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ORDINANCE 1383ORDINANCE NO. 12 3 AN ORDINANCE REGARDING AN APPLICATION FROM VISTAMAR SCHOOL APPROVING DEVELOPMENT AGREEMENT NO. 04 -1 TO ESTABLISH A PRIVATE HIGH SCHOOL AT 737 HAWAII STREET. The City Council of the City of El Segundo does ordain as follows SECTION 1 The City Council finds and declares that A On September 22, 2004, Vistamar School filed an application for Environmental Assessment No 656 and Conditional Use Permit No 04 -6 to establish a private high school in an existing 75,640 square foot budding at 737 Hawaii Street, B On November 9, 2004, Vistamar School filed an application for Development Agreement No 04 -1 requesting a ten -year development agreement with the City, C Vistamar School's application was reviewed by City's Planning and Building Safety Department for, in part, consistency with the General Plan and conformity with the El Segundo Municipal Code ( "ESMC °), D In addition, the City reviewed the project's environmental impacts under the California Environmental Quality Act (Public Resources Code §§ 21000, et seq , "CEQA "), the regulations promulgated thereunder (14 Cal Code of Regulations § §15000, et seq , the "CEQA Guidelines "), and the City's Environmental Guidelines (City Council Resolution No 3805, adopted March 16, 1993), E An Initial Study of Environmental Impacts was prepared pursuant to the requirements of CEQA A Mitigated Negative Declaration was prepared and circulated for public review and comment from February 3, 2005 to February 23, 2005, The Planning and Building Safety Department completed its review and scheduled a public hearing regarding the application before this Commission for February 24, 2005, G On February 24, 2005, the Commission held a public hearing to receive public testimony and other evidence regarding the application including, without limitation, information provided to the Commission by City Staff, public testimony, and by Vistamar School's representatives, and, adopted Resolution No 2580 recommending approval of Environmental Assessment No 656, Conditional Use Permit No 04 -6, and Development Agreement No 04 -1, H On March 15, 2005 the City Council held a special public hearing to receive public testimony and other evidence regarding the applications including, without limitation, information provided to the Commission by City Staff, public testimony, and representatives of Vistamar School, and, The City Council considered the information provided by City staff, public testimony, and by Vistamar School's representative This Resolution, and its findings, are made based upon the evidence presented to the City Council at its March 15, 2005 hearing including, without limitation, the staff report submitted by the Planning and Building Safety Department SECTION 2 Factual Findings The City Council finds that the following facts exist A The subject site is located at 737 Hawaii Street in the Light Industrial (M -1) Zone B The proposed project is a private high school, featuring grades 9 through 12 The school will be located in an approximately 75,640 square -foot existing building The building will be refurbished and reconfigured to provide the school with a one -story (30 -foot) building containing approximately 75,640 gross square feet C The school will include 22 classrooms, which will include 15 standard classrooms, 4 science laboratory classrooms, 2 arts classrooms and 1 performing arts classroom In addition, the school will provide other student- serving areas such as a library, cafeteria, gymnasium, and student center as well as other ancillary areas for administrative offices /services and storage D Parking will be provided on -site for 157 vehicles E The school plans to operate on a typical school year schedule from Labor Day to mid -June Normal school hours would be from 7 30 a m to 3 00 p m There would be extracurricular activities that would also take place after 3 00 p m Summer school activities would be offered as well as other community uses of the school's facilities F The project will be implemented in two or three phases During the 2005/2006 school year, beginning in September 2005, only seven classrooms and some of the ancillary uses for approximately 120 students would be constructed The enrollment would consist of approximately 90 freshman and 30 sophomore students G During this 2005/2006 school year, tenant improvements would continue in the rear two - thirds of the building to complete the full buildout of the school facilities Upon completion of the facilities for the 2006/2007 or 2007/2008 school year, the school would be able to provide enrollment up to its projected capacity of 400 students H Vistamar School anticipates phasing in the full student enrollment over a four year period, reaching its full enrollment for the 2008/2009 school year A Conditional Use Permit is required for a school to locate in the M -1 Zone pursuant to ESMC § 15 -6A -5, which requires a Conditional Use Permit for uses which are permitted in the Downtown Commercial (C -RS) Zone ESMC § 15 -5A -2 lists schools as a permitted use in the C -RS Zone The proposed Development Agreement includes a ten -year term and an initial public benefit contribution to the City in the amount of approximately $185,586 82 and an additional lump sum payment of $71,551 75 should Vistamar School occupy the building for more than ten years SECTION 3 Development Agreement Findings The project approved as part of the Development Agreement would be as generally described in Section 2 above Pursuant to City Council Resolution No 3268, adopted June 26, 1984, the City Council finds that A The project is consistent with the objectives, policies, general land uses, and programs specified in the general plan and any applicable specific plan The Development Agreement would provide the following public benefits in exchange for valuable development rights (ten -year entitlement) A public contribution benefit of approximately $185,586 82 to replace the business license fees that would have been paid by a non -tax- exempt business that might have occupied the building for the next ten years 2 A public contribution