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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The Arcadia Redevelopment Agency
Attn: Executive Director
99 0205173
P.O.Box60021 6RECEIF!EL)
Arcadia, CA 91066-6021 AU3 ~ n ~;~,~~ /~ t~ p
CITY OF ARCADW AU{r ~ O ~~~`~
Exempt from Recording Fee per CITY CLERK
Government Code 6103 DovoVa,~monkacrvicca
Economin Dovolo~mtsn~ Dlviaion
(Space above for Recorder's Use)
R.E.I.
OWNER PARTICIPATION AGREEMENT
between
THE ARCADIA REDEVELOPMENT AGENCY
a California public agency
and
RECREATIONAL EQUIPMENT, INC.
a Washington corporation
:[Dated December 1, 1998 for reference purposes only]
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RECEIVED
NOV 1 6 1998
DevelopmonY Services
Economic Development Divisioo
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ARTICLE 1. EFFECTIVE DATE AND PARTIES
1.1 Effective Date of Agreement. This Agreement is dated December 1, 1998, for
reference purposes only. This Agreement will not become effective until the date ("Effective Date")
on which it has been (i) approved by the Agency's governing board; (ii) executed by the appropriate
authorities of the Agency and the Owner.
1.2 Parties to Agreement
1.2.1 The Agency. The address of the Agency is P.O. Box 60021, Arcadia,
California 91066-6021, Attention: Executive Director; telephone (626) 574-5408; facsimile (626)
447-3309.
"Agency", as used in this Agreement, means the Arcadia Redevelopment Agency and
any assignee of or successor to its rights, powers and responsibilities.
Agency represents and warrants to Owner that, as to the Agency's actual current
knowledge:
(i) The Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under
the Community Redevelopment Law (Health and Safety Code Section
33000 et seq.) ("CRL") of the State of California;
(ii) The individual executing this Agreement is authorized to execute this
Agreement on behalf of the Agency;
(iii) The Agency has taken all actions required by law to approve the
execution of this Agreement;
(iv) The Agency's entry into this Agreement and/or the performance of the
Agency's obligations hereunder does not violate any contract,
agreement, or other legal obligation of the Agency;
(v) The Agency's entry into this Agreement and/or the performance of the
Agency's obligations hereunder does not constitute a violation of any
state or federal statute or judicial decision to which the Agency is
subject;
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(vi) There aze no pending lawsuits or other actions or proceedings which
would prevent or impair the timely performance of the Agency's
obligations under this Agreement; and
(viii) The Agency has the legal right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby,
and the execution, delivery and performance of this Agreement have
been duly authorized and no other action by Agency is requisite to the
valid and binding execution, delivery and performance of this
Agreement, except as otherwise expressly set forth herein; and
As used in this Agreement, the term "Agency's actual current knowledge" shall mean, ;
and shall be limited to, the actual current knowledge of William Kelly, the Agency's Executive
Director, Don Penman, Deputy City Manager/Development Services Director, and Peter P. Kinnahan,
the City's Economic Development Administrator.
1.2.2 The Owner. The Owner is Recreational Equipment, Inc., a Washington
corporation. The address of the Owner for purposes of this Agreement is 6750 228th Street, Kent,
Washington 48032; telephone (253} 395-3780; facsimile (253) 395-4756.
Owner represents and warrants to Agency that, as to the Owner's actual current
knowledge:
(i) The Owner is a duly formed Washington corporation, qualified and
admitted to do business in the State of California;
(ii) The individual(s) executing this Agreement is/are authorized to
execute this Agreement on behalf of the Owner;
(iii) The Owner has taken all actions required by law to approve the
execution of this Agreement;
(iv) The Owner's entry into this Agreement and/or the performance of the
Owner's obligations hereunder does not violate any contract,
agreement, or other legal obligation of the Owner;
(v) The Owner's entry into this Agreement and/or the performance of the
Owner's obligations hereunder does not constitute a violation of any
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state or federal statute or judicial decision to which the Owner is
subject;
(vi) There aze no pending lawsuits or other actions or proceedings which
would prevent or impair the timely performance of the Owner's
obligations under this Agreement;
(vii) The Owner has the legal right, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby,
and the execution, delivery and performance of this Agreement have
been duly authorized and no other action by Owner is requisite to the
valid and binding execution, delivery and performance of this
Agreement, except as otherwise expressly set forth herein;
(viii) The Owner and its managerial personnel possess sufficient experience
and qualifications necessary to open and operate the Development
(hereinafter defined) as required by this Agreement; and
(ix) The Owner possesses sufficient funds and other capital necessary to
fully carry out and complete each and every one of the Owner's
obligations under this Agreement.
As used in this Agreement, the term "Owner's actual current knowledge" shall mean,
and shall be limited to, the actual current knowledge of Wally Smith, President/CEO, and Suzanne
Dullard, Esq.
All of the terms, covenants and conditions of this Agreement shall be binding on and .
shall inure to the benefit of the Owner and its permitted nominees, successors and assigns. Wherever
the term "Owner" is used herein, such term shall include any permitted nominee, assignee or
successor of the Owner.
