A. Capitalized terms used herein are defined in Article I of this Agreement.
B. On June 8, 2010, the voters of the City approved Measure J, which endorses the construction, operation and maintenance of a stadium in the City suitable for NFL games,
C. The Stadium Authority is a joint powers authority formed by, and comprised of, the City and the Agency pursuant to the Joint Powers Agreement for the purpose of acquiring, financing, constructing, owning, managing, operating and maintaining the Stadium and related facilities.
D. The Stadium Authority intends to lease from the City approximately twenty-two (22) acres of real property located in the City within the Redevelopment Project Area.
E. Pursuant to authority granted under California law, the Agency is charged with administration and enforcement of the Bayshore North Redevelopment Plan for the Bayshore North Redevelopment Project Area. The Redevelopment Plan controls the development and use of all real property located within the Bayshore North Redevelopment Project Area as more particularly described in the Plan.
F. To assist in implementing the Redevelopment Plan, the Agency has adopted a five (5)-year implementation plan (the "Implementation Plan") pursuant to Section 33490 of the Redevelopment Law.
G. The construction of the Stadium will further the Agency's and City's goals of creating an entertainment destination in the Redevelopment Project Area, and will provide significant economic benefits to the City and its residents and businesses.
H. Assistance to the Stadium is consistent with the Implementation Plan. The development of the Stadium will benefit the Project Area and will assist in the elimination of blight in the Project Area. The Agency's use of funds as provided in this Agreement is authorized by the Redevelopment Law, and the Agency, the City and the Stadium Authority have made all findings required under the Redevelopment Law for such use. 1. Pursuant to CEQA, the Agency and the Stadium Authority (each in its capacity as "responsible agency") has prepared, reviewed, and certified that certain Final Environmental Impact Report, 49ers Santa Clara Stadium Project for the transactions contemplated by this Agreement, following conduct of a duly noticed public hearing (the "Final Environmental Impact Report"). The Final Environmental Impact Report has served as the environmental documentation for the Stadium Authority's consideration and approval of this Agreement and the transactions contemplated by this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Stadium Authority and the Agency agree as follows:
Section 1.1 In addition to the terms defined elsewhere in this Agreement, the following capitalized words shall have the following meanings:
Section 2.1 Conditions Precedent to the Agency's Obligation to Disburse. As conditions precedent to the Agency's obligation to disburse funds to the Stadium Authority under this Agreement, the conditions set forth in this Article 2 must be satisfied. Only the Agency can waive satisfaction of the conditions in this Article 2.
Section 2.2 Execution of DDA. The DDA has been fully executed by the Stadium Authority and the Forty Niners Stadium, LLC, and is in full force and effect.
Section 2.3 Financing Plan Approval Procedure. The Stadium Authority has certified to the Agency that the Stadium Authority has approved the Final Financing Plan and that the Final Financing Plan demonstrates that adequate funding for the development of the Stadium is available.
Section 2.4 Stadium Financing. The Stadium Authority has certified to the Agency that the construction financing for the development of the Stadium is ready to close prior to or concurrently with the initial disbursement of Agency funds under this Agreement.
Section 2.5 Commencement of Construction. The Stadium Authority has certified to the Agency that the Stadium Authority is ready to commence construction of the Stadium and has met all the preconditions for the close of escrow and commencement of construction contained in the DDA.
Section 2.6 SB 211 Ordinance. The City has adopted a so-called "SB 211 Ordinance", amending the Redevelopment Plan to eliminate the Agency's time limit for incurring indebtedness.
Section 3.1 Agency Contribution Toward Development Fees. The Agency shall pay to the City, on behalf of the Stadium Authority one-half (1/2) of the development fees to be paid to the City in connection with the construction of the Stadium. The Agency shall remit payment, estimated to be One Million Six Hundred Thousand Dollars ($1,600,000), to the City concurrently with the Stadium Authority's payment of its share of the development fees.
