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Home My WebLink AboutContracts & Agreements_7-1990_CCv0001.pdf AGREEMENT BETWEEN THE CITY OF REDLANDS AND GATLIN/BERGER DEVELOPMENTS, INC. EFFECTIVE: March 20 , 1994 TABLE OF CONTENTS ----------------------------------------------------------------- ----------------------------------------------------------------- Pa e RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Operative Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1 . Lease of Parking Facility . . . . . . . . . . . . . . . . . . . . . 3 2. Adjustments to Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3 . Development Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. Finding of Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 5 . Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6. Remedies for Default . . . . . . . . . . . . . . . . . . . . . . . . . . 13 7. Notices and Other Communications . . . . . . . . . . . . . . 14 8 . Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 9. Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 10. Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 11 . Paragraph Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 12. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 13. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 14. Calendar Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 15 . Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 16. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 17 . Covenant of Good Faith . . . . . . . . . . . . . . . . . . . . . . . . 16 18. Effect on CITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 19.. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 20. Incorporation of Recitals . . . . . . . . . . . . . . . . . . . . . 17 21. Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 EXHIBIT "A" - Parking Facility -i- AGREEMENT This Agreement ( "Agreement" ) is entered into effective March 20 , 1990 , between the CITY OF REDLANDS , a municipal corpor- ation, ( "CITY") and GATLIN/BERGER DEVELOPMENTS , INC. , a Louisiana corporation, ("DEVELOPER") . RECITALS A. The DEVELOPER has entered into an agreement to pur- chase approximately 26 . 78 acres of real property in the municipal limits of the CITY, which is more particularly described as Par- cels 1 and 2 of Parcel Map No. 6611 , in the City of Redlands , County of San Bernardino, as per plat recorded in Book 81 of Par- cel Maps, pages 79 and 80 , Records of the County of San Bernar- dino ( "Property") . B. The DEVELOPER intends to develop the Property as a quality open air shopping center which will contain approximately 275 , 000 square feet of stores, shops and restaurants, including an approximately 125 ,000 square foot Wal-Mart department store ( "Shopping Center" ) . The CITY and the DEVELOPER acknowledge that, if built, the Shopping Center will benefit the CITY and its pre- sent and future citizens by providing new occupations and employ- ment possibilities , thereby furthering the CITY' s objective of achieving the Southern California Association of Government' s "Jobs/Housing Balance" . C. The DEVELOPER has asked the CITY to assist in pro- viding parking for members of the public who will visit and shop at the Shopping Center and who may also patronize other busines- ses in the general vicinity of California Street and Redlands Boulevard in the municipal limits of the CITY, by leasing the property in the Shopping Center which is described and depicted in EXHIBIT "A" ("Parking Facility") and the CITY is willing to do so on the terms and conditions which are provided in this Agree- ment. D. The DEVELOPER has also asked the CITY to determine at this time the total development impact fees ( "Development Im- pact Fees") which will be payable with respect to the Shopping Center as provided in the CITY' s Ordinances which are applicable to the Shopping Center, and the CITY is willing to do so on the terms and conditions which are provided in this Agreement. E. The DEVELOPER has also asked the CITY to enter in- to a development agreement as provided in Section 65864 et sect. of the California Government Code, to vest its rights to develop the Shopping Center in accordance with its development plan and to otherwise facilitate the efficient and timely development of the Shopping Center, and the CITY is willing to consider entry into a development agreement on the terms and conditions which are provided in this Agreement. F. In order for the DEVELOPER to make the commitments which it is required to make as a condition of completing its agreement to purchase the Property and as a condition of arrang- ing financing which is necessary for the development of the Shop- ping Center, the CITY and the DEVELOPER have agreed to enter into this Agreement. Although the CITY and the DEVELOPER intend this Agreement to be binding, they also intend to further refine and document the agreements which are the subject of this Agreement, as more information is developed with respect to the Shopping Cen- ter. IN CONSIDERATION of the mutual covenants and conditions which are provided in this Agreement, the CITY and the DEVELOPER agree as follows: 2 Operative Provisions 1. Lease of Parking Facility. No later than April 10, 1990, the CITY, as Lessee, and the DEVELOPER, as Les- sor, will enter into a lease of the Parking Facility (the "Lease" ) which will contain provisions which are customary in long-term commercial leases in Southern California, including, without lim- itation, the following provisions: (a) Subject to extension as provided in sub- paragraph 1. (j) (iii) (C) , the term of the Lease will be 10 years, commencing on the date that the Wal-Mart department store in the Shopping Center opens for business . (b) Possession of the Parking Facility will be delivered to the CITY on the date of commencement of the term of the Lease. Before delivering possession, the DEVELOPER, at its sole cost, will improve the Parking Facility according to plans and specifications which are approved by the CITY and the DEVELOPER. (c) The Parking Facility will be used by the CITY for the purpose of parking the vehicles of members of the public who visit or shop at the Shopping Center and who may also patronize other businesses in the general vicinity of California Street and Redlands Boulevard in the municipal limits of the CITY, at no charge, and for no other purpose. (d) The Lease will be subject and subordinate to covenants, conditions , restrictions , agreements and easements which will facilitate the development and use of the Shopping Center and the Parking Facility, by providing for the following: M Free access between the Parking Facility and all adjacent parking areas , streets , walks and buildings. 3 (ii) Parking rights in the Parking Fa- cility for all members of the public who visit or shop at the Shopping Center and who may also patronize other businesses in the general vicinity of California Street and Redlands Boulevard in the municipal limits of the CITY. (iii) Without limiting the rights of the CITY as provided in subparagraph 1. (i) , repair, restoration, main- tenance, irrigation, cultivation, illumination, security and in- surance of the Parking Facility, according to procedures which will insure the uniform maintenance and administration of all parking areas and other common areas which are associated with the Shopping Center including, without limitation, the Parking Facility, and payment by persons other than the CITY of the costs of such repair, restoration, maintenance, illumination, security and insurance. Based on the foregoing provisions for repair, re- storation and insurance of the Parking Facility, the Lease will not terminate on the total or partial destruction of the Parking Facility, unless the Developer elects to terminate the Lease. (iv) Subject to compliance with the ap- plicable provisions of the Municipal Code of the CITY, use of the Parking Facility by occupants of the Shopping Center for the sale of goods and services and for promotional purposes. (v) Reasonable restrictions which will insure the safe and lawful use of the Parking Facility by all mem- bers of the public who visit or shop at the Shopping Center and who may also patronize other businesses in the general vicinity of California Street and Redlands Boulevard in the municipal limits of the CITY. (vi) Easements which will facilitate the provision of utility services to the Shopping Center and the Park- ing Facility. 4 (e) At the expiration or earlier termination of the Lease, the CITY will deliver possession of the Parking Fa- cility to the DEVELOPER. (f) If the CITY forms a parking authority or similar public entity which is charged with the administration of parking facilities of the CITY, then with the DEVELOPER' s prior consent which will not be unreasonably withheld, the CITY will have the right to assign the Lease or sublet the Parking Facility to such parking authority or similar public entity; provided, how- ever that any such assignment or sublease will be subject to all of the provisions of the Lease and provided further that no such assignment or sublease will relieve the CITY from its obligations as provided in the Lease. Otherwise, the CITY will not have the right to assign the Lease or sublet the Parking Facility to any person or entity. (g) The DEVELOPER will have the right to en- cumber the Parking Facility in connection with financing of the Shopping Center and the Lease will be subject and subordinate to any security interest which is created in connection with any such financing. (h) The DEVELOPER will defend, indemnify and hold harmless the CITY and its elected officials , officers and employees from and against any and all claims, causes of action, damages or liability, arising out of or in connection with any acts or omissions of the DEVELOPER in connection with any activi- ties with respect to the Lease. Such indemnity will extend, but not be limited to, claims, causes of action, damages and liabil- ity arising from injuries or damages to persons or property, in- cluding wrongful death and worker' s compensation claims and awards of attorneys' fees . Such indemnity will not apply to any claims, causes of action, damages or liability arising from injuries or 5 damages to persons or property which result from the sole negli- gence of the CITY. (i) The CITY will not have the right to make any alterations to the Parking Facility; provided, however that the CITY will have the right to make repairs to the Parking Faci- lity which are required to mitigate dangerous conditions which pose an immediate threat to health and safety, after providing at least 24 hours advance notice by telephone to the DEVELOPER in order to give the DEVELOPER the opportunity to mitigate the dan- gerous condition. Any cost which is incurred by the CITY in mit- igating any dangerous condition at the Parking Facility, after complying with the aforementioned notice provision, will be re- imbursed by the DEVELOPER on demand of the CITY. (j ) Subject to the adjustment to rent which is provided in subparagraph 2. (a) , the CITY will pay rent for its use of the Parking Facility, as follows: (i) Rent will accrue at the rate of $118 , 036. 