HomeMy Public PortalAboutA2010-12-21LRA m 41\ LYNWOOD REDEVELOPMENT AGENCY
o 660,„ 11330 BULLIS ROAD LYNWOOD, CALIFORNIA 90262 -3845 (310) 603 -0220
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Aide Castro, Chair
Jim Morton, Vice Chair
Alfredo Flores, Member
Ramon Rodriguez, Member
Maria T. Santillan, Member
This Agenda contains a brief general description of each item to be considered. Copies of the Staff
reports or other written documentation relating to each item of business referred to on the Agenda are on
file in the Office of the City Clerk and are available for public inspection. Materials related to an item on
this Agenda submitted to the Agency Board after distribution of the Agenda packet are available for public
inspection at the Agency Secretary's office at the above address during normal business hours. Any
person who has a question concerning any of the agenda items may call the City Manager at (310) 603-
0220, ext. 200.
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AGENDA RE
LYNWOOD REDEVELOPMENT AGENCY
December 21, 2010 DEC 1 6 2010
REGULAR MEETING CITY OF LYNWOOD
5:00 P.M. CITY CLERKS OFFICE
LYNWOOD CITY HALL Mfr,Q Qk;ROYnZ
11330 BULLIS ROAD Cilfri ,Q ',- L c -
AIDE CASTRO �-�
CHAIR
JIM MORTON ALFREDO FLORES
VICE CHAIR MEMBER
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RAMON RODRIGUEZ MARIA T. SANTILLAN
MEMBER MEMBER
ROGER L. HALEY
EXECUTIVE DIRECTOR
FRED GALANTE
AGENCY COUNSEL
OPENING CEREMONIES:
A. Call Meeting to Order
B. Roll Call (FLORES - RODRIGUEZ - SANTILLAN- MORTON - CASTRO)
C. Certification of Agenda Posting by Secretary
PUBLIC ORAL COMMUNICATIONS
(Regarding Agenda Items Only)
PUBLIC ORAL COMMUNICATIONS
PUBLIC HEARING
1. JOINT PUBLIC HEARING FOR CONSIDERATION OF A PROPOSED DISPOSITION AND
DEVELOPMENT AGREEMENT ( "DDA ").
Comment:
For Agency consideration is a draft DDA between the Redevelopment Agency and J.B.
Group, LLC and the corresponding 33433 Summary Report, which has been on display in
the office of the Redevelopment Department, announced in the local newspaper, and on the
City's website for the requisite time as mandated by the California Health and Safety Code.
The project will consist of the construction of 6 or 7 new 2 -story single - family detached 3
bedrooms and 2 bathrooms homes and be at least 1,600 square feet and will be sold at fair
market value or alternatively, the Developer may construct a multi - family rental complex
containing 16 or 17 separate residential units.
Recommendation:
Staff recommends that after consideration the Agency and City close the Public Hearing and
adopts the resolution titled, "A JOINT RESOLUTION OF THE CITY COUNCIL AND THE
LYNWOOD REDEVELOPMENT AGENCY OF THE CITY OF LYNWOOD APPROVING
THE DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) BETWEEN THE
LYNWOOD REDEVELOPMENT AGENCY (AGENCY) AND J.B. DEVELOPMENT GROUP,
LLC (DEVELOPER) FOR THE SALE AND DEVELOPMENT OF AGENCY OWNED
PROPERTY COMMONLY KNOWN AS THE MURIEUTHORSON SITE AND ACCEPTING
THE 33433 SUMMARY REPORT ".
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CONSENT CALENDAR
All matters listed under the Consent Calendar will be acted upon by one motion affirming the
action recommended on the agenda. There will be no separate discussion on these items prior
to voting unless members of the Agency or staff request specific items are removed from the
consent calendar for separate action.
2. MINUTES OF THE PREVIOUS MEETINGS:
Regular Meeting of November 16, 2010
Special Meeting of November 30, 2010
3. RESOLUTION OF THE LYNWOOD REDEVELOPMENT AGENCY OF LYNWOOD,
CALIFORNIA, ALLOWING AND APPROVING THE DEMANDS AND WARRANTS.
