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HomeMy WebLinkAboutPlanning Comm Reports/1994/10/19 INFORMATION MEMORANDUM October 19, 1994 r TO: Chairman and Members of the Planning ,Co mission h~ \ FROM: Ken Lee, Assistant Planning Director SUBJECT: Channelside Shopping Center On September 28, 1994, the Commission considered and recommended certification of a final Environmental Impact Report for the Channelside Shopping Center, located south of SR-54 between 5th Avenue and Broadway, One of the discretionary actions that will be part of the project approvals to be considered by the City Council and Redevelopment Agency is a Disposition and Development Agreement among the Agency, Walmart Store, Inc, and Chula Vista Town Center Associates, L.P. The DDA has been conditionally approved by the Redevelopment Agency. This aspect of the project was not specifically referenced in the final EIR for the project. Therefore an Addendum to the final EIR has been prepared and will be considered by the Council and Agency in their deliberation over the project. The Addendum to the Pinal EIR concludes that satisfaction of the conditions to effectiveness of the DDA (e,g. certification of the final EIR) would not result in any environmental effects that were not otherwise anticipated from the project. All project impacts were addressed in the Pinal EIR in full compliance with the California Environmental Quality Act. No action by the Planning Commission is required for this item. Copies of the DDA and the Addendum to the final EIR are attached for your information. ADDENDUM TO ENVIRONMENTAL IMPACT REPORT EIR-94-04 Channelside Shopping Center PROJECT NAME: Channelside Shopping Center PROJECT LOCATION: Northwest comer of SR-54 and National City Boulevard (Broadway) PROJECT APPLICANT: National Avenue Associates PROJECT AGENT: National Avenue Associates/Gatlin Development CASE NO.: EIR-94-04A I. INTRODUCTION The environmental review procedures of the City of Chula Vista allow the Environmental Review Coordinator (ERe) to prepare an addendum to an Environmental Impact Report, if one of the following conditions is present: 1. The minor changes in the project design which have occurred since completion of the Pinal EIR have not created any new significant environmental impacts not previously addressed in the Pinal EIR; 2. Additional or refined information available since completion of the Pinal EIR regarding the potential environmental impact of the project, or regarding the measures or alternatives available to mitigate potential environmental effects of the project, does not show that the project will have one or more significant impacts which were not previously addressed in the Pinal EIR. This addendum has been prepared in order to include a Disposition and Development Agreement (DDA) as an additional discretionary action that is proposed for the project. As a result of this addition, the basic conclusions of the Pinal EIR have not changed. Any environmental impacts that may result from approval of the DDA have been addressed as project impacts in the Pinal EIR. Therefore, in accordance with Section 15164 of the CEQA Guidelines, the City has prepared the following Addendum to the Pinal EIR for the Channelside Shopping Center EIR-94-04A. A. PROJECT SETTING The 32.5 acre project site is located in the northwestern portion of the City of Chula Vista, in an area roughly bounded by SR-54, National City Boulevard/Broadway, C Street and 5th Avenue. Existing features on the site consist of graded pads and slopes, as well as two drainage features with wetland and other native habitat. Existing land use designations for the site allow Limited Industrial uses. B. PROJECT DESCRIPTION The proposed Channelside Shopping Center project consists of the development of a regional retail commercial shopping center totaling approximately 219,219 square feet of floor area. Within the 22 acre area proposed for development, specific uses include a 149,289 square foot major anchor. The contemplated user for this space is Walmart Stores, Inc. The City has entered into a conditional agreement with Walmart Stores, Inc., entitled "Disposition and Development Agreement (DDA) Among the Redevelopment Agency of the City of Chula Vista, Wal-Mart Stores, Inc. and Chula Vista Town Centre Associates, L.P.". The Draft EIR did not specifically make reference to a development agreement as a discretionary action to be carried out as a part of the project. This Addendum to the Final EIR for the Channelside Shopping Center has been prepared to add the DDA to the list of discretionary action to be considered in conjunction with the overall development project. Ifspecified conditions occur in the sole and unfettered discretion of the City/Agency, the agreement commits the City/Agency to provide an economic incentive to Wal- Mart Stores, Inc. to redevelop a blighted, previously urbanized parcel within a Redevelopment Project Area. The legal effectiveness of the agreement is conditioned upon the following: 1) Certification of a Final EIR for the proposed development project and satisfaction of all other CEQA requirements pertaining thereto; and 2) Approval of all necessary discretionary land use approvals required to implement the project. The conditional agreement does not require that Wal- Mart construct the redevelopment project, but does provide Wal-Mart an economic incentive if it does proceed with the redevelopment. The agreement expressly reserves for the City/Agency the right to grant or withhold land use entitlements in the City/Agency's sole and unfettered discretion. Such a right includes the right to independently evaluate the environmental impacts of the redevelopment project in accordance with CEQA. A Notice of Exemption pursuant to Section 15061 of the CEQA Guidelines was filed for approval of the DDA. The Notice of Exemption provides evidence of the exempt status of the DDA as defined by CEQA. -2- C. IDENTIFICATION OF POTENTIAL ENVIRONMENTAL EFFECTS Impacts associated with the effectiveness of the DDA, in conjunction with other discretionary actions associated with the project, would not result in any environmental effects that are not otherwise anticipated from implementation of the project itself. This conclusion is reached based on a previous examination of the DDA that resulted in a Notice of Exemption being filed for the action of conditional approval of the DDA. Environmental effects associated with the project itself have been analyzed in the Final Environmental Impact Report, in full compliance with the California Environmental Quality Act. D. CONCLUSION No new significant environmental effects would result from meeting the conditions of effectiveness of the DDA based on the inability of the action to have any such effects. No additional mitigation beyond that specified in the Final EIR is required. Pursuant to Section 15164 of the State CEQA Guidelines and based upon the above discussion, I hereby find that the project revisions to the proposed project will result in only minor technical changes or additions which are necessary to make the Final EIR adequate under CEQA. --...... " ) ./ ~-~-- ENVIRONMENTAL REVIEW COORDINATOR REFERENCES Final EIR 94-04, Channelside Shopping Center General Plan, City of Chula Vista Title 19, Chula Vista Municipal Code City of Chula Vista Environmental Review Procedures -3- AGENCY RESOLUTION 1416 and COUNCIL RESOLUTION 17631 JOINT RESOLUTION OF THE CITY COUNCIL AND THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA FINDING PURSUANT TO HEALTH AND SAFETY CODE SECTIONS 33431 AND 33433, AFTER PUBLIC HEARING, THAT THE RESALE OF THE WAL-MART PARCEL IS EITHER AT FAIR MARKET VALUE OR AT SUCH LESSER PRICE AS IS NECESSARY TO EFFECTUATE THE REDEVELOPMENT PLAN; AND FINDING, PURSUANT TO HEALTH AND SAFETY CODE SECTION 33431, THAT IT IS IN THE BEST INTEREST OF THE PUBLIC, AND THE AGENCY, THAT CERTAIN. REAL ESTATE BE SOLD TO REDEVELOPER WAL-MART PURSUANT TO THE PROPOSED DISPOSITION AND DEVELOPMENT AGREEMENT, AND BE SOLD WITHOUT PUBLIC BID WHEREAS, the Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California (" Agency"), is charged with the elimination of blighting influences in the City; and, WHEREAS, in conjunction with its responsibility to eliminate blight, Agency has formed the Town Center II Project Area which Project Area has several non-contiguous parcels, including a 32.5 acre area between 5th and Broadway adjacent to, and south of, the 54 Freeway, more particularly shown on the map attached hereto as Exhibit A, designated "Project Site" thereon; and, WHEREAS, on or about February 1, 1994, the Agency had become seriously concerned about the blighting influences located in and around the Project Site; and, WHEREAS, on or about February 1, 1994 the Agency had, by the adoption of Resolution No. 1388 (" Agency Omnibus Resolution"), and the City Council, by the adoption of Resolution No. 17381 ("City Omnibus Resolution") authorized staff to negotiate with a group proposing to redevelop the site consisting of both an owner and non-owner (National Avenue Associates and Gatlin Development Company, both of which entities are predecessor entities to Chula Vista Center Associates, the Developer). and at a time when the only other owner of real property therein (Dixie line) is and was a full participant in the Developer's plan for redevelopment, and to return to the Agency with a recommendation that would cause the redevelopment of the -said site and eliminate or retard the blighting influences thereat; and, WHEREAS, staff has developed a plan for the redevelopment of the Project Site which plan involves the sale of the Project Site from its current owners to Chula Vista Center Associates ("Redeveloper); the acquisition from Chula Vista Center Associates by the Agency of one of the parcels consisting of 1 3.4 acres ("Walmart Parcel") contained therein; and the resale of the Walmart Parcel to Walmart Stores, Incorporated ("Walmart"); and the development of the Project Site by the Redeveloper and Walmart as a retail shopping center for redevelopment purposes, which plan shall herein be referred to as the "Staff Sponsored Plan", or alternatively, especiallv in an environmental context, the "Project"; and, WHEREAS, the Agency and City had called a joint public meeting for August 23, 1994 between the City Council and the Agency Members for the purpose of studying the Staff Sponsored plan and for certain other purposes; and, WHEREAS, at said meeting, the Agency and City received substantial and convincing evidence that the acquisition of the Walmart Parcel is for a puhlic use, to wit: for the elimination of blight and the redevelopment of the Town Center II Project Area in which the Project Site and the Walmart Site are located; and, Resolution 141 6 Resolution 17631 Page 2 WHEREAS, Health and Safety Code Section 33431 permits an Agency to lease or sell property without public bidding but only after a duly noticed public hearing; and, WHEREAS, under the provisions of Health and Safety Code Section 33433, before any property of the Agency acquired in whole or in part, directly or indirectly, with tax increment moneys is sold or leased for development pursuant to the redevelopment plan, the sale or lease shall first be approved by the City Council after public hearing, duly called, noticed and held in the manner required by law; and, WHEREAS, the Agency and City has considered all of the evidence submitted at the hearing including the staff report which is incorporated herein by reference, and the report on file in the Office of the Executive Director and the City Clerk prepared and filed pursuant to Health and Safety Code Section 33433; and, WHEREAS, at said meeting, the Agency and City further received evidence that the following environmental compliance has occurred: (1) a draft EIR for the Staff Sponsored Plan has been prepared and published; (2) the draft EIR has been submitted for public review and the review period closed on August 10, 1994 which draft EIR has been received and considered by the Council; (3) a public hearing was conducted in the manner required by City policy on August 10, 1994 before the Planning Commission, who voted at that time to close the public review period; (4) public comments were received on the draft EIR but none raised any new and not previously considered environmental impacts; (5) the Final EIR is in the process of publication at this time; (6) the Final EIR will only identify a single, unmitigable impact--air quality; concludes that all other significant impacts identified therein are mitigable to a level of less than significance by feasible mitigation measures which are proposed for adoption therein; and further concludes that as to the Project's impact on air quality, sufficient evidence justifies, in a legally adequate proposed Statement of Overriding Considerations, that the public benefits that are derived from the Project override the adverse environmental impact of the project on air quality; and, WHEREAS, the approvals herein and in implementing documentation is fully conditioned on the Agency complying, in their sole and unfettered discretion, with CEOA, including certifying that the Final EIR was prepared in compliance with CEOA, properly and correctly making the findings required by CEOA, and properly and correctly making the findings required by a Statement of Overriding Considerations; and, 1994. WHEREAS, the Final ElR will be heard by the Agency and Council on or before October 30, NOW, THEREFORE, THE CITY COUNCil AND REDEVELOPMENT AGENCY OF THE CITY OF CHUlA VISTA DO HEREBY JOINTLY FIND, RESOLVE AND DETERMINE, AS FOllOWS: Site. Section 1. No persons have any remaining owner participation rights to develop the Project Section 2. In order to effectuate the Staff-Sponsored Plan, the acquisition and resale of the Walmart Parcel was necessary and that the public interest and necessity require the proposed Project and the proposed Project is planned and located in a manner that will be most compatible with the greatest public good and the least private injury. Resolution 1416 Resolution 17631 Page 3 Section 3. The hearing required by the Health and Safety Code Section 33431 and 33433 was duly called, noticed and held in the manner required by law, and all conditions precedent required by law to be performed have been duly performed. Section 4. The Section 33433 Report has been prepared, and filed in the Office of the City Clerk and in the Office of the E>\..e~utive Director, and made available for public inspection and copying, all in the manner required by law. Section 5. All protests, if any, to the proposed Project, and the sale of the Walmart Site contemplated therein, were made and received at said public hearing. Section 6. The City Council does hereby find that the consideration to be received for the Walmart Site which is the subject matter of the DDA is not less than fair market value in accordance with covenants and conditions governing the sale or lease; and further, if the sale or lease of the designated parcels should be at less than estimated value, determined at the highest use permitted under the plan, such lesser consideration is necessary to effectuate the purposes of the plan. Section 7. The City Council does hereby approve the sale of the Walmart parcels in the manner set forth in the DDA. Section 8. It is in the best interests of the community, the City and the Agency that the Walmart Site be sold to Walmart Stores, Incorporated without public bid. Section 9. That the Disposition and Development Agreement (known as Document RACO-23-94, a copy of which is on file in the Office of the Secretary to the Redevelopment Agency) between the Agency, Wal-Mart Stores, Inc., and Chula Vista Town Center Associates, L.P., dated August, 1994 (nDDAn) is hereby approved in substantially the form as presented. Section 10. The Chairman of the Agency is hereby authorized and directed to execute said DDA, in the form herewith approved or with minor modifications thereto that do not, in the opinion of the Agency General Counsel and the Executive Director, involve any significant increase in cost or risk to the Agency or the City of Chula Vista, which minor modifications have received the advance written approval of the Executive Director a he Agency eneral Counsel. Approved as to Content by: y: J! CL~ Chris Salomone Community Development Director Bruce M. Boogaard City Attorney and A Agency Resolution No. 1416 and Council Resolution 17631 ADOPTED AND APPROVED BY THE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, this 23rd day of August 1994 by the following vote, to-wit: AYES: Members Nader, Rindone, Moore, Horton NOES: None , . ABSENT: Member Fox ABSTENTIONS: None Tim Nader Chairman ATTEST: (JL~~ Chris Salomone Executive Secretary STATE OF CALIFORNIA) COUNTY OF SAN DIEGO) ss: CITY OF CHULA VISTA) I, Chris Salomone, Executive Secretary to the Redevelopment Agency of the City of Chula Vista, DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of Agency Resolution No. 1416 and Council Resolution No. 17631 and that the same has not been amended or repealed. Dated: AUl!ust 24. 1994 Chris Salomone Executive Secretary h / P?CH/>?c:-..J7 I 1-0 t:=y..H /8/7 A , , REDEVELOPMENT DISPOSITION AND DEVELOPMENT AGREEMENT (W AL-MART PROJEC1) AMONG mE REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA 080594 I C31253-Q13/ 22219.4 "Agency" , W AL-MART STORES, INC. "Redeveloper" , and CHULA VISTA TOWN CENTER ASSOCIATES. L.P. "Seller" August 1994 j-,23 , , This page intentionally left blank. ~ -~tf TABLE OF CONTENTS PAGE I. TERMS OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . '. 3 1.1. Purpose of This Agreement. . . . . . . . . . . . . . . . . . . . . . . " 3 1.2. Redevelopment Plan ................. . . . . . . . . . . '. 3 1.3. The Redevelopment Project Area ....,................ 3 1.4. The Site '.'. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 3 1.5. The Wal-Man Parcel. . . . . . . . . . . . . . . . . . . . . . . . . . . '. 3 1.6. Patties to This Agreement ......................... 4 1.6.1. The Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4 1.6.2. The Redeveloper . . . . . . . . . . . . . . . . . . . . . . . . . .. 4 1.6.3.The Seller. ............................... 4 2. CONDITIONS TO EFFECTIVENESS. . . . . . . . . . . . . . . . . . . . . '. 4 2.1. Contingency of Obligations . . . . . . . . . . . . . . . . . . . . . . . .. 4 2.2. Required Entitlements .. . . . . . . . . . . . . . . . . . . . . . . . . '. 5 2.3. City and Agency Retain Discretionary Approval Rights . . . . . . '. 5 3. PURCHASE AND DISPOSITION OF THE SITE . . . . . . . . . . . . . ., 6 3.1. Acquisition and Sale of Site ........................ 6 3.2. Covenants Agreement; Option Agreement. . . , . . . . . . . . . . .. 6 3.3. Agency Land Write-Down ......................... 7 3.5. No Representations or Warranties by Agency. . . . . . . . . . . . .. 8 4. REDEVELOPMENT OF THE WAL-MART PARCEL. . . . . . . . . . " 8 4.1. Scope of Development . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8 4.2. Cost of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . '. 8 4.3. Antidiscrimination During Construction ................. 8 4.4. Estoppel CertifIcate. . . . . . . . . . . . : . . . . . . . . ; . . . _. . . .. 9 5. USE AND MAINTENANCE RESTRICTIONS . . . . . . . . . . . . . . . .. 9 5.1. Uses....................................... 9 5.2. Obligation to Refrain from Discrimination. . . . . . . . . . . . . . .. 9 5.3. Form of Nondiscrimination and Nonsegregation Clause. . . . . . " 9 5.3.1. In deeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . '. 9 5.3.2. In leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9 5.3.3. In contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.4. Effect and Duration of Covenants . . . . . . . . . . . . . . . . . , . . . 10 5.5. No Implied Covenant to Operate ..................... 