benefit of approximately $71,551 75 to replace the business license fees that would have been paid by a non -tax- exempt business that might have occupied the budding for an additional ten years if Vistamar remains in the building afterten years 3 Development of a project that is consistent with the elements of the General Plan 4 Contribution of approximately $21,179 in police, fire, and library mitigation fees to offset the impacts of the project on public services B The project is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located The proposed use and development standards are consistent with the existing uses and M -1 Zone standards C The proposed project would provide a needed community service and would expand the range of educational opportunities for the residents of the City and surrounding areas The proposed Development Agreement would facilitate the re -use of an underutilized industrial budding and provide important seismic upgrades to the budding D The project will not be detrimental to the health, safety and general welfare The initial study for the proposed project determined that the project will not create any significant environmental impacts and showed that the project would not introduce the students and faculty of the proposed school to any significant existing hazards in the surrounding area. E The project will not adversely affect the orderly development of property or the preservation of property values The proposed Development Agreement will ensure that the project will be developed in an orderly fashion SECTION 4 Approvals The City Council approves Development Agreement No 04 -1 set forth in attached Exhibit 'A" which is incorporated into this Ordinance by reference SECTION 5 If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the city council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable SECTION 6 This Ordinance will remain effective until superseded by a subsequent resolution SECTION 7 The City Clerk is directed to certify the passage and adoption of this Ordinance, cause it to be entered into the City of El Segundo's book of original ordinances, make a note of the passage and adoption in the records of this meeting, and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law SECTION 8 This Ordinance will become effective on the thirty -first (31 st) day following its passage and adoption 1 ��''tt e APPROVED e !� rk Hensley, , PASSED, APPROVED AND ADOPTED this 5th day of April 2005. El Kelly ATTEST- STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF EL SEGUNDO ) I, Cindy Mortesen, City Clerk of the City of El Segundo, California, do hereby certify that the whole number of members of the City Council of said City is five, that the foregoing Ordinance No 1393was duly introduced by said City Council at a regular meeting held on the 15th day of March, 2005, and was duly passed and adopted by said City Council, approved and signed by the Mayor, and attested to by the City Clerk, all at a regular meeting of said Council held on the 5th day of April, 2005, and the same was so passed and adopted by the following vote AYES McDowell, Gaines, Boulgarides, Busch, Jacobson NOES None ABSENT None ABSTAIN None 6 w iClitWl Cindy MoWesen, City Clerk P \Planning & Building Safety\Proiects \651 - 675 \656 \EA -656 Ord doc TITLE(S) : This page is part of your documert - DO NOT DISCARD FEE FREE UU 05 1265182 LOS ANGELES COUNTY CALIFORNIA 8:04 AM MAY 31 2005 III IN IN 11111111111111 CODE 20 CODE 19 CODE 9 Assessor's Identification Number (AIN) To be completed by Examiner OR Title Company in black ink n D.T T Number of AIN's Shown - THIS FORM IS NOT TO BE DUPLICATED - ae w RECORDING REQUEST BY WHEN RECORDED MAIL TO. City of El Segundo City Clerk's Office 350 Mail Street El Segundo, CA 90245 TITLE(S) 05 1265182 FOR DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF EL SEGUNDO AND VISTAMAR SCHOOL ■ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO CITY CLERK CITY OF EL SEGUNDO 350 Main Street El Segundo, California 90245 05 1265182 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF EL SEGUNDO AND VISTAMAR SCHOOL THIS AGREEMENT MUST BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868 5 05 1265182 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement ") is made and entered into by and between the f CITY OF EL SEGUNDO, a general law city and municipal corporation ( "City ") and Vistamar School, a California non - profit corporation ( "Vistamar ") Inconsideration of the mutual covenants and agreements contained in this Agreement, City and Vistamar agree as follows 1 Recitals This Agreement is made with respect to the following facts and for the following purposes 1 1 Pursuant to Government Code §§ 65865 et se g , City is authorized to enter into a binding agreement with any person having a legal or equitable interest in real property for the development of such property 1 2 Vistamar is the lessee under a lease with LBA Fund WA, LLC with regard to certain real property in the City of El Segundo, consisting of approximately 153,525 square feet, as more specifically described in attached Exhibit "A," which is incorporated by reference (the "Property ") The Property is currently improved with a building containing approximately 75,640 square feet of warehouse and office space (the `Building ") 1 3 Vistamar desires to renovate the Building for use as a private high school ( "Project ") pursuant to a conditional use permit as permitted by the El Segundo Municipal Code (`SSMC ") 14 City has approved/certified, or is in the process of approving Environmental Assessment No 656, Conditional Use Permit No 04 -6, Development Agreement No 04 -1, and conditions of approval imposed in connection herewith (the "Conditions of Approval ") (the foregoing are collectively referred to as the "Project Approvals" and are incorporated into this Agreement by reference) Vistamar's application for the Project Approvals was deemed complete by the City on February 14, 2005 (the "Application Date ") 1 5 By this Agreement, City desires to obtain the binding agreement of Vistamar to develop the Property in accordance with the Project Approvals and this