HomeMy Public PortalAboutOrdinance 1124ORDINANCE NO. 1124
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
BEAUMONT, CALIFORNIA, APPROVING AN AMENDED AND
RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF BEAUMONT AND MPLD II INLAND EMPIRE, LLC
WHEREAS, City is a general law city and a municipal corporation of the State of
California; and;
WHEREAS, MPLD II INLAND EMPIRE, LLC ("Owner") owns approximately
198.38 acres of land, described in Exhibit "A" ("Subject Property") attached hereto and
incorporated herein by this reference also known as Assessor's Parcel No. 424-010-011
through 424-010-018, inclusive, located within an existing specific plan known as the Hidden
Canyon Specific Plan, located south of SR-60 west of Potrero Boulevard and east of Jack
Rabbit Trail in the City of Beaumont; and
WHEREAS, City approved that certain DEVELOPMENT AGREEMENT BY AND
BETWEEN CITY OF BEAUMONT AND MPLD II INLAND EMPIRE, LLC dated
December 3, 2019 which currently applies to the Property and City and developer desire to
amend and restate the original Development Agreement as provided in this Agreement and
supersede and replace the original Development Agreement.
WHEREAS, the property owner and the City agree to limitations on sewer flow as
specified in the Amended and Restated Development Agreement as determined in the "Sewer
Area Study and Preliminary Lift Station Design for Beaumont Crossroads II Logistics"; and
WHEREAS, the Subject Property is subject to the following entitlements: General
Plan Amendment 11-GPA-02, Hidden Canyon Specific Plan 11-SPA-01, Hidden Canyon EIR
and Addendum, Parcel Map 36426 and Plot Plan PP2018-0134 ("Development Approvals"
or "Project"); and
WHEREAS, the Project will provide jobs and industry in the City of Beaumont; and
WHEREAS, Developer is not requesting any form of financial assistance from City
to locate, develop, construct and/or operate the Project in the City of Beaumont, and agrees
to comply with all conditions of approval; and
WHEREAS, to strengthen the public planning process, encourage private
participation in comprehensive planning and reduce the economic risk of development,
the Legislature of the State of California adopted Sections 65864 et seq. of the California
Government Code, "Development Agreement Statute" which authorizes cities to enter
into property development agreements with any person(s) or entity(ies) having a legal or
equitable interest in real property for the development of such real property in order to
establish certain development rights in the real property; and
WHEREAS, under Government Code Sections 65864 et seq. and Beaumont City
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Council Resolution No. 1987-34 a development agreement is intended to provide
assurances to developer that an approved project may proceed subject to the policies,
rules, regulations, and conditions of approval applicable to the project at the time of
approval, regardless of any changes to City policies, rules, and regulations after project
approval, and provide assurances that City cannot otherwise unilaterally impose
conditions of approval of the project outside the context of a negotiated development
agreement; and
WHEREAS, this Agreement will eliminate uncertainty in planning for and secure
orderly development of the Subject Property, assure progressive installation of necessary
improvements, and ensure attainment of the maximum effective utilization of resources
within City at the least economic cost to its citizens; and
WHEREAS, based on the foregoing recitals, City has determined that this
Agreement is appropriate under Government Code Sections 65864 et seq. and Beaumont
City Council Resolution No. 1987-34; and
WHEREAS, this Agreement is voluntarily entered into in consideration of the
benefits to and the rights created in favor of each of the parties hereto and in reliance upon
the various representations and warranties contained herein; and
WHEREAS, City, as "Lead Agency" under the California Environmental Quality
Act ("CEQA") and the CEQA Guidelines, has determined that the "Project," as more fully
described in this Ordinance, has been fully analyzed under CEQA and CEQA Guidelines
and is subject to a certified EIR and addendum.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF
BEAUMONT DOES ORDAIN AS FOLLOWS:
SECTION 1. RECITALS
That the above Recitals are true and correct and are incorporated as though fully
set forth herein.
SECTION 2. APPROVAL OF AMENDED AND RESTATED
DEVELOPMENT AGREEMENT
That the City Council hereby approves the Amended and Restated Development
Agreement by and Between the City of Beaumont and MPLD II Inland Empire, LLC
("Development Agreement"), a copy of which is attached hereto as Exhibit "B" and
incorporated herein by this reference, subject to the terms and conditions stated therein.
SECTION 3. SEVERABILITY
That the City Council declares that, should any provision, section, paragraph,
sentence or word of this Ordinance be rendered or declared invalid by any final court
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action in a court of competent jurisdiction or by reason of any preemptive legislation, the
remaining provisions, sections, paragraphs, sentences or words of this Ordinance as
hereby adopted shall remain in full force and effect.
SECTION 4. EFFECTIVE DATE OF ORDINANCE
That this Ordinance shall take effect thirty (30) days after its second reading by the
City Council.
