Resolution - 8823RESOLUTION NO. 8823
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
WEST COVINA APPROVING THAT CERTAIN AGREEMENT
ENTITLED "SECOND AMENDMENT TO OWNER
PARTICIPATION AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF WEST COVINA
AND SYLVAN S. SHULMAN CO./ WEST COVINA
ASSOCIATES" AND MAKING FINDINGS REGARDING
CERTAIN PUBLIC IMPROVEMENTS
THE CITY COUNCIL OF THE CITY OF WEST COVINA DOES HEREBY
RESOLVE AS FOLLOWS:
SECTION 1. The City Council of the City of West Covina
(the "Agency") hereby finds, determines and declares that:
A. On June 26, 1989, the Agency and the City Council of
the City of West Covina (the "City Council") approved an Owner
Participation Agreement between the Agency and Sylvan S.
Shulman Co./West Covina Associates ("Developer") for the
expansion of the Fashion Plaza Regional Shopping Mall ("OPA").
B. On April 9, 1990, Developer and Agency entered into
that certain amendment to the OPA ("First Amendment") for the
purpose of modifying the rights and obligations of Developer
and Agency under the OPA as set forth in the First Amendment.
C. Sylvan S. Shulman Company, the general partner of
Shulman, has entered into an agreement with CenterMark
Properties of West Covina (CMP) pursuant to which Shulman will"
be dissolved, the rights and obligations under the OPA, the
First Amendment and the Second Amendment approved hereby will
be assigned to CMP and the assets distributed to the Sylvan S;
Shulman Company and CMP as partners of Shulman in accordance
with their respective interests ("Dissolution, Assignment and
Conveyance").
D. Since that time, Agency staff has been implementing
the terms of the OPA and has negotiated with the Developer for
a proposed Second Amendment to the Owner Participation
Agreement ("Second Amendment"). The proposed Second Amendment
would confirm and consent to the Dissolution, Assignment and
Conveyance and modify the rights and obligations between the
• Agency and CMP. The modifications to the rights and
obligations are contingent upon the close of escrow with
respect to the Dissolution, Assignment and Conveyance.
E. The Agency and the City Council have held a duly
noticed joint public hearing on said Second Amendment to the
Owner Participation Agreement pursuant to the requirements of
• Health and Safety Code Section 33433 and other applicable law.
F. Concurrently with the first publication of the notice
of said joint public hearing, the Agency and the City have made
available to the public a report on the proposed Second
Amendment to the Owner Participation Agreement, which report
was duly prepared and made available to the public in
accordance with the requirements of Health and Safety Code
Section 33433 and other applicable law.
G. On June 12, 1989, the Board of Directors of the Agency
and the City Council certified and approved the environmental
impact report for the Fashion Plaza Expansion Project. This
EIR addresses issues concerned with the specific project and
anticipated additional development as would be provided on the
property subject to the First Amendment. The proposed First
Amendment contains no features or impacts which will require
important revisions to the previously approved EIR, nor new,
significant environmental impacts not previously considered in
the original EIR. On April 27, 1992, an initial study was
prepared to address Precise Plan No. 840, Rev. 2 relating to
the approval of The Plaza at West Covina Master Plan. The
initial study was prepared based upon review of the project
information and based upon the Final Environmental Impact
Report for the Fashion Plaza expansion, certified on June 12,
1989. The initial study has disclosed that although the
proposed project could have a significant effect on the
environment, there will not be a significant effect because
mitigation measures have been incorporated into the project's
design. A Negative Declaration of Environmental.Impact..has been
prepared. The approval of the Second Amendment is conditioned
upon the Developer complying with and implementing the
mitigation measures described in the Final Environmental Impact
Report for the Fashion Plaza Expansion Project as approved by
City Council Resolution No. 8346.
H. The Agency is authorized to carry out the
redevelopment of Central Business District Redevelopment
Project Area (the "Project").
I. The Redevelopment Plan for the Project Area authorizes
and directs the Agency to pay all or part of the value of the
acquisition and construction of public improvements, which are
• enumerated in materials referenced in the Redevelopment Plan
and which includes certain public improvements.
J. The Agency desires to contribute toward the cost of
debt service on the Community Facilities District 1989-1 which
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was established to finance the construction of certain public
improvements within the Project Area (the "Public
Improvements").
. K. California Health and Safety Code Section 33445
provides that the redevelopment agency may, with the consent of
the legislative body, pay all or part of the value of public
buildings, facilities, structures or other improvements upon a
finding that such public improvements are of benefit to the
Project Area or the immediate neighborhood in which the Project
is located and that there is no other reasonable means of
financing such public improvements available for the community.
L. Without the direct financial participation by the
Agency, there are insufficient resources available for the
payment of debt service incurred with respect to the Public
Improvements.
M. The Public Improvements are used by and are of benefit
to persons residing in the Project Area.
N. The Agency has received and reviewed the Report of
Independent Financial Consultant Pursuant to Section 5.17 of
the Fiscal Agent Agreement by and between the Agency and
Bankers Trust Company of California, National Association,
dated February 1, 1990. A copy of such report is attached
hereto as Exhibit "A" and incorporated herein (the "Report").
SECTION 2. The City Council hereby approves that certain
Agreement entitled "Second Amendment to Owner Participation
Agreement by and between the Redevelopment Agency of the City
of West Covina and Sylvan S. Shulman Co./West Covina
Associates" and dated as of June 5, 1992 and authorizes the
Agency Chairman to execute it in substantially the form
attached hereto as Exhibit "B".