Agreement In consideration thereof, City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement 16 By this Agreement, Vistamar desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals, the Applicable Rules (as defined herein) and this Agreement In consideration thereof, Vistamar agrees to provide a Public Benefit Contribution as described in Section 6 5 below 1 7 City and Vistamar acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, dust and reasonable and that this Agreement is consistent with the General Plan of the City -1- 05 1265182 1 8 The proposed Project uses are consistent with both the City's General Plan and the ESMC which identify the Property as "Limited Industrial" and part of the M -1 Zone which conditionally permits school uses. Property Subject to this Agreement All of the Property is subject to this Agreement 3 Binding Effect The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property Whenever the terms "City" and " Vistamar" are used, such terms include each of their successors in interest 3 1 Agreement Personal to Vistamar City and Vistamar acknowledge and agree that the City is entering into this Agreement based on the abilities of Vistamar to perform its obligations under this Agreement, deliver the public benefits promised to the City, and to construct and complete a high - quality private high school project which will be a benefit to the City and its residents Accordingly, the effectiveness of this Agreement and each of the Project Approvals is expressly conditioned on Vistamar, a related entity being, or another non - profit, private high school being either the lessee or the owner of the Property 3.2 Constructive Notice and Acceptance Every person who acquires any right, title or interest in or to any portion of the Property in which Vistamar has a legal interest is conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest 3 3 Rights to Assign Vistamar may not assignor transfer its rights and obligations under this Agreement with respect to the Property, or any portion thereof, to any person at any time during the term of this Agreement without City's prior approval 34 Liabilities Upon Transfer Upon the delegation of the duties and obligations under this Agreement and the sale, transfer or assignment of the Property, Vistamar will be released from its obligations under this Agreement with respect to the Property so transferred arising subsequent to the effective date of such transfer, if (i) Vistamar has provided to the City prior or subsequent written notice of such transfer and (n) 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 form of Exhibit `B" attached hereto Upon any transfer of the Property and the express assumption of Vistamar'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 is entitled to the benefits of this Agreement as " Vistamar" hereunder and is subject to the obligations of this Agreement applicable to the parcel(s) transferred The transferee is responsible for satisfying the good faith compliance requirements set forth in Section 9 below relating to the Property owned by such transferee 4 Development of the Propert y The following provisions govern the subdivision, development and use of the Property -2- 05 1265182 41 Permitted Uses The permitted and conditionally permitted uses of the Property, as well as the minimum and maximum allowable square footages for such uses, are set forth in the Project Approvals 42 Development Standards All design and development standards applicable to the Property are set forth in the Applicable Rules (as defined below), the Project Approvals and this Agreement 4.3 Building Standards All construction on the Property must adhere to the California Building Code, including the Fire Resistive Design Manual, the California Electrical Code, the California Plumbing Code, the California Mechanical Code, the Califorma Housing Code, and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state building requirements that are then in effect (collectively the "Building Codes ") 44 Fees, Exactions, Mitigation Measures, Conditions, Reservations and Dedications All fees, exactions, mitigation measures, conditions, reservations and dedications of land for public purposes that are applicable to the Project or the Property are set forth in the Project Approvals and this Agreement 5 Vesting of Development Rights 5 1 Applicable Rules The Applicable Rules consist of the following 5 1 1 The City's General Plan, as it exists on the Effective Date, 5 1 2 The City zoning regulations, as set forth in the ESMC, as they exist on the Effective Date, and 5 1 3 Such other laws, ordinances, rules, regulations, and official policies governing permitted uses of the Property, density, design, improvement, 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 52 Entitlement to Develop Vistamar is granted the vested right to develop the Project on the Property subject to the Applicable Rules, the Project Approvals and any future approvals granted by the City for the Project or the Property (the "Future Approvals ") 5 3 Subsequent Enactments Any change in the Applicable Rules, including, without limitation, any change in any applicable general plan or zoning, adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, the Planning Commission or any other board, commission or department of the City, or any officer or employee thereof, or by the electorate, as the case may be (collectively the "Subsequent Rules "), which would, absent this Agreement, otherwise be applicable to the Property, cannot be applied by the City to any part of the Property -3- 05 1265182 54 Timing of Development City and Vistamar intend to avoid the result in Pardee Construction Co v City of Camarillo (1984) 37 Cal 3d 465 by acknowledging and providing that Vistamar has the right, without obligation, except as otherwise specifically set forth herein, 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 term of this Agreement 5 5 Future Approvals 5 5 1 Minor Modifications to Project Vistamar may make minor changes to the Project ( "Minor Modifications ") without amending this Agreement upon the administrative approval of the City's Planning and