CONTRACT 5751 Developer’s AgreementAgreement No. 5751
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF EL SEGUNDO
350 Main Street
El Segundo, California 90245
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code § 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF EL SEGUNDO
AND
ROSECRANS-SEPULVEDA PARTNERS 4, LLC
(FORMER AIR PRODUCTS SITE)
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY
ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE
§65868.5
Agreement No. 5751
TABLE E OF CONTENTS
1.
Definitions...................................................................................................................................,.......1
2.
Recitals...............................................................................................................................................4
3.
Binding Effect....................................................................................................................................5
3.1 Constructive Notice and Acceptance.......................................................................................................
5
3.2 Rights to Assign and Transfer..................................................................................................................
5
3.3 Liabilities Upon Transfer.........................................................................................................................
6
3.1 Resumption of Rights--......,—..... ..... - ........... ... ......... --- ...,... ...........
--- ..... 6
4.
Development of the Property.............................................................................................................
6
4.1 Permitted Uses, Design and Development Standards and Dedication of Land for Public
Purposes-- 6
4.2 Entitlement to Develop.............................................................................................................................
6
4.3 Additional Restrictions.............................................................................................................................
6
4.4 Reserved....................................................................................................................................................7
4.5 Building Regulations,,..,.,. ....... -'— ....... --- ......................
.............. — 7
4.6 Subsequent Rules ............................................... .............. .... ...
....... 7
4.7 Fees, Exactions, Mitigation Measures, Conditions, Reservations and Dedications ..................................
7
4.8 Use of Easements......................................................................................................................................
7
4.9 Timing of Development....--. ... - ......---- ........ .......... .... ,.. .......... .. .... .,,..........
.... 8
4.10 Moratorium........................................................ .. ...-,.......
...,..,. ....... 8
4.11 Term........................................................................ ................. .................... ........
......... 8
4.12 Term of Map(s) and Other Project Approvals ................. .,,.... ........,. ......,..
......... 9
4.13 Future Approvals......................................................................................................................................
9
4.13.1 Minor Modifications to Project.—.... ... -- ...... ............................... ....
....,... ...,.,.9
4.13.2 Modifications Requiring Amendment to this Agreement............................................................................9
4.14 Site Plan Review...............................................................................................a.......,...,...,.,...............,.,
10
4.15 Issuance of Building Permits.................................................................................................................
10
5.
Developer Agreements.............................................................. ..............W............ ........
.,,,....,..,.,,....11
5.1 General...................................................................................................................................................11
5.2 Development Fees..................................................................................................................................
11
5.3 Maintenance Obligations............................................................ --- ....... ...............................
...... —... .. 11
5.4 Sales and Use Tax..................................................................................................................................
11
6,
City Agreements..................................................................................................„........,.,...,.,.........
12
6.1 Expedited Processing.............................................................................................................................
12
Agreement No. 5751
6.2 Processing Cooperation and Assistance ......... ......... .........
......... ............. .....
112
6.3 Processing During Third Party Litigation...... .............
.. ............... ......
12
6.4 Performance of Director Duties
,
7. Modification/Suspension ............................... ............................
...........................
13
8. Demonstration of Good Faith Compliance ....
....... ..................
13
8.1 Review of Compliance.......................................................
............ .. ............. ..,....
13
8.2 Good Faith Compliance .................................................
... . ......... ......
13
8.3 City Report - Information to be Provided to Developer.....,.
......... ....... .......
13
8.4 Developer's Report ..........................................................
.................... ................................ ...,....,..,..,.....
14
8.5 Notice of Non -Compliance; Cure Rights.................................................................................................
14
8.6 Public Notice of Findings
1.4
8.7 Failure of Periodic Review......................................................................................................................
14
9, Excusable Delays
10. Default Provisions.......................................................................
......... ......... .......
@ l
10.1 Default..........................................................................I.........
,.,...... ,..,,. ,.., .. .. , ..,,... .,,....., .,...
14
10.2 Content of Notice of Violation ...........................................
..-.... ..........
15
10.3 Remedies for Breach...................................................................
.......... ..... ,,....... ......, ,.,...,.
15
10.4 Resolution of Disputes............................................................
..... ................. ....... .......
15
10.5 Attorney's Fees and Costs ..................................................
........ ............... .. ........ ..........
1
11. Mortgagee Protection.....................................................................................................................
16
11.1 Mortgage Not Rendered Invalid ..........................................
........ .......... ..... .
16
11.2 Request for Notice to Mortgagee .......................................
........... .......... . . .... ........ ,.,.... ., ....
16
11.3 Mortgagee's Time to Cure ..............................................
... . ............ ... .........
16
11.4 Cure Rights..............................................................................
........ ..., ..,.. .......
16
11.5 Bankruptcy.........................................................................
. .......a... ,..,... ............. .........,.
17
11.6 Disaffirmation....................................................................
....... ....A ....... _....... .,.... .......
17
12. Estoppel Certificate........................................................................................................................17
13. Administration of Agreement .......................................
.........
17
13.1 Appeal of Staff Determinations..................................................
......... ................ .........
17
13.2 Operating Memoranda.........................................................................................................................
17
13.3 Certificate of Performance .................................................
........ .................
18
14. Amendment or Termination by Mutual Consent............................................................................
18
15. Indemnification/Defense..................................................................
... ..........
18
15.1 Indemnification......................................................... .............
.... ...... ........._
18
15.2 Defense of Agreement ........................................ . ... .......
... ....... ...... ......
19
In
Agreement No. 5751
16.
Cooperation in the Event of Legal Challenge... ...
19
16.1
Third Party Challenges ............................. .. ......... ..
..,...., ...,... ................. 19
16.2
Third Party Challenges Related to the Applicability of City Laws .....................................................
19
17.
Time of Essence...................................................................................__........,.,...,,...........,.,.,,,,...20
18.
Effective Date................................................................................................................................20
19.
Notices...........................................................................................................................................
20
20.
Entire Agreement.....................................................................
w .. ,.,.,....... ,.,,..... ....22
21.
Waiver............................................................................................................................................22
22.
Supersession of Subsequent Laws of Judicial Action............................................„........,.............22
23.
Severability........................................................................................................................,.,...,.....,
22
24.
Relationship of the Parties.............................................................................................................
22
25.
No Third -Party Beneficiaries.................................................a.........,..,.,..,...,.,.,,...........,..,.,,....,.....23
26.
Recordation of Agreements and Amendments..............................................................................23
27.
Cooperation Between City and Developer....................................................................................
23
28.
Rules of Construction....................................................................................................................23
29.
Joint Preparation......................................................................................,.,..,.................................
23
30.
Governing Law and Venue ................................................ .......
...... ...... ...,.23
31..
Counterparts...................................................................................................................................23
32,
Weekend/Holiday Dates................................................................................................................23
33,
Not a Public Dedication............................................................... ...................
........ .......23
34.
Releases...............................................................................
...... , ,...,., 24
35,
Consent.............................................................................................................................................2
IV
Agreement No. 5751
I UXIA
This Development Agreement (the "Agreement") is made and entered into by and between
the CITY OF EL SEGUNDO, a municipal corporation (referred to hereinafter as "City") and
RO SECRANS -SEPULVEDA PARTNERS, 4 LLC, a Delaware limited liability company
(hereinafter as "Developer") as of this 20th day of August, 2019. City and Developer are referred
to hereinafter individually as "Party" and collectively as "Parties". In consideration of the mutual
covenants and agreements contained in this Agr.ement, City and Developer agree as follows:
I . Definitions. Unless the contrary is stated or clearly appears from the context, the following
definitions govern the construction of the words and phrases used in this Agreement. Words and
phrases not defined in this Section will have the meaning set forth in this Agreement, the El
Segundo Municipal Code, or in common usage.
The El Segundo General Plan, as it existed on the Approval Date, as modified by
the Project Approvals;
The Et Segundo Municipal Code, as it existed on the Approval Date, as modified
by the Project Approvals;
Such other taws, ordinances, rules, regulations, and official policies governing
permitted uses of the property, density, design, improvement, development fees,
and construction standards and specifications applicable to the development of the
Property in force at the time of the Effective Date, which are not in conflict with
this Agreement.