SECTION 3. The City Council hereby determines that the
construction and financing of the Public Improvements will be
of benefit to the Project Area and the surrounding area
neighborhood in which the Project is located. The City Council
further determines that there are no other reasonable means for
financing the construction of the Public Improvements without
having the Agency pay all or part of the value of such Public
Improvements.
SECTION 4. The City Council hereby approves the Report
• which is attached hereto as Exhibit "A".
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•
The City Clerk shall certify to the adoption of this
Resolution.
APPROVED AND ADOPTED this 27 day of May , 1992.
Mayor
ATTEST:
L/,�10 .
City, Clerk
I HEREBY CERTIFY that the foregoing Resolution No. 8823
was duly adopted by the City Council of the City of West Covina
at a special meeting thereof held on the 27 day
of May , 1992, by the following vote:
AYES: Herfert, McFadden, Jennings, Manners
NOES: None
ABSENT: None
ABSTAIN: Wong
c
City Clerk
APPROVED AS TO FORM:
0 1-1 cX -
City ��eAttorney
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EXHIBIT A
REPORT OF INDEPENDENT FINANCIAL CONSULTANT
PURSUANT TO SECTION 5.17 OF THE FISCAL AGENT AGREEMENT
Redevelopment Agency of the City of West Covina
Community Facilities District No. 1989-1
(Fashion Plaza)
1989 Special Tax Bonds
This report has been prepared for the purpose of meeting the requirements of
Section 5.17 of the Fiscal Agent Agreement by and between the Redevelopment
Agency of the City of West Covina (the "Agency") and Bankers Trust Company of
California, National Association, dated February 1, 1990 (the "Fiscal Agent
Agreement") of the above -referenced issue (the "Bonds"). Such Section of the Fiscal
Agent Agreement requires prior to any amendment of the Owner Participation
Agreement by and between the Agency and Sylvan S. Shulman Company/West
Covina Associates, dated June 26, 1989 (the "OPA"), that an opinion of an
Independent Financial Advisor be obtained stating that such amendment will not
adversely affect the payment of the Bonds or the pledge of revenues under the Fiscal
Agent Agreement. Rod Gunn Associates, Inc. ("Gunn") is an Independent Financial
Advisor within the meaning of Section 5.17 of the Fiscal Agent Agreement. Gunn
has read the pertinent provisions of the Fiscal Agent Agreement to which this report
relates. Gunn has received and reviewed a document entitled "Second Amendment to
Owner Participation Agreement" and certain other financial information, which in
our opinion, is sufficient to enable Gunn to express an informed opinion.
In Rod Gunn Associates, Inc.'s opinion, the proposed amendment to the Owner
Participation Agreement will not adversely affect the payment of the Bonds or the
pledge of revenues under the Fiscal Agent Agreement.
Very truly yours,
iROD GUNN ASSOCIATES, INC.
consuisa:vrs
U�)-�1.,;/ IIC.J_:'h9 tii�IliYl J!lt;.; i'�I iI!GIOGl46yh0 �Uli(iU�U
MARKED TO SHOW CHANGES FROM DRAFT
EXHIBIT "B" OF
SECOND AMENDMENT TO OWNER PARTICIPATION AGkERIr&DELETION
MEANS AN ADDITION
• This SECOND AMENDMENT TO OWNER PARTICIPATION AGREEMENT
("Second Amendment") is entered into by and between THE
REDEVELOPMENT AGENCY OF THE CITY OF WEST COVINA, a public body,
corporate and politic ("Agency"), on the one hand, and SYLVAN
S. SHULMAN, CO./WEST COVINA ASSOCIATES, a Delaware limited
partnership, ("Shulman") and CENTERMARK PROPERTIES OV WEST
COVINA, INC., a Delaware corporation ("CMP"), on the other
hand, and is dated and effective as of May 27, 1992. In
consideration of the mutual covenants and agreements contained
herein, the Agency, Shulman and CMP hereby agree as follows:
ajQjj N_j. This Second Amendment is made with respect to
the following facts which are acknowledged as true by each of
the parties hereto:
A. On June 26, 1989, Shulman and the Agency entered
into that certain Agreement entitled "Owner Participation
Agreement by and between the Redevelopment Agency of the City
of west Covina and Sylvan S. Shulman, Co./West Covina
Associates, a Delaware limited partnership" ("OPA") for the
purpose of redeveloping certain property within the City of
West Covina generally known as the West Covina Fashion Plaza.
B. On April 9,,1950, Shulman and the Agency entered
into that certain amendment to the OPA entitled "First
Amendment to Owner Participation Agreement by and between the
Redevelopment Agency of the City of West Covina and Sylvan. S.
Shulman, Co./West Covina Associate, ("First Amendment") for the
purpose of modifying the rights and obligations of Shulman and
Agency under the CPA as set forth in the First Amendment.
C. Prior hereto, Sylvan S, Shulman Company, the
general partner of Shulman, has entered into an agreement with
CMP pursuant to which Shulman will be dissolved, the rights and
obligations under the OPA and First Amendment assigned to CMP
and the assets distributed to the Sylvan S. Shulman Company and
CMP as the partners of Shulman in accordance with their
respective interests, Sylvan S. Shulman Company will then
convey its interest in the Developer Tract- to CMP. The
dissolution, assignment and conveyance described herein are
hereinafter referred to as the "Dissolution, Assignment and
Conveyance,"
• D. The parties hereto now desire to confirm and
consent to the above -referenced Di-ssol.ution, Assignment and
Conveyance and to modify the rights and obligations between
Agency and CMP as set forth hereinafter contingent upon the
close of escrow with respect to the Dissolution, Assignment and
Conveyance.