63 per quarter during the period which will commence on the lst day of the lst quarter after the quarter in which the Wal-Mart department store in the Shopping Center opens for busi- ness and which will extend through the 2nd anniversary of such date ("Completion Date") . Commencing on the Completion Date and continuing throughout the remainder of the initial 10 year term of the Lease, rent will accrue at the increased rate of $142, 306 . 30 per quarter. (ii) Accrued rent during any partial quarter during the term of the Lease will be prorated based on a 360 day year. (iii) Rent will be payable quarterly during the term of the Lease, in arrears and without offset or 6 demand, commencing on the lst day of the lst quarter after the quarter in which the Wal-Mart department store in the Shopping Center opens for business and continuing on each April 1, July 1 , October 1 and January 1 thereafter throughout the term of the Lease. (A) If the rent which has accrued during any quarter is greater than the Applicable Percentage [as defined in subparagraph 1 . (j) (iii) (G) ] of the sales tax revenue which the City has received with respect to such quarter based on sales at or from the Shopping Center ("Taxes") , then the CITY will pay as rent with respect to such quarter, on the applicable rent payment date, an amount which equals the Applicable Percent- age of the total Taxes which it has received with respect to such quarter, and the difference between the rent which has accrued during such quarter and the amount of rent which is actually paid on the applicable rent payment date, will be separately accounted for in an account which will be established for such purpose ("De- ficiency Account") and will bear interest at the rate of 11% per annum, compounded monthly, from the applicable rent payment date to the date of payment. In addition, any accrued but unpaid in- terest with respect to the Deficiency Account from time to time, will also bear interest at the rate of 11% per annum, compounded monthly, from the date of accrual to the date of payment. Ac- crued interest with respect to the Deficiency Account during any partial month will be prorated based on a 360 day year. (B) If there is a balance in the Deficiency Account and if with respect to any quarter, the CITY has received Taxes in an amount which is greater than an amount which is determined by dividing the rent which has accrued during such quarter by the Applicable Percentage, then within 10 days after the date of the determination that such excess exists, the 7 CITY will pay such excess to the DEVELOPER and such payment will be credited first against interest which has accrued with respect to the Deficiency Account and then against the principal amount of the Deficiency Account. (C) If, on the 10th anniversary of the date of commencement of the term of the Lease, there is a balance of principal and/or interest in the Deficiency Account, then the term of the Lease will be extended for a term which will expire on the earlier of (1) the 20th anniversary of the date of commencement of the term of the Lease or (2) the date on which there is no remaining balance of principal or interest in the De- ficiency Account, and during such extension term, all of the terms and conditions of the Lease will continue in full force and ef- fect, including those with respect to rent. If, on the 20th an- niversary of the date of commencement of the term of the Lease, there is a balance of principal or interest in the Deficiency Ac- count, then all of the remaining obligations of the CITY with re- spect to the Lease including, without limitation, the obligation to pay rent, will terminate. Notwithstanding the foregoing, in lieu of extension of the term of the Lease beyond the 10th anni- versary of the date of commencement of the term of the Lease, the CITY may pay an amount to the DEVELOPER which equals the balance of principal and interest in the Deficiency Account on the 10th anniversary of the date of commencement of the term of the Lease. (D) As used in the Lease, sales tax revenue which is based on sales at or from the Shopping Cen- ter will be deemed to include sales which occur at the Shopping Center and sales which occur elsewhere, if they are initiated from the Shopping Center and if the situs of the sale is in the municipal limits of the CITY. 8 (E) If the Sales and Use Tax Law is modified or repealed after the date of this Agreement or, if the CITY's part of the sales tax revenue which is based on sales or use at or from the Shopping Center decreases or is eliminated, then the CITY's obligation to pay rent will continue to accrue as provided in the Lease and the periodic limitations in the Lease on the CITY' s obligation to pay rent will be deemed modified and will thereafter be based on any form of tax or revenue which the CITY receives with respect to the applicable quarter, in total or partial replacement of sales or use tax revenue. In addition, in the event of any such change, the CITY and the DEVELOPER will fully cooperate with one another in amending the Lease as is nec- essary or appropriate to facilitate the timely payment of all rent which is payable as provided in the Lease, so the intent of this Agreement and the Lease can be attained. (F) The CITY and the DEVELOPER will cooperate with one another in issuing periodic reports of the status of the CITY' s obligation to pay rent as provided in the Lease. (G) The "Applicable Percentage" with respect to each quarter during the term of the Lease, will be as follows: Applicable Quarter Percentage The quarter in which the Wal-Mart department store in the Shopping 75% Center opens for business and the following 7 quarters The following 4 quarters 70% The following 4 quarters 65% The following 4 quarters 60% The following 4 quarters 55% 9 Applicable Quarter Percentage All remaining quarters until expiration of 50% the term of the Lease, including the extension term as provided in subparagraph 1 . (j ) (iii) (C) 2 . Adjustments to Rent. (a) Based on the CITY's Ordinances which ap- ply to the Shopping Center as of the date of this Agreement, the CITY hereby estimates that the total Development Impact Fees with respect to the Shopping Center will be $1 , 024 , 196. 00 and the CITY and the DEVELOPER agree that such Development Impact Fees will be due and payable by the DEVELOPER 1/2 on the date that the CITY issues a certificate of occupancy for the Wal-Mart department store in the Shopping Center and 1/2 on the Completion Date (as defined in subparagraph 1 . (j) (i) ] . If the actual amount of such Development Impact Fees which the DEVELOPER will be required to pay with respect to the Shopping Center is more or less than $1, 024, 196.00, then the rent which will accrue and which the CITY will be obligated to pay as provided in the Lease, will increase or decrease by an amount which would be required to amortize the increase or decrease in the actual amount of such Development Im- pact Fees, including interest at the rate of 11% per annum, com- pounded monthly, by level quarterly payments over the remainder of the initial 10 year term of the Lease; provided, however that in no event will such Development Impact Fees be greater than $1 , 300,000.00. In addition, if the dates on which such Develop- ment Impact Fees become due and payable are accelerated for any reason whatsoever, then in addition, the rent which will accrue and which the CITY will be obligated to pay as provided in the Lease, will increase based on the loss to the DEVELOPER of the use of funds which is caused by such acceleration, on the same basis as is provided above with respect to an increase in such Development Impact Fees. 10 (b) The CITY will construct all off-site im- provements which the CITY will require with respect to the Shop- ping Center, and will use its best efforts to do so on or before the date that the Wal-Mart department store in the Shopping Center opens for business . The CITY and the DEVELOPER agree that such off-site improvements will include, at a minimum, the following: With respect to California Street: Construct a 63 foot half street easterly of street centerline, to include: (i) Construct standard curb and gutter 57 feet easterly of street centerline. (ii) Construct standard street section between new curb and street centerline. (iii) Construct standard sidewalk. (iv) Install standard street lights. (v) Construct adequate drainage facilities. With respect to Redlands Boulevard: Construct a 60 foot half street northerly of street centerline, to include: (i) Repair existing curb, gutter and street pavement as necessary. (ii) Construct standard sidewalk. (iii) Install standard street lights. (iv) Construct adequate drainage facilities. With respect to New Jersey Street: Construct a 33 foot half street westerly of street centerline, to include: (i) Construct standard curb and gutter 24 feet westerly of street centerline. (ii) Construct standard street section between new curb and street centerline. 