HomeMy WebLinkAbout1. PLN-17-00119 - 12214 Lakewood BlvdSTAFF REPORT
PLANNING DIVISION
DATE: AUGUST 2, 2017
TO: PLANNING COMMISSION
SUBMITTED BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT
REVIEWED BY: DAVID BLUMENTHAL, CITY PLANNER
PREPARED BY: DAVID BLUMENTHAL, CITY PLANNER
SUBJECT: PLN-17-00119 (DEVELOPMENT AGREEMENT AMENDMENT) – A
REQUEST TO AMEND THE TIERRA LUNA DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF DOWNEY, PCCP IRG
DOWNEY, LLC AND IRG DOWNEY, LLC
LOCATION: 12214 LAKEWOOD BLVD
ZONING: DOWNEY LANDING SPECIFIC PLAN
REPORT SUMMARY
The City of Downey previously entered into a Development Agreement with the developer of the
Promenade at Downey shopping center. The center is now 94% leased; as a result, the
developer is working on conceptual plans for the next phase of development. Accordingly, they
are asking to amend the Development Agreement to streamline the review of new tenants and
to eliminate the need for a Fire Station on site. Based on the analysis contained in this report,
staff is recommending the Planning Commission adopt the following titled resolution:
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
DOWNEY RECOMMENDING THAT THE CITY COUNCIL APPROVE AN
AMENDMENT TO THE TIERRA LUNA DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DOWNEY, AND PCCP IRG DOWNEY, LLC AND IRG
DOWNEY, LLC TO AMEND GENERAL DEVELOPER COVENANTS FOR
COMMERCIAL RETAILERS AND DEVELOPMENT OF A FIRE STATION.
BACKGROUND
The City of Downey (“City”) sold the property now known as the Promenade at Downey
shopping center to PCCP IRG Downey, LLC, and IRG Downey, LLC (collectively “Developer”)
on November 30, 2003. The City and the Developer entered into a Development Agreement for
the Promenade at Downey shopping center on March 15, 2012. The Development Agreement
dictated the land to be developed, the timeline for development, the scope of development and
covenants on various aspects of the development.
Agenda Page 1
12214 Lakewood Blvd. – PLN-17-00119
August 2, 2017 – Page 2
“Development Agreements” are tools used by government agencies and private parties to
strengthen the public planning process, encourage private participation in comprehensive
planning, and reduce the economic risk of developments. The Legislature of the State of
California adopted the "Development Agreement Statute" Sections 65864, et seq., of the
Government Code. The Development Agreement Statute authorizes municipalities to enter into
an agreement with any person having a legal or equitable interest in real property, to provide for
the development, of such property, and to establish certain development rights therein.
The partnership between the City and Developer produced the Promenade at Downey shopping
center, which hosts a 656,000-square-foot shopping center and entertainment district, and has
emerged as the area’s new gathering spot and destination by merging retail, dining, and
entertainment use on one site. The development also created 1,000 jobs through construction
and continual operation of retail and restaurants. The Developer wishes to amend the
Development Agreement, specifically the general developer covenants for commercial retailers
and development of a fire station.
The Planning Commission, acting in an advisory capacity, must review the proposed
amendments to the Development Agreement to ensure that the amendments are consistent
with the City’s General Plan and the Downey Landing amended Specific Plan. Based on its
consideration of the proposed amendments to the Development Agreement, the Planning
Commission shall make a recommendation to the City Council. The City Council will consider
the Planning Commission’s recommendations in reviewing the proposed amendments. Under
state law, to approve an amendment to a Development Agreement, the City Council must find
that the proposed amendments are consistent with the City’s General Plan and the Downey
Landing amended Specific Plan (Government Code section 65967.5(b)). Pursuant to these
requirements, notice of the pending public hearing was published in the Downey Patriot and
mailed to all property owners within 500’ of the subject site on July 20, 2017.
DISCUSSION
The Developer of the Promenade also leases the 21 acres of vacant land adjacent to the
Promenade fronting Bellflower Boulevard. The Developer wishes to start the conceptual design
of the vacant 21 acres to compliment the Promenade. With this in mind, in addition to the
completion of the Promenade the Developer has discussed provisions of the Promenade
Development Agreement that may no longer be relevant.
The Development Agreement allowed for the development of an “Enhanced Project” or “Base
Project”. The Enhanced Project called for development of a large format retail development,
commercial development, theater development, office development, and the development of a
Hotel. It also made the Developer eligible for Development Fee Rebates equaling 50% of City
permit fees from Building, Planning, Public Works, Fire and Police departments; in addition to a
grant of up to $1,000,000 if the Promenade sales tax exceeded $2,500,000 in a year.
Based on the economy, the retail market, and the region the Developer chose to build the Base
Project. Thus, the current Promenade development consisting of a 656,000-square-foot
shopping center and entertainment district with restaurants such as; Gaucho Grill, Green Olive,
Benihana, Lazy Dog, Bar Louie, Ruby’s Diner, California Fish Grill, Chipotle, Five Guys Burgers,
Fresh Griller, and Panera Bread to name a few; and retailers such as TJ Maxx/Homegoods,
Active Ride, Carter’s and Oshkosh B’Gosh; in addition to Cinemark, 24 Hour Fitness, ULTA,
Skechers, Chase Bank, PAC Dental and Floor & Decor reflects the Base Project.
Agenda Page 2
12214 Lakewood Blvd. – PLN-17-00119
August 2, 2017 – Page 3
Also, as depicted in Exhibit “H” of the Development Agreement the Developer was bound to
locate certain retailers, restaurants, and specialty stores. The Developer has complied with the
intent of the exhibit, has leased 94% of the Promenade and long-term leases with the existing
tenants. Thus, the exhibit has served its purpose and is no longer relevant.
The Development Agreement also required the Developer to build the City a new Fire Station on
the adjoining parcel to the Promenade. The station was to be 8,000 square feet, with amenities
and facilities that are the functional equivalent of those at a typical fire station headquarters
existing at the time of the development of the Fire Station, on a site of approximately 38,000
square feet. Since then the City has separately started a comprehensive facility assessment
and Master Plan for all of the City’s fire stations, to identify future modernization and expansion
opportunities of those fire stations. The City has procured the services of West Group Designs,
a firm with facility master planning expertise, especially regarding fire stations. This master
planning work is underway with the City’s Fire Department.
DEVELOPMENT REVIEW COMMITTEE
This request did not require review by the City’s Development Review Committee.
ENVIRONMENTAL ANALYSIS
Staff has reviewed the proposed application for compliance with the California Environmental
Quality Act (CEQA). Upon completion of this review, it has been determined that this request is
categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing
Facilities). Categorical Exemptions are projects, which have been determined not to have a
significant effect on the environment and have been exempted from the requirements of the
California Environmental Quality Act. Class 1 consists of projects that involve no or negligible
expansion of the existing building or use. Inasmuch as amending the Development Agreement
will not alter the permitted uses for the site, result in the construction of new buildings, or
increase the intensity of the existing uses, staff feels that this request qualifies for this
exemption.
FINDINGS
In order to approve the amendment to the Development Agreement, the following two findings
need to be adopted:
A. The requested amendment to the Development Agreement is consistent with the
City’s adopted General Plan.
The subject site has a General Plan Land Use Designation of Mixed Use, which is
intended to provide a variety of uses (retail, office, restaurant, entertainment) within
close proximity to each other. Amending the development agreement achieves this goal
by allowing the continual growth of the Promenade at Downey shopping center. This
amendment will also streamline the review process for new tenants, which is consistent
with General Plan Policy 9.4.2, which states, “Streamline the development review
process.”
Agenda Page 3
12214 Lakewood Blvd. – PLN-17-00119
August 2, 2017 – Page 4
B. The requested amendment to the Development Agreement is consistent with the
Specific Plan.
The development agreement is for the construction and operation of the Promenade at
Downey shopping center. While the proposed change streamlines the review process
for new businesses that want to operate in the shopping center, it does not alter the
permitted uses. Additionally, no changes will occur to building locations, parking
requirements, landscaping, or other development standard.
CORRESPONDENCE
As of the date that this report was printed, staff has not received any correspondence regarding
this application.
CONCLUSION
Based on the analysis contained within this report staff is concluding that amending the
Development Agreement would be a prudent measure to ensure the continual growth of the
Promenade at Downey shopping center. Furthermore, staff is concluding that the proposed
amendment is consistent with the General Plan and the Downey Landing Specific Plan. As
such, staff is recommending that the Planning Commission recommend that the City Council
approve an amendment to the Tierra Luna Development Agreement between the City of
Downey and PCCP IRG Downey, LLC and IRG Downey, LLC to amend general developer
covenants for commercial retailers and development of a fire station.
EXHIBITS
A. Maps
B. Draft Resolution
C. Tierra Luna Development Agreement
D. Amendment to Tierra Luna Development Agreement
Agenda Page 4
12214 Lakewood Blvd. – PLN-17-00119
August 2, 2017 – Page 5
MAPS
Location
Aerial Photograph
Agenda Page 5
RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
DOWNEY RECOMMENDING THAT THE CITY COUNCIL APPROVE AN
AMENDMENT TO THE TIERRA LUNA DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF DOWNEY, AND PCCP IRG DOWNEY, LLC AND IRG
DOWNEY, LLC TO AMEND GENERAL DEVELOPER COVENANTS FOR
COMMERCIAL RETAILERS AND DEVELOPMENT OF A FIRE STATION.
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS:
SECTION 1. The Planning Commission of the City of Downey does hereby find,
determine and declare that:
A. On November 30, 2003, the City of Downey (“City”) sold the property now known as the
Promenade at Downey shopping center to PCCP IRG Downey, LLC, and IRG Downey,
LLC (collectively “Developer”); and,
B. On March 15, 2012 the City and the Developer entered into a Development Agreement
for the Promenade at Downey shopping center; and,
C. The City and the Developer now wish to amend the terms of the Development
Agreement; and,
D. On July 20, 2017, notice of the pending application published in the Downey Patriot and
mailed to all property owners within 500' of the subject site; and,
E. The Planning Commission held a duly noticed public hearing on August 2, 2017, and
after fully considering all oral and written testimony and facts and opinions offered at the
aforesaid public hearing adopted this resolution.
SECTION 2. The Planning Commission further finds, determines and declares the
environmental impact of the proposed project has been reviewed and has been found to be in
compliance with the California Environmental Quality Act (CEQA) and is categorically exempt
from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities).
SECTION 3. Having considered all of the oral and written evidence presented to it at
said public hearings regarding the amendment to the development agreement, the Planning
Commission further finds, determines and declares that:
1. The requested amendment to the Development Agreement is consistent with the City’s
adopted General Plan. The subject site has a General Plan Land Use Designation of
Mixed Use, which is intended to provide a variety of uses (retail, office, restaurant,
entertainment) within close proximity to each other. Amending the development
agreement achieves this goal by allowing the continual growth of the Promenade at
Downey shopping center. This amendment will also streamline the review process for
new tenants, which is consistent with General Plan Policy 9.4.2, which states,
“Streamline the development review process.”
Agenda Page 6
Resolution No.
Downey Planning Commission
11215 Lakewood Blvd. – PLN-15-00182
June 1, 2016 - Page 2
2. The requested amendment to the Development Agreement is consistent with the
Specific Plan. The development agreement is for the construction and operation of the
Promenade at Downey shopping center. While the proposed change streamlines the
review process for new businesses that want to operate in the shopping center, it does
not alter the permitted uses. Additionally, no changes will occur to building locations,
parking requirements, landscaping, or other development standard.
SECTION 4. Based upon the findings set forth in Sections 1 through 3 of this resolution,
the Planning Commission of the City of Downey hereby recommends that the City Council of the
City of Downey approve the amendments to the Development Agreement, which are outlined in
Exhibit A.
SECTION 5. The Secretary shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 2nd day of August, 2017.
Patrick Owens, Vice Chairman
City Planning Commission
I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning
Commission of the City of Downey at a regular meeting thereof, held on the 2nd day of August,
2017, by the following vote, to wit:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
ABSTAIN: COMMISSIONERS:
Mary Cavanagh, Secretary
City Planning Commission
Agenda Page 7
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TITLE INSORANCE CO. AS AN ACCOMMODATION ONLY,
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RECORDING RE4Q BY
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CITY OF DOWNEY
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from the payment of recording fee pursuant to
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DEVELOPMENT AGREEMENT
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Agenda Page 9
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TABLE OF CONTENTS
Page
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2.1.2 Term with Enhanced Project Election ...................04 r y...,. 4 i 1 y 1 a 1 a a l r i 1 y 111 i i.....
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2 .2 Provisions S 4{ i i n Expiration of Term .......................................... r.. rrrri
DEV F TFfE PROPERTY ........ iiiiii..... its.. +. .............. ........................44444.11
3.1 App 1 b Regulations; Vested. Right to eve p ....... a a ..................... . ...... +..... •
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3.2 Tentative Subdivision Maps ....... aaa....... #.iii .......................... ...................iiiiii......12
3 +3 Processing of Applications and rmit ............................................ ....rtrt4&& &.......1
3.4 Other Governmental Per mit s• .. .............................a+ aaa3. 4....... .......................... +...1
3.5 Subsequent General Plan Amendments and Zone Changes ...............aaa.......1.....1
3.6 Timing of Development ....#.#......#...#.... MyyyyyyMyyMy....... ....1....i.i .............. # #... , ..........1.
3.7 Reservations of Authority .... iilii............iiiiiiiii..... ...............................................1
3.7.1 Consistent Future City RegulatiOns ..aa aii# i## iiiiii. !! + +..rrrrrr # # # # #iyrtirtiiia.iii #iiiiii 1
3.7.2 Overriding State and Federal Laws and Regulations ,5,,,,,,,,,,,,555....... + +...140
3.7.3 Public , ,Health and , ,,,,,,,,,,,,,,,,,y....____._, ......,,,,111,,,,11„ ,. +..111111.....1.4
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8 .1 Election to Require Deve `F Station Sit ... ass .. ................. + + ++
8 .2 Design and Construction '`st s ................... iii................ ...... ...............................
8. Subdivision 11 Fi S tat i o n Site ...........................iii ............. ............................... 2
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8 . 5 Conveyance Fire Station and Fire Station Site to Ci .... .......................... a 62
9. DEFAULT, REMEDIES, AND TERMfN TI N .......... # #,,,,, 2
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DEVELOPMENT AGREEMENT
This TI NA LUNA DEVELOPMENT' IT' GRE M 1T ( "Agreement ") is entered into
this 1 h day of March, 2012, by and among the CITY of I oWN'EY, a California charter city
City" ) rid PCCP IRG L o WN Y, LLC, a Delaware 'l im ited liability company, as to are
undivided. ° interest, and I G DOWN , LL C, a Cali.forrria limited liability company, as to
an undivided 10 % interest (collectively, " City and Developer are collectively
referred to herein. as the "Parties" and individually as a "Party."
REC A. L S
A . To stren the public planning process, encourage private participation in
comprehensive planning, and reduce - the economic risk of development, the Legislature of the
State of California adopted the " Agreement Statute," Sections 65864, a seq., of
the Government Code. The Development Agreement Statute authorizes City to enter into an
agreement with airy - person having a legal or equitable interest in real property and to provide for
the developmenten,t f such property and to establish certain development rights therein.
B . Developer orris that certain real property consisting of approximately 58 acres of
lard area located at 12214 Lakewoodood Boulevard in the Downey Landing Specific Plan Area,
within the City of Downey, ney, Coun of Los Angeles, State of California., as more particularl
described in the legal description attached hereto as Exhibit "A" and depicted o Exhibit "B" the
Developer wire Property ").
C. Developertoper holds a leasehold interest in that certain real . property consisting of
approximately 20 acres of land area located at 1.2214 Lake Boulevard in the Downey
Landing Specific plan Area, within the City of Downey, ney, County ofLos Angeles, State of
California, as more particularly described in the legal description attached as Exhibit T" and
depicted on Exhibit "W' (the " Leased Property" The Developer Owned Property
and the Developer Leased Property abut, each other.
D . The Developer Owned Property and the Developer Leased Property are
collectively described as th "Property." The Property is depicted on Exhibit „ *11
E. The Amended 'Downey Landing Specific plan ("Specific Plan") allows for the
development of the Property with a mixed -use commercial development consisting of ,up to
1,035,000 square feet o f non- theater commercial ret 11 door area; an add itiona1 65,000 square
feet of commercial/retail floor area for a theater use, 300,400 square feet of office floor area; and
116 square feet of hotel floor area (150 hotel rooms). The Specific Plan contemplatesplates that,n
subject to City's ap if placed on the Devel Propertyner an additional 200pppp
square feet of office floor area may be incorporated into the proposed developmentent o long as the
retail floor area i decreased by 200,000 square feet and the total square footage of the proposedOF .
development does not exceed 1,516,000 square feet. Development of the property in any
manner consistent with the Specific Plan and the remaining Existing Land Use Regulations is
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1*
K Through this Agreement, the City has committed to provide certain vested rights
to Developer in exchange for i the development of the Base Project on the Property, and ( ii )
Developer'sloper's provision of certain additional public benefits to City.
G. Developer desires to develop th e Property in a spccific configuration that is
consistent with the Specific Plan, consisting of the Large Format Retail Development, the
Remaining Commercial Development, the Theater Development, nt, th+ office Development, and
the Hotel Development. I eloper's development of the Property within the parameters set
forth in this Recital, and in a manner consistent with the Existing Band Use Regulations, i
hereinafter referred to as the "Enhanced Project."
