HomeMy WebLinkAboutEmkay Development Company DDA 97 144211. aN ;, .r.,:..:.
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NOV 1 Q 1997
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CITY OF ARCADIA
RECORDING REQUESTED BY AND RECORDED/FILED IN 'S OFFICE
RECORDS
; RECORDER'S OFt=10E
WHEN RECORDED MAIL TO: LOS ANGELES COUNTY
CALIFORNIA
The Arcadia Redevelopment Agency S E P 18 1997
AT 8 A.R . 4(p
P.O. Box 60021
Arcadia, CA 91066-6021
Attention: Executive Director
[Fee Exempt- Govt. Code $61031
(Space above for Recorder's Use) /j
D.A. FEE Code 2C ' $ .:.1 1
EMKAY DEVELOPMENT COMPANY
AMENDED AND RESTATED
DISPOSITION AND DEVELOPMENT AGREEMENT
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THE ARCADIA REDEVELOPMENT AGENCY
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EMKAY DEVELOPMENT COMPANY, INC. ZaN
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ESA ESA MANAGEMENT, INC. °,.
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[Dated as of February 18,1997 for reference purposes only] I_
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TABLE OF CONTENTS
Page No.
1. PARTIES AND EFFECTIVE DATE 1
1.1 Parties to Agreement 1
1.1.1 The Agency. 1
1.1.2 The Developer 1
1.1.3 The Assignee 1
1.1.4 Binding on Permitted Successors and Assigns 2
1.2 Effective Date 2
2. RECITALS ABOUT THE PLAN AND PROJECT 3
2.1 The Redevelopment Plan and Project Area. 3
2.2 Purpose of this Agreement 3
2.3 Prior DDA 4
2.4 Prior Conveyance by Agency to Developer 4
2.5 Developer's Prior Development Obligations and Legal Description of
Property. 4
2.6 Parcelization of Property and Development Thereof. 4
3. SPECIAL TERMS 5
3.1 Effect of DDA with Respect to the Site and the Property. 5
3.2 Scope of Development. 6
3.2.1 Development of Assignee Parcel. 6
3.2.2. Interim Landscaping of the Remainder Parcel 6
3.2.3. Development of Remainder Parcel 7
3.3 Schedule of Performance. 7
3.4 Amount of Insurance 7
3.5 Agreement Length and Exhibits 7
3.6 Payment to Cover Agency Legal and Other Expenses 8
3.7 Joint Advertising Sign 8
4. STANDARD TERMS 8
4.1 Taxes and Assessments 8
4.2 Soils Conditions of the Property 9
4.3 Design and Development Standards 9
4.4 Preparation of Construction Drawings and Related Documents 10
4.5 Agency Approval of Plans, Drawings and Related Documents 10
4.6 Cost of Construction 11
4.7 Construction and Development Schedule of Performance 11
4.8 Indemnity and Insurance 12
4.9 Governmental Permits and Compliance With Laws 14
4.10 No Discrimination 15
4.10.1 In deeds 16
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4.10.2 In leases 16
4.10.3 In contracts 16
4.11 Rights of Access 17
4.12 Affirmation of Agency's Power of Termination and Amendment
Thereto. 17
4.12.1 Continuance of Existing Power of Termination 17
4.12.2 Remainder Parcel. 17
4.12.3 Assignee Parcel. 20
4.12.4 Agency Review of Assignee Parcel Grant Deed. 23
4.12.5 Mortgagee Protection. 24
4.12.6 Procedure for Documenting Revesting; Waivers. 24
4.12.7 Stipulation and Contingent Creation of New Power of
Termination. 26
4.13 Prohibition Against Transfer 26
4.13.1 Remainder Parcel. 26
4.13.2 Assignee Parcel. 28
4.14 Permitted Encumbrances 29
4.14.1 Remainder Parcel. 29
4.14.2 Assignee Parcel. 30
4.15 Certificate of Completion 32
4.15.1 Remainder Parcel. 32
4.15.2 Assignee Parcel. 32
4.16 Covenants Running With the Land 33
4.16.1 Remainder Parcel. 33.
4.16.1.1 Use Covenant. 33
4.16.1.2 No Conveyance to Tax Exempt Entity 34
4.16.1.3 No Property Tax Contest 34
4.16.2 Assignee Parcel. 35
4.16.2.1 Use Covenant 35
4.16.2.2 No Conveyance to Tax Exempt Entity 36
4.16.2.3 No Property Tax Contest. 36
4.16.2.4 Operation Covenant. 37
4.17 . General Damages and Other Remedies 38
4.18 Notices and Demands. 39
4.19 Nonliability of Agency Officials and Employees 39
4.20 Time Deadlines Critical; Extensions and Delays; No Excuse Due to
Economic Changes 39
4.21 Attorney's Fees 40
4.22 Real Estate Commissions 41
4.23 Submission of Documents and Other Actions for Approval 41
4.24 Amendments to This Agreement 41
4.25 Jurisdiction and Venue. . . 41
4.26 Interpretation 42
4.27 Counterpart Originals; Integration. . 42
4.28 No Waiver 42
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4.29 No Third Party Beneficiaries 42
EXHIBIT - Legal Description of Assignee Parcel 48
EXHIBIT 2 - Legal Description of Remainder Parcel 49
EXHIBIT 3 - Assignee Parcel Scope of Development 50
EXHIBIT 4 - Remainder Parcel Landscaping Scope of Development 51
EXHIBIT 5 - Remainder Parcel Scope of Development 52
EXHIBIT 6 - Schedule of Performance 53
EXHIBIT 7 - Soils Condition Warranty 56
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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 Developer. The Developer is EMKAY Development Company,
Inc., a Nevada corporation. The address of the Developer for purposes of this Agreement is: 720
Park Boulevard, Plaza IV, Fifth Floor, Boise, Idaho 83712; P.O. Box 73, Boise, Idaho 83729;
telephone number (208) 386-5875; facsimile number (208) 386-5498.
The Developer represents and warrants to Agency that:
(i) it is a duly formed corporation, organized, existing and in good standing under
the laws of the State of Nevada 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 Developer, and
(iii) the Developer has taken all actions required by law to approve the execution
of this Agreement.
1.1.3 The Assignee. The Assignee is ESA Management, Inc., a Delaware
corporation. The address of the Assignee for purposes of this Agreement is: 2525 Cherry
Avenue, Suite 310, Signal Hill, California 90806-2037; telephone number (310) 981-5880;
facsimile number (310) 997-0165.
The Assignee represents and warrants to the Agency :
(i) it is a duly formed corporation, organized, existing and in good standing under
the laws of the State of Delaware and qualified to do business in California,
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(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.
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 Developer and Assignee and their permitted
nominees, successors and assigns. Wherever the term "Developer" or "Assignee" is used herein,
such term shall include any permitted nominee, assignee or successor of the Developer or
Assignee, as applicable.
