HomeMy Public PortalAbout18-1826 - Approving Development Agreement 17-2018 Focal Strategic Investments for Proposed Commercial CannabisORDINANCE NO. 18-1826
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARSON,
CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT NO. 17-2018 BY
AND BETWEEN THE CITY OF CARSON AND FOCAL STRATEGIC
INVESTMENTS, LLC, FOR A PROPOSED COMMERCIAL CANNABIS
OPERATION CENTER LOCATED AT 17505 S. MAIN STREET IN THE CITY OF
CARSON (APN 7339003900)
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WHEREAS, in 1996 California voters approved Proposition 215, the Compassionate Use Act
("CUA"), codified as Section 11362.5 of the Health and Safety Code, to exempt certain patients and their
primary caregivers from criminal liability under state law for the possession and cultivation of cannabis
for medical purposes; and
WHEREAS, in 2003 the California legislature enacted Senate Bill 420, the Medical Marijuana
Program Act ("MMPA"), codified as Sections 11362.7, et seq., of the Health & Safety Code, and as later
amended, to clarify the scope of the Compassionate Use Act of 1996 relating to the possession and
cultivation of cannabis for medical purpose, and to authorize local governing bodies to adopt and
enforce laws consistent with its provisions; and
WHEREAS, in October 2015, the State of California adopted AB 266, AB 243, and 513 643,
collectively referred to as the Medical Marijuana Regulation and Safety Act ("MCRSA" ), which
established a comprehensive regulatory and licensing scheme for commercial medical cannabis
operations; and
WHEREAS, at the November 8, 2016 general election, the Control, Regulate and Tax Adult Use
of Marijuana Act ("AUMA") was approved by California voters, and by the voters of the City of Carson by
a margin of 56% to 44%, as Proposition 64, which established a comprehensive regulatory and licensing
scheme for commercial recreational (adult use) cannabis operations, and which also legalized limited
personal adult -use cannabis use, possession, and cultivation; and
WHEREAS, on June 27, 2017 Governor Brown signed Senate Bill 94, the Medicinal and Adult Use
Cannabis Regulation and Safety Act ("MAUCRSA"), which merged the regulatory regimes of MCRSA and
AUMA; and
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WHEREAS, on November 21, 2017 the Carson City Council adopted Ordinance No. 17-1637 to
add Chapter 15 (Commercial Cannabis Operations Regulatory Program) to Article VI of the Carson
Municipal Code, which authorizes no more than four (4) commercial cannabis centers, which may
include indoor cultivation, mixed -light cultivation, manufacturing, testing and/or (wholesale)
distribution; and
WHEREAS, under MAUCRSA the State of California began issuing licenses in 2018 for both
medical and adult -use cannabis businesses in multiple categories which include cannabis cultivation,
manufacturer, testing, retailer, distributor, and microbusiness; and
WHEREAS, On September 4, 2018, the Carson City Council in compliance with Chapter 15 of
Article VI of the Carson Municipal Code ("CMC') approved the issuance of one (1) commercial cannabis
operation permit (cannabis center) to Focal Strategic Investments, LLC, a California limited liability
company; and
WHEREAS, CMC section 615100 provides that before a commercial cannabis center ("cannabis
center") may operate in the City of Carson, in addition to being issued a commercial cannabis operation
permit (cannabis center), the cannabis center shall apply for and enter into a development agreement
with the City setting forth the terms and conditions under which the cannabis center will operate that
are in addition to the requirements of Chapter 15 of Article VI of the Carson Municipal Code; and
WHEREAS, as permitted by Government Code section 65864, et seq., Carson Municipal Code
("CMC') section 615100 provides for the consideration of commercial cannabis development
agreements by the City Council of the City of Carson ("City Council"); and
WHEREAS, the City of Carson ("City") and Focal Strategic investments, LLC, a California limited
liability company ("Developer'), desire to enter into a statutory development agreement to vest certain
land use entitlements and to encourage Developer to undertake the development of approximately 0.66
net acres of real property with an address of 17505 South Main Street, Assessor Parcel No. 7339-003-
900 ("Site"); and
WHEREAS, Developer proposes to develop the Site with two one-story buildings totaling
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approximately 13,557 sq. ft. to be used for commercial cannabis operations including cultivation,
manufacturing, and storage of residual materials from cannabis cultivation. ("Project"); and
WHEREAS, California Government Code section 65865 authorizes the City to enter into
development agreements with any person having a legal or equitable interest in real property; and
WHEREAS, Developer has proposed to enter into a development agreement concerning the
Project to provide assurances that the Project can proceed without disruption caused by a change in the
City's planning policies and requirements, except as provided in a development agreement, which
assurance will thereby reduce the actual or perceived risk of planning for and proceeding with
development of the Project; and
WHEREAS, the City desires the timely, efficient, orderly and proper development of the Project
in furtherance of the goals of the General Plan; and
WHEREAS, the City Council determines that by entering into the Development Agreement that:
(i) the City will promote orderly growth and quality development of the Site in accordance with the goals
and policies set forth in the General Plan; and (ii) significant benefits will be created for City residents
and the public generally; and
WHEREAS, City staff has prepared, and the Developer has reviewed and has concurred with the
terms and conditions of, the development agreement as set forth in Exhibit "A," and incorporated
herein by this reference with the same force and effect as set forth in full (the "Development
Agreement"); and
WHEREAS, the provisions of the proposed Development Agreement are consistent with the
General Plan and Specific Plan and contain all necessary elements required by Government Code section
65864 etseq. and Section 615100 of the City of Carson Municipal Code; and
WHEREAS, the City and Developer have reached mutual agreement and desire to voluntarily
enter into the Development Agreement to facilitate development of the Project on the Site, subject to
conditions and requirements set forth therein; and
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WHEREAS, Carson Municipal Code section 615100(B)(3) provides that the Planning Commission
shall review proposed cannabis center development agreements and provide a recommendation to the
City Council to approve, approve with modifications or deny the proposed cannabis center development
agreement; and
WHEREAS, the Project has been the subject of an Initial Study and a Mitigated Negative
Declaration ("IS/MND") pursuant to the California Environmental Quality Act ("CEQA"), which
adequately describes the Project and its potential impacts, as well as the impacts potentially resulting
from the approval of the Project for the purposes of CEQA, and an associated Mitigation Monitoring and
Reporting Program ("MMRP") was prepared for the Project; and
WHEREAS, on October 30, 2018 the City of Carson Planning Commission held a duly noticed
public hearing in accordance with the provisions of Government Code Section 65090, et seq.,
Government Code Section 65867, and the City of Carson Municipal Code, to receive and consider all
public comment on the proposed Development Agreement, the IS/MND and the MMRP, and considered
approval of the Development Agreement with the following two amendments: 1) the applicant to
submit a Safety -Policing Plan approved by the L.A. County Sheriff and City of Carson prior to issuance of
building permits, and 2) City shall devote 25% of the revenues generated by this project to drug
rehabilitation and homeless programs, and voted on a 4-5 vote to not recommend approval of the
Development Agreement to the City Council, and to not recommend approval and certification of the
IS/MND and MMRP; and
WHEREAS, the City Council on November 20, 2018 in Resolution No. 18-159 adopted and
certified the IS/MND and the MMRP, and determined that for purposes of CEQA the proposed Project
will not have a significant effect on the environment because the proposed mitigation measures in the
IS/MND and the adoption of the MMRP reduce all potentially significant impact to less than significant,
and all of the proposed mitigation measures in the IS/MND and the MMRP have been incorporated into
the Development Agreement; and
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WHEREAS, California state law under Proposition 64 provides that cities may regulate or enforce
local commercial cannabis regulations through local code, and otherwise commercial cannabis uses are
allowed pursuant to a state commercial cannabis license; and
WHEREAS, Carson Ordinance No. 17-1637 provides for the issuance of local commercial
cannabis permits for businesses located in the commercial and industrial zones of the City; and
WHEREAS, According to the City's General Plan, Land Use Plan, the Site is designated as Light
Industrial, which permits manufacturing, research and development, wholesaling, warehousing and a
limited amount of supportive retail and services; and
WHEREAS, the Developer has made a request for Zone Text Amendment No. 29-2018 ("ZTA") to
expressly allow cannabis uses within industrial zones consistent with the provisions of City of Carson
Ordinance No. 17-1637 (which allows four cannabis centers in the City as long as they are at least 750'
from sensitive uses identified in the Ordinance) upon approval of a development agreement to allow the
specific proposed cannabis uses; and
WHEREAS, with approval of the ZTA, the Project will be expressly consistent with the Carson
Zoning Ordinance and effectuate the establishment of a commercial cannabis use at the proposed site
with approval of the Development Agreement; and
WHEREAS, on November 20, 2018 the City Council held a duly noticed public hearing, as
required by law and in accordance with the provisions of Government Code Section 65090, et seq.,
Government Code Section 65867, and the City of Carson Municipal Code, to receive and consider all
public comment on the proposed Development Agreement, at which time it received input from staff,
the city attorney, and the applicant; heard public testimony; discussed the proposed Development
Agreement, and closed the public hearing; and
WHEREAS, the terms and conditions of the Development Agreement have undergone review by
the City Council at a publicly noticed hearing and have been found to be fair, just, and reasonable, and
consistent with the City's policies, the General Plan and Chapter 15 of Article VI of the Carson Municipal
Code;and
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WHEREAS, the City Council has determined that the provisions of the Development Agreement
are: (i) consistent with the goals, objectives, and policies of the general plan and any applicable specific
plan, (ii) compatible with the uses authorized in and the regulations prescribed for the zoned district in
which the real property is located, (iii) will not be detrimental to the health, safety, environmental
quality, and general welfare of the community, (iv) will not adversely affect the orderly development of
property or the preservation of property values, and (v) provides for a reasonable penalty for any
violation of the development agreement; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARSON, CALIFORNIA DOES HEREBY
RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. Recitals. The recitals set forth above are all true and correct and are
incorporated herein by this reference.
Section 2. Application. An application was duly filed by the applicant with respect to real
property located at 17505 S. Main Street in the City of Carson (APN 7339003900), requesting approval of
Development Agreement No. 17-2018 by and between the City of Carson and Focal Strategic
Investments, LLC
Section 3. Public Hearing. A City Council meeting was duly held on November 20, 2018
meeting date, at 6:00 P.M. at City Hall, Council Chambers, 701 East Carson Street, Carson, California, for
consideration of the aforementioned application at a duly noticed public hearing in accordance with the
provisions of the Government Code and Carson Municipal Code, to receive and consider all public
comment on the Project and the proposed development agreement, and a notice of time, place and
purpose of the aforesaid meeting was duly given.
Section 4. Authority. Based on substantial evidence presented to the City Council during
the public hearing conducted with regard to the Development Agreement, including written staff
reports, verbal testimony, site plans, and the exhibits stated herein, the City Council hereby determines
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that the Development Agreement is authorized by and satisfies the requirements of Government
Section Code 65864 through 65869.5 and Section 615100 of the City of Carson Municipal Code.
Section S. Findings. With respect to the Development Agreement No. 17-2018, the City
Council finds that:
a) The Development Agreement is consistent with the goals, objectives and policies of the
City's General Plan.
b) The Development agreement supports General Plan goal ED -4, "Maintain and increase
net fiscal gains to the City."
i. Evidence: The applicant is responsible to pay the City a proceeds tax and cultivation
tax (as provided for in Carson Municipal Code section 61310) based on the following
rates: Manufacturing: 18% of proceeds; Cultivation: 18% of proceeds plus $25.00
per square foot for space utilized as cultivation area; Distribution: 18% of proceeds;
and, Testing: 18% of proceeds. The revenues generated for the City are estimated
roughly at perhaps $1,000,000 or more annually.
ii. Evidence: payment of development impact fees of approximately $27,114 to the
City to mitigate Project impacts on the City's infrastructure, including but not limited
to, any or all of the following: Traffic and circulation (roads, sidewalks, and signals);
Public Safety (Fire and Sheriff's stations); Parks and open space (park
land/improvements and trails and bikeways); Library; Noise (sound walls); Flood
control and stormwater.
iii. Evidence: agreement to annex Site into one or more community facilities districts
("CFDs") to fund public safety services and infrastructure necessary to serve the
Project, the Site and the public. The CFDs will levy a special tax on the Site property.
c) The Development Agreement supports General Plan goal LU -6.6, "Attract land uses that
generate revenue to the City of Carson, while maintaining a balance of other community
needs such as housing, open space, and public facilities."
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L Evidence: the proposed project would include annual revenue to the City's general
fund as specified in the Development Agreement while maintaining a balance of
other community needs by developing an underutilized site without negatively
impacting housing, open space and public facilities.
d) The Development Agreement supports General Plan goal ED -3.4, "Encourage
development opportunities that increase economic gains to the City."
L Evidence: the proposed project includes the construction of an approximately
13,557 sq. ft. building for commercial cannabis operations that will be a source of
revenue as specified in the Development Agreement.
e) The Development Agreement is compatible with the uses authorized in and the
regulations prescribed for the zoned district in which the real property is located.
i. Evidence: Proposition 64 established a presumption that state licensed commercial
cannabis operations are allowed unless otherwise expressly prohibited. The subject
property is currently zoned Manufacturing, Light (ML -D) which is silent on
commercial cannabis uses. Carson Ordinance No. 17-1637 (Chapter 15 of Article VI
of the Carson Municipal Code) allows for the issuance of commercial cannabis
operation permits in industrial zones.
ii. Evidence: A ZTA is proposed to expressly allow cannabis uses within commercial and
industrial zones consistent with the provisions of the Cannabis Operations
Ordinance No. 17-1637 which allows four cannabis centers in the City as long as
they are at least 750' from sensitive uses identified in the Ordinance. The ZTA will
require approval of a DA to allow the cannabis uses for this site. With approval of
the ZTA, the project would be expressly consistent with the Carson Zoning
Ordinance.
f) The Development Agreement will not be detrimental to the health, safety,
environmental quality, and general welfare of the community.
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i. Evidence: cannabis uses will be subject to the provisions of the Cannabis Operations
Ordinance No. 17-1637.
ii. Evidence: compliance with all mitigation measures from a California Environmental
Quality Act initial study and mitigated negative declaration prepared for the Project.
IJ iii. Evidence: compliance with strict standards contained in both Chapter 15 of Article
VI of the Carson Municipal Code as well as State law, including odor control, security
guards, security cameras, alarm systems, heightened site management
requirements concerning nuisances and waste disposal, no Site access to the
general public, and procedures for the non -diversion of cannabis and cannabis
products.
IV. Evidence: agreement to annex Site into one or more community facilities districts
("CFDs") to fund public safety services and infrastructure necessary to serve the
Project, the Site and the public. The CFDs will levy a special tax on the Site property.
V. Evidence: payment of development impact fees of approximately $27,114 to the
City to mitigate Project impacts on the City's infrastructure, including but not limited
to, any or all of the following: Traffic and circulation (roads, sidewalks, and signals);
Public Safety (Fire and Sheriff's stations); Parks and open space (park
land/improvements and trails and bikeways); Library; Noise (sound walls); Flood
control and stormwater.
vi. Evidence: in 1996 California voters approved Proposition 215, the Compassionate
Use Act ("CUA"), codified as Section 11362.5 of the Health and Safety Code, to
exempt certain patients and their primary caregivers from criminal liability under
state law for the possession and cultivation of cannabis for medical purposes.