H. Through this Agreement, the City has committed to provide certain additional
inducements and benefits to Developer in exchange for the development of the Enhanced Project
on the 'Property.
1. This Agreement is intended to be, and shall. be construed as, a development
agreement within the meaning of the Development Agreement
Statute. This Agreement will
eliminate uncertainty in planning for and secure the orderly development of the Property, ensur
a desirable and functional community environment, provide effective and efficient development
of public facilities, infrastructure, and services appropriate for the development of the Property,
assure attainment of the maximum effective utilization of resources within City, and provide
other significant public benefits to City and its residents by oth achieving the goals and
purposes of the Development Agreement Statute. In exchange for these benefits to City
Developer desires to receive the assurance that it may proceed with development ofthe Property
in accordance with the terms and conditions of this Agreement and the Existing Land U
Regulations as defined below), all as more particularly set forth herein.
J. City has determined that the Base Project and, the Enhanced Project are consistent
with the goals and policies -of the General Plan and imposes appropriate standards and
requirements with respect to the development ofthe Property in order to maintain the overall
quality of life and of the environment within City. Pryor to its approval of this Agreement, City
considered the environmental impacts of the Base Project and the .enhanced Project and
completed its environmental review of the Based Project and the Enhanced Project,
K. on December 2 2011. the Downeyney City Planning Commission "Tannin
Commission") held a public hearing on this Agreement, made certain findings and
determinations with respect thereto, and recommended to the City Council of the City of
Downey ("City Council" that the Agreement he approved.
r
L. on January lo, 2012, the City Council held a public hearing on this Agreement,
considered the recommendations of - the Planning Commission, and found that this Agreement is
consistent with General flan. In accordance with the Development Agreement Statute and
applicable laver, on January 24, 2012, the City Council adopted ordinance No. 05-10 approving
this Agreement.
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AGREEMENT
used upon the foregoing Recitals, which are incorporated herein by this reference, and
for good and valuable. consideration, the receipt and sufficiency of which is h
acknowledged, City and Developer hereby agree as follows:
1 . D FIN.1 ONS
The following - terms when used in this Agreement shall have the meanings set forth
below:
1.1 The terra "Action" shall mean any proceeding between City and Developerloper
seeking enforcement of any o the terms and provisions ofthis Agreement.
1.2 The term "Agreement' shall mean this Development Agreement by and among
City and .Developer.
t.3 The term "Annual Review" shall have the meaning ascribed in Section 10.1 o
this Agreement.
1.4 The - term " Lave" shall mean Title 11, United States Code, and any
other or successor state or federal statute relating to assignment for the benefit of creditors,
appointment of a receiver or trustee, bankruptcy, en mp siti n., insolvency, moratorium,
reorganization, or similar matters.
1.5 The term "Bankruptcy Proceeding" shall mean any proceeding, whether
voluntary or involuntary, under any Bankruptcy Law.
1.6 [RESERVED]
1.7 The term "Base Project" shall mean Developer's development of the Property
with the parameters set forth in Recital E, and in a manner otherwise consistent with the
Existing Land Use Regulations.
1 .8 The term TEQA" shall mean and refer to the California Environmental Quality
Act, Public Resources Code Sections 21000, et seq.
L9 The terra "Certificatio of Occupancy" shall mean A Certificate of Occupancy as
defined in the Uniform Building Cede, 2010 Edition, published by the International Conference
of Building Officials, as may be amended from time to tine.
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1.10 The term " Certification " shall mean a written certification provided on or before
February 15 of each year during he Terra signed b Developer's ana ire ember (g g y g
certifying its compliance with the operating covenant and all other covenants and restrictions set
forth in Article 6 fo each Com Year for which D seeks a Grant if Developer
males the electron authorized by Section 6 1, • provided however that this portion of the
Certification shall not be required unless Deve elects to develop the Enhanced e'r'ect underpJ
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Section 6.1 of this Agreement, and h demonstrating Developer's good faith compliance all
terms of this Agreement for purposes of conducting the annual review required by Section 10.
1.11 The terry "City" shall mean the City of Downey, a California Charter City.
1.12 The term "City Council" shall mean the City Council of the City of Downey.
1.13 [RESERVED]
1.14 The term "pity Fees and Charges" shall mean Development Fees and City
Processing Fees, to - the extent such fees are collected by and on behalfof City.
1.15 [RESERVED]
1.16 The term "City Parties" shall mean City, City Council, Cit officds, employees,
attorneys and agents. I
1.17 The term "City Processing Fees" shall mean all fees charged by and on behalf of
the City in connection with the processing, review, and consideration of applications for
development, including any periodic updates thereto to reflect changes in the costs of processing,
review, and consideration of applications..
1.18 The term "Claim " shall mean any claim., loss, cost, damage, expense, liability,
Herl, action, cause of action (whether in tort, contract, under statute, at law, in equity or
otherwise), charge, award, assessment, fire or penalty of any kind including consultant and
expert fees, .regal Costs, and expenses and investigation costs of whatever kind or nature), and
any judgment. Without limiting the foregoing, "Claims" include any matter that results or arises
in any wa from any ofthe following:
i the noncompliance by Developer or its contractor with
any applicable local, state and/or federal lair or regulation, including, without limitation, any
applicable federal and/or state labor laws or regulations (including, , ithout limitation, if
applicable, the requirement to pay stag and/or federal prevailing wages and hire apprentices); ( 2 )
the , implementation of Labor Code Section 1781 and/or Davis-Bacon, o any other similar la. w or
regulation; and/or failure Developer to provide any required disclosure or identification as
required by Labor Code Section 1781 and/or Davis Bacon, as the same may be amended from
time to time, or any other similar lave or regulation.
1.19 [RESERVED]
1.20 The tern "Compliance Year" shall mean and refer to a period of one yeah. The
first Compliance Year commences on the Operation Period Commencement Date and ends on
the anniversary of the Operation Period Commencement .date. The second through twentieth
Compliance ears follow thereafter. 4
1.21 The tern "Defaulting `arty " shall have the meaning set forth in Sectlon 9. 1.,
below.
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1.22 The terra "Davis-Bacon" shall mean , 40 U.S.C. Section 3141., et seq., and the
regulations promulgated thereunder set forth at 29 CF R. Part 1, as the same may be amended
from time to time, or any other similar lave or regulation.
f . . The tern "Developer" shall mean the individual or entity which owns fee title to
the Developer Owned Property, or any portion thereof, and holds the leasehold interest in the
Developer Leased property, or any portion thereof, and any permissible successor or assignee to
the rights, powers, and responsibilities ofsaid individual r entity hereunder, ire accordance with
Section 12 of this Agreement.
1.24 The term "Developer Leased Property" shall mean that certain real property that
abuts the Developer Owned Property, and consists of approximately twenty acres ofl n
area located at 1.221.4 Lakewood Boulevard in the Downeyney Landing Specific Plan Area, within
the City of Downey, County of Los Angeles, State of California, as more particularly described
in the legal description attached as Exhibit "C" arid. depicted on Exhibit "D,"
1.25 The term "Developer Owned Property" shall mean that certain real property
consisting ofapproximately fifty eight acres of land area located at 12214 a .e o d
Boulevard 1n. the Downey Landing Specific Plan Area, within the City of Downey, County of
Los Angeles, State of California, as more particularly described in the legal description attached
hereto as Exhibit " and depicted on Exhibit " (the "Developer Owned Property").
1.26 The tern "Developer Representative " shall have the meaning set forth in
Section 5.5.
1..27 The terra "Development Agreement Statute" shall mean Sections 65864 through
65869.5 of the California Government Code, as the same may be amended from time to time.
1.28 The term "Development Fees" shall mean all fees collected by and on behalf of
the City that are enacted by the City at an time pursuant to the Mitigation Fee Act, Government
Code sections 66000 et s.
1,29 The term "Effective Date" shall mean March 15, 2012.
1.30 The terra "Enhanced Project" shall mean Developer's development of the
Property within the parameters set forth in Recital G, and in a manner otherwise consistent with
the Existing Land. Use Regulations.
1.31 The term "Environmental Losses" means any and all claims, demands, damages,
losses, liabilities, obligations penalties, fines, actions, causes of action, judgments, suits,
proceedings, costs, disbursements and expenses, including, without limitation, attorney fees,
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disbursements and costs of attorneys, environmental consultants and other ex and all
foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever that
may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded
against, Cit y y ydirectlyorindirectly relating to r arising from any Environmental Matters arisin
daring or from Developer's ownership or use ofthe Property.
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1.32 The term "Envir Matters" means Q - the presence of Hazardous
Substances on ire, under, from or affecting all or any portion or the Property; U the storage,
holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or
transportation of any Hazardous Substances on ire, under, from or affecting all or any portion of
Property; (iii) the violation of any law, rule, regulation, Judgment, order, p rtnit, license.
agreement, covenant, restriction, requirement or the like her Developer , its agents or contractors,
relating to or governing in any gray Hazardous Substances on, in, sunder, from or affecting all or
any portion of Property; i the failure of Developer, its agents or contractors, to properly
complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations,
covenants and the like in connection with Developer's activities on all or any portion of the
Property; the implementation and enforcement by .Developer, its agents or contractors of any
monitoring, notification or other precautionary measures that may, at any lime, become
necessary to protect against the release, potential release or discharge of Hazardous Substances
on, in, under, from or affecting all or any portion of the Property; v the failure o Developer, its
agents or contractors, in compliance wi th all applicable Environmental Laws, to lawfully
remove, contain, transport or dispose of any Hazardous Substances existing, stored or generated
on, i n., under or from all or any portion of the Propert ; and (vii) any investigation, inquiry, order,
hearing, action or other proceeding by or before any Governme' ntal Agency in connection with
any Hazardous Substances ors, ire, under, from or affecting all or any portion of the Property or
the violation of any Environmental Law relating to all or any portion of the Property.
1.33 The terra "Existing Lard Use Regulations' skull mean the General flan., the
Specific Plan, the MOB. (which is part of the Specific Plan) the Zoning Code, the Municipal
Code, Maps, and all other ordinances, resolutions, rules, and regulations of City governing
development and use of the Property in effect as of the Effective fate, including without
limitation the permitted rises of the Property, the density and intensity of use, maximum height
and size of proposed buildings, provisions for the reservation and dedication of land for public
purposes, and, subject to the following sentence, construction standards and specifications. The
term "Existing Land Use Regulations" does not include the Uniform Codes pertaining to
construction adopted for general application. Yu City. The Specific 'Plan. provides that in the event
of a conflict between the provisions of the Specific Plan and the provisions of the Zoning Code,
the provisions of the Specific Plan control.
U 1.34 The term 'Equity Interest" shall mean all or any part of any direct or indirect
e or ownership interests ) (whether stock, artnershi interest, beneficial interest in a trust,p p
M membership interest, or other interest of an ownership orequity nature in any entity at any tier
0
of ownership that directly o.r indirectly o ern or holds ownership or equity interest in a
Verson.
1.3 [RESERVED]
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1.36 The term "Fire Station shall mean a minimum of an eight thousand ( 8,000 )
square foot portion of Building l that is required to be preserved in place by the MOA, The pyre
Station shall be appointed with amenities and facilities that are the functional equivalent of those
at a typical fire statl.on headquarters existing at the tirne of the development ofthe Pare Station.0
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1.37 The Term "Fire Station Construction Costs' shall mean an amount not to
exceed Four Million Four Hundred Thousand Dollars ($4,400,000), including but not limited to
construction costs, soft costs, financing costs and a developer fee of ten percent (10%).
e '1-38 The term „ Fire Station easel shall mean a lease by Developer to City of the
Fire Station and the Fire Station Site upon the following material terms: 1 initial rental rate
Linder the Fire Station. Lease shall equal five percent % of the Fire Station Construction Costs
incurred by Developer in the construction of the Fire Station; and 2 City shall, receive rights of
access over the Property sufficient to meet the reasonable access and response time needs of the
Downey .Fire Department, as reasonably determined by the Fire Chief of the Downeyey Fire
Department.
1.39 The term "Fire Station Site" shall mean a site within, that portion ofthe Property
comprising approximately 38 ,000 square feet, together with associated parking, depicted on
Exhibit "F
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1.40 The term "Floor Area" shall mean the total area of all floors contained within the
exterior walls of all buildings on the Property.
1.41 The term 'General Flan" shall mean and refer to the Cit ofDowney General
Plan, as said General Plan exists as of the effective Date.
1.42 The term "Grant Amount" means up to one Million Dollars per year
1,000,000.00) that, upon the satisfaction of certain conditions and requirements related to the
development of the Enhanced Project, shall be paid by Qity to Developer,, pursuant to the terms
and conditions of this Agreement, commencing on June 3 of the first year after w the
Required, operations are established and, maintained on the property, and, continuing -for nineteen
years thereafter; provided, however, that the Grant Amount shall not be payable on June
following any calendar year daring which the Required operations are not maintained,
1,43 The term " Development" shall mean 11 6,000 square feet offloor area 1
hotel rooms) of development for hotel uses under the Enhanced Project Which shall be operated
under one of the brand names set forth. in Exhibit "I" or such other brand name approved by City,
in its sole and absolute discretion; provided, ho that the City Manager shall have the
authority to grant up to a ten percent (10%) variance in the amount of hote square footage and/or
the number ofhotel rooms, and in the event such a. vari ance j s granted. the re sult ing dev e lopme nt
shall constitute "Hotel Development"' under - this Agreement.
1 .44 The terra "Hazardous Substances" means and refers to, without limitation,
substances defined as " hazardous su " hazardous material," " substance, "so
waste," or "pollutant or contaminate" in the Comprehensive Environmental Response,
Compensation and Liability Act of. 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the
Toxic_ Substances Control Act "TSCA" '[15 U.S.C. Sections 2601, et seq.]; the Hazardous
Materials Transportation Act, 49 U.S.C. Sections 1 et seq.; the Resource Conservation and
Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United Mates
D epartrnent of Transportation (DoT) Table (49 CFR 172, 1. 0 1. ], or by the EPA, or any successor
authority, as hazardous substances [40 CFR Fart 3021; an those substances defined as
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hazardous waste" in Section 251 of the California Health and Safety Code or, as 'hazardous
substances" in Section 25316 of the California Health and Safety Code; other substances,
materials, and wastes that are, or become, regulated or classi - Fled as hazardous or toxic under
federal, state, or local laves or regulations and, in the regulations adopted pursuant to said laws,
and shall also include, without limitation asbestos, polychlorinated biphenyl, flammable
explosives, radioactive material, petroleum products, and substances designated as hazardous
substance pursuant to 33 U.S.C. Section 1321 or listed pursuant to 33 U.S.C. Section 131
1,45 The terra "Improvements" shall mean all commercial i meats,
landscaping, parking, and other related appurtenances to be constructed, ors, under, about or
around the Property for the uses authorized by this Agreement.
1 .46 The term „ Institutional Lender" shall mean any ofthe Following; a A bank
State, Federal or foreign), trust company in its individual or trust capacity), insurance company,
credit union, savings bard . (State or Federal), pension, welfare or retirement fund or system, real
estate 'investment trust or an umbrella partnership or other entity of which a areal estate
investment trust is the majority owner), Federal or State agency regularly making or
guaranteeing mortgage loans, investment bank or a subsidiary of a Fortune Soo company (such
as AT &T Capital Corporation
or General Electric Capital Corporation); b any Person that is a
wholly owned subsidiary of or is a combination of any one or more of the Persons described in
W" of this Section.
1,47 [RESERVED]
1.48 [RESERVED]
1,49 [RE-4 SERVED]
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1,0 The term " Large Format Retail development" shall mean at least a total of
275,000 square feet of floor area of retail development spread over at least two retail
establishments, each of whicb comprises at bast 90,000 square feet of floor area., which shall b
constructed if Developer makes the election under Section 6.1 to build the Enhanced :Project.
1.51 The terra 'Legal Costs" shall mean, for any Person, all actual and reasonable
costs and expenses such Person incurs in any legal proceeding or other matter for which such
Verson 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
party 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 review or
approval that the other Marty requests of such Person. All references to Legal Costs shall include
the salaries, benefits and costs of ire -house or contract general counsel to City or Developer,
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 ore -tenth of are hour, in addition to Legal
Costs of outside counsel retained b City or .Developer, respectively, for such ratter.
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1.52 The terra "Maintenanceen.ance fici n " shall mean an occurrence of an adverse
condition on any area of the property that is subject to public vier in contravention of the
general maintenance standard described in Section 5.6.1, below.
1.53 The tern "Maximum Fee Sharing Amount " shall mean three rnilhon eight
hundred thousand dollars ,00,000.
1.54 The term "MOA" means that Memorandumm o Agreement by and among
National Aeronautics and Space Administration, the general Services Administration, the
California State .historic Preservation officer and the City ofDowney.
1.55 The term "Mortgage" " shall mean a mortgage, deed of trust, sale and leaseback
arrangement, or any other form ofconveyance in which the Property, or a portion thereof or
interest therein, is pledged as security, and contracted for in good faith and for flair value.
1.56 The term "Mortgagee" shall mean the holder of a beneficial interest under
a
Mortgage, or any successor or assignee of any such Mortgagee.
1.57 The term "Municipal Code" shall mean and refer to the City of Downeyy
Municipal Code,
as - the Municipal Code exists as of the Effective Bate,
1. [RESERVED].