.'Approval Date" means August 20, 2019, the date on which the last of the Project Approval
applications was approved by the City.
"Approved Plans" means a plan for any aspect of the Project, including, without limitation,
-signa lans, and landscay.L9 and irrigation lans which are a roved bv the Li�t�,
in accordance with the Appticable Rules, and Project Approvals.
"Beach Cities Media Campus" or "Media Campus" means development of the Property
with a development of a mixture of creative offretail/caf6, and studio and production facilities
that would consist of a maximum of: 240,000 square feet of creative office with the option to
incorporate a roof deck; 66,000 square feet of studio and production facilities building; 7,000
square feet of retail/caf6 uses for a total of 313,000 square feet of floor area with an associated
FAR of 1.13 to 1; and the provision of parking spaces in a combination of surface parking,
underground parking, and a parking structure all as shown in the Conceptual Site Plan attached
hereto as Exhibit B.
-
"Building Regulations" means those regulations set forth in'l"itle 13 ofthe ESMC.
"CEQA" means the California Environmental Quality Act, PL�blic resources Code § 21.000
Agreement No. 5751
"CEQA Guidelines" means the regulations implementing CEQA which have been adopted
by the State and found at Title 14 of the California Code of Regulations, § 150000 et seq.
"City Council" means the City Council of the City of El Segundo.
"Developer" means Rosecrans Sepulveda Partners 4 LLC and its transferees, assigns and
successors in interest.
"Development Constraints" means all of the following:
* No building shall exceed 140 feet in height",
* Parking shall be in an amount which meets the El Segundo Municipal Code and may
be located in a combination of surface parking, underground parking, and a parking
structure', and
* Access shall be taken from two driveways along Rosecrans Boulevard and one
driveway accessing the Property off of Nash Street, consistent with the Site Plans for
the Media Campus.
"Development Standards" means the Site Development Standards set forth in the ESMC
for the Urban Mixed -Use South zone, as well as those provisions of the ESMC relating to such
things as landscaping, off-street parking and loading spaces, and signs. The Development
Standards are part of the Applicable Rules.
"Director" means the Director of Planning and Building Safety, or his designee.
"Effective Date" means the date on which the Enabling Ordinance becomes effective in
accordance with Government Code § 36937.
"Enabling Ordinance" means Ordinance No. 1587, approving this Development
Agreement.
"Future Approvals" means such subsequent discretionary and ministerial entitlements,
including permits, which are required to develop the Project in addition to the Project Approvals,
and which are applied for by the Developer and approved by the City. Once approved, a Future
Approval becomes part of the Project Approvals.
"Alternatives" means Alternatives 1, 2, or 3 as described below:
Alternative I shall consist of the following development components: (a) 25,000
square feet of retail space-, (b) 100,000 square feet of general office space with the
C)
Agreement No. 5751
option to incorporate a roof deck; and (c) 188,000 square feet of studio ano-I
1-rroduction facilities, as shown in the Site Plan attached hereto as Exhibit C.
Alternative 2 shall consist of the following development components: (a) 100,000
square feet of research and development; (b) 10,000 square feet of retail; and (c)
100,040 square feet of creative office space with the option to incorporate a roof
deck, as shown in the Site Plan attached hereto as Exhibit D.
Alternative 3 shall consist of the following development component: (a) 261,990
square feet of creative office space with the option to incorporate a roof deck, as
shown in the Site Plan attached hereto as Exhibit E.
"Party" means the City or the Developer. "Parties" shall mean both the City and the
Developer.
"Project" means the development of the Property for the Beach Cities Media Campus or
one of the Alternatives in substantial conformance with the site plans attached hereto as Exhibits
B through E, in accordance with the Project Approvals and Applicable Rules.
Final Environmental Impact Report (FEIR) No. EA-1201, as certified by
Resolution No. 5159 on August 6, 2019;
0 Mitigation Monitoring Program for FEIR No. EA- 120 1, as adopted by Resolution
No. 5159 on August 6, 2019;
6 General Plan Amendment No. 17-01, as approved by Resolution No. 5160 on
August 6, 2019, including a change in the Land Use Map;
0 Zone Change No. 17-0 1, as approved by Ordinance No. 157 on August 20, 2019,
c' including a change in the Zoning Map;
0 This Development Agreement as approved by Ordinance No. 1587 on August 20,
2019.
"Property" refers to that 6.37 acres which is described in Exhibit A, attached hereto and
incorporated herein by reference.
"Site Plan" refers to the conceptual development plans for the Beach Cities Media Campus
and each of the three Alternatives as shown on Exhibits B through E, attached hereto and
tD
incorporated herein. by reference.
I
Agreement No. 5751
"Subsequent Rules" means any changes to the Applicable Rules, including, without
i
limitation ani chanie bV means of an or -- dinance, initiative, resoo
lution, policy, order or moratrium, - 11 so
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ommission or any otner t5oaro, agency, commissi7nmT "FaILHICUL W1 L11C WIFLUCI—P
employee thereof, or by the electorate, which would, absent this Agreement, otherwise apply to
the Property.
" Transferee" means a Person which assumes in whole or in part the rights and obligations
under this Agreement with respect to all or a portion of the Property.
2. Recitals. This Agreement is made with respect to the following facts and for the following
purposes, each of which is acknowledged as true and correct by the Parties:
2.1 Pursuant to Government Code § 65865 et seq., the City is authorized to enter into
a binding contractual agreement with any person having a legal or equitable interest in real
property for the development of such property.
2.3 Developer desires to redevelop the Property, which is a former industrial
w6 ?, mix of commercial uses in order to comj2lete the Rosecrans
2.4 By this Agreement, each Party desires to obtain the binding agreement of the other
Party to develop the Property in accordance with the Project Approvals, Applicable Rules and this
Agreement. In consideration thereof, the City agrees to limit the future exercise of certain of its
governmental and proprietary powers to the extent specified in this Agreement. The Developer
agrees to waive its rights, if any, to challenge legally the limitations on density and use imposed
upon development of the Property and other restrictions and obligations set forth in this Agreement
and the Project Approvals.
2.5 City and Developer have acknowledged and agreed that the consideration that is to
be exchanged pursuant to this Agreement is fair, just and reasonable.
2.6 This Agreement is intended to provide flexible entitlements to develop the Media
Campus or one of the three Alternatives, within the parameters set forth herein and subject to the
terms and conditions hereof, to meet the changing market demands that are likely to occur
throughout the Term of this Agreement.
2.7 The Project uses are consistent with the City's General Plan, as amended, (the
"General Plan").
Agreement No. 5751
2.8 Development of the Project has, and will continue to, further the comprehensive
planning objectives contained within the General Plan, and will result in public benefits, including,
among others, the following:
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2.8.2 Providing fiscal benefits to City's general fund in terms of increased utility,
business license, property and sales tax revenues, which are anticipated to exceed $390,000
annually;
2.8.3 Providing both short-term construction employment and long-term
permanent employment within City;
2.8.6 Giving up the right to develop the Property with certain uses which are
allowed or conditionally allowed in the MU-S zone.
2.9 On May 23, 2019, the Planning Commission of the City commenced a duty noticed
public hearing on the Project Approvals. At the conclusion of the hearing the Planning
Commission recommended that the City Council approve the Project Approvals.
2.10 On August 6, 2019, 2019, the City Council commenced a duly noticed public
hearing on the Project Approvals. Prior to approving this Agreement by the Enabling Ordinance,
the City Council adopted Resolution No. 5159 approving the FEIR.
2.11 All of the Property is subject to this Agreement.
3. Bindinc, Effect. The burdens of this Agreement are binding upon, and the benefits of the
Agreement inure to the City and the Developer and each successive transferee, assign and
successor in interest thereto and constitute covenants that run with the land. Any and all rights
and obligations that are attributed to the Developer under this Agreement shall run with the land.