SECTION 5. EFFECTIVE DATE OF DEVELOPMENT AGREEMENT
The Development Agreement shall not be executed by the City until on or after the
effective date of the Ordinance.
SECTION 6. REPEAL OF CONFLICTING PROVISIONS
That all the provisions of the Beaumont Municipal Code as heretofore adopted by the
City of Beaumont that are in conflict with the provisions of this ordinance are hereby
superseded to the extent of such inconsistency.
SECTION 7. RECORDATION OF DEVELOPMENT AGREEMENT
The City Clerk is hereby directed to record the fully executed Amended and
Restated Development Agreement with the Riverside County Recorder no later than ten
(10) days after its execution.
SECTION S. CERTIFICATION
That the City Clerk shall certify to the passage of this Ordinance and shall cause
the same to be published according to law.
INTRODUCED AND READ for the first time and ordered posted at a regular meeting
of the City Council of the City of Beaumont, California, held on the 21st day of July,
2020, by the following roll call vote:
AYES: White, Martinez, Carroll, Lara, Santos
NOES:
ABSENT:
ABSTAIN:
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City
of Beaumont, California, held on the 4th day of August, 2020.
AYES: White, Martinez, Carroll, Lara, Santos
NOES:
ABSENT:
ABSTAIN:
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Rey S os, Mayor
Attest:
Nicole Wheelwri
ht Deputy City Clerk
Approved as to form:
John O. Pinkney, City Attorney
4
Rey Sal yo*','Mayor
Attest:
Nicole Wlieelwri Depnty City Clerk
Approved as to form:
inkney, City Attorney
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EXHIBIT "A"
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Order Number: NHSC-5757807 (29)
Page Number: 8
LEGAL DESCRIPTION
Real property in the City of Beaumont, County of Riverside, State of California, described as follows:
PARCEL 1:
PARCELS 1, 2, "A", "B", AND "C" AND LOTS "A" AND "B" AS SHOWN UPON THAT CERTAIN MAP
ENTITLED "PARCEL MAP NO. 36426", RECORDED MARCH 16, 2017, IN BOOK 242 AT PAGES 24
THROUGH 29.
EXCEPT THEREFROM SEVENTY-FIVE PERCENT OF ALL OIL AND MINERAL RIGHTS, AS RESERVED IN
DEED FROM DELBERT C. FOWLER ET AL RECORDED FEBRUARY 4, 1960, IN BOOK 2628, PAGE 168, AND
RE -RECORDED FEBRUARY 10, 1960, IN BOOK 2631, PAGE(S) 519, BOTH OF OFFICIAL RECORDS.
PARCEL 2:
AN APPURTENANT NON-EXCLUSIVE EASEMENT FOR RIGHT OF WAY FOR ROAD PURPOSES AS MORE
FULLY DEFINED IN DOCUMENT RECORDED JUNE 24, 1982 AS INSTRUMENT NO. 108614 OFFICIAL
RECORDS.
APN: 424-010-011 THROUGH 424-010-018
FirstAmerican Title
EXHIBIT "B"
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RECORDING REQUESTED BY:
City of Beaumont
WHEN RECORDED MAIL TO:
City of Beaumont
550 E. 6th Street
Beaumont, CA 92223
Attention: City Manager's Office
(SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE)
Exempt from Recording Fees Pursuant to Government Code Section 27383
APN: 424-010-011 through 424-010-018
AMENDED AND RESTATED
DEVELOPMENT AGREEMENT BY AND
BETWEEN
CITY OF BEAUMONT
AND
MPLD II INLAND EMPIRE, LLC
This Amended and Restated Development Agreement ("Agreement") is entered into this 4th_
day of August , 2020, by and between CITY OF BEAUMONT, a general law city and
municipal corporation located in the County of Riverside, State of California ("City"), and
MPLD II INLAND EMPIRE, LLC, a Delaware limited liability partnership ("Developer")
pursuant to the authority of Sections 65864 et seq. of the California Government Code and
Beaumont City Council Resolution No. 1987-34.
