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EXECUTION VERSION
LAND DISPOSITION AGREEMENT
(POINT MOLATE)
This Land Disposition Agreement (this “Agreement”) is entered into as of November 9, 2004, by and between the City of Richmond, California (the “City”) and Upstream Point Molate LLC, a California limited liability company (the “Developer”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms on Exhibit A hereto.
The United States of America, acting by and through the Department of the Navy (the “Navy”), recently quitclaimed to the City approximately two hundred twenty (220) acres of upland and approximately one hundred thirty-four (134) acres of tidal and submerged real property described on Exhibit B-1 (the “Owned Land”), together with all buildings, improvements, and related and other personal property located thereon, and all rights, tenements, hereditaments, and appurtenances belonging, or in any wise appertaining, including fixtures, structures, mineral rights, water rights, appurtenant easements, rail lines and utility lines, alleys, roads, streets ways, strips, gores or railroad rights of way upon the Owned Land, and any means of ingress and egress appurtenant thereto (collectively with the Owned Land, the “Owned Property”) which is a portion of the former Naval Fuel Depot Point Molate (“NFD Point Molate”), and the Navy is expected to quitclaim to the City an additional approximately fifty-one (51) acres of upland, which is described on Exhibit B-2, which constitutes the remainder of NFD Point Molate (the “Remainder Land”), together with corresponding improvements and appurtenances thereto (collectively with the Remainder Land, the “Remainder Property”). The Owned Property and the Remainder Property, are referred to collectively as the “Property”). The portion of the Property included in the proposed Bay Trail and all of the Property on the bay side of the proposed Bay Trail is referred to as the “Shoreline Property” and the portion of the Property not included in the Shoreline Property is referred to as the “Inland Property”. Both the Shoreline Property and the Inland Property are comprised of both Owned Property and Remainder Property.
WHEREAS, the City desires to sell the Inland Property and lease the Shoreline Property to the Developer, and Developer desires to purchase the Inland Property and lease the Shoreline Property from the City, on and subject to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of, and premised upon, the various representations, warranties, covenants and other agreements and undertakings of the parties contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Developer agree as follows:
ARTICLE 1. TRANSFER OF PROPERTY
1.1 Transfer of Property.
(a) City agrees to sell the Inland Property to the Developer and lease the Shoreline Property to the Developer and the Developer agrees to buy the Inland Property and lease the Shoreline Property from the City, on and subject to the terms, covenants and conditions set forth herein.
(b) The City’s agreement to sell the portion of the Inland Property and lease the portion of the Shoreline Property which is included in the Remainder Property to Developer is contingent upon the Navy’s transfer of the Remainder Property to the City, as provided in Section 2.3 below. If, notwithstanding the Developer’s performance of its obligations under Section 2.3 below, such transfer of the Remainder Property to the City has not occurred prior to the Closing, Developer shall have the right to proceed with the Closing of the Owned Property and the City and the Developer shall negotiate in good faith as to a reduction in the Purchase Price, if warranted, to reflect the exclusion of any portion of the Inland Property which is included in the Remainder Property, and if the Developer elects to proceed with the purchase and lease of the Owned Property, (i) Developer may continue with efforts to obtain the conveyance of the Remainder Property by the Navy after Closing, (ii) the City shall cooperate with and assist Developer in such efforts (at no material cost to the City), (iii) if the Remainder Property or any portion thereof is subsequently conveyed to the City, the City shall, upon direction from Developer, promptly sell or lease, as appropriate, such Remainder Property to Developer or its designees, and (iv) if, as and when any portion of the Remainder Property which is Inland Property is conveyed to Developer or its designees, any portions of the Purchase Price which the parties agreed to reduce shall be paid to City (or an appropriate portion thereof if less than all of the Inland Property which is included in the Remainder Property is so conveyed).