3.1 Construcliye Noticand 6cce . Every person who acquires any right, title or
interest in or to any portion of the Property in which the Developer has a legal interest is, and shall
be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or
not any reference to this Agreement is contained in the instrument by which such person acquired
such right, title or interest.
3.2 Riahts to Assigyn and Transfer, Developer may assign or transfer its rights and
rm?�
at any time during the term of this Agreement without approval of the City. For purpose of this
Agreement, the Transferee must be considered the "owner" of that portion of the Property which
Agreement No. 5751
3.3 Liabilities l.i on Transfer. Upon the delegation of the duties and obligations under
this Agreement and the sale, transfer or assignment of all or any portion of the Property, Developer
will be released from its obligations under this Agreement with respect to the Property, or portion
thereof, so transferred arising subsequent to the effective date of such transfer, if: (i) Developer
has provided to the City prior or subsequent written notice of such transfer; and (ii) the Transferee
has agreed in writing to be subject to all of the provisions hereof applicable to the portion of the
Property so transferred by executing an Assignment and Assumption Agreement in the for of
Exhibit F attached hereto and incorporated herein by reference. Upon any transfer of any portion
of the Property and the express assumption of Developer's obligations under this Agreement by
such Transferee, the City agrees to look solely to the Transferee for compliance by such Transferee
with the provisions of this Agreement as such provisions relate to the portion of the Property
acquired by such Transferee. Any such Transferee shall be entitled to the benefits of this
Agreement as "Developer" hereunder and shall be subject to the obligations of this Agreement
applicable to the parcel(s) transferred. A default by any Transferee shall only affect that portion
of the Property owned by such Transferee and shall not cancel or diminish in any way Developer's
rights hereunder with respect to any portion of the Property not owned by such Transferee. The
Transferee shall be responsible for satisfying the good faith compliance requirements set forth in
Section 8 below relating to the portion of the Property owned by such Transferee, and any
amendment to this Agreement between the City and a Transferee shall only affect the portion of
the Property owned by such Transferee.
3.4 Resgni tia t.L)f �Rjigl�its. If Transferee defaults with respect to any provision of this
Agreement, developer may, but is not obligated to, resume Transferee's obligations upon written
notification to City.
4. The following provisions, in addition to the Applicable
Rules, shall govern the development and use of the Property.
4.1 Permitted Uses. Desivn and Devel,W0111clit Standards. and Dedication of Land for
Public PqQ��. The permitted, administratively permitted, and conditionally permitted uses of
the Property as well as the Development Standards and provisions for reservation or dedication of
land for public purposes are set forth in the Project Approvals and Applicable Rules.
4.2 E:7ntitlenient to Develo . The Developer is granted the vested right to
develop the Project subject to the Applicable Rules, the Project Approvals, and any Future
Approvals..
4.3 Additionall, Rests iic,t�ia; ns. In addition to the Applicable Rules, the Project Approvals,
and this Agreement, Developer shall record a restriction against the Property prohibiting the
following uses: (i) drive -through restaurants; (11) adult businesses; (iii) catering services/flight
kitchens; (iv) freight forwarding; and (v) service stations. This restriction shall survive the
termination of this Agreement and the restrictions shall not be removed without the written consent
of the City.
6
Agreement No. 5751
4.5 Buildiniz Reaulations. Notwithstanding Section 4.6 below, all construction on the
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permit is submitted and to any Tecieral or MEE Duncling requireFrICrILS LIM UFC LIICII III ClIC-L.
time. Additionally, nothing in this Agreement prevents the City from applying "standard
specifications" for public improvements streets, storm drainage, parking lot standards,
that the provisions of any such standards and specifications apply only to the extent they are in
effect on a Citywide basis.
4.6 Sub setLu . Subsequent Rules cannot be applied by the City to any part of
the Property unless the Developer gives the City written notice of its election to have such
Subsequent Rule applied to the Property, in which case such Subsequent Rule is deemed to be an
Applicable Rule.
4.7 Fees, Exactions. Mitigation Measures. Conditions. Reservations and Dedications.
4.7.1 Subject to sections 4.7.2, 4.7.3, and 5.2, all fees, exactions, mitigation
measures, conditions, reservations and dedications of land for public purposes that are applicable
to the Project are set forth in the Applicable Rules, the Project Approvals, and this Agreement.
4.7.2 Except as otherwise provided in this Agreement, and specifically excluding
fees set by entities not controlled by the City that are collected by the City, the City can only charge
and impose those fees and exactions, including, without limitation, dedication and any other fee
relating to development or the privilege of development, which are in effect on a City-wide basis
as of the Effective Date.
4.7.3 The Developer must pay the amount of the impact fees that are in effect at
the time of application for the building permit pursuant to City Council Resolution Nos. 444' ) and
4687, or such subsequent resolutions as may be adopted by the City Council in accordance with
applicable procedures, but shall not be required to pay any new impact fees that are not in effect
at the time of Project Approvals.
4.7.4 This Section shall not be construed to limit the authority of the City to
charge normal and customary application, processing, and permit fees, including legal and
environmental processing costs, for land use approvals, building permits and other similar permits,
for Future Approvals, which fees are designed to reimburse City's actual expenses attributable to
such application, processing and permitting and are in force and effect on a City-wide basis at such
time as applications for such approvals are filed with the City.
4.9 Use of Easements. Notwithstanding the provisions of the Applicable Rules,
easements dedicated for vehicular and pedestrian use shalt be permitted to include easements for
underground drainage, water, sewer, gas, electricity, telephone, cable, and environmental
Agreement No. 5751
remediation and other utilities and facilities so long as they do not unreasonably interfere with
pedestrian and/or vehicular use.
4.9 :F�iaiiri In Pardee Construction Co. v. City of'Camarillo (Pardee),
37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to
provide for the timing or rate of development resulted in a later -adopted initiative restricting 0 the
rate of development to prevail against the parties' agreement. City and Developer intend to avoid
the result in Pardee by acknowledging and providing that Developer shall have the right, without
obligation, to develop the Property in such order and at such rate and times as Developer deems
appropriate within the exercise of its subjective business judgment subject to the terms of this
Agreement.
In furtherance of the Parties' intent, as set forth in this Section, no future
amendment of any existing City ordinance or resolution, or future adoption of any ordinance,
resolution or other action, that purports to limit the rate or timing of development over time or alter
the sequencing of development phases, whether adopted or imposed by the City Council or through
the initiative or referendum process, shall apply to the Property. However, nothing in this Section
shall be construed to limit City's right to enforce Developer's obligation pursuant to this
Agreement to provide all infrastructure required by the Project Approvals and this Agreement.
4.10 Moratorium.
4.10.1 The City shall not impose a moratorium on the Property unless such is
necessary to protect a significant threat to the health, safety and welfare of the City.
4.10.2 Except as provided in Section 4.10.1 above, no City -imposed moratorium
or other limitation (whether relating to the rate, timing or sequencing of the development or
construction of all or any part of the Property, whether imposed by ordinance, initiative, resolution,
policy, order or otherwise, and whether enacted by the City Council, an agency of the City, the
electorate or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative,
wr ficpl)l 0001ing iywrmits QcQulgancp certificates or other entitlements to use or service (including,
without limitation, water and sewer), approved, issued or granted within the City, or portions CTF
the City, applies to the Property to the extent such moratorium or other limitation is in conflict
with this Agreement. However, the provisions of this Section do not affect the City's compliance
with moratoria or other limitations mandated by other governmental agencies or court -imposed
moratoria or other limitations.
4.11 Term. This ARreement shall be in effect for a period of 10 years from the Effective
Date of the Enabling Ordinance. However, the Developer or the City shall be entitled to, by written
notice to the other Party prior to the Agreement's expiration, one (1) five (5)-year extension,
ri �,-44 - �d
any applicable period to cure provided for by Section 8.5 below. Before the expiration of the five
(5) year extension, the Parties may mutually agree to further extensions. In the event of litigation
challenging this Agreement, the Term is automatically suspended for the duration of such litigation
and resumes upon final disposition of such challenge and any appeal thereof upholding the validity
Agreement No. 5751
of this Agreement. In the event that a referendum petition concerning this Agreement is duly filed
in such a manner that the ordinance approving this Agreement is suspended, then the Term is
deemed to commence upon City Council certification of the results of the referendum election
approving this Agreement.