10 5.5.1. Failure of Redeveloper to COllStIUct and Open the Store on the Wal-Man Parcel . . . . . . . . . . . . . . . . . . . . . . . 11 5.5.2. Option to Purchase ......................... 12 5.5.3. Sole Remedy .... . . . . . . . . . . . . . . . . . . . . . . . . . 12 5.5.4. Survival of Obligations . . . . . . . . . . . . . . . . . . . . . . . 12 3 -c25 080S94/ C31253-Q13/22219.4 6. DEFAULTS, REMEDIES AND TERMINATION. . . . . . . . . . . . . . . 12 6.lo Legal Actions ........ . . . . . . . . . . . . . . . . . . . . . . . . . 12 6.1.1. Institution of Legal Actions .................... 12 6.1.2. Applicable Law ........................... 13 6.1.3. Rights and Remedies Are Cumulative . . . . . . . . . . . . .. 13 6.2. Special Remedies and Rights of Tennination .............. 13 6.2.1. Remedies Prior to Close of Escrow. . . . . . . . . . . . . . .. 13 6.2.2. Remedies After the Close of Escrow . . . . . . . . . . . . . .. 14 , . 7. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 7.1. Notices, Demands and Communications Between the Parties .... 14 7.2. Inspection of Books and Records ..................... 14 7.3. Real Estate Commissions .......................... 15 7.4. Computation of Time ............................ 15 7.5. Independence of Panies . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 7.6. Text to Control ............ . . . . . . . . . . . . . . . . . . . . 15 7.7. InteIpretation ........,........................ 15 7.8. Nonliability of Officials, Employees and Contractors ......... 15 8. SPECIAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 8.1. Amendment of Redevelopment Plan. . . . . . . . . . . . . . . . . , . . 16 8.2. Entire Agreement, Waivers and Amendments . . . , . . . . . . . . " 16 8.3. Recordation.................................. 16 8.4. Legal Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 8.5. No Third Party Beneficiary. . . . . . . . . . . . . . . . . . . . . . . . . 17 8.6. Assignment................................... 17 8.7. Time for Acceptance of Agreement by Agency. . . . . . . . . . . .. 17 3~:;Jo 0805941 C31253..Q131 22219.4 ii EXHIBIT 1 - EXHIBIT 2 - EXHIBIT 3 EXHIBIT 4 - EXHIBIT 5 - EXHIBIT 6 - EXHIBIT 7 - EXHIBIT 8 - 080594/ C31253-Q13/ 22219.4 TABLE OF EXHIBITS Legal Description of Site Map of Site , , Legal D~scription of the WaI-Man Parcel Purchase Agreement Grant Deed Memorandum of Redevelopment Disposition and Development Agreement and Covenants Agreement Promissory Note Option Agreement J -d-7 '" , . This page intentionally left blank. j-:;f REDEVELOPMENT DISPOSmON AND DEVELOPMENT AGREEMENT (WaI-Mart Project) THIS AGREEMENT is entered into as of the _ day of , 1994, by and among the REDEVELOPMENT AGENCY OF THE CITY OF CHuLA VISTA, a public body Corporate and politic ("Ag~l}cy"), WAL-MART STORES, INC., a Delaware corporation ("Redeveloper"), and CHULA VISTA TOWN CENTER ASSOCIATEs, L.P., a California limited partnership ("SeHer"). RECITALS A. The City Council of the City of Chula Vista ("City") has established the Agency and has approved and adopted a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment project known as the Town Centre II Redevelopment Project ("Project Area") by its adoption of Ordinance No. _ on May 7, 1987, pursuant to the provisions of Sections 33000, et seq., of the California Health & Safety Code ("California Community Redevelopment Law"). B. The Agency is undertaking a program, in the interest of the health, safety, and general welfare of the people of the City pursuant to its authority under the California Community Redevelopment Law for the redevelopment, replanning and redesign of blighted areas within the Project Area which are characterized by stagnant, improperly utilized and unproductive land which requires redevelopment. C. The Agency is desirous of carrying out the Redevelopment Plan for the Project Area by providing for the development of certain real propeny within the Project Area ("Site"). The Site is comprised of approximately 32 gross acres of currently vacant land located within the Project Area and within the City, a ponion of which has !!<:en previously develQped. The Site is currently owned by third panies. The Site is legaHy described for purposes of identification only in the "Legal Description of the Site" attached hereto and incorporated herein by this reference as Exhibit "1". The Site is graphically depicted on the "Map of the Site" attached hereto and incorporated herein by this reference as Exhibit "2". D. In funherance of the Agency's program to provide for the development of the Site the Agency entered into a Semi-Exclusive Negotiating and Covenants Agreement ("Semi- Exclusive") pertaining to the Site by and among the Agency, National Avenue Associates, a California general partnership ("NAA") and Gatlin Development Co., Inc., a California corporation ("Gatlin"). Gatlin and NAA are coHectively referred to as the "Developer" in the Semi-Exclusive and herein. The Semi-Exclusive became effective as of December 7, 1993 and required the Developer to (1) use its good faith effons to acquire the Site; (2) diligently process aH required permits and entitlements necessary to develop the Site with 192,000 square feet of high volume retail uses (hereinafter referred to as the "Project"); (3) upon receipt of the necessary entitlements to develop the Site as the Project; and (4) upon 0805941 CJI25J-{)131 22219.4 o ~ J.-~ obtaining ownership of the Site to impose covenants thereon to use the Site for retail purposes for a minimum of twenty (20) years. E. Subsequent to the date of the Semi-Exclusive Gatlin has caused to be formed Chula Vista Town Center Associates, L.P., A California limited partnership ("Town Center Associates"), the entity referred herein as Seller. F. NAA has entered into purchase agreements ("Third Party Purchase Agreements") with the third party owners of the Site to acquire the Site and has commenced review of the required entitlements in furtherance of the Project and as required by the Semi-Exclusive. NAA has assigned its rights in the Third Party Purchase Agreements to the Seller by Assignments dated . Seller intends to assign its rights and obligations under this Agreement, the Third Party Purchase Agreements and the Purchase Agreement (as defmed in Section 3.1 below) to a partnership (the "Partnership") to be formed by Seller and NAA or an affiliate thereof, of which partnership Seller shall be the general partner. The Partnership shall also enter into an agreement (the "Development Agreement") with Wal- Mart regarding development of the Site, including the Wal-Mart Parcel. G. A portion of the Site is subject to a ground lease ("Site Ground Lease") between the third party owner and a third party lessee ("Lessee"). NAA, a partner of the Seller, is the sublessee in a Sublease ("Site Sublease") between the Lessee and NAA. The Site Sublease provides NAA with the option to buyout the Site Ground Lease ("Lease-Purchase Option"). H. It is the intention of the parties that the Site will be divided into three (3) primary parcels: 1. The Wal-Mart Parcel comprised of approximately 13.5 acres. The Wal-Mart Parcel is described for identification only in the Legal Description of the Wal-Mart Parcel attached hereto and incorporated herein by this reference as Exhibit "3" and is graphically shown on the Map of the Site (Exhibit 2). 2. The Seller's Parcel comprised of approximately 17 acres. The Seller's Parcel is graphically shown on the Map of the Site (Exhibit 2). 3. The Lessor's Parcel comprised of approximately 1.5 acres. The Lessor's Parcel is graphically shown on the Map of the Site (Exhibit 2). I. Seller, Agency and Redeveloper have entered into negotiations regarding construction of the Project consisting of a minimum 120,000 square foot Wal-Mart store and all ancillary improvements relating to the Store including but not limited to required parking and landscaping ("Store") and approximately 70,000 square feet of additional retail ("Seller Improvements"). The Agency has determined that the provision of fmancial assistance to Redeveloper, on the terms and conditions provided herein, will make feasible the development of the Store on the Wal-Mart Parcel by the Redeveloper in accordance with the purposes set forth in the Semi-Exclusive and that such development will stimulate development of the remainder of the Site and is in the best interests of the taxpayers and 3 --30 080594 I C312S3...Q13 I 22219.4 residents of the City and will otherwise promote the public health, safety, and general welfare of City residents and is in accordance with federal, state and local laws and regulations. OPERATIVE PROVISIONS NOW THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by reference,' and covenants ~f the panies contained herein, Agency and Redeveloper and Seller hereby agree as follows: 1. TERMS OF AGREEMENT. 1.1. Pumose of This A!!reement. The purpose of this Agreement is to implement the Redevelopment Plan and comply with the obligations of the Semi-Exclusive by providing for the disposition of the Site and the development of the Wal-Mart Parcel with the Store by the Redeveloper. The parties hereby expressly agree and acknowledge that a substantial portion of the consideration for the Agency' s Participation in this project is the development of the Store. Due to the quality of Wal-Mart as a national retailer and the projected fmancial benefits to the City and Agency deriving from the Operation of a Wal- Mart retail outlet, the R.edeveloper's rights and obligations pursuant to this Agreement shaII not be assignable. The Agency's obligations hereunder are expressly contingent as set fonh in more detail below upon the construction and Operation of a full service, fully inventoried and fully staffed Wal-Mart retail facility. 1.2. Redevelooment Plan. This Agreement is subject to the provisions of the Redevelopment Plan. The Redevelopment Plan, as it now exists and as it may be subsequently amended pursuant to Section 8.1 hereof, is inCOrporated herein and made a part hereof by reference. 1.3. The Redevelooment Proiect Area. The Project Area is iocated in a portion of the City, and the Project Area's boundaries are specifically described in the Redevelopment Plan. 1.4. The Site. The Site consists of certain real property located within the Project Area as shown on the Map of the Site (Exhibit 2), and more panicuIar1y described in the Legal Description of the Site (Exhibit 1). The Site is comprised of ponions of two (2) legal parcels which are currently owned by Metropolitan Shopping Square, Ltd., a California limited partnership, Charles C. Kerch, Nancy W. Kerch, Gayle Jean Stephenson, Trustee for Jill Stephenson, and Gayle Jean Stephenson, Trustee for William Stephenson (collective "Metropolitan") and Dixieline Lumber Company, Inc., a Delaware corporation ("Dixie1ine"), respectively. Metropolitan and Dixie1ine may be cOllectively refetTed to herein as "Owner". 1.5. The Wal-Man Parcel. The Wal-Mart Parcel consists of a ponion of the Site which will be conveyed to Wal-Man pursuant to this Agreement. The Wal-Man 080594 I C31253-QI3/22219.4 3-3/ 3 Parcel is shown on the Map of the Site (Exhibit 2) and is legally described in the Legal Description of the Wal-Mart Parcel (Exhibit 3). lo6. Parties to This A!!reement. 1.6.1. The A!!encv. The Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The offices of the Agency are located at 276 Fourth Avenue, Chula Vista, California 91910. " Agency", as used in this Agreement, includes the Redevelopment Agency, of the City of Chula Vista and any assignee of or successor to its rights, powers and responsibilities. 1.6.2. The Redevelooer. The Redeveloper is Wal-Mart Stores, Inc., a Delaware corporation. The principal office of the Redeveloper for purposes of this Agreement is 702 S.W. 8th Street, Bentonville, Arkansas 72716, Attention: President and Attention: Property Manager. 1.6.3. The Seller. The Seller is Chula Vista town Center Associates, L.P., a California limited partnership, comprised of NM and Town Center Associates. The principal offices of Seller are located at c/o Gatlin Development Co., Inc., 12625 High Bluff Drive, Suite 304, San Diego, CA 92310, Seller, at its sole election, may assign its rights and obligations under this Agreement, the Third Party Purchase Agreements and the Purchase Agreement (as defmed in Section 3.1 below) to the Partnership. 2. CONDITIONS TO EFFECTIVENESS. 2.1. Contin!!encv of Oblilzations. The Agency and the Redeveloper acknowledge and agree that the ultimate development of the Site will be governed by and/or subject to certain governmental approvals ("Entitlements"), including Entitlements'which must be obtained from the City and other public agencies. The parties hereto expressly acknowledge and agree that the Agency cannot grant any such entitlement or cause any other governmental agency, including the City, to grant any such Entitlements. Accordingly, the parties hereto expressly agree that, notwithstanding approval of this Agreement, the obligations of each party hereto shall be contingent upon the receipt of all Entitlements required for the development of the Site in the manner set forth in this Agreement and the obligations of each party hereto shall only arise upon the receipt of all such Entitlements. The Seller and the Redeveloper hereby release the City and the Agency from any liability based upon the Seller's or the Redeveloper's failure to obtain any such Entitlement and expressly agree that in no event shall any exercise of the City's or Agency's discretion to approve, condition or disapprove any Entitlement or other discretionary item which is a condition to the obligations of the parties of this Agreement be deemed to be a default or an act of bad faith by the City or the Agency. J --3 y- 080594/ C312SJ-013/22219.4 4 2.2. Reauired Entitlements. The obligation to initiate and process the required Entitlements shall be Seller's. The obligations of each party hereto shall not arise until Seller or Redeveloper shall have applied for and City or other applicable public entity shall have approved all required entitlements (hereinafter the "Entitlements") required for the construction of the Store and the Improvements. The Entitlements include but may not be limited to the following: A. An amendment of the Chula Vista General Plan changing the land use designation for the Site from "Limited Industrial" (I-L) to "Retail Commercial"; , , B. An amendment of the Chula Vista zoning designation for the Site from I-L to "Central-Commercial_Precise Plan" (C-C-P); C. An amendment of the Chula Vista Local Coastal Program to change the zoning designation for a POrtion of the Site referred to as the "Inland Parcel" F";;'r~, from "ImI""""-GmornI" '" .Co"""""'"__I", ".J ~ .1.-;;"&1..1" , D. Certification of an environmental impact repolt~e;i~Win;~:j~JM the required entitlements and other discretionary actions necessary to authorize construction ~ of the Proposed Project on the Site; E. Approval of a Precise Plan for the construction of the proposed Improvements; and F. Approval of a Parcel/Tract Map for the Site. In the event that all of the Entitlements are not approved within 240 days of the effective date of this Agreement, or in the event that the City, the Agency, the Coastal Commission or any other entity shall deny any of the requested discretionary approvals or disapprove any required Entitlement or other agreement necessary for construction of the Store or the Seller Improvements, this Agreement shall be of no force and effect and none of the parties shall have any further obligations to any of the other parties pursu&1t to' this Agreement. 2.3. City and A!!encv Retain Discretionarv AUDroval Ril!hts. The Parties understand and acknowledge that the City and Agency reserve the right to exercise their discretion as to all matters which they are, by law, entitled or required to exercise their discretion. It is not the intent (nor shall it be deemed) that, by the Agency's execution or City's approval of this Agreement, the City or the Agency are granting approval of the Project contemplated in this Agreement or any of the Entitlements. Further, in no event shall the Agency or the City be under any obligation to approve such development or any of the Entitlements by virtue of having entered into or approved this Agreement, it being understood that such development and each of the Entitlements as to which the Agency or the 080594/ CJI25J-<JIJ/22219,4 3 --,3 3 5 City has any approving authority shall be taken up and considered as matters to be separately deliberated upon at such time in the future as they may be so taken up and considered. 3. PURCHASE AND DISPOSITION OF TIlE SITE. 3.1. Acauisition and Sale of Site. Pursuant to that certain Purchase Agreement and Escrow Instructions dated December IS, 1993, as amended (collectively the "Metropolitan Agreement"), by and between NAA and Metropolitan, and that certain Purchase Agreement and Escrow~Instructions dated December 15, 1993, as amended (collectively the "Dixieline Agreement") by and between NAA and Dixieline, NAA has the right to purchase the Site from the third party Owners. Pursuant to an Assignment dated , 1994, NAA has assigned to the Seller, its rights under the Dixieline Agreement and the Metropolitan Agreement, with respect to the Wal-Man Parcel. The Seller and the Agency have entered or will enter into a Purchase Agreement (the "Purchase Agreement") for the purchase by the Agency of the Wal-Man Parcel in the form of Exhibit "4", attached hereto and incorporated herein by this reference. Subject to the terms, conditions and provisions of this Agreement, and provided that all conditions to the obligations of the panies hereto have been complied with and the Seller has acquired fee simple title to the Site, including exercise of the Lease- Purchase Option, the Agency, on or before June 3D, 1995 shall use its best efforts to acquire fee title to the WaI-Man Parcel from the Seller pursuant to the Purchase Agreement for the purchase price (the "Purchase Price") set forth in the Purchase Agreement; provided, however, that (i) prior to the close of escrow conveying the Wal-Man Parcel, the panies hereto shall have recorded the covenants required by this Agreement, (ii) Agency shall assign to the Redeveloper, at or before the close of escrow, its rights under the Purchase Agreement; (iii) that Agency shall exercise its rights under the Purchase Agreement, prior to such assignment, only as directed or agreed to by the Redeveloper; and (iv) the Wal-Mart Parcel shall be conveyed to the Redeveloper generally in the form provided in the grant deed (the "Grant Deed"), attached hereto as Exhibit "5" and incorporated herein by this reference. The Redeveloper shall pay the Agency for the Deposit (as defmed in the Purchase . Agreement), the Purchase Price, the cost of the surveys, and any other costs and expenses required to be paid by the Buyer (as defmed in the Purchase Agreement) pursuant to the Purchase Agreement. Wherever this Agreement provides for any document or instrument to be delivered through escrow, such docwnent or instrument shall be delivered through the escrow established pursuant to the Purchase Agreement. Notwithstanding provisions of this Section 3.1, the Agency's obligation to acquire fee title to the WaI-Man Parcel shall be subject to the provision of all required funds by WaI-Man. In no event shall the Agency be required to deposit Agency funds into the escrow and Agency shall not be deemed to be in default of this Agreement or the Purchase Agreement if escrow fails to close because Wal- Man has not deposited the required funds into escrow. 