HomeMy WebLinkAboutDDA - ARA, Western Security Bank, Gary Morris, Church of the Nazarene RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The Arcadia Redevelopment Agency
P.O. Box 60021
Arcadia, CA 91066-6021
Attention: Executive Director
[Fee Exempt-Govt. Code§61031
(Space above for Recorder's Use)
AMENDED AND RESTATED
DISPOSITION AND DEVELOPMENT AGREEMENT
among
THE ARCADIA REDEVELOPMENT AGENCY
a California public agency,
WESTERN SECURITY BANK
a national banking association,
GARY MORRIS
a California limited liability company
and
THE LOS ANGELES DISTRICT ADVISORY BOARD
(CHURCH OF THE NAZARENE)
a California non-profit corporation
[Dated as of December 21, 1999 for reference purposes only]
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TABLE OF CONTENTS
• Page
1. PARTIES AND EFFECTIVE DATE 1
1.1 Parties to Agreement 1
1.1.1 The Agency 1
1.1.2 The Successor 1
1.1.3 The Assignee 1
1.1.4 Binding on Permitted Successors and Assigns 2
1.2 Effective Date. 3
2. RECITALS ABOUT THE PLAN AND PROJECT 3
2.1 The Redevelopment Plan and Project Area. 3
2.2 Purpose of this Agreement 4
2.3 Prior DDA 4
2.4 Prior Conveyance by Agency to Developer and Subsequent
Mesne Conveyances. 4
2.5 Developer's Prior Development Obligations and Legal Description
of Property. 5
3. SPECIAL TERMS 5
3.1 Effect of DDA with Respect to the Site and the Property 5
3.2 Scope of Development and Development of Property. 5
3.3 Schedule of Performance. 5
3.4 Amount of Insurance 6
3.5 Agreement Length and Exhibits. 6
4. STANDARD TERMS 6
4.1 Taxes and Assessments. 6
4.2 Soils Condition of the Property 6
4.3 Design and Development Standards 7
4.4 Preparation of Construction Drawings and Related Documents 7
4.5 Agency Approval of Plans, Drawings and Related Documents 7
4.6 Cost of Construction 8
4.7 Construction and Development Schedule of Performance 8
4.8 Indemnity and Insurance 8
4.9 Governmental Permits and Compliance With Laws• 9
4.10 No Discrimination 10
4.10.1 In deeds 10
4.10.2 In leases 11
4.10.3 In contracts 11
4.11 Rights of Access 11
4.12 Affirmation of Agency's Power of Termination and Amendment Thereto 12
4.12.1 Continuance of Existing Power of Termination 12
4.12.2 Property 12
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4.12.3 Agency Review of Property Grant Deed 15
4.12.4 Mortgagee Protection 15
4.12.6 Procedure for Documenting Revesting; Waivers 15
4.12.7 Stipulation and Contingent Creation of New Power of Termination 17
4.13 Prohibition Against Transfer 17
4.14 Permitted Encumbrances 18
4.15 Certificate of Completion 19
4.16 Covenants Running With the Land 20
4.16.1 Use Covenant 20
4.16.2 No Conveyance to Tax Exempt Entity 20
4.16.3 No Property Tax Contest. 21
4.16.4 Operation Covenant. 22
4.17 General Damages and Other Remedies 22
4.18 Notices and Demands 23
4.19 Nonliability of Agency Officials and Employees 23
4.20 Time Deadlines Critical; Extensions and Delays; No Excuse Due
to Economic Changes 24
4.21 Attorney's Fees 24
.4.22 Real Estate Commissions 24
4.23 Submission of Documents and Other Actions for Approval. 25
4.24 Amendments to This Agreement 25
4.25 Jurisdiction and Venue. 25
4.26 Interpretation. 26
4.27 Counterpart Originals; Integration. 26
4.28 No Waiver 26
4.29 No Unintended Third Party Beneficiaries 26
EXHIBIT 1-A Legal Description of Property
EXHIBIT 1-B Map of Property
EXHIBIT 2 Scope of Development
EXHIBIT 3 Schedule of Performance
EXHIBIT 4 Soils Condition Warranty
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1. PARTIES AND EFFECTIVE DATE
1.1 Parties to Agreement
1.1.1 The Agency. The Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized and existing under the Community
Redevelopment Law of the State of California. The address of the Agency is P.O. Box 60021,
Arcadia, CA 91066-6021; telephone number (818) 574-5408; facsimile number (818) 447-3309.
As used in this Agreement,"Agency"means The Arcadia Redevelopment Agency and
any assignee of or successor to its rights, powers and responsibilities.
1.1.2 The Successor. The Successor is Western Security Bank, a national
banking association. The address of the Successor for purposes of this Agreement is: 4100 W.
Alameda Ave.,Burbank,CA 91505;telephone number(818)843-0707;facsimile number(818)843-
8576.
The Successor represents and warrants to Agency that:
(i) it is duly formed, organized, existing and qualified to do business
in California,
(ii) the individual(s) executing this Agreement is/are authorized to
execute this Agreement on behalf of the Successor, and
(iii) the Successor has taken all actions required by law to approve the
execution of this Agreement.
1.1.3 The Assignee. The Assignee is a joint venture consisting of: (i) Gary
Morris("Morris"), a California limited liability company, and(ii)The Los Angeles District Advisory
Board (Church of the Nazarene) ("Church"), a California non-profit corporation. The obligations
•
and rights of the Assignee hereunder are the joint and several obligations and rights of Morris and
Church. The address of the Morris for purposes of this Agreement is: 135 No.Los Robles,Pasadena,
CA 91101;telephone number(626)577-6363;facsimile number(626)517-9612. The address of the
Church for purposes of this Agreement is: 1546 East Washington Boulevard, Pasadena, California,
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91104;telephone number(626)794-7104;facsimile number(626)798-3309. Notices given to either
Morris or Church shall be sufficient for notices required or allowed to be given to Assignee.
Morris represents and warrants to the Agency:
(i) it is a duly formed limited liability company,organized,existing and
in good standing under the laws of the State of California, and
qualified to do business in California
(ii) the individual(s) executing this Agreement is/are authorized to
execute this Agreement on behalf of the Assignee, and
(iii) the Assignee has taken all actions required by law to approve the
execution of this Agreement.
Church represents and warrants to the Agency:
(i) it is a duly formed non-profit corporation, organized, existing and
in good standing under the laws of the State of California, and
qualified to do business in California
(ii) the individual(s) executing this Agreement is/are authorized to
execute this Agreement on behalf of the Church, and
(iii) the Church has taken all actions required by law to approve the
execution of this Agreement.
1.1.4 Binding on Permitted Successors and Assigns. All of the terms,
covenants and conditions of this Agreement shall, as made applicable by the specific terms hereof,
be binding on and shall inure to the benefit of the Assignee and its permitted nominees, successors
and assigns. Wherever the term "Assignee" is used herein, such term shall include any permitted
nominee, assignee or successor of the Assignee.
The qualifications and identity of the Assignee and its partners 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 Assignee. No voluntary or involuntary successor-in-interest of
the Assignee or its partners shall acquire any rights or powers under this Agreement except as
expressly set forth herein. The Assignee may not assign or transfer all or any part of its rights and
obligations under this Agreement, or all or any part of the Property(hereinafter defined),without the
prior written approval of the Agency, which may be given or withheld as provided in Section 4.13.