The qualifications and identity of the Developer and Assignee 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 Developer and Assignee. No voluntary or involuntary
successor-in-interest of the Developer or Assignee shall acquire any rights or powers under this
Agreement except as expressly set forth herein. Neither the Developer nor the Assignee may
assign or transfer all or any part of their 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 Sections 4.13.1 and 4.13.2.11
1.2 Effective Date. This Agreement will become effective on the date ("Effective
Date") on which both of the following are true: (i) it has been approved by the Agency's
governing board, and (ii) it has been executed by the appropriate authorities of the Agency, the
Developer, and the Assignee; provided, however, that if Assignee fails to acquire fee title to the
Assignee Parcel by December 31, 1997, 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,
then any party to this Agreement may terminate this Agreement without cost, expense or liability.
This Agreement shall be executed by the appropriate authorities of the Developer
and the Assignee prior to its presentation to the Agency's governing board for consideration and
1/ All section references shall be to sections of this Agreement unless otherwise stated.
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approval. If the Agency's governing board approves this Agreement, it shall be executed by the
Agency's designated authority within ten (10) days 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 May
20, 1997, or, if it approves this Agreement by said date but thereafter fails to execute this
Agreement on or before the date set forth therefor in the Schedule of Performance (Exhibit No.
6), then either the Developer 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 November 1, 1994.
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.
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 certain real property as an extended stay
hotel and professional/medical office, retail building(s), research and development office, light
manufacturing, hotel, restaurant, senior citizen housing and/or entertainment use.
The development of the Property (hereinafter defined) pursuant td 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
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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 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. As used in this Agreement, the term "DDA" means the Original DDA, as amended
prior to the Effective Date of this Agreement.
2.4 Prior Conveyance by Agency to Developer. 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."
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 E. Parcel E shall hereinafter be referred to in this
Agreement as the "Property."
2.6 Parcelization of Property and Development Thereof. . The Developer has
subdivided the Property and will convey a portion of the Property to the Assignee for development
in accordance with the terms of this Agreement. The portion of the Property which the Developer
will convey to the Assignee is hereinafter referred to as the "Assignee Parcel." A legal
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description of the Assignee Parcel is attached as Exhibit 1. The portion of the Property which will
be retained by the Developer is hereinafter referred to as the "Remainder Parcel." A legal
description of the Remainder Parcel is attached as Exhibit 2.
3. SPECIAL TERMS
3.1 Effect of DDA with Respect to the Site and the Property. The Developer and
the Agency agree that the DDA, and their respective rights and obligations thereunder, shall
remain in effect without modification with respect to all portions of the Site, excluding the
Property. The DDA shall continue to govern the Agency's and Developer's rights and obligations
with respect to the remainder of the Site (as defined in the DDA, i.e., the Site excluding the
Property.) From and after the Effective Date of this Agreement, the Agency's, Developer'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 7 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. 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.
The foregoing paragraph notwithstanding, the Agency's rights pursuant to Section 5.07 of
the DDA to reenter, repossess, terminate.and revest the estate in the Property granted the
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Developer shall not be released. The Assignee and the Developer shall continue to hold title to the
Assignee Parcel and the Remainder Parcel subject to the Agency's rights as provided in Section
5.07 of the DDA, which has been restated (with modifications) in its entirety in Section 4.12
hereof.
3.2 Scope of Development. The Assignee Parcel and the Remainder Parcel shall be
developed as follows:
3.2.1 Development of Assignee Parcel. The Assignee shall develop the
Assignee Parcel as a three-story, 122 unit extended stay hotel ("Assignee Project") in accordance
with those plans and specifications submitted to the City of Arcadia and Agency, on file therein,
-and identified in Exhibit 3 ("Assignee Parcel Scope of Development") .
3.2.2. Interim Landscaping of the Remainder Parcel. As an interim measure
prior to the final development of the Remainder Parcel, the Assignee shall landscape the
Remainder Parcel in accordance with those landscape plans and specifications identified in Exhibit
4 ("Remainder Parcel Landscape Scope of Development"). The landscaping shall be maintained
by the Assignee at its sole cost, expense and liability until the earlier to occur of the following:
(i) The expiration of six (6) months following the issuance of a Certificate of
Completion for the Assignee Project in accordance with Section 4.15.2 of this Agreement, or
(ii) The Developer's receipt of a permit authorizing the commencement of
construction of the Developer Project (hereinafter defined) upon the Remainder Parcel.
Upon the expiration of the Assignee's obligation to maintain the landscaping on the
Remainder Parcel, the Developer shall maintain such landscaping at its sole cost, expense and
liability until the Developer commences construction of the Developer Project upon the Remainder
Parcel.
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The Agency shall execute in recordable form such documents as may be reasonably
requested by the Assignee to confirm such arrangement.
3.2.3. Development of Remainder Parcel. The Developer shall develop the
Remainder Parcel for professional/medical office, retail, or restaurant use ("Developer Project"),
in accordance with Exhibit 5 ("Remainder Parcel Scope of Development") and plans and
specifications to be submitted in the future by the Developer to the Agency and the City pursuant
to this Agreement.
3.3 Schedule of Performance. The Agency, the Developer and Assignee shall
perform their respective obligations in accordance with the Schedule of Performance attached as
Exhibit 6. Deadlines for 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, as to the Developer and Assignee individually, exceed three (3)
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
45 inclusive, and Exhibits 1 through 7 attached hereto and incorporated by this reference, which
constitute the entire understanding and agreement of the parties.
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3.6 Payment to Cover Agency Legal and Other Expenses. The Developer and the
Assignee agree to reimburse the Agency for all third party costs and expenses ("Outside
Expenses") incurred and paid by the Agency with respect to the negotiation and preparation of this
Agreement. Outside Expenses include, without limitation, fees and expenses of outside legal
counsel and other consultants. The maximum amount of Outside Expenses for which the Agency
may be reimbursed pursuant to this Section 3.6 is the sum of$17,000.
The Developer and the Assignee shall, within thirty (30) days following written
demand or demands therefor from the Agency (which demands may be made at any time
following the Effective Date and which must include reasonable documentation of the Agency's
Outside Expenses), reimburse the Agency for the Agency's Outside Expenses (up to the aggregate
maximum specified in the immediately preceding paragraph) as follows: the Developer shall pay
the first$2,000 of the Agency's Outside Expenses and the Assignee shall pay the balance (up to
$15,000) of the Agency's Outside Expenses.
3.7 Joint Advertising Sign. The Agency agrees to use its reasonable good faith efforts,
at no cost or expense to the Agency, to cause the proposed developer of the Fifth Avenue Project
to construct a monument or sign advertising the Assignee Project.
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 Assignee Parcel
to the Assignee shall be paid by the Developer. The Developer shall timely pay all such taxes and
assessments levied against the Property.