3.2. Covenants A!!reement: Ootion A!!reement. At the close of escrow, the Redeveloper and the Agency shall execute, acknowledge and deliver, through escrow: (i) a Memorandum of Redevelopment Disposition and Development Agreement and Covenants Agreement, a copy of which is attached hereto as Exhibit "6" and incorporated herein by 080594 / C312S3-013/22219,4 3 -3f 6 reference ("Covenants Agreement"), and (ii) an "Option Agreement" (as such term is defmed in Section 5.5.2, below), which Covenants Agreement and Option Agreement shall be filed for record in the OffIce of the County Recorder of San Diego County, California, inunediately following the Grant Deed and prior to all other documents affecting the Wal- Man Parcel. 3.3. A!!encv Land Write-Down. Pursuant to the Purchase Agreement the Purchase Price to the Agency for the Wal-Man Parcel is approximately $5,265,097.00, computed at Nine DOllars ($9.00) per square foot and assuming that the Wal-Man Parcel contains 13.43 acres. If the survey taken pursuant to the Purchase Agreement reveals that the actual area is more or less than the approximation shown above, the Purchase Price sha11 be adjusted accordingly. The Redeveloper has represented to the Agency that if the Wal- Man Parcel is acquired at the Agency's Purchase Price, completion of the Store including all required public improvements, is not fInancially feasible. Therefore, in order to facilitate the redevelopment of the Wal-Man Parcel and subject to all of the terms and conditions set forth herein, the Agency agrees to sell the Wal-Man Parcel to the Redeveloper for Three Million three Hundred Fifty Thousand Ninety-Seven Dollars ($3,350,097.00) ("Redeveloper Purchase Price"). The Redeveloper shall pay all funds necessary to close escrow on the Wal-Man Parcel and the Agency shall repay to the Redeveloper One Million Nine Hundred and Fifteen Thousand Dollars ($1,915,00Q.00) ("Redeveloper Loan") in aCCOrdance with the terms and conditions set forth in the Promissory Note attached hereto and incorporated herein by this reference as Exhibit No. "7". Interest shall accrue on the unpaid principal balance of the Redeveloper Loan, as provided in the Promissory Note. The Agency shall make payments to the Redeveloper in periodic installments and the payments shall be applied in the manner described in the Promissory Note. The Promissory Note shall be held in escrow until the Store opens to the public for retail sales and shall be delivered to the Redeveloper within 5 business days after that date. The Agency's payments on the Promissory Note shall be payable from any source of funds legally available to the Agency. ._ . _ _ . _ 3.4. Citv/A!!encv CooDeration A!!reement. The Agency shall use its best efforts to cause City to enter into a cooperation agreement ("City/Agency Cooperation Agreement") with the Agency, which City/Agency Cooperation Agreement shall be acceptable in form and content to the Redeveloper provided that it contains the general provisions set forth in this paragraph. The City/Agency Cooperation Agreement shall provide that in the event the Agency for any reason fails or is unable to make a payment due to the Redeveloper pursuant to the Promissory Note (Exhibit 7) City shall provide Agency with suffIcient funds to make such payment. Any such payment by City shall be contingent upon the performance required of Redeveloper pursuant to the Promissory Note and shall be made from any funds legally available to City. TheCity/Agency Cooperation Agreement shall provide that it shall not be amended, altered, tenninatedor otherwise revised in any manner without the prior written COnsent of the Redeveloper, and that the 080594 I C3125J..()13 I 22219.4 .3..-3S 7 Redeveloper shaH be a third party beneficiary under the City I Agency Cooperation Agreement. Upon any such amendment, alteration, termination, or other revision (coHectively "revision") without the Redeveloper's consent, or upon the breach by the City of its obligations under the City/Agency Cooperation Agreement, the Redeveloper may by written notice to the Agency terminate this Agreement, or exercise any other remedy available at law or equity, and the Redeveloper shaH not have any further obligation to the Agency not yet accrued as of the date of the City's breach or of such revision. If, within sixty (60) days after the Effective Date of this Agreement, the Agency and the City have not entered into such a City/Agency Cooperation Agreement, the Redeveloper may at any time thereafter, by written notice to Agency, terminate this Agreement. 3.5. No ReDresentations or Warranties bv A2encv. The Agency makes no representations or warrarities regarding the condition of the Wal-Mart Parcel~ or its suitability for construction of the Store. The Redeveloper hereby expressly acknowledges that it has satisfied itself from its own due diligence as to the suitability of the Site and in particular, the Wal-Mart Parcel. The Seller and the Redeveloper hereby agree to protect, defend, indemnify and hold harmless the Agency, it agents, representatives and employees from any claims made by Seller, its affiliates, or third parties due to the existence of any hazardous substances on, in or under the Wal-Mart Parcel or emanating therefrom. Notwithstanding the foregoing: (a) all representations and warranties of the Seller contained in the Purchase Agreement shall inure to the benefit of Redeveloper, (b) the Agency hereby assigns to the Redeveloper all of its rights under such representations and warranties of the Seller subject to the right of the Agency to rely upon such representations and warranties in the event of any legal action pertaining to the Wal-Mart Parcel naming Agency as defendant; and (c) the Seller hereby consents to such assignment. 4. REDEVELOPMENT OF THE WAL-MART PARCEL. 4.1. Score of DeveloDment. The Wal-Mart Parcel shall be redeveloped in accordance with a minimum 120,000 square-foot Wal-Mart retail store, sufficient parking spaces to comply with the requirements of the Entitlements and all )annscaping and other public and private improvements as required by the EntitlemeDts.~provided, however, that Wal-Mart shall have no obligation to perform any such construction pursuant to this Agreement. 4.2. Cost of Construction. As between the Agency and the Redeveloper, the cost of any development of the Wal-Mart Parcel and any construction of onsite or offsite improvements necessary to the completion of the Store on the Wal-Mart Parcel shall be borne exclusively by the Redeveloper. 4.3. Antidiscrimination Durin!! Construction. The Redeveloper for itself and its. successors and assigns agrees that in the construction of any improvements on the Wal-Mart Parcel, the Redeveloper will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry, and that the Redeveloper will comply with all applicable local, state and federal fair employment laws and regulations.. . 080S94 / C312S3.Q13 / 22219,4 3 --jt 8 4.4. EstoDDel Certificate. At the request of the Redeveloper, the Agency shall, within ten (IO) days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and subject to the contingencies set forth herein is !! bindin!! obli!!ation of the certifvin!! Dartv and (b) this Agreement has not been amended or modifIed, except as is expressly provided in such estoppel certificate. 5. USE AND MAINTENANCE RESTRICTIONS. 5.1. Uses. The Redeveloper covenants and agrees that during any _. construction and thereafter for a minimum of twenty (20) years after the Effective Date of this Agreement. the Redeveloper and Redeveloper's successors and assigns shall devote the Wal-Mart Parcel only to the retail uses authorized by the Entitlements. 5.2. Obli!!ation to Refrain from Discrimination. The Redeveloper covenants and agrees for itself and its successors and assigns, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Wal-Mart Parcel. 5.3. Form of Nondiscrimination and Nonse!!re!!ation Clause. The Redeveloper shall refrain from restricting the rental, sale or lease of the WaI-Mart Parcel on the basis of race, color, creed, religion, sex, marital status, ancestry or natiOnal origin of any person. To that end, all such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 5.3.1. In deeds: "The grantee herein covenants by and for himself, his or her heirs, executors, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee, or any persons claiming under' or through him or lier, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 5.3.2. In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of 080594/ C312S3-{)13/ 22219,4 j ~37 9 discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, It:ssees, sub lessees, subtenants or vendees in the land herein leased. " 5.3.3. In contracts: "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or pennit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. " effect in perpetuity. The foregoing covenants shall run with the land and shall remain in 5.4. Effect and Duration of Covenants. Except in those instances when a longer period is required by this Agreement, the covenants contained in this Agreement and the Covenants Agreement for the WaI-Mart Parcel shall remain in effect until the expiration date of the Redevelopment Plan or any extension thereof. The covenants against discrimination shall remain in effect in perpetuity. The covenants established in this Agreement and the Covenants Agreement shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency and the City and their respective successors and assigns and any successor in interest to the WaI-Mart Parcel or any part thereof. The Agency and the City are deemed the beneficiaries of the tenus and provisions of this Agreement and of the covenants running with the land for and in their own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement and the covenants running with the land have been provided. This Agreement and the covenants shall run in favor of the Agency without regard to whether the Agency has been, remains or is an owner of any land in the Project Area. The Agency shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies and to maintain <my actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other benefIciaries of this Agreement and covenants may be entitled. Notwithstanding any provision hereof to the contrary, after any conveyance of the WaI-Mart Parcel or any legally subdivided parcel thereof by the Redeveloper, the Redeveloper shall not be liable for the performance of the foregoing covenants. 5.5. No Imnlied Covenant to Ooerate. Subject to the provisions of Section 5.5.1 below, it is expressly agreed by the parties hereto, for their own benefIt and that of their successors-in-interest, that nothing contained in this Agreement shall be construed to contain a covenant, either expressed or implied, to either construct the Store or any other improvements on the WaI-Mart Parcel, to COmmence the operation of a business on the Wal- Man Parcel, or to thereafter continuously operate a business upon the Wal-Mart Parcel. The Agency recognizes and agrees that the Redeveloper may, at the Redeveloper's sole and 0805941 C31253.()131 22219,4 3~3Y 10 absolute discretion and at any time during the tenn of this Agreement, cease the operation of any business on the Site. 5.5.1. Failure of RedeveIoDer to Construct and Ooen the Store on the Wal-Mart Parcel. The panies expressly acknowledge and agree as follows: construct or open the Store. A. The Redeveloper is not contractually obligated to , , B. The Agency, the Redeveloper and the Seller have entered into this Agreement with the current intent that Redeveloper will construct the Store, notwithstanding that the Redeveloper is not contractually obligated to construct or open the Store. c. The Agency's purpose in entering into this Agreement is to facilitate the redevelopment of the Site and in particular to provide for the construction of the Store on the Wal-Man Parcel; it is not to assist in land assembly for purposes of resale or speculation. D. In the event that the Redeveloper fails to construct and open the Store on the Wal-Man Parcel on or before the second anniversary of the effective date of this Agreement, this Agreement shall tenninate at 5:00 p.m. on the second anniversary of the effective date of this Agreement. E. In the event this Agreement tenninates as a result of the Redeveloper's failure to construct and open the store on the Wal-Man Parcel on or before the second anniversary of the effective date of this Agreement, the Redeveloper hereby expressly agrees as follows: (i) The Agency shall have no obligation to the Redeveloper pursuant to the Promissory Note and the original Promissory Note shan be delivered to the Agency by escrow within three (3) business days of tennination of this Agreement. (ii) The Redeveloper shall pay to the Agency $50,000 within ten (10) business days of such tennination as reimbursement for the Agency's out of pocket costs incurred in the negotiation and implementation of this Agreement; in the event the Redeveloper fails to pay the Agency within the time set forth herein, the $50,000 shall accrue interest at 10% (ten percent) and the Agency shall be entitled to reimbursement of all out of pocket costs, including but not limited to legal fees, expended to obtain payment of the $50,000; (iii) The Redeveloper shall not construct any improvements other than the Store on the Wal-Man Parcel until expiration of the Agency's option (as defmed in Section 5.5.2 below) without the express written approval of the Agency in Agency's sole discretion; 080594/ C31253-Q13/22219.4 2<39 11 (iv) The Redeveloper shaIl not seIl or lease the Wal- Mart Parcel (except pursuant to a sale-leaseback transaction) to any third party until expiration of the Agency's option (as defmed in Section 5.5.2 below). Any attempt to sell or lease the Wal-Mart Parcel (except pursuant to a sale-leaseback transaction) during this period shall be void and the Redeveloper shall be fully responsible for any damages incurred by third parties attempting to acquire title to or possession of the Wal-Mart Parcel contrary to the provisions of this Agreement and the Grant Deed. . (v) The act or failure of any third party, including but not limited to the fulfIllment of SeIler's obligations to Redeveloper to provide for preparation of the WaI-Mart Parcel and installation of public improvements evidenced outside of this Agreement, shall not relieve Redeveloper of its obligations to Agency in the event Redeveloper fails to open the completed store on or before on or before the second anniversary of the effective date of this Agreement. 5.5.2. Ootion to Purchase. Provided the Redeveloper purchases the Wal-Mart Parcel as provided herein, the Agency may purchase the Wal-Mart Parcel from Redeveloper at the price and upon the terms described in the Option Agreement ("Option Agreement") attached hereto in the fonn of Exhibit "8" in the event that (I) this Agreement terminates as a result of the Redeveloper's failure to construct and open the Store on the Wal-Mart Parcel on or before the second anniversary of the effective date of this Agreement, or (2) at any time before the Redeveloper opens the Store on the Wal-mart Parcel, the . Redeveloper gives written notice to the Agency that it does not intend to open the Store on the Wal-Mart Parcel on or before the second anniversary of the effective date of this Agreement. 5.5.3. Sole Remedy. The Agency and the Redeveloper acknowledge and agree that exercise of the Option by the Agency (together with the payment to the Agency required by Section 5.5.1 above) is the Agency's sole and exclusive remedy in the event this Agreement terminates as a result of the Redeveloper's failure to construct and open the Store on the Wal-Mart Parcel on or before the second anniversary of the effective date of this Agreement. '_ 5.5.4. Survival of Obli!!ations. The rights and obligations of the Agency and the Redeveloper pursuant to this Section 5.5 shall survive the termination of this Agreement by the Agency pursuant to Section 5.5.1 above. 6. DEFAULTS. REMEDIES AND TERMINATION. 6.1. Lel!al Actions. 6.1.1. Institution of Lel!al Actions. All legal or equitable actions brought under or with respect to this Agreement must be instituted, at the election of the Redeveloper, in the Superior Court of the County of San Diego, State of California, in any other appropriate court in that County, or in the Federal District Court in the Southern District of California. The prevailing party in any such legal action may recover its actual 080594 I CJl253-013 / 22219.4 3 ~ t/D 12 attorney's fees, expen witness fees, costs of taking depositions and discovery, and all other costs reasonably incurred in such litigation. 6.1.2. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 6.1.3. Ri!!hts and Remedies Are Cumulative. Except as otherwise expressly provided for in this A~~eement, the rights and remedies of the parties shall be limited to the remedies ~ct forth in this Section 6. Except as otherwise expressly provided for in this Agreement, neither the Agency nor the Redeveloper shall have the right to tenninate this Agreement. 6.2. Special Remedies and Ri!!hts of Tennination. The following are special optional remedies and rights of tennination of the parties. 6.2.1. Remedies Prior to Close of Escrow. A. The Redeveloper or the Agency may tenninate this Agreement if the Seller fails to take all steps necessary to convey fee simple title to the Wal- Man Parcel to the Agency or the Redeveloper subject only to those encumbrances set forth in this Agreement and such additional encumbrances as may be approved in writing by the Redeveloper. The Redeveloper and the Agency may pursue a claim for equitable relief (including without limitation specific perfonnance) only against the Seller if the Seller fails to perfonn any tenn or provision of this Agreement in the manner required by this Agreement. B. The Agency at its option may tenninate this Agreement if the Redeveloper does not advance all funds and deposits req~~ by this ~greel1lent on or before the date set for Closing (as the same may be extended) and such breach is not cured within fifteen (15) days after the date of written demand therefor by the Agency. In the event of such tennination pursuant to this Section, neither the Agency nor the Redeveloper shall have any further rights against or liability to the other under this Agreement, and the Agency shall have no obligation to make payments under the Note. C. If any condition of the close of escrow or the perfonnance under this Agreement for the benefit of either the Agency or the Redeveloper, fails to occur (except where such failure results from the willful act or omission of the party benefitted by such condition), then the party for whose benefit such condition exists may tenninate this Agreement. In the event of any tennination pursuant to this Section, neither the Agency nor the Redeveloper shall have any further rights against or liability to the other, under this Agreement or under the Note. 0805941 CJl2S3-013/ 22219.4 J.-'-+I 1~ 6.2.2. Remedies After the Close of Escrow. A. The Redeveloper at its option may pursue the remedy of specific performance against the Agency, pursue a claim for damages against the Agency or terminate this Agreement or pursue any other remedy at law or equity if the Agency defaults and fails to perform any term or provision of this Agreement in the manner required by this Agreement, and within the time established therefor in this Agreement, and any such failure is not cured with fifteen (I5) days after written demand by the Redeveloper. B. ~ . A!though the failure of the Redeveloper to construct and open the store on or before the second anniversary of this Agreement shall not be deemed a default of this Agreement, the Agency shaIl be entitled to the rights and payments set forth in Section 5.5.1 and 5.5.2 above. Failure of the Redeveloper to comply with the requirements of Section 5.5.1 and 5.5.2 above, shall constitute a default of this Agreement and the Agency shaIl be entitled to pursue the remedy of specific performance against the Redeveloper, pursue a claim for damages or any other remedy at law or in equity if such default is not cured within fifteen (I5) days after written demand by the Agency, or, if such default cannot reasonably be cured within 15 days after written demand, then the Agency shall be entitled to pursue a claim for damages or any other remedy at law or in equity if the Redeveloper fails to commence cure within 15 days after written demand by the Agency and thereafter to diligently prosecute such cure to completion. 