HomeMy WebLinkAboutPlanning Comm Reports/1994/10/19 (2)
INFORMATION MEMORANDUM
October 19, 1994
r
TO:
Chairman and Members of the Planning ,Co mission
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\
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 Final EIR concludes that satisfaction of the conditions to effectiveness of the DDA (e,g.
certification of the Final ErR) would not result in any environmental effects that were not
otherwise anticipated from the project. All project impacts were addressed in the Final 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 Final EIR have not created any new significant
environmental impacts not previously addressed in the Final EIR;
2. Additional or refined information available since completion of the Final 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 Final 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
Final EIR have not changed. Any environmental impacts that may result from
approval of the DDA have been addressed as project impacts in the Final EIR.
Therefore, in accordance with Section 15164 of the CEQA Guidelines, the City has
prepared the following Addendum to the Final 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 DESCRIYfION
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.
--......
"
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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 t 7631
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, especially 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 public 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 EIR 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
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REDEVELOPMENT
DISPOSITION AND DEVELOPMENT AGREEMENT
(w AL-MART PROJECT)
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
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TABLE OF CONTENTS
PAGE
1. 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-Mart Parcel. . . . . . . . . . . . . . . . . . . . . . . . . . . " 3
1.6. Parties 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 TIlE 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 TIlE 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 ..................... IO
5.5.1. Failure of Redeveloper to Construct and Open the Store
on the Wal-Mart 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
6.1. 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 Termination .............. 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 Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.6. Text to Control ............ . . . . . . . . . . . . . . . . . . . . 15
7.7. Interpretation ................................. 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 Wal-Mart Parcel
Purchase Agreement
Grant Deed
Memorandum of Redevelopment Disposition and Development
Agreement and Covenants Agreemenr
Promissory Note
Option Agreement
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...
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REDEVELOPMENT
DISPOSmON AND DEVELOPMENT AGREEMENT
(Wal-Mart Project)
THIS AGREEMENT is entered into as of the _ day of , 1994, by and
among the REDEVELOPMENT AGENCY OF TIlE 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 ("Seller").
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 property 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 b<:en previously develQped. The
Site is currently owned by third parties. The Site is legally 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 furtherance 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 collectively 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 efforts to acquire the Site; (2)
diligently process all required permits and entitlements necessary to develop the Site with
192,000 square feet of high volume retail uses (hereirtafter 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
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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 ponion 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-Man 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 parties contained herein, Agency and
Redeveloper and Seller hereby agree as follows:
1. TERMS OF AGREEMENT.
1.1. Pumose of This Al!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 Redeveloper's rights and obligations pursuant to this Agreement shall
not be assignable. The Agency's obligations hereunder are expressly contingent as set forth
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 particularly described in
the Legal Description of the Site (Exhibit 1). The Site is comprised of portions 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 ("Dixieline"),
respectively. Metropolitan and Dixieline may be collectively referred to herein as "Owner".
1.5. The Wal-Mart Parcel. The Wal-Mart Parcel consists of a portion of
the Site which will be conveyed to Wal-Mart pursuant to this Agreement. The Wal-Mart
080594 I C31253-QI3/22219.4
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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).
1.6. Parties to This Agreement.
1.6.1. The Agencv. 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-Man 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. Contingencv of Obligations. 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, norwithstanding 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.
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080594/ C312SJ-013/22219.4
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2.2. ReQuired 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" FI;;'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 Al!encv Retain Discretionarv Annroval 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
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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 15, 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-Mart 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-Mart 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 parties 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 30, 1995 shall use its best efforts to acquire
fee title to the Wal-Mart 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-Mart Parcel, the parties
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 document 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 Wal-Mart Parcel shall be
subject to the provision of all required funds by Wal-Mart. 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-
Mart has not deposited the required funds into escrow.
3.2. Covenants Al!reement: Ootion Al!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
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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,
immediately following the Grant Deed and prior to all other documents affecting the Wal-
Mart Parcel.
