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HomeMy WebLinkAbout01. Dev Agmt 8236-74 Firestone AGENDA MEMO DATE: April 27, 2010 TO: Mayor and Members of the City Council FROM: The Office of the City Manager By: Brian Saeki, Director of Community Development SUBJECT: INTRODUCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING A STATUTORY DEVELOPMENT AGREEMENT WITH WESTLAND INDUSTRIES D.B.A AMUSEMENT INDUSTRY FOR PROPERTY LOCATED AT 8236-8274 FIRESTONE BOULEVARD RECOMMENDATION It is recommended that the City Council: 1. INTRODUCE AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING A STATUTORY DEVELOPMENT AGREEMENT WITH WESTLAND INDUSTRIES D.B.A AMUSEMENT INDUSTRY FOR PROPERTY LOCATED AT 8236-8274 FIRESTONE BOULEVARD 2. APPROVE AN AMENDMENT TO THE COMMUNITY DEVELOPMENT BLOCK GRANT RECOVERY (CDBG-R) ACTION PLAN INCREASING FUNDING FOR A PUBLIC IMPROVEMENT PROJECT BACKGROUND The City of Downey (“City”) is committed to facilitating high-quality redevelopment in Downtown Downey (“Downtown”). The goal of this redevelopment is to create a Downtown that becomes a unique and interesting place that attracts and retains both Downey residents and visitors from surrounding areas. The creation and facilitation of new dining, entertainment, living, and cultural options are all important parts of making Downtown Downey more of a destination. The new Portos Bakery project, the Verizon housing project, and redevelopment of the Avenue Theater are all examples of projects that will create a new and more vibrant Downtown. Further, City staff members are in the process of drafting a new specific plan for Downtown that will guide development in the Downtown area to ensure this vibrant transformation. The City can also encourage Downtown property owners to reinvest and redevelop their properties by using City- owned public parking lots to facilitate redevelopment of Downtown properties into higher and better land uses. The proposed project on the southwest corner of Firestone Boulevard and Downey Avenue, discussed below and preliminarily named the Downey Gateway Project, implements this strategy by using pubic parking facilities to enable redevelopment of a key section of Downtown. Over several months, staff has been negotiating with Westland Industries (“Westland”), a real estate investment group and Downtown property owner, regarding the CITY OF DOWNEY, CALIFORNIA transformation of its commercial property located at 8236-8274 Firestone Boulevard (refer to Attachment A). This is one of Downtown Downey’s main intersections and serves as a gateway into Downtown. The Downey Gateway Project is directly south of the soon-to-open Porto’s Bakery, west of the newly-opened Fresh & Easy store, and north of the Downey Bus Depot. The Downey Gateway site is approximately 50,000 square feet and currently includes three buildings totaling 21,331 square feet. The site is improved with older and somewhat blighted buildings and is served by a small parking lot. The property also has a significant amount of commercial vacancy. One effective way to facilitate Downtown redevelopment is providing creative parking solutions for projects. If property owners want to redevelop their property to higher-and- better land uses, this objective is usually constrained by parking limitations. The Downey Gateway Project is an example of this. The proposed development program for the Downey Gateway Project will feature 26,232 square feet of building divided into tenant spaces to be exclusively occupied by restaurants and retail land uses (refer to Attachment B). The Downey Gateway Project proposes to rehabilitate two of the existing buildings and demolish a third building, and replace the demolished building with two new buildings. Downey Gateway will feature an open-air pedestrian plaza and outdoor seating for dining and all buildings will be integrated architecturally and spatially. The new Downey Gateway development retains some of the existing onsite parking and will produce an additional 4,901 square feet of restaurant and retail space at the site. Despite retaining some onsite parking, the project needs additional parking to meet City requirements and to be marketable to prospective tenants. The Downey Gateway Project is a cost-effective and good project both for the City and for the developer. The project, as proposed, has a parking deficit that can be eliminated by using the Nance Avenue parking lot for entitling the project. Specifically, this is accomplished by converting Nance Avenue, an infrequently-traveled and east-west street that is adjacent to Downey Gateway, into a public parking lot. This conversion creates approximately 100 new public parking spaces, and also allows for both east and west-bound vehicular traffic. The Downey Gateway Project is located within the boundaries of a parking district, and per current Downey code is eligible to meet its parking requirements using offsite and/or public parking resources. After significant consultation with the City Attorney’s Office, the best mechanism for creating the Downey Gateway Project is a statutory development agreement (“Development Agreement”). The Development Agreement (refer to Attachment C) sets forth the obligations for the project for both the City and the Downey Gateway developer. Specifically, the City agrees to convert Nance Avenue into public parking and deems the parking for the Downey Gateway Project to be adequate once the Nance parking lot is constructed. The Nance Avenue public parking lot improvements will consist of: 1) using the area on Nance Avenue between Downey Avenue and La Riena Avenue to develop a landscaped and 100-space public parking lot; and 2) construction of a new water line below Nance Avenue from Downey Avenue to La Riena Avenue. The new Nance Avenue parking lot does not provide the Downey Gateway Project with exclusive use of the new parking spaces; these spaces will be public parking. The Development Agreement also sets forth a cost-sharing formula for constructing the Nance Avenue parking lot and right-of-way, which is anticipated to cost $500,000. The Development Agreement obligates Westland to construct the public parking lot and fund 70% or $350,000 of the total cost. The City will fund the remaining 30%, or a not-to-exceed amount of $150,000. The City intends to fund its portion of the Nance parking lot using federal Community Development Block Grant Recovery (CDBG-R) funds. The City will fund 100% of the water line construction, but this infrastructure improvement will be constructed by Westland pursuant to City Department of Public Works standards. The water line extension will also be funded with CDBG-R resources. This water line portion of the project has a cost cap of $140,000. Finally, because the City is committed to bringing both high-quality development and good tenants to Downey, the Development Agreement has language that assures that that the mix of tenants at Downey Gateway Project will be an asset to both Downtown and to the larger Downey community. On April 7, 2010, the Planning Commission adopted Resolution No. 10-2632, which recommends that the City Council approve a Development Agreement for the Downey Gateway Project. The Downey Gateway Project, after approval of the Development Agreement, will return to the Downey Planning Commission for a review of its final architectural, landscape, and hardscape plans. As previously discussed, the CDBG-R program will be the funding source for the Nance Avenue parking lot and for the new water line. To secure the necessary funds for the project, staff must amend the current CDBG Action Plan. City Council previously approved the City of Downey 2008-2009 Action Plan to include an allocation of $400,180 in federal CDBG-R funds. At that time, the recommended allocations were as follows: PREVIOUS CDBG–R ALLOCATION General Administration 40,000 Clearance & Demolition 120,000 Public Facility Improvements 240,180 Total$ 400,180 In order to meet CDBG-R requirements and fund the Nance Avenue parking lot and water line, staff members recommend that the City Council approve an amendment to the CDBG Action Plan and reallocate resources per the following: PROPOSED CDBG–R ALLOCATION General Administration 40,000 Clearance & Demolition 70,000 Public Facility Improvements 290,180 Total$ 400,180 City staff members believe that the Downey Gateway Project is a priority project for a variety of reasons. First, it facilitates private redevelopment in Downtown by using public parking resources for entitlement. Second, it provides more parking in the Downtown area. Third, it uses federal resources not only for the parking project, but also advances a water line extension project using federal stimulus funds. Lastly, the Downey Gateway Project plans for the future. The new public parking and infrastructure improvements will allow other properties in this area to use these resources for redevelopment. City staff members have already had discussions with other stakeholders regarding using these pubic improvements to facilitate redevelopment of other properties along Firestone Boulevard. FINANCIAL IMPACT: Approval of this item will decrease the current fiscal year budget for Community Development Block Grant Recovery stimulus funds by $290,000. Attachment A – Location Map Attachment B – Conceptual Design Attachment C – Ordinance with Statutory Development Agreement H:\ECONDEV\AGENDAS\Agenda10\042710\8236 Firestone Westland.doc 4/23/2010 12:02:02 PM Attachment A Location Map Attachment B Conceptual Design Attachment C Ordinance with Statutory Development Agreement (see next page) ORDINANCE NO.______ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING THE AMUSEMENT INDUSTRY, INC. D.B.A. WESTLAND INDUSTRIES STATUTORY DEVELOPMENT AGREEMENT FOR PROPERTY LOCATED WITHIN THE CITY OF DOWNEY WHEREAS , the City of Downey (“City”) has found that development agreements will strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and WHEREAS, pursuant to California Government Code Sections 65864 et seq., the City is authorized to enter into development agreements providing for the development of land under terms and conditions set forth therein; and WHEREAS, AMUSEMENT INDUSTRY, INC. D.B.A. WESTLAND INDUSTRIES, a California limited liability company, (“Developer”) proposes to develop the Property as a commercial development (“Project”), more particularly described in Exhibit “A”, attached hereto and incorporated herein by reference (“Property”); and WHEREAS, the City desires the timely, efficient, orderly and proper development of the Project in furtherance of the goals of the General Plan and the Specific Plan; and WHEREAS , the City Council of City desires to enter into a Statutory Development Agreement (“Development Agreement”) with the Developer; and; WHEREAS , The City has determined that the terms and conditions of this Development Agreement are fair, just and reasonable and consistent with City’s General Plan and the Specific Plan applicable to the Property; and WHEREAS, the Development Agreement will reduce some of the uncertainty in planning and providing for the orderly development of the Property, ensure installation of necessary public improvements, provide for public services appropriate to the Development of the Property and, generally, serve the purposes for which development agreements are authorized under Government Code Sections 65864, et seq.; and WHEREAS, the City Council has determined that by entering into the Development Agreement: (i) the City will promote orderly growth and quality development on the Property in accordance with the goals and policies set forth in the General Plan and the Specific Plan; (ii) significant benefits will be created for City residents and the public generally from increased employment and the public gathering opportunities created by the Project; and WHEREAS, it is the intent of the City and Developer to establish certain conditions and requirements related to review and development of the Project which are or will be the subject of subsequent land use entitlements for the Project as well as the Development Agreement; and WHEREAS, the City and Developer have reached mutual agreement and desire to voluntarily enter into the Development Agreement to facilitate development of the Project subject to conditions and requirements set forth therein; and WHEREAS , on April 7, 2010, the Planning Commission held a duly advertised public hearing on the Development Agreement; and WHEREAS, the Planning Commission considered the Staff Report, the Development Agreement, all recommendations by staff, and public testimony; and WHEREAS , the Planning Commission adopted Resolution No. __________ recommending to the City Council approval of the Agreement; and WHEREAS , on April 16, 2010, the City Council held a duly advertised public hearing on the Development Agreement; and WHEREAS , at the public hearing, the City Council considered the Staff Report, the Development Agreement, all recommendations by staff, and public testimony; and WHEREAS , pursuant to California Government Code Section 65867.5(a), the Development Agreement, after approval and adoption by the City Council, shall be