Press Alt + R to read the document text or Alt + P to download or print.
This document contains no pages.
CONTRACT 4271 Developer’s Agreement- This page is part of your document - DO NOT DISCARD -
20120798461
1111111111111 11111 1111111111111111111111 11 III P0037
Recorded /Filed in Official Records
Recorder's Office, Los Angeles County,
California
05/30/12 AT 08:57AM
FEES:
0.00
TAXES:
0.00
OTHER:
0.00
PAID:
0.00
IIIIIIIIIII�VIIIVIII�IIIIIIIIIIIVI�IIII��llllllnlllll�llllllllllll�lllll
LEADSHEET
111111111111111111111111111111111111111111111111111111111111
00005846786
mfliaunorauim�uiu
SEQ:
01
uuamDAR
iniuiAMail (Hard iCopy)
imum
� 1 �
THIS FORM IS NOT TO BE DUPLICATED
RECORDING REQUEST BY
WHEN RECORDED MAIL TO:
City of El Segundo
City Clerk's Office
350 Mail Street
El Segundo, CA 90245
m,n I w.
I I il12
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
TITLE(S)
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF EL SEGUNDO AND
EL EL SEGUNDO UNIFIED SCHOOL DISTRICT
EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE § 6103
RE, CORDING REQUESTED BY
AND' ?I~T.EN RECORDED MAIL TO
CITY CLERK
CITY OF EL SEGUNDO
350 Main Street
El Segundo, California 90245
4 2 7 1
EXEMP,r FROM RECORDER'S FEES
Pursuant to Government Code § 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF El., SEGUNDO
AND EL, SEGUNDO UNIFIED SCHOOL DISTRICT
(540 E. IMPERIAL AVENUE SITE)
'n -us AGRE EM ENT SHALL BE RECORDED, WIT TIN "IT'N DAYS OF EXECUTION BY
ALL PA RTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT
CODE §65868.5
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
3.4 Reassumption of Rights .............. . .. . .. m ........ , , .. , .................... , ......... ,........,....5
4. Development of the Property ............................. ............................... ....................... .........5
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
4.6 Future Approvals— .. � ........ ...... ....... — .... ....... ..................... ....
5
4.6.1 Minor Modifications to Project ................ ............................... . ...... ---_5
4.6.2 Modification of Project Approvals ............................... . ... . ....... . . .... . .........6
4.6.3 Modifications Requiring Amendment to This Agreement ........................... . ....6
4.6.4 Site Plan Review Approval ............................... ........M,,,.,...,.,,.,...,.... ,...7
4.7 Plan Review ............................... ......... ......... ............................... ..............................7
4.8 Fees, Exactions, Mitigation Measures, Conditions, Reservations and Dedications—, .... --7
4.9 Use of Easements .......................... ............................ .. ., ,,,,,.....,.,........,........7
4.1OTiming of Development ............... .................. M..,...,....,,..,. ,......, ..., .., ,..........,...........7
4.11 Moratorium ... ............................... .............. ............................... ......... .......................8
4. 121nfrastructure ...................................... ............................... ............................ .............8
4.12.1 Infrastructure Capacity .......................................... ..............................8
4.12.2 Phasing Flexibility ............................................. ..............................8
4.12.3 Infrastructure Completion .....--- .... . . .................. ............................... 8
4.12.4 Prevailing Wages .................... ............................... . ....... . ..................9
4. 13Term ..................................................................................................... ..............................9
4.14 Satisfaction of Mitigation Measures and Conditions ........ ............................ .,, ....... .,....,.....9
4.15In Lieu Credits .......... .......................... .................. ......... ........... ..............................9
4.161'erformance of Director Duties .. ............................... ......... ......... ........ ......... .............9
5. Developer Agreements..... , ..... ............ ........................... ........ ............................ ............9
5.1 General ...................... .... --- ...... -- ....................,...... ......... .................................. ...........9
5.2 Development Fees .................... ............................... ......... ......... ......... ........ ...........10
5.3 Affordable Housing ....... ---- ...... .................. ................. ........ . „....... ........10
5.4 Processing Fees ..................................................................................... .............................10
