CONTRACT 4322 Developer’s AgreementA
A
E521952
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20121624356
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California
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RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
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SPACE ABOVE FOR RECORDER'S USE ONLY
Title of Document
THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($3.00 Additional Recording Fee Applies)
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 SMPO LAB, LLC
(222 KANSAS STREET SITE)
THIS AGREEMENT MUST BE RECORDED WITHIN TEN DAYS OF EXECUTION BY
ALL PARTIES HERETO PURSUANT -TO THE REQUIREMENTS OF GOVERNMENT
CODE §65868.5
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TABLE OF CONTENTS
Page
1. Definitions.... ...... -- ........ ............... ............. ..,.....,........... ....... ...,..,.............. ........, .............1
2. Recitals .— , ... --- .... ... ....... ..................... ........ --- ...... ......... ................... .................. .............3
3. Binding Effect... ......... ......... ..... ... ...... .... ................. ..............,................ , ...........4
3.1 Constructive Notice and Acceptance ............................................... ..............................4
3.2 Rights to Transfer ......... ..... ............................... ............................ ......... ..............4
3.3 Liabilities Upon Transfer ...... ............................... ........................... ......... .............4
4. Development of the Property ....................................................................... ..............................4
4.1 Entitlement to Develop .................................................................... ..............................5
4.2 Permitted Uses, Density, Height and Dedication of Land for Public Purposes .............5
4.3 Development Standards... ........ .......... ...... — ........ ........ - ...... - ..... -- .......... -- ... ...... .5
4.4 Building Regulations . ............................... ......... ........................... ...... .. .............5
4.5 Subsequent Rules ............................. ................. .... ............................... .............5
4.7 Plan Review ....... ............................... .................. ..... ............................... .............6
4.8 Fees, Exactions, Mitigation Measures, Conditions, Reservations and
Dedications...................................................................................... ..............................7
4.9 Use of Easements ................... ............... ... .............. ............................... .............7
4.10 Timing of Development .............................. .............. ............................... .............7
4.11 Moratorium ...................................................................................... ..............................7
4.12 Infrastructure. .. . ... ..... ............................... ......... ................... ..............................8
4.13 Term ................................................................................................. ..............................8
4.14 Satisfaction of Mitigation Measures and Conditions ....................... ..............................9
4.15 In Lieu Credits ..... ............................ .................. ......... ........................... .............9
4.16 Performance of Director Duties--, ............................................... ............................. 9
5. Developer Agreements.. ... 9
5.1 General ........................ ... ____ ............ ,..................... .,, ,.....,............... ........... .,..... ....9
5.2 Development Fees ............................................................................ ..............................9
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5.3 Processing Fees ................................................................................ ..............................9
5.4 Maintenance Obligations ......... ............................... ........................ ..............................9
5.5 Term of Map(s) and Other Project Approvals ........ ........ ......... .... .,.......,.9
5.6 Sales and Use Tax ................... ......... ................. .................... . .............................10
6.
City Agreements ... .................. .............. ............................... ............... „ ,4,,... , ,..,........11
6.1 Expedited Processing ...................................................................... .............................11
6.2 Processing Cooperation and Assistance ......................................... ..............................1
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6.3 Processing During Third Party Litigation— ......... ........ ............,.......,11
7.
Modification / Suspension ................... ............................... ......... .................. ......... ............12
8.
Demonstration of Good Faith Compliance .............. ......... ........ ............................12
8.1 Review of Compliance .................................................................... .............................12
8.2 Good Faith Compliance ......... ............................... ........ ......... ......... ....................12
8.3 Information to be Provided to Developer .... ,,.., ,..,,,
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8.4 Developer's Report ......................................................................... .............................12
8.5 Notice Of Non-Compliance; Cure Rights .... ........ ........ ,. ,.,,,... .,,,... .,.....,, «.12
9.
Excusable Delays ....................................................................................... .............................13
10.
Default Provisions ............................. ........................... ......... .................. ......................13
10.1 Default... ......... ....... .... ...................,........... .,....... ,.....,..............13
10.2 Content of Notice of Violation ............................. .................. ______13
10.3 Remedies for Breach .......................... ,..,,.,,.., ,. . ,.....,.............. .,..,.,..14
10.4 Resolution of Disputes ............. .......... .............................. .............................14
10.5 Attorneys' Fees and Costs...........,.... „ .... ......... ......... .......... .............................14
11.
Mortgagee Protection ......................... ................ ............................... .................. ............14
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11.1 Mortgage Not Rendered Invalid .......................... .................. .............................14
11.2 Request for Notice to Mortgagee .................................................... .............................15
11.3 Mortgagee's Time to Cure .............................................................. .............................15
11.4 Cure Rights ............................. ....................w...... ,..,. ..............15
11.5 Bankruptcy ........................... ............................... ...... ............................... .......,...15
11.6 Disaffirmation ................................................................................. .............................15
12. Estoppel Certificate ..................................................................................... .............................15
13. Administration of Agreement ..................................................................... .............................16
13.1 Appeal of Determinations ............................................................... .............................16
13.2 Operating Memoranda .................................................................... .............................16
13.3 Certificate of Performance .............................................................. .............................16
14. Amendment or Termination by Mutual Consent ........................................ .............................17
15. Indemnification/Defense ............................................................................. .............................17
15.1 Indemnification ............................................................................... .............................17
15.2 Defense of Agreement .................................................................... .............................17
16. Time of Essence .......................................................................................... .............................17
18. Notices ............................... .... ... ....,,.......... ,....,.........,.,......... ,.......,... , .....,..................,....17
19. Entire Agreement ........... ............... ............................,.. ..,..... ...............,.....,.,..,.... ,..........18
20. Waiver ................... ............................... ............M.............. .....,... ,........ ,......., ......... ...........18
21. Severability ....... .................... .......,.....
.......,,......,..........,. .,..,.....,18
..... ...............................
