HomeMy WebLinkAboutLego Park Planning Inc; 1996-03-18;GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (I'Guaranty") is made and entered into by LEG0 A/S, a Danish corporation ("Guarantor") to and for the benefit of the CITY OF CARLSBAD, CALIFORNIA ("Cityll), and its successors and assigns.
LEG0 PARK PLANNING INC a California corporation ("LPP:;') and City have entered inib that certain Development Agreement executed concurrently herewith by and between LPPI and City (referred to herein as the IIDA1'). LPPI intends to construct on that real property described in the DA as "Parcel 18" certain improvements referred to in the DA as LEGOLAND CARLSBAD. All of the terms and provisions of the DA are fully incorporated herein by this reference as though fully set forth herein.
B. Pursuant to Section 3.1.4.9 of the DA, LPPI has an obligation, under the circumstances set forth in said Section, and subject to the exceptions set forth in said Section, to remove or cause to be removed and cleared from Parcel 18, at no cost to the City, all construction materials and equipment (if applicable), all LEG0 model structures, theme park rides, attractions, signs, landscaping, buildings, structures and other improvements, except landscaping, buildings, structures and other improvements which are determined by the City to be reasonably adaptable to alternate uses on Parcel 18, which determination shall not be unreasonably withheld or delayed. Pursuant to Section 3.1.4.10 of the DA, LPPI has an obligation under the circumstances set forth in said Section, and subject to the exceptions set forth in said Section, to make a monetary donation to the City in the amount of $500,000, in the event LPPI fails to open LEGOLAND CARLSBAD to the public prior to the expiration of the Term of the DA, to compensate City for a portion of the administrative and design costs expended by the City in connection with the DA. LPPI's obligations pursuant to Sections 3.1.4.9 and 3.1.4.10 shall be referred to hereinafter as the "Guaranteed Obligations".
C. Guarantor (by and through its affiliate entities) has a substantial financial interest in the business and affairs of LPPI and it will receive substantial economic benefit should LPPI be permitted to develop LEGOLAND CARLSBAD on Parcel 18 in the manner and in accordance with the terms of the DA. Guarantor acknowledges that this Guaranty is required by City as a condition precedent and as an inducement to City to enter into the DA, and carry out its obligations in accordance with the terms of the DA.
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NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration given by City to Guarantor, the receipt and sufficiency of which is hereby acknowledged, and in further consideration of and to induce City to enter into and perform its obligations under the DA, Guarantor does hereby irrevocably warrant, guarantee and agree as follows:
1. Guarantor acknowledges receipt of a copy of the DA and all of the instruments described therein and/or attached thereto.
2. If for any reason, other than the acts of City, LPPI should fail to perform the Guaranteed Obligations as set forth in Section 3.1.4.9 or Section 3.1.4.10 of the DA, then City at its option, and upon thirty (30) days written notice to Guarantor, may call upon Guarantor and Guarantor shall assume each and all of the outstanding Guaranteed Obligations of LPPI, and shall promptly commence and diligently prosecute to completion all such Guaranteed Obligations in accordance with the terms of the DA.
3. Guarantor's performance of the Guaranteed Obligations shall be excused during periods of delay caused by City or by the occurrence of events described in Section 4.24 of the DA.
4. This Guaranty is a present, absolute and continuing guaranty; the execution by City of the DA shall conclusively evidence the reliance by City upon this Guaranty and the obligations and agreements of Guarantor as set forth herein.
5. This Guaranty shall terminate with respect to the Guaranteed Obligations upon the expiration of the Term of the DA pursuant to Section 4.2.1 or 4.2.2 of the DA, or termination of - the DA by LPPI pursuant to Section 4.6.3 of the DA.
6. Guarantor waives (a) any right to require that any action be brought against LPPI or any other person for the performance of the Guaranteed Obligations under the DA prior to the enforcement of this Guaranty by the City, and (b) any right to pursue any remedy in LPPI's power whatsoever; and if any right of action shall accrue to City by reason of the failure of LPPI to perform the Guaranteed Obligations required of LPPI pursuant to the DA then, unless such default shall be cured by the Guarantor as aforesaid, City, at its election, may proceed against: (A) Guarantor, together with LPPI (B) against Guarantor, and LPPI, severally; or (C) the Guarantor only, in each case, without having commenced any action or having obtained any judgment against LPPI and whether or not LPPI is a party in any such action.