The qualifications and identity of the Owner are of particular concern to the Agency,
and it is because of such qualifications and identity that the Agency has entered into this Agreement
with the Owner. No voluntary or involuntary successor-in-interest of the Owner shall acquire any
rights or powers under this Agreement except as expressly set forth herein. The Owner may not
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assign or transfer all or any part of this Agreement or the Property without the prior written approval
of the Agency, which may be given or withheld as provided in Section 4.12. `-~
ARTICLE 2. RECITALS ABOUT THE PLAN AND PROJECT
2.1 The Redevelopment Plan and Project Area. The City Council of the City of
Arcadia ("City") has approved and adopted a redevelopment plan ("Redevelopment Plan") for a
redevelopment project area known as the Central Redevelopment Project Area ("Project Area") by
its adoption of Ordinance No. 1490, as last amended on November 1, 1994.
This Agreement is subject to the provisions of the Redevelopment Plan as it now exists
and as it maybe subsequently amended. The Redevelopment Plan is incorporated by this reference.
The Project Area is located in the City of Arcadia, California; its boundaries aze
specifically described in the Redevelopment Plan.
2.2 Purpose of this Agreement. This Agreement implements the Redevelopment Plan
for the Project Area by providing for the construction and operation of an approximately 23,000
squaze foot first class single story commercial retail facility ("Development") on certain real property
("Property") located within the Project Area and more particularly described in Article 3. The
Development is more specifically described in the Scope of Development (Exhibit B).
The construction and operation of the Development pursuant to this Agreement is in
the best interests of the City and Agency and the health, safety, morals and welfare of its taxpayers
and residents and is in accordance with public purposes set forth in federal, state and local law and
regulation. Implementation of this Agreement will further the goals and objectives of the
Redevelopment Plan and the City's General Plan by strengthening the City's land use and social
structure and by alleviating economic and physical blight within the Project Area. The actions to be
undertaken pursuant to this Agreement are consistent with the Implementation Plan adopted by the
Agency pursuant to CRL Section 33490.
'-~ All section references shall be to sections of this Agreement unless otherwise stated.
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ARTICLE 3. THE PROPERTY
The Property consists of approximately 112,325 square feet, located in the City of Arcadia.
The Property is legally described on the attached Exhibit A-1 and shown on the map attached as
Exhibit A-2.
ARTICLE 4. DEVELOPMENT OF THE PROPERTY AND INCENTIVES
4.1. Scope of Development; Schedule of Performance. The Owner shall perform its
obligations with respect to the Development in accordance with the Scope of Development attached
as Exhibit B and Schedule of Performance attached as Exhibit C.
4.2 Design and Development Standards. The Property shall be developed by the Owner
as provided in the Scope of Development, this Agreement, and plans provided by the Owner and
approved by the Agency and the City pursuant to this Agreement.
4.3 Preparation of Concept and Site Plans and Related Documents. The Owner has
submitted site plans and related documents for the Development to the Agency and City. The Agency
Board approved the elevations and site plan in concept on November 3, 1998, subject to final
approval at a later date. The City is processing the Owner's plans for possible issuance of a building
permit. The Owner shall submit such additional drawings and related documents to the Agency and
City as may be reasonably requested for review and written approval prior to the time provided
therefor in the Schedule of Performance.
The Agency's staff and the Owner shall hold regular progress meetings to coordinate
the preparation and submission to the City of elevations, site plans and related documents. The
Agency's staff and the Owner shall communicate and consult informally as frequently as is necessary
to assure that the formal submittal of any documents to the City receive prompt consideration.
4.4 Agency Approval of Construction Plans, Drawings and Related Documents.
Agency staff shall have the right of review and approval of all construction plans, drawings and
-related documents (collectively, "Plans") for the development of the Property, including any proposed
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changes thereto. Agency staff shall review and approve or disapprove such Plans and any proposed
changes thereto within the time required by law. Any disapproval shall state in writing the reasons
for disapproval and the changes which Agency staff requests be made. Agency staff shall approve
the Plans provided that the Plans conform to this Agreement. The Owner, upon receipt of a
disapproval, shall revise such plans, drawings and related documents and shall resubmit them to
Agency staff within fifteen (15) days after receipt of notice of disapproval. Agency staff shall use
reasonable good faith efforts to expedite the City's processing and review of the Owner's plans, in a
manner consistent with statute, the City's Municipal Code and this Agreement.
Any changes to the Plans required by Agency staff shall not operate to extend the time
for performance of the Owner's obligations hereunder, unless such changes are necessary due to
Agency staff-initiated deviations from the Scope of Development. Agency staff and the Owner shall
confer in good faith regarding appropriate time extensions for Agency-initiated changes.
4.5 Construction and Development Schedule of Performance. The Owner shall begin
and complete all construction and development within the times specified in the Schedule of
Performance or such reasonable extension of said dates as maybe granted by the Agency. In addition
to extensions of time provided by express provisions of this Agreement, the Schedule of Performance
may be revised from time to time as mutually agreed upon in writing between the Owner and the
Agency.