RECITALS:
WHEREAS, City is a general law city and a municipal corporation of the State of
California; and;
WHEREAS, Developer owns approximately 198.38 acres of land the legal description
of which is attached hereto and incorporated herein by reference in Exhibit "A" ("Subject
Property") (Assessor Parcel Nos. 424-010-011 through 424-010-018, inclusive), subject to an
existing specific plan known as the Hidden Canyon Specific Plan, located south of SR-60,
west of Potrero Boulevard and east of Jack Rabbit Trail in the City of Beaumont; and
WHEREAS, City approved that certain DEVELOPMENT AGREEMENT BY AND
BETWEEN CITY OF BEAUMONT AND MPLD II INLAND EMPIRE, LLC dated ,
2019 which currently applies to the Property and City and developer desire to amend and
restate the original Development Agreement as provided in this Agreement and supersede and
replace the original Development Agreement. and
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WHEREAS, the Subject Property is subject to the following entitlements: General
Plan Amendment 11-GPA-02, Hidden Canyon Specific Plan 11-SPA-01, Hidden Canyon EIR
and Addendum, Parcel Map 36426 and Plot Plan PP2018-0134 (as extended on October 8,
2019) ("Entitlements"); and
WHEREAS, the permitted uses of the Property are industrial uses being Trucking
Terminal, Industrial Complex, Wholesale, Distribution and Storage, Administrative Offices
and Other Uses determined to be substantially similar; the density and intensity of use is up
to 2.89 million square feet of distribution warehouses, maximum allowable lot coverage 55%;
the maximum height of the proposed buildings is 50 feet above building finish floor elevation,
the current approved size of Building 1 is 1,867,040 sf and the current approved size of
Building 2 is 1,015,280 sf, minor modifications to building size and design are allowed per
the specific plan as long as the maximum square footage is not exceeded; the specific
provisions for reservation or dedication of land for public purposes are that Lots A & B of
Parcel Map dedicated for streets and public utilities, Parcel A is open space, Parcel B is a
retention basin and Parcel C is an open space area (collectively, the "Project"); and
WHEREAS, the Project will provide jobs and industry in the City of Beaumont; and
WHEREAS, Developer is not requesting from the City, nor is the City providing,
any form of financial assistance to locate, develop, construct and/or operate in the City of
Beaumont, and Developer agrees to comply with all conditions of approval; and
WHEREAS, to strengthen the public planning process, encourage private
participation in comprehensive planning and reduce the economic risk of development,
the Legislature of the State of California adopted Sections 65864 et seq. of the California
Government Code, "Development Agreement Statute" which authorizes cities to enter
into property development agreements with any person(s) or entity(ies) having a legal or
equitable interest in real property for the development of such real property in order to
establish certain development rights in the real property; and
WHEREAS, this Development Agreement is intended to provide assurances to
Developer that an approved Project may proceed subject to the policies, rules, regulations,
and conditions of approval applicable to the Project at the time of approval, regardless of
any changes to City policies, rules, and regulations after project approval, and provide
assurances that City cannot otherwise unilaterally impose conditions of approval of the
Project outside the context of the negotiated development agreement; and
WHEREAS, this Agreement will eliminate uncertainty in planning for and
securing orderly development of the Subject Property, assure installation of necessary
improvements, and ensure attainment of the maximum effective utilization of resources
within the City at the least economic cost to its citizens; and
WHEREAS, based on the foregoing recitals, City has determined that this
Agreement is appropriate under the Development Agreement Statute and Beaumont City
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Council Resolution No. 1987-34; and
WHEREAS, this Agreement is voluntarily entered into in consideration of the
benefits to and the rights created in favor of each of the parties hereto and in reliance upon
the various representations and warranties contained herein; and
WHEREAS, City, as "Lead Agency" under the California Environmental Quality
Act ("CEQA") and the CEQA Guidelines, has determined that the "Project," as more fully
described in this Agreement, has been fully analyzed per CEQA Guidelines under the
existing EIR and Addendum for the Project.
NOW, THEREFORE, pursuant to the authority contained in the Development
Agreement Statute and Beaumont City Council Resolution No. 1987-34 and in consideration
of the mutual covenants and promises of the parties contained herein, the Parties agree as
follows:
AGREEMENT:
Section 1. Incorporation of Recitals and Exhibits
The foregoing Recitals and attached Exhibits are true and correct and are incorporated
into this Agreement by this reference as though fully set forth herein.
Section 2. Effective Date
This Agreement shall become effective on the effective date ("Effective Date") of the
ordinance enacting this Agreement ("Enacting Ordinance").
Section 3. Term
The parties agree that the Term of this Agreement shall be for a term of seven (7) years
commencing on the Effective Date, subject to any termination provisions described in this
Agreement ("Term").
Section 4. Project
The "Project" will include the development of up to 2.89 million square feet of
industrial development with associated on and off -site improvements and landscaping on the
Subject Property, which consist of approximately 198.38 acres of vacant land in the Hidden
Canyon Specific Plan, subject to the following Entitlements: General Plan Amendment 11-
GPA-02, Hidden Canyon Specific Plan 11-SPA-01, Hidden Canyon EIR and Addendum,
Parcel Map 36426 and Plot Plan PP2018-0134 (as extended on October 8, 2019).
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Section 5. Project Site
The "Project Site" is the same as the Subject Property, which consists of approximately
198.38 acres of vacant land in the Hidden Canyon Specific Plan, located south of SR-60, west
of Potrero Boulevard and east of Jack Rabbit Trail, in the City of Beaumont, California.
