and Restated DDA 3-29-] O-EDA-final,docx
EXHIBIT "E"
AGENCY GRANT DEED
P:\CinemaStar - Maya Theater Project\M:aya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-finaLdocx
RECORDING REQUESTED BY AND )
AFTER RECORDING MAIL TO: )
)
Maya San Bernardino Cinemas, LLC )
1201 West 5th Street, Suite T-210 )
Los Angeles, California 90017 )
Attn.: )
)
Exempt from Recording Fee )
pursuant to Gov't Code Section 27383 )
(Space Above for Recorder's Use)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AGENCY GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic of the State of California (the "Grantor") hereby grants to MAYA SAN
BERNARDINO CINEMAS, LLC, a California limited liability company (the "Grantee"), all of
its right, title and interest in and to the real property legally described in Exhibit "A" and by this
reference incorporated herein (the "Property").
1. The Property is conveyed subject to the 2008 Disposition and
Development Agreement, dated as of December 15, 2008, by and between the Grantor, as seller,
and Maya Cinemas North America, Inc., a California corporation ("Maya Cinemas"), as
predecessor buyer, the Amendment No.1, dated as of June 22, 2009, by and between the Grantor
and Maya Cinemas, as predecessor buyer, and the 2008 Amended and Restated Disposition and
Development Agreement, dated as of April 5, 2010 (the "Agreement"), by and between the
Grantor, as seller, and the Grantee, as buyer. The provisions of the Agreement are incorporated
herein by this reference and shall be deemed to be a part hereof as if set forth at length herein.
Capitalized terms shall have the meaning provided for in the Agreement unless otherwise
specifically defined in this Agency Grant Deed.
2. The Grantee covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of persons on account of race, color,
creed, religion, sex, age, marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Grantee 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, sublessees or vendees in or on the Property.
All deeds, leases or contracts made relative to the Property shall contain the
following nondiscrimination clauses: r update followine: at time of delivenr of deed as to then
current compliance with all local. State and Federal laws 1
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
(a) In deeds: "The grantee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of any person or group of persons on account of
age, disability, race, color, creed, religion, sex, age, marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee, or any person claiming under or through the grantee, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, locations, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in or on the land herein conveyed. The foregoing covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all 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 race, color, creed, religion, sex, age, marital status, national
origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of
the land herein leased, nor shall the lessee 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, sublessees or
vendees in the land herein leased."
(c) In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex, age,
marital status, national origin or ancestry in the sale, lease, sublease, 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, sublessees or vendees of the land."
3. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Agency Grant Deed shall defeat or render invalid or in
any way impair the lien or charge of any mortgage, deed of trust or other financing or security
instrument permitted by the Agreement; provided, however, that any successor of Grantee to the
Property shall be bound by such remaining covenants, conditions, restrictions, limitations and
provisions, whether such successor's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
4. The covenants contained in this Agency Grant Deed against
discrimination and segregation shall remain in effect in perpetuity.
5. The Grantor covenants and agrees for itself, its successors and assigns,
that upon completion of the development of the Phase I Property Project that the portion of the
Phase I Property that is to be improved as a commercial, restaurant, office and/or retail center
shall be used solely for such purposes or as may otherwise be permitted by the applicable City
zoning and City Development Code requirements. The covenants of this Section 5 shall also run
P:\CinemaStar - Maya Theater ProjectIMaya TheaterIDDA Drafts, Finals, Escrow_related docslDDAslMaya Amended and Restated DDA 3-29-10-EDA-finaLdocx
with the land until the date on which the Certificate of Completion in connection with the Phase I
Property is recorded or the fifth (5th) anniversary date of recordation of this Agency Grant Deed
in connection with the Phase I Property, whichever occurs last.
6. The Grantor further covenants and agrees for itself, its successors and
assigns, that the Phase I Property shall be improved and developed in accordance with the
Agreement, the Scope of Development and the Schedule of Performance. The Grantor
covenants to develop the Phase I Property in conformity with all applicable Laws. The
covenants of this Section 6 shall also run with the land until the date on which the Certificate of
Completion in connection with the Phase I Property is recorded or the fifth (5th) anniversary date
of recordation of this Agency Grant Deed in connection with the Phase I Property, whichever
occurs last.
7. Neither the Grantor, nor its assigns or successors, shall use or otherwise
sell, transfer, convey, assign, lease, leaseback or hypothecate the Phase I Property, or any portion
thereof, to any entity or party, or for any use of the Phase I Property, or any portion thereof, that
is partially or wholly exempt from the payment of real property taxes pertinent to the Phase I
Property, or any portion thereof, or which would cause the exemption of the payment of all or
any portion of such real property taxes. The covenants of this Section 7 shall also run with the
land until the date on which the Certificate of Completion in connection with the Phase I
Property is recorded or the fifth (5th) anniversary date of recordation of this Agency Grant Deed
in connection with the Phase I Property, whichever occurs last.
