HomeMy WebLinkAboutResolution No. 12-7338 RESOLUTION NO. 12 -7338
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING A
SECOND 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 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, as to an
undivided 90% interest, and IRG DOWNEY, LLC, a California limited liability company, as to an
undivided 10% interest (collectively "Developer ") is a successor -in interest to Industrial Realty
Group, LLC, a California Limited Liability Company's rights under the Mock -Up Agreement; and,
WHEREAS, On or about March 15, 2012, City and Developer entered into that certain
Amendment to Space Shuttle Mock -Up Relocation Agreement, which reflected (i) a transfer of
responsibility for relocation of the Space Shuttle Mock -Up to the City, (ii) specification of
timelines for completion of the relocation of the Space Shuttle Mock -Up, and (iii) the payment of
consideration to the City; and,
WHEREAS, , the City Council does hereby desire to approve an further, second,
amendment to the Mock -Up Agreement pursuant to the terms and conditions as set forth in the
Second Amendment to Space Shuttle Mock -Up Relocation Agreement ( "Second Amendment ")
which will extend the time frame for the City's performance thereunder from June 1, 2012 to
August 1, 2012.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES
HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council finds and determines that the activities contemplated in
the Second Amendment have no likelihood of causing any environmental impact and are, in any
event, subsumed within the activities studied in the certified Final Environmental Impact Report
for the 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 Second Amendment,
substantially in the form attached as Attachment 1.
SECTION 3. The City Manager and his authorized designees are hereby authorized to
execute the Second Amendment.
RESOLUTION NO. 12 -7388
PAGE 2
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 Second
Amendment shall be deemed to waive or modify any other provisions of the Mock -Up
Agreement and /or the Amendment to Space Shuttle Mock -Up Relocation Agreement.
SECTION 6. The City Clerk shall certify to the adoption of this Resolution.
APPROVED AND ADOPTED this 12 day of June, 2012.
Ari.i .
RO II' C. BROSSMER, Mayor
ATTEST:
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ADRIA M. JIM CMC
City Clerk
HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the
City of Downey at a regular meeting thereof held on the 12 day of June 2012, by the following
vote, to wit:
AYES: Council Members: Guerra, Marquez, Vasquez, Gafin, Mayor Brossmer
NOES: Council Members: None
ABSTAIN: Council Members: None
ABSENT: Council Members: None ,
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ADRIA M. J ME EZ, CMC
City Clerk
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RESOLUTION NO. 12 -7388
PAGE 3
ATTACHMENT 1
i
SECOND AMENDMENT TO SPACE SHUTTLE MOCK -UP RELOCATION AGREEMENT
SECOND AMENDMENT TQ
SPACE SHUTTLE MOCK -UP RELOCATION AGREEMENT
This Second Amendment to Space Shuttle Mock -Up Relocation Agreement (this "Second
Amendment ") is made as of this 13th day of June, 2012 (the "Second Amendment Effective
Date "), by and between THE CITY OF DOWNEY, a municipal corporation of the State 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 "). City and Developer are referred to
herein, individually, each as a "Party" and, collectively, as the "Parties."
RECITALS
A. City and Industrial Realty Group, LLC, a California limited liability company
( "IRG "), as predecessor -in- interest to Developer, entered into that certain 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 ").
B. The Original Space Shuttle Agreement was previously amended by that certain
Amendment to Space Shuttle Mock -Up Relocation Agreement dated as of March 15, 2012 (the
"First Amendment "), by and between City and Developer.
C. Concurrently with the First Amendment, City and Developer entered into various
other agreements, including, without limitation, (i) that certain Tierra Luna Development
Agreement dated as of March 15, 2012 (the "Tierra Luna Development Agreement "), and
recorded on April 20, 2012, as Instrument No. 20120588430 in the Official Records of Los
Angeles County, California, (ii) that certain Letter Agreement Regarding Effective Date dated as
of March 15, 2012 (the "Effective Date Letter Agreement "), and (iii) that certain Letter
Agreement Regarding Notice Addresses dated as of March 15, 2012 (the "Notice Addresses
Letter Agreement ").
D. The Original Space Shuttle Agreement, as amended by the First Amendment, the
Effective Date Letter Agreement and the Notice Addresses Letter Agreement, is referred to
herein as the "Space Shuttle Agreement." All defined terms used herein but not herein defined
shall have the meanings ascribed to such terms in the Space Shuttle Agreement, except as
otherwise expressly provided herein.