Section 6. Termination
This Agreement shall be terminated and of no further effect upon the occurrence of any
of the following events:
(a) The expiration of the Term of this Agreement; or
(b) Entry of final judgment or issuance of a final order by a court of competent
jurisdiction directing City to set aside, withdraw, or abrogate City's approval of this
Agreement or any material part of the Entitlements;
(c) The effective date of City's election to terminate this Agreement in response to
an uncured default by Developer, pursuant to the terms of this Agreement; or
(d) The effective date of Developer's election to terminate this Agreement for any
reason.
In the event of a termination of this Agreement with respect to any portion of the Project or
Project Site, any then -existing rights and obligations of the parties under this Agreement with
respect to such portion of the Project or Project Site shall automatically terminate and be of no
further force, effect or operation. No termination of this Agreement with respect to any portion
of the Project or Project Site shall affect in any way the parties' rights and obligations hereunder
with respect to any other portion of the Project or Project Site. If City lawfully terminates this
Agreement because of Developer's default, then City shall retain any and all benefits, including
without limitation any money, improvements, structures, easements or dedications received by
City pursuant to any term or condition of this Agreement.
Section 7. Cooperation by Developer
Developer shall, in a timely manner, provide City with all documents, applications,
plans and other information necessary for City to carry out its obligations under this
Agreement and cause its planners, engineers and other consultants to do the same. Developer
also shall apply in a timely manner for such other permits and approvals from other
governmental or quasi- governmental agencies having jurisdiction over the Project or Project
Site as may berequired for the development or operation of the Project or Project Site, as
contemplated by this Agreement. For the avoidance of doubt, nothing in this Agreement shall
be construed to require Developer to develop, construct, open or operate on the Project Site.
Except as provided to the contrary in Sections 23 and 24 regarding Hold Harmless and
Indemnity, Developer shall have no obligations under this Agreement for matters that occur
or obligations that arise with respect to any portion of the Project Site after it has transferred
such portion of the Project Site to another party so long as Developer has complied with
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Section 17 hereof by providing notice to the City or obtaining the City's approval to the extent
required in Section 17.
Section 8. Processing Fees
Notwithstanding anything else herein, Developer shall pay all applicable fees pursuant
to the Beaumont Municipal Code and established Fee Schedule in the amounts set forth in the
schedule of fees in effect at the time such fees are due and payable during the development
process. Without limiting the forgoing such fees will include grading permit fees, building
permit fees and other similar fees.
Section 9. Vested Rights and Applicable Rules, Regulations and Policies
(a) Except as otherwise provided in this° Agreement, Developer shall have the
vested right to develop the Project and Project Site pursuant to the Entitlements and the rules,
regulations, and policies governing use, density, design, improvement, construction,
maximum height and size of proposed buildings in effect on the Effective Date of this
Agreement (collectively, "Applicable Law"). It is the intent of City and Developer that the
vesting of development rights of Developer shall include the permitted land uses, density and
intensity of use of the Project Site, timing or phasing of development, zoning, and the location
and size of public improvements and other terms and conditions of development of the Project
or Project Site as set forth in the Entitlements and this Agreement. Except in the event of
termination of this Agreement under Section 6, the Entitlements associated with the Project
shall not expire prior to the end of the Term. In addition, pursuant to the City's policies, if,
prior to the expiration of the Term of this Agreement, Developer has completed either
Building 1 or Building 2, and all public and private improvements required in relation thereto
and an unconditional Certificate of Occupancy has been issued by City, the Entitlements
relative to such building shall have been deemed satisfied as it relates to this Agreement and
the Entitlements for the remaining building to be constructed will continue in effect as
otherwise provided in this Agreement.
(b) In accordance with Government Code Section 65866, nothing herein shall be
construed to limit City's authority in subsequent actions applicable to the Property, to apply
new rules, regulations and policies to the Project or Project Site which do not conflict with the
Applicable Law or this Agreement, nor to limit City's police power to implement, based upon
appropriate and adequate findings, specific emergency measures necessary to protect against
real and actual threats to the health, safety and welfare of the general public. Nor shall this
Development Agreement prevent the City from denying or conditionally approving any
subsequent development project application on the basis of these existing or new rules,
regulations, and policies.
(c) Notwithstanding anything to the contrary contained in this Agreement, City
shall apply to the Project or Project Site, at any time during the term of this Agreement, the
codes then in effect, as set forth in Title 15 of the Beaumont Municipal Code "Buildings and
Construction".
(d) As provided in California Government Code Section 65869.5, this Agreement
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shall not preclude the application to the Project or Project Site of changes in laws, regulations,
plans or policies, to the extent that such changes are specifically mandated and required by
changes in state or federal laws or regulations ("Changes in the Law"). In the event Changes
in the Law prevent or preclude compliance with one or more of the provisions of this
Agreement, such provisions of this Agreement shall be modified or suspended, or
performance thereof delayed, as may be necessary to comply with the Changes in the Law,
and City and Developer shall take such action as may be required pursuant to this Agreement.
