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Home My WebLink About1982-3331 2 3 4 5 6 7 8 9 10 11 12 13 14 15 I 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO._a2_ _U RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF DISPOSITION AGREEMENT FOR THE CONVENTION CENTER AND HOTEL AMONG THE CITY OF SAN BERNARDINO, THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND ENGLISH ENTERPRISES, INC. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of the City of San Bernardino an agreement, incorporated herein by reference and entitled "Disposition and Joint Development Agreement for the Convention Center and Hotel" among the City, the Redevelopment Agency of the City of San Bernardino, and English Enterprises, Inc. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a _.rP-cLu a r _ meeting thereof, held on the 2nd____`day of August 1982, by the following vote, to wit: AYES: Council Members Casts.neda,_ neilly_,_ _Qui el, Hob s. _ NAYS: ABSENT: —__ - . Council TAembe.r Hernandez------------ City ernandez-___-___--_ The foregoing resolution is hei 1982. City Clerk Approved as to form: ' City Att rnev ino- Recording Requested by: REDEVELOPMENT AGENCY YVhen Recorded, Mail to: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CA 300 North "D" St.,. Rm 320. Sari Bemaard tto, CA 92418 -18606,E REDEVELOPMENT AGENCY 0�-3-53 RECORDED IN OFFICIAL. RECORD;; 1982 SEF 15 FM c;: 11 SAN Hwl'ARDINO CO., CALIF. OF THE CITY OF SAN BERNARDINO DISPOSITION AND JOINT DEVELOPMENT AGREEMENT FOR THE CONVENTION CENTER AND HOTEL El DISPOSITION AGREEMENT TABLE OF CONTENTS ARTICLE I - RECITALS ........................................ Section 1.01. Agency Redevelopment Program .............. Section 1.02. Property .................................. Section 1.03. Expansion of Exhibit Hall ................. Section 1.04. Offer by Redeveloper ...................... Section 1.05. Need for Redeveloper ...................... Section 1.06. Redevelopment of Land ..................... Section 1.07. Purpose of Agreement ...................... ARTICLE II - DEFINITIONS .................................... Section2.01. Agency .................................... Section 2.02. Architect ................................. 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. Bonds..................................... City...................................... Complex ................................... Convention Center ......................... Drawings.................................. GarageFacilities ......................... Hotel..................................... Land...................................... Operating Agreement ....................... (i) Page 1 1 2 2 2 2 3 3 3 3 3 4 4 4 4 4 5 5 5 5 Section 2.12. Section 2.13. Section 2.14. Section 2.15. Section 2.16. Party ..................................... Project Area .............................. Redeveloper ............................... Resolution................................ Redevelopment Plan ........................ ARTICLE III - CONVEYANCES ................................... Section 3.01. Property Descriptions ..................... Section 3.02. Sale and Conveyance of Land ............... Page 6 6 6 6 ARTICLE IV - CONSTRUCTION ................................... 8 Section 4.01. Construction by Redeveloper ............... 8 Section 4.02. Construction Bonds 10 13 Section 5.03. ........................ 14 Section 4.03. Certification of Compliance ............... 10 Section 4.04. Hotel Name ................................ Section 11 Section 4.05. Schedule of Performance ................... 11 ARTICLE V - EASEMENTS, CONVEYANCES AND AGREEMENTS........... 13 Section 5.01. Mutual Benefit ............................ 13 Section 5.02. Horizontal and Vertical Support........... 13 Section 5.03. Utilities ................................. 14 Section 5.04. Parking Spaces ............................ 16 Section 5.05. Outdoor Restaurant ........................ 19 Section 5.06. Swimming Pool ............................. 19 Section 5.07. Elevators ................................. 19 ARTICLE VI - MAINTENANCE .................................... 23 Section 6.01. Maintenance ............................... 23 ARTICLE VII - RESTRICTIONS AND PROHIBITIONS ................. 23 Section 7.01. Restrictions on Use Page Section 5.08. Loading Dock .............................. 20 Section 5.09. Lobby ..................................... 20 Section 5.10. Service Facilities ........................ 20 Section 7.03. Rights of Agency and City to Enforce...... 25 Section 5.11. Driveways ................................. 20 Section 5.12. Stairways ................................. 21 Section 5.13. Pedestrian Walkways ....................... 21 Section 7.06. Minimum Wage Rates for Laborers Section 5.14. Restriction of Pedestrian and 30 Vehicular Ingress and Egress .............. 21 Section 5.15. Easements for Encroachment ................ 22 Section 5.16. Prohibition Against the Development of Another Hotel Within Vicinity.......... 23 ARTICLE VI - MAINTENANCE .................................... 23 Section 6.01. Maintenance ............................... 23 ARTICLE VII - RESTRICTIONS AND PROHIBITIONS ................. 23 Section 7.01. Restrictions on Use 23 ....................... Section 7.02. Covenants Binding Upon Successors in Interest; Period of Duration........... 24 Section 7.03. Rights of Agency and City to Enforce...... 25 Section 7.04. Equal Employment Opportunity .............. 26 Section 7.05. Prohibitions Against Assignment and Transfer .............................. 27 Section 7.06. Minimum Wage Rates for Laborers and Mechanics and Penalty ................. 30 ARTICLE VIII - DEFAULT ...................................... 30 Section 8.01. Default by Redeveloper .................... 30 Page Section 8.02. Default by Agency or City ................. 36 Section 8.03. Vis Major ................................. 36 Section 8.04. Cumulative Remedies; Waivers .............. 37 ARTICLE IX - GENERAL PROVISIONS.. 38 ...................... B - 1 Section A -A B - Section 9.01. Agency and City Employees, 3 ; B - 4 Officials and Members ..................... 38 5 Lower Floor B - 6 Typical Floor Plan B - Section 9.02. Compliance with Law ....................... 38 O Section 9.03. Notice.... ................................ 39 N Section 9.04. Approvals ................................. 39 Section9.05. Merger .................................... 39 Section 9.06. Right to Modify, Terminate, Amend......... 39 Section 9.07. Operating Memoranda ....................... 40 Section 9.08. Partial Invalidity ........................ 40 Section 9.09. Arbitration ............................... 41 Section 9.10. Attorneys Fees ............................ 41 Section 9.11. Execution ................................. 41 EXHIBITS Attachment 1 Legal Description of Land ................. A - 1 Land Attachment 2 Schematics.......... ...................... B - 1 Section A -A B - 2 Architectural Design B - 3 Street Level B - 4 Plaza Level B - 5 Lower Floor B - 6 Typical Floor Plan B - 7 Penthouse Plan (iv) Page Attachment 3 Grant Deed for Land ....................... C - 1 Land Attachment 4 Certificate of Compliance ................. Attachment 5 Declaration of Restrictions ............... Attachment 6 Schedule of Performance ................... (v) REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA DISPOSITION AND JOINT DEVELOPMENT AGREEMENT FOR THE CONVENTION CENTER AND HOTEL Q: THIS DISPOSITION AGREEMENT, dated for convenience as of QrV6 V ST 25 , 1982, by and between the REDEVELOPMENT AGENCY~ OF THE CITY OF SAN BERNARDINO, CALIFORNIA, hereinafter called the "Agency," and ENGLISH ENTERPRISES, INCORPORATED, hereinafter *i and the City of San Bernardino individually and collectively called the "Redeveloper."/ For and in consideration of the performance of the mutual covenants and promises hereto at the time and in the manner specified herein, the Parties hereto agree as follows: ARTICLE I. RECITALS THIS AGREEMENT is entered into with reference to the following facts and assumptions: SECTION 1.01. Agency Redevelopment Program. In furtherance of the objectives of the Community Redevelopment Law of the State of California (Health & Safety Code of the State of California, Sections 33000 et seq.), the Agency has undertaken a program for the redevelopment of blighted areas in the City of San Bernardino, California. ** Added 7/29/82 - 1 - SECTION 1.02. Property. The Agency is the owner of that certain parcel of real property more particularly described in Attachment 1, attached hereto and by this reference made a part hereof (hereinafter called the "Land"), located within the boundaries of Central City Project Area No. 1, Calif. R-79, which oD has been merged with Meadowbrook Project No. 1, Calif. R-10, for financial purposes, which merged Redevelopment Project shall be known and referred to as the Meadowbrook-Central City Redevelopment O Project No. 1, and immediately adjacent to the real property on ~ which the present City Hall -Exhibit Hall is located, and which, under said Redevelopment Plan, may be developed for public and private use. SECTION 1.03. Expansion of Exhibit Hall. The City considers it necessary and desirable to expand and improve the present Exhibit Hall into a Convention Center, which expansion and improvement will require the installation and construction of various public struc- tures and improvements necessary therefor. SECTION 1.04. Offer by Redeveloper. The Redeveloper has made an offer to purchase and develop the Land by the construction of a Hotel thereon, the Schematics for which are shown in Attachment 2. SECTION 1.05. Need for Redeveloper. The City has not been financially successful in the operation of the Exhibit Hall as it is presently constituted; and it is expected that, by entering into this Disposition Agreement, the City will be able to solve the difficult problems of providing for the operation and maintenance of the Convention Center (as reconstructed pursuant to this Disposition Agreement) including, without limitation, the solicitation and book- IWZ ing of conventions, trade shows, exhibitions, dances and other entertainment and events of interest to the general public, meetings (� of all types, as well as other events, and the making of food and beverages, vending machines for food, beverages and cigarettes available to the patrons of the Convention Center. SECTION 1.06. Redevelopment of Land. The Agency has consider- ed all pertinent data and analyses, including the reports of its consultants and the reports and recommendations of its staff, and the Agency believes that the redevelopment of the Land pursuant to the provisions of this Agreement is in the best interests of the City and Agency, and is in accord with the public purposes and provisions of applicable laws and regulations. SECTION 1.07. Purpose of Agreement. On the basis of the fore- going, and the undertakings of the Agency, the City and the Redevel- oper, the Agency desires to convey the Land to the Redeveloper and the City for the construction of the Hotel thereon, and the City desires to, all in accordance with the terms and provisions of this Agreement. ARTICLE II. DEFINITIONS The following words and terms, unless a different meaning clearly appears from the context, shall have the following meaning in this Agreement. SECTION 2.01. Agency. "Agency" shall mean the Redevelopment Agency of the City of San Bernardino, and its successors and assigns. SECTION 2.02. Architect. "Architect" shall mean the architect or architects, or firm or firms of architects, or an engineer or -3- engineers, or firm or firms of engineers, having a favorable repute for skill and experience as consulting architects and/or engineers,QC at the time retained by Redeveloper with the consent of the City, to perform the acts, give the Certificates and carry out the duties o provided for the engineer in the Resolution. C SECTION 2.03. Bonds. "Bonds" shall mean the Redevelopment Agency of the City of San Bernardino, Meadowbrook-Central City Project No. 1, Bonds [title to be fixed at time of issuance], auth- orized by, and at any time outstanding pursuant to, the Resolution. SECTION 2.04. City. "City" shall mean the City of San Bernardino. SECTION 2.05. Complex. "Complex" shall consist of the Hotel and the Convention Center. SECTION 2.06. Convention Center. "Convention Center" shall mean the present Exhibit Hall facilities, as improved by the Redeveloper, plus the various public structures and improvements installed and constructed on the Land. SECTION 2.07. Drawings. "Drawings" shall mean, collectively, the drawings, plans, specifications, and other construction docu- ments prepared or caused to be prepared by the Redeveloper for the construction of both the Convention Center and the Hotel and later convertea into As -Built Drawings prepared at the completion of the construction and kept up to date as the new construction or recon- struction occurs from time to time, for both the Convention Center and the Hotel. Depending upon the context, the word "Drawings" may refer to: -4- (1) Schematics, which shall be the original studies and QD drawings listing the improvements to be constructed, the gross spac 1 requirements and the suggested utilization of the improvements; }r1 *(2) Design Development Documents, which shall be the 0 preliminary plans, drawings or prints thereof, consisting of floor cr' plans, elevations and specifications; (3) Construction Documents, which shall consist of complete architectural, structural, mechanical, plumbing, heating, ventilating, electrical and landscaping drawings and specifications, in accordance with the Design Development Documents, except for any modifications authorized in writing by the City, and (4) As-Built Documents, which shall consist of the cor- rected final Construction Documents, indicating all