Co
Code Sections 664,52.6(a) an=637UIC W17111VI UHJ STWOO-F s
in the future may be processed on all or any portion of the Property and the term of each of the
Project Approvals shall be extended for a period of time through the scheduled termination date
of this Agreement as set forth in Section 4.11 above, including, any extensions thereto.
4.13 FLItL11'e
4.13.1 Minor Modifications to Project. The Developer may make minor changes
to the Project and Project Approvals ("Minor Modifications") without the need to amend this
Agreement upon the administrative approval of the Director.
W A modification to the Site Plan for the Media Campus, or the
Alternatives, provided the Director determines, in his/her discretion, that the Site Plan is
substantially similar to the approved Site Plans attached hereto as Exhibits B through E; the
modification complies with the Development Constraints; and there is no change which would
qualify as a Major Modification under section 4.13.2 below;
(ii) A different mix of retail space, general or creative office
space, studio and production facilities, or research and development uses provided that it meets
the Development Constraints and the Director determines that no subsequent or supplemental EIR
is required and any new impacts can be mitigated; and
(iii) any other change that does not qualify as a Major
Modification as defined below.
(b) The City shall not unreasonably withhold or delay approval of any
Minor Modification. The City shall have the right to impose reasonable conditions in connection
with Minor Modifications, provided, however, such conditions shall not be inconsistent with the
Applicable Rules, the Project Approvals or with the development of the Project as contemplated
by this Agreement.
(c) LVIinor Niodification of LlrcjLct Ap.pLtLivaLs A Minor Amendment
_
approved by the City shall continue to constitute the Project Approvals as referenced herein.
4.13.2 NtodificatioLi5 RLcLt6ring Aniendn-1 !-to this Agreetnerit. Any proposed
modification to the Project which results in any of the following shall constitute a Major
Modification and shall require an amendment to this Agreement pursuant to Section 14 below:
I
Agreement No. 5751
(a) Any decrease in the required building setbacks of the MU-S Zons
(b) Any increase in the total developable square footage of the entire
Property in excess of a maximum FAR of 1. 13;
(c) Any increase in height of buildings or structures on the Property
11
�e) Any decrease in the minimum required lot frontage as set forth in
the MU-S Zone;
(f) Any increase to the level of significance of any traffic impact, unless
a subsequent traffic report has been prepared to the reasonable satisfaction of the Director that
identifies potential impacts and proposes feasible mitigation measures to mitigate such impacts
and otherwise complies with CEQA;
(g) Any change to the access of the Property from having two driveways
on Rosecrans Boulevard and one driveway accessing the Property off of Nash Street;
(h) Any decrease to the amount of parking below that required by the
El Segundo Municipal Code-,
(i) Any change which creates a new environmental impact which
cannot be mitigated to a level of insignificance;
0) Any change in use to a use which is not permitted under this
Agreement, but is otherwise permitted in the MU-S Zone.
4.14 Site Plan Review. Site Plan Review approval shall be required in accordance with
Chapter 15-30 of the El Segundo Municipal Code. Nothing in this Agreement is intended to limit
the applicability of the Site Plan Review requirement in Chapter 15-30 of the ESMC.
4.15 Issuance of Buildina Permits. No building permit, final inspection or Certificate of
Occupancy will be unreasonably withheld, conditioned, or delayed from the Developer if all
infrastructure required to serve the portion of the Property covered by the building permit, final
inspection or Certificate of Occupancy is in place or is suitabty guaranteed to be completed (by
covenant, bond, letter of credit or otherwise) to the reasonable satisfaction of the City prior to
Fthe Proiect I )wrovals- Futu WE
Agreement No. 5751
Approvals and this Agreement have been satisfied.
5. Developer Aareements.
5.1 General. The Developer shall comply with: (i) this Agreement; (ii) the Project
Approvals, including without limitation all mitigation measures required by the determination
made pursuant to the California Environmental Quality Act; and (iii) all Future Approvals for
which it is the applicant or a successor in interest to the applicant.
5.1.1 In the event that any of the mitigation measures or conditions required of
Developer hereunder have been implemented by others, Developer shall be conclusively deemed
to have satisfied such mitigation measures or conditions, consistent with CEQA. If any such
mitigation measures or conditions are rejected by a governmental agency with jurisdiction, the
Developer may implement reasonably equivalent substitute mitigation, consistent with CEQA, to
the City's satisfaction, in lieu of the rejected mitigation measures or conditions. Such substitution
shall be deemed to be a Minor Modification pursuant to Section 4.13.1 above.
5.2 DevelWiLi�jnt Fees. Subject to the provisions of Section 4.7 above, Developer shall
pay the development fees in effect at the time of building permit application. The Developer shall
be entitled to credits against the City's traffic mitigation fees to the extent off -site traffic
improvements that are required by the Project Approvals are included in any subsequent traffic fee
mitigation program adopted by the City pursuant to Government Code Section 66000, et seq. Such
credits shall be based upon the actual audited costs and shall only be granted to the extent Such
improvements are constructed in accordance with all applicable state and local laws. The
Developer waives any and all rights it may have to challenge development fees that are in effect
at the time of the Effective Date and the City's right to amend its current development fees.
However, the Developer retains the legal right to challenge the amount of any such amended or
increased development fees to the extent such are not in compliance with the requirements of
Government Code Section 66000, et seq. as well as its right to receive credits against such amended
or increased fees.
5.3 Nhiintenance Obligations. The Developer shall maintain all portions of the
Property in its possession or control, and any improvements thereon, in a first class clean, neat and
orderly manner. The Parties' respective maintenance obligations shalt survive any termination or
expiration of this Agreement.
5.4 Sales and lase Iax
5.4.1 In the event the contract price for any work on the Project is valued at five
million dollars ($5,000,000.00) or more, Developer agrees to report, on a State Board of
Equalization Tax Return, any purchases of tangible personal property made in connection with the
finishing of and/or installation of materials, or fixtures for the Project, when such purchases were
made without sales or use tax due. Developer shall indicate the City as a registeredjob site location
on the State Board of Equalization Tax Return. In such event, Developer shall also obtain a permit
or a sub -permit from the State Board of Equalization indicating the City as the registered job site
Agreement No. 5751
location, in accordance with Revenue and Taxation Code § 7051.3 or State Board of Equalization
Compliance Policy and Procedure Manual § 295.060.
5.4.2 Developer further agrees that if Developer retains contractors or
subcontractors to perform a portion of work in the Project, and said contracts or subcontracts are
valued at five million dollars ($5,000,000) or more, said contracts or subcontracts shall contain the
provisions set forth in Subsection (a) above.
5.4.3 The Director of Finance of the City is authorized to relieve Developer, and
Developer's contractors and subcontractors, from the requirements set forth in this Section 5.,ir
upon proof to the reasonable satisfaction of the Director of Finance that Developer and/or its
contractors or subcontractors have made good faith efforts to obtain said permit or sub -permits,
but were denied the same by the State Board of Equalization.
6. CItv Avreements
,,,x edit�ecL.Processing. The City shall process, at Developer's expense, in an
expedited manner all plan checking, excavation, grading, building, encroachment and street
improvement permits, Certificates of Occupancy, utility connection authorizations, and other
ministerial permits or approvals necessary, convenient or appropriate for the grading, excavation,
ect in accordance with the
City's accelerated plan check process under the Applicable Rules. Without limiting the foregoing,
if requested by Developer, the City agrees to utilize private planners and plan checkers (upon
Developer's request and at Developer's cost) and any other available means to expedite the
processing of Project applications, including concurrent processing of such applications by various
City departments.