All assessments, ad valorem taxes, possessory interest taxes and personal property
taxes levied or imposed upon the Assignee Parcel for any period following conveyance of the
Assignee Parcel to the Assignee shall be paid by the Assignee. The Assignee shall timely pay all
taxes and assessments levied against the Assignee Parcel.
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All assessments, ad valorem taxes, possessory interest taxes, and personal property
taxes levied or imposed upon the Remainder Parcel for any period following conveyance of title
of the Assignee Parcel to the Assignee shall be paid by the Developer. The Developer shall timely
pay all taxes and assessments levied against the Remainder Parcel.
4.2 Soils Conditions of the Property. Subject to the terms of the Soils Condition
Warranty described in Section 3.1, if the Developer determines that the soils conditions of the
Remainder Parcel are not in all respects entirely suitable for the use or uses to which the
Remainder Parcel will be put, then it shall be the sole responsibility and obligation of the
Developer at its expense to take such action as may be necessary to place the soils conditions of
' the Remainder Parcel in a condition suitable for the development of the Remainder Parcel as
provided in this Agreement.
Subject to the terms of the Soils Condition Warranty described in Section 3.1, if
the Assignee determines that the soils conditions of the Assignee Parcel are not in all respects
entirely suitable for the use or uses to which the Assignee Parcel 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 conditions of the Assignee
Parcel in a condition suitable for the development of the Assignee Parcel in accordance with this
Agreement.
4.3 Design and Development Standards. The Assignee shall develop the Assignee
Parcel as provided in the Assignee Parcel 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.
The Assignee shall develop the interim landscaping upon the Remainder Parcel in
accordance with the Remainder Parcel Landscape Scope of Development, this Agreement, and
plans and specifications to be provided by the Assignee and approved by the City and Agency
pursuant to this Agreement.
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The Developer shall develop the Remainder Parcel as provided in the Remainder
Parcel Scope of Development, this Agreement, and plans and specifications to be provided by the
Developer and approved by the Agency and the City pursuant to this Agreement.
4.4 Preparation of Construction Drawings and Related Documents. The Developer
shall prepare construction and final drawings and related documents for the development of the
Developer Project on the Remainder Parcel 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.
The Assignee shall prepare construction and final drawings and related documents
for the development of the Assignee Project on the Assignee Parcel 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. The Assignee shall also prepare and submit landscape drawings and related documents
for the interim landscaping of the Remainder Parcel 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.
Agency staff, the Developer 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, the Developer 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 Remainder Parcel and Assignee Parcel, 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,
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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 Developer or Assignee, as applicable, 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
Developer or Assignee, as applicable, 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 Developer's and Assignee's plans, in a manner consistent with statute, the City's
Municipal Code and this Agreement.
4.6 Cost of Construction. The cost of developing the Assignee Project on the
Assignee Parcel and the interim landscaping of the Remainder Parcel pursuant to Section 3.2.2,
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.
The cost of the developing the Developer Project on the Remainder Parcel, and
constructing all required on-and off-site improvements and providing all utilities therefor, shall
be borne by the Developer at its sole cost, expense, and liability. The Developer shall bear the
cost of maintaining the interim landscaping following the expiration of the Assignee's obligation
to do so as provided in Section 3.2.2.
4.7 Construction and Development Schedule of Performance. The Assignee shall
begin and thereafter complete the construction of the Assignee Project on the Assignee Parcel in
accordance with the Assignee Parcel 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
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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.
The Developer shall begin and thereafter complete the construction of the
Developer Project on the Remainder Parcel in accordance with the Remainder Parcel Scope of
Development. The Developer shall begin and complete all construction and development within
the time 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 Developer shall report to the Agency when
the Developer determines that it will not meet a performance deadline set forth in the Schedule
of Performance. on the progress of construction on the Remainder Parcel. The report shall be in
such form and detail as may be reasonably required by the Agency and shall include construction
photographs taken since the last report.
4.8 Indemnity and Insurance.
4.8.1. The Developer agrees to and shall defend, indemnify and hold the
Agency and City, and their officers, directors, agents, servants, attorneys, 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 done thereon or any errors or
omissions of the Developer or its officers, directors, agents, servants, attorneys, employees or
contractors. The Developer shall not 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 obligations set
forth in this paragraph shall apply only to acts, errors or omissions occurring prior to the issuance
of a Certificate of Completion for the Developer Project. The foregoing indemnity applies to the
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City only as and to the extent it is considered an alter ego of the Agency or a party to this
Agreement, and does not extend to any other activities of the City, including, without limitation,
the exercise of its customary municipal functions with respect to the Developer Project.
Prior to the commencement of construction on the Remainder Parcel, the Developer
shall furnish or cause to be furnished to the Agency duplicate originals or appropriate certificates
of commercial general liability insurance policies (which must include coverage for both owned
and hired vehicles) 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 Developer's
indemnity liability pursuant to this Section 4.8.1 or any other provision of this Agreement, or
arising as a matter of law or at equity. Upon the Agency's written request, the Developer 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 Remainder Parcel
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
Developer Project.
4.8.2. 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 by any acts done thereon or any errors or omissions of the Assignee
or its officers, directors, agents, servants, employees or contractors. The Assignee shall not 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
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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 obligations set forth in this paragraph shall apply only
to acts, errors or omissions occurring prior to the issuance of a Certificate of Completion for the
Assignee Project. The foregoing indemnity applies to the City only as and to the extent it is
considered an alter ego of the Agency or a party to this Agreement, and does not extend to any
other activities of the City, including, without limitation, the exercise of its customary municipal
functions with respect to the Assignee Project.
Prior to the commencement of construction on the Assignee Parcel, the Assignee
shall furnish or cause to be furnished to the Agency duplicate originals or appropriate certificates
of 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 4.8.2 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 Assignee Parcel 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
Remainder Parcel, the Developer 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 Developer in
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securing these permits or approvals. The Developer shall carry out the construction of the
Developer Project on the Remainder Parcel in conformity with all applicable laws, including all
applicable federal and state labor and safety standards.
Before commencement of construction or development of any buildings, structures
or other work of improvement upon the Assignee Parcel, 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 Assignee Parcel in conformity with all applicable
laws, including all applicable federal and state labor and safety standards.
4.10 No Discrimination. The Developer and the Assignee, for themselves and their
successors and assigns, agree that in their respective construction of the Assignee Project and the
Developer Project, the Developer and Assignee 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 Developer and Assignee will comply with all applicable local,
state and federal fair employment laws and regulations.
The Developer and Assignee covenant and agree for themselves, their successors,
assigns and every successor in interest to the Remainder Parcel or Assignee Parcel (as applicable)
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
Remainder Parcel or Assignee Parcel, nor shall the Developer or Assignee, or any person claiming
under or through them, 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 Remainder Parcel or Assignee Parcel. The foregoing
covenants shall run with the land and shall remain in effect in perpetuity.
