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HomeMy WebLinkAboutPC Reso 10-2632RESOLUTION NO. 10-2632 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY RECOMMENDING THE CITY COUNCIL APPROVE DEVELOPMENT AGREEMENT No. 09- 94 FOR THE DEVELOPMENT OF THE 1.15 -ACRE PROPERTY AT 8236 THROUGH 8274 FIRESTONE BOULEVARD BY WESTLAND INDUSTRIES DEVELOPMENT AGREEMENT No. 09-94 THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS: WHEREAS, Westland Industries (hereinafter "Applicant') submitted a property development agreement application to the City of Downey to establish a 26,232 square foot high-end food court/retail center on the 1.15 -acre parcel at 8236 through 8274 Firestone Boulevard (hereinafter "project'); and WHEREAS, the City and Westland Industries have negotiated the Development Agreement; and a public hearing was held before this Planning Commission on April 7, 2010, pursuant to the procedures described in Section 65867 of the California Government Code, which authorizes cities to enter into development agreements with any person having a legal or equitable interest in real property for the development of such property; and WHEREAS, at the hearing, the Planning Commission considered testimony presented by the public regarding the Development Agreement between the City and Westland Industries; and WHEREAS, the Planning Commission has determined that the development agreement project is categorically exempt from the California Environmental Quality Act (CEQA), pursuant to CEQA Guideline Section No. 15302 (Class 2, Replacement or Reconstruction). NOW THEREFORE, THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission hereby finds that the Development Agreement between the City and Westland Industries conforms with the policies and programs of the General Plan and the applicable provisions of the Downtown Plan, which serves as the zoning ordinance for the project site. SECTION 2. The Planning Commission, based upon the testimony and information presented at the public hearing, hereby recommends that the City Council approve the Development Agreement between the City and Westland Industries in the form attached hereto as "Exhibit A" and incorporated by this reference. SECTION 3. The Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this 7 1 day of April, 20 Louis Mo,�ales, Chairman City Pl ning Commission Resolution No. 10-2632 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 7`h day of April, 2010, by the following vote, to wit: AYES: COMMISSIONERS: Kiefer, Vasquez, Lambros, Murray, Morales NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None 4 Theresa Donahue, Secretary City Planning Commission H:\PLANNING\RESOS\PC\2010\10-2632.doc Development Agreement No. 09-94—Westland Industries Page 2 EXH I BIT A RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Downey 11111 Brookshire Avenue Downey, CA, 90241 Attention: City Clerk Space above for Recorder's use only Exempt from recording fees — Gov't. Code § 27383 STATUTORY DEVELOPMENT AGREEMENT by and between the CITY OF DOWNEY, a California municipal corporation and charter city, and AMUSEMENT INDUSTRY, INC. D.B.A. WESTLAND INDUSTRIES, a California corporation CITY OF DOWNEY STATUTORY DEVELOPMENT AGREEMENT THIS STATUTORY DEVELOPMENT AGREEMENT (this "Agreement") is entered into by and between the CITY OF DOWNEY, a California municipal corporation and charter city ("City"), and AMUSEMENT INDUSTRY, INC. D.B.A. WESTLAND INDUSTRIES, a California corporation ("Owner"), to become effective only upon the occurrence of the Effective Date (as defined in Section 1.19 of this Agreement), if at all. City and Owner enter into this Agreement with reference to the following recited facts: RECITALS A. City is authorized to enter into binding development agreements with persons having legal or equitable interests in real property regarding the development of such property, pursuant to California Government Code Sections 65864, et seq.; and B. Owner has requested City enter into a development agreement for the development of that certain real property owned in fee by Owner and defined as the "Property" in Section 1.43 of this Agreement. The Property is located within the City of Downey, County of Los Angeles, State of California; and C. Owner proposes to develop the Property as a commercial development, as specifically described in Site Plan and Elevation — Scheme K dated August 31, 2009 (defined as the "Development" in Section 1.15 of this Agreement); and D. By entering into this Agreement, City shall bind future City Councils of City with the obligations specified in this Agreement and limit the future exercise of certain governmental powers of City regarding the subject matter of this Agreement; and E. The City Council of City has determined that the terms and conditions of this Agreement are fair, just and reasonable and consistent with City's General Plan and the Specific Plan applicable to the Property; and F. The best interests of the citizens of the City and the public health, safety and welfare of such citizens will be served by entering into this Agreement; and G. The City has determined that there was no significant environmental impact and has filed a Notice of Exemption on , pursuant to CEQA (defined in Section 1.4 of this Agreement); and H. Development of the Property in accordance with this Agreement will provide substantial benefits to City and further important policies and goals of City; and I. This Agreement will reduce some of the uncertainty in planning and providing for the orderly development of the Property, ensure installation of necessary public improvements, provide for public services appropriate to the Development of the Property and, generally, serve the purposes for which development agreements are authorized under Government Code 1 Sections 65864, et seq.; and J. Owner has incurred and will, in the future, incur substantial costs in order to assure development of the Property in accordance with the terms and conditions of this Agreement; and K. Owner has incurred and will, in the future, incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement; and L. On February 17, 2010, the Planning Commission of the City, following a duly noticed public hearing, recommended adoption of this Agreement to the City Council. AGREEMENT NOW, THEREFORE, in consideration of the recitals of fact preceding this Agreement, the covenants, agreements and promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Owner agree, as follows: 1. DEFINITIONS. The following terms used in this Agreement shall be defined as set forth in this Section 1 or, if not set forth in this Section 1, where the term first appears in this Agreement: 1.1 Agreement. This Statutory Development Agreement dated as of 1.2 Annual Report. Defined in Section 12.1. 1.3 Arbitration. A proceeding under the Comprehensive Arbitration Rules and Procedures of JAMS, as modified or replaced from time to time, and in accordance with Section 14.2. 1.4 CEQA. The California Environmental Quality Act, California Public Resources Code Sections 21000, et seq., as such code sections may be amended from time to time. 1.5 City. The City of Downey, a California municipal corporation and charter city. 1.6 City Party. Individually, City, its elected officials, officers, employees, agents or attorneys. 1.7 Claim. Any claim, loss, cost, damage, expense, liability, lien, action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and expert fees and expenses and investigation costs of whatever kind or nature and, if an Indemnitor improperly fails to provide a defense for an Indemnitee, then Legal Costs of counsel retained by the Indemnitee), and any judgment. 2 1.8 Community Develoyment Director. The then current Community Development Director of City or his or her designee or successor in function. 1.9 ComplianceCertifcate. Defined in Section 12.6. 1.10 Construction. Any alteration, construction, demolition, excavation, fill, grading, development, expansion, reconstruction, removal, replacement, rehabilitation, redevelopment, repair, restoration, or other work affecting the Property, including new construction. 1.11 Conveyance Property Defined in Section 5.1. 1.12 County. The County of Los Angeles, California. 1.13 Covenant Period. A period equal to the Term of this Agreement. The Covenant Period shall commence on the Effective Date of this Agreement and shall continue until the date of the thirtieth (30th) anniversary of the Effective Date, unless the Term is modified or earlier terminated pursuant to the terms of this Agreement. 1.14 Default. Any Monetary Default or Non -Monetary Default. 1.15 Development. The improvement of the Property as a commercial development, landscaping, hardscape, and other improvements comprising the Development, all in accordance with the Site Plan and Building Elevations — Scheme K dated August 31, 2009, including, without limitation: grading, construction of public infrastructure and public facilities, whether located within or outside the Property, the rehabilitation of existing buildings and construction of new commercial buildings which are architecturally integrated, and the installation of landscaping, in a manner consistent with all Existing Development Approvals and Existing Land Use Regulations, subject to the Reservations of Authority. "Development" does not include maintenance repair, restoration or redevelopment of any such improvements, after the original construction or installation of such improvements. 1.16 Development Approval. Any permit or other entitlement required for the Development of the Property, exclusive of this Agreement, including, but not limited to: adjustments; 1.16.1 City General Plan and any City General Plan Amendments; 1.16.2 Zone changes or variances; 1.16.3 Tentative and final subdivision or parcel maps and lot line 1.16.4 Conditional use permits; 1.16.5 Design review approvals; 1.16.6 Grading and building permits; 1.16.7 CEQA compliance documents; 3 1.16.8 Specific plans and specific plan amendments; 1.16.9 Development Impact Fees; and 1.16.10 Any Development Approval required for the Development by any Government other than the City. 1.17 Development Impact Fee. Any fee required by City to be paid in order to defray all or a portion of the costs of public improvements, equipment or personnel to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests. 1.18 Development Schedule. The schedule for the Construction of the Development on the Property set forth in Exhibit `C' attached to this Agreement. 1.19 Effective Date. The thirty-first (31 ") day after the second reading of the City Council ordinance adopting and approving this Agreement. 1.20 Existing Development Approval. Any Development Approval approved or issued regarding the Development of the Property that is a matter of public record on the Effective Date. 1.21 Existing Land Use Regulation. Any Land Use Regulation in effect on the Effective Date, including all Existing Development Approvals. 1.22 Federal: The government of the United States of America. 1.23 General Plan. Defined in Section 15.1. 1.24 Government. Each and every governmental agency, authority, bureau, department, quasi -governmental body, utility, utility service provider or other entity or instrumentality having or claiming jurisdiction over the Property (or any activity this Agreement), including the Federal government, the State and County governments and their subdivisions and municipalities, including the City, any planning commission, board of standards and appeals, building department, zoning board of appeals, design review board or committee, and all other applicable governmental agencies, authorities, and subdivisions thereof having or claiming jurisdiction over the Property or any activities on or at the Property.. 1.25 Indemnify. Where this Agreement states that any Indemnitor shall "indemnify" any Indemnitee from, against or for a particular matter, that the Indemnitor shall indemnify the Indemnitee and defend and hold the Indemnitee harmless from and against any and all loss, cost, claims, liability, penalties, judgments, damages, and other injury, detriment, or expense (including attorneys' fees, interest and penalties) that the Indemnitee suffers or incurs: (a) from, as a result of, or on account of the particular matter; or (b) in enforcing the Indemnitor's indemnity obligation. 1.26 In Lieu Fee. Defined in Section 11.4 4 1.27 JAMS. Judicial Arbitration and Mediation Services, Inc. or, if JAMS ceases operations, another similar organization mutually agreed upon in writing by both City and Owner. 