8. The Grantor covenants and agrees for itself, its successors and assigns, to
maintain the Phase I Property consistent with the maintenance level of a first class multiple
screen movie theater or as shall be reasonably required by other commercial or retail centers in
the metropolitan areas of the City. The Grantor covenants and agrees that for itself, its
successors and assigns, to maintain the Phase I Property in a good condition free from any
accumulation of debris or waste material, subject to normal construction job-site conditions, and
shall maintain in a neat, orderly, healthy and good condition the landscaping required to be
planted in accordance with this Agreement, the Scope of Development and the Schedule of
Performance. In the event the Grantor, or its successors or assigns, fails to perform the
maintenance as required herein, the Agency shall have the right, but not the obligation, to enter
the Phase I Property and undertake, such maintenance activities. In such event, the Grantor (or
such successor as may then own the Phase I Property shall reimburse the Agency for all
reasonable sums incurred by it for such maintenance activities as set forth in the Agency Grant
Deed for the Phase I Property. The covenants of this Section 8 shall also run with the land until
the date on which the Certificate of Completion in connection with the Phase I Property is
recorded or the fifth (5th) anniversary date of recordation of this Agency Grant Deed in
connection with the Phase I Property, whichever occurs last.
9. The covenants contained in this Agency Grant Deed shall be binding for
the benefit of the Grantor and its successors and assigns, and such covenants shall run in favor of
the Grantor for the entire period during which such covenants shall be in full force and effect,
without regard to whether the Grantor is or remains an owner of any land or interest herein to
which such covenants relate. The Grantor, in the event of any breach of any such covenants, shall
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits
in equity or other proper proceedings, to enforce the curing of such breach as provided in the
Agreement or by law. The covenants contained in this Agency Grant Deed shall be for the
benefit of and shall be enforceable only by the Grantor and its successors.
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-final.docx
IN WITNESS WHEREOF, the Grantor and the Grantee have caused this
instrument to be executed on their behalf by their respective officers thereunto duly authorized
this _ day of ,2010.
Approved as to Form and Legal Content:
By:
Agency Counsel
GRANTOR:
Redevelopment Agency of the City of San
Bernardino,
a public body, corporate and politic
By:
Emil A. Marzullo
Interim Executive Director
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29.1O-EDA-final.docx
ACCEPTANCE OF AGENCY GRANT DEED
THE PROVISIONS OF THIS AGENCY GRANT DEED ARE HEREBY APPROVED
AND ACCEPTED.
GRANTEE:
Maya San Bernardino Cinemas, LLC,
a California limited liability company
By:
Name:
Title:
NOTARY ACKNOWLEDGMENT
County of
)
) SS.
)
State of California
On before me, a Notary Public,
personally appeared , who 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/herltheir
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
Place Notary Seal Above
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-final.docx
NOTARY ACKNOWLEDGMENT
County of
)
) SS.
)
State of California
On before me, a Notary Public,
personally appeared , who 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(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
Place Notary Seal Above
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-finaLdocx
EXHIBIT "A"
Legal Description for Agency Grant Deed
The land referred to in the Agreement is situated in the County of San Bernardino, State of
California, and is described as follows:
Parcel 1 of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per
plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County.
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
EXHIBIT "F"
CERTIFICATE OF COMPLETION
P:\CinernaStar - Maya Theater Project\Maya Theater\DDA Drafts,
s, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3~29-10-EDA-fina1.docx
CERTIFICATE OF COMPLETION
WHEN RECORDED, MAIL TO:
(Space Above Line For Use By Recorder)
CERTIFICATE OF COMPLETION
I, , the Interim Executive Director of the
Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic (the
"Agency") hereby certify as follows:
Section 1. The improvements required to be constructed in accordance with that
certain 2008 Disposition and Development Agreement, dated as of December 15, 2008, by and
between the Agency and Maya Cinemas North America, Inc., a California corporation ("Maya
Cinemas"), the Amendment No.1, dated as of June 22, 2009, by and between the Agency and
Maya, as amended by the 2008 Amended and Restated Disposition and Development
Agreement, dated as of April 5, ,20IO(collectively, the "Agreement"), by and between
the Agency and Maya San Bernardino Cinemas, LLC, a California limited liability company (the
"Developer"), on Assessor's Parcel Number and Assessor's Parcel Number
(the "Property") more fully described in Exhibit "A" attached hereto and
incorporated herein by this reference has been completed in accordance with the provisions of
said Agreement. A Notice of Agreement has been recorded with the County Recorder's Office
for the County of San Bernardino, State of California, on , as Instrument Number
Section 2. This Certificate of Completion shall constitute a conclusive
determination of satisfaction of the agreements and covenants contained in the Agreement with
respect to the obligations of the Developer, and its successors and assigns to construct and
develop the Project (as defined in the Agreement), of the following items:
excluding any normal and customary tenant improvements and minor
building "punch-list" items, and including any and all buildings and any and all parking,
landscaping and related improvements necessary to support or which meet the requirements
applicable to the Project and its use and occupancy of the Property, whether or not said
improvements are on the Property or on other property subject to the Agreement, all as described
in the Agreement, and to otherwise comply with the Developer's obligations under the
Agreement with respect to the Property and the dates for the beginning and completion of
construction of improvements thereon under the Agreement. The Certificate of Completion shall
not affect the rights of the Agency to enforce any covenant in the Agency Grant Deed pursuant
P:\CinemaStar . Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow Jelated docs\DDAs\Maya Amended and Restated DDA 3-29-1 Q-EDA-finaLdocx
to which the Property was conveyed under the Agreement. Said Agreement is an official record
of the Agency and a copy of said Agreement may be inspected in the office of the Secretary of
the Redevelopment Agency of the City of San Bernardino located at 201 North "E" Street, Suite
301, San Bernardino, California, during regular business hours.
