HomeMy WebLinkAboutRES NO 78-84COUNCIL RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF BAKERSFIELD APPROVING AND AUTHORIZING THE
EXECUTION OF A FOURTH IMPLEMENTATION AGREE-
MENT TO THE DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN THE BAKERSFIELD
REDEVELOPMENT AGENCY AND BAKERFIELD METRO-
POLITAN ASSOCIATION
061584
WHEREAS, the Bakerfield Redevelopment Agency [the
"Agency") and Bakersfield Metropolitan Association (the
"Developer") entered into a Disposition and Development
Agreement dated May 18, 1982, a Second Implementation Agree-
ment' to Disposition and Development Agreement dated June 8,
1983, and a Third Implementation Agreement to Disposition
and Development Agreement dated December 15, 1983, pursuant
to which the Agency agreed to acquire and lease, and the
Developer agreed to lease and develop, certain real property
(the "Site") located within the boundaries of the Downtown
Bakersfield Redevelopment Project (the "Project"); and
~ WHEREAS, the Developer and the Agency now desire to
make certain modifications and additions to the DDA in light
of current conditions; and
WHEREAS, a Fourth Implementation Agreement to the Dis-
poslticn and De~eiopm~ut Agreement [~ne "Lgreement"~ has
been drafted to make such modifications and additions; and
WHEREAS, such modifications and additions do not sub-
stantially change the provisions of the DDA or the consi-
deration to be paid by the Developer for the use of the
Site; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
BAKERSFIELD DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. The City Council hereby approves and autho-
rizes the execution of the Fourth Implementation Agreement
to the Disposition and Development Agreement between the
Agency and the Developer, and the Chairman of the Agency is
hereby authorized and directed to execute said Agreement on
behalf of the Agency.
PASSED AND ADOPTED this 19%h day of September
1984, by the following vote:
AYES:
NOES:
ABSENT:
ATTEST:
AYES: COUNCILMEN:-4~a:'~'f~', CHILDS, CHRISTENSEN. MOORE, PA~N~,.,%&TT¥, ROCKOFF
ABSEN1: COUNCI~EN: ~'r~
City Clerk
APPROVED as to form:
~CITY ATT0~EYVof- the City of Bakersfield
-2-
090584
2123D:CDC
FOURTH IMPI, Et. IENTATION AGREE~4E~T
TO
DISPOSITION AND DEVY£LOP, IENT AGREEMENT
THIS FOURTH IMPLEMENTATION AGREEMENT (the "Fourth
Implementation Agreement") is entered into this ]2th day
of September , 1984, by and between THE BAKERSFIELD
REDEVELOPMEN~ AGENCY, a public body, corporate and politic
(the "Agency") and BAKERSFIELD METROPOLITAN ASSOCIATION, a
California general partnership (the "Developer"), in
implementation of that certain Disposition and Development
Agreement, dated May 18, 1982, a First Implementation
Agreement to Disposition and Development Agreement dated
November 15, 1982, a Second Implementation Agreement to
Disposition and Development Agreement dated June 8, 1983,
and a Third Implementation Agreement to Disposition and
Development Agreement dated December 15, 1983, (hereinafter
collectively referred to, together with this Fourth Imple-
mentation Agreement, as the "DDA"). The Agency and the
Developer hereby agree as follows:
Section 1.
Purpose of this Fourth
~qreement.
Implementation
The purpose of this Fourth Implementation Agreement is
to implement the DDA by clarifying certain provisions
thereof in light of current conditions and the further
planning and decisions of the parties br~reto.
Section 2.
Prohibition Aqainst Chanqe in ~embership,
Ownership, Management and Control of
Develop_q~.
Section 109 of the DDA is revised to read as follows:
"The qualification and identity of the Developer are
of particular concern to the City and the Agency, and it is
because of hhese qualifications and identity and in contem-
plation of the partnership described in this Section that
the Agency has entered into this Agreement with the Devel-
oper. No volunSary or involuntary successor in interest of
Developer shall acquire any rights or powers under this
Agreement except as provided in this Agreement.