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1.2 Effective Date. This Agreement will not become effective until the date ("Effective
Date") on which both of the following are true: (i) this Agreement has been approved by the
Agency's governing board; and(ii)this Agreement has been executed by the appropriate authorities
of the Agency, the Successor, and the Assignee; provided, however, that if Assignee fails to acquire
fee title to the Property by December 31, 1999, for any reason whatsoever (other than an uncured
material default of the Agency), and without regard to the fault or lack thereof of the Assignee or the
Successor,then any party to this Agreement may terminate this Agreement without cost, expense or
liability. Anything to the contrary in this Agreement notwithstanding, including, without implied
limitation, Sections 2.7 and 3.1 hereof, upon such termination, the DDA(hereinafter defined) shall
once again become effective as to the Property and all terms, provisions, and covenants of the DDA
shall once again apply to the Property as if this Agreement had never become effective.
This Agreement shall be executed by the appropriate authorities of the Successor and
the Assignee prior to its presentation to the Agency's governing board for consideration and possible
approval. If the Agency's governing board approves this Agreement, it shall be executed by the
Agency's designated authority within one (1) day following such approval and shall thereafter be
recorded in the official records of Los Angeles County.
If the Agency's governing board does not approve this Agreement on or before
December 21, 1999, or, if it approves this Agreement by said date but thereafter fails to execute this
Agreement on or before the one (1) day period set forth above, then either the Successor or the
Assignee may advise the Agency in writing that they are voiding their execution of this Agreement
and, upon such notice, this Agreement may not thereafter become effective.
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 known as the Central Redevelopment Project Area ("Project Area") by its
adoption of Ordinance No. 1490, as last amended on June 4, 1999.
This Agreement is subject to the provisions of the Redevelopment Plan as it now exists and
as it may be subsequently amended. The Redevelopment Plan is hereby incorporated by this
reference.
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The Project Area is located in the City of Arcadia, California; its boundaries are 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 development of the Property (hereinafter defined) by the
construction of two (2)three-story professional office buildings of not less than 19,000 square feet
each, over a subterranean parking deck, or (at Assignee's option and with the Agency's approval)
with a three (3) story parking deck between the office buildings, as defined in, and in accordance
with, the Scope of Development (Exhibit 2).
The development of the Property pursuant to this Agreement is in the best interests ofthe 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.
2.3 Prior DDA. The Agency and EMKAY Development, Inc.("Developer")are parties
to that certain agreement entitled"Disposition and Development Agreement"("Original DDA")dated
November 17, 1987,recorded as Instrument No. 87-1913901. The Original DDA has been amended
subsequent to its adoption, and the Developer's rights and obligations under the DDA as to certain
portions of the Site have been assigned by contract or operation of law to various successor entities,
including the Successor. As used in this Agreement, the term"DDA" means the Original DDA, as
amended prior to the Effective Date of this Agreement.
2A Prior Conveyance by Agency to Developer and Subsequent Mesne Conveyances.
Pursuant to the Original DDA, the Agency conveyed certain parcels of real property(defined in the
Original DDA as the "Site")to the Developer. The Site consisted of several subparcels, identified
in the Original DDA as "Parcels 1 through 3" and "Parcels D and E. The Successor acquired
Parcel D from one of the Developer's successors in interest at a trustee's sale following all legally
required procedures.
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2.5 Developer's Prior Development Obligations and Legal Description of Property.
Pursuant to the DDA, the Developer was required to develop the Site as a mixed use commercial
complex ("Development") consisting of hotel, office and restaurant uses, all as more particularly
described in the DDA and its attachments. Although the Developer constructed part of the
Development as required by the DDA,the Developer has not satisfied its obligations under the DDA
with respect to the development of Parcel D, i.e., the construction of not less than a 36,000 square
foot office building. Parcel D shall hereinafter be referred to in this Agreement as the "Property."
A legal description of the Property is attached as Exhibit 1-A and a map of the Property is attached
as Exhibit 1-B.
3. SPECIAL TERMS
3.1 Effect of DDA with Respect to the Site and the Property. From and after the
Effective Date of this Agreement, the Agency's, Successor's, and Assignee's rights and obligations
with respect to the Property will no longer be controlled by the DDA, but rather by the terms of this
Agreement and the provisions of that certain agreement entitled "Soils Condition Warranty,"which
is attached hereto as Exhibit 4 and which was attached as an Attachment to the Original DDA. By
such attachment to this Agreement, however, the parties do not intend to modify in any way
whatsoever their liabilities, obligations and rights,if any,under said Soils Condition Warranty,except
to extend the Soils Condition Warranty to the Assignee as to the Property. All covenants running
with the Property as set forth in the DDA shall be released as of the Effective Date of this Agreement
and replaced with those covenants set forth herein.
3.2 Scope of Development and Development of Property. The Property shall be
developed by the Assignee as described in Section 2.2("Assignee Project"),in accordance with those
plans and specifications submitted to the City of Arcadia and Agency, on file therein, and identified
in the Scope of Development.
3.3 Schedule of Performance. The Agency and Assignee shall perform their respective
obligations in accordance with the Schedule of Performance attached as Exhibit 3. Deadlines for
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performance as set forth in the Schedule of Performance may be extended from time-to-time in the
reasonable discretion of the Agency's Executive Director without the need for the Agency's
governing board's authorization; provided, however, that, such extensions of time may not exceed
four(4) months in the aggregate.
3.4 Amount of Insurance. The limits of liability required in the insurance policies in
Section 4.8 are the following:
3.4.1 $2,000,000 for any person; and
3.4.2 $3,000,000 for any occurrence; and
3.4.3 $1,000,000 for any property damage.
3.5 Agreement Length and Exhibits. This Agreement consists of pages 1 through 31,
inclusive, and Exhibits 1 through 4 attached hereto and incorporated by this reference, which
constitute the entire understanding and agreement of the parties.
4. STANDARD TERMS
4.1 Taxes and Assessments. Any assessments and ad valorem taxes on the Property
levied, assessed or imposed for any period prior to the conveyance of title of the Property to the
Assignee shall be paid by the Successor. The Successor shall timely pay all such taxes and
assessments levied against the Property prior to the conveyance of title to the Assignee.
All assessments, ad valorem taxes, possessory interest taxes and personal property
taxes levied or imposed upon the Property for any period following conveyance of the Property to
the Assignee shall be paid by the Assignee. The Assignee shall timely pay all taxes and assessments
levied against the Property subsequent to the conveyance of title to the Assignee.
04.2 Soils Condition of the Property. Subject to the terms of the Soils Condition
Warranty described in Section 3.1, which the Agency, Assignee and Successor agree applies solely ?vtglao.
to the presence of toxic or hazardous waste and not to the presence or absence of geotechnical
conditions, including, but not limited to, soil components, density or compaction unless such
geotechnical conditions are proximately related to the presence of toxic or hazardous waste or
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materials, if the Assignee determines that the soils condition of the Property is not in all respects
entirely suitable for the use or uses to which the Property will be put, then, as between the Assignee
and the Agency, it shall be the sole responsibility and obligation of the Assignee at its expense to take
such action as may be necessary to place the soils condition of the Property in a condition suitable
for the development of the Property in accordance with this Agreement.