6.2 ilro��cessij, �()peration and Assistance. To the extent permitted by law, the City
shall reasonably cooperate with the Developer in securing any and all entitlements, authorizations,
permits or approvals which may be required by any other governmental or quasi -governmental
entity in connection with the development of the Project or the Property. Without limiting the
foregoing, the City shall reasonably cooperate with the Developer in any dealings with federal,
Property. The City shall keep the Developer fully informed with respect to its communications
with such agencies which could impact the development of the Property. The City must not take
any actions to encourage any other governmental or quasi -governmental entities from withholding
any necessary approvals and any such contrary actions on the part of the City must be considered
a breach of this Agreement by City.
6.3 Processin,., Du d [:Iartv Litigation. The filing of any third party lawsuit(s)
against the City or the Developer relating to this Agreement, the Project Approvals, any Future
Approvals or to other development issues affecting any portion of the Property or the Project shall
not hinder, delay or stop the development, processing or construction of the Project, approval of
trwWwamyeq* I-e of ministerial. itermits oLaVrovals unless the third,,iaW,, obtains
a court order restraining the activity. The City must not stipulate to or cooperate in the issuance
1.2
Agreement No. 5751
of any such order.
6.4 L)er(grn1,111ce gfDirector . The City shall ensure that a person or persons are
designated at all times to carry out the duties of the Director set forth in this Agreement.
7. ModificationLSus4)enstion.
--
7.1 Pursuant to Government Code Section 65 869.5, in the event that any state or federal
taw or regulation, enacted after the Effective Date, precludes compliance with any provision of
this Agreement, such provision shall be deemed modified or suspended to the extent practicable
to comply with such state or federal law or regulation, as reasonably determined necessary by City.
Upon repeal of said law or regulation or the occurrence of any other event removing the effect
thereof upon the Agreement, the provisions hereof shall be restored to their full original effect.
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7.2 In the event any state or federal resources agency (i.e., California Department of
Fish and Game, U.S. Fish and Wildlife Service, U.S. Army Corps of Engineers, Regional Water
of a permit or certification for all or a portion of the Project, imposes requirements ("Permitting
Requirements") that require modifications to the Project, then the parties will work together in
good faith to incorporate such changes into the Project; provided, however, that if Developer
the completion of such appeal or challenge.
Demonstration of'Good Faitli Conir)hance.
8.1 Review of' Co
J� �tiatLce. In accordance with Government Code Section 65865.1,
this Section 8 and the Applicable Rules, once each year, on or before each anniversary of the
Effective Date ("Periodic Review"), the City Planning and Building Safety Director shall review
the extent of the Developer's good faith substantial compliance with the terms and provisions of
this Agreement as well as the performance by the City of its obligations under this Agreement.
8.2 Good Faiith Compliance. During each Periodic Review, the Developer shall ap
demonstrate by written status re ort that, during the preceding twelve (12) month period, tht
has been in good faith compliance with this Agreement. For purposes of this Agreement, the
phrase "good faith compliance" shall mean that the Developer has demonstrated that it has acted
xist), and
�tances �which �then �e
in good faith in and has substantially complied with the Developer's material obligations under
this Agreement.
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8.3 City- R�, �ort - Wforination to be Provided to Qevelo.pr, At least 14 days before the
annul anniversary of the Effective Date, the City must deliver to the Developer a copy of all staff
reports prepared in connection with a Periodic Review, any prior staff reports generated during the
review period, written comments from the public, and, to the extent practical, all related exhibits
concerning such Periodic Review. This information shall be known as the "City Report."
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Agreement No. 5751
1
8.4 Developer,� Repcyt- No later than the annual anniversary of the Effective Date,
r! pr*ill, mlimilk_evdo�xer in accordance with section
8.3 above.
8.5 Notice of Non -Compliance, Cure Rights. If, after reviewing the Developer's
DEIS 1 S
or parcels comprising the Property, Developer has not demonstrated that it is in good faith
compliance with this Agreement, the Director may issue and deliver to the Developer a written
Notice of Violation as set forth in Section 10 below.
8.6 I'lublic Notice of FJ.. Any appeal of the Director's determination (including
any appeal by the Developer) must be filed within twenty (20) days following such decision. Filing
such an appeal tolls the cure period specified in the Notice of Violation. Notwithstanding Section
13.1, an appeal regarding the Notice of Violation shall be heard directly by the City Council at a
duly -noticed public hearing and the City Council must issue a final decision. Developer retains
§ 1094.5 without complying with the procedures set forth in Section 10.4 below.
8.7 Failure of Periodic Review. The City's failure to review, at least annually,
compliance by the Developer with the terms and conditions of this Agreement shall not constitute
or be asserted by any Party as a breach by any other Party of this Agreement. If the City fails to
provide the City Report by the Effective Date, Developer will be deemed to be in good faith
compliance with this Agreement.
9. Excusable De�ays. Performance by any Party of its obligations hereunder shall be excused
during any period of "Excusable Delay," as hereinafter defined, provided that the Party claiming
the delay gives notice of the delay to the other Party as soon as reasonably possible after the same
has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects,
and is beyond the reasonable control of, the Party claiming the delay, including without limitation:
(i) act of God; (ii) civil commotion: (iii) riot: (iv) strike, picketing or other labor dispute; M
shortage of materials or supplies; (vi) damage to work in progress by reason of fire, flood,
earthquake or other casualty; (vii) reasonably unforeseeable delay caused by a reasonably
unforeseeable restriction imposed or mandated by a governmental entity other than City; (viii)
litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a
Future Approval or any other action necessary for development of the Property; (Ix) delays caused
by any default by City or the Developer hereunder; or (x) delays due to the presence or remediation
of hazardous materials. The term of this Agreement, including any extensions, shall be extended
by any period of Excusable Delay.
I . ......... — I
10.1 Default. Either Party to this Agreement shall be deemed to have breached this
Agreement if it materially breaches any of the provisions of this Agreement and the same is not
b
cured within the time set forth in a written notice of violation (the "'Notice of Violation") from the
Agreement No. 5751
non -breaching Party to the breaching Party, which period of time shall not be less than ten (10)
days for monetary defaults, and not less than sixty (60) days for non -monetary defaults from the
date that the notice is deemed received, provided if the breaching Party cannot reasonably cure a
non -monetary default within the time set forth in the notice, then the breaching Party shall not be
in default if it commences to cure the default within such time limit and dificrently effects such
curethereafter. Iftheci determines that a default 6ma have occurred, the Cit shall ivewritten
----------------
procedures, mediation, or court proceedings.
10.2 Content of Notice of Violation. Every Notice of Violation shalt state with
specificity that it is given pursuant to this Section of the Agreement, the nature of the alleged
breach, (including references to the pertinent provisions of this Agreement), the portion of the
Property involved, and the manner in which the breach may be satisfactorily cured. The notice
shall be deemed given in accordance with Section 19 hereof.
Remedies for Breach. The Parties agree that the remedies for breach of this
Agreement shall be limited to the remedies expressly set forth in this section. Developer's
remedies for any breach of this Agreement by City shall be limited to injunctive relief and/or
specific performance.
10.4 Resolutkni off).isputes. The City and the Developer agree to attempt to settle any
claim, disAute or controversli arising from this Agreement through consultation and negotiation in
good faith and in spirit of mutual cooperation. If those attempts fail, the dispute may be mediated
by a mediator chosen jointly by the City and the Developer within 30 days after notice by one of
the parties demanding non -binding mediation. Neither Party may unreasonably withhold consent
to the selection of a mediator. The City and the Developer will share the cost of the mediation
equally. The Parties may agree to engage in some other form of non -binding alternate dispute
resolution ("ADR") procedure in tieu of mediation. Any dispute that cannot be resolved between
the Parties through negotiation or mediation within two months after the date of the initial demand
of Los Angeles, California.
