HomeMy Public PortalAbout22-2219 - Approving Development Agreement No. 27-21 Between the City of Carson and 21611 Perry Street LLC for a Proposed Self-Storage FacilityORDINANCE NO. 22-2219
AN UNCODIFIED ORDINANCE OF THE CITY OF CARSON, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT NO. 27-21 BETWEEN THE CITY OF CARSON AND 21611
PERRY STREET LLC FOR A PROPOSED SELF-STORAGE FACILITY AT 21611 PERRY STREET
WHEREAS, California Government Code Sections 65864 et seq. authorize the City of Carson (“City”) to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property in order to establish certain development rights, for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and identifying the economic costs of such development; and
WHEREAS, on May 15, 2021, the Department of Community Development received an application
from 21611 Perry Street LLC (“Developer”) for certain entitlements for the development of a self-storage
facility consisting of approximately 121,775 square feet in a mix of three buildings, with a maximum height of 36 feet, with storage units for rent, upon real property located at 21611 Perry Street having Assessor’s
Parcel Numbers 7327-010-014 & 015 and legally described in Exhibit “A” attached hereto and incorporated
herein by this reference (the “Project”); and
WHEREAS, Developer's requested entitlements consist of the following: (1) General Plan Amendment (“GPA”) No. 111-21, to change the land use designation of the Property from Light Industrial
to Heavy Industrial, (2) Zone Change (“ZCC”) No. 185-21, to change the zoning map designation for the
Property from Manufacturing Light with a Design Overlay (ML-D) to Perry Street Specific Plan, (3) Specific
Plan (“SP”) No. 29-22 - Perry Street Specific Plan (PSSP), to establish the development standards and permitted uses for the Property, (4) Development Agreement (“DA”) No. 27-21, to grant specified development rights in exchange for provision of specified community benefits, and (5) Site Plan Review
and Design Review (“DOR”) No. 1858- 21; and
WHEREAS, the application for DA No. 27-21 which if approved by the City, would approve a
Development Agreement between City and Developer (“Agreement”), was submitted pursuant to
Government Code Sections 65864 through 65869.5; and
WHEREAS, after notice of the time, place and purpose of a public hearing was duly given, the City’s Planning Commission held a public hearing and heard testimony and considered all factors both oral and
written on the 13th day of September 2022, to consider Developer’s applications for the Project. Following
such public hearing, the Planning Commission (1) approved DOR No. 1858-21 contingent upon City Council
approval of the Mitigated Negative Declaration and the Mitigation Monitoring and Reporting Program
for the Project (“MND”), and (2)
ORDINANCE NO. 22-2219
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recommended that the City Council approve the MND, GPA No. 111-21, ZCC No. 185-21, SP No. 29-22, and DA No. 27-21, subject to the Project conditions of approval; and
WHEREAS, after notice of the time, place and purpose of a public hearing was duly given, the City Council held a public hearing on 4" day of October, 2022, to consider Developer’s applications for the Project and the MND, including the Agreement, and following such hearing during which the City Council heard testimony and considered all factors both oral and written, the City Council approved the MND in compliance with the California Environmental Quality Act (“CEQA”), subject to certain conditions of approval, and now desires to approve the Agreement after findings of consistency with the City’s General Plan, as amended by GPA No. 111-21, and SP No. 29-22.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARSON DOES HEREBY ORDAIN AS FOLLOWS:
section 1. The above recitals are true and correct and are hereby incorporated into this
Ordinance as set forth herein.
section 2. Pursuant to CEQA, a Draft Mitigated Negative Declaration was prepared and made available for public review. A Notice of Intent was prepared and issued in compliance with CEQA
Guidelines Section 15072. The draft MND was published, circulated and made available for public review in accordance with the requirements of CEQA, including CEQA Guidelines Section 15073. An electronic copy of the document was also posted and made available for public review at 21611 Perry Street Self-
Storage project (carson.ca.us). All environmental impacts of the proposed Project, as assessed and mitigated pursuant to the MND and the Project conditions of approval, will be mitigated to the maximum
extent feasible and below a level of significance 22- 0908 MND Errata.pdf (carson.ca.us).
Section 3. Based upon all oral and written reports and presentations made by City staff,
Developer, and members of the public, including any attachments and exhibits, the City Council hereby
finds that:
a) The Agreement is consistent with the provisions of Government Code Sections
65864 through 65869.5.
b) The Agreement provides for a project that is located within an area suitable for
the proposed use and is in conformance with the General Plan as amended by GPA No. 111- 21, and the Perry Street Specific Plan (SP No. 29-22), which is also the zoning designation for the Property pursuant to
Zone Change (ZCC) No. 185-21, which would change the zoning map designation for the Property from
Manufacturing Light with a Design Overlay (ML-D) to Perry Street Specific Plan.
C) The Agreement provides for a public convenience through significant monetary benefits which will contribute directly or indirectly to programs and services designed to provide for the
health, safety and welfare of the public, thereby exhibiting good land use practices.
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01007.0018/817162.1 Page 2 of 6
d) The Agreement will not be detrimental to the public’s health, safety and general welfare, nor will it adversely affect the orderly development or property values for the subject property
Or areas Surrounding it.
e) The Agreement is in compliance with the procedures established by City Council Resolution No. 90-050 as required by Government Code, Section 65865(c).
f) The Agreement in Article 6 provides for an annual review to ensure good faith compliance with the terms of the Agreement, as required in Section 65865.1 of the Government Code.
g) The Agreement specifies its duration in Section 2.1, the Developer’s Interim Development Impact Fee obligations in Section 3.1, and the Developer’s Community Facilities District
obligations in Section 3.2, the Development Fee in Section 3.3, and the Community Benefits and Fee in
Section 3.4.
(h) The Agreement includes conditions, terms, restrictions and requirements for
development of the property in Article 4 and as permitted in Section 65865.2 of the Government Code.
(1) The Agreement contains provisions in Article 7 for termination of the Agreement
prior to expiration of its term.
(j) The Agreement provides for amendment or cancellation in whole or in part, by
mutual consent of the parties to the Agreement or their successors in interest, as required in Section
65868 of the Government Code.
(kx) The Agreement is in the best public interest of the City and its residents and will
achieve a number of City objectives including ensuring compatibility of the development and use of the site with surrounding uses (which absent this project could potentially have been problematic in that the site was traditionally industrial and is deed restricted against residential use but is in close proximity to many residential uses) and helping achieve a sustainable balance of residential and non-residential
development and a balance of traffic circulation through the City, in furtherance of General Plan goals and
objectives.
I) The Agreement supports General Plan goal LU-5: maximize the City’s market potential in order to enhance and retain shopping and entertainment Opportunities to serve the
population, increase revenues to the City, and provide new employment opportunities. The proposed
development will maximize the City’s market potential by facilitating development of a vacant and
undeveloped lot with a mixed-use project consisting of a state-of-the-art self-storage facility with lobby/self-storage management office, retail and café uses, thereby increasing revenues to the City and
providing new employment opportunities. For the same reasons, the Agreement also supports SP No. 29-
22.
m) The Agreement supports General Plan goal LU-7: adjacent land uses that are
compatible with one another. The proposed development of a mixed-use project consisting of a state-of- the-art self-storage facility with lobby/self-storage management office, retail and café uses on a currently vacant and undeveloped lot, is generally consistent with the mixed-use,
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01007.0018/817162.1 Page 3 of 6
commercial corridor along Carson Street and is compatible with adjacent residential land uses. For the same
reasons, the Agreement also supports SP No. 29-22.
(n) The Agreement supports General Plan goal LU-15: promote development in
Carson which reflects the “Livable Communities” concepts. The proposed development of a mixed-use
project consisting of a state-of-the-art self-storage facility with lobby/self-storage management office,
retail and café uses on a currently vacant and undeveloped lot, will enhance the City with neighborhood
serving amenities, such as self-storage services and café and retail uses, and will be attractively designed
and oriented to the pedestrian experience, and generally provide a community resource and gathering
place. For the same reasons, the Agreement also supports SP No. 29-22.
(0) The Agreement supports General Plan goal ED-3: maximize the City’s market
potential, in order to enhance and retain retail opportunities to serve the population, increase City
revenues, as well as to provide new employment opportunities. The proposed development of a mixed-
use project consisting of a state-of-the-art self-storage facility with lobby/self-storage management office,
retail and café uses on a currently vacant and undeveloped lot, will provide population serving
opportunities such as self-storage services and café/retail uses, which will increase revenues to the City and
provide new employment opportunities. For the same reasons, the Agreement also supports SP No. 29-
22.
section 4. Based on the aforementioned findings, the City Council hereby approves the
Agreement, a copy of which is attached hereto as Exhibit “B” and incorporated herein by this reference
and authorizes its execution by the Mayor and all action necessary to comply with its terms.
section5. This Ordinance shall take effect on the 30" day following its second reading by the City
Council. However, if and when the Agreement should automatically terminate pursuant to Section 7.8
thereof, this Ordinance will automatically terminate concurrently therewith without any action needing to
be taken by the City Council.
Section 6. Pursuant to Government Code Section 65868.5, the City Clerk of the City shall record
a copy of said Development Agreement with the County Recorder within 10 days after execution thereof.
section 7. The City Council declares that, should any provision, section, paragraph, sentence or
word of this Ordinance be rendered or declared invalid by any final court action in a court of competent
jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs,
sentences or words of this Ordinance as hereby adopted shall remain in full force and effect.