"The Developer shall promptly notify the Agency of any
and all changes whatsoever in the identity of the parties
in control of ~he Developer, or the degree thereof, of
which it or a~y o[ it~; o[ficer~ have b~en noti[ie~ or
othe~¥~l~;~ have know]edge or information. ~:xcept ~s pro-
vidc~ i~] th]~; Agre~ment, this Agreement may be terminated
by the Agency i, ursuant to Sectio~ 511 hereof if there is
a~y y~ignificant change (volunt~ry or involuntary) in mem-
bership, ow;]ernhip, management or control of the Developer
or its associates (other than such changes occasioned by
the death or incapacity of an individual) prior to issuance
of a Certificate of Completion for the development of the
Site.
"In accordance with the time limits established in the
Revision No. 4--Schedule of Performance (Attachment No. 5)
the Developer agrees to enter into a general partnership
with Associated Inns and Restaurants Company of America
("AIRCOA") in which AIRCOA will be a general and managing
partner. In accordance with the time limits established in
the Revision No. 4--Schedule of Performance (Attachment
No. 5) the Developer agrees to assign the DDA to the general
partnership composed of the Developer and AIRCOA in a form
and manner approved by the Agency in which the partnership
and AIRCOA as the general partner become responsible for
all the obligations and responsibilities of the Developer
under this DDA.
"Notwithstanding any other provisions of this Agree-
ment, the Developer reserves the right, at Developer's
~discretion~ to join and associate with other entities in
limited partnerships for the purpose of financing the Site
or portions thereof, provided that the Developer ~hall
remain full}' responsible to the Agency under this Agreement.
"The restrictions of this Sect)on 109 shall terminate
upon :.~s~,~ce bv ~be ;gency of ~ Certific~,te of
for the development of the Site."
Section 3. Lease and Development of the Site.
Section 201 oil the DDA is revised to read as follows:
"In accordance with and subject to all the terms,
covenants and conditions of this Agreement: (1) ;Fhe Ager]cy
agrees to make good faith efforts to issue bonds or other-
wise obtain financing and to acquire thoy;e portieres of the
Site that it does not already own. (2) The Agency agrees
to /case the f;ite to the Developer for the construction of
the Hotel, and the Developer agrees to lease the Site from
the Agency for a [~eriod of thirty-£ive (35) year.~; with
two (2} ten (10) yea~ renewal options pursuant to the
Bakersfield Redevelopment Agency/B~ke~sfJe]d ?-:etropolitan
Association Second Amended and Restated I,eaf~c (tile "Lease")
incorporated herein and attac~hed hereto an Attai~hment:~
~o. ,:. (3 5'he Developer agrees to construct, operate and
]~i~ta[n th~ Hotel facilities and surface ~arking, as ~ell
a~; lan~lscape the ~;ite. (4) ~'he Agency reserves the right
to develop or cause the develop~]ent of any facilities it
deep,is desirable in the air rights over the parking facili-
ties located on the Site. (5) The Agency ~ball improve and
expand or cause the improvement and e>[pans]on of the
Bakersfield Civic Auditorium to a multi-use facility as
described in the Revision NO. 2--Scope of Development
(Attachment No. 3).
"The Agency and Developer agree that the Agency's
obligation to acquire the portions of the Site that it does
not already own and to lease the Site to the Developer for
the development of the Hotel is conditioned upon the Devel-
oper obtaining the proceeds of the Industrial Development
Bonds ("IDB") within the time limits specified in the
Revision No. 4--Schedule of Performance (Attachment No. 5),
the Agency or the Developer may terminate this Agreement.
"The Agency and Developer agree that ~ithin the time
specified in the Revision No. 4--Schedule of Performance
(Attachment No. 5), the Developer shall advance an amount
of money, not to exceed $ 20,000.00 , to the
Agency (the "Developer Advance") to enable the Agency to
acquire fouz- -month options to purchase each parcel of the
Site not presently owned by the Agency or City (the
' !~Options"). The Agency's obligation to acquire the Options
shall be subject to its receipt of the entire Developer
Advance. In the event the Agency expends the Developer
Advance in acquiring the Options and the ])eveloper does not
subseGuently obtain the use of the IDB proceeds, the.Agency
may elect not to exercise the Options. The Developer
a~fees and unc~.r%;t~nds ~.hat the Oe~¢~io~er ~dv~n~- ;'i~l be
korfeited in such event. The-Developer agrees not to hold
the Agency liable for any losses incurred by the Developer
in connection with the Developer Advance. If the Agency
purchases the parcels and is given a credit for the option
price, the amount so credited shall be returned to the
Developer."