All deeds, leases or contracts relative to either the Remainder Parcel or Assignee
Parcel or the improvements constructed thereon shall contain or be subject to substantially the
1� 421 1
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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 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."
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
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."
4.10.3 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."
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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 and Developer's reasonable safety rules.
The Agency agrees to and shall defend, indemnify and hold the Developer and
Assignee, 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 by any acts, errors or omissions of the 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 the Developer, or their respective officers, directors,
agents, servants, employees, attorneys or contractors.
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 Developer in Parcel E 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, the
Agency elected at that time to not exercise those rights and remedies available to the Agency under
Section 5.07 of the DDA. By their entry into this Agreement, the Developer and the Assignee
agree that the Agency still possesses a valid power of termination and that title to the Assignee
Parcel shall be conveyed, and that the Developer shall continue to hold title to the Remainder
Parcel, 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.
4.12.2 Remainder Parcel. The Agency shall, upon thirty (30) days written
notice to the Developer, have the right at its option and due to any cause set forth in this Section
•
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4.12.2 and for the compensation set forth below to terminate the estate vested in the Developer
with respect to the Remainder Parcel and take possession of the Remainder Parcel, together with
all improvements thereon, and to revest in the Agency fee simple title to the Remainder Parcel if
the Developer (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 Developer Project by
September 30, 2000; or
(ii) abandon or substantially suspend, or allow the abandonment or
substantial suspension, of construction of all or any portion of the
Developer Project for thirty (30) consecutive 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 Remainder
Parcel or any part thereof, in violation of this Agreement, and such
violation shall not have been cured, or commenced to be cured and
diligently prosecuted to completion thereafter, within thirty (30) days
after written notice thereof from the Agency.
The thirty (30) 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 Developer'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 Developer 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 Developer 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
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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 Remainder Parcel by grant deed
or court decree, or any part thereof, the Agency shall use its reasonable good faith efforts to
resell the Remainder Parcel 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 Developer's obligation to begin and/or complete the Developer 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 Remainder Parcel (or
any portion thereof), the proceeds thereof shall be applied as follows:
(i) First, 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 third party personnel engaged in such actions, in connection
with the recapture, management and resale of the Remainder Parcel or
any part thereof; all taxes, assessments and utility charges paid by the
City and/or the Agency with respect to the Remainder Parcel 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 Developer or the Agency or the
City with respect to the making or completion of the Developer Project
or any part thereof upon the Remainder Parcel; and amounts otherwise
owing to the Agency by the Developer or its successors in interest to the
Remainder Parcel or any part thereof pursuant to the terms hereof; and
(ii) Second, 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 Developer, or its
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-- 2-4
successors in interest to the Remainder Parcel or any part thereof, equal
to the sum of (1) the product of$11.50/sq. ft. times the actual square
footage of the Remainder Parcel, and (2) the third party costs actually
incurred and paid by the Developer for the development of the
Remainder Parcel including, but not limited to, costs of carry, taxes,
and items as set forth in the Developer's cost statement, which shall be
subject to the Agency's reasonable approval; provided, however, that
the Developer 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 subsection (i) above, or which relate to liens or other
encumbrances which are paid by the Agency pursuant to subsection (i)
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 either the
Agency or the Developer have incurred or incur certain costs and expenses which are recoverable
from resale proceeds of the Remainder Parcel as provided above, but which were in the first
instance incurred with respect to the Property as a whole, then such costs and expenses shall be
allocated to the Remainder Parcel in a percentage equal to the quotient obtained by dividing the
actual gross square footage of the Remainder Parcel by the actual gross square footage of the
Property.
4.12.3 Assignee Parcel. 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 4.12.3
and for the compensation set forth below to terminate the estate vested in the Assignee and take
possession of the Assignee Parcel, together with all improvements thereon, and to revest in the
Agency fee simple title to the Assignee Parcel if the Assignee (or its successors in interest) shall:
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(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 March
16, 1999; 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
(iii) Assign or attempt to assign this Agreement, or any rights or obligations
herein, or transfer, or suffer any involuntary transfer, of the Assignee
Parcel or 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 (30)
days after written notice thereof from the Agency.
Thirty-day written notice specified in this Section 4.12.3 shall specify that the Agency proposes
to take action pursuant to this Section 4.12.3 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 Developer 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 Assignee Parcel by grant deed or
court decree, the Agency shall use its reasonable good faith efforts to resell the Assignee Parcel
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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 Assignee Parcel (or any portion thereof), the
proceeds thereof shall be applied as follows:
(i) First, to pay in full any mortgage, deed of trust, or other encumbrance
required for any reasonable method of financing the construction of the
Assignee Project, which was approved by the Agency pursuant to
Section 4.14.2; 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 third party personnel engaged in such actions, in connection
with the recapture, management and resale of the Assignee Parcel or
any part thereof; all taxes, assessments and utility charges paid by the
City and/or the Agency with respect to the Assignee Parcel 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 of the Assignee Project
or any part thereof upon the Assignee Parcel; and amounts otherwise
owing to the Agency by the Assignee or its successors in interest to the
Assignee Parcel 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
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encumbrances with a claim thereto, to reimburse the Assignee, or its
successors in interest to the Assignee Parcel or any part thereof, equal
to the sum of(1) the product of$15.00/sq.ft. multiplied by the actual
square footage of the Assignee Parcel; and (2) the third party costs
actually incurred and paid by the Assignee for the development of the
Assignee Parcel 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 either the
Agency or the Assignee have incurred or incur certain costs and expenses which are recoverable
from resale proceeds of the Assignee Parcel as provided above, but which were in the first
instance incurred with respect to the Property as a whole, then such costs and expenses shall be
allocated to the Assignee Parcel by a percentage equal to the quotient obtained by dividing the
actual gross square footage of the Assignee Parcel by the actual gross square footage of the
Property.
4.12.4 Agency Review of Assignee Parcel Grant Deed. The Agency shall
have the right of reasonable review and approval of the grant deed for the Assignee Parcel from
the Developer 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 Assignee Parcel
is being conveyed expressly subject to such rights.
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D
4.12.5 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 Assignee Parcel or
Remainder Parcel and any other expenditures necessary to appropriately develop the Assignee
Parcel or Remainder Parcel under this Agreement, provided that the Agency has, as provided in
Section 4.14.1 or 4.14.2 (as applicable), 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 4.14.1 or 4.14.2 (as applicable), then the
Agency's power of termination as to the Remainder Parcel or Assignee Parcel (as applicable) shall
be extinguished and the Agency shall have no right to reenter, repossess, terminate and revest the
Remainder Parcel or Assignee Parcel (as applicable). 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 or
Developer Project (as applicable) any grant deed or ground lease to the Assignee Parcel or
Remainder Parcel or any portion thereof conveyed or leased by the Developer or 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 Developer or the Assignee
(as applicable) or their successors shall convey by grant deed to the Agency fee simple title to the
Assignee Parcel or Remainder Parcel (as applicable) in accordance with Civil Code Section 1109,
as hereafter amended or substituted. Such conveyance shall be duly acknowledged by the
Developer or Assignee (as applicable) 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.