Section 8. The Mayor, City Manager, and City Clerk or their designees, are authorized and
directed to take such actions and execute such documents and certifications as may be necessary to
implement and affect execution, recordation and enforcement of this Ordinance and the Agreement.
section 9. The City Clerk of the City of Carson shall certify to the passage and adoption of this
Ordinance and shall cause the same to be published in a newspaper of general
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01007.0018/817162.1 Page 4 of 6
circulation, printed and published within the City of Carson in accordance with the provisions of the
Government Code.
PASSED, APPROVED and ADOPTED at a regular meeting of the City Council on this 18th day of
October 2022.
APPROVED AS TO FORM:
Sunny K. Soltani, City Attorney
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF CARSON )
CITY OF CARSON:
Bases thos
Aula Davis-Holmes, as hl)
Dr. Khaleah K. Bradshaw, City Clerk
|, Dr. Khaleah K. Bradshaw, City Clerk of the City of Carson, California, hereby attest to and certify that the
foregoing ordinance, being Ordinance No. 22-2219 passed first reading on the 4% day of October, 2022,
adopted by the Carson City Council at its meeting held on the 18" day of October, 2022, by the following roll
call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
RECUSED:
01007.0018/817162.1
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
COUNCIL MEMBERS:
Davis-Holmes, Hilton, Dear, Hicks, Rojas
None
None
None
None
haleah K. Bradshaw, City Clerk
ORDINANCE NO. 22-2219
Page 5 of 6
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF CARSON )
|, Dr. Khaleah K. Bradshaw, City Clerk of the City of Carson, California, do hereby certify that Ordinance No. 22-2219 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in Our Weekly, newspaper of general circulation on
the following date:
| \ eS X \ “2 ’ 7 —- f
Adopted Ordinance: WO JEN VORK YU } LOOLZL
L +N m \ In witness whereof, | have hereunto subscribed my name this \ day of \ Num Oor , 2022.
yA Raodlebaus
Dr. Khaleah K. Bradshaw, City Clerk
ORDINANCE NO. 22-2219
01007.0018/817162.1 Page 6 of 6
EXHIBIT "A"
PROPERTY LEGAL DESCRIPTION
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 LOT 15 OF TRACT NO. 4054, IN THE CITY OF CARSON,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 44 PAGE 39 OF MAPS, .IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF THE
SOUTHERLY 20 FEET OF SAID LOT WITH A LINE PARALLEL WITH AND
NORTHEASTERLY 27 FEET, MEASURED AT RIGHT ANGLES, FROM THE
SOUTHWESTERLY LINE OF SAID LOT; THENCE ALONG SAID PARALLEL LINE
NORTH 39 ° 21' 48" WEST 245.64 FEET; THENCE SOUTH 89 ° 22' 27" WEST 25.48 FEET;
THENCE NORTH
39 ° 21' 48" WEST 2.11 FEET; THENCE NORTH 0 ° 37' 33" WEST 17.38 FEET TO A LINE
PARALLEL WITH AND NORTHEASTERLY 18 FEET, MEASURED AT RIGHT
ANGLES, FROM SAID SOUTHWESTERLY LINE; THENCE ALONG SAID LAST
MENTIONED PARALLEL LINE NORTH 39 ° 21' 48" WEST TO THE SOUTHERLY LINE
OF TRACT NO. 29360, AS PER MAP RECORDED IN BOOK 734, PAGE 45 OF MAPS;
THENCE EASTERLY ALONG SAID SOUTHERLY LINE TO THE EASTERLY LINE OF
SAID LOT 15; THENCE SOUTHERLY ALONG SAID EASTERLY LINE TO SAID
NORTHERLY LINE; THENCE WESTERLY ALONG SAID NORTHERLY LINE TO THE
POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION OF SAID LAND DESIGNATED AS PARCELS
2-36 INCLUSIVE IN THE FINAL DECREE OF CONDEMNATION ENTERED IN
SUPERIOR COURT, LOS ANGELES COUNTY, CASE NO. 909461, A CERTIFIED COPY
OF WHICH WAS RECORDED AUGUST 26, 1969, AS INSTRUMENT NO. 2734, IN
BOOK D-4478, PAGE 350, OFFICIAL RECORDS OF SAID COUNTY AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EASTERLY LINE OF SAID LOT WITH
THE NORTHERLY LINE OF THE SOUTHERLY 20 FEET OF SAID LOT; THENCE
WESTERLY ALONG SAID NORTHERLY LINE 19.99 FEET TO THE BEGINNING OF A
CURVE CONCA VE TO THE NORTHWEST, HAVING A RADIUS OF 15 FEET,
TANGENT TO SAID NORTHERLY LINE AND TANGENT TO THE WESTERLY LINE
OF THE EASTERLY 5 FEET OF SAID LOT; THENCE NORTHEASTERLY ALONG
'SAID CURVE 23.55 FEET TO SAID WESTERLY LINE; THENCE EASTERLY AT RIGHT
01007.0018/817162.1
ANGLES FROM SAID WESTERLY LINE 5 FEET TO SAID EASTERLY LINE; THENCE
SOUTHERLY ALONG SAID EASTERLY LINE 14.99 FEET TO THE POINT OF
BEGINNING.
ALSO, EXCEPT 1/2 OF ALL OIL, GAS, HYDROCARBON AND MINERAL
SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT RIGHT OF SURF ACE
ENTRY, AS RESERVED BY MARY M. REGAN, IN DEED RECORDED OCTOBER 4,
1957 AS INSTRUMENT NO. 504, IN BOOK 44767, PAGE 300, OFFICIAL RECORDS.
APNs: 7327-010-014 & 015
01007.0018/817162. l
01007.0018/817162. l
EXHIBIT "B"
DEVELOPMENT AGREEMENT NO. 27-21
SEE ATTACHED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Carson
701 E Carson Street
Carson, CA 90745
Attn: Planning Manager
SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE
DEVELOPMENT AGREEMENT
This Development Agreement (“Agreement”) is entered into on the day of
, 2022 (“Execution Date”), by and between the City of Carson, a municipal corporation of the State of California (“City”), and 21611 Perry Street LLC, a California limited liability company (“Developer’’). The City and Developer shall be referred to jointly within this Agreement as the “Parties” and individually as a “Party.”
RECITALS
A. The Development Agreement Statute. California Government Code Sections 65864 et seq. (“Development Agreement Law’) authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation, and comprehensive planning and identifying the economic costs of such development.
B. Orderly Development; Public Benefits. The City Council finds that this Agreement is in the best public interest of the City and its residents, adopting this Agreement constitutes a present exercise of the City’s police power, and this Agreement is consistent with the City’s General Plan. This Agreement and the proposed Project will achieve a number of City objectives, including the orderly development of the Property and the provision of public benefits, or funds therefor, to the City and its residents.
C. The Property. The property is a vacant lot located in a region characterized by a mix of residential and commercial uses, and is located at 21611 Perry Street, Carson, California, on the northwest corner of East Carson Street and South Perry Street, having Assessor’s Parcel Numbers 7327-010-014 and 7327-010-015, legally described and depicted in Exhibit “A” and Exhibit “B” attached hereto and incorporated herein (the “Property’”). The General Plan land use designation for the Property is Light Industrial and the Property is zoned ML-D.
D. Ihe Project. Developer proposes to develop a self-storage facility consisting of approximately 121,775 maximum square feet in a mix of three buildings, with a maximum height of 36 feet (the “Project”). City finds and determines that all actions required of City precedent to approval of this Agreement have been duly and regularly taken. In accordance with the requirements of the California Environmental Quality Act (Public Resources Code § 21000, et seg. (“CEQA”), appropriate studies, analyses, reports and documents were prepared and considered by the Planning Commission and the City Council. The Planning Commission, after a duly noticed public hearing on September 13, 01007.0018/811705.3
2022, recommended approval of a Mitigated Negative Declaration (“MND”) for the
Projeetin-aceordanee with CEQA. On the same day, the Planning Commission, after
giving notice pursuant to Government Code §§ 65090, 65091, 65092 and 65094, held a public hearing on the Developer’s application for this Agreement (“DA No. 27-21”),
General Plan Amendment (“GPA No. 111-21”) (from Light Industrial to Heavy Industrial),
Specific Plan (“SP No. 29-22”), Zone Change (“ZCC No. 185-21”) changing the Property
zoning from Manufacturing Light with a Design Overlay [ML-D] to Perry Street Specific Plan [PSSP], and Site Plan and Design Overlay Review (“DOR No. 1858-21”) (collectively, together with the MND, the “Entitlements”), and adopted Resolution No.
22-2841recommending that the City Council approve said Entitlements.
E. On October 4, 2022, the City Council, after provision of the public notice required by law,
held a public hearing to consider the Developer’s application for this Agreement and
Entitlements. The Planning Commission and the City Council have 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.
F, Adoption of DIF Program. On April 16, 2019, the City Council adopted Ordinance No. 19-
1931 to implement the City’s Interim Development Impact Fee Program (“DIF Program”)
to establish an interim Development Impact Fee (“DIF”) schedule applicable to new development within the City. DIFs are valuable tools to fund infrastructure needs associated with new/additional development within the City pursuant to Government Code
Sections 66000 et seg. DIFs serve the purpose of allowing the City to recover from each
new development project a reasonable and proportional share of the cost of public facilities
and infrastructure improvements that serve or will benefit that development.
G. Agreed-Upon Payment of DIF Amount. City staff and its rate consultants have analyzed
the draft “Development Impact Fee Study” and currently-available fee study data, and
potential impacts upon public facilities and infrastructure attributable to the Project, in
order to accurately estimate the DIFs that would be applicable to the Project. Project DIF
amounts in this Agreement were estimated by reviewing the individual Project and its
direct relationship to the impacts created by the Project, and the fees collected, and it was
determined that the amounts of the fees are roughly proportional to the Project’s specific
impacts. Based on such analyses, the parties hereto mutually agree that Project impacts
warrant a one-time DIF payment of $392,115.50 calculated at $3.22 per square foot, which
amount is to be paid prior to issuance of Project building permits. All payments for DIFs
pursuant to this Agreement are hereinafter referred to as the “DIF Amount.” The parties
agree that such DIF Amount (1) is directly related to the impacts of the Project, and
(2) roughly proportional to the specific impacts upon public facilities and infrastructure
attributable to the Project.