4. APPROVAL OF RETAINER AGREEMENT WITH LAW FIRM OF COX, CASTLE &
NICHOLSON FOR SERVICES RELATED TO REMEDIATION ON THE PROPOSED
IMPERIAL HIGHWAY BROWNSFIELD AREA."
Comments:
Redevelopment Agency staff requested a proposal from the law firm of Cox Castle &
Nicholson ( "CCN) that currently represents M +D Properties, Plaza Mexico's developer and
operator, to assist in compelling responsible parties in the proposed Plaza Mexico
expansion area to remediate contaminated properties.
Recommendation:
Staff recommends that the Agency adopt the attached resolution entitled "A RESOLUTION
OF THE AGENCY BOARD OF THE LYNWOOD REDEVELOMENT AGENCY
APPROVING THE RETAINER AGREEMENT WITH LAW FIRM OF COX, CASTLE &
NICHOLSON FOR LEGAL SERVICES RELATED TO REMEDIATION ON THE
PROPOSED IMPERIAL HIGHWAY BROWNSFIELD AREA."
5 APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH MG RESOLUTIONS,
INC. ENVIRONMENTAL CONSULTING SERVICES REGARDING THE PROJECT AT
LONG BEACH AND IMPERIAL WITH DEVELOPER M&A GABAEE
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Comments:
In accordance with the July 6, 2010 Exclusive Negotiating Agreement between the Agency
and M &A Gabaee, the Agency sought proposals from consultants to prepare the analysis
required under the California Environmental Quality Act ( "CEQA ") related to the proposed
commercial retail project bounded by East Imperial Highway, Long Beach Boulevard,
Sanborn and California Avenue in the City of Lynwood. The Agency received 2 proposals,
one from the Harvey Meyerhoff Consulting Group and the other from MG Resolutions, Inc.
to prepare the required CEQA analysis. Agency staff recommend that the Agency Board
retain MG Resolutions insofar as its proposal provides the most comprehensive and cost
effective proposal.
Recommendation:
Staff recommends that the Agency adopt the attached resolution entitled: "A RESOLUTION
OF THE AGENCY BOARD OF THE LYNWOOD REDEVELOPMENT AGENCY
APPROVING THE CONSULTING SERVICES AGREEMENT WITH MG RESOLUTIONS
INC. FOR THE PREPARATION OF THE ANALYSIS UNDER THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT REGARDING THE PROPOSED PROJECT AT LONG
BEACH AND IMPERIAL WITH DEVELOPER M &A GABAEE."
CLOSED SESSION
NONE
ADJOURNMENT
THE NEXT REGULAR MEETING WILL BE HELD ON JANUARY 4, 2011 AT 5:00 P.M. AT THE
COUNCIL CHAMBERS OF CITY HALL, 11330 BULLIS ROAD, LYNWOOD, CALIFORNIA.
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4 „, ,
u ) 'i AGENDA STAFF REPORT
yli, ,
DATE: December 21, 2010
TO: Honorable Mayor and Members of the City Council
Honorable Chair and Members of the Agency Board
APPROVED BY: Roger L. Haley, Executive Director /City Managi
I II
PREPARED BY: Sarah Magana Withers, Director of Redev- opme i
Bruno NauIls, Redevelopment Associat: 0
SUBJECT: Joint Public Hearing for consideration of a proposed
Disposition and Development Agreement ( "DDA ")
Recommendation:
Staff recommends that after consideration the Agency and the City close the
Public Hearing and adopts the resolution titled, "A JOINT RESOLUTION OF THE
CITY COUNCIL AND LYNWOOD REDEVELOPMENT AGENCY OF THE CITY
OF LYNWOOD APPROVING THE DISPOSITION AND DEVELOPMENT
AGREEMENT (DDA) BETWEEN THE LYNWOOD REDEVELOPMENT
AGENCY (AGENCY) AND J.B. DEVELOPMENT GROUP, LLC (DEVELOPER)
FOR THE SALE AND DEVELOPMENT OF AGENCY OWNED PROPERTY
COMMONLY KNOWN AS THE MURIEUTHORSON SITE AND ACCEPTING
THE 33433 SUMMARY REPORT ".