9
SECTION 2. Unless otherwise specifically indicated, all
terms herein shall have the same meaning as set forth in the
OPA and First Amendment.
•E'ION 3•. Shulman and CMP hereby confirm the Dissolution,
Assignment and Conveyance described in Section 1, Paragraph D
hereof and the Agency hereby consents to such Dissolution,
Assignment and Conveyance.
•
I
UCTiON 9. Section 1.4, Paragraph B of the OPA is hereby
deleted and replaced with the following:
CMP is a Delaware corporation whose sole
shareholder is Centermark Properties, Znc.,
a Delaware corporation ("CMP"). The
principal office and mailing address of the
Developer is 611 Olive Street, St. Louis,
Missouri 63101.
SECTION 5. Section 1..6 of. the OPA i.s amended in subsection
(c) thereof by the replacement of the phrase "One Hundred and
Forty Thousand (190,000)" with the phrase "One Hundred and
Fifty Thousand (150,000)" and by changing of the date of. the
Site Plan as referenced in the First Amendment from "April 3,
1990" to "March 26, 1992."
5ECTzo�l�. Section 1.9 and Exhibit 11 of the OPA is hereby
deleted and replaced with. he following:
The cbl.i.gations of CMP with respect to the
Eastland Center are set forth in Exhi.bit I
attached hereto and incorporated herein by
reference, Neither party's performance
under the OPA, as amended by the First and
Second Amendments, is conditiond or
contingent on either party's performance
under Exhibit 1 to the Second Amendment,
SZCTLON_.7• Section 2.2 of the OPA is amended by the
deletion of the last "sentence thereof and replacement with the
following:
Agency has heretofore entered into a
Cooperative Agreement with City to implement
the terms of this Section, a copy of which
has been provided to CMP.
6EC_LQN a. In implementation of Section 2.3 of the OPA the
California Department of Transportation has vacated the
Off -Ramp Parcel.
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SFCTTnM 9. Soction 2.5 B. of the First Amendment is hereby
amended by deleting the date "November 30, 1990" in the eighth
line thereof and replacing it with the following phrase:
• ". .One Hundred and Twent (120) days after close of
escrow wiFI respect to the Dzsso.ut on, Assignment and
Conveyance.
SECTION 10. In implementation of. Section 2.9 of the OPA,
all soils and environmental testing, have been completed. CMP
acknowledges that the soils are suitahie for the development
proposed in the OPA.
aECTTDN--jj, Section 2.1.1 of. the OPA is amended by deletion
of the word "Assistant" in line six thereof.
ZCjTDN 12. Section 3.6 is am:anded by deleting the last
sentence thereof and replacing it with the following:
Agency has heretoEore entered into a
Cooperative Agreement: with the City to
implement the terms of this Section, a copy
o£ which has been provided to CMP.
CTT0�13. Section 4.1 of the OPA has been implemented by
virtue of the sale of the Redevelopment Agency of the City of
West Covina Community Facilities District No. 1989-1. (Fashion
Plaza) 1989 Special Tax Sonds'(the "Bonds"). CMP specifically
assumes all obligations of the Developer thereunder.
SECTION_1�. Section 4.5 of the OPA is amended, as f0ll owF;;
( I ) Subsection A,1. is hereby amended by adding the
following phrase:
. . . and the sum of One Hundred Fifty
Thousand Dollars ($150,000) in fiscal years
1995-96 through 1.999-00 from the sources and
to the extent described in Section 4.9 of
this Agreement (Section 16 herein):
(2) Subsection A.2. is hereby deleted and replaced with
the following:
2, One hundred percent of the ad
valorem real property and personal property
taxes (including taxes on improvements by
occupants) received by the Agency from the
Shopping Center Site based on increases in
assessed valuation (but not the incremental
amounts of any escalations of current taxes
permitted by Article XIIIA, Section 2(b) of
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,Rum 0 iu :.
the California Constitution upon the
Broadway Tract, the Bullock's Tract or the
Penney Tract) above the following assessed
• valuations;
(a) Developer Tract - Thirty -Eight
Million Five Hundred and Ninety 'Thousand
Dollars ($38,590,000),
(b) Broadway Tract, Penney Tract,
Bullock's Tract - Sixteen Million Three
Hundr.eo Ninety-l`wo 'Thousand Dollars
($16,392,000).
(c) Expansion Parcels - Eight Million
Seven Hundred Seventy -Seven Thousand Seven
Hundred Sixty -Six Dollars ($e,777,766).
(d) Agency Tract - Seven Million Fight
Hundred TwenL-y-One Thousand Dollars
($7,821,000).
(e) Unsecured Roll -Fight million Six
Hundred Ninet:v Eight Thousand Seventy Two
•
The Agepey'S contribution under
this paragraph shall not include any
incremental taxes received as a result of: a
reappraisal due to a transfer of ownership
or new construction after completion of the
Expansion and any Peripheral Developments,
The sums described herein shall be payable
so long as the Public Financing has not been
repaid in full;
(3) Subsection A.3. is hereby amended by deleting
therefrom the balance of the paragraph beginning with the
sentence which starts,."For purposes of this Agreement" on the
fourth line at page 29 and replacing it with the following;
For purposes of this Agreement, "Sales Tax
Increment Base" shall mean the sum of (i)
one Hundred and Thirty Million Dollars
($130,000,000), plus (ii) beginning as of
the opening of a new May Co. department
store on the Shopping Center Site, a sum
equal to the sales tax that the City would
receive on sales of twenty million dollars
($20,000,000) (which sum shall be prorated
for the year the May Co, store opens for
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business, based upon the number of days that
May Co, is open for business during such
year) .