4.3 Design and Development Standards. The Assignee shall develop the Property as
provided in the Scope of Development, this Agreement, and plans and specifications to be provided
by the Assignee and approved by the Agency and the City pursuant to this Agreement.
4.4 Preparation of Construction Drawings and Related Documents. The Assignee
shall prepare construction and final drawings and related documents for the development of the
Assignee Project on the Property and shall submit such drawings and related documents to the City
and Agency for review and written approval within the times provided therefor in the Schedule of
Performance. Final drawings, plans, and specifications are hereby defined as writings and renderings
in sufficient detail to obtain a building permit.
Agency staff and the Assignee shall hold regular progress meetings to coordinate the
preparation and submission to the City of construction plans and related documents. Agency staff
and the Assignee 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.
4.5 Agency Approval of Plans,Drawings and Related Documents. The Agency shall
have the right of reasonable review and approval of all plans, drawings and related documents for the
development of the Property, including any proposed changes thereto. The Agency may not
disapprove refinements which are logical evolutions of previously approved plans. The Agency shall
approve or disapprove such plans, drawings, and related documents and any proposed changes
thereto within thirty(30)days following initial submission and within fourteen(14)days for revisions
thereto. Any disapproval shall state in writing the reasons for disapproval and the changes which the
Agency requests be made. The Assignee, upon receipt of a disapproval, shall, within fourteen(14)
days from receipt of notice of disapproval, either (i) revise such plans, drawings and related
documents and resubmit them to the Agency or (ii) advise the Agency in writing that the Assignee
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wishes to confer with the Agency concerning such disapproval. The Agency shall use reasonable
good faith efforts to expedite the City's processing and review of the Assignee's plans, in a manner
consistent with statute, the City's Municipal Code and this Agreement.
The Agency will use reasonable efforts, at no material expense to the Agency, to cause the
City of Arcadia to plant and maintain attractive landscaping to shield (to a reasonable degree) the
municipal water tanks on the City-owned property adjacent to the Assignee Project.
4.6 Cost of Construction. The cost of developing the Assignee Project on the Property,
and constructing all required on-and off-site improvements and providing all utilities therefor, shall
be borne by the Assignee at its sole cost, expense, and liability; provided, however, that the Agency
will use its reasonable efforts, at no material expense to the Agency, to cause the City of Arcadia to
waive part or all of its plan check and/or building permit fees related to the Assignee Project.
4.7 Construction and Development Schedule of Performance. The Assignee shall
begin and thereafter complete the construction of the Assignee Project on the Property in accordance
with the Scope of Development. The Assignee shall begin and complete all construction and
development within the times specified in the Schedule of Performance, subject to such reasonable
extensions as may be granted by the Agency's Executive Director in accordance with Section 3.3 and
to Enforced Delays (as provided in Section 4.20.)
During the period of construction,the Assignee shall report to the Agency when the Assignee
determines that it will not meet a performance deadline set forth in the Schedule of Performance. 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.
4.8 Indemnity and Insurance. The Assignee agrees to and shall defend, indemnify and
hold the Agency and City, and their officers, directors, agents, servants, 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 directly or indirectly caused, or alleged to be caused, by any acts, errors or omissions of the
Assignee or its officers,directors,agents,servants,employees or contractors. The Assignee shall not
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be responsible for(and such indemnity shall not apply to)any acts, errors or omissions of the Agency
or the City, or their respective officers, directors, agents, servants, employees or contractors. The
Agency and 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. The obligation set forth in this paragraph(i)shall apply only to acts,errors
or omissions occurring prior to the issuance of a Certificate of Completion for the Assignee Project,
and (ii) shall survive the expiration or termination of this Agreement.
Prior to the commencement of construction on the Property, the Assignee shall furnish or
cause to be furnished to the Agency duplicate originals of and appropriate endorsements to its
commercial general liability (which must include coverage for both owned and hired vehicles)
insurance policies in the amounts set forth in Section 3.4, naming the Agency and the City as
additional or co-insured. 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. The policies
shall be issued by a carrier admitted to do business in California, with a Best's rating of B+XII or
better. Said policies shall provide that they may not be canceled or reduced in coverage or amounts
without giving the Agency at least thirty(30)days prior written notice. The policy amounts set forth
in Section 3.4 shall not limit or define the extent of Assignee's indemnity liability pursuant to this
Section 4.8 or any other provision of this Agreement, or arising as a matter of law or at equity. Upon
the Agency's written request,the Assignee shall also furnish or caused 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 Property carries workers' compensation insurance as required by law.
The obligations set forth in this paragraph shall terminate upon the Agency's issuance of a Certificate
of Completion for the Assignee Project.
4.9 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 Assignee shall, at its own expense, secure or cause to be secured any and all permits
or approvals which may be required by or from the City or any other governmental agency. The
Agency shall provide reasonable non-financial assistance to the Assignee in securing these permits
or approvals. The Assignee shall carry out the construction of the Assignee Project on the Property
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in conformity with all applicable laws, including all applicable federal and state labor and safety
standards.
4.10 No Discrimination. The Assignee, for itself and its successors and assigns, agrees
that in the construction of the Assignee Project,the Assignee will not awful discriminate against
any employee or applicant for employment because of sex, marital status, race, color, religion, creed,
national origin, or ancestry, and that the Assignee will comply with all applicable local, state and
federal fair employment laws and regulations.
The Assignee covenants and agrees for itself, its successors, assigns and every successor in
interest to the Property or any part thereof, that there shall be no n(ratliscrimination 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 Assignee, or any person claiming under or through it,
establish or permit any such unlawful actice 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 33436.
4.10.1 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 unlawful 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 unlawful 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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4.10.2 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( nlawful
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 unlawful 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."
4.10.3 In contracts: "There shall be no nlawful • crimination 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 nla 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."
4.11 Rights of Access. Upon one (1) business day's prior notice, for the purpose of
assuring compliance with this Agreement, representatives of the Agency shall have reasonable right
of access to the Property without charge during normal business hours, and in accordance with the
Assignee's reasonable safety rules.
The Agency agrees to and shall defend, indemnify and hold the Assignee, and its officers,
directors, agents, servants, 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 directly or indirectly caused by any acts,
errors or omissions ofthe Agency or its officers,directors,agents,servants,employees or contractors
with respect to the Agency's entry upon the Property. The Agency shall not be responsible for(and
such indemnity shall not apply to) any acts, errors or omissions of the Assignee, or its respective
officers, directors, agents, servants, employees, attorneys or contractors.
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4.12 Affirmation of Agency's Power of Termination and Amendment Thereto.
4.12.1 Continuance of Existing Power of Termination. Section 5.07 of the
DDA granted to the Agency the right to reenter, repossess, terminate the revest the estate granted
to the Successor in the Site upon the occurrence of certain conditions as set forth in said Section
5.07. Although those conditions described in Section 5.07 of the DDA have occurred with respect
to the Property, the Agency elected at that time to not exercise those rights and remedies available
to the Agency as to the Property under Section 5.07 of the DDA. By their entry into this Agreement,
the Successor and the Assignee agree that the Agency still possesses a valid power of termination and
that title to the Property shall be conveyed subject to the Agency's rights as described in Section 5.07
of the DDA, as restated (with modifications) in its entirety in this Section 4.12; provided, however,
that Agency may not exercise its Power of Termination with respect to the Property based upon the
Developer's or Successor's acts or failures to act occurring before the Effective Date of this
Agreement.