Background:
1. The Agency currently owns the property ( "Property"), which is the subject
of the proposed project and DDA. The Agency purchased the Property
from CalTrans in the amount of $210,000 in 1987. The property has been
tax - exempt ever since the Property was purchased by Cal Trans for the
construction of the 1 -105 freeway.
2. The property is located between Muriel Drive and Thorson Ave adjacent to
the south side of the 1 -105 Freeway. The lot size is approximately 41,470
------- - square feet.
3. The City of Lynwood lost a drastic amount of housing units (over 1,200
units) as a result of the development of the 1 -105 Freeway. In addition, the
City is required to meet its Regional Housing Needs Allocation (RHNA). AGENDA
Currently 363 residential units are required by 2014 as mandated by the ITEM
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State's Housing and Community Development Department. 159 of those
units are not required to be categorized low /moderate.
4. The Property will accommodate 6 to 7 single detached residential units, or
alternately approximately 16 mixed use residential units which may only
put a dent in the City's obligation under the RHNA. However the proposed
project will demonstrate the City's commitment in trying to meets its
obligation.
5. Between the years of 1999 and 2007 there have been attempts to build
residential units at this location but due to circumstances both
unforeseeable and uncontrollable, a successful housing project has not
been developed.
6. The current Developer has agreed to the terms and conditions set forth by
the Agency and the project will be subject to all applicable provisions of the
Lynwood Municipal Code.
7.' Attached for Agency consideration is a draft DDA and 33433 Summary
Report, which has been on display in the office of the Redevelopment
Department, announced in the local newspaper, and on the City's website
for the requisite time as mandated by the California Health and Safety
Code.
Discussion & Analysis:
The project will consist of the construction of 6 or 7 new 2 -story single - family
detached homes with a driveway courtyard between the homes. Each home
shall contain 3 bedrooms and 2 bathrooms and be at least 1,600 square feet and
will be sold at fair market value. The homes will share a private driveway with
outlets to Muriel Drive and Thorson Avenue. Construction will be Type V, wood -
frame construction. Parking for residents and guests will be consistent with City
requirements. Each unit will have a two -car garage, as well as one guest parking
space for each home will be provided on the Site. Landscaping will be
aesthetically pleasing, appropriate for the surrounding neighborhood, and will be
consistent with City requirements. The building construction will utilize materials
that will meet or exceed Title 24 energy standards.
Alternatively, Developer may construct a multi - family rental complex containing
16 or 17 separate residential units, with adequate on -site parking and in
compliance with City all applicable City standards
The subject property has a fair market value of $230,000. This value was
determined by the consultant and appraiser based on recent land sales (See
33433 report). Pursuant to AB 1290, the Agency cannot sell property, regardless
of what the acquisition cost was to the Agency, for less than market value less
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any cost for constraints that would allow the property to be sold at its highest and
best use (Reuse value). The Developer will pay for the full fair market value of
the Property in the amount of $230,000. The arrangement for payment of the
land to the Agency will enable the Developer to move forward with the project
and pay the full value of the land to the Agency approximately ninety (90) days
after the effective date of the Agreement and before the close of escrow.
Fiscal Impact:
The sale of the subject property will impact the Agency by generating $230,000
in revenue for the Project Area 'A' Tax Increment Fund this 2010 -2011 Fiscal
Year.