subject to referendum. THE CITY COUNCIL OF THE CITY OF DOWNEY DOES ORDAIN AS FOLLOWS: Section 1. Pursuant to California Government Code Section 65865, the City Council hereby approves the development agreement attached hereto as Exhibit "A", entitled "Statutory Development Agreement” (the "Development Agreement"). Section 2. Based on the entire record before the City Council and all written and oral evidence presented, the City Council finds that this Development Agreement promotes the public health, safety and welfare of the community because the Development Agreement will permit land uses that best reflect community needs, including the need for housing affordable to buyers with a broad range of incomes, and will allow for the most efficient and logical development of the real property governed by the Development Agreement in the City. Section 3. Pursuant to California Government Code Section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented, the City Council hereby finds that the Development Agreement is consistent with the General Plan and the Specific Plan because the Development Agreement will result in the development of the Property at the intensity and density allowed under the General Plan and consistent with the restrictions and standards in the Specific Plan. Section 4. Based on the entire record before the City Council and all written and oral evidence presented, the City Council finds that: (i) the economic interests of Downey citizens and the public health, safety and welfare will be best served by entering into the Development Agreement; (ii) this Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the area in which the Property is located; (iii) the Development Agreement is in conformity with the public convenience, general welfare and good land use practice; (iv) the Development Agreement will not be detrimental to the public health, safety and general welfare; and (v) the Development Agreement will not adversely affect the orderly development or the preservation of property values for the property it governs or any other property. The City Council further finds that among the public benefits to accrue to the residents of the City as a result of the Development Agreement are: regional water infrastructure improvements, regional transportation improvements, and provision of a Development Agreement fee. Section 5. All procedures of the California Environmental Quality Act, Public resources Code section 21000 et seq (“CEQA”), have been met with respect to the Project and the Development Agreement. Since the Project has not changed, the City Council finds that no additional environmental review is necessary. Section 6. The City Clerk shall certify the adoption of this Ordinance and shall cause the same to be posted as required by law. Pursuant to Government Code section 65868.5, within ten (10) days following the entering into of the Development Agreement, as evidence by the full execution thereof, the City Clerk shall record the Development Agreement with the Los Angeles County Recorder. PASSED, APPROVED AND ADOPTED this day of _____, 2010 _________________________________ Anne Marie Bayer, Mayor ATTEST: _________________________________ Kathleen L. Midstokke, City Clerk APPROVED AS TO FORM: _________________________________ Edward W. Lee, City Attorney STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss: CITY OF DOWNEY ) that the foregoing Ordinance No. ______ was introduced at a I HEREBY CERTIFY regular meeting of the City Council of the City of Downey held on the ____day of _________, 2010, and adopted at a regular meeting of the City Council of the City of Downey held on the ___day of ___________ 2010, by the following vote, to wit: AYES: Council Members: NOES: Council Member: ABSENT: Council Member: ABSTAIN: Council Member: that a Summary of the foregoing Ordinance No. ________ I FURTHER CERTIFY was published in the Press-Telegram, a newspaper of general circulation in the City of Downey, on _____________ (after introduction), and on _____________ (after adoption, including the vote thereon). It was also posted in the regular posting places in the City of Downey on the same dates. _____________________________ Kathleen L. Midstokke, City Clerk RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Downey 11111 Brookshire Avenue Downey, CA, 90241 Attention: City Clerk Space above for Recorder’s use only Exempt from recording fees – Gov’t. Code § 27383 STATUTORY DEVELOPMENT AGREEMENT by and between the CITY OF DOWNEY, a California municipal corporation and charter city, and AMUSEMENT INDUSTRY, INC. D.B.A. WESTLAND INDUSTRIES, a California corporation CITY OF DOWNEY STATUTORY DEVELOPMENT AGREEMENT THIS STATUTORY DEVELOPMENT AGREEMENT (this “”) is entered into Agreement by and between the CITY OF DOWNEY, a California municipal corporation and charter city (“”), and AMUSEMENT INDUSTRY, INC. D.B.A. WESTLAND INDUSTRIES, a City California corporation (“”), to become effective only upon the occurrence of the Owner Effective Date (as defined in Section 1.19 of this Agreement), if at all. City and Owner enter into this Agreement with reference to the following recited facts: RECITALS A.City is authorized to enter into binding development agreements with persons having legal or equitable interests in real property regarding the development of such property, pursuant to California Government Code Sections 65864, et seq.; and B.Owner has requested City enter into a development agreement for the development of that certain real property owned in fee by Owner and defined as the “Property” in Section 1.43 of this Agreement. The Property is located within the City of Downey, County of Los Angeles, State of California; and C.Owner proposes to develop the Property as a commercial development, as specifically described in Site Plan and Elevation – Scheme K dated August 31, 2009 (defined as the “Development” in Section 1.15 of this Agreement); and D.By entering into this Agreement, City shall bind future City Councils of City with the obligations specified in this Agreement and limit the future exercise of certain governmental powers of City regarding the subject matter of this Agreement; and E.The City Council of City has determined that the terms and conditions of this Agreement are fair, just and reasonable and consistent with City’s General Plan and the Specific Plan applicable to the Property; and F.The best interests of the citizens of the City and the public health, safety and welfare of such citizens will be served by entering into this Agreement; and G.The City has determined that there was no significant environmental impact and _______________________ has filed a Notice of Exemption on, pursuant to CEQA (defined in Section 1.4 of this Agreement); and H.Development of the Property in accordance with this Agreement will provide substantial benefits to City and further important policies and goals of City; and I.This Agreement will reduce some of the uncertainty in planning and providing for the orderly development of the Property, ensure installation of necessary public improvements, provide for public services appropriate to the Development of the Property and, generally, serve the purposes for which development agreements are authorized under Government Code Sections 65864, et seq.; and 1 J.Owner has incurred and will, in the future, incur substantial costs in order to assure development of the Property in accordance with the terms and conditions of this Agreement; and K.Owner has incurred and will, in the future, incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement; and L.On April 7, 2010, the Planning Commission of the City, following a duly noticed public hearing, recommended adoption of this Agreement to the City Council. AGREEMENT NOW, THEREFORE, in consideration of the recitals of fact preceding this Agreement, the covenants, agreements and promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Owner agree, as follows: DEFINITIONS. 1.The following terms used in this Agreement shall be defined as set forth in this Section 1 or, if not set forth in this Section 1, where the term first appears in this Agreement: 1.1Agreement. This Statutory Development Agreement dated as of __________________ . 1.2Annual Report. Defined in Section 12.1. 1.3Arbitration. A proceeding under the Comprehensive Arbitration Rules and Procedures of JAMS, as modified or replaced from time to time, and in accordance with Section 14.2. 1.4CEQA. The California Environmental Quality Act, California Public Resources Code Sections 21000, et seq., as such code sections may be amended from time to time. 1.5City. The City of Downey, a California municipal corporation and charter city. 1.6City Party. Individually, City, its elected officials, officers, employees, agents or attorneys. 1.7Claim. Any claim, loss, cost, damage, expense, liability, lien, action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and expert fees and expenses and investigation costs of whatever kind or nature and, if an Indemnitor improperly fails to provide a defense for an Indemnitee, then Legal Costs of counsel retained by the Indemnitee), and any judgment. 1.8Community Development Director. The then current Community Development Director of City or his or her designee or successor in function. 2 1.9Compliance Certificate. Defined in Section 12.6. 1.10Construction. Any alteration, construction, demolition, excavation, fill, grading, development, expansion, reconstruction, removal, replacement, rehabilitation, redevelopment, repair, restoration, or other work affecting the Property, including new construction. 1.11Conveyance Property Defined in Section 5.1. 1.12County. The County of Los Angeles, California. 1.13Covenant Period. A period equal to the Term of this Agreement. The Covenant Period shall commence on the Effective Date of this Agreement and shall continue until the date th of the thirtieth (30) anniversary of the Effective Date, unless the Term is modified or earlier terminated pursuant to the terms of this Agreement. 1.14Default. Any Monetary Default or Non-Monetary Default. 1.15Development. The improvement of the Property as a commercial development, landscaping, hardscape, and other improvements comprising the Development, all in accordance with the Site Plan and Building Elevations – Scheme K dated August 31, 2009, including, without limitation: grading, construction of public infrastructure and public facilities, whether located within or outside the Property, the rehabilitation of existing buildings and construction of new commercial buildings which are architecturally integrated, and the installation of landscaping, in a manner consistent with all Existing Development Approvals and Existing Land Use Regulations, subject to the Reservations of Authority. “Development” does not include maintenance repair, restoration or redevelopment of any such improvements, after the original construction or installation of such improvements. 1.16Development Approval. Any permit or other entitlement required for the Development of the Property, exclusive of this Agreement, including, but not limited to: 1.16.1City General Plan and any City General Plan Amendments; 1.16.2Zone changes or variances; 1.16.3Tentative and final subdivision or parcel maps and lot line adjustments; 1.16.4Conditional use permits; 1.16.5Design review approvals; 1.16.6Grading and building permits; 1.16.7CEQA compliance documents; 1.16.8Specific plans and specific plan amendments; 1.16.9Development Impact Fees; and 3 1.16.10Any Development Approval required for the Development by any Government other than the City. 1.17Development Impact Fee. Any fee required by City to be paid in order to defray all or a portion of the costs of public improvements, equipment or personnel to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. 1.18Development Schedule. The schedule for the Construction of the Development on the Property set forth in Exhibit ‘C’ attached to this Agreement. st 1.19Effective Date. The thirty-first (31) day after the second reading of the City Council ordinance adopting and approving this Agreement. 1.20Existing Development Approval. Any Development Approval approved or issued regarding the Development of the Property that is a matter of public record on the Effective Date. 1.21Existing Land Use Regulation. Any Land Use Regulation in effect on the Effective Date, including all Existing Development Approvals. 1.22Federal. The government of the United States of America. 1.23General Plan. Defined in Section 15.1. 1.24Government. Each and every governmental agency, authority, bureau, department, quasi-governmental body, utility, utility service provider or other entity or instrumentality having or claiming jurisdiction over the Property (or any activity this Agreement), including the Federal government, the State and County governments and their subdivisions and municipalities, including the City, any planning commission, board of standards and appeals, building department, zoning board of appeals, design review board or committee, and all other applicable governmental agencies, authorities, and subdivisions thereof having or claiming jurisdiction over the Property or any activities on or at the Property.. 