changes made during the construction period and resulting in an As-Built set of final Design Documents. SECTION 2.08. Garage Facilities. "Garage Facilities" shall mean the parking structure and related facilities adjacent to the Land, to be used as set forth in Section 5.04 hereof. SECTION 2.09. Hotel. "Hotel" shall mean the Hotel to be con- structed upon the site, including, but not limited to, hotel and restaurant facilities, pursuant to the Drawings to be approved by the City and Agency. SECTION 2.10. Land. "Land" shall mean all that real property described in Attachment 1, attached hereto. SECTION 2.11. derating Agreement. "Operating Agreement" shall mean the San Bernardino Convention Center Operating Agreement entered into between the City and the Redeveloper. -5- SECTION 2.12. Party. "Party" or "Parties" shall mean the Agency, the City and/or the Redeveloper, as the case may be. SECTION 2.13. Project Area. "Project Area" shall mean thQD Central City Project Area No. 1, Calif. R-79. SECTION 2.14. Redeveloper. "Redeveloper" shall mean theme original Redeveloper, its successors and assigns, and every suc- cessor in interest to the Land and Hotel. Any such successors and assignees shall succeed to all rights hereunder and be responsible for all obligations hereunder, but the original Redeveloper shall not be released from such obligations without the express consent of the City and the Agency given in writing. SECTION 2.15. Resolution. "Resolution" shall mean the Resolu- tion authorizing the issuance of the Redevelopment Agency of the City of San Bernardino Meadowbrook-Central City Project No. 1, Bonds [title to be fixed at time of issuance]. SECTION 2.16. Redevelopment Plan. "Redevelopment Plan" shall mean the Redevelopment Plan adopted for the Central City Project Area No. 1, Calif. R-79, which has been merged with Meadowbrook Project No. 1, Calif. R-10 for financial purposes only, which merged Projects are known and referred to for financial purposes as the Meadowbrook-Central City Redevelopment Project No. 1. ARTICLE III. CONVEYANCES SECTION 3.01. Property Descriptions. The Land is described in Attachment 1, attached hereto and mae a part hereof. The metes and bounds description of the Land can be stated accurately at this time, and it is not expected that any revisions to that aspect of the description will be necessary. SECTION 3.02. Sale and Conveyance of Land. (a) Subject to all of the terms, covenants and conditions of this Agreement, the Agency agrees to sell and the Redeveloper agrees to buy the Land for the sum of One Hundred and Forty Thousand Dollars ($140,000.00) payable at the close of escrow. (b) Title to the Land shall be conveyed upon the close of escrow. (c) Prior to the conveyance of the Land to the Redevelop- er, the Agency or the City shall submit to the Redeveloper for its written approval: (i) a report prepared by an engineer or firm of engineers, employed by the Agency or the City, certifying that the present Exhibit Hall has the structural design and electrical, mechanical, plumbing, heating and air-conditioning capacity neces- sary for the improvements to be constructed by the Redeveloper, and (ii) a soil report by a certified soils engineer as to the adequacy of the soil conditions for the construction of the improvements hereunder. The written approval by the Redeveloper of these Reports shall not be unreasonably withheld. The Redeveloper shall, during the construction of the Convention Center, reconstruct, repair or alter any defects found by said reports to exist in such structure or electrical, mechanical, plumbing, heating or air-conditioning facilities. (d) Title shall be conveyed by Grant Deed substantially in the form of Attachment 3, attached hereto and by this reference made a part hereof and shall be a marketable title free and clear of all encumbrances and exceptions, except as follows, subject to the -7- approval of the Redeveloper, which approval shall not be unreason- ably withheld: (i) the title shall be subject to the conditions and restrictions set forth in the preliminary title report which has been approved by the Redeveloper, and (ii) the title shall be subject to all of the agreements, covenants, conditions and restric-�i tions undertaken by the Redeveloper under this Agreement. The Agency shall prepare such deed and pay for the necessary title O insurance, which title insurance will provide for extended coverage. The cost of recording said deed shall be paid by the Redeveloper. In the event that the Grant Deed, the form of which is attached hereto as Attachment 3, is not acceptable to the Redeveloper's con- struction lender, the Agency shall modify such Grant Deed so that its provisions are in accord with those generally accepted by the lending community. ARTICLE IV. CONSTRUCTION SECTION 4.01. Construction by Redeveloper. (a) The Redeveloper agrees to diligently proceed with the construction on the Land of the Convention Center and the Hotel. The Hotel shall be constructed on the Land and shall be a high-rise hotel building containing not less than 243 rooms, the Drawings for which are subject to the approval of the City as hereafter speci- fied. (b) The City, under the provisions of Section 7 of the City Hall --Exhibit Hall Sublease, dated May 1, 1970 (and amended on July 1, 1971, and November 1, 1972), between the San Bernardino Civic Center Authority and the City, has the right to make additions and improvements to the Exhibit Hall, provided the use of the premises for the purposes contemplated are not impaired. The City hereby grants to the Redeveloper the right to make, or cause to be made the improvements contemplated under this Agreement. 00 (c) Redeveloper shall begin and complete all construction and development as set forth and specified in the Schedule of � Performance, Attachment 6. 0 (d) The Convention Center and the Hotel, which together ~ have sometimes been referred to as the "Complex," shall be of a quality similar in nature to the RAMADA INN in Beverly Hills. (e) All improvements shall be constructed in accordance with all applicable State and local laws and regulations and shall conform to the provisions of this Agreement. (f) Prior to delivery of the Land to the Redeveloper, the Agency shall permit the Redeveloper access to the Land and the Convention Center whenever and to the extent necessary to carry out the provisions of this Agreement; and, subsequent to such delivery, the Redeveloper shall permit access to the Land by the Agency and the City whenever and to the extent necessary to carry out the provisions of this Agreement. In no case shall there be any compensation payable or charge made in any form by or to either party for such access. (g) Until construction of said Convention Center has been completed, the Redeveloper agrees to make a detailed written report every thirty (30) days as to the progress of such construction. During such period the work of the Redeveloper shall be subject to inspection by representatives of the City, who will coordinate their am efforts with the architect. (h) The City Administrator and his staff shall cooperate with the Redeveloper to avoid any delays or problems in construc-(DD tion. Zj SECTION 4.02. Construction Bonds. Prior to the commencement( of construction of and on the Convention Center, the Redeveloper shall secure and deposit with the City, the following construction bonds (hereinafter called the "Construction Bonds"): ( i ) a bond securing the faithful performance by the construction contractor(s) of the completion of construction of the improvements on the Land and (ii) a bond securing the payment by the construction contrac- tor(s) of all claims for materials furnished for or labor performed in the construction of the improvements on the Land. Such Construc- tion Bonds shall be in an amount equal to one hundred percent (100%) of the estimated cost of construction of the improvements to be constructed by the Redeveloper hereunder. The Construction Bonds shall name the City and Agency as well as the Redeveloper as an obligee. Such Construction Bonds shall be from a company listed in the current United States Treasury Department Circular 570 and within the underwriting limits specified for that company in such Circular. SECTION 4.03. Certification of Compliance. (a) Promptly after completion of the improvements in accordance with the provisions of this Agreement (as evidenced by a Certificate of Occupancy), the Agency and the City shall furnish the Redeveloper with an appropriate Certificate of Compliance, attached hereto as Attachment 4, and by this reference made a part hereof. -10- Such certification by the Agency and the City shall be conclusive evidence of satisfactory completion of terms and conditions of the agreements and covenants of this Agreement and the Grant Deed with respect to the obligation of the Redeveloper, provided that such certification and such determination shall not constitute evidence of compliance with, or satisfaction of, any obligation of the GC Redeveloper to any holder of any mortgage, or any insurer of any mortgage, securing money loaned to finance the improvements, or any (T; C part thereof. (b) The certification provided for in this Section shall be in the form attached hereto as Attachment 4, or such other form as will enable it to be recorded with the County Recorder of San Bernardino County. If the Agency or the City shall refuse or fail to provide the certification in accordance with the provisions of this Section, the Agency or the City shall, within twenty (20) days after written request by the Redeveloper, provide the Redeveloper with a written statement indicating in detail in what respects the Redeveloper has failed to complete the improvements in accordance with the provisions of this Agreement or is otherwise in default and what measures or acts will be necessary in the opinion of the Agency or the City, for the Redeveloper to take or perform in order to obtain such certification. SECTION 4.04. Hotel Name. The parties hereto shall agree at a later date upon a suitable name for the Hotel. SECTION 4.05. Schedule of Performance. After the conveyance of the title to the Land, the Redeveloper shall promptly begin and thereafter diligently prosecute to completion the construction of - 1 1 - the improvements of the Land. The Redeveloper shall begin and complete all construction and development within the times specified in the Schedule of Performance, Attachment 6, or such reasonable extension of said dates as may be granted by the Agency. The Redeveloper agrees to pay the Agency the sum of Ten Thousand and no/100ths ($10,000.00) Dollars for each and every month the Redeveloper fails to comply with the time schedule set forth in the Schedule of Performance, Attachment 6. Each payment shall be made within ten (10) days after Redeveloper has been notified of itsc) default by the Agency, provided, however, that the enforcement of the above penalty shall require a vote of a majority of the members of the Community Development Commission. Under no circumstances will the Redeveloper be obligated to pay the above fee unless, prior thereto, it is notified in writing by the Agency that it is in default in complying with the time frame specified in the Schedule of Performance. The Redeveloper and Agency hereby agree that the Agency, upon breach of the time frame specified in the Schedule of Performance by the Redeveloper, will suffer serious and substantial damage which would be difficult, if not impossible to prove the amount thereof, and the parties have computed, estimated and agreed upon such sum as an attempt to make a reasonable forecast of probable actual loss because of the difficulty of estimating with exactness the damages which will result, having in mind the exact amount and the extent of loss of tax increment which would have been realized by the Agency, plus administrative costs, but for the termination or breach by the Redeveloper. -12- ARTICLE V. EASEMENTS, COVENANTS AND AGREEMENTS SECTION 5.01. Mutual Benefit. This Article creates for the mutual benefit of the Parties hereto, certain easements, covenantsQD 1 and agreements concerning the use of the Convention Center, the Hotel and the Garage Facilities. These easements, covenants and C agreements shall run with the land and shall inure to the benefit of the Redeveloper, its agents, employees, concessionaires, subtenants, guests or other invitees, and shall bind the City, the Agency, and any successor in interest to any fee or leasehold interest in the Convention Center. The following easements, covenants and agreements contained in this Article shall be incorporated by reference in each and all future leases and/or deeds of any portion of Land, the Convention Center and the Hotel pursuant to Sections 1468 and 1469 of the California Civil Code. SECTION 5.02. Horizontal and Vertical Support. The City and the Agency hereby grant to the Redeveloper perpetual rights and easements appurtenant to the Land and Hotel to be constructed thereon: (i) to join to and use the floors described as the horizon- tal floor and ceiling slabs separating the Convention Center Plaza Level and the Hotel as shown on Attachment 2, attached hereto; (ii) to join and obtain vertical and horizontal load bearing support for the Hotel from said floors (such superimposed loads not to exceed the maximum capacities of said floors as such capacity may be determined prior to construction) (iii) to join to and obtain vertical and horizontal load bearing support for the Hotel from all -13- footings, pillars, columns, beams, joists and girders, walls, ramps, connections, supports, and foundations, located within Convention Center and/or on the Land (such superimposed loads not to exceed the maximum load bearing capacities of existing structures). SECTION 5.03 Utilities. The City and the Agency hereby grant I to the Redeveloper perpetual