HomeMy WebLinkAboutResolution No. 12-7314RESOLUTION NO. 12 -7314
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING
AN AMENDMENT TO THE "SPACE SHUTTLE MOCK -UP RELOCATION
AGREEMENT BETWEEN THE CITY OF DOWNEY AND INDUSTRIAL REALTY
GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, DATED JULY 8,
2003, TO ALTER THE TERMS AND RESPONSIBILITY FOR RELOCATION OF THE
SPACE SHUTTLE MOCK UP
WHEREAS, the City of Downey has considered applications from Mr. Robert A.
Manarino, who is the authorized representative for the Industrial Realty Group, the Applicant, for
approval of an amendment to the Downey Landing Specific Plan, Tentative Parcel Map No.
71543 and Tentative Tract Map No. 71544; and a statutory development agreement, all of which
are related to the proposed development of an approximately 1,516,000 square foot mixed -use
development, known as Tierra Luna Marketplace, on the 77 -acre site at 12214 Lakewood Blvd.;
and
WHEREAS, the City holds certain contractual rights with regard to the disassembly,
storage, and relocation of a space shuttle mock that is currently stored on a portion of the 77
acre site at 12214 Lakewood Boulevard pursuant to that certain Space Shuttle Mock -Up
Relocation Agreement between the City of Downey and Industrial Realty Group, LLC, a
California Limited Liability Company, dated July 8, 2003 ( "Mock -Up Agreement "); and
WHEREAS, PCCP /IRG DOWNEY, LLC, a Delaware limited liability company
( "PCCP /IRG ") is a successor -in interest to Industrial Realty Group, LLC, a California Limited
Liability Company's rights under the Mock -Up Agreement; and
WHEREAS, As set forth in that certain "Amendment to Space Shuttle Mock -Up
Relocation Agreement" ( "Mock -Up Agreement Amendment ") attached hereto Attachment 1,
PCCP /IRG has requested amendments to the Mock -Up Agreement to reflect (i) a transfer of
responsibility for relocation of the Space Shuttle Mock -Up to the City, (iii) specification of
timelines for completion of the relocation of the Space Shuttle Mock -Up, and (iv) the payment of
consideration to the City; and
WHEREAS, , the City Council does hereby desire to approve an amendment to the
Mock -Up Agreement pursuant to the terms and conditions as set forth in the Mock -Up
Agreement Amendment
NOW THEREFVRE, Pik CITY COUNCIL OF THE CITY OF DOWNEY DOES
HEREBY RESOLVE FOLLOWS:
SECTION 1 . , The City Council finds and determines that the activities contemplated in
the Mock -Up. Agreement Amendment have no likelihood of causing any environmental impact
and are, in any event subsumed within the activities studied in the Final Environmental Impact
Report for the proposed development of the Tierra Luna Marketplace at 12214 Lakewood Blvd.
pursuant to the Amended Downey Landing Specific Plan.
SECTION 2. The City Council DOES HEREBY APPROVE the Mock -Up Agreement
Amendment, substantially in the form attached as Attachment 1.
SECTION 3. The City Manager and his authorized designees are hereby authorized to
execute the Mock -Up Agreement Amendment.
RESOLUTION NO. 12 -7314
PAGE TWO
SECTION 4. If any one of more sections or parts of this Resolution shall be adjudged
unenforceable or invalid, such judgment shall not effect, impair or invalidate the remaining
provisions of this Resolution, it being the intention that the various provisions hereof are
severable.
SECTION 5. Except as expressly provided in this approval, nothing in the Mock -Up
Agreement Amendment shall be deemed to waive or modify any other provisions of the Mock -
Up Agreement.
SECTION 6. The City Clerk shall certify to the adoption of this Resolution.
APPROVED AND ADOPTED this 10 day of January, 2012.
ADRIA M. JIMENEZ, CMC
City Clerk
ROG C. Bk5SSMER, Mayor
I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of
the City of Downey at a regular meeting held on the 10 day of January, 2012, by the following
votes, to wit:
AYES: Council Members: Guerra, Marquez, Vasquez, Gatin,-Maybr Brossmer
NOES: Council Members: None
ABSENT: Council Members: None
ABSTAIN: Council Members: None �'•
ADRIA M. JIMEitIEZ; CMG
City Clerk Consultant --
Agreement.
meanings ascribed to such terms in the Original Space Shuttle Agreement.