11 (iii) Construct standard sidewalk. (iv) Install standard street lights. With respect to intersection of Redlands Boulevard and California Street: (i) Construct interim traffic signal. The DEVELOPER acknowledges and agrees that prior to undertaking construction of the traffic signal, the CITY may be required to obtain certain permits or approvals from the City of Loma Linda. The CITY will use its best efforts to obtain such permits and approvals and obtain the necessary materials to con- struct the traffic signal. However, the CITY makes no commitment that the traffic signal will be constructed by any date certain. Notwithstanding the foregoing, the CITY will use its best efforts to construct the aforementioned interim traffic signal on or be- fore the date that the Wal-Mart department store in the Shopping Center opens for business . The CITY will also exercise good faith in determining the placement of median access cuts in any median in California Street and New Jersey Street, in relation- ship to driveways from those streets into the Shopping Center. 3. Development Agreement. The CITY and the DE- VELOPER intend to enter into a development agreement as provided in Section 65864 et seg. of the California Government Code and Chapter 18.220 of the Municipal Code of the CITY, which will give the DEVELOPER vested rights to develop the Shopping Center in ac- cordance with the DEVELOPER's development plan and which will otherwise facilitate the efficient and timely development of the Shopping Center. Such development agreement will also fix the ac- tual amount of the total Development Impact Fees with respect to the Shopping Center, will provide for all required or appropriate utility services to the Shopping Center and, without limiting the effect of subparagraph 2. (b) , will establish the scope of the off- site improvements which the CITY will require with respect to the Shopping Center. without limiting the effect of the foregoing, the CITY will promptly accept the DEVELOPER' s application for such development agreement, provided that it has been submitted in ac- 12 cordance with the applicable Ordinance of the CITY, and will pro- cess such application diligently and in good faith. 4 . Finding of Benefit. The CITY has determined that entry into this Agreement and the Lease will facilitate the construction of a major retail center in the CITY which will pro- vide new occupations and employment possibilities for the citi- zens of the CITY, thereby furthering the CITY' s objective of achieving the Southern California Association of Government' s '"Jobs/Housing Balance" , and will facilitate the provision of pub- lic parking for members of the public who will visit and shop at the Shopping Center and who may also patronize other businesses in the general vicinity of California Street and Redlands Boule- vard in the municipal limits of the CITY. 5. Indemnification. The DEVELOPER will defend, indemnify and hold harmless the CITY and its elected officials, officers and employees from and against any and all claims, causes of action, damages or liability arising out of or in connection with any acts or omissions of the DEVELOPER in connection with any activities which are performed as provided in this Agreement. Such indemnity will extend, but not be limited to, claims, causes of action, damages and liability arising from injuries or damages to persons or property, including wrongful death and worker' s compen- sation claims and awards of attorneys ' fees . Such indemnity will not apply to any claims, causes of action, damages or liability arising from injuries to persons or property which result from the sole negligence of the CITY. 6. Remedies for Default. If either the CITY or the DEVELOPER fails to perform any of its obligations as provided in this Agreement, and if the nonperforming party fails to cure its failure within 30 days after notice of nonperformance is given by the other party, then the nonperforming party will be in default and the other party will have all of the remedies which are avail- able to it at law or in equity; provided, however, that if the failure to perform cannot reasonably be cured within such 30 day 13 period, then the nonperforming party will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prose- cutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject mat- ter of this Agreement is unique and that money damages may be in- adequate to compensate the nondefaulting party and that therefore, at the election of the nondefaulting party, this Agreement may be specifically enforced. 7. Notices and Other Communications. (a) Except as otherwise provided in subpara- graph 1 . (i) , all notices or other communications which are re- quired or permitted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certified or registered mail, postage prepaid, return re- ceipt requested, or overnight mail delivery service, addressed as follows : CITY CITY OF REDLANDS 30 Cajon Street Redlands , CA 92373 Attn: City Manager DEVELOPER GATLIN/BERGER DEVELOPMENTS, INC. 5650 El Camino Real Carlsbad, CA 92008 Attn: Franklin C. Gatlin, III With a Copy To: Darryl Berger Investment Corporation 100 Conti Street New Orleans, LA 70130 Attn: Darryl D. Berger If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication 14 is given by mail, then it will be deemed given as of the data of receipt, rejection or return undelivered. Addresses to which no- tices or other communications may be delivered, may be changed from time to time by notice which is given as provided in this subparagraph 7. (a) . (b) Telephonic notice as provided in subpara- graph 1. (i) will be given to the DEVELOPER at both of the follow- ing telephone numbers: (619) 431-1771 and (504) 581-4082. Any such telephonic notice will be deemed given as of the date of com- munication. The DEVELOPER' s telephone numbers may be changed from time to time by written notice which is given as provided in subparagraph 7. (a) . 8. Applicable Law. This Agreement will be con- strued and enforced as provided in California law. 9. Venue. Any legal action with respect to this Agreement will be brought in either San Bernardino County Super- ior Court or in the United States District Court for the Central District of California. 10. Attorneys ' Fees. If legal action is taken to enforce or interpret any provision of this Agreement, then the prevailing party in such action will be entitled to recover from the losing party all attorneys ' fees, court costs and necessary disbursements in connection with such action. 11. Paragraph Headings. The Paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 12. Construction. In all cases, the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Agreement. 15 13. Survival. Each and every covenant in this Agreement will survive the execution and delivery of this Agree- ment for the benefit of the parties. 14 . Calendar Periods . All references in this Agreement to "years" , "quarters" , "months" and "days" will be deemed to be to references to calendar years, quarters, months and days. 15. Severability. Every provision of this Agree- ment is and will be construed to be a separate and independent covenant. If any provision of this Agreement or the application of the same is, to any extent, found to be invalid or unenforce- able, then the remainder of this Agreement or the application of such provision to circumstances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agreement will be valid and will be en- forced to the extent permitted by the law. 16. Further Assurances. Whenever and as often as it is requested to do so by the other party, each party will exe- cute, acknowledge and deliver or cause to be executed, acknow- ledged or delivered, any and all such further documents as may be necessary, expedient or proper in order to achieve the intent of this Agreement. 17. Covenant of Good Faith. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 18. Effect on CITY. This Agreement will not be binding on or enforceable against the CITY until such time as it has been approved by official action of the City Council of the CITY, as provided in a duly adopted and approved City Council resolution authorizing the Mayor of the CITY to execute this Agreement on behalf of the CITY. 16 19. Counter ar s. This Agreement may be executed in counterparts , each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same aareement. 20. The "Recitals" in this Agreement are material and are incorporated by reference as though fully set forth hereat. 21. Exhibits. Any Exhibit to this Agreement is incorporated by reference as though fully set forth hereat® CITY CITY OF REDLANDSr. / ix ATTEST: Mayor By CityClerk APPROVED AS TO FORM AND SUBSTANCE: BEST, BEST & KRIEGER By:. Daniel J. W-Hugh, Esq. DEVELOPER GATLIN/BERGER DEVELOPMENTS, INC. , a Louisiana corporation B Y. ,,,Its President APPROVED AS TO FORM AND SUBSTANCE: GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN By: Mark A. Ostoich, Esq. 17 M72/kas PARKING FACILITY EXHIBIT "A" -'rvva �aV'R 1 ARD ENGINEERING COMPA Y �. SE A BMJ .�+•• tt1G ! .. 711 V7 f V U0.0 0 N AV 1 V X TWAT PORTION OF P.ARCRLS 1 i 2 OF PARCH♦ W 6611 AS RDC'0'*M IN P.R. BK. 81♦ PAGES 79 i 8O, IN T82 CITT OF REDLANDS, COWFTY OF SAN URXAJtDIVO, STATZ OF CALIFORNIA NOM PARTICULARLY DCMIB9D AS FOLLOWS% SILO X TING AT TBt NORTHEAST CORNER OF PAR= 2 ,?'RUM SOUTi1MY ALMA THE 8A3TERLY LIFE OF FARM 2 A BEARING OF 90 2442014 A DISTANCE OF X95.00 M TNE#CY 24.0 FT. MEASliRiM AT RIGHT AXWJCS TO THS TRUE POINT OF itmx*xIiiO. THtNCt FM M THE SAID POINT , PARALL$L TO Tits CAMTERLY LINE Of PABCti♦ 2 PITH A BtAXIJIi OF 80 24'42'9 A DISTAMM OF 307.00 FT. ; TUJXZ S" 35'160W A DIRTANCt OF 106.36 FT. ; T11E11CM SO 1413119W A DISTAIiCE of 2019.64 M ;THZV= FA2AL1.91 TO TON SOUTURLY LINE OF PARCM 2 WITH A ACARINO OF ii69 41'290W A DISTAXCt OF 341.03 FT. ;TMMC9 90 18'3199 .222.12 FT; TV== 369 36'1211 593.62 FT. ;TRINCA 40 22149 0 At 439. 17 PT. ; TMOKS 1189 34'1609 274.03 PT. ;TUtWJ.St5 2514409 290.76 PT. ;TRZXCZ 969 3411609 267.40 rT. ;TXX= 959 3411609 91.12 F?. ;T 969 3411609 264.70 FT. TO Ttit TRUE POINT OF MISMINO. i LEASE AGREEMENT ENTERED INTO BETWEEN GATLIN/BERGER DEVELOPMENTS, INC. AND CITY OF REDLANDS Effective: March 20 , 1990 TABLE OF CONTENTS ----------------------------------------------------------------- ----------------------------------------------------------------- Pa e RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 . DEMISE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 . POSSESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 . RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5 . PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6. RESTRICTIONS AND EASEMENTS . . . . . . . . . . . . . . . . . . . . . 