(c) The City shall lease the Shoreline Property to the Developer (or the Developer’s assignee) (in either case, the “Tenant”) for the maximum term permitted by law, currently, not less than 50 years (the “Shoreline Lease”), and grant the Tenant a permanent easement for ingress and egress over and non-exclusive use, consistent with the Design Concept Documents, of the Shoreline Property commencing upon the expiration of the Shoreline Lease. The Shoreline Lease shall: (i) provide for rent of $1, (ii) provide the City with permanent conservation easements, or another mechanism acceptable to the City in its sole discretion and approved by BIA, to assure permanent open space status and public access to the open space portions (as finally determined in the Design Concept Documents as approved by the City) of the Shoreline Parcel (the “Bay Trail and Open Space Rights”), (iii) provide that the construction and maintenance of the Bay Trail on the Shoreline Property will be undertaken by the Tenant at the Tenant’s expense pursuant to the Bay Trail Design Guidelines promulgated by the Association of Bay Area Governments and the State of California Parks and Recreation Department as part of the first phase of construction of the Project, (vi) provide that the Tenant will repair and maintain shoreline rip rap for erosion control and (v) contain such
(a) The Non-refundable Consideration paid to the City shall be credited against the Purchase Price.
(b) Developer shall pay to the City in immediately available funds by wire transfer to an account designated by the City a sum equal to the difference between $20,000,000 and the Non-refundable Consideration previously paid to the City.
(c) The Developer shall deliver to the City a promissory note in the principal sum of $30,000,000 bearing interest at a variable rate per annum equal to the 30-day London Interbank Offering Rate plus 1.1% and in substantially the form attached hereto as Exhibit C (the “Note”). The Note shall provide for annual principal payments of $2,000,000 to the City. In addition, the Developer shall deliver a guaranty of the Note from a guarantor (the “Note Guarantor”) whose long-term debt is rated in one of the four highest rating categories (without regard to “+”, “-” or numerical modifiers) by Moody’s Investors Service or Standard & Poor’s Ratings Group (a “Qualified Guarantor”), in substantially the form attached hereto as Exhibit D.
1.5 Condition of Title. Upon Closing, the City shall convey the Inland Property to Developer or its designee by quitclaim deed (the “Deed”). At Closing, the Property shall be free and clear of all liens, encumbrances, clouds and conditions, rights of occupancy or possession, except the Permitted Exceptions. By acceptance of the Deed and the Shoreline Lease and the Closing of the purchase and sale and lease of the Property, (i) Developer agrees it is assuming for the benefit of City all of the obligations of City with respect to the Permitted Exceptions from and after the Closing, and (ii) Developer agrees that City shall have conclusively satisfied its obligations with respect to title to the Property. The provisions of this Section shall survive the Closing. Delivery of title in accordance with the foregoing shall be evidenced by the willingness of Fidelity National Title Company or any other title company reasonably satisfactory to Developer (“the Title Company”) to issue, at Closing, its Owner’s/Leasehold ALTA Policy of Title Insurance in the amount of the Purchase Price showing (i) fee title to the Inland Property which is Owned Land and, if appropriate, the Remainder Land vested in Developer, and (ii) a leasehold estate in the Shoreline Property which is Owned Land, and if appropriate, the Remainder Land, vested in Developer, all subject to the Permitted Exceptions (the “Title Policy”). Developer shall prepare, at Developer’s cost, any survey of the Inland Property necessary to support the issuance of the Title Policy. Developer shall provide City with a copy of such survey at no cost to City.
ARTICLE 2. DEVELOPMENT OF THE PROPERTY
2.1 Design Concept Documents.
(a) The Preliminary Site Plan and the Scope of Development together constitute the preliminary “Design Concept Documents”. The Developer acknowledges that the City has not yet approved the Design Concept Documents or the development of the Project on the Property. The Design Concept Documents will be modified in response to the
environmental review process described in Section 2.2(a). Upon completion of that process, the Developer will submit the final Design Concept Documents to the City for its approval.
(b) The Developer agrees to use commercially reasonable efforts to obtain all permits, approvals, consents and financing necessary to develop the Property with the improvements described in the Design Concept Documents. In order to develop the Project in accordance with the Design Concept Documents, at Closing Developer intends to assign its rights to purchase and lease the Property to the Guidiville Band of Pomo Indians of the Guidiville Rancheria (listed in the Federal Register as the Guidiville Rancheria of California) (the “Tribe”), and City consents to such assignment. As a condition to such assignment, and to any transfer of the Property to the Tribe, the Tribe must execute a Services Agreement substantially in the form attached hereto as Exhibit E and a adopt a First Source Agreement substantially in the form attached as Exhibit F as provided in Section 5.4 of the Services Agreement.