AMENDMENT TO SPACE SHUTTLE MOCK -UP RELOCATION AGREEMENT
This Amendment to $pace S uttle Mock -Up Relocation Agreement (this
"Amendment ") is made as of this / 0 day of U wY 2012, by and between THE CITY
OF DOWNEY, a municipal corporation of the Sate of California ( "City") and PCCP IRG
DOWNEY, LLC, a Delaware limited liability company, as to an undivided 90% interest, and
IRG DOWNEY, LLC, a California limited liability company, as to an undivided 10% interest (
collectively "Developer ").
A. City and Industrial Realty Group, LLC, a California limited liability
company ( "IRG ") (as Seller and Buyer, respectively) entered into a Space Shuttle Mock -Up
Relocation Agreement, dated on or about July 8, 2003 (the "Original Space Shuttle Agreement "),
pursuant to which the City and IRG agreed to certain protocols, procedures, and funding
obligations with regard to the disassembly, storage, and relocation of a full -size mock -up of a
NASA Space Shuttle ( "Shuttle Mock -Up "). A true and correct copy of the Original Space
Shuttle Agreement is attached hereto as Exhibit "A" and incorporated herein by reference.
D. City and Developer now desire to enter into this Amendment to amend
some of the rights and obligations specified in the Original Space Shuttle Agreement, all subject
and pursuant to the terms and conditions set forth in this Amendment below. The Original Space
Shuttle Agreement, as amended by this Amendment, is hereinafter referred to as the
"Agreement ".
6207414114770v5 vs. 4114770v4
RECITALS
B. Developer has succeeded to IRG's interest in the Original Space Shuttle
C. All defined terms used herein but not herein defined shall have the
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, City and Developer hereby agree to amend,
modify and/or supplement the Original Space Shuttle Agreement as of the Effective Date as
follows:
1. Effective Date. The effective date of this Amendment shall be the date upon
which City and Developer have each executed and delivered an executed counterpart of this
Amendment to the other party (the "Effective Date ").
2. Original Space Shuttle Agreement. Sections 3.3. 3.3.1. and 3.3.2. The
obligations set forth in Original Space Shuttle Agreement sections 3.3, 3.3.1, and 3.3.2 shall be
and hereby are deemed satisfied.
3. Original Space Shuttle Agreement. Section 3.3.3. Section 3.3.3 of the
Original Space Shuttle Agreement is amended to read in full as follows:
1
"3.3.3 Stage Three Work: City shall identify a site ( "Relocation Site ") for the
relocation (whether permanent or temporary) of the Shuttle Mock -Up, and diligently and in good
faith attempt to cause the Shuttle Mock -Up to be relocated from the Storage Facility to the
Relocation Site by March 1, 2012. In no event shall the City fail to relocate the Shuttle Mock -Up
to the Relocation Site later than June 1, 2012.
4. Original Space Shuttle Agreement Section 6.4. Section 6.4 of the Original
Space Shuttle is hereby deleted.
5. Consideration to City. In exchange for the amendment specified herein, and
as a condition precedent to the effectiveness of this Amendment, Developer shall pay to City
$100,000.00 within five (5) business days after the City mails, via overnight mail, a written
notification to Developer that City has identified a Relocation Site.
6. Remedies: Notwithstanding anything to the contrary in the Agreement, the
sole remedies available to Developer under or related to the performance of the obligations set
forth in the Agreement are (i) specific performance of the obligation to relocate the Shuttle
Mock -Up as set forth in Paragraph 3 of this Amendment or, alternatively, (ii) return of the
consideration set forth in Paragraph 5 of this Amendment.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, taken together, shall
constitute one and the same instrument.
8. Governing Law. This Amendment is made under and shall be construed
pursuant to the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the date
and year first above written.
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
62074\4114770v5 vs. 4114770v4 2
"CITY"
CITY OF DOWNEY,
a Municipal corporation of the State of California
By:
Name:
Title:
62074\4114770v5 vs. 4114770v4 3
"DEVELOPER"
PCCP IRG DOWNEY, LLC,
a Delaware limited liability company
By: PCCP LB IRG Downey, LLC
IRG DOWNEY, LLC,
a Delaware limited liability company
J , TIT--( t - - C
By: S L Properties, Inc.