7. GENERAL PROVISIONS. 7.1. Notices. Demands and Communications Between the Parties. Formal notices, demands and communications among the Agency, the SeIler and the Redeveloper shaIl be sufficiently given if personally delivered by hand and a receipt therefor is obtained or is refused to be given or if dispatched by registered or certified mail, postage prepaid, return receipt requested, or by way of a nationaIly recognized overnight mail delivery service (such as United Parcel Service or Federal Express), to the principal offices of the Agency, the SeIler and the Redeveloper as set forth in Section 1.6 above. Such written notices, demands and communications may be sent in the same manneI' to such other addresses as either party may from time to time designate by mail. Such notices, demands and communications shall be deemed given on receipt or rejection. 7.2. Insnection of Books and Records. Until the earlier of (a) payment in full to the Redeveloper of the payments which the Agency is obligated to pay to the Redeveloper under the Promissory Note or (b) termination of the Agency's obligation to pay any remaining payments to the Redeveloper under the Promissory Note, in the event of a dispute between the Agency and the Redeveloper regarding the amount of any payment due under the Promissory Note, the Redeveloper shaIl have the right at all reasonable times to inspect and copy the books and records of the Agency with respect to the Sales Tax Revenue as is reasonably necessary for the Redeveloper to enforce its rights under this Agreement. In the event of such dispute and in order to assist Agency in the calculation and verification of amounts due to Redeveloper, Agency shaIl have the right at all reasonable times to inspect and copy the records of the Redeveloper relative to the Sales Tax Revenue generated by the 080594 , C31lSJ-013 I 22219.4 3.-,-/Y 14 Store, including but not limited to records of gross sales and documentation provided by Redeveloper to the Franchise Tax Board. The right of Redeveloper and Agency to inspect each other's records is limited to those inspections necessary to resolve a dispute. 7.3. Real Estate Commissions. The Agency and the Redeveloper each represent to the other that it has engaged no broker, agent, or fmder in connection with this transaction. The Agency and the Redeveloper shall each indemnify the other for any claims for real estate commissions, brokers' fees or fmders' fees which are alleged to be due as a result of the acts of the indemnifying party. 7.4. ComDutation of Time. Unless otherwise required by a specific provision of this Agreement, time hereunder is to be computed by excluding the first day and including the last day. 7.5. IndeDendence of Parties. The tenus and provisions of this Agreement shall not cause the parties hereto to be construed in any manner whatsoever as partners, joint ventures or agents of each other in the perfonnance of their respective duties and obligations under this Agreement, or subject either party to this Agreement to any obligation, loans, charge or expense of the other party unless the party to be held responsible has independently contracted with the claimant so as to make it directly responsible for the perfonnance and/or payment, as appropriate, of the pertinent obligation, loss, charge or expense. 7.6. Text to Control. The table of contents and headings in this Agreement are included solely for convenience, and if there shall be any conflict between such table or headings and the text of this Agreement, the text shall control. 7.7. Intemretation. Should any provision of this Agreement require interpretation, it is agreed that the person or persons interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party thereto who itself or through its agent or counsel prepared the same or caused the same to be prepared; it being agreed that the agents and counsel of all parties hereto have participated equally in the negotiation and preparation of this Agreement. The language in all parts of this Agreement shaII be in all cases construed simply, fairly, equitably and reasonably, according to its plain meaning and not strictly for or against any of the parties thereto. 7.8. Nonliabilitv of Officials, EnlDlovees and Contractors. No member, official, employee, agent or contractor of the Agency shall be personally liable to the Redeveloper in the event of any default or breach by the Agency or for any amount which may become due to the Redeveloper or on any obligations under the terms of this Agreement, and no officer, employee, agent or contractor of the Redeveloper shall be personally liable to the Agency in the event of any default or breach by the Redeveloper or for any amount which may become due to the Agency or on any obligations under the terms of this Agreement. 080594 I C31253~13 I 22219.4 3 ~ LfJ 8. SPECIAL PROVISIONS. 8.1. Amendment of RedeveloDment Plan. The Agency agrees that no additional amendment which changes the uses or development permitted on the Wal-Mart Parcel or changes the restrictions or controls that apply to the Wal-Mart Parcel or otherwise affects the Wal-Mart Parcel in a manner which would preclude or inhibit the development or continued operation of the Store shall be made or become effective without the prior written consent of the Redeveloper. Amendments to the Redevelopment Plan applying to other property in the Project Area or modifying general provisions of the Redevelopment Plan such as but not limited to the duration of the Plan or the tax increment limits, shall not require the consent of the Redeveloper. 8.2. Entire A!!reement. Waivers and Amendments. This Agreement is executed in 3 duplicate originals, each of which is deemed to be an original. This Agreement, the Grant Deed, the Purchase Agreement and the Note when taken together integrate all of the tenns and conditions mentioned herein or incidental hereto, and supersede all negotiations or previous agreements, including the Semi-Exclusive between the parties and their related entities, including Gatlin and NAA, with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement shall be in writing and signed by the appropriate authorities of the Agency and the Redeveloper, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Redeveloper. The Executive Director of the Agency is authorized to approve and execute amendments to this Agreement which are not of a material nature, including, but not limited to, the granting of extensions of time to the Redeveloper not exceeding a cumulative total of 180 days. 8.3. Recordation. Although this Agreement shall not be recorded, the Agency and the Redeveloper shall make, execute and record at the close of escrow., in the land records in the Office of the County Recorder for San Diego County, the Covenants Agreement. 8.4. Le!!al Challen!!e. In the event that any coUrt action or other legal proceeding is brought by any person not a party to this Agreement to challenge this Agreement, the granting of any Entitlement or the fulfillment of any condition to the obligations of the parties hereto, and without regard to whether or not the Redeveloper or the Seller is a party to said action or proceeding, the Redeveloper shall have the right to tenninate this Agreement upon thirty (30) days notice in writing to the other parties given at any time during the pendency of such action or proceeding prior to the conveyance of the Wal-Mart Parcel to the Redeveloper. If this Agreement is not tenninated, the Redeveloper and the Seller jointly and severally, shall indemnify the Agency and the City for all expenses including attorneys' fees, to defend the City or the Agency from any claim, action or proceeding 080594 I C31253.{)131 22219.4 .3~VC;- 16 against the City, the Agency or their agents officers, or employees to attack, set aside, void or annul the approval of this Agreement or the approval of any Entitlement or condition to the obligations of the parties hereto. The City and the Agency shaIl promptly notify the Redeveloper and the SeIler of any such claim, action or proceeding. For purposes of this Section 8.4, the Redeveloper and the Seller acknowledge that the term "attorney's fees" includes the cost incurred by the City or Agency in the defense of any claim, action or proceeding by the City Attorney or his staff. , , 8.5. No Third Partv Beneficiary. The terms and provisions herein contained shaIl be only for the benefit of the parties hereto and such terms and provisions shall not inure to the benefIt of any other party whosoever, it being the intention of the parties hereto that no one shall be deemed to be a third party beneficiary of this Agreement. 8.6. Assi!!nment. The parties hereto expressly agree and acknowledge that, except as expressly set forth herein, this Agreement and the more specificaIly the rights conferred to Wal-Mart by this Agreement are not assignable. 8.7. Time for AcceDtance of Al!reement bv A!!ency. This Agreement, when executed by the Redeveloper and the Seller and delivered to the Agency, must be authorized, executed and delivered by the Agency no later than , 1994 or this Agreement shall be voidable at the election of the Redeveloper and/or the SeIler. The effective date of this Agreement shaIl be the date when this Agreement has been signed by the Agency. AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF CHVLA VISTA Dated: _, 1994 By: Its: AITEST: Secretary APPROVED AS TO FORM AND SUBSTANCE: General Counsel to the Redevelopment Agency of the City of Chula Vista By: 080594 I C312S3-(J13 I 22219,4 3~lf-S Special Counsel to the Redevelopment Agency of the City of Chula Vista By: , . (ADDITIONAL SIGNATURES FOLLOW) 080594 I C312S3~131 22219.4 j ~ Lj-fo 18 Dated: ,1994 Dated: ,1994 Dated: ,1994 080594 I C31253-{)I3 I 22219.4 REDEVELOPER: WAL-MART STORES, INC., a Delaware corporation , , By: Its: SELLER: , a California limited parmership CHVLA VISTA TOWN CENTER ASSOCIATES, L.P., a California limited parmership By: Its General Parmer By: Its General Parmer ~~17 EXHmIT "1" Le!!al Description of the Site All that real property located in the City of Chula Vista, County of San Diego, State of California, described as follows: , , [To Follow] (EXHmIT "I ") J~ 1f (Page 1 of 1) +619-571-3241 ~ EI-G SD 657 P05 RUG 05 . 94 14: 20 EXHIBIT 1 LEGAL IJFSCRIPTlON (PARCEL 'A') THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: ALL OF 10 ACRE LOT 8 AND THOSE PORTIONS OF 10 ACRES LOTS 5, 6 AND 7 IN QUARTER SECTION 151 OF RANCHO DE LA NACION , IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP BY MORRILL NO. 166, FILED .IN' THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, LYING SOUTHERLY OF A LINE DESCRIBED AS FOLLOWS: BEGINNING AT THE: INTERSECTION OF THE WESTERLY LINE OF THE SOUTHEAST QUARTER OF SAID QUARTER SECTION 151 TO A POINT DISTANT SOUTH 18004' EAST 75.00 FEET FROM THE NORTHWEST CORNER OF SAID SOUTHEAST QUARTER; THENCE SOUTHWESTERLY IN A STRAIGHT LINE TO THE INTERSECTION WITH THE WESTERLY LINE OF SAID QUARTER SECTION 151 DISTANT THEREON NORTH 17044'07" WEST 407.50 FEET FROM THE SOUTHWESTERLY CORNER OF SAID QUARTER SECTION. EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS: lOTS 1 THROUGH 10 OF HODGE BROS. INDUSTRIAL PARK, IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 8755, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 27, 1977. TOGETHER WITH THAT PORTION OF THE WEST HALF OF NORTH FIFTH AVENUE ADJOINING SAID 10 ACRE LOTS 5 AND 6 ON THE EAST AS VACATED AND CLOSED TO PUBLIC USE BY RESOLUTION NO. 16426, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 30, 1992 AS FILE NO. 1992-0842769 OF OFFICIAL RECORDS. LEGAL DESCRIPTION (PARCEL 'B') THE lAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: All OF 10 ACRE lOT 4 AND THOSE PORTIONS OF 10 ACRE lOTS 5, 6, AND 7 IN QUARTER SECTION 151 OF RANCHO DE lA NACION, IN THE CITY OF CHULA VISTA, COUNTY .9F DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP BY MORRILL NO. 16p, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, LYING NORTHERLY OF A LINE DESCRIBED AS FOLLOWS: 3r-lfCf +619-571-3241 NASLJ:1ND ENG SD 657 P06 AUG 05 '94 14:21 BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF THE SOUTHEAST QUARTER OF SAID QUARTER SECTION 151, BEING A POINT DISTANT SOUTH 18004' EAST, 75.00 FEET FROM THE NORTHWEST CORNER OF SAID SOUTHEAST QUARTER; THENCE SOUTHWESTERLY IN A STRAIGHT LINE TO THE INTERSECTION WITH THE WESTERLY LINE OF SAID QUARTER SECTION 151 DISTANT THEREON NORTH 17044'07" WEST, 407.50 FEET FROM THE SOUTHWESTERLY CORNER OF SAID QUARTER SECTION. , . EXCEPTING THAT PORTION OF 10 ACRE LOT 4, IN QUARTER SECTION 151 OF RANCHO DE LA NACION, IN THE CITY OF CHULA VISTA, IN THE COUNTY OF SAN DIEGO, 5T ATE OF CALIFORNIA, ACCORDING TO MAP BY MORRILL NO. 166, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 4; THENCE EASTERLY ALONG THE SOUTHERLY LINE THEREOF 40 FEET TO THE EASTERLY LINE OF NATIONAL AVENUE (100 FEET WIDE); THENCE CONTINUING EASTERLY ALONG SAID SOUTHERLY LINE 260 FEET; THENCE NORTHERLY PARALLEL WITH THE WESTERL Y LINE OF SAID LOT TO THE NORTHERLY LINE OF SAID LOT; THENCE WESTERLY ALONG SAID NORTHERLY LINE 300 FEET TO SAID WESTERLY LINE: THENCE SOUTHERLY ALONG SAID WESTERLY LINE TO THE POINT OF BEGINNING. ALSO EXCEPTING ;rt-jEREFROM THE WESTERLY 40.00 FEET OF FIFTH AVENUE (FORMERLY FIRST tA VENUE) AS DESCRIBED 1t'J RESOLUTION NO. 2550, FILED JANUARY 27, 1963 ~S FILE NO. 15926 OF OFFICIAL RECORDS. ALSO EXCEPTING MEREFROM ALL THAT PORTION AS DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, FILED JANUARY 14, 1972 AS FILE NO. 10301 OF OFFICIAL RECORDS AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS" BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 4; THENCE ALONG THE EASTERLY LINE OF SAID LOT 4, SOUTH 17040'16" EAST, 329.20 FEET; THENCE LEAVING SAID EASTERLY LINE, SOUTH 72028'44" WEST, 462.2:2 FEET; THENCE SOUTH 71005'28" WEST, 300.06 FEET; THENCE SOUTH 68015'46" WEST, 524.01 FEET TO THE NORTH WESTERLY, CORNER OF lOT 5 IN QUARTER SECTION 151 OF SAN DIEGO LAND AND TOWN COMPANY'S MAP OF CHULA VISTA, MAP NO. 505, FILED MARCH 13, 1888 IN SAN DIEGO COUNTY RECORDER'S OFFICE; THENCE ALONG THE NORTHERLY PROLONGATION OF THE WESTERLY LINE OF LAST SAID LOT 5, NORTH 17044'48" WEST, 40.00 FEET TO THE SOUTHERLY LINE OF LOT 4 ACCORDING TO SAID MAP NO. 166; THENCE ALONG SAID SOUTHERLY LINE, NORTH 72013'14" EAST, 260.01 FEET TO THE SOUTHEASTERL Y CORNER OF THAT LAND DESCRIBED IN DEED TO THE STATE OF CALIFORNIA RECORDED SEPTEMBER 11, 1970 AS FILE NO. 164245 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY; THENCE ALONG THE EASTERLY LINE OF SAID STA TE LAND, NORTH 17044'48" WEST, 329.39 FEET TO THE NORTHERLY LINE OF SAID LOT 4; THENCE ALONG SAID NORTHERLY LINE, NORTH 72013'52" EAST, 1025.38 FEET TO THE POINT OF BEGINNING. .3 --SD (EXHIBIT "2") EXHmIT "2" MaD of Site [To Follow] , . .3 ...S! (Page 1 of 1) o , I: ~ &; d ~~ ..~ ~ii1 ~ ~ FlW>>DNAY EXHIBIT 2 -------------------- , . ~ co !; ... .. ---------- IIOR1H RFIH A'<BIUE ~ o ~ >- ~ .. h I I , : ~ , t 3,.5Y .. . i ~ ~ -: ~ ROAD I c SIt~~r~ I ~~ I .. !;I I ""<It 0 c z ~i 0 I 0" S 8 !I: !lJ~ i " eE 0 I ~'" ! I " . " ~ 0 i 0 . " " f Ie , , .. 0 F~ _I . . "'- I ~-... 0 ':' IS: C, 0 ~W?~ . _...~ . . ,.... I I Oy> 0 0 ~I . ~"i . 0 . ' CJ 0 "G o. , 011 0 CARDEN " tEN"" g 0 '\, ~ : , ~ H 0 L...D " " B 0 " 1'811. ~ !!' I'IPIII '.. 1111111 tli'h- ~ . !;~ I~ c I I I , ! i ~ . III ~~ IOff . II I 3-.53 '" PC:P1 t>6. g;j 9fI\:j 01d lB3 as EIN3 CINtfl5tjN 1PGS;:-1lS-619+ EXHmIT "3" Le!!al Description of the Wal-Mart Parcel All that real property located in the City of Chula Vista, County of San Diego, State of California, described as follows: [To Follow} (EXHIBIT "3 ") 3~5f (Page 1 of 1) +619-571-3241 ~ ENG SD 657 P02 RUG 05 '94 14: 18 EXHIBIT 3 LOT 1 (WAL -MART) DESCRIPTION: LOT 1 Of PARCEL MAP NO, . IN THE CITY Of a-IUlA VISTA. COUNTY Of SAN DIEGO, STATE Of CAUfORNIA, fiLED IN THE OffiCE OF THE COUNTY RECORDER Of SAN DIEGO COUNTY ~1Q , .. r 3 ~55 .~ ~ ~ , . . I ' I I I - - 3nN3hV H1:II::II-W:ION -- 18 ~! ~ c) ~ 1 ~ !I.. ~ 1 I " ., 1-. <!:I ~ .... h C) I- -..j Ob ~ 1\1 ..J~ h It: ,II ~ C) -I ~~ 3'" \ 3 ~S0 (EXHIBIT "4") EXHmIT "4" Purchase A!!reement , . 3~57 (Page I of 1) , . This page intentionally left blank. j~SJ' Exhibit 4 CHULA VISTA. CALIFORNIA PURCHASB AGRBEMENT This Agreement is dated as of the ___ day of , 1994, between CHULA VISTA TOWN CENTER ASSOCIATES, L.P. a California limited partnership, (.Seller"). and the REDEVELOPMENT AGENCY OP THE CITY OF CHULA VISTA, a public body, corporate and public, or nominee ("Buyer"): WIT N B S S B T Ht 1. '!oo Sale and Purchase. Seller shall sell and Buyer shall purchase, subject to the terms and conditions herein. an approximately 13.43 acre tract of land (the "Property"), more particularly described in Exhibit A attached hereto and made a part hereof located in or near the City of Chula Vista, San Diego County, California. Seller warrants that it owns, or controls with a contract to purchase, the Property. 2. Purchase Price. The purchase price, subject to the provisions of Paragraph 4 contained herein, for the Property shall be Five Million Two Hundred Sixty Five Thousand Ninety Seven Dollars ($5,265,097) computed at Nine and 0/100 Dollars ($9.00) per square foot (the "Purchase~") payable as follows: (a) Five Thousand Dollar~ ($5,000.00) paid yithin 30 days of the execution by Buyer of this Agreement to the escrow holder designated below to be held in an interest bearing escrow account (the "Deposit") with interest accruing to Buyer. This Deposit shall be nonrefundable, except in the event of Seller default or as otherwise provided herein, but applicable to the Purchase Price and shall be released to Seller as Liquidated Damages pursuant to Article 10.A. should Buyer fail to complete the purchase of the Property in breach of this Agreement; and (b) The balance of Five Million Two Hundred Sixty Thousand Ninety Seven Dollars ($5,260,097) paid on the date of the closing of this sale (the "Closing") by certified check or federal wire transfer. 3. ~. Buyer and Seller shall deliver signed instructions to First American Title Insurance Company (the ItEscrow") as escrow holder, within twenty (20) calendar days of both parties' execution of this Agreement which shall provide ~or closing as provided herein. Escrow fees ~ll be subject to the rev~,_~?-d .~~_ro~a:.__c:f_ ~~~~r and Sell~!:,__~4;l_~~~r1 ~.~~~3:.~~_~~::7~_~~~er provide~ herein. The "Close of Escrow" or the .Closing" IIhalI be the date Seller's grant deed is recorded. Concurrently with Seller's execution of the escrow instructions, Seller shall execute'. grant deed to convey title of the Property to Buyer, and Esorow shall hold said deed until the Close of Escrow. For all purposes, the date of the "openi~g of escrow" shall be the date of this Agreement. In the event of any inconsistency between the escrow instructions and O:\CiI9fNnI\Pwchue,^,m 3 --6; 1 this Agreement, this Agreement shall control. notwithstanding the fact that either party may have intentionally or inadvertently ~xecuted such inconsistent instructions. 4. Survev. Buyer, within twentx: (251) ..0~ from the ~ffective date of this Agreement, shall order a certified.ALTA boundary line and topographic survey of the Property. Buyer shall pay for both surveys and Seller agrees to reimburse Buyer at the Closing for the cost of the certified ALTA boundary line survey. Said surveys shall (i) be prepared by a registered land surveyor pursuant to the instructions attached hereto as Exhibit B, and (ii) contain an accurate legal descriptio.q.. If the survey reveals that the actual area is more or less than the approximation shown above, the Purchase Price to be paid hereunder shall be adjusted accordingly. 