Coordinated With:
City Manager's Office
Finance and Administration
City Attorney's Office
Attachments:
DDA
33433 Summary Report
Resolution
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DISPOSITION AND DEVELOPMENT AGREEMENT
Between and Among
LYNWOOD REDEVELOPMENT AGENCY,
a public body, corporate and politic
and
J.B. DEVELOPMENT GROUP, LLC,
a California limited liability company
(Muriel Drive and Thorson Avenue, City of Lynwood)
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ( "Agreement ") is entered into as
of the date executed by the Agency, between and among the LYNWOOD REDEVELOPMENT
AGENCY, a public body, corporate and politic ( "Agency "), and J.B. DEVELOPMENT
GROUP, LLC, a California limited liability company ( "Developer "). The parties agree as
follows:
L 0100) PURPOSE OF THE AGREEMENT
A. 0101) Purpose of the Agreement.
This Agreement and the Attachments hereto are intended to benefit the Redevelopment
Plan for Lynwood Redevelopment Project Area A ( "Redevelopment Project Area ") by providing
for the disposition and development of certain real property designated herein as the "Site" and
the development of the "Project" thereon (as those terms are defined herein). The development
of the Site pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the
vital and best interests of the City of Lynwood ( "City ") and the welfare of its residents, and in
accordance with the public purposes and provisions of applicable federal, state and local laws
and requirements.
On May 6, 2008, following a competitive Request for Proposals process, Agency
evaluated the proposers and selected Developer to develop the Project. Although the Agency
intended to create an affordable housing development by assisting with the development
moderate income of owner - occupied dwelling units at the Site, the parties have discovered that
the site is not suitable for development of such assisted units in an economic manner. In fact,
none of the responses to the Request for Proposals offered a development project that would
make sensible, economic and efficient use of the Agency's limited low and moderate income
fund. Moreover, the severe economic recession facing the nation and resulting downward
pressure on real estate prices in Southern California, and Lynwood in particular, have created a
disincentive to restricted - income families from accepting long -term covenants where market -rate
housing can be secured for substantially similar pricing. As such, the Agency does not anticipate
that further investment of low and moderate income housing funds at this Site would be prudent
and in the community's best interests.
Additionally, the Site has remained vacant, underutilized and saddled with housing
foundations and related infrastructure installed by a former prospective developer of the Site,
which improvements have proved unlikely to be useable. This will require additional investment
to make the development of housing feasible and convert the underutilized and thus blighted Site
a successful housing development.
The Agency, therefore, wishes to sell the Site, located between Muriel Drive and Thorson
Avenue, immediately south of the 1 -105 Freeway in the City (APN: 6174 - 008 -901), at its
appraised fair market value and have Developer construct market rate housing to increase the
community's supply of such housing. The residential units that comprise the Project will contain
01095/0013/68828.5
appropriate covenants addressing requirements under the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33000, et seq.) and the Redevelopment Plan.
I1. 0200) DEFINITIONS
The following terms as used in this Agreement shall have the meanings given unless
expressly provided to the contrary:
A. 0201) Buyer/Renter.
The term "Buyer /Renter" shall mean each person or persons who purchase a Single
Family Unit or each renter or renters who rent each unit of the Multi- Family Residential
Complex developed and maintained on the Site.
B. 0202) Agency.
The term "Agency" shall mean the Lynwood Redevelopment Agency.
C. 0203) Agreement.
The term "Agreement" shall mean this entire Disposition and Development Agreement,
including all attachments, which attachments are a part hereof and incorporated herein in their
entirety, and all other documents incorporated herein by reference.
D. ( §204) CEQA.
The term "CEQA" shall mean California Environmental Quality Act. The Project
involves the construction of an in -fill development project, which is an activity that is
Categorically Exempt from CEQA, pursuant to Section 15332 of the CEQA Guidelines.
E. 0205) City.
The term "City" shall mean the City of Lynwood, California.
F. 0206) Closing.
The term "Closing" or "Closing Date" shall mean the closing of the Escrow by the
Escrow Agent distributing the funds and documents received through Escrow to the party
entitled thereto as provided herein and further set forth at Section 403, which closing shall occur
on or before the date established at Section 403 and in the Schedule of Performance.
G. ( §207) Days.
The term "days" shall mean calendar days and the statement of any time period herein
shall be calendar days, and not working days, unless otherwise specified.