7. The joint and several obligations of Guarantor shall not be discharged, impaired or otherwise affected by (a) any
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sale, transfer, assignment, pledge, surrender, indulgence, forbearance, alteration, substitution, exchange, change in, amendment, revision, modification or other disposition of the DA or Parcel 18, other than termination as described in Section 5 of this Guaranty; (b) the acceptance by City of any security for or other guarantors with respect to the Guaranteed Obligations; or (c) any failure, negligence or omission on the part of City to enforce the terms of the DA; it being expressly understood and agreed that the undertakings, liabilities and obligations of Guarantor shall not be affected, discharged, impaired or varied by any act, omission or circumstance whatsoever (whether or not specifically enumerated herein) except the due and punctual performance of the Guaranteed Obligations.
8. Guarantor hereby expressly waives (a) notice of acceptance of this Guaranty; (b) all notices to which Guarantor might otherwise be entitled; (c) any defense arising by reason of any disability of LPPI or by reason of the cessation from any cause whatsoever (except a defense available to LPPI under the DA) of the liability of LPPI other than full performance of the Guaranteed Obligations; (d) diligence in enforcement and any and all formalities which might otherwise be legally required to charge the Guarantor with liability, except to the extent that specific acts or omissions of City could actually be raised by LPPI with respect to itself under the DA; and (e) all diligence in collection or protection and all presentment, demand, protest and notice of protest, notice of dishonor and notice of default, except to the extent that specific acts or omissions of City could actually be raised by LPPI with respect to itself under the DA.
9. In the event that Guarantor should fail to fully perform the Guaranteed Obligations promptly as herein provided, City shall have the following remedies:
(a) at its option and without any obligation so to do, but upon prior thirty (30) days written notice to Guarantor, proceed to perform and/or pay on behalf of Guarantor any and all of the Guaranteed Obligations, unless Guarantor has commenced performance and/or payment of the Guaranteed Obligations during such 30-day period and is diligently prosecuting such performance to completion; and Guarantor shall, upon demand, pay to City all such sums expended by City in such performance on behalf of Guarantor; and
(b) from time to time and without first requiring full performance of any of the Guaranteed Obligations by LPPI, to require performance by Guarantor of all of the Guaranteed Obligations (or any part thereof) pursuant to the terms hereof, by action at law or in equity or both, and further to collect in
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any such action compensation for all loss, cost, damage, injury and expense sustained or incurred by City as a consequence of such breach.
10. This Guaranty is a guaranty consisting of the performance and payment of certain obligations contained and provided for herein by Guarantor, and Guarantor shall be liable for any claims by City against LPPI with respect to the Guaranteed Obligations.
11. As of the date of execution of this Guaranty, (a) Guarantor warrants that it has full authority to execute this Guaranty and comply with its terms, and (b) Guarantor declares to and covenants with City and its successors and assigns, that Guarantor knows of no defense whatsoever to any action, suit or proceeding, at law or otherwise, that may be instituted on this Guaranty.
12. No failure on the part of City to pursue any remedy hereunder or under the DA shall constitute a waiver on its part of the right to pursue said remedy on the basis of the same or a subsequent breach.
13. Until the Guaranteed Obligations have been performed in full, Guarantor shall have no right of subrogation, and hereby waives any right to enforce any remedy that City now has or may hereafter have against LPPI.
14. This Guaranty shall be binding upon the Guarantor jointly and severally, and its successors and assigns. Guarantor shall have the right, without any further City consent, to assign its obligations under this Guaranty to any affiliated LEG0 company or entity owned or controlled, directly or indirectly, by majority shares or voting rights, by the Kirk Christiansen family, provided such company or entity has assets in an amount that is substantially equal to or greater than those of Guarantor, and that, concurrently with such assignment, the ownership and control of LPPI is assigned directly or indirectly to such company or entity.
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15. Each reference herein to llCityV1 shall be deemed to include the City of Carlsbad, and each of its successors and assigns; and all of the provisions of this Guaranty shall run in favor of said named City and its said successors and assigns.
16. This Guaranty shall be governed by and construed in accordance with the laws of the State of California.
17. In addition to any other rights or remedies, the parties hereto may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Guaranty. Such legal actions must be instituted in the Superior Court of the County of San Diego, State of California, located in the City of Vista, California.