Section 3.2 Agency Contribution Toward Project Development. In addition to the Agency's payment of development fees pursuant to Section 3.1 above, the Agency shall pay an amount not to exceed a total of Forty Million Dollars ($40,000,000) (exclusive of debt service and other financing costs) toward Stadium development costs. The Agency's commitment to provide assistance to the Stadium Authority will be derived from the available funds and from the receipt of future Net Tax Increment. The Agency pledges to the Stadium Authority future Net Tax Increment in sufficient amounts to pay to the Stadium Authority Forty Million Dollars ($40,000,000) (exclusive of debt service and other financing costs). The Agency shall pay to the Stadium Authority an amount from available funds specified in Section 3.2(a) and use the proceeds from one or more tax allocation bond issuances specified in Section 3.2 (b) to pay Stadium development costs (the "Agency Upfront Investment"). To the extent the Agency Upfront Investment does not equal a total of Forty Million Dollars ($40,000,000) (exclusive of debt service and other financing costs), the Stadium Authority shall advance funds (the "Stadium Authority Advance") on behalf of the Agency so that the total Agency assistance totals Forty Million Dollars ($40,000,000) (exclusive of debt service and other financing costs). The Stadium Authority Advance will be repaid by the Agency in accordance with Section 3.3, below.
Section 3.3 Stadium Authority Advance. If the Stadium Authority makes the Stadium Authority Advance to the Agency, the Agency shall repay the Stadium. The Stadium Authority Advance, including annual compound interest at an annual fixed rate equal to the lower of the rate on 30-year BB-rated corporate bonds or eight and one-half percent (8 1/2%), calculated as of the date of the first funding by Stadium Authority of the Stadium Authority Advance, will be repayable by the Agency only from the Net Tax Increment remaining after payment of debt service on the Tax Allocation Bonds. In addition, prior to making a payment on the Stadium Authority Advance, the Agency may make, based on an annual election by the Agency, an additional deposit into the Agency Low and Moderate Income Housing Fund of up to ten percent (10%) of gross Tax Increment (after excluding Tax Increment generated from the taxes imposed on the Stadium). The additional deposit into the Agency Low and Moderate Income Housing Fund, if any, will cease as of December 2016 with the termination of the Redevelopment Plan for the Redevelopment Project Area. Upon the expiration of the ability of the Agency or any successor agency to collect tax increment from the Project Area, any principal or interest amount of the Stadium Authority Advance still outstanding shall no longer be due from the Agency and shall no longer be a debt of the Agency.
Section 3.4 Indebtedness of the Agency. Subject to the provisions of Section 2.6, the obligation of the Agency to pay the funds to the Stadium Authority under this Agreement shall constitute an indebtedness of the Agency incurred in carrying out the Redevelopment Plan and a pledge of tax increment received by the Agency from the Project Area to repay such indebtedness under the provisions of Article XVI, Section 16 of the Constitution of the State of California, the Redevelopment Law, and the Redevelopment Plan.
Section 3.5 Subordination. The parties agree that the obligation of the Agency to make payments pursuant to this Agreement is subordinate to any obligation of the Agency to pay debt service on tax increment bonds currently issued or issued following the date of this Agreement.
Section 3.6 Commencement and Completion of Construction. The Stadium Authority shall commence and diligently prosecute to completion the construction of the Stadium in accordance with the terms of the DDA and within the time set forth in the schedule of performance incorporated into the DDA. The Stadium Authority, in accordance with the terms of the DDA, shall enter into such agreements as the Stadium Authority deems necessary with the Forty Niners Stadium, LLC, to utilize the extensive design and engineering work product already developed as of the date of this Agreement. The Agency acknowledges that the Stadium Authority intends to use the completed design and engineering work in the development of the Stadium and that the Stadium Authority will reimburse the Forty Niners Stadium, LLC for all or a portion of the costs of this work.
Section 3.7 Indemnity. The Stadium Authority shall indemnify, defend, and hold the Aggencv, its officers, agents, and employees, harmless against all claims, demands, damages, losses, costs, expenses, including without limitation, attorneys' fees and costs of litigation, or liabilities made against them which arise out of, or in connection with, the construction of the Stadium; provided, however, that this indemnity shall not extend to any claim arising solely from the Agency's negligence or the Agency's negligent failure to perform its obligations under this Agreement.
Section 4.1 Non-Liability of Officials. No member, official, employee or agent of the Agency shall be personally liable to the Stadium Authority, or any successor in interest, in the event of any default or breach by the Agency for any amount which may become due to the Stadium Authority or successor or on any obligation under the terms of this Agreement. No member, official, employee or agent of the Stadium Authority shall be personally liable to Agency, or any successor in interest, in the event of any default or breach by the Stadium Authority for any amount which may become due to the Agency or successor or on any obligation under the terns of this Agreement.