Building Safety Director, provided that such modifications are consistent with the Development Standards, Applicable Rules, and Project Approvals and do not constitute Major Modifications pursuant to Section 5 4 2 below The City must not unreasonably withhold or delay approval of any Minor Modification The City has the right to impose reasonable conditions in connection with Minor Modifications, provided, however, such conditions must not (a) be inconsistent with the Applicable Rules or with the development of the Project as contemplated by this Agreement; (b) directly or indirectly, unreasonably hinder, delay, impede, obstruct, interfere with, or place unreasonably burdensome or restrictive measures or requirements upon development of the Project or the Property or any portion thereof, or (c) impose additional dedications, infrastructure or public improvement obligations, or exactions in excess of those identified in this Agreement 5.52 Modifications Reauinna Amendment to this Agreement Any proposed modification to the Project as described below ( "Major Modifications ") does not constitute a Minor Modification and instead requires an amendment to this Agreement pursuant to Section 15 below (a) Any change in use to a use which is not permitted under the ESMC, (b) Any increase in the total developable square footage of the entire Property in excess of 5% of the total overall gross square footage constructed, (c) Any decrease in the number of parking spaces available to Vistamar below the number required in the ESMC, and (d) Any material modification to Vistamar's obligation to provide a Public Benefit Contribution as provided in Section 6 4 below 56 Plan Review Plans for the building on the Property, including plans for signage, trash enclosures and screening and landscaping must be reviewed and approved by the Director before the City issues a building permit, provided, however, that, notwithstanding anything to the contrary contained in the Applicable Rules, the sole purpose of such review is to verify consistency with the Development Standards, Applicable Rules, and Project Approvals The Director must approve all features which are consistent with the Development Standards or are otherwise specifically approved by this Agreement In 05 1265182 57 Modification of Approvals Throughout the term of this Agreement, Vistamar has the right, at its election and without risk to any right that is vested pursuant to this Agreement, to apply to the City for modifications and amendments to the Project Approvals and any Future Approvals that may be granted to Vistamar The approval or conditional approval of any such modification or amendment which does not constitute a Major Modification does not require an amendment to this Agreement, provided that, in addition to any other findings that may be required, a finding is made that the modification or amendment is consistent with this Agreement Any such modification or amendment is deemed incorporated into this Agreement at the time it becomes effective 58 Term This Agreement will be effective for a period of ten (10) years However, Vistamar or City is entitled to, by written request before the Agreement's expiration, one (1) ten (10) -year extension, provided that the requesting party is not in default of its obligations hereunder at such time 59 Issuance of Building Permits No building permit, final inspection or Certificate of Occupancy will be unreasonably withheld, conditioned, or delayed from Vistamar 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 suitably guaranteed to be completed (by covenant, bond, letter of credit or otherwise) to the reasonable satisfaction of the City before completion of construction and all of the other relevant provisions of the Project Approvals, subsequent approvals and this Agreement have been satisfied 6 Vistamar Agreements 61 General Vistamar must comply with (i) this Agreement, (n) the Project Approvals, including without limitation any mitigation measures required by the determination made pursuant to the California Environmental Quality Act, and (iii) all Subsequent Approvals for which it is the applicant 62 Development Fees Vistamar must pay the development fee amounts identified in Exhibit "C ", or such other development fees or amounts as set by the City from time to time 63 Processing Fees On the Effective Date of this Agreement, Vistamar must pay all outstanding City processing, legal and environmental processing costs related to the Project and preparation of this Agreement, if any 64 Other Fees In addition to fees specifically mentioned in this Agreement, Vistamar agrees to pay all City plan check fees, building inspection fees, and permit fees, generally applicable on a City -wide basis for similar projects, at the rate and amount in effect at the time the fee is required to be paid 65 Public Benefit Contribution Vistamar and the City acknowledge that Vistamar, as a non - profit corporation, is exempt from paying certain taxes which would otherwise inure to the benefit of the City In light of such exemption, Vistamar agrees to pay to the City a public benefit contribution based on the net present value of the foregone business license taxes that Vistamar would have been required to pay were Vistamar not exempt as a not - for - profit -5- 05 1265182 corporation ( "Public Benefit Contribution ") Vistamar must pay such Public Benefit Contribution in an amount and per the schedule established in Exhibit "D" of this Agreement 7 CityNistamar Agreements 7 1 Processing Cooperation and Assistance To the extent permitted by law, the City must reasonably cooperate with the Vistamar 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 Projector the Property Without limiting the foregoing, the City must reasonably cooperate with the Vistamar in any dealings with federal, state and other local governmental and quasi - governmental entities concerning issues affecting the Property The City must keep the Vistamar fully informed with respect to its communications with such agencies which could impact the development of the Property Z2 Processing During Third Party Litigation. The filing of any third party