2.2 Environmental Documentation.
(a) Prior to Closing, Developer shall prepare and submit to the City such plans, specifications, drawings, and other information, as specified by the City, which are reasonably necessary for the City to perform any City, building, planning, zoning or environmental review process related to the development of the Property which the City determines are required or as provided in the Design Concept Documents. Developer may also be required by NEPA and, to the extent applicable, CEQA, to prepare and submit additional information needed to supplement the previous environmental analyses to state and/or federal governmental agencies for approval. Developer shall provide the City any updated documentation of the Project in order to facilitate the City's performance of the environmental review process, including any required public hearings. Prior to Closing, the Developer is required to process all its development applications for review by City staff to determine compliance with any environmental or other discretionary review that complies with the process set out in CEQA or NEPA, as applicable. No final determination is made at this time as to the scope and nature of the Project. Such final determination will be made after consideration of the CEQA and NEPA review process, as applicable, and may include “no project” or “reduced project” alternatives. Developer shall not receive any refund of the Non-refundable Consideration if this Project is disapproved or if the Project or the Design Concept Documents are required to be modified by the City or any other party in connection with the review process or if the Project otherwise becomes legally or economically infeasible. To the extent that CEQA compliance is required for any City or State approvals, Developer will fund required studies and will promptly pay upon invoice all of the City’s reasonable legal, engineering and consulting costs in connection with such review, and the City will diligently process the required CEQA certifications.
(b) After the completion of the environmental review process, and after the City has approved the Design Concept Documents, any proposed material change, modification, revision or alteration of the Design Concept Documents shall be submitted promptly for approval by the City Council. A material change, modification, revision or alteration of the
Project without contribution or guaranty of any kind by the City. If requested by the Developer, the City will use its best efforts to assist in providing conduit financing in order to allow the financing to be tax-exempt under federal and state law; provided, that (i) in no event shall the City be required to contribute funds, or lend its credit or guaranty of any kind to such financing and (ii) if such financing is undertaken, the City may retain reasonable fees (subject to applicable legal limits) to compensate it for providing such financing. In the event the City undertakes such financing, all professionals involved in the offering (including bond counsel, disclosure counsel, financial advisors and underwriters) shall be subject to the reasonable approval of the City.
2.6 Protection of Hillside Open Space and Historic Preservation. The Developer and the City have a mutual interest in protecting open spaces in the Property and to preserve a reasonable amount of the natural and scenic qualities within the Property which distinguish it from other regions of the City. The Developer shall manage all Hillside Open Space, historic preservation and permitting and entitlement activities required for the development of the Property to proceed. All historic preservation activities shall follow the United States Secretary of the Interior’s Standards and Guidelines. The City and the Developer agree that at Closing Hillside Open Space shall be subjected to permanent conservation easements, public access easements or other enforceable mechanisms acceptable to the City in its sole discretion and approved by BIA after completion of the environmental review process described in Section 2.2(a) and approved by the City to protect the Hillside Open Space and to assure public access in perpetuity. Such easements or other mechanisms shall not subject to termination or reduction by the Developer, the Tribe, BIA or pursuant to eminent domain or other procedure. The Developer agrees to provide a mechanism reasonably acceptable to BIA and the City to provide for and fund the maintenance and preservation of the Hillside Open Space, all as described in the Design Concept Documents.
2.7 Support for Trust Application. In consideration for the obligations undertaken by the Developer herein, upon Developer’s request the City shall provide correspondence to the BIA, and to the Governor of the State of California, and the County of Contra Costa which supports the application of the Tribe to the United States and requests that the United States to take the Property into trust for the benefit of the Tribe, and respond to inquiries about the Tribe’s trust application from the BIA, the State of California and the County of Contra Costa in a manner that is consistent with the intent of this Agreement. The City shall also urge the Governor of the State of California to negotiate and execute with the Tribe a Compact for gaming purposes in accordance with the intent of this Agreement and the Services Agreement, and shall work proactively with the County of Contra Costa and other governmental agencies to help resolve any impediments to the approval process.