Section 207 of the DDA is revised to read ~.~; follows:
"No later than December 31, 1983, the Agency shall use
its best efforts to issue Industrial Development Bonds with
an effective interest rate of eleven percent (11%) or less
over a thir[-y (30) year amortization scbc¢]ute for financing
the development of the Site peravant to the Revision
No. 2--Scope of Dcvelot':ment (Attach~aent ~,:o. 3).
-3-
"'l'he Developer shall submit to the Agency evidence of
a lot. tot of credit satisfactory to the Age~y as security
for tho IDB wit:bin the time specified in the Revision
~o. 4--Schec]ule of Performance (Attach~.ent l~o. 5).
"Within the time specified in the Revi.~;ion
No. 4--Schedule of Performance (Attachn{ent ~o. 5), the
Developer shall submit to the Agency a letter of credit or
other evidence satisfactory to the Agency to demonstrate
the Developer's ability to obtain use of the proceeds of
the IDB to develop the Site in accordance with the DDA."
Section 5. ~:odified Basic Concept Drawings.
Section 303 of the DDA is hereby revised to read as
follows:
"Within the time established in the Revision
No. 4--Schedule of Performance (Attachment No. 5), the
Developer shall prepare and submit Modified Basic Concept
Drawings, perspectives and a model for development of the
Site to the Agency for review and written approval. The
Site shall be developed as established in the Modified
Basic Concept Drawings and related documents, except as
changes may be mutually agreed upon between the Developer
and the Agency. Failure by the Agency to make necessary
approvals or disapprovals required by this Section 303
%.lithin such time as is required shall be deemed an
approval. Any disapproval shall state in writing the
reason therefor. The Agency shall cooperate with and
assist the Developer in completing the Modified Basic
Concept Drawings and related documents. The Agency shall
approve or disapprove the Modified Basic Concept Drawings
within ~ i~ime e~,tnb~ished ~n the Revision No. 4--Schedule
of Performance (Attachment No. 5)."
Section 6. Construction Plans~ Drawings and Related
Documents
Section 304 of the DDA is hereby revi~3ed to read as
follows:
",The Developer shall prepare. and submit final con-
struction plans, drawings and related documents for the
improvements to the Site to the Agency for architectural
review and written approval as and at the time established
in the Revision No. 4--Schedule of Performance (Attachment
No. 5). Final plans and drawings are hereby defined as
those in sufficient detail to obtain a building permit.
"The landscaping and finish grading plans shall be
preps]red by Developer's pro~e-~sional landscape architect,
who may be the same firm os the Developer's architect.
-4-
Within the time established in the Revision No. 4--Schedule
of Performance (Attachment No. 5), the Developer shall
submit to the Agency for approval final. landscaping and
finish grading plans.
"Approval of progressively more detailed drawings and
specifications will be granted by the Agency if they are a
well designed, logical evolution of drawings or specifica-
tions previously approved. Any items so submitted and
approved in writing by the Agency shall not be subject to
subsequent disapproval. Agency approval shall not waive
City requirements. The Agency and the Developer shall
communicate and consult informally as frequently as is
necessary to insure that the formal submittal of any
documents to the Agency can receive prompt and speedy
consideration.
"If any revisions or corrections of plans approved by
the Agency shall be required by any govern~nent official,
agency, department or bureau having jurisdiction, or any
lending institution involved in financing, the Developer
and the Agency shall cooperate in efforts to obtain a
waiver of such requirements or to develop ~ mutually
acceptable alternative. If no such alternative is devel-
oped, the Agency shall be bound by such revisions or
corrections if they are not inconsistent with approved
construction drawings a~d related documents.
"In addition to the construction plans, drawings and
related docunents to be submitted by the Developer to the
Agency hereinabove, the Developer shall submit the prelimi-
nary drawings of the Civic Auditorium improvements to the
City Council for approval within the time specified in the
~uvis~on Nc. ~--~ch.~d_.]u of Pu2fcr~a~ce ~Lttnch~ent ~o.