5. Title Insurance. Buyer~ ~thin ten (10) days oQ the date on which it receives a satisfactory survey As provided in Section 4 hereof, shall order , a standard form ALTA Owner's Title Commitment Policy (the MCommitmentM) covering the Property and issued by First American Title Insurance Company ("Title Company"), together with copies of all instruments, if any, referred to in the Commitment as exceptions to title. The Commitment shall also contain the Title Company's commitment to issue such California Land Title Association endorsements ("CLTA Endorsements") to the title policy as Buyer or its lender shall require. 1Hthin-Enri-ty (3 01'\ days of receipt of the Commitment, together with copies of all documents constituting exceptions to title and survey, Buyer shall give notice in writing to Seller of any defects in or objections to the title as so evidenced. Seller shall, within forty-f1ve (45) days of receipt of said notice, or such time as may be extended by Buyer, exert its best efforts to clear the title of the defects and objections so specified. Failure to exert such effort to clear the title of defects and objections within the forty-five (45) days, or such time as may be extended by Buyer, shall constitute a default on the part of the Seller and be subject to the provisions of Paragraph 10 contained herein. . - Seller, however, shall not be required to expend more than Twenty Thousand and 00/100 Dollars ($20,000.00) to clear the title of any defect, except that all monetary liens, mortgages and assessments mUst be satisfied or paid on or before the Closing. 6. Title and Deed: Additional Documents. At the Closing, Seller shall convey to Buyer marketable title to the Property, free and clear of any and all encumbrances, which are unacceptable to Buyer or which provide for a forfeiture of the title to the Property or which prohibit or restrict the erection of the necessary structures or facilities for, or the operation of . Wal-Mart Store on the Property, it being acknowledged and agreed t~t ~er intends to assign its rights hereunder to Wal-Mart Stores, Inc., a Delaware corporation (WWal-Mart"). Those exceptions which are acceptable to Buyer shall be referred to as "Permitted Exceptions". At the Closing, Buyer shall also be able to obtain a standard form ALTA Owner's Title Insurance Policy (the ~PolicyM) issued by the Title Company; O:\GI90'07I\Pwd11oe....... .J .-- ~lJ 2 insuring marketable title to Buyer in the full amount of the Purchase Price and containing no exceptions or conditions other than the Permitted Exceptions, and containing the CLTA Endorsements which Buyer or its lender shall ~equire. Seller shall pay the cost of a CLTA policy and the CLTA Endorsements, and Buyer shall pay the difference between the cost of a CLTA Policy and an ALTA Policy. At the Closing, Seller shall also enter into with Buyer a (a) Development Agreement and (b) a Declaration of Covenants, Conditions, Restrictions and Reciprocal Easements, each in Wal-Mart's standard form, except as may be acceptable to Buyer in Buyer's ..sole discretion. 7. Conderrmation. If, prior to the Closing, all or any part of the Property shall be condemned by governmental or other lawful authority, Buyer shall have the option of (a) completing the purchase, in which event all condemnation proceeds or claims thereof shall be assigned to Buyer, or (b) cancelling this Agreement, in which event the Deposit shall be returned to Buyer and this Agreement shall be terminated with neither party having any rights against the other. 8. Taxes and Assessments. Real property taxes, water rates and sewer charges and rents, if any. shall be prorated and adjusted on the basis of thirty (30) days to each month, Seller to have the last day, to the date of Closing. Taxes for all prior years shall be paid by Seller. If the Closing shall occur before the tax rate is fixed for the then-current year, the apportionment of taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation, with the proration to be adjusted between the parties based on actual taxes for the year in which Closing occurs at the time such actual taxes are determined. Assessments and bonds, either general or special, for improvements completed prior to the date of Closing, or other governmental charges, whether matured or unmatured, shall be paid in full by Seller. Furthermore, the Seller shall cause to be completed the Real Property Tax Guidelines attached hereto as Exhibit C and upon completion will forward to Buyer. Seller hereby agrees to pay, reimburse, indemnify, defend and hold Buyer harmless from any supplemental assessments, or taxes or assessments, and any late charges or penalties Associated therewith, levied by the taxing authorities after the close of Escrow attributable to facts or circumstances arising before the close of Escrow, or otherwise excepted from coverage under the Title Policy. 9. Transfer and Salea Taxes. The expense and cost of .11 federal, state and local documentary or revenue stamps, transfer, sales and other taxes, if any, relating to the sale of the Property shall be paid by Seller on the date of Closing. Both parties agree to execute any tax returns required to ~ filed in connection with any such taxes. 10. Time of the Rssence/Defaults/Rp-medies. Time is of the essence of this Agreement and failure to comply with this provision shall be a material breach of this Agreement. If the Escrow fails to close as provided herein, Buyer or Seller may at any time thereafter give -written notice to the escrow holder to O,\GI'KN:11IIJi'1&oo:t1Me.Apn 0~&/ 3 cancel the Escrow, and payor return the Deposit to the party entitled thereto under the terms hereof, and return all other money and documents in Escrow to their respective depositors. The escrow holder shall comply with such notice without further consent from any other party to the Escrow or from any broker involved in the transaction. Cancellation of Escrow as provided herein shall be without prejudice to whatever legal rights Buyer and Seller may have against each other. A. Default bv Buver. IF BUYER FAILS TO COMPLETB SAID PURCHASE AS HERBIN PRonDKD BY REASON OP ANY DEFAULT BY BtJ'Y1!:R, SELLER SHALL BE RELEASED FROM , . OBLIGATION TO SELL THE PROPBRTY TO Bt7YER, BUT SELLER, BY INITIALLING THIS PARAGRAPH, SHALL HAVE RBLEASED St7YER FROM ANY CLAIMS OR CAUSBS OP ACTION ARISING OtI'T OF SUCH DBFAULT. AND SBLLER. SHALL RAVI: AQJlB:ED THAT SELLER SHALL UTAXN THE -DBPOSXT- AS LXQUXDATED DAMAGES. AND THAT SUCH RETBNTXON SHALL BB SBLLBR'S SOLE RDmDY AGAXNST BUYER XN REGARD TO SUCH DEFAULT. THE PARTIES HERETO HAVE CONSXDBRBD THE AMOUNT OF DAMAGES WHXCH SBLLER XS LIXBLY TO XNCUR IN THE EVENT 01" A DEFAULT OR BREACH HERBtJNDER BY BUYER, AND THE PARTIES HERETO HAVE AGREED THAT THE DEPOSIT IS A REASONABLE APPROXr.KATXON AND LIQUIDATION OF SELLER'S POTENTIAL DAMAGES, CONSIDERING ALL OF THE CIRCUMSTANCES BXISTXNG ON THE DATB OF THIS AGRBEMENT, INCLUCXNG THE RELATIONSHXP OF 'l"HJ: SUM TO THB RANGE OF HARM TO SBLLER THAT RBASONABLY COULD BB ANTICIPATED AND THE ANTICIPATION THAT PRoop OF ACTUAL DAMAGBS WOULD BB COSTLY OR INCONVENIENT. THE RECBIPT AND RETENTION OF SUCH AMOUNT BY SELLER XS INTENDED TO CONSTITUTB THE LIQUXDATBD DAMAGES TO SELLER PURSUANT TO THB CALIFORNIA CInL CODE, AND SHALL NOT BE DBEMED TO CONSTITUTE A FORFBlTURE OR PENALTY WITHIN THE MEANING OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR PROVISION. SAID AMOUNT OF LIQUIDATED DAMAGES SHALL BE XN LIEU 01" ANY OTHBR REMEDIES, DAMAGES OR SUMS DUE OR PAYABLE TO SELLER. IN PLACING THEIR IN'ITXALS AT THB PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACctmACY OF THE STATB'MBNTS MADB ABOVE. SELLER BUYER B. Default bv Seller. If Seller fails or refuses to comply fully with the terms of this Agreement, because of failure to exert its best efforts to clear title as outlined in Paragraph 5 contained herein to the Property or for any other cause Buyer may, at its option, exercise every right and remedy available at law and in equity under ~alifornia law, including but not limited to the right to: (i) rescind this Agreement and recover from Escrow or Seller the Deposit, as well as any and all reasonable expenses, not to exceed $10,000.00, paid or incurred by Buyer in connection with this Agreement, (ii) proceed with this Agreement and take the Property as is, subject to the qualification below, (iii) record a lis pendens and enforce Buyer's right to specific performance and related injunctive relief, or (iv) select another location for Hal-Mart's store, and bring an action for its actual and consequential damages. Seller acknowledges that if Buyer seeks specific performance of this Agreement, Buyer shall be entitled to an order by the court enforcing this Section, without any O:\OI'KNfIII.I'w"'-_Ap -3 ~&:Y 4 need to make a showing that the Property is unique, or that its damages are liquidated and not speculative, or no other remedies are practical, available, effective or adequate. seller acknowledges that if Buyer seeks injunctive relief, the same may be fashioned in a mandatory or prohibitive manner, and Seller hereby waives any right, at law or in equity, to demand the posting of a bond or other security by Buyer as condition to the continuation of record, of any lis pendens which it may file. 11. Riaht of Entrv. At any time prior to the Closing, and at Buyer's sole expen~~, Buyer or its authorized agents shall have the right to enter upon the Property for any lawful purpose, including without limitation making such surveys and site analyses, test borings and engineering studies and to erect such signs as Buyer may deem necessary. Buyer shall indemnify and hold Seller harmless from and against any and all claims and liens arising out of any act or failure to act of Buyer or its authorized agents as a result of their respective activities on the Property. 12. Brokeraae Fees. Seller shall be responsible for the payment of the brokerage fee or commission, payable only upon the Closing of the sale contemplated herein. 13. Utilities. Seller, at the time of Closing, warrants that all utility services, adequate to meet the needs of Buyer, including water, gas, electrical, telephone and sanitary and storm sewer are available to the Property. Seller also warrants that except as disclosed in writing by Seller to Buyer prior to their execution thereof, no public agency or utility has imposed a connection or service commencement fee or assessment which would be a pre-condition to Buyer's use of ' said services, nor, is any moratorium against connection to such services, or quantitative or qualitative limitation on such services in place at the date hereof, or proposed, pending, likely or necessary, to the knowledge of Seller and any of its design or engineering consultants with respect to the Property. 14. Continaencies and Seller's Warranties. Buyer's obligation to perform hereunder is subject to satisfaction of the following contingencies within the time periods hereinafter set forth. A. Governmental ADDrovals To Be Obtained Bv Seller. This Agreement and Buyer's obligation to close Escrow is expressly conditioned on the general plan, any applicable specific plan, zoning, zone clearance. subdivision map, environmental clearance, planned development program or permit, conditional use permit program, architectural review process, redevelopment plan, approved traffic study, development agreement, redevelopment agreement, subdivision improvement agreement, special assessment district creation and bond issuance, and other discretionary approval programs of the governmental agencies and owners associations with jurisdiction over the Property (individually and collectively the -Governmental Approvalsh) permitting the use of the Property for business retail usage in the manner customarily undertaken by Wal-Mart (the .Wal-Mart Plan") and the retail businesses which surround it, and as shown on any schematic O:\GI'JOI07I\1'uh:huo:.Alm -E .-~3 5 drawings or plans shown by Buyer to Seller, and otherwise acceptable trom Buyer's legal, business and economic point-ot-view. Seller agrees that since the Property does not have all of the Governmental Approvals necessary tor the wal- Mart Plan, Seller shall, at its expense and subject to timely receipt of all necessary information from Buyer, apply for or execute for Buyer and within thirty (30) days of the date hereof, an application to obtain each and every Governmental Approval for the wal-Mart Plan. Seller or Buyer shall pursue the applications and processing to completion and shall execute all necessary and appropriate instruments, provided that Seller may not execute any application or instrument '8.s. an agent of Buyer (Buyer hereby covenanting to timely do the same) , but provided further that each representation, covenant, condition, limitation, exaction, fee and design change offered to the governmental agencies by Seller, or mandated by the governmental agencies shall be eubject and contingent to Buyer's review, approval or disapproval, counter-offer or counter-condition, and Buyer shall not be obligated to give any binding or final approval of any of the same unless and until: (i) the totality of the Governmental Approvals have been reviewed and finally approved in writing (and by publication of necessary ordinances) by each and every one of the governmental agencies charged with originally granting the Governmental Approvals, (ii) any ordinances with respect thereto having taken effect, (iii) the time has passed for appeal of any such Governmental Approvals to any administrative age~cy and court with appeal jurisdiction over such Governmental Approvals or appeals in connection therewith. (iv) no notice of referendum or initiative with respect thereto having been published or publicized and (v) any appeals or litigation with respect to (iii) or (iv) have been prosecuted and resolved in a manner which is not subject to remand to lower courts or governmental agencies, all of the enumerated processes being the "Final Approval". If the Final Approval has not occurred, and/or all of the Governmental Approvals have not been obtained on or qefore the: scheduled -Closing, this Agreement shall, at Buyer's option, either (a> continue in full force and effect until the same has occurred (subject to the parties hereto agreeing that the same must occur by June 30, 1995, or this Agreement shall terminate) or (b) this Agreement shall be of no further force and effect, and Seller shall return to Buyer the Deposit or (c) Buyer shall waive some or all parts of this contingency, (with or without imposition of further conditions not involving additional dollar expense by Seller) at Buyer's sole and absolute discretion, and proceed with the Closing. Seller agrees that this contingency shall be deemed satisfied when Buyer is able to obtain, from the director of planning or the director of building and safety in the municipality where the Property is located, an unconditional letter indicating that Buyer is now able to obtain a building permit for construction of the improvements shown on the Buyer Plan. B. Permits To Be Obtained bv Buver. This Agreement and Buyer's obligation to close Escrow is expressly conditioned on Buyer receiving prior to O:IGI9rNnI\P\orc!oosc."'"' j -~ f 6 the Close of Escrow from all appropriate and applicable private and/or public agencies and entities including but not limited to applicable regional, county and/or city authorities and Caltrans any written approvals, permits and licenses as may be required for the construction of its facilities in the manner of the Buyer Plan, including utilities, buildings, parking lots, lights, landscaping, signs, driveways, and curb-cuts upon the Property and adjacent right-of-way, and for the construction of any off-site improvements which Buyer is obligated (and has agreed) to construct (individually and collectively the "Permits"). Buyer agrees to apply for and diligently pursue approval of the Permits as soon as the Fir.~' Appr~val of the Governmental Approvals, provided that each condition, limitation, exaction, fee and design change mandated by the governmental agencies with respect to said Permits shall be subject and contingent to Buyer's review, approval or disapproval, counter-offer or counter-condition, and Buyer shall not be obligated to give any binding or final approval of any of the same unless and until: (i) the totality of the Permits have been reviewed and finally approved in writing by each and every one of the governmental agencies charged with originally granting the Permits, (ii) the time has passed for appeal of the granting or conditioning or disapproval of any such Permit to any administrative agency and court with appeal jurisdiction over such Permits or appeals in connection therewith, (ili) no notice of development policy change as described in the California Government Code with respect thereto or with respect to the Governmental Approvals which would affect the Buyer Plan shall have been published, (iv) no notice of referendum or initiative with respect thereto having been published or publicized and (v) any appeals or litigation with respect to (iii) or (iv) have been prosecuted and resolved in a manner which is not subject to remand to lower courts or governmental agencies, all of the enumerated processes being the "Final Permit Approval". If the Final Permit Approval has not occurred, and/or all of the Permits have not been obtained on or before the scheduled Closing,-at Bu~er's option, either (a) this Agreement shall continue in full force and effect until the same has occurred (subject to the parties hereto agreeing that the same must occur by June 30, 1995. or this Agreement ahall terminate) or (b) this Agreement shall be of no further force or effect, and Seller shall return to Buyer the Deposit or (c) Buyer shall waive Borne or all parts of this contingency, (with or without imposition of further conditions not involving additional dollar expense by Seller) at Buyer's sole and absolute discretion, and proceed with the Closing. Seller agrees that this contingency shall be deemed satisfied when Buyer has, in hand, all of the Permits and the Final Permit Approval has occurred. C. InSDections and soils Tests, Buyer shall have the right, at Buyer's expense, to select licensed engineers, contractors, and/or other qualified professional(s) to make "Inspections" (including tests, surveys, other studies, inspections, investigations and interviews of persons familiar with the Property) concerning the Property, including but not: limited to tests of structures, wells, O:\GI\IOICI7I~,...,... .3 -t57 septic tanks, and underground storage tanks on the Property, soils, geologic hazards, utility lines and systems, possible environmental hazards, utility lines and systems, possible environmental hazards such as asbestos, formaldehyde, radon gas, methane gas, pesticide residues, oil and gas deposits, and other ftHazardous Materialsft as defined in paragraph 26, belo..... This Agreement is expressly conditioned upon Inspection results ....hich, in the sole judgement of Buyer. evidence that the Property is suitable for WaI-Mart's intended use. Buyer shall order the Inspections ....ithin thirty (30) days of receipt of the Survey, provided for in Section 4 h~reof. Seller shall deliver to Buyer, within ten (10) days of the date he~eof. co~i-~ of any reports of similar Inspections of which Seller is a....are, and Seller's delivery of such existing Inspection reports shall be Seller's representation to Buyer that Seller is not aware of the existence of any others. Buyer shall keep the Property free and clear of any liens, and repair any