• In the event that the Bullock's Store closes
the Sales Tax Increment Base shall be
reduced by the amount of taxable sales
generated by bullocks in the calendar year
immediately prior to the calendar year in
which closure occurs. The Sales Tag
Increment Base shall be increased by the
amount decreased in the preceding sentence
upon the opening for business of a new
tenant in the Bullock's store; provided,
however, in the event that a new Lar'IanCLsj
is being relocated to the Bullock's store
from another location within the boundaries
of the City of West: Covina, the Sales Tax
Increment Base shall be increased by an
amount equal to the sales tax generated by
such tenant in its prior location in the
calendar year immediately preceding the
calendar year in which the relocation
occurred.
III
Annually, at its sole expanse, the Agency
shall retain a firm to examine and certify
to the annual sale"i tax calculations. The
Agency shall use its best efforts to enable
CMP to verify the results of such
examination to the extent permitted by law.
Any additional cost incurred in such
verification by CMP shall be at CMP's sole
expense,
CMP further has the right, at its expense,
to audit ali other sources of Agency
contributions to the Public Financing debt
service.
(4) Subsection B is hereby amended by hereby acknowledging
navments made by CMP hereunder are made to Aaencv on
schedule and replacing it w
1990-91
1991-92
2002-03
2003-04
2004-05
2005-06
2006-07
2007-08
2008-09
2009-10
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0667Q/2740/00
anq by aele
e following:
$400,000
$200,000
$200,000
$200,000
$200,000
$200,000
$206,000
$200,000
$200,000
$200,000
-5-
ng the payment
Paid
Paid
SECTN 15. Section 9,6 A. is hereby amended by adding the
following at the end of said subsection:
• Notwithstanding the above, any Developer
Advances up to Two Hundred Thousand Dollars
($200,000) per year for each year, commencing in
fiscal year 1991-92, through and including fiscal
year 2002-03 shall not accrue interest.
S];CTrON �6. With respect to Section 4.9 of the OPA as
implemented by Section B of the First Amendment, said Section
is further amended as follows;
The Agency and CMP acknowledge that: it will
be necessary, in order to implement the
provisions of Section d.5 A. 1. of the OPA
as amended by Section 14.(1) hereof, to
continue to lease parking spaces to the City
for. a Park and Ride facility in a manner
approved by the LACTC. The. Agency will. use
its best: efforts to enter into an amended or.
new Park and Ride Agreement with the City
for the rental of additional spaces and
obtain the approval thereof by LACTC so as
to achieve the additional sum of one Hundred
and Fifty Thousand Dollars. ($150,000) per
annumy`or such greater amounts as maY be
approved hy Cit A gncv and LACTC, through
T�iscal year 2000-01 as described in Section
14.(1) hereof. The Developer agrees to
extend the term of the Park and Ride spaces
for five (5) years (or such longer period as
may be approved by City Agency and LACTC)
and will use its best efforts to secure
approval of the same by the appropriate
tenants. The terms of the Amended Park and
Ride Agreement (including, without
limitation, the location of the Park and
Ride spaces on the Shopping center Site)
shall be approved by the LACTC, the Agency,
the City and CMP. The parties acknowledge
that an additional amendment: to the REA may
be necessary in order to permit this
continued use of the Shopping Center Site.
Concurrently with this Second Amendment,
• Agency has entered into an amended
Cooperative Agreement with the City to
implement the terms of this Section, a copy
of which has been provided to CMP. In, the
event that the Agency is able to enter into
an amended or new Park and Ride Agreement
set forth hereinabove, any amounts paid by
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Agency hereunder shall offset and reduce
Agency's obligations under..Section 4,5 A of
the OPA, as amended herein.
• SECTION 17, Section 7.7 of the OPA, as amended by the
Amendment, is hereby amended in Subsection 3 thereof by
deletion of the date "November 30, 1990" at line five at
of the First Amendment and replaced with the following:
One Hundred and Twenty 120 da s
f: .er close of_, escrow with respect o )e
Dissolution Assij
_nment and Conveyance."
•
6
First
page 7
SECTLON_11. The Site Plan attached as Exhibit No. 1 to the
OPA is hereby deleted and replaced with the Site Plan dated
March 26, 1992 and attached hereto as Exhibit No, 2 and
incorporated herein by reference.
SECTION ,L2. The Schedule of Performance attached to the OPA
as Exhibit No. 3 is hereby deleted and replaced with Exhibit
No, 3 attached hereto and incorporated herein by reference.
LQT1DN 20. The Agency shall participate in a refinance or
sale of the Site, or portion thereof, as follows:
If at any time during the outstanding term of the Public
Financing, CMP refinances the Shopping Center Site and
Expansion Parcel, or any portion thereof, in excess of (a) the
existing secured debts; (b) liens currently on the Site; (c)
costs of the Expansion; (d) costs of the Dissolution,
Assignment and Conveyance; (e) cumulative operating losses
funded by CMP from and after the close of escrow of the
Dissolution, Assignment and Conveyance; and (f) cumulative
capital expenditures made with respect to the Shopping Center
Site and Expansion Parcel or any portion thereof, after the
closing, then the Agency will share in any excess proceeds to
the extent of (1) the deferred amounts described in Section
14(4) hereof remaining unpaid, plus (2) One Hundred Twenty
Thousand Dollars ($120,000) per year, increased at the rate of
2% per year, with a cumulative aggregate cap of One Million
Dollars ($1,000,000)), The Agency's share of the excess
proceeds shall be equal to :such proceeds multiplie(I by a
fraction, the denominator of which would be the sum of (i)
CMP's equity prior to the refinancing and (ii) the sum of (1)
plus (2) above and the numerator of which shall be item (ii)
above.