H. 0210) Deed.
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MurieVPhorson DDA
01095/0013/68828.5
The term "Deed" or "Grant Deed" shall mean that Grant Deed in substantially the form
attached hereto as Attachment No. 6 by which Agency as Grantor will convey fee title to the Site
to Developer as Grantee.
I. (§ 209) Deposit.
The term "Deposit" shall have the meaning set forth in Section 514 herein.
J.
0210) Effective Date.
The Effective Date of this Agreement shall occur after public hearing and approval
hereof by the Agency and shall mean the date this Agreement is executed on behalf of the
Agency.
K. ( §211) Enforced Delay.
The term "Enforced Delay" shall mean any delay described in Section 803 caused
without fault and beyond the reasonable control of a party, which delay shall justify an extension
of time to perform as provided in Section 803.
L. 0212) Escrow.
The term "Escrow" shall mean the escrow established pursuant to this Agreement for the
conveyance of title to the Site from Agency to Developer.
M. 0213) Escrow Agent.
The term "Escrow Agent" shall mean Lawyers Title Insurance Corporation, 801 S.
Figueroa Street, Suite 870, Los Angeles, CA, 90017, with the escrow officer being Cheryl Greer
who may be contacted at phone (213) 330 -3080, fax 213- 330 -2315.
N. ( §214) Foundations.
The term "Foundations" shall have the meaning set forth in Section B.3 of the Scope of
Development, Attachment No. 4.
0. 0215) Multi - Family Residential Complex.
The term "Multi- Family Residential Complex" shall mean the multi - family complex
containing between 16 and 17 residential units be developed and maintained on the Site, as
further described in the Scope of Development.
P. 0216) Project.
The term "Project" shall mean all of the improvements required to be constructed by
Developer on the Site and each parcel thereof pursuant to this Agreement, including, but not
limited to, the construction of buildings, glass and concrete work, landscaping, construction of
parking areas, and related improvements. The overall Project is more particularly described in
the Scope of Development attached hereto as Attachment No. 4. Upon completion, the Project,
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01095/0013/68828.5
at Developer's option, but subject to securing land use approvals from City, will consist of either
(i) 6 or 7 Single Family Units, or (ii) a Multi - Family Residential Complex containing 16 or 17
separate residential units. The Residential Units will share a private driveway with outlets to
Muriel Drive and Thorson Avenue.
Q. ( §217) Purchase Price.
The term "Purchase Price" shall mean that amount agreed upon by the parties as the price
to be paid by Developer to Agency for the purchase of the Site, which Purchase Price shall be the
amount of Two Hundred Thirty Thousand Dollars ($230,000.00). The Purchase Price shall be
payable before the Close of Escrow in accordance with Section 404 below.
R. ( §218) Redevelopment Plan.
The term "Redevelopment Plan" shall mean the Redevelopment Plan for Redevelopment
Project Area A in the City of Lynwood, as adopted by Ordinance No. 945 of the City Council on
July 10, 1973, as such Redevelopment Plan has been amended from time to time. Agency
hereby warrants and represents that the Redevelopment Plan was validly adopted and is in full
force and effect, that the applicable limitations period for challenging the validity of the
Redevelopment Plan has expired and that the Project is in accordance with and permissible under
the Redevelopment Plan. A copy of the Redevelopment Plan is on file in the office of the City
Clerk of the City, located at 11330 Bullis Road, Lynwood, California 90262. The
Redevelopment Plan is incorporated herein by reference and made a part hereof as though fully
set forth herein.
S. ( §219) Redevelopment Project Area.
The term "Redevelopment Project Area" shall mean the Redevelopment Project Area A
and, located in the City of Lynwood, California. The exact boundary of the Redevelopment
Project Area is specifically described in the Redevelopment Plan.
T. ( §220) Regulatory Agreement.
The term "Regulatory Agreement" shall mean that Regulatory Agreement attached hereto
as Attachment No. 7, running with the land and providing for the proper maintenance of
common facilities and improvements and the management and use of the Project, which also sets
forth the limitations on occupancy, residency or use of the Residential Units.