22. Relationship of the Parties .......................................................................... .............................18
23. No Third Party Beneficiaries ...................................................................... .............................18
24. Recordation of Agreement and Amendments ............................................. .............................19
25. Cooperation Between City and Developer .... .. ................. .................. ......... ........ .......19
26. Rules of Construction ....................................... , ...,,..,. .,....,.19
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27. Joint Preparation .. ............................... ............................. ..................... .............................19
28. Governing Law and Venue ........................ .................... .................. .. .............,...............19
29. Counterparts ...................................... ............................... ................. .................. ...........19
30. Weekend /Holiday Dates .............................. ......... ......... .......„.....,....... ..............,..,...........19
31. Not a Public Dedication ...................... ............................... ....... ......... ........ ..,...... ,..,....,19
32. Releases. .................... ......... ...................................... .............................20
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DEVELOPMENT AGREEMENT
This Development Agreement is made and entered into by and between the CITY OF EL
SEGUNDO ( "City "), a municipal corporation, and SMPO Lab, LLC ( "SMPO "), as of this 15th
day of Oct. , 2012. City and SMPO are referred to hereinafter individually as "Party"
and collectively as "Parties." In consideration of the mutual covenants and agreements contained
in this Agreement, the Parties agree as follows:
1. Definitions. Unless the contrary is stated or clearly appears from the context, the
following definitions govern the construction of words and phrases used in this Agreement:
"Agreement" means this Development Agreement between the City and the Developer.
"Applicable Rules" means:
• The El Segundo General Plan, as it existed on the Effective Date, as modified by
the Project Approvals;
• The El Segundo Municipal Code, as it existed on the Effective Date, as modified
by the Project Approvals;
• The 222 Kansas Street Specific Plan as adopted by the City Council;
• Such other laws, 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.
"Approved Plans" means a plan for any aspect of the Project, including, without
limitation, the Site Plan, signage plans, and landscaping and irrigation plans, which have been
approved by City in accordance with the Development Standards, Applicable Rules and Project
Approvals.
"Building Regulations" means those regulations set forth in Title 13 of the El Segundo
Municipal Code.
"City" means the City of El Segundo and every successor in interest thereto.
"City Council" means the City Council of the City of El Segundo.
"Developer" means SMPO and every successor in interest thereto.
"Development Standards" means the design and development standards that are
applicable to the Project.
"Director" means the Director of Planning and Building Safety of the City of El Segundo.
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"Discretionary Actions; Discretionary Approvals" means actions which require the
exercise of judgment or a decision, and which contemplate and authorize the imposition of
revisions or conditions, by the City, including any board, commission, or department of the City
and any officer or employee of the City, in the process of approving or disapproving a particular
activity, as distinguished from an activity which merely requires the City, including any board,
commission, or department of the City and any officer or employee of the City, to determine
whether there has been compliance with applicable statutes, ordinances, regulations, or
conditions of approval. The Project Approvals are included with these terms.
"Effective Date" means the date on which the Enabling Ordinance becomes effective in
accordance with Government Code § 36937.
"Enabling Ordinance" means Ordinance No. 1470, approving this Development
Agreement.
"Future Approvals" means such other 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 Developer and approved by City.
"Minor Modification" means a minor change to the Project or Project Approvals that is
consistent with the Development Standards, Applicable Rules and Project Approvals.
"Major Modification" means a major change to the Project or Project Approvals as
defined in Section 4.6.3 of this Agreement.
"Project" means the development of the Property in accordance with the uses set forth in
the 222 Kansas Street Specific Plan and the other Project Approvals.
"Project Approvals" means:
• Final Mitigated Negative Declaration and Addendum to Mitigated Negative
Declaration (EA -959), as approved by Resolution No. 4779;
• Mitigation Monitoring Program for Final Mitigated Negative Declaration and
Addendum to Mitigated Negative Declaration, as approved by Resolution No.
4779;
• General Plan Amendment GPA 12 -01, as approved by Resolution No.4779;
• 222 Kansas Street Specific Plan SPA 12 -01, as approved by Ordinance No. 1470;
Zone Change ZC 12 -01, as approved by Ordinance No. 1470;
• Zone Text Amendment ZTA 12 -01, as approved by Ordinance No. 1470;
• Vesting Tentative Map SUB 12 -02, as approved by Resolution No.4779;
Site Plan Review SPR 12 -01, for the site plan contained in the 222 Kansas Street
Specific Plan; and
• Development Agreement DA 12 -01, as approved by Ordinance No. 1470.
"Person" means a natural person or any entity.
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"Property" means that 4.83 acre property located at 222 Kansas Street in El Segundo,
California more particularly described in attached Exhibit "A," which is incorporated by
reference.
"Subsequent Rules" means any changes to the Applicable Rules, including, without
limitation, any 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, agency, commission or department of the City, or
any officer or employee thereof, or by the electorate, which would, absent this Agreement,
otherwise be applicable to the Property.
"Transferee" means a Person which assumes 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., 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.
2.2 Developer is the owner of the Property,
2.3 Developer desires to develop the Property in accordance with the 222 Kansas
Street Specific Plan.
2.4 By this Agreement, City desires to obtain the binding agreement of Developer to
develop the Property in accordance with the Project Approvals and Applicable Rules. 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.
2.5 By this Agreement, Developer desires to obtain the binding agreement of City to
permit the development of the Property in accordance with the Project Approvals and Applicable
Rules. In consideration thereof, Developer agrees to waive its rights to challenge legally the
restrictions and obligations set forth in this Agreement.
2.6 City and Developer acknowledge and agree that the consideration that is to be
exchanged pursuant to this Agreement is fair, just and reasonable.
2.7 This Agreement is intended to provide flexible entitlements, 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 life of this Agreement.
2.8 The Project uses are consistent with the City's General Plan, as amended through
General Plan Amendment No. 12 -01.
2.9 Development of the Project will further the comprehensive planning objectives
contained within the General Plan, and will result in public benefits, including, among others, the
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development of the Property with viable commercial and industrial uses as specified in Section
5.3 below.
2.10 All of the Property is subject to this Agreement.
3. Binding ms. 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.
3.1 Constructive Notice and Acceptance. Every Person who acquires any right, title or
interest in or to any portion of the Property in which Developer has a legal interest is
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 Rights to Transfer. Developer may assign or transfer its rights and obligations
under this Agreement with respect to the Property, or any portion thereof, to any Transferee at
any time during the term of this Agreement without approval of City, including through
provision of a long -term ground lease. For purposes of this Agreement, the Transferee is
considered the "owner" of that portion of the Property which is covered by such transfer.