Section 3. The Property to which this Certificate of Completion pertains is more
fully described in Exhibit "A" attached hereto.
DA TED AND ISSUED this
day of
,201 .
Redevelopment Agency of the
City of San Bernardino,
a public body, corporate and politic
By:
Emil A. Marzullo, Interim Executive Director
NOTARY ACKNOWLEDGMENT
County of
)
) SS.
)
State of California
On before me, a Notary Public,
personally appeared , who 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 hislher/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature of Notary Public
P:\CinemaStar _ Maya Theater Project\M:aya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-fina1.docx
EXHIBIT "A"
Legal Description of the Property for Certificate of Completion
The land referred to in the Agreement is situated in the County of San Bernardino, State of
California, and is described as follows:
Parcel I of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per
plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County.
P;\CinemaStar. Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
EXHIBIT "G"
NOTICE OF AGREEMENT
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\M:aya Amended and Restated DDA 3-29-1O-EDA-final.docx
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Exempt from Recording Fee per
Government Code Section 27383
(Space above for Recorder's Use)
NOTICE OF AGREEMENT
The undersigned, the REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO, a public body, corporate and politic (the "Agency"), and MA Y A SAN
BERNARDINO CINEMAS, LLC, a California limited liability company (the "Developer"), are
parties to that certain AMENDED AND REST A TED 2008 DISPOSITION AND
DEVELOPMENT AGREEMENT (the "Agreement"), dated as of April 5, 2010, for reference
purposes only, by and between the Agency and the Developer. Said Agreement contains
obligations, covenants and restrictions affecting certain real property (the "Property") which is
legally described on Exhibit "A" attached hereto and incorporated herein by this reference. The
Agreement is a public record of the Agency and is available for inspection and copying at the
Agency's offices located at 201 North "E" Street, Suite 301, San Bernardino, California.
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Date:
By:
Emil A. Marzullo
Interim Executive Director
Approved as to Form and Legal Content:
By:
Agency Counsel
P:\CinemaStar _ Maya Theater Project\M:aya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-1 O-EDA-fina1.docx
NOTARY ACKNOWLEDGMENT
County of
)
) SS.
)
State of California
On before me, a Notary Public, .
personally appeared , who 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(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
Place Notary Seal Above
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3~29-1 Q-EDA-finaLdocx
EXHIBIT "A"
Legal Description of Property
The land referred to in the Agreement is situated in the County of San Bernardino, State of
California, and is described as follows:
Parcels 1 of Parcel Map No. 15038, in the County of San Bernardino, State of California, as per
plat recorded in book 186 of parcel maps, Page(s) 14 and 15, records of said County.
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final,docx
EXHIBIT "H"
Loan Covenant Agreement
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, Escrow_related docs\DDAs\Maya Amended and Restated DDA 3-29-10-EDA-final.docx
EXHIBIT "I"
Parking Agreement
P:\CinemaStar _ Maya Theater Project\Maya Theater\DDA Drafts, Finals, EscrowJelated docs\DDAs\Maya Amended and Restated DDA 3-29-1O-EDA-final,docx
RECORDING REQUESTED BY:
Redevelopment Agency of the
City of San Bernardino
WHEN RECORDED MAIL TO:
Redevelopment Agency of the
City of San Bernardino
20 I North "E" Street Suite 30 I
San Bernardino, California 90017
Attention:
(Space Abo\C Line for Use By
Recorder)
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
PARKING AGREEMENT
(Maya San Bernal"dino Cinemas - Maya 20-Plex Theater PI'oject)
THIS PARKING AGREEMENT ("AgreemenC) dated as of April 5,2010, which shall
be effective on the date of the recordation of this Agreement in the Official Records of the
County Recorder's Office for the County of San Bernardino, State of Calitornia. regardless of
the actual date of the execution, by and between the REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO. a public body. corporate and politic (the "Agency") and
MAYA SAN BERNARDINO CINEMAS, LLC a Calitornia limited liability company (the
"Developer"), with respect to the tollowing facts:
Recitals
A. The parties hereto have previously entered into that certain Amended and
Restated 2008 Disposition and Development Agreement dated as of April 5, 20 I 0 (the "DDA")
tor the purpose of causing the development and rehabilitation of that celtain multi-plex cinema
project (the "ProjecC), in the downtown area of the City of San Bernardino (the "City"), State of
Calitornia, on the real property more specifically identitied in Exhibit "A" attached hereto and
incorporated herein by this reference, (the "Property").
B. Pursuant to this Agreement the Agency shall have the obligation to make
available, on a non-exclusive basis. approximately one thousand seven hundred (1.700) peak
hour parking spaces,nd approximately one thousand one hundred (I, I 00) non-peak hour
pilrking spaces. also ( a non-exclusive basis (the peak and the non-peak spaces to be made
available shall be refe I to herein as the "Parking Spaces"), which may include public street
parking, tor the use the Developer. the tenants, the subtenants, the concessionaires, the
patrons, the customer~ld the licensees of the Project and their respective employees, agents,
~S~ 1-.\ I ~il-III()-'.I
patrons and customers (singulmly a "Permittee" and collectively, the "Permittees"). The Pmking
Spaces me to be provided without charge to the Permittees, or me to be subject to validation, as
applicable, and are to be within (l mdius of 1,600 feet from the center point of the Property. As
used herein, "peak hours" shall mean weekday evenings after 6:00 p.m. and weekends, and (lfter
10:00 (l.m. on all recognized holidays.