10.5 Attornev's and C s.. Each Party to this Agreement agrees to waive any
entitlement of attorney's fees and costs incurred with respect to any dispute arising from this
Agreement. The parties will each bear their own attorney's fees and costs in the event of any
dispute.
i �k)ilguaee Protection. -rhis Agreement shall not prevent or limit the Developer, in any
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Agreement No. 5751
manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or
any improvements thereon by any mortgage, deed of trust or other security device. The City
acknowledges that the lender(s) providing such financing ("Mortgagee") may require certain
eewtmt interDretations and a2rees, upon request, from time to time, to meet with the Developer
Iwo
of this Agreement. Any Mortgagee of a mortgage or a beneficiary of a deed of trust or any
successor or assign thereof, including without limitation the purchaser at ajudicial or non -judicial
foreclosure sale or a person or entity who obtains title by deed -in -lieu of foreclosure on the
Property shall be entitled to the following rights and privileges:
11.1 k1grtga le Not Rendered Invalid. Neither entering into this Agreement nor a breach
of this Aareement shall defeat, render invalid, diminish, or impair the priority of the lien of any
mortgage or deed of trust.on the Property made in good faith and for value. No Mortgagee shall
have an obligation or duty under this Agreement to perform the Developer's obligations, or to
guarantee such performance, prior to taking title to all or a portion of the Property.
11.2 &qM.:-t fbr Notice tL) �Igrt The Mortgagee of any mortgage or deed of trust
encumbering the Property, or any part thereof, who has submitted a request in writing to the City
in the manner specified herein for giving notices, shall be entitled to receive a copy of any Notice
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of Violation delivered to the Developer.
11.3 Mortgagees Time to Cure. The City shall provide a copy of any Notice of
has reiruested such covii within ten -U 0)-da--,,,s of sending the Notice
L
of Violation to the Developer. The Mortgagee shall have the right, but not the obligation, to cure
the default for period of sixty (60) days after receipt of such Notice of Violation, or such longer
period of time as may be specified in the Notice. Notwithstanding the foregoing, if such default
shall be a default which can only be remedied by such Mortgagee obtaining possession of the
Property, or any portion thereof, and such Mortgagee seeks to obtain possession, such Mortoragee
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or if such default
cannot reasonably be cured within such period, to commence to cure such default, provided that
such default is cured no later than one (t) year after Mortgagee obtains such possession.
11.4 Cure Rights. Any Mortgagee who takes title to all of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or a deed in lieu of foreclosure,
shall succeed to the rights and obligations of the Developer under this Agreement as to the Property
or portion thereof so acquired; provided, however, in no event shall such Mortgagee be liable for
any defaults or monetary obligations of the Developer arising prior to acquisition of title to the
Property by such Mortgagee, except that any such Mortgagee shall not be entitled to a building
permit or occupancy certificate until all delinquent and current fees and other monetary or non -
monetary obligations due under this Agreement for the Property, or portion thereof acquired by
such Mortgagee, have been satisfied.
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I L5 l3atikrupicy. If any Mortgagee is prohibited from commencing or prosecuting
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Agreement No. 5751
foreclosure or other appropriate proceedings in the nature of foreclosure by any process or
injunction issued by any court or by reason of any action by any court having jurisdiction of any
bankruptcy or insolvency proceedings involving the Developer, the times specified in Section 10
above shall be extended for the period of the prohibition, except that any such extension shall not
extend the term of this Agreement.
11.6 Dis,affirniation. If this Agreement is terminated as to any portion of the Property
by reason of (i) any default or (ii) as a result of a bankruptcy proceeding, and this Agreement is
disaffirmed by a receiver, liquidator, or trustee for the Developer or its property, the City, if
requested by any Mortgagee, shall negotiate in good faith with such Mortgagee for a new
development agreement for the Project as to such portion of the Property with the most senior
Mortgagee requesting such new agreement. This Agreement does not require any Mortgagee or
the City to enter into a new development agreement pursuant to this Section.
12. EstOD)el Certificate. At any time and from time to time, the Developer may deliver written
notice to City and City may deliver written notice to the Developer requesting that such Party
certify in writing that, to the knowledge of the certifying Party: (i) this Agreement is in full force
and effect and a binding obligation of the Parties; (ii) this A greement has not been amended, or if
amended, the identity of each amendment; and (iii) the requesting Party is not in breach of this
Agreement, or if in breach, a description of each such breach. The Party receiving such a request
shall execute and return the certificate within thirty (30) days following receipt of the notice. The
failure of the City to deliver such a written notice within such time shall constitute a conclusive
presumption against the City that, except as may be represented by the Developer, this Agreement
is in full force and effect without modification, and that there are no uncured defaults in the
performance of the Developer. The City Planning and Building Safety Director shall be authorized
to execute, on behalf of the City, any Estoppel Certificate requested by the Developer. City
requested the certificate and by holders of record of deeds of trust on the portion of the Property
in which that Developer has a legal interest.
13. Adniinistration of Am-eenient.
13.1 Aotieal o,f SiLaff Determinations. Any decision by City staff concerning the
interpretation or administration of this Agreement or development of the Property in accordance
herewith may be appealed by the Developer to the Planning Commission, and thereafter, if
necessary, to the City Council pursuant to the El Segundo Municipal Code. The Developer shall
not seekjudicial review of any staff decision without first having exhausted its remedies pursuant
to this Section. Final determinations by the City Council are subject to judicial review subject to
the restrictions and limitations of California law.
13 2 0 in!-� lenioranch The provisions of this Agreement require a close degree of
Lier _1 a,
g� - �'Vleniora
cooperation between City and Developer. During the Term of this Agreement, clarifications to
this Agreement and the Applicable Rules may be appropriate with respect to the details of
performance of City and Developer, If and when, from time to time, during the term of this
Agreement, City and Developer agree that Such clarifications are necessary or appropriate, they
17
Agreement No. 5751
15.2 Deffense of' Agreement, If the City accepts Developer's indemnification and
defense as provided in Section 15.1 above, the City agrees to and shall timely take all actions
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Agreement No. 5751
which are necessary or required to uphold the validity and enforceability of this Agreement, th*
Discretionary Approvals, Project Approvals, Development Standards, and the Applicable Rulea
This Section 15 shall survive the ten-nination of this Agreement.
16. Coop.-,rLtJon in the Event of Le2al 011alleime.
16.1 Third Party Challenges. In the event of any administrative, legal or equitable action
or other proceeding instituted by any person or entity not a party to the Agreement challenging the
validity of any provision of this Agreement, challenging any Approval, or challenging the
sufficiency of any environmental review of either this Agreement or any Approval under CEQA
(each a "Third Party Challenge"), each party must cooperate in the defense of such Third Party
Challenge, in accordance with this Section. Developer agrees to pay City's costs of defending a
Third Party Challenge, including all court costs and reasonable attorney's fees expended by City
(including the time and cost of the City Attorney) in defense of any Third Party Challenge, as well
as the time of City's staff spent in connection with such defense. Developer may select its own
legal counsel to represent Developer's interests in any Third Party Challenge at Developer's sole
cost and expense. City agrees that it will not enter into a settlement agreement to any Third Party
Challenge without Developer's written consent. Developer's obligation to pay City's costs in the
defense of a Third Party Challenge shall not extend to those costs incurred on appeal if Developer
notifies the City is writing that it does not wish to pursue the appeal.
16.2 Third E�art The
provisions of this Section will apply only in the event of a legal or equitable action or other
WVr Q^ i, . .♦ . not a
party to the Agreement challenging the applicability to the Project or Project Site of a
conflicting City Law (a "Third Party Enforcement Action"):
16.2.1 In the event of a Third Party Enforcement Action, City must: (i) promptly
notify Developer of such action or proceeding; and (ii) stipulate to Developer's intervention as a
party to such action or proceeding unless Developer has already been named as a respondent or
real party in interest to such action or proceeding. In no event will City take any action that would
frustrate, hinder, or otherwise complicate Developer's efforts to intervene, join or otherwise
participate as a party to any Third Party Enforcement Action. As requested by Developer, City
must use its best efforts to ensure that Developer is permitted to intervene, join or other -wise
participate as a party to any Third Party Enforcement Action. If, for any reason, Developer is not
permitted to intervene, join or otherwise participate as a party to any Third Party Enforcement
Action, the parties to this Agreement agree to cooperate, to the maximum extent pen-nitted by law,
in the defense of such action or proceeding. For purposes of this Section, the required cooperation
between the parties includes, without limitation, developing litigation strategies, preparing
litigation briefs and other related documents, conferring on all aspects of the litigation, developing
settlement strategies, and, to the extent permitted by law, jointly making significant decisions
related to the relevant litigation, throughout the course thereof.