5.5 Maintenance Obligations .... ...............................
5.6 Term of Map(s) and Other Project Approvals ...................................... . „...........................10
5.7 Sales and Use Tax ........................ ............................... .. ...... .... ... .............. ..,...... ...,...,...10
5.8 LEED Certification ......................... .....,..,..,....,.,,........,.. ....11
6. City Agreements... ........ - ..... .......... .............................. ............................... .............
6.1 Expedited Processing .................. ..................................... ....................
.......... 11
6.2 Processing Cooperation and Assistance... .. ................. „...... „..,... ,........,.11
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
ii
2
8.2 Good Faith Compliance ..................... ............................... . .............. . .........12
8.3 Information to be Provided to Developer...... , ....... ............... . . ................ . ............12
8.4 Developer's Report . . ... .......... ...............,, ......,..,,.,........,,,.,,.,. ,, ...,.,... ,.,.,,......12
8.5 Notice Of Non- Compliance; Cure Rights. .......... . . . ......... . ........ .......... . , ...........12
8.6 Public Notice of Finding .......................... . .. . .......... . .. a , ...... , ............ a ...........12
8.7 Failure of Periodic Review .......................... . ................... .............................13
9. Excusable Delays ........... ............................... .............. ............................... ......... ............13
10. Default Provisions ..................... ....... ............... .................. ............................... ................. .,... 13
10.1 Default ................................................................... ............................... .....................13
10.2Content of Notice of Violation ............. ......... ........... ............................... _....... .,.. ...... 14
10.3Remedies for Breach ................. ................ ................ ... .... .... ............. ,............. ...... ... ..... ,,.,14
10.4 Resolution of Disputes......... _ _ .................................... .............................14
10.5 Attorneys Fees and Costs .............................................. .............................14
11. Mortgagee Protection .................................................................................. .............................14
11.1Mortgage Not Rendered Invalid ..... ............................... —.... u,., .....,....., ......w......., „.....14
11.2Request for Notice to Mortgagee ............................ __ ......................... ,..15
11.3Mortgagee's Time to Cure ................................................................... .............................15
11.4Cure Rights .......... ............................... ........ ,...,.,..,..15
11.5Bankruptcy .......................... ............................... ............. ............................... ...................15
11. 6Disaffirmation .............................. .. ......
.......... ......... ........ ........ 15
12. Estoppel Certificate ............................ .................. ............................... ...........................15
13. Administration of Agreement ..................... ........................... ......... ......... ......... „,,....,.,..16
13.1Appeal of Determinations.. ,..A............ .... ...................................... ............................,16
13.2Operating Memoranda ...................................................................„...... .....................,.......16
13.3Certificate of Performance .................................................................. ............................„16
iii
.� d
14. Amendment or Termination by Mutual Consent ....................... ........................... ............17
15. Indemnification / Defense.. ......... ......... ......... ......... ......... ......... ......... .................. ............17
15. 1 Indemnification, ................ .. ........... ............................... .......... .............................17
15.2Defense of Agreement ................ ..... ............................... .......... .............................17
16. Time of Essence ................ ....... ...................... ........... .................... ., ...,.... .......... ...... ...,,.. .......
17
17. Effective Date ................ ............... .................................... .....w,............. .. ....
17
18. Notices ........ ..... .. ....... ........ ...,..,...,,,.,.. .,., ,...,...........,...,....,..,., ,,.,. ..,..17
19. Entire Agreement ...................... ............— ........,....,...,,. ,....,,.. ......... . .,............... ., ..........
18
20. Waiver ........ ............................... ....... . .........,.,......,..........18
21. Severability ..................................,,., ,.................,......,,.... .,..,... ............... ,.,..,.,,..,.,....... .....18
22. Relationship of the Parties , .... - . .......................... ...................... ........ ....... .....................18
23. No Third Party Beneficiaries ....................... .........................,..... ................. .........................