Section 7. Agency Approval of Plan~), Drawin~qs and
Related. Documents
Section 305 of the DDA is hereby revised to read as
follows:
"Subject to the terms of this Agreement, the Agency
shall have the right of reasonable architectural review of
all plans and drawings, including ~ny changes therein. The
Agency shall assist the Developer with any architectural
review required by any agency, dcpartmcnt or board of com-
mission of the City within the times required hereunder for
review of such plans and submissions for building permits
to City departm~nts or other agencies.
"The Agency shall approve or disapprove the architect
plans, drawings a~]d ~elated doctu~ents ref~rred to ~n the
DDA ~;ithin the times established in the R(~vision
-5-
No. 4--Schedule of Performance (Attachment No. 5). Failure
by the Agency to either approve or disapprove within the
tinges established in the Revision No. 4--Schedule of Per-
forlaance shall be deemed an approval. Any disapproval
sh~11 state in writing the reasons for disapproval. The
Developer, upon receipt of a disapproval based upon powers
reserved by the Agcacy hereunder, shall revise such por-
tions in a manner that is not in conflict with previously
approved drawings and related documents.
"If the Developer desires to make any substantial
change in the construction plans after their approval by
the Agency, the Developer shall submit the proposed change
to the Agency for its approval. If the construction plans,
as modified by the proposed change, conform to the require-
ments of Section 304 of the DDA and the Revision No. 3--
Scope of Development (Attachment No. 3), the Agency shall
approve the proposed change and notify the Developer in
writing within thirty (30) days after submission to the
Agency. Such change in the construction plans shall, in
any event, be deemed approved by the Agency unless
rejected, in whole or in part, by written notice thereof by
the Agency to the Developer setting forth in detail the
reasons therefor, and such rejection shall be made within
the said thirty (30)-day period.
"In addition to the Agency approvals of plans, draw-
-ings and related documents hereinabove, the City Council
shall approve or disapprove the preliminary drawings of the
Civic Auditorium improvements within the time specified in
the Revision No. 4--Schedule of Performance (Attachment
NO. 5)."
~Jec'tion t. Re___qi.¢ntihillties_o_~_~ the_ A~=c_I~
Section 314 of the DDA is hereby revised to read as
follows:
"The Agency, without expense to the Developer or
assessment or claim against the Site, shall perform all
work specified in the Revision No. 3--Scope of Development
(Attachment No. 3) for the Agency to perform within the
times specified in the t{evision No. 4--Sc~edule of Perfor-
mance (Attachment No. 5)."
Section 9. Termination b_~ Develo}2~ir_
Section 5]0 of the DDA Js revised to read as follows:
"In the event that the Agency ]o~.~ not or is
for a~y reason to grant the leasehold interest in
or possession her ~f in the manner and contrition
unable
the Site,
and by
the date provided in this Agreement, and any such failure
shat] not. be cured within thirty (30) day~: afte~ the date
of ¥:~itten demand by Developer, this agreement may be ter-
minated by written notice thereof to the Agency. The
Agency, in this event, shall re]ease and/or return the
deposit and interest earned thereon, if any, to the Devel-
oper. In the event the Developer is unable to obtain a
letter of credit and the use of proceeds of the IDB as
provided in Section 207, the Developer may terminate this
Agreement and receive from the Agency the return of Devel-
oper's Deposit and interest earned thereon, if any. In the
event the City's ordinances prohibit the standards described
in the Revision No. 2--Scope of Development (Attachment
No. 3) at the time of the submittal of the Modified Basic
Concept Drawings to the Agency, the Developer may terminate
this Agreement by written notice. Upon receipt of such
written notice, the Agency, within thirty (30) days, shall
return the Deposit and interest earned thereon, if any, to
Developer. Upon such termination, neither Agency nor the
Developer shall have any further rights against or liability
to the other under this Agreement, and no further damages
or additional sums shall be required of the Agency, City or
Developer."