18. In the event that any legal action is commenced by the Guarantor against City, service of process on City shall be made by personal service upon the City Manager or Mayor of the City, or in such other manner as may be provided by law. In the event such legal action is commenced by City against the Guarantor, service of process on the Guarantor shall be made by personal service upon an officer of Guarantor and shall be valid whether made within or without the State of California, or in such manner as may be provided by law.
19. Time is of the essence hereof.
20. If any term, provision, covenant or condition hereof or _ any application thereof should be held by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, provisions, covenants and conditions hereof, and all applications thereof not held invalid, void or unenforceable, shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby.
21. Guarantor hereby represents that the person executing this instrument on behalf of Guarantor has full authorization to do so. Concurrently with the delivery of the executed Guaranty, Guarantor shall deliver to City a true copy of a corporate resolution evidencing the authority of the person signing on behalf of Guarantor.
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IN WITNESS WHEREOF, Guarantor has executed this Agreement as of the date set forth below.
LEG0 A/S
Date: By: 6%. d&/,/L
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The City of Carlsbad hereby accepts this Guaranty Agreement in accordance with the terms and conditions contained herein.
CITY
By:
ATTEST:
By:
APPROVED AS TO FORM:
By: City Attorney /‘L -76.
.
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March 19, 1996
Ellen Spellman, Esq. Brobeck Phelger & Harrison 550 West C St., Suite 1300 San Diego, CA 92101
RE: LEG0 DEVELOPMENT AGREEMENT
Enclosed per your request are the following original documents:
1. Two (2) originals of the fully executed Development Agreement for Legoland Carlsbad, between Lego Park Planning, Inc. a California Corporation, and the City of Carlsbad.
2. One (1) original of the Guaranty Agreement between Lego A/S a Danish Corporation, and the City of Carlsbad.
If you have any questions or require any additional information, please don't hesitate to contact me.
Assistant Citwlerk
Encs.
c: City Attorney
1200 Carlsbad Village Drive - Carlsbad, California 92008-l 989 - (619) 434-2808
,
March 13, 1996
TO: City Clerk
FROM: City Attorney
LEG0 DEVELOPMENT AGREEMENT
Attached are Exhibits A (legal description for Lot 18), C (Description of Public Improvements) and D (Mitigation Measures) regarding the Lego Development Agreement.
Please have these documents forwarded to the San Diego County Recorder for recording not later than Thursday, March 14, 1996.
Should you have any questions regarding the above, please do not hesitate to contact me.
P
RONALD R. BALL City Attorney
rmh attachments
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A
RONALD R. BALL
CITY A-ITORNEY
D. RICHARD RUDOLF
ASSISTANT CITY ATTORNEY
JANE MOBALDI
DEPUTY CITY ATTORNEY
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CALIFORNIA 92008-1989
(619) 434-2891
FAX: (619) 434-8367
January 17, 1996
Ellen B. Spellman, Esq. Brobeck Phleger & Harrison Suite 1300 550 West C Street San Diego, California 92101
RE: LEG0 DEVELOPMENT AGREEMENT
Dear Ms. Spellman:
As we discussed on Tuesday, January 16, 1996, enclosed please find Exhibits *C", I'D" and "F" to be inserted into the development agreement which was approved by City Council Ordinance NS-346. I look forward to seeing Sven Madsen on January 22, 1996 and I will arrange for acknowledgement of his signature on the development agreement and ask the City Clerk to send it to the County Recorder's office for recording.
I appreciate your cooperation and courtesy in this regard.
Vmuly yours,
RONALD R. BALL City Attorney
rmh enclosures
c: 2 ity Manager City Clerk Financial Management Director City Engineer Planning Director Glenn Wasserman (with attachments)
TELEPHONE: (619) 234-1966
FACSIMILE: (619) 234-3848 (12~~ FLOOR)
(619) 236-1403 (13~~ FLOOR)
WRITER'SDIRECT DIAL:
(619) 699-0258
VIA FACSIMILE
Ron Ball, Esq.