lawsuit(s) against the City or the Vistamar relating to this Agreement or to other development issues affecting any portion of the Property or the Project must not hinder, delay or stop the development, processing or construction of the Project, approval of the Future Approvals, or issuance of ministerial permits or approvals, unless the third party obtains a court order preventing the activity 73 Reimbursement and Apportionment Although the parties do not contemplate a condition of a Future Approval requiring excess capacity or size of required dedications or public facilities beyond that required by the Applicable Rules, nothing in this Agreement precludes the City or Vistamar from entering into any reimbursement agreements for the portion (if any) of the cost of any dedications, public facilities and/or infrastructure that the City, pursuant to this Agreement, may require pursuant to the Applicable Rules as conditions of the Future Approvals, to the extent that they are in excess of those reasonably necessary to mitigate the impacts of the Project or development on the Property 8 Modification/SuMension Pursuant to Government Code Section 65869 5, in the event that any state or federal law or regulation, enacted after the Effective Date (as defined in Section 18), precludes compliance with any provision of this Agreement, such provision must 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 must be restored to their full original effect 9 Demonstration of Good Faith Compliance 91 Review of Compliance In accordance with Government Code Section 65965 1, this Section 9 and the Applicable Rules, once each year, on or before each anniversary of the Effective Date ("Periodic Review'), the Director must review the extent of Vistamar'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 92 Good Faith Compliance During each Periodic Review, Vistamar must demonstrate by written status report that, during the preceding twelve (12) month period, that it -6- 05 1265182 has been in good faith compliance with this Agreement For purposes of this Agreement, the phrase "good faith compliance" must mean that Vistamar has demonstrated that it has acted in a / a4 commercially reasonable manner (taking into account the circumstances which then exist) and in good faith in and has substantially complied with Vistamar's material obligations under this Agreement 93 Information to be Provided to Vistamar The City must deliver to Vistamar 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 concurrently with delivery of the Request Notice, but in no event later than six (6) business days before the Director's submittal of a report setting forth his or her determination as to the results of the Periodic Review Upon Vistamar's request, Vistamar must be given a full and adequate opportunity to be heard orally and in writing regarding its performance and, at its option, the City's performance under the Agreement before the completion of the Director's Periodic Review 94 Notice Of Non- Comnlrance, Cure Rights If at the completion of any Periodic Review, the Director reasonably concludes on the basis of substantial evidence that as to any parcel or parcels comprising the Property (i) Vistamar has not demonstrated that it is in good faith compliance with this Agreement, and (n) that Vistamar is out of compliance with a specific substantive term or provision of this Agreement, then the Director may issue and deliver to Vistamar a written Notice of Violation as set forth in Section 11 1 below 95 Failure of Periodic Review The City's failure to review, at least annually, compliance by Vistamar with the terms and conditions of this Agreement must not constitute or be asserted by any Party as a breach by any other Party of this Agreement 10 Excusable Delays Performance by any Party of its obligations hereunder, other than payment of fees and other monetary assessments, must 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 Parties as soon as reasonably possible after the same has been ascertained For purposes hereof, Excusable Delay shall mean _fire, flood, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control. The tern of this Agreement must be extended by any period of Excusable Delay I 1 Default Provisions 11 1 Default. Either party to this Agreement is deemed to have breached this Agreement if it materially breaches any of the provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation (the "Notice of Violation ") from the non - breaching party to the breaching party, which period of time must 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 breach within the time set forth in the notice, then the breaching party must not be in default if it commences to cure the breach within such time limit and diligently effects such cure thereafter If the City determines to proceed with termination of this Agreement, the -7- 05 1265182 City must given written notice to Vistamar of its intention to terminate this Agreement and comply with the notice and public hearing requirements of Government Code Sections 65867 and 65868 At the time and place set for the hearing on termination, Vistamar must be given an opportunity to be heard If the Council finds based upon the evidence that Vistamar is in breach of the Agreement, the Council may modify or terminate this Agreement 112 Content of Notice of Violation Every Notice of Violation must 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 and Applicable Rules), the portion of the Property involved, and the manner in which the breach may be satisfactorily cured The notice must be deemed given on the date that it is personally delivered or on the date that is three (3) business days after it is deposited in the United States mail, in accordance with Section 19 hereof 12 Mortgagee Protection If during the term of this Agreement, Vistamar becomes the owner of the Property, this Agreement must not prevent or limit Vistamar, in any manner, at Vistamar'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 Agreement interpretations and agrees, upon request, from time to time, to meet with Vistamar and representatives of such lender(s) to provide within a reasonable