Section 10. Termination by Agency
Section 511 of the DDA is revised to read as follows:
"In the event that prior to commencement of the term
of the Lease:
"(a)
The Developer (or any successor in interest)
assigns, or attempts to assign, the Agreement or
eny rights therein or a significant change in
ownership or identity of the Developer or the
parties in control of the Developer occurs in
violation of this Agreement or the Developer
fails to assign the DDA to a partnership in which
AIRCOA is a member; or
- (b)
~'he Developer does not submit the plans or
drawings as required by the Agreement by the
dates respectively provided in the R~vision
No. 4--Schedule of }~erformance (Attachment No.
or the Agency and/or City Council does not
approve said plans as submitted; or
5)
? (c)
The Developer is unable to obtain a letter Of
credit and the use of pro¢;eed~: from the
required by Section 207 of thi.~; Agreement; or_
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"(d)
r~'he Developer does not satisfy conditions or take
neces-~;ary actions and communications in order to
~ccept the grant of the leasehold interest under
tender of such interest by the Agency pursuant to
the Agreement; and
"
If any default or failure referred to in subdivi-
sions (b), (c) and (d) of this Section shall not
be cured within thirty (30) days after the date
of written demand by the Agency; or
"(f)
The Agency does not or is unable for any reason
to tender possession of the Site to the Developer
and connmence the term of the Lease within the
times (including any specifically allowed exten-
sions of times) and in the manner required by
this Agreement;
then this Agreement, and any rights of the Developer, or
any assignee or transferee in this Agreement pertaining
thereto, or arising therefrom with respect to the Agency,
shall, at the option of the Agency, be terminated by the
Agency by written notice thereof to the Developer. In the
event of such termination of this Agreement pursuant to
subsections (a) through (e), inclusive, or pursuant to
subsection (f), if Agency's failure to perform shall be due
to a default or failure on the part of the Developer to
perform under this Agreement, the Deposit and ~nterest
earned thereon, if any, shall be retained by the Agency as
liquidated damages and as its property without any deduc-
tion, offset or recoupment whatsoever. In the event of
termination of this Agreement by the Agency pursuant to
subsection (f}, where the Agency's failure to p~rform shall
t~ ~ue .to f~-~sb~73 other than a de~aul~ or failure on t'~e
part of Developer to perform under this Agreement, the
Deposit and interest earned thereon, if any, shall be
returned to the Developer, and neither the Developer nor
the Agency shall have any further rights against or liabil-
ity to the other under this Agreement. Except, however,
the Deposit and interest carned thereon, if any, shall be
returned if Developer has sought in good faith and made
bona fide attempts to obtain the letter of credit and the
use of proceeds from the ID~ required by Section 207 of
this Agreement. ~
"If the Developer should defau}t npon its obligsti0ns,
making it necessary for the Agency to terminate this Agree-
mont ant] to procure another party or parties to redevelop
the Site in substantially the manner and ~.;ithin the period
that such Site would be redeveloped uuder the terms of this
Agreement, then the damages suffered by the Agency by
reason thereof would be uncertain. Such dnmages would
-8-
involve au(:h w~.riable i:actor.t a.~; the consideration which
such pdrty would pay for the .(;itc; the expenses of continu-
ing the ownership and control of the .~;ite; of interestin~j
and negotiating with such parESes; postponement of tax
revenues therefrom to the community; the failure of tax
revenues therefrom to the community; and the failure of the
Agency to effect its purposes and objectives within a
reasonable time, resulting in additional immeasurable
damage and loss to the Agency and the conumunity. It is
impracticable and extremely difficult to fix the amount of
such damages to the Agency, but the parties are of the
opinion, upon the basis of all information available to
them, that such damages would approximately equal the
amount of. the Deposit held by the Agency at the time of the
default of the Developer, and the amount of such Deposit
shall be paid to the Agency upon any such occurrence as the
total of all liquidated damages for any and all such
defaults and not as a penalty. In the event that this
paragraph should be held to be void for any reason, the
Agency shall be entitled to the full extent of damages
otherwise provided by law.
"Developer recognizes that Developer's prompt develop-
ment of the Site in accordance with this A~reement is of
critical importance to the Agency's ability: (1) to carry
out its other activities within the Redevelopment Project,
and (2) to issue additional tax allocation bonds or obtain
:other financing from the tax increment which will be
generated by this development."