1.25Indemnify. Where this Agreement states that any Indemnitor shall “indemnify” any Indemnitee from, against or for a particular matter, that the Indemnitor shall indemnify the Indemnitee and defend and hold the Indemnitee harmless from and against any and all loss, cost, claims, liability, penalties, judgments, damages, and other injury, detriment, or expense (including attorneys’ fees, interest and penalties) that the Indemnitee suffers or incurs: (a) from, as a result of, or on account of the particular matter; or (b) in enforcing the Indemnitor’s indemnity obligation. 1.26In Lieu Fee. Defined in Section 11.4 1.27JAMS. Judicial Arbitration and Mediation Services, Inc. or, if JAMS ceases operations, another similar organization mutually agreed upon in writing by both City and Owner. 4 1.28Land Use Regulation. Any ordinance, resolution, code, rule, regulation or official policy of City or any other Government governing the development or use of the property, including, without limitation, the permitted use of the Property, the density or intensity of use, subdivision requirements, the maximum height and size of proposed structures, requirements for reservation or dedication of land for public purposes and the design, improvement and construction standards and specifications applicable to Development of the Property, but excluding any City ordinance, resolution, code, rule, regulation or official policy, governing: 1.28.1the conduct of businesses, professions and occupations; 1.28.2taxes or assessments; 1.28.3the control or abatement of nuisances; 1.28.4the granting of encroachment permits or the conveyance of rights or interests that provide for the use of or the entry upon public property; or 1.28.5exercise of the power of eminent domain. 1.29Legal Costs. For any Person means all reasonable costs and expenses such Person incurs in any legal proceeding (or other matter for which such Person is entitled to be reimbursed for its Legal Costs), including reasonable attorneys’ fees, court costs and expenses, including in or as a result of any: (a) Bankruptcy Proceeding; (b) litigation between the Parties; (c) negotiating or documenting any agreement with a Third Person requested by the other Party; (d) requirement or request that such Person or its employees act as a witness in any proceeding regarding this Agreement or the other Party; and (e) review or approval that the other Party requests of such Person. All references to Legal Costs shall include the salaries, benefits and costs of in-house or contract general counsel to City or Owner, respectively, and the lawyers employed in the office of such general counsel who provide legal services regarding a particular matter, adjusted to or billed at an hourly rate and multiplied by the time spent on such matter rounded to increments of one-tenth of an hour, in addition to Legal Costs of outside counsel retained by City or Owner, respectively, for such matter. 1.30Map Act. The California Subdivision Map Act, California Government Code Sections 66410, et seq., as such code sections may be amended, from time to time. 1.31Monetary Default. The failure of a Party to pay or deposit any money when and as this Agreement requires. 1.32Nance Avenue. The portion of public right of way on Nance Avenue, specifically described in Exhibit “D,” that the Developer will reconstruct and improve with on-street parking and a main water line under this Agreement. 1.33Negotiation Period. A period of thirty (30) consecutive calendar days immediately following the effective date of a Notice from either Party to the other Party requesting commencement of a period of negotiation between the Parties pursuant to a provision of this Agreement authorizing a “Negotiation Period.” 5 1.34Non-Monetary Default. A Party’s failure to comply with any affirmative or negative covenant or obligation in this Agreement, except a Monetary Default. 1.35Notice. Any acceptance, appointment, approval, consent, demand, designation, election, notice, report, request, statement, waiver or other communication relating to this Agreement, including any Notice of Default or termination of this Agreement. Notices shall be delivered, and shall become effective, only in accordance with Section 7 of this Agreement. 1.36Notify. Give a Notice. 1.37Owner. Amusement Industry, Inc. D.B.A. Westland Industries, a California corporation, and its permitted successors in interest to all or any part of the Property. Owner is referred to as “Developer.” 1.38Owner Party. Individually, Owner, its directors, officers, employees or agents and attorneys and any owners of Equity Interests in Owner. 1.39Parcel. Each individual legal parcel of real property designated on City of ___________________ Downey Vesting Tentative Tract Map No.. 1.40Parties. Collectively, City and Owner. 1.41Party. Individually, City or Owner, as applicable. 1.42Person. Any association, corporation, government, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization or other entity of any kind. 1.43Processing Fee. Any of City’s then current application, filing, plan check, or permit fees relating to Development Approvals, design review, tree removal permits, grading permits, building permits, demolition permits and other similar permits, entitlements or inspections. 1.44Property. The real property specifically described in Exhibit “A” attached to this agreement and generally depicted in Exhibit “B” attached to this Agreement. 1.45Public Improvements. Those public improvements for the Development as ____________ described in City of Downey Vesting Tentative Tract Map No., all Existing Development Approvals and Existing Land Use Regulations and any Subsequent Development Approvals and Subsequent Land Use Regulations. 1.46Reimbursement Fee. Defined in Section 11.4. 1.47Reservations of Authority. The rights and authority excepted from the assurances and rights provided to Owner under this Agreement and reserved to City under this Agreement, pursuant to Section 9.6. 1.48State. The State of California. 6 1.49Street Parking Cost. Defined in Section 11.4. 1.50Subsequent Development Approvals. Any and all Development Approvals required subsequent to the Effective Date in connection with Development of the Property. 1.51Subsequent Land Use Regulations. Any and all Land Use Regulations or any amendments to Existing Land Use Regulations adopted or effective after the Effective Date. 1.52Term. Defined in Section 4. 1.53Third Person. Any Person that is not a Party, an Affiliate of a Party or an elected official, director, officer, shareholder, member, principal, partner, manager, owner of an Equity Interest, employee or agent of a Party. 1.54Transfer. With respect to any property, right or obligation means any of the following, whether by operation of law or otherwise, whether voluntary or involuntary, and whether direct or indirect: (a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable interest or estate in such property, right or obligation or any part of it (including the grant of any easement, lien, or other encumbrance); (b) any conversion, exchange, issuance, modification, reallocation, sale, or other transfer of any direct or indirect Equity Interest(s) in the owner of such property, right or obligation by the holders of such Equity Interest(s); (c) any transaction described in “(b)” of this Section affecting any Equity Interest(s) or any other interest in such property, right or obligation or in any such owner (or in any other direct or indirect owner at any higher tier of ownership) through any manner or means whatsoever; or (d) any transaction that is in substance equivalent to any of the foregoing. A transaction affecting Equity Interests, as referred to in clauses “(b)” through “(d)” of this Section shall be deemed a Transfer by the Owner even though the Owner is not technically the transferor. A “Transfer” shall not, however, include any of the foregoing (provided that the other Party to this Agreement has received Notice of such occurrence) relating to any Equity Interest: (a) that constitutes a mere change in form of ownership with no material change in beneficial ownership and constitutes a tax-free transaction under Federal income tax law and the State real estate transfer tax; (b) to member(s) of the immediate family(ies) of the transferor(s) or trusts for their benefit; or (c) to any Person that, as of the Effective Date, holds an Equity Interest in the entity whose Equity Interest is being transferred. 1.55Transferee. The Person to whom a Transfer is proposed to be or actually made. 1.56Unavoidable Delay. Delay in performing any obligation under this Agreement, except payment of money (except when the Party’s ability to access or transfer money is delayed by one of the causes described in this Section 1.56), arising from or on account of any cause whatsoever beyond the obligor’s reasonable control, including litigation, loss, accidents, laws, governmental preemption, war or riots. Unavoidable Delay shall exclude delay caused by the obligor’s financial condition, illiquidity, or insolvency. BINDING ON PROPERTY 2.. On the Effective Date, the Property shall be subject to the terms and conditions of this Agreement for the entire duration of the Term. Development of the 7 Property shall be carried out during the Term only in accordance with the terms and conditions of this Agreement. OWNER’S INTEREST IN PROPERTY 3.. Owner represents, covenants and warrants to City that, as of the Effective Date, Owner is the sole owner of fee title to the Property. TERMTerm 4.. The “” of this Agreement shall commence on the Effective Date and shall th continue until the date of the thirtieth (30) anniversary of the Effective Date, unless the Term is modified or earlier terminated pursuant to the terms of this Agreement. ASSIGNMENT, SALE AND TRANSFER OF INTEREST IN THE PROPERTY 5. AND THIS AGREEMENT. 5.1Right to Assign. Owner shall have the right to Transfer all or any part of the Conveyance Property Property (“”) (provided that no Transfer of less than all of the Property violates the Map Act) to any Person during the Term, subject to the following conditions precedent: 5.1.1No Transfer of any rights or obligations under this Agreement shall be valid, unless made to a Transferee of fee title to all or a part of the Property. 5.1.2At least thirty (30) calendar days before the effective date of any such Transfer, Owner notifies City, in writing, of such intended Transfer and provides City with a fully executed written agreement, in a form reasonably acceptable to City, in which the Transferee expressly and unconditionally assumes all of the following described obligations of Owner under this Agreement relating to the Conveyance Property upon the effective date of such Transfer. City’s approval of transfer of the Property and of the Transfer Agreement shall not be unreasonably withheld. City recognizes that financing is a permissible basis for Owner’s transfer of the Property; 5.2Non-Conforming Transfers. Any Transfer not made in strict compliance with Section 5.1 shall be of no force or effect and shall be a Default by Owner under this Agreement. Notwithstanding the failure of any Transferee to execute the agreement required by Section 5.1.2, the burdens of this Agreement shall be binding upon such Transferee, but the benefits of the Agreement shall not inure to such Transferee until and unless such agreement is executed. 5.3Release of Transferring Owner. Notwithstanding any Transfer, a transferring Owner shall continue to be obligated under this Agreement for any of the obligations assumed by Transferee with respect to the Conveyance Property, unless the transferring Owner is given City’s written approval of an assumption agreement, pursuant to Section 5.1. The City shall give its written approval provided that all of the following conditions are fully satisfied: 5.3.1Owner no longer has a legal or equitable interest in all or any part of the Conveyance Property. 5.3.2Owner is not then in Default under this Agreement. 8 5.3.3Owner has provided City with the notice and executed written agreement required under Section 5.1.2 above. 5.4Subsequent Transfer. City approval or consent to any Transfer of all or any part of the Property or this Agreement shall not constitute City consent to or approval of any subsequent Transfer. Each subsequent Transfer shall be made only in accordance with and subject to the terms and conditions of this Section 5. AMENDMENT OR CANCELLATION OF AGREEMENT. 6.This Agreement may be amended or cancelled, in whole or in part, by: (1) written consent of all of the Parties; (2) in any other manner provided for in this Agreement; or (3) as provided in Government Code Section 65868. This provision shall not limit any remedy of City or Owner provided by this Agreement for a Default of the other. NOTICES. 7. 