1.28 Land Use Regulation. Any ordinance, resolution, code, rule, regulation or official policy of City or any other Government governing the development or use of the property, including, without limitation, the permitted use of the Property, the density or intensity of use, subdivision requirements, the maximum height and size of proposed structures, requirements for reservation or dedication of land for public purposes and the design, improvement and construction standards and specifications applicable to Development of the Property, but excluding any City ordinance, resolution, code, rule, regulation or official policy, governing: 1.28.1 the conduct of businesses, professions and occupations; 1.28.2 taxes or assessments; 1.28.3 the control or abatement of nuisances; 1.28.4 the granting of encroachment permits or the conveyance of rights or interests that provide for the use of or the entry upon public property; or 1.28.5 exercise of the power of eminent domain. 1.29 Legal Costs. For any Person means all reasonable costs and expenses such Person incurs in any legal proceeding (or other matter for which such Person is entitled to be reimbursed for its Legal Costs), including reasonable attorncys' fees, court costs and expenses, including in or as a result of any: (a) Bankruptcy Proceeding; (b) litigation between the Parties; (c) negotiating or documenting any agreement with a Third Person requested by the other Party; (d) requirement or request that such Person or its employees act as a witness in any proceeding regarding this Agreement or the other Party; and (e) review or approval that the other Party requests of such Person. All references to Legal Costs shall include the salaries, benefits and costs of in-house or contract general counsel to City or Owner, respectively, and the lawyers employed in the office of such general counsel who provide legal services regarding a particular matter, adjusted to or billed at an hourly rate and multiplied by the time spent on such matter rounded to increments of one-tenth of an hour, in addition to Legal Costs of outside counsel retained by City or Owner, respectively, for such matter. 1.30 Map Act. The California Subdivision Map Act, California Government Code Sections 66410, et seq., as such code sections may be amended, from time to time. 1.31 Monetary Default. The failure of a Party to pay or deposit any money when and as this Agreement requires. 1.32 Nance Avenue. The portion of public right of way on Nance Avenue, specifically described in Exhibit "D," that the Developer will reconstruct and improve with on -street parking and a main water line under this Agreement. E 1.33 Negotiation Period. A period of thirty (30) consecutive calendar days immediately following the effective date of a Notice from either Party to the other Party requesting commencement of a period of negotiation between the Parties pursuant to a provision of this Agreement authorizing a "Negotiation Period." 1.34 Non-Morielary t)c[atilt. A Party's failure to comply with any affirmative or negative covenant or obligation in this Agreement, except a Monetary Default. 1.35 Notice. Any acceptance, appointment, approval, consent, demand, designation, election, notice, report, request, statement, waiver or other communication relating to this Agreement, including any Notice of Default or termination of this Agreement. Notices shall be delivered, and shall become effective, only in accordance with Section 7 of this Agreement. 1.36 Noti . Give a Notice. 1.37 Owner. Amusement Industry, Inc. D.B.A. Westland Industries, a California corporation, and its permitted successors in interest to all or any part of the Property. Owner is referred to as "Developer." 1.38 Owner Pam. Individually, Owner, its directors, officers, employees or agents and attorneys and any owners of Equity Interests in Owner. 1.39 Parcel. Each individual legal parcel of real property designated on City of Downey Vesting Tentative Tract Map No. 1.40 Parties. Collectively, City and Owner. 1.41 Party. Individually, City or Owner, as applicable. 1.42 Person. Any association, corporation, government, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization or other entity of any kind. 1.43 Processing Fee. Any of City's then current application, filing, plan check, or permit fees relating to Development Approvals, design review, tree removal permits, grading permits, building permits, demolition permits and other similar permits, entitlements or inspections. 1.44 Pro e . The real property specifically described in Exhibit "A" attached to this agreement and generally depicted in Exhibit `B" attached to this Agreement. 1.45 Public Improvements. Those public improvements for the Development as described in City of Downey Vesting Tentative Tract Map No. all Existing Development Approvals and Existing Land Use Regulations and any Subsequent Development Approvals and Subsequent Land Use Regulations. 1.46 Reimbursement Fee. Defined in Section 11.4. 3 1.47 Reservations of Authority. The rights and authority excepted from the assurances and rights provided to Owner under this Agreement and reserved to City under this Agreement, pursuant to Section 9.6. 1.48 State. The State of California. 1.49 Street Parking Cost. Defined in Section 11.4, 1.50 Subsequent Development Approvals. Any and all Development Approvals required subsequent to the Effective Date in connection with Development of the Property. 1.51 Subsequent Land Use Regulations. Any and all Land Use Regulations or any amendments to Existing Land Use Regulations adopted or effective after the Effective Date. 1.52 Term. Defined in Section 4. 1.53 Third Person. Any Person that is not a Party, an Affiliate of a Party or an elected official, director, officer, shareholder, member, principal, partner, manager, owner of an Equity Interest, employee or agent of a Party. 1.54 Transfer. With respect to any property, right or obligation means any of the following, whether by operation of law or otherwise, whether voluntary or involuntary, and whether direct or indirect: (a) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable interest or estate in such property, right or obligation or any part of it (including the grant of any easement, lien, or other encumbrance); (b) any conversion, exchange, issuance, modification, reallocation, sale, or other transfer of any direct or indirect Equity Interest(s) in the owner of such property, right or obligation by the holders of such Equity Interest(s); (c) any transaction described in "(b)" of this Section affecting any Equity Interest(s) or any other interest in such property, right or obligation or in any such owner (or in any other direct or indirect owner at any higher tier of ownership) through any mariner or means whatsoever; or (d) any transaction that is in substance equivalent to any of the foregoing. A transaction affecting Equity Interests, as referred to in clauses "(b)" through "(d)" of this Section shall be deemed a Transfer by the Owner even though the Owner is not technically the transferor. A "Transfer" shall not, however, include any of the foregoing (provided that the other Party to this Agreement has received Notice of such occurrence) relating to any Equity Interest: (a) that constitutes a mere change in form of ownership with no material change in beneficial ownership and constitutes a tax-free transaction under Federal income tax law and the State real estate transfer tax; (b) to member(s) of the immediate family(ies) of the transferor(s) or trusts for their benefit; or (c) to any Person that, as of the Effective Date, holds an Equity Interest in the entity whose Equity Interest is being transferred. 1.55 Transferee. The Person to whom a Transfer is proposed to be or actually made. 1.56 Unavoidable Delay. Delay in performing any obligation under this Agreement, except payment of money (except when the Party's ability to access or transfer money is delayed by one of the causes described in this Section 1.56), arising from or on account of any cause whatsoever beyond the obligor's reasonable control, including litigation, loss, accidents, laws, fd governmental preemption, war or riots. Unavoidable Delay shall exclude delay caused by the obligor's financial condition, illiquidity, or insolvency. 2. BINDING ON PROPERTY. On the Effective Date, the Property shall be subject to the terms and conditions of this Agreement for the entire duration of the Term. Development of the Property shall be carried out during the Term only in accordance with the terms and conditions of this Agreement. 3. OWNER'S INTEREST IN PROPERTY. Owner represents, covenants and warrants to City that, as of the Effective Date, Owner is the sole owner of fee title to the Property. 4. TERM. The "Term" of this Agreement shall commence on the Effective Date and shall continue until the date of the thirtieth (30th) anniversary of the Effective Date, unless the Tern) is modified or earlier terminated pursuant to the terms of this Agreement. 5. ASSIGNMENT, SALE AND TRANSFER OF INTEREST IN THE PROPERTY AND THIS AGREEMENT. 5.1 Right to Assign. Owner shall have the right to Transfer all or any part of the Property ("Conveyance Property") (provided that no Transfer of less than all of the Property violates the Map Act) to any Person during the Term, subject to the following conditions precedent: 5.1.1 No Transfer of any rights or obligations under this Agreement shall be valid, unless made to a Transferee of fee title to all or a part of the Property. 5.1.2 At least thirty (30) calendar days before the effective date of any such Transfer, Owner notifies City, in writing, of such intended Transfer and provides City with a fully executed written agreement, in a form reasonably acceptable to City, in which the Transferee expressly and unconditionally assumes all of the following described obligations of Owner under this Agreement relating to the Conveyance Property upon the effective date of such Transfer. City's approval of transfer of the Property and of the Transfer Agreement shall not be unreasonably withheld. City recognizes that financing is a permissible basis for Owner's transfer of the Property; 5.2 Non -Conforming Transfers. Any Transfer not made in strict compliance with Section 5.1 shall be of no force or effect and shall be a Default by Owner under this Agreement. Notwithstanding the failure of any Transferee to execute the agreement required by Section 5.1.2, the burdens of this Agreement shall be binding upon such Transferee, but the benefits of the Agreement shall not inure to such Transferee until and unless such agreement is executed. 5.3 Release of Transferring Owner. Notwithstanding any Transfer, a transferring Owner shall continue to be obligated under this Agreement for any of the obligations assumed by Transferee with respect to the Conveyance Property, unless the transferring Owner is given City's written approval of an assumption agreement, pursuant to Section 5.1. The City shall give its written approval provided that all of the following conditions are fully satisfied: 5.3.1 Owner no longer has a legal or equitable interest in all or any part of the Conveyance Property. 5.3.2 Owner is not then in Default under this Agreement. 5.3.3 Owner has provided City with the notice and executed written agreement required under Section 5.1.2 above. 5.4 Subsequent 'Transfer. City approval or consent to any Transfer of all or any part of the Property or this Agreement shall not constitute City consent to or approval of any subsequent Transfer. Each subsequent Transfer shall be made only in accordance with and subject to the terms and conditions of this Section 5. 6. AMENDMENT OR CANCELLATION OF AGREEMENT. This Agreement may be amended or cancelled, in whole or in part, by: (1) written consent of all of the Parties; (2) in any other manner provided for in this Agreement; or (3) as provided in Government Code Section 65868. This provision shall not limit any remedy of City or Owner provided by this Agreement for a Default of the other. 7. NOTICES. 7.1 All Notices shall be in writing and addressed to City or Owner (and their designated copy recipients) at the addresses set forth in Section 7.2. Notices (including any required copies) shall be delivered personally, by Federal Express, United Parcel Service or other nationally recognized overnight (one-night) courier service or by certified United States mail, return receipt requested, to the addresses set forth in Section 7.2. A Notice shall be deemed delivered on the date of delivery (or when delivery has been attempted twice, as evidenced by the written report of the courier service) to such address(es), when delivered personally or by overnight courier service, or seventy-two (72) hours after deposit with the United States Postal Service for delivery, in accordance with this Section 7. Either Party may change its address for delivery of Notices by Notice in compliance with this Agreement. Notice .of such a change shall be effective only upon receipt. Any Party giving a Notice may request the recipient to acknowledge receipt of such Notice. The recipient shall promptly comply with any such request, but failure to do so shall not limit the effectiveness of any Notice. Any attorney may give any Notice on behalf of its client. 