4.12.2 Property. The Agency shall, upon thirty(30) days written notice to the
Assignee, have the right, at its option and due to any cause set forth in this Section 4.12.2 and for the
compensation set forth below, to terminate the estate vested in the Assignee and take possession of
the Property, together with all improvements thereon, and to revest in the Agency fee simple title to
the Property if the Assignee (or its successors in interest) shall:
(i) Subject to Section 4.20, fail (for any reason other than the Agency's
material default, which includes the failure to issue a Certificate of
Completion when otherwise required to do so by this Agreement) to
obtain a Certificate of Completion for the Assignee Project by October 15,
2001 or
(ii) Abandon or substantially suspend, or allow the abandonment or
substantial suspension of, construction of all or any portion of.the
Assignee Project for thirty consecutive (30) days after written notice of
such abandonment or suspension from the Agency; or
(iii) Assign or attempt to assign this Agreement, or any rights or obligations
herein, or transfer, or suffer any involuntary transfer, of the Property or
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• any part thereof, in violation of this Agreement or the DDA, and such
violation shall not have been cured, or commenced to be cured and
diligently prosecuted to completion thereafter,within thirty(3 0)days after
written notice thereof from the Agency.
Thirty-day written notice specified in this Section 4.12.2 shall specify that the Agency proposes to
take action pursuant to this Section 4.12.2 and shall specify which of the Assignee's obligations set
forth in(i)through(iii) above have been breached. The Agency may proceed with the remedies set
forth herein only if the Assignee does not cure such default within thirty (30) days following such
notice. If the Agency fails to approve or disapprove any submission presented by the Assignee within
the times allowed for such approval or disapproval by this Agreement,then the deadline for obtaining
a Certificate of Completion set forth in (i) above shall be extended by the number of days that the
Agency delays giving its approval or disapproval beyond the time allowed for such approval or
disapproval in this Agreement; provided, however, that no extension of time shall be allowed for
unpermitted delays which are less than five (5) days.
Upon the revesting in the Agency of title to the Property by grant deed or court
decree, the Agency shall use its reasonable good faith efforts to resell the Property at fair market
value as soon and in such manner as the Agency shall find feasible and consistent with the objectives
of the law and of the Redevelopment Plan, to a qualified and responsible party or parties (as
reasonably determined by the Agency) who will assume the Assignee's obligation to begin and/or
complete the Assignee Project, or such other replacement project acceptable to the Agency in its sole
and absolute discretion,in accordance with this Agreement and the Redevelopment Plan. Upon such
resale of the Property(or any portion thereof), the proceeds thereof shall be applied as follows:
(i) First, to pay any and all amounts required to release/reconvey any
mortgage,deed oftrust,or other encumbrance required for any reasonable
method of financing the construction of the Assignee Project, provided
that such financing was approved by the Agency pursuant to Section 4.14;
and
(ii) Second, to reimburse the Agency on its own behalf or on behalf of the
City for all actual costs and expenses incurred by the Agency and the City,
including, but not limited to, customary and reasonable fees or salaries to
RVPUB\KKR\544688 -13-
third party personnel engaged in such actions, in connection with the
recapture, management and resale of the Property or any part thereof; all
taxes, assessments and utility charges paid by the City and/or the Agency
with respect to the Property or portion thereof; any payment made or
necessary to be made to discharge or prevent from attaching or being
made any subsequent encumbrances or liens due to obligations incurred
by the Assignee or the Agency or the City with respect to the making or
completion ofthe Assignee Project or any part thereof upon the Property;
and amounts otherwise owing to the Agency by the Assignee or its
successors in interest to the Property or any part thereof pursuant to the
terms hereof; and
(iii) Third, to the extent that any and all funds which are proceeds from such
resale are thereafter available,taking into account any prior encumbrances
with a claim thereto, to reimburse the Assignee, or its successors in
interest to the Property or any part thereof, equal to the sum of(1) the
product of$13.00 multiplied by the actual square footage ofthe Property;
and(2)the third party costs actually incurred and paid by the Assignee for
the development of the Property including, but not limited to, costs of
carry,taxes, and items as set forth in the Assignee's cost statement,which
shall be subject to the Agency's reasonable approval;provided, however,
that the Assignee shall not be entitled to reimbursement for any expenses
described in(1)or(2)to the extent that such expenses relate to any loans
or other encumbrances which are paid by the Agency pursuant to the
provisions of subsections (i) or (ii) above, or which related to liens or
other encumbrances which are paid by the Agency pursuant to subsection
(i) or (ii) above.
Any portion of the resale proceeds remaining after the foregoing applications shall be
retained by the Agency as its sole and its exclusive property. To the extent that the Agency has
incurred or incurs certain costs and expenses which are recoverable from resale proceeds of the
Property as provided above, but which were in the first instance incurred with respect to the Site as
a whole,then such costs and expenses shall be allocated to the Property by a percentage equal to the
Rvpursuc R\944688 -14- -
quotient obtained by dividing the actual gross square footage of the Property by the actual gross
square footage of the Site.
4.12.3 Agency Review of Property Grant Deed. The Agency shall have the
right of reasonable review and approval of the grant deed conveying the Property from the Successor
to the Assignee for the limited purposes of ensuring that such grant deed contains legally adequate
language describing the Agency's rights hereunder and that the Property is being conveyed expressly
subject to such rights.
4.12.4 Mortgagee Protection. The right of the Agency to reenter, repossess,
terminate, and revest shall be subject and subordinate to, shall be limited by and shall not defeat,
render invalid or limit any mortgage, deed of trust or other security interest required for any
reasonable method of financing the construction of improvements on the Property and any other
expenditures necessary to appropriately develop the Property under this Agreement, provided that
the Agency has, as provided in Section 4.14, consented to such financing, or any rights or interests
for the protection of the holders of any such mortgage, deed of trust or other security interest. In the
event of the foreclosure of any mortgage, deed of trust or other security instrument approved by the
Agency as provided in Section 4.14, then the Agency's power of termination as to the Property shall
be extinguished and the Agency shall have no right to reenter, repossess, terminate and revest the
Property. The Agency shall execute such documents as such holder(s) or lender(s) may require to
confirm the foregoing.
Prior to the issuance of Certificate of Completion for the Assignee Project, any grant
deed or ground lease to the Property or any portion thereof conveyed or leased by the Assignee to
another party shall contain appropriate references and provisions to give effect to the Agency's rights
as set forth in this Section 4.12.
4.12.6 Procedure for Documenting Revesting; Waivers. Upon the Agency's
exercise of its rights and powers as provided in this Section 4.12,the Assignee or its successors shall
convey by grant deed to the Agency fee simple title to the Property(as applicable)in accordance with
Civil Code Section 1109, as hereafter amended or substituted. Such conveyance shall be duly
RVPUB\KKR\544688 -15-
acknowledged by the Assignee in a manner suitable for recordation. The Agency may enforce its
rights pursuant to this Section 4.12 by means of an injunctive relief or forfeiture of title action.