7 7 . INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8 . SUBORDINATION TO FINANCING . . . . . . . . . . . . . . . . . . . . . 9 9. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 . ENTRY BY LESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 11 . ASSIGNMENT OR SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . 10 12. SURRENDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 13. REMEDIES OF LESSOR ON DEFAULT . . . . . . . . . . . . . . . . . . 11 14 . ATTORNEYS ' FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 15. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 16 . FURTHER ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 17 . APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 18. VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 19. PARAGRAPH HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 20 . CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 21 . SURVIVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 2 . CALENDAR. PERIODS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 23. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 -i- TABLE OF CONTENTS, ccnt'd ----------------------------------------------------------------- ----------------------------------------------------------------- P-age 24 . COVENANT OF GOOD FAITH . . . . . . . . . . . . . . . . . . . . . . . . . 16 25. INCORPORATION OF RECITALS . . . . . . . . . . . . . . . . . . . . . . 16 26. EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 27. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 28 . BINDING OF SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . 17 29. TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 30 . CONDEMNATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 31 . DESTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 32 . EFFECT ON LESSEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 33. NEGATION OF AGENCY, JOINT VENTURE AND PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 EXHIBIT "A" - Parking Facility LEASE AGREEMENT This Lease ("Lease") is entered into effective March 20 , 1990 , between GATLIN/BERGER DEVELOPMENTS, INC. , a Louisiana cor- poration ("Lessor") and the CITY OF REDLANDS, a municipal cor- poration ("Lessee") . RECITALS A. Lessor has entered into an agreement to purchase approximately 26 .78 acres of real property in the municipal lim- its of the CITY, which is more particularly described as Parcels 1 and 2 of Parcel Map No. 6611 , in the City of Redlands, County of San Bernardino, as per plat recorded in Book 81 of Parcel Maps, pages 79 and 80, Records of the County of San Bernardino ("Property") . B. Lessor intends to develop the Property as a quality open air shopping center which will contain approximately 275 , 000 square feet of stores, shops and restaurants, including an ap- proximately 125,000 square foot Wal-Mart department store ( "Shop- ping Center") . C. Lessor has asked Lessee to assist in providing park- ing for members of the public who will visit and shop at the Shop- ping Center and who may also patronize other businesses in the general vicinity of California Street and Redlands Boulevard in Lessee ' s municipal limits, by leasing the property in the Shop- ping Center which is described and depicted in EXHIBIT "A" ("Park- ing Facility") and Lessee is willing to do so on the terms and conditions which are provided in this Lease. D. Lessor and Lessee are entering into this Lease pur- suant to that certain Agreement between Lessor and Lessee which was effective March 20, 1990 ("Enabling Agreement") . 1 NOW THEREFORE, the parties agree as follows: 1. DEMISE Lessor hereby leases the Parking Facility to Lessee and Lessee hereby hires the Parking Facility from Lessor, on the terms and conditions which are provided in this Lease. 2. POSSESSION Possession of the Parking Facility will be delivered to Lessee on the date of commencement of the term of this Lease. Before delivering possession, Lessor, at its sole cost, will im- prove the Parking Facility as necessary to make it suitable for its intended purpose, according to plans and specifications which are approved by Lessor and Lessee. 3. TERM (a) Subject to extension as provided in subpara- graph 3. (b) , the term of this Lease will be 10 years, commencing on the date that the Wal-Mart department store in the Shopping Center opens for business . Lessor and Lessee will execute an appendix which sets forth the actual date of commencement of the term of this Lease and such appendix will be incorporated by reference as though fully set forth hereat. (b) If, on the 10th anniversary of the date of com- mencement of the term of this Lease, there is a balance of prin- cipal and/or interest in the Deficiency Account [as defined in subparagraph 4. (a) (iii) (A) I , then the term of this Lease will be extended as provided in subparagraph 4. (a) (iii) (C) . 4. RENT (a) Subject to the adjustment to rent which is pro- vided in subparagraph 4. (b) , Lessee will pay rent for its use of the Parking Facility, as follows: 2 W Rent will accrue at the rate of $118 ,036. 63 per quarter during the period which will commence on the lst day of the lst quarter after the quarter in which the Wal-Mart depart- ment store in the Shopping Center opens for business and which will extend through the 2nd anniversary of such date ("Completion Date") . Commencing on the Completion Date and continuing through- out the remainder of the initial 10 year term of this Lease, rent will accrue at the increased rate of $142 , 306 . 30 per quarter. The amount of rent which will accrue during the quarter in which the Completion Date occurs will be adjusted to reflect the two different rent accrual rates which will apply to such quarter. The parties acknowledge and agree that the rent payments which Lessee is required to make as provided in this Lease, are in- tended to correspond in any fiscal year to the benefit which Les- see derives during such fiscal year, by having the legal right to use the Parking Facility for the purpose which is provided in paragraph 5. , and by having the other rights which are provided in this Lease. (ii) Accrued rent during any partial quarter during the term of this Lease will be prorated based on a 360 day year. (iii) Rent will be payable quarterly during the term of this Lease, in arrears and without offset or demand, com- mencing on the lst day of the lst quarter after the quarter in which the Wal-Mart department store in the Shopping Center opens for business and continuing on each April 1 , July 1, October 1, and January 1 thereafter throughout the term of this Lease. (A) If the rent which has accrued during any quarter is greater than the Applicable Percentage (as defined in subparagraph 4. (a) (iii) (G) l of the sales tax revenue which Lessee has received with respect to such quarter based on sales at or from the Shopping Center ( "Taxes") , then Lessee will pay as 3 rent with respect to such quarter, on the applicable rent payment date, an amount which equals the Applicable Percentage of the total Taxes which it has received with respect to such quarter, and the difference between the rent which has accrued during such quarter and the amount of rent which is actually paid on the ap- plicable rent payment date, will be separately accounted for in an account which will be established for such purpose ("Defi- ciency Account") and will bear interest at the rate of 11% per annum, compounded monthly, from the applicable rent payment date to the date of payment. In addition, any accrued but unpaid in- terest with respect to the Deficiency Account from time to time, will also bear interest at the rate of 11% per annum, compounded monthly, from the date of accrual to the date of payment. Ac- crued interest with respect to the Deficiency Account, during any partial month, will be prorated based on a 360 day year. (B) If there is a balance in the Defici- ency Account and if with respect to any quarter, Lessee has re- ceived Taxes in an amount which is greater than an amount which is determined by dividing rent which has accrued during such quarter by the Applicable Percentage, then within 10 days after the date of the determination that such excess exists, Lessee will pay such excess to Lessor and such payment will be credited first against interest which has accrued with respect to the De- ficiency Account and then against the principal amount of the Deficiency Account. (C) If, on the 10th anniversary of the date of commencement of the term of this Lease, there is a bal- ance of principal and/or interest in the Deficiency Account, then the term of this Lease will be extended for a term which will expire on the earlier of (1) the 20th anniversary of the date of commencement of the term of this Lease or (2) the date on which that there is no remaining balance of principal or interest in the Deficiency Account, and during such extension term, all of 4 the terms and conditions of the Lease will continue in full force and effect, including those with respect to rent. If, on the 20th anniversary of the date of commencement of the term of this Lease, there is a balance of principal or interest in the Defi- ciency Account, then all of the remaining obligations of Lessee with respect to this Lease including, without limitation, the obligation to pay rent, will terminate. Notwithstanding the foregoing, in lieu of the extension of the term of this Lease beyond the 10th anniversary of the date of commencement of the term of this Lease , Lessee may pay an amount to Lessor which equals the balance of principal and interest in the Deficiency Account on the 10th anniversary of the date of commencement of the term of this Lease. (D) As used in this Lease, sales tax rev- enue which is based on sales at or from the Shopping