2.8 Alternative Proposal. The City acknowledges that uncertainty exists concerning the feasibility of developing Indian gaming uses on the Property due to a variety of federal, state and local permitting issues, federal land in trust issues, state compact issues and local City revenue sharing issues. If it is determined that the development of Indian gaming uses on the Property is not commercially feasible or not
legally permitted, the Developer may purchase and lease the Property without any involvement by any Native American tribe, and, prior to the Closing Date, the Developer and the City shall negotiate exclusively in good faith for a period not to exceed one hundred twenty (120) days with respect to an alternative development proposal and, if such negotiations are successful, execute an amendment to this Agreement to reflect such alternative proposal ; provided, that Developer will be required to submit land use and building plans for such alternative proposal to the City for its discretionary approval in accordance with all applicable federal, State and local laws, rules and regulations. In such redesign Developer shall have the right to alter the distribution of uses in the Property to substitute other uses, subject the consent of the City and compliance with all applicable local, state and federal laws, rules and regulations. If Developer purchases and leases the Property pursuant to this Section 2.8 (rather than the Property being transferred to the Tribe), the Deed and the Shoreline Lease shall contain a restriction which prevents the Property from being used for any gambling or gaming purpose unless expressly permitted by an agreement between the owner of the Property and the City which contains terms no less favorable to the City than those contained in this Agreement and the Services Agreement.
2.9 Financing Plan. (a) As a condition to Closing, Developer or the Tribe will submit evidence reasonably acceptable to the City reflecting the availability of the necessary funds to complete the entitlement, acquisition, remediation, and construction of Phase 1 of the Project. Such evidence may include (i) a certified financial statement of the Developer, the Tribe or any Qualified Guarantor, (ii) a certification in writing from a financial institution doing business in California in which Developer, Tribe or any Qualified Guarantor has deposited funds or (iii) other forms of security, reasonably satisfactory to the City evidencing sources of capital sufficient to demonstrate that the Developer or Tribe has adequate funds available. Such documents are collectively referred to as the Financing Plan.
(b) Upon receipt by the City of the Financing Plan, the City shall promptly review and approve or disapprove such Financing Plan within thirty (30) days after submission. If such Financing Plan is not approved by the City, the City shall set forth in writing and notify Developer of the reasons therefor. Developer shall thereafter resubmit a revised Financing Plan to the City for its approval within thirty (30) days of the City's notification of disapproval. The City will either approve or disapprove the revised Financing Plan within fifteen (15) days of resubmission by Developer or the Permitted Assignee. If the City does not approve or disapprove the revised Financing Plan in writing within fifteen (15) days after receipt the revised Financing Plan, the Developer may provide the City Manager with written notice that the City’s failure to approve or disapprove the revised Financing Plan within fifteen (15) days after such written notice is received by the City Manager shall be deemed to be approval of the revised Financing Plan by the City. If the City fails to approve or disapprove the revised Financing Plan within fifteen (15) days after the receipt of such notice by the City Manager, the revised Financing Plan shall be deemed approved.
2.10. Exclusivity Agreement. During the term of this Agreement, and during the term of the Services Agreement as provided therein, the City covenants that it will not
3.3 Developer’s Approval of New Leases and Agreements Affecting the Property.
(a) Between the date hereof and the Closing, City, as owner of the Property, shall not enter into any new lease or other agreement affecting the Property, or modify or terminate any existing agreement affecting the Property to which City, as owner, is a party, without first obtaining Developer’s approval, which will not be unreasonably withheld or delayed. Developer may disapprove any lease that does not terminate prior to Closing. If Developer fails to give City notice of its approval or disapproval of any such proposed action within ten (10) business days after City notifies Developer in writing of City’s desire to take such action, then Developer shall be deemed to have given its approval.