Vii. Evidence: in 2016 California voters (and City of Carson voters by a margin of 56% to
44%) approved Proposition 64, the Control, Regulate and Tax Adult Use of
Marijuana Act ("AUMA"), which established a comprehensive regulatory and
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licensing scheme for commercial recreational (adult use) cannabis operations, and
which also legalized limited personal recreational cannabis use, possession, and
cultivation.
g) The Development Agreement will not adversely affect the orderly development of
property or the preservation of property values.
L Evidence: the DA will effectuate the establishment of a regulated commercial
cannabis use at the proposed site, which is presently undeveloped, and will not
negatively affect property values.
h) The Development Agreement provides for a reasonable penalty for any violation of the
Development Agreement.
i. Evidence: the Development Agreement provides for notice, cure and termination
procedures for failure to perform any material duty or obligation.
ii. Evidence: the Development Agreement provides that in the event the Developer
fails to perform any monetary obligation under the Agreement, City may sue for the
payment of such sums to the extent due and payable. The Developer shall pay
interest thereon at the higher of: (i) ten percent (10%) per annum, or (ii) the
maximum rate permitted by law, from and after the due date of the monetary
obligation until payment is actually received by the City.
i) The Development Agreement Provides for public benefits.
L Evidence: the Development Agreement provides for social justice programs such as
equitable business ownership and employment opportunities.
ii. Evidence: the Development Agreement provides local hiring program with respect
to the construction, operation and maintenance of the Project and Site.
Section 6. Approval. Based on the entire record before the City Council and all written and
oral evidence presented to the City Council, the City Council hereby approves the Development
Agreement as set forth in Exhibit "A."
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Section 7. Environmental Review. The City Council, exercising their independent
judgment, finds that the development permitted by the proposed project will not have a significant
effect on the environment, as indicated in the Initial Study and Mitigated Negative Declaration, and
associated Mitigation Monitoring Reporting Program, prepared pursuant to the provisions of the
California Environmental Quality Act (CEClA), and adopted and certified by the City Council on November
20, 2018 by Resolution No. 18-159, and that the Development Agreement adopts all of the
recommended mitigation measures.
Section 8. Severability. If any section, subsection, sentence, clause, phrase, or portion of
this ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council hereby declares that it would have adopted this ordinance and each
section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases, or portions thereof may be declared invalid or
unconstitutional.
Section 9. Effective Date. This ordinance shall be in full force and effect thirty (30) days
after its passage.
Section 10. Certification. The City Clerk shall certify to the adoption of this ordinance, and
shall cause the same to be posted and codified in the manner required by law.
PASSED, APPROVED, and ADOPTED this 4'" day of December, 2018.
APPROVED AS TO FORM:
CITY OF CARSON:
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ATTEST:
Donesia Gause-41dana, FXMC, City Clerk
STATE OF CALIFORNIA j
COUNTY OF LOS ANGELES
CITY OF CARSON )
I, Donesia Gause-Aldana, City Clerk of the City of Carson, California, hereby attest to and certify that the
foregoing ordinance, being Ordinance 18-1826 passed first reading on the 20`h day of November, 2018,
adopted by the Carson City Council at its meeting held on the 4 1 day of December, 2018, by the
following roll call vote:
AYES:
COUNCIL MEMBERS: Robles, Hilton, Santarina, Davis -Holmes
NOES:
COUNCIL MEMBERS: Hicks
ABSTAIN:
COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
Donesia Gause-Aldana, MMC, City Clerk
01007.0005/521120.1 ORDINANCE NO. 18-1826
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
CITY CLERK
City of Carson
70I E. Carson Street
Carson, CA 90745
No Recordine Fee
Exhibit "A"
— Government Code § 27383
DEVELOPMENT AGREEMENT
between
THE CITY OF CARSON
("City,)
and
FOCAL STRATEGIC INVESTMENTS, LLC
("Developer")
01007.Q()05I514750.3 CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 13 of 75
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (together with all exhibits hereto, the
"Agreement"), is made by and between the CITY OF CARSON ("City"), a municipal
corporation, and FOCAL STRATEGIC INVESTMENTS, LLC, a California Limited Liability
Company ("Developer"). The City is entering this Agreement for the limited purposes as
described below. City and Developer are hereinafter collectively referred to as the "parties" and
individually as a'party".
RECITALS:
A. Recitals and Capitalized Terns. The recitals in this Agreement constitute part of
this Agreement and each Party shall be entitled to rely on the truth and accuracy of each recital
as an inducement to enter into this Agreement. The capitalized terms used in these recitals and
throughout this Agreement shall have the meaning assigned to them in Article 1. Any
capitalized terms not defined in Article l shall have the meaning otherwise assigned to them in
this Agreement, the Carson Municipal Code, or as apparent from the context in which they are
used.
B. Legislation_ Authorizing Development Agreements. 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 the Development
Agreement Statute, Sections 65864, el seq., of the Government Code, authorizing City to enter
into an agreement with any person having a legal or equitable interest in real property providing
for the development of such property and establishing certain development rights therein.
C. The Site. Developer has a legal or equitable interest in real property located in the
City of Carson, California, with an address of 17505 South Main Street, Assessor Parcel No.
7339-003-900, legally described in Exhibit "A" and shown on the Site Map attached hereto as
Exhibit 9311,
D. Commercial Cannabis Operation Permit (Cannabis Center). On November 21,
2017 the Carson City Council adopted Ordinance No. 17-1637 which added Chapter 15
(Commercial Cannabis Operations Regulatory Program) to Article VI of the Carson Municipal
Code ("Chapter I5"). Chapter 15 authorizes no more than four (4) commercial cannabis centers,
which may include indoor cultivation, mixed -light cultivation, manufacturing, testing and/or
(wholesale) distribution. Developer submitted to City an application for issuance of a
commercial cannabis operation permit (cannabis center) pursuant to Chapter 15 of Article VI of
the Carson Municipal Code. On September 4, 2018, the Carson City Council in compliance with
Chapter 15 of Article VI of the Carson Municipal Code approved the issuance of one (1)
commercial cannabis operation permit (cannabis center) to Developer.
E. The Proiect. Developer intends to construct two one-story buildings totaling
13,557 square feet on a 0.66 acre lot, which will be used for commercial cannabis operations
including the cultivation of cannabis, manufacturing of cannabis products, and storage of
residual materials from cannabis cultivation (the "Project"). Developer has submitted a
conceptual Site Plan showing the proposed Project and the Scope of Development attached
0100700051514750.3CFN ORDINANCE NO. 1$-1826 (Exhibit "A")
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hereto as Exhibit "C". This Agreement does not guarantee that the City will issue any further
Project entitlements and does not in any way limit the City's discretion in granting or denying
Iand use approvals for the Project or any portion thereof.
F. Re uirement for Development Agreement. Chapter 15 establishes a
comprehensive set of regulations and a regulatory permit process for specific types of
commercial cannabis operations to preserve the public health, safety, and welfare of the residents
and visitors of the City of Carson. Chapter 15 further specifies that it shall be unlawful to own,
establish, operate, use, participate in, or permit the establishment or activity of a commercial
cannabis operation in any manner or capacity, other than as provided. Section 615100 of the
Carson Municipal Code requires that each commercial cannabis operation shall apply for and
enter into a development agreement with the City setting forth the terms and conditions under
which the commercial cannabis operation will operate that are in addition to the requirements of
Chapter 15, including, but not limited to, public outreach and education, community service,
payment of fees and other charges as mutually agreed, and such other terms and conditions that
will protect and promote the public health, safety, and welfare.
G. Public_ Hearings: Findings. In accordance with the requirements of the California
Environmental Quality Act, appropriate studies, analyses, reports and documents were prepared
and considered by the Planning Commission and the City Council. On October 30, 2018, the
Planning Commission held a duly noticed public hearing and did not recommend certification of
a Mitigated Negative Declaration for the Project, and did not recommend that the City Council
approve the Project. On , 2018, the City Council held a duly noticed public
hearing on the Developer's application for this Agreement, and after making appropriate
findings; (i) certified, by Resolution No. , the Mitigated Negative
Declaration for the Project; (ii) found on the basis of substantial evidence based on the entire
administrative record, that this Agreement is consistent with all applicable plans, rules,
regulations and official policies of the City, including the General PIan and Zoning; and (iii)
introduced the Authorizing Ordinance. On , 2018, the City Council adopted
the Authorizing Ordinance.
H. Cannabis Taxes and Alternative Minimum Payment In November 2016, the
City's voters adopted Ordinance No. 16-I599 which imposed a tax on cannabis related business
activities ("Tax Ordinance"). The Tax Ordinance provided that the City Council may impose the
tax at a lower rate and establish exemptions, incentives or other reductions. In addition, the Tax
Ordinance provided that the City Council reserved the authority to amend the Tax Ordinance to
further the purposes and intent of the Tax Ordinance in any manner that does not increase a tax
rate. On September 4, 2018, the City Council adopted Resolution No. 18-130 setting a tax rate
on cannabis related business activities and establishing alternate minimum payments for
commercial cannabis businesses governed by a development agreement ("Tax Resolution"). In
accordance with the Tax Resolution and Pursuant to Article 5 (Public Benefits and Fees),
Developer is required to pay a tax imposed upon Developer's commercial cannabis operations
engaged in manufacturing, distribution or testing at a rate of eighteen percent (18%v) of proceeds,
and engaged in cultivation at a rate of eighteen percent (I8%n) of proceeds as well as a flat rate of
$25 annually per square foot for space utilized as cultivation area.
01007.0005/514750.3 cFN ORDINANCE NO. 18-1826 (Exhibit "A")
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I. Mutual A reement. Based on the foregoing and subject to the terms and
conditions set forth herein, Developer and City desire to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, and having determined that the foregoing recitals are true and correct and should be,
and hereby are, incorporated into this Agreement, the Parties agree as follows:
I. DEFINITIONS
The following words and phrases are used as defined terms throughout this Agreement.
Each defined term shall have the meaning set forth below.
I.1 Anniversary Date; "Anniversary Date" means the date of the
anniversary of each year following the Effective Date of this Agreement.
1.2 Annual Review. "Annual Review" means the annual review of
the Developer's performance of the Agreement in accordance with Article 9 of this
Agreement and Government Code § 65865.1.
1.3 Applicable Law. "Applicable Law" means all statutes, rules,
regulations, guidelines, actions, determinations, permits, orders, or requirements of the
federal, State, County, City and local and regional government authorities and agencies
having applicable jurisdiction, that apply to or govern the Site, the Project or the
performance of the parties' respective obligations hereunder, including any of the
foregoing which concern health, safety, fire, environmental protection, labor relations,
mitigation monitoring plans, building codes, zoning, non-discrimination, prevailing
wages if applicable, and Department of Toxic Substances Control ("DTSC") regulations.
All references herein to Applicable Law include subsequent amendments or
modifications thereof, unless otherwise specifically limited in this Agreement.
1.4 Applications. "Application(s)" means a complete application for
the applicable land use or building approvals (such as a subdivision map, conditional use
permit, building permit, etc.) meeting all of the terms of this Agreement, or where the
terms of this Agreement do not address a particular permit, then meeting the terms of the
current ordinances of the City; provided, however, that any additional or alternate
requirements in those ordinances enacted after the date this Agreement is approved by
the City Council which affect the Project application shall apply only to the extent
permitted by this Agreement.
1.5 Assignment. All forms of use of the verb "assign" and the nouns
"assignment" and "assignee" shall include all contexts of hypothecations, sales,
�{ conveyances, transfers, leases, and assignments.
1.6 Authorizing Ordinance. "Authorizing Ordinance" means
Ordinance No. approving this Agreement, introduced on and
adopted on
010ROD051514750,3 CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 16 of 75
1.7 Building Permit. "Building Permit," with respect to any building
or structure to be constructed on the Site, means a building permit for not less than the
shell and core of such building or structure issued by the City's Division of Building and
Safety.
1.8 Cannabis. "Cannabis" means all parts of the plant Cannabis
sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the
seeds thereof; the resin, whether crude or purified, extracted from any part of the plant;
and every compound, manufacture, salt, derivative, mixture, or preparation of the plant,
its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified,
obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks
(except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the
plant which is incapable of germination.
1.9 Cannabis concentrate. "Cannabis concentrate" means cannabis
that has undergone a process to concentrate one or more active cannabinoids, thereby
increasing the product's potency. Resin from granular trichomes from a cannabis plant is
a concentrate for purposes of this division. A cannabis concentrate is not considered
food, as defined by Section 109935 of the Health and Safety Code (and as amended), or
a drug, as defined by Section 109925 of the Health and Safety Code (and as amended).
1.10 Cannabis products. "Cannabis products" means cannabis that has
undergone a process whereby the plant material has been transformed into a concentrate,
including but not limited to, concentrated cannabis, or an edible or topical product
containing cannabis or concentrated cannabis and other ingredients.
1.11 Carson Municipal Code. "Carson Municipal Code" means the
City's Municipal Code as it existed on the date the City Council approves this
Agreement and as it may be amended from time to time consistent with the terms of this
Agreement.
1.12 CEOA. "CEQA" means the California Environmental Quality
Act, Section 21000 et seq. of the California Public Resources Code and its implementing
regulations and guidelines, including future amendments to or recodification thereof.
1.13 CEOA Completion Date. "CEQA Completion Date" means the
later date of either: (i) 30 days after the Notice of Determination; or (ii) the date of the
final settlement or resolution of any appeal, lawsuit or other action by a third party
challenging the Development Approvals or the CEQA process.
r
1.14 Certificate of Compliance. "Certificate of Compliance" shall
have the meaning set forth in Section 10.2 below.
1.15 Certificate of Occupancy. "Certificate of Occupancy," with
respect to a particular building or other work of improvement, means the final certificate
of occupancy issued by the City with respect to such building or other work of
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improvement. No Certificate of Occupancy shall be issued until all required covenants
are recorded.
1.16 City. "City" means the City of Carson, California.
I.I7 City Council. The "City Council" means the governing body of
the City.
1.18 City's Design Guidelines. "City's Design Guidelines" means
applicable design guidelines stated in the Carson Municipal Code, including but not
limited to those guidelines articulated in the General Plan, or by City's Planning
Commission or Planning Division; Project -specific Design Guidelines shall govern for
purposes of this Agreement over general City Design Guidelines.
1.19 Cit, Manager. "City Manager" means the City Manager of City.
1.20 Claims or Litigation. "Claims or Litigation" means any challenge
by adjacent owners or any other third parties (i) to the legality, validity or adequacy of
the General Plan, Land Use Regulations, this Agreement, Development Approvals or
other actions of the City pertaining to the Project, or (ii) seeking damages against the
City as a consequence of the foregoing actions, for the taking or diminution in value of
their property or for any other reason. "Claims or Litigation" shall also include any
referendum involving the approval of this Agreement, any of the Entitlements or then
Existing Development Approvals.
1.21 Commercial Cannabis Operation. "Commercial cannabis
operation" or "commercial cannabis activity" includes the cultivation, possession,
manufacture, distribution, processing, storing, laboratory testing, packaging, Iabeling,
transportation, delivery (to the extent permitted by State law and the Carson Municipal
Code), or wholesale (not retail sale) of cannabis and cannabis products; except, as
applicable, as preempted by State law.