B (!�
Name:
Title: kir'
EXHIBIT A
ORIGINAL SPACE SHUTTLE AGREEMENT
4
SPACE SHUTTLE MOCK-UP
RELOCATION AGREEMENT
between
THE CITY OF DOWNEY
a California charter city
and
INDUSTRIAL REALTY GROUP, LLC
a California limited liability company
ARTICLE 1. EFFECTIVE DATE; PARTIES
1.1 Effective Date of Agreement. This Space Shuttle Mock -Up Relocation
Agreement ( "Agreement ") is dated July 8, 2003. This Agreement will not become effective until
the date July 8, 2003 on which all of the following are true:
(i) This Agreement has been approved and executed by Developer as
defined in Section 1.2.2;
(ii) Following all legally required notices and meetings, this Agreement has
been approved by the City Council of City and the City Attorney; and
(iii) This Agreement has been executed by the appropriate authorities of the
City and the City Attorney.
1.2 Parties to Agreement
1.2.1 City. The address of City is 11111 Brookshire Avenue, Downey, CA
90241; telephone 562 - 904 -7239; facsimile 562 - 904 -7296, with copies to Oliver, Vose, Sandifer,
Murphy & Lee, 281 S. Figueroa Street, Second Floor, Los Angeles, CA 90012, Attention:
Charles S. Vose, telephone 213 - 621 -2000, facsimile 213- 621 -2211.
1.2.2 Developer. Developer is Industrial Realty Group, LLC, a California
limited liability company. The address of the Developer for purposes of this Agreement is 2400
W. Carson Street #235, Torrance, CA 90501, Attention: Stuart Lichter, President, telephone
310- 787 -7474, facsimile 310 - 787 -8581.
1.2.3 The City and Developer are sometimes individually referred to as "Party"
and collectively as "Parties."
ARTICLE 2 RECITALS ABOUT THE PROJECT
2.1 There exists an approximately 160 -acre National Aeronautics and Space
Administration ( "NASA ") Industrial Plant site the ( "NASA Site ") which is located in the City
of Downey, California and generally-• bounded by Lakewood Boulevard, Stewart and Gray
Road, Bellflower Boulevard, Imperial Highway and Clark Avenue. A site depiction of the
NASA Site is attached hereto as Exhibit "A" and incorporated herein by reference.
2.2 Inside the building commonly known as the "DEI Room" upon the NASA
Site there is currently located a full -size mock -up of a NASA Space Shuttle (Shuttle Mock -Up).
The Shuttle Mock -Up is a valuable historical artifact of the NASA Space Program.
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2.3 In order to preserve the Shuttle Mock -Up in its current condition City and
Developer desire that the Shuttle Mock -Up be relocated to another location upon the NASA
Site. City intends for the Shuttle Mock -Up to serve as a life -size museum piece, providing
visitors with a sense of Space Shuttle design, operations and activities, all as part of a larger
planned project at the NASA Site called the 'Columbia Memorial Space Science Learning
Center ".
. 2.4 The Shuttle Mock -Up is a delicate structure, which requires following
carefully supervised procedures for disassembly, relocation, monitoring and reassembly in
order to ensure that it remains in usable condition after relocation.
2.5 By their entry into this Agreement, City and Developer desire to provide for
the relocation of the Shuttle Mock -Up, procedures for the relocation, storage, monitoring,
payment of relocation costs, and for security for the Shuttle Mock -Up.
ARTICLE 3•. RELOCATION OF SIIUTTLE MOCK -UP
3.1 City Retention of Conservator. City shall, in its sole and absolute discretion,
select and retain the services of a professional museum conservator ( "Conservator ") to advise
the City and supervise all work of the Developer and Relocation Firm (defined herein) to
ensure the proper disassembly, relocation, monitoring, reassembly and preservation of the
Shuttle Mock -Up. All costs associated with City's retention of the Conservator shall be paid
by Developer as more particularly set forth in Section 4.1 herein.
The Conservator will prepare a "Condition Assessment Survey" outlining the
current condition of the Shuttle Mock -Up, identifying separation points and disassembly
details, identifying high -risk surfaces and features and outlining protection and preparation
measures for relocation of the Shuttle Mock -Up. Upon request, the City shall provide a copy
of the "Condition Assessment Survey" to Developer. The Conservator, or his or her designee,
shall provide on -site supervision of relocation activities performed by Developer and/or the
Relocation Firm to ensure compliance with the Relocation Plan and any other applicable
conditions or requirements for the safe relocation of the Shuttle Mock -Up.