Section 4.2 Actions of the Parties. Except as otherwise provided in this Agreement, whenever this Agreement calls for or permits a party's approval, consent, or waiver, the written approval, consent, or waiver of the Agency's Executive Director and the Stadium Authority Executive Director (or their respective designees) shall constitute the approval, consent, or waiver of the Agency and the Stadium Authority, respectively, without further authorization required from the governing board of the party; provided, however, that the person vested with such authority may seek such further advice or authorization from the applicable governing board when she/he deems it appropriate.
Section 4.3 Nondiscrimination. (a) In Performance of Agreement. The Stadium Authority and its contractors, subcontractors, agents, and employees shall not, because of the race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, age, or disability of any person, refuse to hire or employ the person, or refuse to select the person for a training program leading to employment, or bar or discharge the person from employment or from a training program leading to employment, or discriminate against the person in compensation or in terms, conditions or privileges of employment with respect to performance of this Agreement. (b) With Respect to Use of the Stadium. The Stadium Authority covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, age, or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Infrastructure Improvement Projects.
Section 4.4 Third Party Beneficiaries. The Forty Niners Stadium, LLC, and its successor and assignees, will expend substantial resources in reliance on the representations and promises of the Agency and the Stadium Authority contained in this Agreement. The Agency and the Stadium Authority intend that the Forty Niners Stadium, LLC directly benefit from this Agreement and intend to confer on the Forty Niners Stadium, LLC, and its successor and assignees, the rights, benefits and remedies of this Agreement. Except as otherwise expressly provided in this Section 4.4, the Agency and the Stadium Authority do not intend by any provision of this Agreement to confer any right. remedy or benefit upon any other third party, and no other third party shall be entitled to enforce or otherwise shall acquire any right, remedy or benefit by reason of any provision of this Agreement.
Section 4.5 State Law. This Agreement, and the rights and obligations of the parties hereto, shall be construed and enforced in accordance with the laws of the State of California.
Section 4.6 Records. The Stadium Authority shall maintain complete and accurate financial accounts, documents and records with respect to the performance of its obligations under this Agreement, and shall make same available to the Agency's authorized agents for copying and auditing upon reasonable prior notice. Such accounts, documents and records shall be retained by the Stadium Authority for the longer of two (2) years following completion of the Stadium or whatever retention period the Stadium Authority has designated for such documents.
Section 4.7 Inspection of Documents. During the regular office hours and upon reasonable prior notice, the Stadium Authority and the Agency, by their duly authorized representatives, shall have the right to inspect and make copies of any books, records or reports of the other party pertaining to this Agreement.
Section 4.8 Additional Acts. The parties each agree to take such other and additional actions and execute and deliver such other and additional documents as may be reasonably requested by the other party for purposes of consummating the transactions contemplated in this Agreement.
Section 4.9 Litigation Regarding Agreement Validity. In the event litigation is initiated attacking the validity of this Agreement, each party shall in good faith defend and seek to uphold the Agreement.
Section 4.10 Validity of Agreement. If any provisions of this Agreement, or the application thereof to any person, party, transaction, or circumstance, is held invalid, the remainder of this Agreement, or the application of such provision to other persons, parties, transactions, or circumstances, shall not be affected thereby.
Section 4.11 Entire Agreement; Modification and Amendment. This Agreement contains all of the agreements and understandings of the parties pertaining to the subject matter contained herein and supersedes all prior or contemporaneous agreements, representations and understandings of the parties. This Agreement cannot be amended or modified except by written agreement of the parties.
Section 4.12 Defaults and Remedies. If either party breaches any other material provision of this Agreement, the other party shall first notify the breaching party in writing of the purported breach or failure, giving the breaching party thirty (30) days from receipt of such notice to cure or, if cure cannot be accomplished within thirty (30) days, to commence to cure such breach, failure, or act. In the event the breaching party does not then so cure within such thirty (30) days, or if the breach or failure is of such a nature that it cannot be cured within thirty (30) days, the breaching party fails to commence to cure within such thirty (30) days and thereafter diligently complete such cure within a reasonable time thereafter but in no event later than one hundred twenty (120) days, then the non-breaching party shall be afforded all of its rights at law or in equity, by taking all or any of the following remedies: (a) terminating in writing this Agreement (provided, however, that the indemnification provisions of this Agreement shall survive such termination); and (b) prosecuting an action for damages or specific performance.
Section 4.13 Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest and assigns of each of the parties to this Agreement. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired an interest in compliance with the terms of this Agreement, or under law.
Section 4.15 Time of The Essence. Time is of the essence in the performance of all duties and obligations under this Agreement.IN WITNESS WHEREOF, this Agreement has been executed as of the date set forth in the opening paragraph of this Agreement.