3.3 Liabilities Upon 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 City prior or subsequent written notice of such transfer;
and (ii) 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 attached Exhibit "B." Upon any transfer of any portion of the
Property and the express assumption of Developer's obligations under this Agreement by such
Transferee, City agrees to look solely to 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
"Developer" and is subject to the obligations of this Agreement applicable to the parcel(s)
transferred. A default by any Transferee only affects that portion of the Property owned by such
Transferee and does not cancel or diminish in any way Developer's rights with respect to any
portion of the Property not owned by such Transferee. Transferees are responsible for satisfying
the good faith compliance requirements set forth in Section 8 below relating to the portion of the
Property owned by a Transferee, and any amendment to this Agreement between the City and a
Transferee only affects the portion of the Property owned by such Transferee.
3.4 Reassumption of Rights. If Transferee defaults with respect to any provision of
this Agreement, Developer may reassume Transferee's obligations upon written notification to
City.
4. Development of the Property. The following provisions govern the development and use
of the Property.
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4.1 Entitlement to Develop. Developer is granted the vested right to develop the
Project on the Property subject to the Applicable Rules, the Project Approvals and any Future
Approvals.
4.2 Permitted Uses Density, Height and Dedication of Land for Public PuMoses. The
permitted and conditionally permitted uses of the Property as well as the density or intensity of
use, the maximum height and size of buildings and provisions for reservation or dedication of
land for public purposes are set forth in the Project Approvals and Applicable Rules.
4.3 Development Standards. The Development Standards applicable to the Property
are set forth in the Project Approvals and Applicable Rules.
4.4 Building Regulations. Nothing in this Agreement precludes City from applying
changes occurring from time to time in the Building Regulations, provided that such changes (a)
are found by City to be necessary to the health or safety of the citizens of the City, (b) are
generally applicable to all similar types of property in the City, and (c) do not prevent or
unreasonably delay development of the Project in accordance with this Agreement.
4.5 Subsequent Rules. Subsequent Rules cannot be applied by City to any part of the
Property unless Developer gives City written notice of its election to have such Subsequent Rule
applied to the Property, in which case such subsequent change is deemed to be an Applicable
Rule.
4.6 Future Approvals.
4.6.1 Minor Modifications to Protect. Developer may make minor changes to the
Project and Project Approvals ( "Minor Modifications ") without amending this Agreement upon
the administrative approval of the Director or designee, provided that such modifications are
consistent with the Development Standards, Applicable Rules and Project Approvals. The City
cannot 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 cannot: (i) be inconsistent with the Applicable Rules, the Project
Approvals or with the development of the Project as contemplated by this Agreement; (ii)
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 (iii) impose additional dedications,
infrastructure or public improvement obligations, fees, costs or exactions exceeding those
identified in the Applicable Rules, the Project Approvals, or this Agreement.
4.6.2 Modification of Project Approvals. The Parties contemplate that Developer
may, from time to time, pursuant to Section 4.6.1 seek Minor Modifications to the Project or one
or more of the Project Approvals. Any such Minor Modifications are contemplated by the Parties
as being within the scope of this Agreement as long as they are authorized pursuant to this
Section 4.6.2 and must, upon approval by City, continue to constitute the Project Approvals as
referenced herein. The Parties agree that any such amendments do not constitute an amendment
to this Agreement nor require an amendment to this Agreement.
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4.6.3 Modifications Requiring Amendment to this Agreement. Any proposed
modification to the Project which is not authorized by Section 4.6.2 and results in any of the
following does not constitute a Minor Modification but constitutes a Major Modification and
requires an amendment to this Agreement pursuant to Section 14 below:
(a) Any decrease in the required building setbacks as set forth in the
222 Kansas Street Specific Plan;
(b) Any increase in the FAR of the entire Property as set forth in the
222 Kansas Street Specific Plan;
(c) Any increase in height of buildings or structures on the Property
above the height specified in the 222 Kansas Street Specific Plan;
(d) Any decrease in the minimum required lot area as set forth in the
222 Kansas Street Specific Plan;
(e) Any change in use to a use which is not permitted under the 222
Kansas Street Specific Plan;
(f) Any deviation from the uses and development standards or
limitations set forth in Sections 4.1 through Section 4.3 of this Agreement, except to the extent
these Sections specifically provide for the Council or the Director to approve of such changes;
(g) Any material modification to Developer's obligation to build to
LEED certification standards and provide certification for non - governmental buildings for the
Project or such equivalent standard as approved by the Director; or
(h) Any material modification that requires modification to the MND,
other than an Addendum.
0) Other than the Major Modifications listed above, all other
modifications to the Project are considered "Minor Modifications."
4.6.4 Site Plan Review Approval. The Site Plan Review which must be
submitted pursuant to the Specific Plan is not considered a Minor Modification to the Project or
modification to the Project Approvals, provided it substantially conforms to the development
standards of the 222 Kansas Street Specific Plan, and must be processed in accordance with the
provisions set forth in the Specific Plan.
4.7 Plan Review. The Director will review site plans as well as plans for each
building, signage, trash enclosures, screening and landscaping. After such review, the Director
may issue 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, Applicable Rules, Project
Approvals, and Future Approvals and does not have authority to disapprove or conditionally
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approve any features or matters which are consistent with or otherwise which have been
specifically approved by this Agreement.
4.8 gees, Exactions Miti gion MeasgresCgiditions, 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, the Applicable Rules and this Agreement. Except as otherwise provided in this
Agreement, and specifically excluding fees set by entities not controlled by City that are
collected by City, City can only charge and impose those fees and exactions, including, without
limitation, dedications and any other fee or tax (including excise, construction or any other tax)
relating to development or the privilege of developing, which are in effect on a City -wide basis
as of the Effective Date. This Section cannot be construed to limit the authority of City to charge
normal and customary application, processing, and permit fees 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
City.
4.9 Use of Easements. Notwithstanding the provisions of the Applicable Rules,
easements dedicated for vehicular and pedestrian use are permitted to include easements for
underground drainage, water, sewer, gas, electricity, telephone, cable, environmental remediation
and other utilities and facilities so long as they do not unreasonably interfere with pedestrian
and /or vehicular use.
4.10 Timing of Development. 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 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 has 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 term 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, applies to the Property. However, nothing in this Section may 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.
4.11 Moratorium. 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 City, the electorate, or otherwise) affecting
parcel or subdivision maps (whether tentative, vesting tentative or final), building permits,
occupancy certificates or other entitlements to use or service (including, without limitation, water
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and sewer) approved, issued or granted within City, or portions of 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 City's compliance with moratoria or other limitations
mandated by other governmental agencies or court- imposed moratoria or other limitations.