(b) Prior to the Closing the City shall provide the Developer and its agents, employees and contractors with reasonable access to the Property to investigate any and all aspects of the Property. In connection with any entry by Developer, or its agents, employees or contractors onto the Property, Developer shall give City reasonable advance notice of such entry and shall conduct such entry and any inspections in connection therewith in a manner reasonably acceptable to City. Without limiting the foregoing, prior to any entry to perform any on-site testing, Developer shall give City written notice thereof, including the identity of the company or persons who will perform such testing and the proposed scope of the testing. City shall approve or disapprove, in City’s reasonable discretion, the proposed testing within three (3) business days after receipt of such notice. If City fails to respond within such three (3) business day period, the Developer may provide the City Manager with written notice that the City’s failure to approve or disapprove the proposed testing within five (5) days after such written notice is received by the City Manager shall be deemed to be approval of the proposed testing by the City. If the City fails to approve or disapprove the proposed testing within five (5) days after the receipt of such notice, the City shall be deemed to have approved the proposed testing. City or its representative may be present to observe any testing or other inspection performed on the Property. The Developer shall meet with the City periodically to update the City as to the results of its investigations and testing and, shall upon the request of City, deliver to City, at least ten (10) days prior to Closing or upon any termination of this Agreement, copies of any reports relating to any testing or other inspection of the Property performed by Developer or its agents, employees or contractors. Developer shall maintain, and shall assure that its contractors maintain, public liability and property damage insurance in amounts and in form and substance adequate to insure against all liability of Developer and its agents, employees or contractors, arising out of any entry or inspections of the Property pursuant to the provisions hereof, and Developer shall provide City with evidence of such insurance coverage upon request by City. Developer shall indemnify and hold the City Related Parties harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney’s fees) arising out of or relating to any entry on the Property by Developer, its agents, employees or contractors in the course of performing the inspections, testings or inquiries provided for in this
(1) funds necessary to close this transaction;
(2) the Shoreline Lease;
(3) the Note and Guaranty;
(4) the Services Agreement;
(5) such certificates, resolutions and opinions with respect to the Developer, the Tribe and the Note Guarantor as City may reasonably request; and
(6) a reaffirmation of the release set forth in Section 3.2.
4.4 Prorations.
(a) Rents, real property taxes and assessments; water, sewer and utility charges; amounts payable under any service contracts; and any other expenses of the operation and maintenance of the Property (including, without limitation, expenses already paid by City but which are being amortized over time by City and with respect to which City shall receive a credit at Closing in the amount of the unamortized portion thereof), shall all be prorated as of 12:01 a.m. on the date the Deed is recorded, on the basis of a 365-day year. City and Developer hereby agree that if any of the aforesaid prorations and credits cannot be calculated accurately on the Closing Date, then the same shall be calculated as soon as reasonably practicable after the Closing Date and either party owing the other party a sum of money based on such subsequent proration(s) or credits shall promptly pay said sum to the other party.
(b) City shall pay one-half (½) of the escrow fee, one-half (1/2) of the cost of the Title Policy (provided that the City’s share shall not exceed $25,000), any county transfer taxes applicable to the sale, and one-half (½) of any other transfer taxes legally applicable to the sale. Developer shall pay the one-half (1/2) of the Cost of the Title Policy up to a total cost of $50,000 and any and all costs of obtaining the Title Policy in excess of $50,000, the cost of any endorsements to the Title Policy, one-half (½) of any transfer taxes legally applicable to the sale other than county transfer taxes and one-half (½) of the escrow fee. Recording charges and any other expenses of the escrow for the sale, if any, shall be paid by Developer and City in accordance with customary practice as determined by the Title Company.
(c) The provisions of this Article 4 shall survive the Closing.
ARTICLE 5. CHANGES IN DEVELOPER; ASSIGNMENT
5.1 Changes Only Pursuant to this Agreement. The qualifications, experience and expertise of Developer are of particular value to the City. It is because of the qualifications, experience and expertise of the Developer that the City has entered into this Agreement. No voluntary or involuntary successor in interest to Developer shall acquire any rights or powers under this Agreement, except as provided in this Article 5.
5.2 Changes. Developer shall promptly notify the City in writing of any changes in the location of the principal place of business or material assets of the Developer, and of any other change in fact or circumstances represented or warranted at any time by Developer to the City.
5.3 Prohibition Against Assignment of Agreement.
(a) Developer shall not, except as permitted by this Agreement, make or attempt any total or partial assignment of all or part of its rights and obligations under this Agreement (other than (i) to an entity which is controlled by and is, directly or indirectly, at least 75% owned by Jim Levine and John Salmon, (ii) to the Tribe at Closing pursuant to section 2.1(c), or (iii) to Harrah’s Operating Company, Inc, (“Harrah’s”) pursuant to a collateral pledge given by Developer to secure repayment of funds advanced to Developer or the Tribe by Harrah’s in connection with the Project) without the prior written approval of the City.