If CMP were to sell the Shopping Center Site or any portion
thereof and the sale proceeds were to exceed the costs
described in items (a) through (£) above plus a 10% annual
cumulative return, then the Agency would share in such excess
sales proceeds to the same extent and in the same proportion as
in the paragraph immediately preceding,
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•
u
•
SECTION 21. Notwithstanding the provisions of the OPA, the
First Amendment or this Second Amendment, CMP hereby commits to
expend an additional sum of not less than One Million Five
Hundred Thousand Dollars ($1,500,000) in actual and direct
construction costs,nexcluding design, finance and related
"soft" costs, in physical improvements to the property and
improvements within the curbline of the existing shopping
center ("Existing Shopping Center Site"), including without
limitation, interior and exterior graphic signage and
landscaping in accordance with Exhibit 4 attached hereto and
incorporated herein by reference and subject to Agency/City
review and 'approval pursuant to Article III of the OPA.
SECTION 22, CMP shall, concurrently with the close of
escrow of the Dissolution, Assignment and Conveyance, make all
payments necessary to insure that the property faxes, sales
taxes, special tales, Developer Advances, relocation and
acquisition eostsn+ith respect to the Developer parcel in
accordance with Section 4,2,c, of the OPA and any other lien
and obligations secured by the Shopping Center Site, or any
part thereof, including all applicable interest, penalties or
costs, with respect to all of the above, are current. The
current amount of relocation and acquisition costs is Two
Hundred iMty- even Thousand Two Hundre and Nine Dollars
SECTION 23. The effectiveness of this Second Amendment
shall be contingent upon the close of escrow of the
Dissolution, Assignment and Conveyance and the concurrent:
fulfillment of the payment obligations described in Section 22
of this second Amendment,/his Second Amendment Shall be
terminated and none of the parties shall have any rights or
obligations hereunder if the Dissolution, Assignment and
Conveyance does not occur on or before June 9, 1992 unless
extended by the Executive Director of the Agency to a date not
later than?luly 15, 1992, provided that the amounts recuired b
Assignment and Conve ance escrow on or before June 19 1992.
t e ev F��.erm�ion A�e rights and ob igatrons of the
parties shall be governed by the OPA and the First Amendment,
SECTION -A. Contingent upon the clone of escrow for the
Dissolution, Assignment and Conveyance and the concurrent
fulfillment of the payment obligation described in Section 22
of this Second Amendment, the Agency and Sylvan S, Shulman
Company shall, without the necessity of any further act on the
part of. the Agency, Shulman, CMP or the Sylvan S Shulman
Compan be conclusively deemed to have released ach other and
all ofitheir elected officials (in the case of the Agency),
partners (in Shulman),�agent, employees,
representatives, attorneys, successors and assigns x e t
MP , and each of them, from any and all sums of money,
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accounts, claims, damages and causea of action whatsoever, of
whatever kind or nature, whether known or unknown, pr suspected
or unsuspected which the Agency or Sylvan S. Shulman Company
now owns, holds, has or had or claimed to have ag— a nst the
• other arising out of or relating to the OPA, as amended.
in regard to the foregoing releases, the Agency and
Sylvan S. Shulman Company further agreeAas follows:
(a) There is a risk that subsequent to the
Dissolution, Assignment and Conveyance, either. may incur or
suffer loss, damage or injuries which are in some way unknown
and unanticipated at the time this Second Amendment is signed,
(b) Fxcept as otherwise provided herein, the Agency
or Sylvan S. Shulman Company hereby assumq, the above -mentioned
risk and agrees that this general. release shall apply to all
unknown or unanticipated results of the transactions and
occurrences described above, as well as those known and
anticipated, and upon consultation with legal counsel, the
Agency and sylvan S. Shulman Company does hereby waive any and
all rights under Californial_ivll Code § 1542, which section
has been duly explained, and which reads as follows:
A general release does not extend to
claims which the creditor does not know
or suspect tp-exist in his favor at the
time of executing the release, which if
known by him must have materially
affected his settlement with the debtor..
(c) The advice of legal counsel has been obtained by
both parties prior to the signing of this second Amendment.
The parties execute this Second Amendment voluntarily, with
full knowledge of its significance, and with the express
intention of extinguishing all obligations between the parties
except as expressly provided herein.
SECTION 25. Ceatermark properties, Inc., a Delaware
corporation ("Guarantor") is the sole shareholder of GMP. The
Guarantor will benefit materially by the execution of this
Second Amendment. Concurrent with the execution of this Second
Amendment by CMP and prior to the approval of this Second
Amendment by the Agency, the Guarantor shall execute and
deliver to the Agency the "Guaranty", which is attached hereto
• as Exhibit No, 5 and is incorporated herein by reference. The
parties agree and acknowledge that the delivery of the Guaranty
by the Guarantor is a material inducement for the Agency to
approve the Second Amendment, and that but for the provision of
such Guaranty, the Agency would not approve this Second
Amendment,
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The principal office and mailing address of the Guarantor
for the purposes of this Second Amendment, including, without
limitation, the Guaranty (Exhibit No, 5), is 611. Olive Street,
St. Louis, Missouri 63101.