E. Concurrently herewith, Developer, as Licensor, and City, as Licensee, are
entering into that certain License Agreement (the "License Agreement "), pursuant to which
Developer is granting to City a non - transferable, revocable license for the sole purpose of
temporarily storing the Shuttle Mock -Up under a tent enclosed by a fence (referred to herein as
the "Tent" and the "Fence," respectively) on a portion of the "Developer Owned Property," as
--- that term is defined in the Tierra Luna Development Agreement.
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E. City and Developer now desire to enter into this Second Amendment to further
amend some of the rights and obligations specified in the Space Shuttle Agreement, all subject
and pursuant to the terms and conditions set forth in this Second Amendment below. The Space
Shuttle Agreement, as further amended by this Second Amendment, is hereinafter referred to as
the "Agreement".
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 Space Shuttle Agreement as of the Second Amendment Effective Date as
follows:
1. Developer's Obligations under the Agreement City and Developer acknowledge
and agree that, notwithstanding anything to the contrary contained in the Space Shuttle
Agreement, Developer's sole remaining obligation under the Agreement is to pay to City the
"Shuttle Consideration," as that term is defined in Section 3 of this Second Amendment.
Without limiting the generality of the foregoing, and without limiting Section 3 of this Second
Amendment, below, City acknowledges and agrees that Developer has satisfied all of its other
obligations under the Agreement, and Developer has no further obligation to provide, to pay for
or to obtain any permits or approvals in connection with any disassembly, relocation, storage,
monitoring, reassembly, preservation or insurance of the Shuttle Mock -Up, or any work related
thereto or recommended by Conservator, the Condition Assessment Survey, the Relocation Plan
rimarr or City.
2. City's Obligations under the Agreement. City and Developer hereby acknowledge
and agree that the "Assigned Location," as that term is defined in Section 1 of the License
Agreement, constitutes the "Relocation Site," as that term is defined in Section 3.3.3 of the
Original Space Shuttle Agreement, as amended and restated in Section 3 of the First
Amendment; provided, however, the reference to "June 1, 2012 ", as the same appears at the end
of Section 3 of the First Amendment (amending and restating Section 3.3.3 of the Original Space
Shuttle Agreement), is hereby deleted and replaced with a reference to "August 1, 2012 ". City
hereby accepts full responsibility, at City's sole cost and expense, for the relocation of the Shuttle
Mock -Up from the Storage Facility to the Assigned Location, and for the storage, monitoring,
further relocation (including, without limitation, to the "New Site," as that term is defined
below), reassembly, preservation and insurance of the Shuttle Mock -Up. Furthermore, City
acknowledges and agrees that, not later than the expiration or earlier termination of the License
Agreement, City, at its sole cost and expense, (a) shall identify a site (the "New Site ") for the
further relocation (whether permanent or temporary) of the Shuttle Mock -Up; (b) shall remove,
or cause to be removed, the Shuttle Mock -Up (together with the Tent, the Fence and all other
personal property of City) from the Assigned Location, the Developer Owned Property and the
"Developer Leased Property," as that term is defined in the Tierra Luna Development
Agreement; (c) shall repair, or cause to be repaired, all damage caused by such removal; and
(d) shall otherwise surrender the Assigned Location in the condition required by the License
Agreement (the foregoing obligations of the City being referred to herein, collectively, as the
"Shuttle Mock -Up Removal Obligations "). In no event shall the New Site (or any other site at
which City elects to relocate, reassemble and/or store the Shuttle Mock -Up on a temporary or
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permanent basis following the expiration or earlier termination of the License Agreement) be
located anywhere on the Developer Owned Property or the Developer Leased Property.
3. Consideration to City. Developer shall remain obligated to pay to City the sum of
One Hundred Thousand and No/ 100 Dollars ($100,000.00) (referred to herein as the "Shuttle
Consideration "), as contemplated by Section 5 of the First Amendment; provided, however,
notwithstanding anything to the contrary contained in Section 5 of the First Amendment,
(a) payment of the Shuttle Consideration shall be a covenant of Developer, but shall not be a
condition precedent to the effectiveness of the First Amendment, and (b) Developer shall pay the
Shuttle Consideration to City within five (5) business days after the mutual execution and
delivery of this Second Amendment. Any references in the First Amendment to the
consideration set forth in Section 5 thereof shall be deemed to refer to the Shuttle Consideration.