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IMMEDIATELY FOLLOWING THE 30 DAY PERIOD SPECIFIED IN SECTION
4.12.2 OR 4.12.3 (AS APPLICABLE), THE AGENCY, ITS EMPLOYEES AND AGENTS
SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF ALL OR ANY
PORTION OF THE ASSIGNEE PARCEL OR THE REMAINDER PARCEL (AS
APPLICABLE) AND THEIR IMPROVEMENTS UPON FIVE (5) BUSINESS DAYS PRIOR
WRITTEN NOTICE TO THE DEVELOPER OR ASSIGNEE. BY ITS INITIALS BELOW,
THE DEVELOPER AND THE ASSIGNEE HEREBY EXPRESSLY WAIVE, TO THE
MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS WHICH THEY
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.
DEVELOPER'S INITIALS ASSIGNEE'S INITIALSl ..
BY THEIR INITIALS BELOW, THE DEVELOPER AND THE ASSIGNEE
ACKNOWLEDGE AND AGREE 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 THEIR RESPECTIVE ESTATES IN THE ASSIGNEE PARCEL
OR REMAINDER PARCEL(AS APPLICABLE). THE DEVELOPER AND THE ASSIGNEE
HEREBY EXPRESSLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
ANY AND ALL EQUITABLE AND LEGAL DEFENSES THAT THEY MAY HAVE TO
SUCH FORFEITURE, INCLUDING, BUT NOT LIMITED TO, THE DEFENSES OF
LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE
DAMAGES. THE DEVELOPER AND THE ASSIGNEE FURTHER EXPRESSLY WAIVE
ALL RIGHTS AND DEFENSES THAT THEY MAY HAVE UNDER CIVIL CODE SECTION
3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR IMPORT
OR EFFECT.
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•
3°
THE DEVELOPER AND THE ASSIGNEE IRREVOCABLY STIPULATE THAT
THEY HAVE RECEIVED INDEPENDENT AND ADEQUATE CONSIDERATION
HEREUNDER FOR THEIR WAIVER AND RELINQUISHMENT OF RIGHTS.
DEVELOPER'S INITIALS kg ASSIGNEE'S INITIALS c !�
4.12.7 Stipulation and Contingent Creation of New Power of Termination.
The Developer and the Assignee stipulate and agree that the Agency possesses an enforceable
power of termination as to both the Assignee Parcel and Remainder Parcel, respectively, as such
powers of termination are described in California Civil Code Section 885.010, et sec . The
Developer and the Assignee hereby irrevocably waive, relinquish and forego, to the maximum
extent permitted by law, any and all claims that, by its 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 of time, estoppel, laches, excuse, or otherwise, its rights as set
forth in Section 5.07 of the DDA.
The immediately preceding paragraph notwithstanding, the Developer 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 of the Agency, operation of law, or otherwise, then this Section 4.12 shall constitute and
create a new power of termination in favor of the Agency (as to both the Assignee Parcel and the
Remainder Parcel) 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.
4.13.1 Remainder Parcel. Prior to the issuance of a Certificate of Completion
for the Developer Project, the Developer may not, except as permitted by this Section 4.13.1 or
Section 4.14.1, assign or attempt to assign this Agreement or any right or obligation herein, nor
make any total or partial sale, transfer, conveyance or assignment of the whole or any part of the
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eep
t.t7
•
Remainder Parcel 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 4.13.1.1 or
4.13.1.2, provided the Developer shall first notify the Agency in writing of the proposed action.
The actions to which this exception applies are:
4.13.1.1 The granting of easements or permits to facilitate the development of
the Remainder Parcel; or
4.13.1.2 The assignment or delegation of all or portions of the Developer's rights
or obligations hereunder, or the sale, transfer, conveyance, lease or
assignment of all or any part of the Remainder Parcel or any
improvements thereon, to a limited partnership of which the Developer
is a general partner, or to a limited liability company in which the
Developer or its general manager is the manager, or to a corporation in
which the Developer or its general manager is a "control person" as
defined by Federal securities laws, or to a general partnership of which
the Developer or its general manager is a member. Any such
assignment, sale, transfer or conveyance pursuant to this Section
4.13.1.2 shall not relieve the Developer of liability for the timely and
faithful performance of any assigned obligation, absent an express
agreement between the Agency, the Developer and the third party
transferee to the contrary.
No unpermitted sale, transfer, conveyance or assignment of all or any portion of
this Agreement or Remainder Parcel shall be deemed to relieve the Developer 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 Remainder Parcel or this Agreement.
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4.13.2 Assignee Parcel. Prior to the issuance of a Certificate of Completion
for the Assignee Project, the Assignee may not, except as permitted by this Section 4.13.2.or
Section 4.14.2, assign or attempt to assign this Agreement or any right or obligation herein, nor
make any total or partial sale, transfer, conveyance or assignment of the whole or any part of the
Assignee Parcel 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 4.13.2.1 or
4.13.2.2, provided the Assignee shall first notify the Agency in writing of the proposed action.
The actions to which this exception applies are:
4.13.2.1 The granting of easements or permits to facilitate the development of
the Assignee Parcel; or
4.13.2.2 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 of the Assignee Parcel 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
4.13.2.2 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. The foregoing provisions of this Section
4.13.2 notwithstanding, an assignment to a wholly owned subsidiary of
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3)
the Assignee with no other assets or liabilities except those relating
exclusively to the Assignee Project, and provided that the subsidiary
assumes of all the Assignee's liabilities under the Agreement, shall
operate to relieve the Assignee from its obligations under this
Agreement and shall not require the Agency's approval.
No unpermitted sale, transfer, conveyance or assignment of all or any portion of
this Agreement or the Assignee Parcel 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 Assignee Parcel or this Agreement.
4.14 Permitted Encumbrances.
4.14.1 Remainder Parcel. Section 4.13.1 notwithstanding, mortgages, deeds
of trust, sales and leasebacks or any other form of conveyance required for any reasonable method
of financing the Developer Project are permitted before recordation of a Certificate of
Completion, but only for the purpose of financing the construction (or any refinancing thereof)
of the Developer Project and any other expenditures necessary and appropriate to develop the
Remainder Parcel (and no other property(ies)) under this Agreement. The Developer 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 Developer 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 Developer 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.
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 Developer Project in a manner
consistent with the terms of this Agreement; (ii) such financing will restrict or impair the ability
of the Developer to carry out its obligations hereunder; and (iii) the lender fails to agree to provide
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the Agency notice of any Developer default and an opportunity to cure such default and the
opportunity to pay off the financing on the same terms as the Developer could.