From time to time during the period of construction and as reasonably requested by
the Agency, the Owner shall report to the Agency on the progress of construction. The reports shall
be in such form and detail as may reasonably be required by the Agency and shall include construction
photographs taken since the last report.
4.6 Cost of Construction. Except as provided in Section 4.7, the costs and expenses of
constructing and operating the Development, including, without limitation, constructing all required
on- and off-site improvements, and providing all utilities therefor, shall be borne by the Owner at its
sole cost, expense, and liability.
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4.7 Agency Grant.
4.7.1 Public Infrastructure Improvements. Provided that the Owner is not in
material uncured default of any term of this Agreement, within fourteen (14) days following the
issuance of a final certificate of occupancy by the City for the Development, the Agency shall grant
to the Owner the sum of Forty Thousand dollars ($40,000), which Owner may use for any purpose
related to the construction or operation of the Development. It is the Agency's and the Owner's
understanding that the Owner may use such amount to reimburse itself for the costs of public
infrastructure improvements required to be constructed and/or installed as part of the Development,
although the Owner is not obligated to use such grant for such purpose.
4.7.2 Asbestos Removal. Provided that the Owner is not in material uncured
default of any term of this Agreement, within fourteen (14) days following the issuance of a final
certificate of occupancy by the City for the Development, the Agency shall grant to the Owner the
sum of Twenty Thousand Dollars ($20,000), which Owner may use for any purpose related to the
construction or operation of the Development. It is the Agency's and the Owner's understanding that
the Owner may use such amount to reimburse itself for the costs of any asbestos removal required
in connection with construction of the Development, although the Owner is not obligated to use such
grant for such purpose.
4.S Indemnity. The Owner shall defend, indemnify and hold the Agency and the City,
and their officers, directors, agents, servants, attomeys, employees and contractors harmless from and
against all liability, loss, damage, costs, or expenses (including reasonable attorney's fees and court
costs) arising from or as a result of the death of any person or any accident injury, loss or damage
whatsoever caused to any person or to the property of any person and which shall be, or alleged to
be, duectly or indirectly caused by any acts done thereon or any errors or omissions of the Owner or
its officers, directors, agents, servants, attorneys, employees or contractors. The Owner shall not be
responsible for (and such indemnity shall not apply to) any acts, errors or omissions directly or
indirectly caused by the Agency or the City, or their respective officers, directors, agents, servants,
attomeys, employees or contractors. The Agency and the City shall not be responsible for any acts,
errors or omissions of any person or entity under this Agreement except the Agency and the City and
their respective officers, agents, servants, employees or contractors.
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4.9 Insurance. Prior to the commencement of construction of the Development, the
Owner shall furnish or cause to be furnished to the Agency duplicate originals and appropriate
endorsements to the Owner's comprehensive general liability and automobile insurance policies in the
amounts set forth below, naming the Agency and the City as additional or co-insureds:
(a) $1,000,000 for any one person; and
(b) $3,000,000 for any one occurrence; and
(c) $1,000,000 for any property damage.
The policies shall be "occurrence", not "claims made" policies and shall be primary and non-
contributing to any insurance that the Agency may elect to obtain. Such policies shall contain a full
waiver of subrogation clause. The policies shall be issued by a carrier admitted to do business in
California, with a Best's rating of B+VII or better. Said policies shall provide that they shall not be
canceled or reduced in types of coverage or amount of coverage without at least thirty (30) days prior
written notice to the Agency. The policy amounts set forth above shall not limit or define the extent
of the Owner's indemnity liability pursuant to Section 4.8 or any other provision of this Agreement,
or arising as a matter of law or at equity.
Upon Agency's request, the Owner shall also furnish or cause to be furnished to the
Agency evidence satisfactory to the Agency that any contractor with whom it has contracted for the
performance of work on the Development cazries workers' compensation insurance as required by
law.
The Owner shall also maintain all-risk course of construction insurance, insuring the
Owner against all risk (including earthquake) of loss or damage to the Development. The obligations
set forth in this Section shall remain in effect until a Certificate of Completion has been issued for the
Development.
4.10 Governmental Permits and Compliance With Laws. Before commencement of
construction or development of any buildings, structures or other work of improvement upon the
Property, the Owner shall, at its own expense, secure or cause to be secured any and all permits,
entitlements, or other approvals which may be required by or from the City or any other governmental
agency with jurisdiction over the Development. The Agency shall provide reasonable non-financial
assistance to the Owner in securing these permits or approvals. The Owner shall carry out the
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construction of the Development in conformity with all applicable laws, including all applicable
federal and state labor and safety standards.
4.11 No Discrimination. The Owner, for itself and its successors and assigns, agrees that
the Owner will not discriminate against any employee or applicant for employment because of sex,
marital status, race, color, religion, creed, national origin, or ancestry, and that the Owner will comply
with all applicable local, state and federal fair employment laws and regulations.
The Owner covenants and agrees for itself, its successors, its assigns and every
successor in interest to the Property or any part thereof, that there shall be no discrimination against
or segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure
or enjoyment of the Property, nor shall the Owner itself, or any person claiming under or through it,
establish or permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use of occupancy of tenants, lessees, subtenants, sublessee or vendees
of the Property. The foregoing covenants shall run with the land and shall remain in effect in
perpetuity.