H. CFD Formation. On November 7, 2018, the City formed a Master CFD entitled City of
Carson Community Facilities District No. 2018-01 (Maintenance and Services) (the
“Master CFD”) for the purpose of funding the maintenance of public infrastructure within
the area of the Master CFD which is within the City’s jurisdictional boundaries (the
Services”). More specifically, the Services may include, but not be limited to, the
provision of general City services and the maintenance of sidewalks, roadways, and parks
to enhanced service levels. Additionally, the Master CFD may also fund any other public
01007.0018/811705.3 2
services as authorized under Section 53313 of the California Government Code. The Master CFD contemplates that the City will annex properties from time to time to the Master CFD to fund Services by unanimous written consent or as otherwise permitted by the Mello Roos Community Facilities Act of 1982 (the “Act”), which properties may be annexed as a “Zone” or otherwise with special taxes related to such properties to be
assessed on the property owner pursuant to the Act.
I. CFD Annexation. By entering into this Agreement, Developer has agreed that the Property shall be annexed into the Master CFD and be subject to the Property’s special taxes, which will help finance on-going Services associated with the Project.
J. Developer's Interest in the Property. Developer is currently under contract to purchase the
Property and as such, possesses the requisite equitable interest in the Property under Government Code Section 65865 that allows the Parties to enter into this Agreement. However, this Agreement will not go into effect until after Developer acquires legal title to the Property.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. GENERAL DEFINITIONS.
In addition to those terms defined within the above Recitals and elsewhere within this Agreement, the following terms shall bear the meanings set forth below:
1.1 “Adopting Ordinance” means Ordinance No. approving this Agreement, introduced on , 2022 and adopted on , 2022.
1.2 “Agreement” means this Development Agreement, including all of its exhibits.
1.3 “Annual Review” means the annual review of the Developer’s performance under this Agreement in accordance with Article 6 of this Agreement.
1.4 “Applicable Laws” means, collectively, the following:
The Project Development Approvals, including the Conditions of Approval. S
b. The Existing Land Use Regulations.
C. Subsequent Development Approvals.
d. Those Subsequent Land Use Regulations to which Developer has agreed in
writing.
1.5 “Approval Date” means the date on which the City Council conducted the second reading of the Adopting Ordinance. That date is , 2022.
01007.0018/811705.3 3
1.6 “CFD” means any Community Facilities District that is applicable to the
Property and formed pursuant to the Mello Roos Community Facilities Act of 1982.
1.7 “City” means the City of Carson, a California Charter city.
1.8 “City Council” means the City Council of the City of Carson.
1.9 “Conditions of Approval” means all conditions imposed on the Project by the City, including those recommended by the Los Angeles County Fire Department, as part of the approval of the Project.
1.10 “Developer” means 21611 Perry Street LLC, a California limited liability
company, and its successors and assigns to all or any part of the Property.
1.11 “Developer’s Vested Right” means Developer’s right to complete the Project in accordance with, and to the full extent of, the Project Development Approvals.
1.12 “Development” means the improvement of the Property for the purposes of completing the structures, improvements, and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping and other facilities and improvements necessary or appropriate for the Project, and the maintenance, repair, or reconstruction of any building, structure, improvement, landscaping or facility after the construction and completion thereof.
1.13 “Development Approvals” means all Project-specific non-legislative
approvals. Development Approvals include, but are not limited to, plans, maps, permits, site plans, design guidelines, variances, conditional use permits, grading, building, and other similar
permits, environmental assessments, including environmental impact reports and negative declarations, and any amendments or modifications to those matters. “Development Approvals” does not include (i) rules, regulations, policies, and other enactments of general application
within the City, (ii) legislative enactments, or (iii) any matter where City has reserved authority under Section 5 of this Agreement. Development Approvals are not Land Use Regulations.
1.14 “Development Plan” means Developer’s plan for completion of the Project in compliance with and to the full extent of the Project Development Approvals and Applicable
Laws.
1.15 “DIF(s)” means Development Impact Fees agreed to by Developer pursuant
to Section 3.1 hereof.
1.16 “Effective Date” means the date on which the Adopting Ordinance becomes effective, typically thirty (30) days after the second reading of the Adopting Ordinance, or after
Developer acquires legal title to the Property, whichever occurs later. If Developer fails to or otherwise does not acquire legal title to the Property by the deadline provided in Section 7.8, this
Agreement shall not go into effect and shall be automatically terminated in accordance with said
Section 7.8.
01007.0018/811705.3 4
1.17 “Entitlements” means this Agreement, the MND, GPA No. 111-21, SP No.
29-22, ZCC No. 185-21, and DOR No. 1858-21.
1.18 “Exhibit” means an exhibit to this Agreement, unless otherwise specifically referenced to a different agreement or document. The following exhibits are incorporated into
the Agreement by reference as though set forth in full:
Exhibit A Legal description of the Property
Exhibit B Depiction of the Property
1.19 “Existing Land Use Regulations” means (i) all Land Use Regulations in effect on the Effective Date and (ii) any changes to Land Use Regulations enacted on or after the Approval Date and before the Effective Date for which Developer has provided its written
consent to allow those changes to apply to the Project.
1.20 “Land Use Regulations” are laws and regulations enacted through legislative
actions of the City Council. Land Use Regulations include ordinances, laws, resolutions, codes, rules, regulations, policies, requirements, guidelines or other actions of City, including but not limited to the City’s General Plan, Municipal Code, and Zoning Code which affect, govern or apply to the development and use of the Property, including, without limitation, the permitted
use of land, the density or intensity of use, subdivision requirements, 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. “Land Use Regulations” do not include (i) Development Approvals, (ii) regulations relating to the conduct of business, professions, and occupancies generally, (iii) taxes
and assessments, (iv) regulations for the control and abatement of nuisances, (v) health and safety
regulations, or (vi) any other matter reserved to the City pursuant to Article 5.
1.21 “Mortgage” means a mortgage, deed of trust, or other security instrument
encumbering the Property.
1.22 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of
trust or any other security device, a lender, or each of their respective successors and assigns.
1.23 “Project” as described this Agreement, means the development of the Property consistent with and to the full extent of the Project Development Approvals and all applicable Land Use Regulations.
1.24 “Project Development Approvals” means all Development Approvals,
inclusive of the Entitlements, which meet the following criteria:
a. Were applied for by Developer;
b. Are acceptable to Developer (including all Conditions of Approval); and
on Are required or permitted by the Applicable Laws in order to complete the
Project.
01007.0018/811705.3 5
Project Development Approvals include, without limitation, all Development Approvals needed or desired by Developer to complete the Project, provided that those Development Approvals are consistent with Developer’s Vested Right, this Agreement, and the City’s General Plan and Zoning Code. The Entitlements (minus this Agreement), as examples of Project Development Approvals, have been or are anticipated to be approved prior to or in conjunction with the approval of this Agreement.
1.25 “Property” means the real property described in Exhibit “A” and shown in Exhibit “B.”
1.26 “Reservation of Authority’ means the limitations, reservations, and exceptions to Developer’s Vested Right set forth in Article 5 of this Agreement.
1.27 “Subsequent Land Use Regulations” means those Land Use Regulations which are both adopted and effective on or after the Approval Date and which are not included within the definition of Existing Land Use Regulations.
1.28 “Subsequent Development Approvals” means all Development Approvals issued subsequent to the Effective Date in connection with development of the Property, which shall include, without limitation, any changes to the Development Approvals.
1.29 “Term” shall have the meaning ascribed to it in Section 2.1, unless earlier
terminated as provided in this Agreement.
2. TERM & GENERAL COVENANTS.
2.1 Term. The term of this Agreement (the “Term”) starts on the Effective Date and shall expire 15 years after City’s approval of the last of the Entitlements, subject to any early termination provisions described in this Agreement.
Bik Binding Effect of Agreement. From and following the Effective Date, actions by the City and Developer with respect to the development of the Property for completion of the Project, including actions by the City on applications for Subsequent Development Approvals affecting the Property shall be subject to the terms and provisions of this Agreement.
2.3 Agreement Runs with the Land. This Agreement shall be recorded and shall run with the land. Pursuant to Government Code Section 65868.5, the burdens of this Agreement and each of its provisions shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties, including, but not limited to, all parties that enter into lease agreements with Developer for possession of any part of the Property.
2.4 Covenant Against Discrimination. The Developer covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, sexual orientation or gender preference, national origin, or ancestry in the performance of this Agreement. The Developer shall take affirmative action to ensure that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation or gender preference,
national origin, or ancestry.
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3. DEVELOPER’S OBLIGATIONS.
As consideration for the granting of Developer’s Vested Right in accordance with Article 4 below and subject to the City’s Reservation of Authority set forth in Article 5 below, Developer shall do the following:
3.1 Development Impact Fees. Developer shall make a one-time payment to the City for the DIF Amount of $392,115.50 calculated at $3.22 per square foot at 121,775 square feet of storage facility approved as part of the Project. The parties agree that such DIF Amount (1) is directly related to the impacts of the Project, and (2) roughly proportional to the specific impacts upon public facilities and infrastructure attributable to the Project. Developer agrees to release, defend and hold the City harmless from any and all claims, costs (including attorneys’ fees) and liability for any damages, which may arise, directly or indirectly, from the City determination, calculation or imposition of, or Developer’s
agreement to pay, the DIF Amount.
a. Timing of Payment of DIF Amount. The DIF Amount is payable in full prior to the issuance of building permits for the Project, and is a condition precedent thereto.
b. DIF Amount Adjustments. All DIF Amounts shall be adjusted annually
in accordance with the State of California Construction Cost Index (prior
March to current March adjustment) on July 1* of each year.