4.12 Infrastructure.
4.12.1 Infrastructure Ca acit . Subject to Developer's installation of
infrastructure in accordance with the requirements of the Project Approvals and any Future
Approvals, City acknowledges that it will have sufficient capacity in its infrastructure, services
and utility systems, including, without limitation, traffic circulation, storm drainage, flood
control, electric service, sewer collection, sewer treatment, sanitation service and, except for
reasons beyond City's control, water supply, treatment, distribution and service, to accommodate
the Project. To the extent that City renders such services or provides such utilities, City agrees
that it will serve the Project and that there is no restriction on hookups or service for the Project
except for reasons beyond City's control.
4.12.2 Infrastructure Phasing FlexibilitX. Notwithstanding the provisions of any
phasing requirements in the Project Approvals or any Future Approvals, Developer and City
recognize that economic and market conditions may necessitate changing the order in which the
infrastructure is constructed. Therefore, City and Developer agree that should it become
necessary or desirable to develop any portion of the Project's infrastructure in an order that
differs from the order set forth in this Agreement, Developer and City will collaborate and City
will permit any modification requested by Developer so long as the modification continues to
ensure adequate infrastructure is available to serve that portion of the Project being developed
and is in compliance with Section 4.14 of this Agreement.
4.12.3 Infrastructure Completion. No building permit, final inspection or
Certificate of Occupancy will be unreasonably withheld, conditioned, or delayed by City 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 and
any Future Approvals are satisfied.
4.12.4 Prevailing Wages. In the event any infrastructure improvements are paid
for in whole or in part out of public funds, as contemplated by Labor Code § 1720, Developer
agrees to pay prevailing wages for the construction of such improvements to the extent required
by Applicable Law.
4.13 Term. The term of this Agreement is ten (10) years from the Effective Date.
However, Developer or City is entitled to, by written notice to the other Party before the
Agreement's expiration, one (1) five (5) -year extension, provided that the requesting Party is not
in material default of this Agreement at such time. Before the expiration of such 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
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the validity 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.
4.14 Satisfaction of Mitigation Measures and Conditions. In the event that any of the
mitigation measures or conditions required of Developer are implemented by others, Developer
is 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, 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 is deemed to be a Minor Modification pursuant to Section 4.6
above.
4.15 In Lieu Credits. Developer is granted in lieu credits for any off -site improvements
relating to street improvements or traffic measures which Developer may be required to
construct as part of this Project.
4.16 Performance of Director Duties. If City determines at any time during the term of
this Agreement that the duties to be performed by the Director under this Agreement will be
performed by one or more staff members other than the Director, City will endeavor to notify
Developer of such change. The City must ensure that a person or persons are designated at all
times to carry out the duties of the Planning and Building Safety Director set forth in this
Agreement.
5. Developer Agreements
5.1 General. Developer must comply with: (i) this Agreement; (ii) the Project
Approvals including, without limitation, all mitigation measures required by the determination
made pursuant to CEQA; and (iii) all Future Approvals for which it is the applicant or a
successor in interest to the applicant.
5.2 Development Fees. Subject to the provisions of Section 4.8 above, Developer
must pay the development fee amounts identified in attached Exhibit "C," which is incorporated
by reference.
5.3 Processing Fees. Subject to the provisions of Section 4.8 above, on the Effective
Date of this Agreement, Developer must pay all reasonable and outstanding City processing,
legal and environmental processing costs related to the Project and the preparation of this
Agreement, if any.
5.4 Maintenance Obligations. Developer must maintain all portions of the Property in
its possession or control, and any improvements thereon, in a clean, neat and orderly manner.
Developer's maintenance obligations survive any termination or expiration of this Agreement.
5.5 Term of Map(s) and Other Project Approvals. Pursuant to Government Code §§
66452.6(a) and 65863.9, the term of any subdivision or parcel map that has been or in the future
may be processed on all or any portion of the Property and the term of each of the Project
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Approvals will be extended for a period of time through the scheduled termination date of this
Agreement as set forth in Section 4.13 above.
5.6 Sales and Use T
5.6.1 In the event the contract price for any work on the Project is valued at five
million dollars ($5,000,000) 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 must indicate the City as a registered job site
location on the State Board of Equalization Tax Return. In such event, Developer must also
obtain a permit or a sub - permit from the State Board of Equalization indicating the City as the
registered job site location, in accordance with State Board of Equalization Operations
Memorandum No. 1023.
5.6.2 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 must contain
the provisions set forth in Section 5.6.1 above.
5.6.3 The Director of Finance is authorized to relieve Developer, and
Developer's contractors and subcontractors, from the requirements set forth in this Section 5.6
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.
5.7 In Lieu Payment for USDA Facility
5.7.1 Within 10 days of the Effective Date, SMPO must deposit an initial
$225,000 with the City in lieu of the taxes. SMPO must deposit an additional $225,000 with the
City in lieu of the taxes before the City issues a Certificate of Occupancy for any building.
5.7.2 City must reimburse $25,000 of the deposit to SMPO within 30 days of
the completion of the overflow parking and storage for the lot at 1600 East Grand Avenue
subject to review and approval of the landscaping and screening plan by the Director of Planning
and Building Safety consistent with the materials used at the adjacent MEPS site at 1776 East
Grand Avenue as approved by City Council Resolution No. 4559 and Ordinance No. 1419 for
Environmental Assessment No. EA 769, Zone Change ZC 07 -01, Specific Plan Amendment No.
SPA 08 -02, and Smoky Hollow Specific Plan Review No. SHSPR 07 -04.
5.7.3 City must reimburse $25,000 of the deposit to SMPO if it issues a building
permit for the northerly 1.41 acres in accordance with the Specific Plan and Site Plan Review
approval within 24 months of the effective date of the adopted Specific Plan. City must
reimburse SMPO within 30 days after issuing a building permit.
5.7.4 If for some reason the USDA facility is not developed or does not become
operational and a non - exempt use utilizes the southerly portion of the Property, the entire deposit
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of $450,000 must be returned to SMPO within 30 days of SMPO informing the City by written
notification of such occurrence.