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive Carlsbad, CA 92008
BROBECK PHLEGER~ HARRISON
ATTORNEYS AT LAW
RECEIVED
550 WEST C STREET JAN 18 1996 SUITE 1300
SAN DIEGO
ci i : 1.~6 i&i;. ..,,~~IFORNIA 92101-3532
Cf%lATT~EY
January 17, 1996
,~J~~FIRMATION COPY
SENT vl~e~LEGOPIER
ON /I-
Re: Develonment Agreement for LEGOLAND Carlsbad
Dear Ron:
Pursuant to our telephone conversation yesterday, I am enclosing a
proposed Exhibit “A” which sets forth the Legal Description of the Property subject to
the Development Agreement. For purposes of recording the Development Agreement
and proper indexing prior to recordation of a Final Map for Lbt 18 of Carlsbad Tract
CT 94-09, I have included a metes-and-bounds description in the same form utilized to
record the Memorandum of Option Agreement in favor of LPPI. Parcel 1 of this
description includes the portion of the LEG0 site originally included within the Carlsbad
Ranch Specific Plan area. Parcel 2 includes the separate parcel adjacent to Hidden
Valley Drive. I have provided that this metes-and-bounds description will be
automatically superseded upon recordation of a Final Map covering Lot 18, based on
Carlsbad Tract CT 94-09.
Please let me know if this revised Exhibit “A” is acceptable to you.
Very truly yours,
Ellen B. Spellman
Enc.
cc: John Jakobsen (w/enc.)
BPHSD\EBS\0148580.WP
SANFRANCXSCO PALOALTO LOSANCELES ORANCECO~N~ SANDIEGO NEWYORK AUSTIN DENVER
BROBECKHALEANDDORR~NTERNA~ONALOFFICES: LONDON PRAGUE
I I
RONALD R. BALL
CITY ATTORNEY
D. RICHARD RUDOLF
ASSISTANT CITY ATTORNEY
JANE MOBALDI
DEPUTY CITY ATTORNEY
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CALIFORNIA 92008-1989
(619) 434-2891 FAX: (619) 434-8367
January 8, 1996
Ellen B. Spellman, Esq. Brobeck Phleger & Harrison Suite 1300 550 West C Street San Diego, California 92101
RE: LEG0 DEVELOPMENT AGREEMENT
Dear Ellen:
Thank you for delivering five originals of the Development Agreement and two originals of the Guarantee Agreement which I am transmitting to the City Clerk. As you know, the Development Agreement is scheduled for City Council review and approval by ordinance on Tuesday, January 9, 1996. The ordinance approving the Development Agreement will then be adopted the following week on Tuesday, January 16, and we can insert the Exhibits "C", "D" and "F", obtain the Mayor's signature and transmit the agreement to the County Recorder.
I appreciate your assistance and cooperation throughout these issues.
Should you have any questions regarding the above, please do not hesitate to contact me.
Vgrp\truly yours,
RONALD R. BALL City Attorney
rmh
c: City Manager City Clerk J Community Development Director Planning Director City Engineer
TELEPHONE: (619) 234-1966
BROBECK PHLEGER& HARRISON FACSIMILE: (619) 234-3848 (12~~ FLOOR)
(619) 236-1403 (13~~ FLOOR) ATTORNEYS AT LAW
WRITER’S DIRECT DIAL:
(619) 699-0258 RECEIVED
Encs.
cc:
January 4, 1996
550 WEST C STREET
SUITE 1300
SAN DIEGO
CALIFORNIA 92101-3532
VIA MESSENGER
Ron Ball, Esq.
City Attorney
City of Carlsbad
JAN - 5 1996
es I I ur Lhl.a+4 ClTY*TToF?NEY~
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Re: Develonment Agreement for LEGOLAND Carlsbad
Dear Ron:
I am enclosing the following original documents:
1. Five (5) originals of the Development Agreement, executed by
LEG0 Park Planning, Inc.
2. Two (2) originals of the Guaranty Agreement, executed by
LEG0 A/S.
Please note that execution of the enclosed documents is subject to approval
and execution of the Development Agreement by the City of Carlsbad, completion of the
missing Exhibits [Exhibits “c”, ” D” and “F”] and approval of such Exhibits by LEG0 Park
Plating, Inc.
Thank you very much for the cooperation we have received from City
representatives in connection with these Agreements. If you have any questions, please
do not hesitate to contact me.
Very truly yours,
Ellen B. Spellman
Poul Hartvig Nielsen, Esq. (w/o encs.)
Svend Aage Madsen (w/o encs.)
John Jakobsen (w/o encs.)
BPHSD\EEiS\0147313.WP SAN FRANCISCO PALO ALTO Los ANGELES ORANGE COUNTY SAN DIEGO NEW YORK AUSTIN DENVER
BROBECK HALE AND DORR INTERNATIONAL OFFICES: LONDON PRAGUE