3.2 CFD Annexation. Developer shall annex the Property into the Master CFD No. 2018-01. Based on an analysis of the Services needed for the Project, Developer agrees the Property will be taxed at the rate in effect at the time of issuance of Project building permits for Industrial — All Other, which, as of the Execution Date, is Five Hundred F ifty Dollars and Forty One Cents ($550.41) per acre on an annual basis, which means the Property’s special taxes would be One Thousand Five Hundred Forty One Dollars and Fifteen Cents ($1,541.15) annually, which amounts shall be adjusted as described in Section 3.2(b) below. Developer understands that there is an impact on the Services provided by the City in connection with its Project. Developer agrees to become subject to the Property’s special taxes, which will help finance on-going Services associated with the Project.
a. Timing of CFD Annexation. Developer shall annex the Property into the
Master CFD prior to issuance of any building permits for the Project.
b. Tax Rate Adjustments. On each July 1, commencing on July 1, 2023 through and including July 1, 2024, the Maximum Special Tax Rate for the
applicable tax zone (which applies to the Property) shall be increased by
7%. On each July 1, commencing on July 1, 2025 and thereafter, the Maximum Special Tax Rate for such tax zone shall be increased by the percentage change in the November annualized Consumer Price Index for
Los Angeles-Long Beach-Anaheim for all Urban Consumers.
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3.3 Development Agreement Fee. Developer will operate a self-storage facility as part of the Project. In consideration for such allowance, Developer shall pay City a one-time Development Agreement fee in the amount of $175,000.00 prior to issuance of building permits.
3.4 Community Benefits and Fee. The City has established the Citywide Commercial Facade Improvement Program pursuant to City Council Resolution No. 22-132 (“Facade Program”) whereby City provides grants to businesses to be used toward making exterior improvements and design approvals. In consideration for City’s allowance for Developer to develop the Project, Developer shall pay City a one-time payment of $250,000.00 to serve as seed money (to be used in lieu of contribution from property owners) to be used toward the Fagade Program in the north side of Carson Street between Harbor View Avenue and Santa Fe Avenue or any other area determined by the Community Development Director (“Facade Program Payment’) prior to issuance of building permits. However, should the City receive requests from property owners in the north side of Carson Street between Harbor View
Avenue and Santa Fe Avenue or any other area determined by the Community Development Director seeking to participate in the program, the City in its sole and absolute discretion shall
be entitled to receive the Fagade Program Payment as early as thirty (30) days after the Effective Date. The City’s Community Development Director shall notify the Developer of the City’s interest to receive the Facade Program Payment anytime between thirty (30) days after the Effective Date and prior to issuance of building permits for the Project. Developer shall pay City the Fagade Program Payment within thirty (30) days after receipt of City’s notice.
4, DEVELOPMENT OF THE PROPERTY.
4.1 Scope of Developer’s Vested Right. Subject to the Reservation of Authority
set forth in Article 5, Developer shall have the vested right to develop the Project to the full extent permitted under the Applicable Rules (“Developer’s Vested Right”) and this Agreement.
The “Applicable Rules” consist of the following:
a. The Project Development Approvals.
b. The Existing Land Use Regulations.
C. Subsequent Development Approvals.
d. Those Subsequent Land Use Regulations to which Developer has agreed in
writing.
4.2 Effect of Agreement on Land Use Regulations. Except as otherwise
provided under the terms of this Agreement, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to the Development of the Property, shall be as set forth in the
Existing Land Use Regulations which were in full force and effect as of the Effective Date of
this Agreement, subject to the terms of this Agreement.
4.3 Rights under State and Federal Law. Developer shall retain all rights it has
under state and federal law, including, but not limited to, Developer’s rights under Government Code Section 65865.2, which provides that subsequent discretionary actions shall not prevent
01007.0018/811705.3 8
development of the Property for the uses and to the density or intensity of development set forth in the Project Development Approvals.
4.4 Apportionment. Developer shall have the right to apportion the uses, intensities, and densities of the Project between itself and any subsequent owners, upon the sale, transfer, or assignment of all or any portion of the Property, so long as such apportionment is consistent with the Applicable Laws and this Agreement.
4.5 Lesser Development. Without amending this Agreement, Developer shall have the right to elect to develop and construct upon all or any portion of the Property a Project of lesser height or building size than that permitted by the Project Development Approvals provided that the Project otherwise complies with the Project Development Approvals and this Agreement.
4.6 Project Development Approvals; Subsequent Development Approvals. The Project Development Approvals for the Project may require the processing of Subsequent Development Approvals. Subject to the provisions of Section 4.7 below, the City shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters in accordance with the Existing Land Use Regulations. The parties acknowledge that subject to the Existing Land Use Regulations, under no circumstances shall City be obligated in any manner to approve any Subsequent Development Approval, or to approve any Subsequent Development Approval with or without any particular condition. However, unless otherwise requested by Developer, City shall not, without good cause, amend or rescind any Subsequent Development Approvals respecting the Property after such approvals have been granted by the City. Processing of Subsequent Development Approvals or changes in the Project Development Approvals made pursuant to Developer’s application shall not require an amendment to this Agreement. This Agreement shall not prevent City from denying or conditionally approving any application for a Subsequent Development Approval on the basis of the Existing Land Use Regulations.
4.7 Role of Project Development Approvals. Except as provided within this Agreement, the Project Development Approvals shall exclusively control the uses of the Property, the density or intensity of use, 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. Pursuant to Government Code Section 66452.6, the term of any tentative map for the Property or any portion thereof, if any, filed within the term of this Agreement shall automatically be extended for the term of this Agreement, as amended by the Project Development Approvals.
4.8 Moratorium. Notwithstanding any other provision of this Agreement, no future amendment of any existing City ordinance or resolution or any subsequent ordinance, resolution or moratorium, enacted either by the City Council or by voter approved initiative, that purports to impose or result in a limitation on the Project, imposed by City, shall apply to govern, or regulate the Project or development or use of the Developer Property during the Term. In the event of any such subsequent action by City, Developer shall continue to be entitled to apply for and receive
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Development Approvals in accordance with the Existing Land Use Regulations, subject only to the exercise of the City’s Reservation of Authority set forth herein.
4.9 Maintaining Property. The Property must at all times be maintained and generally kept in a clean condition, in accordance with the City’s Code Enforcement regulations.
5. CITY’S RESERVATION OF AUTHORITY.
Notwithstanding Developer’s Vested Right, the Project is subject to the following Subsequent Land Use Regulations:
5.1 City’s Discretion Under Applicable Rules. In considering future applications, if any, for a Subsequent Development Approval, the City may exercise its regulatory discretion to the extent permitted by the Applicable Rules.
5.2 Uniform Codes. Changes adopted by the International Conference of Building Officials, or other similar body, as part of the then most current versions of the Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, or National Electrical Code, or other such Uniform Codes, and also adopted by City as Subsequent
Land Use Regulations, but only if applicable City-wide.
5.3 Emergencies. Emergency rules, regulations, laws, and ordinances within the City’s police power that would limit the exercise of Developer’s Vested Right (“Conflicting Emergency Regulations”), provided that the Conflicting Emergency Regulations:
a. Result from a sudden, unexpected emergency declared by the President of
the United States, Governor of California, County Board of Supervisors and
applicable to incorporated areas, including the City, or the City Council;
b. Address a clear and imminent danger, with no effective reasonable alternative available that would have a lesser adverse effect on Developer’s
Vested Right;
C. Do not primarily or disproportionately impact the development of the
Project; and
d. Are based upon findings of necessity established by a preponderance of the
evidence at a public hearing.
5.4 Laws of Other Jurisdictions. Other public agencies not subject to control by City may possess authority to regulate aspects of the Project. This Agreement does not limit the authority of such other public agencies. Therefore:
a. Federal, state, county, and multi-jurisdictional laws and regulations (the “Additional Regulations”), including regional impact fees, which City is required to enforce against the Property or the Project, except if the Additional Regulations are for the purpose of mitigating a significant or
potentially significant impact that has already been mitigated pursuant to
the Project’s Mitigated Negative Declaration.
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b. If an Additional Regulation is enacted after the Effective Date and prevents
or precludes compliance with one or more of the provisions of this
Agreement, those provisions shall be modified or suspended as may be
necessary to comply with the Additional Regulation. In that event, this
Agreement shall remain in full force and effect to the extent it is not
inconsistent the Additional Regulation and to the extent that the suspension
or modification necessitated by the Additional Regulation does not deny
one of the Parties its primary benefits under this Agreement.
C. Developer shall apply in a timely manner for such other permits and
approvals that are lawfully required by other governmental or quasi-
governmental agencies in order to allow the Project to be constructed. City
shall provide Developer reasonable cooperation in Developer’s efforts to
obtain such permits and approvals. The Parties shall cooperate and use
reasonable efforts in coordinating the implementation of the Development
with other public agencies, if any, having jurisdiction over the Property or
the Project.
5.5 Modification or Suspension by Federal or State Laws. In the event that
Federal or State laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions
of this Agreement shall be modified or suspended as may be necessary to comply with such Federal or State laws or regulations, and this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or
regulations do not render such remaining provision impractical to enforce.