C. As of the d(lte of this Agreement the Agency has verified that the Downtown
Improvement Site PI(ln (the "Improvement Plan"), dated November 23, 1998, prepmed by
Ludwig Engineering, satisties the requirements of the Conditional Use Permit No. 97-0 I, and
related conditions of approval for the Project (collectively, the "City Conditions") and that the
City has approved the Improvement Plan.
D. This Agreement without limitation, is for the purpose of identifying the Pmking
Spaces which me available to the Developer and the gmnting by the Agency to the Developer of
non-exclusive easements with respect to such Parking Spaces, as more pmticularly described
below.
NOW, THEREFORE, in consider(ltion of the recitals set forth above in this Agreement
and for other good and v(lILwble considemtion the receipt and sufficiency of which me hereby
acknowledged, the Agency and the Developer agree to the following:
Terms
Section I. Recit(lls Incorporated. The recitals set forth (lbove me true and correct and
me incorporated herein by reference.
Section 2. Cont1ict with Amended (lnd Rest(lted 2008 Disposition and DeveloDlllent
Agreement. In the event of any contlict or (lmbiguity with regmd to the provisions of the DDA
and this Agreement the provisions of the DDA will govern. Any defined term cont(lined herein
which is not detined herein shall have the meaning indic(lted in the DDA.
Section 3.
Identitic(ltion of Pmkin}..';.
((l) As of the d(lte of this Agreement the Agency h(ls surveyed the parking (lvailable
within 1600 feet of the Property, (lnd the Agency has identitied t\VO thousand one hundred
seventy-five (2'\ 75) pm'king spaces which me aV(lilable for the non-exclusive use of the
Permittees. These two thousand one hundred seventy-tive (2,175) pmking spaces consist of: (i)
nine hundred tOlty-seven (947) public curbside parking spaces within the public street rights-of.-
way, and (ii) one thousand two hundred twenty-eight (1,228) off-street pmking spaces. As of the
date of this Agreement the lands on which the one thousand two hundred twenty eight (1,228)
otf-street pmking spaces referenced in the preceding sentence are situated on the pmking lots
more specitic(llly identitied in Exhibit "8" hereto. which Exhibit "8" is (ltt(lched hereto and
incorporated herein by reference (singulmly, (l "Pm-king Lot" (lnd collectively, the "Parking
Lots"). The public curbside pmking spaces together with the pmking spaces identitied in Exhibit
"8:' to the extent of one thous(lnd seven hundred ( 1,7(0) of said spaces during peak hours and
one thousand one hundred (1,100) of s(lid sp(lces (It non-pe(lk hours, (lre the Parking Spaces as
defined herein.
-ls2 I-S I ~Il-III')_' I
2
(b) Subject to the terms and conditions of this Agreement, the Agency hereby grants
to the Developer for the benefit and use of the Property a non-exclusive right and easement for
pedestrian and motor vehicle ingress and egress by the Permittees onto the lands described in
Exhibit "S" for the purpose of parking motor vehicles thereon. The Agency may from time to
time hereafter grant to third parties non-exclusive rights to enter and use the Parking Spaces on
any of the Parking Lots for the purpose of parking motor vehicles thereon, and no such grant by
the Agency to a third party of entry or use of such Parking Spaces shall be deemed individually
or severally to create a surcharge, or an undue burden or an uncontemplated use of the Parking
Spaces situated on the Parking Lots.
(c) The Agency, at its sole cost, shall remove, re-designate, or revise any sign age,
markings or other posted time restrictions with respect to the otT-street Parking Spaces identitied
in Exhibit "S" hereto and post signage identifying each of the Parking Lots as available for use
by the Permittees in accordance with this Agreement, or in lieu thereot: the Agency shall
provide, to the extent practicaL alternative Parking Spaces which satisfy the criteria described in
Recital S of this Agreement and post signage identifying such alternative Parking Spaces as
available for use by the Permittees in accordance with this Agreement, such that during the term
of this Agreement there shall be not less than the minimum number of required peak hour
Parking Spaces and non-peak hour Parking Spaces available for use by the Permittees which are
not reserved for the exclusive use of other users and which are not limited in duration in time
such that the use thereof is not feasible for the use of the Permittees.
(d) No right to use the Parking Spaces on any of the Parking Lots may be created or
transferred by the Developer or by a Permittee in favor of a third party except: (i) in connection
with the creation by the Developer of a possessory interest in the Project. or (ii) in connection
with a security assignment of the interest of the Developer in this Agreement as collateral for a
tinancing secured by the Project. or (iii) in connection with the permitted transfer of the interest
of the Developer in the Project as set forth in the DDA.
(e) Nothing in this Agreement shall be deemed to create either an offer of dedication
or a dedication to public use for off-street public parking purposes of any Parking Spaces on the
Parking Lots. Subject to the satisfaction of the applicable provisions of this Agreement. the
Agency retains the sole and absolute discretion to close or withdraw from use any off-street
Parking Spaces on the Parking Lots; provided, however in no event shall the Agency provide the
Developer with less than the required minimum number of Parking Spaces for the Permittees'
use.
(t) Agency agrees that it shall not amend or modify the Improvement Plan 111 any
manner which would cause the Property to be in violation of the City Conditions.