7.2 All Notices to the Parties shall be addressed as follows: If to City: City Manager City of Downey 11111 Brookshire Avenue Downey, California 90241 With a copy to: Best Best & Krieger LLP 300 South Grand Avenue, 25'h Floor Los Angeles, California 90071 Attn: Downey City Attorney 0 If to Owner: Amusement Industry, Inc. D.B.A. Westland Industries 6665 Long Beach_ Blvd Long Beach, CA 90805 Attn: Yanki Greenspan 8. TERMINATION. 8.1 Termination Events. This Agreement shall be deemed terminated and of no further force or effect upon the occurrence of any one (1) of the following events: 8.1.1 Expiration or earlier termination of the Term; 8.1.2 Entry of a final judgment setting aside, voiding or annulling the adoption of the City ordinance approving this Agreement; 8.1.3 The adoption of a referendum measure, pursuant to California Government Code Section 65867.5, overriding or repealing the City ordinance approving this Agreement; 8.2 Effect of Expiration or Termination. Termination of this Agreement pursuant to any of the terms this Agreement shall not constitute expiration or termination of any of the Existing Development Approvals regarding Development of the Property. Upon the expiration or termination of this Agreement, no Party shall have any further right or obligation under this Agreement, except with respect to: (1) any obligation to have been performed by such Party under this Agreement prior to such expiration or termination; (2) any Default under this Agreement occurring prior to such expiration or termination; or (3) any rights or obligations expressly surviving the expiration or termination of this Agreement. 9. DEVELOPMENT OF PROPERTY. 9.1 Rights to Develop. Subject to the terms and conditions of this Agreement, including the Reservations of Authority, Owner shall have a vested right to develop the Development on the Property in accordance with this Agreement, all Existing Development Approvals and Existing Land Use Regulations. Except as otherwise expressly provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed structures, and the design, improvement and construction standards and specifications applicable to Development of the Property shall be those set forth in the Existing Development Approvals and the Existing Land Use Regulations. The Development shall also be subject to any and all Subsequent Land Use Regulations and Subsequent Development Approvals required for the Development of the Property. 9.2 Phasin [Fiming of Development. The Parties acknowledge that Owner cannot, at this time, predict when or the rate at which phases of the Development will be developed on the Property. Such projections depend upon numerous factors that are not within the control of Owner, such as market orientation and demand, interest rates, construction progress, weather and other similar factors. Since the California Supreme Court held in Pardee Construction Co v. City of Camarillo (1984) 37 Cal.3d 465, that an initiative restricting the timing of a development 10 adopted after entry into a statutory development agreement prevailed over the development agreement, because the parties to the development agreement failed to provide for the timing of development in the agreement, it is the Parties' intent to provide for such timing for Development of the Property by agreeing that Owner shall have the right to develop the Development on the Property in such order, at such rate and at such times as Owner deems appropriate, within the exercise of Owner's subjective business judgment, subject only to the duration of the Term, the timing and phasing set forth in the Development Schedule and any timing or phasing provisions expressly set forth in the Existing Development Approvals, the Existing Land Use Regulations or any and all Subsequent Development Approvals or Subsequent Land Use Regulations. 9.3 Development Approvals, Cooperation. The Owner shall apply to each applicable Government for all Development Approvals required for Construction of the Development. 9.4 Prosecution_ and Completion of Construction. If the Owner starts to demolish any improvements on the Property, or starts any excavation on the Property, then the Owner shall prosecute such work to completion with reasonable diligence. The Owner shall, with reasonable promptness and reasonable diligence, commence, prosecute, and complete each phase of the Development in a good and worker like manner, in compliance with the Development Schedule, Law and this Agreement. 9.5 Subsequent Development Approvals and Land Use Regulations. The Parties acknowledge that Development of the Property may require Subsequent Development Approvals. In granting, conditioning or denying any Subsequent Development Approval for the Development or enacting any Subsequent Land Use Regulation, City reserves, retains and may exercise the discretion afforded to City by law regarding any such matter. Nothing in this Agreement is intended to limit, restrict or abrogate any such discretion of the City. All applications for Subsequent Development Approvals shall be processed by City in the manner required by law. If approved, any Subsequent Development Approval shall be incorporated into this Agreement as an addendum and may be further changed, from time to time, as provided in this Section 9.5. Nothing in this Agreement shall prevent City, in acting on any Subsequent Development Approval, from applying Subsequent Land Use Regulations that do not conflict with the Existing Development Approvals or the Existing Land Use Regulations. Further, nothing in this Agreement shall prevent City from denying or conditionally approving any Subsequent Development Approvals on the basis of the Ex{sting Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Existing Development Approvals, all subject to the Reservations of Authority. Unless otherwise required by law, as determined in City's reasonable discretion, a change to the Existing Development Approvals shall not require an amendment to this Agreement, provided such change does not: Property; or 9.5.1 Alter the permitted uses of the Property; or 9.5.2 Increase the density or intensity of use of the Property; or 9.5.3 Increase the maximum height or size of permitted structures on the 11 9.5.4 Delete or reduce a requirement for the reservation or dedication of land for public purposes within the Property; or 9.5.5 Constitute a "project" under CEQA requiring a subsequent or supplemental environmental impact report pursuant to California Public Resources Code Section 21166. 9.6 Reservations of Authority. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the Development of the Property, pursuant to this Agreement: 9.6.1 Regulations imposing any Processing Fee regarding processing applications for Development Approvals or monitoring compliance with any Development Approvals granted or issued regarding Development of the Property; 9.6.2 Regulations imposing fees required in connection with the issuance of building permits, other than Development Impact Fees; 9.6.3 • Regulations relating to procedures of or for hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals or any other matter of procedure; 9.6.4 Regulations governing construction standards and specifications including, without limitation, the Uniform Building Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Electrical Code or the Uniform Fire Code; 9.6.5 Regulations that are in conflict with the Existing Development Approvals or the Existing Land Use Regulations, but that are necessary to protect the public from a serious and immediate threat to health, safety or welfare, as reasonably determined by City; and 9.6.6 Regulations that are in conflict with the Existing Development Approvals or the Existing Land Use Regulation, if Owner has consented in writing to the application of such regulations to the Development of the Property. 9.7 Modification or Suspension clue to State or Federal Law. If any State or Federal law, order or regulation enacted after the Effective Date prevents or precludes any performance or compliance with one or more of the provisions of this Agreement, such provision(s) of this Agreement shall be modified or suspended, to the extent necessary to comply with such State or Federal law, order or regulation; provided, however, that this Agreement shall remain in full force and effect to the extent this Agreement is not inconsistent with any such law, order or regulation; and provided further, however, that any such modification or suspension does not materially limit or eliminate any right or materially increase any obligation of either Party under this Agreement. 9.8 No Limitation on City Police Power. The Parties acknowledge and agree that City is restricted in its authority to limit its exercise of its police power by contract and that the Reservations of Authority are intended to reserve to City the right to exercise all of its police 12 powers that cannot be so limited. This Agreement shall be construed, contrary to its express terms if necessary, to reserve to City all power and authority that cannot be restricted by contact. 9.9 Regulation by Other Governmental Agencies/Entities. The Parties acknowledge that governmental agencies/entities other than City possess authority to regulate the Development of the Property and the Parties agree that this Agreement does not and is not intended to affect the authority of such other governmental agencies/entities. 10. SPECIAL COVENANTS. 10.1 Permitted Uses. 10.1.1 Retail and Restaurant Uses. The Owner covenants that the Development's building space will be constructed for and occupied by restaurants and retail establishments exclusively. The Owner covenants that between 14,802 and 16,000 square feet of the Development's building area will be constructed for and occupied by restaurants and between 9,302 and 10,500 square feet of the Development's building area will be constructed for and occupied by retailers or restaurants. 10.1.2 Tenant Character and Quality. Notwithstanding any provision herein to the contrary, Owner covenants that, for five years from the effective date of this Agreement, the Development shall meet the following criteria. The tenant mix shall be consistent with a high quality shopping center and shall include those tenants listed in the List of Tenants, attached hereto as Exhibit "D" and incorporated herein by reference, or an equivalent quality tenant, which may include national, regional, or local/independent tenants as mutually approved by the Parties. The Community Development Director is designated as the duly authorized representative of the City to determine if Owner is in compliance with the provisions of this Section 10.1.2. 10.2 Development Configuration. The Owner covenants that the Property will be developed in accordance with the configuration and in the architectural style depicted in the Site Plan. Said Site Plan shall provide not less than Thirty-three (33) on-site parking spaces which combined with Owner's obligation under Section 11.2 below, shall be deemed to meet on-site parking requirements of the Development as required by Existing Land Use Regulations. Development that deviates from the configuration in the Site Plan shall constitute a Default by Owner under this Agreement. 10.3 Merger of Parcels. The Owner covenants to merge the parcels which make up the Property, located at 11217 Downey Avenue and 8250 Firestone Boulevard, respectively, all in the City of Downey, into a single parcel in the manner provided .under Section 9960 et seq. of the Downey Municipal Code. The Owner shall submit a complete application for merger that complies with Section 9960.02 of the Downey Municipal Code to the Community Development Director by the time designated in the Development Schedule. Development of the Property shall not proceed unless the requirements of this Section 10.3 have been met. 10.4 Covenant to Maintain Property:on Tax Rolls. The Owner covenants to cause the Property to remain on the County secured real property tax rolls, continuously, throughout the 13 Term (Section 4), and to pay all property taxes regarding the Property and all improvements on or to the Property before delinquency, throughout the Term. 10.5 No Convevance to Tax Exempt Entity. The Owner covenants and agrees that throughout the Term, neither the Owner, nor its successors or assigns, shall Transfer all or any portion of the Property or the Development to any Person or use all or any portion of the Property or the Development for any use, that is partially or wholly exempt from the payment of property taxes or that would cause the exemption of the payment of all or any portion of property taxes otherwise assessable regarding the Property or the Development, without the prior written consent of the City, which may be given or withheld in the City's sole and absolute discretion. The Owner acknowledges and agrees that the covenants contained in this Section 10.5 are material to the City and its decision to enter into this Agreement, as the City receives significant financing from property tax revenues from development within the City and that any violation of such covenants will result in financial injury to the City by depriving the City of property tax revenues from all or a portion of the Property or the Development. Additionally, the Owner acknowledges and agrees that the restrictions on Transfers set forth in this Section 10.5 are reasonable under the circumstances because of the City's interest in property tax revenues from the Property. 