7.1All Notices shall be in writing and addressed to City or Owner (and their designated copy recipients) at the addresses set forth in Section 7.2. Notices (including any required copies) shall be delivered personally, by Federal Express, United Parcel Service or other nationally recognized overnight (one-night) courier service or by certified United States mail, return receipt requested, to the addresses set forth in Section 7.2. A Notice shall be deemed delivered on the date of delivery (or when delivery has been attempted twice, as evidenced by the written report of the courier service) to such address(es), when delivered personally or by overnight courier service, or seventy-two (72) hours after deposit with the United States Postal Service for delivery, in accordance with this Section 7. Either Party may change its address for delivery of Notices by Notice in compliance with this Agreement. Notice of such a change shall be effective only upon receipt. Any Party giving a Notice may request the recipient to acknowledge receipt of such Notice. The recipient shall promptly comply with any such request, but failure to do so shall not limit the effectiveness of any Notice. Any attorney may give any Notice on behalf of its client. 7.2All Notices to the Parties shall be addressed as follows: If to City: City Manager City of Downey 11111 Brookshire Avenue Downey, California 90241 With a copy to: Best Best & Krieger LLP th 300 South Grand Avenue, 25 Floor Los Angeles, California 90071 Attn: Downey City Attorney If to Owner: Amusement Industry, Inc. D.B.A. Westland Industries 6665 Long Beach Blvd Long Beach, CA 90805 Attn: Yanki Greenspan 9 TERMINATION. 8. 8.1Termination Events. This Agreement shall be deemed terminated and of no further force or effect upon the occurrence of any one (1) of the following events: 8.1.1Expiration or earlier termination of the Term; 8.1.2Entry of a final judgment setting aside, voiding or annulling the adoption of the City ordinance approving this Agreement; 8.1.3The adoption of a referendum measure, pursuant to California Government Code Section 65867.5, overriding or repealing the City ordinance approving this Agreement; 8.2Effect of Expiration or Termination. Termination of this Agreement pursuant to any of the terms this Agreement shall not constitute expiration or termination of any of the Existing Development Approvals regarding Development of the Property. Upon the expiration or termination of this Agreement, no Party shall have any further right or obligation under this Agreement, except with respect to: (1) any obligation to have been performed by such Party under this Agreement prior to such expiration or termination; (2) any Default under this Agreement occurring prior to such expiration or termination; or (3) any rights or obligations expressly surviving the expiration or termination of this Agreement. DEVELOPMENT OF PROPERTY. 9. 9.1Rights to Develop. Subject to the terms and conditions of this Agreement, including the Reservations of Authority, Owner shall have a vested right to develop the Development on the Property in accordance with this Agreement, all Existing Development Approvals and Existing Land Use Regulations. Except as otherwise expressly provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed structures, and the design, improvement and construction standards and specifications applicable to Development of the Property shall be those set forth in the Existing Development Approvals and the Existing Land Use Regulations. The Development shall also be subject to any and all Subsequent Land Use Regulations and Subsequent Development Approvals required for the Development of the Property. 9.2Phasing/Timing of Development. The Parties acknowledge that Owner cannot, at this time, predict when or the rate at which phases of the Development will be developed on the Property. Such projections depend upon numerous factors that are not within the control of Owner, such as market orientation and demand, interest rates, construction progress, weather and other similar factors. Since the California Supreme Court held in Pardee Construction Co v. City of Camarillo (1984) 37 Cal.3d 465, that an initiative restricting the timing of a development adopted after entry into a statutory development agreement prevailed over the development agreement, because the parties to the development agreement failed to provide for the timing of development in the agreement, it is the Parties’ intent to provide for such timing for Development of the Property by agreeing that Owner shall have the right to develop the Development on the Property in such order, at such rate and at such times as Owner deems appropriate, within the exercise of Owner’s subjective business judgment, subject only to the 10 duration of the Term, the timing and phasing set forth in the Development Schedule and any timing or phasing provisions expressly set forth in the Existing Development Approvals, the Existing Land Use Regulations or any and all Subsequent Development Approvals or Subsequent Land Use Regulations. 9.3Development Approvals; Cooperation. The Owner shall apply to each applicable Government for all Development Approvals required for Construction of the Development. 9.4Prosecution and Completion of Construction. If the Owner starts to demolish any improvements on the Property, or starts any excavation on the Property, then the Owner shall prosecute such work to completion with reasonable diligence. The Owner shall, with reasonable promptness and reasonable diligence, commence, prosecute, and complete each phase of the Development in a good and worker like manner, in compliance with the Development Schedule, Law and this Agreement. 9.5Subsequent Development Approvals and Land Use Regulations. The Parties acknowledge that Development of the Property may require Subsequent Development Approvals. In granting, conditioning or denying any Subsequent Development Approval for the Development or enacting any Subsequent Land Use Regulation, City reserves, retains and may exercise the discretion afforded to City by law regarding any such matter. Nothing in this Agreement is intended to limit, restrict or abrogate any such discretion of the City. All applications for Subsequent Development Approvals shall be processed by City in the manner required by law. If approved, any Subsequent Development Approval shall be incorporated into this Agreement as an addendum and may be further changed, from time to time, as provided in this Section 9.5. Nothing in this Agreement shall prevent City, in acting on any Subsequent Development Approval, from applying Subsequent Land Use Regulations that do not conflict with the Existing Development Approvals or the Existing Land Use Regulations. Further, nothing in this Agreement shall prevent City from denying or conditionally approving any Subsequent Development Approvals on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Existing Development Approvals, all subject to the Reservations of Authority. Unless otherwise required by law, as determined in City’s reasonable discretion, a change to the Existing Development Approvals shall not require an amendment to this Agreement, provided such change does not: 9.5.1Alter the permitted uses of the Property; or 9.5.2Increase the density or intensity of use of the Property; or 9.5.3Increase the maximum height or size of permitted structures on the Property; or 9.5.4Delete or reduce a requirement for the reservation or dedication of land for public purposes within the Property; or 9.5.5Constitute a “project” under CEQA requiring a subsequent or supplemental environmental impact report pursuant to California Public Resources Code Section 21166. 11 9.6Reservations of Authority. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development of the Property, pursuant to this Agreement: 9.6.1Regulations imposing any Processing Fee regarding processing applications for Development Approvals or monitoring compliance with any Development Approvals granted or issued regarding Development of the Property; 9.6.2Regulations imposing fees required in connection with the issuance of building permits, other than Development Impact Fees; 9.6.3Regulations relating to procedures of or for hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals or any other matter of procedure; 9.6.4Regulations governing construction standards and specifications including, without limitation, the Uniform Building Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Electrical Code or the Uniform Fire Code; 9.6.5Regulations that are in conflict with the Existing Development Approvals or the Existing Land Use Regulations, but that are necessary to protect the public from a serious and immediate threat to health, safety or welfare, as reasonably determined by City; and 9.6.6Regulations that are in conflict with the Existing Development Approvals or the Existing Land Use Regulation, if Owner has consented in writing to the application of such regulations to the Development of the Property. 9.7Modification or Suspension due to State or Federal Law. If any State or Federal law, order or regulation enacted after the Effective Date prevents or precludes any performance or compliance with one or more of the provisions of this Agreement, such provision(s) of this Agreement shall be modified or suspended, to the extent necessary to comply with such State or Federal law, order or regulation; provided, however, that this Agreement shall remain in full force and effect to the extent this Agreement is not inconsistent with any such law, order or regulation; and provided further, however, that any such modification or suspension does not materially limit or eliminate any right or materially increase any obligation of either Party under this Agreement. 9.8No Limitation on City Police Power. The Parties acknowledge and agree that City is restricted in its authority to limit its exercise of its police power by contract and that the Reservations of Authority are intended to reserve to City the right to exercise all of its police powers that cannot be so limited. This Agreement shall be construed, contrary to its express terms if necessary, to reserve to City all power and authority that cannot be restricted by contact. 9.9Regulation by Other Governmental Agencies/Entities. The Parties acknowledge that governmental agencies/entities other than City possess authority to regulate the Development of the Property and the Parties agree that this Agreement does not and is not intended to affect the authority of such other governmental agencies/entities. 12 SPECIAL COVENANTS 10.. 10.1Permitted Uses. 10.1.1Retail and Restaurant Uses. The Owner covenants that the Development’s building space will be constructed for and occupied by restaurants and retail establishments exclusively. The Owner covenants that between 14,802 and 16,000 square feet of the Development’s building area will be constructed for and occupied by restaurants and between 9,302 and 10,500 square feet of the Development’s building area will be constructed for and occupied by retailers or restaurants. 10.1.2Tenant Character and Quality. Notwithstanding any provision herein to the contrary, Owner covenants that, for five years from the effective date of this Agreement, the Development shall meet the following criteria. The tenant mix shall be consistent with a high quality shopping center and shall include those tenants listed in the List of Tenants, attached hereto as Exhibit “D” and incorporated herein by reference, or an equivalent quality tenant, which may include national, regional, or local/independent tenants as mutually approved by the Parties. The Community Development Director is designated as the duly authorized representative of the City to determine if Owner is in compliance with the provisions of this Section 10.1.2. 10.2Development Configuration. The Owner covenants that the Property will be developed in accordance with the configuration and in the architectural style depicted in the Site Plan. Said Site Plan shall provide not less than Thirty-three (33) on-site parking spaces which combined with Owner’s obligation under Section 11.2 below, shall be deemed to meet on-site parking requirements of the Development as required by Existing Land Use Regulations. Development that deviates from the configuration in the Site Plan shall constitute a Default by Owner under this Agreement. 10.3Merger of Parcels. The Owner covenants to merge the parcels which make up the Property, located at 11217 Downey Avenue and 8250 Firestone Boulevard, respectively, all in the City of Downey, into a single parcel in the manner provided under Section 9960 et seq. of the Downey Municipal Code. The Owner shall submit a complete application for merger that complies with Section 9960.02 of the Downey Municipal Code to the Community Development Director by the time designated in the Development Schedule. Development of the Property shall not proceed unless the requirements of this Section 10.3 have been met. 10.4Covenant to Maintain Property on Tax Rolls. The Owner covenants to cause the Property to remain on the County secured real property tax rolls, continuously, throughout the Term (Section 4) , and to pay all property taxes regarding the Property and all improvements on Term or to the Property before delinquency, throughout the . 