• SECTION 26. Upon close of escrow of the Dissolution,
Assignment and conveyance and the concurrent payment of the
amounts described in Section 22 hereof, Agency and CMP each
agree that there are no defau].L-s under the OPA, First Amendment
and related documents,
TI N Z27, Except as otherwise provided in this Second
Amendment, all terms of the OPA and First Amendment shall
remain in full force and effect. In witness whereof the
parties have executed this Second Amendment to OPA as of the
date first above written.
ATTEST:
Janet Berry, Secretary
APPROVED AS TO FORM:
Agency Special Counsel
•
REDEVELOPMENT AGENCY OF THE
CITY OF WEST COVINA
go
Chairperson
SYLVAN S. SHULMAN CO./WEST
COVINA ASSOCIATES
By_
Its
05/22/92
0667Q/2740/00 -10-
•
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CENTERMARK PROPERTIES OF
WEST COVINA, INC.
By
It
CENTERMARK PROPERTIES INC.
By
it
05/22/92
0667Q/2740/00 -1.-
•
Uii1pIT_ NQ, 1
Eaatiand Center
1. Rerlev�opmPnt
CMP and the Agency acknowledge that the redevwlopm8nL
of Eastland Center is in the best interests of both the Agency
and CMP. Although that redevelopment is constrained by many
factors (including existing contractual commitments, economic
conditions, the availability of suitable tenants and the
availability of financing) the Agency and CMP agree to make
reasonable efforts to effect that redevelopment at the earliest
practical opportunity. Specifically, CMP agrees to make
reasonable efforts, in concert with Agency staff to:
(a) conclude lease negotiations with Pharmor and to obtain
REA and governmental approvals to make possible a
Pharmor opening in 1993;
(b) complete a study (including cost estimates) of
architectural design concepts for Eastland, developed
by Communication Arts, Inc., for presentation to
Agency staff on or before. September 30, 1992.
(c) submit to Agency staff on or before March 31, 1993 a
site plan and a financial program/proforma for the
redevelopment of Eastland for potential implementation
within the next five years; and
(d) immediately confirm the interest of Costco, or other
suitable major tenant, in the Eastland site and to
determine the investment required to consummate such a
deal and the economic impact- on the City of West
Covina,
X�'A
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Exhibit No. 1
Page 1 of 1
YFLIBIT NO, J
SITE MAP
• [To be supplied]
•
Exbibit No. 2
Page 1 Df 1
•
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C�
SCHEDULE OF PERFORMANCE
1. Execution of Second Amend��l
Agreement shall be
authorized, executed and
delivered by Developer to
Agency,
�rQuisition of Expon ion
Parcels" Developer shall
provide all. necessary funds
to enable Agency to acquire
each remaining expansion
parcels and complete each
remaining tenant relocation.
Final Construction Dxawinc
and Plans Developer
shall submit final construc-
tion drawings and plans to
City for issuance of build-
ing permits for each phase
of the Project- as such
phasing is approved by
Precise Plan No, 840.
within 5 days after close
of escrow with respect to
the Dissolution, Assignment
and Conveyance.
15 days prior to the execu-
tion of a settlement agree-
ment or entry of judgment
for each remaining expansion
parcel or each remaining
tenant relocation .
within 24C days from
approval of a Precise Plan
for each corresponding phase
of the Project (Developer
has submitted Final Con-
truction Drawings and Plans
for Expansion.)
Completion of Imprrovement8 Prior to 'issuance of
Developer Shall substantially Ccrtificote of Occupancy
complete the improvements for the Expansion.
pursuant to Section 21
of the Second Amendment,
Qg n v-ey in of Title
Agency shall convey posse-
sion and/or title to
Developer of Developer
Parcel in accordance
with Section 2.5 of the
OPA as amended.
Issuance of Building Permita
Subject to fulfillment of
this Agreement, and subject
to all applicable City
Codes, City shall issue
building permits with
respect to the Project.
No later than 120 days
after close of escrow
with respect to the
Dissolution, Assignment
and Conveyance.
Within 45 days from sub-
mission of Final Construc-
tion Drawings to the City
by Developer but in the case
of the Expansion no later
than June 30, 1993.
Exhibit i':o.
Page 1 o 2
:J LL JL 'JL
7
• 8
9
0
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ccgnilencef'&J t of��nst ;r.s?n
Developer shall commence
construction of the Project.
Public Improvements
Developer shall commence and
complete off -site improve-
ments.
yQIDP�-3-52-L1_.5�� �5�11.� t3.Qll
Developer shall make
reasonable and dili en
efforts to complete the
Cons truct on of the Project.
Within 60 days from issuance
of building permits.
In coordination with
Developer construction but
no later than the issuance
of a Certificate of OCCn-
pancy.
J1 October 15, 1993• but in no
event later than March 15,
1994.
Exhibit: 4o,
Page 2 'of 2J
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�x�IaIT Flo a
IMPROVEMENTS TO EXISTING SHOPPING CENTtR SITE
(SECTION 21)
I, Interior Mal�ImprovemelLtS.
The current interior has acceptable landscaping and water
features but: lacks detailing, color, texture and warmth.