time period the City's response to such requested interpretations The City will not unreasonably withhold its consent to any such requested interpretation, provided that such interpretation is consistent with the intent and purposes 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 must be entitled to the following rights and privileges 12 1 Mortgage Not Rendered Invalid Neither entering into this Agreement nor a breach of this Agreement must defeat, render invalid, diminish, or impair the priority of the hen of any mortgage or deed of trust on the Property made in good faith and for value No Mortgagee must have an obligation or duty under this Agreement to perform Vistamar's obligations, or to guarantee such performance, before taking title to all or a portion of the Property 122 Request for Notice to Mortgagee 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, must be entitled to receive a copy of any Notice of Violation delivered to Vistamar 123 Mortgagee's Time to Cure. The City must provide a copy of any Notice of Violation to the Mortgagee within ten (10) days of sending the Notice of Violation to Vistamar The Mortgagee must have the right, but not the obligation, to cure the default for a period of thirty (30) days after receipt of such Notice of Violation Notwithstanding the foregoing, if such default must be a default which can only be remedied by such Mortgagee obtaining possession of a Property, or any portion thereof, and such Mortgagee seeks to obtain possession, such Mortgagee must have until thirty (30) days after the date of obtaining such possession to cure or, 05 1265182 if such default cannot reasonably be cured within such period, after commence ee obtains cure such such default, provided that such default is cured no later than one (1) y possession 124 Cure Ri is 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, must succeed to the rights and obligations of Vistamar under this Agreement as to the Property or portion thereof so acquired; provided, however, in no event must such Mortgagee be liable for any defaults or monetary obligations of Vistamar arising before acquisition of title to the Property by such Mortgagee, except that any such Mortgagee must not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary or nonmonetary obligations due under this Agreement for the Property, or portion thereof acquired by such Mortgagee, have been satisfied 125 13anknrotcy If any Mortgagee is prohibited from commencing or prosecuting 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 Vistamar, the times specified in Section 12 3 above must be extended for the period of the prohibition, except that any such extension must not extend the term of this Agreement 126 Disaffirmation If this Agreement is terminated as to any portion of the Property by reason of (1) any default or (n) as a result of a bankruptcy proceeding, this Agreement is disaffirmed by a receiver, liquidator, or trustee for Vistamar or its property, the City, if requested by any Mortgagee, must 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 13 Estonyel Certificate At any time and from time to time, any Vistamar agent may deliver written notice to City and City may deliver written notice toV Vistamar requesting Agreement m full force certify in writing that to the knowledge of the certified Part O gr and effect and a binding obligation of the Parties, (u) this Agreement has not been amended, or if amended, the identity of each amendment, and (in) 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 must 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 must constitute a conclusive presumption against the City that, except as may be represented by Vistamar, this Agreement is in full force and effect without modification, and that there are no uncured defaults in the performance of Vistamar The Director must be authorized to execute, on behalf of the City, any Estoppel Certificate requested by Vistamar City acknowledges that a certificate may be relied upon by successors in interest to Vistamar who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Vistamar has a legal interest 14 Administration of Agreement 0 05 1265182 141 Appeal of Staff Determinations Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by Vistamar pursuant to the El Segundo Municipal Code. Vistamar must not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section 142 Operating Memoranda The provisions of this Agreement require a close degree of cooperation between City and Vistamar 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 Vistamar If and when, from time to time, during the term of this Agreement, City and Vistamar agree that such clarifications are necessary or appropriate, they must effectuate such clarification through operating memoranda approved in writing by City and Vistamar, which, after execution, must be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with future written approval by City and Vistamar Operating memoranda are not intended to and cannot constitute an amendment to this Agreement or allow a Major Modification to the Project but are mere ministerial clarifications, therefore public notices and hearings must not be required. The city manager, or designee, is authorized to execute such operating memoranda without further City Council action 143 Certificate of Performance Upon the completion of the Project, or upon performance of this Agreement or its earlier revocation and termination, the City must provide Vistamar, upon Vistamar's request, with a statement ( "Certificate of Performance ") evidencing said completion or revocation and the release of Vistamar from further obligations hereunder, except for any ongoing obligations hereunder The Certificate of Performance must be signed by the appropriate agents of Vistamar and the City and must be recorded in the official records of Los Angeles County, California Such Certificate of Performance is not a notice of completion as referred to in California Civil Code Section 3093 15 Amendment or Termination by Mutual Consent Except as otherwise set forth herein, this Agreement may only be amended or termmated, in whole or in part, by