5.6 Energy Efficient and Sustainable Building Design. All Project buildings
shall promote sustainable and energy efficient practices through compliance with California
Code of Regulations, Title 24.
5.7 Employment Outreach for Local Residents. A goal of the City with respect
to this Project and other major projects within the City is to foster employment opportunities for Carson residents. To that end, Developer covenants that with respect to the construction, operation and maintenance of the Project, the Developer shall make reasonable efforts to cause all solicitations for full or part-time, new or replacement, employment relating to the construction, operation and maintenance of the Project to be advertised in such a manner as to
target local City residents and shall make other reasonable efforts at local employment outreach as the City shall approve. Developer shall also notify the City of jobs available at the Project
such that the City may inform City residents of job availability at the Project. Developer will
inform its purchasers and lessees of the provisions of these requirements. Nothing in this paragraph 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 5.7 are not intended, and shall not be construed, to benefit or be enforceable by
any person whatsoever other than City.
5.8 Prevailing Wages. Developer’s cost of developing the Project and
constructing all of the on-site and off-site improvements, if any, at or about the Property required to be constructed for the Project shall be borne by Developer. Developer is aware of the laws of
01007.0018/811705.3 1]
the State governing the payment of prevailing wages on public projects and will comply with same and will defend, hold harmless, and indemnify City in the event Developer fails to do so. As the City is not providing any direct or indirect financial assistance to Developer, the Project should not be considered to be a “public work” “paid for in whole or in part out of public funds,” as described in California Labor Code Section 1720. Accordingly, it is believed by the parties that Developer is not required to pay prevailing wages in connection with any aspect of the Development or the construction of the Project. However, to the extent that (contrary to the parties’ intent) it is determined that Developer was required to pay prevailing wage and has not paid prevailing wages for any portion of the Project, Developer shall defend, indemnify, and hold the City (which, for purposes of this section, shall include its related agencies, officers, employees, agents and assigns) harmless from and against any and all increase in construction costs, or other liability, loss, damage, costs, or expenses (including reasonable attorneys’ fees and court costs) arising from or as a result of any action or determination that Developer failed to pay prevailing wages in connection with the construction of the Project. City shall reasonably cooperate with Developer regarding any action by Developer hereunder challenging any determination that the Project is subject to the payment of prevailing wages. Notwithstanding the foregoing, the City retains the right to settle or abandon the matter without Developer’s consent as to the City’s liabilities or rights only, but should it do so, City shall waive the indemnification herein provided such waiver occurs prior to the issuance of any judgment in the matter.
5.9 Fees, Taxes, and Assessments.
a. Processing Fees. The Developer shall pay all processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Project Development Approvals, including but not limited to, City Attorney fees incurred by City for the review, preparation and negotiation of the Entitlements, inclusive of this Agreement, at a rate of $425 per hour for partners and $395 per hour for associates, and for monitoring compliance with any Project Development
Approvals granted or issued.
b. Permit Fees. Except as expressly provided in this Agreement, Developer shall pay all standard permit fees and other fees and charges which are standard and uniformly-applied to similar projects in the City.
C. General Charges. Nothing herein shall prohibit the application of the following, if lawfully imposed upon the Property:
(1) Additional Taxes, Fee, and Charges. Developer, or Developer’s Project occupants, shall pay all normal and customary taxes, fees, and charges applicable to all permits necessary for the Project, and
any taxes, fees, and charges hereafter imposed by City, which are standard and uniformly-applied to similar properties in the City.
(i) Developer , or Developer’s Project occupants, shall be obligated to
pay any fees or taxes, and increases thereof, imposed on a City-wide
basis such as business license fees or taxes, sales or use taxes, transient occupancy taxes, utility taxes, and public safety taxes;
01007.0018/811705.3 12
(iii) | Developer, or Developer’s Project occupants, shall be obligated to
pay any future fees or assessments imposed on an area-wide basis
(such landscape and lighting assessments and community services assessments such as the CFD/Property’s special taxes);
(iv) | Developer, or Developer’s Project occupants, shall be obligated to pay any fees imposed pursuant to any assessment district such as the special taxes of the Master CFD established within the Project as of
the date hereof or otherwise proposed or consented to by Developer;
(v) Developer, or Developer’s Project occupants, shall be obligated to
pay any fees imposed pursuant to any Uniform Code.
(vi) | Developer, or Developer’s Project occupants, shall be obligated to
pay any utility fees and charges, including amended rates thereof,
for City services such as electrical utility charges, water rates, and
sewer rates.
5.10 Inconsistencies. It is expressly agreed that in the event of any inconsistency between the provisions or conditions of the Existing Land Use Regulations or Conditions of Approval and the provisions of this Agreement, the provisions of this Agreement shall govern. The conditions of such Existing Land Use Regulations and Conditions of Approval shall be interpreted insofar as possible to prevent such inconsistency, and in the event this Agreement is silent concerning an issue, the conditions of the Existing Land Use Regulations and Conditions of Approval shall govern. As between several instruments and regulations governing the Project, in the event of a clear and explicit conflict which cannot be resolved through interpretation, the following interpretive priorities shall apply: (i) the terms of this Agreement shall prevail over the provisions of the Existing Land Use Regulations and Conditions of Approval except where the Conditions of Approval are more restrictive in which event the Conditions of Approval shall prevail; (11) the terms of the Project Development Approvals shall prevail over the terms of the Existing Land Use Regulations, except where such Existing Land Use Regulations are legally preemptive; and (iii) the terms of the Project Development Approvals shall take priority over the provisions of the CEQA instruments and MND approved in conjunction with the Project, except where the MND is legally preemptive.
6. ANNUAL REVIEW.
6.1 Timing of Annual Review. Pursuant to Government Code Section 65865.1, at least once during every twelve (12) month period of the Term, City shall review the good faith compliance of Developer with the terms of this Agreement (“Annual Review’). No failure on the part of City to conduct or complete an Annual Review as provided herein shall have any impact on the validity of this Agreement, nor shall it be deemed a breach on the part of Developer. The cost of the Annual Review shall be borne by Developer and Developer shall pay the actual and reasonable costs incurred by the City for such review.
6.2 Special Review. The City Council may, in its sole and absolute discretion, order a special review of compliance with this Agreement at any time at City’s sole cost (“Special Review”). Developer shall cooperate with the City in the conduct of such Special Reviews.
01007.0018/811705.3 13
6.3 Standards for Annual Review. During the Annual Review, Developer shall demonstrate good faith compliance with the terms of this Agreement. “Good faith compliance” shall be established if Developer is in substantial compliance with the material terms and conditions of this Agreement.
6.4 Procedure. Each party shall have a reasonable opportunity to assert matters which it believes have not been undertaken in accordance with the Agreement, to explain the basis for such assertion, and to receive from the other party a justification of its position on such matters. The procedure for an Annual Review or Special Review shall be as follows:
a. As part of either an Annual Review or Special Review, within ten (1 0) days of a request for information by the City, the Developer shall deliver to the City all information and supporting documents 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.
b. The City Manager, or his/her designee, shall prepare and submit to Developer a written report on the performance of this Agreement and identify any perceived deficiencies in Developer’s performance of this Agreement. The Developer may submit written responses to the report and Developer’s written response shall be included in the City Manager’s report. If the City Manager determines that the Developer has substantially complied with the terms and conditions of this Agreement, the Annual or Special Review shall be concluded.
C. If any deficiencies are noted, or if requested by a Councilmember, a public hearing shall be held before the City Council at which the Council will review the City Manager’s report. The report to Council shall be made at a regularly-scheduled City Council meeting occurring as soon as possible, subject to the requirements of the Brown Act, after the commencement of the Annual or Special Review process outlined in this Section 6.4. If the City Council finds and determines, based on substantial evidence, 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 7.
d. Neither party hereto shall be deemed in breach if the reason for non- compliance is due to a “force majeure” as defined in, and subject to the
provisions of, Section 13.10.
6.5 Certificate of Agreement Compliance. If, at the conclusion of an Annual Review or a Special Review, Developer is found to be in compliance with this Agreement, City shall, upon written request by Developer, issue a Certificate of Agreement Compliance (“Certificate”) to Developer stating that after the most recent Annual Review or Special Review and based upon the information known or made known to the City Manager, Planning Commission, and City Council that (i) this Agreement remains in effect and (11) Developer is in compliance. The Certificate, whether issued after an Annual Review or Special Review, shall
01007.0018/811705.3 14
be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer shall at its cost record the Certificate with the County Recorder. Additionally, Developer may at any time request from the City a Certificate
stating, in addition to the foregoing, which obligations under this Agreement have been fully
satisfied with respect to the Property, or any lot or parcel within the Property.
6.6 Review Process Not a Prerequisite to Declaring a Default. Neither the
Annual Review nor Special Review procedure is a prerequisite to either party declaring a default
and initiating the default and cure procedure in Article 7. In other words, either party may declare a default at any time without first undertaking the Annual Review or Special Review process.
6.7 Public Hearings. The public hearing prescribed by Section 6.4 is independent of, and in addition to, any further hearing procedures relating to defaults and remedies prescribed
in Article 7 below. Thus, if the City Council finds that the Developer has not substantially
complied with the terms and conditions of this Agreement as part of a review process pursuant to Section 6.4 and determines to declare a default, the City Council is still required to follow the
notice/cure process (Section 7.2) and the termination hearing process (Section 7.4) before
terminating this Agreement.