10.5No Conveyance to Tax Exempt Entity. The Owner covenants and agrees that Term throughout the , neither the Owner, nor its successors or assigns, shall Transfer all or any portion of the Property or the Development to any Person or use all or any portion of the Property or the Development for any use, that is partially or wholly exempt from the payment of property taxes or that would cause the exemption of the payment of all or any portion of property 13 taxes otherwise assessable regarding the Property or the Development, without the prior written consent of the City, which may be given or withheld in the City’s sole and absolute discretion. The Owner acknowledges and agrees that the covenants contained in this Section 10.5 are material to the City and its decision to enter into this Agreement, as the City receives significant financing from property tax revenues from development within the City and that any violation of such covenants will result in financial injury to the City by depriving the City of property tax revenues from all or a portion of the Property or the Development. Additionally, the Owner acknowledges and agrees that the restrictions on Transfers set forth in this Section 10.5 are reasonable under the circumstances because of the City’s interest in property tax revenues from the Property. 10.6Covenants Running with the Land. The covenants of this Section 10 shall run with the land of the Property for the benefit of the City and bind successive owners of the Term Property throughout the . 10.7Enforcement of Covenants. The covenants set forth in this Section 10 may be enforced by the City, regardless of whether or not the City is benefited by any such covenants. The Owner agrees that breach of any of the special covenants set forth in this Section 10 will result in great and irreparable injury to the City, will violate the public policy of this Agreement and will result in injury to the City that is not compensable by monetary damages. Accordingly, upon the breach of any of the special community development covenants, the City may institute an action for injunctive relief regarding and/or specific performance of any such covenant. 10.8Local Hiring Preference. The Owner shall require its contractors, tenants or successors in interest to use good faith efforts to utilize the services of the City's One-Stop Center for referrals of applicants to fill any employment during construction or tenancy of the Project. The foregoing, shall not, however, be construed as a covenant by Owner to hire any particular referred individuals. PUBLIC BENEFITS. 11. 11.1Statement of Intent. The Parties acknowledge and agree that Development of the Property will result in substantial public needs that will not be fully met under the Existing Development Approvals and the Existing Land Use Regulations. The Parties further acknowledge and agree that this Agreement confers substantial private benefits on Owner that should be balanced by commensurate public benefits. Accordingly, the Parties intend to provide consideration to the public under this Agreement to balance the private benefits conferred on Owner under this Agreement by providing more fully for the satisfaction of the public needs resulting from the Development of the Property than would otherwise be obtained without this Agreement. 11.2Nance Avenue Infrastructure Improvements. 11.2.1Nance Avenue Right-of-Way Improvements. The Owner shall reconstruct and improve, including but not limited to providing a minimum of 102 parking spaces, Nance Avenue between Downey Avenue and La Reina Avenue (“Nance Avenue”), as depicted in the Site Plan – Scheme K, dated June 2, 2009, in accordance with City standards (the 14 “Nance Avenue Right-of-Way Improvements”). The Owner will control and conduct said construction at Owner’s sole expense subject to Section 11.3, below. 11.2.2Waterline Improvements. The Owner shall construct a [size of waterline] main water line in Nance Avenue in accordance with City standards (the “Waterline Improvements”). The Owner will control and conduct said construction at Owner’s sole expense subject to Section 11.3, below. 11.2.3Time of Performance. The Owner’s obligations under Section 11.2.1 and 11.2.2 are contingent upon the Owner performing in accordance with the Development Schedule, as described herein. The Owner’s obligation to begin the design and construction of the improvements of Nance Avenue shall be in accordance with and as required by the Development Schedule. 11.2.4Applicable Rules and Regulations. The reconstruction and improvement of the infrastructure in Nance Avenue as provided in this Section 11.2 shall be performed in conformance with the applicable CDBG-R regulations attached hereto as Exhibit ”E.”, and incorporated herein by reference. 11.3Reimbursement for the Construction of Nance Avenue . 11.3.1Reimbursement Amount for Construction. In consideration for the benefits provided by this Agreement, including the Owner’s construction of on-street parking, related street improvements and the main water line in Nance Avenue, the City shall reimburse the Owner as follows: (a) a proportionate share of thirty percent (30%) of the actual cost of construction of the Nance Avenue Right-of-Way Improvements not to exceed $150,000.00, and (b) one-hundred percent (100%) of the actual cost of the construction of the Waterline Improvements, but not to exceed $140,000.00, which ever is less (altogether the “Reimbursement Amount”). 11.3.2Submission of Actual Costs of Construction. Owner shall submit evidence, reasonably satisfactory to the City, of Owner’s actual cost of construction of the Nance Avenue Right-of-Way Improvements and the Waterline Improvements. “Actual costs” for purposes of this section shall mean the actual amount paid to Owner’s contractor to perform such work, excluding any administrative overhead or profit to Owner, if any, but may include overhead and profit to Owner’s contractor for the Nance Avenue infrastructure improvements . City shall pay Owner the Reimbursement Amount within thirty (30) days of City’s written acceptance of Owner’s evidence of the actual costs. . 11.4 Satisfaction of “In Lieu Fee” The Owner’s satisfaction of its obligations under Section 11.2 shall satisfy the Owner’s obligation under Section 9720 of the Downey Municipal Code, which requires an owner to pay a fee per year per off-street space that is not provided on- site as required under applicable zoning (“In Lieu Fee”). If the Owner satisfies its obligations under Section 11.2, the City will treat the Owner’s In Lieu Fee obligation under Section 9720 as satisfied for all time. 15 COMPLIANCE REVIEW. 12. 12.1Periodic Review. The City shall review this Agreement on or before each anniversary of the Effective Date during the Term, to ascertain Owner’s compliance with the terms and conditions of this Agreement. Owner shall submit an annual monitoring report (each, Annual Report an “”) to the City, in a form reasonably acceptable to the City, within ten (10) days after written request from the City. 12.2Special Review. A special review of compliance with this Agreement may be made either by agreement of the parties or by initiation in one or more of the following ways: 12.2.1Recommendation of the Planning staff; 12.2.2Affirmative vote of at least four (4) members of the Planning Commission; or 12.2.3Affirmative vote of at least three (3) members of the City Council. 12.3Procedure. 12.3.1Owner Demonstration of Compliance. During either a periodic review or a special review, Owner shall be required to demonstrate its compliance with all of the terms and conditions of this Agreement. After submittal of Owner’s evidence of compliance, City shall provide Owner written notice of any terms or conditions of this Agreement in which Owner is not in compliance, and Owner shall provide additional evidence of compliance or correct the deficiency as stated in the City notice. 12.3.2Report to City Council. Upon completion of a periodic review or a special review, the Community Development Director shall submit a report to the City Council setting forth the evidence concerning compliance by Owner with the terms and conditions of this Agreement and his or her recommended finding on that issue. City shall provide Owner with, at least, fifteen (15) days prior Notice of the date, time and location of the meeting at which the City Council will review the results of a periodic review or a special review. Any such meeting may be continued by the City Council, from time to time. 12.3.3Conclusion of Review. If the City Council finds, on the basis of substantial evidence, that Owner has complied with all of the terms and conditions of this Agreement, the periodic review or special review shall be concluded. 12.3.4Modification or Termination of Agreement. If the City Council makes a preliminary determination that Owner is in Default under this Agreement, the City Council may modify or terminate this Agreement, pursuant to Section 12.4. 12.4Proceedings Upon Modification or Termination. If, upon a preliminary determination that the Owner is in Default under this Agreement pursuant to Section 12.3, the City Council determines to proceed with modification or termination of this Agreement, City shall Notify Owner of City’s intention to conduct a hearing regarding such matter. The Notice 16 shall be given, at least, fifteen (15) calendar days prior to the scheduled date of the hearing on such matter and shall contain: 12.4.1The time and place of the hearing; 12.4.2A statement as to whether or not City proposes to terminate or to modify this Agreement; and 12.4.3Such other information as is reasonably necessary to inform Owner of the nature of the proceeding. 12.5Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination of this Agreement, Owner shall be given an opportunity to be heard. If the City Council finds, based upon substantial evidence, that Owner is in Default under this Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the City. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the California Code of Civil Procedure. 12.6Certificate of Compliance. If, at the conclusion of a periodic review or a special review, Owner is found to be in compliance with all of the terms and conditions of this Agreement, the Community Development Director shall, upon written request by Owner, issue a certificate to Owner stating that, after the most recent periodic review or special review, based upon the information known or made known to the Community Development Director and City Council that: (1) this Agreement is in effect and (2) Owner is not in Default under this Compliance Certificate Agreement (“”). Each Compliance Certificate shall state whether the Compliance Certificate is issued after a periodic review or a special review and shall state the anticipated date of commencement of the next periodic review. If a Default existed at the time of the periodic review or special review to which the Compliance Certificate relates, but was concealed from or otherwise not known to the Community Development Director or City Council, City shall not be bound by a Compliance Certificate. EVENT OF DEFAULT; REMEDIES. 13. 13.1General Remedies. In the event that either Party breaches any provision of this Agreement, the Parties shall have all remedies available to them at law or in equity, except that City shall not be liable in damages to Owner, or to any successor in interest of Owner, or to any other person. Owner covenants not to sue for damages or claim any damages: 13.1.1For any breach of this Agreement or for any cause of action that arises out of this Agreement; 13.1.2For the taking, impairment or restriction of any right or interest conveyed or provided under this Agreement; or 13.1.3Arising out of or connected with any issue regarding the application, interpretation or effect of the provisions of this Agreement. 17 13.2Specific Performance. The Parties acknowledge and agree that money damages and remedies at law, generally, are inadequate for Non-Monetary Defaults under this Agreement. The Parties further agree that specific performance and injunctive relief are appropriate remedies for Non-Monetary Defaults or threatened Non-Monetary Defaults under this Agreement. 13.3Default of Owner. In addition to all other remedies of City for a Default by Owner under this Agreement, City may terminate or modify this Agreement, pursuant to Section 12.3. 13.4Default of City. Owner may terminate this Agreement only in the event that City fails to perform a material term of this Agreement and only if: 13.4.1Owner provided City with Notice setting forth the nature of the default and the actions, if any, required by City to cure the default; and 13.4.2Within sixty (60) days after the effective date of said Notice, where the default can be cured, City failed to cure the default or, where the default cannot be cured in sixty (60) days but can be cured within a longer time period, City has not commenced the actions necessary to cure said default. 