Section 4. Free Parkin~ to Permittees. The Agency agrees that the use of the Parking
Spaces shall be without fees or charges to the Permittees, either because no charge is assessed
therefore. or. if applicable in the future, because the Agency shall provide validation of parking
tickets to be issued for off-street parking at no charge to the Developer or to the Permittees. It is
acknowledged by the parties hereto that none of the parking identitied in Exhibit "8," as of the
date of this Agreement, is subject to metering or other parking charge.
4~~ I-~ I ~().III()~.I
"
.)
Section 5. Imposition of Parkin},!: Char},!:e. Notwithstanding Section 4 to the contrary,
the Developer agrees that it will impose on all tenants of the Project an annual charge tor
parking-related expenses (the "Parking Charge"). The charge will be imposed on each tenant
who occupies any portion of the Project and will be equivalent to Five Dollars and Seventy-Five
Cents ($5.75) per square toot of leasable area of completed improvements occupied by the
tenant. The amount of the Parking Charge will increase annually in an amount equal to increases
in the Consumer Price Index. commencing one ( I ) year after the date of the issuance of the first
Certiticate of Occupancy for the Project. The Developer shall pay all Parking Charges collected
by it to the Agency within ten ( 10) days after the receipt thereof. The Agency shall retain the
Parking Charges so received as and tor its time and expenses in making available the parking as
provided in this Agreement. In the event that the Developer fails to: (i) impose on any tenant
the obligation to pay the Parking Charge as required hereby. (ii) collect the amounts so imposed,
or (iii) is unable to collect said amounts. the Developer shall pay to the Agency a sum equal to
the amount which should have been charged to and collected from said tenant under the
provisions of this Section.
Section 6. Recordation of A},!:reement. Immediately upon transfer of title of the
Property by the Agency to the Developer. this Agreement shall be recorded with the County
Recorder's Otlice tor the County of San Bernardino, State of Calitornia (the "County
Recorder"), which shall serve to bind the Agency and the Developer. and all of their respective
successors, assigns and tenants, and the Property, to the provisions hereof tor the term of this
Agreement.
Section 7.
Duration of Agency Obligation.
(a) The Agency's obligations with respect to parking as set torth in this Agreement
shall continue tor a period of sixty-tive (65) years (the "Covenant Duration') from the date after
the execution hereof. unless extended in an agreement executed by both of the parties hereto. or
their successors or assigns, which extension agreement must be: (i) approved by the governing
body of the Agency, and (ii) must be recorded with the County Recorder.
(b) The Developer has been advised by the Agency that the Redevelopment Plan, and
the Agency's ability to perform the obligations under this Agreement. has a termination date of
August 6. 2013. The parties acknowledge that the Agency's obligation to provide the Parking
Spaces as set torth in this Agreement is essential for the development. for the rehabilitation and
for the continued viability of the Project. and that the Developer would not have acquired the
Property without the Agency's covenant and agreement to provide the Parking Spaces for the
Covenant Duration. Accordingly. the Agency agrees that not later thal1 August 6, 2013, it will
identify the reasonable parking needs of the Project for the period of time from the termination of
the Redevelopment Plan to the conclusion of the Covenant Duration. Such parking needs shall
in no event be less than the parking requirements under the City codes then applicable to the
Project considering the then current uses and leasonably contemplated uses of the Property for
the remaining period of the Covenant Duration; provided. however. that nothing contained in this
Agreement may require the Agency to provide mor" than one thousand seven hundred (1.700)
peak hour Parking Spaces or more than one that ;lI1d one hundred (1.100) non-peak hour
Parking Spaces. The Agency agrees to take such ( ,tion as may be required. excluding the
construction of a parking structure, in order to enSl I that the Agency's obligations under this
-ls~ 1-, I :i()_I()<)~.1
4
Agreement will be satisfied from and after the termination of the Redevelopment Plan until the
conclusion of the Covenant Duration (the "Alternative Parking Arrangements"). Nothing herein
shall be deemed to require the establishment of Alternative Parking Arrangements prior to the
termination of the Redevelopment Plan if the Parking Spaces otherwise then meet the
requirements of this Agreement so long as the Agency has made arrangements in compliance
with this Section 7 which assure that the Alternative Parking Arrangements will be implemented
as necessary. The Alternative Parking Arrangements shall meet the criteria described in Recital
B of this Agreement.
(c) On or before August 6. 2013, the Agency shall provide the Developer with
reasonable evidence of a binding agreement or other commitment establishing the Alternative
Parking Arrangements under terms and conditions consistent with this Section 7, and otherwise
reasonably satisfactory to the Developer. The Agency's failure to perform its obligations under
this Section 7. including. but not limited to. timely providing to the Developer reasonable
evidence of the Alternative Parking Arrangements. shall be deemed a material breach of this
Agreement by the Agency. subject to the notice of default and opportunity to cure provisions of
Section 13 hereof. If the Redevelopment Plan is extended so as to terminate at a later date than
August 6. 2013. the dates for the Agency's performance of its obligations under this Section 7
shall be correspondingly adjusted such that the Alternative Parking Arrangements are provided
for and established prior to such later date of expiration of the Redevelopment Plan.
Section 8.
Alternative Parkin!.!,.