material physical damages to the Property arising as a result of such Inspections. Upon receipt of reports of such Inspections, Buyer shall promptly deliver one copy of the same to Seller. When such reports disclose conditions or information unsatisfactory to Buyer, which Seller is unable or unwilling to correct at Seller's expense, Buyer may cancel this Agreement by written notice to Seller. D. Condition of the PrO'Dertv. Seller warrants that Seller has no knowledge of any notice of violations of city, county, state, federal, building, land use, fire, health, safety, environmental, hazardous materials or other governmental or public agency codes. ordinances, regulations, or orders ....ith respect to the Property, or as to health. safety, environmental. or hazardous materials codes, ordinances, regulations or orders relating to any lands adjacent to the Property. Seller warrants that no litigation is pending, threatened or likely with respect to the Property, Seller's interest therein, or which would otherwise inhibit Buyer obtaining clear title to the Property. Seller also warrants that there are no physical, le!:1al, economic o.r pol!tical facts, circumstances. problems or governmental actions with respect to the Property which should be disclosed by Seller or its agents under California law, or which an owner or developer of a property such as the Property would want to know in making decisions concerning acquisition and development of the Property, except those which have been disclosed to Buyer in detail. in writing. The foregoing warranties shall be true as of the close of Escrow. If, prior to the close of Escrow, Buyer learns that any of the foregoing warranties or any disclosures by Seller are misleading, incomplete or otherwise incorrect. Buyer may utilize any of its remedies provided in this Agreement. E. Sn@cial Studies Zones IFlood Hazard Zone. Unless otherwise disclosed by Seller to Buyer in writing prior to the date hereof, Seller warrants that no portion of the Property, or the road rights-of-way immediately adjacent to the Property, (i) are situated 1n a Special Studies Zone (as defined in California Public Resources Code Sections 2621-2625). or a Border Zone (as defined in O:\G19I:M11""""'-.Arm .3 ~ tb B California Health and Safety Code Sections 25117.3 and 25117.4) or in a Special Flood Hazard Area as set forth on a Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map, or Flood Hazard Boundary Map, (ii) are located within 2500' of an earthquake fault which has been mapped in the planning records of San Diego County or the city in which the Property is located, (iii) was the former site of any public or private landfill, dumpsite, retention basin or settling pond, (iv) was the former site of any oil or gas drilling operations, or (v) was the site of any experimentation, processing, refining, reprocessing, recovery or manufactur!h~ operation for any petrochemicals or Hazardous Materials as defined in Paragraph 26. The foregoing warranties shall be true as of the close of Escrow. If, prior t? the close of Escrow, Buyer learns that any of the foregoing warranties or any disclosures by Seller are misleading, incomplete or otherwise incorrect, Buyer may utilize any of its remedies provided in this Agreement. F. Real Estate Committee ADDroval. This Agreement and purchase is wholly contingent upon Hal-Mart being able to obtain approval, from Wal-Mart's Real Estate Committee, of the placement of a store on the Property in Chula Vista, California. It is understood that Buyer shall notify Seller within ninety (90) days after the date of this Agreement of the decision of the Committee. If the decision is "yes", this Agreement shall continue in full force and effect. If the decision is "no", Seller shall return the Deposit to Buyer and this Agreement shall terminate and neither party shall have any further obligations under the terms thereof. 15. Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be mailed by certified or registered mail, postage prepaid, addressed as follows: If to Seller: If to Buyer: Chula Vista Town Center Associates, L.P. c/o Gatlin Development Co. 12625 High Bluff Drive, Suite 304 San Diego, CA 92130 Attn: Franklin C. Gatlin, III Redevelopment Agency City of Chula Vista 276 Fourth_Avenue Chula Vista, CA 92010 Attn: Chris Salomone, Director 16. Closina. The Closing shall take place at a place and time mutually agreed upon by the parties, within ten (10) days following the date upon which all conditions and contingencies set forth in Sections 4, 5, 13, 14A, 14B, l4C, l4D, 14E and .14F contained herein are satisfied. 17. Closina Costs: Notwithstanding anything to the contrary contained herein, or in the escrow instructions, the Closing costs shall be paid as follows: Bv Seller: (a) Cost of ALTA boundary survey; (b) Title insurance examination and premium for a CLTA policy; (c) Expenses of placing title in proper condition; (d) Preparation and Recording of Grant Deed; (e) All documentary, stamp and transfer taxes; (f) One~half (1/2) the escrow fee, if any; and (9) Brokerage fee as outlined in Paragraph 12 here~n. O:\G19OU1t1J'wrlou<.A,m 3 &7 9 , Co.) (b) (c) Cd) Title inourance premium for difference in CLTA policy end ALTJ\ policy 1 Preparation of Mortgage, De ~f Tru8t or other applicable financing inatrumentl, aecording fees for financing instrument_: and One~half (1/2) the ..crow fee, if any. Ii ". 18. Time of J!8IU!!In~et Accentance. Time 1. exp.!:'ell.ly 4ecla.red to be of the e..enoe of thi. Agreement. Seller .ha~l bav. .even C') bua1nel!l8 daya from the date of. receipt of thi. AgTeement to accept and agree to tn. terms and conditione herein. 19. Entire Jun-eement. bcept f'or that certa~!'l ~edevtllopment Diepoeition and bevelopment Agreetnent by and bet"'een Buyer, Wal-Mart Stores, Inc., and. Seller, tbi. Agreement oontain. the entire agreemct ~t~~ 8.,~ler _~ B.uyer... . -id~~Ae~:~r&\rD~rO~r't.~,~a~d:J.t1.\1Jf~;' P~.'6i;~~.rt'Ak'11:i'i;}~r .tatemerit";';,-;..: "'. ,-:.~ , . rapre.entation. exprea. or implied, conceruing t.h. ..le contemplated by thill Agreement. .- , 20. Heial1if'lt7a. ~'~ headings to the Seot10D8 hereof han been in8erted 'for convaa!eno. of rer.renaa only anc1 .hall :Ln DO way modJ.f'y or reetriot any proviaionJl hereof or be ueed to conat:rue any Rob proviaiOUll. 21. Modif'ieat:ionm. 1'he terma of thil Agreement may not be amended., ....iv..d or terminated orally. but only by on inIItrument in writing signe4 by both Sollar and Buyar. 22. Succe~8or.. Thi. Agreement aball inure to the benefit of and bind the parti.. bareto and their re-.pect1ve lucceaaora an4 aSligna. 23. . NonooJPore.icm 1f't'idavi~. Seller agree. to execut., at the Clo.ing, the '1'ranlferor porm &ttaohed hereto .e 2xhibit D and mac1. a part hereof, in c:toq)U.-.noe with Section 1445 ot the Intemal Revenue Code. It: i. under. toed that if' there are multiple Seller., each Beller _ball execute a Trl.I1!lt'.ror !'om at the Cloa1ng. 24. B'fteC!tin Date. The atfective Date ot thi. Agreement and the "Opening of ..crow" .hall be the l.at date oa. "hich all partie. hereto have: axecutad th1a Agr..meut. 25, ReC!ordina ot MemorAf'ldU1l'l. n. ~i~~ agree to uecute, .aoknowledge and ncord a memorandum of thie Agr....mont. which Buyer COVenant. to ralu... of nCOrd if it terminate. thi. "'mant. 26. .aArHt1onal Wllrr~!'1ti.1I bv S.ll*r. (A) Sall.r hereby ropn.ont. and warranta to Buyer that the Prop.rty io Dot OOIItandnated with, nor threatened with OOlltamination r>:oll\ outaid.. 'ourceo by. ....y chemioal. material or aub.tance to whialloxpooure 10 prohibit.d, limited or regulated.1Jy any tederal, .tate, OO\mt.y, loaal or rogiona:. authority or which 10 known to pooe . huard to health ....4 'afety and that the Property h... DAtYer been uaed. for a land.!:Lll, 4ump .it., or .torag. of haza.rdou. eubatanoea. Bsller al.o agree. Ca) to provicle >>uyer \lith cop1e. (reeeived or obtained. by Saller) ot any written C:oamunicatione "tween 8eller, Or it. tenanta, or their Agents or predec.,.o.ra and any third parti.., including but not limited to, govenmental author.1ti.. relat1w to anya.sardoue Material Ca. defined below) on, under, in, about, near or aft'ecting the Property, and (b) that non-diBcloaure: of any IUch .3 -/c;t 10 communication prior to the closing of Escrow shall be deemed an affirmative representation that no such communication has been received by or is known to Seller, its officers, employees or agents and (c) that Buyer is hereby granted the right (but not the obligation) to participate in any proceeding with any governmental agency or court relative to any Hazardous Materials on, in, under, about, near or affecting the Property. This representation and warranty shall survive the Closing. In the event that Buyer notifies Seller that the representation set forth in Paragraph 26 is untrue and such notice is accompanied by a report.. from an engineering company with experience in evaluating such matters, then one of the following alternatives sha!l control. (1) If the cost of performing such acts as may be necessary to cause the Property to be in compliance with all federal, state and local environmenta! laws, ru!es and regulations i. equal to or less than fifty percent (Sotl of the Purchase Price (as the same may be adjusted pursuant to Paragraph 4 above) , then Seller agrees, at its sole cost and expense, to perform such acts as may be necessary to cause the Property to be in compliance with all federal, state and local environmental laws. In the event that Seller fails so to perform such acts prior t'o the Closing, then Buyer may postpone the Closing for such period of time as may be necessary for Seller to do so, or, postpone the Closing and undertake such actio:1s as may be necessary to fulfill Seller's obligations hereunder and receive a credit against the Purchase Price for the expenses incurred by Buyer in so fulfilling Seller's duties hereunder. (2) If the cost of bringing the Property into compliance with the above-described laws, rules, and regulations exceeds fifty percent (SOt) of the Purchase Price (as the same may be adjusted pursuant to Paragraph 4 above), then Buyer, as its election, may either (a) rescind this Agreement and receive a full refund from Seller of all Earnest money previously deposited with Seller, or (b) proceed with purchasing the Property, and receive a credit against the Purchase Price of the property in an amount equal to fifty , -, percent (Sot) of the Purchase Price (as the same may be adjusted pursuant to Paragraph 4 above). If the Closing haa occurred and the costs of performing any acts as may be necessary to cause the property to be in compliance with all federal, state, and local environmental laws, rules and regulations is equal to or less than fifty percent (SOt) of the Purchase Price (as the same may be adjusted pursuant to paragraph 4 above), then Seller agrees to refund to Buyer the cost of such acts. If the Closing bas occurred and the cost of bringing the Property into compliance with the above-described laws, rules and regulations exceeds fifty percent (SOt) of the Purchase Price (as the same may be adjusted pursuant to Paragraph 4 above), then Buyer, at its option may either (a) rescind and reverse the Closing and receive a full refund of the Purchase Price and costs incurred as a part of the Closing or (b) retain ownership of the Property and receive from Seller an amount equal to fifty percent (Sot) of the Purchase Price (as the same may be adjusted pursuant to Paragraph 4 above). O:\GI!I(N)7I\F'\d'd1uo:.A,m j ~d, 7 n (8) As used in this Agreement, the term "Hazardous Materials" means any hazardous, toxic, infectious or explosive substance, material, gas or waste which is or becomes regulated by any governmental authority, or the United States Government, or any of their agencies, or which has been identified as a toxic, cancer causing or otherwise hazardous substance. The term "Hazardous Materials" includes, without limitation, any material or substance which is (a) defined as a "hazardous waste", "extremely hazardous waste" or "restricted hazardous waste~ under the California Health and Safety Code, Division 20, Chapter 6.5, as it may from time to time be amended (the "Hazardous Waste Control LaW"), (b) defined as a "hazardoUo& substance" under the California Health and Safety Code, Division 20, Chapter 6.8 as now existing or hereinafter amended (the .Carpenter Presley-Tanner Hazardous Substance Account Act"), (c) defined as a "hazardous material", hazardous substance", or .hazardous waste. under the California Health and Safety Code, Division 20, Chapter 6.95 as presently existing or hereinafter amended, (the "Hazardous Materials Release Response Plans and Inventory"), (d) defined as a "Hazardous Substances under the California Health and Safety Code, Division 20, Chapter 6.7 as presently existing or hereinafter amended (the "Underground Storage of Hazardous Substances Act"), (e) petroleum, (f) polychlorinated biphenyls (.PCB"), (9) asbestos, (h) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of title 22 of the California Administrative Code, Division " Chapter 20, and now existing or hereinafter amended, (i) designated as a "hazardous substance" pursuant to Section 307 of the Federal Water pollution Control Act (33 U.S.C. 5 1317) , as presently existing or hereinafter amended, (j) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. S 1251 et seq. (33 U.S.C. S 1321), (k) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. S 6901 et Beg. (42 U.S.C. S 6903), as presently existing or hereinafter amended or (1) defined as a fthazardous substance" pursuant to Section 101 of the Comprehensive . "- Environmental Response, Compensation and Liability Act, 42 U.S.C. S 9601 et seg. (42 U.S.C. J 9601). as presently existing or hereinafter amended. (C) Seller also represents that the Property is not a .hazardous waste property. or within a .border zone" as defined in California Health and Safety Code, nor is the property subject to the requirements for notice to the California Department of Health Services, as such notice requirement is defined in California Health and Safety Code as presently existing. (D) This Paragraph 26 shall survive the Closing. 27. Survival. All warranties, representations and covenants herein shall survive the Closing. ZN WITNESS WHEREOF, the parties have executed this Agreement in quadruplicate as of the day and year first above written. SIGNATURES FOLLOW O:\GI<<I't07I~.AIJI'I ~ --- 70 12 "Seller" Chula Vista Town Center Associates, L.P., a California limited partnership By: Chula Vista Town Center, Inc., a California corporation By: Its: , . "Buyer" Redevelopment Agency of the City of Chula Vista, a public body, corporate and politic By, Its: O:'GI'IfN!II\f'wd1ue.Alm -3~?1 , , This page intentionally left blank. 3~? ")--- , . (Exhibit n 5 n) EXHmIT "5" Grant Deed [Attached] .3 --73 (Page 1 of I) , . This page intentionally left blank. 3,,7,/ RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Mark A. Ostoich, Esq. GRESHAM, VARNER, SAVAGE, NOLAN & TILDEN 600 N. Arrowhead Ave., Suite 300 San Bernardino, CA 92401 , . SPACE ABOVE TillS UNE FOR RECORDER'S USE Docu.mcotary Transfer Tax $ ---...: Computed on Full Value of Property Cooveycd _ or CompulCd on Full Value Less UcalIDd Encwnbranccs Remaining at Time of Sale Sigrwure of Declarant or A&cocy Dc:termining Tax - Fma Name GRANT DEED , a California limited partnership, hereby grants to WAL-MART STORES, INC., a Delaware corporation, the real property (the "Property") legally described in the document attached hereto, labeled Exhibit A, and incorporated herein by this reference. The Property is conveyed subject to all matters of record. ,a California limited partnership Dated: , 1994 By: Its: By: Its: 3 ,. 7.5 (Exhibit "5") (Page 1 of 1) ACKNOWLEDGMENTS STATE OF CALIFORNIA ) ) ss: COUNTY OF ) On bef0re .me, , Notary Public, personally appeared r-l .---. L-..J personally known to me or L-J proved to me on the basis of satisfactory evidence to be the person{s) whose name{s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity{ies), and that by his/her/their signature{s) on the instrument the person{s), or the entity upon behalf of which the person{s) acted. executed the instrument. WITNESS my hand and official seal. Signature [Seal] STATE OF CALIFORNIA ) ) ss: COUNTY OF ) On before me, . , Notary Public, personally appeared r-l .---. L-..J personally known to me or L-J proved to me on the basis of satisfactory evidence to be the person{s) whose name{s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature [Seal] 3~7~ (Exhibit "5") (Page 1 of 1) EXHIBIT" A " PROPERTY DESCRIPTION (To Be Supplied) , . Jr77 (Exhibit "S") (Page 1 of 1) , . This page intentionally left blank. j,-7R EXHffiIT "6" RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Mark A. Ostoich, Esq. GRESHAM, VARNER, SAVAGE. NOLAN & TILDEN 600 N. Arrowhead Ave., Suite 300 San Bernardino, CA 92401 MEMORANDUM OF REDEVELOPMENT DISPOSITION AND DEVELOPMENT AGREEMENT AND COVENANTS AGREEMENT This Memorandum of Redevelopment Disposition and Development Agreement and Covenants Agreement ("Covenants Agreement") is made by and among the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA, a public body corporate and politic of the State of California, herein called "Agency," acting to carry out the Redevelopment Plan for the Town Centre II Redevelopment Project Area (which plan is hereinafter referred to as the "Redevelopment Plan") under the Community Redevelopment Law of California, CHULA VISTA TOWN CENTER ASSOCIATES, L.P., a California limited partnership, hereinafter "Seller", and W AL-MART STORES, INC., a Delaware corporation, herein called "Wal-Mart," regarding real property ("Wal-Mart Parcel"), described on Exhibit "I" attached hereto. 1. The Parties hereby agree that each shall perform their respective obligations in accordance with the terms and conditions of that certain unrecorded Redevelopment Disposition and Development Agreement ("DDA ") dated , 1994, and executed by the Agency, Seller and Wal-Mart. The DDA is hereby incorporated herein by reference. 2. WaI-Mart covenants, by and for itself, its representatives, successors and assigns and all persons claiming under or through it (including, without limitation, all lessees), that there for a period of twenty (20) years after the Effective Date of the DDA the WaI-Mart Parcel shall be used only for the retail uses authorized by the Entitlements (as defmed in the DDA). 3. WaI-Mart covenants, by and for itself, its representatives and all persons claiming under or through it that prior to the completion and opening to the general public for retail sales of a Wal-Mart Store on the Wal-Mart Parcel, or if Wal-Mart for any reason does not construct and open a Wal-Mart Store on the WaI-Mart Parcel, prior to the expiration of the Agency's Option. WaI-Mart shall not sell or lease (except pursuant to a sale-leaseback transaction) the Wal-Mart Parcel to any third party nor shall Wal-Mart construct or seek to construct any improvement or use on the Wal-Mart Parcel other than a Wal-Mart Store. Any attempt to sell, lease, transfer or otherwise convey title to or possession of the Wal-Mart Parcel (except pursuant to a sale-leaseback transaction) to a third party prior to the expiration of this Covenant shall be void. 3 --71 ,........ . '. ". ..'10' l'n_ __ 1 ~~..." 