4. Remedies. Notwithstanding anything to the contrary contained in the Space
Shuttle Agreement, each Party hereby retains all rights and remedies that it may have under the
License Agreement, at law or in equity, with respect to any breach or default by the other Party
under the License Agreement. In addition, without limiting the foregoing in any manner, City
acknowledges and agrees that Developer shall have the remedies set forth in Section 6 of the
First Amendment with respect to a breach or default by City under the Agreement; provided,
however, Developer shall have the right to enforce specific performance by City of all of its
obligations under the Agreement, including, without limitation, the obligations described in
Section 2 of this Second Amendment, including the Shuttle Mock -Up Removal Obligations (and
not only the obligation to relocate the Shuttle Mock -Up as set forth in Section 3 of the First
Amendment). Furthermore, Developer acknowledges and agrees that City shall have the right to
enforce specific performance by Developer of its obligation under the Agreement to pay to City
the Shuttle Consideration.
5. Release.
(a) Mutual Release. As of the Second Amendment Effective Date, Each Party
(referred to herein as the "Releasing Party ") does hereby release and forever discharge the other
Party and its legal successors and assigns, members, officers, directors, shareholders, affiliates,
agents, servants, employees, attorneys, and insurers, and each of them (referred to herein,
collectively, as the "Released Parties "), of and from any and all claims, demands, damages,
debts, liabilities, obligations, and causes of action of any kind or nature whatsoever (collectively
"Claims "), whether known or unknown, that the Releasing Party ever had, now has, or may
hereafter have, against the Released Parties, arising out of, based upon, or relating to any act,
omission, event, matter or thing taken, not taken, occurring or arising, as the case may be, under
or pursuant to the Space Shuttle Agreement or with respect to the Shuttle Mock -Up or the
"Storage Facility," as that term is defined in the Original Space Shuttle Agreement, save and
except for the rights created or reserved by this Second Amendment (which, with respect to City,
consist of the obligations specified in Section 3.3.3 of the Original Space Shuttle Agreement, as
amended, and the other obligations specified in Section 2 of this Second Amendment, above, and
which, with respect to Developer, consist of the obligation to pay the Shuttle Consideration).
..� Notwithstanding anything to the contrary contained in this Second Amendment, the foregoing
release does not apply to any Claims or obligations of either Party under any other agreement
currently existing and in effect as between Developer and City, including, but not limited to, the
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License Agreement; the Tierra Luna Development Agreement; that certain Ground Lease dated
as of December 4, 2003, by and between City and IRG (as predecessor -in- interest to Developer),
as amended; and that certain that certain Real Property Purchase and Sale Agreement dated as of
November 30, 2003, by and between City and IRG (as predecessor -in- interest to Developer), as
amended.
(b) Waiver of Civil Code § 1542. Each Releasing Party acknowledges that it
has been informed by its attorneys of the provisions of Section 1542 of the Civil Code of the
State of California, and does hereby expressly waive and relinquish, only to the extent otherwise
released by Section 5(a) of this Second Amendment, above, all rights and benefits such
Releasing Party has or may have, or had under said Section 1542, which reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor.
(c) Discovery of Additional Facts or Law. Each Releasing Party
acknowledges that it is aware that it may hereafter discover facts or law different from or in
addition to those which it now knows or believes to be true in respect to the Claims released
under Section 5(a) of this Second Amendment, above, and such Releasing Party hereby agrees
that this release shall be and remain in effect as a complete, general release, only as to the
matters otherwise released in said Section 5(a), notwithstanding any such additional facts or law.
(d) No Assignment of Claims. Each Releasing Party represents and warrants
to the other Party that such Releasing Party has not heretofore assigned or transferred or
purported to transfer or assign to any person, firm, or corporation, any Claims herein released.
Each Releasing Party hereby agrees to indemnify, defend and hold harmless the other Party and
such Released Parties against any Claims, including attorneys' fees actually paid or incurred,
arising out of or in connection with any such transfer or assignment or purported or claimed
transfer or assignment.
6. Counterparts. This Second 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.
7. Governing Law. This Second Amendment is made under and shall be construed
pursuant to the laws of the State of California.
[STGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment the
date and year first above written.
"CITY"
CITY OF DOWNEY,
a Municipal corporation of the State of California
By:
Name: R C. Brossmer
Its: Mayor
"DEVELOPER"
PCCP IRG DOWNEY, LLC,
a Delaware limited liability company
By: PCCP LB IRG Downey, LLC
its Managing : -• ber
B
Name:
Its: Nicholas V. Colonna
Authnri7Ad SiQnArny
IRG DOWNEY, LLC,
a California limited liability company
By: IRG III, LLC
By: S L Properties, Inc.
By.
Name: S ft 4. c l& T 6
Its: M A 1✓A 6 s N� 1116 Sri Q 6/l
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