1.59 The term "Non- Defaulting :arty" shall have the mean ing set forth 1n Section 9. 1,
below.
L60 The tern, "Office Development's shall mean 300,000 square feet of floor area of
development for office uses.
1.61 The term "Operating Period " shall man the period commencing upon the
Operation Period Commencement Date and ending on the twentieth (20 anniversary thereof..
1,62 The term "Operation Period Commencement Date" shall mean and refer to the
date on which the Required operations -are established.
1.63 The term "Parties" shall mean Developer and City, and their respective
successors and assi
1.64 The term "Person" shall mean any association, corporation, government,
individual, joint venture, joint -stock company, limited liability company, partnership, trust,
unincorporated organization
or other entity of any kind,
1,65 The term "Political Reform Act" shall. mean Government Code section 18000 et
seq.
1.66 The term "Property" shall mean the Developer owned Property and, the
Developer Leased Propert , as jointly dep i cte d on Ex hIbit „ 11
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1.67 The term "Remaining Commercial Development" shall mean all retail,
commercial, restaurant development on the Property other than i Large Format Retail
Development, elopment, arid, it the Theater Development.elopment.
1.68 The term "Required Operations" shall man and refer to operations conducted
or caused to be conducted by Developer on the Property that includes at least the opening for
sales to the public of 100% of the Large Format Detail Development. As part of the Required
Operations, all sales of taxable goods shall be subject to any and all sales and use taxes under the
laws of California, with the City designated as the point of sale for any and all such sales subject
to California sales and use taxes.
1.69. The term "Sales Tax Revenues" shall mean shall mean the total sales taxes under
the laws of California during a Compliance Year from sales on the Property that have the City
and the property designated as the point of sale.
1.70 The term "Specific Plan" shall mean and refer to the Amended Dbwney Landing
Specific Plan, as it exists as of the Effective Late.
1.71 The term "Term" shall mean the period oftime during which this re ment
shall be in. effect and bind the Parties and their respective successors and assigns, as set forth in
Section 2.1 ofthis Agreement; provided, however, that certain of the obligations described in
this Agreement shall be in effect and bind the Parties and their respective successors and assigns
for in perpetuity, as more particularly described its Sections 2.2.
1.72 The term "Theater Development" shall mean 65,000 square feet of development
for one or more theater uses.
U 1.73 The term "Transfer" shall mean with respect to any property, right or obligation
any the following, whether by operation of law or otherwise, whether voluntary or
W involuntary, and whether direct or indirect: a any assi nr ent, conveyance, grant,
hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any
J 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
U.other encumbrance); ii any conversion, exchange, issuance, modification, reallocation, sale, or
U.other transfer of any direct or 'Indirect Equity Interest(s) 'in the owner of such property, right or
0 obligation by the holders of such .Equity Interests ,, (iii) any transaction described in "(ii)" fthis
Section affecting any Equity Interests or any other "Interest in such property, right or obligation
or itn any such owner or in any other direct or indirect owner at an higher tier of ownershipy
through any manner or means whatsoever; or (iv) any transaction that is in substance equivalent
to any of the foregoing. A. transaction. affecting Equity Interests, as referred to in clauses "(i)"
n through "W" of this Section shall be deemed a Transfer by Developer even - though Developer is
not technically the transferor. A "Transfer" shall not,' however, include any of the followin
provided that the other Party to this Agreement has received, notice of such occurrence) relatin
to any Equity Interest: Q 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 taxi (ii) conveyance to member (s) of the immediate famil ies the
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transferors or trusts for their benefit; or (iii) a conveyance to any Person that, as of the Effectivctiv
Date, holds an Equity Interest in the entity whose Equity Interest is being transferred.
1..74 The terra " "Z n* Code" shall mean and refer to the City of Downey Zoning
Code, as said Zoning Code exists as of the Effective Date of this Agreement, and as it may
further be amended by City from time.
2 . TES.
2.1 Tom.
2.1.1 Term without Enhanced, Project Election Subject to Section 2.2, if
Developer does not make the election authorized. by Section 6. 1 within the time required by
Section .1,, the Terra shall commence on th e Effective Date and shall continue thereafter for a
period of seven years from and after the Effective Date, unless this agreement is terminated,
modified, or extended by circumstances set forth in this Agreement
r her mutual written consent
of the Parties.
2.1.2 Tem with Enhanced 1 roje t Election Subject to Section 2. , if
Developer makes the election authorized by Section 6 within the time required by Section 6 .1,
the Term shall commence on the ,effective Date and shall continue thereafter for a period of
twenty-five 2 years from and after the Effective Date unless this Agreement is terminated,
modified, or extended by circumstances sie forth in this Agreement or by mutual written consent
of the Parties.
Provisions Surviving Expiration of Ter The provisions, rights, and obligations
set forth in, Section 4.4.5 shall remain effective an binding on C an Developer ( and/ or it
successors in inter ) until the expiration of the time periods set forth in Section 4. The
provisions, rights, and obligations set forth in, Article 8 shall remain effective and binding on
City and Developer (and its sue ssor in interest) until the expiration of the time periods set
forth in Article 8 The provisions, rights, and obligations set forth in Section 12.4 shall remain
effective and binding on City and Developer (and its successor(s) in interest) until the
expiration or earlier termination ofthat certain Ground Lease By and Between City of Downe
and Industrial Realty Group, LLC, dated o or about December 4. 2001 The provisions, rights,
and obligations set forth in Section 13,2 shall remain effective and binding on the City and
C Developer (and/ i successor(s) in interest) until the expiration of the statute of limitat o
any and every Claim. The provisions, rights, and obligations set forth in Article 5 shall remain
effective and binding on the City and Developer (and/or its successors in interest) for a period
of twenty five gears from and after the Effective Date.
DEVELOPMENT F THE PROPERTY.
3 .1 Applicable Regulations; vested Right .to vo other than as expressly set
forth herein, during the Tern, the t n and conditions of development applicable
to the
Property, including but not limited to the permitted uses ofthe Property, the density and intensity
of use, maximum height and size of proposed buildings, and provisions for the reservation and
dedication of land for public purposes, skull be those set forth in the Existing Land Use
Regulations. In connection therewith, subject to the t rm-s an conditions of this Agreement,
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Developer (and /or its successors in interest) shall, have the vested right to carry out and develop
the ease Project and/or the Enhanced Project on the Property in accordance with the Existing
Band Use Regulations. Developer shall also have a vested right to: i receive from City all
future development approvals for the Base Project and/or the Enhanced Project that are
consistent with, and implement, the Existing Land Use Regulations and this Agreement; ii not
to have such a'ppr v ls for the Base Project and/or the Enhanced Project be conditioned or
delayed for reasons inconsistent with the Existing Land Use Regulations or this Agreement; and
iii) develop the .base Project and/or the Enhanced Project in a manner consistent with such
approvals in accordance with the Existing Land Use Regulations and this Agreement.
3 .2 Tentative .. Subdivision I a , . with respect to applications by Developer for
tentative subdivision raps for portions of the Property, City agrees that Developereloper may le and
process vesting tentative ramps in accordance with Chapter 4. 5 (co mencin with
Section 66498.1) f of Division 2 of Title 7 of the Califomia Government Code and the applicable
provisions of City's subdivision ordinance, as the same may be amended from time to time. If
final maps are not recorded for an entire parcel before such tentative map(s) would otherwise
expire, the terra of such tentative map(s) automatically shall be extended until the expiration o
the Term or the earlier termination of this Agreement. If final ramps are not recorded prior to the
expiration of the Term or the earlier termination of this Agreement, ent, but such maps have not
otherwise expired under State law, the Municipal Code and/or the Zoning Code, then such maps
shall remain effective until and to the extent otherwise required under State la cy, the Municipal
Code, and/or the Zoning Code.
3 . 3 Processing of Applications and Permits Upon satisfactory completion b
Developer of all required preliminary actions and payment of appropriate City Fees and Charges,
if any, subject to the Maximum Fee Sharing Amount City shall proceed to process and check all
applications for Base Project and/or the Enhanced Project development and building approvals
within the times set forth in the Permit Streamlining Act (Chapter 4. (commencing with
Section 65920) of Division I of Title 7 of the California Government Code), the Subdivision
Map Act Division (commencing with Section 6641 of Title 7 of the California Government
Code), and other applicable . provisions of law, as the same may be amended from time to tune.
U 3.4 Other Governmental Permits. Provided that Developer pars the reasonable cost
U.of such cooperation, after City has approved the development ofany portion of the Property,
City shall reasonably cooperate with Developer in its efforts to obtain such additional permits
and approvals as may be required by any other governmental or quasi-governmental agenciess
having jurisdiction over such portion of the Property, which permits and approvals are consistent
with City's approval and which are consistent with applicable regulatory requirements. Cis doesppPp
not warrant or represent that any ether governmental or quasi-governmental permits or approvals
will be granted.
3 . 5 Subsequent General
plan Amendments and Zone Chan es In consideration for
the benefits provided to Developer under this Agreement, including without limitation the
vesting of the right to develop
the Base Proje t on the Property in accordance with the Existin
Band Use Regulations, Developer agrees that City shall have no obligation under this A regiment
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t o gran any subsequent application for any amendments to the General Flan and/or chang to
the zone designations for the Property which may be initiated by .Developer. Notwithstandin
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the foregoing, this Section 3.5 shall not limit Developer's statutory, constitutional, or common
lave right(s) if any) to seek future legislative approvals from City.
3 . 6 Timing of 'Development City acknowledgesvledges that Developer cannot at this time
predict the timing or rate at which the Base Project and the Enhanced Project will be
developed. The timing and rate of development depend on numerous factors such as market
demand, iriterest rags, absorption, completion schedules, and other factors which are not within
the control ofDeveloper or City. In Pardee Constructio Co. v. City qf Camarillo (1.984)
CaUd 465, the California Supreme Court held that a construction company was not exempt from
a city's growth control ordinance notwithstanding that the construction company and the city
had, prior to the adoption of that ordinance, entered into a consent judgment (tantamount to a
contract under California law) establishing the company's vested rights to develop its property in
accordance with the existing zoning. The California Supreme Court reached this result on the
basis that the consent i udgm nt failed to a the timing of dev loprnent. It is the intent of
the Parties to avoid the result of the Pardee case by hereby acknowledging and Providing in this
Agreement that Developer shall have the vested right to develop the Base Project and/or the
Enhanced Project on the property in such order and at such rate and a such time as 'Developer
deems appropriate within the exercise of Developer's sole subjective business judgment,
notwithstanding the adoption of are initiative or any other measure after the Effective Date by
City's electorate to the contrary. In addition to and not in limitation of the foregoing, but except
as set forth in the following sentence, it is the intent of the Parties that no City moratorium or
other similar limitation relating to the rate or timing of the development of the Base Project
and/or the Enhanced Project on the Property or any portion thereof, whether adopted by initiativ
or otherwise, shall apply to the Base Project and/or the Enhanced Project on the Property to the
extent such morat or other s limitation is in conflict with the ex provisions of
this Agreement. Notwithstanding the foregoing, Developereloper acl nowled es and agrees that
nothing herein is intended or skull be construed as overriding any ofthe provisions relating to the
timing of and /or conditions to the provision of any benefit to Developer under Section 4. 1,
Section 4, , Section 6. 1., Section 6.2 and Section 6.31, or any Section that oth r iii. a requires that
Developer perform an obligationation on or before a specified calendar date and/or event, and/or
within a specified period oftime.
3 .7 Reservations of A thorn N'ot ithstanding any provision set forth in this
Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this
Section 3 . 7 shall apply to and govern development of the Base Project and/or the Enhanced
Project on the Property:
3 .7. 1 Consistent Future City Regulations City ordinances, resolutions,
regulations, and official. policies adopted or approved after the Effective Date pursuant to
procedures provided by later which do not conflict with the Existing Land Use Regulations shall
apply to and govern de lopment of the Property. Any future City regulations which reduce the
intensity of the development of the Property below that permitted by the Existing Land Use
Regulations, or lim.1t the rate, tinning or sequencing of development of the Property in a manner
not otherwise provided for in the Existing L Use Regulations, sh he deemed inconsistent
with this Agreement and skull not be applicable to the development of the Property.
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3.7.2 Overriding State - n 'Federal Laws and Pe2ulati State and federal
laws and regulations which override Developer's vested rights set forth in this Agreement shall
apply to the Property, together with any City ordinances, resolutions, regulations, and official
policies which are necessary to enable City to comply with. such overriding State and
federal
laws and regulations; provided, however, that i Developer does not waive its right to challenge
or contest the validity of any such State, federal, or local lags, regulations or official policies;
and. (ii) in the event that any such State or - federal law or regulation or City ordinance,
resolution, regulation, or official policy undertaken pursuant - thereto) prevents or precludes
Compliance with one or more provisions of this A the Parties agree to consider in good
faith amending or suspending such provisions of this Agreement as may he necessary to comply
with such State or federal laws, provided that no Party shall be bound to approve any amendment
to this Agreement unless this Agreement is amended in accordance with the procedures
applicable to the adoption of development agreements as set forth in the Development
Agreement Statute and each .Party retains full discretion with respect thereto.
3.7.3 Public Health and Safety Any City ordinance, resolution, regulation, or
official policy, which is necessary to protect persons on - the Property or in the immediate
community, or both, from conditions dangerous to their health or safety, or both, notwithstandin
that the application of such ordinance, resolution, regulation, or official policy pr other similar
limitation would result in the impairment of Developer's vested rights under this Agreement.
3.7.4 Uniform Construction Codes, Provisions of the building standards set
forth in the Uniform Construction Codes shall apply to the Property. As used herein, the term
Uniform Construction Codes" collectively refers to the 2010 Californian Building Codes, the
2010 California Electric Code, the 2010 California Plumbing Code, the 2010 California
Mechanical Co the 2009 Uniform Solar Energy Code, the 2009 Uniform Swimming Pool, Spa
and Hot Tub Code, the 2010 Green Plumbing and Mechanical Code, and the 201.0 California
Fire Code (including amendments thereto by the Downey Fire Department ),
as modified and
amended by official action of City, and any modifications or amendments to any such Code
adopted in the future by City. `
3.7.5 Police Power. In all respects not provided for in this Agreement, City
shall retain full rights to exercise its police power to regulate the development of the Property,
Any uses or developments requiring a site plan, tentative tract map, conditional use permit,
variance, or other discretionary permit or approval in accordance with the Existing Land Use
Regulations shall require a permit or approval pursuant to this Agreement, and, notwithstandin
any other provision set forth herein, this Agreement is not intended to nest Developer's right to
the issuance of such permit or approval nor to restrict City's exercise of discretion with respect
thereto, provided, ho e er, that City ac nowled es that it is obligated to process discretionary
and ministerial approvals consistent with the Existing Band Use Regulations in accordance with
the procedures set forth in the Specific Plan,
3 . 8 Large Format Retail Development Parkine Easement During the Term,
Developer may request in writing th City enter into negotiations for the provision, at no
additional charge to Developer, of a parking easement and/or license agreement to accommodate
up to twenty parking spaces on no more than forty five one hundredths o. acres of
property adjacent to the Property and owned by City. The .Parties shall negotiate in good faith to
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determine the initial location an other terms and conditions for the provision of the easement or
license, with a shared objective of recording the easement or license within ninety days after
Developer's request to enter into negotiations. City shall have the right to terminate the
easement or license, and/or relocate the parking to a different location owned by City and
adjacent to the Property if, in City's reasonable business and/or regulatory judgment, relocation
of the parking is necessary to allow for the sale, lease, or other use of any . property owned by
City. If it elects to terminate or relocate the easement or livens, City shall provide at Least
ninety days advanced notice to Developer. If it elects to relocate the easement or license,
Developer shall be responsible for all costs of improving the rely- designated parking area and
of removing improvements on the prior-designated parking area.
3 . 9 Signature Entran City a De agree to w together it good faith, at
no cost to City, toward the design, approval, and development of a signature entrance to the
property for the Base Proj and th Enh Project.
3 .10 City Infrastructure Improvement To the extentent required by applicable laws, the
City shall pay prevailing wages for intersection and groundwater well improvements that are
funded (ire part or in whole) by Developer as conditions of approval of the Project. City makes
no representation or warranty to Developerr concerning the legal effect, if any, of the City's
construction of such improvements on Developer's rights and responsibilities under stag lair,
federal law, and/or this Agreement.
3.11 Flexible Office. Space, on . Developer Leased Property Notwithstanding anything
to the contrary in this Agreement, Developer shall 'be permitted to develop the 200,000 square
feet of additional office floor area described in .Recital B on the Developerr Leased Property
without further discretionary action by the City, so long as the retail, floor area is decreased by
200 ,000 square feet and the total square footage of the proposed development does not exceed
1 , 1. , o0o square feet.
4 . FEES I .- COND ITIONS" PUBLIC B NEFITS AND AU D IT RIGHTS -
4.1. TempoMryjee Rebate Within thirty days following the end of each
calendar quarter during the Tern, Developer shall submit to City written evidence of all City
Fees and Charges paid during the preceding calendar quarter. Within fifteen 1 days after
submission of such written evidence, City shall notify Developer of any deficiencies in the
evidence submitted by Developer an any reed for additional information, Developer shall
provide such information as is reasonably requested by City in response to any request therefor.