(b) The City will approve such an assignment of this Agreement only if the following conditions are met and upon the City’s exercise of its reasonable discretion, which shall not be unreasonably withheld or delayed:
(1) The proposed transferee demonstrates to the City that, in the City's reasonable judgment, the proposed transferee has sufficient financial strength and experience to competently complete construction of the Project and/or to competently manage and develop the Project in a first-class manner and as required under this Agreement.
(2) Any proposed transferee, by instrument in writing approved by the City, for itself and its successors and assigns, and for the benefit of the City, shall expressly assume all the obligations of Developer under this Agreement.
(c) In the absence of specific written agreement by the City, no assignment or approval by the City permitted by this Article 5 shall be deemed to relieve Developer or any other party from any obligations under this Agreement. The assignment of this Agreement to the Tribe shall not relieve the Developer of any obligation hereunder. The foregoing notwithstanding, if, after the assignment of this Agreement to the Tribe, the City has any claim for indemnity under Section 8.14 hereof, the City will first make such claim for indemnity to the Tribe before making a claim for indemnity to the Developer. The City will concurrently notify Developer of such indemnity claim. If the Tribe does not
6.3 Default of Developer. The following events each constitute a default by the Developer hereunder:
(a) Developer fails for any reason, other than City’s default or the failure of a condition which prevents the Developer from acquiring the Property as provided herein, to purchase and lease the Property from the City as provided in this Agreement; or
(b) There is any change in the ownership of Developer, or the parties in control of Developer or any assigns or successors, in violation of Section 5.3(a) of this Agreement; or
(c) A Bankruptcy/Insolvency Event occurs with respect to Developer; or
(d) Developer breaches any other material provision of this Agreement.
Upon the happening of any of the events described above (other than the failure to provide funds, the Note and the Guaranty at Closing which shall be an immediate default), the City shall first notify Developer in writing of its purported default giving Developer sixty (60) days from receipt of such notice to cure such default. If Developer does not cure the default within such sixty-day period (or if the default is not susceptible of being cured within such sixty (60) day period, Developer fails to commence the cure within such period and thereafter to prosecute the cure diligently to completion), the City shall be afforded all of its rights at law or in equity by taking any or all of the following remedies: (i) terminate this Agreement in writing and/or (ii) seek any remedy against Developer available at law or in equity; and in all events the City shall be entitled to retain the Non-refundable Consideration described in Section 1.2.
6.4 Rights and Remedies Cumulative. Except as otherwise provided, the rights and remedies of the parties are cumulative, and the exercise or failure to exercise any right or remedy shall not preclude the exercise, at the same time or different times, of any right or remedy for the same default or any other default by the other party.
ARTICLE 7. CONDITIONS PRECEDENT
7.1 Developer’s Conditions. The obligation of Developer to purchase and lease the Property shall be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived by Developer:
(a) The City shall have complied in all material respects with all obligations required to be complied with by it at or prior to the Closing.
(b) The State/Tribe Compact shall have been executed by the Tribe and the State, shall have been approved by the U.S. Department of the Interior, either affirmatively or by operation of law, and shall be in full force and effect upon the Closing.
(c) The Property shall have been approved by the BIA for placement into trust on behalf of the Tribe.
(d) All BIA Approvals shall have been obtained.
(e) All NIGC Approvals shall have been obtained.
(f) Rights to access the Property and the Pier are acceptable to the Developer.
(g) All approvals, permits and other governmental approvals necessary to construct, own and operate the Project in accordance with the Design Concept Documents have been obtained.
(h) The Services Agreement shall have been executed and delivered by the Tribe and the City.
(i) The Deed and the Shoreline Lease shall have been delivered as provided in Section 1.5.
(j) A land transfer agreement for the Remainder Property, in form acceptable to Developer, has been executed by the Navy and the City.