10.6 Covenants Running with the Land. The covenants of this Section 10 shall run with the land of the Property for the benefit of the City and bind successive owners of the Property throughout the Term. 10.7 Enforcement of Covenants. The covenants set forth in this Section 10 may be enforced by the City, regardless of whether or not the City is benefited by any ' such covenants. The Owner agrees that breach of any of the special covenants set forth in this Section 10 will result in great and irreparable injury to the City, will violate the public policy of this Agreement and will result in injury to the City that is not compensable by monetary damages. Accordingly, upon the breach of any of the special community development covenants, the City may institute an action for injunctive relief regarding and/or specific performance of any such covenant. 10.8 Local Hiring Preference. The Owner shall require its contractors, tenants or successors in interest to use good faith efforts to utilize the services of the City's One -Stop Center for referrals of applicants to fill any employment during construction or tenancy of the Project. The foregoing, shall not, however, be construed as a covenant by Owner to hire any particular referred individuals. 11. PUBLIC BENEFITS. 11.1 Statement of Intent. The Parties acknowledge and agree that Development of the Property will result in substantial public needs that will not be fully met under the Existing Development Approvals and the Existing Land Use Regulations. The Parties further acknowledge and agree that this Agreement confers substantial private benefits on Owner that should be balanced by commensurate public benefits. Accordingly, the Parties intend to provide consideration to the public under this Agreement to balance the private benefits conferred on Owner under this Agreement by providing more fully for the satisfaction of the public needs 14 resulting from the Development of the Property than would otherwise be obtained without this Agreement. 11.2 Nance Avenue Infrastructure Improvements. 11.2.1 Nance Avenue Right -of -Way Improvements. The Owner shall reconstruct and improve, including but not limited to providing a minimum of 102 parking spaces, Nance Avenue between Downey Avenue and La Reina Avenue ("Nance Avenue"), as depicted in the Site Plan — Scheme K, dated June 2, 2009, in accordance with City standards (the "Nance Avenue Right -of -Way Improvements"). The Owner will control and conduct said construction at Owner's sole expense subject to Section 11.3, below. 11.2.2 Waterline Improvements. The Owner shall construct a [size of waterline] main water line in Nance Avenue in accordance with City standards (the "Waterline Improvements"). The Owner will control and conduct said construction at Owner's sole expense subject to Section 11.3, below. 11.2:3 Time of Performance. The Owner's obligations under Section 11.2.1 and 11.2.2 are contingent upon the Owner performing in accordance with the Development Schedule, as described herein. The Owner's obligation to begin the design and construction of the improvements of Nance Avenue shall be in accordance with and as required by the Development Schedule. 11.2.4 Applicable Rules and Regulations. The reconstruction and improvement of the infrastructure in Nance Avenue as provided in this Section 11.2 shall be performed in conformance with the applicable CDBG-R regulations attached hereto as Exhibit "E.", and incorporated herein by reference. 11.3 Reimbursement for the Construction of Nance Avenue . 11.3.1 Reimbursement Amount for Construction. In consideration for the benefits provided by this Agreement, including the Owner's construction of on -street parking, related street improvements and the main water line in Nance Avenue, the City shall reimburse the Owner as follows: (a) a proportionate share of thirty percent (30%) of the actual cost of construction of the Nance Avenue Right -of -Way Improvements not to exceed $150,000.00, and (b) one -hundred percent (100%) of the actual cost of the construction of the Waterline Improvements, but not to exceed $140,000.00, which ever is less (altogether the "Reimbursement Amount"). 11.3.2 Submission of Actual Costs of Construction. Owner shall submit evidence, reasonably satisfactory to the City, of Owner's actual cost of construction of the Nance Avenue Right -of -Way Improvements and the Waterline Improvements. "Actual costs" for purposes of this section shall mean the actual amount paid to Owner's contractor to perform such work, excluding any administrative overhead or profit to Owner, if any, but may include overhead and profit to Owner's contractor for the Nance Avenue infrastructure improvements . City shall pay Owner the Reimbursement Amount within thirty (30) days of City's written acceptance of Owner's evidence of the actual costs. 15 11.4 Satisfaction of "In Lieu Fee". The Owner's satisfaction of its obligations under Section 11.2 shall satisfy the Owner's obligation under Section 9720 of the Downey Municipal Code, which requires an owner to pay a fee per year per off-street space that is not provided on- site as required under applicable zoning ("In Lieu Fee"). If the Owner satisfies its obligations under Section 11.2, the City will treat the Owner's In Lieu Fee obligation under Section 9720 as satisfied for all time. 12. COMPLIANCE REVIEW. 12.1 Periodic Review. The City shall review this Agreement on or before each anniversary of the Effective Date during the Term, to ascertain Owner's compliance with the terms and conditions of this Agreement. Owner shall submit an annual monitoring report (each, an "Annual Report") to the City, in a form reasonably acceptable to the City, within ten (10) days after written request from the City. 12.2 Special Review. A special review of compliance with this Agreement may be made either by agreement of the parties or by initiation in one or more of the following ways: 12.2.1 Recommendation of the Planning staff; 12.2.2 Affirmative vote of at least four (4) members of the Planning Commission; or 12.2.3 Affirmative vote of at least three (3) members of the City Council. 12.3 Procedure. 12.3.1 Owner Demonstration of Compliance. During either a periodic review or a special review, Owner shall be required to demonstrate its compliance with all of the terms and conditions of this Agreement. After submittal of Owner's evidence of compliance, City shall provide Owner written notice of any terms or conditions of this Agreement in which Owner is not in compliance, and Owner shall provide additional evidence of compliance or correct the deficiency as stated in the City notice. 12.3.2 Report to City Council. Upon completion of a periodic review or a special review, the Community Development Director shall submit a report to the City Council setting forth the evidence concerning compliance by Owner with the terms and conditions of this Agreement and his or her recommended finding on that issue. City shall provide Owner with, at least, fifteen (15) days prior Notice of the date, time and location of the meeting at which the City Council will review the results of a periodic review or a special review. Any such meeting may be continued by the City Council, from time to time. 12.3.3 Conclusion of Review. If the City Council finds, on the basis of substantial evidence, that Owner has complied with all of the terms and conditions of this Agreement, the periodic review or special review shall be concluded. 16 12.3.4 Modification or Termination of A eement. If the City Council makes a preliminary determination that Owner is in Default under this Agreement, the City Council may modify or terminate this Agreement, pursuant to Section 12.4. 12.4 Proceedings Upon Modification or Termination. If, upon a preliminary determination that the Owner is in Default under this Agreement pursuant to Section 12.3, the City Council determines to proceed with modification or termination of this Agreement, City shall Notify Owner of City's intention to conduct a hearing regarding such matter. The Notice shall be given, at least, fifteen (15) calendar days prior to the scheduled date of the hearing on such matter and shall contain: 12.4.1 The time and place of the hearing; 12.4.2 A statement as to whether or not City proposes to terminate or to modify this Agreement; and 12.4.3 Such other information as is reasonably necessary to inform Owner of the nature of the proceeding. 12.5 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination of this Agreement, Owner shall be given an opportunity to be heard. If the City Council finds, based upon substantial evidence, that Owner is in Default under this Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the City. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the California Code of Civil Procedure. 12.6 Certificate of Compliance. If, at the conclusion of a periodic review or a special review, Owner is found to be in compliance with all of the terms and conditions of this Agreement, the Community Development Director shall, upon written request by Owner, issue a certificate to Owner stating that, after the most recent periodic review or special review, based upon the information known or made known to the Community Development Director and City Council that: (1) this Agreement is in effect and (2) Owner is not in Default under this Agreement ("Compliance Certificate"). Each Compliance Certificate shall state whether the Compliance Certificate is issued after a periodic review or a special review and shall state the anticipated date of commencement of the next periodic review. If a Default existed at the time of the periodic review or special review to which the Compliance Certificate relates, but was concealed from or otherwise not known to the Community Development Director or City Council, City shall not be bound by a Compliance Certificate. 13. EVENT OF DEFAULT; REMEDIES. 13.1 General Remedies. In the event that either Party breaches any provision of this Agreement, the Parties shall have all remedies available to them at law or in equity, except that City shall not be liable in damages to Owner, or to any successor in interest of Owner, or to any other person. Owner covenants not to sue for damages or claim any damages: 17 13.1.1 For any breach of this Agreement or for any cause of action that arises out of this Agreement; 13.1.2 For the taking, impairment or restriction of any right or interest conveyed or provided under this Agreement; or 13.1.3 Arising out of or connected with any issue regarding the application, interpretation or effect of the provisions of this Agreement. 13.2 Specific Performance. The Parties acknowledge and agree that money damages and remedies at law, generally, are inadequate for Non -Monetary Defaults under this Agreement. The Parties further agree that specific performance and injunctive relief are appropriate remedies for Non -Monetary Defaults or threatened Non -Monetary Defaults under this Agreement. 13.3 Default of Owner. In addition to all other remedies of City for a Default by Owner under this Agreement, City may terminate or modify this Agreement, pursuant to Section 12.3. 13.4 Default of City. Owner may terminate this Agreement only in the event that City fails to perform a material term of this Agreement and only if: 13.4.1 Owner provided City with Notice setting forth the nature of the default and the actions, if any, required by City to cure the default; and 13.4.2 Within sixty (60) days after the effective date of said Notice, where the default can be cured, City failed to cure the default or, where the default cannot be cured in sixty (60) days but can be cured within a longer time period, City has not commenced the actions necessary to cure said default. 13.5 No Consequential Damages. Whenever either Party may seek or claim damages against the other Party, neither City nor Owner shall seek, nor shall there be awarded or granted by any court, arbitrator, or other adjudicator, any speculative, consequential, collateral, special, punitive, or indirect damages, whether such breach shall be willful, knowing, intentional, deliberate, or otherwise. The Parties intend that any damages awarded to either Party shall be limited to actual, direct damages sustained by the aggrieved Party. Neither Party shall be liable for any loss of profits suffered or claimed to have been suffered by the other Party. 