1.22 Commercial Cannabis O ration Permit. "Commercial cannabis
operation permit" shall mean a City of Carson permit issued pursuant to the procedures
provided for in Chapter 15 of Article VI of the Carson Municipal Code, and which shall
allow the permit holder to operate a specific type of commercial cannabis operation in
the City of Carson subject to the requirements of Chapter 15 of Article VI of the Carson
Municipal Code, State law, and the specific permit.
1.23 Conditions of Approval. "Conditions of Approval" means those
conditions to the Development of the Project imposed via this Agreement and attached
hereto as Exhibit "D".
1.24 Consumer Price Index. "Consumer Price Index" shall mean the
same percentage increase as the Consumer Price Index for Los Angeles -Long Beach -
Anaheim, California area for the preceding twelve month period.
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1.25 Default. "Default" refers to any material default, breach, or
violation of a provision of this Development Agreement as defined in Article l I
(Default, Remedies and Termination) below. "City Default" refers to a Default by the
City, while "Developer Default" refers to a Default by the Developer.
1.26 Development. "Development" means the preparation of designs
for, and improvement of, the Site for purposes of affecting the structures, improvements
and facilities composing the Project including, without limitation: design, grading, the
construction of infrastructure related to the Project, whether located within or outside the
Site; the construction of structures and buildings; the installation of landscaping; and the
operation, use and occupancy of, and the right to maintain, repair, or reconstruct, any
private building, structure, improvement or facility after the construction and completion
thereof, provided that such repair, or reconstruction takes place during the Term of this
Agreement.
1.27 Development
Agreement Statute. "Development Agreement
Statute" means Sections 65864 through 65869.5 of the Government Code as it exists on
the date the City Council approves this Agreement.
1.28 Development Approvals. "Development Approvals" means all
Site-specific (meaning specifically applicable to the Site only and not generally
applicable to some or all other properties within the City) plans, maps, permits, and
entitlements to use of every kind and nature. Development Approvals include, but are
not limited to, site plans, tentative and final subdivision maps, vesting tentative maps,
variances, zoning designations, planned unit developments, conditional use permits,
design overlay review permits, grading, building and other similar permits, the Site-
specific provisions of general plans, environmental assessments, including
environmental impact reports, and any amendments or modifications to those plans,
maps, permits, assessments and entitlements. The term Development Approvals does not
include rules, regulations, policies, and other enactments of general application within
the City.
1.29 Development Impact Fees. "Development Impact Fees" means a
monetary exaction other than a tax or special assessment that is charged by a local
governmental agency to an applicant in connection with approval of a development
project for the purpose of defraying all or a portion of the cost of public facilities related
to the development project, pursuant to Gov. Code § 66000(b).
1.30 Development Plan. "Development Plan" means the Existing
Development Approvals, Future Development Approvals and Existing Land Use
Regulations.
1.31 Director. "Director" means the City's Director of Community
Development or equivalent official.
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1.32 Distribution. "Distribution" means the procurement, sale, and
transport of cannabis and cannabis products between entities licensed for and/or engaged
in commercial cannabis activities.
1.33 Distributor. "Distributor" means a person engaged in distribution.
1.34 Edible. "Edible" means cannabis product that is intended to be
used, in whole or in part, for human consumption, including, but not limited to, chewing
gum, but excluding products set forth in Division 15 (commencing with Section 32501)
of the Food and Agricultural Code. An edible cannabis product is not considered food,
as defined by Section 109935 of the Health and Safety Code, or a drug, as defined by
Section 109925 of the Health and Safety Code.
1.35 Effective Date. "Effective Date" means the latest of the following
dates; (i) this Agreement becomes effective pursuant to the Development Agreement
Statute; (ii) all necessary hearings have been held and the Existing Development
Approvals, have been granted, including the CEQA Completion Date; (iii) this
Agreement has been executed by both parties; and (iv) the periods in which to bring any
Claim or Litigation have expired without any Claim or Litigation having been
commenced or, if any Claim or Litigation has been commenced, the date on which the
validity of this Agreement, the Entitlements and the Existing Development Approvals
have been finally upheld and are free from any further judicial review.
1.36 Eligible Uses / Prohibited Uses. The Site shall be restricted in use
to those uses permitted under the Scope of Development. Eligible Uses are permitted on
the Site as part of the Project and include such uses as commercial cannabis
manufacturing, distribution, testing and cultivation pursuant to Chapter 15 of Article VI
of the Carson Municipal Code. Prohibited Uses are not permitted on the Site or as part
of the Project and include such uses as transitional housing and retail cannabis sales. No
use permit may be issued for a Prohibited Use.
1.37 Entitlements. As used herein, "Entitlements" shall mean receipt
by Developer of all final Project entitlements, including without limitation all necessary
governmental approvals, consents and permits to develop its Project (other than building
permits) .
1.38 Existing Development Approvals. "Existing Development
Approvals" means the Development Approvals which have been previously granted or
are granted concurrent herewith, or will be granted pursuant hereto. The term "Existing
Development Approvals" shall include Future Development Approvals after such Future
Development Approvals are granted.
1.39 Existing Land Use ReUulations. "Existing Land Use Regulations"
or "Existing Regulations" means those Land Use Regulations applicable to the Site in
effect on the date the City Council approves this Agreement.
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1.44 Extraction. "Extraction" means the process of obtaining cannabis
concentrates from cannabis plants, including but not limited to through the use of
solvents like butane, alcohol or carbon dioxide.
1.41 Force_Maieure. "Force Majeure" shall have the meaning set forth
in Section 17.2 below.
1.42 Future Development Approvals. "Future Development
Approvals" means those Development Approvals applicable to the Site approved by the
City after the Effective Date such as, but not limited to, site plans, tentative and final
subdivision maps, vesting tentative maps, variances, zoning designations, planned unit
developments, conditional use permits, design overlay review permits, grading, building
and other similar permits or more detailed planning or engineering Development
Approvals. A list of specifically -anticipated and agreed-upon Future Development
Approvals is attached hereto at Exhibit " F".
1.43 Future Land Use Reg_uiations. "Future Land Use Regulations"
means Land Use Regulations enacted after the Effective Date of this Agreement.
1.44 General Plan. "General Plan" means the City's General PIan as it
exists on the date the City Council approves this Agreement.
1.45 Grading Permit. "Grading Permit" means a permit issued by the
City's Division of Building and Safety which allows the excavation or filling, or any
combination thereof, of earth.
1.46 Land Use Regulations. "Land Use Regulations" means those
ordinances, laws, statutes, rules, regulations, initiatives, policies, requirements,
guidelines, constraints, codes or other actions of the City which affect, govern, or apply
to the Site or the implementation of the Development Plan. Land Use Regulations
include the ordinances and regulations adopted by the City which govern permitted uses
of land, density and intensity of use and the design of buildings, applicable to the Site,
including, but not limited to, the MND and MND Mitigation Measures, Zoning
Ordinances, development moratoria, implementing growth management and phased
development programs, ordinances establishing development exactions, subdivision and
park codes, any other similar or related codes and building and improvements standards,
mitigation measures required in order to lessen or compensate for the adverse impacts of
a project on the environment and other public interests and concerns or similar matters.
The term Land Use Regulations does not include, however, regulations relating to the
conduct of business, professions, and occupations generally; taxes and assessments;
regulations for the control and abatement of nuisances; building codes; encroachment
and other permits and the conveyances of rights and interests which provide for the use
of or entry upon public property; any exercise of the power of eminent domain; or
similar matters.
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1.47 Manufacture. "Manufacture" or "manufacturing" means to
compound, blend, extract, infuse, or otherwise make or prepare a cannabis product;
includes the activities of a manufacturer.
1.48 Manufacturer. "Manufacturer" means a person that conducts the
production, preparation, propagation, or compounding of cannabis or cannabis products
either directly or indirectly or by extraction methods, or independently by means of
chemical synthesis, or by a combination of extraction and chemical synthesis at a fixed
location that packages or repackages cannabis or cannabis products or labels or relabels
its container; includes the activity of manufacturing.
1.49 MND. "MND" means the Final Mitigated Negative Declaration
for the Project which was certified by the City Council, after making appropriate
findings, by Resolution No. adopted on _ 2018 as being in compliance
with CEQA.
1.50 MND Mitigation Measures. "MND Mitigation Measures" means
the mitigation measures imposed upon the Project pursuant to the MND and the
Conditions of Approval thereof. The MND Mitigation Measures are attached hereto as
Exhibit "E".
1.51 Mortgage. "Mortgage" means a mortgage, deed of trust, sale and
leaseback arrangement or other transaction in which all, or any portion of, or any interest
in, the Site is pledged as security.
1.52 Mortgagee. "Mortgagee" refers to the holder of a beneficial
interest under a Mortgage.
1.53 Mortgagee Successor. "Mortgagee Successor" means a
Mortgagee or any third party who acquires fee title or any rights or interest in, or with
respect to, the Site, or any portion thereof, through foreclosure, trustee's sale, deed in
lieu of foreclosure, lease termination, or otherwise from, or through, a Mortgagee. If a
Mortgagee acquires fee title or any right or interest in, or with respect to, the Site, or any
portion thereof, through foreclosure, trustee's sale or by deed in lieu of foreclosure and
such Mortgagee subsequently conveys fee title to such portion of the Site to a third
party, then such third party shall be deemed a Mortgagee Successor.
1.54 Non -Defaulting Party. "Nan -Defaulting Party" shall have the
meaning set forth in Article 11 below.
1.55 Person. "Person" means any individual, firm, co -partnership,
joint venture, association, corporation, limited liability company, estate, trust, business
trust, receiver, syndicate, or any other group or combination acting as a unit.
1.56 Planning Commission. "Planning Commission" means the City's
Planning Commission.
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I.57 Proceeds. "Proceeds" means total revenue and/or money received
through the sale of goods and/or services before any deductions or allowances (e.g., rent,
costs of goods sold, taxes).
1.58 Processing Fees. "Processing Fees" means (i) the City's normal
fees for processing tentative tracts, map review, plan checking, site review, site
approval, administrative review, building permit (plumbing, mechanical, electrical,
building), inspection and similar fees imposed to recover the City's costs associated with
processing, review and inspection of applications, plans, specifications, etc., and (ii) any
fees required pursuant to any Uniform Code. Developer is required to pay the City's
normal and customary Processing Fees, which Fees are not subject to limitation
hereunder except pursuant to the City's general police power authority.
1.59 Project. "Project" means the Development of the Site, pursuant to
this Agreement, the MND and MND Mitigation Measures, and the Existing Land Use
Regulations, as described more specifically in the Scope of Development, attached
hereto as Exhibit "C" and incorporated herein by this reference.
1.60 Reservations of Authority.. "Reservation of Authority" shall have
the meaning set forth in Article 9 below.
1.61 Schedule of Performance. "Schedule of Performance" means the
schedule attached hereto as Exhibit "G".
1.62 Scope of Development. "Scope of Development" means the
description of the Project and the manner in which it will be developed as set forth in
Exhibit "C".
1.63 Site. "Site" means the approximately 0.66 net acres in the City of
Carson, legally described in the Legal Description attached hereto as Exhibit "A" and
shown in the Site Map attached hereto as Exhibit `B".
1.64 State. "State" means the State of California.
1.65 Taxes. "Taxes" means general or special taxes, including but not
limited to ad valorem property taxes, sales taxes, transient occupancy taxes, utility taxes
or business taxes of general applicability citywide which do not burden the Site
disproportionately to similar types of development in the City and which are not
imposed as a condition of approval of a development project. Taxes do not include
Development Impact Fees or Processing Fees.
1.66 Testing!, "Testing" or "testing laboratory" refers to a laboratory,
facility, or entity that offers or performs tests on cannabis or cannabis products; includes
the activity of laboratory testing.
1.67 Term. "Term" means that period of time during which this
Agreement shall be in effect and bind the Parties, as defined in Section 3.1 below.
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12 below. 1.68 Transfer. "Transfer" shall have the meaning set forth in Article
1.69 Zonine Code. "Zoning Code" means Article IX of the Carson
Municipal Code as it existed on the date the City Council approves this Agreement
except (i) as amended by any zone change relating to the Site approved concurrently
with the approval of this Agreement, and (ii) as the same may be further amended from
time to time consistent with this Agreement.
1.70 Other Definitions. Unless otherwise specified in this Agreement,
other definitions relating to cannabis businesses, sales and proceeds shall bear the same
meaning and definition as utilized in Chapter 15 of Article VI of the Carson Municipal
Code. This includes, without limitation, the definitions for "retailer" (or "retail"), "adult
use," "delivery," and "medical."
2. EXHIBITS.
The following are the Exhibits to this Agreement:
2.1
Exhibit A
Legal Description
2.2
Exhibit B
Site Map
2.3
Exhibit C
Scope of Development
2.4
Exhibit D
Reserved
2.5
Exhibit E
MND Mitigation Measures
2.6
Exhibit F
List of Future Development Approvals
2.7
Exhibit G
Schedule of Performance
3. TERM.
3.1 Term. The term of this Development Agreement (the "Term")
shall commence on the Effective Date and shall continue until Twenty (20) years from
the Effective Date hereof.
3.2 Termination for Default. This Agreement may be terminated due
to the occurrence of any Default in accordance with the procedures in Article 11.
3.3 Effective Date. See Section 1.35 above. If such a Claim or
Litigation has been filed, then the Effective Date shall be the date that the Claim or
Litigation has been successfully resolved in the City's favor, and the time for any further
judicial review has run. The City shall give Developer notice as to the date established
as the Effective Date. Until the Effective Date, neither City nor Developer shall have
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any rights or obligations under this Agreement. The Effective Date is not otherwise
tolled for any other Force Majeure as described in Section 17.2.
4. DEVELOPMENT OF THE SITE• OPERATOR PERMITS.
4.1 Right to Develo . During the Term, the Developer shall have a
vested right to develop the Site (subject to Article 9 below) to the full extent permitted
by the MND and MND Mitigation Measures, this Agreement and the Development Plan,
which shall exclusively control the Development of the Site (including the uses of the
Site, the density or intensity of use, architectural review, the maximum height and size
of proposed buildings, the provisions for reservation or dedication of land for public
purposes and the design, improvement and construction standards and specifications
applicable to the Project).
4.2 Developer Responsibility for DIF Amount. Developer shall be
responsible for payment of one-time impact fees of $2/square foot of gross building
area. The Project contemplates two new buildings of up to 13,557 square feet total,
which will be used for commercial cannabis operations including cultivation,
manufacturing, and storage of residual materials from cannabis cultivation on 0.66 acres
of land. Based on the square foot of the Project, Developer will be responsible for one-
time development impact fees in the total amount of $27,114 (the "DIF Amount").
provided that if the Project increases or decreases in size, the DIF Amount will be
adjusted accordingly at the same rate. Developer shall submit payment of the DIF
Amount prior to the issuance of building permits. No building permits shall be issued
prior to the full payment of the DIF Amount. Any amounts deposited by Developer shall
be used by the City to pay for increased accumulative Project impacts on the City's
infrastructure, including but not limited to, any or all of the following: Traffic and
circulation (roads, sidewalks, and signals); Public Safety (Fire and Sheriff's stations);
Parks and open space (park land/improvements and trails and bikeways); Library; Noise
(sound walls); Flood control and stormwater. Interest accruing upon any such deposit
shall inure to and be created for the benefit of the City.