3.3. Al!'encv Land Write-Down. Pursuant to the Purchase Agreement the
Purchase Price to the Agency for the Wal-Mart Parcel is approximately $5,265,097.00,
computed at Nine Dollars ($9.00) per square foot and assuming that the Wal-Mart 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 shall
be adjusted accordingly. The Redeveloper has represented to the Agency that if the Wal-
Mart Parcel is acquired at the Agency's Purchase Price, completion of the Store including all
required public improvements, is not fmancially feasible. Therefore, in order to facilitate the
redevelopment of the Wal-Mart Parcel and subject to all of the terms and conditions set forth
herein, the Agency agrees to sell the Wal-Mart 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-Mart
Parcel and the Agency shall repay to the Redeveloper One Million Nine Hundred and Fifteen
Thousand Dollars ($1,915,000.00) ("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. 0_ . _ _ . _
3.4. Citv/Al!'encv CooDeration Al!'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, terminated or otherwise revised in any
manner without the prior written COnsent of the Redeveloper, and that the
080594 I C3125J..()13 I 22219.4
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Redeveloper shaH be a third party beneficiary under the City/Agency Cooperation
Agreement. Upon any such amendment, alteration, termination, or other revision
(collectively "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 warraitties 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 Consrruction. 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 / C312S3-013 / 22219,4
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4.4. EstoDDel CertifIcate. At the request of the Redeveloper, the Agency
shall, within ten (10) 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 !!
bindine: oblie:ation of the certifvine: 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. Oblie: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 Nonsee:ree:ation Clause. The
Redeveloper shall refrain from restricting the rental, sale or lease of the Wal-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
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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 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. "
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 Wal-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 Wal-Man Parcel or any
pan thereof.
The Agency and the City are deemed the benefIciaries of the terms 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 Wal-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 Imulied Covenant to Onerate. 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 Wal-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
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absolute discretion and at any time during the term of this Agreement, cease the operation of
any business on the Site.
5.5.1. Failure of RedeveIoDer to Construct and ODeD the Store on the
Wal-Mart Parcel. The parties 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 eDtered
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-Mart Parcel; it is Dot 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-Mart Parcel on or before the second anniversary of the effective
date of this Agreement, this Agreement shall terminate at 5:00 p.m. on the second
anniversary of the effective date of this Agreement.
E. 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, 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 shaIl be
delivered to the Agency by escrow within three (3) business days of termination of this
Agreement.
(ii) The Redeveloper shall pay to the Agency $50,000
within ten (10) business days of such termination 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-Mart 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
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Il
(iv) The Redeveloper shall not sell 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 Seller's obligations to Redeveloper to provide for preparation
of the Wal-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. ODtion to Purchase. Provided the Redeveloper purchases the
Wal-Mart Parcel as provided herein, the Agency may purchase the Wal-Man Parcel from
Redeveloper at the price and upon the terms described in the Option Agreement ("Option
Agreement") attached hereto in the form of Exhibit "8" in the event that (1) 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-Man 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 Oblil!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
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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 ~C: 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
terminate this Agreement.
6.2. SDeCial Remedies and Ri!!hts of Termination. The following are special
optional remedies and rights of termination of the parties.
6.2.1. Remedies Prior to Close of Escrow.
A. The Redeveloper or the Agency may terminate this
Agreement if the Seller fails to take all steps necessary to convey fee simple title to the Wal-
Mart 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 performance) only against the Seller if
the Seller fails to perform any term or provision of this Agreement in the manner required by
this Agreement.
B. The Agency at its option may terminate 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 termination PUTSnant to this Section, neither the Agency nor the Redeveloper
shaIl 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
performance 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
terminate this Agreement. In the event of any termination PUTSttant 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 (15) 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 shall 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
shall 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 (15) 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 Seller and the Redeveloper
shall 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 nationally recognized overnight mail delivery service
(such as United Parcel Service or Federal Express), to the principal offIces of the Agency,
the Seller and the Redeveloper as set forth in Section 1.6 above. Such written notices,
demands and communications may be sent in the same rnannel' 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 shall 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 shall 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 terms 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 performance 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 performance 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 ail
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 Al!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 terms 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. Lel!al Challenl!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
SeIler is a party to said action or proceeding, the Redeveloper shall have the right to
terminate 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 terminated, 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 shall promptly notify the
Redeveloper and the Seller 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 PartY Beneficiary. The terms and provisions herein contained
shall 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. Assilmment. The parties hereto expressly agree and acknowledge that,
except as expressly set forth herein, this Agreement and the more specifically the rights
conferred to Wal-Mart by this Agreement are not assignable.