19
24. Recordation of Agreement and Amendments ............................................. .............................19
25. Cooperation Between City and Developer .... ........ ... - ......,.,.........
26. Rules of Construction ................................................................................. .............................19
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
33. Consent—, .......... ......... ..... ...........
20
34. Exhibits .................................................................... ...............................
20
iv
4271,
DEVELOPMENT AGREEMENT
This Development Agreement is made and entered into by and between the CITY OF EL
SEGUNDO ( "City "), a municipal corporation and the EL SEGUNDO UNIFIED SCHOOL
DISTRICT ( "District" or "Developer "), as of this 4th day of May , 2012. City and
Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In
consideration of the mutual covenants and agreements contained in this Agreement, City and
Developer agree as follows:
1. Definitions. For the purposes of this Development Agreement, the following definitions
shall apply:
"Agreement" means this Development Agreement between the City and the Developer.
"Applicable Rules" means:
• The 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 540 East Imperial Avenue Specific Plan as approved;
• 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.
"Assisted Living Development" means assisted and /or independent living units restricted
to individuals fifty -five (55) years of age or older and which will provide common facilities, such
as a common kitchen and dining room, game playing area, library, exercise room, pool and
restrooms, as well as a minimum of individual kitchenettes in each dwelling unit as defined by
ESMC § 15 -1 -6, consisting of a sink, microwave and refrigerator.
"Building Regulations" means those regulations set forth in Title 13 of the City's
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 the El Segundo Unified School District 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.
"Discretionary Actions; Discretionary Approvals" are 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.
"District" means the El Segundo Unified School District.
"Effective Date" means the date on which the Enabling Ordinance becomes effective in
accordance with Government Code § 36937.
"Enabling Ordinance" means Ordinance No. 1469, 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 either the Senior Housing Community consisting of an Assisted Living
Development and /or a Senior Residential Development, or the Mixed Residential Development
whichever the Developer decides to construct.
"Project Approvals" means.
• Final Environmental Impact Report No. EA -890, as approved by Resolution No.
4772;
• Mitigation Monitoring Program for Final Environmental Impact Report No. EA-
890, as approved by Resolution No. 4772;
• General Plan Amendment No. 10 -03, as approved by Resolution No.4772;
• 540 East Imperial Avenue Specific Plan (SP No. 10 -03, as approved by Ordinance
No. 1469;
2
• Zone Change No. (10 -01), as approved by Ordinance No. 1469;
• Zone Text Amendment No. (10 -06), as approved by Ordinance No. 1469;
• Vesting Tentative Map No.71410 for 7 new parcels or Vesting Tentative Map No
71582 for 31 new parcels (SUB No. 10 -01), as approved by Resolution No. 4772;
and
• Development Agreement No. (10 -02), as approved by Ordinance No. 1469.
"Person" means a natural person or any entity.
"Property" means that 5.65 acre property located at 540 East Imperial Avenue in El
Segundo, California more particularly described in attached Exhibit "A," which is incorporated
by reference.
"Senior Residential Development" means apartments and /or condominium restricted to
individuals fifty -five (55) years of age or older.
"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 540 East
Imperial Avenue 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.
3
V _ P
• Zone Change No. (10 -01), as approved by Ordinance No. 1469;
• Zone Text Amendment No. (10 -06), as approved by Ordinance No. 1469;
• Vesting Tentative Map No.71410 for 7 new parcels or Vesting Tentative Map No
71582 for 31 new parcels (SUB No. 10 -01), as approved by Resolution No. 4772;
and
• Development Agreement No. (10 -02), as approved by Ordinance No. 1469.
"Person" means a natural person or any entity.
"Property" means that 5.65 acre property located at 540 East Imperial Avenue in El
Segundo, California more particularly described in attached Exhibit "A," which is incorporated
by reference.