4.3 This_Agreement to Govern ZoninG. The City has determined that
this Agreement is consistent with the General Plan and the Zoning Code. As such, this
Agreement and its Exhibits shall be the primary documents governing the use and
Development of the Site and, in the event of a conflict, shall prevail over any other
Existing Land Use Regulations. Any zoning issues or requirements applicable to the Site
that are not otherwise governed by this Agreement, the MND or the Development Plan
shall be governed by the Existing Land Use Regulations.
4.4 Rip_ht To Future Approvals. Subject to the City's exercise of its
police power authority as specified in Article 9 below, the Developer shall have a vested
right; (i) to receive from the City all Future Development Approvals for the Site that are
consistent with, and implement, the Development Plan and this Agreement; (ii) not to
have such approvals be conditioned or delayed for reasons inconsistent with the
Development Plan and this Agreement; and (iii) to Develop the Site in a manner
consistent with such approvals in accordance with this Agreement. All Future
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Development Approvals for the Site, shall upon approval by the City, be vested in the
same manner as provided in this Agreement for the Existing Land Use Regulations, for
the term of this Agreement.
4.5 Project Descri tion. Developer intends to develop the Site for
permitted commercial cannabis business activities per the Carson Municipal Code,
including the following business activities: 1) cultivation of cannabis; 2) manufacturing
of cannabis products; and, 3) storage of residual materials from cannabis cultivation.
4.6 Obtainine and Maintaining Required„Licenses. Developer shall
require, warrant and ensure that all subtenants, lessees, and owners of any portion of the
Site, as the case may be, at all times comply fully with all existing and future local rules
(pursuant to the Carson Municipal Code) and all existing and future State rules
applicable to commercial cannabis activities on the Site and shall ensure such
compliance by all of Developer's employees, contractors, vendors, and members of the
public invited or allowed access to the Site.
4.6.1 Developer shall require that all subtenants, lessees, and owners of
any portion of the Site, as the case may be, promptly apply for and obtain all State
and City licenses required for activities on the Site.
4.6.2 All commercial cannabis operation permit applicants seeking to
establish a commercial cannabis operation at the Site shall be prescreened by
Developer to ensure compliance with State laws and the Carson Municipal Code,
including Chapter 15 of Article VI of the Carson Municipal Code. No commercial
cannabis operation permit shall be issued by the City and become effective unless
and until: (a) Developer has prescreened the applicant and submitted its approval
in writing to the City, and (b) City has determined that the applicant and
application meets all requirements of the Carson Municipal Code. City's
determination shall be done administratively and the application may be approved
administratively by the Director without further action or review of the City
Council or the Cannabis Permit Committee (as understood by Chapter 15 of
Article VI of the Carson Municipal Code). If the Director is unable to make the
findings and determinations prerequisite to the granting of approval pursuant to
this Section, the application shall be denied.
4.7 Renewal of Permits. The process described in Section 4.6 shall
also govern the annual renewal of commercial cannabis operation permits.
4.8 Revocation and/or Suspension of Commercial Cannabis
Operation Permits. Any commercial cannabis operation permit for any commercial
cannabis activity at the Site may be revoked or suspended by the City Council, pursuant
to written findings (made by adopted resolution after a public hearing held at a public
meeting of the City Council) of any material violation of applicable State Iaw or State
rules, or of any material violation of Chapter 15 of Article VI of the Carson Municipal
Code, or of any material violation of this Agreement (a material violation of this
Agreement expressly includes, but is not limited to, failure to fully comply with any and
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all financial obligations owed to City pursuant to this Agreement), provided that at least
thirty (30) days' written notice has been provided to the permit holder to cure the alleged
violation. Such notice to cure does not preclude assessment by City of applicable
financial penalties or interest. The permit holder shall have the right at the public
hearing to present evidence to demonstrate that it is not in violation and to rebut any
evidence. Conditions (if any) of suspension or revocation are at the discretion of the City
Council and may include, but are not limited to, a prohibition on all owners, operators,
managers and employees of the suspended or revoked commercial cannabis operation
from operating within the City for a period of time set forth in writing and/or a
requirement (when operations may resume, if at all, pursuant to the City Council's
determination) for the holder of the suspended or revoked permit to resubmit an
application for a commercial cannabis operation permit pursuant to the requirements of
Chapter 15 of Article VI of the Carson Municipal Code.
5. PUBLIC BENEFITS AND FEES.
5.1 Taxes. As consideration for City's approval and performance of
its obligations set forth in this Agreement, and consistent with Chapter 13 of Article VI
of the Carson Municipal Code, Developer shall guarantee and pay to City a cannabis tax
due to the City from commercial cannabis operations at the Site. Except as provided
herein, City cannabis tax collection and processing shall follow the procedures and
processes provided for by Chapter 13 of Article VI of the Carson Municipal Code.
5.1.1 Term. "Term" for the cannabis tax on proceeds shall mean fiscal
quarters. "Term" for the cannabis tax imposed on square foot of space utilized as
cultivation area shall be annual.
5.1.2 Proceeds Tax. Cannabis tax owed on proceeds of commercial
cannabis operations at the Site shall be determined using the foIIowing rates:
(a)
Manufacturing: 18%
(b)
Cultivation: 18%
(c)
Distribution: 18%
(d)
Testing: 18%
5.1.3 Square Footage Tax. Cannabis tax on cultivation shall also include
an annual tax of $25.00 per square foot for space utilized as cultivation area.
Taxes imposed on cultivation area shall be adjusted annually on July Ist after the
date of first tax remittance, and then July 1st of each succeeding year based on the
Consumer Price Index; however, no adjustment shall decrease any tax imposed by
this Agreement.
5.1.4 Consistency with State Changes. In the event of a decrease in the
State cannabis tax rate or applicable sales tax rate, the foregoing tax amounts shall
be increased automatically to an amount that would produce the same total tax
01007 00051514750.3 CFN
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obligation that would have been owed without the reductions, as determined by
City. The increased amount shall be paid by Developer to City in accordance with
this Section 5.1.
5.I.5 Obligation of Developer and Tenants, (if any). Payment of taxes
shall be the joint and several obligation of Developer and its tenants (if any).
Developer may establish an escrow account to collect payments from its Tenants
on a periodic basis. Developer shall be responsible for full payment to the City
and any shortfall in the taxes. However, nothing herein shall prevent City from
pursuing any available remedies against the tenants under the Carson Municipal
Code or Tax Resolution.
5.2 Local Hiring. A goal of City with respect to this Project and Site
and other major projects and sites within City is to foster employment opportunities for
Carson residents ("Local Hiring Program"). To that end, Developer covenants that with
respect to the construction, operation and maintenance of the Project and Site, Developer
shall make reasonable efforts to cause all solicitations, for full-time, part-time, new or
replacement employment relating to the construction, operation and maintenance of the
Project and Site, to be advertised in such a manner as to target local City residents, and
Developer shall make other reasonable efforts at local employment outreach as City
shall approve. Developer shall also notify City of jobs available at the Project and Site
such that City may inform City residents of job availability at the Project and Site.
Developer shall include in each lease or sale of any portion of the Site, as the case may
be, this Local Hiring Program as a guideline for any subtenant, lessee, owner of any
portion of the Site, or by any applicant licensed on any portion of the Site. Nothing in
this Section shall require Developer to offer employment to individuals who are not
otherwise qualified for such employment. Without limiting the generality of the
foregoing, the provisions of this Section are not intended, and shall not be construed, to
benefit or be enforceable by any person whatsoever other than City.
5.3 Social Justice Hiring. Developer and commercial cannabis
operations at the Site shall promote equitable business ownership and employment
opportunities at the Site in order to decrease disparities in life outcomes for marginalized
communities and address the disproportionate impact of the war on drugs on those
communities. To these ends, Developer and commercial cannabis operations at the Site
shall engage in proactive efforts to hire partners and employees from marginalized
communities and/or rehabilitated persons; seek to establish commercial cannabis
operations that are diverse and inclusive; and, seek the hiring of otherwise qualified
employees who have been arrested for or convicted of minor cannabis -related crimes
that would not be considered crimes following the passage of the Adult Use of
Marijuana Act (Proposition 64).
5.4 Local Tenancy Apl2lication Program. Developer shall implement
a policy favoring or granting preferential application points, consistent with the Local
Hiring provisions described above, to facilitate the leasing of space on the Site to
residents of the City of Carson, including local tenants, lessees, and subtenants of any
portion of the Site, as the case may be, to target residents of the City of Carson, by
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ensuring that IocaI residents of the City are aware of Project and Site opportunities and
have a fair opportunity to apply and compete for such operation space within the Project
and Site.
5.5 Financing of Public Safety Services and Improvements.
Developer acknowledges that City is considering the formation of one or more
community facilities districts ("CFDs") to fund public safety services and infrastructure
necessary to serve the Project. Developer shall cooperate in the formation of such CFDs
and shall agree to annex into such CFDs when requested by City. The CFDs will levy a
special tax on the Site property. The amount of the special tax shall be increased each
year based on the percentage change in the Consumer Price Index with a maximum
annual increase of five percent (5%) and a minimum annual increase of two percent
(2%) per Fiscal Year. The CFD shall be formed in accordance with the City's Goals and
Policies for Community Facilities District Financing, as may be amended from time to
time. The CFD shall be formed henceforth by the City.
5.6 Audits, Reopener Provision. City shall have the right to conduct
periodic audits of all commercial cannabis operations located at the Site pursuant to the
Carson Municipal Code, at City's discretion and Developer's expense. At the City's
sole discretion, between the end of the third year from the issuance of the first
Certificate of Occupancy to the end of the sixth year from the issuance of the first
Certificate of Occupancy, and thereafter every three years, City shall have the right to
discuss and negotiate with Developer increases in the Annual Minimum Payments and
the Baseline Tax. Factors to be included in such negotiations include but are not limited
to: (i) changes in federal or State cannabis laws; (ii) changes in State cannabis tax rates,
applicable sales tax rates, and/or methodology; and (iii) changes in the uses and
occupancy of the Site. Developer shall both participate in as well as conclude such
negotiations in good faith, and with the intent of providing adjustments in the Annual
Minimum Payments and Taxes, when such adjustments are reasonably warranted so as
to ensure full participation by the City in the economic success of the Site.
6. PROJECT CONSTRUCTION AND SCHEDULING.
6.1 Timing of Development. The Parties acknowledge that the
substantial public benefits to be provided by the Developer to the City pursuant to this
Agreement are in consideration for, and in reliance upon, assurances that the City will
permit Development of the Site in accordance with the terms of this Agreement.
Accordingly, the City shall not attempt to restrict or limit the Development of the Site in
any manner that would conflict with the provisions of this Agreement or the Existing
Development Approvals. The City acknowledges that the Developer cannot at this time
predict the exact timing or rate at which the Site will be Developed. The timing and rate
of Development depend on numerous factors such as market demand, commercial tenant
availability, absorption, completion schedules and other factors, which are not within the
control of the Developer or the City. It is the intent of the Parties to provide in this
Agreement that the Developer shall have the vested right to Develop the Site in such
order and at such rate and at such time as the Developer deems appropriate. Except as
set forth in the following sentence, it is the intent of the Parties that no City moratorium
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or other similar limitation relating to the rate or timing of the Development of the Site or
any portion thereof, whether adopted by initiative, referendum or otherwise, shall apply
to the Site to the extent that such moratorium, referendum or other similar limitation is
in conflict with this Agreement. Notwithstanding the foregoing, the Developer
acknowledges that nothing herein is intended or shall be construed as (i) overriding any
provision of the Existing Land Use Regulations; or (ii) restricting the City from
exercising the powers described in Article 9 of this Agreement to regulate development
of the Site; and, (iii) nothing in this Article 6 is intended to excuse or release the
Developer from any obligation set forth in this Agreement which is required to be
performed on or before a specified calendar date or event.
6.2 Standard of Work. When the Developer is required by this
Agreement and/or the Development PIan to construct any improvements which will be
dedicated to the City or any other public agency, upon completion, and if required by
applicable laws to do so, the Developer shall perform such work in the same manner and
subject to the same construction staridards as would be applicable to the City or such
other public agency should it have undertaken such construction work. Developer is
aware of the requirements of California Labor Code Sections 1720, el seg., and 1770, et
seq., as well as California Code of Regulations, Title 8, Section 1600, el seq.,
("Prevailing Wage Laws"). In any case where the Developer performs the public
improvements work, the Developer shall pay prevailing wages as required by the
Prevailing Wage Laws, the City shall not be liable for any failure in Developer's
payment of prevailing wages or legally -imposed penalties therefore, and Developer shall
defend, indemnify and hold the City, its elected officials, officers, employees and agents
free and harmless from any claim or liability (including reasonable attorneys' fees and
court costs) arising out of any failure or alleged failure to comply with the Prevailing
Wage Laws.
6.3 Prevailing Wages. Developer is aware of the requirements of
California Labor Code Sections 1720, et seq., and 1770, et seg., as well as California
Code of Regulations, Title 8, Section 1600, el seq., ("Prevailing Wage Laws").
Developer shall pay prevailing wages as required by the Prevailing Wage Laws. To the
extent that it is determined that Developer has not paid, or does not pay, prevailing
wages required by Prevailing Wage Laws for any portion of the Project, Developer shall
defend, indemnify and hold the City, its elected officials, officers, employees and agents
free and harmless from any claim or liability (including reasonable attorneys' fees and
court costs) arising out of any failure or alleged failure to comply with the Prevailing
Wage Laws.
6.3.1 Developer acknowledges and agrees that should any third party,
including but not limited to the Director of the Department of Industrial Relations
("DIR"), require Developer or any of its contractors or subcontractors to pay the
general prevailing wage rates of per diem wages and overtime and holiday wages
determined by the Director of the DIR under the Prevailing Wage Laws, then
Developer shall defend, indemnify and hold the City, its elected officials, officers,
employees and agents free and harmless from and against any such
determinations, or actions (whether legal, equitable, or administrative in nature)
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or other proceedings, and shall assume all obligations and Iiabilities for the
payment of such wages and for compliance with the provisions of the Prevailing
Wage Law. The City makes no representation that any construction or Site uses to
be undertaken by Developer are or are not subject to Prevailing Wage Law.
7. PROCESSING OF RE VESTS AND APPLICATIONS FOR FUTURE
DEVELOPMENT APPROVALS; OTHER GOVERNMENT PERNIITS.
7.1 Project Uses. The Project is hereby approved for Eligible Uses
7.2 Future Development Approvals. The parties contemplate that
Developer will be required to obtain certain Future Development Approvals that will be
subject to the City's discretionary review. The provisions of this Agreement shall fully
govern the process and authority for securing Future Development Approvals and
supersede the otherwise applicable provisions of the Zoning Code.
7.2.1 Approval of Future Development Approvals shall be the
responsibility of the Director, based upon an application submitted to the
Director, and may be approved administratively without further action or review
of the Planning Commission or City Council, while otherwise subject to Zoning
Code requirements in existence as of the effective date of this Agreement.
7.2.2 Before action is taken on any Future Development Approval,
including without limitation an application for any Project improvement or for the
issuance of a permit for any sign, building, structure, or alteration of the exterior
of a structure in the Project, plans and drawings of such Project improvement,
sign, building or alteration proposed as part of the Future Development Approval
shall be submitted, in such form and detail as the Director may prescribe, to the
Director for approval.