All deeds, leases or contracts relative to the Property or the improvements constructed
thereon shall contain or be subject to substantially the following nondiscrimination or non-segregation
clauses, pursuant to California Health and Safety Code Section 33435 and 33436.
4.11.1 In deeds: "The grantee herein covenants by and for himself, his heirs,
executors, administrators, and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee
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 in the land herein conveyed. The
foregoing covenants shall run with the land in perpetuity."
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4.11.2 In leases: "The lessee herein covenants by and for himself, his heirs,
executors, administrators and assigns, and all persons claiming under or through him, and this lease
is made and accepted upon the subject to the following conditions: That there shall be no
discrimination against or segregation of any person or group of persons, on account of race, color,
creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring,
use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee 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 land herein leased."
4.11.3 In contracts: "There shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex, marital status, national
origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land, nor shall the transferee 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 land."
4.12 Prohibition Against Transfer. Prior to the issuance of a Certificate of Completion
(hereinafter defined) for the Development, the Owner shall not, except as permitted by this Section
or Section 4.13, assignor attempt to assign this Agreement or any right or obligation herein, nor
make any total or partial sale, transfer, conveyance or assignment of the Property or the
improvements thereon, without prior written approval of the Agency, which may be given or withheld
in the Agency's reasonable discretion. In determining whether to approve of such a partial sale,
transfer, conveyance or assignment of the Property or the improvements thereon the Agency shall
evaluate: (i) the financial ability of the proposed transferee to own and operate the Development and
to meet the Owner's obligations under this Agreement; and (ii) the fitness and experience of the
proposed transferee and its senior managerial personnel to own and operate the Development.
The foregoing prohibition shall not apply to Sections 4.12. I or 4.12.2, provided the
Owner shall first notify the Agency in writing of the proposed action. The actions to which this
exception applies are:
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4.12.1 The granting of easements or permits to facilitate the development of
the Property; or
4.12.2 The assignment of all ofthe Owner's rights and obligations hereunder,
or the sale, transfer or ]ease of the entirety of the Property and any
improvements thereon to an entity formed for the purpose of
constructing and operating the Development, provided that the
majority voting and ownership interest in such entity is held by Owner.
Any such assignment, sale, transfer or conveyance pursuant to this
Section 4.12.2 shall not relieve the Owner of liability for the timely
and faithful performance of any assigned obligation, absent an express
agreement between the Agency, the Owner and the third party
transferee to the contrary.
No unpermitted sale, transfer, conveyance or assignment of all or any portion of this
Agreement or the Property shall be deemed to relieve the Owner or any other party from any
obligation under this Agreement, nor shall any such unpermitted sale, transfer, conveyance or
assignment transfer any rights in the Property or this Agreement.
4.13 Permitted Encumbrances. Section 4.12 notwithstanding, Owner shall not, at any
time prior to the recordation of a Certificate of Completion, grant or permit any mortgage, deed of
trust, sale and leaseback or any other form of conveyance or encumbrance in connection with the
financing and development of the Property (a "Lien") other than a Permitted Encumbrance, as
hereinafter defined.
For purposes hereof, a "Permitted Encumbrance" is any Lien which secures financing:
(i) provided to Owner by a nationally chartered bank or any finance subsidiary thereof, an insurance
company (or affiliate thereof) rated at least B+ XII by A.M. Best; (ii) providing sufficient funds to
permit the construction of the Development; (iii) collateralized by the Property; (iv) with respect to
which the Agency receives written notice prior to the recordation of any documentation recording
such Lien; and (v) with respect to which the lender agrees to give the Agency written notice
concurrent with notice to Owner of any default under any of the financing documents pertaining to
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such Lien and the right to cure such default within any cure period afforded Owner by such lender
or by law.
Nothing in this Agreement shall be deemed to obligate the holder of any Permitted
Encumbrance to construct the Project or to guarantee such construction. Nothing in this Agreement
shall be deemed to permit or authorize any such holder to develop the Property or construct
improvements thereon except in strict compliance with this Agreement. Any right, title and interest
in the Property (or any portion thereof) acquired by any means by any holder of a Lien, or by such
holder's assignees or successors, shall be subject to the terms and provisions of this Agreement.
The word "Lien" means all customary modes of financing real estate acquisition,.
construction and land development.
4.14 Certificate of Completion. Upon the Owner's receipt of a final Certificate of
Occupancy issued by the City for the Development, the Owner shall be entitled to receive a
Certificate of Completion from the Agency, in a form reasonably acceptable to the Agency and the
Owner. The Certificate of Completion shall be a conclusive determination of satisfactory completion
of all of the improvements required to be completed under this Agreement for the Development. The
Certificate of Completion shall be in such form as to permit it to be recorded in the Los Angeles
County Recorder's Office. A Certificate of Completion will not constitute (i) evidence of compliance
with or satisfaction of any financial obligation of the Owner to any holder of a mortgage or any
insurer of a mortgage, or (ii) a notice of completion as referred to in California Civil Code Section
3093.