(a) The Agency shall have the right at any time during the term of this Agreement to
provide. to the extent practicaL alternative parking for all or any of the Parking Spaces situated
on any of the Parking Lots. provided that such alternative parking is within the 1.600 foot radius
referenced in Section 3 above. The use by the Developer and by the Permittees of any such
alternative parking as may hereafter be provided by the Agency in accordance with Section 8(b)
shall be subject to the terms and conditions of this Agreement. Nothing containcd in this
Agreement shall be deemed to require the Agency to provide in excess of one thousand seven
hundred (1,700) Parking Spaces at peak hours or one thousand one hundred (1.\ 00) Parking
Spaces at non-peak hours.
(b) The Agency has the right to develop or close any Parking Lot and. to the extent
practicaL provide alternative parking.
(d) Subject to compliance by the Agency with the applicable prOVISIons of this
Agreement the Developer shall execute such instructions in recordable form as the Agency may
reasonably request to acknowledge the release of the effect of this Agreement upon any lands of
the Parking Lots. or upon such other lands of the Agency which may hereafter be designated by
the Agency as alternative parking in accordance with this Agreement.
Section 9. Reduction of Parkin!.!, Obli!.!,ation. The number of parking spaces to be
provided by the Agency under this Agreement may. at the Agency's option. be reasonably
reduced if the use of the Project is changed and as a result less parking is required under
applicable City codes. Any reduction shall be proportional to the cause of the reduction. If after
~~2 I -.~ I ~()-I ()<1:1. I
5
such reduction the use of the Project is changed again and as a result greater parking is required
under applicable City codes. the number of parking spaces required to be provided by the
Agency shall be increased to the level required but the Agency's obligation may never exceed
the total of one thousand seven hundred ( 1,700) peak hour spaces and one thousand one hundred
(I, I 00) non-peak hour spaces. Adjustments of the necessary parking spaces consistent with the
provisions of this Section may be made from time to time as changes in the use of the Project
occur.
Section 10. Temporary Interruption of ParkinQ,. During any temporary interruption in
availability of any of the Parking Spaces, the Agency will use its best efforts to provide
alternative parking within the 1600 foot radius on land owned or controlled by it or as close to
the Property as possible if sufficient Parking Spaces are not available within said radius. The
Agency shall make reasonable efforts to see that all maintenance and repair work is undertaken
in a manner which does not unreasonably interfere with the Developer's use of the Property.
Section II. Maintenance of Parking Spaces. The Agency agrees that to the extent any
of the Parking Spaces are located on land owned by the Agency, it will maintain said land and
the Parking Spaces located thereon in a safe and clean condition. including providing adequate
lighting, repairing and patching surface areas, the replacement of surface areas, as needed. and
painting structures, if any, as needed. The Agency shall have no obligation to provide security
measures or personnel for any such area. The Agency shall indemnify. defend and hold the
Developer free and harmless from any and all loss and liability resulting ti'Oll1 or arising out of
the Agency's failure to maintain and repair the Parking Spaces to be maintained by the Agency
as provided herein. including but not limited to any loss or liability arising by reason of the death
or injury of any Permittee or damage or destruction of any property, including any property
owned by any Permittee; provided. however. the Agency will have no liability or obligation
under this Section whenever any loss. injury or death to person or property results ti'om the
wrongful acts or omissions of or ti'om the negligence of the Developer or of any Permittee. If
any of the Parking Spaces are located on land O\vned by any party other than the Agency, and
such Parking Spaces are not maintained in a clean and safe condition, including providing
adequate lighting. repairing and patching of surface areas, replacement of surface areas as
needed, and painting of structures. if any and if needed, but excluding security measures or
personneL then such spaces shall be excluded for purposes of determining the Agency's
compliance with its obligations under this Agreement.
Section 12. Rules and ReQ,ltlations. The Agency shall have the right to adopt from
time to time, such rules and regulations as it deems reasonable or necessary with respect to the
use of any Parking Space located on land owned or controlled by the Agency. The Agency may
entorce, or authorize third parties to entorce. such rules and regulations. in a non-discriminatory
manner, against all users of the Parking Spaces located on land controlled by the Agency. The
Agency may authorize the City to enforce all applicable traffic laws and municipal parking
facility regulations against all the users of the Parking Spaces located on l[lnd owned or
controlled by the Agency pursuant to Vehicle Code Section 21107.8 [lnd other law.
Notwithstanding any other language contained in this Section. any such rules or regulations
which limit the time period tor parking by any Permittees on lands owned or controlled by the
-l,21-,1~()-11I')~.1
6
Agency within 1,600 feet of the Property may not impose a time limitation for parking of less
than four (4) hours.
Section 13. Default. In the event of any default under the terms of this Agreement by
any party hereto, the non-defaulting party shall first give written notice to the defaulting party of
the matter giving rise to such det~1ult specifying the steps which must be taken to cure such
default. In the event of a monetary default. the defaulting party shall have ten ( 10) days after
receipt of notice to cure such default. In the event of a non-monetary default. the defaulting
party shall have thirty (30) days from receipt of notice to cure said default. or if a cure
reasonably requires in excess of thirty (30) days to cure. to commence said cure, provided that
the defaulting party diligently pursues said cure to completion. All notices given in accordance
with this Agreement shall be given in the manner provided in Section 6.01 of the DDA. Ie after
passage of the applicable notice period, the defaulting party fails to cure the default the non-
defaulting party shall have all rights and remedies against the def~1ulting party at law or in equity.
including, but not limited to. the right of specific performance. A defau It of this Agreement shall
not be a default under the DDA.