"Senior Residential Development" means apartments and /or condominium restricted to
individuals fifty -five (55) years of age or older.
"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 540 East
Imperial Avenue 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.
3
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. 10 -03.
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
provision of needed affordable housing and senior housing within the corporate limits of the City
at a location that is designated in the City's Housing Element for residential development as
specified in Section 5.3 below.
2.10 All of the Property is subject to this Agreement.
3. Binding Effect. ffect. 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
4
4271®
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.
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 DensiM Height and Dedication of Land for Public P oses. 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 Project. 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
5
Project or the Properly 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.
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
540 East Imperial Avenue Specific Plan;
(b) Any increase in the total developable square footage or FAR of the
entire Property for either project option;
(c) Any increase in height of buildings or structures on the Property
above thirty -five (35) feet with the exception of parapets and other auxiliary structures that
cannot exceed forty -five (45) feet in height;
(d) Any decrease in the minimum required lot area as set forth in the
540 East Imperial Avenue Specific Plan;
(e) Any decrease in the minimum required lot frontage as set forth in
the 540 East Imperial Avenue Specific Plan;
(f) Any change in use to a use which is not permitted under this
Agreement;
(g) 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;
(h) Any material modification to Developer's obligation to provide
LEED certification for the Project or such equivalent standard as approved by the Director; or
(i) Any material modification that requires modification to the EIR,
other than an Addendum.
(j) Other than the Major Modifications listed above, all other
modifications to the Project are considered "Minor Modifications."
101
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 approved
conceptual plans, and shall be processed in accordance with the provisions set forth in the
Specific Plan.
4.7 Plan Review. The Director will review plans for each building on the Property for
which a Site Plan is approved, as well as plans for signage, trash enclosures and 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 approve any features or matters which are
consistent with or otherwise which have been specifically approved by this Agreement.
4.8 Fees Exactions, Miti ation 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, 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. Developer shall not be required to pay any City development impact fees for any of the
affordable units.
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 Timiniz 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. However, should Developer choose to develop under Option 2 of the Specific
Plan, building permits may not be obtained until September 1, 2013.
7
7 1
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
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 Capacity. 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 Flexibilit . 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
8
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
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 shall be 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.
9
427 1 14
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 Affordable Housing. Developer must provide for a 15% set aside for low (38% of
the total 15 %), very low (31% of the total 15 %) and extremely low (31% of the total 15 %)
income qualified, senior households for Option 1, and a 10% set aside for low (38% of the total
10 %), very low (31% of the total 10 %) and extremely low (31% of the total 10 %) income
qualified households for Option 2 as represented in Exhibit D. Nothing herein requires
Developer to build the exact amount of housing, including affordable housing, set forth in
Exhibit D. Developer must provide 15% set aside for the total number of units constructed for
Option 1 and 10% set aside for the total number of units constructed Option 2 should fewer units
than the maximum allowed be constructed. The units must be distributed in the same percentage
ratios as specified above in the low, very low and extremely low income categories. Percentages
for the total number of units and for each income category must be calculated by rounding to the
nearest whole number not to exceed the maximum required percentage.
5.3.1 If Developer builds a combination of Options 1 and 2, Developer shall
provide the 15% set aside for the Option 1 components and a 10% set aside for the Option 2
components.
5.3.2 Affordable housing units that are required based on the single - family
dwelling component of Option 2 may be satisfied by developing the requisite number of units in
other components of the Project.
5.4 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.
5.5 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.
5.6 Term of Maps) 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
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.
5.7 Sales and Use Tax.
5.7.1 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
10
427
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.
5.7.2 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 5.7.1 above.
5.7.3 The Director of Finance of the City is authorized to relieve Developer, and
Developer's contractors and subcontractors, from the requirements set forth in this Section 5.7
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.
5.8 LEED Certification. Developer's Project must be, at a minimum, LEED Certified
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.