7.2.3 In order to grant approval, the findings and determinations of the
Director shall include that the Project improvement, as set forth in the proposed
Future Development Approval, is based on the requirements included in this
Agreement, the approved Scope of Development, Conditions of Approval, and
MND.
7.2.4 If the Director is unable to make the findings and determinations
prerequisite to the granting of approval pursuant to this Section, the application
shall be denied.
7.2.5 Approval of a Future Development Approval, and the finding that
such Future Development Approval conforms to the provisions of this
Agreement, is hereby declared to be an administrative function. The Director has
the authority and responsibility to perform this administrative function. The action
thereon by the Director shaII be final and conclusive.
7.3 Other Governmental Permits. The Developer shall apply in a
timely manner for such other permits and approvals as may be required from other
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governmental or quasi -governmental agencies having jurisdiction over the Project as
may be required for the development of, or provision of services to, the Project. The
City shall cooperate with the Developer in its efforts to obtain such permits and
approvals. The City and Developer shall cooperate and use reasonable efforts in
coordinating the implementation of the Development Plan with other public agencies, if
any, having jurisdiction over the Site or the Project. Provided, however, that City makes
no representations or warranties with respect to approvals required by any other
governmental entity.
S. AMENDMENT OF DEVELOPMENT AGREEMENT% OPERATING
MEMORANDA.
8.I Initiation of Amendment. Either party may propose an
amendment to this Agreement.
8.2 Procedure. Except as set forth in Section 8.4 bcloW, the procedure
for proposing and adopting an amendment to this Agreement shall be the same as the
procedure required for entering into this Agreement in the first instance, and meet the
requirements of the Development Agreement Statute.
8.3 Consent. Except as expressly provided in this Agreement, no
amendment to all or any provision of this Agreement shall be effective unless set forth
in writing and signed by duly authorized representatives of each of the Parties hereto and
recorded in the Official Records of Los Angeles County.
8.4 Operating Memoranda.
8.4.1 Flexibility Necessary. The provisions of this Agreement require a
close degree of cooperation between City and Developer. Refinements and further
development and implementation of the Project may demonstrate that
clarifications and minor modifications to refine this Agreement are appropriate.
In addition, the Parties desire to retain a certain degree of flexibility with respect
to those items covered in general terms under this Agreement. Therefore, from
time to time, during the Term, the City Manager and Developer may agree to
procedural or other minor modifications or clarifications to this Agreement,
including without limitation, to implement changes to the Schedule of
Performance. Such changes may be implemented through Operating Memoranda
approved by the City Manager and Developer pursuant to Section 8.4.2, which
after execution shall be attached to and form part of this Agreement and need not
be recorded. Except as provided in this Section 8.4, all other modifications shall
require an amendment to this Agreement.
8.4.2 Operating Memoranda. When and if Developer finds it necessary
or appropriate to make changes to this Agreement pursuant to Section 8.4.1, the
Parties shall effectuate such modifications through operating memoranda
("Operating Memoranda") approved by the Parties in writing that reference this
Section 8.4. Operating Memoranda are not amendments to this Agreement but
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9.
mere ministerial clarifications, therefore public notices and hearings shall not be
required. The City Attorney shall be authorized, upon consultation with
Developer, to determine whether a requested clarification may be effectuated
pursuant to this Section 8.4 or whether the requested clarification is of such
character as to constitute an amendment to the Agreement which requires
compliance with the provisions of Sections 8.2 and 8.5. The authority to enter into
any Operating Memoranda is hereby delegated to City Manager, and City
Manager is hereby authorized to execute any Operating Memoranda hereunder
without further City Council action.
8.5 —Hearing Rights Protected. Notwithstanding the foregoing, City
will process any change to this Agreement consistent with State law and will hold public
hearings thereon if so required by State law and the parties expressly agree nothing
herein is intended to deprive any party or person of due process of law.
8.6 Effect of Amendment to Development Agreement. Except as
expressly set forth in any such amendment, an amendment to this Agreement will not
alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or
obligations of either party under this Agreement.
RESERVATIONS OF AUTHORITY.
9.1 Limitations Reservations and Exceptions. Notwithstanding
anything to the contrary set forth hereinabove, in addition to the MND and MND
Mitigation Measures, this Agreement and the Development Plan, only the following
Land Use Regulations adopted by City hereafter shall apply to and govern the
Development of the Site ("Reservation of Authority"):
9. 1.1 Future Regulations. Future Land Use Regulations which (i) are not
in conflict with the Existing Land Use Regulations; (ii) would be applicable under
the Development Agreement Statute; or (iii) have been consented to in writing by
Developer (even if in conflict with the Existing Land Use Regulations).
9.1.2 State and Federal Laws and Regulations. Where State or federal
laws or regulations, enacted after the date this Agreement is approved by the City
Council, prevent or preclude compliance with one or more provisions of this
Agreement, those provisions shall be modified, through revision or suspension, to
the minimum extent necessary to comply with such State or federal laws or
regulations.
9.1.3 Public Health and Safety/Uniform Codes.
(a) Adoption Automatic Regarding Uniform Codes. This Agreement
shall not prevent the City from adopting future Land Use Regulations or
amending Existing Land Use Regulations that are uniform codes and are
based on recommendations of a multi -state professional organization and
become applicable throughout the City, such as, but not limited to, the
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Uniform Building, Electrical, Plumbing, Mechanical, or Fire Codes
("Uniform Codes").
(b) Adoption Regarding Public Health and Safety/Unifornl Codes.
This Agreement shall not prevent the City from adopting Future Land Use
Regulations respecting public health and safety to be applicable
throughout the City which directly result from findings by the City that
failure to adopt such future Land Use Regulations would result in a
condition injurious or detrimental to the public health and safety.
(c) Adoption Attlonratic Regarding Regional Programs. This
Agreement shall not prevent the City from adopting Future Land Use
Regulations or amending Existing Land Use Regulations that are regional
codes and are based on recommendations of a county or regional
organization and become applicable throughout the region, such as the
Gateway Cities Council of Governments, with the exception of any Future
Land Use Regulations or amendments to Existing Land Use Regulations
that will otherwise prohibit the uses that are allowed by this Agreement.
9.1.4 Amendments to Codes for Local Conditions. Notwithstanding the
foregoing, no construction within the Project shall be subject to any provision in
any of the subsequent Uniform Construction Codes, adopted by the State of
California, but modified by the City to make it more restrictive than the
provisions of previous Uniform Construction Codes of the City, notwithstanding
the fact that the City has the authority to adopt such more restrictive provision
pursuant to the California Building Standards Law, including, but not limited to,
Health and Safety Code § 1894I.5, unless such amendment applies City-wide.
The City shall give Developer prior written notice of the proposed adoption of
such amendment and Developer shall have the right to present its objections to the
amendment.
9.2 Reauiation by Other Public Agencies. It is acknowledged by the
Parties that other public agencies not within the control of the City possess authority to
regulate aspects of the Development of the Site separately from, or jointly with, the City
and this Agreement does not limit the reasonable authority of such other public agencies.
9.3 Fees, Taxes and Assessments. Notwithstanding any other
provision herein to the contrary, the City retains the right: (i) to impose or modify
Processing Fees as provided in Section 1.58, (ii) to impose or modify business licensing
or other fees pertaining to the operation of businesses; (iii) to impose or modify taxes
and assessments which apply City-wide such as utility taxes, sales taxes and transient
r occupancy taxes; (iv) to impose or modify fees and charges for City services such as
electrical utility charges, water rates, and sewer rates; (v) to impose or modify a
community wide or area -wide assessment district; and (vi) to impose or modify any fees,
taxes or assessments similar to the foregoing.
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10. ANNUAL REVIEW.
10.1 Annual Monitoring Review. Following commencement of
construction (as demarcated by the commencement of actual Site grading), the City and
the Developer shall review the performance of this Agreement, and the Development of
the Project, on or about each anniversary of the Effective Date (the "Annual Review").
The cost of the Annual Review shall be borne by Developer and Developer shall pay a
reasonable deposit in an amount requested by City to pay for such review. As part of
each Annual Review, within ten (10) days after each anniversary of this Agreement, the
Developer shall deliver to the City all information reasonably requested by City
(i) regarding the Developer's performance under this Agreement demonstrating that the
Developer has complied in good faith with the terms of this Agreement and (ii) as
required by the Existing Land Use Regulations.
10.1.1 The Director shall prepare and submit to Developer and thereafter
to City Council a written report on the performance of the Project, and identify
any deficiencies and explain why such deficiencies have occurred and the
Developer's plan to correct them. If any deficiencies are noted, a public hearing
shall be held before the City Council on the report to Council. The Developer's
written response shall be included in the Director's report. The report to Council
shall be made within 45 days of the anniversary date.
10.1.2 If the City determines that the Developer has substantially
complied with the terms and conditions of this Agreement, the Annual Review
shall be concluded. If the City finds and determines that the Developer has not
substantially complied with the terms and conditions of this Agreement for the
period under review, the City may declare a default by the Developer in
accordance with Article 11.
10.2 Certificate of Compliance. If, at the conclusion of an Annual
Review, the City finds that the Developer is in substantial compliance with this
Agreement, the City shall, upon request by the Developer, issue a Certificate of
Compliance to the Developer in a form approved by the City.
I0.3 Failure to Conduct Annual Review. The failure of the City to
conduct the Annual Review shall not be a Developer Default unless Developer fails to
cooperate in providing necessary information.
11. DEFAULT, REMEDIES AND TERMINATION.
11.1 Rights of Non -Defaulting Party after Default. The parties
acknowledge that both parties shall have hereunder all legal and equitable remedies as
provided by law following the occurrence of a Default or to enforce any covenant or
agreement herein except as provided in Section 11.2 below. Before this Agreement may
be terminated or action may be taken to obtain judicial relief the party seeking relief
("Non -Defaulting Party") shall comply with the notice and cure provisions of this
Article 11.
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11.2 No Recovery for Monetary Damages. The nature of a
development agreement under the Development Agreement Statute is a very unusual
contract for promoting a Iarge development project facing many complex issues
including geologic, environmental, finance, market, regulatory and other constantly
evolving factors over a long time frame. The high level of uncertainty and risk involved
justify the extraordinary commitments made to the Developer. However, the original
persons representing the parties and approving the transaction are only likely to be
involved with the Project for a limited time in comparison to the over-all life of the
Project. This can lead to confusion over time as to the intent of the parties in dealing
with changed circumstances.
11.2.1 Accordingly, in this Agreement, the rights of enforcement are
limited as follows (i) the remedy of monetary damages is not available to either
party, and (ii) there is no shortcut to a mediation or arbitration procedure where a
nonelected representative can arbitrarily determine land use development issues.
11.2.2 However, the parties shall have the equitable remedies of specific
performance, injunctive and declaratory relief, or a mandate or other action
determining that the City has exceeded its authority, and similar remedies, other
than recovery of monetary damages, to enforce their rights under this Agreement.
The Parties shall have the right to recover their attorney fees and costs pursuant to
Section 16.8 in such action. Moreover, the Developer shall have the right to a
public hearing before the City Council before any default can be established under
this Agreement, as provided in Section 11.7.3.
11.3 Recover ofMnies_Other Than Damages.
11.3.1 Restitution of ImBroper Exactions. In the event any actions,
whether monetary or through the provision of land, good or services, are imposed
on the Development of the Site other than those authorized pursuant to this
Agreement, the Developer shall be entitled to recover from City restitution of all
such improperly assessed exactions, either in kind or the value in -lieu of the
exaction, together with interest thereon at the rate of the maximum rate provided
by law per year from the date such exactions were provided to City to the date of
restitution.
11.3.2 Monetary Default. In the event the Developer fails to perform
any monetary obligation under this Agreement, City may sue for the payment of
such sums to the extent due and payable. The Developer shall pay interest thereon
at the higher of. (i) ten percent (10%) per annum, or (ii) the maximum rate
permitted by law, from and after the due date of the monetary obligation until
payment is actually received by the City.
11.3.3 Liquidated Damages for Unreasonable Delays. The Project's
Schedule of Performance is attached hereto as Exhibit G. It is understood that the
Schedule of Performance is subject to all of the terms and conditions set forth in
the text of the Agreement. The summary of the items of performance in this
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Schedule of Performance is not intended to supersede or modify the more
complete description in the text of this Agreement; in the event of any conflict or
inconsistency between this Schedule of Performance and the text of the
Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or
amended only by written agreement signed by both Developer and City. A failure
by either party to enforce a breach of any particular time provision shall not be
construed as a waiver of any other time provision. The City Manager shall have
authority to approve extensions of time without City Council action not to exceed
a cumulative total of 180 days (subject to any force majeure).
Subject to any force majeure, if the Project is delayed such that Project
completion (as demonstrated by issuance of a certificate of occupancy for all
Project components) has not been accomplished by September 1, 2021, then
Developer shall pay the City $1,000,000.00 in liquidated damages for such delay
or non-performance of the Project. The parties recognize that if Developer fails
timely perform the Project, or fails to cooperatively undertake the immediate cure
of any violation in a timely manner, the City and its residents will suffer damages,
including without limitation the minimum tax revenue guarantees set forth herein,
and that it is and will be impractical and extremely difficult to ascertain and
determine the exact amount of damages that the City and its citizens will suffer.
Therefore, the parties agree that the liquidated damages established herein
represent a reasonable estimate of the amount of such damages for such specific
violations, considering all of the circumstances existing on the date of this
Agreement, including the relationship of the sums to the range of harm to City
that reasonably could be anticipated and the anticipation that proof of actual
damages would be costly or impractical. In placing their initials at the places
provided, each party specifically confirms the accuracy of the statements made
above and the fact that each party has had ample opportunity to consult with legal
counsel and obtain an explanation of these liquidated damage provisions prior to
entering this Agreement.
Developer Initials City Initials
11.4 Compliance with the Claims Act. Compliance with this Article
I 1 shall constitute full compliance with the requirements of the Claims Act, Government
Code § 900 et seq., pursuant to Government Code § 930.2 in any action brought by the
Developer.
11.5 Notice and Opportunity to Cure. A Non -Defaulting Party in its
discretion may elect to declare a Default under this Agreement in accordance with the
procedures hereinafter set forth for any failure or breach of the other party ("Defaulting
Party") to perform any material duty or obligation of the Defaulting Patty under the
terms of this Agreement. However, the Non -Defaulting Party must provide written
notice to the Defaulting Party setting forth the nature of the breach or failure and the
actions, if any, required by the Defaulting Party to cure such breach or failure. The
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Defaulting Party shall be deemed in Default under this Agreement, if the breach or
failure can be cured, but the Defaulting Party has failed to take such actions and cure
such default within thirty (30) days after the date of such notice or ten (10) days for
monetary defaults (or such lesser time as may be specifically provided in this
Agreement). However, if such non -monetary Default cannot be cured within such thirty
(30) day period, and if the Defaulting Party does each of the following:
(a) Notifies the Non -Defaulting Party in writing with a
reasonable explanation as to the reasons the asserted default is not
curable within the thirty (30) day period; and
(b) Notifies the Non -Defaulting Party of the Defaulting Party's
proposed cause of action to cure the default; and
(c) Promptly commences to cure the default within the thirty
(30) day period; and
(d) Makes periodic reports to the Non -Defaulting Party as to
the progress of the program of cure; and
(e) Diligently prosecutes such cure to completion,
then the Defaulting Party shall not be deemed in breach of this Agreement.