U. 0221) Release of Construction Covenants.
The term "Release of Construction Covenants" shall mean that document prepared in
accordance with Section 513 of this Agreement, in the form attached as Attachment No. 5, which
shall evidence that the construction and development of the improvements required by this
Agreement have been satisfactorily completed.
V. 0222) Residential Units.
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01095/0013/68828.5
The term "Residential Units" shall mean each dwelling unit of either the Single - Family
Units or Multi- Family Residential Complex developed on the Site.
W. ( §223) Schedule of Performance.
The term "Schedule of Performance" shall mean that certain Schedule of Performance
attached hereto as Attachment No. 3.
X. ( §224) Scope of Development.
The term "Scope of Development" shall mean that certain Scope of Development
attached hereto as Attachment No. 4.
Y. (§ 225) Single Family Units.
The term "Single Family Units" shall mean the 6 or 7 new 2 -story single - family detached
homes containing 3 bedrooms, 2 bathrooms and two car garages to be developed and maintained
on the Site, as further described in the Scope of Development.
Z. (§ 226) Site.
The term "Site" shall mean the parcel of land owned by the Agency, which consists of
approximately 41,470 gross square feet of real property and which shall be transferred to
Developer pursuant to this Agreement to allow Developer to construct the Project. The Site is
legally described on Attachment No. 2.
AA. ( §227) Site Map.
The Project shall be located upon the Site, which is within the City, as shown in the "Site
Map" attached hereto as Attachment No. 1.
BB. ( §228) Title.
The term "Title" shall mean the fee title to the Site which shall be conveyed to Developer
pursuant to the Deed.
CC. ( §229) Title Company.
The term "Title Company" shall mean Lawyers Title Insurance Corporation, 801 S.
Figueroa Street, Suite 870, Los Angeles, CA, 90017, with the title officer being Diane Greer who
may be contacted at (213) 330 -2330.
III. ( §300) PARTIES TO THE AGREEMENT
A. ( §301) Agency.
Agency is a public body, corporate and politic, exercising governmental functions and
powers, organized and existing under the Community Redevelopment Law of the State of
California (Health and Safety Code Section 33000, et seq.). The office of Agency is located at
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Muriel/Thorson DDA
01095/0013/68828 5
11330 Bullis Road, Lynwood, California 90262. The term "Agency," as used in this Agreement,
includes the Lynwood Redevelopment Agency and any assignee of, or successor to, its rights,
powers and responsibilities.
B. ( §302) Developer.
1. Identification. Developer is J.B. DEVELOPMENT GROUP,
LLC, a California limited liability company, or its transferee as described in Section 303.3. The
principal office of Developer for the purposes of this Agreement is located at 8116 Eastern
Avenue, Bell Gardens, CA 90201. Developer warrants and represents to Agency that Developer
will be qualified to do business in good standing under the laws of the State of California and has
all requisite power and authority to carry out Developer's business as now and whenever
conducted and to enter into and perform Developer's obligations under this Agreement.
2. Successors and Assigns. Except as may be expressly provided
herein below, all of the terms, covenants and conditions of this Agreement shall be binding on,
and shall inure to the benefit of, Developer and the permitted successors, assigns and nominees
of Developer as to each portion of the Site. Wherever the term "Developer" is used herein, such
term shall include any permitted successors and assigns of Developer as herein provided.
3. Qualifications. The qualifications and identity of Developer are of
particular concern to the Agency, and it is because of such qualifications and identity that
Agency has entered into this Agreement with Developer. The Agency has considered the
experience, financial capability, and product being marketed by Developer, the Site location and
characteristics, the public costs of acquiring and developing the Site and return on investment,
and the product mix necessary to produce a Project. Based upon these considerations, the
Agency has imposed those restrictions on transfer set forth in this Agreement.