5.8 LEED Certification. Developer's Project must be, at a minimum, built to LEED
Certified standards in compliance with the U.S. Green Building Council standards in effect as of
the Effective Date, or such equivalent standard as determined by the Director. Actual LEED
certification is not required, however, the applicant must demonstrate that the project is built to a
minimum of LEED certified standard or such other equivalent standard using the GBCI
scorecard prepared by a qualified professional with a LEED AP credential. The City can require
peer review of the LEED report and GBCI scorecard by a qualified professional with a LEED
AP credential hired by the City at the applicant's expense to advise the Director of Planning and
Building Safety in his or her determination. Additionally, the City can require inspections for
grading, site improvements, and buildings for the project by a qualified professional with a
LEED AP credential to verify that the project has been constructed in compliance with the LEED
report and GBCI scorecard to advise the Director of Planning and Building Safety in his or her
determination.
6. Citv Agreements
6.1 Expedited Processing The City must process 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, construction,
development, improvement, use and occupancy of the Project in accordance with City's
accelerated plan check process under the Applicable Rules. Without limiting the foregoing, if
requested by Developer, 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 Processing Cooperation and Assistance. To the extent permitted by law, City must
reasonably cooperate with 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, City must reasonably cooperate with the Developer in any dealings with federal, state
and other local governmental and quasi - governmental entities concerning issues affecting the
Property. City must keep Developer fully informed with respect to its communications with such
agencies which could impact the development of the Property.
6.3 Processing Third Party Liti ag tion. The filing of any third party lawsuit(s)
against City or 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 will
not hinder, delay or stop the development, processing or construction of the Project, approval of
applications for any Future Approvals, or issuance of ministerial permits or approvals, unless the
third party obtains a court order preventing the activity. City does not stipulate to or cooperate in
the issuance of any such order.
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7. Modification/Suspension. Pursuant to Government Code § 65869.5, in the event that any
state or federal law or regulation, enacted after the Effective Date, precludes compliance with
any provision of this Agreement, such provision will 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 will be
restored to their full original effect.
8. Demonstration of Good Faith Compliance.
8.1 Review of Compliance. In accordance with Government Code § 65865.1, this
Section 8 and the Applicable Rules, once each year, on or before each anniversary of the
Effective Date ( "Periodic Review "),, the Director will review the extent of 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 Faith Compliance. During each Periodic Review, Developer must
demonstrate that, during the preceding twelve (12) month period, it has been in good faith
compliance with this Agreement. For purposes of this Agreement, the phrase "good faith
compliance" means that Developer has demonstrated that it acted in a commercially reasonable
manner (taking into account the circumstances which then exist) and in good faith in and has
substantially complied with Developer's material obligations under this Agreement.
8.3 Infomiation to be Provided to Developer. At least fourteen (14) days before the
annual Effective Date the City must deliver to 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
8.4 Developer's Report. No later than the annual Effective Date, Developer must
submit a written status report to the Director addressing the good faith compliance issue and any
issues raised by the Information provided to Developer.
8.5 Notice Of Non - Compliance; Cure Rights. If, after reviewing the Developer's
Report, the Director reasonably concludes on the basis of substantial evidence that as to any
parcel 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 Developer a written
Notice of Violation as set forth in Section 10 below.
8.6 Public Notice of Finding. Any appeal of the Director's determination (including
any appeal by 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 must be heard directly by the City Council at a
duly- noticed public hearing and the City Council must issue a final decision. Not in limitation of
the forgoing, Developer retains the right to challenge City's issuance of any final decision
pursuant to Code of Civil Procedure § 1094.5 without complying with the procedures set forth in
Section 10.4 below.
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8.7 Failure of Periodic Review. The City's failure to review, at least annually,
compliance by Developer with the terms and conditions of this Agreement does not constitute
nor can it be asserted by any Party as a breach by any other Party of this Agreement. If the City
fails to provide a Review Letter within sixty (60) days of the annual Effective Date, Developer
will be deemed to be in good faith compliance with this Agreement.
9. Excusable Delays. Performance by any Party of its obligations in this Agreement is
excused during any period of "Excusable Delay," as 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 means delay that directly affects,
and is beyond the reasonable control of, the Party claiming the delay, including without
limitation: (a) civil commotion; (b) riot; (c) strike, picketing or other labor dispute; (d) shortage
of materials or supplies; (e) damage to work in progress or delays by reason of fire, flood,
including flood due to rains, earthquake, windstorm, or other casualty; (f) reasonably
unforeseeable delay caused by a reasonably unforeseeable restriction imposed or mandated by a
governmental entity other than City; (g) litigation brought by a third party attacking the validity
of a Project Approval, a Future Approval or any other action necessary for development of the
Property; (h) delays caused by any default by the other Party; or (i) delays due to the presence or
remediation of hazardous materials. The Term of this Agreement, including any extensions, will
automatically be extended by any period of Excusable Delay.
10. Default Provisions.
10.1 Default. Any Party to this Agreement will have breached this Agreement if it
materially breaches any of the provisions of this 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 is not 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 will not be in default if it
commences to cure the default within such time limit and diligently effects such cure thereafter.
If City determines that a default may have occurred, City may choose to terminate this
Agreement as to that portion of the Property owned by the Developer in default in which case it
must give written notice to Developer of its intention to terminate and comply with the notice
and public hearing requirements of Government Code §§ 65867 and 65868. Notice must also be
sent to any other Developer that owns Property subject to this Agreement. At the time and place
set for the hearing on termination, Developer will be given an opportunity to be heard. If the City
Council finds based upon the evidence that Developer is in breach of this Agreement, the City
Council may modify or terminate this Agreement; provided, however, if Developer initiates a
resolution of dispute in accordance with the provisions of Section 10.4 below within sixty (60)
days following the City Council's determination that Developer is in breach of this Agreement,
the City Council's decision to modify or terminate this Agreement is stayed until the issue has
been resolved through informal procedures, mediation, or court proceedings.
10.2 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), the portion of the
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Property involved, and the manner in which the breach may be satisfactorily cured. Notice must
be given in accordance with Section 18 hereof.
10.3 Remedies for Breach. The Parties agree that the remedies for breach of this
Agreement are limited to the remedies expressly set forth in this subsection. The remedies for
breach of this Agreement by Developer are limited to injunctive relief and/or specific
performance; the remedies by City are limited to injunctive relief and /or specific performance, or
termination of this Agreement in accordance with Section 10.1 above.
