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HomeMy WebLinkAboutARA D-154~~ -i ~ .. :`:.'J'~l' . A F w, i i' 1 f" ~ t~~ . ~;:~,,~.1 ~,4{~ "fly ~-k 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] RVPUB\SMY\53133 RECEIVED NOV 1 6 1998 DevelopmonY Services Economic Development Divisioo ~~ '31'.b ,`~~~ } 99 02051'73 ~+n~%l 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; RVPUB\SM1953133 -1- . 99 0205173 -1 (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 RVPUB\SMY\53133 -2- ~': ' ~~' 99 02051'73 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 RVPUB\SM1'\53133 -3- .I 99 02051'73 ~~Y.' 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. RVPUB\SMY\53133 '4' 1 99 02051'73 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 RVPUaA5~1Y~53133 'S' 99 02051"73 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. RVPIIB\SMY\53133 -6- ~' , ~ . 99 02051'73 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. RVPlIB15MYt53133 -7- ,~`. 99 0205173 f 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 RVPUB\SMY\53133 '8' .~ 99 0205173 ~ 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." RVPIIBVSMYV53133 -9- -~.,:,-- t~ ' 99 0205173 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: RVPUB\SMY\53133 - I ~- ' 99 02t~51'73 ~~ 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 RVPUB\SMY\53133 -11- ,~ 99 02051'73 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 RVPlJB\SM1153133 -12- ~ ~ ~~ 99 02051'73:;... ~ 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 RVPUB15MY153133 ' 13' ' ~ ' 99 02051'73. ~ ~' 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. RVPUB\SMY\53133 -14- 99 02051'73 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 _- ~ ~ ~ ~ i ,~~ ,~! /~~ /'i ~ i, /,// ~ /i %;' -.. I-~ ~ w ~~ ~~~~ o N y / r / _ ~ ~ O L r °' ~ i%;~~ ~ ~ ~ ~ ~,.L ; nbr;s~~d 43~oN ww,, _ W ~ ~, „ - ~ ~~ ~ _ ~ y~ ~ C ~~ i a> ~ ~P r « ~_ __ H W 'a C7 ~. L - _R - ~ ~ ~ d ~~w ~ ~ i ~ ,i ~C~ a ~ ~_ - -~ N R ~~yg~ ~ W ~ k. ~\ __ w J 1~~~ ~ R L ~~~4~ / ~ ~ R V ~ I ~J~' / / N e d ~y u ~= m / '' «s °u m s d Q 3 ~ o ny a;~u~r a;ueS 4i~oN ~'~ ~ ~ ~~' ~ ~~' aZ g ~ ~~ . -, , 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 ' , r '~ ..~' J 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