14. DISPUTE RESOLUTION. 14.1 Negotiation Period. If either Party delivers a Notice requesting commencement of a Negotiation Period pursuant to a provision of this Agreement authorizing a Negotiation Period, then within five (5) calendar days following the effective date of the Notice, the Parties shall commence good -faith negotiations to resolve the dispute(s) stated in the Notice. The Parties shall continue such negotiations until the earlier of. (1) the end of the Negotiation Period; or (2) each such dispute is resolved by a written agreement between the Parties. Notwithstanding any provision of this Agreement to the contrary, the Parties may agree in writing to extend the duration of the Negotiation Period for any period of time. 18 14.2 ARBITRATION OF DISPUTES. ANY AND ALL DISPUTES BETWEEN THE PARTIES RELATING TO THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY JAMS IN ACCORDANCE WITH ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES, SUBJECT TO THE PROVISIONS OF THIS AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE COMPREHENSIVE ARBITRATION RULES AND PROCEDURES OF JAMS AND THE PROVISIONS OF THIS AGREEMENT, THE PROVISIONS OF THIS AGREEMENT SHALL CONTROL. WITHIN FIFTEEN (15) DAYS AFTER THE COMMENCEMENT OF AN ARBITRATION, EACH PARTY SHALL SELECT ONE PERSON TO ACT AS AN ARBITRATOR. THE TWO SELECTED ARBITRATORS SHALL SELECT A THIRD ARBITRATOR, WITHIN TEN (10) DAYS FOLLOWING THEIR APPOINTMENT. IF EITHER PARTY FAILS TO SELECT AN ARBITRATOR, THEN THE ARBITRATOR SELECTED BY THE OTHER PARTY SHALL ARBITRATE THE DISPUTE, WITHOUT ANY OTHER ARBITRATOR. IF THE ARBITRATORS SELECTED BY THE PARTIES ARE UNABLE TO OR FAIL TO AGREE UPON A THIRD ARBITRATOR, THE THIRD ARBITRATOR SHALL BE SELECTED BY JAMS. THE PLACE OF ARBITRATION SHALL BE THE CITY OF DOWNEY, CALIFORNIA. EACH PARTY SHALL BEAR ITS OWN COSTS AND EXPENSES AND AN EQUAL SHARE OF THE ARBITRATOR(S)' FEES AND THE ADMINISTRATIVE FEES OF ARBITRATION. EXCEPT AS MAY BE REQUIRED BY LAW, NEITHER PARTY NOR AN ARBITRATOR MAY DISCLOSE THE EXISTENCE, CONTENT OR RESULTS OF ANY ARBITRATION UNDER THIS AGREEMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF BOTH PARTIES. THE DECISION OR AWARD OF THE ARBITRATORS) SHALL BE BINDING ON BOTH PARTIES AND NO APPEAL OR OTHER SUBSEQUENT LEGAL PROCEEDING OR ACTION SHALL BE TAKEN BY EITHER PARTY REGARDING SUCH DECISION OR AWARD, EXCEPT REGARDING THE EXTENT OF THE AUTHORITY OF THE ARBITRATOR(S). TO THE EXTENT REASONABLY POSSIBLE, THE ARBITRATOR(S) SHALL HOLD AN ARBITRATION HEARING AND ISSUE A DECISION OR AWARD WITHIN NINETY (90) CALENDAR DAYS FOLLOWING THE COMMENCEMENT OF THE ARBITRATION. ANY ARBITRATION, DECISION OR AWARD ISSUED PURSUANT TO AN ARBITRATION UNDER THIS AGREEMENT MAY BE ENTERED AS A JUDGMENT IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY AND ENFORCED IN THE SAME MANNER AS ANY OTHER SUCH JUDGMENT, SUBJECT TO SECTION 14. 14.3 ARBITRATION NOTICE. NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. 19 14.4 ARBITRATION CONSENT. WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION. d INITIALS OF AUTHORIZED CITY OF AUTHORIZED OWNER REPRESENTATIVES) 20 REPRESENTATIVE(S) 15. THIRD PARTY LITIGATION. 15.1 General Pian Litigation. City has determined that this Agreement and the Existing Development Approvals are consistent with the City's "Comprehensive General Plan" ("General Plan"). Owner has reviewed the General Plan and concurs with City's determination. If the General Plan or any portion of the General Plan is determined to be invalid, inadequate or not in compliance with law, City shall not be liable for City failure to perform under this Agreement or for Owner's inability to develop the Property in accordance with Existing Development Approvals. 15.2 Owner Covenant to Defend this Agreement. Owner assumes the risk of delays and damages to Owner from any Third Person legal action related to City's approval of this Agreement or any associated Development Approvals, even if the City is determined to have committed an error, omission or abuse of discretion. If a Third Person files a legal action regarding City's approval of this Agreement or any associated Development Approval (exclusive of legal actions alleging violation of Government Code Section 1090 by elected officials of City), Owner shall Indemnify City against such Third Person legal action, including all Legal Costs, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the Claim. City shall reasonably cooperate in its defense in any legal action subject to this Section 15.2, subject to Owner's indemnity obligations for such legal action. Nothing contained in this Section 15.2 is intended to be nor shall be deemed or construed to be an express or implied admission that City may be liable to Owner or any other Person for damages or other relief regarding any alleged or established failure of City to comply with any Law. This obligation shall terminate after the expiration of the applicable statue of limitations for a Third Person to challenge the City's approval of this Agreement. In the event such legal action as contemplated in this Section 15.2 is filed by a Third Person, Owner reserves the right, in its sole discretion, to terminate this Agreement and such termination shall not be deemed an event of default. 15.3 Reservation of Rights. With respect to Sections 15.1 and 15.2, City reserves the right to either: (1) approve the attorney(s) that Owner selects, hires or otherwise engages to defend City, which approval shall not be unreasonably withheld; or (2) conduct its own defense and have _ Owner reimburse City for any and all reasonable expenses incurred for such defense, including Legal Costs, upon demand. 20 15.4 Survival. The provisions of Sections 15.1 and 15.2 shall survive the expiration or termination of this Agreement if a legal challenge to the approval of the Agreement is timely filed. 16. INDEMNIFICATION. 16.1 Qi1y Indemnity Obligations. City shall Indemnify the Owner Parties against any Claim to the extent such Claim arises from any wrongful intentional act or negligence of the City Parties, but only to the extent that City may be held liable under applicable law for such wrongful intentional act or negligence and exclusive of any violation of law (including the State Constitution) relating to City's approval, entry into or performance of this Agreement. Nothing in this Agreement is intended nor shall be interpreted to waive any limitation on City's liability, any exemption from liability in favor of City, any claim presentment requirement for bringing an action regarding any liability of City or any limitations period applicable to liability of City, as set forth in Government Code Sections 800, et seq., Sections 900, et seq., or in any other law or require City to Indemnify any Person beyond such limitations on City's liability. 16.2 Owner Indemnity Obligations. Owner shall Indemnify the City Parties against any Claim to the extent such Claim arises from any wrongful intentional act or negligence of the Owner Parties. Owner shall also Indemnify the City Parties against any and all of the following: (1) any Application made at Owner's request; (2) any agreements that Owner (or anyone claiming by or through Owner) makes with a Third Person regarding this Agreement, the Property or the Development; (3) any workers' compensation claim or determination arising from employees or contractors--of the Owner Parties; (4) any Prevailing Wage Action related to the Nance Avenue infrastructure improvements; and (5) any Hazardous Substance Discharge. 16.3 Survival of Indemnification and Defense Obligations. The indemnity and defense obligations of the Parties under this Agreement shall survive the expiration or earlier termination of this Agreement, until any and all actual or prospective Claims regarding any matter subject to an indemnity obligation under this Agreement are fully, finally, absolutely and completely barred by applicable statutes of limitations. 16.4 Liability of City. During the Term: (1) Owner is and shall be in exclusive control and possession of the Property; and (2) City shall not be liable for and Owner shall Indemnify City regarding any injury or damage to any property (of Owner or any other Person) or to any Person occurring on or about the Property, except to the extent provided in Section 16.1. 16.5 Indemnification Procedures. Wherever this Agreement requires any Indemnitor to Indemnify any Indemnitee: 16.5.1 Prompt Notice. Indemnitee shall promptly Notify Indemnitor of any Claim. 16.5.2 Selection of Counsel. Indemnitor shall select counsel reasonably acceptable to Indemnitee. Counsel to Indemnitor's insurance carrier that is responding to such Claim shall be deemed satisfactory, except in the event of an actual or potential conflict of interest for such counsel regarding the representation of any Owner Party or any City Party or where such counsel proves to be incompetent regarding the representation. Even though 21 Indemnitor shall defend the action, Indemnitee may, at its option and its own expense, engage separate counsel to advise it regarding the Claim and its defense. Such counsel may attend all proceedings and meetings. Indemnitor's counsel shall actively consult with Indemnitee's counsel: 16.5.3 Cooperation. Indemnitee shall reasonably cooperate with Indemnitor's defense, provided Indemnitor reimburses Indemnitee's actual reasonable out of pocket expenses (including Legal Costs) of such cooperation. 16.5.4 Settlement. Indemnitor may, with the Indemnitee's consent, not to be unreasonably withheld, settle a Claim. 16.5.5 Insurance Proceeds. Indemnitor's obligations shall be reduced by net insurance proceeds the Indemnitee actually receives for the matter giving rise to indemnification. 17. GENERAL PROVISIONS. 17.1 Recordation of Agreement. This Agreement and any amendment, modification, termination or cancellation of this Agreement shall be recorded against the Property in the official records of the County Recorder by the Clerk of the City Council, within the period required by Section 65868.5 of the Government Code. Owner authorizes the recording of all such documents against the Property, whether preceding, during or after the Term. 17.2 Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 17.3 'Warranty Against Payment of Consideration for Agreement. Owner represents and warrants to City that: (a) it has not employed or retained any Person to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees of Owner and Third Persons to whom fees are paid for professional services related to planning, design or Construction of the Development or documentation of this Agreement; and (b) no gratuities, in the form of entertainment, gifts or otherwise have been or will be given by Owner or any of its agents, employees or representatives to any elected or appointed official or employee of the City in an attempt to secure this Agreement or favorable terms or conditions for this Agreement. Breach of the representations or warranties of this Section 17.3 shall entitle City to terminate this Agreement upon seven (7) days Notice to Owner. Upon any such termination of this Agreement, Owner shall immediately refund any payments made to or on behalf of Owner by the City pursuant to this Agreement or otherwise related to the Property, any Development Approval or the Development, prior to the date of any such termination. 17.4 Survival of Agreement. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a non -appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 22 17.5 Non -liability of Officials Employees and Agents. No City Party (other than City itself) shall be personally liable to Owner, or any successor in interest of Owner, in the event of any Default or breach by City under this Agreement or for any amount that may be or become due to Owner or any successor in interest of Owner, on any obligations under the terms or conditions of this Agreement. No Owner Party (other than Owner itself) shall be personally liable to City, or any successor -in -interest of City, in the event of any Default or breach by Owner under this Agreement or for any amount that may be or may become due to City or any successor -in -interest of City on any obligations under the terms or conditions of this Agreement. 17.6 Calculation of Time Periods. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. 17.7 Principles of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 17.8 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties regarding the subject matter of this Agreement. There are no oral or written representations, understandings or ancillary covenants, undertakings or agreements between the Parties regarding the subject matter of this Agreement that are not expressly set forth in this Agreement. This Agreement includes twenty-eight (28) pages and five (5) exhibits, that constitute the entire understanding and Agreement of the Parties regarding the Property and the other subjects addressed in this Agreement. This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Property and the other subjects addressed in this Agreement. 