3.2 Developer Selection of Relocation Firm. Developer shall select and retain a
( "Relocation Firm ") with personnel experienced in the relocation of structures similar to the
Shuttle Mock -Up. The Relocation Firm shall provide all labor, materials, tools, equipment,
services and incidental and customary work necessary to fully and adequately accomplish the
disassembly, relocation, monitoring, and reassembly of the Shuttle Mock -Up. Developer's
selection of the Relocation Firm shall be subject to the prior written consent of City, which
consent City may withhold in its sole and absolute discretion. All costs associated with
Developer's retention of the Relocation Firm shall be paid by Developer.
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Developer shall, within fifteen (15) days following City's approval of the
Relocation Firm, prepare or cause the Relocation Firm to prepare a plan for the disassembly,
relocation, storage and reassembly of the Shuttle Mock -Up ( "Relocation Plan ") and submit or
cause to be submitted said Relocation Plan to City and the Conservator. The Relocation Plan
shall be approved by the Conservator and City prior to the commencement of any relocation
activity.
3.3 Relocation Work Subject to Relocation Plan and Conservator Supervision.
.Developer shall cause the relocation of the Shuttle Mock -Up from the "DEI Building" to
another location upon the NASA Site ( "New Site "). The location of the New Site shall be
determined by City, in its sole and absolute discretion. Developer shall cause the Relocation
Firm to perform all work of disassembly, relocation, monitoring and reassembly of the Shuttle
Mock -Up with all due care in accordance with this Agreement, the Relocation Plan and subject
to the ongoing supervision and direction of the Conservator, or his or her designee.
The parties acknowledge that the relocation work shall proceed in three stages:
3.3.1 Stage One Work: Developer shall cause the Relocation Firm to
disassemble the Shuttle Mock -Up and transport its constituent parts to a temporary storage
facility ( "Storage Facility "). The Storage Facility shall be Located on the NASA Site and
selected by the City, in its sole and absolute discretion.
The Storage Facility shall meet all required specifications as outlined in the
Relocation Plan and as required by the Conservator. The Storage Facility shall also meet all
current Federal, State and local laws and regulations including, but not limited to applicable
Fire and Building Codes. The Conservator shall determine, in his or her sole and absolute
discretion, whether the Storage Facility meets these applicable specifications and conditions
and Codes.
In the event the Conservator fords that the Storage Facility fails to meet any
applicable specifications and conditions or Codes, Developer, at its sole cost and expense, shall
bring the Storage Facility into compliance with such specifications, conditions and Codes prior
to storing any portion of the Shuttle Mock -Up within the Storage Facility.
3.3.2 Stage Two Work: Once the Shuttle Mock -Up is stored within the Storage
Facility in accordance with the Relocation Plan, the Conservator, or his or her designee will
regularly monitor the Shuttle Mock -Up pursuant to the Relocation Plan to ensure that all
required specifications and conditions for storage of the Shuttle Mock -Up continue to be met.
The Conservator, or his or her designee shall prepare a written report to City and Developer
of their observations during each monitoring visit, including any reasonable recommendations
for changes in storage conditions to best ensure the safe preservation of the Shuttle Mock -Up.
Any changes in storage conditions requested by the Conservator or City shall be made by
Developer, at its sole cost and expense.
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Throughout the period that the Shuttle Mock -Up is stored at the Storage
Facility, Developer shall regularly maintain the Storage Facility, at its sole cost and expense,
to ensure that the Storage Facility continues to meet applicable specifications and conditions
as directed by the Conservator.
Developer shall take all appropriate measures to ensure that the stored parts of
the Shuttle Mock -Up are not disturbed by any person not authorized by City or the
Conservator to handle or otherwise work with the Shuttle Mock -Up, or any portion thereof.
Developer may, at its option, provide private security guard services to protect the Shuttle
Mock -Up from theft, vandalism or other disturbance. The costs of employing private security
guards shall be the sole obligation of Developer. Nothing in this Section shall obligate City to
provide any special police protection, private guard services or other security measures to the
Storage Facility.
• 3.3.3 Stage Three Work: Once the New Site is identified by the City for
permanent relocation of the Shuttle Mock -Up, Developer shall cause the Relocation Firm to
remove the Shuttle Mock -Up from the Storage Facility and to reassemble the Shuttle Mock -Up
within the designated New Site.
The New Site shall meet all required specifications as outlined in the Relocation
Plan and as required by the Conservator.