Section 11. R_~ght of Lease Termination
Section 512 of the DDA is revised to read as follows:
"The A~ency shall have the additional right, at its
option, to re-enter and take possession of the Site, with
all improvements thereon, and to terminate and revest in
the Agency all interest in or rights to the estate granted
to the Developer, if, after granting a leasehold interest
in the Site and prior to the recordation of the Certificate
of Completion for deve]opmeut of the Site, the Developer
shall:
"(a)
Fail to submit to the Agency and/or City Council
any required plans, drawings or related docu-
mentS, or shall fail to perform or is in default
with respect to any other cove~ant or obligation
required prior to the corp. mencement of construc-
tion, in the manner and within the time prescribed
in the Revision No. 4--~;chedule of Performance
(Attachment No. 5); or
f'a]l to commence con.~truction o£ the improvements
as required by this Agreement for a period of
ninety (90) days after written notice to proceed
from the Agency, provided that Developer shall
not have obtained an extension or postponement .to
which Developer may be entitled; or
"
Abandon or substantially suspend construction of
the improvements for a period of ninety (90) days
after written notice of such abandonment or sus-
pension from the Agency, provided that Developer
shall not have obtained an extension or postpone-
ment to which Developer may be entitled; or
"
Transfer or suffer any involuntary transfer of
rights to and interest in the Site, or any part
thereof, in violation of this Agreement, and such
violation shall not be cured within ninety (90)
days after written demand by Agency to Developer.
"The right to re-enter, terminate all of Developer's
rights and revest shall be subject to and be limited by and
shall not defeat, render invalid or limit:
"(a) Any mortgage, deed of trust or other financing
interest permitted by this Agreement; or
"(b)
Apy rights or interests provided in this Agree-
ment for the protection of the []elders of such
mortgages, deeds of trust or other financing
interests.
"The Lease (Attachment No. 4) shall contain appro-
~Jiatu ref~ren~c a~d pr~vislon to give effect to the
Agency's right, as set forth in this Section 512, under
specified circumstances prior to recordation of the Cer-
tificate of Completion for the Site to re-enter and take
possesion of the Site, with all improvements thereon, and
to terminate and revest in the Agency any estate granted to
the Developer.
"Upon revocation of all Developer's rights in the
Site, or any part thereof, by the Agency £~s provided in
this Section, the Agency shall, pursuant to its respOnsi-
bilities under state law, use its best efforts to lease or
sell the Site, or part thereof, as soon and in such manner
as the Agency shall find feasible and con~_~istent with the
objectives of such law and of the Redevelopment Plan to a
qualified and responsible party or partic-~; (as determined
by the Agency) who will assume the obligation of making or
completing the improvement, or such other improvements in
their stead, as shall be satisfactory to the AgenCy and in
ac¢'~rda~]ce w~th the uses specified for the S~te in the
I~ccl£~velo~)ment Plan. Uf~on such ].ease or ~;~le of the Site,
the proceec]s thereof shall be applied:
"(a)
~'irst, to reimburse the Agency on its own behalf
or on behalf of the City for all costs and
expenses incurred by the Agency, including, but
not. limited to, all costs o~ acquisition, sala-
ries to personnel engaged in such action (but
excluding Agency's general overhead expense) in
connection with the recapture, management, lease
or sale of the Site, or part thereof (but less
any income derived by the Agency from the Site,
or part thereof, in connection with such manage-
meat); all taxes, assessments and water and sewer
charges with respect to the Site, or part thereof
(or, in the event the Site is exempt from taxa-
tion or assessment or such charges during the
period of ownership, then such taxes, assessments
of charges, as determined by the Kern County
assessing official, as would have been payable if
the Site were not so exempt); any payments made
or necessary to be made to discharge or prevent
from attaching or being made any subsequent
encumbrances or liens due to obligations incurred
with respect to the making or completion of the
agreed improvements, or any part thereof, on the
S~te, or part thereof; any amounts otherwise
owing the Agency by the Developer and its suc-
cessors or transferees; and
"(b)
Second, to reimburse the Developer, its successor
or transferee up to the amount equal to the cost
incurred] by ~Pe ~)~veloper for tb~- de~,~lopment on
the Site and for the Developer's improvements
existing on the Site at the time of the re-entry
a~nd repossession, less any gains or income with-
drawn or made by the Developer from the improve-
mcnts on the Site.