rights and easements appurtenant to the cr" Land and the Hotel upon, through, over, across and within that portion of Convention Center for the installation, use, repair, maintenance, inspection, restoration and replacement of pipes, wires and conduits for utility purposes between the Hotel and the source of outflow of such utilities, subject, however, to the following limitations and covenants: (a) As far as is reasonably practicable, the items here- inafter mentioned shall be worked out during the construction period, and the Parties hereto shall cooperate to that end. (b) Said pipes, wires and conduits shall be installed and shall run only through and under the ceilings and along sides of columns or beneath the Convention Center at such locations as shall not interfere with the use and operation of the same. In the event the Redeveloper desires to penetrate the ceiling of the Convention Center, such Redeveloper shall have the right to make such penetra- tion at such reasonable locations and numbers as shall be approved in advance by the City and the Agency, which consent shall not be unreasonably withheld for the purpose of connecting to the utilities installed within the Convention Center. The Redeveloper and his contractor shall be liable to the City and/or the Agency for any damages which may occur due to such work, including but not limited -14- to, severance of any steel and post tension cables by such penetra- tion of the ceiling slab. (c) The location, number, size, painting and method of attachment of the pipes, wires and conduits to be installed by the Redeveloper in the Convention Center and the Land, and the uses GO thereof, shall be subject to the prior written consent of the City JI and the Agency, which consent shall not be unreasonably withheld, and shall be in the locations designated as "Permanent Utility Grp Easements" on a document for the purpose of locating said "Permanent Utility Easements" to be executed by Parties hereto. Upon the execution of said document, it shall be filed with the As -Built Drawings, and the locations of all "Permanent Utility Easements" shall be noted on the As -Built Drawings. (d) The Redeveloper shall have the sole obligation to repair and maintain said pipes, wires and conduits so installed and shall hold the other Parties harmless, and defend such other Parties from any claim, liability or expense for injury or injuries to persons or property arising out of the installation, use, repair, maintenance (or failure to repair or maintain), replacement or restoration of said pipes, wires or conduits. (e) Redeveloper shall have an easement appurtenant to the Land and the Hotel to connect to and use those existing pipes, wires and conduits for utilities and storm and sanitary sewers constructed within the Convention Center, provided that such connections and use shall be at the sole cost and expense of the Redeveloper. Redevel- oper shall have the sole obligation at its expense to maintain such pipes, wires, and conduits for utilities, storm and sanitary sewers, -15- and shall hold the other Parties harmless and defend them from any claim, liability or expense for injury or injuries to persons or property arising out of the installation, use, repair, maintenance (or failure to repair or maintain), replacement or restoration of such pipes, wires, conduits, storm and sanitary sewers so installed Iv in the Convention Center. i (f) Subject to the prior written approval of the City and the Agency, the Redeveloper shall have the right to relocate any utility easement or storm and sanitary sewer easement created here- ~ by, whether temporary or permanent, which is located within the Convention Center. Any such relocation shall be noted on the As -Built Drawings. (g) Subject to the prior written approval of the City and the Agency, the Redeveloper shall have the right to enter into reasonable agreements with utility companies and governmental bodies for storm and sanitary sewers, water, gas, power, telephone and other utility services, creating such easements in favor of such entities as required in order to service the Convention Center and the Hotel, and each party hereto covenants and agrees not to unreasonably withhold consent thereto and to execute any and all documents, agreements and instruments, and to take all other actions, in order to effectuate the same. SECTION 5.04. Parking Spaces. (a) The City shall, at its own expense, operate and main- tain the Garage Facilities in accordance with the usual standards of operation and maintenance of parking structures servicing high quality establishments in the area, as more fully set forth in the Operating Agreement. -16- (b) The City hereby grants to the Redeveloper the use of 200 specified parking spaces which may be divided among the various levels of the Garage Facilities, which spaces shall be clearly marked and assigned exclusively to the Redeveloper. The City hereby grants to the Redeveloper the use of an additional 300 unassigned parking spaces on the various levels of the Garage Facilities. The 1 location of these 500 parking spaces shall be agreed upon by they. Parties hereto no later than thirty (30) days prior to the opening Q: O for business of the Hotel. (c) The City shall construct signs designating "Hotel Parking" at places mutually agreed upon by the City and the Redeveloper and incorporated into the Construction Documents. (d) The City shall also design and construct directional signs and graphics for the purpose of directing Hotel guests to the spaces assigned to the Redeveloper, which directional signs and graphics shall be mutually agreed upon by the City and the Redevel- oper and incorporated into the Working Construction Documents. (e) The City shall also provide ticket validation privi- leges for vehicles belonging to registered guests of the Hotel. (f) Because there is, at present, no charge imposed in the area for the use of the Garage Facilities, there shall be no charge imposed upon the Redeveloper for the use of the 500 assigned and unassigned parking spaces. However, if the City does impose a charge at a specified rate for the use of the parking spaces in the Garage Facilities or for security therein, the City may charge the Redeveloper a rate which shall be no greater than the most favorable rate available to others in the area. In the event that the City -17- does not impose such rate on an hourly basis, the daily rate charged by the City shall be divided into five (5) increments, the exact division of which shall be agreed upon by the City and the Redevel- oper, provided, however, that no increment shall exceed an amount equal to twenty (20) percent of the daily rate imposed by the City. (g) If the Federal Environmental Protection Agency or anK- federal, state, county, local or regional agency, commission ort other governmental entity (other than the City voluntarily creating Go a tax, levy, assessment or surcharge without being required to do so C7 by any other governmental entity) shall impose any tax, levy, assessment or surcharge for the use of the parking spaces, the City shall be entitled to charge the Redeveloper a pro rata amount of such tax, levy, assessment or surcharge based upon the ratio which the 200 specified spaces assigned to the Redeveloper bears to the total number of spaces in the Garage Facilities, provided that such tax, levy, assessment or surcharge is one which, under the enacting legislation, may in fact be passed off to the Redeveloper and must not under law be absorbed by the City. In addition, if the law provides for some reasonable alternative which would avoid such tax, levy, assessment or surcharge, and such alternative could be done without prejudicing the rights of the City or the Redeveloper or substantially interfering with the operation of the Garage Facili- ties, then this subsection (g) shall not be authority to charge the Redeveloper any additional amount. (h) In addition to the foregoing five hundred (500) park- ing spaces, the Redeveloper may rent from the City up to one hundred (100) parking spaces, at convenient locations, not necessarily in -18- the Garage Facilities, on an as available basis for employees, restaurant patrons, and registered hotel guests at the rates established by the City. (i) In the event additional parking is required or needed, Redeveloper shall be granted air rights above existing parking structure for construction, at Redeveloper's cost, of one additional parking level. SECTION 5.05. Outdoor Restaurant. The City and the Agency hereby grant to the Redeveloper perpetual rights and an easement on the roof of the Convention Center for the purpose of constructing an outdoor restaurant and equipping such restaurant with related facilities and furnishings. SECTION 5.06. Swimming Pool. The City and the Agency hereby grant to the Redeveloper perpetual rights and an easement to use that portion of the land adjacent to the Convention Center for the purpose of constructing, operating, maintaining and repairing a swimming pool and furnishing such area with chairs, tables, landscaping and related food and beverage service facilities. SECTION 5.07. Elevators. The City and the Agency hereby grant to the Redeveloper, except for any City Hall elevator, perpetual rights and easements appurtenant to the Hotel and Land and within the Convention Center, consisting of elevator shafts and pits for the use of passenger and freight elevators and motors, machinery and other related equipment serving the aforesaid elevators, for freight and passenger transportation, with appurtenant rights of ingress and egress to and from said elevators, and the right to pass over, upon, across and through the Convention Center. The elevator and elevator = M equipment, electrical, mechanical and telephonic equipment, motors, machinery and other related equipment serving the aforesaid eleva- tors, shall be owned, maintained and operated by the Redeveloper. SECTION 5.08. Loading Dock. The City and the Agency hereby grant to the Redeveloper perpetual rights and an easement within the Convention Center appurtenant to the Hotel and Land consisting of the loading dock area, as shown on Attachment 2, attached hereto, O and the right to construct, use, operate and maintain such loading dock for loading and unloading freight and for temporary storage (up to a maximum of two (2) days) of such freight. SECTION 5.09. Lobby. The City and the Agency hereby grant to the Redeveloper perpetual rights and an easement within the Convention Center appurtenant to Hotel for the purpose of a Hotel lobby within as shown in Attachment 2. SECTION 5.10. Service Facilities. The City and the Agency hereby grant to the Redeveloper perpetual rights and easements with- in the Convention Center appurtenant to the Hotel for service facilities as shown in Attachment 2. Such easements for service facilities shall include, but not be limited to, laundry facilities, trash facilities, maintenance facilities, storage facilities, mech- anical and boiler room facilities, transformers, elevators, locker rooms, utility rooms, toilet and shower facilities, and lounge facilities. SECTION 5.11. Driveways. The City and the Agency hereby grant to the Redeveloper perpetual rights and easements on the Land and appurtenant to the Hotel for the purpose of constructing, operating, maintaining, repairing and using driveways to the Garage Facilities -20- and the Loading Dock, as more particularly described on Attachment 2, for vehicular and pedestrian ingress and egress and for the purpose of planting, seeding and landscaping and maintenance attendant thereto. Construction of such driveways to the Garage Facilities and the Loading Dock and the maintenance thereof for both ordinary and extraordinary repair including that required by thall destruction thereof shall be the responsibility of the Redeveloper, which construction shall be completed in a reasonable time to allow V% for the Redeveloper to prepare for the opening of the Hotel forj••�► business. SECTION 5.12. Stairways. The City and the Agency hereby grant to the Redeveloper perpetual rights and easements in the Convention Center appurtenant to the Hotel for pedestrian use and access, as shown in Attachment 2. SECTION 5.13. Pedestrian Walkways. The City and the Agency hereby grant to the Redeveloper perpetual rights and easements in the Convention Center appurtenant to the Hotel to and from the Hotel and to and from the Garage Facilities, as shown in Attachment 2, for the use of pedestrian walkways. The Redeveloper shall be respon- sible for any destruction or damage to such walkways during the construction phase. The City, however, shall be responsible for ordinary repair and maintenance after the completion of construc- tion. SECTION 5.14. Restriction of Pedestrian and Vehicular Ingress and Egress. The Redeveloper hereby grants to the City the right to restrict the rights and the easements granted the Redeveloper pur- suant to Sections 5.04, 5.08, 5.09, 5.11, 5.12 and 5.13 consisting -21- of the right of the City to provide electronic gates or spikes or other control mechanisms in said driveways, ramps, stairwells or pedestrian walkways in order to maintain effective and secure parking operations with the Garage Facilities and provided that such control mechanisms shall not unduly restrict access rights toon pedestrians or parking access to and from the Hotel. In the eventt:d 1 the City elects to install such mechanisms, the City shall give thirty (30) days prior written notice to Redeveloper. SECTION 5.15. Easements for Encroachment. The Parties hereto ti•,► hereby grant, for their mutual benefit, mutual and reciprocal easements appurtenant to the Convention Center, the Hotel and the Garage Facilities, for encroachment to the extent necessary to permit full use and enjoyment of their respective parcels of real property subsequent to any construction or reconstruction