4.15 Covenants Running With the Land.
4.15.1 No Conveyance to Tax Exempt Entity. The Owner covenants and agrees
for itself, its assigns and all voluntary and involuntary successors in interest to
the Property or any part thereof, that, during all times that the Agency is
permitted to receive property tax increment from the Project Area pursuant
to CRL Section 33670 (as that statute may be substituted or amended), the
Property or any portion thereof may not be used, transferred; conveyed,
assigned, leased, orlease-backed for any use that is partially or wholly exempt
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from the payment of real property taxes or which would cause the exemption
of all or any portion of such real property taxes.
4.15.2 Opening and Operation Covenant. Owner covenants and agrees for itself,
its successors, its assigns and all voluntary and involuntary successors in
interest to the Property or any part thereof, that the Owner will construct and
open the Development as required by this Agreement, and, for a period of two
(2) years following the issuance of a Certificate of Completion, the Owner will
continuously operate the Development as provided in this Agreement.
4.15.3 Maintenance Covenant. The Owner covenants and agrees for itself and all
voluntary and involuntary successors in interest to the Property (or any part
thereof), that the Owner shall maintain, or cause to be maintained, the interior
and exterior appearances of the Property and the Development in a good
condition, ordinary wear and tear excepted, free from an accumulation of
trash or other debris, and shall promptly remove, or cause the removal of, all
graffiti placed upon the Property; the Owner shall also maintain, or cause to
be maintained, the landscaping upon the Property in a good condition, and
shall insure that all irrigation systems are functioning properly and that all
dead or diseased landscaping material is promptly replaced.
Upon breach by the Owner of the covenant set forth in this Section 4.15.3,
and the Owner's failure to cure such default within thirty (30) days following
written notice to the Owner, the Agency, its agents, employees and
contractors shall have the right to enter upon the Property to take such
actions as are necessary to cure such default on the Owner's behalf. The
Owner shall reimburse Agency for all internal and third party costs and
expenses incurred by the Agency with respect to such cure within ten (10)
days following Agency's written demand therefor. If the Owner fails to pay
within the time provided, such costs and expenses shall be a lien upon the
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Property, as provided by California Civil Code Section 2881. The Agency
may enforce and foreclose such lien in any manner legally allowed.
The maintenance covenant ofthis Section 4.15.3 shall remain in effect for the
effective life of the Redevelopment Plan, as it currently exists or as it may be
amended, and shall thereafter terminate.
The covenants set forth in Section 4.11 and Sections 4.15.1 through 4.15.3 touch and
concern the Property, and every part thereof, and constitute covenants running with the Property and
every part thereof. These covenants maybe enforced by the Agency or the City (as an intended third
party beneficiary), regardless of whether the Agency or the City currently or continue to own an
interest in any property within the Project Area.
The Owner irrevocably stipulates and agrees that breach of any of the covenants set
forth in Section 4.11 or Sections 4.15.1 through 4.15.3 will result in great and irreparable damage
to the Agency and the City, will violate the public policy and the purposes of the CRL, and will result
in damages to the Agency and the City which are either impracticable or extremely difficult to
quantify. Accordingly, upon the breach of any covenant set forth in Section 4.11 or Sections 4.15.1
through 4.15.3, the Agency may institute an action for injunctive relief and/or for damages
attributable to such breach.
The covenants set forth in Section 4.11 and Sections 4.15.1 through 4.15.3 constitute
obligations of the owner of the Property or any portion thereof. Neither the Owner nor any voluntary
or involuntary successor in interest shall have any liability under this Agreement for the breach of any
of the covenants described above, if such breach occurs at any time following the Owner's or .
successor's cessation of ownership of the Property.
4.16 Rights of Access. For the purpose of assuring compliance with this Agreement,
representatives of the Agency and the City shall have reasonable right of access to the Property and
Development without charge upon two (2) days' prior written notice.
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ARTICLE 5. DAMAGES AND
5.1 Notice and Opportunity to Cure. If either party to this Agreement believes that the
other party has failed to perform any obligation of that party in accordance with the terms of this
Agreement, the party alleging the default shall provide written notice ("Default Notice") to the other
party, setting forth the nature of the alleged default. The party claimed to be in default shall have:
(i) with respect to a default involving the payment of money, ten (10) days after its receipt of the
Default Notice to completely cure such default, and (ii) with respect to any other type of default,
thirty (30) days from the receipt of the Default Notice to completely cure such default or, if such
default cannot reasonably be cured within such thirty (30) day period, to commence the cure of such
default within the thirty (30) day period and diligently prosecute the cure to completion thereaRer.
If the party alleged to be in default fails to cure, or commence to cure (if applicable),
as provided in the preceding paragraph, the party alleging the default may exercise such rights and
remedies as provided for in this Agreement.
5.2 Termination. In addition to all other rights and remedies granted to the parties under
this Agreement or available to them in equity or at law, either party may terminate this Agreement
and all of its obligations hereunder without cost or liability upon the other party's breach of a material
term of this Agreement and its subsequent failure to cure such default as provided in Section 5.1.