Center will be deemed to include sales which occur at the Shopping Center and sales which occur elsewhere, if they are initiated from the Shop- ping Center and if the situs of the sale is in Lessee' s municipal limits. (E) If the Sales and Use Tax Law is modi- fied or repealed after the date of this Lease or, if Lessee' s part of the sales tax revenue which is based on sales at or from the Shopping Center decreases or is eliminated, then Lessee 's obligation to pay rent will continue to accrue as provided in this Lease and the periodic limitations in this Lease on Lessee' s obligation to pay rent will be deemed modified and will there- after be based on any form of tax or revenue which Lessee re- ceives with respect to the applicable quarter, in total or par- tial replacement of sales or use tax revenue. In addition, in the event of any such change, Lessor and Lessee will fully coop- 5 erate with one another in amending this Lease as is necessary or appropriate to facilitate the timely payment of all rent which is payable as provided in this Lease, so the intent of this Lease can be attained. (F) Lessor and Lessee will cooperate with one another in issuing periodic reports of the status of Lessee' s obligation to pay rent as provided in this Lease. (G) The "Applicable Percentage" with re- spect to each quarter during the term of this Lease, will be as follows: Applicable Quarter Percentage The quarter in which the Wal-Mart department store in the Shopping 75% Center opens for business and the following 7 quarters The following 4 quarters 70% The following 4 quarters 65% The following 4 quarters 60% The following 4 quarters 550 All remaining quarters until expiration of 50% the term of the Lease, including the exten- sion term as provided in subparagraph 3 . (b) (b) As provided in the Enabling Agreement, based on Lessee 's Ordinances which apply to the Shopping Center as of the date of this Lease, Lessee has estimated that the total develop- ment impact fees ("Development Impact Fees") which Lessor will be required to pay with respect to the development of the Shopping Center will be $1 , 024 , 196.00. If the actual amount of such De- velopment Impact Fees which Lessor will be required to pay with respect to the development of the Shopping Center is more or less than $1,024, 196.00, then the rent which will accrue and which 6 Lessee will be obligated to pay as provided in this Lease, will increase or decrease by an amount which would be required to amor- tize the increase or decrease in the actual amount of such De- velopment Impact Fees, including interest at the rate of 11% per annum, compounded monthly, by level quarterly payments over the remainder of the initial 10 year term of this Lease; provided, however that in no event will such Development Impact Fees be greater than $1 , 300, 000 . 00. In addition, if the dates on which such Development Impact Fees become due and payable are acceler- ated for any reason whatsoever, then the rent which will accrue and which Lessee will be obligated to pay as provided in this Lease, will increase based on the loss to Lessor of the use of funds which is caused by such acceleration, on the same basis as is provided above with respect to an increase in such Development Impact Fees. 5. PURPOSE The Parking Facility will be used by Lessee for the purpose of parking the vehicles of members of the public who visit or shop at the Shopping Center and who may also patronize other businesses in the general vicinity of California Street and Redlands Boulevard in Lessee' s municipal limits, at no charge, and for no other purpose. 6. RESTRICTIONS AND EASEMENTS Without any further specific subordination agreement being required, this Lease will be subject and subordinate to covenants, conditions, restrictions and easements which will fa- cilitate the development and use of the Shopping Center and the Parking Facility, by providing for the following: (a) Free access between the Parking Facility and all adjacent parking areas, streets, walks and buildings. 7 (b) Parking rights in the Parking Facility for all members of the public who visit or shop at the Shopping Cen- ter and who may also patronize other businesses in the general vicinity of California Street and Redlands Boulevard in Lessee' s municipal limits. (c) Without limiting the rights of the Lessee as provided in paragraph 9 . , repair, restoration, maintenance, irrigation, cultivation, illumination, security and insurance of the Parking Facility, according to procedures which will insure the uniform maintenance and administration of all parking areas and other common areas which are associated with the Shopping Center including, without limitation, the Parking Facility, and payment by persons other than Lessee of the costs of such repair, restoration, maintenance, illumination, security and insurance. Based on the foregoing provisions for repair, restoration and in- surance of the Parking Facility and subject to the provisions of paragraph 31. , this Lease will not terminate on the total or par- tial destruction of the Parking Facility. (d) Subject to compliance with the applicable provisions of Lessee' s Municipal Code, use of the Parking Facil- ity by occupants of the Shopping Center for the sale of goods and services and for promotional purposes. (e) Reasonable restrictions which will insure the safe and lawful use of the Parking Facility by all members of the public who visit or shop at the Shopping Center and who may also patronize other businesses in the general vicinity of Cali- fornia Street and Redlands Boulevard in Lessee' s municipal limits. (f) Easements which will facilitate the pro- vision of utility services to the Shopping Center and the Parking Facility. 8 A declaration of such covenants , conditions, restrictions and easements will be prepared and recorded by Lessor, at Lessor' s cost. 7. INDEMNIFICATION Lessor will defend, indemnify and hold harmless Les- see and its elected officials, officers and employees from and against any and all claims, causes of action, damages or liabil- ity arising out of or in connection with any acts or omissions of Lessor in connection with any activities which are performed as provided in this Lease . Such indemnity will extend, but not be limited to, claims, causes of action, damages and liability aris- ing from injuries or damages to persons or property, including wrongful death and worker' s compensation claims and awards of attorneys ' fees. Such indemnity will not apply to any claims, causes of action, damages or liability arising from injuries to persons or property which result from Lessee' s sole negligence. 8. SUBORDINATION TO FINANCING Lessor will have the right to encumber the Parking Facility in connection with financing of the Shopping Center and, without any further specific subordination agreement being re- quired, this Lease will be subject and subordinate to any secur- ity interest which is created in connection with any such financ- ing. 9. ALTERATIONS Lessee will not have the right to make any altera- tions to the Parking Facility; provided, however that Lessee will have the right to make repairs to the Parking Facility which are required to mitigate dangerous conditions which pose an immediate threat to health and safety, after providing at least 24 hours 9 advance notice by telephone to Lessor in order to give Lessor the opportunity to mitigate such dangerous condition. Any cost which Lessee incurs in mitigating any dangerous condition at the Park- ing Facility, after complying with the aforementioned notice pro- vision, will be reimbursed by Lessor on Lessee' s demand. 10. ENTRY BY LESSOR Lessee will permit Lessor and its agents to enter the Parking Facility at all reasonable times in order to repair, maintain and inspect the Parking Facility. 11 . ASSIGNMENT OR SUBLETTING (a) If Lessee forms a parking authority or similar public entity which is charged with the administration of Les- see ' s parking facilities, then with Lessor' s prior consent which will not be unreasonably withheld, Lessee will have the right to assign this Lease or sublet the Parking Facility to such parking authority or similar public entity; provided, however that any such assignment or sublease will be subject to all of the provi- sions of this Lease and provided further that no such assignment or sublease will relieve Lessee of its obligations as provided in this Lease. Otherwise, Lessee will not have the right to assign this Lease or sublet the Parking Facility to any person or entity. (b) Lessor may assign its interest in this Lease or in the Property to any person or entity which owns or operates the Shopping Center and may assign its interest in this Lease to any person or entity which provides financing to Lessor. 12. SURRENDER At the expiration or earlier termination of this Lease, Lessee will deliver possession of the Parking Facility to Lessor in good condition and repair, reasonable wear and tear excepted. 