IlVIlVIEDIATELY FOLLOWING THE 30 DAY PERIOD SPECIFIED IN SECTION
4.12.2, THE AGENCY, ITS EMPLOYEES AND AGENTS SHALL HAVE THE RIGHT TO
REENTER AND TAKE POSSESSION OF ALL OR ANY PORTION OF THE PROPERTY(AS
APPLICABLE) AND ITS IMPROVEMENTS UPON FIVE (5) BUSINESS DAYS PRIOR
WRITTEN NOTICE TO THE ASSIGNEE. BY ITS INITIALS BELOW, THE ASSIGNEE
HEREBY EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
ANY AND ALL RIGHTS WHICH IT MAY HAVE UNDER CIVIL CODE SECTION 791 AND
CODE OF CIVIL PROCEDURE SECTION 1162,AS THOSE STATUTES ARE AMENDED OR
SUBSTITUTED,OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF
SIMILAR IMPORT. . ,+
Ak
ASSIGNEE'S INITIALS —do !
„kid
BY ITS INITIALS BELOW,THE ASSIGNEE ACKNOWLEDGES AND AGREES
THAT THE AGENCY'S EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF
REENTRY PURSUANT TO THIS SECTION 4.12 SHALL WORK A FORFEITURE OF ITS
ESTATE IN THE PROPERTY. THE ASSIGNEE HEREBY EXPRESSLY WAIVES, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL EQUITABLE AND LEGAL
DEFENSES THAT IT MAY HAVE TO SUCH FORFEITURE, INCLUDING, BUT NOT
LIMITED TO, THE DEFENSES OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL
PERFORMANCE OR COMPENSABLE DAMAGES. THE ASSIGNEE FURTHER EXPRE S SLY
WAIVES ALL RIGHTS AND DEFENSES THAT IT MAY HAVE UNDER CIVIL CODE
SECTION 3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR
IMPORT OR EFFECT.
THE ASSIGNEE IRREVOCABLY STIPULATES, REPRESENTS AND
WARRANTS THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE
CONSIDERATION HEREUNDER FOR ITS WAIVER AND RELINQUISHMENT OF RIGHTS.
ASSIGNEE'S INITIALS el .4/4/1 •
RVPUB\KKR\544688 -16-
4.12.7 Stipulation and Contingent Creation of New Power of Termination.
The Successor and the Assignee stipulate and agree that the Agency possesses an enforceable Power
of Termination as to the Property, as such Powers of Termination are described in California Civil
Code Section 885.010, et se q. The Successor and the Assignee irrevocably waive, relinquish and
forego, to the maximum legal extent, any and all claims that, by the Agency's election not to
immediately enforce its Power of Termination as provided in Section 5.07 of the DDA, that the
Agency has waived,relinquished or forfeited,by lapse oftime,estoppel,laches,excuse,or otherwise,
its rights as set forth in Section 5.07 of the DDA as to the Site; provided, however,that the Agency
may not exercise its Power of Termination as to the Property based upon the Developer's or
Successor's acts or failures to act occurring before the Effective Date of this Agreement.
The immediately preceding paragraph notwithstanding, the Successor and Assignee
agree that, should a court of competent jurisdiction determine that the Agency's Power of
Termination as set forth in Section 5.07 of the DDA was waived, relinquished or forfeited by action
ofthe Agency,operation oflaw,or otherwise,then this Section 4.12 shall constitute and create a new
Power of Termination in favor of the Agency as to the Property,with provisions identical to that set
forth in Section 5.07 of the DDA, as amended by this Section 4.12.
4.13 Prohibition Against Transfer. Prior to the issuance of a Certificate of Completion
for the Assignee Project, the Assignee may not, except as permitted by this Section 4.13 or Section
4.14, assign or attempt to assign this Agreement or any right or obligation herein,nor make any total
or partial sale,transfer, conveyance, lease, or assignment of the whole or any part of the Property or
the improvements thereon, without prior written approval of the Agency, which will not be
unreasonably withheld or delayed.
Notwithstanding any other provisions of this Agreement to the contrary, the foregoing
prohibition shall not apply to those transactions described in Sections 4.13.1 or 4.13.2 below,
provided the Assignee shall first notify the Agency in writing of the proposed action. The actions to
which this exception applies are: -
4.13.1 The granting of easements or permits to facilitate the development of the
Property.
RVPUB\IQCR\544688 -17-
4.13.2 The assignment or delegation of all or portions of the Assignee's rights or
obligations hereunder, or the sale, transfer, conveyance, lease or
assignment of all or any part ofthe Property or any improvements thereon,
to a limited partnership of which the Assignee is a general partner, or to
a limited liability company in which the Assignee or its general manager
is the manager, or to a corporation in which the Assignee or its general
manager is a"control person" as defined by Federal securities laws, or to
a general partnership of which the Assignee or its general manager is a
member. Any such assignment, sale, transfer or conveyance pursuant to
this Section 4.13.2 shall not relieve the Assignee of liability for the timely
and faithful performance of any assigned obligation, absent an express
agreement between the Agency, the Assignee and the third party
transferee to the contrary.
No unpermitted sale, transfer, conveyance, lease, or assignment of all or any portion
of this Agreement or the Property shall be deemed to relieve the Assignee 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.
4.14 Permitted Encumbrances. Section 4.13 notwithstanding,mortgages,deeds oftrust,
sales and leasebacks or any other form of conveyance required for any reasonable method of financing
the acquisition of the Property and construction of the Assignee Project are permitted before
recordation of a Certificate of Completion,but only for the purpose of financing the construction(or
any refinancing thereof)ofthe Assignee Project and any other expenditures necessary'and appropriate
to develop the Property(and no other property(ies))under this Agreement. The Assignee shall notify
the Agency in writing in advance of any mortgage, deed of trust, sale and leaseback or other form of
conveyance for financing if the Assignee proposes to enter into same before recordation of a
Certificate of Completion. The Agency shall have ten(10)business days from receipt of such notice
within which to approve or disapprove such financing. If the Agency disapproves, the disapproval
shall be delivered in writing to the Assignee within such thirty (30) day period and shall state the
reason for such disapproval. Agency's failure to timely deliver such written notice of disapproval shall
be deemed an approval.
RVPUB\KKR\544688 -18-
The Agency may withhold approval for any of the following reasons: (i)any such conveyance
for financing is not given to a responsible financial or lending institution or other person or entity who
will finance the development of the Assignee Project in a manner consistent with the terms of this
Agreement; (ii) such financing will restrict or impair the ability of the Assignee to carry out its
obligations hereunder; (iii) the lender fails to agree to provide the Agency notice of any Assignee
default and an opportunity to cure such default and the opportunity to pay off the financing on the
same terms as given to the Assignee; and (iv) the lender refuses to execute such documents as are
reasonably necessary to confirm that the lender's lien and interest in the Property is subordinate to this
Agreement and the Power of Termination,except for any mortgagee protection provisions contained
herein.