8.7. Time for AcceDtance of Al!reement bv Al!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 Seller. The
effective date of this Agreement shall be the date when this Agreement has been signed by
the Agency.
AGENCY:
REDEVELOPMENT AGENCY OF THE
CITY OF CHULA 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--lfS
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 partnership
CHULA VISTA TOWN CENTER
ASSOCIATES, L.P., a
California limited partnership
By:
Its General Partner
By:
Its General Partner
~~17
EXHmIT "1"
Lee: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 FoIlow]
(EXHmIT "1 ")
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 Al.JG 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, STATE 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
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EXHmIT "3"
Legal Description of the Wal-Mart Parcel
AU 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 ~'IQ
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(EXHIBIT "4")
EXHmIT "4"
Purchase A!!reement
; .
3~57
(Page 1 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 LIQUXDATED 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)
Titl. inouranc. premium for diff.renc. in CLTA policy .nd
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!enc. of rer.rena. only an<1 .hall :Ln DO way modJ.f'y or reetriet any
proviaionJl hereof or be ueed to conat:rue any .-uch proviaiOUll.
21. Modif'ieat:ionm. 1'he terma ot 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.. bereto and their re-.pect1ve lucceaaorl an4 aSlignl.
23. . NonooJPore.icm 1f't'idavi~. Seller agree. to execut., at the Clo.ing, the
'1'ranlteror porm attaehed hereto .e 2xhibit D and mad.. a part hereof, in
c:toq)U.-.noe with Section 1445 ot the Intet'nal Revenue Code. It: i. under.t:oed that
if' there are multiple Seller., each Beller _ball execute a Trl.I1!lt'.ror !'om at: the
Clo'1ng.
24. B'fteC!tin Date. The affective Date of thi. Agreement and the
"Opening of ..crow" .hall b. the l.lt date oa. "hich all parti.. hereto have:
axecutad th1. Agr..meut.
25, ReC!ordina ot MemorAf'ldU1l'l. n. ~i~~ agree to uecute, .aoknowledge
and "Cord a memorandum of thie Agr....mont. which Buyer COVenant. to r.lu... of
"cord if it terminate. thi. "'mant.
26. .aArHt1onal Wllrr~!'1ti.1I bv S.ll*r.
(A) S.ll.r hereby ropn.ont. and warrant. to Buyer that the Prop.rty
io Dot OOIItandnated with. nor threatened with OOlltamination r>:oll\ out.id.. 'ourceo
by. ....y chemioal. material or .ub.t....c. to whialloxpooure 10 prohibit.d, limited
or regulated.1Jy any federal, .tate, OO\mt.y, loaal or rogiona:. authority or which
10 known to pooe . huard to h.alth ....4 'af.ty and that the Property h... DAtYer
been ua.d. 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 Sallst') ot
any written C:oamunicatione "tween 8eller, Or it. tenantl, or their Agents or
pred.ec.,.o.ra and any third parti.., including but not limited to, govenmental
author.1ti.. relat1w to anya.sardoue Material Ca. <1efinec! below) on, under, in,
about, near or arfecting the Property, and (b) that non-diBcloaure: of -.ny 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 1)
, .
This page intentionally left blank.
3rr7'1
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 W AL-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,,75
(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 "5")
(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 "1" 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. Wal-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 Wal-Mart Parcel shall
be used only for the retail uses authorized by the Entitlements (as defmed in the DDA).
3. Wal-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 Wal-Mart Parcel, prior to the expiration of the Agency's
Option, Wal-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 r-' 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 Wal-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 forth in the
DDA.
IN WITNESS WHEREOF, the Agency, the Seller and Wal-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 CHULA VISTA
Dated:
, 1994
By:
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:
(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
(Pa!!'e 5 of 7)
STATE OF CALIFORNIA
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 CAUFORNIA
)
) 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 CALIFORNIA
)
) ss:
)
COUNTY OF
On , 1994, before me, , personally
appeared , personally
known to me (or proved to me,o)1 the basis of satisfactory evidence) to be the persons whose
names are subscribed to the within instJ....."Ilent, 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 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 TIlE 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 certain 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. Terms not defmed herein shall have the meaning ascribed in the Agreement.