5.3 Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise
provided by a specific term of this Agreement, the rights and remedies of the Agency and the Owner
under this Agreement aze nonexclusive, and all remedies hereunder may be exercised individually or
cumulatively. In addition to those remedies expressly granted herein, the parties shall also have the
right to seek all other available legal and equitable remedies, including, without implied limitation,
general and consequential damages, unless otherwise expressly provided to the contrary herein.
RVPI18\SMY\53133 -15-
99 0205173 Ig
ARTICLE 6. GENERAL TERMS
6.1 Notices and Demands. All notices or other communications required or permitted
hereunder shall be in writing, and may be personally delivered or sent by United States registered or
certified mail, postage prepaid, return receipt requested, addressed to parties at the addresses
provided in Article 1, subject to the right of either party to designate a different address for itself by
notice similarly given. Any notice so given by registered or certified United States mail shall be
deemed to have been given on the second business day after the same is deposited in the United
States mail. Any notice not so given by registered or certified mail shall be deemed given upon
receipt of the same by the party to whom the notice is given.
6.2 Nonliability of Agency Officials and Employees. No board member, official,
contractor, consultant, attorney or employee of the Agency shall be personally liable to the Owner,
any voluntary or involuntary successors or assignees, or any lender or other party holding an interest
in the Property in the event of any default or breach by the Agency, or for any amount which may
become due to the Owner or to its successors or assignees, or on any obligations arising under this
Agreement.
6.3 Time Deadlines Critical; Extensions and Delays; No Excuse Due to Economic
Changes. Time is of the essence of this Agreement. In addition to specific provisions of this
Agreement, times for performance hereunder shall be extended where delays or defaults are due to
waz; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; acts of God or of third parties;
third party litigation; acts of a public enemy; epidemics; quazantine restrictions; and freight embargoes
(collectively, "Enforced Delays") provided, however, that the party claiming the extension notify the
other party of the nature of the matter causing the default; and, provided further, that the extension
of time shall be only for the period of the Enforced Delays. However, deadlines for performance may
not be extended as provided above due to any inability of the Owner to obtain or maintain financing
for the acquisition of the Property or for the construction of the Development.
avrue~snmssis3 -16-
99 0205173
6.4 Attorney's Fees. In the event of the bringing of an action or suit by a party hereto
against another party hereunder by reason of any breach of any of the covenants or agreements or any
inaccuracies in any ofthe representations and warranties on the part of the other party arising out of
this Agreement or any other dispute between the parties concerning this Agreement or the Property,
then, in that event, the prevailing party in such action or dispute, whether by final judgment or out
of court settlement shall be entitled to have and recover of and from the other party all costs and
expenses of suit or claim, including actual attorneys' fees. Any judgment or order entered in any final
judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit
or claim, including actual attorneys' fees (collectively, the "Costs") incurred in enforcing, perfecting
and executing such judgment. For the purposes of this Section, Costs shall include, without
limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (i) post
judgment motions, (ii) contempt proceedings, (iii) garnishment, levy, and debtor and third party
examination; (iv) discovery; and (v) bankruptcy litigation. The Section shall survive any expiration
or termination of this Agreement.
6.5 Submission of Documents and Other Actions for Approval. Except where such
approval is expressly reserved to the sole discretion of the approving party, all approvals required
hereunder by either party shall be not be unreasonably withheld.
6.6 Amendments to This Agreement. The Owner and the Agency agree to consider
reasonable requests for amendments to this Agreement which may be made by any of the parties
hereto, lending institutions, bond counsel or financial consultants. Any amendments to the Agreement
must be in writing and signed by the appropriate authorities of both the Agency and the Owner. The
Agency's Executive Director is authorized on behalf of the Agency to approve and execute minor
amendments to this Agreement, including, but not limited to, the granting of extensions of time to
the Owner.
6.7 Jurisdiction and Venue. Any legal action or proceeding concerning this Agreement
shall be filed and prosecuted in the appropriate California state court in the County of Los Angeles,
California. Each party hereto irrevocably consents to the personal jurisdiction of the court. The
Agency and the Owner each hereby expressly waive the benefit of any provision of federal or state
RVPUBVSMY153133 _ 17_
a
99 02Q5173 ~
law or judicial decision providing for the filing, removal, or change of venue to any other court or
jurisdiction, including, without limitation, federal district court, due to any diversity of citizenship
between the Agency and the Owner, due to the fact that either the City or the Agency is a party to
such action or proceeding, or due to the fact that a federal question or federal right is involved or
alleged. Without limiting the generality of the foregoing, the Owner specifically waives any rights
provided to it pursuant to California Code of Civil Procedure Section 394.
The Owner acknowledges that the provisions of this Section 6.7 are material consideration
to the Agency for its entry into this Agreement, in that the Agency will avoid the potential cost,
expense, and inconvenience of litigating in a distant forum.
