HomeMy WebLinkAbout09. Ord Dev.Agmt. 8236 Firestone
AGENDA MEMO
DATE:
May 11, 2010
TO:
Mayor and Members of the City Council
FROM:
The Office of the City Manager
By: Brian Saeki, Director of Community Development
SUBJECT: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY
APPROVING A STATUTORY DEVELOPMENT AGREEMENT WITH
AMUSEMENT INDUSTRY D.B.A WESTLAND INDUSTRIES FOR
PROPERTY LOCATED AT 8236-8274 FIRESTONE BOULEVARD
RECOMMENDATION
That the City Council:
ADOPT ORDINANCE NO. 10 - ____, AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF DOWNEY APPROVING A STATUTORY DEVELOPMENT
AGREEMENT WITH AMUSEMENT INDUSTRY D.B.A WESTLAND INDUSTRIES FOR
PROPERTY LOCATED AT 8236-8274 FIRESTONE BOULEVARD
BACKGROUND
At the April 27, 2010 meeting, the City Council introduced the attached Ordinance
approving a Statutory Development Agreement with Amusement Industry D.B.A
Westland Industries for property located at 8236-8274 Firestone Boulevard. The
ordinance will become effective 30 days following the date of adoption.
This item was approved by the Downtown Subcommittee (Councilman Brossmer and
Councilman Guerra) and referred to City Council.
FINANCIAL IMPACT:
Approval of this item will decrease the current fiscal year budget for Community
Development Block Grant Recovery stimulus funds by $290,000.
Attachments: Ordinance
Statutory Development Agreement
H:\ECONDEV\AGENDAS\Agenda10\051110\Westland Adopt Ord.doc 5/7/2010 10:54:38 AM
CITY OF DOWNEY, CALIFORNIA
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.
NOW, THEREFORE, 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.
APPROVED AND ADOPTED
this day of _____, 2010
_________________________________
Anne M. 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 )
I HEREBY CERTIFY that the foregoing Ordinance No. ______ was introduced at a
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:
I FURTHER CERTIFY that a Summary of the foregoing Ordinance No. ________ 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
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
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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.
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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
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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.
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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.
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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
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“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.
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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.
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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
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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.
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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.
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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
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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.
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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.
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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.
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_______________________ _______________________
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.
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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
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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