"Any balance remaining after such reimbursements shall
be retained by the Agency as its pro~erty. To the extent
thc. t the rights e~tablishcd in this ~C~ection involve a for-
£eiture, it must be strictly interpreted against the
Agency, the party for whose benefit it is creat_:']. The
rights est~blished in this Section 5]2 are to b%~ inter-
preted in light of the fact that the Agency will convey the
leasehold interest in the Site to the Developer for devel-
opment and not for speculation in undeveloped land."
~c~c:~ion 12. Operations: and F]a' 'r, -~ ~-p
_ lr~ nc n~. _ A[[reement
Section 704 of the DI)A il; addeel to re~d as follows:
"The Agency and the Developer agree to enter into an
Operations and £4aintenance Agreement within the times
established by the Revision No. 4--Schedule of Performance
(Attachment NO. 5)."
Section 13. Schedule of Performance.
The Revision No. 3--Schedule o~ Performance, Attach-
ment No. 5 of the DDA, is hereby revised in the form
attached hereto as "Attachment No. 5, Revision No. 4--Sche-
dule of Performance," and by this reference is made a part
hereof, and is hereby substituted for the Revision
No. 3--Schedule of Performance and made a ~art of the DDA.
Section 14. Controlling Effect of this Fourth
Implementation Agreement.
Except as modified and amended in this Fourth Imple-
mentation Agreement, all other provisions of the DDA not
inconsistent herewith shall remain in full force and effect.
into
IN WITNESS WHEREOF, the parties hereto have entered
this Agreement as of the date first above written.
BAKERSFIELD REDEV~2LOPMENT AGENCY
C~irman
By
Secretary
"AGENCY"
-12-
ATTAGiIMBN~
REVISION NO. 4--SC}IEDULE OF
Action
.Date.
Execution of Fourth I~lemen-
tation Agreement bZ the
~gen~. The Agency'and the
City Council shall authorize
execution of the Agreement
and execute and deliver the
Agreement to the Developer.
Within 30 days after adoption
of this Aureement by Agency
and Council.
Issuance of Bonds by Agency.
~he Agency shall issue Indus-
trial Development Bonds
("IDB") for Developer's
development of the Site.
No later
1983.
than December 31,
Developer and AIRCOA Ente__r
Into General Partnership
A_greemen~. The Developer and
AIRCOA shall enter into a
general partnership with
AIRCOA as a ~eneral partner.
Prior to execution of this
Agreement by the Agency.
.As~_m~nt of D[~ to General
?artnershi~p. The DDA shall
be assigned to the general
partnership established by
~.Z2CCA and the
Prior to execution of this
Agreement by the Agency.
Submittal of Modified Basic
Concept Drawings by [)eveloper.
Developer shall prepare and
submit to the Agency for
approval the modified Basic
Concept Drawings and related
documents for the development
of the improvements on the
Site.
A_~proval ~2;_.__t~e ;_~j~p_cy~ of the
Modi£ ied Basic
jng~. The Agency shall
review and approve or dis-
approve the ~4odif~ed Basic
Concep~ Drawings, and related
documents;.
No later
No later
than August 29, 1984.
than August 29, 198~i'
Attachment ~,:(). 5
Page 1 o£ 4
10.
11.
12.
Developer Submits Evidence o~
Letter o[ Credit. The Devel-
oper shall submit evidence of
a letter of credit satisfac-
tory to the Agency as security
for the IDB.
_Approval by the Agency of
Evidence of Letter of
Credit. The Agency shall
review and approve or dis-
approve the Developer's
evidence of letter of credit.
Developer Advance for Options
to Purchase. The Developer
shall advance funds to the
Agency necessary for the
Agency to acquire options to
purchase each parcel of the
Site.
Agency Purchase Options. The
Agency shall co~m~ence enter-
ing into options to purchase
each parcel of the Site.