Upon the Agency's receipt of notice of the Developer's default from the lender,
and the Developer'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 Developer's behalf.
• The Developer's failure to cure such default on its own behalf shall be deemed a material default
under this Agreement. The Developer 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
Developer'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 Developer Project or to guarantee
such construction. Nothing in this Agreement shall be deemed to permit or authorize any such
holder to develop the Remainder Parcel or construct improvements thereon except in strict
compliance with this Agreement. Any right, title or interest in the Remainder Parcel (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.
4.14.2 Assignee Parcel. Section 4.13.2 notwithstanding, mortgages, deeds of
trust, sales and leasebacks or any other form of conveyance required for any reasonable method
of financing 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) of the Assignee
Project and any other expenditures necessary and appropriate to develop the Assignee Parcel (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
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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.
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; and (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 the Assignee could.
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 Assignee Parcel or construct improvements thereon except in strict compliance with
this Agreement. Any right, title or interest in the Assignee Parcel (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.
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4.15 Certificate of Completion.
4.15.1 Remainder Parcel. Upon the Developer's completion of construction
of the Developer Project, the Agency shall furnish the Developer with a Certificate of Completion
within thirty (30) days following written request therefor by the Developer. 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 Developer Project and of
full compliance by the Developer with the terms of this Agreement (other than the covenants
running with the Remainder Parcel as set forth in Sections 4.10 and 4.16.1). 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 Developer, the Agency shall provide, within the aforementioned thirty (30) day
period, a written statement to the Developer 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 Developer to a Certificate of Completion for the
Developer Project. . The statement shall contain the Agency's opinion all of the actions the
Developer 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 land-
scaping, the Agency shall issue a Certificate of Completion upon the Developer'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 Developer or a Certificate of Occupancy as provided by City's
Municipal Code or any holder of a mortgage or any insurer of a mortgage. A Certificate of
Completion will not constitute a notice of completion as referred to in Civil Code Section 3093.
4.15.2. Assignee Parcel. Upon the Assignee's completion of the construction
of the Assignee Project, the Agency shall furnish the Assignee with a Certificate of Completion
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37
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 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 Assignee Parcel as set forth in Sections 4.10 and Section 4.16.2).
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 or a Certificate of Occupancy as provided by City's
municipal code or any holder of a mortgage or any insurer of a mortgage. 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 Remainder Parcel.
4.16.1.1 Use Covenant. The Developer covenants and agrees for
itself, its assigns and all voluntary and involuntary
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3S
successors in interest to the Remainder Parcel or any part
thereof, that, until the expiration of the Redevelopment
Plan, the Remainder Parcel 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 Developer Project.
4.16.1.2 No Conveyance to Tax Exempt Entity. The Developer
covenants and agrees for itself, its assigns and all
voluntary and involuntary successors in interest to the
Remainder Parcel 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 Remainder Parcel or any
portion thereof may not be used, or otherwise sold,
transferred, conveyed, assigned, leased, leased-back, or
hypothecated to or for any use that is partially or wholly
exempt from the payment of real property taxes or which
would cause the exemption of all or any portion of such
real property taxes.
4.16.1.3 No Property Tax Contest. The Developer covenants and
agrees for itself, its successors, its assigns and all
voluntary and involuntary successors in interest to the
Remainder Parcel 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
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_ i 1 VVV
substituted), the Developer shall not contest the assessed
valuation of the Remainder Parcel or any part thereof, as
established by the Los Angeles County Assessors Office,
in a manner which would cause the assessed value of the
Remainder Parcel (or any part thereof) to be less than the
product of$11.50 per square foot multiplied by the actual
square footage of the Remainder Parcel.
The covenants set forth in and Section and Sections 4.16.1.1 through 4.16.1.3
touch and concern the Remainder Parcel, and every part thereof, and constitute covenants running
with the Remainder Parcel and every part thereof. These covenants shall survive issuance of a
Certificate of Completion for the Developer Project and 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. Developer
hereby irrevocably stipulates and agrees that breach of any of the covenants set forth in Section
4.10 or Sections 4.16.1.1 through 4.16.1.3 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 4.16.1.1 through 4.16.1.3 may be enforced by means of an injunctive relief or
specific performance action against the then-owner of the Remainder Parcel.
4.16.2 Assignee Parcel.
4.16.2.1 Use Covenant. The Assignee covenants and agrees for
itself, its assigns and all voluntary and involuntary
successors in interest to the Assignee Parcel or any part
thereof, that, until the expiration of the Redevelopment
Plan, the Assignee Parcel shall be put to the uses specified
in the Redevelopment Plan and the City's General Plan
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and Zoning Ordinances, this Agreement, and any permits
or entitlements which may be required for the Assignee
Project.
4.16.2.2 No Conveyance to Tax Exempt.Entity. The Assignee
covenants and agrees for itself, its assigns and all
voluntary and involuntary successors in interest to the
Assignee Parcel 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 Assignee Parcel or any
portion thereof may not be used, or otherwise sold,
transferred, conveyed, assigned, leased, lease-back, or
hypothecated to or for any use that is partially or wholly
exempt from the payment of real property taxes or which
would cause the exemption of all or any portion of such
real property taxes.
4.16.2.3 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
Assignee Parcel 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 Assignee Parcel or any part thereof, as
established by the Los Angeles County Assessors Office,
in a manner which would cause the assessed value of the
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• LI )
Assignee Parcel (or any part thereof) to be less than the
product of $15 per square foot multiplied by the actual
square footage of the Assignee Parcel.
4.16.2.4 Operation Covenant. The Assignee covenants and
agrees for itself, its successors, its assigns and all
voluntary and involuntary successors in interest to the
Assignee Parcel, Assignee Project or any part thereof,
that, until expiration of the Redevelopment Plan, so long
as there is any use of the Assignee Parcel or the Assignee
Project (or any part thereof), (i) such use shall be for a
quality reputable extended stay residential hotel, including
ancillary uses located within the hotel, such as, without
limitation, a restaurant, gift shop, newsstand and
shoeshine stand; (ii) the Assignee Parcel 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; (iii) the Assignee Project shall be
marketed and advertised to the business community and
shall provide weekly maid service; and (iv) neither the
Assignee Project nor Assignee Parcel shall be used for
permanent housing.
The covenants set forth in Section 4.10 and Sections 4.16.2.1 through 4.16.2.4
touch and concern the Assignee Parcel, and every part thereof, and constitute covenants running
with the Assignee Parcel 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
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Sections 4.16.2.1 through 4.16.2.4 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 4.16.2.1
through 4.16.2.4 may be enforced by means of an injunctive relief or specific performance action
against the then-owner of the Assignee Parcel.
4.17 General Damages and Other Remedies. If the Developer, 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 of the 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
consequential, speculative or punitive damages and all parties hereby waive all claims to the
recovery thereof.