11.5.2 Notwithstanding the foregoing, the Defaulting Party shall be
deemed in default under this Agreement if the breach or failure involves the
payment of money but the Defaulting Party has failed to completely cure the
monetary default within ten (10) days (or such lesser time as may be specifically
provided in this Agreement) after the date of such notice.
11.6 Dispute Resolution.
11.6.1 Meet & Confer. Prior to any party issuing a Default Notice
hereunder, the Non -Defaulting Party shall inform the Defaulting Party either
orally or in writing of the Default and request a meeting to meet and confer over
the alleged default and how it might be corrected. The parties through their
designated representatives shall meet within ten (10) days of the request therefore.
The parties shall meet as often as may be necessary to correct the conditions of
default, but after the initial meeting either party may also terminate the meet and
confer process and proceed with the formal Default Notice.
11.6.2 Termination Notice. Upon receiving a Default Notice, should the
Defaulting Party fail to timely cure any default, or fail to diligently pursue such
cure as prescribed above, the Non -defaulting Party may, in its discretion, provide
the Defaulting Party with a written notice of intent to terminate this Agreement
("Termination Notice"). The Termination Notice shall state that the Non -
defaulting Party will elect to terminate this Agreement and state the reasons
therefor (including a copy of any specific charges of default) and a description of
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the evidence upon which the decision to terminate is based. Once the Termination
Notice has been issued, the Non -defaulting Party's election to terminate this
Agreement will only be waived if (i) the Defaulting Party fully and completely
cures all defaults prior to the date of termination, or (ii) pursuant to Section 11.6.3
below.
11.6.3 Hearing pportunity_ Prior to Termination. Prior to any
termination, a termination hearing shall be conducted as provided herein
("Termination Hearing"). The Termination Hearing shall be scheduled as an open
public hearing item at a regularly -scheduled City Council meeting within thirty
(30) days of the Termination Notice, subject to any legal requirements including
but not Iimited to the Ralph M. Brown Act, Government Code Sections 54950-
54963. At said Termination Hearing, the Defaulting Party shall have the right to
present evidence to demonstrate that it is not in default and to rebut any evidence
presented in favor of termination. Based upon substantial evidence presented at
the Termination Hearing, the Council may, by adopted resolution, act as follows:
(a) Decide to terminate this Agreement.
(b) Determine that the alleged Defaulting Party is innocent of a default
and, accordingly, dismiss the Termination Notice and any charges
of default; or
(c) Impose conditions on a finding of default and a time for cure, such
that Defaulting Party's fulfillment of said conditions will waive or
cure any default.
11.6.4 Findings of a default or a condition of default must be based
upon substantial evidence supporting the following three findings: (i) that a
default in fact occurred and has continued to exist without timely cure, (ii) that the
Non -Defaulting Party's performance has not excused the default; and (iii) that
such default has, or will, cause a material breach of this Agreement and/or a
substantial negative impact upon public health, safety and welfare, or the financial
terms established in the Agreement, or such other interests arising from the
Project. Notwithstanding the foregoing, nothing herein shall vest authority in the
City Council to unilaterally change any material provision of the Agreement.
11.6.5 Following the decision of the City Council, any party dissatisfied
with the decision may seek judicial relief consistent with this Article.
11.7 Waiver of Breach. By not challenging any (Existing or Future)
Development Approval within 90 days of the action of City enacting the same,
Developer shall be deemed to have waived any claim that any condition of approval is
improper or that the action, as approved, constitutes a breach of the provisions of this
Agreement. By recordation of a final map on all or any portion of the Site, or obtaining a
building permit, the Developer shall be deemed to have waived any claim that any
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condition of approval is improper or that the action, as approved, constitutes a breach of
the provisions of this Agreement for the subject portion of the Site.
11.8 Venue. In the event of any judicial action, venue shall be in the
Superior Court of Los Angeles County.
12. ASSIGNMENT & BINDING SITE COVENANTS.
12.1 Right to Assign.
12.1.1 General. Neither party shall have the right to assign this
Agreement or any interest or right thereunder without the prior written consent of
the other party; however, notwithstanding the above, the Developer's assignment
of its rights and obligations under this Agreement to another entity which is
owned or controlled (directly or indirectly) by the Developer which assignee shall
own, develop or operate the Site pursuant to the provisions of this Agreement, is
permitted without the City's approval (a "Permitted Transfer"). The term
"assignment" as used in this Agreement shall not include successors -in -interest to
the City that may be created by operation of law.
As used in this Section, the term "transfer" shall include the transfer to any
person or group of persons acting in concert of more than seventy percent (70%)
of the present equity ownership and/or more than fifty percent (50%) of the voting
control of the Developer (jointly and severally referred to herein as the "Trigger
Percentages") or any general partner of the Developer in the aggregate, taking all
transfers into account on a cumulative basis, except transfers of such ownership or
control interest between members of the same immediate family, or transfers to a
trust, testamentary or otherwise, in which the beneficiaries are limited to members
of the transferor's immediate family. A transfer of interests (on a cumulative
basis) in the equity ownership and/or voting control of the Developer in amounts
less than the Trigger Percentages shall not constitute a transfer subject to the
restrictions set forth herein. In the event the Developer or any general partner of
the Developer or its successor is a corporation or trust, such transfer shall refer to
the transfer of the issued and outstanding capital stock of the Developer, or of
beneficial interests of such trust; in the event that Developer or any general
partner of the Developer is a limited or general partnership, such transfer shall
refer to the transfer of more than the Trigger Percentages in the limited or general
partnership interest; in the event that the Developer or any general partner is a
joint venture, such transfer shall refer to the transfer of more than the Trigger
Percentages of such joint venture partner, taking all transfers into account on a
cumulative basis.
5
Except for a Permitted Transfer, the Developer shall not transfer this
Agreement or any of the Developer's rights hereunder, or any interest in the Site
or in the improvements thereon, directly or indirectly, voluntarily or by operation
of law, except as provided below, without the prior written approval of City, and
if so purported to be transferred, the same shall be null and void. In considering
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whether it will grant approval to any transfer by Developer, which transfer
requires City approval, City shall consider factors such as (i) the financial strength
and capability of the proposed transferee to perform the obligations hereunder;
and (ii) the proposed transferee's experience and expertise in the planning,
financing, development, ownership, and operation of similar projects. In no event
shall the City's approval of any transfer be unreasonably withheld or delayed.
In addition, no attempted assignment of any of the Developer's obligations
hereunder which requires the City's approval shall be effective unless and until
the successor party signs and delivers to the City an assumption agreement, in a
form reasonably approved by the City, assuming such obligations. No consent or
approval by City of any transfer requiring the City's approval shall constitute a
further waiver of the provision of this Section 12.1.1 and, furthermore, the City's
consent to a transfer shall not be deemed to release the Developer of liability for
performance under this Agreement unless such release is specific and in writing
executbd by City. In no event shall the City's release of the Developer from
liability under this Agreement upon a transfer be unreasonably withheld or
delayed.
Notwithstanding any provision of this Agreement to the contrary, City
approval of a Transfer or Assignment of any portion of the Site under this
Agreement shall not be required in connection with any of the following (which
shall also for purposes hereof be deemed a Permitted Transfer) provided that such
person or entity transferee or assignee assumes in writing all of the Developer's
obligations under this Agreement and notifies the City in writing of the same:
(a) Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for financing and any resulting foreclosure therefrom.
(b) The granting of easements or dedications to any appropriate
governmental agency or utility or permits to facilitate the
development of the Site.
(c) A sale or transfer resulting from, or in connection with, a
reorganization as contemplated by the provisions of the Internal
Revenue Code of 1986, as amended or otherwise, in which the
ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, firm or corporation which
acquires the control of the voting capital stock of such corporation
or all or substantially all of the assets of such corporation.
(d) A sale or transfer of less than the Trigger Percentages between
members of the same immediate family, or transfers to a trust,
testamentary or otherwise, in which the beneficiaries consist solely
of immediate family members of the trustor or transfers to a
corporation or partnership in which the immediate family members
or shareholders of the transferor who owns at least ten percent
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(10%) of the present equity ownership and/or at least fifty percent
(50%) of the voting control of Developer.
(e) A transfer of common areas to a duly -organized Site Owners'
Association.
(f) Any transfer to an entity or entities in which the Developer retains
a minimum of 51% of the ownership or beneficial interest and
retains management and control of the transferee entity or entities.
(g) Any transfer of interests in Owner for estate planning purposes to
the heirs of Owner, provided that the heirs retain a minimum of
51%n of the ownership or beneficial interest of the transferor entity
and retain management and control of the transferee entity.
12.1.2 Subiect to Terms of Agreement. Following any such Transfer or
Assignment of any of the rights and interests df the Developer under this
Agreement, in accordance with Section 12.1 above, the exercise, use and
enjoyment of such rights and interests shall continue to be subject to the terms of
this Agreement to the same extent as if the assignee or transferee were the
Developer.
12.1.3 Release of Developer. Upon the written consent of the City to the
complete assignment of this Agreement or the transfer of a portion of the Site and
the express written assumption of the assigned obligations of the Developer under
this Agreement by the assignee, the Developer shall be relieved of its legal duty
from the assigned obligations under this Agreement with respect to the portion of
the Site transferred, except to the extent the Developer is in Default under the
terms of this Agreement prior to the transfer.
13. RELEASES AND INDEMNITIES.
13.1 The City's Release As To Actions Prior To Effective Date The
City forever discharges, releases and expressly waives as against the Developer and its
attorneys and employees any and all claims, liens, demands, causes of action, excuses
for nonperformance (including but not limited to claims and/or defenses of
unenforceability, lack of consideration, and/or violation of public policy), losses,
damages, and liabilities, known or unknown, suspected or unsuspected, liquidated or
unliquidated, fixed or contingent, based in contract, tort, or other theories of direct
and/or of agency liability (including but not limited to principles of respondent superior)
that it has now or has had in the past, arising out of or relating to the Site, this
Agreement or the Development Plan.
13.2 The Developer's Release As To Actions Prior To Effective Date.
The Developer forever discharges, releases and expressly waives as against the City and
its respective councils, boards, comnussions, officers, attorneys and employees any and
all claims, liens, demands, causes of action, excuses for nonperformance (including but
not limited to claims and/or defenses of unenforceability, lack of consideration, and/or
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violation of public policy), losses, damages, and liabilities, known or unknown,
suspected or unsuspected, liquidated or unliquidated, fixed or contingent, based in
contract, tort or other theories of direct and/or of agency liability (including but not
limited to principles of respondent superior) that they have now or have had in the past,
arising out of or relating to this Agreement and the Development Plan.
13.3 Litigation Preventing Performance. The Parties acknowledge that:
(i) in the future there may be challenges to legality, validity and adequacy of the General
Plan, the Existing Development Approvals, Development Plan and/or this Agreement;
and (ii) if successful, such challenges could delay or prevent the performance of this
Agreement and the Development of the Site.
In addition to the other provisions of this Agreement, including, without
limitation, the provisions of this Section 13.3, the City shall have no liability under this
Agreement for any failure of the City to perform under this Agreement or the inability of
the Developer to develop thq Site as contemplated by the Development Plan or this
Agreement as the result of a judicial determination that on the date this Agreement is
approved by the City Council, or at any time thereafter, the Existing Land Use
Regulations, the Development Approvals, this Agreement, or portions thereof, are
invalid or inadequate or not in compliance with Iaw.
13.4 Revision of Land Use Restrictions to Cure Litigation. If, for any
reason, the Development Plan, Existing Development Approvals, this Agreement or any
part thereof is hereafter judicially determined, as provided above, to not be in
compliance with the State or Federal Constitution, laws or regulations and, if such
noncompliance can be cured by an appropriate amendment thereof otherwise
conforming to the provisions of this Agreement, then this Agreement shall remain in full
force and effect to the extent permitted by law. The Development Plan, Existing
Development Approvals and this Agreement shall be amended, as necessary, in order to
comply with such judicial decision.
13.5 Participation in Litigation: Indemnity. The Developer shall
defend, indemnify and hold the City, its elected officials, officers, employees and agents
free and harmless from any and all actions, suits, claims, liabilities, losses, damages,
penalties, obligations and expenses (including but not limited to attorneys' fees and
costs) against the City for any such Claims or Litigation (as defined in Section 1.20) and
shall be responsible for any judgment arising therefrom. The City shall provide the
Developer with notice of the pendency of such action and shall request that the
Developer defend such action. The Developer shall utilize the City Attorney's office, or
at written direction of the City will use legal counsel of its choosing (in consultation
with the City as appropriate), and shall reimburse the City for any necessary legal cost
incurred by City. The Developer shall provide a deposit in the amount of 150% of the
City's estimate, in its sole and absolute discretion, of the cost of litigation, including the
cost of any award of attorneys' fees, and shall make additional deposits as requested by
City to keep the deposit at such level. The City may ask for further security in the form
of a deed of trust to land of equivalent value. If the Developer fails to provide or
maintain the deposit, the City may abandon the action and the Developer shall pay all
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costs resulting therefrom and City shall have no liability to the Developer. The
Developer's obligation to pay the cost of the action, including judgment, shall extend
until judgment. After judgment in a trial court, the parties must mutually agree as to
whether any appeal will be taken or defended. The Developer shall have the right, within
the first 30 days of the service of the complaint or petition on the Developer, in its sole
and absolute discretion, to determine that it does not want to defend any litigation
attacking this Agreement or the Development Approvals in which case the City shall
allow the Developer to settle the litigation on whatever terms the Developer determines,
in its sole and absolute discretion, but Developer shall confer with City before acting
and cannot bind City. In that event, the Developer shall be liable for any costs incurred
by the City up to the date of settlement but shall have no further obligation to the City
beyond the payment of those costs. In the event of an appeal, or a settlement offer, the
Parties shall confer in good faith as to how to proceed. Notwithstanding the Developer's
indemnity for claims and litigation, the City retains the right to settle any litigation
brought against it in its sole and absolute discretion and the Developer shall remain
liable except as follows: (i) the settlement would reduce the scope of the Prbject by 10%
or more, and (ii) the Developer opposes the settlement. In such case the City may still
settle the litigation but shall then be responsible for its own litigation expense but shall
bear no other liability to the Developer. Neither City nor Developer shall have any rights
or obligations under this Section 13.5 prior to the Effective Date although Developer
may, in its sole and unfettered discretion, assume the obligations if it chooses to do so.
13.6 Hold Harmless: Developer's Construction and Other Activities.
The Developer shall defend, indemnify and hold the City, its elected officials, officers,
employees and agents free and harmless from any and all claims, costs (including
attorneys' fees) and liability for any damages, personal injury or death, which may arise,
directly or indirectly, from the Developer's or the Developer's agents, contractors,
subcontractors, agents, or employees' operations under this Agreement, whether such
operations be by the Developer or by any of the Developer's agents, contractors or
subcontractors or by any one or more persons directly or indirectly employed by or
acting as agent for the Developer or any of the Developer's agents, contractors or
subcontractors. Nothing herein is intended to make the Developer liable for the acts of
the City's officers, employees, agents, contractors of subcontractors.
13.7 Survival of Indemnity Obligations. All indemnity provisions set
forth in this Agreement shall survive termination of this Agreement for any reason other
than the City's Default.