Section 14. Contlict of Interest. No member, official or employee of the Agency
having any conflict of interest direct or indirect. related to this Agreement shall participate in
any decision related to this Agreement. The parties hereto represent and warrant that they do not
have knowledge of any such contlict of interest.
Section 15. Warranty A~ainst Payment of Consideration for Ag:reement. The
Developer warrants that it has not paid or given, and will not payor give, any third party money
or other consideration for obtaining this Agreement. Third pm1ies, for the purposes of this
Section, shall not include persons to whom fees are paid for professional services if rendered by
attorneys, financial consultants. accountants. engineers. architects or the like when such fees are
considered necessary by the Developer.
Section 16. Nonliability of A~ency Officials and Employees. No member, official or
employee of the Agency shall be personally liable to the Developer. or any successor in interest
in the event of any default or breach by the Agency or for any amount which may become due to
the Developer or to its successor, or on any obligations under the terms of this Agreement.
except for gross negligence or willful acts of such member, officer or employee.
Section 17. Inspection of Books and Records. The Agency shall have the right at all
reasonable times at the Agency's cost and expense to inspect the books and records of the
Developer pertaining to the Project and/or the Property as necessary for the Agency, in its
reasonable discretion. to enforce its rights under this Agreement. Matters discovered by the
Agency shall not be disclosed to third parties unless required by law or unless resulting from or
related to the pursuit of any remedies or the assertion of any rights by the Agency hereunder,
Section 18. Approvals. Notwithstanding any language to the contrary contained
herein, this Agreement. and any amendments hereto. shall not be binding on the Agency until
approved by the Commission of the Agency and executed by an authorized representative of the
Agency. The Interim Executive Director of the Agency is authorized to sign on his own
..~21-~ i:'Il-IIJlJ.\ I
7
authority amendments to this Agreement which are of routine or technical nature. including
designation of alternative Parking Spaces from time to time.
Section 19. Attorneys' Fees. If either party hereto files any action or brings any action
or proceeding against the other arising out of this Agreement. or seeks the resolution of disputes
pursuant to Section 10 hereof: the prevailing party shall be entitled to recover its reasonable
attorneys' fees and court costs. The costs, salary and expenses of the City Attorney and
members of his office in enforcing this Agreement shall be considered as "attorneys' fees" for
purposes of this Section.
Section 10. DisDute Resolution. Any controversy or dispute arising from or relating to
this Agreement shall be heard by a referee pursuant to California Code of Civil Procedure
Sections 638( I ), 640. and 641 through 645.1. inclusive, by the Court in an action or proceeding
to be commenced only in San Bernardino County, State of California. Upon commencement of
any such action or proceeding, the parties hereto shall endeavor to agree upon and have
appointed by the Court a retired Superior Court Judge or Court of Appeal Justice from the then
current list of retired judges and justices available to serve as referees in San Bernardino County.
If the parties are unable to agree upon the referee \vithin five (5) business days after service of
the complaint. or the referee selected by the pm1ies is unable or unwilling to serve and the parties
cannot agree on an a lternate within five (5) business days after notice thereot: then either party
may make application to the Court in which the action or proceeding is pending for the
appointment of a judge or justice from said list to serve as the referee. In connection therewith.
the parties each shall be entitled to submit three (3) names from said list. each party shall be
entitled to strike one ( I ) name proposed by the other party. and the appointment shall be made
from the remaining four (4) names. unless each of them are unwilling or unable to serve, in
which case the Court shall exercise its powers under California Code of Civil Procedure Section
640. The referee shall try any or all of the issues in the action or proceeding. whether of fact or
of law. and shall report a statement of decision thereon. The parties shall advance. in equal
shares. the fees and expenses of the referee selected pursuant to this Section 10. However, the
referee's statement of decision shall award the party that. in light of the issues litigated and the
referee's decision on those issues. was the more successful in the reference all of its actual
attorneys' fees reasonably incurred in good faith, all of its fees and expenses associated with the
reference. including without limitation. any administrative fees, room charges. and referee fees,
and those costs allowable in an action at law. Notwithstanding anything contained herein to the
contrary, the parties hereto expressly preserve all rights and remedies they may have at law or in
equity unless and until a referee is appointed pursuant to this Section 10, including, without
limitation, the right to seek provisional remedies or injunctive relief.
Section 11. Signage. Promptly after execution of this Agreement. the Developer and
the Agency shall confer regarding the Agency's signage obligations under Section 3(c) above.