17.9 Severabi l ity. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby, unless the remaining provisions are rendered impractical to perform or severance would deprive either Party of a material element of the benefit of its bargain in entering into this Agreement. Notwithstanding the immediately preceding sentence, the public 23 benefits set forth in Section 1 I of this Agreement, including the payment of the In Lieu Fee and the Reimbursement Amount, are essential elements of this Agreement and City would not have entered into this Agreement, but for such provisions. Therefore, if any of the provisions of Section 11 are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force or effect. 17.10 Governing. This Agreement and any dispute arising under this Agreement shall be governed and interpreted in accordance with the procedural and substantive laws of the State, without application of conflicts of laws principles. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by legal counsel of their own selection in the negotiation and preparation of this Agreement. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City of Downey, County of Los Angeles, State of California. All legal actions arising from this Agreement shall be filed in the Superior Court of the State in and for the County or in the United States District Court with jurisdiction in the County. 17.11 Section Headings. All section headings and subheadings in this Agreement are inserted for convenience only and shall not be considered in the construction or interpretation of this Agreement. 17.12 Singular and Plural. As used in this Agreement, the singular of any word includes the plural. 17.13 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. 17.14 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the Default of the other Party, shall not constitute a waiver of the non -defaulting Party's right to insist on and demand strict compliance by the other Party with the terms and conditions of this Agreement or to pursue its available remedies for the other Party's Default under this Agreement. All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of both City and Owner. 17.15 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties and their respective successors and assigns. No other Person shall have any right of action based upon any provision of this Agreement. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any Person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any Third Person to any Parry or give any Third Person any right of subrogation or action over or against any Party. 24 17.16 Unavoidable Dela Extension of Time for Performance. 17.16.1 Notice. Subject to any specific provisions of this Agreement stating that they are not subject to Unavoidable Delay or otherwise limiting or restricting the effects of an Unavoidable Delay, performance by either Party under this Agreement shall not be deemed or considered to be in Default, where any such Default is due to the occurrence of an Unavoidable Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (a) within ten (10) days after such Party knows of any such Unavoidable Delay; and (b) within five (5) days after such Unavoidable Delay ceases to exist. To be effective, any Notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. If the Party claiming an Unavoidable Delay provides Notice of the Unavoidable Delay to the other Party within the ten (10) day time period specified in this Section 17.16, the extension of time for an Unavoidable Delay shall commence on the date of the condition causing the Unavoidable Delay and shall continue until the end of the condition causing the Unavoidable Delay. If the Party claiming an Unavoidable Delay gives Notice of the Unavoidable Delay after the expiration of the ten (10) day time period required in this Section 17.16, then the extension of time for the Unavoidable Delay shall commence on the effective date of such Notice of the occurrence of the Unavoidable Delay and shall continue until the tenth day following the end of the condition causing the Unavoidable Delay. The Party claiming an extension of time to perform due to an Unavoidable Delay shall exercise its commercially reasonable best efforts to cure the condition causing the Unavoidable Delay, within a reasonable time. 17.16.2 Assumption of Economic Risks. EACH PARTY EXPRESSLY AGREES THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, OF EITHER PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMAND OR CHANGES IN THE ECONOMIC ASSUMPTIONS OF EITHER PARTY THAT MAY HAVE PROVIDED A BASIS FOR ENTERING INTO THIS AGREEMENT SHALL NOT OPERATE TO EXCUSE OR DELAY THE PERFORMANCE OF EACH AND EVERY ONE OF EACH PARTY'S OBLIGATIONS AND COVENANTS ARISING UNDER THIS AGREEMENT. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE PARTIES EXPRESSLY ASSUME THE RISK OF UNFORESEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES AND/OR MARKET DEMAND/CONDITIONS AND WAIVE, TO THE GREATEST EXTENT ALLOWED BY LAW, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. THE PARTIES AGREE THAT ADVERSE CHANGES IN ECONOMIC CONDITIONS, EITHER OF THE PARTY SPECIFICALLY OR THE ECONOMY GENERALLY, OR CHANGES IN MARKET CONDITIONS OR DEMANDS, SHALL NOT OPERATE TO EXCUSE OR DELAY THE STRICT OBSERVANCE OF EACH AND EVERY ONE OF THE OBLIGATIONS, COVENANTS, CONDITIONS AND REQUIREMENTS OF THIS AGREEMENT. THE PARTIES EXPRESSLY ASSUME THE RISK OF SUCH ADVERSE ECONOMIC OR MARKET CHANGES, WHETHER OR NOT FORESEEABLE AS OF THE EFFECTIVE DATE. 25 Initials of Authorized Representative(s) of City I ' als of Authorized Representative(s) of Owner 17.17 Mutual Covenants. The covenants contained in this Agreement are mutual covenants and constitute conditions precedent or concurrent to the subsequent or concurrent performance by the Party benefited by the covenant(s). 17.18 Inspection of Books and Records. City shall have the right at all reasonable times, at City's sole cost and expense, to inspect the books and records of Owner relating to this Agreement, the Property, any Development Approvals or the Development, to the extent relevant to City's rights or obligations under this Agreement, but excluding any proprietary information or attorney-client privileged communications. Owner shall also have the right at all reasonable times, at Owner's sole cost and expense, to inspect the books and records of City relating to this Agreement, the Property, any Development Approvals or the Development, to the extent relevant to Owner's rights or obligations under this Agreement, but excluding any proprietary information, closed -session information or attorney-client privileged communications. 17.19 Successors in Interest. The burdens of this Agreement shall be binding upon and the benefits of this Agreement shall inure to all successors in interest to the Parties. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land of the Property. Each covenant of this Agreement to do or refrain from doing some act regarding Development of the Property: (1) is for the benefit of and is a burden upon every portion of the Property; (2) runs with every portion of the Property; and (3) is binding upon Owner and each successor in interest to Owner in ownership of the Property or any portion of the Property. 17.20 Joint and Several Obligation . If at any time during the Term of this Agreement the Property is owned, in whole or in part, by more than one Owner, all obligations of such Owners under this Agreement shall be joint and several and the default of any such Owner shall be the default of all such Owners. Notwithstanding the foregoing, no Owner of a single lot that has been finally subdivided and sold to such Owner as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as expressly provided for herein. 17.21 No Other Representations or Warranties. Except as expressly set forth in this Agreement, no Party makes any representation or warranty material to this Agreement to any other Party. 17.22 Tax Consequences. Owner acknowledges and agrees that it shall bear any and all responsibility, liability, costs, and expenses connected in any way with any tax consequences experienced by Owner related to this Agreement. 17.23 !Counterparts. This Agreement may be executed by the Parties in multiple counterpart originals, which counterpart originals shall be construed together and have the same effect as if all of the Parties had executed the same instrument. 26 17.24 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a Party for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the State in and for the County. The Parties waive all provisions of law providing for the filing, removal or change of venue to any other court. 17.25 Development as a Private Undertaking. The Parties acknowledge and agree that the Development of the Property is a private development. Neither Party is acting as the agent of the other in any respect pursuant to this Agreement and each Party is an independent contracting entity, with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property and the owner of such property. 17.26 Eminent Domain. No provision of this Agreement shall be construed to require, limit or restrict the exercise by City of its power of eminent domain. 17.27 Inco oration of Recitals and Exhibits. All recitals set forth preceding this Agreement and all exhibits attached to this Agreement are incorporated into this Agreement by this reference. The exhibits attached to this Agreement are as follows: 17.27.1 Exhibit "A." Property Legal Descriptions; and 17.27.2 Exhibit "B." Property Site Plan and Elevation; and 17.27.3 Exhibit "C." Development Schedule; and 17.27.4 Exhibit "D." List of Tenants 17.27.5 Exhibit "E." Applicable CDBG-R Regulations 17.28 Estoppel Certificates. Either Party may, at any time and from time to time, request that the other Party certify in writing to the knowledge of the certifying Party that: (1) this Agreement is in full force and effect; (2) this Agreement has not been amended or modified, except as expressly identified; and (3) no Default in the performance of the requesting Party's obligations under Agreement exists, except as expressly identified. A Party receiving such a request will execute and return the requested certificate, with any reasonable modifications, within fifteen (15) days after receipt of the request. 17.29 Authority to Execute. The person(s) executing this Agreement on behalf of Owner warrant and represent that he or she or they have the authority to do so and to bind Owner to the performance of its obligations hereunder. 17.30 Execution of this Agreement. Following execution of three (3) counterpart originals of this Agreement by the authorized representative(s) of Owner and prompt delivery of all such executed documents to City, this Agreement shall be subject to review and approval by the City Council, in its sole and absolute discretion, within forty-five (45) calendar days after the date of such delivery to City. If the City Council has not approved this Agreement within such 27 forty-five (45) calendar day period, then no provision of this Agreement shall be of any force or effect for any purpose and any prior execution or approval of this Agreement by Owner shall be null and void, unless otherwise agreed in writing by Owner. IN WITNESS WHEREOF, City and Owner have signed this Agreement by and through the signatures of their authorized representative(s) set forth below: CITY: CITY OF DOWNEY, a California municipal corporation and charter city By:_ Mayor City of Downey ATTEST: City Clerk City Manager APPROVED AS TO LEGAL FORM: BEST BEST & KRIECYER LLP City Attorney 28 OWNER: AMUSEMENT INDUSTRY, INC. D.B.A. WESTLAND INDUSTRIES, a California corporation Title - Date: 3 t© ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF LOS ANGELES On _ , before me, , Notary Public, personally appeared Anne M. Bayer, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person 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 of Notary Public (Seal) ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF LOS ANGELES On March 16, 2010, before me, Rebecca Ann Guerrero, Notary Public, personally appeared Yanki Greenspan, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person 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. All Signature of Notary Public REBECCA ANN #E11E1fM"R0 Commbaton i 17486" Notary pwft - COMO"" 1 Los Angles Cowdy (Seal) EXHIBIT "A" TO STATUTORY DEVELOPMENT AGREEMENT Pmcrty Legal Description [To be attached behind this cover page] Title No. 10=725127038=DJ Locate No. CAFNT0972-0972-0051-0725127038 LEGAL DESCRIPTION EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF DOWNEY, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL A: (APN: 6255-003-011) THAT PORTION OF RAILROAD DEPOT TRACT, AS SAID TRACT AS SHOWN ON THE MAP OF TRACT OF THE DOWNEY LAND ASSOCIATION, IN THE CITY OF DOWNEY LAND, AS PER MAP RECORDED IN HOOK 2, PAGE 434 OF MISCELLANEOUS RECORDS, IN THE OFFICE: OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHWESTERLY 140 FEET AT RIGHT ANGLES FROM THE NORTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT WITH THE SOUTHEASTERLY LINE .OF SAID RAILROAD DEPOT TRACT; THENCE NORTH 57 DEGREES 05` 50" WEST ALONG SAID PARALLEL LINE A DISTANCE OF 100 FEET TO A POINT; THENCE NORTH 32 DEGREES 53' 40" EAST A DISTANCE OF 100 FEET TO A POINT IN A LINE THAT I5 PARALLEL WITH AND DISTANT SOUTHWESTERLY 40 FEET AT RIGHT ANGLES FROM SAID NORTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT; 'THENCE SOUTH 5:70 05' 50" EAST ALONG. SAID LAST DESCRIBED PARALLEL LINE, A DISTANCE OF 100 FEET TO A POINT IN SAID SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT' THENCE SOUTH 32 DEGREES 53" 40"' WEST ALONG SAID SOUTHEASTERLY LINE OF SAID DEPOT TRACT, A DISTANCE OF 100 FEET TO THE POINT OF BEGINNING, EXCEPT THEREFROM THE FOLLOWING.DESCRIBED PARCEL OF LAND. BEGINNING AT A POINT OF INTERSECTION OF A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHWESTERLY 40 FEET AT RIGHT ANGLES FROM THE NORTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT, WITH THE SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT; THENCE SOUTHWESTERLY ALONG SAID SOUTHEASTERLY LINE A DISTANCE OF 35 FEET; THENCE NORTHWESTERLY. PARALLEL WITH SAID NORTHEASTERLY LINE OF THE RAILROAD DEPOT TRACT, A DISTANCE OF 10 FEET; THENCE NORTHEASTERLY PARALLEL WITH SAID SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT, A DISTANCE OF 27 FEET; THENCE NORTHERLY IN A DIRECT LINE TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHWESTERLY 40 FEET, AT RIGHT ANGLES, FROM THE NORTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT, SAID LAST MENTIONED POINT BEING DISTANT NORTHWESTERLY 18 FEET, MEASURED ALONG LAST DESCRIBED PARALLEL LINE, FROM THE SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT; THENCE SOUTHEASTERLY IN A DIRECT LINE TO THE POINT" OF BEGINNING. PARCEL B:_= (APN: 6255°003=012) THAT PORTION OF THE RAILROAD DEPOT TRACT AS SAID TRACT IS SHOWN ON THE MAF? OFTRACT'OF THE DOWNEY LAND ASSOCIATION, IN THE CITY OF DOWNEY, AS PER MAP RECORDED IN BOOK 2 PAGE 434 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHWESTERLY 140 FEET AT RIGHT ANGLES FROM THE NORTHEASTERLY LINEOF SAID RAILROAD DEPOT TRACT WITH THE SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT; THENCE NORTH 57°05'50" WEST ALONG SAID PARALLEL,LINE A. DISTANCE OF 100 FEETTO A POINT, THENCE SOUTH 32 DEGREES 53` 40" WEST- A DISTANCE OF 20 FEET''; THENCE SOUTH 57 DEGREES 05` 50" EAST, PARALLEL TO THE NORTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT, A DISTANCE OF 100 FEET TO THE SOUTHEASTERLY LI..NE THEREOF; THENCE 32 DEGREES 53140" EAST ALONG SAID SOUTHEASTERLY LINE, A DISTANCE -OF 20 FEET TO THE POINT Of' BEGINNING. PARCEL $-1: THAT PORTION OF THE RAILROAD DEPOT TRACT, AS SAID TRAcr IS SHOWN ON THE MAP OF TRACT OF THE DOWNEY LAND ASSOCIATION, IN THE CITY OF DOWNEY. AS PER MAP RECORDED IN BOOK Z PACE434 OF MISCELLANEOUS RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: CLIA Ifiekminary Repoli form - Mcgh6cA (I 1/16W EXHIBIT "A" (continued) Title No. 10-725127038=D] Locate No. CAFNT0972-0972-0051-0725127038 BEGINNING AT THE INTERSECTION OF A LINE THAT IS PARALLEL WITH AND DISTANT 140 FEET SOUTHWESTERLY AT RIGHT ANGLES FROM THE NORTHEASTERLY LINE OF SAID RAILROAD DEPOTTRACT WITH THE SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT, THENCE NORTH 57 DECREES 05'50" WEST ALONG SAID PARALLEL LINE 100 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 57 DEGREES 05' 50" WEST ALONG SAID PARALLEL LINE 150.01 FEET; THENCE SOUTH 32 DEGREES 54' 10 WEST 110 FEET; THENCE PARALLEL WITH SAID NORTHEASTERLY LINE SOUTH 57' 05' 50" EAST 150.01 FEET; THENCE NORTH 32 DEGREES 54' 10" EAST 110 FEET TO THE TRUE POINT OF BEGINNING, PARCEL B-2: THAT PORTION OF THE RAILROAD DEPOT TRACT, A5 SAID TRACT IS SHOWN ON THE MAP OF TRACT OF THE DOWNEY LAND ASSOCIATION, IN THE CITY OF DOWNEY, AS PER MAP RECORDED IN BOOK 2 PAGE 434 OF MISCELLANEOUS RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF A LINE WHICH IS PARALLEL WITH A DISTANT SOUTHWESTERLY 140 FEET MEASURED AT BIGHT ANGLES FROM 'THE NORTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT WITH THE SOUTHEASTERLY LIME OF SAID RAILROAD DEPOT TRACT, THENCE NORTH 57 DEGREES 05' 50" WEST ALONG SAID 'PARALLEL LINE A DISTANCE OF 100 FEET TO 'THE TRUE POINT OF BEGINNING;, THENCE ALONG SAID: PARALLEL LINE NORTH 57 DEGREES 05'50" WEST 150 FEET: THENCE NORTH 32 DEGREES 53' 40" EAST 100 FEET TO A POINT IN A LINE WHICH IS PARALLEL WITH AND DISTANT SOUTHWESTERLY 40 FEET MEASURED AT RIGHT ANGLES FROM SAID NORTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT; THENCE ALONG -SAID PARALLEL LINE SOUTH 57 DEGREES 05' 50" EAST 150 FEET, THENCE SOUTH 32 DEGREES 53' 40" WEST 100 FEET TO THE TRUE POINT OF BEGINNING. C L C. (APN: 6255.003-010) ALL THAT CERTAIN PIECE OF PARCEL OF LAND SITUATE IN THE CITY OF DOWNEY, BEING THAT PORTION OF THE RAILROAD DEPOT TRACT AS SAID TRACT IS SHOWN ON MAP OF THE TRACT OF THE DOWNEY LAND ASSOCIATION, RECORDED IN BOOK 2, PAGE 434 OF MISCELLANEOUS REGORM, RECORDS OF SALE COUNT Y DESCRIBED AS FOLLOWS: BEGINNING- AT THE POINT OF INTERSECTION OF A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHWESTERLY 160 FEET MEASURED AT RIGHT ANGLES, FROM THE NORTHEASTERN LINE OF SAID RAILROAD DEPOT TRACT WITH THE SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT; THENCE ALONG. SAID PARALLEL LINE NORTH 57 DE-15REES 05':50 WEST, 100 FEET TO A POINT IN A LINE THAT is PARALLEL WITH ANTS DISTANT NORTHWESTERLY, 100 FEET MEASURED AT RIGHT ANGLES, FROM SAID SOUTHEASTERLY LINE; THENCE ALONG LAST MENTIONED PARALLEL LINE 32 DEGREES 5340'. WEST, 90 FEET; THENCE SOUTH 57 DEGREES 05' 50" EAST, 100 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF SAID RAILROAD DEPOT TRACT, THENCE ALONG SAID SOUTHEASTERLY LINE, NORTH 32 DEGREES 53-40'. EAS,-, 90 FEET TO THE POINT OF BEGINNING, THE ABOVE DESCRIBED PARCEL IS ALSO KNOWN AS ALL OF PARCEL 123 OF THE AMENDED OFFICIAL MAP OF A PORTION OF THE CITY OF DOWNEY, LYING 'WITHIN RANCHO SANTA 6ERTRUDES, IN THE CITY OF DOWNEY, AS PER MAP RECORDED IN BOOK 4 PAGE 76 TO 78, INCLUSIVE. APN: 6255-003-012 UTA: 0minary Repon form • 07Wied (1 U17/06I EXHIBIT "B" TO STATUTORY DEVELOPMENT AGREEMENT Property Site Plan and Elevation [To be attached behind this cover page] I$$ Ii, III 'BAV A3 MOa 11,11 11I'll J m W Z O LL ui w z 0 0 g I a H U) _' WON ml - W Z W U N W W 0 J m W Z 0 W w LL Ll W Z W U V) W W w V) W Q S EXHIBIT "C" TO STATUTORY DEVELOPMENT AGREEMENT Development Schedule [To be attached behind this cover page] EXHIBIT C DEVELOPMENT SCHEDULE 1. Execution of the Agreement by Com. The City shall consider and if approved, shall execute this Agreement. 2. Submission - Basic Concept Plans. Owner shall submit basic concept plans which provide a comprehensive plan for development of the entire Site. 3. Submission - Application for Land Use Entitlements. Owner shall submit complete applications and plans, including but not limited to a merger of parcels, to the City. 4. Approval - Land Use Entitlements. The City shall exercise its best efforts to approve such applications consistent with the terms and conditions of this Agreement. 5. Submission - Construction Drawings, Soils Report, Grading Plan and Final Landscaping Plan. Owner shall prepare and submit to the City Construction Drawings and Specifications, Grading Plans and a Landscaping Plan for the development. 6. App oval - Final Construction Drawings, Finish Grading Plan and Final Landscaping Plan. The City shall approve or disapprove the Final Construction Drawings and Specifications, Grading Plan and Landscape Plan. 7. Completion of Construction. Owner shall complete construction of the development. Within fifteen (15) days of the approval of this Agreement by the City Council. Concurrently with the execution and delivery of this Agreement by Owner to City. Within thirty (30) days of Owner's delivery of the Basic Concept Plans to the City. Concurrently with the City Council's consideration of this Agreement. Within sixty (60) days of the approvals of the land use entitlements set forth in Item #4, above. Within sixty (60) days after receipt by City, subject to timely response and correction by Owner. Within nine (9) months after the issuance of building permits to Owner. 8. Submission - Construction Drawings, for Nance Avenue Improvements. Owner shall prepare and submit to the City Construction Drawings and Specifications, Grading Plans and a Landscaping Plan for improvements to Nance Avenue Right -of Way Improvements and the Waterline Improvements. 9. Approval - Construction Drawin s Finish Grading Plan and Final Landscaping Plan. The City shall approve or disapprove the Construction Drawings and Specifications, Finish Grading Plan, and Final Landscaping Plan for Nance Avenue improvements. 10. Commencement of Construction of Nance Avenue Improvements. Owner shall obtain building permits and commence construction of the Nance Avenue improvements. 11. Completion of Construction. Owner shall complete construction of Nance Avenue improvements. Concurrent with the submission of applications for Land Use Entitlements. Within sixty (60) days after receipt by City, subject to timely response and correction by Owner. Concurrent with Owner's commencement of construction of the on-site development, On or before the completion of the construction of the on-site development. EXHIBIT "D" TO STATUTORY DEVELOPMENT AGREEMENT List of Tenants [To be attached behind this cover page] A & W Restaurants A.G. Ferrari Foods All American Ice Cream & Frozen Yogurt Shop Aloha Restaurants Inc. Al's Italian Beef Ameci In & Out, Inc. Ameci Italian Kitchen Ameci Pizza & Pasta American Restaurant Group, Inc. black angus Andersen Bakery Inc. Andre Boudin Bakeries, Inc. Andronico's Market Angel's Great Food and Ice Cream Anthony's Seafood Group Apex Restaurant Group Applebee's Arby's Ark Restaurants Corp. Asian Concepts, Inc. Asian Too Atlanta Bread Company Bakery Cafe Auntie Anne's Aureflam Corporation Avila's EI Ranchito BAB, Inc. Baby Blues BBQ Bad Ass Coffee Bahama Breeze Bain's Deli Baja Broiler, Inc. Baja Fresh Mexican Grill Baja Sol Cantina Baker Bros. American Deli Bananas Smoothies & Frozen Yogurt Bar Pintxo Barney's Barnie's Coffee & Tea Baskin Robbins bd's Mongolian Barbeque Beach Pit BBQ Bear Creek Coffee Bear Rock Cafe Beef O'Brady's Bella Via Coffee Ben & Jerry's Benchmark Enterprises/Salt Creek Grille Benihana Bertolini's Italian Restaurant MaggieMoo's Ice Cream & Treatery Mai Tai mamma ilardo's Express Manchu Wok, Inc. Marble Slab Creamery Maria's Italian Kitchen Marie Callender's Restaurant & Bakery Mary's Pizza Shack, I Mastro's Restaurants LLC Maui Tacos Maui Wowi Hawaiian Coffees & Smoothies Max & Erma's Restaurants Max Brenner Max's Restaurants McCormick & Schmick's Seafood Restaurants Mellow Mushroom Mel's Drive -In Menchie's Frozen Yogurt Metromedia Steakhouse Co., L.P. Miami Subs Milano Restaurants International Millie's Restaurant & Bakery, Inc. Mimi's Cafe Mini Melts Moe's Southwest Grill Mollie Stone's Markets Momed Market Cafe Monster Sushi Morton's Steakhouse Mr. Pita Mr. Pizza Man Mrs. Beasley Mrs. Field's Cookies Murphy's Market N.Y.P.D. Pizza Nancy's Pizzeria Nascar Sports Grille Nathan's Famous New Moon Restaurant Newsroom Cafe Nick N Willy's Pizza Noahs Bagels Noodles & Company Norm's Restaurant Nothing Bundt Cakes Nugget Market Numero Uno Pizza Old Spaghetti Factory Beverages & More! BevMo Biaggi's Ristorante Italiano Billy Goat Tavern BJ's Restaurant & Brewery Black Bear Diner, Inc. Blendz Inc. Blimpie Subs & Salads Blue C Sushi Bluewater Grill Boardwalk Fresh Burgers and Fries Bob Evans Restaurants Boba Loca Inc. Bobby Cox Restaurants Bobby Rubino's USA Inc. Bodega Latina Boloco Bonefish Grill Boneheads Booster Juice Boston Market Boston Pizza Restaurants, LP Boston's Gourmet Pizza Briad Restaurant Group - TGIF Bridgeman's Ice Cream Brinker International Brio Tuscan Grille Bristol Farms Brothers Bar & Grill Brueggers Enterprises, Inc. Bubba Gump Shrimp Co. Restaurants, Inc. Buckhorn Grill Buck's Pizza Buddha's Belly Buffalo Wild Wings Buffalo Wings & Rings, LLC Buffets Holdings, Inc. Bullets Corporation of America Bumblefish Sushi Burger King Burger Lounge Burgermaster Burgerville Cajun Cafe, China Max, Little Tokyo California Banquet Corp. California Fish Grill California Pizza Kitchen California Roll & Sushi Camille's Sidewalk Cafe Campero USA Corp. Olive Garden Omaha Steaks On The Border Organic To Go Original Roadhouse Grill Outback Steakhouse P.F. Chang's China Bistro, Inc. Pal's Panchero's Mexican Grill Panda Express Panera Bread Papa