(e) "Sewer flow from the Crossroads II Project shall be limited to the amount
provided in the June 1, 2020 dated Sewer Study prepared by Thienes Engineering, titled
"SEWER AREA STUDY AND PRELIMINARY LIFT STATION DESIGN FOR
BEAUMONT CROSSROADS II LOGISTICS", which study has been accepted by the City.
The maximum sewer flow from the Project shall not be greater than a projected cumulative
139,679 gallons per day (gpd) peak flow at any given time. Any actual or projected
exceedance in the projected maximum flow generated by the Project as determined by City
shall be reassessed for sewer system impacts by City and mitigated by Developer accordingly.
All sewer discharges from the Project shall comply with the applicable provisions of law,
regulations, policies and orders including, but not limited to, those contained in the Beaumont
Municipal Code".
Section 10. Assessments, Fees, Mitigation and Exactions.
The City shall not impose any future assessment, fee, mitigation measure or
exaction on the Property, the Project or the Development Plan or any portion thereof, except
(a) those existing and proposed assessments, fees, mitigation measures and exactions in
existence on the date of this Agreement as they may be amended from time to time, (b)
such other fees, assessments and exactions as may be adopted or imposed by the City in
conformance with the requirements of Article XIII D of the California Constitution, (c)
such other development impact fees or categories of development impact fees which are
adopted on a City or County -wide basis or as required as a condition to obtaining County
funding; and (d) such other development impact fees or categories of development impact
fees which are imposed on other development projects in the City and are adopted and
levied based on a benefit assessment. Fees payable to City shall be at rates applicable on
the date the fee is paid.
Section 11. Revisions
Developer initiated revisions to the entitlements related to the Project or Project Site
shall not require an amendment to this Agreement, provided that City finds and determines
that the proposed change or modification is consistent with the development standards and
guidelines set forth in this Agreement and Applicable Laws.
Section 12. Nexus/Reasonable Relationship Challenges
Developer consents to, and waives any rights it may have now or in the future to
challenge the legal validity of, the conditions or requirements set forth in this Agreement
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including, without limitation, any claim that they constitute an abuse of the police power,
violate substantive due process, deny equal protection of the laws, effect a taking of property
without payment of just compensation, or impose an unlawful tax.
Covenant Not To Sue. The Parties to this Agreement, and each of them, agree that this
Agreement and each term hereof is legal, valid, binding, and enforceable. The Parties to this
Agreement, and each of them, hereby covenant and agree that each of them will not
commence, maintain, or prosecute any claim, demand, cause of action, suit, or other
proceeding against any other Party to this Agreement, in law or in equity, or based on an
allegation, or assert in any such action, that this Agreement or any term hereof is void, invalid,
or unenforceable
Section 13. Covenants Binding
All of the terms, provisions, and obligations contained in this Agreement shall be
binding upon the City and Developer. Notwithstanding anything set forth in this Agreement
to the contrary, during the term hereof, the Project and Project Site shall be subject to this
Agreement, and any development of any portion of the Project and Project Site shall be subject
to and in accordance with the terms of this Agreement.
Section 14. Periodic Review
City shall conduct a review of this Agreement as set forth as follows:
(a) Annual Review. City will review the extent of good faith compliance
by Developer with the terms of this Agreement annually commencing on the first
anniversary of the Effective Date of this Agreement.
(b) Notice. City shall notify Developer in writing of the date of review at
least thirty (30) days prior thereto.
(c) Cooperation. Developer agrees to reasonably cooperate with City's
review process.
(d) Failure to Conduct Review. City's failure to conduct an annual review
of this Agreement shall not constitute a breach of this Agreement.
(e) Certificate of Compliance. If, at the conclusion of a periodic or special
review, Developer is found to be in compliance with this Agreement, City shall issue a
Certificate of Compliance ("Certificate") to Developer stating that after the most recent
periodic or special review, and based upon the information known or made known to City
that: (i) this Agreement remains in effect and (ii) Developer is not in default. City shall
not be bound by a Certificate if a default existed at the time of the periodic or. special
review, but was concealed from or otherwise not known to City, regardless of whether or
not the Certificate is relied upon by assignees or other transferees orDeveloper.
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Section 15. Relationship of Parties
It is specifically understood and agreed by and among the parties hereto that the
Project is a private development and that neither party is acting as the agent of the other
in any respect hereunder. City and Developer also hereby renounce the existence of any
form of joint venture or partnership among them, and agree that nothing contained herein
or in any document executed in connection herewith shall be construed as making City and
Developer joint venturers or partners.
Section 16. No Third Party Beneficiaries
The only parties to this Agreement are Developer and City. There are no third -
party beneficiaries and this Agreement is not intended, and shall not be construed, to
benefit, or be enforceable by any other person whatsoever.