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; provided,
however, that the default of the Developer with respect to the development of the Remainder
Parcel shall not constitute a default of the Assignee with respect to the Assignee Parcel, nor shall
a default of the Assignee with respect to the development of the Assignee Parcel constitute a
default of the Developer with respect to the Remainder Parcel.
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, at any time prior to the close
of escrow for the conveyance of the Assignee Parcel to the Assignee, terminate this Agreement
and all of its obligations hereunder, without cost, expense or liability, if either the Assignee or the
Developer are in material default of any of their obligations under this Agreement and have 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.
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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 Developer or Assignee, any successors or assignees, or any lender or party holding an
interest in the Assignee Parcel or Remainder Parcel in the event of any default or breach by the
Agency, or for any amount which may become due to the Developer 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 Developer or Assignee to obtain or
maintain financing for (i) the acquisition of the Assignee Parcel or Remainder Parcel or (ii) the
construction of the Assignee Project the Developer Project.
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, gg
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.
The Agency agrees to consider the Developer's request for future amendments to
this Agreement, either as to the deadlines for the Developer's performance hereunder or the
allowable uses upon the Remainder Parcel, which the Developer believes are reasonably necessary
due to adverse changes in the economy and/or market conditions. The Developer shall furnish
the Agency with a written request for any such amendments, specifically setting forth the
requested amendments and the adverse economic and/or market conditions which the Developer
believes justify the requested amendments. The Developer shall have the burden to demonstrate,
to the Agency's reasonable satisfaction, the existence of such adverse changes in economic and/or
market conditions. The Agency may consider, without limitation, the following factors in
determining whether or not to grant or approve the Developer's requested amendments: an
increase in unemployment rates in the San Gabriel Valley for at least four (4) consecutive
quarters; a general decrease in the fair market value of similarly situated commercial properties
within the San Gabriel Valley for at least four (4) consecutive quarters; and, an increase in
construction financing costs for at least four (4) consecutive quarters. The Agency's obligation
hereunder shall be to reasonably consider the Developer's request and supporting information; the
Agency shall not be obligated to approve the Developer's requested amendments.
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.
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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 Assignee and the Developer shall, as to their respective Parcel, defend, indemnify and hold
the Agency harmless from all costs, expenses, damages and liabilities asserted against the Agency
in connection therewith.
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, Developer 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 Developer, but only if such amendment directly affects the Developer'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 of the Agency,
including, but not limited to, the granting of extensions of time to the Developer 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 Developer 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 Developer and the Assignee, or due to the fact that either
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the City or the Agency is a party to such action or proceeding. Without limiting the generality
of the foregoing, the Developer and Assignee specifically waive, to the 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, Developer 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 Third Party Beneficiaries. The performance of the Agency's, the Developer's
and Assignee's respective obligations under this Agreement are not intended to benefit any party
other than the Agency, Assignee or the Developer. No person or entity not a signatory to this
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, .
If f°
. , , ,
_ _
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.
The foregoing notwithstanding, the City of Arcadia is declared to be an intended
third party beneficiary as to performance of the Developer's and Assignee's obligations and
covenants under this Agreement.
Dated: 7:04177 THE ARCADIA REDEVELOPMENT AGENCY
By: f`/%%��� - ,/,/,,/G�
xecutiv Irector of the Arcadia
i6/ (E
Redevelopment Agency
APPROVED AS TO FORM:
Michael Mille
Agency General Counsel
APPR: • _.! •, TO ORM:
BEST BE:T & 49 ' R LLP
_}/1411111.5111 -4111Nr. _ ?Ai A.
Age'cy .- gillib iel
9'7. 1442181
RVPUB\IQCR130927 43- 8/26/97 13:54
EMKAY DEVELOPMENT COMPANY,
a Nevada corporation
Dated: X57
By:
Its: f/l C i-J
ATTEST:
By:
Secretary
APPROVED AS TO FORM:
[ ]
Attorney for the Developer
97: 1442181 -
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IP 17 LI,9
ESA MANAGEMENT, INC.
a Delaware corporation
Dated: 9-4-'I B •
Shawn R.Ruben
Its: Vice President-Development
ATTEST:
By -
Gregory R.Moxley
Assistant Secretary
97 1442181
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STATE OF CALIFORNIA }
COUNTY OF� �n 5-e BPS } CAPACITY CLAIMED
ds
BY SIGNER:
❑Individual(s)
On 9--a` 11, 1997, before me, the undersigned notary public, personally ❑Corporate
appeared Hann;a gar 4Pr ,IX personally known to me Officer(s)
OR❑proved to me on the basis of satisfactory evidence to be the person whose name is ❑Partner(s)
subscribed to the within instrument and acknowledged to me that he executed the same in ❑Attorney-in-Fact
his authorized capacity,and that by his signature on the instrument the person,or the entity ❑Trustee(s)
upon behalf of which he person acted,executed the instrument. ❑Subscribing Witness
❑Guardian/Conservator
g Other,
WITNESS my hand and official seal. SIGNER IS REPRESENTING:
NAME OF PERSON(S)OR ENTITY(IES)
'a re of Notary
(SEAL)
JUNE D.ALFORD
rye, COMM.#1042376 Z
z 7.-41,'t .; Notary Public—California a
;' LOS ANGELES COUNTY
My Comm.Expires JAN 13,1999
97 1442181.
. , . 61 .
.. .
..
STATE OF CALIFORNIA }
s 5 CAPACITY CLAIMED
COUNTY OF� 1d., a, } BY SIGNER:
❑Individual(s)
On , 1997 before me,the undersigned notary public,personally ❑Corporate
appeared `�• T Ylpersonally known to Officers)
me OR❑proved to me on the basis of sa actory evidence to be the person whose ❑Partner(s)
name is subscribed to the within instrumen and acknowledged to me that he executed ❑Attorney-in-Fact
the same in his authorized capacity,and that by his signature on the instrument the ❑Trustee(s)
person,or the entity upon behalf of which he person acted,executed the instrument. ❑Subscribing Witness
❑Guardian/Conservator
WITNESS my hand and official seal. ® Other EXECUTIVE DIRECTOR OF
AGENCY
SIGNER IS REPRESENTING:
—.MIL L _ILL f. NAME OF PERSON(S)OR ENTITY(IES)
Signature of gill RIVERSIDE REDEVELOPMENT
AGENCY
(SEAL) :' ��
�M�(.:CN**•/4/ i�11+
i : NC—TT i
r PUBLIC .