4. Wal-Man covenants, by and for itself, its representatives, successors and assigns and all persons claiming under or through it (including, without limitation, all lessees), that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease. sublease, transfer. use, occupancy, tenure or enjoyment of the Wal-Mart Parcel or any part thereof, nor shall the Wal-Mart itself or any persons claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use of occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property or any part thereof. The foregoing covenants shall run with the land. All deedS, leases, or contracts made relative to the Wal-Mart Parcel, improvements thereon, or any part thereof, shall contain or be subject to substantially the following nondiscrimination clauses: a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon the subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees of the land herein leased. " c. In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status. national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee or any person claiming under or through him or her establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. " . 5. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Covenants Agreement shall defeat or render invalid or in any way impair the lien or charge of any mongage, deed of trust or other fInancing or security instrument expressly permitted by the Agreement; provided, however, that any successor of Wal-Mart to the Wal-Mart Parcel or parcels thereof shall be bound by such remaining covenants, conditions, (Exhibit "6") .B -tD (Page 2 of 7) restnctIons, limitations and proVISIOns, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 6. All covenants contained in this Covenants Agreement shall run with the land and shall be binding for the benefit of the Grantor and its successors and assigns and such covenants shall run in favor of the City of Chula Vista and the Agency and for the entire period during which such covenants shall be in force and effect, without regard to whether the City or the Agency is, was at any time or remains an owner of any land or interest therein to which such covenants relate. The City and the Agency, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies provided herein or otherwise available, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants contained in this Covenants Agreement shall be for the benefit of and shall be enforceable only by the City, the Agency and their successors and assigns. 7. The Covenants contained in paragraph 2 herein shall terminate on 2014. The Covenant contained in paragraph 3 herein shall terminate on 199 and the covenants contained in Paragraph 4 herein shall remain in effect in perpetuity. 8. The covenants contained in this Covenants Agreement, without regard to technical classification or designation, shall not benefIt or be enforceable by any person, fIrm or corporation, public or private, except Agency and the City of Chula Vista and their successors and assigns. 9. The purpose of this Covenants Agreement is to give notice of the existence of the Agency's and WaI-Mart's rights and obligations under the DDA. If there is an inconsistency between the provisions of this Covenants Agreement and the DDA, the provisions of the DDA shall control. Except as otherwise expressly provided herein, all of the words, phrases and capitalized terms used in this Covenants Agreement shall have the same meaning set fonh in the DDA. IN WITNESS WHEREOF, the Agency, the Seller and WaI-Mart have caused this instrument to be executed this _ day of , 1994. (SIGNATURES FOLLOW) 3rt( {t:'....t...~\...:... "t::: II, (p~"p ~ nf 7) AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF CHVLA VISTA Dated: , 1994 By: By: .~ . A TIEST: Secretary APPROVED AS TO FORM AND SUBSTANCE: General Counsel to the Redevelopment Agency of the City of Chula Vista By: Special Counsel to the Redevelopment Agency of the City of Chula Vista By: (ADDITIONAL SIGNATURES FOI:.LOW) 3 r-&>V (Exhibit "6") (Page 4 of 7) Dated: Dated: (Exhihit "6") . 1994 . 1994 W AL-MART: W AL-MART STORES, INC.. a Delaware corporation , , By: Its: SELLER , a California limited partnership By: Its: By: Its: 3~S3 (Page 5 of 7) STATE OF CAUFORNIA COUNTY OF ) ) ss: ) On , 1994, before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the witl1in instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA ) ) ss: ) COUNTY OF On , 1994, before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they t':xecuted the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seaL Notary Public in and for said County and State j~gf (Exhibit "6") (Page 6 of 7) STATE OF CAUFORNIA ) ) ss: ) COUNTY OF On , 1994, before me, , personally appeared , personally known to me (or proved to me,O,11 the basis of satisfactory evidence) to be the persons whose names are subscribed to the within insn....-nent, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and offIcial seal. Notary Public in and for said County and State STATE OF CALIFORNIA ) ) ss: ) COUNTY OF On , 1994, before Itle, , personally appeared , personally known to me (or proved to me on the basis of satisfactory ev.idence) to be the persons whose names are subscribed to the within instrument, and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and offIcial seal. Notary Public in and for said County and State 3rtS (Pvn;h;t ""'''' ID........... ., ........" EXHmIT "7" Promissory Note [Attached] , , . ... .3 rih PROMISSORY NOTE $ W AL-MART PROJECT Chula Vista, California _, 1994 , . RECITALS A. On ,199_, the REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA ("Agency"), WAL-MART STORES, INC., a Delaware corporation ("Redeveloper"), and , a California limited partnership comprised of ("Seller"), entered into a Disposition and Development Agreement ("Agreement"), relating to the redevelopment of cenain real property located in the City of Chula Vista. A true and correct copy of the Agreement is on me in the City Clerk's Office located at 276 Fourth Avenue, Chula Vista, California 91910. B. The Agency and the Redeveloper have executed and delivered this Note pursuant to the Agreement. Tenns not defmed herein shall have the meaning ascribed in the Agreement. NOW, THEREFORE, the Agency and the Redeveloper agree as follows: 1. FOR VALUE RECEIVED, and subject to the terms and conditions of the Agreement, the Agency promises to pay to the order of the Redeveloper, at 702 S.W. 8th Street, Bentonville, Arkansas 72716, Attn: President and Attn: Property Manager or at such other address as the Redeveloper may from time to time designate, the principal sum of One Million Nine Hundred Fifteen Thousand Dollars ($1,915,OOO.OO) in accordance with the following: 2. Interest Rate. Interest on the unpaid principal balance owed hereunder shall accrue at the rate of four percent (4%) simple interest per annum, commencing on the date the Store on the Wal-Mart Parcel opens for business, and continuing thereafter until the principal and interest are paid in full or the Agency's obligation is forgiven and discharged as set forth in paragraph 4 below or is otherwise properly tenninated. 3. Installment Pavment. The obligation of the Agency to make payments to the Redeveloper pursuant to this Promissory Note is expressly contingent upon the construction, opening to the general public for retail sales and continued operation as a retail outlet of a WaI- Mart store (the "Store") on the WaI-Mart Parcel. Subject to the opening for business and continued operation of the Store on the Wal-Mart Parcel, the Agency shall make installment payments of principal and interest to the Redeveloper at the times and subject to the other terms and conditions herein set forth. 3.lo Installment payments of principal and interest will be payable quarterly during the tenn of this Note, in arrears and without offset or demand: (i) commencing 30 days after the date that City or the Agency receives a detailed report ("Detailed Report") from the State Board of Equalization itemizing the sources of the State Board of Equalization ..3 ~ 17 reconciliation payment ("Reconciliation Payment") for the first quarter in which the store opens for business (the "First Payment Date") and (ii) continuing 30 days after the date that the Agency receives the Detailed Report for each subsequent quarter through including the 59th calendar quarter after the First Payment Date until the earlier of (a) the Payment Date on which all principal and interest have been paid to the Redeveloper; or (b) the quaner during which the Wal-Mart Store ceases to operate as a Wal-Mart retail outlet (individually a "Payment Date" and collectively the "Payment Dates"), 3.2. On each Payment Date, the Agency shall pay to the Redeveloper the "Redeveloper's Payment" as hereinafter defmed. The Redeveloper's Payment shall be an amount equal to. a specifIed portion of the "Sales and Use Tax Revenues" generated by the operation of the Wal-Mart Store on the Wal-Mart Parcel as set forth below. Sales and Use Tax Revenues means those funds received by the City of Chula Vista (the "City") as unrestricted general fund revenues pursuant to the imposition of the Bradley-Burns unifonn Local Sales and Use Tax Law (the "Sales Tax Law"), conunencing with Section 7200 of the Revenue and Tax Code of the State of California, as amended, arising from sales at or from the Wal-Mart Parcel which are subject to such Sales and Use Tax Law. Any funds received by the City from impositions pursuant to the Sales Tax Law which are subject to use restrictions imposed by the State shall not be included in the definition of Sales and Use Tax Revenues in the First Payment Year. 3.3. The Redeveloper's Payment shall be calculated as follows: A. The payment to Redeveloper in the First Payment Year (to be paid quanerly) shall be an amount equal to the lesser of the amount necessary to pay principal and interest in full or twenty percent (20%) of the Sales and Use Tax Revenues. B. The payment to Redeveloper in the Second Payment Year (to be paid quarterly) shall be an amount equal to the lesser of the amount necessary to pay principal and interest in full or thirty percent (30%) of the Sales and Use Tax Revenues in the Second Payment Year. C. The payment to Redeveloper in the Third Payment Year (to be paid quanerly) shall be an amount equal to the lesser of the amount necessary to pay principal and interest in full or thirty-fIve percent (35%) of the Sales and Use Tax Revenues in the Third Payment Year. D. The payment to Redeveloper in the Fourth Payment Year (to be paid quanerly) shall be an amount equal to the lesser of the amount necessary to pay principal and interest in full orforty-five percent (45%) of the Sales and Use Tax Revenues in the Fourth Payment Year. E. The payment to Redeveloper in the Fifth through the Fifteenth Payment Years (to be paid quanerly) shall be an amount equal to the lesser of the amount necessary to pay principal and interest in full or fIfty percent (50%) of the Sales and Use Tax Revenues in the applicable Payment Year. 3 r- tt' 3.4. As used in this Note, Sales and Use Tax Revenues based on sales at or from the Site will be deemed to include only sales which occur on the Site and sales which occur elsewhere, if they are initiated on the Site and if the situs of the sale is within the Agency's corporate limits. The parties agree for purposes of detennining the amount of the Redeveloper's Payment that the Agency will not be obligated to consider Sales and Use Tax Revenues from any source other than Tax Revenue which is based on sales at or from the Wal-Mart Parcel. 3.5. If the Sales Tax Law is modified after the date of this Promissory Note in a manner which results in the City receiving an increased or a decreased amount of Sales and Use Tax Revenues from the Wal-Mart Parcel, the amount of the Redeveloper's Payment shall be calculated on the modifIed level of Sales and Use Tax Revenues. If the Sales Tax Law is repealed after the date of this Promissory Note the Agency's obligation pursuant to the Promissory Note shall be deemed to be forgiven and discharged, and no liability of the Agency for the nonpayment of such principal and interest shall result in any manner whatsoever. Provided, however, that if concurrent with the repeal of the Sales Tax Law, additional legislation provides for the replacement of all or a portion of the Sales and Use Tax Revenues, the Agency's obligation to make Redeveloper Payments shall be deemed to be modifIed and will thereafter be based on the alternative fonn of tax or revenue (the "Alternative Revenue") which the City receives with regard to the applicable quarter in total or partial replacement of Sales and Use Tax Revenue. In addition, in the event of such repeal and replacement of Sales and Use Tax Revenues, the Redeveloper and the Agency will fully cooperate with one another in amending the Agreement and this Promissory Note as is necessary or appropriate to facilitate repayment of this Note in a manner consistent with the amount and nature of the Alternative Revenue and the intent of the parties in entering into the Agreement and this Promissory Note. The parties acknowledge that their intent includes: A. The timely and full payment of the principal and interest of this Promissory Note. B. The Redeveloper's Payment shall not exceed an amount which is equal to fIfty percent (50%) of the incremental unrestricted revenues received by the City in each fiscal year as a result of the operation of the Wal-Mart Store. C. The Agency's obligation to repay the Redeveloper shall not extend beyond fIfteen (15) years after the date the Wal-Mart Store is opened for business and tenninates upon closure or transfer of the Wal-Mart Store, provided that the Agency shall make the payment to the Redeveloper for the last calendar quarter prior to such tennination. 3.6. All such payments shall reduce the accrued interest first and then the unpaid principal until the principal and interest due hereunder is paid in full, or the Agency's obligation is forgiven and discharged as set forth in Paragraph 4 below or is otherwise properly tenninated. ~~J9 4. For!!iveness and Dischar!!e of Balance of Obligation. In the event that the payment of the Redeveloper's Payments in the amounts set forth above is insufficient to fully satisfy and discharge the amount of principal and interest on this Note by the Final Payment Date, any and all principal and interest on this Note remaining unpaid after such Final Payment shall be forgiven and discharged, and no liability of the Agency for the nonpayment of such principal shall result in any manner whatsoever. The Final Payment Date shall be the Payment Date for the calendar quarter which is first to occur of: (i) the 59th calendar quarter after the First Payment Date; (ii) the quarter for which all outstanding principal and accrued interest are paid in full; or (Hi) the Payment Date in the first quarter in which the Wal-Mart Store ceases to operate as a Wal-Mart retail outlet. 5. Preoavment. The Agency shall have the right at any time to prepay all or any portion of the unpaid principal balance owing under this Promissory Note. 6. General Provisions. All sums payable hereunder shall be due and payable in lawful money of the United States of America. In the event any installment due hereunder is not paid by the Agency within fifteen (I5) days after it is due, such installment shall bear interest from and after such date at the lesser of the rate of eleven percent (11 %) per annum or the maximum legal rate, but not less than the rate fll'st set forth above, until paid. If any action is instituted to enforce this Note, the losing party in any such action promises to pay reasonable attorney's fees and costs and expenses. This Note has been executed in the State of California and shall be construed and interpreted according to the laws of the State of California. SIGNATURES FOLLOW ..3 ~9{) REDEVELOPMENT AGENCY OF THE CITY OF CHuLA VISTA By: Its "Agency" , . WAL-MART STORES, INC., a Delaware corporation By: Its "Redeveloper" ,.3.-1/ EXHIBIT "8" Form of ONion Agreement [Attached] , , S --9Y RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Redevelopment Agency of the City of Chula Vista 276 Fourth Avenue Chula Vista, California 92010 Attention: , . SPACE ABOVE THIS UNE FOR RECORDER'S USE OPTION AGREEMENT TIllS OPTION AGREEMENT ("Agreement") is made and executed as of this day of 1994 (the "Effective Date"), by and between the REDEVELOPMENT AGENCY OF THE CITY OF CHuLA VISTA, a public body corporate and politic of the State of California, herein called "Agency," acting to carry out the Redevelopment Plan for the Town Centre II Redevelopment Project Area (which plan is hereinafter referred to as the "Redevelopment Plan") under the Community Redevelopment Law of California, and WAL-MART STORES, INC., a Delaware corporation, herein called Redeveloper, with reference to the facts set forth below. RECITALS A. The Agency, Redeveloper and have heretofore entered into that certain Redevelopment Disposition and Development Agreement (the "DDA") dated as of , 1994, the purpose of which was to effectuate the Redevelopment Plan by providing for the development of certain real propeny (the "Propeny") included within the boundaries of the Project (the "Project Area "), as such Propeny is more particularly described in Exhibit A attached hereto and incorporated herein by this reference. Capitalized tenus not otherwise defmed in this Agreement shall have the same meanings given thereto in the DDA. B. Under the tenns of the DDA, as material part of the consideration to Agency from Redeveloper for assisting Redeveloper in acquiring and developing the Propeny, Redeveloper has agreed to grant the Agency an option to acquire the Propeny. This Agreement is entered into in order to document such grant of option and to more fully set forth the circumstances under which the option may be exercised. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agency and Redeveloper hereby agree as set forth below. 3--CZl ARTICLE I. Grant of Ootion Redeveloper hereby grants to Agency an exclusive option (the "Option") to purchase the Property, on the terms and conditions set forth in this Agreement. , , ARTICLE II. Term of Ootion The term (the "Option Term") of the Option shall commence as of the Effective Date, and shall expire upon the earlier to occur of: (i) one-hundred eighty (180) calendar days after the "Trigger Date" (as such term is dermed below), or (ii) the date upon which Redeveloper opens the Store on the Property. As used herein, the term "Trigger Date" means the date which is the earlier to occur of: (i) the date upon which Agency delivers to Redeveloper written notice of its election to terminate the DDA as a result of the Redeveloper's failure to have constructed and opened the Store on the Property on or before the second anniversary of the effective date of the DDA, or (ii) the date upon which Redeveloper delivers written notice to Agency that Redeveloper does not intend to construct and open the Store on the Property on or before the second anniversary of the effective date of the DDA. ARTICLE III. Exercise of Ootion Agency may exercise the Option at any time after the Trigger Date (and prior to the expiration of the Option Term) by delivering written notice (the "Notice of Election") to Redeveloper to such effect. In the event that Agency fails to exercise the Option prior to the expiration of the Option Term, the Option and this Agreement shall automatically (i.e., without further action on anyone's part) expire and cease to be reflected as an encumbrance on title to the Property. ARTICLE IV. Purchase Price In the event Agency exercises the Option, the purchase price ("Purchase Price") at which Agency shall be entitled to purchase the Option Property shall be the difference between: (i) the "Fair Market Value" (as such term is defIned below), (ii) any gains or income withdrawn or made by Redeveloper frOItl the Property or the improvements thereon, and (iii) the amount required to discharge, as of the "Close of Escrow" (as such term is dermed below), any mortgage, deed of trust, or other lien having priority over this Agreement ("Priority Lien") which Agency elects, in its sole and absolute discretion, to take title subject to. "Fair Market Value" shall be determined as follows: ~ ---91- Immediately following the delivery of the Notice of Exercise, Agency and Redeveloper shall attempt in good faith to determine the fair market value of the Property. If Agency and Redeveloper are unable to agree upon the fair market value of the Property Parcel within ten (lO) calendar days, then the following provisions shall apply: (i) For an additional ten (lO) calendar day period, Agency and Redeveloper shall attempt in good faith to agree on a single appraiser to determine the fair market value of -the Property. If Agency and Redeveloper are successful in selecting a single appraiser, then that appraiser shall be retained, at equal cost and expense to Agency and Redeveloper, to determine the fair market value of the Property within thirty (30) calendar days after he/she is retained, and his/her determination shall be conclusive. (H) If during the aforementioned additional ten (10) calendar day period, Agency and Redeveloper are unable to agree on a single appraiser to determine the fair market value of the Property, then Agency and Redeveloper shall each, within ten (lO) calendar days after the expiration of the original ten (lO) day period, retain an appraiser and shall give written notice of the identity of each such appraiser to the other. Within thirty (30) calendar days after the date the fIrst of the appraisers is retained, each appraiser shall determine the fair market value of the Property. If the appraisals of the appraisers are not the same, then the appraisals shall be averaged and the average of the fair market values of the Property shall be used and such average shall be conclusive. The failure of either party to retain an appraiser and produce an appraisal within the time frames set forth above shall be deemed a waiver of their right to do the same and acceptance of the other party's appraisal. (Hi) Each appraiser shall be a member of the American Institute of Appraisers and shall have at least 5 years experience in appraisal of commercial and/or industrial property in Southern California. ARTICLE. V. Terms of Purchase 5.1 Purchase Price. If Agency exercises the Option, then Agency shall pay to Redeveloper the Purchase Price calculated in accordance with Article IV above. 