The IntULiUr Mall. Iiiiprovements may include, but ore not
limited to t:he following:
a. flags, banners and colorful hanging treatments
throughout the mall and courts;
b, a richer color scheme for more brightness;
c, use of additional lighting in the form of
specialty lighting, neon, etc.;
d. additional seating in court areas, entrances;
e, use of more colorful landscaping; in particular,
annual color;
f. enhancement,of.,existing handrails.
II. Exterior Ma11 Improvements
The entrances to be developed as part of the rxpan;ion are
bright and exciting but the existing entrances lack color
and a sense of "Entry," Accordingly, Exterior Mall
Improvements may include, but are not limited to the
following:
a, Incorporation of flags, banners and sculptures to
the front entrance
b. Incorporation of specialty lighting, also at the
front entranCe, in the f.o'lffm of uplighting for the
palms and flags and banners, uplighting in key
landscaped areas surrounding the entrance,
possibly sconce lighting on the building, and
neon lighting where appropriate
C. An architectural feature at the southwesterly
entrance, near Broadway, such as a space frame
projecting from the building, similar to the
space frame treatment being done at the
southeasterly entrance, but on a smaller scale;
Exhibit No, 4
Page 1 of 2
UJ
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d. Enhance paving trey}ment- and/or additional
seating.
III. Other ImprovemQnts
Other improvements of a lower priority may include but
are not limited to;
a. Incorporation of additional interior mal]
fountains and enhanced signage and graphics,
b, Additional extorior mass seating, signeaye and
graphics.
Exhibit '*'oe 4
Page 2 of 2
EXHIBIT NO. 5
GUARANTY AND AGREEMENT
•Qf
SENTERMARK PR PERTTE�5IN _,_
TIiIS.GUARANTY AND AGREEMENT OF CENTERMARK PROPERTIES OF
WEST COVINA, INC., (the "Guaranty") is hereby made and
executed as of May 27, 1992 by CENTERMARK PROPERTIES OF WEST
COVINA, INC., a Delaware corporation (the "Guarantor") in favor
of THE REDEVELOPMENT AGENCY OF THE CITY OF WEST COVINA, a
public body corporate and politic (the "Agency"),
$ECLlaLa
A. The Agency and CENTERMARK PROPERTIES OF WEST COVINA,
INC., a Delaware corporation ("CMP") have entered into or will
enter into a certain Second Amendment to Owner Participation
Agreement (the "Second Amendment") amending that certain Owner
Participation Agreement dated June 26, 1989 ("OPA") as amended
by the First Amendment to Owner. Participation Agreement dated
April 9, 1990 ("First Amendment") (the OPA as amended by the
First Amendment and Second'Amendment are hereinafter referred
to as the "OPA, As Amended").
B. The OPA provides that Centermark Properties, Inc., a
Delaware corporation (the "Guarantor.") shall make and deliver a
guaranty of CMP's obligations under the OPA.
C. The Guarantor, which is the sole shareholder of CMP,
will significantly benefit by the execution by the Agency of
the Second Amendment,
D. The execution .by the Guarantor of this Guaranty is a
condition but for which the Agency would not execute the Second
Amendment.
E. Guaranto'r has reviewed and approves the form and
content of the OPA, As Amended.
• IN WITNESS WHEREOF, in consideration of the execution
of the second Amendment, and of other valuable consideration,
receipt of which is hereby acknowledged; the Guarantor hereby
agrees as follows:
1. Except as expressly set forth herein, all terms shall
have the same meaning as in the OPA, As Amended.
I
Exhibit No. 5
Page 1 of 6
2. Guarantor guarantees to the Agency the full and timely
completion of each and every obligation, duty, premise,
covenant and agreement of CMP pursuant to the OPA, As Amended.
• 3. This Guaranty is unconditional and may be. enforced
directly against the Guarantor. No extensions, modifications
or changes to the OPA, As Amended shall release the Guarantor
or affect this Guaranty in any way, and the Guarantor waives
notification thereof.
0
I
9. The undersigned hereby waives all of the suretyship
Provisions of the California Civil Code Sections 2728 through
2855.
5. Guarantor waives: (a) any defense based upon any
legal disability or other defense of.Developer, any other
guarantor or other person or by reason of the cessation or
limitation of the liability of Developer from any cause other
than full payment of all sums payable under the Agreement
(including without limitation the Attachments thereto); (b) any
defense based upon any lack of authority of the officers,
directors, partners or agents acting or purporting to act on
behalf of Developer or any principal of Developer or any defect
in the formation of Developer or any principal- of Developer;
(c) any defense based upon the application by Developer of the
funds for purposes other than the purposeb represented by
Developer to Agency or intended or"understood by Agency or
Guarantor; (d) any defense,.based upon Agency's election of any
remedy against Guarantor or Developer or both including,
without limitation, election by Agency to exercise its rights
under the power of sale set forth in the Deed of 'Trust
(Attachment No, to the Agreement) and the consequent loss
by Guarantor of the right to recover any deficiency from
Developer; (e) any defence barred upon Agency'r, failure to
disclose to Guarantor any information concerning Developer's
financial condition or any other circumstances bearing on
Developer's ability to pay all sums payable under the Agreement
and the Creditor Agreement (including without limitation the
Attachments thereto); (f) any defense based upon any statute or
rule of law which provides that the obligation of a surety must
be neither larger in amount nor in any other respects more
burdensome than that of a principal; (g) any defense based upon
Agency's election, in any proceeding instituted under. the
Federal Bankruptcy Code, of the application of Section
1111(b)(2) of the Federal Bankruptcy Code or any successor
statute; (h) any defense based upon any borrowing or any grant
of a security interest under Section 364 of the Federal.