mutual consent of City and Vistamar, and upon compliance with the provisions of Government Code Section 65867 16 Indemnification/Defense 161 Indemnification Vistamar agrees to indemnify and hold the City harmless from and against any claim, action, damages, costs (including, without limitation, attorney's fees), injuries, or liability, an sing from this Agreement Should the City be named in any suit, or should any claim be brought against it by suit or otherwise, whether the same be groundless or not, ansmg out of this Agreement, Vistamar agrees to defend the City (at the City's request and with counsel satisfactory to the City) and will indemnify the City for any judgment rendered against it or any sums paid out in settlement or otherwise For purposes of this section "the City" includes the City of El Segundo's elected officials, appointed officials, officers, and employees Vistamar is not liable for property damage or bodily injury to the extent occasioned by the active negligence of City or its agents or employees to- 65 1265182 17 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element 18 Effective Date This Agreement must become operative on the date the Enabling Ordinance becomes effective (the "Effective Date ") pursuant to Government Code Section 14 36937 19 Notices All notices and other communications given pursuant to this Agreement must be in writing and must be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the following addresses If to City City of El Segundo 350 Main Street El Segundo, CA 90245 Attention City Clerk With a Copy to Jenkins & Hogm LLP Manhattan Towers 1230 Rosecrans Avenue, Suite 110 Manhattan Beach, CA 90266 Attention Mark D Hensley, Esq With a Copy to City of El Segundo 350 Main Street El Segundo, CA 90245 Attention Planning and Building Safety Director If to Vistamar Vistamar School 737 Hawaii Street El Segundo, CA 90245 Attention Jean Campbell With a Copy to Armbruster & Goldsmith LLP 10940 Wilshire Boulevard Suite 2100 Los Angeles, CA 90024 Attention Dale J Goldsmith, Esq or A J Jarasunas, Esq Any Party may, from time to time, by written notice to the other, designate a different address which must be substituted for the one above specified 20 Entire Agreement This Agreement contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein This Agreement must not be amended, except as expressly provided herein 11- 05 1265182 21 Waiver No waiver of any provision of this Agreement constitutes a waiver of any other provision, whether or not similar, nor must any such waiver constitute a continuing or subsequent waiver of the same provision No waiver is be binding, unless it is executed in / writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought 22 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 is effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement 23 Relationship of the Parties 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 of the other Party in any respect Nothing contained herein or in any document executed in connection herewith must be construed as creating the relationship of partners, Joint ventures or any other association of any kind or nature between City and Vistamar, Jointly or severally 24 No Third Party Beneficiaries This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest No other person or party has any right of action based upon any provision of this Agreement 25 Recordation of Agreement and Amendments This Agreement and any amendment thereof must be recorded with the County Recorder of the County of Los Angeles by the City Clerk of City 26 Cooperation Between City and Vistamar City and Vistamar must 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 Vistamar, and subject to the continuing cooperation of Vistamar, City will commence and in a timely manner proceed to complete all steps necessary for the implementation of this Agreement and development of the Project or Property in accordance with the terms of this Agreement 27 Rules of Construction The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they must 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 Project Approvals or the Subsequent Approvals, the provisions of this Agreement must prevail over the Project Approvals 28 Joint Preparation This Agreement must be deemed to have been prepared jointly and equally by the Parties, and it must not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared 29 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 must govern its interpretation and enforcement Any action, suitor proceeding related to, or arising from, this Agreement must be filed in the appropriate court having jurisdiction in the County of Los Angeles -12- 05 1265182 31 Counterparts This Agreement may be executed in multiple counterparts, each of which must be deemed an original, but all of which constitute one and the same instrument // 32 Not a Public Dechcation Except as otherwise expressly provided herein, nothing herein 1 �J�,✓.* contained must 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 Vistamar must have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose which is not consistent with the development of the Project -13- 05 1265182 IN WITNESS WHEREOF, Vistamar and City of El Segundo have executed this Development Agreement on the date first above written I/ i ATTEST l ; ff Pd2 VtcaatM �q,l City Clerk r I APPROVED MARK D ey i By Karl H Be e , Assistant y Attorney CITY CITY OF Ua municipal corporation 1V / f.` Frikyj/:\,7 Vistamar School, a California non -profit corporation By Its r - By Its 4a.