13.5No Consequential Damages. Whenever either Party may seek or claim damages against the other Party, neither City nor Owner shall seek, nor shall there be awarded or granted by any court, arbitrator, or other adjudicator, any speculative, consequential, collateral, special, punitive, or indirect damages, whether such breach shall be willful, knowing, intentional, deliberate, or otherwise. The Parties intend that any damages awarded to either Party shall be limited to actual, direct damages sustained by the aggrieved Party. Neither Party shall be liable for any loss of profits suffered or claimed to have been suffered by the other Party. DISPUTE RESOLUTION. 14. 14.1Negotiation Period. If either Party delivers a Notice requesting commencement of a Negotiation Period pursuant to a provision of this Agreement authorizing a Negotiation Period, then within five (5) calendar days following the effective date of the Notice, the Parties shall commence good-faith negotiations to resolve the dispute(s) stated in the Notice. The Parties shall continue such negotiations until the earlier of: (1) the end of the Negotiation Period; or (2) each such dispute is resolved by a written agreement between the Parties. Notwithstanding any provision of this Agreement to the contrary, the Parties may agree in writing to extend the duration of the Negotiation Period for any period of time. 14.2ARBITRATION OF DISPUTES. ANY AND ALL DISPUTES BETWEEN THE PARTIES RELATING TO THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY JAMS IN ACCORDANCE WITH ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE COMPREHENSIVE ARBITRATION RULES AND PROCEDURES OF JAMS AND THE PROVISIONS OF THIS AGREEMENT, THE PROVISIONS OF THIS AGREEMENT SHALL CONTROL. WITHIN FIFTEEN (15) DAYS AFTER THE COMMENCEMENT OF AN ARBITRATION, EACH PARTY SHALL SELECT ONE PERSON TO ACT AS AN ARBITRATOR. THE TWO 18 SELECTED ARBITRATORS SHALL SELECT A THIRD ARBITRATOR, WITHIN TEN (10) DAYS FOLLOWING THEIR APPOINTMENT. IF EITHER PARTY FAILS TO SELECT AN ARBITRATOR, THEN THE ARBITRATOR SELECTED BY THE OTHER PARTY SHALL ARBITRATE THE DISPUTE, WITHOUT ANY OTHER ARBITRATOR. IF THE ARBITRATORS SELECTED BY THE PARTIES ARE UNABLE TO OR FAIL TO AGREE UPON A THIRD ARBITRATOR, THE THIRD ARBITRATOR SHALL BE SELECTED BY JAMS. THE PLACE OF ARBITRATION SHALL BE THE CITY OF DOWNEY, CALIFORNIA. EACH PARTY SHALL BEAR ITS OWN COSTS AND EXPENSES AND AN EQUAL SHARE OF THE ARBITRATOR(S)’ FEES AND THE ADMINISTRATIVE FEES OF ARBITRATION. EXCEPT AS MAY BE REQUIRED BY LAW, NEITHER PARTY NOR AN ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT OR RESULTS OF ANY ARBITRATION UNDER THIS AGREEMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH PARTIES. THE DECISION OR AWARD OF THE ARBITRATOR(S) SHALL BE BINDING ON BOTH PARTIES AND NO APPEAL OR OTHER SUBSEQUENT LEGAL PROCEEDING OR ACTION SHALL BE TAKEN BY EITHER PARTY REGARDING SUCH DECISION OR AWARD, EXCEPT REGARDING THE EXTENT OF THE AUTHORITY OF THE ARBITRATOR(S). TO THE EXTENT REASONABLY POSSIBLE, THE ARBITRATOR(S) SHALL HOLD AN ARBITRATION HEARING AND ISSUE A DECISION OR AWARD WITHIN NINETY (90) CALENDAR DAYS FOLLOWING THE COMMENCEMENT OF THE ARBITRATION. ANY ARBITRATION, DECISION OR AWARD ISSUED PURSUANT TO AN ARBITRATION UNDER THIS AGREEMENT MAY BE ENTERED AS A JUDGMENT IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY AND ENFORCED IN THE SAME MANNER AS ANY OTHER SUCH JUDGMENT, SUBJECT TO SECTION 14. 14.3ARBITRATION NOTICE. NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. 19 14.4ARBITRATION CONSENT. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION TO NEUTRAL ARBITRATION. INITIALS OF AUTHORIZED CITY INITIALS OF AUTHORIZED OWNER REPRESENTATIVE(S) REPRESENTATIVE(S) THIRD PARTY LITIGATION. 15. 15.1General Plan Litigation. City has determined that this Agreement and the Existing Development Approvals are consistent with the City’s “Comprehensive General Plan” General Plan (“”). Owner has reviewed the General Plan and concurs with City’s determination. If the General Plan or any portion of the General Plan is determined to be invalid, inadequate or not in compliance with law, City shall not be liable for City failure to perform under this Agreement or for Owner’s inability to develop the Property in accordance with Existing Development Approvals. 15.2Owner Covenant to Defend this Agreement. Owner assumes the risk of delays and damages to Owner from any Third Person legal action related to City’s approval of this Agreement or any associated Development Approvals, even if the City is determined to have committed an error, omission or abuse of discretion. If a Third Person files a legal action regarding City’s approval of this Agreement or any associated Development Approval (exclusive of legal actions alleging violation of Government Code Section 1090 by elected officials of City), Owner shall Indemnify City against such Third Person legal action, including all Legal Costs, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the Claim. City shall reasonably cooperate in its defense in any legal action subject to this Section 15.2, subject to Owner’s indemnity obligations for such legal action. Nothing contained in this Section 15.2 is intended to be nor shall be deemed or construed to be an express or implied admission that City may be liable to Owner or any other Person for damages or other relief regarding any alleged or established failure of City to comply with any Law. This obligation shall terminate after the expiration of the applicable statue of limitations for a Third Person to challenge the City’s approval of this Agreement. In the event such legal action as contemplated in this Section 15.2 is filed by a Third Person, Owner reserves the right, in its sole discretion, to terminate this Agreement and such termination shall not be deemed an event of default. 15.3Reservation of Rights. With respect to Sections 15.1 and 15.2, City reserves the right to either: (1) approve the attorney(s) that Owner selects, hires or otherwise engages to defend City, which approval shall not be unreasonably withheld; or (2) conduct its own defense and have Owner reimburse City for any and all reasonable expenses incurred for such defense, including Legal Costs, upon demand. 20 15.4Survival. The provisions of Sections 15.1 and 15.2 shall survive the expiration or termination of this Agreement if a legal challenge to the approval of the Agreement is timely filed. INDEMNIFICATION. 16. 16.1City Indemnity Obligations. City shall Indemnify the Owner Parties against any Claim to the extent such Claim arises from any wrongful intentional act or negligence of the City Parties, but only to the extent that City may be held liable under applicable law for such wrongful intentional act or negligence and exclusive of any violation of law (including the State Constitution) relating to City’s approval, entry into or performance of this Agreement. Nothing in this Agreement is intended nor shall be interpreted to waive any limitation on City’s liability, any exemption from liability in favor of City, any claim presentment requirement for bringing an action regarding any liability of City or any limitations period applicable to liability of City, as set forth in Government Code Sections 800, et seq., Sections 900, et seq., or in any other law or require City to Indemnify any Person beyond such limitations on City’s liability. 16.2Owner Indemnity Obligations. Owner shall Indemnify the City Parties against any Claim to the extent such Claim arises from any wrongful intentional act or negligence of the Owner Parties. Owner shall also Indemnify the City Parties against any and all of the following: (1) any Application made at Owner’s request; (2) any agreements that Owner (or anyone claiming by or through Owner) makes with a Third Person regarding this Agreement, the Property or the Development; (3) any workers’ compensation claim or determination arising from employees or contractors of the Owner Parties; (4) any Prevailing Wage Action related to the Nance Avenue infrastructure improvements; and (5) any Hazardous Substance Discharge. 16.3Survival of Indemnification and Defense Obligations. The indemnity and defense obligations of the Parties under this Agreement shall survive the expiration or earlier termination of this Agreement, until any and all actual or prospective Claims regarding any matter subject to an indemnity obligation under this Agreement are fully, finally, absolutely and completely barred by applicable statutes of limitations. 16.4Liability of City. During the Term: (1) Owner is and shall be in exclusive control and possession of the Property; and (2) City shall not be liable for and Owner shall Indemnify City regarding any injury or damage to any property (of Owner or any other Person) or to any Person occurring on or about the Property, except to the extent provided in Section 16.1. 16.5Indemnification Procedures. Wherever this Agreement requires any Indemnitor to Indemnify any Indemnitee: 16.5.1Prompt Notice. Indemnitee shall promptly Notify Indemnitor of any Claim. 16.5.2Selection of Counsel. Indemnitor shall select counsel reasonably acceptable to Indemnitee. Counsel to Indemnitor’s insurance carrier that is responding to such Claim shall be deemed satisfactory, except in the event of an actual or potential conflict of interest for such counsel regarding the representation of any Owner Party or any City Party or where such counsel proves to be incompetent regarding the representation. Even though 21 Indemnitor shall defend the action, Indemnitee may, at its option and its own expense, engage separate counsel to advise it regarding the Claim and its defense. Such counsel may attend all proceedings and meetings. Indemnitor’s counsel shall actively consult with Indemnitee’s counsel. 16.5.3Cooperation. Indemnitee shall reasonably cooperate with Indemnitor’s defense, provided Indemnitor reimburses Indemnitee’s actual reasonable out of pocket expenses (including Legal Costs) of such cooperation. 16.5.4Settlement. Indemnitor may, with the Indemnitee’s consent, not to be unreasonably withheld, settle a Claim. 16.5.5Insurance Proceeds. Indemnitor’s obligations shall be reduced by net insurance proceeds the Indemnitee actually receives for the matter giving rise to indemnification. 17. GENERAL PROVISIONS. 17.1 Recordation of Agreement. This Agreement and any amendment, modification, termination or cancellation of this Agreement shall be recorded against the Property in the official records of the County Recorder by the Clerk of the City Council, within the period required by Section 65868.5 of the Government Code. Owner authorizes the recording of all such documents against the Property, whether preceding, during or after the Term. 17.2 Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 17.3 Warranty Against Payment of Consideration for Agreement. Owner represents and warrants to City that: (a) it has not employed or retained any Person to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees of Owner and Third Persons to whom fees are paid for professional services related to planning, design or Construction of the Development or documentation of this Agreement; and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given by Owner or any of its agents, employees or representatives to any elected or appointed official or employee of the City in an attempt to secure this Agreement or favorable terms or conditions for this Agreement. Breach of the representations or warranties of this Section 17.3 shall entitle City to terminate this Agreement upon seven (7) days Notice to Owner. Upon any such termination of this Agreement, Owner shall immediately refund any payments made to or on behalf of Owner by the City pursuant to this Agreement or otherwise related to the Property, any Development Approval or the Development, prior to the date of any such termination. 17.4 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non-appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 22 17.5 Non-liability of Officials, Employees and Agents. No City Party (other than City itself) shall be personally liable to Owner, or any successor in interest of Owner, in the event of any Default or breach by City under this Agreement or for any amount that may be or become due to Owner or any successor in interest of Owner, on any obligations under the terms or conditions of this Agreement. No Owner Party (other than Owner itself) shall be personally liable to City, or any successor-in-interest of City, in the event of any Default or breach by Owner under this Agreement or for any amount that may be or may become due to City or any successor-in-interest of City on any obligations under the terms or conditions of this Agreement. 17.6 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. 17.7 Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words “include” and “including” in this Agreement shall be construed to be followed by the words: “without limitation.” Each collective noun in this Agreement shall be interpreted as if followed by the words “(or any part of it),” except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word “or” in this Agreement includes the word “and.” Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 17.8 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties regarding the subject matter of this Agreement. There are no oral or written representations, understandings or ancillary covenants, undertakings or agreements between the Parties regarding the subject matter of this Agreement that are not expressly set forth in this Agreement. This Agreement includes twenty-eight (28) pages and five (5) exhibits, that constitute the entire understanding and Agreement of the Parties regarding the Property and the other subjects addressed in this Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Property and the other subjects addressed in this Agreement. 17.9 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby, unless the remaining provisions are rendered impractical to perform or severance would deprive either Party of a material element of the benefit of its bargain in entering into this Agreement. Notwithstanding the immediately preceding sentence, the public 23 benefits set forth in Section 11 of this Agreement, including the payment of the In Lieu Fee and the Reimbursement Amount, are essential elements of this Agreement and City would not have entered into this Agreement, but for such provisions. Therefore, if any of the provisions of Section 11 are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force or effect. 17.10 Governing Law. This Agreement and any dispute arising under this Agreement shall be governed and interpreted in accordance with the procedural and substantive laws of the State, without application of conflicts of laws principles. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by legal counsel of their own selection in the negotiation and preparation of this Agreement. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City of Downey, County of Los Angeles, State of California. All legal actions arising from this Agreement shall be filed in the Superior Court of the State in and for the County or in the United States District Court with jurisdiction in the County. 17.11 Section Headings. All section headings and subheadings in this Agreement are inserted for convenience only and shall not be considered in the construction or interpretation of this Agreement. 17.12 Singular and Plural. As used in this Agreement, the singular of any word includes the plural. 17.13 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 17.14 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the Default of the other Party, shall not constitute a waiver of the non-defaulting Party’s right to insist on and demand strict compliance by the other Party with the terms and conditions of this Agreement or to pursue its available remedies for the other Party’s Default under this Agreement. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of both City and Owner. 17.15 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their respective successors and assigns. No other Person shall have any right of action based upon any provision of this Agreement. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any Person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any Third Person to any Party or give any Third Person any right of subrogation or action over or against any Party. 24 17.16 Unavoidable Delay; Extension of Time for Performance. Notice 17.16.1. Subject to any specific provisions of this Agreement stating that they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of an Unavoidable Delay, performance by either Party under this Agreement shall not be deemed or considered to be in Default, where any such Default is due to the occurrence of an Unavoidable Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (a) within ten (10) days after such Party knows of any such Unavoidable Delay; and (b) within five (5) days after such Unavoidable Delay ceases to exist. To be effective, any Notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. If the Party claiming an Unavoidable Delay provides Notice of the Unavoidable Delay to the other Party within the ten (10) day time period specified in this Section 17.16, the extension of time for an Unavoidable Delay shall commence on the date of the condition causing the Unavoidable Delay and shall continue until the end of the condition causing the Unavoidable Delay. If the Party claiming an Unavoidable Delay gives Notice of the Unavoidable Delay after the expiration of the ten (10) day time period required in this Section 17.16, then the extension of time for the Unavoidable Delay shall commence on the effective date of such Notice of the occurrence of the Unavoidable Delay and shall continue until the tenth day following the end of the condition causing the Unavoidable Delay. The Party claiming an extension of time to perform due to an Unavoidable Delay shall exercise its commercially reasonable best efforts to cure the condition causing the Unavoidable Delay, within a reasonable time. Assumption of Economic Risks 17.16.2. EACH PARTY EXPRESSLY AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY THE PERFORMANCE OF EACH AND EVERY ONE OF EACH PARTY’S OBLIGATIONS AND COVENANTS ARISING UNDER THIS AGREEMENT. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES AND/OR MARKET DEMAND/CONDITIONS AND WAIVE, TO THE GREATEST EXTENT ALLOWED BY LAW, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. THE PARTIES AGREE THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMANDS, SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS, CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE EFFECTIVE DATE. 25 _______________________ _______________________ Initials of Authorized Initials of Authorized Representative(s) of City Representative(s) of Owner 17.17 Mutual Covenants. The covenants contained in this Agreement are mutual covenants and constitute conditions precedent or concurrent to the subsequent or concurrent performance by the Party benefited by the covenant(s). 17.18 Inspection of Books and Records. City shall have the right at all reasonable times, at City’s sole cost and expense, to inspect the books and records of Owner relating to this Agreement, the Property, any Development Approvals or the Development, to the extent relevant to City’s rights or obligations under this Agreement, but excluding any proprietary information or attorney-client privileged communications. Owner shall also have the right at all reasonable times, at Owner’s sole cost and expense, to inspect the books and records of City relating to this Agreement, the Property, any Development Approvals or the Development, to the extent relevant to Owner’s rights or obligations under this Agreement, but excluding any proprietary information, closed-session information or attorney-client privileged communications. 17.19 Successors in Interest. The burdens of this Agreement shall be binding upon and the benefits of this Agreement shall inure to all successors in interest to the Parties. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land of the Property. Each covenant of this Agreement to do or refrain from doing some act regarding Development of the Property: (1) is for the benefit of and is a burden upon every portion of the Property; (2) runs with every portion of the Property; and (3) is binding upon Owner and each successor in interest to Owner in ownership of the Property or any portion of the Property. 17.20 Joint and Several Obligations. If at any time during the Term of this Agreement the Property is owned, in whole or in part, by more than one Owner, all obligations of such Owners under this Agreement shall be joint and several and the default of any such Owner shall be the default of all such Owners. Notwithstanding the foregoing, no Owner of a single lot that has been finally subdivided and sold to such Owner as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as expressly provided for herein. 17.21 No Other Representations or Warranties. Except as expressly set forth in this Agreement, no Party makes any representation or warranty material to this Agreement to any other Party. 17.22 Tax Consequences. Owner acknowledges and agrees that it shall bear any and all responsibility, liability, costs, and expenses connected in any way with any tax consequences experienced by Owner related to this Agreement. 17.23 Counterparts. This Agreement may be executed by the Parties in multiple counterpart originals, which counterpart originals shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 26 17.24 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a Party for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the State in and for the County. The Parties waive all provisions of law providing for the filing, removal or change of venue to any other court. 17.25 Development as a Private Undertaking. The Parties acknowledge and agree that the Development of the Property is a private development. Neither Party is acting as the agent of the other in any respect pursuant to this Agreement and each Party is an independent contracting entity, with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property and the owner of such property. 17.26 Eminent Domain. No provision of this Agreement shall be construed to require, limit or restrict the exercise by City of its power of eminent domain. 17.27 Incorporation of Recitals and Exhibits. All recitals set forth preceding this Agreement and all exhibits attached to this Agreement are incorporated into this Agreement by this reference. The exhibits attached to this Agreement are as follows: Exhibit “A.” 17.27.1 Property Legal Descriptions; and Exhibit “B.” 17.27.2 Property Site Plan and Elevation; and Exhibit “C.” 17.27.3Development Schedule; and Exhibit “D.” 17.27.4 List of Tenants Exhibit “E.” 17.27.5 Applicable CDBG-R Regulations 17.28 Estoppel Certificates. Either Party may, at any time and from time to time, request that the other Party certify in writing to the knowledge of the certifying Party that: (1) this Agreement is in full force and effect; (2) this Agreement has not been amended or modified, except as expressly identified; and (3) no Default in the performance of the requesting Party’s obligations under Agreement exists, except as expressly identified. A Party receiving such a request will execute and return the requested certificate, with any reasonable modifications, within fifteen (15) days after receipt of the request. 17.29 Authority to Execute. The person(s) executing this Agreement on behalf of Owner warrant and represent that he or she or they have the authority to do so and to bind Owner to the performance of its obligations hereunder. . 17.30 Execution of this Agreement Following execution of three (3) counterpart originals of this Agreement by the authorized representative(s) of Owner and prompt delivery of all such executed documents to City, this Agreement shall be subject to review and approval by the City Council, in its sole and absolute discretion, within forty-five (45) calendar days after the date of such delivery to City. If the City Council has not approved this Agreement within such 27 forty-five (45) calendar day period, then no provision of this Agreement shall be of any force or effect for any purpose and any prior execution or approval of this Agreement by Owner shall be null and void, unless otherwise agreed in writing by Owner. IN WITNESS WHEREOF, City and Owner have signed this Agreement by and through the signatures of their authorized representative(s) set forth below: CITY:OWNER: CITY OF DOWNEY, AMUSEMENT INDUSTRY, INC. D.B.A. a California municipal corporation and WESTLAND INDUSTRIES, a California charter city corporation By: MayorBy: City of Downey Title: Date: ATTEST: City Clerk City Manager APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP By: City Attorney 28 EXHIBIT “A” TO STATUTORY DEVELOPMENT AGREEMENT Property Legal Description [To be attached behind this cover page] 29 CITY OF DOWNEY, CALIFORNIA 31 EXHIBIT “B” TO STATUTORY DEVELOPMENT AGREEMENT Property Site Plan [To be attached behind this cover page] 32 33 EXHIBIT “C” TO STATUTORY DEVELOPMENT AGREEMENT Development Schedule [To be attached behind this cover page] 34 EXHIBIT C DEVELOPMENT SCHEDULE 1. Execution of the Agreement by Within fifteen (15) days of the approval of City. The City shall consider and if this Agreement by the City Council. approved, shall execute this Agreement. 2. Submission - Basic Concept Plans.Concurrently with the execution and delivery Owner shall submit basic concept plans of this Agreement by Owner to City. which provide a comprehensive plan for development of the entire Site. 3. Submission - Application for Land Within thirty (30) days of Owner’s delivery Use Entitlements. Owner shall submit of the Basic Concept Plans to the City. complete applications and plans, including but not limited to a merger of parcels, to the City. 4. Approval - Land Use Entitlements.Within one hundred twenty (120) days of the The City shall exercise its best efforts to City Council’s approval of this agreement. approve such applications consistent with the terms and conditions of this Agreement. 5. Submission - Construction Within sixty (60) days of the approvals of the Drawings, Soils Report, Grading Plan and land use entitlements set forth in Item #4, Final Landscaping Plan. Owner shall above. prepare and submit to the City Construction Drawings and Specifications, Grading Plans and a Landscaping Plan for the development. 