3.3.4 Changes to Relocation Plan by Conservator or City. Once the
Relocation Plan is accepted by City, City shall make good faith efforts not to unreasonably
alter the terms of the Relocation Plan during the course of the relocation work. However,
Developer acknowledges that given the age and fragility of the Shuttle Mock -Up, certain
unforeseen conditions may arise during disassembly, storage, reassembly and other relocation
work which would require the Relocation Plan to be amended or alternative courses of action
to be taken in order to best preserve the Shuttle Mock -Up, including the selection of an
alternative location to which the Shuttle Mock -may be stored. Developer hereby agrees that
should either the Conservator, City, or their designees determine that an alternative course of
action is necessary to best preserve the Shuttle Mock -Up, including the designation of an
alternative Storage Facility, Developer shall cause the Relocation Firm to change its course of
work per the direction of the Conservator and/or City, or their designees, all additional costs
to be borne by Developer.
3.3.5 Notwithstanding any provision.of this Agreement to the contrary,
developer's obligation to disassemble, relocate, store, monitor and reassemble the Shuttle
Mock -Up shall be limited to that work necessary to maintain the Shuttle Mock -Up in same
condition as it is in as of the operative date of this Agreement.
3.4 Governmental Permits and Compliance With Laws. Developer shall, at its sole
cost and expense, secure or cause to be secured any and all permits, entitlements, or other
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approvals which may be required by or from the City or any other governmental agency with
jurisdiction over the Storage Facility or any other feature related to relocating the Shuttle
Mock -Up. The City shall provide reasonable good -faith non - financial assistance to Developer
in securing such permits or approvals, in a manner consistent with statute, City's Municipal
Code and this Agreement. Developer shall carry out the relocation of the Shuttle Mock -Up in
conformity with all applicable laws, including all applicable federal and state labor and safety
standards.
3.5 No Discrimination. The Developer, for itself and its 'successors and assigns,
agrees that it will not discriminate against any employee or applicant for employment because
of sex, marital status, race, color, religion, creed, national origin, or ancestry, and that it will
comply with all applicable local, state and federal fair employment laws and regulations.'
3.6 City's Right of Access. For the purpose of assuring compliance with this
Agreement, representatives of City shall have the right of access to the "DEI Building ", Storage
Facility, New Site and any other portion of the NASA Site with respect, to the Shuttle Mock -Up
relocation work, at any time and without charge. City will use good faith efforts to minimize
any interference that the City's entry may,have upon the Developer's operations.
3.7 City's Final Approval. Upon completing reassembly of the Shuttle Mock -Up at
the New Site, Developer shall inform City and the Conservator of said completion. City and
the Conservator shall inspect the Shuttle Mock -Up to determine whether relocation work is
complete. If City and the Conservator determine, in their reasonable discretion, that
additional work is necessary to complete the relocation, Developer shall perform all required
additional work at its sole cost and expense.
If City and the Conservator determine that (i) the Shuttle Mock -Up has been
properly reassembled, (ii) the Shuttle Mock -Up can be reasonably maintained by City in its
reassembled condition, (iii) that no further work is necessary to relocate the Shuttle Mock -Up
and (iv) all statutory and non - statutory liens and encumbrances that may be attached to the
Shuttle Mock -Up due to the relocation work have been fully and unconditionally released by
Developer and the Relocation Firm, City shall issue a.written notice to Developer indicating
City's final approval of all relocation work ( "City's Final Approval "). Upon issuance of City's
Final Approval, City shall re- assume full operation and maintenance control of the Shuttle
Mock -Up and Developer's obligations under this Article 3 shall be deemed complete.
ARTICLE 4. PAYMENT, INDEMNIFICATION AND INSURANCE
4.1 Payment for Work by Developer. All work associated with the relocation of
the Shuttle Mock -Up as set forth in this Agreement shall be paid for at Developer's sole cost
and expense. Notwithstanding the above, Developer acknowledges that City will directly
contract with the Conservator and directly pay the Conservator for those advisory, supervision
and monitoring services as contemplated in this Agreement. However, consistent with the
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Parties' understanding that Developer shall pay for all costs of relocation work, Developer
shall compensate City for the costs of retaining the Conservator according to the following:
4.1.1 The Parties currently estimate that the costs of retaining the Conservator
will be approximately Fifty Thousand Dollars ($50,000). At the time Developer submits the
Relocation Plan to City for approval, Developer shall deposit with City the sum of Fifty
Thousand Dollars ($50,000) ( "Deposit "). City shall place the Deposit in a City - established bank
account.
4.1.2 As City is invoiced by the Conservator for his or her services, from time
to time, City shall be authorized to draw against the Deposit to pay for the Conservator's
services.