10.4 Resolution of Disputes.
City and Developer agree to attempt to settle any claim, dispute or controversy
arising from this Agreement through consultation and negotiation in good faith and in a spirit of
mutual cooperation. If those attempts fail, the dispute may be mediated by a mediator chosen
jointly by City and Developer within thirty (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, and City and 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 lieu 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 for non-
binding mediation may then be submitted to a court of competent jurisdiction in the County of
Los Angeles, California.
10.5 Attorneys' Fees and Costs.
Each party to this Agreement agrees to waive any entitlement of attorneys' fees
and costs incurred with respect to any dispute arising from this Agreement. The parties will each
bear their own attorneys' fees and costs in the event of any dispute.
11. Mortgagee Protection. This Agreement does not prevent or limit the Developer, in any
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. 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 Developer
and representatives of such lender(s) to provide within a reasonable time period City's response
to such requested interpretations. 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 a judicial or non -
judicial foreclosure sale or a person or entity who obtains title by deed -in -lieu of foreclosure on
the Property is entitled to the following rights and privileges:
11.1 Mortgage Not Rendered Invalid. Neither entering into this Agreement nor a
breach of this Agreement will 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
has an obligation or duty under this Agreement to perform Developer's obligations, or to
guarantee such performance, before taking title to all or a portion of the Property.
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11.2 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, is entitled to receive a copy of any Notice of
Violation delivered to the Developer.
11.3 Mortgagee's Time to Cure. City must provide a copy of any Notice of Violation
to the Mortgagee within ten (10) days of sending the Notice of Violation to Developer. The
Mortgagee has the right, but not the obligation, to cure the default for a period of thirty (30) 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 is 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 has until thirty (30) days after the date of
obtaining such possession to cure 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
(1) 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,
will succeed to the rights and obligations of Developer under this Agreement as to the Property
or portion thereof so acquired; provided, however, in no event is such Mortgagee liable for any
defaults or monetary obligations of Developer arising before acquisition of title to the Property
by such Mortgagee, except that any such Mortgagee is not 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.
11.5 Bankruptcy. 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 Developer, the times specified in Section 11.3
above will be extended for the period of the prohibition, except that any such extension cannot
extend the term of this Agreement.
11.6 Disaffirmation. 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, this Agreement is
disaffirmed by a receiver, liquidator, or trustee for Developer or its property, City, if requested
by any Mortgagee, will 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. Estoppel Certificate. At any time and from time to time, Developer may deliver written
notice to City and City may deliver written notice to 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 Agreement 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
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must execute and return the certificate within twenty -one (21) days following receipt of the
notice. The failure of City to deliver such a written notice within such time constitutes a
conclusive presumption against City that, except as may be represented by 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 Director is authorized to execute, on behalf of City,
any Estoppel Certificate requested by Developer. City acknowledges that a certificate may be
relied upon by successors in interest to Developer who 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. Administration of Agreement.
13.1 Appeal of 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 Developer to the Planning Commission, and thereafter, if
necessary, to the City Council pursuant to the El Segundo Municipal Code. Developer cannot
seek judicial review of any staff decision without first having exhausted its remedies pursuant to
this Agreement. Final determinations by the City Council are subject to judicial review subject to
the restrictions and limitations of California law.
13.2 Operating Memoranda. The provisions of this Agreement require a close degree
of 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 terms of this
Agreement, City and Developer agree that such clarifications are necessary or appropriate, they
will effectuate such clarification through Operating Memoranda approved in writing by City and
Developer, which, after execution, will 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 Developer. Operating Memoranda are not intended to and do not constitute an
amendment to this Agreement but are mere ministerial clarifications, therefore public notices and
hearings are not required. The City Attorney is authorized, upon consultation with, and approval
of, the Developer, to determine whether a requested clarification may be effectuated pursuant to
this Section or whether the requested clarification is of such character to constitute an
amendment hereof which requires compliance with the provisions of Section 14 below. The
authority to enter into such Operating Memoranda is hereby delegated to the Director, and the
Director is hereby authorized to execute any Operating Memoranda hereunder without further
City Council action.
13.3 Certificate of Performance. Upon the completion of the Project, or the completion
of development of any parcel within the Project, or upon completion of performance of this
Agreement or its earlier revocation and termination, City must provide Developer, upon
Developer's request, with a statement ( "Certificate of Performance ") evidencing said completion
or revocation and the release of Developer from further obligations hereunder, except for any
ongoing obligations hereunder. The Certificate of Performance must be signed by the appropriate
agents of Developer and City and 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 Civil
Code § 3093.
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14. Amendment or Termination by Mutual Consent. Except as otherwise set forth herein, this
Agreement may only be amended or terminated, in whole or in part, by mutual consent of City
and Developer, and upon compliance with the provisions of Government Code §§ 65867 and
65867.5.
15. Indemnification/Defense.
15.1 Indemnification. Developer 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, arising from the City's approval of Project, this Agreement, Developer's
performance of this Agreement, and all procedures with approving this Agreement (collectively,
"Discretionary Approvals "), except to the extent such is a result of the City's sole negligence or
intentional misconduct. 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, arising out of the
Discretionary Approvals, Developer 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.
15.2 Defense of Agreement. If City accepts Developer's indemnification and defense
as provided in Section 15.1 above, City agrees to and must timely take all actions which are
necessary or required to uphold the validity and enforceability of this Agreement, the
Discretionary Approvals, Project Approvals, Development Standards and the Applicable Rules.
This Section 15 will survive the termination of this Agreement.
16. Time of Essence. Time is of the essence for each provision of this Agreement of which
time is an element.
17. Effective Date. This Agreement becomes operative on the Effective Date.
18. Notices. Any notice that a party is required or may desire to give the other must be in
writing and may be sent by: i) personal delivery; or ii) by deposit in the United States mail,
postage paid, registered or certified mail, return receipt requested; or iii) by overnight delivery
using a nationally recognized overnight courier, providing proof of delivery; or iv) by facsimile,
evidenced by confirmed receipt, addressed as follows (subject to the right of a party to designate
a different address for itself by notice similarly given):
If to City: City of El Segundo
350 Main Street
El Segundo, California 90245
Attention: City Manager
With a Copy to: City of El Segundo
350 Main Street
El Segundo, California 90245
Attention: Director of Planning and Building Safety
With a Copy to: Jenkins & Hogin, LLP
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4,5 22 . 1,6
1230 Rosecrans Ave, Suite 110
Manhattan Beach, California 90266
Attention: Mark D. Hensley, Esq.
