HomeMy WebLinkAboutContracts & Agreements_13-2006_CCv0001.pdf FUNDING AGREEMENT
by and between
CITY 4F REDLANDS,
a municipal corporation
and
GGP-REDLANDS MALL,L.P.,
a Delaware limited partnership
340913.6 001663.0007 1,6 1-006-11X31 AM
FUNDING AGREEMENT
This FUNDING AGREEMENT (this "Agreement") is dated for identification purposes
as of January 17, 2006 and is entered into by and between the CITY OF REDLANDS, a
municipal corporation (the "City"), and GGP-REDLANDS MALL, L.P., a Delaware limited
partnership (the "Developer"), upon the terms and subject to the conditions set forth herein.
Both the City and the Developer are sometimes hereinafter referred to individually as a "party,*
and collectively as the "Parties".
RECITALS:
A. The City is a municipal corporation, exercising governmental functions and
powers and organized and existing under the laws of the State of California;
B. The Developer is an active limited partnership formed and existing under the laws
of the State of Delaware and is qualified to do business in the State of California;
C. The Developer and the Redevelopment Agency of the City of Redlands have
entered into negotiations regarding the development of a proposed mixed-use project (the
"Project") on generally the site of the existing Redlands Mall (100 Redlands Mall, Redlands,
California 92373, between Eureka Street to the east, Orange Street to the west, Redlands
Boulevard to the north and Citrus Avenue to the south, and including the remote parking lot
south of Citrus Avenue and east of Eureka Street) (the "Site");
D. In connection with the proposed Project, the City may need to consider and
approve certain planning actions and entitlements proposed to be initiated by the City
(collectively, the "Planning Actions");
E. Before the City may approve the Planning Actions, the City must, inter alfa,
comply with the requirements of the California Environmental Quality Act, as amended
("CEQA"); and
F. Prior to the completion of the CEQA process and the City's consideration of the
Planning Actions, the Parties desire to enter into this Agreement to move forward in the interim
to complete such steps in furtherance of the Project as maybe carried out in accordance with law.
AGREEMENT:
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt
and sufficiency of which are hereby acknowledged,the Parties mutually agree as follows:
1. Development Actions.
The Parties agree that it is in the best interest of the Project to take any or all
development actions in furtherance thereof as permitted by law prior to the completion of the
CEQA process and consideration of the Planning Actions, including, without limitation,
retention by the City of one or more consultants to conduct the studies and analysis required by
CEQA, prepare planning documents, and assist with review and processing related thereto (the
"Development Actions").
300913,6 001663.0007 1,62006-11:31 AM
2. Costs.
Within thirty (30) days after the date of this Agreement, the Parties shall meet to
develop a detailed budget estimate of all City costs for third-party professional services and
consultant costs (the "Contracts") relating to the Development Actions and the Project (the
`Budget"), which shall be subject to amendment by mutual agreement of the Parties. Each of
the Contracts shall be subject to the Developer's written approval prior to approval by the City.
Unless otherwise agreed in writing, the Developer shall pay all City costs for the Contracts in
accordance with this Agreement.
Within ten (10) calendar days of the City's approval of the first of the Contracts
contemplated by this Agreement, the Developer shall deposit with the City the sum of One
Hundred Thousand Dollars ($100,000) (the "Deposit"). The Developer authorizes the City to
use or draw on the Deposit to pay the actual expenses incurred by the City in connection with the
Contracts. The City's payment of invoices for the Contracts does not require the prior approval
of the Developer, but copies of each invoice shall be promptly provided to the Developer by
facsimile. If and when the balance of the Deposit drops below the amount of Twenty-Five
Thousand Dollars ($25,000) (as documented by paid invoices provided to the Developer), then
the Developer shall replenish the Deposit back to the amount of One Hundred Thousand Dollars
($100,000) (or the anticipated amount of the next batch of invoices, whichever is higher), within
thirty (30) calendar days after receiving a written request from the City.
The amount of the Deposit held by the City at any given time shall not exceed the
total amounts yet to be expended (at such point in time) pursuant to the Contracts (i.e., the
balance of the deposits shall decline as the Parties approach the end of the planning/approval
period). Upon the termination of this Agreement, any remaining unexpended and unencumbered
amount of the Deposit shall be returned to the Developer within thirty (30) calendar days.
3. Proiect Information.
The Developer acknowledges that the City may require the Developer to supply
data and information about the Project to determine whether the Project may have a significant
effect on the environment, and to assist the City in carrying out the purposes of the Contracts.
The Developer shall promptly comply with all such reasonable requests by the City.
4. Failure to Comply.
If, at any time, the Developer unreasonably delays in advancing monies as
requested by the City pursuant to Section 2 hereof, paying any invoice from the City when due,
or failing to provide the City with information or data requested pursuant to Section 3 hereof,
shall be cause for the City to suspend work under the Contracts andJor terminate this Agreement
pursuant to Section 6 hereof.
300913.6 001663 0007 1.6.3006-11:31 AM
5. Discretionary Approvals.
The Developer acknowledges that the City may not commit itself to any future
discretionary approvals (including, without limitation, approvals required under CEQA, state
planning and zoning law, and/or state legislative bodies) and is not bound to approve the Planning
Actions contemplated herein or any other discretionary approval which may be required for the
Project. The City shall have no liability to the Developer if the City fails to grant any discretionary
approval (including, without limitation, the Planning Actions) relating to the Project. The
Developer acknowledges and agrees that nothing herein restricts nor shall be deemed to restrict the
City Council in the free exercise of its discretion or its executive, quasi-judicial or legislative
powers.