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Agreement No. 5751
16.2.2 City's costs of defending any Third Party Enforcement Action, including
all court costs, and reasonable attorney's fees expended by City (including the time and cost of the
City Attorney) in defense of any Third Party Enforcement Action, as well as the time of City's
staff spent in connection with such defense (the "Enforcement Action Defense Costs), will be paid
in accordance with this Agreement. The Enforcement Action Defense Costs shall extend to, and
Developer will be obligated to pay, any costs incurred on appeal unless Developer notifies the City
in writing that it does not wish to pursue the appeal.
16.2.3 City must not enter into a settlement agreement or take any other action
to resolve any Third Party Enforcement Action without Developer's written consent. City cannot,
without Developer's written consent, take any action that would frustrate, hinder or otherwise
prevent Developer's efforts to settle or otherwise resolve any Third Party Enforcement Action.
16.2.4 Provided that City complies with this Section and provided that
Developer is a party to the relevant Third Party Enforcement Action, Developer agrees to be bound
by any final judgment (i.e., following all available appeals) arising out of a Third Party
Enforcement Action and further agrees that no default under this Agreement will arise if such final
judgment requires City to apply to the Project or Project Site a City Law that conflicts with
Applicable Law or this Agreement.
17. "J"irne of Essence. Time is of the essence for each provision of this Agreement of which
time is an element.
18. Effective Date. This Agreement shall become operative on the date the Enabling
Ordinance approving this Development Agreement becomes effective (the "Effective Date")
ID
pursuant to Government Code Section 36937.
19. Notices. Any notice that a party is required or may desire to give the other must be in
vs"i ap be sent bp: i� Gwersonal del iiby, delosit in the United States mail, jostage
paid, registered or certified mail, return receipt requested; or iii) by overnight delivery using a
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fa- wi evidenced
by confirmed receipt; or v) by electronic delivery, evidenced by confirmed receipt, addressed as
follows:
If to City: City of El Segundo
350 Main Street
El Segundo, CA 90245
Attention: City Manager
Phone: 310/524-2301
Fax: 310/322-7137
E-mail:
With a Copy to: City of EaSegurid-o
350 Main Street
Secl.pm.do, CA 90245
20
Agreement No. 5751
Attention: Director of Planning and Building Safety
Phone: 310/524-2346
Fax: 3 l0/322-4167
E-mail: slcr relse utd�.o�
With a Copy to: Hensley Law Group
3655 Torrance Boulevard, Suite 300
Torrance, California 90503
Attention: Mark D. Hensley, Esq.
Phone:
Fax:
E-mail: zlersllcmmtl��a
If to Developer: Rosecrans-Sepulveda 4, LLC
Richard L. Lundquist
President
Continental Development Corporation
2041 Rosecrans Avenue, Suite 200
El Segundo, CA 90245
Phone: 310/640-1520, ext.
Fax: 310/414-9279
E-mail: rundquist@continentaldevelopment.com
With a Copy to: Rosecrans-Sepulveda 4, LLC
Alex Rose
Senior Vice President.
Continental Development Corporation
2041 Rosecrans Avenue, Suite 200
El Segundo, CA 90245
Phone: 310/640-1520
Fax: 310/414-9272
E-mail arose@continentaldevelopment.com
With a Copy to: Allan Mackenzie
c/o Mar Ventures, Inc.
721 N. Douglas Street
El Segundo, CA 90245
Phone:
Fax
E-mail: allan.mackenz.ie(- maryentures.co
With a Copy to: Lisa Kranitz
Wallin, Kress, Reisman & Kranitz, LLP
21
Agreement No. 5751
11355 Olympic Boulevard, Suite 300
Los Angeles, CA 90064
Phone: 310/450-9585
Fax: 310/450-0505
E-mail: lisw2MMdami.com
Either City or Developer may change its mailing address at any time by giving written notice of
such change to the other in the manner provided herein at least ten days prior to the date such
change is affected. Any notice given by mail is deemed to have been given as of the date of
delivery (whether accepted or refused) established by the United State Post Office, return receipt,
or the overnight carrier's proof of delivery as the case may be. Notices given in any other manner
are effective only if and when received by the party to be notified between the hours of 8:00 a.m.
and 5:00 p.m., local time of the recipient, of any business day with delivery made after such hours
deemed received the following business day.
20. ]Entire Ngreejnent. This Agreement contains the entire agreement between the Parties
regarding the subject matter hereof, and supersedes in its entirety all prior agreements or
understandings, oral or written. This Agreement shall not be amended, except as expressly
provided herein.
21. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any
other provision, whether or not similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in
writing by a duty authorized representative of the Party against whom enforcement of the waiver
is sought.
22. -Su sion of..Subs quent Laws off'Rldicial Action..., The provisions of this Agreement
must, to the extent feasible, be modified or suspended as may be necessary to comply with any
new law or decision issued by a court of competent jurisdiction, enacted or made after the effective
date which prevents or precludes compliance with one or more provisions of this Agreement.
Immediately after enactment of any such new law, or issuance of such decision, the parties must
meet and confer in good faith to determine the feasibility of any such modification or suspension
based on the effect such modification or suspension would have on the purposes and intent of this
Agreement.
23. Severability'. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to
the extent the remaining provisions are not rendered impractical to perform, taking into
consideration the purposes of this Agreement.
24. Relatiorisl cal the T
&��Ii)_ _,Iaqti,��s Each Party acknowledges that, in entering into and performing
under this Agreement, it is acting as an independent entity and not as an agent of any other Party
in any respect. Nothing contained herein or in any document executed in connection herewith
shall be construed as creating the relationship of partners, joint ventures or any other association
of any king or nature between City and Developer, jointly or severally.
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Agreement No. 5751
25. No Third-Partv Beriet'iciaries. This Myreement is made and entered into for the sole benefit
of the Parties and their successors in interest. No other person or party shall have any right of
action based upon any provision of this Agreement.
26. Recorclation ofeueement and Amendments. This Agreement and any amendment thereof
shall be recorded with the County Recorder of the County of Los Angeles by the City Clerk of
City.
27. Cooperation Between City and DeyLloper. City and Developer shall execute and deliver
to the other all such other and further instruments and documents as may be reasonably necessary
to carry out the purposes of this Agreement. Upon satisfactory performance by Developer, and
su4ject t ii i6i nuin i coot)eration of the Develo i er I Cit i will commence and in a timel i manner
Lill
of the Project or Property in accordance with the terms of this Agreement.
28. ' Rules of Construction. The captions and headings of the various sections and subsections
of this Agreement are for convenience of reference only, and they shall not constitute a part of this
Agreement for any other purpose or affect interpretation of the Agreement. Should any provision
of this Agreement be found to be in conflict with any provision of the Applicable Rules or the
Project Approvals or the Future Approvals, the provisions of this Agreement shall control.
29. Joint This Agreement shall be deemed to have been prepared jointly and
equally by the Parties, and it shall not be construed against any Party on the ground that the Party
prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered into, and executed in the
County of Los Angeles, California, and the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this
Agreement shall be filed in the appropriate court having jurisdiction in the County of Los Angeles.
31. Cojjte arts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which constitute one and the same instrument.
32, " Weekend/Holidav Dates. Whenever any determination is to be made or action to be taken
on a date specified in this Agreement, if such date shall fall upon a Saturday, Sunday or holiday
specified in Government Code § 6700, the date for such determination or action shall be extended
to the first business day immediately thereafter.