7. DEFAULTS AND REMEDIES.
7.1 Remedies Available. The parties acknowledge and agree that other than the termination of this Agreement pursuant to Article 7, specific performance, injunctive and declaratory relief are the only remedies available for the enforcement of this Agreement and
knowingly, intelligently, and willingly waive any and all other remedies otherwise available in law or equity. Accordingly, and not by way of limitation, and except as otherwise provided in this Agreement, Developer shall not be entitled to any money damages from City by reason of
any default under this Agreement. Further, Developer shall not bring an action against City nor obtain any judgment for damages for a regulatory taking, inverse condemnation, unreasonable exactions, reduction in value of property, delay in undertaking any action, or asserting any other
liability for any matter or for any cause which existed or which the Developer knew of or should
have known of prior to the time of entering into this Agreement, Developer’s sole remedies being
as specifically provided above. Developer acknowledges that such remedies are adequate to protect Developer’s interest hereunder and the waiver made herein is made in consideration of
the obligations assumed by the City hereunder.
7.2 Declaration of Default & Opportunity to Cure.
a. 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 7.1. 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 Section 7.2.
b. 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
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(“Defaulting Party”) to perform any material duty or obligation of the
Defaulting Party 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 “Default Notice’).
The 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
and, as long as the Defaulting Party does each of the following:
(1) 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;
(i) Notifies the Non-Defaulting Party of the Defaulting Party’s
proposed cause of action to cure the default;
(iii) | Promptly commences to cure the default within the thirty (30) day
period;
(iv) Makes periodic reports to the Non-Defaulting Party as to the
progress of the program of cure; and
(v) | Diligently prosecutes such cure to completion.
Then the Defaulting Party shall not be deemed in breach of this Agreement.
7.3 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 Nondefaulting Party may seek termination of this Agreement, in which case the Non-
defaulting Party shall 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 within thirty (30) days and state the
reasons therefor (including a copy of any specific charges of default or a copy of the Default
Notice) and a description of the evidence upon which the decision to terminate is based. Once
the Termination Notice has been issued, the Nondefaulting Party’s election to terminate this
Agreement will only be rescinded if so determined by the City Council pursuant to Section 7.4.
7.4 Hearing Opportunity Prior to Termination. If Developer is the Defaulting
Party pursuant to Section 7.3, then the City’s Termination Notice to Developer shall additionally
specify that Developer has the right to a hearing prior to the City’s termination of any
Agreements (“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 limited to the Ralph M.
Brown Act, Government Code Sections 54950-54963. At said Termination Hearing, Developer
shall have the right to present evidence to demonstrate that it is not in default and to rebut any
01007.0018/811705.3 16
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; or
b. Determine that Developer 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 Developer’s fulfillment of said conditions will waive or cure any default.
Findings of a default or a conditional default must be based upon substantial evidence supporting the following two findings: (i) that a default in fact occurred
and has continued to exist without timely cure, and (ii) that such default has caused or will cause a material breach of this Agreement and/or a substantial negative impact upon public health, safety and welfare, the environment, or such other
interests that the City and public may have in the Project.
7.5 Rights and Duties Following Termination. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to (1) any obligations to have been performed prior to said termination, (ii) any default in the performance of the provisions of this Agreement which has occurred prior to said termination, or (11) the indemnification provisions of Article 8. Termination of this Agreement shall not affect either party’s rights or obligations with respect to any Development Approval granted prior to such termination.
7.6 Waiver of Breach. By not challenging any Development Approval within
ninety (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.
7.7 Interest on Monetary Default. In the event Developer fails to perform any monetary obligation under this Agreement, Developer shall pay interest thereon at the rate of six
and one-half percent (6.5%) per annum from and after the due date of said monetary obligation
until payment is actually received by City.
7.8 Automatic Termination for Developer’s Failure to Acquire Property. This
Agreement shall automatically terminate with no action needing to be taken by either Party in
the event Developer should fail to or otherwise does not acquire legal title to the Property within
one-hundred twenty (120) days following approval of the Adopting Ordinance and all associated
appeal periods. If this Agreement is terminated under this Section 7.8, all other Entitlements shall
automatically terminate and become invalidated concurrently. The Developer may request an administrative extension of up to one year from the Effective Date from the Community Development Director should there be any unforeseen delay in the acquisition of legal title to the Property. Upon Developer’s payment of a $250,000.00 extension fee, the Community Development Director shall grant such one year extension if Developer can demonstrative to the reasonable satisfaction of the Community Development Director that it is making active and
good faith progress towards acquiring legal title to the Property.
01007.0018/811705.3 17
8. THIRD PARTY LITIGATION.
8.1 Indemnity Obligations on Third-Party Claims
a. Developer hereby agrees to indemnify, defend, and hold City, its officers, agents, employees, members of its City Council and any commission,
partners and representatives ("City Indemnitees") harmless from any and all claims, actions, suits, damages, liabilities, and any other actions or proceedings (whether legal, equitable, declaratory, administrative, or adjudicatory in nature) (collectively, "Claims"), asserted against City or City Indemnitees arising out of or in connection with this Agreement, including, without limitation, (i) City's approval of this Agreement and all documents related to any of the Project Development Approvals, Conditions of Approval, permits, or other entitlements for the Project and issues related thereto (including, City’s determinations regarding CEQA compliance and/or any other development incentives granted to the Project),
(11) the development of the Project, and (iii) liability for damage or claims for damage for personal injury including death and claims for property
damage which may arise from, or are attributable to, Developer's (or
Developer’s contractors, subcontractors, agents, employees or other persons acting on Developer's behalf ("Developer's Representatives")) performance of its obligations under this Agreement and/or the negligence or misconduct of Developer or of Developer’s Representatives which relate
to the Project or the Property.
b. The City shall provide the Developer with notice of the pendency of such Claims within ten (10) days of being served or otherwise notified of such Claims and shall request that the Developer defend such action. The Developer may utilize the City Attorney’s office or use legal counsel of its
choosing, but shall reimburse the City for any necessary legal cost incurred
by City. In all cases, City shall have the right to utilize the City Attomey’s
office in any legal action. The Developer shall provide a deposit in the amount of 100% of the City’s estimate, in its sole and absolute discretion, of the cost of litigation, including the cost of any award of attorney’s fees. If the Developer fails to provide the deposit, and after compliance with the
provisions of this Section 8.1, the City may abandon the action and the Developer shall pay all 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. City agrees that it shall fully cooperate with the Developer in the defense of any matter in which the Developer is defending
and/or holding the City harmless.
8.2 Hold Harmless: Developer’s Construction, and Other Activities. The Developer shall defend, save and hold the City and its elected and appointed boards, commissions, officers, agents, and employees harmless from any and all claims, costs (including attorneys’ fees) and liability for any damages, personal injury or death, which may arise, directly
01007.0018/811705.3 18
or indirectly, from the Developer’s or the Developer’s agents, contractors, subcontractors,
agents, or employees’ Project construction activities and operations under this Agreement,
whether such Project construction activities and 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 shall be construed to mean that the Developer shall
hold the City harmless and/or defend it from any claims arising from, or alleged to arise from, the sole negligence or gross or willful misconduct of the City’s officers, employees, agents,
contractors of subcontractors.
8.3 Loss and Damage. City shall not be liable for any damage to property of
Developer or of others located on the Property, nor for the loss of or damage to any property of
Developer or of others by theft or otherwise. City shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, steam, gas, electricity, water, rain, dampness or leaks from any part of the Property or from the pipes or plumbing, or from the street, or from any environmental or soil contamination or hazard, or from any other latent or patent defect in
the soil, subsurface or physical condition of the Property, or by any other cause of whatsoever nature. Nothing herein shall be construed to mean that the Developer shall bear liability for the sole negligence or gross or willful misconduct of the City’s officers, employees, agents, contractors of subcontractors.
8.4 Non-liability of City Officers and Employees. No official, agent, contractor, or employee of the City shall be personally liable to the Developer, or any successor in interest,
in the event of any default or breach by the City or for any amount which may become due to
the Developer or to its successor, or for breach of any obligation of the terms of this Agreement.
8.5 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which affects the financial interest of any
corporation, partnership or association in which he or she is, directly or indirectly, interested, in
violation of any state statute or regulation.
8.6 Survival of Indemnity Obligations. All indemnity provisions set forth in this
Agreement shall survive termination of this Agreement for any reason other than a default by City.
8.7 Survival of Indemnity Obligations. All indemnity provisions set forth in this
Agreement shall survive expiration or sooner termination of this Agreement for any reason other
than a default by City.
9, INSURANCE.
9.1 Types of Insurance.
a. Public Liability Insurance. Prior to commencement and until completion
of construction of improvements by Developer on the Property, Developer
shall, at its sole cost and expense, keep or cause to be kept in force, for the
mutual benefit of City and Developer, comprehensive broad form general
public liability insurance against claims and liability for personal injury or
01007.0018/811705.3 19
9.2
death arising from the use, occupancy, disuse or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property or for property damage. Such policy shall provide protection of a
least $6,000,000 for bodily injury or death to any one person, at least
$6,000,000 for any one accident or occurrence, and at least $6,000,000 for
property damage, and $7,000,000 in the aggregate.
Worker’s Compensation. To the extent Developer and its contractors utilize employees for any portion of the Project, Developer and such
contractors shall also furnish or cause to be furnished to City evidence reasonably satisfactory to it that Developer and 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.
Automobile Liability Insurance. Developer shall ensure that all contractors with whom Developer has contracted for the performance of any work for which Developer is responsible hereunder maintains automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of the
Developer arising out of or in connection with work to be performed under
this Agreement, including coverage for any owned, hired, non-owned or
rented vehicles, in an amount not less than $5,000,000 combined single limit
for each accident.
Pollution Liability Insurance. Environmental Impairment Liability
Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to City providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit
shall be no less than $1,000,000 dollars per claim and $2,000,000 in the aggregate. All activities contemplated in this Agreement shall be specifically scheduled on the policy as “covered operations.” The policy shall provide coverage for the hauling of waste from the project site to the
final disposal location, including non-owned disposal sites.