14. INSURANCE.
14.1 Types of Insurance. In addition to the insurance requirements of
Chapter I5 of Article VI of the Carson Municipal Code, the following insurance
requirements apply:
14. 1.1 Commercial General Liability Insurance. Prior to commencement
and of construction by Developer on the Site, and for the Term of this Agreement,
Developer shall at its sole cost and expense keep or cause to be kept in force
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commercial general liability ("CGL") insurance against liability for bodily injury
or death and for property damage (all as defined by the policy or policies) arising
from the use, occupancy, disuse or condition of the Site, providing limits of at
least Five Million Dollars ($5,000,000) bodily injury and property damage per
occurrence limit, Five Million Dollars ($5,000,000) general aggregate limit, and
Five Million Dollars ($5,000,000) products -completed operations aggregate limit.
14.1.2 Builder's Risk Insurance. Prior to commencement and until
completion of construction by Developer on the Site, Developer shall procure and
shall maintain in force, or caused to be maintained in force, builder's risk
insurance written on a "special causes of Ioss" form, on a replacement cost basis,
including vandalism and malicious mischief, covering improvements in place and
all material and equipment at the job site furnished under contract, but excluding
contractor's, subcontractor's, and construction manager's tools and equipment
and property owned by contractor's or subcontractor's employees.
14.1.3 Workers' Compensation. Developer shall also furnish or cause to
be furnished to City evidence reasonably satisfactory to it that any contractor with
whom Developer has contracted for the performance of any work for which
Developer is responsible hereunder carries workers' compensation insurance as
required by law.
14.1.4 Other Insurance. Developer may procure and maintain any
insurance not required by this Agreement.
14.1.5 Insurance Policy Form Sufficiency,Content and insurer. All
insurance required by express provisions hereof shall be carried only by insurance
companies licensed and admitted to do business in California, rated "A" or better
in the most recent edition of Best Rating Guide or in The Key Rating Guide and
only if they are of a financial category Class VIII or better, unless waived by City.
All such policies shall be nonassessable and shall contain language, to the extent
commercially reasonably obtainable, to the effect that (i) any loss shall be
payable notwithstanding any act of negligence of City or Developer that might
otherwise result in the forfeiture of the insurance, (ii) the insurer waives the right
of subrogation against City and against City's agents and representatives; (iii) the
policies are primary and noncontributing with any insurance that may be carried
by City; and (iv) the policies cannot be canceled or materially changed except
after thirty (30) days' written notice (ten (10) days in the event of cancellation for
non-payment of premium) by the insurer to City or City's designated
representative. Developer shall furnish City with copies of all such policies
promptly on receipt of them or with certificates evidencing the insurance. City
shall be named as an additional insured on the commercial general liability
insurance and on the builder's risk insurance (as its interest may appear) policies
required to be procured by the terms of this Agreement. In the event the City's
Risk Manager determines reasonably that the use, activities or condition of the
Site, improvements or adjoining areas or ways, affected by such use of the Site
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under this Agreement creates a materially increased or decreased risk of loss to
the City, Developer agrees that the minimum limits of the CGL and builder's risk
insurance policies required by this Section 14.1 may be changed accordingly upon
receipt of written notice from the City's Risk Manager; provided that such
increased limits are available at commercially reasonable premiums. Developer
shall have the right to appeal such determination of increased limits to the City
Council within thirty (30) days of receipt of notice from the City's Risk Manager.
14.2 Failure to Maintain Insurance and Proof of Compliance.
Developer shall deliver to City, in the manner required for notices, copies of certificates
of all insurance policies required hereunder together with evidence satisfactory to City of
payment required for procurement and maintenance of each policy within the following
time limits:
(a) For insurance required above, within thirty (30 days) after the
Effective Date.
(b) For any renewal or replacement of a policy already in existence, at
least ten (10) days before the expiration or termination of the existing policy.
If Developer fails or refuses to procure or maintain insurance as required hereby
or fails or refuses to furnish City with required proof that that insurance has been
procured and is in force and paid for, such failure or refusal shall be a default hereunder.
15. EFFECT OF AGREEMENT ON TITLE.
15.1 Covenant Run with the Land. Subject to the provisions of Articles
12 and 16 and pursuant to the Development Agreement Statute:
(a) All of the provisions, agreements, rights, powers, standards,
terms, covenants and obligations contained in this Agreement shall be binding
upon the parties and their respective heirs, successors (by merger, consolidation,
or otherwise) and assigns, devisees, administrators, representatives, lessees, and
all other persons acquiring any rights or interests in the Site, or any portion
thereof, whether by operation of laws or in any manner whatsoever and shall inure
to the benefit of the parties and their respective heirs, successors (by merger,
consolidation or otherwise) and assigns;
(b) All of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to
applicable law; and
(c) Each covenant to do or refrain from doing some act on the Site
hereunder (i) is for the benefit of and is a burden upon every portion of the Site,
(ii) runs with such lands, and (iii) is binding upon each party and each successive
owner during its ownership of such properties or any portion thereof, and each
person having any interest therein derived in any manner through any owner of
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such lands, or any portion thereof, and each other person succeeding to an interest
in such lands.
16. MORTGAGEE PROTECTION.
16.1 Definitions. As used in this Section, the term "mortgage" shall
include any mortgage, whether a leasehold mortgage or otherwise, deed of trust, or other
security interest, or sale and lease -back, or any other form of conveyance for financing.
The term "holder" shall include the holder of any such mortgage, deed of trust, or other
security interest, or the lessor under a lease -back, or the grantee under any other
conveyance for financing.
16.2 No Encumbrances Except Mortgages „to Finance the Project.
Notwithstanding the restrictions on transfer in Article 12, mortgages required for any
reasonable method of financing of the construction of the improvements are permitted
but only for the following: (i) for the purpose of securing loans of funds used or to be
used for financing the acquisition of a separate Iot(s) or parcel(s), (ii) for the
construction of improvements thereon, in payment of interest and other financing costs,
and (iii) for any other expenditures necessary and appropriate to develop, own or operate
the Project under this Agreement, or for restructuring or refinancing any for same. No
map permitted herein, even if for financing purposes, shall permit financing for other
than purposes of developing, owning or operating the Project solely. The Developer (or
any entity permitted to acquire title under this Agreement) may notify the City in
advance of any future mortgage or any extensions or modifications thereof. Any lender
which has so notified the City shall not be bound by any amendment, implementation, or
modification to this Agreement without such lender giving its prior written consent
thereto. In any event, the Developer shall promptly notify the City of any mortgage,
encumbrance, or lien that has been created or attached thereto prior to completion of
construction, whether by voluntary act of the Developer or otherwise.
I6.3 Developer's_ Breach Not Defeat Mortgage hien. The Developer's
breach of any of the covenants or restrictions contained in this Agreement shall not
defeat or render void the lien of any mortgage made in good faith and for value but,
unless otherwise provided herein, the terms, conditions, covenants, restrictions,
easements, and reservations of this Agreement shall be binding and effective against the
holder of any such mortgage whose interest is acquired by foreclosure, trustee's sale or
otherwise.
16.4 Holder Not Obligated to Construct or Complete Improvements.
The holder of any mortgage shall in no way be obligated by the provisions of this
Agreement to construct or complete the improvements or to guarantee such construction
or completion. Nothing in this Agreement shall be deemed or construed to permit or
authorize any such holder to devote the Project or any portion thereof to any uses, or to
construct any improvements thereon, other than those uses or improvements provided
for or authorized by this Agreement.
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16.5 Notice of Default to Mortgagee. Whenever the City shall deliver
any notice or demand to the Developer with respect to any breach or default by the
Developer hereunder, the City shall at the same time deliver a copy of such notice or
demand to each holder of record of any mortgage who has previously made a written
request to the City therefor, or to the representative of such lender as may be identified
in such a written request by the lender. No notice of default shall be effective as to the
holder unless such notice is given.
16.6 Might to Cure. Each holder (insofar as the rights of City are
concerned) shall have the right, at its option, within ninety (90) days after the receipt of
the notice, and one hundred twenty (120) days after the Developer's cure rights have
expired, whichever is later, to:
(a) Obtain possession, if necessary, and to continence and diligently
pursue the cure until the same is completed, and
(b) Add the cost of said cure to the security interest debt and the lien
or obligation on its security interest;
provided that, in the case of a default which cannot with diligence be remedied or cured
within such cure periods referenced above in Section 115, such holder shall have
additional time as reasonably necessary to remedy or cure such default.
In the event there is more than one such holder, the right to cure or remedy a breach or
default of the Developer under this Section shall be exercised by the holder first in
priority or as the holders may otherwise agree among themselves, but there shall be only
one exercise of such right to cure and remedy a breach or default of the Developer under
this Section.
No holder shall undertake or continue the construction or completion of the
improvements on the Site (beyond the extent necessary to preserve or protect the
improvements or construction already made) without first having expressly assumed the
Developer's obligations to the City by written agreement satisfactory to City with respect
to the Project or any portion thereof in which the holder has an interest. The holder must
agree to complete, in the manner required by this Agreement, the improvements to which
the lien or title of such holder relates, and submit evidence satisfactory to the City that it
has the qualifications and financial responsibility necessary to perform such obligations.
16.7 Cit 's Rights upon Failure of Holder to Complete Im rovements.
In any case where one hundred eighty (180) days after default by the Developer in
completion of construction of improvements on the Site under this Agreement, the
holder of any mortgage creating a lien or encumbrance upon the Project or portion
thereof has not exercised the option to construct afforded in this Section or, if it has
exercised such option and has not proceeded diligently with construction, the City may,
after ninety (90) days' notice to such holder and if such holder has not exercised such
option to construct within said ninety (90) day period, purchase the mortgage, upon
payment to the holder of an amount equal to the sum of the following:
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(a) The unpaid mortgage, debt plus any accrued and unpaid interest
(less all appropriate credits, including those resulting from collection and
application of rentals and other income received during foreclosure proceedings,
if any);
(b) All expenses, incurred by the holder with respect to foreclosure, if
any;
(c) The net expenses (exclusive of general overhead), incurred by the
holder as a direct result of the ownership or management of the applicable portion
of the Project, such as insurance premiums or real estate taxes, if any;
(d) The costs of any improvements made by such holder, if any; and
(e) An amount equivalent to the interest that would have accrued on
the aggregate of such amounts had all such amounts become part of the mortgage
debt and such debt had continued in existence to the date of payment by the City.
If the City has not purchased the mortgage within ninety (90) days of the expiration of the
ninety (90) days referred to above, then the right of the City to purchase shall expire.
In the event that the holder does not exercise its option to construct afforded in this
Section, and if the City elects not to purchase the mortgage of holder, upon written
request by the holder to the City, the City shall use reasonable efforts to assist the holder
in selling the holder's interest to a qualified and responsible party or parties (as
reasonably determined by City), who shall assume the obligations of making or
completing the improvements required to be constructed by the Developer, or such other
improvements in their stead as shall be satisfactory to the City. The proceeds of such a
sale shall be applied first to the holder of those items specified in subparagraphs (a)
through (e) hereinabove and any balance remaining thereafter shall be applied as follows:
(1) First, to reimburse the City for all costs and expenses actually and
reasonably incurred by the City, including, but not limited to, payroll expenses,
management expenses, legal expenses, and others;
(2) Second, to reimburse the City for all payments made by City to
discharge any other encumbrances or liens on the applicable portion of the Project or to
discharge or prevent from attaching or being made any subsequent encumbrances or liens
due to obligations, defaults, or acts of the Developer, its successors or transferees;
(3) Third, to reimburse the City for all costs and expenses actually and
reasonably incurred by the City, in connection with its efforts assisting the holder in
selling the holder's interest in accordance with this Section; and
(4) Fourth, any balance remaining thereafter shall be paid to the
Developer.
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16.8 Right of City to Cure Mortgage Default. In the event of a default
or breach by the Developer (or entity permitted to acquire title under this Section) prior
to completion of the Project or the applicable portion thereof, and the holder of any such
mortgage has not exercised its option to complete the development, the City may cure
the default prior to completion of any foreclosure. In such event, the City shall be
entitled to reimbursement from the Developer or other entity of all costs and expenses
incurred by the City in curing the default, to the extent permitted by law, as if such
holder initiated such claim for reimbursement, including legal costs and attorneys' fees
reasonably incurred, which right of reimbursement shall be secured by a lien upon the
applicable portion of the Project to the extent of such costs and disbursements. Any such
lien shall be subject to:
(a) Any Mortgage; and
(b) Any rights or interests provided in this Agreement for the
protection of the holders of such Mortgages;
provided that nothing herein shall be deemed to impose upon the City any affirmative
obligations (by the payment of money, construction or otherwise) with respect to the
Project in the event of its enforcement of its Iien.
16.9 Right of the City to Satisfy Other Liens on the Site After
Conveyance of Title. After the conveyance of title and prior to completion of
construction and development, and after the Developer has had a reasonable time to
challenge, cure, or satisfy any liens or encumbrances on the Project, the City shall have
the right to satisfy any such liens or encumbrances; provided, however, that nothing in
this Agreement shall require the Developer to pay or make provision for the payment of
any tax, assessment, lien or charge so long as the Developer in good faith shall contest
the validity or amount thereof, and so long as such delay in payment shall not subject the
Project or any portion thereof to forfeiture or sale.
17. MISCELLANEOUS.
17.1 Certificates of ComQliance. Either party (or a Mortgagee under
Article 16) may at any time deliver written notice to the other party requesting an
Estoppel Certificate stating:
(a) The Agreement is in full force and effect and is a binding obligation of the
parties;
(b) The Agreement has not been amended or modified either orally or in
writing or, if so amended, identifying the amendments; and
(c) There are no existing defaults under the Agreement to the actual
knowledge of the party signing the Estoppel Certificate.
A party receiving a request for an Estoppel Certificate shall provide a signed certificate to
the requesting party within thirty (30) days after receipt of the request. The Director may
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sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on
by assignees and Mortgagees.
17.2 Force Majeure. The time within which the Developer or the City
shall be required to perform any act under this Agreement shall be extended by a period
of time equal to the number of days during which performance of such act is delayed
due to war, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties,
natural disasters, acts of God, acts of the public enemy, epidemics, quarantine
restrictions, freight embargoes, governmental restrictions on priority, initiative or
referendum, moratoria, processing with governmental agencies other than the City,
unusually severe weather, third party litigation as described in Section 13.3 above, or
any other similar causes beyond the control or without the fault of the party claiming an
extension of time to perform. An extension of time for any such cause shall be for the
period of the enforced delay and shall commence to run from the time of the
commencement of the cause, if written notice by the party claiming such extension is
§ent to the other party within thirty (30) days of knowledge of the commencement of the
cause. Any act or failure to act on the part of a party shall not excuse performance by
that party.
17.3 Inte�retation.
17.3.1 Construction of Development Agreement. The language of this
Agreement shall be construed as a whole and given its fair meaning. The captions
of the sections and subsections are for convenience only and shall not influence
construction. This Agreement shall be governed by the laws of the State of
California. This Agreement shall not be deemed to constitute the surrender or
abrogation of the City's governmental powers over the Site.
17.3.2 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and this Agreement supersedes all previous negotiations, discussions,
and agreements between the parties, and no parol evidence of any prior or other
agreement shall be permitted to contradict or vary the terms of this Agreement.