Upon the Agency's receipt of notice of the Assignee's default from the lender, and the
Assignee's subsequent failure to cure such default within the applicable cure period provided by the
loan documents, the Agency may cure such default on the Assignee's behalf. The Assignee's failure
to cure such default on its own behalf shall be deemed a material default under this Agreement. The
Assignee shall reimburse the Agency, within ten (10) days after written demand therefor by the
Agency, for all sums reasonably expended by the Agency on the Assignee's behalf
Nothing in this Agreement shall be deemed to obligate the holder of any mortgage, deed of
trust or other financing instruments to construct the Assignee 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 or interest in the Property(or any portion thereof)acquired by any means
by any holder of a mortgage, deed of trust, or other form of financing conveyance, or by such holder's
assignees or successors, shall be subject to the terms and provisions of this Agreement.
The words "mortgage" and "deed of trust" as used herein include all customary modes of
financing real estate acquisition, construction and land development in Los Angeles County.
4.15 Certificate of Completion. Upon the Assignee's completion of the construction of
the Assignee Project (includin_ all "punch list" corrections), the Agency shall furnish the Assignee
with a Certificate of Completion within thirty (30) days following written request therefor by the
Assignee. 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
RVPUB\KKR\544688 -19-
development of the Assignee Project and of full compliance by the Assignee with the terms of this
Agreement (other than the covenants running with the Property as set forth in Sections 4.10 and
Section 4.16). The Certificate of Completion shall be in such form as to permit it to be recorded in
the Los Angeles County Recorder's Office and shall confirm the foregoing.
If the Agency refuses or fails to furnish a Certificate of Completion after written request from
the Assignee, the Agency shall provide, within the aforementioned thirty(30) day period, a written
statement to the Assignee setting forth the reasons for the Agency's refusal or failure to furnish a
Certificate of Completion. The Agency's failure to provide such statement within the time provided
shall entitle the Assignee to a Certificate of Completion for the Assignee Project. The statement shall
contain the Agency's opinion of all the actions the Assignee must take to obtain a Certificate of
Completion. If the reasons for such refusal are confined to the immediate unavailability of specific
items or materials for construction or landscaping,the Agency shall issue a Certificate of Completion
upon the Assignee's posting of a bond or irrevocable letters of credit,reasonably approved as to form
and substance by the Agency's legal counsel, in an amount representing the fair value of the work not
yet completed, as reasonably determined by the Agency.
A Certificate of Completion will not constitute evidence of compliance with or satisfaction
of any obligation of the Assignee to any holder of a mortgage or any insurer of a mortgage or a
Certificate of Occupancy as provided by the City's municipal code. A Certificate of Completion will
not constitute a notice of completion as referred to in Civil Code Section 3093.
4.16 Covenants Running With the Land.
4.16.1 Use Covenant. The.Assignee covenants and agrees for itself, its assigns
and all voluntary and involuntary successors in interest to the Property or
any part thereof, that,until the expiration of the Redevelopment Plan,the
Property shall be put to the uses specified in the Redevelopment Plan and
the City's General Plan and Zoning Ordinances, this Agreement, and any
permits or entitlements which may be required for the Assignee Project.
4.16.2 No Conveyance to Tax Exempt Entity. The Assignee covenants and
agrees for itself, its assigns and all voluntary and involuntary successors
RVPUB\KKR\544688 -20-
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 Health and Safety Code Section 33670 (as that statute
may be substituted or amended),the Property or any portion thereof may
not be used, or otherwise sold, transferred, conveyed, assigned, leased,
lease-back, or hypothecated(collectively, "Tax Exempt Conveyance")to(
or for any use that will result (i) in more than fifty percent (50%) of the
assessed value of the Assignee Project and/or Property (as established in
the year immediately preceding the Tax Exempt Conveyance)being held
I ' by an entity which is exempt, in whole or in part, from the payment of ad
0'' valorem property taxes or possessory interest taxes; or(ii)in the assessed
Skt
e_� value of the Property as a whole being less than the product of$6.50
Y"� Lnultiplied by the actual square footage of the Property.
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4.16.3 No Property Tax Contest. The Assignee 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, during all times that the
Agency is permitted to receive property tax increment from the Project
Area pursuant to Health and Safety Code Section 33670 (as it may be
amended or substituted), the Assignee shall not contest the assessed
valuation of the Property or any part thereof, as established by the Los
Angeles County Assessors Office, in a manner which would cause the
assessed value of the Property (or any part thereof) to be less than the
product of$13.00 multiplied by the actual square footage of the Property;
provided, however, that the foregoing prohibition shall not be applicable
if such contest is related to Assignee's contest of an Assessor's
determination concerning the tax exempt or tax reduced status of an entity
acquiring an interest in the Property or Assignee Project as a result of a
Tax Exempt Conveyance; provided, further, that in no event may the
assessed value be contested to a level less than the product of $6.50
multiplied by the actual square footage of the Property.
RVPUB\KICR\544688 -21-
4.16.4 Operation Covenant. The Assignee covenants and agrees for itself, its
successors, its assigns and all voluntary and involuntary successors in
• interest to the Property, Assignee Project or any part thereof, that, until
expiration of the Redevelopment Plan, so long as there is any use of the
Property or the Assignee Project (or any part thereof), (i) such use shall
be for the uses described in Section 2.2 hereof; and(ii) the Property and
exterior (including all landscaped areas) and interior portions of the
Assignee Project shall be maintained in a first-class condition and in
accordance with the standards of the City's municipal code.
The covenants set forth in Section 4.10 and Sections 4.16.1 through 4.16.4 touch and
concern the Property, and every part thereof, and constitute covenants running with the Property and
every part thereof. These covenants may be 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. Assignee hereby irrevocably stipulates and agrees
that breach of any of the covenants set forth in Section 4.10 or Sections 4.16.1 through 4.16.4 will
result in great and irreparable damage to the Agency and the City, will violate the public policy and
the purposes of the Community Redevelopment Law, and will result in damages to the Agency and
the City which are either impracticable or extremely difficult to quantify. Accordingly, any covenant
set forth in Section 4.10 or Sections 4.16.1 through 4.16.4 may be enforced by means of an injunctive
relief or specific performance action against the then-owner of the Property.
4.17 General Damages and Other Remedies. If the Assignee or the Agency defaults
with regard to any of their obligations under this Agreement, the nondefaulting party shall serve
written notice of such default upon the defaulting party or parties. If the default is not cured, or
commenced to be cured and diligently prosecuted to cure completion, by the defaulting party or
parties within thirty(30)days after service ofthe notice of default,the defaulting party or parties shall
be liable to the other party for any and all damages proximately caused by such default; provided,
however, that no party to this Agreement shall be liable for speculative or punitive damages and all
parties hereby waive all claims to the recovery thereof.
RVPUB\KICR\544688 -22-
The remedies set forth in this Section 4.17 are intended to be cumulative, non-exclusive, and
may be exercised conjunctively or independently with any and all other rights and remedies available
to the parties pursuant to this Agreement, at law or in equity.
At any time prior to the commencement of construction of the Assignee Project, in addition
to all other remedies set forth in this Section 4.17 or otherwise available pursuant to this Agreement,
at law or in equity, the Agency may terminate this Agreement and all of its obligations and
agreements hereunder,without cost, expense or liability, if the Assignee is in material default of any
of its obligations under this Agreement and has failed to cure, or commence to cure, such default
following written notice from the Agency, as provided in the first paragraph of this Section 4.17.