7.2 City’s Conditions. The obligation of the City to convey the Property to Developer shall be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, in addition to any other conditions set forth in this Agreement any one or more of which may be waived by the City (except for the condition specified in subsection (f) below):
(a) Developer shall have complied in all material respects with all obligations required to be complied with by it at or prior to the Closing.
(b) The Services Agreement shall have been executed and delivered by the Tribe and all conditions to the effectiveness thereof shall have occurred.
(c) The Purchase Price shall have been paid as provided in Section 1.4.
(d) The Shoreline Lease, the Note and the Guaranty shall have been executed and delivered to the City.
(e) If a land transfer agreement for the Remainder Property, is to be executed by the Navy and the City at or prior to Closing, the form of such agreement is acceptable to the City.
the interest of any corporation, partnership or association in which he is directly or indirectly interested.
8.3 Non-Liability of Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Developer, or successor in interest, in the event of any default or breach by the City or for any amount which may become due to Developer or successor or on any obligation under the terms of this Agreement.
8.4 Provision Not Merged with Deeds. None of the provisions of this Agreement are intended to or shall be merged by the Deed(s) transferring title to the Property from the City to Developer or successor in interest and such Deed(s) shall not be deemed to affect or impair the provisions and covenants of this Agreement, including without limitation Section 1.1(c).
8.5 Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any part of its provision.
8.6 Applicable Law. This Agreement shall be interpreted under and pursuant to the laws of the State of California.
8.7 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provision shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability.
8.8 Legal Actions.
(a) In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the party prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable costs and expenses incurred in such action, including reasonable attorney fees and costs of any appeals.
(b) In the event legal action is commenced by a third party or parties, the effect of which is to directly or indirectly challenge or compromise the enforceability, validity, or legality of the Agreement and/or the power of the City to enter into this Agreement or perform its obligations hereunder, the party subject to such challenge shall defend such action at the sole cost of the Developer. Upon commencement of any such action, the City and Developer shall meet in good faith and seek to select mutually acceptable legal counsel and to establish a mutually acceptable method of defending such action.
8.9 Warranties. The City expresses no warranty or representation to Developer as to fitness or condition of the Property or any portion thereof for the building or construction to be conducted thereon.
8.10 Counterparts. This Agreement may be executed in counterparts and multiple originals.
8.11 Amendments. The parties can amend this Agreement only by means of a writing signed by both parties.
8.12 Identity and Authority of Developer. Each of the persons executing this Agreement on behalf of Developer does hereby covenant and warrant that: (a) the Developer is a duly authorized and existing California limited liability company; (b) Developer has, is and shall remain in good standing and qualified to do business in the State of California; (c) Developer has full right, power and authority to enter into this Agreement and to carry out all actions on its part contemplated by this Agreement; (d) the execution and delivery of this Agreement were duly authorized by proper action of Developer and no consent, authorization or approval of any person or other entity is necessary in connection with such execution and delivery or to carry out all actions on Developer’s part contemplated by this Agreement, except as may have been obtained and are in full force and effect; (e) the persons executing this Agreement on behalf of Developer have full authority to do so; and (f) the Agreement constitutes the valid, binding and enforceable obligation of Developer.
8.13 Identity and Authority of City. The City does hereby covenant and warrant that: (a) City has full right, power and authority to enter into this Agreement and to carry out all actions on its part contemplated by this Agreement; (b) the execution and delivery of this Agreement were duly authorized by proper action of City; (c) the persons executing this Agreement on behalf of City have full authority to do so; and (d) the Agreement constitutes the valid, binding and enforceable obligation of City.
8.14 Indemnity. Developer shall indemnify and hold the City Related Parties harmless from and against any costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation, reasonable attorney’s fees) arising out of or relating this Agreement or the transactions contemplated hereby except such as result from the gross negligence or willful misconduct of any such City Related Party. The foregoing indemnity shall survive beyond the Closing, or, if the sale is not consummated, beyond the termination of this Agreement.
8.15 Entire Understanding of the Parties. This Agreement is executed in two (2) duplicate originals, each of which is deemed to be an original. This Agreement and the attached Exhibits A through H constitute the entire understanding and agreement of the parties with respect to the subject matter hereof. All prior discussions, understandings and written agreements regarding the subject matter hereof are superceded by this Agreement.