6.S Interpretation. The Agency and the Owner acknowledge that this Agreement is the
product of mutual arms-length negotiation and drafting and that each party has been represented by
legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of construction
which provides the ambiguities in a document shall be construed against the drafter of that document
shall have no application to the interpretation and enforcement of this Agreement. In any action or
proceeding to interpret or enforce this Agreement, the finder of fact may refer to any extrinsic
evidence not in direct conflict with any specific provision of this Agreement to determine and give
effect to the intention of the parties.
6.9 Counterpart Originals; Integration. This Agreement maybe executed in duplicate
originals, each of which is deemed to be an original, but when taken together shall constitute but one
and the same instrument. This Agreement and its Exhibits represent the entire understanding of the
parties and supersedes all negotiations, letters of intent or previous agreements between the parties
with respect to all or any part of the subject matter hereof.
6.10 No Waiver. Failure to insist on any one occasion upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or
condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time
or more times be deemed a waiver or relinquishment of such other right or power at any other time
or times.
RVPIIR~S1M53133 -1 8-
' .. ld,`
' 99 02051'73
6.11 No Third Party Beneficiaries. The performance of the Agency's and the Owner's
respective obligations under this Agreement are not intended to benefit any party other than the
Agency or the Owner, except as expressly provided otherwise herein. No person or entity not a
signatory to this Agreement shall have any rights or causes of action against any party to this
Agreement as a result of that party's performance or non-performance under this Agreement, except
as expressly provided otherwise herein. The foregoing notwithstanding, the City of Arcadia is
declared to be an intended third party beneficiary of the Owner's obligations hereunder.
[Signatures on following pages]
RVPrfB\SMY\53133 -19-
... ~~
99 02051'73
ATTEST:
~~a ~~
ency Secretary.:
APPROVED AS TO FORM:
/ ~~
Michael H. filler
City Attorney
THE ARCADIA REDEVELOPMENT AGENCY
a California public agency
By:
Executive Director
xvec~e~snmsaiss -zo-
99 0205173
ATTEST:
Secretary
APPROVED AS TO FORM:
for Recreational Equipment, Inc.
RECREATIONAL EQUIPMENT, INC.
a Washington corporation
By:
Its:
By:
Its:
RVPUHlS!NY~53133 -21-
r., .
~~~~o~
STATE OF C~RNIA
COUNTY OF ~~~
On 1~' ~-~ , 1998, before me, the undersigned
notidry public, personally appeared~({V~S 1~1/{'~SFN'' ~~U[
~ personally known to me OR ~ proved to me on the basis
of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me
~~
99 02051'73 ,
CAPACITY CLAIMED BY SIGNER:
^ I ividual{s) r ~~, f
orporate t/" vY ~
Officer(s)
^ Partner(s)
^ Attorney-in-Fact
^ Trustee(s)
^ Subscribing Wi[ness
^ Guardian/Conservator
^ Other
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR EN77TY([ES)
that they executed the same in their authorized capacities,
and that by their signatures on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument. ~_ ~~.t,~ _
-eve-.
PUBLIC
RVPIIB\SM1'\53133
_22_
WITNESS my hand and official seal.
~'. r -~.
STATE OF CALIFORNIA
COUNTY OF Los,yncr~/mss
i
On~c. / , 1998, before me, the undersigned
notary public, personally appeared 4(/. ~t? ~B//
~ personally known to me OR O proved tom on the basis
of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me
99 020513
CAPACrrY CLAIII7ED BY SIGNER:
^ Individual(s)
^ Corporate
^ Partner(s)
^ Attorney-in-Fact
^ Trustee(s)
^ Subscribing Witness
^ GuardiaNConsetvator '
$Other Ey et.. t, ,.r,~rrtc Yvr
S[GNER IS REPRESENTING:
NAME OF PERSQN(S) OR ENTITY(IES) n
that they executed the same in their authorized capacities,
and that by their signatures on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
Si ture of Notary
Im
' ~ coMM .~ lo~a2a1~ ~
& i"..ra, '~,. Pukalio . CallfotNa
_m NotaN
z ~ ,=e~`~' LCS ANGELES COUNfY1999
My Comm. Expires JAN
RVPUB\Sb1Y153133 -23-
`f?
99 02051'73
EXHIBIT A-1
TO R.E,I. OWNER PARTICIPATION AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LOTS 1, 2, 3, 4, 5, 26 AND 27, THOSE PORTIONS OF LOTS 24, 25, AND 28, LYING
SOUTH OF THE LAND DESCRIBED IN EASEMENT DEED TO THE CITY OF ARCADIA,
RECORDED IN BOOK 9549 PAGE 253, OFFICIAL RECORDS, AND THOSE PORTIONS
OF LOTS 20, 21, 22 AND 23, LYING NORTH OF LAND DESCRIBED IN DEED TO THE
SOUTHERN PACIFIC RAILROAD COMPANY, RECORDED IN BOOK 15309 PAGE 14,
OFFICIAL RECORDS, ALL IN BLOCK 78 AS SHOWN ON THE MAP OF A PART OF
ARCADIA, IN THE CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
ALSO THE ALLEY IN SAID BLOCK 78, ADJOINING LOTS 3, 4, 25 AND 26 AS
VACATED BY ORDINANCE NO. 519, CITY OF ARCADIA.