No later than October I. 10 I O. the Agency shall submit to the Developer for its reasonable
review and approval a signage plan describing the work to be perf<.mned by the Agency in order
to comply with its obligations with respect to signage as described in Set ion 3(c) above. The
Agency shall perform and complete its obligatiow, ""ith respect to signage ,del' Section 3(c) on
or before the earlier of: (i) the scheduled opening date of the multi-plex t 'pen business at the
Project. or (b) within 90 calendar days of the close of escrow for the Prop(: .. If the Developer
.f~21-~1~()-1()l)~.1
8
desires additional signage on public streets or highways adjacent to the Parking Lots or within
the vicinity of the Property in other to further identify the availability of the Parking Spaces for
use by Permittees of the Project and to provide information concerning convenient routes to and
from the Parking Lots and the Property, the Developer shall submit to the Agency, a signage plan
for such additional signage. All the Developer's signage, including the location, size,
specification. design and height thereot: shall be subject to the review and approval procedures
established by the Agency, and this Agreement shall not be deemed a modification or waiver of
any such procedures for review and approval of the Developer's signage. FLllther. the Developer
recognizes that some or all of the signage proposed by the Developer may be subject to the
regulations, restrictions or rules of the City, and that nothing contained herein may be deemed a
waiver of such regulations restrictions or rules. as they exist as of the date of this Agreement or
as they may exist in the future. The Agency hereby grants to the Developer a license with
respect to any portion of the Parking Spaces owned and controlled by the Agency, for the
purposes of construction, maintenance. operation, repair and replacement of the signage which
may be approved in accordance with the Agency's review and approval procedures for signage,
including the right of pedestrian and vehicular ingress and egress. over. across. and through such
portion of the Parking Spaces consistent with designated entrances. exits. lanes. sidewalks or
pathways which may exist in such Parking Spaces. for the purposes of maintaining. repairing and
replacing such signage. The Developer's additional signage shall be maintained, repaired and
replaced by the Developer, at its sole cost and expense. The Agency agrees that it will
reasonably cooperate with the Developer to obtain approval of any Developer's signage which
the Agency has approved but which requires the approval of any other agency. including the
City. Nothing in this Section shall release or relieve the Agency of its obligations with respect to
the identification of the Parking Spaces and the signage on the Parking Lots elsewhere in this
Agreement.
Section 21. Mort!2:a!2:ee Protection. The parties acknowledge and agree that any
mortgagee acqUIrIng an interest in the Property, whether by foreclosure or deed in lieu of
foreclosure, or otherwise: (i) shall succeed to the rights of the Developer under this Agreement.
including, but not limited to. the right to use the Parking Spaces. and the license granted to the
Developer hereby in connection with signage. and (ii) shall be entitled to exercise all rights of
the Developer prO\ided hereunder.
Section 23. Effect. This Agreement shall be binding upon and inure to the benefit of
the patties hereto and their respective, successors and assigns.
Section 24. Entire A!2:reement. This Agreement shall be executed in counterpart
originals, each of which is deemed to be an original. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject matter hereof:
except for the pertinent provisions of the DDA. This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and supersedes all negotiations on the subject
matter hereof
Section 25. Mer!2:er. None of the terms, covenants. agreements or conditions
contained in this Agreement shall be deemed 10 be merged with the grant deed conveying title to
the Property to the Developer as contemplated in the DDA and this Agreement shall continue in
fall force and effect after comeyance of such title.
.t~~ I -~ I ~()-I ()l)~.1
9
Section 26. Amendments. All waivers or amendments of the provIsIOns of this
Agreement must be in writing and signed by the appropriate authorities of the Agency and the
Developer.
Section 27. Counterparts. This Agreement may be executed in multiple counterparts.
all of \vhich shall be deemed originals and with the same etlect as if all parties had signed the
same document. All of such counterparts shall be construed together and shall constitute one
instrument.
-I~21-~15()-1()l)~.1
10
IN WITNESS WHEREOF. the parties hereto have duly executed this Agreement as of
the date first above written.
AGENCY
Redevelopment Agency of the
City of San Bernardino.
a public body. corporate and politic
By:
Emil A. Marzullo. InterIm Executive Director
Dated:
Approved As To Form:
By:
Agency Counsel
DEVELOPER
Maya San Bernardino Cinemas. LLC.
a Calitornia limited liability company
By:
Dated:
Name:
Title:
[NOTARY TO BE ATTACHED]
-t,":: I-~ I ~h-I P{)~.I
II
Exhibit "A"
Legal Description of the Propel.ty
The PI'operty refen'ed to in this Agreement is situated in the County of San Bemal'dino,
State of Califomia, and is descl"ibed as follows:
Parcel I of Parcel Map No. 15038, in the County of San Bernardino. State of California. as per
plat recorded in Book 186 of Parcel Maps. Pagels) 14 and 15. records of said County.
.j~21-~I'()-llIl)~.1
12
Exhibit "8"
Parking Lots
~
North
D:
to ~I
IDO liD r:=:J ~
[d 0
~
Q~~ h-r I D~ rn
b-~~ c,", s''''c;l n-o [g
i~ 0 D '1 II ~ n
U "~: .Df'J 10 ~I
'" ~ 0 'C Kln~ Slt~~l
~ ~ fi;;o
lr~ = = I II
lj , -"'____
,: .... FtlwHl Street
li\ .
, D r--rF=?7rl
\., "__"0
I'
,
:., r:::::J , 0 /~
I, ~. \ l, //9/ "-
\ .- \ \,:;~~/I
!i .) ^..~.(
!,,---~./'" / ""
\:. ./ ''\.,
\~ -~. ,
\ ",
;;\\, ".......
',,,,, \
!', \
" '\ \
... \ 0 .
"1'\ 0 D~'\
\ "
~ ~lJ"J"- :,---- S(lnd Stre~'
W 'j' ( rs~ U W _ c::::J
Lt '10 85
L',) I I .:=
~ I I m
1 :11/ b
L"
" I
r /1
.Ii
./
~
QII
)~
"
0:
o
Q;
,,-.
p
..U)
r--'--
.~ ,-
u
bi...lt.... f.......n.......
Public Parking Lot A 199
Public Parking Lot B 65
Public Parking Lot C 70
Public Parking Lot D 83
Public Parking Lot E 96
Public Parking Lot F 732
Public Curbside Parking 900
Total 2145
.j~2 J -.~ I ~()-I<J()~ I
13