If to SMPO: SMPO Labs, LLC
5858 Ridgeway Center Parkway
Memphis, Tennessee 38120
Attention: Steve Williams
Any notice given by mail is deemed to have been given as of the date of delivery (whether
accepted or refused) established by United States 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. A party's address may be changed by written notice to the
other party effective upon actual receipt of such notice. After a transfer of all or a portion of the
Property pursuant to Sections 3.2 and 3.3, SMPO must be copied on all correspondence whether
by City or Transferee relating to such transferred property.
19. Entire Agreement. 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 cannot be amended, except as expressly
provided herein
20. Waiver. No waiver of any provision of this Agreement constitutes a waiver of any other
provision, whether or not similar; nor does any such waiver constitute a continuing or subsequent
waiver of the same provision. No waiver is binding, unless it is executed in writing by a duly
authorized representative of the Party against whom enforcement of the waiver is sought.
21. 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.
22. 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
other Party in any respect. Nothing contained herein or in any document executed in connection
herewith may be construed as creating the relationship of partners, joint ventures or any other
association of any kind or nature between City and Developer, jointly or severally.
23. 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.
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24. 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.
25. Cooperation Between City and Developer. City and Developer will 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
subject to the continuing cooperation of the Developer, 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.
26. Rules of Construction. The captions and headings of the various sections and subsections
of this Agreement are for convenience of reference only, and they do 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 any Future Approvals, the provisions of this Agreement control.
27. Joint Preparation. This Agreement is deemed to have been prepared jointly and equally
by the Parties, and it cannot be construed against any Party on the ground that the Party prepared
the Agreement or caused it to be prepared.
28. 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 govern its
interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this
Agreement must be filed in the appropriate court having jurisdiction in the County of Los
Angeles.
29. Counterparts. This Agreement may be executed in multiple counterparts, each of which is
deemed an original, but all of which constitute one and the same instrument.
30. Weekend /Holiday. Whenever any determination is to be made or action to be taken
on a date specified in this Agreement, if such date falls upon a Saturday, Sunday or other holiday
specified in Government Code § 6700, the date for such determination or action will be extended
to the first business day immediately thereafter.
31. Not a Public Dedication. Except as otherwise expressly provided herein, nothing herein
contained is 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. Developer has
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. Any portion of the Property
conveyed to the City by the Developer as provided herein can be held and used by the City only
for the purposes contemplated herein or otherwise provided in such conveyance, and the City
will 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
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October 24, 2012
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS
CITY OF EL SEGUNDO )
On October 15, 2012, before me, Cathy Domann, Deputy City Clerk, personally
appeared Carl Jacobson, Mayor for the City of El Segundo, who 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 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.
I certify under the Penalty of Perjury under the laws of the Sate of California that
the foregoing paragraph is true and correct.
Witness my hand and Official Seal.
Cathy Domann, Deputy City Clerk II
material benefits of this Agreement, or would in any manner interfere with the development of
the Project as contemplated by this Agreement.
32. 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.
33. 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.
34. Exhibits. All exhibits attached hereto are incorporated by this reference.
IN WITNESS WHEREOF, Developer and City of El Segundo have executed this Development
Agreement on the date first above written.
CITY:
CITY OF EL SEGUNDO, a municipal corporation
B y.
Carl Jacobs , Mayor
i racy v►, eE
City Clerk
APPROVED AS TO FORM:
20
DEVELOPER:
SMPO LAB, LLC, a Delaware limited liability
company
Y:
Steve Williams
Its: — Q 4'Q U.�= -e ��
21
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ALL-PURPOSE
State of o
County of // Notary Public
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lnr��" before me, m airy n ry Feu d �a a�f arrr�
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personally appeared. �� C. ��������������. ®�
� �� Name(s) of 9lgner(s)
Though the information below is not required by law, it may prove .valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capaeity(ies) Claimed by Signer(s)
Signer's Name; __ .................
❑ Individual
❑ Corporate Officer — Title(s):
0 Partner — ❑ Limited ❑ General
Li Attorney in Fact
l =I Trustee Top of thumb here
[.'.] Guardian or Conservator
❑ Other; I _ ...........
Signer Is Representing:
Number of Pages:
Signer's Name: _____ — _
❑ Individual
❑ Corporate Officer — Titfe(s):,
❑ Partner — El Limited ❑ General
❑ Attorney in Fact
❑ Trustee
Ll Guardian or Conservator
U Other:
Signer Is Representing:
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02007 National Notary Assoclafioa • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313.2402 • www.NationalNotaryorg ltem 115907 Reorder. Call Totl•Frea 1.800 -976 -6827
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that
he /she /they executed the same in his /her /their authorized
capacity(ies), and that by his/her /their signature(s) on the
ft or
instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument,
RV
I certi fy under PENALTY OF PERJURY under the laws
un r P
the State of Ga#iferia that the foregoing is
of paragraph
true and correct?-"'
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WITNESS my hand and official seal,
g a
�
Signature- �� . -S���n
Pfarm l4otmiy&W Above
ore f Notary Public
Though the information below is not required by law, it may prove .valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capaeity(ies) Claimed by Signer(s)
Signer's Name; __ .................
❑ Individual
❑ Corporate Officer — Title(s):
0 Partner — ❑ Limited ❑ General
Li Attorney in Fact
l =I Trustee Top of thumb here
[.'.] Guardian or Conservator
❑ Other; I _ ...........