~eloper Obtains Letter of
Credit and Us~ of Bonds Pro-
ceeds. The Developer shall
obtain the Letter of Credit
(c~ o~ae~ evidence; ~nd dse
of the proceeds of the
satisfactory to the Agency to
demonstrate the Developer's
ability to develop the Site
in accordance with the DDA.
Issua]~ce of Bonds b_y_ Aqen_f.~y~.
1'he Agency shall seek to
issue bonds or otherwise
obtain necessary funds to
acquire the Site, relocate
any occupants of the Site,
and construct the Civic Audi-
torinm improvements.
Attachm~nt ~o.
Page 2 of 4
Date
No later than At]gust 31, 1984.
No later than September 12,
1984.
Within 10 days after
execution of the Fourth
Implementation Agreement.
Following receipt of funds to
be advanced by the Developer.
No later than November 14,
1984.
Upon approval by the Agency
of a letter of credit or
other evidence submitted by ' '
the Developer to secure the
IDB and the release of the
proceeds of the IDB to the
Developer for the development
of the Site.
5
~ct ion
Submittal of Civic
14.
15.
16.
]7.
At]<]it o rium
~mprovements Preliminary
I33awinq~s. Developer shall
prepare and submit to the
Agency and City Preliminary
Drawings of the Civic Audi-
torium improvements.
A_~roval by the A~enc3 and
City of the C~vic Auditorium
Improvements Preliminar~
Drawinqs. The Agency and
City shall review and approve
or disapprove the Civic Audi-
torium Improvements Prelimi-
nary Drawings.
Acquisition of Title and
Possession to All Properties
Comprisinq the Site, Demoli-
tion and Site Clearance. The
Agency shall acquire posses-
sion to the Site, relocate
occupants, and demolish,
clear and prepare the Site
for delivery no the Developer.
Execution of Lease for the
Site. The Developer and the
Agency shall enter into the
Lease for the Site.
Execration of Operations and
Haintenance A~reement. R'he
Developer and Agency shall
enter into a mutually accept--
able Operations and Mainte-
nance Agreement for the
improved Civic Auditorium
facilities.
Date
No later than October 17,
1984.
Within 30 days after receipt
by the Agency and City.
Upon receipt of funds by the
Agency from the Agency's bond
issue or from other sources,
but in any event, the Agency
shall not be required to
begin acquisition sooner than
the Developer's receipt of
proceeds from the IDB for the
development of the Site. The
Agency shall commence obtain-
ing possession, and within
1 year complete such activi-
ties and deliver possession
of the Site to the Developer.
Within 30 days after the
Agency has acquired posses-
sion to the Site, relocated
aDy occupants and cleared the
Site.
Prior to execution of Lease
for the Site.
Attachment No. 5
Page 3 of 4
19.
20.
21.
23.
Ac: t J o a
Submit Final Work~n~q~LDrawinc s
The Developer shall prepare
and submit Final Working
Drawings and Landscaping and
Grading Plans and specifica-
tions to the Agency.
A_j2proval of Final Workin~
Drawiugs, Lan~scapinq and
Grading Plans. The Agency
shall approve or disapprove
Final Working Drawings and
Landscaping and Grading plans
submitted by the Developer.
Completion of Final Working
~rawinqs of Civic Auditorium
Improvements. The Agency
shall complete the Final
Working Drawings of the Civic
Auditorium Improvements.
Commencement of Construction.
The Developer shall commence
construction of the Hotel and
related facilities.
The Agency shall commence and
complete the Agency off-site
improvements for the Site.
Completion of Construction.
The Developer shall complete
construction of the improve-
ments to the Site.
Date
WSthin ]20 days after the
Agency's aS~proval of the
Modified Dasic Concept
Drawings.
Within 30 days after receipt
by the Agency.
No later than the time of
Agency approval of the Final
Working Drawings of the Site.
Within 45 days after approval
of the Final Working Drawings
or when the Agency acquires
possession of the Site and
conveys leasehold interest to
the Developer, whichever is
later.
On a sc:h£~]ile which
coordinat~ with the Devel-
oper's construction schedule
for development of the Site.
Within 18 ~onths after com-
mencement of construction.
A t tacJlmen t No.
t'age 4 of 4