PARCEL 2:
LOTS 6 AND 7, BLOCK 78 OF A PART OF ARCADIA SANTA ANITA TRACT, IN THE
CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND THOSE
PORTIONS OF LOTS 22 AND 23, BLOCK 78, LYING SOUTHERLY OF A LINE
PARALLEL WITH AND DISTANT NORTHERLY 5 FEET, MEASURED AT RIGHT
ANGLES, FROM THE SOUTHERLY LINE OF LOT 23 IN SAID BLOCK 78, AND ITS
EASTERLY PROLONGATION.
PARCEL 3:
THOSE PORTIONS OF LOTS 24, 25 AND 28, BLOCK 78 OF SANTA ANNTA TRACT, AS
SHOWN ON MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 28 OF SAID TRACT, THENCE
EAST ALONG THE NORTHERLY LINE OF LOTS 28 AND 25, 200.60 FEET TO THE
MOST NORTHERLY CORNER OF LOT 24 OF SAID TRACT; THENCE SOUTH 52
DEGREES 20 MINUTES EAST ALONG THE NORTHEASTERLY LINE OF SAID LOT,
7.64 90 FEET TO A POINT; THENCE SOUTHWESTERLY ALONG THE ARC OF A
CURVE CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 1116.01 FEET,
RVPUB\SM]~53133 A-1
,' ..
99 02051'73
210.63 FEET TO A POINT IN THE WESTERLY LINE OF AFOREMENTIONED LOT 28;
THENCE NORTH ALONG SAID LINE 44.23 FEET, MORE OR LESS TO THE POINT OF
BEGINNING.
RVPUB\SMY\53133 A-1
," ~ ..'' .
99 02051'73
EXHIBIT A-2
TO R.E.I. OWNER PARTICIPATION AGREEMENT
SITE MAP
[Attached]
RVPUH\SMri53133 A-2
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99 02051'73
EXHIBIT B
TO RE.I. OWNER PARTICIPATION AGREEMENT
SCOPE OF DEVELOPMENT
R E.I. Pazcel
The Owner shall develop an attractive, well maintained high quality, first class commercial retail
project consisting of a 24,000 sq. ft. R.E.I. Coop store with related required parking, lighting and
landscaping to Code.
The building shall be consistent with the colored elevations prepared by Mithun Partners, Inc.
transmitted October 13, 1998 and received on October 14, 1998, and with the plans and
elevations approved by the Agency in concept on November 3, 1998; e.g. exterior elevation along
Santa Clara and exterior elevation along Santa Anita.
Second Parcel
Should the R.E.I. pazcel be completed and the Owner will not begin construction on the second
building for thirty (30) days, the Owner shall plant and maintain the grass on the second 8,000 to
10,000 sq. ft. building footprint until construction begins on this building. The Second Parcel is
identified on the Site Map (Exhibit A-2).
RVPIIB~3NM$139 B-1
_. ~ .
~.:
EXHIBIT C
TO RE.I. OWNER PARTICIPATION AGREEMENT
SCHEDULE OF PERFORMANCE
~\
99 02051'73
Task ~~
Pre OPA Execution
• R.E.I. submits executed, notarized OPA to Agency Nov. 30, 1998
• Agency meeting on OPA,
environmental assessment Dec. 1, 1998
Post OPA Execution
• Agency forwards one executed OPA to R.E.I.; sends
second to Los Angeles County for recordation Dec. 11, 1998
• R.E.I. files final building plans with City (structural, mechanical,
electrical, etc., pays fees) Jan. 29, 1999
• Agency uses best faith efforts to have City issue permit Feb. 26, 1999
• R.E.I. begins construction Apr. 15, 1999
• R.E.I. building framing/roof complete June 16, 1999
• R.E.I. building, parking complete; Certificate of Occupancy
issued Aug. 16, 1999
• Agency pays grant to R.E.I. pursuant to Aug. 30, 1999
Section 4.7 of OPA
Second Parcel
R.E.I. landscapes and maintains 8,000 to 10,000 sq. ft.
second parcel per Exhibit B (Scope of Development), Sept. 30, 1999
unless R.E.I. has commenced construction of
building on Second Parcel prior to Sept. 30, 1999
RVPUB\SMY\53133 C-1
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I•
,9~ ~2~}51?3
LOS ANGELES COUNTY
CALIFORNIA
8:04 AM FEB 09 1999
SPACE ABOVE THIS LINE P.ESERVED FOR RECORDER S USE
TITLE(S)
FEE N/A N/A 0 2D 9_ 19 04 19
CODE
REC. NO. NO PCOR D.A. SURVEY NOTIF. INVOL NON
FEE PAGES TITLES FEE MON. LIEN CONF.
,~Q~ ~~ ~ O O 0 ~^~
V o ~
EXAMINER S INT.
Assessor s Identification Number (AIN)
To Be Completed By Examiner Or Title Company In Black Ink
- -
I,
Number of Parcels Shown
Revision Number