++11■ d'J. ••O• /
".h�\`OF IV
97 1442181
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. ,
STATE OF FLoelpp., }
} CAPACITY CLAIMED
COUNTY OF Se Dwq BY SIGNER:
❑Individual(s)
On 9 l'1 , 1997 before me,the undersigned notary public,personally 'Corporate
appeared S1-}A-v0) Q- Q-u,$EN ,'91.personally known to Officer(s) VP
me OR❑proved to me on the basis of satisfactory evidence to be the person whose ❑Partner(s)
name is subscribed to the within instrument and acknowledged to me that he executed ❑Attorney-in-Fact
the same in his authorized capacity,and that by his signature on the instrument the ❑Trustee(s)
person,or the entity upon behalf of which he person acted,executed the instrument. ❑Subscribing Witness
❑Guardian/Conservator
®Other
WITNESS my hand and official seal. SIGNER IS REPRESENTING:
NAME OF PERSON(S)OR ENTITY(IES)
/� REDEVELOPER
Sig/re o v otary
(S ) / ���'a JOY M. BEI.NAVtS
:� �� , COMMISSION # CC 531998
r.7 EXPIRES FEB 12, 2000 •
"•�.rte`.,4 BONDED THRU
� OfFt ATLANTIC WINDING CO., INC.
97, 1442181
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53
_ .
EXHIBIT 1 TO EMKAY DEVELOPMENT COMPANY
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Legal Description of Assignee Parcel
Parcel 1 of Parcel Map No. 24755, in the City of Arcadia, County of Los
Angeles, State of California, as per plat recorded in Book Z72 of Parcel Maps,
pages 17 through l ?3 , inclusive, records of said County.
97 1442181
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5-1-/
•
EXHIBIT 2 TO EMKAY DEVELOPMENT COMPANY
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Legal Description of Remainder Parcel
Parcel 2 of Parcel Map No. 24755, in the City of Arcadia, County of Los
Angeles, State of California, as per plat recorded in Book `L7', pages `1
through (g , inclusive, records of said County. - • .
•
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•
S5
EXHIBIT 3 TO EMKAY DEVELOPMENT COMPANY
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Assignee Parcel Scope of Development
Assignee Parcel
The Assignee shall design and construct on the Assignee Parcel at its sole cost a high quality,
3-story, 122-room Extended Stay Hotel including all required on-site and off-site
improvements consistent with the plans identified in (a), (b) and (c) below, and in accordance
with all federal, state and local laws and regulations, this Agreement and Schedule of
Performance (Exhibit 6).
122 Units
(a) MCG Architects
Site Plans dated 08/08/97
97-171 T1-1. DWG
(b) MCG Architects
Elevations (2 pages) dated 08/08/97
(c) MCG Architects/Topia Assoc.
Landscaping Plans dated 05/08/97
•
•
97 1442181
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lb/(47
•
•
EXHIBIT 4 TO EMKAY DEVELOPMENT COMPANY
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Remainder Parcel Landscaping Scope of Development
ESA/Musil, Perkowitz and Ruth
Site and Landscaping Plans (2 pages)
dated 2/7/97 - 96.101.11
(D96101S5.DWG and D9610156.DWG)
•
R«� �z44, 97-4-442181 9, 0,97 14:13
pi, 7
EXHIBIT 5 TO EMKAY DEVELOPMENT COMPANY
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Remainder Parcel Scope of Development
The.Developer shall design and construct on the Remainder Parcel a commercial high quality
development of 20,000 - 40,000 sq. ft. containing professional or medical office, retail
building(s), R&D office/light manufacturing, hotel, restaurant, or senior citizen housing uses,
including all related on-site and off-site improvements in accordance with federal, state and
local laws and regulations.
•
•
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EXHIBIT 6 TO EMKAY DEVELOPMENT CORPORATION
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
Assignee Parcel
1. Agreement Approval Date (Agency Approval) February 18, 1997
2. (A) Execution of Agreement by Assignee
and Developer by September 12, 1997
(B) Execution of Agreement by Agency by September 19, 1997
(Original sent to County Recorder, copy
sent to Developer and Assignee by Agency
3. Assignee applies, pays fees for Conditional by June 30, 1997
Use permit, modifications (if any)
4. Planning Commission meeting on a CUP, by July 31, 1997
modifications (if any)
5. Assignee submits construction plans, by August 29, 1997
pays fees for ESA Hotel, on and off-
site improvements, and Remainder
Parcel landscaping
6. Assignee pays fees, pulls building by November 26, 1997
permit for Assignee and Remainder Parcel
7. Close of escrow - Emkay and ESA by December 31, 1997
8. Assignee completes foundation of building; by April 1, 1998
Assignee completes landscaping/
fencing of Remainder Parcel
9. Assignee completes framing of building by June 30, 1998
97 1442181
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10. Assignee completes construction of hotel and by December 31, 1998
all onsite/offsite improvements and opens full
hotel (City issues Certificate of Occupancy)
11. Assignee advises Agency that Assignee by January 31, 1999
Parcel is complete and open, requests
Certificate of Completion
12. Agency approves, as/if appropriate, within thirty (30) days
Certificate of Completion; forwards following Assignee's
executed originals to Assignee for written request
recordation
Remainder Parcel
1. Agreement Approval (Agency Approval) February 18, 1997
2. Assignee submits plans, pays fees for by August 29, 1997
landscaping/fencing on Remainder Parcel,
per Exhibit 4
3. Assignee completes landscaping/fencing by April 1, 1998
on Remainder Parcel per Exhibit 4
4. Developer submits plans, application(s) within 2 months of Agency
for modifications (if any), pays fees approval of Assignee's
for development of Remainder Parcel per Certificate of Completion,
Agreement but no later than May 18,
1999
5. Developer pulls permit within 6 months of
Agency approval of
Assignee's Certificate of
Completion, but no later
than September 18, 2000
6. Developer completes foundation of within 8 months of Agency
building pre-approved plans approval of Assignee's
Certificate of Completion,
but no later than Nov. 30,
1999
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•
: • 10
7. Developer completes framing of building within 12 months of
Agency's approval of the
Assignee's Certificate of
Completion but no later
than March 31, 2000
8. Developer completes all on-site and offsite within 16 months of
construction (City issues Certificate of Agency approval of the
Occupancy), use begins full operation Assignee's Certificate
of Completion but no
later than July 31, 2000
9. Developer advises Agency Developer Project within 13 months of
is complete and open, requests Certificate Agency approval of
of Completion Assignee's Certificate
of Completion, but no
later than August 31, 2000
•
10. Agency approves, as/if appropriate, within thirty (30) days
Certificate of Completion, forwards following Developer's
executed original to Developer written request
for recordation
•
97 1442181
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, '&1
V
EXHIBIT 7 TO EMKAY DEVELOPMENT CORPORATION
AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT
Soils Condition Warranty
[attached]
97 1442181
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1!!:
•
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 relatlrg
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 cn the list of sites known to
• . contain toxic or hazardous waste materials or substances 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 reasonable
attorneys fees) which the Developer may incur as a result of a
subsequent determination that toxic pr 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.
•
•
•
•
97. 1442181