Other Insurance. Developer may procure and maintain any insurance not
required by this Agreement, but all such insurance shall be subject to all of the provisions hereof pertaining to insurance and shall be for the benefit of
City and Developer.
Insurance Policy Form, Sufficiency, Content, and Insurer. All insurance required by express provisions hereof shall be carried only by responsible insurance companies licensed and admitted to do business by California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VIII or better, unless waived by City. All such policies shall be non- assessable and shall contain language, to the extent obtainable, to the effect that (1) 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
01007.0018/811705.3 20
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 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 all policies of insurance required to be procured by the terms of this Agreement, except for all insurance required by Developer’s contractors, both City and Developer shall be named as an additional insured. Moreover, the insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. In the event the City’s Risk Manager determines that the use, activities or condition of the Property, improvements or adjoining areas or ways, affected by such use of the Property under this Agreement creates an increased or decreased risk of loss to the City, Developer agrees that the minimum limits of the insurance policies required by Section 9.1 may be changed accordingly upon receipt of written notice from the City’s Risk Manager; provided that Developer shall have the right to appeal a determination of increased coverage to the City Council of City within ten (10) days of receipt of notice from the City’s Risk Manager.
9.3 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 together with endorsements 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.
C. 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.
9.4 Waiver of Subrogation. Developer agrees that it shall not make any claim against, or seek to recover from City or its agents, servants, or employees, for any loss or damage to Developer or to any person or property, except as specifically provided hereunder and Developer shall give notice to any insurance carrier of the foregoing waiver of subrogation, and obtain from such carrier, a waiver of right to recovery against City, its agents and employees.
9.5 Broader Coverages and Higher Limits. Notwithstanding anything else herein to the contrary, if Developer maintains broader coverages and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverages and/or higher limits maintained by Developer.
01007.0018/811705.3 21
10. MORTGAGEE PROTECTION.
10.1 The parties agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed, of trust or other security device securing financing with respect to the Property. City acknowledges that the lenders providing such financing may require certain Agreement interpretations, modifications, and estoppel certificates and City agrees upon request, from time to time, to communicate and meet with Developer and representatives of such lenders to negotiate in good faith any such estoppel certificates and/or requests for interpretation or modification. Subject to compliance with applicable laws, City will not unreasonably withhold its consent to any such requested estoppel certificate, interpretation or modification provided City determines such estoppel certificate, interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the rights and privileges set forth in this Article 10.
10.2 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
10.3 The Mortgagee of any Mortgage or deed of trust encumbering the Property, or any part thereof, where Mortgagee has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Developer in the performance of Developer’s obligations under this Agreement.
10.4 If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Developer under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Developer. The Mortgagee shall have the right, but not the obligation, to cure the default during the period that is the longer of (i) the remaining cure period allowed such party under this Agreement, or (11) sixty (60) days.
10.5 Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the Mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
11. ASSIGNMENTS.
11.1 The experience, knowledge, capability and reputation of Developer, its principals, employees and affiliates were a substantial inducement for the City to enter into this Agreement. The Developer may sell, transfer, lease or assign this Agreement, the Property, or any part thereof (such sale, transfer, lease or assignment shall be referred to as an “Assignment”) with the prior written consent of the Community Development Director, which consent may not be unreasonably withheld, after providing reasonable documentation and evidence demonstrating that the person or entity to whom any of the rights or privileges granted herein are to be sold, transferred, leased, assigned, hypothecated, encumbered, merged, or consolidated, meets the following criteria: (i) the transferee has the financial strength and capability to perform its obligations under the Agreement, (11) reasonably satisfactory evidence that the transferee has the experience and expertise to operate the
01007.0018/811705.3 22
Project, including reasonably satisfactory evidence that the transferee has experience with operations and projects with a similar scale of this Project; and (iii) reasonably satisfactory evidence that the transferee’s key principals have no felony convictions. The proposed transferee shall execute and deliver to the City an assumption agreement assuming
Developer’s Project obligations, which assumption agreement shall be in a form approved by
the City Manager and City Attorney. Notwithstanding the foregoing, if Developer should seek the Assignment prior to making the $175,000 and $250,000 payments to City pursuant to Sections 3.3 and 3.4, Developer must make such payments to City prior to completion of the Assignment. Developer making these payments will be a condition precedent to the
Community Development Director providing consent to the Assignment.
11.2 City Consideration of Requested Assignment. The City agrees that it will
not unreasonably withhold, condition, or delay approval of a request for approval of an
Assignment required pursuant to this Article 11, provided that:
da.
11.3
Developer delivers written notice to the City requesting that approval prior
to the completion of the Assignment (the “Consent Request”); and
The Assignment is not completed until either (i) City has provided its
written consent or (ii) sixty (60) days have passed after delivery by
Developer to City of the Consent Request without the City having rejected
the Consent Request in writing.
The Consent Request shall be accompanied by (i) a proposed draft of the
Assignment and Assumption Agreement described in Section 11.3, in a
form acceptable to the City Attorney and City Manager, and (ii) evidence
regarding the proposed assignee’s development and/or operational
qualifications and experience and its financial commitments and resources
in sufficient detail to enable the City to evaluate the proposed assignee’s
ability to complete the Project.
Assignments Permitted Without City’s Consent. Notwithstanding any other
provision of this Agreement, Assignments related to the following property conveyances and
other transactions shall not require City consent:
a.
01007.0018/811705.3
The granting of easements or permits to facilitate construction of the Project
or any public improvements.
The granting of easements or permits for utility purposes.
Transactions for financing purposes, including the grant of a deed of trust
to secure the funds necessary, but not to exceed the amounts reasonably
required, for land acquisition, construction, and/or permanent financing of
any portion of the Project.
The acquisition of some or all of the Property by a Mortgagee in its capacity
as a Mortgagee, such as through foreclosure or a deed in lieu of foreclosure.
23
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.
A sale or transfer between members of the same family, or transfers to a trust, testamentary or otherwise, in which the beneficiaries consist primarily of family members of the trustor, or transfers to a corporation or partnership in which the family members or shareholders of the transferor own at least ten percent (10%) of the present equity ownership and/or at least fifty percent (50%) of the voting control of Developer.
If Developer is a trust, corporation, real estate investment trust, or partnership, a transfer of stock or other interests, provided there is no material change in the actual management and control of Developer.
Transactions with any member, partner, officer, employee, or affiliate of Developer or any trust or family member, provided that, following the transaction, the management of Developer on the Effective Date shall,
subject to normal and customary business practices and personnel changes, remain the primary Developer representative(s) for purposes of
communication with the City.
11.4 Effect of Assignment. Unless otherwise stated within the Assignment, upon an Assignment:
a. The assignee shall be liable for the performance of all remaining obligations of Developer with respect to those portions of the Property which are transferred (the “Transferred Property”), but shall have no obligations with respect to any portions of the Property not conveyed (the “Retained
Property’).
The owner of the Retained Property shall be liable for the performance of all obligations of Developer with respect to the Retained Property, but shall have no further obligations with respect to the Transferred Property.
The Assignee’s exercise, use, and enjoyment of the Transferred Property
shall be subject to the terms of this Agreement to the same extent as if the
Assignee were the Developer.
12, AMENDMENT AND MODIFICATION.
12.1
Agreement.
01007.0018/811705.3
Initiation of Amendment. Either party may propose an amendment to this
24
12.2 Procedure. Except as set forth in Section 12.4, 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 as set forth in Government Code Section 65867.
12.3 Consent. Except as expressly provided in this Agreement, no cancellation of or 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.
12.4 Administrative Minor Project Modifications. Notwithstanding any other provision and/or condition of approval contained in any Development Approvals, Minor Modifications to this Agreement, the Project, and/or the Development plans shall be made ministerially, with the approval of the Director. Such “Minor Modifications” shall be defined as any modifications to this Agreement, the Project and/or the Development plans that do not (1) change the proposed uses analyzed in the MND, (ii) increase the total amount of Square footage within the Project beyond 121,775 square feet, (iii) increase building heights within the Property in comparison to what was identified on the Development plans by more than ten (10) percent and/or (iv) reduce the number of parking stalls as depicted on the Development plans by
more than ten (10) percent. However, for the avoidance of doubt, under no circumstances will a deviation of architectural designs or details that is not in substantial conformance with the approved set of plans and which are not approved in writing by the Community Development
Director, be deemed a Minor Modification.
12.5 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.
12.6 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.
13. MISCELLANEOUS PROVISIONS.
13.1 Recordation. The City Clerk shall cause a copy of this Agreement to be recorded against the Property with the County Recorder within ten (10) calendar days after the Execution Date. The failure of the City to sign and/or record this Agreement shall not affect the
validity of this Agreement.
13.2 Notices. Notices and correspondence required or permitted by this Agreement shall be in writing and either personally delivered or sent by registered, certified, or overnight mail or delivery service. Notices shall be deemed received upon personal delivery or on the second business day after registered, certified, or overnight mailing or delivery, or email if such email notice is acknowledged as received by the receiving party. Notices shall be addressed as follows:
To City: City of Carson
701 East Carson Street
01007.0018/811705.3 25
Carson, California 90745
Attn: Planning Manager
With copy to: Aleshire & Wynder
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Fax: 949-223-1180
Attn: Sunny Soltani
To Developer: 21611 Perry Street LLC,
659 N. Robertson Blvd
West Hollywood, CA 90069
Attn: Darren Embry
A Party may change its address by giving written notice to the other Party. Thereafter, Notices shall be addressed and transmitted to the new address.