Within sixty o days after receipt of sufficient documentation of the payment ofCity Fees and
Charges, City shall remit to Developereloper fifty percent 0% ofsaid City Fees and Charges. The
procedures set forth in this Section 4A shall continue until the earlier of i the expiration ofthe
Term, and 00 such time as the total amount of City Fees and Charges rebated to D
equals - the Maximum Fee Sharing Amount. Notwithstanding anything to the contrary in this
Agreement, Developer shall only be eligible for the temporary fee rebate provided in this Section
4.1 ifand after it ma .es the e Iection under Section 6. 1, to build the Enhanced Project.
4 . 2 other Fees and Ch Except as specifically set forth in this Section 4, nothin
set forth in this Agreement
is intended or shall be construed to limit or restrict City "s authority to
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impose, on new development wit the City, new fees, charges, assessments, or taxes that apply
to the development of the property or that increase any existing fees, charges, assessments, or
taxes that apply to the development of the Property, an nothing set forth herein is intended or
shall be construed to limit or restrict whatever right Developerr might otherwise have to challenge
any fee, charge, assessment, o tax either not set forth. in this Agreement or not in effect as of the
Effective Date. In connection therewith, and subject to the partial rebate of City Fees and
Charges provided in Section 4.1, Developerper shall timely pay all applicable fees, charges,
assessments, and special, and general taxes validly imposed 'in accordance with - the Constitution
and laws of the State of California. Notwithstanding the foregoing, City represents that it has n
current plans to increase any City Fees and Charges.
4,3 [RESERVED]
4.4 Accounting and ReView.
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4.4.1 WintenaMe of Books and Record . Developer (and/or its successor(s) in
interest) shall cause to be prepared and maintained complete, proper and accurate books,
accounts and records of all matters or amounts relevant to an calculation of an a all sums
owed to or Cit under this Agreement, including without limitation the Ci Fees and Charges
subject - to rebate under Section 4. 1, the Grant Amount under Section 6.3.2, and the Fire Station
Construction Costs under Section 8 so that said payments can be accurately determined for all
relevant periods; provided, however, that City shall not have a right of audit of the temporary fee
rebate Linder Section 4.1 or the Grant; Amount under Section 6.3.2 unless developer elects under
Section 6 .1 to build the Enhanced :project. All such books, accounts and records, including true
copies of all revenue and other income statements and tax returns, shall be maintained at
Develop (and its successor(s) in interest) address in Southern California, or at another
location reasonably designated by each Development Party in Southern California, for a period
of at lust five calendar years after the expiration of'the year during whi - the same relates.
4.4.2 Allocation of Costs and Expenses In allocating any item of cost, expense,
receipts or income to a particular portion of the Property, commercially reasonable real estate
accounting principles, consistently applied, shall be utilized.
4.4.3 ton- Waiver By City The acceptance by the City of a payment, or the
provision by City to Developer of a payment, required by this Agreement shall be without
prejudice to the City's right to examine and to audit .developer's (and/or its successor(s) in
interest) books, accounts and records to verify the accuracy of any information sn.p.plied b
Developer (and/or its successor(s) in interest), an to challenge the accuracy and validity of any
such payments. Developer (and its successor( in interest) shall make availa to the City
and the City's designated representatives for inspection during normal business hours at a
business location ofTDeveloper (and/or its successor (s) in interest ) located in Southern California,
or at another location reasonably designated by Developer (and/or its successor( in interest) in
Southem Calif ia, on twenty business days' advance written notice, all of Developer's
and/or its successor(s) in interest's) books , acco and records relating to the development of
the Property (and all matters which are the subject of this Agreement), which books, accounts
and records may be copied or extracted in whole or in part b the City or the City's designated
representatives, but which will be maintained by City as proprietary and confidential business
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information to the extent permitted by the California. Public Recordsords Act Government Code
section 6250, et seq.), the Ralph M. Brown Act ( Govemment Code section 54950, et seq.) arid/or
any other applicable state or Federal laws respecting the disclosure of information held by a
public agency.
4.4.4 [RESERVED]
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4.4.5 Survival ofAudit R 4 Notwithstanding r provision of this
Agreement to the contrary, all of the City's rights under this Agreement to audit and review a
calculations o 16nformation submitted thereund er and collect any payments due the City shall
survive any expiration of this Agreement as follows: i if .Developer elects under Section 6.1 to
build the Enhanced Project, then any audit right of the temporary fee rebate amounts under
Section 4.1. shall continue until two years following the final _payment of a rebate amount
under Section 4.1; r`i if :developer elects under Section 6.1 to build the Enhanced Project, then
any audit right of the Grant Amount under Section 6.3.2 shall continue until two 2 years after
the expiration of the Operating Period; r'ir the City's audit right of the Fire Station Construction
Costs under Section 8 shall continue until three years after the issuance of a Certificate o
occupancy for the Fire Station.
5 . GENERAL DEVELOPER COVE AN - FS
5 .1 Commencement of Improvementserents and Completion T accordance with
Section 34, Developer shall commence and complete, or cause - to be o menc d and completed,
at Developer sole cost and expense the construction of the Improvements. Developerr shall be
responsible for all casts of developing the Base 'Project ardor the Enhanced Project, which
includes all costs for construction, alteration, demolition, installation, and repair work, and all
costs for pre-development and pre - construction associated therewith, including inspection and
land surveying work, for the Improvements. Once construction has commenced, Developer shall
use commercially reasonable efforts to proceed to complete or cause to be completed the Base
Project and/or the Enhanced Project in. a good and workmanlike manner
5 .2 Larg Format and ' 'Remaining Commercial._ Development Retailers All. Large
Format Retail L evelopment an Remaining Commercial evelo meat shall be operated underp _
one of the retail brans naives set forth in Exhibit "H" or such other retai brand name approved
by City, in its sole and absolute discretion.
5.3 [RESERVED].
5 .4 City Right ' 1 sect Officers, employees, agents and representatives of Cit y
shall have the right of reasonable access to the Property, without the payment of charges or fees,
during normal construction hours, during the period of construction and, operation of the Base
Project and/or the Enhanced Project. :Developer shall make a representative or Developer
available to accompany City representatives onto the Property, at all times, during normal
construction hours, upon reasonable advance notice from City. Developer understands and
agrees that any such City inspections are for the sole purpose of protecting City's rights under
this Agreement, are made solely for City's benefit, that City's inspections may be superficial and
general in nature, and are for the purposes of informing City of the progress of the construction
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of the Base Project and/or the Enhanced Project in a manner consistent with the terms and.
conditions of this Agreement, and that Developerpeer shall. not be entitled to rely on any such
inspections as constituting City's approval, satisfaction or acceptance , of any materials,
workmanship, conformity of the Base Project and/or the Enhanced Project with this Agreement
or otherwise. Developer agrees to make its own regular inspections of the work con.str ction
of the ease Project and/or the Enhanced Project to determine that the quality of the
improvements and all other requirements of the work of construction of the ease Project and/or
the Enhanced Project are being performed in a manner satisfactory to Developer.
5 . 5 _Developer Attendance at City Meetings Developer shall ensure that one or more
ofits employees or consultants who are knowledgeable regarding this Agreement and the
construction and installation of the Improvements, ts, such that such person(s) can meaningfully
respond to City questions regarding the progress of the Improvements and attend meetings of the
City Council and City staff, when reasonably .requested to do so by City staff "Developer
Representative "). Developer shall identify the Developer representative in writing to City
within 30 days of the Effective Date, and shall identify any charges in the identity of the
Developer Representative in writing to City immediately upon such change.
5 .6 Maintenance Covenant. Developer for itself, its successors a assigns,
covenants and agrees that:
5.6.1 General Maintenance of Pr t . The areas of the Properly that are
subject to public view (including all improvements and the existing and future improvements,
paving, walkways, landscaping, exterior signage and ornamentation) shall he maintained zn good
repair and a neat, clean and orderly condition, ordinary wear and tear excepted, If at any time
prior to the end of - the Terra, there is an occurrence of a Maintenance Deficiency, then City may
notify Developer in writing of the Maintenance .Deficiency. If .Developer fails to cure or
commence and diligently . pursue to cure the Maintenance Deficiency within thirty calendar
days of its receipt of notice of the Maintenance Deficiency, City shall have the right to eater the
Property, as necessary, and perform all acts necessary to cure the Maintenance .Deficiency, or to
take any other action at laver or in equity that may - then be available to City to accomplish the
abate of the Maintenance Deficiency. Any sung expended by City - for tale abatement of a
Daintenance Deficiency, as authorized by this Section, shall become the debt; of Developer. If
the amount of the debt is not paid by Developer within thirty calendar days after written
demand for payment from City to Developer, City shall have the right to enforce collection by
any available legal means including without limitation the withholding of the amount ofthe debt
from any future payments and/or rebates to Developer under this Agreement.
5.6.2 Graffiti. Graffiti, as defined in Government Code Section 38772, that has
been applied to the Improvements and that is visible from any . public right -of -way adjacent or
contiguous to the Property shall be :removed by Developer by either painting over the evidence
of such vandalism with a paint that has been color- matched to the surface on which the paint is
applied, or graffiti may be removed with solvents, detergents or water, as appropriate, If any
such graffiti is not removed within seventy two 72 hours following the time of written notice
from City to Developer ofthe discovery of the graffiti, City shall have the right to enter the
Property, as necessary, and remove the graffiti, without further notice to Developer. Any sum
actually expended by City for the abatement of the graffiti, as authorized by this Section, shall
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ecotone - the debt of Developer. If the amount of the debt is not paid by Developer within thirty
0) calendar days after written demand for payment from City to D eve l . oper, City shall have the
right to' enforce collection by any available legal means including without limitation the
withholding of the amount of the debt from. any future annual Grant payment under this
Agreement.
5.6.3 Lien . The obligations of Developer and its successors and assigns
under this Se'ctlon 5 .6 shall be secured by a lien against the Property. Developer here grants to
the City a security interest in the Property with the power to establish and enforce a lien or other
encumbrance against the Property, in the manner provided in evil Code Sections 2924, 2924b
and 22c, to secure the obligations of th Developer and it successors under this Section,
including Legal Costs and other costs of the City associated with the abatement of a Maintenance
Deficiency or removal of graffiti. This Agreement shall provide notice of such security interest
in favor of the City. The City shall reasonably subordinate its lien rights under this Section to
security instruments or leases securing bonafide financing from Institutional Lenders to the
Developer for construction of the Base Project and/or the Enhanced Project, upon [written request
from Developer and on the condition that Developer reimburse the City all of its c ost (includin
Legal Costs) incurred in providing such subordination.
6 . DEVELOPER COVENANTS .ELATE G TO THE ENHANCED PROJECT
6 .1 Developer Election To Develop Enhance. Project At any time during the first
five ( years 'following the Effective Date, Developer may in its sole and ' absolute discretion
elect to develop - the Enhanced Project. Such are election shall be effective upon the l r vision of
notice of such electron in writing to the City.
6.2 Applicabirily of Base Project Covenants. If, pursuant to - Section 6.1, Developer
elects to develop the Enhanced Project, the following covenants, in addition to those set forth in
Article 5 shall remainin applicable and binding upon the parties.
Operating Covenant The provision to City of an election to develop the
Enhanced Project pursuant to Section 6. 1, shall constitute Developer's binding commitment to b
bound by the Operating Covenant contained in this Section 6 rhich consists of the following
terms and conditions:
6 . 3.1 Conduct of Required Operations During the Operating Period, Developer
hereby covenants and agrees to diligently endeavor to continuously conduct or cause to be
conducted the .required operations o the Property. The failure of Developer to maintain th
Requiredred perati ns during any Compliance Year within operating Period shall, inter aha,
excuse the City from the obligation to male any annual Grant payment pursuant to Section 6.3.2
for that Compliance Year.
6.3.2 Annual Grant.. P erit Subject to Developer's continued compliance
under this Agreement on or before .wire 30 following each calendar year during Operating
Period in which Developer maintains the Required Operations, City agrees to pay Developer the
4.
Grant Amount, provided, however, that City shall, not be required to pay the Grant Amount for
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any calendar year during which Sales Tax Revenuesenue do not equal a minimum of Two Million
Five Hundred Thousand Dollars ($2,500,000).
63.3 ertifi tion. Within forty-five (4 5) days following the end of each
Compliance Year for which Developer claims are entitlement to receive an annual Grant Amount
Developer shall le a Certification.
6 . 3.4 Use Restriction. Throughout the Operating Period, the Property shall
include buildings and facilities sufficient to support the Required Operations.
6.3.5 Covenant to Maintain Property on Tax Rolls Developer covenants t
cause the Property to remain on the County o Los Angeles secured real property tax rolls,
continuously, throughout the Term, and to pay all property taxes re garding the Property and all
improvements on or to the Property before delinquency, throughout the Term. Notwithstanding
the foregoing, the City may, in its sole and absolute discretion, and upon written request of
Developer, consent to a use of a portion of the Property that would cause said portion of the
Property to be removed from the County of Los Angeles secured real property tax rolls.
6 . 3. No Conveyance t Tax . .empt ..Entity Developer covenants and agrees
that throughout the Terra., neither Developer, nor its successors or assigns, shall Transfer all or
any portion of the Propefty to any Person or use all or any portion of the property 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 taxes otherwise assessable regarding
the Property, without the prior written consent of the City, which may be given or withheld in the
City's sole and absolute discretion. Developer acknowledges and agrees that the covenant
contained in this Section 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 an violation of such covenants will result in financial injury to the City by
depriving the City ofproperty tax revenues from all or a portion of the Property or the Base
Project and/or the Enhanced Project. Additionally, Developer acknowledges and agrees that the
restrictions on Transfers set forth in this Section are reasonable under the circumstances because
ofthe City's interest in property tax revenues from the Property. . N t ithstan iin the foregoing,
Developer and City acknowledge that upon its transfer i - n , accordance with Section 8 of this
Agreement, ownership of the Fire Station Site may be held. by a tax e entity and/or the Fire
Station Site may be used for purpose that is exempt from. taxation, and such ownership and/or
use shall not requ any further consents u.nd. r this Section 6 .3.6.
6 . 3 .7 ua of Improvements. Developer shall cause th Improvements for
the Enhanced. Project to be constructed in a first class man.n.er and at are average cost i. cost
spread over all Improvements o the Property) of no less than two hundred thirty five dollar
235.00) per square foot ( including design, permitting, and construction costs), adjusted on an
annual basis from and after the Effective Date based on the year - over - year change in th
California Highway Construction Cost. Index or, if the California Highway Constructi Cost
Index is d'scontinued, a substantially similar index selected by the City)* All improvements will
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be maintained n a condition substant identical ( better) than their original condition. All
Large Format Retail 1 e elo meat and Remaining Commercial Develop shall be operatedppp
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under one of the retail brand names set forth in. Exhibit "H" or such other retail braid narne
approved by City, in its sole and absolute discretion.
6 . 4 Covenants Running with the Land The provisions of this Article 6 shall be
covenants running with the land of the Property during the Operating Period for the benefit of
and shall be enforceable solely by the City in its sole discretion.
7 . NON-DISCRIMINATION'
7 .1. Obligation to Refrain from Discrimination Developer covenants and agrees for
itself, its successors, its assigns and all persons claiming under or through therm to the Property or
any part thereof, that there skull be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, ancestry or
national origin in the sale, lease, sublease, e, transfer, use, occupancy, tenure or enjoyment of the
Property, nor shall Developer itself, or any person claiming under or through
it, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, or sublessees of the
Proper. The foregoing covenants shall. run with the lard and shall remain in effect during the
Extended Term.
Form of Non-discrimination and Dory - e gation Clauses Devcloper covenants
and agrees for itself, its successors, its assigns, and all. persons claiming under or through them to
the Property that Developer, such successors and such shall refrain from restricting the
sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the property on the
basis of sex, marital status, race, color, religion, creed, ancestry or rational origin of any person.
All deeds, leases or contracts pertaining to all or any portion of the Property shall contain or be
subject to substantially the following non - discrimination or non - segregation covenants:
1 In deeds. "The grantee herein covenants by and for itself, its successors
and assigns, and all persons claiming under~ or through there, that there skull be no discrimination
against or segregation of any person or group of persons on account of race, color, creed,
religion, sex, marital status, national origin, o ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sub - tenants, or S - u-b-lessees in the premises herein conveyed. The foregoing
covenants shall run with the land."
7.2.2 In leases. „ The 'Lessee herein co venants by and for itself, its successors
and assigns, and all persons claiming und or through therm, and. this base is made an accepted
upon and subject to the following conditions: That there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry, in th leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection., location, number, use, or
occupancy, of tenants, lessees, su - lessees, or sub - tenants in the premises herein leased."
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7.2.3 In contracts. "There shall be no discrimination against or segregation of
any person or group
of persons on account of race, color, creed, religion, sex, marital status.
national origin, o ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person
claiming under or through it, establish or permit any such practice or practices o discrimination
or segregation with reference to the selection, location, number, use, or occupancy, oftenants,
lessees, sub - lessees, or sub - tenants of the premises herein transferred." The foregoing provision
shall be binding upon and shall obligate the contracting party or parties and any subcontracting
party or parties, or other transferees under the instrument.
8 . Fl DE STATE ON DEDICATION AND DEVELOPMENT.