of the Convention Center, the Hotel or the Garage Facilities and insofar as such necessity arises out of vertical or lateral displacement of any of the improvements on said parcels of real property, provided that such easements do not permit any encroachment which would substan- tially interfere with the use and enjoyment of the Convention Center, the Hotel or the Garage Facilities. Such easements for encroachment shall include, without limitation, all improvements, footings, fittings, columns, foundations, girders, beams, walls, supports, roof and floor slabs, elevator shafts and pits, stairs, stairwells, ramps, driveways, walkways, mechanical equipment spaces, boiler stacks and flues, ducts, pipes, conduits, wires, cables, utility systems, sewer pipes, drains and drain pipes, aircraft warn- ing lights, antennae, and other apparatus necessary or convenient to -22- the support, existence, maintenance or safety of the Convention Center, the Hotel and the Garage Facilities. Such rights of encroachment shall exist whether such encroachment shall occur as a result of settling or shifting of the Convention Center, the Hotel and the Garage Facilities, or as a result of error in construction of same. SECTION 5.16. Prohibition Against the Construction and Development of Another Hotel Within the Vicinity. The City and then, i Agency hereby agree not to permit the development of another Hotel► X which is similar in size, operational standards, quality and general character to the Convention Center Hotel proposed to be built under"" this Agreement on any City and/or Agency owned property within a five (5) block radius of the Convention Center Hotel. This pro- hibition shall be in full force and effect for 75 years from the date of the execution of this agreement. ARTICLE VI. MAINTENANCE SECTION 6.01. Maintenance. The operation and maintenance of the Convention Center and the Hotel and the adjacent walkways, driveways, and landscaped areas shall be performed pursuant to the terms and conditions of the Operating Agreement. It is understood and agreed that the Operating Agreement may be supplemented by operating memoranda to be adopted and amended from time to time. ARTICLE VII. RESTRICTIONS AND PROHIBITIONS SECTION 7.01. Restrictions on Use. The Redeveloper shall: (a) Devote the Hotel and the Convention Center to, and -23- only to and in accordance with, the uses specified in the Redevelop- ment Plan, the Operating Agreement and this Agreement. (b) Not discriminate upon the basis of race, sex, marital status, color, creed, religion, national origin or ancestry in the sale, lease, sublease, rental or transfer, or in the use, occupancy, tenure, or enjoyment of the Hotel and the Convention Center, or any part thereof, nor shall the Redeveloper itself or any person claim- ing under or through it, establish or permit any such practice orw practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,^, subtenants, sublessees, or vendees of the Hotel and the Convention GT• Center, or any part thereof. (c) Include in all advertisements, including signs, for sale and/or rental of the whole or any part of the Hotel and the Convention Center the legend, "An Open Occupancy Building" in type or lettering of easily legible size and design. The words "Project" or "Development" may be substituted for the word "Building" where circumstances require such substitution. SECTION 7.02. Covenants Binding Upon Successors in Interest; Period of Duration. It is intended and agreed, and the Deed, the form of which is attached hereto as Attachment 3, shall expressly so provide, that the agreements and covenants provided in Section 7.01 hereof shall be covenants running with the land. Except as other- wise specifically provided in this Agreement, such covenants and agreements shall be binding to the fullest extent permitted by law and equity, for the benefit and in favor of, and shall be enforce- able by, the Agency, the City, and the owner of any other land (or -24- for an interest in such land) in the Project Area which is subject to the land use requirements and restrictions of the Redevelopment Plan, against the Redeveloper. It is further intended and agreed that the agreements and covenants of Article V and Section 7.01 hereof shall remain in effect as long as this Agreement or the Operating Agreement remains in effect or as otherwise specified. The terms "uses specified in the Redevelopment Plan" and "land use"Go referring to provisions of the Redevelopment Plan, or similar language in this Agreement, shall include the Land and all buildings�j thereon, and shall include all requirements or restrictions of the'J Redevelopment Plan pertaining to the Land. SECTION 7.03. Rights of Agency and City to Enforce. In amplification, and not in restriction of the provisions of the pre- ceding Section, it is intended and agreed that the Agency and the City shall be deemed beneficiaries of the agreements and covenants provided in Section 7.01 hereof, both for and in their or its own right, and also for the purposes of protecting the interests of the community and other parties, public or private, in whose favor or for whose benefit such agreements and covenants have been provided. Such agreements and covenants shall (and the Deed shall so state) run in favor of the Agency and the City for the entire period during which such agreements and covenants shall be in force and effect, without regard to whether the Agency or the City has at any time been, remains, or becomes an owner of any land or interest therein to, or in favor of which, such agreements and covenants relate. The Agency and the City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all of the rights and -25- remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant, to which it or any other beneficiaries of such agreement or covenant may be entitled. Any leases made by the Redeveloper shall include all applicable restrictions, covenants and conditions set forth in Sections 7.01, 7.04 and 7.05 of this Agree 1 ment. The Redeveloper, the Agency and the City agree to cooperate in enforcing such restrictions, covenants and conditions. �+ T SECTION 7.04. Equal Employment Opportunity. The Redeveloper`` agrees that during the construction of the improvements provided for in this Agreement that: (a) The Redeveloper shall not discriminate against any employee or applicant for employment because of race, sex, marital status, color, creed, religion, national origin or ancestry. The Redeveloper shall take the necessary Affirmative Action to ensure that applicants are employed and that employees are treated during employment without regard to their race, sex, marital status, color, creed, religion, national origin or ancestry. Such Affirmative Action shall include, but not be limited to, the following: employ- ment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Redeveloper agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Agency or the City setting forth the provisions of the non- discrimination clause. -26- (b) The Redeveloper shall, in all solicitations or adver- tisements for employees placed by or on behalf of the Redeveloper, state that all qualified applicants will receive consideration for employment without regard to race, sex, marital status, color, creed, religion, national origin or ancestry. (c) The Redeveloper shall comply with all applicable local, State and Federal laws and regulations. an (d) In the event of the Redeveloper's noncompliance with the nondiscrimination clause of this Section, or with any of said (J�j laws, rules or regulations, the Agreement may be cancelled, termina- ted, or suspended in whole or in part. (e) The Redeveloper shall include the provisions of sub- divisions (a) through (c) of this Section in every contract, and shall require the inclusion of these provisions in every subcontract entered into by any of its contractors, unless exempted by the applicable laws, rules or regulations and such provisions shall be binding upon each such contractor, subcontractor, or vendor, as the case may be. The Redeveloper shall take such action with respect to any construction contract or subcontract, as the Agency or the City may direct, as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Redeveloper becomes involved in, or is threatened with, litiga- tion with a subcontractor or vendor as a result of such direction by the Agency or the City, the Redeveloper may require the Agency or the City to enter into such litigation to protect its interests. SECTION 7.05. Prohibitions Against Assignment and Transfer. (a) Representations as to Redevelopment. The Redeveloper -27- represents and agrees that its acquisition of the Land, and its other undertakings pursuant to this Agreement, are, and will be used, for the purpose of redevelopment of the Land and not for speculation in landholding. The Redeveloper further recognizes: (1) the importance of the redevelopment of the Land to the general welfare of the community; (2) that the qualifications and identity of the Z"�' 1 Redeveloper are of particular concern to the community, the Agency and the City. The Redeveloper further recognizes that it is because of suchl'�' qualifications and identity that the Agency and the City are enter- ing into this Agreement with the Redeveloper, and, in so doing, is further willing to accept and rely on the obligations of the Redeveloper for the faithful performance of all undertakings and covenants hereby by it to be performed without requiring any addi- tional surety bond or similar undertaking for the performance of such undertakings and covenants, except as otherwise expressly provided for in Section 4.02 hereof. (b) Transfer and Assignment Prior to Issuance of Certi- ficate of Compliance. The Redeveloper shall not, prior to the issuance by the Agency and the City of the Certificate of Compliance for the construction of the improvements required hereunder, effect in any way a total or partial sale, assignment, conveyance or trans- fer of any kind of the Land or this Agreement, or any part thereof or interest therein, without the prior written approval of the Agency; provided, however, that the Redeveloper may effect the following transfers without Agency or City approval: ( 1 ) for the purpose of obtaining a qualified inves- tor or investors prior to the issuance of the Certificate of Compliance pursuant to Section 4.03, provided, however, (i) that such qualified investor or investors hold no more than a fifty percent (50%) aggregate interest in the development hereunder, and (ii) the original Redeveloper shall remain fully liable for the performance of all the duties, obligations, covenants and agreements hereunder, and (2) by way of security for the purpose of obtaining financing necessary to enable the Redeveloper to perform its obliga- tions with respect to making the improvements under this Agreement. (c) Transfer and Assignment Subsequent to Issuance of Certificate of Compliance. After the issuance by the Agency and the City of the Certificate of Compliance, the Redeveloper shall have the right to totally or partially sell, assign, convey or transfer the Land and the Hotel thereon and all easements and rights appur- tenant thereto to any qualified and financially responsible assignee or transferee. In such event, the Redeveloper shall also assign or transfer the Operating Agreement to such assignee or transferee subject to the written approval of the Agency and the City. The Agency or the City may require that any documents and instruments involved in effecting the transfer or assignment shall be submitted to the Agency and the City for approval, which approval shall not be unreasonably withheld. The City or the Agency may also require the assignee or transferee to assume, by written agreement, all of the obligations, covenants, conditions and restrictions imposed on the Redeveloper hereunder. 