John's International Inc. Papa Murphy's Papa Romano's Paradise Bakery & Cafe Pasta Pomodoro Pat & Oscar's Peet's Coffee & Tea Pei Wei Asian Diner Perkins & Marie Callender's, Inc. Peter Piper Pizza Petros Greek Cuisine & Lounge Philly Connection Philly's Best Pick Up Stix, Inc. Pinkberry Pita Pit Pizza Factory Pizza Fusion Pizza Guys Pizza Hut/Wing Street Combo Pizza Man Pizza Patron Pizza Pro, Inc. Pizza Schmizza, Inc. Pizzeria Venti Planet Smoothie, Planet Smoothie Cafe Playa Grill & Margarita Bar PlumpJack Group Pluto's Restaurants Ponderosa Popeyes Chicken & Biscuits Poquito Mas Port of Subs Pretzelmaker Qdoba Mexican Grill Quiznos Sub RA Sushi Bar Ranch 1 Grilled Chicken Red Boy Pizza Franchising Captain Tony's Pizza Red Lobster Carino's Italian Grill Red Mango Carl's Jr. Red Robin Gourmet Burgers Carrabbas Italian Grill RedBrick Pizza Carvel Rex Chicken Cask N Cleaver Richie's Neighborhood Pizzeria CeFiore Italian Yogurt Rita's Ices, Cones, Shakes & Other Cool Stuff Cereality Robeks Fruit Smoothies & Healthy Eats Chao Praya Chinese Eatery Rockin' Baja Lobster Charley's Grilled Subs Rocky Mountain Chocolate Factory Charo Chicken Rollerz Rolled Sandwiches Cheba Hut Toasted Subs Rolling Rice Japanese Restaurant Checkers Drive-in Romano's Macaroni Grill Cheddar's Casual Cafe Roscoe's House of Chicken & Waffles Cheeburger Cheeburger" Rotelli Pizza & Pasta, Inc. Cheese Steak Shop Rouge Tomate Cheeseburger In Paradise" Round Table Pizza Cherry On Top" Roy's Hawaiian Fusion Chevys Mexican Restaurant Roy's Restaurants Chi-Chi's Pizza Inc. Rubio's Fresh Mexican Grill Chick-Fil-A Ruby Tuesday Chick-N-Grill Ruby's Diner Chik Wich Rumbi Island Grill Chili's Bar & Grill Russell Stover Candies Chinese Gourmet Express Russo's New York Pizzeria Chipotle Rusty's Pizza Parlors, Inc. Chris & Pitts Barbecue Ruth's Chris Steak House Chuck E. Cheese's Salad Creations Church's Chicken Saladworks LLC Cici's Pizza Sammy's Wood-Fired Pizza Cindy's Cinnamon Rolls Samurai Sam's Teriyaki Grill Cinnabon Sandella's Flatbread Cafe Circle Bar SanSai Japanese Grill City Bites Sarku Japan Claim Jumper Restaurant Saxbys Coffee Coffee Beanery Sbarro, Inc. Cold Stone Creamery Scharffen Berger Chocolate Maker Coney Beach Schlotzsky's Corner Bakery Cafe Seafood City Cosi Seasons 52 Country Kitchen" See's Candies Country Waffles" Sertinos Coffee Cracker Barrel Shakey's Pizza Crazy Bowls & Wraps" Shane's Rib Shack Culver's Sharky's Franchise Group, LLC Cuppy's Coffee & More, LLC ShotCakes Daily Grill / The Grill on The Alley Showcolate Fondue Express Daphne's Greek Cafe Shula's Steak Houses, L.P. Dave & Buster's, Inc Silver Mine Subs Del Taco Sizzler Del's Lemonade" Desert Island Restaurants Desert Moon Fresh Mexican Grill" Devon Seafood Grill" Dickey's Barbecue Pit Dick's Last Resort Dinner My Way Dinners Done Right Dinners Ready! Dippin' Dots Doc Green's Gourmet Salads" Dominic's of New York Domino's Pizza DQ Grill & Chill" Earl of Sandwich" Edible Arrangements Edo Japan Einstein Bros Bagels EI Cholo EI Polio Loco EI Toreo Elephant Bar Restaurant Elmer's Breakfast, Lunch & Dinner" Emerald City Smoothie" Erik's Delicafe" ESPN Zone Extreme Pita Extreme Pizza Famima Corporation Famous Dave's Famous Famiglia Farmer Boys Restaurants Fatburger Fazoli's Figaro's Pizza Firehouse Subs Fish City Gril Five Guys Famous Burgers and Fries Flamers Grill Fleming's Prime Steakhouse & Wine Bar Flying Biscuit Fox Sports Grill Fresca's Mexican Grill Fresh Brothers Pizza FreshBerry Froots Smoothies Fuddruckers Fudgery Fuzziwigs Candy Factory Garlic Jim's Famous Gourmet Pizza Skratch Smart & Final Stores LLC Smashburger Smoothie King Sonic Sonoma Chicken Coop Souplantation Spicy Pickle Spires Restaurants, Inc. Spoon Me Sprouts Farmers Markets Squeeze International Inc. Stanford's Restaurant & Bar Starbucks Coffee Company Steak & Ale Steak Escape Steer N Stein Steve's Place Inc. Stone Oven Gourmet Sandwiches & Salads StoneFire Grill Straw Hat Pizza Streets of New York Inc. Strings Franchises, Inc. Strizzi's Stuckey's Corp. Stuft Pizza Pronto Sub Station II, Inc. Submarina California Subs Subway Sullivan's Steakhouse Super Suppers Surf City Squeeze Sweet Dreams Inc. T K Noodle Inc. T.G.I. Friday's Taco Bell Taco Bueno Taco Del Mar Tacone TacoTime Tapioca Express tasti D -lite Teavana Tender Greens Teriyaki Experience Texas Land & Cattle Steak House Texas Roadhouse Texas Turkeys, Inc. The Bad Ass Coffee Company of Hawaii, Inc. The Big Cheese Pizza Co. Genghis Grill The Capital Grille Gina's Pizza Inc. The Cheesecake Factory Incorporated Gloria Jean's Gourmet Coffees The Coffee Bean & Tea Leaf Godfather's Pizza, Inc. The Coffee Beanery, Ltd. Godiva Chocolatier The Counter Golden Corral The Dinner A'Fare Golden Spoon The Elephant & Castle Group, Inc. Great American Cookies The Fudgery, Inc. Great Wraps The Grape Green Leafs The Great Steak & Potato Company Gumby's Pizza Systems, Inc. The Greene Turtle Haagen-Dazs Shoppes The Habit Burger Grill Habit Burger Grill The HoneyBaked Ham Company Handel's Homemade Ice Cream & Yogurt The Johnny Rockets Group, Inc. Happi House Restaurants Inc. The Kona Crisp Hard Rock Cafe The Melting Pot Hickory Farms The Nutty Bavarian High Tech Burrito The Original Pancake House HoneyBaked Ham Company and Caf6 The Original SoupMan Hooters The Paradies Shops Inc. Hot Breads The Portillo Restaurant Group Hot Dog On A Stick The Rack Houlihan's The Rice Garden Howl At The Moon The Steak Escape Howl USA The Taco Maker Hudson Group The TANGO Group Hudson's Grill International, Inc. The Veggie Grill ' Hungry Howie's Pizza & Subs Thunder Jackson's Urban Roadhouse Hurricane Grill and Wings Tilted Kilt In -N -Out Burger Tim Horton's Inc. International Dairy Queen, Inc. Tin Roof Bistro Islands Restaurants Todai SSB, Inc. It's A Grind Togo's Sandwiches Jack in the Box Tommy Bahama Tommy Pastrami NY Delicatessen Franchise Group Jamba Juice L.L.C. Java Detour Tommy's Original World Famous Hamburger Jensen's Finest Foods Inc. Tossed Jerry's Famous Deli, Inc. Total Wine & More Jersey Mike's Subs Trader Joe's Co., Inc. Jimbo's Naturally Co. Tropical Smoothie Caf6 Jimboy's Marketing, Inc. Una Mas Restaurants, Inc. Jimmy John's Unique Pizza & Subs Corp. Joe's Crab Shack Holdings, Inc. Uno Chicago Grill Joey's Seafood & Grill USA Vie de France Yamazaki, Inc. Johnnie's Dog House Villa Enterprises Management Johnnie's New York Pizzeria Villa Fresh Italian Kitchen Johnny Rockets Vino 100 John's Incredible Pizza Co. Vintners Distributors Jose's Mexican Foods Vivoli Cafe Juan Polio W.G. Grinders Franchise, Inc. Juice It Up! WaBa Grill Juice Zone Wafflo Jumpin' Juice & Java Wahoo's Fish Taco Kahala-Cold Stone Corp. Wake Up & Live, Inc. Keva Juice Wendy's KFC We're Rolling Pretzel Company Kidfresh West Lake Food Corporation Killarney's Irish Pub & Grill Western Bagel, Inc. Kincaid's Fish, Chop & Steak House Western Sizzlin King's Seafood Co. Wetzel's Pretzels LLC Kolache Factory What A Lot A Pizza Kona Grill Which Wich Krispy Kreme Donuts Whole Foods Market Inc. L & L Hawaiian Barbecue wichcraft L.A. Italian Kitchen Management, Inc. Wienerschnitzel/Tastee-Freez La Pizza Loca Wind & Sea Restaurants, Inc. La Salsa Winestyles Le Boulanger Wings To Go Le Pain Quotidien Wingstop Lee's Sandwiches International, Inc. Wok & Roll Lenny's Sub Shop Wolfgang Puck Worldwide, Inc. Let's Dish World of Good Tastes Inc. Little Caesars Pizza World Wrapps Northwest Loard's Ice Cream & Candies, Inc. Yard House USA, Inc. Logan's Roadhouse Yogen Fruz Lollicup USA Inc. Yogurtland Lone Star Steakhouse & Saloon Inc. Yoshinoya Restaurants Long John Silver's Z Pizza Longhorn Steakhouse Z Tejas Grill Lori's Diner Zao Noodle Bar Loteria Grill Zero's Subs Luna Grill zpizza, LP Maggiano's Buffalo Wild Wings Ruby Tuesday Round Table Pizza The Habit Burger Waba Grill Zankou Chicken Subway Yogurtland Red Robin Qdoba Mexican Grill Sprouts Market Henry's Market Pei Wei Panera Bread Baskin Robins Cold Stone Creamery Blizzberry Yougurt Starbucks Coffee Diedrich Coffee Its A Grind Coffee Jamba Juice Wahoo's Fish Taco Rubio's Fresh Mexican Grill Coffee Bean & Tea Leaf Applebee's Corner Bakery Caf6 On the Boarder Noah's /Einstein's Bagels AT&T Wireless Verizon Wireless EXHIBIT "E" TO STATUTORY DEVELOPMENT AGREEMENT Applicable CDBG-R Regulations [To be attached behind this cover page] Specific Conditions of the American Recoveryand Reinvestment Act of 2009 Title XII for CDBG-R funds Section 1605 requires that all iron, steel and manufactured goods used in the construction, alteration, repair, or maintenance of a public works project must be produced in the United States. • Imposes greater and more frequent reporting requirements. Requires a every contract contain a condition requiring compliance with the reporting requirements established for CDBG-R. Section 1512 requires that every project must report on the number of jobs estimated to be created or retained. Contractors must obtain a Data Universal Numbering System (DUNS) number which can be requested via the web at Htt :11www. grants, goylapp I icants/req uest duns number.. s . • Requires the submittal of reports within 10 days of end of a calendar quarter, for the duration of the project. At mimimum report to provide the amount of CDBG-R funds expended or obligated to projects, estimate of the number of job created and the number of jobs retained by the project, Required of prime and subcontractors. Recommended we obtain from private portion of project.. Regular CDBG requirements • 24 CFR Part 24, the regulations that prohibit use of debarred or suspended contractors on federally assisted projects and Drug Free Workplace requirements, issued according to Executive Order 12459. • Title IV of the Personal Responsibility and Work Opportunity Reconciliation. Act of 1996, regarding eligibility restrictions for certain resident aliens. • 24 CFR Part 7 and 41 CFR Part. 60, regulations on equal employment opportunity without regard to race sex, color, reJiJon, age; national origin, and disability in federally assisted construction contracts. • 24 CFR Part 87 and Anti -Lobbying Amendment (31 U.S.C. 1352), regulations for restrictions on lobbying and required certifications. Age Discrimination Act of 1975 (42 U.S.C. 6101), the regulation's that prohibit discrimination on the basis of iage Public Vac ties apd Iufras Mdpre Public Facilities and InfVatructure. Provisions - Section of_CFR Other Refers . . 1. Eligibility 24 CPR. 370.20*)'. 570.201(c), 57A.207(a)(1) 2. Federal I.abot' Standards -24 CFR 570:603 Sec. 110, Housing and —Davis -Bacon 29 CFR Parts 1, 3, Community Devi: Act of --Copaiaiid Aft (Anti -kickback) and 5 1974 (HCD);40 USC 276a- --Contract 'Work Houre'aard Safety Standards 276a-5; 40 USC 276c; 46 USC 327 et seq., 3. Non-DiscrimivatioalMO 24 CPR 570.601, . Exevutive Orders 11246 and 570.602, 510.6W;' 126968.12 USC t70f*;' SW. 24 CFR Part 8; 504 of the Rehab Act' of 41 CFR 60 1973; Tire Americans with Disabilities Act of 1990 4. list of'Debatred or Ineligible Contractors Z4 CFR 570.609; 24 CFR 24 5. Fre Safety Codes I:oeal 6. Building, Housing and Zoning lCodes Ibcal 7. Wd-Bawd Paint 24 CPR 570.608; 42 USC 4821 et seq. 24 -CFR 35 8. Environrnarstal/Wistoric Preservation/National Environmental 24 CPR 370:604, Sec. 104(8), HCD Policy ActMood Insurance 510x.201, 24 CPQ; Part . 58 —Fish and WildlifeProteotioa --Fiood;Plak _ --National Historic, Pres6rVottion --Noise:Abatement &,Control See —Wetlands Erfoream --Air Quality at --Coastal Tosses 24 CFR 58.5 --Endangered .Species i Tbermgl/Explosive Hazards L —Flood Insurance 570.605, 58.6 42 USC 4001 et seq. -Siong Tear Airports See reference sit 24 -Coastal Barrier Resources CFR 50:6 FEDERAL PROVISIONS CASH CONTRACT No. The Construction project covered by this contract will be financed in part with Federal funds from the U.S. Department of Housing and Urban Development, and therefore will be subject to all federal statutes, executive orders and regulations applicable to federal assisted construction projects. This is a federally assisted construction contract and the applicable federal labor standards, including the.Davis—Bacon prevailing wage rates will be enforced. If Federal and State wage rates differ, then the higher of the two rates will prevail. The Contractor and all subcontractors shall comply with the provisions within this Section. This Section includes: Equal Opportunity Provisions - Executive Order 11246 Affirmative Action Requirements Federal Equal Emplyment Specifications Certification of Non -Segregated Facilities Certification Perform-,uice of Previous Contracts Notice of Equal Employment Opportunity Compliance with Clean Air and Water Acts Contracting with. Small and MinorityFirrirs, Women' 13usinet Enterprise Pae s Employment, Training, and Contracting Opportunities for Low -Income Persons - Section 3 of the Housing & Urban Development Act Federal Labor Standards Federal Prevailing Wage Rates - General Decision No: CA20080033 05/09/2008