13.3 Estoppel Certificates. Either Party (or a Mortgagee) 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 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 City Manager may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate may be relied on by
assignees and Mortgagees.
13.4 Project as a Private Undertaking. It is specifically understood and agreed by the Parties that the Project is a private development, that neither Party is acting as the agent of the other in any respect, and that each Party is an independent contracting entity with respect to this Agreement. The only relationship between City and Developer is that of a government entity regulating the development of property owned by a private party. City agrees that by its approval of, and entering into, this Agreement that it is not taking any action which would transform this private Development into a “public work” project, and that nothing herein shall be interpreted to convey upon Developer any benefit which would transform Developer’s private project into a public work project, it being understood that this Agreement is entered into by City and Developer upon the exchange of consideration described in this Agreement, including the Recitals to this Agreement, and that City is receiving by and through this Agreement the full measure of benefit in exchange for the burdens placed on Developer by this Agreement, including but not limited to Developer’s obligation to provide the public improvements set forth herein.
01007.0018/811705.3 26
13.5 Eminent Domain. No provision of this Agreement shall be construed to limit
or restrict the exercise by City of its power of eminent domain.
13.6 Entire Agreement. This Agreement represents the entire agreement of the
Parties with respect to the subject matter of this Agreement. No testimony or evidence of any
such representations, understandings or covenants shall be admissible in any proceeding of any
kind or nature to interpret or determine the terms or conditions of this Agreement.
13.7 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.
13.8 Severability. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform
taking into consideration the purposes of this Agreement.
13.9 Covenant Not To Sue. The parties to this Agreement, and each of them, agree
that this Agreement and each term hereof is legal, valid, binding, and enforceable. The parties
to this Agreement, and each of them, hereby covenant and agree that each of them will not
commence, maintain, or prosecute any claim, demand, cause of action, suit, or other proceeding
against any other party to this Agreement, in law or in equity, or based on any allegation or
assertion in any such action, that this Agreement or any term hereof is void, invalid, or
unenforceable.
13.10 Force Majeure. Neither Party shall be deemed to be in default where failure
or delay in performance of any of its obligations under this Agreement is caused by earthquakes,
other acts of God, fires, wars, terrorism, riots or similar hostilities, strikes, and other labor
difficulties beyond the Party’s control, government regulations, pandemics, government-ordered
quarantine, court actions (such as restraining orders or injunctions), or other causes beyond the
Party’s reasonable control. If any such events shall occur, the term of this Agreement and the
time for performance shall be extended for the duration of the impacts on the Project of each
such event.
13.11 Waiver. All waivers of performance must be in a writing signed by the Party
granting the waiver. Failure by a Party to insist upon the strict performance of any provision of
this Agreement shall not be a waiver of future performance of the same or any other provision
of this Agreement.
13.12 Time of Essence. Time is of the essence in the performance of the provisions
of this Agreement as to which time is an element.
13.13 Governing Law and Venue. This Agreement shall be governed and
interpreted in accordance with California law, with venue for any litigation concerning this
Agreement in Los Angeles, California.
13.14 Interpretation. This Agreement shall be construed as a whole according to
its fair language and common meaning to achieve the objectives and purposes of the parties
hereto, and the rule of construction to the effect that ambiguities are to be resolved against the
01007.0018/811705.3 27
drafting party or in favor of City shall not be employed in interpreting this Agreement, all parties
having been represented by counsel in the negotiation and preparation hereof.
13.15 Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party, if not an individual, is duly
organized and existing, (11) they are duly authorized to execute and deliver this Agreement on
behalf of said party, (iii) by so executing this Agreement such party is formally bound to the
provisions of this Agreement, and (iv) the entering into this Agreement does not violate any
provision of any other agreement to which such party is bound.
13.16 Attorneys’ 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 attorneys’ fees. Attorneys’ fees shall include attorneys’ 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
commencement of such action and shall be enforceable whether or not such action is prosecuted
to a final judgment.
13.17 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.
13.18 No Brokers. City and Developer represent and warrant to the other that neither
has employed any broker and/or finder to represent its interest in this transaction. Each party
agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorney’s fees) in any manner connected with a claim asserted by any individual or entity for any commission or finder’s fee
in connection with this Agreement arising out of agreements by the indemnifying party to pay
any commission or finder’s fee.
13.19 Joint and Several Liability. In the event Developer should sell, transfer, lease
or assign this Agreement, the Property, or any part thereof, Developer shall bear ultimate responsibility for all obligations, conditions, and restrictions set forth under this Agreement, it
being understood that both Developer and any transferee, assignee, or lessee shall be jointly and
severally liable.
13.20 Compliance with Laws. Developer must comply with all federal, state and
local laws and regulations, including the City’s Municipal Code.
13.21 Counterparts. This Agreement may be executed by the Parties in
counterparts, which together shall have the same effect as if each of the Parties had executed the
Same instrument.
[SIGNATURES ON FOLLOWING PAGE(S)]
01007.0018/811705.3 28
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day
and year first set forth above.
CITY
CITY OF CARSON a municipal corporation
Lula Davis-Holmes, Mayor
ATTEST
Dr. Khaleah K. Bradshaw, City Clerk
APPROVED AS TO FORM
ALESHIRE & WYNDER, LLP
Sunny K. Soltani, City Attorney
DEVELOPER
21611 PERRY STREET LLC, a California
limited liability company
By:
Name:
Title:
Name:
Title:
Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT’S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT’S BUSINESS ENTITY.
01007.0018/811705.3 29
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2022, before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT q INDIVIDUAL
7 CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TITLE(S) q PARTNER(S) [J LIMITED
q GENERAL NUMBER OF PAGES q ATTORNEY-IN-FACT
0 TRUSTEE(S)
q GUARDIAN/CONSERVATOR DATE OF DOCUMENT
q OTHER
SIGNER(S) OTHER THAN NAMED ABOVE SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
01007.0018/811705.3 30
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On , 2022, before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT q INDIVIDUAL
q CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT TITLE(S) J PARTNER(S) [J LIMITED
Cl GENERAL NUMBER OF PAGES q ATTORNEY-IN-FACT
q TRUSTEE(S)
q GUARDIAN/CONSERVATOR DATE OF DOCUMENT
C] OTHER
SIGNER(S) OTHER THAN NAMED ABOVE SIGNER IS REPRESENTING:
(NAME OF PERSON(S) OR ENTITY(IES))
01007.0018/811705.3 3]
EXHIBIT “A”
PROPERTY LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARSON, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORN IA, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 15 OF TRACT NO. 4054, IN THE CITY OF CARSON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 44 PAGE 39 OF MAPS, .IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY LINE OF THE SOUTHERLY 20 FEET OF SAID LOT WITH A LINE PARALLEL WITH AND NORTHEASTERLY 27 FEET, MEASURED AT RIGHT ANGLES, FROM THE SOUTHWESTERLY LINE OF SAID LOT; THENCE ALONG SAID PARALLEL LINE NORTH 39° 21' 48" WEST 245.64 FEET; THENCE SOUTH 89° 22' 27" WEST 25.48 FEET; THENCE NORTH
39° 21' 48" WEST 2.11 FEET; THENCE NORTH 0° 37' 33" WEST 17.38 FEET TO A LINE PARALLEL WITH AND NORTHEASTERLY 18 F EET, MEASURED AT RIGHT ANGLES, FROM SAID SOUTHWESTERLY LINE; THENCE ALONG SAID LAST MENTIONED PARALLEL LINE NORTH 39° 21' 48" WEST TO THE SOUTHERLY LINE OF TRACT NO. 29360, AS PER MAP RECORDED IN BOOK 734, PAGE 45 OF MAPS: THENCE EASTERLY ALONG SAID SOUTHERLY LINE TO THE EASTERLY LINE OF SAID LOT 15; THENCE SOUTHERLY ALONG SAID EASTERLY LINE TO SAID NORTHERLY LINE; THENCE WESTERLY ALONG SAID NORTHERLY LINE TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION OF SAID LAND DESIGNATED AS PARCELS 2-36 INCLUSIVE IN THE FINAL DECREE OF CONDEMNATION ENTERED IN SUPERIOR COURT, LOS ANGELES COUNTY, CASE NO. 909461, A CERTIFIED COPY OF WHICH WAS RECORDED AUGUST 26, 1969, AS INSTRUMENT NO. 2734, IN BOOK D-4478, PAGE 350, OFFICIAL RECORDS OF SAID COUNTY AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE EASTERLY LINE OF SAID LOT WITH THE NORTHERLY LINE OF THE SOUTHERLY 20 FEET OF SAID LOT; THENCE WESTERLY ALONG SAID NORTHERLY LINE 19.99 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 15 FEET, TANGENT TO SAID NORTHERLY LINE AND TANGENT TO THE WESTERLY LINE OF THE EASTERLY 5 FEET OF SAID LOT; THENCE NORTHEASTERLY ALONG ‘SAID CURVE 23.55 FEET TO SAID WESTERLY LIN E; THENCE EASTERLY AT RIGHT
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ANGLES FROM SAID WESTERLY LINE 5 FEET TO SAID EASTERLY LINE; THENCE SOUTHERLY ALONG SAID EASTERLY LINE 14.99 FEET TO THE POINT OF BEGINNING.
ALSO, EXCEPT 1/2 OF ALL OIL, GAS, HYDROCARBON AND MINERAL SUBSTANCES IN AND UNDER SAID LAND, BUT WITHOUT RIGHT OF SURFACE ENTRY, AS RESERVED BY MARY M. REGAN, IN DEED RECORDED OCTOBER Any 1957 AS INSTRUMENT NO. 504, IN BOOK 44767, PAGE 300, OFFICIAL RECORDS.
APNs: 7327-010-014 & 015
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