Section 17. Assignment of Rights
Developer shall have the right to assign or delegate all or a portion of its rights, duties
and obligations under this Agreement to subsequent fee owners of the Subject Property, (a)
by giving prior written notice to City, to any entity in which Developer, or its principal
shareholders, retain a majority ownership interest so long as such assignee expressly assumes
the obligations of Developer hereunder, and (b) with the prior written consent of the City,
which shall not be unreasonably withheld, to any other subsequent fee owner of the Project or
portion thereof. Otherwise, Developer may not assign all or any portion of its rights hereunder
nor delegate all or any portion of its duties and obligations hereunder. Notwithstanding the
foregoing provisions of this Section 17, without further approval by the City, Developer may
assign its rights and obligations hereunder, upon the conveyance of the Subject Property
within one hundred twenty (120) days after the Effective Date, to the "Assignee" defined in
the Recitals. Developer shall provide the City a copy of a written assignment of Development
Agreement to such Assignee within ten (10) days after such conveyance of the Subject
Property. When a permitted assignment has taken place pursuant to this Section 17, the
assignor shall have no further duties, obligations or rights thereafter under this Agreement
with respect to the portion of the Subject Property which is being transferred (except in
relation to matters which occurred prior to the date of such transfer as provided in Sections 23
and 24).
Section 18. Singular and Plural; Gender; and Person
Except where the context requires otherwise, the singular of any word shall include the
plural and vice versa; pronouns inferring the masculine gender shall include the feminine
gender and neuter, and vice versa; and a reference to "person" shall include, in addition to a
natural person, any governmental entity and any partnership, corporation, joint venture or any
other form of business entity.
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hereof.
Section 19. Time Is of the Essence
Time is of the essence of this Agreement and of each and every term and condition
Section 20. Waiver
All waivers must be in writing to be effective or binding upon the waiving party, and
no waiver shall be implied from any omission by a party to take any action with respect to an
Event of Default as defined in this Agreement. Failure by a party to insist upon the strict
performance of any of the provisions of this Agreement by the other party shall not constitute
waiver of such party's right to demand strict compliance and specific performance by the other
party in the future. In addition, no express written waiver of any Event of Default shall affect
any otherEvent of Default, or cover any period of time other than as specified in such express
waiver.
Section 21. Amendments
This Agreement may be amended from time to time by mutual consent of the original
parties or their successors in interest, with City's costs payable by amendment applicants, in
accordance with the provisions of Government Code Sections 65867 and 65868 and City's
adopted procedures and requirements for the consideration of amendments to development
agreements. Minor revisions, as described above, shall not require an amendment to this
Agreement.
Section 22. Ambiguities or Uncertainties
The parties hereto have mutually negotiated the terms and conditions of this
Agreement and each party received independent legal advice from its attorneys with respect
to the advisability of executing this Agreement and the meaning of the provisions contained
herein. As such, this Agreement is a product of the joint drafting efforts of both parties and
neither party shall be deemed to have solely or independently prepared or framed this
Agreement. Therefore, any ambiguities or uncertainties are not to be construed against or in
favor of either party.
Section 23. Hold harmless
Developer hereby agrees to, and shall defend, indemnify and hold harmless City, city
council, commissions, boards, subcommittees and City's elected and appointed officials,
commissioners, board members, officers, agents, consultants and employees ("City Parties")
from, any and all claims, costs and liability for any damages, personal injury or death, which
may arise, directly or indirectly, from Developer's or Developer's officers', agents',
consultants', employees', contractors' or subcontractors' negligent, willful or reckless conduct
performed under or with respect to this Agreement. Developer shall have no obligations under
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this Section 23 (except in relation to matters which occurred prior to the date of such transfer)
with respect to any portion or all of the Subject Property after it has transferred and conveyed
its fee interest in such portion or all of the Subject Property to a third party.
Section 24. Indemnification
Developer shall defend, indemnify and hold harmless City, city council, commissions,
boards, subcommittees and City's elected and appointed officials, commissioners, board
members, officers, agents, consultants and employees ("City Parties") from and against any
and all liabilities, demands, claims, actions or proceedings and costs and expenses incidental
thereto (including costs of defense, settlement and reasonable attorneys' fees), which any or
all of them may suffer, incur, be responsible for or pay out as a result of or in connection with
any challenge to the legality, validity or adequacy of any of the following items: (i) this
Agreement and the concurrent and subsequent permits, licenses and entitlements approved by
City; (ii) any environmental determination made by City in connection with the Project,
Project Site or this Agreement; and (iii) any proceedings or other actions undertaken by City
in connection with the adoption or approval of any of the above. In the event of any
administrative, legal, equitable action or other proceeding instituted by any third party
(including without limitation a governmental entity or official) challenging the legality,
validity or adequacy of any of the above items or any portion thereof, the Parties shall mutually
cooperate with each other in defense of said action or proceeding. Notwithstanding the above,
City, at its sole option, may tender the complete defense of any third -party challenge as
described herein. In the event City elects to contract with special counsel to provide for such
a defense, City shall meet and confer with Developer regarding the selection of counsel, and
Developer shall pay all costs related to retention of such counsel by City. Developer shall
have no obligations under this Section 24 (except in relation to matters which occurred prior
to the date of such transfer) with respect to any portion or all of the Subject Property after it
has transferred and conveyed its fee interest in such portion or all of the Subject Property to a
third party.