8 .1 Election to R Developmentent of Fire Station Site. At any time during the
twenty years period following the Effective Date, City may request in writing that
Developer begin design and ultimately construct the Fire Station on the .Fire Station Site. Upon
issuing such request in writing, an upon fumishing approved specifications for th development
ofthe Fire Station to Developer, Developer shall be required to diligently commeke design and
other pr developme t activities, and to diligently proceed to the completion of construction of
the Fire Station on the Fire Station. Site. City shall reasonably cooperate with Developer and
developer shall reasonably cooperate with City in facilitating the construction of the Fire Station
on the Fire Station Site. The Panties completion of construction of the Fire Station on the Fire
Station Site shall occur within twenty four months after the City issues its request that
Developer begin design and ultimately construct the Fire Station on the Fire Station Site, but said
timeline shall be extended based on force majeure events under Section 9 .4, and based on
unreasonable delays in the issuance of permits or authorizations from governmental authorities.
8 . 2 Design and Construction C ts . developer shall bear all costs, fees, burdens, and
charges associated with the design, permitting, construction. and delivery of. the Fire Station in
manner that conforms to the specifications furnished by City pursuant to Section 8. 1. City shall
naive all Ci Fees an Charges to connection with the development and construction of the Fire
Station, and such waived amount shall not be included in the Maximum Fee Amount.
8 .3 Subdivision of Fire Station Site. Within two years following the issuance of a
U. Certificate f Occupancy for the Fir Developerevelopr and. City shall a us ' h Fire Station
Site to be a separately saleable property through the filing of a con-dominium map, or such other
procedure for rendering the Fire Station Site saleable as the Parties ma mutua agree upon.
8 . 4 Developer's. Rental of Fire Station to Cxt . Upon issuance of a Certificate of
Occupancy for the Fire Station City and Developer shall enter into the Fire Station Lease. This
A creates a present obli to eater into the Fire Station Lease. All material terms
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n and requirements intstoheincluded n the Fire Station Lease have been included in this Agreement,
and any additional matters included by mutual consent in the
Fire Station Lease shall be fully
consistent with the terms set forth in this Agreement.
8. Conveyance of Fire Station and Fire Station. Site to Upon payment by i
to Developer of the Fire Station Construction Costs, which shall be paid by City to Developer as
r perio f` ear th Fire Station Lease shall terminate Upon theWrentoverarodtwe p
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termination of the Fire Station Lease, Developer shall convey fee title to the Fire Station, the Fire
Station Site a all improvements and fixtures thereon to City, and the Fire Station Lease shall
be terminated with such termination.
9 . DEFAULT, REMEDIES., AND TERMINATION
9 .1 Notice and Opportunity to Cure Before this Agreement may be terminated or
action may be taken to obtain judicial relief, the Party seeking relief ("Non-Defaulting Warty")
shall comply with the notice and cure provisions of this Section 9 L A Nondefaulting Party in
its discretion may elect to declare a default under this Agreement in accordance with the
procedures hereinafter set forth for any failure or breach of any other Party " faultin `arty"
to perform any material duty or obligation of said Defaulting Party in accordance with the terms
of this Agreement. However, the Non-Defaulting Party must provide written notice to the
Defaulting Party setting forth the nature of. the breach or failure and the actions, if arty, required
by the I ondefaulting Party to cure such breach or failure. The Defaulting Party shall be deemed
in "default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take
action and cured the default within fifteen 1. days after the date of such notice (for monetary
defaults), within thirty days after the date of such notice (for non - net r defaults ), or
within such lesser time as may be specifically provided in this Agreement. If, however, a non -
monetary default cannot be cured within such thirty day period, as long as the Defaulting
Party does each ofthe following, then the Defaulting Party shall not be deemed in breach of this
Agreement: i notifies the Non - Defaulting Party In writing with a reasona explanation as to
the reasons the asserted. default is not curable within the thirty day period; ( ii) notifies the
Non - Defaulting Party ofthe Defaulting Party's proposed course ofaction to cure the default;
iii) promptly commences to cure the default within the thirty day period; 1 makes
periodic reports to the Non Party as to the progress of the program of cure; and
v ) diligently prosecutes such cure to completion. Notwithstanding the foregoing, the Defaulting
Party shall be deemed in default of its obligations set forth in this Agreement if said breach or
failure involves the payment of money but the Defaulting Party has failed to completely cure
said monetary default. within fifteen 1. days or such lesser tine as roar be specifically
provided in this Agreement) after the date of such notice.
9 .2 Default Remedies. Subject to Section 9 .3, in the event of a default, the Non-
Defaulting Party, at its option, may institute legal action to cure, correct, or remedy such default,
enjoin any threatened or attempted violation, enforce the terms of th Agreement by specific
performance, or pursue any other legal.
or equitable remedy. Furthermore, City, in addition to or
as an alternative to exercising the remedies set forth in this Section 9 in the event of a material
default by Developer, may give notice of its intent to terminate or modify this Agreement
pursuant to the Development Agreement Statute, in which event the matter shall be scheduled for
consideration and review by the City Council in the manner set forth in the Development
Agreement Statute.
9. Developer's Exclusive Remedy The Parties acknowledgeledge that City would riot
have entered into this Agreement if it were to be liable in damages under or with respect to this
Agreement, or the Existing Land Use Regulations, or the application thereof, or any permit o
approval- sought by Developer in accordance with the Existing Land Use Regulations.
Accordingly, Developer covenants ors. behalf of itself and its successors and assigns, not to sue
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City for damages of monetary relief for any breach of this Agreement o arising out of or
connected wi any dl'SpUte, controversy or issue regarding the application, int.erpretatxoll or
effect of this Agreement, the .existing Land Use Regulations, or any lard use permit or approval
sought in connection with the development or use of the Property or any portion thereof, the
Parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall
be Developer's sole and e Judicial remedies.
N'otwithstand i ng the faregoin, the Parties
acknowledge and agree that Developer may seek specific performance of City's monetary
obligations under this Agreement, and that such an action for specific performance shall not be
construed as an action for damages.
9 . 4 Force 1 aieure The obligations by any Party hereunder shall not be deemed to b
in default where delays or failures to perform are due to any cause without the fa It arid. beyond
the reasonable control of such Party, including to the extent applicable, the following: oar;
insurrection; strifes; wally - outs; the unavailability or shortage oflabor, mat ri 1, y or equipment;
riots; floods; earthquakes; the discovery and resolution of hazardous waste - or Significant
geologic, hydrologic, archaeological, paleontological, or endangered species problems on the
Property; fires; casualties; acts ofGoal; govemmental restrictions unposed or mandated by other
governmental entities; with regard to delays of Developer's Performance, delays caused by City's
failure to act or timely perform its obligations set forth herein; with regard to delays of City's
performance, delays caused by Developer's failure to act or timely perform its obligations set
forth herein; inability to obtain necessary permits or approvals from other governmental entities,
enactment of conflicting state or federal statutes or regulations; Judicial decisions; or litigation
not commenced by such Party. Notwithstanding the foregoing, any delay caused by the failure
of City or any agency, division, or office of City to timely issue a license, permit, or approval
required pursuant to this Agreement sh not constit an event of force ma'eu.re exten the
time for City's _performance hereunder. If written notice of such delay or impossibility o
performance is provided to the other Parties within a reasonable time after the commencement of
such delay or condition of impossibility, are extension of. time for such cause will be granted in
writing for the period of the enforced delay, or longer as may be mutually agreed upon by the
Parties in writing, or the performance rendered impossible may be excused. in writing by the
Party so notified. In no event shall adverse market or financial conditions constitute an event of
force majeure extending the time for such Party's performance hereunder. Unless the parties
agree in writing to the contrary, in no evert shall the Term of this Agreement be extended by an
event orce m a eure .
10. ANNUAL REVIEW.
10.1 Timing of nnual Review During the Ten of this Agreement,, at least once
during every twelve 1 month period from the Effective Date, after receipt of each annual
Certification from Developer, City shall review the good faith compliance of Developer with the
terms of this Agreement "Annual Review"). The Annual Review shall be conducted by the
City Council or its designee in accordance with the :l evelopment Agreement Stau.te.
1 U Standards for annual Review. During the Annual Review, Developer shall be
required to demonstrate good faith compliance with the terms of this Agreement. If City or its
designee finds an determines that Developer has not complied with any of the terms or
conditions Of this Agreement, then City may declare a default by Developerloper ire accordance with
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Article 9 herein. City may exercise its rights and remedies relating to any such event of default
only after the period for curing a default as set forth in Article 9 has expired without Cure of the
default. The costs incurred b y City in. connection with the Annual Review process shall be paid
by Developer.
10. Certificate of Complian With respect to each year in which City approves
Developer's compliance with this Agreement, City shall, upon written request by Developer,
provide Developer with a written certificate of good Faith. compliance within thirty days of
City's receipt of Developer's request for same.
1.1.. MORTGAGEE RI:GHT .
11.1 Encumbrances on the Property The Parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, from encumbering the Property or any
portion thereof or any improvements thereon with any Mortgage securing financing with respect
to the construction, development, use, or operation of the Base Project and /or' the Enhanced
Proj eet.
11.2 Mortgagee Protection This Agreement shall be superior and senior to the lien of
any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render
invalid, diminish, or impair the Lien of any Mortgage made in good faith and for value, and any
acquisition or acceptance of title or any right or interest in or with respect to the Property or an
portion thereof by Mortgage ( whether pursuant to foreclosure, trustee's sale, deed in lieu of
foreclosure, lease termination, or otherwise) shall be subject to all of the terns and conditions of
this Agreement arid. any such Mortgagee who tales title to the Property or any portion thereof
shall be entitled to the benefits arising under this Agreement.
1.1. Mortgagee Not Obl N otwithstand 1n the pre vi s ion s of , this Article 1. 1 , a
Mortgagee will not have any obligation or duty pursuant to the terms set forth in this Agreement
to perform the obligations of any of Developer or other affirmative covenants of Developer
hereunder, or to guarantee such performance, except that
i the Mortgagee shall have no right to
develop the Property under the Existing Lard Use Regulations without fuller complying with the
terms of this Agreement and (il) to the extent that any covenant to be performed by Developer is
condition to the performance of a covenant by City, the performance thereof shall continue to
be a condition precedent to City's performance hereunder.
11.4 Notice of Defaultult to M g e; .. light of Mortgagee to Cure leach. Mortgagee
shall, upon wrItten request to City, be entitled to receive written notice from City of the results of
the Annual Review and of any default by Developereler of its obligations set forth in this
Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure such
n default within frf e n 1 days after receipt of such notice (for monetary defaults), within thirty
3)o) days after recel pt of such notice for non-monetary defaults or, if such default can ornl y be
remedied or cured by such Mortgagee upon obtaining possession ofthe Property, such
Mortgagee shall have the right to seek to obtain possession with diligence and continuity through
a receiver or otherwise, and to remedy or cure such default within thirty days after obtaining
possession, and except in case of emergency r to protect the blie health or safety, City ma
w not exercise any of its judicial remedies set forth in this Agreement until expiration of such thirty
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30) day period provided, however, that in the case of a default which cannot with. diligence b
remedied or cured within such thirty day period, the Mortgagee shall have such additional
tine as is reasonably necessary to remedy or cure such default . provided Mortgagee promptl
commences to cure the default within the thirty day period and diligently prosecutes such
cure to completion.
12. ASSIGNMENT.
12.1 Right to As . Subject to City's prior written consent, which shall not be
unreasonably withheld, developer shall have the right to assign its rights and, obligations under
this Agreement in connection with a Transfer of Developer's interest in the Property. In the
event of any such assignment, the assignee shall be liable for the perora.nce of the assigned
obligations of Developer. In determining whether to grant consent to
are assignment tinder this
Section, factors that may be considered by the City include, but are not limited to, the extent of
the assignee's ownership interest in the Property or any portion thereof, the desire to have the
master developer of the Property Mold, substantially all of the rights under the Agreement, the
assignee's demonstrated experience in developing and /or operating projects of life kind and
scale as the Base Project or the Enhanced Project, if Developer makes the election authorized by
Section 6.1). - the assignee's eom itment to develop and maintain the Base .project or the
Enhanced Project, if Developer Flakes the election authorized by Sect .1 , and the financial
ability of the assignee to complete development and/or maintain operation of the Base Project r
the Enhanced Project, if Dcveloper males the electron a.uthor'ed by Section .1. 1n the evert
of Transfers to end users such as those who will develop .Marge Format Detail Development or
Remaining Commercial Development, if such Transfer(s) is /are approv by the (ity, such
transferees shall inure to the benefits an burdens of this .Agreement; p however, that
such transferees) shall not receive the benefits of set forth in Section 4.1 and Section 6 .3.
112 Release U Transfer of Agreement Upon the written consent of City to the
partial or complete assignment of this Agreement (which consent shall not be unreasonabl
Withheld) and the express written assumption in -a form approved by City of such assigned
obligations o f Developer under this Agreement by the assignee, Developer shall be relieved ofits
legal dray to perform the assigned obligations set forth in this Agreement, except to the extent
Developer is in default hereunder prior to said transfer.
12.3 Assignee Sub o Terms of Agreement Following an assignment or transfer of
any ofthe rights and interests of ' eve l per set forth in this Agreement in accordance with
Sections 12.1 and 12.2, the assignee's exercise, use, and enjoyment of the Property shall be
subject to the terms of this Agreement to the same extent as if the assignee or transferee were
Dev
12.4 Release Upon Transfer of Interest in Leased Drop elly Upon the written consent
of City to the partial or complete transfer of Developers interest in the Leased Property . pursuant
to Section 13.0 of that certain Ground Lease By and Between City of Downey and Industrial
Realty Group, LC,, dated on or about December 4, 2003 (which consent shall not be
unreasonably withheld) and the exp written assumption in a form approved by City of such
assigned obligations of Developer under said Ground Lease by that assignee, Developer shall b
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relieved of its legal duty to perform the assigned obligations set forth in said Ground Lease,
except to the extent Developerper is in default thereunder prior to said transfer.
13. INSURANCE AND INDEMNITY.
13.1 Insurance.
13 L1 lase Proiect Insurance Developer shall procure and maintain on the
Developer Leased Property the insuran required under that certain Ground Lease dated
December 4, 2003 between City and Industrial Realty Group, LLC, a Nevada limited liability
company.
13.1.2 Enhanced Project Insurance if Developer elects tinder Section 6.1 t
build the Enhanced Project, then Developer shall procure and maintain insurance on the Property
in the types and amounts required under that certain Ground Lease dated December 4, 2003
between City and Industrial Realty group, LLC, a Nevada IImit d liability co pang.
13. 1 .3 Insurance Does Not Relieve Llii Insurance coverage in the
minimum amounts set forth in this Agreement shall not be construed to relieve :developer Of any
liability, whether within, outside, or ire excess of such coverage, e, and regardless or solvency or
insolvency of the insurer that issues the coverage; nor shall it preclude City from taking such
Other actions as are available to it under any Other provision o this Agreement Or othervvise at
law.
13.1-A Default for Failure to Maintain In urance. Failure by 'Developer t0
maintain all insurance required by this Agreement in effect at all times shall be a default b
Developerper under this Agreement. City, at its sole option, may exercise any remedy available t0
it in connection with such default. Additionally, City may purchase any such required insurance
coverage and City shall be entitled to immediate payment from Developer for an. y premiums and
associated costs paid by City - for such insurance coverage, Any election by City to purchase Or
not to purchase insurance for .Developer's contractor shall not relieve Developer of its Obligation
to obtain and maintain the insurance coverage required by this Agreement.
13. Indemnities by Developer
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1.321 General Indemnity Developer agrees to indemnify, protect, defend, and
hold harmless the City Parties from and against any and all Claims which may arise, directly Or
indirectly, from the acts, omissions,, or operations of Developerer o Developer's agents,
contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any
loss resulting solely from the intentional or active negligence of the City Parties.
Notwithstanding the foregoing, City skull have the right to select and retain counsel to defend
any such action or actions an Developer shall Pay th cost thereof-, provided, however, that the
Parties agree to attempt in good faith to coordinate and/or consolidate their defense of any Clain
that is subject to the 'Indemnification provisions of this Section 13
13-2.2 Prevail ing...W age Indemnity---and ,,.Notice to Developer of Labor Code
Section 1781. In connection with, but without limiting, the foregoing, Developer hereby
expressly acknowledges and agrees that the City is not by this Agreement affirmatively
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representing, and 'has not previously affirmatively represented, to the Developer or any
contractor(s) of Developer for any construction on or development on or adjacent to the
Property, in writing or otherwise, in a call for bids or any agreement or otherwise, that any work
to be undertaken on the property, as may be referred to in this Agreement or construed under this
A reement, is n a " public work, " as defined in Section 1720 of the Labor Code or under Da -
Bacon, or under any similar existing or hereinafter enacted laver or regulation. The Parties agree
that, in connection with the development and construction as defined by applicable lave) of the
Base Project or the Enhanced Project if ' eveloper makes the election authorized by Section
6 .1), including, without limitation, any and all public works as defined by applicable lair),.
Developer shall bear all risks of payment or non - payment of prevailing wages under California
law and/or fe law and/or the implementation of Labor Code Section 178 1, as the same may
be amended from time to tune, and/o Davisis Bacon and/or a other similar law. With respect to
the foregoing, Developer shall be solely responsible, expressly or impliedly and legally and
financially, for determinin and effectuating compliance with all applicable federal, state and
local public works requirements, prevailing wage laws, and labor laws and standards, and City
makes no representation., either legally and/or financially, as to the applicability or non-
applicability of any federal, stag and local laws to the construction of the Base Project and/or the
Enhanced Project
Without limiting the foregoing, Developer shall indemnify, protect, defend and hold harmless the
City an its officers, employees, agents, representatives, an attorneys, with counsel reasonably
acceptable to City, fr an against "increased costs' as defined in California ' Labor Code
Section 1781 ( Including Ci reasona attome s' fees, court an litigation costs, an fees of
expert witnesses) in connection with the development or construction as defined by applicable
la of or on the Prope that results or arises in any wa from 1 noncompliance by
Developer of the requirement, if and to the extent applicabl, to pay f or state prevailing
wages and hire apprentices; or failure by Deveer - to pro any require disclos or
identification as require by California La Code Sections 172 et seq. including without
limitation specifically Section 1781, as the same may be amended from time to time. The
foregoing indemnity shall survive the expiration or earlier termination of this Agreement.