For purposes of this paragraph, the term "commencement of construction" means the Assignee's
obtaining of a building permit for the Assignee Project and the City's completion and acceptance of
the first building and safety inspection relative thereto,which completion and acceptance shall not be
unreasonably or unlawfully withheld or delayed. Anything to the contrary in this Agreement
notwithstanding, including, without implied limitation, Sections 2.7 and 3.1 hereof, upon such
termination,the DDA shall once again become effective as to the Property and all terms,provisions,
and covenants of the DDA shall once again apply to the Property as if this Agreement had never
become effective.
4.18 Notices and Demands. All notices or other communications required or permitted
hereunder shall be in writing, and may be(i)personally delivered, (ii)sent by United States registered
or certified mail, postage prepaid, return receipt requested, or(iii)telecopied, to the parties at the
addresses/facsimile telephone numbers provided in Section 1.1, subject to the right of either party to
designate a different address/facsimile telephone number for itself by notice similarly given. Any
notice so given by registered or certified United States mail shall be deemed to have been received
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 received upon receipt of the same by the party
to whom the notice is given.
4.19 Nonliability of Agency Officials and Employees. No board member, official,
contractor, consultant, attorney or employee of the Agency or the City shall be personally liable to
the Successor or Assignee, any successors or assignees, or any lender or party holding an interest
RVPUB\KKR\544688 -23-
. .
in the Property in the event of any default or breach by the Agency, or for any amount which may
become due to the Successor or Assignee or to their successors or assignees, or on any obligations
arising under this Agreement.
4.20 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
war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; acts of God or of third parties;
litigation; acts of a public enemy; epidemics; quarantine restrictions; and freight embargoes, and any
other matters beyond the parties' reasonable control (collectively, "Enforced Delays") provided,
however, that the party claiming the extension notify the other party of the nature of the matter
causing the delay; 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 Assignee to obtain or maintain financing for(i) the acquisition of the Property
or(ii)the construction of the Assignee Project.
The foregoing notwithstanding, the Assignee expressly agrees that adverse changes in
economic conditions, either of Assignee specifically or the economy generally, or changes in market
conditions or demands, shall not operate to excuse or delay the strict performance of each and every
of the Assignee's obligations and covenants arising under this Agreement. The Assignee expressly
assumes the risk of such adverse economic or market changes or conditions,whether foreseeable or
not at the time of the Assignee's entry into this Agreement.
4.21 Attorney's Fees. If either party brings any action or proceeding against any other
party to this Agreement,then the prevailing party or parties shall be entitled to recover as an element
of its costs of suit, and not as damages, its/their reasonable attorney's fees as fixed by the court in
such action or proceeding. Recoverable costs and fees include those incurred on appeal and in the
enforcement of any judgment.
4.22 Real Estate Commissions. The Agency shall not be liable for any real estate
commission,brokerage fees or finders fees which may arise from this Agreement or the transactions
discussed herein, except to the extent caused by the action or inaction of the Agency. The Successor
RVPUB\KKR\544688 -24-
shall defend,indemnify and hold the Agency harmless from all costs,expenses,damages and liabilities
related to such real estate commissions, brokerage fees, or finders fees which are due to the
Successor's acts or omissions. The Assignee shall defend, indemnify and hold the Agency harmless
from all costs, expenses, damages and liabilities related to such real estate commissions, brokerage
fees, or finders fees which are due to the Assignee's acts or omissions.
4.23 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.
4.24 Amendments to This Agreement. The Agency, Successor and Assignee 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 amendment to the
Agreement must be in writing and signed by the appropriate authorities of: (i) in all cases, the
Agency, (ii) the Successor, but only if such amendment directly affects the Successor's rights and
obligations under this Agreement, and(iii)the Assignee, but only if such amendment directly affects
the Assignee's rights and obligations under this Agreement. The Executive Director is authorized
to approve and execute minor amendments to this Agreement on behalf ofthe Agency,including,but
not limited to, the granting of extensions of time to the Successor and Assignee, subject to
Section 3.3.
4.25 Jurisdiction and Venue. Any action or proceeding concerning this Agreement shall
be filed and prosecuted in the appropriate court in the County of Los Angeles, California. Each party
hereto irrevocably consents to the personal jurisdiction of the court and hereby irrevocably stipulates
•
that said court shall have subject matter jurisdiction over such action or proceeding. The Agency,
Assignee and the Successor each hereby expressly waive to the maximum extent permitted by law,
the benefit of any provision of law providing for a change of venue to any other court, including,
without limitation, federal district court, due to the diversity of citizenship between the Agency, the
Successor and the Assignee due to the fact that a federal right or question is alleged to be at issue,
or due to the fact that either the City or the Agency is a party to such action or proceeding. Without
limiting the generality of the foregoing, the Successor and Assignee specifically waive, to the
RVPUB\KKR\544688 -25-
• •
maximum extent permitted by law, any rights provided to them pursuant to California Code of Civil
Procedure Section 394 or any other state or federal statute or decision of similar effect.
4.26 Interpretation. The Agency, Successor and Assignee 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
such extrinsic evidence not in direct conflict with any specific provision of this Agreement to
determine and give effect to the intention of the parties hereto.
4.27 Counterpart Originals; Integration. This Agreement may be executed in three(3)
counterpart originals, each of which shall be 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 or previous agreements between the
parties with respect to all or any part of the subject matter hereof.
4.28 No Waiver. The failure by any party hereto 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.
4.29 No Unintended Third Party Beneficiaries. The performance of the Agency's,the
Successor's and Assignee's respective obligations under this Agreement are not intended to benefit
any party other than the Agency,the Successor or the Assignee. 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.
RVPUB\KICR\544688 -26-
a . -
The foregoing notwithstanding, the City of Arcadia is declared to be an intended third party
beneficiary as to performance of the Successor's and Assignee's obligations and covenants under this
Agreement.