6. Termination.
Either Party may terminate this Agreement upon thirty (30) days written notice to
the other Party. This Agreement shall automatically terminate upon approval of the Planning
Actions by the City; thereafter, all terms and conditions hereof shall be null and void, except as
provided herein.
7. Appraisals and Environmental and Other Studies.
The City shall promptly provide the Developer with copies of any appraisals and
environmental reports and any other studies which the City prepares, or causes to be prepared, or
otherwise obtains with respect to all or any portion of the Site or the Project, subject to any legal
requirements with respect to confidentiality.
8 Notices.
All notices required or permitted hereunder shall be delivered in person or by
facsimile, by overnight courier, or by registered or certified mail, postage prepaid, return receipt
requested to such Party at its address shown below, or to any other place designated in writing by
such Party.
The City: Mr. Jeffrey L. Shaw, Community Development
Director
City of Redlands
35 Cajon Street, Suite 200
P.O. Box 3005 (Mailing)
Redlands, California 92373
Facsimile No.: (909) 335-4779
With a copy to: Daniel J. McHugh, Esq., City
Attorney City of Redlands
35 Cajon Street, Suite 200
P.O. Box 3005 (Mailing)
Redlands, California 92373
Facsimile No.: (909) 798-7503
304913.6 0016630007 1.6.2006-11:31 AM
�z
-Redlands Mall, L.P.
The Developer: GGP
c/o General Growth Properties
110 North Wacker Drive
Chicago, Illinois 60606
Attention: General Counsel
Facsimile No.: (312) 960-5476
With a copy to: Brown, Winfield& Canzoneri, Inc.
300 South Grand Avenue, Suite 1500
Los Angeles California 90071-3125
Attention: Anthony Canzoneri, Esq.
Facsimile No.: (213) 687-1703
Any such notice shall be deemed received upon delivery, if delivered personally
or by facsimile, one (1) business day after delivery to an overnight courier, if delivered by
overnight courier and three (3) business days after deposit into the United States Mail, if
delivered by registered or certified mail.
9. No Obligation to Third Parties.
This Agreement shall not be deemed to confer any rights upon, nor obligate either
of the Parties to this Agreement to, any person not a Party to this Agreement.
10. No Third Party Beneficiary to the Contracts
The Developer expressly acknowledges and agrees that the City's Contracts are
for the benefit of the City and the public and, in part, are undertaken in compliance with the
City's obligations under CEQA and that the Developer is not a third party beneficiary of the
Contracts.
11. Defense and Indemnity.
The Developer shall defend, indemnify and hold harmless the City and its elected
officials, officers and employees from and against (i) any and all third-party claims, losses,
proceedings, damages, causes of action, liability, costs and expenses (including reasonable
attorneys' fees, and including in-house counsel fees at rates prevailing in San Bernardino
County, California) arising from or in connection with, or caused by, any negligent or
intentionally wrongful act or omission of the Developer and its officers, employees and agents in
connection with the Developer carrying out its obligations under this Agreement; (ii) any action.
or proceeding brought by any third party challenging the validity of any provision of, or the
entirety of, this Agreement, or any of the transactions contemplated by this Agreement and/or
(iii) any breach by the Developer of any provision of this Agreement, including any breach by
the Developer of this Defense and Indemnity provision. This provision shall survive any
termination of this Agreement pursuant to Section 6 hereof.
304913.6 002663,0007 1.6 2006-1131 AM
R
12. Attorneys' Fees.
In the event that any action is commenced to enforce or interpret the terms or
conditions of this Agreement, the prevailing party in such action, whether resolved by mediation,
arbitration or judgment, shall, in addition to any costs and other relief, be entitled to the recovery
of its reasonable attorneys' fees. If the City utilizes its in-house counsel, then the City shall be
entitled to attorneys' fees incurred for in-house counsel at rates prevailing in San Bernardino
County, California. This provision shall survive any termination of this Agreement pursuant to
Section 6 hereof.
13. Entire Agreement
This Agreement represents the entire agreement and understanding between the
Parties as to the matters contained herein, and any prior negotiations, proposals or verbal
agreements are superseded by this Agreement. Any amendment to this Agreement shall be in
writing, approved by the City Council of the City and signed by the City and the Developer.
14. Miscellaneous.
This Agreement and the legal relations between the Parties hereto shall be governed
by and construed and enforced in accordance with the laws of the State of California. Any term
herein can be waived only by a written waiver signed by the Party against whom such waiver is
to be asserted. This Agreement maybe executed in counterparts, each of which when so
executed shall be deemed an original, and all of which, when taken together, shall constitute but
one and the same instrument.
300913,6 001663-000? 1.6.2005-11:31 AM
IN WITNESS WHEREOF, the Parties have executed this Funding Agreement as of the
day and year first written above.
The "CITY"
CITY OF REDLANDS, a municipal corporation
By:
Jon ,Xarrison, Mayor
ATTEST:
By:
Lo Poyzer, Cray` I rk
THE "DEVELOPER"
GGP-REDLANDS MALL, L.P., a Delaware limited partnership
By: GGP-Redlands Mall, L.L.C., a Delaware limited liability company,
its general partner
By: GGPLP, a Delaware limited liability company,
its sole member
By: GGP Limited Partnership, a Delaware limited partnership,
its managing member
By: General Growth Properties, Inc., a Delaware corporation,
its general partner
By:
Name: L. Gern
r Via- Vre-Sident
300913.6 001663 0007 1.6-2006-11,31 AM