( 44'4' I �a -14- EXHIBIT A 05 1265182 PROPERTY DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS THE SOUTHEASTERLY 153 00 FEET OF LOT 28, AND ALL OF LOT 20 TRACT 26557, IN THE CITY OF EL SEGUNDO, AS PER MAP RECORDED IN BOOK 675 PAGES 95 TO 98 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY SAID TRACT NO 26557, IN A SUBDIVISION OF THE SURFACE AND THAT PORTION OF THE SUBSURFACE WHICH 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 THE SHORELINE) EXCEPT ALL OIL, GAS, ASPHATUM AND OTHER HYDROCARBONS AND OTHER MINERALS, WHETHER SIMILAR TO THOSE HEREIN SPECIFID OR NOT, WITHIN OR THAT MAYBE PRODUCED FROM SAID LAND, PROVIDED, HOWEVER, THAT THE SURFACE OF SAID LAND SHALL NEVER BE USED FOR THE EXPLORATION, DEVELOPMENT, EXTRACTION, REMOVAL OR STORAGE OF SAID OIL, GAS, ASPHALTUM AND OTHER HYDROCARBONS AND OTHER MINERALS AND FURTHER PROVIDED THAT NO INSTALLATION CONSTRUCTED THEREON SHALL BE DISTRUBED IN ANY MANNER IN EXTRACTING SAID RESERVED MINERALS, AS RESERVED IN THE DEED FORM STANDARD OIL COMPANY OF CALIFORNIA, RECORDED DECEMBER 20, 1960 AS INSTRUMENT NO 1622 IN BOOK D1069 PAGE 898, OFFICIAL RECORDS 15- 0 05 1265182 EXHIBIT B Recording Requested By and When Recorded Mail To Armbruster & Goldsmith LLP 10940 Wilshire Boulevard, Suite 2100 Los Angeles, California 90024 Attn Dale Goldsmith, Esq ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is made and entered into by and between VISTAMAR SCHOOL, a California non - profit corporation ( "Assignor "), and , a ( "Assignee ") RECITALS A The City of El Segundo ( "City ") and Assignor entered into that certain Development Agreement dated , 2005 (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 a Conditional Use Permit for the Project Site (collectively, the "Project Approvals ") C Assignor intends to sell, and Assignee intends to purchase the Project Site 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 Project Site Assignee desires to accept such assignment from Assignor and assume the obligations of Assignor under the Development Agreement and the Project Approvals with respect to the Project Site THEREFORE, the parties agree as follows I Assignment 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 Project Site Assignee hereby accepts such assignment from Assignor 2 Assumption Assignee 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 Project Site, including but not limited to those obligations specifically allocated to the Project Site as set forth on Exhibit "C" attached hereto 16- 05 1265182 3 Effective Date The execution by City of the attached receipt for this Agreement must be considered as conclusive proof of delivery of this Agreement and of the assignment and assumption contained herein This Agreement must 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 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their signatures below Date "ASSIGNOR" VISTAMAR SCHOOL, a California non - profit corporation By Its "ASSIGNEE" Date By Its 17- 05 1265182 RECEIPT BY CITY The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by the City of El Segundo on this day of CITY OF EL SEGUNDO 10 Planning and Building Safety Director or designee 1.2 a 05 1265182 STATE OF CALIFORNIA ) ) SS COUNTY OF ) On 2005, before me, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument WITNESS my hand and official seal STATE OF CALIFORNIA COUNTY OF Signature (Seal) ) SS On , 2005, before me, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he /she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument WITNESS my hand and official seal 19- 65 1265182 City of El Segundo Fees: 1 PA 3 m 5 EXHIBIT "C" DEVELOPMENT FEE SCHEDULE Police Service Mitigation Fee $0.11 per gross floor area Fire Service Mitigation Fee $0 14 per gross floor area Library Service Mitigation Fee $0 03 per gross floor area Traffic Mitigation Fee Per City Council Resolution No 3969 adopted May 21, 1996 Water Meter Installation Fees Per Title 14 of El Segundo Municipal Code -20- Square Feet: Business License Tax: Sales Tax: Use Tax: Utility Tax: Property Tax: Annual Total: EXHIBIT "D" Public Benefit Calculation Worksheet 75,640 First ten employees /5,000 sf $ 70,640 SF @ 21 /sf 141 employees @ $109 /employees ( *) Would be subject to paying Would be subject to paying Would be subject to paying Would be subject to paying Total Public Benefit over 10 years ( * *): (To be paid upon issuance of certificate of occupancy) Total Public Benefit over 20 years ( * *): Difference to be paid in year 11 ( * * *) Notes: 05 126518` 0000 14,834 40 15,3690 $30,20340 $ 185,586.82 $ 257,138.57 $ 71,551.75 ( *) After the initial ten employees, the square footage per employee is based on the parking on site, which is approximately 2 spaces per 1,000 square feet ( * *) Net present value was computed using a discount rate of 10% ( * * *) The Public Benefit Calculation was originally discussed as the present value of 20 years of various business taxes, assuming Vistamar purchases a building in El Segundo However, Vistamar is leasing 737 Hawaii for 10 years and will pay the 10 -year benefit upon occupancy by the school If Vistamar School continues to occupy the building after the expiration of the i nhal 10 -year lease term, whether by lease extension or purchase, it will pay the balance of the benefit calculated over 20 years, or $71,551 75, to the City of El Segundo on the 10th anniversary of the issuance of a certificate of occupancy for the school at 737 Hawaii Street -21- May 5, 2005 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) CITY OF EL SEGUNDO ) U 05 1265182 On May 5, 2005, before Cathy Domann, Deputy City Clerk, personally appeared Kelly McDowell, Mayor of the City of El Segundo, personally known to me to be the person whose name is subscribed to on the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the persons acted, executed the instrument Witness my hand and Official Seal "&IK4A— Cathy Domann, Deputy City Clerk C forms \certsig 05 1265182 STATE OF CALIFORNIA ) ) SS COUNTY OF Los Aw6Ete5) On NOZIL 9.7 2005ibeforeme, LINDA (!AT14Y )OpAj*)Notary Public, personally appeared S , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he /she- executed the same in his/her-authonzed capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument WITNESS my hand and official seal LM7M , ComnMUlon 1 1517579 Signature `�`^✓� r (Seal) STATE OF CALIFORNIA ) ) SS COUNTY OF L05 NAQA,46 ) Z3 I On MQy s 201015, before me, Lm.. ,la ea�� Domw_a Notary Public, personally appeared 1�,o IY "YI a Le\1 & e , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that4te /she executed the same in his/her authorized capacity, and that by kts/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument WITNESS my hand and official seal UMMCAI r —DOMAA w CO"WiNion • 1517579 L � ::COW". 0011. 1