4.1.3 After completion of all relocation work:
4.1.3.1 If any portion of the Deposit remains unexpended
after paying all costs for retaining the Conservator,
City shall repay the unexpended portion of the
Deposit to Developer (without interest) within sixty
(60) days following City's Final Approval.
4.1.3.2 If, after City's Final Approval, the Deposit is
insufficient to cover all of City's costs for retaining
the Conservator, as determined by City in its sole
and absolute discretion, Developer shall pay to
City an additional amount equal to City's total
costs for retaining the Conservator minus the
Deposit. Developer shall pay such funds within
sixty (60) days following its receipt of written
demand from City.
4.2 Release and Indemnity Developer shall defend, indemnify and hold the City,
and its officers, directors, agents, servants, attorneys, employees and contractors• harmless
from and against all actual and alleged liability, loss, damage, costs, or expenses (including
reasonable attorneys' fees and court costs) (all of the foregoing collectively, "Liabilities ") arising
from or as a result of the death of any person or any accidental injury, loss or damage
whatsoever caused to any person or to the property of any person (including the attachment
of statutory or non-statutory liens upon the46huttle Mock -Up due to relocation work) and
which. shall be, or alleged to be, directly or indirectly, caused by any acts done thereon or any
errors or omissions of the Developer or its officers, directors, tenants, agents, servants,
attorneys, employees or contractors.
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Further, the Developer hereby waives, releases and relinquishes any and all claims,
causes of action, rights and remedies the Developer may now or hereafter have against City,
and its officers, directors, agents, servants, attorneys, employees and contractors and shall
defend, indemnify and hold City, and its officers, directors, agents, servants, attorneys,
employees and contractors harmless from and against all Liabilities, arising from or as a result
of the death of any person or any accidental injury, loss or damage whatsoever caused to any
person or to the property of any person (including the attachment of statutory or non - statutory
liens upon the Shuttle Mock -Up due to relocation work) and which shall be, or alleged to be,
directly or indirectly, caused by any acts done thereon or any errors or omissions of City, or
its respective officers, directors, agents, servants, attorneys, employees or contractors.
Notwithstanding the paragraph above, Developer shall not be responsible for (and such
release and indemnity shall not apply to) any of the foregoing which are the direct or indirect
result of the gross negligence of willful misconduct of City, or its respective officers, directors,
agents, servants, attorneys, employees or contractors. City shall not be responsible for any
acts, errors or omissions of any person or entity except City and its respective officers, agents,
servants, employees or contractors.
DEVELOPER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
('SECTION 1542 "), WHICH IS SET FORTH BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
BY INITIALING BELOW, DEVELOPER HEREBY WAIVES THE PROVISIONS OF
SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE
SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
Developer's Initials
The waivers, releases and indemnification obligations contained in this Section 4.2 shall
survive the expiration or termination of this Agreement.
4.3 Insurance. Prior to commencing any Shuttle Mock -Up relocation work under
this Agreement, Developer shall furnish or cause to be furnished to the City duplicate originals
and appropriate endorsements to commercial general liability and automobile insurance
policies naming City as an additional co- insured. Such policies shall be in an amount
acceptable to City.
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The policies shall be "occurrence," not "claims made," policies and shall be
primary and non - contributing to any insurance that City may elect to obtain. Such policies
shall contain a full waiver of subrogation clause. The policies shall be issued by a carrier
licensed to do business in California, with a then- current Best's rating of A:VII or better. Said
policies shall provide that they shall not be canceled or reduced in types of coverage or amount
of coverage without at least. thirty (30) days' prior written notice to City and that such
reduction or cancellation shall become effective until at least twenty (20) days after receipt by
City of the written notice thereof. The policy amounts set forth above shall not limit or define
the extent of the Developer's indemnity liability pursuant to Section 4.2 or any other provision
of this Agreement, or arising as a matter of law or at equity.
Developer shall also furnish or cause to be furnished to the City evidence
satisfactory to the City that the Relocation Firm or any other contractor with whom it has
contracted for the performance of relocation work under this Agreement carries workers'
compensation insurance as required by law.
Developer shall also maintain, or cause the Relocation Firm or other contract
to maintain, all-risk course of construction insurance, insuring Developer and City against all
risk of loss or damage to the Shuttle Mock -Up during relocation activities. Such insurance
shall be in an amount acceptable to City.
The obligations set forth in this Section 4.3 shall remain in effect until the issuance of
City's Final Approval.