10 13. REMEDIES OF LESSOR ON DEFAULT In the event of any breach of this Lease by Lessee including, without limitation, Lessee ' s failure to pay rent as provided in this Lease, Lessor, in addition to any other rights or remedies which it may have, may elect to re-enter or take pos- session pursuant to legal proceedings or pursuant to any means which are provided by law, or terminate this Lease, or re-let the Parking Facility or any part of the Parking Facility for the pur- pose which is provided in paragraph 5. , for such term (which may be for a term extending beyond the term of this Lease) , at such rent and on such other terms and conditions as Lessor in its sole discretion may deem advisable. On each such re-letting, Lessee will be immediately liable to pay to Lessor, in addition to any rent due as provided in this Lease, the costs of any such re- letting and, at Lessor' s option, rent received by Lessor from any such re-letting and will be applied first, to the payment of the costs of any such re-letting and second, to the payment of rent due and unpaid as provided in this Lease and the residue, if any, will be held by Lessor and applied in payment of future rent as the same may become due and payable as provided in this Lease. If Lessee has been credited with any rent to be received from any such re-letting and such rent is not promptly paid to Lessor by the new tenant, or if the rent received from such re-letting dur- ing any quarter is less than that to be paid during such quarter by Lessee as provided in this Lease, then Lessee will immediately pay any such deficiency to Lessor. No re-entry or taking posses- sion of the Parking Facility by Lessor and no acts of maintenance or preservation, efforts to re-let the Parking Facility or the appointment of a receiver on Lessor' s initiative , will be con- strued as an election on its part to terminate this Lease unless a written notice of such intention is given to Lessee or unless the termination is decreed by a court of competent jurisdiction. During any period after Lessor elects to re-enter or takes pos- session pursuant to legal proceedings or pursuant to any means which are provided by law, Lessee may sublet the Parking Facility �w. 11 or assign its interest in this Lease to another person or entity whose net worth is at least equal to Lessee ' s , with Lessor' s con- sent which will not be unreasonably withheld; provided, however that any such sublease or assignment will be subject to all of the terms and conditions of this Lease. Notwithstanding any such re-letting without termi- nation, Lessor may at any time thereafter elect to terminate this Lease for any such previous breach. Should Lessor at any time terminate this Lease for any breach, in addition to any other rem- edy which it may have, Lessor may recover from Lessee all damages which Lessor may incur by reason of such breach including, with- out limitation, the cost of recovering the Parking Facility and (a) the worth at the time of award of the unpaid rent which would have been payable by Lessee as of the date of termination; (b) the worth at the time of award of the amount by which the unpaid rent which would have been payable by Lessee after termination until the time of award, exceeds the amount of Lessor's rental loss which Lessee proves could have been reasonably avoided; and (c) subject to the limitations in Subsection 1951 . 2 (c) of the California Civil Code, as such Subsection may be amended from time to time or any other applicable limitations if such Subsec- tion is repealed, the worth at the time of award of the amount by which the unpaid rent which would be payable by Lessee over the balance of the term of this Lease after the time of award, exceeds the amount of Lessor' s rental loss which Lessee proves could have been reasonably avoided. As used in this paragraph 13. , "worth at the time of award" will have the same meaning as is provided in Subsection 1951. 2 (b) of the California Civil Code, as such Subsection may be amended from time to time or in any other ap- plicable law if such Subsection is repealed. 12 14. ATTORNEYS' FEES If any legal action is commenced to enforce or in- terpret the terms or conditions of this Lease, the prevailing party will, in addition to any costs and Cather relief, be en- titled to recover its reasonable attorneys ' fees. 15. NOTICES (a) Except as otherwise provided in paragraph 9 . , all notices or other communications which are required or permit- ted to be given to the parties will be in writing and will be given either by personal service or by mailing the same by certi- fied or registered mail, postage prepaid, return receipt re- quested, or overnight mail delivery service, addressed as fol- lows: LESSEE CITY OF REDLANDS 30 Cajon Street Redlands , CA 92373 Attn: City Manager LESSOR GATLIN/BERGER DEVELOPMENTS, INC. 5650 El Camino Real Carlsbad, CA 92008 Attn: Franklin C. Gatlin, III With a Copy To: Darryl Berger Investment Corporation 100 Conti Street New Orleans, LA 70130 Attn: Darryl D. Berger If any such notice or other communication is given by I personal delivery, then it will be deemed given as of the date of delivery. If any such notice or other communication is given by mail, then it will be deemed given as of the date of receipt, rejection or return undelivered. Addresses to which notices or 13 C other communications may be delivered, may be changed from time to time by notice which is given as provided in this subparagraph 25 . (a) . (b) Telephonic notice as provided in paragraph 9 . will be given to Lessor at both of the following telephone num- bers: (619) 431-1771 and (504) 582-4082. Any such telephonic notice will be deemed given as of the date of communication. Lessor' s telephone numbers may be changed from time to time by written notice which is given as provided in subparagraph 15 . (a) . 16. FURTHER ACTS Whenever and as often as it is requested to do so by the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all such further documents as may be necessary, expedient or proper in order to achieve the intent of this Lease. 17. APPLICABLE LAW This Lease will be construed and enforced as pro- vided in California law. 18. VENUE Any legal action with respect to this Lease will be brought in either San Bernardino County Superior Court or in the United States District Court for the Central District of a California. 19. PARAGRAPH HEADINGS The paragraph headings in this Lease are for con- venience onlyand are not a art of and are not intended to ov- p g 14 " ern, limit or aid in the interpretation of any provision of this Lease . 20. CONSTRUCTION In all cases, the language in this Lease will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the preparation of this Lease. To the greatest extent possible, the provisions of this Lease and the provisions of the Enabling Agreement will be construed con- sistently with one another. However, if any provision of this Lease conflicts with any provision of the Enabling Agreement, then the provision of the Enabling Agreement will supersede and control. 21 . SURVIVAL Each and every covenant in this Lease will survive the execution and delivery of this Lease for the benefit of the parties. 22. CALENDAR PERIODS All references in this Lease to "years" , "quar- ters" , "months" and "days" will be deemed to be references to calendar years, quarters, months and days. 23. SEVERABILITY Every provision in this Lease is and will be con- strued to be a separate and independent covenant. If any provi- sion in this Lease or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this Lease or the application of such provision to circum- 15 stances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Lease will be valid and will be enforced to the extent permitted by law. 24. COVENANT OF GOOD FAITH In exercising their rights and in performing their obligations as provided in this Lease, the parties will cooperate with one another in good faith, so the intent of this Lease can be attained. 25. INCORPORATION OF RECITALS The "Recitals" in this Lease are material and are incorporated by reference as though fully set forth hereat. 26. EXHIBITS Any exhibit to this Lease is incorporated by ref- erence as though fully set forth hereat. 27. WAIVER The waiver by Lessor of any breach of any term, covenant or condition in this Lease will not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same or any other term, covenant, or condition in this Lease. The subsequent acceptance of rent as provided in this Lease by Lessor will not be deemed to be a waiver of any preceding breach by Lessee of any term, covenant or condition of this Lease, other than the failure of Lessee to pay the partic- ular rent so accepted, regardless of Lessor' s knowledge of such preceding breach at the time of acceptance of such rent. 16 28. BINDING OF SUCCESSORS The covenants and conditions in this Lease will, subject to the provisions of this Lease with respect to assign- ment of subletting, apply to and bind the successors and assigns of the parties. 29. TIME Time is of the essence of this Lease. 30. CONDEMNATION If any part of the Parking Facility is taken or condemned for a public or quasi-public use , and a part of the Parking Facility remains which is susceptible of occupation as provided in this Lease, then this Lease will , as to the part so taken, terminate as of the date title vests in the condemnor, and the rent which accrues and is payable as provided in this Lease will be adjusted so that Lessee will be required to pay during the remainder of the term of this Lease, only the part of such rent as the value of the part which remains after the condemna- tion bears to the value of the entire Parking Facility as of the date of condemnation. If all of the Parking Facility or such part of the Parking Facility so that there does not remain a part which is susceptible of occupation as provided in this Lease, is taken or condemned, then this Lease will terminate as of the date title vests in the condemnor. If all or part of the Parking Facility is taken or condemned, then all compensation which is awarded with respect to such condemnation or taking will go to Lessor and Lessee will have no claim to the same, and Lessee hereby irrevocably assigns and transfers to Lessor any right to compensation or damages to which Lessee may become entitled dur- ing the term of this Lease by reason of the condemnation of all or part of the Parking Facility. 17 31. DESTRUCTION This Lease will not terminate as a result of the total or partial destruction of the Parking Facility unless Les- sor elects to terminate this Lease and, in the event of total or partial destruction where Lessor does not elect to terminate this Lease, Lessor, at its cost, will restore the Parking Facility to its condition before such destruction, within a reasonable time. If Lessor does not elect to terminate this Lease, then there will be no abatement of rent during any period that the Parking Facil- ity is not available for its intended purpose, as a result of total or partial destruction. 32. EFFECT ON LESSEE This Lease will not be binding on or enforceable against Lessee until such time as it has been approved by offi- cial action of Lessee ' s City Council, as provided in a duly adopted and approved City Council resolution authorizing Lessee ' s Mayor to execute this Lease on behalf of Lessee. 