NOW, TIIEREFORE, 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 ($1,915,000.00) 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 terminated.
3. Installment Payment. 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 Wal-
Mart store (the "Store") on the Wal-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.
3.1. Installment payments of principal and interest will be payable quarterly
during the term 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 quarter 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 Uniform Local Sales and
Use Tax Law (the "Sales Tax Law"), commencing 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 defmition 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
quarterly) 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
qUarterly) 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 quarterly) 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 quarterly) 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 determining 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 form 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
terminates 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 termination.
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
terminated.
~~J9
4. Forgiveness and Discharge 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 (iii) the Payment Date in the fIrst quarter in which the Wal-Mart Store ceases
to operate as a Wal-Mart retail outlet.
5. PreDavment. 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 (15) 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 first 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
.J ~9{)
REDEVELOPMENT AGENCY OF THE
CITY OF CHULA VISTA
By:
Its
"Agency"
, .
WAL-MART STORES, INC., a Delaware
corporation
By:
Its
"Redeveloper"
..3 -- 11
EXHIBIT "8"
Form of Option 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
THIS 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 property (the "Property") included within the
boundaries of the Project (the "Project Area "), as such Property is more particularly described
in Exhibit A attached hereto and incorporated herein by this reference. Capitalized terms not
otherwise defmed in this Agreement shall have the same meanings given thereto in the DDA.
B. Under the terms of the DDA, as material part of the consideration to
Agency from Redeveloper for assisting Redeveloper in acquiring and developing the Property,
Redeveloper has agreed to grant the Agency an option to acquire the Property. 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 TIlEREFORE, for good and valuable consideration, the receipt and
suffIciency of which are hereby acknowledged, Agency and Redeveloper hereby agree as set
forth below.
3 -- qJ
ARTICLE I.
Gram 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 defmed 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 from the Property or the improvements thereon, and (iii) the
amount required to discharge, as of the "Close of Escrow" (as such term is defmed 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
Propeny. If Agency and Redeveloper are unable to agree upon the fair market value of
the Propeny Parcel within ten (10) calendar days, then the following provisions shall
apply:
(i) For an additional ten (10) calendar day period, Agency and Redeveloper
shall attempt in good faith to agree on a single appraiser to determine the fair
market value of ~e Propeny. 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
Propeny 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 Propeny, then Agency and Redeveloper shall each,
within ten (10) calendar days after the expiration of the original ten (10) 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 Propeny. 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
Propeny 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 propeny 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 Exceotions. 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 Develooment 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 Easements, and reciprocill 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 virtue 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 permit Escrow Agent to issue the title insurance
described below.
5.4 Redevelooer'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 form 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: Closinl! 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 VII.
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 certified or registered, return 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 part of this Agreement and do not in any way limit or amplify the terms and provisions hereof.
..- .- - . ~
7.3 Governinl! Law. This Agreement shall be governed by and construed
under the laws of the State of California. This Agreement shall be deemed'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 all 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 Al!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 (30) 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 agreement of the parties, and if they carmot 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 fmal, binding and conclusive
and judgement shall be entered pursuant to CCP 644 in any court in the State of California
having jurisdiction. Either parry may apply for a reference at any time after thirty (30) days fol-
lowing the date (the "Claim Date") one parry notifies the other parry of a controversy, dispute
or claim; by filing a petition for a hearing and/or trial. All discovery permitted by this
Agreement (as more particularly provided below), shall be completed no later than fifteen (IS)
days before the first hearing date established by the Referee. The Referee may extend such
period in the event of a parry'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 parry shall be entitled to "priority" in
conducting discovery. Depositions of a parry or its affiliates may be taken by the other parry
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 fmal 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 parry
so requests, a court reporter will be used at any hearing conducted before the Referee. The
parry 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 r' / 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 ENABLING 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 CALIFORNIA 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 LITIGATED 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 CALIFORNIA)
) 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