J
1 Environmental IndernnYt Develop a in addition to any other
in emiiit obligations of . evelo er to City under this Agreeme or an other agreementU.
H between the Parties an at Developer's so cost and expense, to indemnify, p defend, hold
harmless with counsel reasonably acceptable to City) the City Parties and each of them fro
cc a against any an all Environmenta fosses that may, at any time, be impose u incurre
or suffer by, or c asserted or awar against, City direc or indirectly relating t or
arising from an Environmental Matters arising during or as a resu ofDeveloper's ownership or
use of the Property, but excluding any loss resulting solely from the intentional or active
negligence of the City Parties. Notwithstanding the foregoing, City shall have the right - to select
an retain counsel to defend any such action or actions and 'Developer shall pay the cost thereof;
provided, however, that the parties agree to attempt in ,food faith to coordinate and/or
consolidate their defense of any Environmental fosses that are subject to the indemnification
provisions of this Section 13,233. The indemnity provisions set forth in this Agreement shall
survive termination of this Agreement until the expiration o the statute of limitations for the
applicable Claim.
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13.3 Indemnification Procedures. wherever this Agreement requires any inde nitor to
indemnify any indemnitee:
1.3.3.1 Prompt Notice City shall promptly notify Developer in writing ofany
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Claim.
13.3.2 Cooperation City shall reasonably cooperate with Developers defense,
provided Developer reimburses City's actual reasonable out o pocket expenses (including Legal
Costs) of such cooperation.
l 3.3.3 Settlement. Any settlement shall require the prior written consent of both
City and Developer, which consent shall not be unreasonably withheld.
13.3.4 City Cooperation City shall reasonably cooperate with Developer's
defense, provided Developer reimburses City for its actual reasonable out of pocket expenses
including Legal Costs) of such cooperation.
13.3.5 Insurance Proceeds. Developer's obligations shall be reduced by net
insurance proceeds City actually receives for the matter giving rise to indemnification.
14. THIRD PARTY LEGAL C A LEN'GE.
14.1 Developer Covenant t AgreementDefendthis 'Developer acknowledges that
City is a "public entity" and/or a "Public agency as defined under applicable California law.
Therefore, City must satisfy the requirements of certain California statutes relating to the actions
of public entities, including, without limitation, CEQA. Also, as a public body, City's action in
approving this Agreement, the Specific plan, flaps, and/or any other current or future action of
City in connection with the approval
or implementation of the Base Project and/or the Enhanced
Project may be ubj ct to proceedings to invalidate this Agreement or mandamus. Developer
assumes the risk of and waives and releases any claims for delays and damages that may result to
Developer from any third -party legal actions related, to City's approval of this Agreement, the
activities contemplated under this Agreement, the Specific Plan, Maps, and/or any other current
or future action of City in connection with the approval or implementationentation of the Base Project
and/or the Enhanced project, earn in the event that an error, omission or abuse ofdiscretion by
the City is determined to have occurred. If a. third party files a legal action regarding City's
approval of this Agreement, the pursuit of the activities contemplated by this Agreement, the
Specific Plan, Maps, and/or any other current or future action of City in connection with the
approval or implementationentation of the Base Project and/or the Enhanced project, 'Developer shall
indemnify and defend the City, wi legal counsel reasonably selected by the City, against such
third -party .legal action, and skull pay all of the court costs, attorney fees, monetary awar
sanctions, attorney fee awards, expert witness and consulting fees, and any expenses of any and
all financial or performance obligations resulting
from the disposition of the legal
action. If
Developer breaches its obligations to defend and indemnify City as detailed in this Section 14.1,
City may terminate this Agreement on thirty calendar days' written notice to Developer of
City "s intent to - terminate this A referencing this Section 14.1, without any further
obligation on the part of City to perform the terms ofthis Agreement. I othin contained in this
Section. 14,1 shall he deemed or construed to be an express or implied admission that City i
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liable to Developer or any other person or entity for damages alleged from any alleged or
established failure of City to comply with any statute, including, without limitation, CEQA..
15. MISC LANEOUS.
15.1 Compli ance with Applicable Law Developer shall carry out the construction of
the Base Project and/or. the Enhanced Project in accordance with all applicable laws, regulations,
and rules of Governmental Agencies, including without limitation all applicable federal and state
labor standards.
15.2 ' Covenants. The provisions of this Agreement shall constitute covenants which
shall run with the lard comprising the Property for the benefit thereof, and t o br rde s an
benefits hereof shall bind and inure to the benefit of each of the Parties hereto and all successors
in Interest to the Parties hereto.
15.3 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).
15.4 .ecord.ation 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 ofthe City Connell, within the period
required by Section 65868.5 of the Govemment Code. Developer authorizes the recording of all
such documents against the Property, and each and every parcel within the Property, whether
preceding, during or after the Extended Term. a
15. Constructive Notice and Acceptance Sub *ect to Article 12, every person who
now or hereafter owns or acquires any right, title, or interest in or to any portion of the Rase
Project and/or the Enhanced Project or the Property is and shall be conclusively deemed to have
consented and agreed to every provision contained herein, whethe ,r or not any reference to this
Agreement is contained in the instrument by which such person acquired are interest in the Base
Project and/or the Enhanced Project or the Property.
15.6 Successors in Interest. Subject to Section 12. 1, 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. Subject to Section 12, 1 , each
covenant of this Agreement to do or refrain from doing some act regarding development of the
Property: i is for the benefit of and is a burden upon every portion of the Property; (ii) runs
with every portion of the Property- and W is binding upon Developer and each successor in
interest to Developer in ownership of the Property or any portion of the Property.
1. 5. Cif Managerer Impleme tation City shall implement. this Agreement through its
City /Manager. The City Manager is hereby authorized by City to issue approvals, interpretations
or waivers and enter into certain amendments to this Agreement on behalf of City, to the extent
that any such action(s) does do not materially or substantially change the Improvement or
increase the monetary obligations of City by more than Seventy-Five Thousand Dollars
75,000) in the aggregate, provided, however, that in the event the Specific Plan allows certain
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approvals by the Community Development Director, his designee or the Community
Development Department, the pr in the Specific Plan shall be follo All other
actions shall require the consideration and approval of the City Council, unless expressly
provided otherwise by action of the City Council. No in this Section 15 shall restrict the
submission to the City Council o any matter within the C Manager's authority under this
Section 15.6 , in the City Manager's sole and absolute
discretion, to obtain the City Council's
express and specific authorization on such matter. The specific intent of this Section 15 is to
authorize certain actions on behalf of City by the City Manager, but not to require that such
actions be taken by the City Manager, without consideration by the City Council;
15 .8 Political Reform Act. The Parties acknowledge that they are each aware of the
Political Reform Act. Each Party represents and warrants to the other that it is its furls intention
to comply with all applicable provisions of the Political Reform Act.
15. Survival of Agreement All of the provisions of this Agreement shall be
applicable to any dispute between the Patties arising from this Agreement, whether prior to or
followinging a pira.tion or termination of this Agreement, until any such dispute, is finally and
completely resolved between the Parties, either by written settlement, entry of a ion app
judgment or expiration o f all app I i abi e statutory limitations periods and al I term s P 1 ndi
o this A reer nt relatin ptodis ute resolution and limitations on da ma es or remedies shall
survive any expiration or termination of this Agreement.
15.10 Entire Agreement; Waivers and Amendment This Agreement constitutes the
entire understanding and agreement of the Parties and supersedes all previous negotiations,
discussions, and agreements among the Parties with respect to all or part of - the subject matter
hereof. No pa.rol. e evidence of any prior or other agreement shall be permitted to Contradict or
vary the terms of this Agreement. Failure by a Party to insist upon the strict performance of any
of the provisions of this Agreement by any other Party, or the failure by a Party to exercise its
rights upon the default of the other Party, shall not constitute a waiverr f such Party's - right t
insist and demand strict compliance b the other Parties with the terms of this Agreement
thereafter. Any amendments or modifications - to this Agreement taut be in writing, signed by
duly authori representatives of each of the Parties hereto, and recorded in the official
Records of Los Angeles County, California.
15.11 Principles of .lnterretation No inference in favor of or against any Party shall be
drawn from the fact that such. Panty has drafted any part of this Agreement. The Parties have
both participated, substantially in - the negotiation, drafting, and revision of this Agreement, Frith
advice from legal and other counsel and advisers of their own selection. A word, ter or phra
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 g vein 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
do cument, 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 i th word "and." Every reference to a law, statute,
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regrulati n, order, form or similar governmental requirement refers to each such requirement as
amended, modified, renumbered, superseded or succeeded, from time to time.
4
15 Into ration o Recitals The Recitals of fact set forth preceding this Agreement
are true an correct and are incorporated into this Agreement in their entirety by this reference.
t5.1.3 Section Headings and Secti nand Article References 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. All references to Section numbers shall be
construed to include any and all subsections of the referenced Section number. All references to
Articles shall be construed to include each and every section and Subsection within the
referenced Article.
1-5.1- Sin ul r and 'Plural As used in this Agreement, the singular of any word includes
the plural.
15.15 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 sell be to consecutive calendar months
and all references to tune periods in this Agreement measured in years shall be to consecutive
calendar years. Any reference to business days in this Agreement shall mean consecutive
business days.
15.16 Tine ofEssence. Time I s of the essence in the per rmance of the r v1stons of
this Agreement as to which time is a eleznent.
15.17 Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other Parties to the extent necessary to implement this
Agreement. Upon - the request of a Party at any time, the other Parties shall promptly execute,
with acknowledgementledgement r affidavit if reasonably required, and Bile or record such required
instruments and writings and take any actions as may be reasonably necessary to implement this
Agreement or to evidence or consummate the transactions contemplated by this Agreement.
15.1 S verability If any terra, pro covenant, or condition ofthis Agreement i
held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining
provisions ofthis Agreement shall continue in full force and effect, unless and to floe extent the
rights and obligations of any Party has been Materially altered or abridged by such holding.
15 Legal Exgenses, In any Action proceeding between City and Developer, the
prevailing party in such Action shall recover all of its actual and reasonable costs and expenses
whether or not the same would be recoverable pursuant to Code of Civil Procedure
Section 1033.5 or Civil Code Section 17 in the absence ofthis Agreement), ' Including expert
witness fees, attorney's fees, and costs of investigation an preparation prior to the
commencement of the Action. However, such recovery shall not exceed the dollar amount of - the
actual costs and expenses of the party from whom such recovery is sought for such same Action,
and such prevailing party shall not recover any costs and expenses in excess of the non-
prevailing part y' expenses. The right to recover such costs and expenses shall accrue upon
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mmencement o f the Act 10n, regardless o f wheth er the Action is prosecuted to a final j ud.gm nt
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or dectsion.
1.5.20 No Third Party, Beneficiarie This Agreement
and all of its terns, conditions,
and provisions are entered into only for the benefit. of the Parties executing this Agreement (arid
any successors in interest), and not for the benefit of any other
individual or entity. In this
regard, the owner of any portion of the Property that does not timely enter into and perform this
A or a substantially similar agreement with City shall have no benefit from, and shall
net be a beneficiary of, any of the provisions of this Agreement.
15.21 Relationship of Parties. City and Developer hereby renounce the existence of any
fail of joint venture or partnership between then and agree that nothing contained herein or in
any document executed in connection herewith shall be cnstru.ed as making City and Developer
joint venturers or partners.
15. I evel pr ent as a Private Undertakin The Parties acknowledge l and agree that
the development of the Development is a private development. Neither Party 1s acting as the
agent of the ether 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. Other than the relation-ship between City and Developer with respect to the
Developer Leased Property, the only relationship between City and Developerper xs that of a
government entity regulating the development of private property and the owner of such
property.
1 5.23. inspe ion of Books and Records Subject to the limitations set forth in Section
4A.5 City shall have the right at all reasonable times, at City's sole cost and expense, to inspect
the books and records of Developer relating to this Agreement, the Property, the Base Project
and/or the Enhanced Project, and any development approvals for the Base Project and/or the
r a
Enhanced Project, to the extent relevant to City rights or obligations under this Agreement, but
excluding any proprietary information or attorney-client privileged communications. Developer
shall also have the right at all reasonable tines, at Developer's sole cost and expense, to inspect
the books and records of City relating to this Agreement, the Property, the Base Projectt and r
the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced
Project, to the extent relevant to Developer's rights or obligations udder this Agreement, but
M excluding any proprietary information, closed - session information or attorney - client Privileged
communications.
1.5.24 Estop pel Certificate Any Party hereunder may, at any time, deliver written
notice to any other Party requesting such Party to certify in writing that, to the best knowledge of
the cer ifyIng Party, Q this Agreement is in full force and effect and a binding obligation of the
Party; (ii) this Agreement has not been amended or modified either orally or In writing, or if so
amended, identifying the amendments; and (iii) the requesting Party is net in default In the
performance cif its obligations set forth in this Agreement or, if in default, to les rib therein the
nature and amount of any such defaults. A. Marty receiving a request hereunder shall execute and
Z) return such certificate within sit days following the receipt thereof. Any third part
including a Mortgagee shall be entitled to rely on the Certificate.
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15,25 Applicable La; Venue This Agreement shall be construed and enforced in
accordance with the internal laves of the State of California. Any action at lave or in equity
arising; under this Agreement or brought by any Warty hereto for the p rl o e of enforcing,
construing or determining the validity of any provision of this Agreement shall be filed and tried
in the Superior Court of the County of Los Angeles, State of California or the United States
District Court for the Central District of California, Los Angeles Division, and the Parties hereto
waive all provisions of law providing for the removal or change of venue to ny other court.
15.26 Non of City officers and E= Iovees . No official, officer, employee,
agent or representative of City shall be personally liable to any of Developer or its shareholders,
partners, officers, employees, agents, respective, successors and assigns for any loss arising
out of or connected with this Agreement, the Existing Lard Use Regulations, ulations, or the development
of the Property.
1.5.27 Nora- Liability of Developer's officers and Ernpl. No official, officer,
employee, agent or representative of Developer skull be personally liable to any of the City
Parties for any loss arising out of or connected with this Agreement, the Existing .Land. Use
Regulations, or the development of the Property.
15.28 Notices. Any notice or communication required hereunder between City and
Developer must be in writing and may be given either personally, by registered or certified mail,
return receipt requested, or by facsimile transmission. if given by registered or certified mail, the
same shall be deemed to have be given and received on the date of actual receipt by the
addressee designated h reinl elow as the Party to whom the notice is sent. If per
delivered, a notice shall be deemed to have been given when delivered to the Party to horn it is
addressed. Notices delivered by facsimile transmission shall be deemed to have been given on
the first business day following the date of transmission to the - facsimile number.
A Party hereto
may at any time, by iving tern I days' written notice to the other parties hereto, designate any
other address in substitution of the address to { which such notice or communication skull be
giver. Such notices or communications shall be given to the Parties at their addresses set forth
below:
If to City City of Downey
City Mall
1.1.1.11 Brookshire
Loney, CA 9024 1.
Attn: City Manager
Telephone: (562) 904 -7284
Teleeop r: (562) 923 -6388
With a c Rutan & Tucker, LL.
1.1. Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attn: Jeffrey T.Wiching, Esq.
Telephone: (714)641
Tel cop : 14 546 -9035
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1 Representation as to Owne Developer represents and I warrants that
Developer is the owner in fee of the Developer Owned Pro
Manarino Fealty LLC
15615 Alton Parkway #450
Irvine, CA 9261.
Attu: Robert A. Manarino
Telephone: (949) 748 -7800
Telcop; (949) 748 -7807
With a c Allen Matkins Leck Gamble Mallory & Natsis LLP
Three Embarcadero Center, 12 Floor
San Francisco, C 941.1.1
Attn Son Ransom, Esq.
telephone: (415) 837 -1515
T l 41 X51
1. , o Representation as to Ownership City represents and warrants that City is the
owner in fee of the Developer Leased. Property.
1. Authority - to Execute Developer warrants and represents that (i) is duly
organized and existin it it is duly authorized to execute and deliver this Agreement, (ill') by so
executing this Agreement, 'Developer is ormall bound to the provisions of this Agreement,
iv) Developer's entering into and p of its obligations set forte in this A does
not violate any provision of any other agreement to which Developer is bound, and (v) there is no
existing or threatened litigation or legal proceeding of which Developer is aware hie could
prevent Developer from entering into
or performing its obligations set -forth in this Agreement.
15.32 Authority ,to, Execute City warrants and represents that i it is duly organized
and existing, (ii) it is duly authorized to execute and deliver this Agreement, (Iii) by so executing
this Agreement, City is formally bound to the provisions ofthis Agreement, N City's entering
into an performance ofits obligations set forth in this Agreement does not violate any provision
of any other agreement to which City is bound, and there is no existing or threatened
litigation or legal . proceeding of hich City is aware which could prevent City from entering into
or performing its obligations set forth in this Agreement.