50M SECTION 7.06. Minimum Wage Rates for Laborers and Mechanics and Penalty. All laborers and mechanics employed upon the work covered by this contract shall be paid unconditionally and not less often than once each week, and without subsequent deduction or rebate on any account (except such payroll deductions as are made mandatory by law and such other payroll deductions as are permitted by the applicable regulations issued by the Secretary of Labor, On United States Department of Labor, pursuant to the Anti -Kickback 21 Act), the full amounts due at time of payment computed at wage rates not less than those contained in the wage determination decision of said Secretary of Labor regardless of any contractual relationship which may be alleged to exist between the Contractor or any sub- contractor and such laborers and mechanics. Redeveloper further agrees that this section shall inure to the benefit of the Agency and all laborers and mechanics employed upon the work covered by this contract as third party beneficiaries and that the Agency or any aggrieved employee may file an action in any court of competent jurisdiction against the Redeveloper or any of its contractors or subcontractors for the recovery of the difference between the wage rates actually paid and the wage rates legally required to be paid under the provisions of this section and any applicable regulations, statutes and laws and further agrees to pay reasonable attorney's fees and court costs if the Agency or employee prevails. ARTICLE VIII. DEFAULT SECTION 8.01. Default by Redeveloper. (a) In the event that subsequent to conveyance of the Land to the Redeveloper: -30- ( 1 ) the Redeveloper, prior to the issuance of the Certificate of Compliance pursuant to Section 4.03, shall default in, or violate, its obligations with respect to the construction of the improvements required by it hereunder (including the nature and the dates for the beginning and completion thereof), or shall abandon or substantially suspend construction work, and any such Z\D 1 default or violation, abandonment or suspension shall not be cured within ten ( 10 ) days after written demand by the Agency or the City O so to do; or (2) the Redeveloper, prior to the issuance of the Certificate of Compliance pursuant to Section 4.03, shall fail to pay real estate taxes or assessments on the Land or any part thereof when due, or any possessory interest taxes levied upon the land or any improvements constructed thereon, or shall place thereon any encumbrance or lien not authorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen's or mechanic's lien or any other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been paid, or the encumbrance or lien removed or discharged, or provision satis- factory to the Agency or the City made for such payment, removal or discharge, within ten (10) days after written demand by the Agency or the City so to do; provided, however, the Redeveloper shall have the right to contest, in good faith, by appropriate proceedings, any such lien or encumbrance, and to substitute an appropriate bond in lieu of the payment, removal, or discharge of such lien or encumbrance; or -31- (3) the Redeveloper shall default in any obligations or violate any covenants contained in the Operating Agreement; or (4) there is, prior to the issuance of the Certifi- cate of Compliance pursuant to Section 4.03, in violation of this( Z": Agreement, any transfer of the Land or this Agreement, or any part thereof, and such violation shall not be cured within ten (10) days after written demand by the Agency to the Redeveloper, the Agency shall ~ have the right to reenter and take possession of the Land and the Hotel and to terminate (and revest in the Agency) the estate con- veyed by the Deed to the Redeveloper, provided, however, that prior to any such action by the Agency the Redeveloper shall have the right to submit such question, dispute, controversy or misunder- standing to arbitration pursuant to Section 9.09 below. It is the intent of this subsection, together with the other provisions of this Agreement, that the conveyance of the Land to the Redeveloper shall be made upon, and that the Deed shall contain, a condition subsequent, to the effect that, in the event of any default, failure, violation, or other action or inaction by the Redeveloper specified in clauses (1), (2), (3) and (4) of this sub- section (a), failure on the part of the Redeveloper to remedy, end, or abrogate such default, failure, violation, or other action or inaction, within the period and in the manner stated in said clauses, the Agency at its option, but subject to the right of the Redeveloper to submit such question, dispute, controversy or mis- understanding to arbitration pursuant to Section 9.09 below, may declare a termination in favor of the Agency of the title, and of -32- all the rights and interest in the Land conveyed by the Deed to the Redeveloper. If the Agency records in the office of the County Recorder of San Bernardino County a written Declaration of Forfeiture referring to the Deed by which the Land is conveyed to the Redeveloper, then said Deed and conveyance is null and void, and all interest thereby conveyed shall forthwith and without further notice to the Redevel- oper become forfeited and shall revert to the Agency; provided, 1 4 however, that such condition subsequent and any revesting of title Qom, as a result thereof in the Agency shall always be subject to and C limited by, and shall not defeat, render invalid, or limit in any way (i) the lien of any mortgage authorized by this Agreement and executed for the purpose of obtaining funds to acquire and/or develop the Land, and (ii) any rights or interests provided in this Agreement for the protection of the holders of such mortgages. The Agency shall further have the right to retain, in addition the Con- struction Bonds (and any proceeds paid thereunder) as its property without any deduction, offset, or recoupment whatsoever. (b) Subject to the right of the Redeveloper to request arbitration pursuant to Section 9.09, the Agency shall have the right to institute such actions or proceedings as it may deem desir- able for effectuating the purposes of this Section, including also the right to execute and record or file with the County Recorder of San Bernardino County a written declaration of the termination of all rights and title of the Redeveloper in the Land and the revest- ing of title thereto in the Agency, provided that any delay by the Agency in instituting or prosecuting any such actions or proceedings -33- or otherwise asserting its rights under this Section 8.01 shall not operate as a waiver of such rights or to deprive it of, or limit, such rights in any way (it being the intent of this provision that the Agency should not be constrained, so as to avoid the risk of being deprived of, or limited in, the exercise of the remedy pro- vided in this Section because of concepts of waiver, laches, or otherwise, to exercise such remedy at a time when it may still hope W otherwise to resolve the problems created by the default involved); nor shall any waiver in fact made by the Agency with respect to any specific default by the Redeveloper under this Section be considered or treated as a waiver of the rights of the Agency with respect to any other defaults by the Redeveloper under this Section or with respect to the particular default, except to the extent specifically waived. (c) In the event that title to the Land shall revest in the Agency in accordance with the provisions of this Section 8.01, the Agency shall, pursuant to its responsibilities under the Community Redevelopment Law, use its best efforts to resell the Land (subject to such mortgage liens as provided in subsection (a) of this Section) as soon and in such manner as the Agency shall find feasible and consistent with the objectives of such Law, and of the Redevelopment Plan as hereafter amended from time to time, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the improvements or such other improvements in their stead as shall be satisfactory to the Agency and in accordance with the uses specified in the Redevelopment Plan, as hereafter amended from time to time. -34- Upon such resale of the Land, the proceeds thereof shall be applied: First: To reimburse the Agency, on its own behalf or on behalf of the City, for: (i) all costs and expenses incurred by the Agency, including, but not limited to, salaries of personnel, in connection with the recapture, management and resale of the Land ( but less any income derived by the Agency from the Land in connec- tion with such management); (ii) all taxes and assessments with respect to the Land (or in the event the Land is exempt from taxa- tion and assessment or such charges during the period of ownership thereof by the Agency, an amount equal to such taxes and assess- ments, or charges (as determined by proper assessing officials) as would have been payable if the Land were not so exempt) ; ( iii ) any payments made or necessary to be made to discharge any encumbrances or liens existing on the Land at the time of revesting of title thereto in the Agency or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Redeveloper; (iv) any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Land or the Convention Center, and (v) and any amounts otherwise owing the Agency by the Redeveloper. Second: To reimburse the Redeveloper up to the amount equal to: ( i ) the cash actually invested by it in making any of the improvements required by it under this Agreement less (ii) any gains or income withdrawn or made by it from this Agreement or from the Complex. -35- Third: Any excess remaining shall be retained by the Agency. SECTION 8.02. Default by Agency or City. In the event that the Agency or the City is unable to comply with each and every covenant and condition hereinabove set forth, with the exception of those covenants and conditions which are to be performed by the Redeveloper, the Redeveloper, at its option, but subject to the i right of the City to request arbitration pursuant to Section 8.04 a below, may require the Agency to repurchase the Land at a purchase C rice equal to all sums, P 9 plus interest, expended by the Redeveloper H' for the improvements on the Land or the Convention Center. SECTION 8.03. Vis Major. In the event of: (a) Fire, earthquake, act of God, vis major or other casualty; or (b) Destruction of the Complex or any part thereof; or (c) A strike, lockout, boycott or like obstructive action by employee or labor organization; or (d) The imposition by governmental action or authority of restrictions on the procurement of labor, conditional use, building or other permits, materials or which prevents the Redeveloper, the Agency and/or the City from discharging its duties and obligations hereunder: (1) The obligations of both Parties shall be suspen- ded for such period, the Parties shall cooperate to minimize any damages caused by such event, and (2) Neither Party shall be liable to the other, except that each Party shall be liable for its own share of costs of -36- the duties which it is required to perform hereunder which have already been incurred or contracted for at the time of the happening of such event; and, should any discretion be involved, each Party shall use its best efforts to minimize such costs, and (3) That if such event continues, or seems probable to continue, for one year or more, the Parties shall cooperate toW 1 terminate this Agreement in a manner which will minimize damages tom them as well as to any third Parties involved. �Q SECTION 8.04. Cumulative Remedies; Waivers. (a) The rights and remedies of the Parties to this Agree- ment, shall be cumulative, and the exercise by any Party of any one or more of such remedies shall not preclude the exercise by it, at the same or different times, or any other such remedies for the same default or breach or of any of its remedies for any other default or breach by any other Party. No waiver by any party with respect to the performance, or manner or time thereof, of any obligation of any other Party or any condition to its own obligation under this Agree- ment shall be considered a waiver of any rights of the Party making the waiver with respect to the particular obligation of the other Party or condition to its own obligation beyond those expressly waived and to the extent thereof, or a waiver in any respect in regard to any other rights of the Party making the waiver or any other obligations of the other Party. (b) The Redeveloper hereby waives, to the fullest extent permitted by law and equity, any and all claims or defenses other- wise available on the ground of its (or their) being or having become a person in the position of a surety, whether real, personal, -37- or otherwise, or whether by agreement or operation of law, includ- ing, without limitation, any and all claims and defenses based upon extension of time, indulgence, or modification of terms of contract. ARTICLE IX. GENERAL PROVISIONS SECTION 9.01. Agency and City Employees, Officials and W Members. No member, official, or employee of the Agency or the City shall have any financial interest, direct or indirect, in this Agreement, the Operating Agreement or the Land, nor shall any such, member, official or employee participate in any decision relating to this Agreement, the Operating Agreement or to the Land, which affects his financial interests or the interests of any corporation, partnership, or association in which he is, directly or indirectly, interested. No member, official, or employee of the Agency or the City shall be personally liable to the Redeveloper in the event of any default or breach by the Agency or the City or for any amount which may become due to the Redeveloper or on any obligations under the terms of this Agreement or the Operating Agreement. SECTION 9.02. Compliance with Law. Each party shall, at its expense, promptly comply with all laws, orders, judgments, injunc- tions, rules, regulations, permits, licenses and requirements of all federal, state or municipal governments having jurisdiction which are now or at any time hereafter may be applicable to its portion of the Land or any improvements thereon. In the event of any failure to so comply and in the event such failure causes or threatens to cause the revocation of any certificate of occupancy affecting any other portion of the Land or causes or threatens to cause legal -38- action to be brought against any other Party or affecting any other portion of the Land, the defaulting Party shall promptly and diligently correct such failure. In the event any defaulting Party fails to commence appropriate corrective action within ten (10) days after receipt of written notice from any other Party to commence to correct such failure (or immediately in the event any certificate of occupancy is in immediate threat of revocation), such other Party co may take such corrective action, and the defaulting Party shall reimburse the other Party for the cost of such corrective action,t� and said costs shall be assessed against the defaulting Party as a personal debt and obligation of such defaulting Party. SECTION 9.03. Notice. Any notice to be given by either Party to any other Party shall be given by certified mail, return receipt requested, postage prepaid, addressed as shown on its then current letterheads or by personal service. SECTION 9.04. Approvals. Whenever any approval or consent is required of any Party hereunder, such approval or consent shall not be unreasonably withheld. SECTION 9.05. Merger. None of the provisions of this Agree- ment are intended to or shall be merged by reason of any deed trans- ferring title to the Land from the Agency to the Redeveloper, and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. SECTION 9.06. Rights to Modify, Terminate, Amend. (a) This Agreement may be terminated, extended, modified or amended as to all of the Land or any part thereof, for which a Certificate of Compliance has not been issued, with the consent of -39- the Agency and/or the City and all parties then having an interest in the Land. No such termination, extension, modification or amendment shall be effective until a written instrument setting forth the terms of the same has been executed, acknowledged and recorded in the Office an of the County Recorder of San Bernardino County, California. � SECTION 9.07. Operating Memoranda. It is recognized that the CXR Q: redevelopment of the Project Area in accordance with the Redevelop- ment Plan will require a close degree of cooperation between the Agency, the Redeveloper and the City. It is further realized that experience will demonstrate changes that will be required in the project development, construction, maintenance and use of the Land and the Convention Center and that a certain degree of flexibility will be required; and it is to preserve such flexibility that certain items have been covered in this Agreement in general terms only, with the understanding that details were to be set forth in "operating memoranda." Each operating memorandum shall be approved by the Parties hereto and shall be attached hereto as an addendum and become a part hereof and may be changed and amended from time to time as necessary with further approval by the Parties hereto. SECTION 9.08. Partial Invalidity. If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstances shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, condition -40- and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. SECTION 9.09. Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction an thereof. SECTION 9.10. Enforcement --Costs, Attorneys' Fees. In the Qi O event of the bringing of any action by either party hereto as Gam' against the other hereon or hereunder, or for or by reason of the breach or any covenant, agreement, or condition on the part of the other party or arising out of this Agreement, then and in that event the party in whose favor final judgment shall be entered shall be entitled to have and recover from the other party reasonable attorneys' fees to be fixed by the court wherein such judgment shall be entered. SECTION 9.11. Execution. This Agreement is executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. -41- IN WITNESS WHEREOF, the parties hereto have caused this Disposition Agreement to be executed and attested by their proper officers thereunto duly authorized, all as of the day and year first above written. ATTEST: �� -- CITY CLERK APPROVED AS TO FORM: n CITY ATTORNEY gency oun RE -EXECUTED THIS .2, CITY OF SAN BERNARDINO, REDEVELOPMENT AGENCY OF CITY 0L SAN BEWARDINO�, a BY ecte dY of - 1982. FORNIA d ENGLISH ENTERPRISES, INCORPORATED "Redeveloper" Ad ERM A. L , PRESIDENT -42- ACKNOWLEDGEMENTS STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO d On � 2-!i94f? , before me, SANDRA A. LOWDER, a notary Public, personally appeared HERMAN A. ENGLISH personally known to me (or proved to me on the basis of satisfactory , evidence) to be the person who executed the within instrument as CZ) PRESIDENT OF ENGLISH ENTERPRISES, INC., �\! on behalf of the corporation therein named and acknowledged to me that the corporation executed it. d �.r r /OFFi'AAL SEAL) A. LOWDER W17SANDRA NOItiRt PUBLIC CALIFORNIA SAN BERNARDINO COUNTYon Expires Dec. 7, 1985 SANDRA A. LOWDER, NOTARY' PUBLIC STATE OF CALIFORNIA COUNTY OF SAN BERNARDI,NO On�_ c� Z I ICbefore me, SANDRA A. LOWDER, a Notary Public x personally appeared , personally known to me to be the persons who executed this instrument as Chairman and Secretary, respectively, of the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, and acknowledged to me that the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO executed it. (OrFic, AL SEAL) W SANDRA A. LOWDER NJIARY PUBLIC CALIFORNIA SAN BERNARDINO COUNTY FAY Commission Exp Dec. 7, 1985 ��•. -- an ra � ow er, i STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO ACKNOWLEDGEMENT SS. On this e-?�?)— day of - U 19 before me, a QC 2� Notary Public duly commissioned, qualified and acting within and for the Countv and State aforesaid, appeared in person the within named W. R. Holcomh and Shauna Clark, Mayor and City Clerk, respectively, of the Cite of San Bernardino, California, to me personally known, who state that they were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of the City. IN TESTIMONY THEREOF, I have hereunto set my hand and official seal this day of }� �; G,� -a -t 19 Z (OMNAL SEALI SANDRA A. LOWDER NUTARr PUBLIC CALIFORNIA ' SAN BERNARUVNO COUNTY My Commission Expires Dec. 7, 1985 ��' � � � _ rA- ----- -- -A All that certain real property in the City of San Bernardino, County of San Bernardino, State of California, described as: All and only that portion of the following described parcel within Block 13, City of San Bernardino, per Map recorded in Book 7 of Flaps, Page 1, in the Office of the Recorder of said County, lying vertically above an elevation of 1076.00 feet above sea level: BEGINNING at that certain point designated Point "D" in the boundary described in deed to the Redevelopment Agency of the City of San Bernardino, California recorded June 4, 1970 in Book 7455 of Official Records, Page 214, records of said County. thence North 89°55'49" West along said boundary 206.48 feet to the East line of "E" Street as described in deed to the City of San Bernardino recorded May 21, 1970, in Book 7447 of Official Records, Page 275, records of said County; thence South 00002'25" East along said East line 60.00 feet, to a point that bears North 89°55'49" West from that certain point designated Point "C" in said boundary; thence South 89°55'49" East 206.37 feet to a point that bears South 00°04'11" West from the point of beginning; thence North 00°04'11" East 60.00 feet to the POINT' OF BEGINNING. Contains 12,385 square feet, more or less. TOGETHER WITH an easement for vehicular ingress and egress over that portion of said Block 13, described as follows: COMMENCING at the intersection of a line that -is parallel with and 188.92 feet South of the North line of the above described real property, with the East line of said "E" Street, said intersection bears South 00002'25" East 42.42 feet and South 03°57151" West 86.70 feet from the Southwest corner of the above described real property; thence South 89°55'49" East along said parallel line 46.67 feet to the TRUE POINT OF BEGINNING; thence North 00°04"11" East 31.50 feet; thence South 89°55149" East 12.00 feet; thence North 59°38'54" East 28.99 feet; thence North 00°04111" East 82.74 feet to a point on the South line of the above described real property;. thence South 89°55'49" East along said South line 52.00 feet; thence South 00°04111" West 128.92 feet to a point on the above described parallel line; thence North 89°55149" West along said parallel line 89.00 feet to the TRUE POINT OF BEGINNING. Contains 8,053 square feet, more or less. For the purposes of this description, sea Level Datum of 1929 established by the U. as evidenced by a Brass Disk in the wall o set by the U. S. Coast and Geodetic Survey 1925" and having an elevation of 1048.548 established by the adjustment of 1956. ATTACHMENT 1 level shall be that Sea S. Coast and Geodetic Survey f the Andreson Building and marked 111048 Reset feet above sea level as H ! rw !_ ! i fti! �• t!t °r 3lsfii t - { ah i{If:::itl litFt�}t li3t?i{i1i3::: �i1 le7ii!!S!5 :: t} n`.::t It !tt rt' i�.i{F ,�....!S j'i��:tt n �:::f 1'} t •ii• �`i1�'' ::i;: rll� af:��1 i�r...il '.�` 1 is Lk1.-_..W 4 Y t - { ah i{If:::itl litFt�}t li3t?i{i1i3::: �i1 le7ii!!S!5 :: t} n`.::t It !tt rt' i�.i{F ,�....!S j'i��:tt n �:::f 1'} t •ii• �`i1�'' ::i;: rll� af:��1 i�r...il '.�` 1 is Lk1.-_..W r•. t� t - { ah i{If:::itl litFt�}t li3t?i{i1i3::: �i1 le7ii!!S!5 :: t} n`.::t It !tt rt' i�.i{F ,�....!S j'i��:tt n �:::f 1'} t •ii• �`i1�'' ::i;: rll� af:��1 i�r...il '.�` m s n 10 1 i t� N •, t!; .. 7 it •t tue ja 1 y. si r) air 3• 1 it FF 1 t 1 ? , m s n 10 1 i N 7 t t; ja 1 y. si r) air 3• 1 it i T i 1 1 ? , m s n 10 a fish G) I :' J p IM4- 17 lit t -lit V4A S Vic'^ ♦..'T� .r W FiN, 'I! 7 • � ft e Ajp I 4 � .r � r • .•� - �' � t ' ' a.o- ebb . ::, .. �7•c �_ :9 .s; W j'i •t! O- - - � 'R* •ter r ( (' p • .T ' � 1 � �. fes.-.�:_ . '�...,.� . C+ • � � _ ly ZE) RIM 11 10 I !� O W4 G IS 1M:11v 91 E477o' cw V 7t 6A L Ir i (D Q OCOO O CQ s, YR, z u : to I L i (D Q OCOO O CQ s, YR, z u yj I i Z. fit SRI 4 I. I:I f, E-1 iii10 10, 4 I. I:I f, E-1 a 3 - t10, j 3 �l n D- �r � - r I 3�e t s �•'i �Y iii �� =f II Y �I 1 Iilf i1 Bf Rt t .�, � - r I 3�e t s �•'i �Y iii �� =f II Y �I Recording Requested by: REDEVELOPMENT AGENCY When Recorded, Mail to: REDEVELOWNT AGENCY OF THE CITY OF SAN BERNARDINO, CA 300 North "D" St., Rm 320 San Bernardino, CA 92418 QD 1 GRANT DEED 1� O The REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA, ~ a r>ublic corporation, hereinafter called the GRANTOR, in consideration of the sum of. ;")VE HUNDRED FORTY THOUSAND AND NO/100 dollars ($140,000.00) to be pato by ENGLISH ENTERPRISES, INCORPORATED, hereinafter called the GRANTEE, and in further consideration of the covenants and conditions herein contained and -o be kept and performed by the Grantee, does hereby grant to the Grantee all that real property situated within the MEADOWBROOK-CENTRAL CITY PROJECT AREA, in the City of San Bernardino, County of San Bernardino, Stste C�I:f^,rr :,, �,--einafter called the "Pror1�'rtvll, descriheo+ in FYHIRIT "A.1 attached hereto. The GRANTEE does hereby acknowledge receipt of a copy of the Redevelopment Plan for the MEADOWBROOK PROJECT AREA approved by Ordinance No. 2233 of the City of San Bernardino, adopted on July 21, 1958, and the Redevelopment Play; foc the CENTRAL CITY PROJECT AREA approved by Ordinance No. 2649 of the Ci y of San Bernardino, adopted February 23, 1965, which are _ ATTACHMENT -3- Pa2e -1- hereinafter referred to as the •Redevelopment Plan", said Redevelopment Plan containing as a part thereof that certain Declaration of Restrictions which became effective with said Ordinance and which is hereinafter referred. to as the •Restrictions". a The Grantee, for itself, its successors and assigns, does hereby covenant and agree with, and for the benefit of, the Grantor, its successors and assigns, as follows: C V 1. Grantee, its successors and assigns, will hold, ~ occupy and use the aforesaid real property subject to and in accordance with all the terms, conditions, limitations, restrictions, requirements and covenants set forth in the Redevelopment Plan and the Restrictions. Said terms, conditions, limitations, restrictions and covenants "running with the land" and shall be binding for the benefit and in favor of, and be enforceable by, the Grantor, its successors and assigns, the City of San Bernardino, and any successor in interest to the Grantee of the Property or any part thereof, and the owner of any other land in the Project Area. 2. (a) The Grantee herein covenants by and for himself, his heirs, executors, administrators, and his successors and assigns, and every successor in interest to the Property, or any part thereof, and all persons claiming under or through them, that tht Grantee, and such successors and assigns, shall y (1) Devote the Property to, and on;y to and in accordance with, the uses specified in the Redevelopment Plan, and properly maintain the parking ATTACHMENT -3- Page -2 areas and landscaped areas and parkways on the property as shown on the plans and specifications approved by the Agency. (2) Not discriminate upon the basis -of age, race, sex, marital status, color, creed, religion, physical handicap, national origin, or ancestry in the sale, lease, sublease, rental or transfer or in the use, occupancy, tenure or enjoyment of the Property or any improvement erected or to be erected thereon, or any part thereof, nor shall the Grantee himself or any person claiming under or through him, 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 property, or any part thereof. (b) The foregoing agreements and covenants, as set forth in subdivision (a) of Section 2 of this Deed, shall be covenants running with the land, and they shall in any event, without regard to technical classification or designation, legal or otherwise, and except only as otherwise specifically provided in this Deed by binding to the fullest extent permitted by law and equity, for the benefit and -in favor of, and be enforceable by the Grantor, its duccessors and assigns, the City of San Bernardino, California, and any successor in interest to the Property or any part ATTACHMENT -3- Page -3- thereof, and the owner of any other land (or of an interest in such land) in the subject_ Project Area, which is subject to the land use requfr*m ents and restrictions of the assigns and every successor in interest to the Property, or any part thereof or any interest therein, and any party in possession or occupancy of the Property or any part thereof. It is ao C further intended and agreed that the agreement and V'- N covenant provided in subsection (1) of subdivision (a) of Section 2 of this Deed shall remain in effect for a period of forty five (45) years from the date upon which said Ordinance became effective, at which time such agreement and covenant shall terminate, and that the agreement and covenant provided in subsection (2) of subdivision (a) of Section 2 hereof shall remain in effect without limitation as to time provided, that such agreements and covenants shall be binding on the Redeveloper itself, each successor in interest to the Property, and every part thereof, and each party in possession or occupancy, respectively, only for such period as such successor or party shall have title to, or an interest in or possession or occupancy of, the Property or part thereof. The term "uses specified in the Redevelopment Plan" and "land use" referring to provisions of the tRedevelopment Plan, or similar language, in the Agreement shall include the land and all buildings, housing, and ATTACHMENT -3- Page -4- other requirements or restrictions of the In the event Grantee Redevelopment Plan pertaining to such land. performance 3. In amplification and not in restriction of, the undertakings for provisions of Section 2, hereof, it is intended and agreed that the a Grantor and its successors and assigns shall be deemed beneficiaries on the aforesaid real property within the CX of the agreements and covenants provided in said Section 2 hereof, C both for and in their or its own right and also for the purposes of F..