Section 25. Delays in Performance
In addition to any other provisions of this Agreement with respect to delay, Developer
and City shall be excused for performance of their obligations hereunder during any period of
delay caused by acts of God or civil commotion; major acts of terrorism occurring in the
United States of America, riots, strikes, picketing, or other labor disputes; shortage of
materials or supplies; damage to or prevention of work in process by reason of fire, floods,
earthquake, or other casualties; litigation, restrictions imposed or mandated by governmental
or quasi -governmental entities; and/or enactment of conflicting provisions of the
Constitution, laws of the United States of America, the State of California, or any codes,
statutes, regulations or executive mandates promulgated thereunder. If written notice of
such delay is given to either party within thirty (30) days after the commencement of such
delay, an extension of time for such cause shall be granted in writing for the period of the
delay, or longer as may be mutually agreed upon.
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Section 26. Events of Default
A default under this Agreement shall be deemed to have occurred upon the
happening of one or more of the following events or conditions: (i) a warranty,
representation, or statement made or furnished by Developer expressly in this Agreement
to City or by City to Developer is false or proves to have been false in any material respect
when it was made, or (ii) a finding by City made following a periodic review of the
Agreement under the procedure provided in this Agreement, based on substantial
evidence, that Developer has not complied in good faith with one or more of the terms or
conditions of this Agreement, or (iii) Developer's failure to perform any of its material
obligations under this Agreement (each an "Event of Default"). Upon the occurrence of
an Event of Default by Developer or City, the non -defaulting party shall provide the other
party thirty (30) calendar days written notice specifying the nature of the alleged default
and the manner in which said default may be satisfactorily cured ("Notice of Default").
Subject to any extensions of time by mutual consent of the parties in writing, and subject
to the provisions of Sections 25 and 31 of this Agreement, the failure or unreasonable
delay by either party to perform any material term or provision of this Agreement for a
period of thirty (30) days after the receipt of a written notice of default from the other party
shall constitute a default under this Agreement. If the nature of the alleged default is such
that it cannot reasonably be cured within such thirty (30) calendar day period, the
commencement of the cure within such time period and the diligent prosecution to
completion of the cure shall be deemed a cure within such period. Any Notice of Default
given hereunder shall specify in detail the nature of the alleged Event of Default and the
manner in which such Event of Default may be satisfactorily cured in accordance with the
terms and conditions of this Agreement. During the time periods herein specified for cure
of an Event of Default, the party charged therewith shall not be considered to be in default
for purposes of termination of this Agreement, institution of legal proceedings with
respect thereto, or whether any further building permits shall be issued with respect to the
Project Site.
Section 27. No Ministerial Permits upon DeveloperDefault
No ministerial permits, such as but not limited to building permits and grading
permits, shall be issued nor shall any applications for such ministerial permits be accepted
for any structure or improvement for the Project or on the Project Site during the course
of any default proceedings initiated by City until after it has been determined Developer
is not in default or until such default is cured by Developer or is waived by City.
Section 28. Applicable Law
This Agreement shall be construed and enforced in accordance with the laws of the
State of California.
Section 29. Venue
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In the event that suit is brought by either party to this Agreement, the parties agree that
venue shall be exclusively vested in the State courts of the County of Riverside, California or
where appropriate, in the United States District Court, Southern District of California,
Riverside, California.
Section 30. No Damages Relief
Notwithstanding anything else in this Agreement to the contrary, the parties
acknowledge that neither would have entered into this Agreement had either been exposed to
damage claims for any breach hereof. As such, the parties agree that in no event shall either
party be entitled to recover monetary damages of any kind whatsoever (other than the recovery
of costs and attorney's fees pursuant to the terms of this Agreement or applicable law) against
the other for breach of this Agreement.
Section 31. Legal Action; Attorneys' Fees
Either party may, in addition to any other rights or remedies, institute legal action to
cure, correct or remedy a default, enforce any covenant or agreement herein, enjoin any
threatened or attempted violation hereof, or enforce by specific performance the obligations
and rights of the parties hereto. The prevailing party in any such action shall be entitled to its
reasonable attorneys' fees and costs to be paid by the losing party.
Section 32. Notices
Any notice or communication required hereunder among City and Developer shall be
in writing, and may be given either personally or by registered mail, return -receipt requested.
Notice, by personal delivery, shall be deemed to have been given and received on the actual
receipt by any of the addressees designated below as the party to whom notices are to be sent.