6. City 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 During Third PgM Liti ation. 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
11
applications for any Future Approvals, or issuance of ministerial permits or approvals, unless the
third party obtains a court order preventing the activity. City shall not stipulate to or cooperate in
the issuance of any such order.
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 Com liance. 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, that 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 Information to be Provided to Develo er. 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 shall
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 Ri slits. 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 shall 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
12
4
p
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.
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 Parry 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. Either 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 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. 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.
13
1 , %,
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
Property involved, and the manner in which the breach may be satisfactorily cured. Notice shall
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 shall be entitled to the following rights and privileges:
11.1 Mort a e 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
14
ql� wW
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.
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
15
2
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
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 Amoeal 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
16
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.
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
17
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
1230 Rosecrans Ave, Suite 110
Manhattan Beach, California 90266
Attention: Mark D. Hensley, Esq.
If to Developer: El Segundo Unified School District
641 Sheldon Street
El Segundo, California 90245
Attention: Superintendent
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, District shall 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 shall 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 Parry 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 shall 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.
18
kb
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 shall have any
right of action based upon any provision of this Agreement.
24. Recordation of A reement and Amendments. This Agreement and any amendment
thereof shall be recorded with the County Recorder of the County of Los Angeles by the City
Clerk of City.
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
shall be deemed an original, but all of which constitute one and the same instrument.
30. Weekend/Holiday Dates. 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 shall 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
19
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
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
u
By :w ....
Mayor
ATTEST:
Cindy M tescn
City Clerk
APPROVED AS TO FORM:
Y
ark D. Hensley, City Attorney
20
4 2 7
May 1, 2012
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES SS,
CITY OF EL SEGUNDO
On April 224,2012, before nie, Cathy Domann, Deputy City Clerk, per
appeared Carl Jacobson, Mayor for the City of El Segundo, who proved to rne oil
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 be of wbich the persons acted, executed the instrument.
I cortify under the Penalty of Perjury under tile laws of the Sate of, California that
the foregoing paragraph is true and correct.
Witness, my hand and Official Sea].
Cathy Domann, Deputy City Clerk
� ,) � ,W ,i
DEVELOPER:
EL SEGUNDO UNIFIED SCHOOL DISTRICT
B
Its:
21
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
em ,r,, :;ti,. ,w.,."� & ". "X 'a„ r^ v�x „, 5,,,a `.'•' a,” ,f ".
State of California
County of
_ ( before me, /-A,h Cazv
to
personally appeared ._ re y
—(M—OA MW 66M"_
COMM" IP s 1817M
Nobly PYblile - Call wma
Los "PW cot"
who proved to me on the basis of satisfactory evidence to
be the person(s- -whose name(,$) War-e subscribed to the
within instrument and acknowledged to me that
he/ y executed the same in his/he#Weir authorized
capacity(i , and that by hi / it signature( n the
instrument the persor4e), or the entity upon behalf of
which the personal 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 and-.and official seal,
Place Notary Seal Above Signature _ _ - - - -- ..S g t lu t Now bplr
OPTIONAL
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: m ....... ,,,,,,,,,,,,,,,,,,,, Number of Pages:
Signer(s) Other Than Named Above: _ - -__
Capacity(ies) Claimed by Signer(s)
Signer's Name:.........._.- .............._ - _____ Signer's Name:.
❑ Individual ❑ Individual
❑ Corporate Officer — Title(s): ....................__ ❑ Corporate Officer — Title(s): - - - -- ._....._...... .................... ...............................
❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General
El _ Attorney in Fact ❑ Attorney in Fact
❑ Trustee Top of thumb here ❑ Trustee Top of thumb here
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other:. _...._� ❑ Other:._ ................................... ............................... e�...