ARTICLE 5. DAMAGES AND REMEDIES
5.1 Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise
provided by a specific term of this Agreement, the rights and remedies of City and Developer
under this Agreement are nonexclusive, and all remedies hereunder may be exercised
individually or cumulatively. City's failure to exercise any such right or remedy shall in no
event be construed as a waiver or release of such rights or remedies, or of the right to exercise
them at any later time.
5.2 Default.
5.2.1 Event of Default. Each of the following shall constitute an "Event of
Default" by a Party to this Agreement:
5.2.1.1 Failure by either Party to comply with and observe any of the
conditions, terms, or covenants set forth in this Agreement, if such failure remains uncured
within fifteen (15) days after written notice of such failure from the non - defaulting Party to the
defaulting Party in the manner provided herein or, with respect to a default that cannot be
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The obligations set forth in this Section 4.3 shall remain in effect until the issuance of
City's Final Approval.
ARTICLE 5. DAMAGES AND REMEDIES
5.1 Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise
provided by a specific term of this Agreement, the rights and remedies of City and Developer
under this Agreement are nonexclusive, and all remedies hereunder may be exercised
individually or cumulatively. City's failure to exercise any such right or remedy shall in no .
event be construed as a waiver or release of such rights or remedies, or of the right to exercise
them at any later time.
5.2 Default.
5.2.1 Event of Default. Each of the following shall constitute an "Event of
Default" by a Party to this Agreement:
5.2.1.1 Failure by either Party to comply with and observe any of the
conditions, terms, or covenants set forth in this Agreement, if such failure remains uncured
within fifteen (15) days after written notice of such failure from the non - defaulting Party to the
defaulting Party in the manner provided herein or, with respect to a default that cannot be
cured within fifteen (15) days, if the defaulting Party fails to commence such cure within such
fifteen (15) day period or thereafter fails to diligently and continuously proceed with such cure
to completion. However, if a different period or notice requirement is specified under any
other section of this Agreement, then the specific provision shall control. If the defaulting
Party fails to cure, or commence to cure (if applicable), as provided in the preceding
paragraph, the non - defaulting Party may exercise such rights and remedies as provided for
in this Agreement.
5.2.1.2 Any representations or warranties contained in this Agreement
or in any application, financial statement, invoice, certificate, or report submitted by
Developer to the. City proves to have been false or misleading in any material respect when
made.
5.2.2 Rights Upon Event of Default. Upon the occurrence of an Event of
Default, the Parties shall have the right to do any one or more of the following:
5.2.2.1 City's Rights. City may:
(1)
Terminate this Agreement and all of its obligations
hereunder, without cost, expense or liability; and
10
ARTICLE 6. GENERAL TERMS
(2) Seek damages against the Developer, specific performance
or injunctive relief; and
(3) Exercise all other rights and remedies provided in this
Agreement.
5.2.2.2 Developer's Rights. Developer may:
(1) Terminate this Agreement and all of its obligations
hereunder, without cost, expense or liability; and
(2) Seek general damages against the City or specific
performance; and
(3) Exercise all other rights and remedies provided in this
Agreement.
5.2.3 InjunctiontEquitable Relief. Developer irrevocably stipulates and
agrees that, due to the unique nature of the Shuttle Mock -Up, breach of any of the provisions
of this Agreement will result in great and irreparable damage to City, and will result in
damages to City which are either impracticable or extremely difficult to quantify. Accordingly,
upon the breach of any provision of this Agreement, City may institute an actionfor injunctive
relief and/or for damages attributable to such breach.
6.1 Notices and Demands. All notices or other communications required or
permitted between City and Developer under this Agreement shall be in writing, and may be
(i) personally delivered, (ii) sent by United States registered or certified mail, postage prepaid,
return receipt requested, (iii) sent by telecopier, or (iv) sent by nationally recognized overnight
courier service (e.g., Federal Express), addressed to the Parties at the addresses provided in
Article 1, subject to the right of either Party to designate a different address for itself by notice
similarly given. Any notice so given by registered or certified United States mail shall be
deemed to have been -given on the second business day after the same is deposited in the United
States mail. Any notice not so given by registered or certified mail, such as notices delivered
by telecopier or courier service (e.g., Federal Express), shall be deemed given upon receipt
of the same by the party to whom the notice is given.
6.2 Nonliability of the City or City Officials and Employees. No council member,
official, contractor, consultant, attorney or employee of the City shall be personally liable to
Developer, any voluntary or involuntary successors or assignees, or any other party, in the
event of any default or breach by City, or for anyamount which may become due to Developer
or to its successors or assignees, or on any obli lions arising under this Agreement.