33. NEGATION OF AGENCY, JOINT VENTURE AND PARTNERSHIP The parties acknowledge that in entering into this Lease, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence of any form of joint venture or partnership among or between them and agree that nothing in this Lease will be con- strued as making them joint venturers or partners. IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease at Redlands , California, effective the date first above written. 18 LESSOR GATLIN/BERGER DEVELOPMENTS, INC. , a Louisiana corporation By I'ts President APPROVED AS TO FORM AND SUBSTANCE: GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN By: Mark A. Ostoich, Esq. LESSEE CITY OF RE,DLANDS f �.J' 'Mayo" ATTEST: r By: Crty Cldrk r APPROVED AS TO FORM AND SUBSTANCE: BEST, BEST & KRIEGER Daniel J. Mogh, Esq. 19 M72/kas PARKING FACILITY i EXHIBIT "A" - i 4, NG C,GMF�'NY INEERI SEAtOARD ENG J" i Saba" A$ �. .v M R go°, of�+ .. 2 75+ 730 Z7¢ a 3' �� ZG7,ko s to `� hs lot } a v A L D S C A I P T i 0 if THAT pwriOY OF PARCELS 2 A 2 OF PARCEL VAP 6611 AS RECORDED IN P.B. SK. 81, PAGES 79 i 80, IN THZ CITY OF REDLMDB, COUNTY OF SAN R` dER1tAWIXO, STATE OF CALIP001A MORSE PARTICULARLY D9SCRISED AS FOLLOWS: GCO XXING AT rn NORTHEAST CORNER OF PARCtL 2 .TMICZ SOUrMLY ALOMG THE SAMALY LISR OF PARCEL. 2 A SEARING OF 90 24'4299 A DISTAYCZ OF 2".00 IrT; THEWX 24.0 FT. MEASURED AT JtiGV AliWA S T4 THS TRUE POINT OF swinsima. THZXCB FROM THE SAID POINT , PARALLEL TO THE EASTMRLY LINT OF PARCEL 2 WITH A SURING OP 90 24'4209 A DISTANKM OF 307.04 FT. ; TM9W S89 33'16*W A DISTANU OF 106.36 FT. ; TKESCt SO 141319M A DiSTARCE OF 206.64 RT. ;TMZXCE PARALLEL TO TU SOUTHERLY LINE Or PARCEL 2 WITH A SURING aF NOS 41'"@W A DISTANCE OF 367.03 FT. 1 UCE SO 1412112 232.12 FT; THU= 989 36'12W 393.62 FT. I TNZNCS NG 23'489 W 438.17 PT. ; THENU 489 34'16162 274.03 PT. ;TH9MC9S45 2514499 290.76 PT. ;TRM= 9989 340169E 267.40 FT. ;TXUCS 959 34'1609 91.22 FT. ;THS 489 34'1498 2".70 TO THY Tm PGI1tT OF SEGif1lEiso. Z RECORDED IN RECORDING REQUESTED BY: 91 UEC -4 PM 1*52 COMMUNITY DEVELOPMENT DEPT. CITY OF REDLANDS SAN u7RS 777-71c' CO!JINITY. CALIF. P.O.BOX 3005 REDLANDS,CA.92373 t:C0F1 8 NO I-LE r t I FEE 3F1 8 14 U ILI I T WHEN RECORDED MAIL TO: T 4 LNIN47 9 ST K CITY OF REDLANDS '77,y P.O.BOX 3005 REDLANDS,CA.92373 D WE F-P RECORDER'S USE ONLY) DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT OF THE CITY OF REDLANDS,COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA Type of Application: Lot Line Adjustment No. 307 CERTIFIC4TE OF COMPLIANCE Property Owner(s): WAL-MART STORES,INC.,A DELAWARE CORPORATION THE PAVILION AT REDLANDS,LIMITED,A CALIFORNIA LIMITED PARTNERSHIP Pursuant to Sections 66412(d), 66499.34 and 66499,35 of the Government Code of the State of California(Subdivision Map Act),the Department of Planning and Community Development of the City of Redlands declares that a finding has been made that the following described real property complies with said Subdivision Map Act, and with local ordinances adopted pursuant to that act. The following descriptions shall be used when the cited parcels are conveyed: SEE ATTACHED LEGAL DESCRIPTIONS ssio&' 3-1#- rI RD,%ALD C. NUTTER 28129 Subject to Easements and Offers of Dedication of Record. -77) Legal Description Approved by: C- Dated: Director,waiiment-bf Pianni"ng and Community Development Redlands,California Revised 12/4/91 -4580 77# * RECOADED M PFCOPOS RECORDING REOUESTED BY: 91 WC—4 PM It S2 COMMUNITY DEVELOPMENT DEPT. CITY OF REDLANDS , eA- 4 r SAH BERNARDINO P.O.BOX 3005 COUNTY. CALIF. i was REDLANDS,CA.92373MC OR WHEN RECORDED MAIL TO: LOW CITY OF REDLANDS P.O.BOX 3000 REDLANDS,CA.92373 OTT THM FOR RECORDER'S USE ONLY) DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT OF THE CITY OF REDLANDS,COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA Type of Application: Lot Line Adjustment No. 307 CER7IFIC4rE OF COMPLIANCE Property Owner(s): WAL-MART STORES,INC.,A DELAWARE CORPORATION THE PAVILION AT REDLANDS,LIMITED,A CALIFORNIA LIMITED PARTNERSHIP Pursuant to Sections 66412(d),66499.34 and 66499.35 of the Government Code of the State of California(Subdivision Map Act),the Department of Planning and Community Development of the City of Reeds declares that a finding has been made that#te following described real property compos with said Subdivision Map Act,and with focal ordktances adopted pursuant to that act The following descriptions std be used whan the cited parcels are conveyed: SEE ATTACHED LEGAL DESCRIPTIONS Ft:SSJp,�� Y {�~ !�►!! 'lett-iV" �� RONALD C.Mtl1T73t 28129 4' CIVIL 4c Subject to Easements and Offers of Dedication of Record. Emulu ell Legal Description Approved by: , ,-_ C, , Dated: Al/y/g/ Director, f Plana ing and Community Development Redlands,California Revised 1214191 91-458977 EXISTING: PARCEL 8 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. PROPOSED : PARCEL " F " PORTION OF 8 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 8, SAID POINT BEING ON THE NORTH LINE OF REDLANDS BOULEVARD, 93 . 25 FEET WIDE AS SHOWN ON SAID MAP; THENCE NORTH 89* 41' 29" WEST 179.99 FEET; THENCE NORTH 0` 25' 44" WEST 202.36 FEET; THENCE NORTH 89* 34' 16" EAST 179.98 FEET; THENCE SOUTH 0* 25' 44" EAST 204.67 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 0.841 ACRE MORE OR LESS. papf E 551p�� rrn * On � � F�f LAO0�' • J EXISTING PARCEL 7 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. PROPOSED : " PARCEL E it PORTIONS OF PARCELS 4, 6, AND 7 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL 6, SAID POINT BEING ON THE NORTH LINE OF REDLANDS BOULEVARD, 102 .00 FEET WIDE AS SHOWN ON SAID PARCEL MAP, DISTANT THEREON SOUTH 89' 41' 29" EAST 214 .69 FEET; THENCE NORTH 0` 25' 44" WEST 64.92 FEET; THENCE NORTH 89' 34' 16" EAST 7. 24 FEET; THENCE NORTH 0` 25' 44" WEST 135.17 FEET; THENCE NORTH 89` 341 16" EAST 130.33 FEET; THENCE SOUTH 0' 25' 44" EAST 201.86 FEET TO THE AFOREMENTIONED NORTH LINE OF REDLANDS BOULEVARD; THENCE NORTH 89* 41' 29" WEST 137.57 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 0.612 ACRE MORE OR LESS. f ESS1t E,� . ' C7 ND. 11737 Ev. X311 * civic of LAlt4�� EXISTING ; PARCEL 6 OF PARCIEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. PROPOSED ; PARCEL " D " PORTIONS OF PARCELS 6 AND 7 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOB 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL 6, SAID POINT BEING ON THE NORTH LINE OF REDLANDS BOULEVARD, 102.00 FEET WIDE AS SHOWN ON SAID MAP; THENCE NORTH 0' 25' 44" WEST 197.32 FEET;THENCE NORTH 89° 34' 16" EAST 221.90 FEET; THENCE SOUTH 0* 25' 44" EAST 135.17 FEET; THENCE SOUTH 89` 34' 16" WEST 7.24 FEET; THENCE SOUTH 0' 25' 44" EAST 64.92 FEET TO THE AFOREMENTIONED NORTH LINE OF REDLANDS BOULEVARD; THENCE ALONG SAID NORTH LINE NORTH 89' 41' 29" WEST 214 .69 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 1.002 ACRES MORE OR LESS. INK `pti TH ��4 91-458"1 EXISTING PARCEL 4 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. PROPOSED : PARCEL "C" PORTIONS OF PARCELS 3,4 AND 8 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 & 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 4 , SAID POINT BEING THE NORTHEAST CORNER OF SAID PARCEL MAP; THENCE ALONG THE EAST LINE THEREOF SOUTH 0' 24' 42" EAST 171.09 FEET TO THE NORTH LINE OF NEW JERSEY STREET AS SHOWN ON SAID MAP, SAID POINT BEING ON A CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 48 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 19` 53' 00" WEST; THENCE SOUTHWESTERLY ALONG SAID CURVE AN ARC LENGTH OF 59.09 FEET THROUGH A CENTRAL ANGLE OF 70* 31' 42"; THENCE ALONG THE WEST LINE OF NEW JERSEY STREET, 64 .00 FEET WIDE AS SHOWN ON SAID MAP SOUTH 0' 24' 42" EAST 497. 32 FEET; THENCE SOUTH 89* 34' 16" WEST 272 .06 FEET; THENCE SOUTH 0' 25' 44" EAST 206.77 FEET TO THE NORTH LINE OF REDLANDS BOULEVARD, 93.25 FEET WIDE AS SHOWN ON SAID MAP; THENCE ALONG SAID NORTH LINE NORTH 89* 41' 29" WEST 163 .02 FEET; THENCE NORTH 0` 25' 44" WEST 204.67 FEET; THENCE SOUTH 89` 34' 16" WEST 179.98 FEET; THENCE SOUTH 0" 25' 44" EAST 202.36 FEET TO THE NORTH LINE OF SAID REDLANDS BOULEVARD THEREOF; THENCE ALONG SAID NORTH LINE, NORTH 89' 41' 29" WEST 38.71 FEET; THENCE NORTH 0' 25' 44" WEST 201 .86 FEET; THENCE SOUTH 89' 34' 16" WEST 214 .46 FEET; THENCE NORTH 0' 25' 44" WEST 332.66 FEET; THENCE NORTH 89° 34' 16" EAST 236.30 FEET; THENCE SOUTH 45* 25' 44" EAST 33.94 FEET; THENCE NORTH 89' 34' 16" EAST 38.18 FEET; THENCE NORTH 00 25' 44" WEST 314.32 FEET; THENCE SOUTH 890 34' 16" WEST 54.87 FEET; THENCE NORTH 0` 25' 44" WEST 30.69 FEET; THENCE NORTH 89* 34'16" EAST 53.08 FEET; THENCE NORTH 0* 25' 44" WEST 60.00 FEET TO THE NORTH BOUNDARY LINE OF SAID PARCEL MAP; THENCE ALONG SAID NORTH BOUNDARY LINE, NORTH 89* 34' 16" EAST 603.73 FEET TO THE NORTHEAST CORNER THEREOF AND POINT OF BEGINNING. CONTAINING AN AREA OF 12.713 ACRES MORE OR LESS. xEsslo t. 1373) + " LAD 3-31 3� CIY Df -A0�� J 1-458077 EXISTING PARCEL 3 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA. PROPOSED : PARCEL " B " PORTIONS OF PARCELS 2, 3, AND 4 OF PARCEL MAP NO. 13542 AS PER. MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 3, SAID POINT BEING ON THE EAST LINE OF CALIFORNIA STREET, 104.25 FEET WIDE AS SHOWN ON SAID MAP, THENCE NORTH 89° 34' 16" EAST 118.07 FEET; THENCE NORTH 0` 25' 44" WEST 136.00 FEET; THENCE SOUTH 89` 34' 16" WEST 28.00 FEET; THENCE NORTH 0° 25' 44" WEST 76.00 FEET; THENCE SOUTH 89a 34' 1611 WEST 4.08 FEET; THENCE NORTH 0. 25' 44" WEST 55.00 FEET TO THE NORTHWEST CORNER THEREOF AND SAID POINT BEING ON THE NORTH BOUNDARY LINE OF SAID PARCEL MAP; THENCE ALONG SAID NORTH BOUNDARY LINE NORTH 89* 34 ' 16" EAST 558.00 FEET TO THE NORTHEAST CORNER THEREOF; THENCE SOUTH 0° 25' 44" EAST 60.00 FEET; THENCE SOUTH 89° 34' 16" WEST 53.08 FEET; THENCE SOUTH 0" 25' 44" EAST 30.69 FEET; THENCE NORTH 89` 34' 16" EAST 54.87 FEET; THENCE SOUTH 0" 25' 44" EAST 314 . 