33. Not a PUblic Dedication. Except as otherwise expressly provided herein, nothing herein
contained shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion
thereof, to the general public, for the general public, or for any public use or purpose whatsoever,
it being the intention and understanding of the Parties that this Agreement be strictly limited to
and for the purposes herein expressed for the development of the Project as private property. The
Developer shall have the right to prevent or prohibit the use of the Property, or the Project, or any
portion thereof, including C,
common areas and buildings and improvements located thereon, by any
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Agreement No. 5751
person for any purpose which is not consistent with the development of the Project. Any portion
of the Property conveyed to the City by the Developer as provided herein shall be held and used
by the City only for the purposes contemplated herein or otherwise provided in such conveyance,
and the City shall not take or permit to be taken (if within the power or authority of the City) any
action or activity with respect to such portion of the Property that would deprive the Developer of
the material benefits of this Agreement, or would in any manner interfere with the development of
the Project as contemplated by this Agreement.
34. Releases. City agrees that upon written request of Developer and payment of all fees and
performance of the requirements and conditions required by Developer by this Agreement, the
City must execute and deliver to Developer appropriate release(s) of further obligations imposed
by this Agreement in form and substance acceptable to the Los Angeles County Recorder's Office
or as otherwise may be necessary to effect the release.
35. Consent. Where the consent or approval of City or Developer is required or necessary under
this Agreement, the consent or approval will not be unreasonably withheld, delayed or conditioned.
IN WITNESS WHEREOF, the Developer and the City of El Segundo have executed this
Development Agreement on the date first above written.
.Tracy WIV �.�...����....�..�.................�.......�...._....M....We��...__
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City Clerk
APPROVED AS TO FORM:
y�
la , �XD, Hensley, City Attorney
CITY:
City of El Segundo, a municipal corporation
B .
Mayor
24
Agreement No. 5751
9 - p 0 1
OR 111irt • I I
By: Continental Rosecrans-Sepulveda, Inc.
a California corporation
By:
Richard E. Lundquist, PresOciii
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Agreement No. 5751
LEGAL DESCRIPTION
Real property in the City of El Segundo, County of Los Angeles, State of California, described as
follows:
THE SURFACE AND THAT PORTION OF THE SUBSURFACE BCH LIES ABOVE A PLANE 450
FEET BELOW THE MEAN LOW WATER LEVEL OF THE PACIFIC OCEAN (AS SAID MEAN LOW
WATER LEVEL IS ESTABLISHED BY U.S. COAST AND GEODETIC; SURVEY BENCH MARKS ALONG
TIE SHORE LINE) OF THE FOLLOWING DESCRIBED PROPERTY SITUATED IN THE CITY OF EL
SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, TO WIT:
PARCEL 2 OF PARCEL 1VIAP NO, 2341, IN THE CITY OF EL SEGUNDO, COUNTY TY OF LOS ANGELES,
STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 32, PAGE 99 OF PARCEL
MAPS, IN SAID OFFICE OF THE COUNTY RECORDER,
TOGETHER WITH THAT PORTION OF PARCEL I OF PARCEL Iv1AP NO. 234I, AS SHOWN ON THE
MAP FILED IN BOOK 32, PAGE 99 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER, LYING WESTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE WESTERLY CORNER OF SAID PARCEL I; THENCE ALONG THE SOUTHERLY
LINE OF SAID PARCEL, SOUTH 89° 57' 34" EAST, 291.05 FEET TO THE TRUE POINT OF
BEGINNING; THENCE NORTH 00° 02' 26" EAST, 183.15 FEET TO THE NORTHWESTERLY LINE
OF SAID PARCEL I.
EXCEPTING ALL OIL, GAS, ASPHALTUM AND OTHER HYDROCARBON SUBSTANCES AND OTHER
MINERALS, WHETHER SIMILAR TO THOSE HEREIN SPECIFIED OR NOT, WITHIN OR THAT MAY
BE PRODUCED FROM SAID LAN ; PROVIDED, HOWEVER, THAT THE S ACE OF SAID LAND
SHALL N VER BE USED FOR THE EXPLORATION, DEVELOPMENT, EXTRACTION, REMOVAL OR
STORAGE OF SAID OIL, GAS, ASPHALTUM, AND OTHER HYDROCARBON SUBSTANCES AND
OTHER MINERALS, AND FURTHER PROVIDED NO INSTALLATION CONSTRUCTED THEREIN
SHALL BE DISTURBED IN ANY MANNER R IN EXTRACTING SAID RESERVED MINERALS, AS
SERVED IN DEED FROM STANDARD OIL COMPANY OF CALIFORNIA, RECORDED DECENNIBER
20, 1960, AS IIVSTR NT NO. 1622, IN BOOK D-1069, PAGE 898, OFFICIAL RECORDS.
SAID LAND IS ALSO SHOWN AS PARCEL 2 OF LLA NO. 13-04 OF THAT CERTIFICATE OF
CONIPLIANCE LOT LINE ADJUSTMENT RECORDED DECEMBER 30, 2013 AS INSTRUMENT NO.
20131816582 OF OFFICIAL RECORDS.
APN: 413 8-015-064
26
Agreement NO.5751
EXHIBIT B
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Agreement NO.5751
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SITE PLAN FOR ALTERNATIVEI
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Agreement No. 5751
EXHIBIT D
SITE PLAN FOR ALTERNATIVE 2
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Agreement No. 5751
EXHIBIT E
SITE PLAN FOR ALTERNATIVE 3
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Agreement No. 5751
Recording Requested By and
When Recorded Mail To:
lvedg Pwt.iterq 4 LLC
This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made and
entered into by and among ROSECRANS-SEPULVEDA PARTNERS 4, LLC, a Delaware
Limited Liability Corporation ("RSP4") ("Assignors"), and, . ...... a
-- ........... ---- . ........ ("'Assignee"),
12"m
A. The City of El Segundo ("City") and Assignor entered into that certain Revised and
Restated Development Agreement dated 20_ (the "Development Agreement"),
with respect to the real property located in the City of El Segundo, State of California more
particularly described in Exhibit "'A" attached hereto (the "Project Site"), and
B. Assignor has obtained from the City certain development approvals and permits
with respect to the development of the Project Site, including without limitation, approval of
for the Project Site (collectively, the "Project Approvals"),
C. Assignor intends to sell, and Assignee intends to purchase that portion, of the
Project Site more particularly described in Exhibit "B" attached hereto (the "Transferred
Property").
D. In connection with such purchase and sale, Assignor desires to transfer all of the
Assignor's right, title, and interest in and to the Development Agreement and the Project
Approvals with respect to the Transferred Property. Assignee desires to accept such assignmeno
from Assignor and assume the obligations of Assignor under the Development Agreement and the
Project Approvals with respect to the Transferred Property.
t . Assiunmen[. Assignor hereby assigns and transfers to Assignee all of Assignor's
right, title, and interest in and to the Development Agreement and the Project Approvals with
respect to the Transferred Property. Assignee hereby accepts such assignment from Assignor.
a]
Agreement No. 5751
2. ASSUML100ti. AssiRnee expressly assumes and agrees to keep, perform, and fulfill
all the terms, conditions, covenants, and obligations required to be kept, performed, and fulfilled
by Assignor under the Development Agreement and the Project Approvals with respect to the
Transferred Property, including but not limited to those obligations specifically allocated to the
Transferred Parcel as set forth on Exhibit "C" attached hereto.
3. Effective Date. The execution by City of the attached receipt for this Agreement
shall be considered as conclusive proof of delivery of this Agreement and of the assignment and
assumption contained herein. This Agreement shall be effective upon its recordation in the Official
Records of Los Angeles County, California, provided that Assignee has closed the purchase and
sale transaction and acquired legal title to the Transferred Property.
4. Remainder o ' f Proiect i. Any and all rights or obligations pertaining to such portion
of the Project Site other than the Transferred Property are expressly excluded from the assignmezal
and assumption provided in sections I and 2 above.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates
set forth next to their signatures below.
INNSIMMEM
I VD] NUT YNIA-70 I I "I I V-00 I P 19, -ar.
The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by the City
of El Segundo on this _ day of . .... �aa..................m,,, - - — -----
By: . ....... .. —
Planning and Building Safety Director or
Designee
M
Agreement No. 5751
PROJECT AREA
EXHIBIT C-2
Beach Cities Media Campus
2021 Rosecrans Avenue
City of El Segundo Proposed Zoning Map Amendment
S