Signer Is Representing:
Number of Pages:
Signer's Name: _____ — _
❑ Individual
❑ Corporate Officer — Titfe(s):,
❑ Partner — El Limited ❑ General
❑ Attorney in Fact
❑ Trustee
Ll Guardian or Conservator
U Other:
Signer Is Representing:
(-71GHTTFi(JMBfy�fNT �
t
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02007 National Notary Assoclafioa • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313.2402 • www.NationalNotaryorg ltem 115907 Reorder. Call Totl•Frea 1.800 -976 -6827
EXHIBIT A
PROPERTY DESCRIPTION
PARCEL A
14 3
ALL OF PARCEL 4 OF PARCEL MAP NO. 7707, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 100, PAGE 78 OF PARCEL MAPS;
TOGETHER WITH THAT PORTION OF PARCELS 1 AND 2 OF PARCEL MAP NO. 10427, IN SAID CITY,
COUNTY AND STATE, AS PER MAP FILED IN BOOK 113, PAGE 25 OF PARCEL MAPS, BOTH IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING WESTERLY, SOUTHERLY AND
SOUTHWESTERLY OF THE FOLLOWING DESCRIBED LINE:
COMMENCING AT THE WESTERLY TERMINUS OF THE NORTHERLY LINE OF SAID PARCEL 1
OF SAID PARCEL MAP NO. 10427, SAID NORTHERLY LINE BEING SHOWN ON SAID PARCEL
MAP AS BEARING NORTH 89° 53' 52" EAST, 158.66 FEET; SAID NORTHERLY LINE ALSO
BEING THE SOUTHERLY RIGHT OF WAY LINE OF GRAND AVENUE, 60 FEET WIDE, AS
SHOWN ON SAID PARCEL MAP NO. 10427; SAID SOUTHERLY RIGHT OF WAY LINE ALSO
BEING THE NORTHERLY LINE OF SAID PARCEL 4 OF SAID PARCEL MAP NO. 7707 AND THE
NORTHERLY LINE OF SAID PARCEL 2 OF SAID PARCEL MAP NO. 10427, ALL AS SHOWN ON
SAID PARCEL MAP NO. 10427;
THENCE ALONG SAID NORTHERLY LINE OF SAID LOT 1 OF PARCEL MAP NO. 10427 AND
CONTINUING ALONG THE NORTHERLY LINES OF SAID PARCEL 4 OF SAID PARCEL MAP NO.
7707 AND SAID PARCEL 2 OF SAID PARCEL MAP NO. 10427, NORTH 89° 53'52" EAST, 308.01
FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID NORTHERLY LINE, SOUTH 00° 06'08" EAST, 152.16 FEET;
THENCE NORTH 890 53'52" EAST, 60.48 FEET TO THE SOUTHWESTERLY LINE OF SAID LOT 2
OF SAID PARCEL MAP NO. 10427; SAID SOUTHWESTERLY LINE SHOWN AS BEARING NORTH
540 09'12" WEST ON SAID PARCEL MAP;
THENCE ALONG SAID SOUTHWESTERLY LINE, SOUTH 54° 09' 12" EAST, 95.11 FEET TO THE
POINT OF INTERSECTION WITH A LINE THAT IS PARALLEL WITH AND 297.00 FEET
NORTHERLY, MEASURED AT RIGHT ANGLES, FROM THE NORTHERLY RIGHT OF WAY LINE
OF FRANKLIN AVENUE, 50 FEET WIDE, SAID STREET RIGHT OF WAY WIDTH BEING SHOWN
ON SAID PARCEL MAP NO. 10427.
EXCEPTING THEREFROM THAT PORTION OF SAID PARCEL 1 OF SAID PARCEL MAP NO. 10427
LYING SOUTHERLY OF SAID LINE THAT IS PARALLEL WITH AND 297.00 FEET NORTHERLY,
MEASURED AT RIGHT ANGLES, FROM THE NORTHERLY RIGHT OF WAY LINE OF FRANKLIN
AVENUE, 50 FEET WIDE, SAID STREET RIGHT OF WAY WIDTH BEING SHOWN ON SAID PARCEL
MAP NO. 10427.
A -1
2
PARCEL B
THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 10427, IN THE CITY OF EL SEGUNDO, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 113, PAGE 25 OF PARCEL
MAPS, LYING SOUTHERLY OF A LINE, PARALLEL WITH AND 297.00 FEET NORTHERLY, MEASURED
AT RIGHT ANGLES, FROM THE NORTHERLY RIGHT OF WAY LINE OF FRANKLIN AVENUE, 50 FEET
WIDE, SAID STREET RIGHT OF WAY WIDTH BEING SHOWN ON SAID PARCEL MAP NO. 10427.
END LEGAL DESCRIPTION
A -2
EXHIBIT B
Recording Requested By and
When Recorded Mail To:
SMPO Labs, LLC
5858 Ridgeway Center Parkway
Memphis, Tennessee 38120
Attention: Steve Williams
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement ") is made and
entered into by and between , ( "Assignor "), and
("Assignee").
, a Assi nee ")
RECITALS
A. The City of El Segundo ( "City ") and Assignor entered into that certain
Development Agreement dated , 2012 (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 assignment
from Assignor and assume the obligations of Assignor under the Development Agreement and
the Project Approvals with respect to the Transferred Property.
THEREFORE, the parties agree as follows:
1. 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 Transferred Property. 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
Transferred Property, including without limitation those obligations specifically allocated to the
Transferred Parcel as set forth on Exhibit "C" attached hereto.
I z- ell, 111, �, ik4`
3. Effective Date. The execution by City of the attached receipt for this Agreement
is considered as conclusive proof of delivery of this Agreement and of the assignment and
assumption contained herein. This Agreement is 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 of Project. Any and all rights or obligations pertaining to such portion
of the Project Site other than the Transferred Property are expressly excluded from the
assignment and assumption provided in Sections 1 and 2 above.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
dates set forth next to their signatures below.
"ASSIGNOR"
[Name of Developer]
Date: By:
Its:
By:
Its:
"ASSIGNEE"
a
Date: By:
Its:
FM
RECEIPT BY CITY
The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by the
City of El Segundo on this _ day of..... ITIT_ ,
CITY OF EL SEGUNDO
IM
STATE OF CALIFORNIA )
SS
COUNTY OF
Director of Planning and Building Safety
On ._ _.
20, before me,, a Notary
Public, personally appeared , who 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.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA )
SS:
COUNTY OF _.m ................._�)
(Seal)
On ....... 20 , before me, ..... a Notary
Public, personally appeared p � y pp .............. ---9 who 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.
p III T�INi dI� }}�
Nlp � JWV III,
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
.,
(Seal)
3 2 - hi a
EXHIBIT C
DEVELOPMENT FEE SCHEDULE
City of El Segundo Fees:
1. Police Service Mitigation Fee Per City Council Resolution No. 4687 adopted on
October 5, 2010.
2. Fire Service Mitigation Fee
3. Parks Mitigation Fee
4. Traffic Mitigation Fee
Per City Council Resolution No. 4687 adopted on
October 5, 2010.
Per City Council Resolution No. 4687 adopted on
October 5, 2010.
Per City Council Resolution No. 4443 adopted on
November 15, 2005.
5. Water Meter Installation Fees Per Title 11 of ESMC.
Page a