32 FEET; THENCE SOUTH 89° 34' 16" WEST 38.18 FEET; THENCE NORTH 450 25' 44" WEST 33.94 FEET; THENCE SOUTH 89" 34' 16" WEST 236.30 FEET; THENCE SOUTH 0° 25' 44" EAST 332.66 FE'E'T; THENCE SOUTH 89* 34' 16" WEST 137.76 FEET; THENCE NORTH 0' 2 ' 44" WEST 398.16 FEET; THENCE SOUTH 89° 34' 16" WEST 217.72 FEET TO THE AFOREMENTIONED EAST LINE OF CALIFORNIA STREET; THENCE ALONG SAID EAST LINE NORTH 0° 23' 48" WEST 48.50 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 5.786 ACRES MORE OR LESS. ,,of ESsl c NU 33137 Exp 3-31-1 3� cc CIVIL LEGAL DESCRIPTION FOR LOT LINE ADJUSTMENT UNDER CERTIFICATE OF COMPLIANCE EXISTING PARCEL 2 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERhTARDINO COUNTY, STATE OF CALIFORNIA. PROPOSED PARCEL "A" PORTION OF PARCEL 2 OF PARCEL MAP NO. 13542 AS PER MAP RECORDED IN BOOK 152 PAGES 48 AND 49 OF PARCEL MAPS, IN THE CITY OF REDLANDS, RECORDS OF SAN BERNARDINO COUNTY, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL, SAID POINT BEING ON THE EAST LINE OF CALIFORNIA STREET, 104.25 FEET WIDE AS SHOWN ON SAID MAP; THENCE NORTH 89° 34' 16" EAST 93.99 FEET;THENCE SOUTH 0' 25' 44" EAST 55.00 FEET; THENCE NORTH 89* 34' 16" EAST 4.08 FEET; THENCE SOUTH 0* 25' 44" EAST 76.00 FEET; THENCE NORTH 890 34' 16" EAST 28 .00 FEET; THENCE SOUTH 0* 25' 44" EAST 136. 00 FEET TO THE SOUTHEAST CORNER THEREOF; THENCE SOUTH 89* 34' 16" WEST 118.07 FEET TO THE AFOREMENTIONED EAST LINE OF CALIFORNIA STREET; THENCE ALONG SAID EAST LINE NORTH 0' 23' 48" WEST 267.00 FEET TO THE POINT OF BEGINNING. CONTAINING AN AREA OF 0.644 ACRE MORE OR LESS. Qaof fssioy *.BFR �A 00. 13131 9, _ C.0 "o sp. 3.31 1993 x rnf► ALL–PURPOSE ACKNOWLEDGMENT State of California 91-458077 CAPACITY CLAIMED BY SIGNER -„ ounty of San Bernardino �s;s +c ofsurrtrr s On 12/4/91 before me, B_ Sanchez (name,title of officer), Planning Director personally appeared Jeffrey L. Shaw tru(s7 X personally known to me—OR—0 proved to me on the basis of satisfactory evidence to City of Redlands be the person(*) whose names) is/mm subscribed to the within instrument and acknowl- msµ, edged to me that heft■I executed the same in hisll00111110cauthorized capacity(is),and PMTNERS+W that by hisfileaftair signature(p)on the instrument the person(s),or the entity upon behalf of which the person(* acted, executed the instrument. WITNESS my hand and official seal. ""T OFIICIAL 8FAL ❑OTWA B. �H� 1 tst w NOTARY 115 W Sault Ecom” mins, . � Exrrrr(e%TffPMsEWTED Signature EW TY*S)REMSEMED 0 NATIONAL NOTARY ASSOCJATION•8236 Rartrnet Ave.•P.O.Bic 7184•CWV98 PrK CA 9130-4.7184 t i I 1� r i WAL= MART WAL-MART STORES, INC. 701 SOUTH WALTON BLVD. • BENTONVILLE, AR 72716 • 501-273-4000 Direct Dial No. Direct FAX No. Direct Zip Code (501) 273-4262 (501) 273-6599 72716-0480 February 8, 1991 City of Relands ATTN: Mr. George H. Kaenel Director of Finance 30 Cajon Street Redlands, California 92373 Re: Wal-Mart/The Pavilion at Redlands Redlands, California Gentlemen: Enclosed please find a recorded copy of that certain Agreement Regarding Lease, dated September 19, 1990, whereby The Pavilion at Redlands, Limited, a California limited partnership, transferred to Wal-Mart Stores, Inc. , a Delaware corporation, 48.95% of its rights and obligations under that certain Lease Agreement dated effective March 20, 1990, between Gatlin/Berger Developments, Inc. (the predecessor in interest of The Pavilion at Redlands, Limited) , as Lessor and the City of Redlands as Lessee. The transfer of 48.95% reflects the percentage of the land area in The Pavilion at Redlands Shopping Center, that The Pavilion at Redlands, Limited, sold to Wal-Mart Stores, Inc. on September 21, 1990. In view of the foregoing, we hereby request that 48.95% of any amounts due The Pavilion at Redlands, Limited, under that Lease Agreement, be sent directly to Wal-Mart Stores, Inc. , at the following address: Wal-Mart Stores, Inc. 702 Southwest Eighth Street Bentonville, Arkansas 72716 ATTN: Jay Lewis Construction Accounting City of Redlands Page 2 February 8, 1991 We are looking forward to getting our store open in Redlands and becoming a part of the Redlands community. Please give me a call if you have any questions. Very truly yours, WAL-MART STORES, INC. fl NA U, lilt- Robert M. Bedard Real Estate Manager RMB:mjb Enclosure cc: Franklin C. Gatlin III The Pavilion at Redlands, Limited Mark A. ostoich, Esq. Recording Requested By: CHICAGO TITLE RERERE U&5TED BY AND WM RECORDED MWL TO: RECORDEDIN Mark A. Ostoich, Esq. GRESHAM, VARNER, SAVAGE, S P 21 11 , 2C NOLAN & TILDEN BEi�;NAR!DiNO 600 N. Arrowhead Avenue Suite 300 CO., CALIF. San Bernardino, CA 92401 5— fT 0 378`151 IN � AGREEMENT REGARDING LEASE This Agreement is made and entered into as of the 19th day of September, 1990, by and between THE PAVILION AT REDLANDS, LIMITED, a California limited partnership ("Developer") and WAL-MART STORES, INC., a Delaware corporation ("Wal-Mart"). RECITALS WHEREAS, Wal-Mart is, or will become contemporaneously with this Agreement, the owner of Parcel 4 of Parcel Map tKI-4as recorded in Book 15�2_ of Maps, at pages Ye through A inclusive, in the records of the County Recorder of San Bernardino County, California, (the "Wal-Mart Property"); and WHEREAS, Developer is, or will become contemporaneously with this Agreement, the owner of Parcels I through 3 and Parcels 5 through 9 of Parcel Map CNS as recorded in Book 1-52- of Maps, at pages 4? through W , inciu _--siv, , in the records of the County Recorder of San Bernardino County, California (the "Developer Property"); WHEREAS, by Lease Agreement dated effective March 20, 1990 (the "Lease") the City of Redlands (the "City") has leased from GATLIN/BERGER DEVELOPMENTS, INC. ("Wal-Mart's and Developer's predecessor in interest in their respective properties) a portion of the Wal-Mart Property and a portion of the Developer Property, all as described in the Lease; and WHEREAS, the parties desire to enter into this Agreement to set forth their respective rights and obligations with respect to the Lease. ag:agrelse\k 90-378751 NOW, nIEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Developer and Wal-Mart confirm and agree, each with the other, as follows: 1. Wal-Mart and Developer confirm that they have purchased their respective properties subject to the Lease and agree not to disturb the City's rights thereunder. 2. Wal-Mart and Developer agree to perform the lessor's obligations under the Lease to the extent that the Lease affects their respective properties. Without limiting the effect of the foregoing, Wal-Mart and Developer hereby confirm that the Parking Facility, as defined in and which is the subject of the Lease, shall be deemed to be Common Area, as defined in and for purposes of that certain Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements made by Wal-Mart and Developer of even date herewith respect to the Wal-Mart Property and the Developer Property. 3. Wal-Mart and Developer agree to send promptly to each other copies of any notices of default received from the City with respect to the Lease. Further, each of Developer and Wal-Mart shall have the right to cure any defaults under the Lease caused by the other party so as not to permit any termination thereof and the defaulting party shall thereafter be responsible to the curing party for the expense of the cure. 4. Neither Wal-Mart nor Developer shall terminate or amend the Lease in any respect without the prior written consent of the other. 5. Without limiting the effect of any other provision of this Agreement, Developer hereby assigns to Wal-Mart 48.95% of Developer's right under the Lease, to receive rents and other sums payable to the lessor under the Lease, and hereby reserves unto itself and its successors and assigns, 51.05% of Developer's right under the Lease, to receive rents and other sums payable to the lessor under the Lease. The details of such assignment are as set forth in that certain Purchase Agreement dated as of the,Ay of 1990, between Wal-Mart and Developer. 6. Wal-Mart and Developer shall cooperate with each other in the performance of this Agreement and shall take such steps as may be required from time to time to carry out the intent of this Agreement. 7. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns. 2 90-378751 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. PAVILION THE PAVILION AT REDLANDS, LIMITED, a California limited partnership By THE PAVILION AT REDLANDS CORPORATION, a California corporation, general partner By: Its )YAL-MART WAL-MART STORES, INC., a Delaware cor- poration By: its STATE OF CALIFORNIA ss. COUNTY OF On 1990, 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 i0isfactory evidence to be the - of THE PAVILION AT REDLANDS CORPORATION, a California corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the general partner of THE PAVIUON AT REDLANDS, LIMITED, a California limited partnership, and acknowledged to me that said corporation executed it as the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership. WITNESS my hand and official seal. Woiiry' Pubffc_ 3 90-3'7 '751 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written. PAVILION THE PAVILION AT REDLANDS, LIMITED, a California limited partnership By THE PAVILION AT REDLANDS CORPORATION, a California corporation, general panne By: Its WAL-MART WAL-MART STORES, INC., a Delaware cor- poration By: Its STATE OF CALIFORNIA ) ss. COUNTY OF SAN BEMAMINO ) On se19, 1990, 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 satis actory evi ence to be the vice-President of THE PAVILION AT REDLANDS CORPORATION, a Califorma corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership, and acknowledged to me that said corporation executed it as the general partner of THE PAVILION AT REDLANDS, LIMITED, a California limited partnership. WITNESS my hand and official seal. vrtCVL sou NoWblic • "M A SAM • WTApy PU LIC-CALOW MA SAM S MIAMM10 C00MTY rrr CW113"or Oct 4. SWI 3 90-378751 STATE OF ARKANSAS ss. COUNTY OF �TX 1-7-N On k tis 1 1990, before me the undersigned, a Notary Public in and for said State, personally appeared 14_0( 1�' personally known to me or proved to me on the basis of satisfactory evidence to 57e the person who executed the within instrument as the�_. _ of WAL-MART STORES, INC., the corpora- tion that executed the within instrumen an acknowledged to me that said corporation exe- cuted the within instrument pursuant to its Bylaws or a resolution of its Board of Directors. WITNESS my hand and official seal. dEic My COMMISIAR rYP'qrl 711MPm 4