17.3.3 Recitals. The recitals in this Agreement constitute part of this
Agreement and each party shall be entitled to rely on the truth and accuracy of
each recital as an inducement to enter into this Agreement.
17.3.4 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent
performance by the party benefitted thereby of the covenants to be performed
hereunder by such benefitted party.
17.3.5 Severability. If any provision of this Agreement is adjudged
invalid, void or unenforceable, that provision shall not affect, impair, or invalidate
any other provision, unless such judgment affects a material part of this
i�
0 1007.00051514750,3CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 51 of 75
Agreement in which case the parties shall comply with the procedures set forth in
Section 13.4 above.
17.4 Joint and Several Obligations. All obligations and liabilities of the
Developer hereunder shall be joint and several among the obligees.
17.5 No Third Party Beneficiaries. There are no other third party
beneficiaries and this Agreement is not intended, and shall not be construed, to benefit
or be enforceable by any other person, excepting the parties hereto.
17.6 Notice.
17.6.1 To Developer. Any notice required or permitted to be given by
the City to the Developer under this Development Agreement shall be in writing
and delivered personally to the Developer or mailed, with postage fully prepaid,
registered or certified mail, return receipt requested, addressed as follows:
Focal Strategic investments, LLC
1121 S. Wilton PI.
Los Angeles, CA, 90019
Attn: Eric Son
or such other address as the Developer may designate in writing to the City.
17.6.2 To the City. Any notice required or permitted to be given by the
Developer to the City under this Development Agreement shall be in writing and
delivered personally to the City Cleric or mailed with postage fully prepaid,
registered or certified mail, return receipt requested, addressed as follows:
City of Carson
701 E. Carson Street
Carson, California 90745
Attention: Community Development Director
With a copy to:
Sunny Soltani, City Attorney
Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 1700
Irvine, California 92612
or such other address as the City may designate in writing to the Developer.
Notices provided pursuant to this Section shall be deemed received at the date of
delivery as shown on the affidavit of personal service or the Postal Service
receipt.
0100TWO515147503 CEN
39
ORDINANCE NO. 18-1826 (Exhibit "A")
Page 52 of 75
17.7 Relationship of Parties. It is specifically understood and
acknowledged by the parties that the Project is a private development, that neither party
is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants, and conditions
contained in this Agreement. The only relationship between the City and the Developer
is that of a government entity regulating the development of private property and the
owner of such private property.
17.8 Attorney's ,Fees. If either party to this Agreement is required to
initiate or defend litigation against the other party, the prevailing party in such action or
proceeding, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include
attorney's fees on any appeal, and, in addition, a party entitled to attorney's fees shall be
entitled to all other reasonable costs for investigating such action, taking depositions and
discovery and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on comment:ement of such
action and shall be enforceable whether or not such action is prosecuted to a final
judgment.
17.9 Further Actions and Instruments. Each of the parties shall
cooperate with and provide reasonable assistance to the other to the extent necessary to
implement this Agreement. Upon the request of either party at any time, the other party
shall promptly execute, with acknowledgment or affidavit if reasonably required, and
file or record such required instruments and writings and take any actions as may be
reasonably necessary to implement this Agreement or to evidence or consummate the
transactions contemplated by this Agreement.
17.10 Time of Essence. Time is of the essence in: (i) the performance of
the provisions of this Agreement as to which time is an element; and (ii) the resolution
of any dispute which may arise concerning the obligations of the Developer and the City
as set forth in this Agreement.
17.11 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
such party's right to insist and demand strict compliance by the other party with the
terms of this Agreement thereafter.
17.12 Execution.
17.12.1 Counterparts. This Agreement may be executed by the parties in
counterparts which counterparts shall be construed together and have the same
effect as if all of the parties had executed the same instrument.
17.12.2 Recording. The City Clerk shall cause a copy of this Agreement
to be executed by the City and recorded in the Official Records of Los Angeles
County no later than ten (10) days after the date that the City Council approves
40
011107.OM51514750,3CFN ORDINANCE N0. 18-1826 (Exhibit "A")
Page 53 of 75
this Agreement (Gov't. Code § 65868.5). The recordation of this Agreement is
deemed a ministerial act and the failure of the City to record the Agreement as
required by this Section and the Development Agreement Statute does not make
this Agreement void or ineffective.
' 17.12.3 Authority to Execute. The persons executing this Agreement on
behalf of the parties hereto warrant that (i) such party is duly organized and
existing, (ii) they are duly authorized to sign and deliver this Agreement on behalf
of the party he or she represents, (iii) by so executing this Agreement, such party
is formally bound to the provisions of this Agreement, (iv) the entering into of
this Agreement does not violate any provision of any other Agreement to which
the party is bound and (v) there is no litigation or legal proceeding which would
prevent the parties from entering into this Agreement.
1
(SIGNATURES ON NEXT PAGE.)
41
ORDINANCE NO. 18-1826 (Exhibit "A")
UIW7.0005r314750.3 CRN Page 54 of 75
1
IN WITNESS WHEREOF, the City and the Developer have executed this Agreement on
ATTEST:
Donesia Gause-Aldana, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Sunny K. Soltani, City Attorney
CITY OF CARSON
5v:
Albert Robles, Mayor
FOCAL STRATEGIC INVESTMENTS, LLC
By:
Managing Member/Owner
an
Managing Member/Owner
42
ORDINANCE NO. 18-1826 (Exhibit "A")
OIUO7. 095147503 U -N Page 55 of 75
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
On , before me , personally
appeared , 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/she executed the same in his/her authorized capacity, and that by his/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
Notary Signature
(SEAL)
STATE OF CALIFORNIA }
) ss
COUNTY OF LOS ANGELES )
On , before me , personally
appeared , 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/she executed the same in his/her authorized capacity, and that by his/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
Notary Signature
n1007na0si;147503Crti ORDINANCE NO. 18-1826 (Exhibit "A")
Page 56 of 75
EXHIBIT A
LEGAL DESCRIPTION
[ATTACHED]
01007.00051514750.3 Citi ORDINANCE NO. 18-1826 (Exhibit "A")
Page 57 of 75
LEGAL DESCRIPTION OF THE PROPERTY
17505 S Main
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARSON IN THE COUNTY Of LOS
ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF THE NORTH 3 ACRES Of THE SOUTH 12 ACRES (AREAS COMPUTED TO THE CENTER
OF ADJOINING STREET), OF LOT 12 Of THE SOUTH GARDENA TRACT, IN THE CITY OF CARSON, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 4 PAGE 39 OF
MISCELLANEOUS RECORDS IN THE OFFICE OF THE COUNTY RECORDER Of SAID COUNTY, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF SAID NORTH 3 ACRES WITH THE WEST
LINE OF MAIN STREET 60 FEET WIDE, AS SHOWN ON SAID MAP; THENCE ALONG SAID NORTH LINE,
SOUTH 89=07'44" WEST 42830 FEET; THENCE PARALLEL WITH SAID WEST LINE, SOUTH 0`52'35" EAST
69.75 FEET; THENCE NORTH 89'07'44" EAST 428.30 FEET TO SAID WEST LINE; THENCE ALONG SAID MAIN
STREET, NORTH 0=52'35" WEST 69.75 FELT TO THE POINT OF BEGINNING.
EXCEPT THE EASTERLY 20 FEET THEREOF DEEDED TO THE STATE OF CALIFORNIA BY DEED
RECORDED MAY 20, 1975 AS INSTRUMENT NO, 448 OF OFFICIAL RECORDS.
ALSO EXCEPT ALL CRUDE OIL, PETROLEUM, GAS, BREA, ASPHALTUM AND ALL OTHER KINDRED
SUBSTANCES AND OTHER MINERALS UNDER AND IN SAID LAND, BUT WITH NO RIGHT TO ENTER UPON
THE SURFACE OF THE TOP 500 FEET OF THE SUBSTANCES OF SAID LAND, AS RESERVED BY HENRY
MILLER AND LILLIAN MILLER, AS TRUSTEES FOR HENRY MILLER AND LILLIAN MILLER, THE
BENEFICIARIES UNDER THAT TRUST AGREEMENT DATED DECEMBER 14, 1978, BETWEEN HENRY
MILLER AND LILLIAN MILLER, SETTLERS, AND HENRY MILLER AND LILLIAN MILLER, TRUSTEES, IN
DEED RECORDED MAY 19, 1980 AS INSTRUMENT NO. 80-494I45 OF OFFICIAL RECORDS.
ORDINANCE NO. 18-1826 (Exhibit "A")
Page 58 of 75
EXHIBIT B
SITE MAP
[ATTACHED]
iii
01Gg7IM95147iG3CIN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 59 of 75
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Focal Strategic Investments: 17505 South Main Street Y
APN: 7339-003-900
Page 60 of 75 Dos prow 1OR42011
EXHIBIT C
SCOPE OF DEVELOPMENT
Developer shall develop the Site for permitted commercial cannabis use, pursuant to Chapter 15
of Article VI of the Carson Municipal Code, including the following business activities: 1)
cultivation of cannabis; 2) manufacturing of cannabis products; and, 3) storage of residual
materials from cannabis cultivation
Each permitted commercial cannabis operation at the Site shall prepare, for City inspection, an
operations plan which shall be in conformance with the requirements of Carson Municipal Code
and, at a minimum, provide the following:
a) A list of the names, addresses, telephone numbers, and responsibilities of each owner and
manager of the facility.
b) The hours and days of operation for the facility.
c) A site plan and floor plan of the facility denoting the layout of all areas of the commercial
cannabis facility, including, as applicable, storage, cultivation, reception/waiting,
manufacturing, and all ancillary support spaces.
d) The commercial cannabis cultivation and manufacturing procedures to be utilized at the
facility, including, as applicable, a description of how chemicals and fertilizers will be
stored, handled, and used; extraction and infusion methods; the transportation process;
inventory procedures; track and trace program and procedures; quality control
procedures; and testing procedures.
e) Procedures for identifying, managing, and disposing of contaminated, adulterated,
deteriorated or excess commercial cannabis product.
f) Procedures for inventory control to prevent diversion of commercial cannabis to
noncommercial use, employee screening, storage of commercial cannabis, personnel
policies, and recordkeeping procedures.
g) An odor management plan detailing the steps that will be taken by Project and Site to
ensure off -Site odors shall not result from activities on the Site. This requirement at a
minimum means that all commercial cannabis operations at the Site shall be designed to
provide sufficient odor -absorbing ventilation and exhaust systems so that any odor
generated inside the location of a commercial cannabis operation is not detected outside
the building, on adjacent properties or public rights-of-way, or within any other unit
located within the same building as a commercial cannabis operation, if the use only
occupies a portion of a building.
h) Policies and procedures for adopting, monitoring, implementing, and enforcing all
requirements of the Carson Municipal Code.
iv
ORDINANCE NO. 18-1826 (Exhibit "A")
ota►� W05/514750CINPage 61 of 75
i) Policies and procedures to control mold, mildew, dust, glare, heat, noise, noxious gasses,
odor, smoke, traffic, vibration, or other impacts of cultivation, manufacture, delivery, or
transporting of cannabis materials.
j) Policies and procedures to control any hazards due to the use or storage of materials,
processes, products, chemicals, fertilizers, or wastes.
k) Policies and procedures to control and not disturb surrounding residential or commercial
areas.
v
01W7.oa /514750.3 CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 62 of 75
EXHIBIT D
RESERVED
Vi
01007.0005131475U 3 CEN' ORDINANCE NO. 18-1826 (Exhibit "A")
Page 63 of 75
EXHIBIT E
MND MITIGATION MEASURES
[ATTACHED]
vii
41007.00051514756.3 CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 64 of 75
Focal Strategies Cannabis Project
Mitigation Monitoring and Reporting Program
A. Introduction
This Mitigation Monitoring and Reporting Program (MMRP) has been prepared in accordance with Public
Resources Code Section 21081.6 and CEQA Guidelines Section 15091(d), which require a public agency to
adopt a program for monitoring or reporting on the changes it has required in the project or conditions of
approval to substantially lessen significant environmental effects. Specifically, Public Resources Code
Section 21081.6 states: "... the [lead) agency shall adopt a reporting or monitoring program for the changes
made to the project or conditions of project approval, adopted in order to mitigate or avoid significant
effects on the environment ... The ... program ... shall be designed to ensure compliance during project
implementation." The City of Carson, specifically the Planning Division of the Community Development
Department, is the Lead Agency for the proposed project.
The MMRP describes the procedures for the implementation of all of the mitigation measures identified in
the MND for the proposed project. Mitigation measures set forth in the MMRP are specific and enforceable
and are capable of being fully implemented by the City of Carson, the various applicants, and/or other
identified public agencies of responsibility.
Focal Straloplas Cannabis Project
MMAP
Page 1
ORDINANCE NO. 18-1826 (Exhibit "A")
Page 65 of 75
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ORDINANCE NO. 18-1826 (Exhibit "A")
Page 71 of 75
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EXHIBIT F
LIST OF FUTURE DEVELOPMENT APPROVALS
[ATTACHED]
viii
01007.000V514750 3 CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 72 of 75
Future Development Approvals may include the following:
• site Plan and Design Review
• Tentative and final subdivision maps
• Variances
• Conditional Use Permits
• Grading, building and other similar permits
• Certificate of Occupancy
• Business License
• Environmental assessments
• Any amendments or modifications to those plans, maps, permits, and entitlements.
ORDINANCE No. 18-1826 (Exhibit "A")
Page 73 of 75
EXHIBIT G
SCHEDULE OF PERFORMANCE
October 30.2018
ix
01007.000/514750,3 CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 74 of 75
Item To Be Performed
Time For Performance /
Agreement
Responsible Party
Reference
I
1.
Submit Planning applications for
January 31, 20181 Developer
Administrative Review (DOR or
other required Planning applications)
2.
Review and approval of Planning
May 31, 20I8 / City
applications (permits required for,
and specific to, individual tenants
may be obtained at a later date based
upon anticipated tenant occupancy)
3.
Effective Date of the Development
January 4, 2019
Agreement
4.
Submittal of the Site Plan and Design
30 days after Effective Date of
Review Application
the Development
Agreement/Developer
5.
Approval of the Site Plan and design
4 months from #4/City
Review Application
6.
Submittal of construction plans for
5 months from #5 / Developer
City review
(may submit prior to approval
of Site Plan and Design
Review applications with
approval of a Hold Harmless
agreement)
7.
Issuance of Building / Grading
4 months after #6 / City
Permits
8.
Start of construction
15 days after #7/ Developer
4.
Completion of construction
I year after #8/ Developer
10,
Start of operations
15 days after #9/ Developer
ix
01007.000/514750,3 CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 74 of 75
It is understood that the foregoing Schedule of Performance is subject to all of the terms
and conditions set forth in the text of the Agreement. The summary of the items of performance
in this Schedule of Performance is not intended to supersede or modify the more complete
description in the text; in the event of any conflict or inconsistency between this Schedule of
Performance and the text of the Agreement, the text shall govern.
The time periods set forth in this Schedule of Performance may be altered or amended only by
written agreement signed by both Developer and the City. A failure by either party to enforce a
breach of any particular time provision shall not be construed as a waiver of any other time
provision. The City Manager shall have the City approve extensions of time without City
Council action not to exceed a cumulative total of 180 days.
x
0JW7000515I475U.3CFN ORDINANCE NO. 18-1826 (Exhibit "A")
Page 75 of 75