15.33 Execution of A. re m nt; Count rp rts This Agreement may be executed by the
Parties in counterparts, each of which when so executed shall be deemed to be n original and all
of which - taken together shall constitute one and the sarne agreement. This Agreement shall
constitute a valid and enforceable agreement ben City and Developer.
1.5.34 Exhibits. This Agreement contains nine exhibits, attached hereto and made a
part hereof by this reference. Said exhibits are identified as follows.
A Legal Description of Developer Owned Property
D of Developer Owned Propert
C 'Legal Description of'Devel Lease .Pro ert r
T Depiction of Developer Leased Property
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E 'Depiction ofProperty
F Fire Station Site elan
G [RESERVED]
H Pre-Approved Detail Development Brand N=
I Pre-Approved Motel Development r nd Names
Signatures on next page]
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Agenda Page 49
L_. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the
ate first written above.
CITY"
CITY OF DOWNEY,
a Charter. City
By:
May
ATTEST:
Cit Clerk
APPROVED AS TO FORK
tt !i.. AbI h arei
xt ttrin
SIGNATURES CONTINUE ON FALLOWING PAGE]
2698521.7/iMa a
028110- 000 1 - 14- 121,]T Ma w3 7m Agenda Page 50
L_. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
DEVELOPER"
CCP IRG D WN Y, LLC,
Delaware limited liability company
By: P C LB IRG Downey, LLC,
its M na ; g Member
By:
Name: William R. Undsav
Title: ut on e ggnatory
IRG DOS E, LLC,
California limited liability company
By: IRG 1.11, LLC
By: S.L. Properties, In
y: + off •
N am e c&4 -Q
Title: P&d
269$5 21.71i N1anagcD
02S 110- 000 2/3 - l4 -12/ ffWin -Agenda Page 51
RDEF MEMO: This C is NOT an OFFICIAL RECORD.F D.
STATE OF CALIFORNIA )
ss
COUNTY OF LOS ANGELES)
pffm"aftH , proved to me the basis of satisfac e be the
person(s) whose manes is /are subscribed to the within instrument and acknowledged to me that
he/she/they executed the sane in his /her /their authorized apa ity is , and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the perso
acted, executed the instrument. I r ,
Notary Public
On LV r" ZK 12 C*'L before me, fit L , personally
appeared l, ".\, [tn _12 . "N\&rc
I cP ; ..1; T NPJ-AT U - P C. ; ti,: Lind r the, laws o f
Wit s ++ •••yy vv r r sea ,
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B IER. L. WILLS Y
Commission # 1830053
Notary Public - California z
Ofan Co otar bi is
Mz Comm. Expires Jan 9. 201
SEAL]
STATE OF CALIFORNIA }
S5
COUNTY OF LOS ANGELES)
On before nee, personally
appeared
personally known to me or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name( is /are su to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized ea.pa ity ies , and that by his/her /their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
SEAL]
2698 5 213// a M
028110- 900213.14 - Inc
Notar Public
39-Agenda Page 52
O DEF MEMO: This COPY is NOT an OFFICIAL RECORD.D.
CALIFORNIA ALLoPURPOSE ACKNOWLEDGMENT
P 11
State of California
County of ism 9'a
On / a 9 me,
Date }
personally appeared
C"11Tdr
He nsert Name and Title of the Officer
y
Name(s) of Signers
3
ANIA K AME
aM csim 1971284
Wka-. - a rn
LOS Mg*s qty
COW Ex9irn Mar So 2016
Ptaoe Notary Seal Above
I
who proved to rye on the basis of satisfactory evidence to
be the person(Wwhose named islam subscribed to the
within instrument and acknowledged to me that
he/she/they executed the same in his/hwAh& authorized
apaeity(o*, and that by hi 1haAheir signatureW on the
instrument the person, or the entity upon behalf of
which the person(*) anted, executed the instrument.
I certify under PENALTY OF PERium, Y under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS han a offi ' eal.
5
w
1
Signature
Signature of Nota Public
OPTIONAL
Though the information below is not required by law, it may grove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Docume
Title or Type of Document:
Document Date:
c
co
LIE
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Signer(s) other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
Individual
Corporate Officer —Title —
Partner — Limited General
Attorney in Fact
Trustee
E Guardian or Conservator
E. Other:
Signer Is Representing:
RI HTTHUMBPRINT
OF SIGNER
of thurnb here
Numb of Pages:
Signer Name:
Individual
Corporate Officer — Title:
Partner — C Limited General
Attorney in Fact
Trustee
C Guardian or Conservator
E other:
Signer Is Representing:
RI HTTHUMBPRINT
OF SIGNER
Top of thuMb ..
02007 National Not my Association* 9350 De Soto Ave., P.O. Box 2402 i Chatsworth, CA 91313- • www.NationalMotary.org Item #5907 Reorder: Call Toll -Free 1- 800 - 876.61327
Prel
Agenda Page 53
L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
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CALIFORNIA ALLmPURPOSE ACKNOWLEDGMENT
Tar. * 1. P. " * *fa . . {'*.. r.. r.. s '.# ....s,. .. *y. * 1.3'.x.'*.. ,r.T. ,ra*. a4 h4x.. .d7 { *, 4'k. '*. , *7
State of California
County of VtC...5
Notary PraOni & CCJA before me k4... a
Date Here Insert Name and Title of t e officer
personally appeared y
Varne( s ) of Signer(s)
a
ABRI L L. WILL '
commission # 1830053
f Notary Public - California
orange CountY ...
y Expires jan. 9. 2013
who proved to me on the basis of satisfactory evidence to
be the person(s) whose nar is/ar l subscribed to the
within instrument and ael nowt dg d to me that
he executed the same in hi authorized
apaity and that b hihertheir signature( on the
instrument the person, or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY of PERJURY under the lags
of the State of California that the foregoing paragraph i
true and correct.
WITNESS my hand and official seal.
Signatur
Place Notary Seal Above Signature of Notary Pu "
m TIO
Though the information below Is not required by lair, it may prove variable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Documentent Date:
Signer(s) Other Than Named Above:
Capaci #y(ies) Claimed by Signer(s)
Signer's tame:
Individual
Corporate Officer — Titl
Partner — Limited General
Attorney in Fact
Trustee
I Guardian or Conservator
other:
Signer Is Repres+ ntin -
RI HTTHUMBPRINT
OF SIGNER
of thurnb here
Number of Pages:
Signer's Name:
Individual
Corporate Officer Titles:
Partner — Limited General
Attorney in Fact
Trustee
Guardian or Conservator
Other:
Signer Is Representing:
RIGHT THUMBPRINT
OF I N1ER
02007 N afla na i Note ry Association * 9350 De Soto Ave., P. 1. Boat 2402 * Chatsworth, CA 91313 -2402 + www. National Notary. arg Item #5907 Reorder; Call Tall-F 14W876-6827
L
Agenda Page 54
L_. F DEF MEMO: This COPY is NOT an OFFICIAL RECORD.D.
i
y 1
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § I ISO
State of California
4 Ab i! e.
i dare Insert dame and Titl of the officer
Name(s) of Signer(s)
t r
I
who p to me on the basis 'of satisfactory
evidence be the ero who e
subscribed to the within in rnent and
1p.-- qe that a /they executed the carne in
is or /their authorized o aoity ), and that b
their gnatur a instrument the
DENISE MARIE ALVAR r on - , r ity upon behalf of which the
0' MISSIOn 1849047 son acted executed floe instrument.
Notary Public - allforn
Los AngelesCouny I ertif under PENALTY E PERJURY under theEscLlresomm. EL 1, 201 y
laws of the State of California that the foregoing
paragraph is true trod correct,
WITNESS my Vadd ancyofficial sell.
Sig V ...
Place Notary Seal Above Signature of (Votary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable t persons relying on the doe rent
and eoul 1 pro vent fraudulent removal and reattachment of this form to another document.
Description of Att - Document
Title or Type o ocument
Document Date: umber of Pages:
Signer(s) Other Than Named
C pa it i Claimed by Signers
Sig air#
0 Corporate Offi — Title): Z_
11 Individual HUMBPR
C)F SIGNER
EJ Partner — El Limited Ej General 7p of thumb here
Attorney in Fact
L1 Trustee
Guardian or Conservator
0 Other:
Signer is Representing:Signer Is R pre nting:
Top of thumb flare
er's fame
Corpd it — Titl
Individual
0 Partner — F) Limited I-1 General
El Attorney in Fact
Q Trustee
0 Guardian or Conservator
a {ether:
2010 National Notary Asso iation - N a tia nal Notary. o rg + 1- 800 -U S N OTAR P (1 6Q0- 876 -6827) Item #5907Agenda Page 55
L_. ORDEF MEMO: This COPY is NOT an OFFICIAL RECORD.
STATE OF CALIFORNIA
SS
COUNTY OF LOS ANG
On 6441 before me Una M , J )NAtT person 1
appeared 1V
At La—ilawa-40A *IQ proved to nee on the basis of satisfactory evidence) to be the
personal w named is a . subscribed to the within instrument and, acknowledged to me that
he ob executed the sane in his authorized capacity* , and that by hiss r
si nat real on - the instrument the persons or the entity upon behalf of whi the p rson(4 ,
acted, executed the instrument. I certify under PENALV OF PERJURY unde the laws of the
State of - C liforni that the foregoing is true and correct,
Witness my hand and official sea].
ADRIA M. JIMENEZ Notary Public
COMMISSion # 1971284
Nictory Public - calitorni, S> Los Aojgs Court
COMM. E Uar 51 18
STATE F C A 1F NIA
SS
COUNTY OF LOS AN S
On N for me personally
appeared
personally known to me or proved to e on the basis o satisfactory evidence) to be the
person(s) whose name(s) i t subscribedd t e within instrument and acknowledged to me that
lie /sloe /they executedd the same 1n his her /their thorized .pacify i s , and that by his/her /their
signature(s) n the instrument the persons or entity up b half .of which the person(s
acted, executed instrument.
Witness nay hand and official seal.
Notary Public
SEAL.]
2698521,7AMana eDM
02 110- 000213. -1 BTMAae
Agenda Page 56
L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
EXHIBIT "A91
Legal Description of Developer Owned Proper
R
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n Agenda Page 57
L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
FaS
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LEGAL DESCRIPTION
ACQUISITION
THOSE PORTIONS O LOT 2 AND LOT 3 OF FRACTIONAL SECTION 10, TOWNSHIP 3
SOUTH, RANGE, 12 WEST, IN THE RANCHO SAWA GE TOGETHER WrM
PORTION OF THE SOUTHWEST QUARTE OF S D FRACTIONAL SECTION 10, IN THE
CITY OF DOWNEY, COUNTY OF LOS ANGELES, STATE OF: CALIFORNIA AS RECORDED
IN BOOK 1, PAGE 502 OF NSCEUAN FECORO , REWROED IN THE OFFICE OF
THE COUNTY RECUR O SA COU DESCRIBED AS FOLLOWS:
BE aMMG AT A POINT IN THE NORTHERLY L NE OF SAID LOT 2 IN THE 14ORT'HWEST
OUAFRTER OF FRAECT1CML SECTI 10, SAID UNE ALSO BEING THE NORTHERLY SINE
OF STEWART AND CA4AY ROAD, O FEET WADE, DISTANT THEREON SOUTH 95 14*
WEST 646.51 F FROM THE NORTHEAST CORNER OF SAID LOT R THENCE ON A
LINE BETWEEN SAID POINT OF REOINNING AND THE SOUTHWEST CORNER OF THE
SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOLM QUARTER
OF FRACTIONAL SECTION 10, SOUTH 00IS16 WEST 1011.24 FEET TO THE TRUE POINT
OF BEGINNING, THENCE SOUTH W4W11" WEST 1194.23 FEET TO A POINT IN A LINE
THAT IS PARALLEL WffH AND DISTANT SOUTHEASTERLY 40.00 FEET, MEASUREDE.D AT
RJGHT ANGLES, FROM THE CEWERLINE OF LAKEWOOD BOULEVARD, AS SHOWN OIL
COUNTY SURVEYORS B SERIES MAP NO. 1147, ON RLE IN THE OFFICE OF THE
COUNTY ENGINEER OF SAID COUNTY; THENCE SOUTH 3141"39" SST. ALONG SA
PARALLEL LANE, A DISTANCE OF 1437 27 FEET TO A POINT IN A LINE TMT IS PARALLE
WITH AND DISTANT EASTERLY 40.OD FEET, MEASURED AT RIGHT ANGLES, FROM THE
CENTERLINE OF CLARK AVENUE AS SHOWN ONE SAID COUNTY URV YORS B SER
M NAP O. 1147; THENCE SOUTH 00 WEST, ALON LASTSAD PARALLEL LIME, A
DISTANCE O 4x5,49 FEET, THENCE. NORT ( WO(.1 EAS %.7 FEET TO THE
BEGINNING OF A TANGENT CURVE COWAVE NORTHWESTERLY AND HAVING
RADIUS OF 600.00 FEET; THENCE NORTHEASTERLY AL SAID CURVE THROUGH A
CENTRAL ANGLE OF I W48 4 ", A DISTANCE OF 197.00 FEET TO THE BEGINNING OF A
COMPOUND CURVE CONCAVE NORTK WESTERLY AN HAVING A RADIUS OF 82.
FEET; THENCE NORTHEASTERLY ALO SAID CURVE THROUGH A CENTM ANGLE
OF 58`1Z23", A DISTANCE OF 84.73 FEET TO THE BEGINNING OF A REVERSE CURVE
CONCAVE SOUTHEASTERLY AND DIVING A RADIUS OF 398,00 FEET; THENCE
NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 78°01'00*, A
DISTANCE OF 641_A5 FEET; THENCE NORTH OWO'00" EAST 321.62 FEET TO THE
BEGINNING OF A TANGENT CUB CONCAVE SOInHWESTERLY AND HAVING A
RADIUS OF 418.00 FEET; THENCE SOUTHE ALONG SAID CURVE THROUGH
CENTRAL ANG OF1F - r3g r f A ENS CE OF 12;8.78 FEET TO SAID LINE BETWEEN
THE POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE SOUTHEAST
QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST OIJARTER OF
FRACTIONAL SECTION 10; THENCE NORTH 0013 10" EAST, ALONG SAILT LIME, A
DISTANCE OF 1324.18 FEET TO THE TRUE POINT OF BEG INNNG.
CO!ITAINING AN AREA OF x,558,976 SQUARE FEET, MORE OR LESS.
ALL AS SHOWN ON EXHIW "W ATTACHED HERET O AND MADE A PANT HMEOF.
e LAN
WILUAM EADSO , LS. 0154
W. 6154
Ems. 3--31-W .
5
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Agenda Page 58
RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
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ACQUIS P 1 EL"
LOT
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WASMM
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SECT 10
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SEC.
EliWOON & ASSOCIATES, INC.
K-L
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0**% CJL 01 710 AM"
ml X1751 FAX mewok
Agenda Page 59
L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
X IT " t
Depiction Developer Owned * ' erg
1 Agenda Page 60
RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
i
EXHIBIT " B "
INDUSTRIAL REALTY GROUP ND LEA r
LINE TAME
gUART AND fM"
UNE BEARING DISTANCE
Li S 89"61 "04 , " 238,81'
N'LY UNE
LOT 2
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Agenda Page 61
L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
Legal Description of Developer Leased Property
Agenda Page 62
L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
CI& cesmpmpo
IMMSTRY& RMW GROUP - GWUND LEASE
THAT PORTION OF LOT 2 IN THE NORTHWEST QUARTER OF FRACTIONAL SECTION ill,
TOWNSHIP 3 SOUTH, RANGE 12 WEST, IN THE RANCHO SANTA GERTRUDES,
TOGETHER W'fTH A PORTIONS OF THE SOUTHWEST QUARTER OF SAID FRACTIONAL
SECTION 10, IN THE CITY OF DOWNEY, COUNTYT OF LOS ANGELES, STATE OF
OALIFOI NLA AS RECORDED IN BCl 1, PAGE 502 OF MISCELLANEOUS REOORDS,
R IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED
AS FOLLOWS:
BEGIN14ING AT A POINT IN THE NORTHERLY LIME OF SAID LOT 2 IN THE NORTHWEST
QUARTER OF FRACTIONAL SECTION 10, SAID LINE ALSO SaNG THE NORTHERLY LINE
F STEWART AND GRAY ROAD, 80 FEET WIDE, DISTANT THEREON SOUTH KrSZ1 '
WEST M8,51 FEET FROM THE NORTHEAST COMER OF SAID LOT Z THENCE ON A LINE
BETWEEN SAID POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE
SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER
OF FRACTIONAL SECTION 10, SO LI OIL'° MW WEST II OCL59 FEET TO THE TIDE POINT
OF K-GIMM y THENCE AT RIGHT ANGLES TO THE EASTERLY LINE OF SAID LOT 2,
SAID EASTERLY UNE ALSO BONG THE DENT'ERUNE OF BELLFLOWER BOULEVAR
NORTH W572T EAST 813.20 FELT TO A POINT IN A UNE THAT IS PARALLEL WITH AND
DISTANT WESTEY 40,00 FEET. CURED AT RIGHT ANGLES, FROM SAID EASTE
LINE OF LOT , THENCE SOUTH OCP07` 7r EAST, ALONG SAID PARALLEL LINE,
DISTANCE OF 22Z54 FEET TO THE INTERSECTION OF SMD PARALLEL UNE, WITH
LINE THA IS PARALLEL WNTI-I AND DISTANT WESTERLY 40.00 FEET, MFASUFtED AT
RIGKr ANGLES, FROM THE EASWR UNE OF $NO SOUV OLIARTER OF SMO
FRAC SEA 10; THENCE SOUTH 0(r0fl r EAST, ALONG'LAST SAID PARALLEL
UNE, A DIS OF 1225,63 FEES' TO A LIVE TRAT IS PARALIJEL WITH AND DISTANT
NORTHERLY 08.00 FEET, MEASURED AT RIGHT ANGLES, FRO THE SOUTHERLY LINE
OF SAID NORTHEASTST QUARTE OF THE SOUTHWEST QUARTER OF FRACTIONAL,
SECTION 10; THENCE SOUTH 8M1'Q4* WEST, ALONG LAST SAID PARAU.EL LINE, A
DISTANCE OF 238.81 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE
NORTHEASTERLY AND HAVING A RADIUS OF 252. FEET, THENCE NOfTTHY STERLY ,
AL014G SAID CURVE THROUGH A CENTRAL ANGLE 49lr27' 10 , DISTANCE OF 217.09
FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE S LTT1 WESTERLY AND
HAVING A RADIUS OF 410.04 FEET; THENCE N RTI-WESTERLY AIL0W SAI C
THROUGH A CENTRAL ANGLE OF 31 033- r, A DISTANCE OF 230. FEET TO SAID UNE
BETWEEN THE POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE
SOUTH GLKRTER OF THE NORTHEAST QUARTER OF THE EST QUART
OF FRACTIONAL SECTION 10r THEIM NORTH 00''1,710" EAST, ALONG SAID LINE, A
DISTANCE OF 1234.83 FEET TO THE TRUE POINT OF JINNI
CONTAI AN AREA OF %7,497 SQUARE FEET. MORE OR LESS.