5.2 Escrow. If Agency has exercised the Option, then the provisions set forth below shall apply. Within fIve (5) days of delivery of the Notice of Exercise, pursuant to the provisions of Article I, above, the escrow ("Escrow") shall be opened by Agency with Chicago Title Insurance Company or another escrow selected by Agency ("Escrow Agent"). Escrow shall be deemed opened upon the delivery of this Agreement to Escrow Agent and the obtaining of Escrow Agent's Consent as provided for in Schedule 1 attached hereto. Agency and Redeveloper shall execute any additional escrow instructions required by Escrow Agent. 3~95 5.3 to the following: Title. Fee title to the Property shall be conveyed to Agency subject only (a) Non-Monetarv Existing ExceDtions. All non-monetary covenants. conditions, restrictions, easements, reservations, right and rights-of-way of record existing immediately after Redeveloper obtained title to the Property pursuant to the DDA, including, without limitation, the Covenants Agreement; (b) Non-Monetarv DeveloDment Encumbrances. Non-monetary encumbrances, such as eaSements or permits, granted to facilitate the development of the Property pursuant to the DDA, including, without limitation, a Declaration of Covenants, Conditions, Restrictions and Reciprocal Easeltlents, and reciproci1l easement agreements with adjacent landowners; (c) Monetarv Encumbrances. Any Priority Lien which Agency elects in its sole and absolute discretion to accept as a title exception; and (d) Taxes. Non-delinquent general, special and supplemental real property taxes, bonds and assessments of the nature and extent levied or assessed against the Property as of Redeveloper's acquisition thereof or imposed in connection with the construction of off-site improvements contemplated by the DDA ("Taxes"). To the extent that all other exceptions are not, by vinue of the prior status of this Agreement, removed by exercise of the Option and conveyance of the Property to Agency, Redeveloper shall pay such amounts and/or deliver to the Escrow Agent such indemnities as the Escrow Agent may require, in order to pennit Escrow Agent to issue the title insurance described below. 5.4 RedeveloDer's Deliveries. Within ten (10) calendar days following the delivery of the Notice of Exercise, Redeveloper shall deliver to Escrow Agent an executed and acknowledged grant deed (the "Grant Deed") for the Property conveying title to the Property to Agency or its assignee. ' .. - . . 5.5 Close of Escrow. The close of Escrow ("Close of Escrow") shall occur no later than ninety (90) calendar days after delivery of Agency's Notice of Exercise ("Closing Date"). Escrow Agent shall close Escrow upon satisfaction of the following conditions precedent: (a) Escrow Agent shall be able to issue, immediately upon recording the Grant Deed, a CLTA title insurance policy (together with such endorsements thereto as Agency may reasonably request), or, if requested by Agency, an ALTA fonn of title insurance policy, with liability in an amount specified by Agency insuring title subject only to the matters agreed upon pursuant to the provisions of Section 5.3 above; and (b) Agency shall have deposited into Escrow, in cash, the Purchase Price. ~-9b 5.6 Title Insurance: Closin!! Costs. Redeveloper shall pay the cost of the title insurance described above; provided that if Agency requests an ALTA policy of title insurance, the cost differential between said policy and the CLTA form shall be paid by Agency. Escrow Agent's standard transaction fee shall be borne fifty percent by each party. Redeveloper shall be responsible for any transfer taxes. All other closing costs shall be borne as is customary in San Diego County. 5.7 Prorations. Taxes shall be prorated as of the Close of Escrow. , . ARTICLE VI. Assilmment and Transfer of Warranties. Plans. Soecifications and Insurance/Condemnation Proceeds In the event the Property is transferred to Agency, together with the delivery of the Grant Deed, Redeveloper shall execute and deliver an assignment of warranties in a form prepared by Agency, assigning and transferring to Agency all warranties in which Redeveloper may then have an interest relating to work, labor, skill or materials furnished in connection with the construction of any improvements on the Property, and of which Agency desires to take assignment. Also in the event of such transfer, Redeveloper shall similarly execute and deliver an assignment of plans and specifications in a form prepared by Agency assigning and transferring to Agency all plans and specifIcations prepared by or for Redeveloper relating to improvements on the Property or to adjacent lands of Agency, whether constructed or not, and of which Agency desires to take assignment. Additionally, Redeveloper agrees to so execute and deliver a general assignment in favor of Agency assigning and transferring any architect's agreements, construction contracts, or other contracts or agreements entered into by Redeveloper relating to the Reverter Property, and of which Agency desires to take assignment. Finally, Redeveloper agrees that, in the event of such a transfer of the Property, any and all insurance and condemnation proceeds (and the rights thereto, to the extent not yet disbursed) shall be transferred and assigned to Agency concurrently with the Close of Escrow' hereunder. Redeveloper covenants that it shall take whatever actions are necessary to ensure that the rights described in this Article VI are transferrable as set forth above without further cost or expense to Agency. ARTICLE VIT. General Provisions 7.1 Notice and Pavments. Any notice to be given or other document to be delivered by any party to the other or others hereunder, and any payments from Agency to Redeveloper. may be delivered (i) personally, (ii) sent via Federal Express (or other messenger service) or (iii) deposited in the United States mail, duly cenifIed or registered, rewrn receipt requested, with postage prepaid, and addressed to the party for whom intended, as follows: .5-97 To Redeveloper: with a copy to: , . To Agency: The Redevelopment Agency of the City of Chula Vista 276 Fourth Avenue Chula Vista, California 92010 Attn: Executive Director Any party hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. Personally delivered notices shall be deemed given upon actual personal delivery to the above address. Notices sent via Federal Express (or other messenger service) shall be deemed given upon delivery to the above address (as evidenced by the receipt of the delivery service). Mailed notices shall be deemed given upon the earlier of three (3) business days after deposit into the United States mail, registered or cenified, with postage fully prepaid, or the date of actual receipt as evidenced by the return receipt. 7.2 CaDtions. The captions used herein are for convenience only and are not a pan of this Agreement and do not in any way limit or amplify the terms and provisions hereof. ..- .- - . ~ 7.3 Governin!! Law. TIris Agreement shall be governed by and construed under the laws of the State of California. TIris Agreement shall be deeltled'inade and entered into in San Diego County. 7.4 Time of the Essence. Time is of the essence of each and every provision of this Agreement. 7.5 Successors and Assil!:ns. All of the covenants and conditions of this Agreement shall inure to the benefit of and shall be binding upon the successors in interest of Agency and the successors, heirs, representatives and assigns of Redeveloper. As used in the foregoing, "successors" shall refer both to the parties' interest in the Revener Property and to the successors to all or substantially all of their assets and to their successors by merger or consolidation. 3-ff 7.6 Attornevs' Fees. In the event of any conflict or dispute with respect to the interpretation or enforcement of any of the terms or provisions of this Agreement, the prevailing party shall be entitled to recover from the other party aU of its costs and expenses incurred in connection therewith, including, without limitation, attorneys' fees. 7.7 Severability. In the event that any phrase, clause, sentence, paragraph, section, article or other portion of this Agreement shall become illegal, null or void or against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining portion.> of this Agreement shall not be affected thereby and shall remain in full force and effect. 7.8 Gender and Number. In this Agreement (unless the context requires otherwise), the masculine, feminine and neuter genders and the singular and the plural include one another. 7.9 No PartnershiD or Joint Venture. Agency or Redeveloper shall not, by virtue of this Agreement, in any way or for any reason be deemed to have become a partner of the other in the conduct of its business or otherwise, or a joint venturer. In addition, by virtue of this Agreement there shall not be deemed to have occurred a merger of any joint enterprise between Agency and Redeveloper. 7.10 Entire A!!reement. This Agreement (together with the provisions of the DDA which are applicable hereto) constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, are hereby superseded and merged herein. The foregoing sentence shall in no way affect the validity of any other documents executed by Agency and Redeveloper relating to the Property. 7.11 Authority. Each individual executing this Agreement on behalf of Redeveloper represents and warrants that he is duly authorized to execute and deliver, and has the power to execute and deliver, this Agreement on behalf of Redeveloper, iliat the transaction contemplated hereby has been duly authorized by all requisite action on the part of Redeveloper, and that no other consents of any party shall be necessary to the consummation hereof. 7.12 Further Assurances. Redeveloper agrees that it will, at its sole cost and expense, at any time and from time to time after the Close of Escrow, upon the request of Agency, execute, acknowledge and deliver all such further deeds, assignments, transfers, conveyances and assurances as may be reasonably required for the effective assignment, transferring, granting or conveying of all or any of the assets or property to be assigned, transferred, granted or conveyed to Agency as provided herein. 7.13 Further Assistance. If Agency exercises the Option and purchases the Property, Redeveloper: (i) waives any right to relocation assistance to an owner or business tenant pursuant to State law including, but not limited to, California Government Code Sections 7260 through 7277, and (ii) further waives any claim for compensation for loss of or damage to goodwill against the Agency pursuant to California Code of Civil Procedure Section 1263.510. ..J~97 7.14 Reference. Each controversy, dispute or claim between the parties arising out of or relating to this Agreement, which controversy, dispute or claim is not settled in writing within thirty (3D) days after the ~'Claim Date" (as hereinafter defmed), will be settled by a reference proceeding in San Diego County, California in accordance with the provisions of Sec- tion 638 et seQ. of the California Code of Civil Procedure, or their successor sections (",CCP"), which shall constitute the exclusive remedy for the settlement of any controversy, dispute or claim concerning this Agreement, including whether such controversy, dispute or claim is subject to the reference proceeding and the parties waive their rights to initiate any legal proceedings against each other in any court or jurisdiction other than the Superior Court of San Diego County (the "Court": The referee ("Referee") shall be a retired Judge of the Court selected by mutual agreeltlent of the parties, and if they cannot so agree within forty-five (45) days after the Claim Date, the Referee shall be promptly selected by the Presiding Judge of the San Diego County Superior Court (or his representative). The date on which the Referee is selected is herein called the "Selection Date." The Referee shall be appointed to sit as a temporary judge, with all of the powers of a temporary judge, as authorized by law, and upon selection should take and subscribe to the oath of office as provided for in Rule 244 of the California Rules of Court (or any subsequently enacted Rule). The Referee shall set the matter for hearing within sixty (60) days after the Selection Date, and try any and all issues of law or fact and report a statement of decision upon them, if possible, within ninety (90) days of the Selection Date. Any decision rendered by the reference will be final, binding and conclusive and judgement shall be entered pursuant to CCP 644 in any court in the State of California having jurisdiction. Either party may apply for a reference at any time after thirty (30) days fol- lowing the date (the "Claim Date") one party notifIes the other party of a controversy, dispute or claim; by filing a petition for a hearing and/or trial. All discovery pennitted by this Agreement (as more particularly provided below), shall be completed no later than fifteen (15) days before the first hearing date established by the Referee. The Referee may extend such period in the event of a party's refusal to provide requested discovery for any reason whatsoever, including, without limitation, legal objections raised to such discovery or unavaila- bility of a witness due to absence or illness. No party shall be entitled to "priority" in conducting discovery. Depositions of a party or its affiliates may be taken by the other party upon seven (7) days written notice, and, request for production or inspection of documents on a party or its affiliates shall be responded to within ten (10)' days after service . "All disputes relating to discovery which cannot be resolved by the parties shall be submitted to the Referee whose decision shall be final and binding upon the parties. Except as expressly set forth in this Agreement, the Referee shall determine the manner in which the reference proceeding is conducted including the time and place of all hearings, the order or presentation of evidence, and all other questions that arise with respect to the course of the reference proceeding. All proceedings and hearings conducted before the Referee, except for trial, shall be conducted without a court reporter, except that when any party so requests, a court reporter will be used at any hearing conducted before the Referee. The party making such a request shall have the obligation to arrange for and pay for the court reporter. The costs of the court reporter at the trial shall be borne equally by the parties. The Referee shall be required to determine all issues in accordance with existing case law and the . statutory laws of the State of California. The rules of evidence applicable to proceedings at law in the State of California will be applicable to the reference proceeding. The .J " / tJ7) Referee shall be empowered to enter equitable as 'well as legal relief, to provide all temporary and/or provisional remedies and to enter equitable orders that will be binding upon the parties. The Referee shall issue a single judgment at the close of the reference proceeding which shall dispose of all of the claims of the parties that are the subject of the reference. The parties hereto expressly reserve the right to fmdings of fact, conclusions of law, and a written statement of decision. ARBITRATION OF DISPUTES. , . IN TIlE EVENT THAT TIlE ENABUNG LEGISLATION WInCH PROVIDES FOR APPOINTMENT OF A REFEREE IS REPEALED (AND NO SUCCESSOR STATUTE IS ENACTED), ANY DISPUTE BETWEEN TIlE PARTIES THAT WOULD OTIIERWISE BE DETERMINED BY TIlE REFERENCED PROCEDURE HEREIN DESCRIBED WILL BE RESOLVED AND DETERMINED BY ARBITRATION. THE ARBITRATION WILL BE CONDUCTED BY A RETIRED JUDGE OF TIlE COURT, IN ACCORDANCE WITII THE CAUFORNIA ARBITRATION ACT, SECTION 1280 AND 1294.2 OF TIlE CCP AS AMENDED FROM TIME TO TIME; PROVIDED, HOWEVER, THAT NOTWITIlST ANDING ANY PROVISION TO TIlE CONTRARY REGARDING DISCOVERY SET FORTII IN TIlE CAUFORNIA ARBITRATION ACT, TIlE RIGHTS AND UMITATIONS WITIlRESPECT TO DISCOVERY AS SET FORTII HEREINABOVE SHALL APPLY TO ANY SUCH ARBITRATION PROCEEDING. "NOTICE: BY INITIALUNG IN TIlE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF TIlE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CAUFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE TIlE DISPUTE UTIGA TED IN A COURT OR JURY TRIAL. BY INITIALUNG IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS TIlOSE RIGHTS ARE SPECIFICAlLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER TIlE AUTIIORITY OF THE CAUFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY." "WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF TIlE MATTERS INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION." AGENCY REDEVELOPER -.3 ..-)LJ ! IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date fIrst above written. Dated: _,1994,. By: ATTEST: Secretary APPROVED AS TO FORM AND SUBSTANCE: General Counsel to the Redevelopment Agency of the City of Chula Vista By: Special Counsel to the Redevelopment Agency of the City of Chula Vista By: AGENCY: REDEVELOPMENT AGENCY OF THE CITY OF CHULA VISTA Its: oJ -jtJY Dated: ,1994 REDEVELOPER: WAL-MART STORES, INC., a Delaware corporation By: Its: , . 3 -I/)3 ACKNOWLEDGEMENTS STATE OF CAUFORNIA ) ) ss: COUNTY OF ) On before me, , Notary Public, personally appeared r---l r---l L-J personally known to me or L-J proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offIcial seal. Signature [Seal] STATE OF CAUFORNIA ) ) ss: COUNTY OF ) On before me, , Notary Public, personally appeared r---l r---l L-J personally known to me or L-.J proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offIcial seal. Signature [Seal] S~/tJ f