Signer Is Representing:-__ s .. Signer Is Representing:
',;,X X„R. ,1 r R "a. 9„,4 ,:.w �1' Z
©2007 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth, CA 91313 -2402 - www.NationalNotary.org Item #5907 Reorder: Call Tall -Free 1- 600 -976 -6627
EXHIBIT A
PROPERTY DESCRIPTION
540 EAST IMPERIAL AVENUE, EL SEGUNDO, CA 90245
PARCEL 1:
LOT 1 IN BLOCK 102 OF EL SEGUNDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 20 PAGE 24 OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
LOT 2 IN BLOCK 102 OF EL SEGUNDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 20 PAGE 24 OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 3:
LOT 3 IN BLOCK 102 OF EL SEGUNDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1111112 „0 PAGE 24 OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 4:
LOT 6 IN BLOCK 102 OF EL SEGUNDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN B®®K 20 PAQE 24, OF MAPS, IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THE SOUTHERLY 120 FEET THEREOF,
PARCEL 5 :.
THE NORTH 182.4 FEET OF LOT 7 IN BLOCK 102 OF EL SEGUNDO, IN THE CITY OF EL SEGUNDO,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 20 PAGE 4
OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 6:
THE EAST HALF OF LOT 8 IN BLOCK 102 OF EL SEGUNDO, IN THE CITY OF EL SEGUNDO, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2.0.._P.A. G.I:� 24„ OF MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL T
THE NORTHERLY 186 FEET OF THE WEST HALF LOT 8 IN BLOCK 102 OF EL SEGUNDO, IN THE CITY
OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 20 PAGE 24 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
END OF LEGAL DESCRIPTION
APN: 4133- 013 -900
A -1
It
EXHIBIT B
Recording Requested By and
When Recorded Mail To:
El Segundo Unified School District
641 Sheldon Street
El Segundo, California 90245
Attention: Superintendent
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT ( "Agreement") is made and
entered into by and between the El Segundo School District, ( "Assignor "), and
I a ( "Assignee ").
RECITALS
A. The City of El Segundo ( "City ") and Assignor entered into that certain
Development Agreement dated gy..........
�, 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. Assigning . 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.
FN
3. Effective Date. The execution by City of the attached receipt for this Agreement
shall be considered as conclusive proof of delivery of this Agreement and of the assignment and
assumption contained herein. This Agreement shall be effective upon its recordation in the
Official Records of Los Angeles County, California, provided that Assignee has closed the
purchase and sale transaction and acquired legal title to the Transferred Property.
4. Remainder 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 WTINESS WHEREOF, the parties hereto have executed this Agreement as of the
dates set forth next to their signatures below.
Date:
"ASSIGNOR'
EL SEGUNDO UNIFIED SCHOOL DISTRICT
3y:
lts:
"ASSIGNEE"
a
Date: ............ ............................... By:
Its:
n,.
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
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 )
(Seal)
On ___ ... , 20 , before me, , a Notary
Public, personally appeared ....... wwwwww, 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.
U,-K
4 2 7
I certify under penatty of p erjury under the laws of the State of California that the
foregoing paragraph is trUe and correct.
WITNESS my hand and official seat,
nature
B-4
(Seal)
4 2 7 1
EXHIBIT C
DEVELOPMENT FEE SCHEDULE
City of El Segundo l -ees
1. Police Service Mitigation Fee Per City Council Resolution No. 4687 adopted on
October 5, 2010.
2. Fire Service Mitigation Fee
October 5, 2 0 10,
3. Iibrary Service Mitigation Fee
October 5, 2010.
4. Parks Mitigation Fee
October 5, 2010.
5. Traffic Mitigation Fee
November 15, 2005.
6. Water Meter Installation Fees
Per City Council Resolution No, 4687 adopted on
Per City Council Resolution No, 4687 adopted on
Per City Council Resolution No. 4687 adopted on
Per City Council Resolution No. 4443 adopted on
Per Title I I of ESMC.
443860603660 Page a
4271.41b;
EXHIBIT D
540 EAST IMPERIAL AVENUE SPECIFIC PLAN
HOUSING SET ASIDE
OPTION I_qq4 Total Units 15% OPTION 2 58 Total Units l0%
44386 \1060366v5 Page b