ALL AS SHOWN ON EXHIBIT 'So ATTACHED HERET AN MADE A PART HEREOF.
01 •
1 1.'
SON S. 8164
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Agenda Page 63
L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
EXHIBIT "B"
TR(AL REALTYl GROUP ---' GROUN VEASEm N.E. COR.
LT 2
JRT #D ftLINETABLE
DfTIdIJNEBEARING
N LY LaN N NIG
LOT 2
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LO 2
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1 +, SEC. 10SEC. I
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Agenda Page 64
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EXHIBIT f ' Ell
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EXHIBIT 'Iff
Depiction Fire Station S
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L-. RDEF MEMO: This COPY is NOT an OFFICIAL RECORD.F D.
EXHIBIT 'tG'f
RESERVEDI
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n
n
Agenda Page 70
O RDER MEMO: This COPY is NOT an OFFICIAL RECORD.
EXHIBIT "H"
Pre-Approved Retail Dev l p ment Brand Nam
VIA
W
0
M _
TF
spa
TF
i
SNORTING GOODS
0
BIG
ABELAS
DICKS SPORTING GOODS
GOLF SMITH
NIKE FACTORY STORE
ROGER DUNN
SPORT CHALET
PORTrART
BASS PRO SHOP - OUTDOOR W TRACKER BOATS
UPERCENTER
TOYS, GALES & ELECTRONICS
AT&T WIRELESS
BABIES R U
GAME STOP
T- MOBILE
TOYS R US
VERIZON WIRELESS
FRY'S
SPECIALTY DINING
AUNTIE ANNE'S PRETZEL
BAJA FRESH
BAS IN R OBBINS
BEN & JERRY'S
COFFEE BEAN & TEA LEAF
LDTONE CRE
HOT DOG ON A STICK
JAMBA JUICE
LAMAJN SHISH KABOB
MAUI STYLE HAWAIIAN BB
NIBI PHO BISTRO
N THE BORDER
PANDA EXPRESS
PANERA BREAD
RED BRICK PIZZA
ROCKY MOUNTAIN CHOCOLATE FACTORY
R IT SUSHI
S ARRO ITALIAN EATERY
STRBDB
SUBWAY
SWEET FACTORY
TOGO
TUTTI FRUTTI FROZEN YOGURT
Y GURTLAND
PINIBERRY
FARRELLB ICE CREAM PARLOR
CASUAL. DINI
APPLEBEE'
BENIHANA
BLACK ANGUS
BOSTON'S GOURMET PIZZA
BUBBA GUMP SHRIMP CO. RESTAURANTS
7
CALIFO PIZZA KITCHEN
EFIRE ITALIAN YOGURT
CHEESECAKE FACTORY
CHICAGO PIZZA & BREWERY
CLAIM JUMPER
CORNER BAKERY CAFE
DAILY GRILL
DAPHNE'S GREEK CAFE
EINSTEIN BROS BAGELS
FIVE GUYS FAMOUS BURGERS AND FRIES
FRESA'S MEXICAN GRILL
HANAH GRILLE
ISLANDS RESTAURANTS
JOE'S GRAB SHACK HOLDINGS, INC.
JOHNNY R
HABIT BURGER
LONE STAR STEAKHOUSE & SALOON IN
MACARONI GRILL
MAGGIANO'S LITTLE ITALY
M C RMI K & S HMI K'S SEAFOOD RESTAURANTS
IEL'S DRIVE -I1
OLD SPAGHETTI FACTORY
N THE B MEXICAN GRILL & CANTINA
ORIGINAL ROADHOUSE GRILL
OUTBACK STEAKHOUSE
P.F. HAN ;J i'S CHINA BISTI , INC.
PARADISE BAKERY & CAFE
PEI WEI ASIAN DINER
PICK UP STIR, INC.
PORTILLO RESTAURANT GROUP
RED LOBSTER
RED ROBIN
RUBY'S LINER
SPLANTATIr
T.G.I. FRIDAYS
W RANCH
YARDHUSE
FORMAL DINING
BOA fSTEAK HOUSE
CAFE RD
FLEMIN
HOUSTNS
DINGS SEAFOOD
LE GRAND ORANGE
rIORT NS
RY
SUSHI R KU
TONY RMS
TORO'S
RUTH CHRIS STEAKHOUSE
FOOTWEAR
ADIDAS
AEROSLES
BASS
BENNETTON
Agenda Page 71
L-. F DEF MEMO: This COPY is NOT an OFFICIAL RECORD.D.
CLAIRE'S
CLARKS /BOSTONIAN
CONVERSE
DC SHOES
DSW
ETNIES: ES
FAMOUS FOOTWEAR
NINE WEST
OFF BR ADWAY
PUMA
REEBOK
RPFT
SHOE PAVILLI N
SILTHERS
SPRIT
VANS
VINE CAMUTO SHOES
VLM
HOUSEWARES & HOME FURNISHING
DAY BLINDS
AARON BROTHERS
ANNA'S LINENS
BOMBAY COMPANY
RNINGWARE C BELLE REVERE
COST PLUS
HOME GOODS TJX COMPANY)
KITCHEN COLLECTION
LE GRELISET
LINENS N THINGS
MATTRESS GALLERY
PIER-1 IMPORTS
MEN'S APPAREL
AEROPOSTLE
rr AMERICAN APPAREL
BAHRAH
BANANA REPUBLIC
Lu BENNETT N
BILLABN
J
CALVIN KLEIN
COLUMBIA SPORTSWEAR
D SHOES
LL DNY
DOCKERS
c ECKO UNLTD.
co F'ILENE'S BASEMENT
FOSSIL
GAP, IN
GUESS
cn H &M
HANES BRANDS
n HURLEY INTERNATIONAL
ID
TOURNEYS
cn JUICY COUTURE
KENNETH COLE
LEVIS
LIDS
LUCKY BRAND JEANS
W MICHAEL KORS
MICHAEL'S
rlr NAUTICA
W
rlr
0
NIKE FACTORY STORE
NORDSTROM
NORDSTROM RACK
O'NEILL
PAOLO GIARDINI
PERRY ELLIS
QUICKSILVER
STEIN MART
T.J. MARX
TILLY'S
TOMMY H I LF Iii ER
U.S. POLO ASSN.
UDDER ARMOUR
VAN HEUSEI
WOMENS APPAREL
AERPSTLE
AMERICAN APPAREL
ANN TAYLOR
BANANA REPUBLIC
BBGIRLS
BBI MAXARIA
BENNETTN
B I L LABN
ABI
CALVIN KLEIN
CHARLOTTE i USSE
CHARMING SHOPS
COLUMBIA SPORTSWEAR
DINY
DOCKERS
DOT'S
DRESS BARN
ECKO UN LTD .
ESPIRIT
FILENE'S BASEMENT
FOREIGN EXCHANGE
FOSSIL
GAP, IN
GUESS
HM
MANES BRANDS
HURLEY INTERNATIONAL
I}D
JOURNEYS
JUICY COUTURE
JUSTICE
KENNETH COLE
IIPLING
LEVIS
LIDS
LUCKY BRAND JEANS
MAIDENFRM
MAXSTU D I .0 M
MICHAEL KORS
MICHAEL'S
NAUTICA
NIKE FACTORY STORE
NORDSTROM
NORDSTROM RACK
NOT YOUR DAUGHTERS JEANS
O'NEILL
PAPAYA FACTORY OUTLET
PERRY ELLIS
Agenda Page 72
L-. F DEF MEMO: This COPY is NOT an OFFICIAL RECORD.D.
v -
0 q ,
4
vvniuyrr "Y"
Pre-Approved Hotel Development Brand Nam
HILTON WORLDWIDE
LUXUR
DNRAD HOTELS & RESORTS
1 ALD ORF AST RIA HOTELS AND RESORTS
FILL SERVICE
HILTON HOTELS & RESORTS
D UBLETREE BY HILTON
EMBASSYY SMITES
FOCUSED SERVICE
HILTON GARDEN INN
HAMPTON INN
HAMPTONN If N & SUITES
STARWOOD MOTELS AND RESORTS
SHERATON
W ESTIN
W HOTELS
FOUR POINTS BY SHERATON
LE MERIDIEN
BT. REGIS
THE LUXURY COLLECTION
ALOFT .
ELEM
MA RRIOTT I TERNA TI N # L
MARRI TT HOTELS & RESORTS
JW II ARRI TT HOTELS & RESORTS
RENAISSANCE HOTELS
EDITION HOTELS
AUTOGRAPH COLLECTION
COURTYARD BY TART IOTT
AC HOTELS BY MARRI TT
RESIDENCE INN BY MARRITT
FAIRFIELD INN & SUITES BY MAI RI TT
1ARRITT CONFERENCE CENTERS
T W EPLA E SUITES BY II ARRI ITT
SPRINGHILL SMITES BY MARRI }TT
MARRIOTT VACATION CLUB
THE RITZ-CARLTON HOTEL COMPANY, L.L.C.
THE RITZ-CARLT DESTINATION CLUB
E E USTAY
I ARRI TT EXECUTIVE APARTMENT
GRAND RESIDENCES BY MARRI TT
CROWN' PLAZA HOTELS
X IBrr Hi
269852 ! .7iiManageDM
028 11 0 -0 }V2- 4- l IJT /jt.m 4-Agenda Page 73
L-. F DEF MEMO: This COPY is NOT an OFFICIAL RECORD.D.
I# t, *
1 *.
QUICKSILVER
STEIN MAIN
U
T.J. MARX
THE AVE
TI L LY'
TOMMY HILLIER
TORRID
TREND THEORY
TWO LIFTS
U.S. POLO ASSN.
LTA
UNDER ARMOUR
CHILDREN'S APPAREL
BABIES R US
CARTER'S
CHILDREN'S PLACE
LIDS BUDGIE
KIDS SDPEFENTER
OSHKOSH
STRIDE RITE
SPECIALTIES
4 HOUR FITNESS
ACE HAF D IIAI E
ARIZONA LEATHER
BALLY'S
BAI BE UES GALORE
BARNES & NOBLE
BEVERAGES N MORE
BRISTOL FARMS
CALIFORNIANIA NATIONAL BANK
CHASE BAND
COACH
DAVIDS BRIDAL
DAVE AND BUSTERS
DESIGNER FRAGRANCES & COSMETICS
ECKO UNLTD.
FEDEX KINKOS
GELSO IS SUPER MARKET
GOLDS GYM
YMB REE
HAIFA CUTTERS
HAIR SALON
HALLMARK
HANCOCK FABRICS
HENRY'S FARMERS MARKET
HILTON
JCS -ANN FABRIC
IRAGEN
LIDS
NAIL BALM
OFFICE DEPOT
PACIFIC DENTAL
PARTY AMERICA
SAMSONITE COMPANY STORE
SMART & FINAL
SPROCKETS KIDS
SPROUTS MARKET
SUNGLASS HUT
TARGET
TIME FACTORY WATCH OUTLET
TRADER JOE'S
TRUE VALUE
WELLS FARGO
WHLEFDS
WILSONS LEATHER
67
S
M,Agenda Page 74
028110-0002/7-27-17/hsr/jtm
-1-
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
(Above Space for Recorder's Use Only)
FIRST AMENDMENT TO TIERRA LUNA DEVELOPMENT AGREEMENT
by and between CITY OF DOWNEY 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
This First Amendment to Tierra Luna Development Agreement ("First Amendment") is
made and entered into effective as of ______________, 2017, by and between the CITY OF
DOWNEY, a California charter city, ("City"), 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 collectively referred to herein as the "Parties."
RECITALS
A. Whereas, on March 15, 2012, the Parties entered into the Tierra Luna
Development Agreement ("Development Agreement");
B. Whereas, the Development Agreement allowed Developer to develop the Property
with either the Base Project or the Enhanced Project;
C. Whereas, Developer was required by Section 6.1 to make an election in writing
during the first five years of the Development Agreement's term if Developer wished to develop
the Enhanced Project on the Property;
D. Whereas, Developer did not make such an election and therefore Developer now
wishes to codify in writing its decision to develop the Base Project on the Property; and
E. Whereas, the Parties also wish to amend certain sections of the Development
Agreement.
Agenda Page 75
028110-0002/7-27-17/hsr/jtm
-2-
NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by
reference, and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties hereby agree as follows:
1. DEVELOPMENT OF THE PROPERTY
1.1. Development of the Base Project. Developer has elected to carry out and develop
the Base Project on the Property in accordance with the Existing Land Use Regulations. As a
result, Developer hereby reaffirms that it will comply with the provisions of the Development
Agreement that apply to the Base Project.
1.2. Developer Election to Develop Enhanced Project. Developer has not and will not
make an election to develop the Enhanced Project on the Property pursuant to Section 6.1 of the
Development Agreement. In light of Developer's decision to develop the Base Project, the
provisions of Article 6 of the Development Agreement do not and will not apply to the
development of the Property. Article 6 of the Development Agreement shall therefore be deleted
in its entirety.
1.3. Term with Enhanced Project Election. Section 2.1.2 of the Development
Agreement shall be deleted in its entirety given the Developer's decision to proceed with the
Base Project.
2. GENERAL DEVELOPER COVENANTS
2.1. Large Format and Remaining Commercial Development Retailers. Section 5.2 of
the Development Agreement shall be amended and replaced as follows:
Large Format and Remaining Commercial Development Retailers. All Large Format
Retail Development and Remaining Commercial Development developed as part of the
Base Project shall be operated under one of the retail brand names set forth in Exhibit
"H" or such other retail brand name in the Developer's sole discretion.
3. FIRE STATION DEDICATION AND DEVELOPMENT
3.1. Development of the Fire Station Site. Article 8 of the Development Agreement
allows the City to request in writing that the Developer design and construct a Fire Station on the
Property. The City no longer desires to have a Fire Station built on the Property. Article 8 of the
Development Agreement, together with the definitions included in Sections 1.36, 1.37, 1.38 and
1.39, shall therefore be deleted in their entirety. Exhibit F shall also be deleted from the
Development Agreement.
4. MISCELLANEOUS
4.1. Notices. Section 15.28 of the Development Agreement shall be amended to
replace the Developer and its counsel with the following:
Agenda Page 76
028110-0002/7-27-17/hsr/jtm
-3-
If to Developer: PCCP IRG Downey, LLC
555 California Street, Suite 3450
San Francisco, California 94104
Attn: Aaron Giovara
Telephone: (415) 732-7645
Telecopy: (415) 732-7547
With a copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP
One America Plaza
600 West Broadway, 27th Floor
San Diego, California 92101
Attn: Heather S. Riley
Telephone: (619) 233-1155
Telecopy: (619) 233-1158
4.2 Defined Terms: Capitalized terms that are not specifically defined in this First
Amendment shall have the meaning assigned to those terms in the Development Agreement.
4.3 Counterparts: This First 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.
[Signatures on Next Page]
Agenda Page 77
028110-0002/7-27-17/hsr/jtm
-1-
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the day and
year first above written.
"CITY"
CITY OF DOWNEY,
a Municipal corporation of the State of California
By:
Name:
Its:
"DEVELOPER"
PCCP IRG DOWNEY, LLC,
a Delaware limited liability company
By: PCCP LB IRG Downey, LLC,
its Managing Member
By:
Name:
Its:
"IRG"
IRG DOWNEY, LLC,
a California limited liability company
By: IRG III, LLC
By: S.L. Properties, Inc.
By:
Name:
Its:
Agenda Page 78
028110-0002/7-27-17/hsr/jtm
-1-
ACKNOWLEDGMENT
State of California )
County of __________________ )
On ________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Agenda Page 79