6. Approval - Final Construction Within sixty (60) days after receipt by City, Drawings, Finish Grading Plan and Final subject to timely response and correction by Landscaping Plan. The City shall approve Owner. or disapprove the Final Construction Drawings and Specifications, Grading Plan and Landscape Plan. 7. Completion of Construction. Owner Within nine (9) months after the issuance of shall complete construction of the building permits to Owner. development. 8. Submission - Construction Concurrent with the submission of Drawings, for Nance Avenue applications for Land Use Entitlements. Improvements. Owner shall prepare and submit to the City Construction Drawings and Specifications, Grading Plans and a Landscaping Plan for improvements to Nance Avenue Right-of Way Improvements and the Waterline Improvements. 35 9. Approval - Construction Drawings, Within sixty (60) days after receipt by City, Finish Grading Plan and Final Landscaping subject to timely response and correction by Plan. The City shall approve or disapprove Owner. the Construction Drawings and Specifications, Finish Grading Plan, and Final Landscaping Plan for Nance Avenue improvements. 10. Commencement of Construction of Concurrent with Owner’s commencement of Nance Avenue Improvements. Owner shall construction of the on-site development, obtain building permits and commence construction of the Nance Avenue improvements. 11. Completion of Construction.On or before the completion of the Owner shall complete construction of construction of the on-site development. Nance Avenue improvements. 36 EXHIBIT “D” TO STATUTORY DEVELOPMENT AGREEMENT List of Tenants [To be attached behind this cover page] 37 A & W Restaurants MaggieMoo's Ice Cream & Treatery A.G. Ferrari Foods Mai Tai All American Ice Cream & Frozen Yogurt Shop mamma ilardo's Express Aloha Restaurants Inc. Manchu Wok, Inc. Al's Italian Beef Marble Slab Creamery Ameci In & Out, Inc. Maria's Italian Kitchen Ameci Italian Kitchen Marie Callender's Restaurant & Bakery Ameci Pizza & Pasta Mary's Pizza Shack, I American Restaurant Group, Inc. black angus Mastro's Restaurants LLC Andersen Bakery Inc. Maui Tacos Andre Boudin Bakeries, Inc. Maui Wowi Hawaiian Coffees & Smoothies Andronico's Market Max & Erma's Restaurants Angel's Great Food and Ice Cream Max Brenner Anthony's Seafood Group Max's Restaurants Apex Restaurant Group McCormick & Schmick's Seafood Restaurants Applebee's Mellow Mushroom Arby's Mel's Drive-In Ark Restaurants Corp. Menchie's Frozen Yogurt Asian Concepts, Inc. Metromedia Steakhouse Co., L.P. Asian Too Miami Subs Atlanta Bread Company Bakery Cafe Milano Restaurants International Auntie Anne's Millie's Restaurant & Bakery, Inc. Aureflam Corporation Mimi's Cafe Avila's El Ranchito Mini Melts BAB, Inc. Moe's Southwest Grill Baby Blues BBQ Mollie Stone's Markets Bad Ass Coffee Momed Market Cafe Bahama Breeze Monster Sushi Bain's Deli Morton's Steakhouse Baja Broiler, Inc. Mr. Pita Baja Fresh Mexican Grill Mr. Pizza Man Baja Sol Cantina Mrs. Beasley Baker Bros. American Deli Mrs. Field's Cookies Bananas Smoothies & Frozen Yogurt Murphy's Market Bar Pintxo N.Y.P.D. Pizza Barney's Nancy's Pizzeria Barnie's Coffee & Tea Nascar Sports Grille Baskin Robbins Nathan's Famous bd's Mongolian Barbeque New Moon Restaurant Beach Pit BBQ Newsroom Cafe Bear Creek Coffee Nick N Willy's Pizza Bear Rock Café Noahs Bagels Beef O'Brady's Noodles & Company Bella Via Coffee Norm's Restaurant Ben & Jerry's Nothing Bundt Cakes Benchmark Enterprises/Salt Creek Grille Nugget Market Benihana Numero Uno Pizza Bertolini's Italian Restaurant Old Spaghetti Factory Beverages & More! Olive Garden BevMo Omaha Steaks Biaggi's Ristorante Italiano On The Border 38 Billy Goat Tavern Organic To Go BJ's Restaurant & Brewery Original Roadhouse Grill Black Bear Diner, Inc. Outback Steakhouse Blendz Inc. P.F. Chang's China Bistro, Inc. Blimpie Subs & Salads Pal's Blue C Sushi Panchero's Mexican Grill Bluewater Grill Panda Express Boardwalk Fresh Burgers and Fries Panera Bread Bob Evans Restaurants Papa John's International Inc. Boba Loca Inc. Papa Murphy's Bobby Cox Restaurants Papa Romano's Bobby Rubino's USA Inc. Paradise Bakery & Cafe Bodega Latina Pasta Pomodoro Boloco Pat & Oscar's Bonefish Grill Peet's Coffee & Tea Boneheads Pei Wei Asian Diner Booster Juice Perkins & Marie Callender's, Inc. Boston Market Peter Piper Pizza Boston Pizza Restaurants, LP Petros Greek Cuisine & Lounge Boston's Gourmet Pizza Philly Connection Briad Restaurant Group - TGIF Philly's Best Bridgeman's Ice Cream Pick Up Stix, Inc. Brinker International Pinkberry Brio Tuscan Grille Pita Pit Bristol Farms Pizza Factory Brothers Bar & Grill Pizza Fusion Brueggers Enterprises, Inc. Pizza Guys Bubba Gump Shrimp Co. Restaurants, Inc. Pizza Hut/Wing Street Combo Buckhorn Grill Pizza Man Buck's Pizza Pizza Patron Buddha's Belly Pizza Pro, Inc. Buffalo Wild Wings Pizza Schmizza, Inc. Buffalo Wings & Rings, LLC Pizzeria Venti Buffets Holdings, Inc. Planet Smoothie, Planet Smoothie Cafe Bullets Corporation of America Playa Grill & Margarita Bar Bumblefish Sushi PlumpJack Group Burger King Pluto's Restaurants Burger Lounge Ponderosa Burgermaster Popeyes Chicken & Biscuits Burgerville Poquito Mas Cajun Cafe, China Max, Little Tokyo Port of Subs California Banquet Corp. Pretzelmaker California Fish Grill Qdoba Mexican Grill California Pizza Kitchen Quiznos Sub California Roll & Sushi RA Sushi Bar Camille's Sidewalk Cafe Ranch 1 Grilled Chicken Campero USA Corp. Red Boy Pizza Franchising Captain Tony's Pizza Red Lobster Carino's Italian Grill Red Mango Carl's Jr. Red Robin Gourmet Burgers Carrabbas Italian Grill RedBrick Pizza Carvel Rex Chicken Cask N Cleaver Richie's Neighborhood Pizzeria CeFiore Italian Yogurt Rita's Ices, Cones, Shakes & Other Cool Stuff 39 Cereality Robeks Fruit Smoothies & Healthy Eats Chao Praya Chinese Eatery Rockin' Baja Lobster Charley's Grilled Subs Rocky Mountain Chocolate Factory Charo Chicken Rollerz Rolled Sandwiches Cheba Hut Toasted Subs Rolling Rice Japanese Restaurant Checkers Drive-in Romano's Macaroni Grill Cheddar's Casual Cafe Roscoe's House of Chicken & Waffles Cheeburger Cheeburger" Rotelli Pizza & Pasta, Inc. Cheese Steak Shop Rouge Tomate Cheeseburger In Paradise" Round Table Pizza Cherry On Top" Roy's Hawaiian Fusion Chevys Mexican Restaurant Roy's Restaurants Chi-Chi's Pizza Inc. Rubio's Fresh Mexican Grill Chick-Fil-A Ruby Tuesday Chick-N-Grill Ruby's Diner Chik Wich Rumbi Island Grill Chili's Bar & Grill Russell Stover Candies Chinese Gourmet Express Russo's New York Pizzeria Chipotle Rusty's Pizza Parlors, Inc. Chris & Pitts Barbecue Ruth's Chris Steak House Chuck E. Cheese's Salad Creations Church's Chicken Saladworks LLC Cici's Pizza Sammy's Wood-Fired Pizza Cindy's Cinnamon Rolls Samurai Sam's Teriyaki Grill Cinnabon Sandella's Flatbread Cafe Circle Bar SanSai Japanese Grill City Bites Sarku Japan Claim Jumper Restaurant Saxbys Coffee Coffee Beanery Sbarro, Inc. Cold Stone Creamery Scharffen Berger Chocolate Maker Coney Beach Schlotzsky's Corner Bakery Cafe Seafood City Cosi Seasons 52 Country Kitchen" See's Candies Country Waffles" Sertinos Coffee Cracker Barrel Shakey's Pizza Crazy Bowls & Wraps" Shane's Rib Shack Culver's Sharky's Franchise Group, LLC Cuppy's Coffee & More, LLC ShotCakes Daily Grill / The Grill on The Alley Showcolate Fondue Express Daphne's Greek Cafe Shula's Steak Houses, L.P. Dave & Buster's, Inc Silver Mine Subs Del Taco Sizzler Del's Lemonade" Skratch Desert Island Restaurants Smart & Final Stores LLC Desert Moon Fresh Mexican Grill" Smashburger Devon Seafood Grill" Smoothie King Dickey's Barbecue Pit Sonic Dick's Last Resort Sonoma Chicken Coop Dinner My Way Souplantation Dinners Done Right Spicy Pickle Dinners Ready! Spires Restaurants, Inc. Dippin' Dots Spoon Me Doc Green's Gourmet Salads" Sprouts Farmers Markets 40 Dominic's of New York Squeeze International Inc. Domino's Pizza Stanford's Restaurant & Bar DQ Grill & Chill" Starbucks Coffee Company Earl of Sandwich" Steak & Ale Edible Arrangements Steak Escape Edo Japan Steer N Stein Einstein Bros Bagels Steve's Place Inc. El Cholo Stone Oven Gourmet Sandwiches & Salads El Pollo Loco StoneFire Grill El Toreo Straw Hat Pizza Elephant Bar Restaurant Streets of New York Inc. Elmer's Breakfast, Lunch & Dinner" Strings Franchises, Inc. Emerald City Smoothie" Strizzi's Erik's Delicafe" Stuckey's Corp. ESPN Zone Stuft Pizza Pronto Extreme Pita Sub Station II, Inc. Extreme Pizza Submarina California Subs Famima Corporation Subway Famous Dave's Sullivan's Steakhouse Famous Famiglia Super Suppers Farmer Boys Restaurants Surf City Squeeze Fatburger Sweet Dreams Inc. Fazoli's T K Noodle Inc. Figaro's Pizza T.G.I. Friday's Firehouse Subs Taco Bell Fish City Gril Taco Bueno Five Guys Famous Burgers and Fries Taco Del Mar Flamers Grill Tacone Fleming's Prime Steakhouse & Wine Bar TacoTime Flying Biscuit Tapioca Express Fox Sports Grill tasti D-lite Fresca's Mexican Grill Teavana Fresh Brothers Pizza Tender Greens FreshBerry Teriyaki Experience Froots Smoothies Texas Land & Cattle Steak House Fuddruckers Texas Roadhouse Fudgery Texas Turkeys, Inc. Fuzziwigs Candy Factory The Bad Ass Coffee Company of Hawaii, Inc. Garlic Jim's Famous Gourmet Pizza The Big Cheese Pizza Co. Genghis Grill The Capital Grille Gina's Pizza Inc. The Cheesecake Factory Incorporated Gloria Jean's Gourmet Coffees The Coffee Bean & Tea Leaf Godfather's Pizza, Inc. The Coffee Beanery, Ltd. Godiva Chocolatier The Counter Golden Corral The Dinner A'Fare Golden Spoon The Elephant & Castle Group, Inc. Great American Cookies The Fudgery, Inc. Great Wraps The Grape Green Leaf's The Great Steak & Potato Company Gumby's Pizza Systems, Inc. The Greene Turtle Haagen-Dazs Shoppes The Habit Burger Grill Habit Burger Grill The HoneyBaked Ham Company Handel's Homemade Ice Cream & Yogurt The Johnny Rockets Group, Inc. Happi House Restaurants Inc. The Kona Crisp 41 Hard Rock Cafe The Melting Pot Hickory Farms The Nutty Bavarian High Tech Burrito The Original Pancake House HoneyBaked Ham Company and Café The Original SoupMan Hooters The Paradies Shops Inc. Hot Breads The Portillo Restaurant Group Hot Dog On A Stick The Rack Houlihan's The Rice Garden Howl At The Moon The Steak Escape Howl USA The Taco Maker Hudson Group The TANGO Group Hudson's Grill International, Inc. The Veggie Grill Hungry Howie's Pizza & Subs Thunder Jackson's Urban Roadhouse Hurricane Grill and Wings Tilted Kilt In-N-Out Burger Tim Horton's Inc. International Dairy Queen, Inc. Tin Roof Bistro Islands Restaurants Todai SSB, Inc. It's A Grind Togo's Sandwiches Jack in the Box Tommy Bahama Tommy Pastrami NY Delicatessen Franchise Group Jamba Juice L.L.C. Java Detour Tommy's Original World Famous Hamburger Jensen's Finest Foods Inc. Tossed Jerry's Famous Deli, Inc. Total Wine & More Jersey Mike's Subs Trader Joe's Co., Inc. Jimbo's Naturally Co. Tropical Smoothie Café Jimboy's Marketing, Inc. Una Mas Restaurants, Inc. Jimmy John's Unique Pizza & Subs Corp. Joe's Crab Shack Holdings, Inc. Uno Chicago Grill Joey's Seafood & Grill USA Vie de France Yamazaki, Inc. Johnnie's Dog House Villa Enterprises Management Johnnie's New York Pizzeria Villa Fresh Italian Kitchen Johnny Rockets Vino 100 John's Incredible Pizza Co. Vintners Distributors Jose's Mexican Foods Vivoli Cafe Juan Pollo W.G. Grinders Franchise, Inc. Juice It Up! WaBa Grill Juice Zone Wafflo Jumpin' Juice & Java Wahoo's Fish Taco Kahala-Cold Stone Corp. Wake Up & Live, Inc. Keva Juice Wendy's KFC We're Rolling Pretzel Company Kidfresh West Lake Food Corporation Killarney's Irish Pub & Grill Western Bagel, Inc. Kincaid's Fish, Chop & Steak House Western Sizzlin King's Seafood Co. Wetzel's Pretzels LLC Kolache Factory What A Lot A Pizza Kona Grill Which Wich Krispy Kreme Donuts Whole Foods Market Inc. L & L Hawaiian Barbecue wichcraft L.A. Italian Kitchen Management, Inc. Wienerschnitzel/Tastee-Freez La Pizza Loca Wind & Sea Restaurants, Inc. La Salsa Winestyles Le Boulanger Wings To Go 42 Le Pain Quotidien Wingstop Lee's Sandwiches International, Inc. Wok & Roll Lenny's Sub Shop Wolfgang Puck Worldwide, Inc. Let's Dish World of Good Tastes Inc. Little Caesars Pizza World Wrapps Northwest Loard's Ice Cream & Candies, Inc. Yard House USA, Inc. Logan's Roadhouse Yogen Fruz Lollicup USA Inc. Yogurtland Lone Star Steakhouse & Saloon Inc. Yoshinoya Restaurants Long John Silver's Z Pizza Longhorn Steakhouse Z Tejas Grill Lori's Diner Zao Noodle Bar Loteria Grill Zero's Subs Luna Grill zpizza, LP Maggiano's Buffalo Wild Wings Ruby Tuesday Round Table Pizza The Habit Burger Waba Grill Zankou Chicken Subway Yogurtland Red Robin Qdoba Mexican Grill Sprouts Market Henry’s Market Pei Wei Panera Bread Baskin Robins Cold Stone Creamery Blizzberry Yougurt Starbucks Coffee Diedrich Coffee It's A Grind Coffee Jamba Juice Wahoo's Fish Taco Rubio's Fresh Mexican Grill Coffee Bean & Tea Leaf Applebee's Corner Bakery Café On the Boarder Noah’s /Einstein’s Bagels AT&T Wireless Verizon Wireless 43 EXHIBIT “E” TO STATUTORY DEVELOPMENT AGREEMENT Applicable CDBG-R Regulations [To be attached behind this cover page] 44 45 46 47