Notice by registered mail shall be deemed to have been received when delivered by the US
Mail service to the recipient. Any party hereto may at any time, upon written notice to the
other party hereto, designate any other address in substitution of the address to which such
notice or communication shall be given. Such notices or communications shall be given to
the parties at their addresses set forth below:
To City:
City of Beaumont
550 E. 6th Street
Beaumont, CA 92223
Attention: Community Development Director
To Developer:
MPLD II Inland Empire, LLC
a Delaware limited liability limited partnership
12
9830 Colonnade Blvd., Suite 600
San Antonio, TX 78230
Attn: Bruce McDonald
Section 33. Consistency of Entitlements withAgreement
The parties hereto acknowledge that it is their intention that all terms, conditions and
obligations of any and all entitlements related to the Project Site and/or Project, or arising from
this Agreement shall be consistent with, or at minimum, shall not conflict with, the terms,
provisions and obligations of this Agreement.
Section 34. Partial Invalidity Due to Governmental Action
In the event state or federal laws or regulations enacted after the Effective Date, or
formal action of any governmental entity other than City, prevent compliance with one or more
provisions of this Agreement, or require changes in plans, maps or permits approved by City,
the parties agree that the provisions of this Agreement shall be modified, extended or
suspended only to the minimum extent necessary to comply with such laws or regulations.
Section 35. Further Actions andInstruments
The parties agree to provide reasonable assistance to the other and cooperate to carry
out the intent and fulfill the provisions of this Agreement. Each of the parties shall promptly
execute and deliver all documents and perform all acts as necessary to carry out the matters
contemplated by this Agreement.
Section 36. Entire Agreement
This Agreement and the exhibits attached hereto contain all the representations and the
entire agreement between the parties with respect to the subject matter hereof. Except as
otherwise specified in this Agreement and the exhibits attached hereto, any prior
correspondence, memoranda, warranties, representations and agreements unless otherwise
provided in this Agreement, are superseded in total by this Agreement and the exhibits
attached hereto.
Section 37. Severability
If any term, provision, covenant or condition of this Agreement is repealed by
referendum or is held by a court of competent jurisdiction or an authorized government
enforcement agency to be invalid, void or unenforceable, the remaining provisions, if any, of
this Agreement shall continue in full force and effect, unless enforcement of this Agreement
as so invalidated would be unreasonable or grossly inequitable under all the circumstances or
would frustrate the purposes of this Agreement.
Section 38. Authority to Execute Agreement
13
The person or persons executing this Agreement on behalf of Developer and City
warrant and represent that they have the authority to execute this Agreement and the authority
to bind Developer and City, as applicable, to the performance of their respective obligations
hereunder.
Section 39. Counterparts
This Agreement may be executed in duplicate counterpart originals, each of which is
deemed to be an original, and all of which when taken together shall constitute one and the
same instrument.
Section 40. Recordation
In order to comply with Section 65868.5 of the Development Agreement Statute, the
parties do hereby direct the City Clerk to cause a copy of this Agreement to be recorded with
the Riverside County Recorder's Office within ten (10) days after the Enacting Ordinance
takes effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the dates written above.
ICITY OF BEAUMONT
(/
APPROVE :
By ' ey Santos, Mayor
ATTEST:
By:Nicoii'lteelwright,
Deputy City Clerk
APPROVED AS TO FORM:
By: John Pinkney, City
Attorney
DEVELOPER
APPROVED:
MPLD II Inland Empire, LLC
a Delaware limited liability limited
partnership
By: MPLD II Inland Empire, LLC
a Delaware limited liability company,
its General Partner
By:
Name:
Title:
Date:
5291.009.2093655.6
14
The person or persons executing this Agreement on behalf of Developer and City
warrant and represent that they have the authority to execute this Agreement and the authority
to bind Developer and City, as applicable, to the performance of their respective obligations
hereunder.
Section 39. Counterparts
This Agreement may be executed in duplicate counterpart originals, each of which is
deemed to be an original, and all of which when taken together shall constitute one and the
same instrument.
Section 40. Recordation
In order to comply with Section 65868.5 of the Development Agreement Statute, the
parties do hereby direct the City Clerk to cause a copy of this Agreement to be recorded with
the Riverside County Recorder's Office within ten (10) days after the Enacting Ordinance
takes effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the dates written above.
CITY OF BEA JMo TT
APPROVED:
By: Rey Santos, Mayor
ATTEST:
By:
Nicole Wheelwright,
Deputy City Clerk
APPROVED AS TO FORM:
By: John Pinkncy, City
Attorney
5291.009.2093655.6
DEVELOPER
APPROVED:
MPLD II Inland Empire, LLC
a Delaware limited liability limited
partnership
By: MPLD ll Inland Empire, LLC
Delaware limited liability company,
Its General Partner
By:
Name:
Title:
Date:
14