Bankruptcy Code; (i) any right of subrogation, any right to
enforce any remedy which Agency may have against Developer or
any other guarantors and any right to participate in, or
benefit from, any security for the Agreement or the Creditor
Agreement (including without limitation the Attachments
Exhibit Ho. 5
Page 2 oZ 6
thereto) now or hereafter held by Agency; (1) presentment,
demand, protest and notice of any kind; and (k) the benefit of
any statute of limitations affecting the liability of Guarantor
horeunder or the enforcement hereof. Guarantor agrees that tho
• payment of all sums payable under the Agreement and the
Creditor Agreement (including without limitation the
Attachments thereto) or any part thereof or other act which
tolls any statute of limitations applicable to the Agreement:
(including without limitation the Attachments thereto) shall.
similarly operate to toll the statute of limitations applicable
to Guarantor's liability hereunder. without limiting the
generality of the foregoing or any other provision hereof,
Guarantor expressly waives any and all benefits which might
otherwise be available to Guarantor under California Civil Code
Sections 2699 and 3437 and California Code of Civil Procedure
Sections 580(a), 580(b), 580(d) and 726, or any of such
sections.
•
6. Guarantor hereby waives and agrees not: to assert: or
take advantage of (a) any right to require the Agency to
proceed against CMP or to pursue any other remedy in the
Agency's power before proceeding against the Guarantor, (b)
demand, protest, and notice which the Agency may be required to
provide .to CMP under the OPA, As Amended, and (c) any duty on
the part of Agency to disclose to Guarantor any facts Agency
now or hereafter knows about the "Site" (as defined in the
OPA), the CPA, As Amended, or CMP,'r'egar.dl.ess of whether Agency
has reason to believe that,.•any such facts materially increase
the risks beyond that which Guarantor intends to assume or has
reason to believe that such facts are unknown to Guarantor or
has a reasonable opportunity to communicate such farts to
Guarantor., it being understood and agreed that Guarantor is
fully responsible for being and keeping informed of all
circumstances regarding tho Site, the CPA, As Amended, the
obligations of CMP, the financial condition of CMP, and of all
circumstances bearing on the risk of any obligation by CMP
hereby guaranteed.
7. Guarantor shall have no right of subrogation and
waives any right to enforce any remedy the Agency now has or
may hereafter have against CMP, and any benefit of, and any
right to participate in any security now or hereafter held by
Agency.
a. The obligations of Guarantor hereunder are independent
of the obligations of CMP and, in the event of default
hereunder, a separate action or actions may be brought and
prosecuted against Guarantor (Or any other guarantor) whether
or not CMP is joined therein or a separate action or actions
are brought against CMP,
Exhibit No. 5
Page 3 oA 6
91 In the event of any litigation between Agency and
Guarantor arising out of this Guaranty, the prevailing party
shall be entitled to recover its reasonable costs and
attorney's fees.
• 10. No provisions of this Guaranty can be waived nor can
Guarantor be released from the obligations hereunder except by
a writing duly executed by the Agency.
•
0
11. Guarantor agrees to pay all reasonable attorney, s fees
and all other costs and expenses which may be incurred by
Agency in enforcing or attempting to enforce this Guaranty,
whether the same shall be enforced by suit or otherwise.
12. Guarantor hereby waives notice of any demand by the
Agency, as well as notice of any default by CMP.
13. The Agency may assign this Guaranty, When 50
assigned, Guarantor shall be bound as above to the assignees
without in any manner affecting Guarantor's liability hereunder.
14, This Guaranty shall. remain in effect notwithstanding
any bankruptcy, reorganization or insolvency of CMP or any
successor or assignee thereof or any disaffirmance by a trustee
of CMP.
15. This Guaranty shall inure, to' the benefit of and bind
the successors and assigns, -of -Agency and Guarantor.
16. Guarantor agrees that jurisdiction and venue with
respect to any matter pertaining to the Guaranty or acts or
omissions hereunder shall lie exclusively with the Superior
Court of the County of Los Angeles, State of California, in an
appropriate municipal court of that county, or in the FederaT
District Court in the Central District of California.
Guarantor irrevocably waives any and all defenses based upon
revenue or forum non conyeniens.
17. The laws of the state of California shall govern the
interpretation ant] enforcement of this Guaranty.
Exhibit No. 5
Page 4 of 5
IN WITNESS WHEREOF, the undersigned has executed this
Guaranty this 27th day of May, 1992,
• CENTERMARK PROPERTIES, INC
a Delaware corporation
BY: —
Its:
13y;
Its:
Exhibit Mo. 5
Page 5 of 6
u
STATE OF CALIFORNIA )
55.
COUNTY OF ORANGE )
On before me, the
undersigned, a Notary Public in and for said State, personally
appeared , personally known to me
or proved to me on the basis of satisfactory evidence to be the
person whose name subscribed to the within
i.nstr.ument and acknowledged that
executed the same.
WITNESS my hand and official seal.
(SEAL)
STATE OF CALIFORNIA )
ss.,
COUNTY OF ORANGE )
On before me, the
undersigned, a Notary Public in and for said State, personally
appeared , personally known to me
or proved to me on the basis of satisfactory evidence to be the
person whose name subscribed to the within
instrument and acknowledged that
executed the same.
. (SEAL)
WITNESS my hand and official seal.
Exnibit No. 5
Page 6 of 6