► protecting the interests of the City and other parties, public or i Grantor and the Giantee, private, in whose favor or for whose benefit such agreements and 19 and hereinafter covenants have been provided. Such agreements and covenants shall to as the run in favor of the Grantor, for the entire period during which such agreements and covenants shall be in force and effect, without regard to whether the Grantor has at any time been, remains, or is an owner of any land or interest therein, or in favor of which, such agreements and covenants relate. The Grantor shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any actions or suits at law or in equity or other property proceedings to enforce the curing of such breach of agreement or covenant, to which it or any other beneficiaries of such agreement or covenant may be entitled. 4. In the event Grantee shall default in the performance of Grantee's undertakings for the construction of certain I"rovements on the aforesaid real property within the time and in thj manner set forth in that certain Disposition and Joint Development Agreement between the i Grantor and the Giantee, dated 19 and hereinafter referred to as the ATTACHMENT -3- Page-5- 'Agreement"; or if the Grantee shall fail to pay real estate taxes or assessments when due; or shall place thereon any encumbrance or lien unauthorized by the Agreement, or shall suffer any levy, lien, (x oir attachment to be made, or there is in violation of She Agreement, any transfer of the Property or any part thereof, the Agency shall C� then have the right to institute such actions or proceedings as it C may deem desirable for effectuatingthe purposes of this Section, H' provided that any delay by the Agency in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Section 4 shall not operate as a waiver of such rights or to deprive it of, or limit, such rights in any way (it being the intent of this provision that the Agency should not be constrained, so as to avoid the risk of being deprived of, or limited in, the exercise of any remedy provided in this Section because of concepts of waiver, laches, or otherwise, to exercise such remedy at a time when it may still hope otherwise to resolve the problems created by the default involved); nor shall any waiver in fact made by the Agency with respect to any specific default by the Redeveloper under this Section be considered or treated as a waiver of the rights of the Agency with respect to any other defaults by the Redeveloper under this Section or with respect to the particular default, except to the extent specifically waived. _ 5. (a) Promptly after completion of the improvements in accordance with the provisions of said Agreement, the Grantor will furnish the Grantee with an appropriate instrument so certifying. = Such certification by the Grantor shall be (and it shall be so provided in the certification itself), a conclusive determination of ATTACHMENT -3- Page -6- satisfaction and termination of the agreements and covenants in said Agreement and to Paragraph 4 of this Deed with respect to the obligation of the Grantee, and its successors and assigns, provided, that such certification and such determination shall not constitute evidence of compliance with, or satisfactions of, any obligation of the Grantee to any holder of a Trust Deed or mortgagee, or any insurer of a Trust Deed or mortgage, securing money loaned to finance the improvements or any part thereof. (b) The certification provided for in this Section shall be in such form as will enable it to be recorded with the County Recorder of San Bernardino County. If the Grantor shall refuse or fail to provide the certification in accordance with the provisions of this Section, the Grantor shall within 90 days after written request by the Grantee, provide the Grantee with a written statement, indicating in adequate detail in what respects the Grantee has failed to complete the improvements in accordance with the provisions of said Agreement or is otherwise in default and what measures or acts it will be necessary in the opinion of the Grantor, for the Grantee to take or perform in order to obtain such certification. 6. None of the provisions of said Agreement described in Section 4 hereof, are intended to or shall be merged by reason of this deed transferring title to the property from the Grantor to the Grantee in interest, and such deed shall not be deemed to affect or impair the provisions and covenants of said Agreement._ ATTACHMENT -3- Page -7- 1. IN WITNESS WHEREOF, the Grantor and the Grantee have executed this Deed by their respective officers thereunto duly qualified this _ day ofl�utiV<, 19 . GRANTOR: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA W. R.,)Wolcomb, Chairman Gary Val Osdel, Secretary APPROVED AS TO LEGAL FORM AND ADEnUACY: Wm. A. Mary Agency Counsel / GRANTEE: ENGLISH ENTERPRISES, INC. Herman A. En lish,, President ATTACHMENT -3- Page -8- Cr All that certain real property in the City of San Bernardino, County of San Bernardino, State of California, described as: All and only that portion of the following described parcel within Block 13, City of San Bernardino, per Map recorded in look 7 of Maps, Page 1, in the Office of the Recorder of said County, lying vertically above an elevation of 1076.00 feet above sea level: BEGINNING at that certain point designated Point "D" in the boundary described in deed to the Redevelopment Agency of the City of San Bernardino, California recorded June 4, 1970 in Book 7455 of Official Records, Page 214, records of said County: thence North 89°55149" West along said boundary 206.48 feet to the East line of "E" Street as described in deed to the City of San Bernardino recorded May 21, 1970, in Book 7447 of Official Records, Page 275, records of said County; thence South 00002125" East along said East line 60.00 feet, to a point that bears North 89°55'49" West from that certain point designated Point "C" in said boundary; thence South 89°55149" East 206.37 feet to a point that bears South 00°04111" West from the point of beginning; thence North 00°04111" East 60.00 feet to the POINT'OF BEGINNING. Contains 12,385 square feet, more or less. TOGETHER WITH an easement for vehicular ingress and egress over that portion of said Block 13, described as follows: COfV,IENCING at the intersection of a line that -is parallel with and 188.92 feet South of the North line of the above described real property, with the East line of said "E" Street, said intersection bears South 00°02'25" East 42.42 feet and South 03°57151" West 86.70 feet from the Southwest corner of the above described real property; thence South 89°55'49" East along said parallel line 46.67 feet to the TRUE POINT OF BEGINNING; thence North 00°04"11" East 31.50 feet; thence South 89055149" East 12.00 feet; thence North 59°38'54" East 28.99 feet; thence North 00004111" East 82.74 feet to a point on the South line of the above described real property; - thence South 89°55'49" East along said South line 52.00 feet; thence South 00°04111" West 128.92 feet to a point on the above described parallel line; thence North 89°55149" West along said parallel line 89.00 feet to the TRUE POINT OF BEGINNING. Contains 8,053 square feet, more or less. For the purposes of this description, sea Level Datum of 1929 established by the U. as evidenced by a Brass Disk in the wall o set by the U. S. Coast and Geodetic Survey 1925" and having an elevation of 1048.548 established by the adjustment of 1956. EXHIBIT "A" to ATTACHMENT 3 level shall be that Sea S. Coast and Geodetic Survey f the Andreson Building and marked 111048 Reset feet above sea level as CERTIFICATE OF COMPLETION FOR REDEVELOPER'S DISPOSITION AND JOINT DEVELOPMENT AGREEMENT WHEREAS, hereinafter called the "Redeveloper", has entered into an Agreement with the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA, hereinafter called the "Agency"; and WHEREAS, said Agreement, dated recorded on , 19 , in Book , 19 , was on page , in the Official Records of the County Recorder of the County of San Bernardino, Stare of California; and WHEREAS, the Agency agreed in Section of said Agreement to furnish the Redeveloper with an instrument certifying completion of said improvements in accordance with the provisions of said Agreement upon Redeveloper's completion thereof; and WHEREAS, the Agency, having considered the report and recommendations of its staff, has determined that the Redeveloper has fully satisfied its obligations for the construction of improvements on that certain parcel of real property more particularly described in Exhibit "A" attached hereto and by this reference made a part hereof. NOW, THEREFORE, the Agency in accordance with the Agreement and does hereby conclusively certify and give notice that the Redeveloper has fully satisfied, terminated, and completed, for itself, its successors and assigns, all covenants and agreements with respect to the obligation of Redeveloper for the construction of improvements, provided for in said Agreement upon the above ATTACHMENT -4- Page -1- No. 608 Aug 1982 described real property, located within the I Project Area. Q IN WITNESS WHEREOF, the Agency has caused this Certificate to be Q CT duly executed on its behalf and its seal to be hereunto affixed and attested on 1� this day of 19 (SEAL) APPROVED AS TO LEGAL FORM AND ADEQUACY: Agency Counsel REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA ATTACHMENT -4- Page -2- Chairman Secretary All that certain real property in the City of San Bernardino, County of San Bernardino, State of California, described as: All and only that portion of the following described parcel GC within Block 13, City of San Bernardino, per Map recorded in Book 7 of Maps, Page 1, in the Office of the Recorder of said County, lying vertically above an elevation of 1076.00 feet above N sea level: BEGINNING at that certain point designated Point "D" in the boundary described in deed to the Redevelopment Agency of the City of San Bernardino, California recorded June 4, 1970 in Book 7455 of Official Records, Page 214, records of said County: thence North 89°55149" West along said boundary 206.48 feet to the East line of "E" Street as described in deed to the City of San Bernardino recorded May 21, 1970, in Book 7447 of Official Records, Page 275, records of said County; thence South 00002'25" East along said East line 60.00 feet, to a point that bears North 89°55'49" West from that certain point designated Point "C" in said boundary; thence South 89°55149" East 206.37 feet to a point that bears South 00°04111" West from the point of beginning; thence North 00°04'11" East 60.00 feet to the POINT'OF BEGINNING. Contains 12,385 square feet, more or less. TOGETHER WITH an easement for vehicular ingress and egress over that portion of said Block 13, described as follows: COMMENCING at the intersection of a line that -is parallel with and 188.92 feet South of the North line of the above described real property, with the East line of said "E" Street, said intersection bears South 00°02'25" East 42.42 feet and South 03°57151" {Vest 86.70 feet from the Southwest corner of the above described real property; thence South 89°55'49" East along said parallel line 46.67 feet to the TRUE POINT OF BEGINNING; thence North 00°04"11" East 31.50 feet; thence South 89°55149" East 12.00 feet; thence North 59°38'54" East 28.99 feet; thence North 00004111" East 82.74 feet to a point on the South line of the above described real property;. thence South 89°55'49" East along said South line 52.00 feet; thence South 00°04111" West 128.92 feet to a point on the above described parallel line; thence North 89°55149" West along said parallel line 89.00 feet to the TRUE POINT OF BEGINNING. Contains 8,0S3 square feet, more or less. For the purposes of this description, sea level shall be that Sea Level Datum of 1929 established by the U. S. Coast and Geodetic Survey as evidenced by a Brass Disk in the wall of the Andreson Building set by the U. S. Coast and Geodetic Survey and marked "1048 Reset 1925" and having an elevation of 1048.548 feet above sea level as established by the adjustment of 1956. EXHIBIT "A" to ATTACHMENT 4 TodeveloPment 'Cency of the City ECORDM of Son bernardino, California 481 QI..1EST OF 323 Court Street, Rom 308 IIITVE„j;4 San fernardino, California • �,,, , . � �w rtz.N iL»'•� BECLARATION OF IMSTRICTIONS KW)W ALL ND 1Y THESE PRESEM : KC'.VULJ1Vi► w6822 rc-F 3 067 MY 17. 'm' 1: 23 ''� CFF 1:14 r.tr.7.PCs SA': 5 r.N•F.