[Signatures on the following pages]
RVPUB\KKR\544688 -27-
SIGNATURE PAGE TO
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
THE ARCADIA REDEVELOPMENT AGENCY
a California public agency
Dated: iftbaler By:
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO LEGAL FORM:
BEST BEST &KRIEGER LLP
Owl-0 J.,
Ste. en P. D-"it •
Agency General Cou
RVPUB\KKR\544688 -28-
• 1 •
SIGNATURE PAGE TO
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
WESTERN SECURITY BANK
a national banking association
Dated: i'Z/z� ,S s By: -
Its: ct-
By:
i�j
Its: / �l4J,�>
RVPUII\KKR\544688 -29-
SIGNATURE PAGE TO
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
GARY MORRIS
a California limited liability company
Dated: /g-/7 97 BY: re/A/ . ii ad of
Gary ' o ;Sr
Its: Manager
RVPUB\KKR\544688 -30-
• 1 r
SIGNATURE PAGE TO
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
THE LOS ANGELES DISTRICT ADVISORY
BOARD (CHURCH OF THE NAZARENE)
a California non-profit corporation
Dated: r - By:
Its: ,e /_ 7 D FZU/
Dated: 12—i'79 ? By: µQ�✓/f
Its:
•
•
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RVPUB\KKR\544688 -3 1-
J 4 I •
EXEiIBIT 1-A TO AMENDED AND
RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Legal Description of Property
PARCELS 1 AND 2 OF PARCEL MAP NO. 21841, IN THE CITY OF ARCADIA, COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 241 PAGES
2, AND 3 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THOSE PORTIONS OF LOTS 5 AND 6,BLOCK 84,PART OF SANTA
ANITA TRACT,IN THE CITY OF ARCADIA,AS PER MAP RECORDED IN BOOK 34 PAGES
41 AND 42, OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EASTERLY LINE OF SECOND AVENUE,
60 FEET WIDE, AS SHOWN ON SAID MAP OF SAID TRACT, WITH A LINE PARALLEL
• WITH AND 10 FEET NORTHERLY, MEASURED AT RIGHT ANGLES, FROM THE
NORTHERLY LINE OF THAT 40 FOOT WIDE STRIP OF LAND DESCRIBED IN DEED
RECORDED IN BOOK 423, PAGE 269, OF DEEDS, OF•SAID COUNTY; THENCE ALONG
SAID EASTERLY LINE, NORTH 0° 01' 16" EAST 120.00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE SOUTH 89° 55' 27" EAST 597.66 FEET, MORE OR LESS, ALONG A
LINE PARALLEL WITH SAID NORTHERLY LINE, TO THE SOUTHWESTERLY LINE OF
THAT 60 FOOT WIDE STRIP OF LAND DESCRIBED IN DEED RECORDED IN BOOK D1244
PAGE 330, OF OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG SAID
SOUTHWESTERLY LINE SOUTH 36° 13'04"EAST 0.12 FEET; THENCE NORTH 89°57' 15"
WEST 597.73 FEET TO SAID EASTERLY LINE;THENCE NORTH 0°01' 16"EAST 0.41 FEET
TO THE TRUE POINT OF BEGINNING.
EXCEPT THEREFROM; ALL OIL, OIL RIGHTS, NATURAL GAS RIGHTS, MINERAL
RIGHTS,ALL OTHER HYDROCARBON SUB STANCES BY WHAT S OEVERNAME KNOWN,
AND ALL WATER, CLAIMS OR RIGHTS TO WATER, TOGETHER WITH APPURTENANT
RIGHTS THERETO,WITHOUT,HOWEVER,ANY RIGHT TO ENTER UP ON THE SURFACE
OF SAID LAND NOR ANY PORTION OF THE SUBSURFACE LYING ABOVE A DEPTH OF
(NOT SHOWN)FEET,AS EXCEPTED OR RESERVED BY DEED RECORDED APRIL 7, 1969
AS INSTRUMENT NO. 2787, OF OFFICIAL RECORDS.
RVPUB\KKR\544688 Exhibit 1-A
• 1 r a
EXHIBIT 1-B TO AMENDED AND
RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Map of Property
[attached behind this page]
•
RVPUB\ICKR\544688 Exhibit 1-B
u 44 s r
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EXHIBIT 2 TO AMENDED AND
RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Scope of Development
Property
The Assignee shall design and construct two 19,000 sq. ft. three story office buildings (or
a minimum of at least 38,000 square feet) over one deck of subterranean parking to City of
Arcadia codes, as more fully set forth on plans by John Corey, architect, Pasadena, receipt dated
August 9, 1999 and colored elevations and color board approved by the Arcadia Redevelopment
Agency on September 7, 1999.
Alternatively, the Assignee may design and construct an above ground three story parking
garage between the two office buildings, provided that such design is submitted to and approved
in the future by the Agency's governing board.
RVPUB\KKR\544688 Exhibit 2
EXHIBIT 3 TO AMENDED AND
RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Note: The Executive Director may make
minor changes to this Schedule as
provided in Section 3.3 of the Agreement.
SCHEDULE OF PERFORMANCE
ACTION-PRE DDA APPROVAL BY DATE
Agency forwards second draft DDA to Successor and Assignee December 1, 1999
Successor and Assignee review, negotiate, and
verbally approve draft DDA December 8, 1999
Agency forwards final DDA to Successor and Assignee December 13, 1999
Successor and Assignee return executed DDA to Agency December 21, 1999
By 5:00 p.m.
Agency schedules DDA meeting for December 21, 1999 December 21, 1999
POST DDA- APPROVAL
Council/Agency meeting to consider DDA and, possibly, December 21, 1999
Design Review
If approved, Agency executes DDA; sends one original to December 22, 1999
Escrow for recordation prior to close of escrow between
Successor and Assignee; duplicate originals to
Successor and Assignee
Developer submits 10 sets of plans/elevations and color/ January 24, 2000
material board to Agency
Agency considers Design Review February 15, 2000
•
Building plans submitted and fees paid for Plan Check June 1, 2000
RVPUB\KKR\544688 Exhibit 3
Building plans approved, building permit issued, building July 15, 2000
permit fees paid
Construction/grading begins September 1, 2000
Building pads completed (subsurface parking) January 1, 2001
Framing.completed May 1, 2001.
Buildings completed August 1, 2001
Project completed; facilities open September 1, 2001
Assignee submits request for Certificate of Completion September 15, 2001
Agency consider Assignee's request for Certificate October 15, 2001
of Completion. If approved, forward to Assignee
for recordation
RVPUB\ICICR\544688 Exhibit 3
ea
EXHIBIT 4 TO AMENDED AND
RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Soils Condition Warranty
1. Warranty Regarding Condition of Soils. The Agency hereby represents and
warrants to the Developer'that:
(a) The Agency has conducted or caused to be conducted an examination of
the condition of the soils within the Property pertinent to toxic or hazardous waste material in
accordance with the terms and conditions of the ERN;
(b) The results of such investigation do not show the existence within the
Property of any toxic or hazardous waste material or substances;
(c) The Agency has no knowledge of(i) the existence within the Property of
any toxic or hazardous waste material or substances or (ii) of any condition of soils within the
Property that would constitute or involve a violation of any applicable federal, state or local law,
code, regulation or ordinance relating to toxic or hazardous waste materials or substances; and
(d) The Agency has not received notice of the listing of the Property or any
portion thereof on the list of sites known to contain toxic or hazardous waste materials or sub-
stances as compiled through the Office of Planning and Research pursuant to Section 65962.5 of
the California Government Code.
2. Indemnification. The Agency and the City hereby indemnify and agree to hold the
Developer harmless from any and all loss, damage, claim, cost and/or expense (including reason-
able attorneys fees) which the Developer may incur as a result of a subsequent determination that
toxic or hazardous waste material or substances existed within the Property on or before the
Close of Escrow. This indemnification and hold harmless provision shall include, but not be
limited to, the obligation of the agency and/or city to take affirmative action to remove and/or
otherwise clean up any such toxic or hazardous waste material or substances and to return the
Property and any improvements thereon to their respective conditions as the same existed
immediately prior to such removal and/or clean-up activities. This provision shall survive the
Close of Escrow and shall inure to the benefit of the Developer's transferees, assigns and/or
successors in interest to the Property or any portion thereof.
RVPUB\KKR\544688 Exhibit 4