11
6.3 Conflict of Interests. No council member, official, contractor, consultant,
attorney or employee of the City shall have any personal interest, direct or indirect, in this
Agreement nor shall any such council member, official or employee participate in any decision
relating to this Agreement which affects its personal interests or the interests of any
corporation, partnership or association in which it is directly or indirectly interested.
6.4 Attorneys' Fees. In the event of the bringing of an arbitration, action or suit by
a Party hereto against another Party hereunder by reason of any breach of any of the
covenants or agreements arising out of this Agreement or any other dispute between the Parties
concerning this Agreement, then, in that event, the prevailing Party in such action or dispute,
whether by final judgment or arbitration award, shall be entitled to have and recover of and
from the other Party all costs and expenses of suit or claim, including actual attorneys' fees.
Any judgment, order or award entered in any final judgment or award shall contain a specific
provision providing for the recovery of all costs and expenses of suit or claim, including actual
attorneys' fees (collectively, the "Costs") incurred in enforcing, perfecting and executing such
judgment or award. For the purposes of this Section 6.4, Costs shall include, without implied
limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (i) post
judgment motions and appeals, (ii) contempt proceedings, (iii) garnishment, levy and debtor
and third party examination; (iv) discovery; and (v) bankruptcy litigation. This Section 6.4
shall survive any termination of this Agreement.
6.5 Amendments to this Agreement. The Developer and the City agree to consider
reasonable requests for amendments to this Agreement which may be made by any of the
Parties hereto. Any amendments to this Agreement must be in writing and signed by the
appropriate authorities of both City and Developer.
6.6 Jurisdiction and Venue. Any legal action or proceeding concerning this
Agreement shall be filed and'prosecuted in the appropriate California state court in the County
of Los Angeles, California. Both Parties hereto irrevocably consent to the personal jurisdiction
of that court.
6.7 Interpretation. City and Developer acknowledge that this Agreement is the
product of mutual arms - length negotiation and drafting. Accordingly, the rule of construction
which provides the ambiguities in a document shall be construed against the drafter of that
document shall have no application to the interpretation and enforcement of this Agreement.
hi any action or proceeding to interpret or enforce this Agreement, the finder of fact may refer
to any extrinsic evidence not in direct conflict with any specific provision of this Agreement to
determine and give effect to the intention of the Parties.
6.8 Counterpart Originals; Integration. This Agreement may be executed in
duplicate originals, each of which is deemed to be an original, but when taken together shall
constitute one and the same instrument. This Agreement and its Exhibits represent the entire
understanding of the Parties and supersedes all negotiations, letters of intent, memoranda of
12
-- understanding or previous agreements between the parties with respect to all or any part of the
subject matter hereof.
6.9 No Waiver, Failure to insist on any one occasion upon strict compliance with
any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any rights or powers
hereunder at any one time or more times be deemed a waiver or relinquishment of such other
right or power at any other time or times.
6.10 Successors and Assigns The terms, covenants and conditions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their successors and
assigns.
6.11 Headings Section headings contained in this Agreement are for convenience
only, and shall not impact the construction or interpretation of any provision.
6.12 Further Acts. The Parties agree to execute such additional documents and to
take such further actions as are reasonably necessary to accomplish the objectives and intent
of this Agreement.
6.13 Severability. If any provision or clause of this Agreement or any application of
it to any person, firm, organization, partnership or corporation is held invalid, such invalidity
shall not affect any other provision of this Agreement, and the Agreement shall be construed
as if such provisions or clauses-did not exist.
(Signatures on following page)
13
IN WITNESS WHEREOF, the parties hereto have caused this
AGREEMENT to be executed the day and year first above written.
INDUSTRIAL REALTY GROUP, LLC
a California limit e4 'ability compan
By
Title / 14 , vH 42rn.it
CITY OF DOWNEY
a California charter ci
By
ATTEST:
r1 ( ✓IA ! /1
City Clerk
Rick/!• ejo, Mayor
14
APPROVED AS TO FORM:
City Attorney
EXHIBIT A TO
SPACE SHUTTLE MOCK -UP RELOCATION AGREEMENT
Depiction of the NASA Site
(attached)
Leaming Center
(2 Acres)
Film/Media Center
(73 Acres)
J
Depiction of the NASA Site
011iflant+
EXHIBIT A TO
SPACE SHUTTLE MOCK-UP RELOCATION AGREEMENT
Scale in Feet