�'�� CO. CkL!r. =d COUNTY P.FCCR".;EF THIS DECLARATION, rde end dated this24_ day of Februar, , 19_by THE XcunLOPMENT AGENCY OF THE CITY Or SAN IIIWARDrNO, CALITORNIA, vbich for convenience shall ametisies be hereinafter designated and referred to as the "DECLARAMT", or the "Redevelopment Agency", witnesses that: WHEREAS, Declarant is the owner of that certain real prop- ti arty situated is the City of San Bernardino, Comity of San larnardino, State of California, which real property is within the boundaries of Declarant's Central City Project Area No. 1 (hereinafter called aj "Project"). N AND WHLT .AS, Declarant is about to sell, dispose or convey in portions some or all of said real property and desires in that behalf, O N for the benefit of itself and the several purchasers of lots and parcels of said real property, to prescribe certain standards relating to the use and occupation of such real property; THEREFORE, IN CONSIDERATION OF THE PREMISES, and for the uses and purposes herein set forth, said Declarant hereby declares that conveyances of all lots, parcels, and portions comprised in the above described real property shall he made and accepted upon condition that said land be devoted to the use provided in the Redevelopment Plan of the Project and the following express conditions, provisions, restrictions, and covenants hereinafter referred to as "conditions", wbich shall apply to and bind the parties t*zreto, their heirs, successors and assigns, imposed pursuant to a general plan for the improvement, protection, maintenance, ATTACHMENT -5- Page -1 'i and development of the above described property and each and *wry Go lotv parcel or portion thereof and each and every lot or parcel into 2U i N which the same is subdivided, which plan has been devised and designed Cr and will be at all times hereinafter waintained for the outual benefit of the owners of such land and of each and every part and parcal thereof and of each and every lot into which the same is subdivided which conditions being as follows, to—wit: 1. No building shall be parmitted to remain within the boundaries of the Project which does not or cannot be made to conform to the Redevelopment Plan for the Project. 2. Any and all plans for buildings, structures, appurtenances there- to, landscaping, architectural design, use, and location of buildings, shall be submitted to the Redevelopment Agency and approved by said Agcncy prior to construction. 3. No buildings, structures and/or appurtenances thereto shall be placed on any lot so that any portion thereof shall be closer to the property lines than those set back requirements set forth in the plan, or as required by any and all Ordinances of the City of San Bernardino whichever is the more restrictive. k. No building shall be placed or permitted to remain on any lot on the East side of ^E" Street south of Second Street so that any portion thereof shall be closer than 50 feet to the center line of "E" Street. S. No building shall be constructed adjacent to the scall to be constructed on Third Street and attached thereto less than two stories high and must be designed in such manner as to connect to the central air conditioning system. ATTACHMENT -5- Page -2- J GD 1 •. No building shall be eonstructed adjacent to the mall and attached thereto which does not provide for loading, unloading snd refuse removal in accordance with the master design of the Mail area of the Project as Sppraeed by the Redevelopment Agency. OD T. No parking areas shall be placed adjacent to City side walk areas =less such parking areas are separated from said side walk areas by a masonry wall not less than two and one half feet above side walk 0 grade or by a landscaped and maintained planting area approved by the Redevelopment Agency for the area. S. No sign shall be permitted to be installed, inscribed, affixed or painted on any buildings adjacent to and attached to the Mall unless such sign is in conformance with the general design of the Mall and approved by the Redevelopment Agency. 9. No sign shall be permitted to be constmcted, ATTLched, inscribed, affixed or painted on or to any building in the Project unless and until the design for such sign has been presented to and approved by the Redevelopment Agency as to location, size, design and construction. 10. The area between the City side walk and any and all buildings in the Project shall be paved to City of San Bernardino specifications and/or landscaped and maintained by the owner or owners of the lot as a condition of use. 31. All decisions and approvals or disapprovals by the Redevelopment Agency herein established shall be final and binding and no appeal_ to another Agency, Public Body or entity shall prevail. 12. Grade Height Neither the Grantee, nor any person or persons claiming under said grantee, ATTACHMENT -5- Page -3- Of said real Property sball at any time raise or lover the grade of any lot er lots conveyed to bia sore than the grade established or the Brad: to be established by the Redevelopment Atency. All of the foregoing covenants, conditions and restrictions set 1 twth in the above numbered sub -paragraphs 1 through 12, shall run vitt C7� the land and shall continue in full force and effect for a period of C forth (40) years. 13. No covenant, condition, or restriction shall by any instrument be executed or recorded by any purchaser, grantee, vendee, or lessee, of MY lot, parcel or part of said property whereby the use, occupancy, rental, lease or ownership thereof shall be denied to any person on account of race, religion, color, ancestry or national origin. Said covenant, condition, and resaiction against such disc-_ i=ina.icn on the basis of race, religion, color, ancestry, or national origin or any Wson shall be perpetual and shall apply to and be forever binding upon any purchaser, grantee, vendee, or lessee of any part of said property, his heirs, executors, administrators and assigns. PROVIDED, FURrArR, that if any covenant or condition or restriction or paragraph, section, sentence, Clause or phrase herein contained shall become illegal, null or void for any reason, or shall be held by any court of competent jurisdiction to be illegal or against Public policy, the remaining covenants, conditions, and rests ictions, paragraphs, sections, clauses, or phrases herein captained shall not be affected thereby and shall remain in full force and effect. PROVIDED, ALSO, that a breach of any of the foregoing covenants and conditions shall not defeat or render invalid the lien of any !Mortgage ATTACHMENT -5- Page -4- tn' WWNU iii wlAw 4 T4s &" IDW.. • Y ... �— . — - -- , - - - -- 4r- ar ate► part tbereol, said ssvenants ad eandi:ions shall bs Diadia; upon ad effective against any mabsevott visor Of said real: SCHEDULE OF PERFORMANCE approval a preliminary Master Site Plan and related documents for development of the entire Site. Approval of Master Site Plan. Agency shall Within 20 days after approve preliminary Master Site Plan and receipt by the Agency. related documents for the Site. Opening of Disposition Escrow. Agency and the Within 30 days after the Redeveloper shall open the Escrow for the Land Agency executes this concurrently with approval of the final plans. Agreement. Deposit of Deed and Disposition Price. Agency Prior to close of escrow. shall deposit deed of Parcel into escrow and Redeveloper shall deposit a First Trust Deed to the property into escrow. Conveyance of Parcel; Close of Escrow. Agency Upon close of escrow. shall convey title to the Redeveloper and Redeveloper shall accept conveyance of the Land. Submission -Preliminary Construction Drawings, Within 90 days after Agency Landscaping and Grading Plan. Redeveloper execution of this Agreement. shall prepare and submit to the Agency pre- liminary construction drawings, outline specifications and landscaping and grading plan for improvements on the Land. Approval -Preliminary Construction Drawings Within 30 days after receipt and Landscaping Plan. Agency shall approve by the Agency. or disapprove the preliminary construction drawings, outline specifications, and land- scaping and grading plan for the Land. Submission -Final Construction Drawings, Within 60 days after Agency Landscaping and Grading Plan. Redeveloper approval of Preliminary shall prepare and submit to the Agency final Construction Drawings. construction drawings and specifications, and final landscaping and grading plan for the Land. *The "Agreement" refers to the Disposition and Joint Development Agreement between the Redevelopment Agency of the City of San Bernardino and English Enterprises, Incorporated, of which this Attachment 6 is a part. ATTACHMENT -6- Action Date Execution of !Weenent by Agency. The Agency Within 20 days after the }� and City Council shall hold a public hearing Redeveloper signs this and authorize execution of the Agreement* and Agreement and delivers it O deliver Agreement to Redeveloper. to the Agency. Submission of Master Site Plan. Redeveloper On or before Agency execu- shall prepare and submit to the Agency for tion of the Agreement. approval a preliminary Master Site Plan and related documents for development of the entire Site. Approval of Master Site Plan. Agency shall Within 20 days after approve preliminary Master Site Plan and receipt by the Agency. related documents for the Site. Opening of Disposition Escrow. Agency and the Within 30 days after the Redeveloper shall open the Escrow for the Land Agency executes this concurrently with approval of the final plans. Agreement. Deposit of Deed and Disposition Price. Agency Prior to close of escrow. shall deposit deed of Parcel into escrow and Redeveloper shall deposit a First Trust Deed to the property into escrow. Conveyance of Parcel; Close of Escrow. Agency Upon close of escrow. shall convey title to the Redeveloper and Redeveloper shall accept conveyance of the Land. Submission -Preliminary Construction Drawings, Within 90 days after Agency Landscaping and Grading Plan. Redeveloper execution of this Agreement. shall prepare and submit to the Agency pre- liminary construction drawings, outline specifications and landscaping and grading plan for improvements on the Land. Approval -Preliminary Construction Drawings Within 30 days after receipt and Landscaping Plan. Agency shall approve by the Agency. or disapprove the preliminary construction drawings, outline specifications, and land- scaping and grading plan for the Land. Submission -Final Construction Drawings, Within 60 days after Agency Landscaping and Grading Plan. Redeveloper approval of Preliminary shall prepare and submit to the Agency final Construction Drawings. construction drawings and specifications, and final landscaping and grading plan for the Land. *The "Agreement" refers to the Disposition and Joint Development Agreement between the Redevelopment Agency of the City of San Bernardino and English Enterprises, Incorporated, of which this Attachment 6 is a part. ATTACHMENT -6- Act ion Approval -Final Construction Drawings, Land- scaping and Grading Plan. The Agency shall approve or disapprove the final construction drawings and specifications and landscaping and grading plan for the Land. Commencement of Redeveloper Improvements. Redeveloper shall commence construction of improvements on the Land. Completion of Redeveloper's Improvements. Redeveloper shall complete construction of improvements for the entire Land. ATTACHMENT -6- Page -2- Date Within 30 days after receipt by the Agency. Go I Within 90 days after Agency and other government approval of Final Construc- tion Drawings. Within 12 months after the commencement of construc- tion. SCHEDULE OF PERFORMANCE Action Date Execution of Agreement by Agency. The Agency and City Within 20 days after the Redeveloper Council shall hold a public hearing and authorize signs this Agreement and delivers it execution of the Agreement* and deliver Agreement to to the Agency. Redeveloper. Submission of Master Site Plan. Redeveloper shall prepare and submit to the Agency for approval a pre- liminary Master Site Plan and related documents for development of the entire Site. Approvel_of Master Site P1_gn. Agency shall approve preliminary Master Site Plan and related documents for the Site. Opening of Disposition Escrow. Agency and the Redeveloper shy -open the Escrow dor the Land concurrently with approval of the final plans. Deposit of Deed and Disposition Price. Agency shall deposit deed of Parcelinto escrow and Redeveloper shall deposit a First Trust Deed to the property into escrow. Conveyance of Parcel; Close of Escrow. Agency shall convey title to the Redeveloper and redeveloper shall accept conveyance of the Land. Submission-Preliminery Construction Drawinos. Landscapina and Grading Plan. Redeveloper shall prepare and submit to the Agency preliminary construction drawings, outline specifications and landscaping and grading plan for improvements on the Land. Approval -Preliminary Construction Drawings and Landscaping Plan. Agency shall approve or disapprove the preliminary construction drawings, outline specifications and land- scaping and grading plan for the Land. Submission -Final Construction Drawings, Landscaping and Grading Plan. Redeveloper shall prepare and submit to the Agency final construction drawings and specifications, and final landscaping and grading plan for the Land. Approval -Final Construction Drawings, Landscaping and Grading Plan. The Agency shall approve or disapprove the final construction drawings and specifications and land- scaping and grading plan for the Land. Commencement of Redeveloper Improvements. Redeveloper shall commence construction of improvements on the Land. Completion of Redeveloper's Improvements. Redeveloper shall complete construction of improvements for the entire land. On or before Agency execution of tw Agreement. y", Within 20 days after receipt by the Agency. Within 30 days after the Agency executes this Agreement. Prior to close of escrow. Upon close of escrow. Within 90 days after Agency execution of this Agreement. Within 30 days after receipt by the Agency. Within 60 days after Agency approval of Preliminary Construction Drawings. Within 30 days after receipt by the Agency. Within 90 days after Agency and other government approval of Final Cormtruction Drawings. Within 12 months after the commence- ment of construction. *The "Agreement" refers to the Disposition and Joint Development Agreement between the Redevelopment Agency of the City of San Bernardino and English Enterprises, Incorporated, of which this Attachment 6 is a part. ATTACHMENT -6-