C. 0303) Restrictions on Transfer.
1. Transfer Defined. As used in this section, the term "Transfer"
shall include any assignment, hypothecation, mortgage, pledge, conveyance, or encumbrance of
this Agreement, the Site, or the improvements thereon. A Transfer shall also include the transfer
to any person or group of persons acting in concert of more than twenty -five percent (25 %) of
the present ownership and/or control of Developer in the aggregate, taking all Transfers into
account on a cumulative basis, except transfers of such ownership or control interest between
members of the same immediate family, or Transfers to a trust, testamentary or otherwise, in
which the beneficiaries are limited to members of the Transferor's immediate family. In the
event Developer or its successor is a corporation or trust, such Transfer shall refer to the Transfer
of the issued and outstanding capital stock of Developer, or of beneficial interests of such trust.
In the event that Developer is a limited or general partnership, such Transfer shall refer to the
Transfer of more than twenty -five percent (25 %) of the limited or general partnership interest. In
the event that Developer is a joint venture, such Transfer shall refer to the Transfer of more than
twenty -five percent (25 %) of the ownership and/or control of any such joint venture partner,
taking all Transfers into account on a cumulative basis.
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01095/0013/68828.5
2. Restrictions Prior to Completion. Prior to issuance of the
Release of Construction Covenants, Developer shall not Transfer this Agreement or any of
Developer's rights hereunder, or any interest in the Site or in the improvements thereon, directly
or indirectly, voluntarily or by operation of law, except as provided below, without the prior
written approval of Agency, which shall not be unreasonably withheld, conditioned or delayed,
and if so purported to be Transferred, the same shall be null and void. In considering whether it
will grant approval to any Transfer by Developer of its interest in the Site before the issuance of
the Release of Construction Covenants, which Transfer requires Agency approval, Agency shall
consider factors such as (i) whether the completion or implementation of the Project is
jeopardized; (ii) the financial strength and capability of the proposed assignee to perform
Developer's obligations hereunder; and (iii) the proposed assignee's experience and expertise in
the planning, financing, development, ownership, and operation of similar projects.
In the absence of specific written agreement by Agency, prior to the
issuance of a Release of Construction Covenants, no Transfer by Developer of all or any portion
of its interest in the Site or this Agreement (including without limitation an assignment or
transfer not requiring Agency approval hereunder) shall be deemed to relieve it or any successor
party from any obligations under this Agreement with respect to the completion of the
development of the Project with respect to that portion of the Site which is so transferred. In
addition, no attempted assignment of any of Developer's obligations hereunder shall be effective
unless and until the successor party executes and delivers to Agency an assumption agreement,
in a form approved by the Agency, assuming such obligations.
3. Exceptions. The foregoing prohibition shall not apply to any of
the following:
a. Any mortgage, deed of trust, or other form of conveyance
for financing, as provided in Section 512, but Developer shall notify Agency in advance
of any such mortgage, deed of trust, or other form of conveyance for financing pertaining
to the Site.
b. Any mortgage, deed of trust, or other form of conveyance
for restructuring or refinancing of any amount of indebtedness described in subsection (a)
above, provided that the amount of indebtedness incurred in the restructuring or
refinancing does not exceed the outstanding balance on the debt incurred to finance the
acquisition of and improvements on the Site, including any additional costs for
completion of construction, whether direct or indirect, based upon the estimates of
architects and/or contractors.
c. The granting of easements to any appropriate governmental
agency or utility or permits to facilitate the development of the Site.
d. 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
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01095/0013/68828.5
the control of the voting capital stock of such corporation or all or substantially all of the
assets of such corporation.
e. A sale or Transfer of 49% or more of ownership or control
interest between members of the same immediate family, or Transfers to a trust,
testamentary or otherwise, in which the beneficiaries consist solely of immediate family
members of the Trustor or Transfers to a corporation or partnership in which the
immediate family members or share Agency's of the Transferor have a controlling
majority interest of 51% or more.
4. Restrictions After Completion. It is hereby acknowledged by
Developer and Agency that the Site is being conveyed to the Developer at market value. As
such, subsequent to the issuance of the Release of Construction Covenants, Developer may sell,
Transfer, convey, hypothecate, assign or lease all or any portion of its interest in the Site, subject
only to the Transfer restrictions contained within the Deed or the Regulatory Agreement, as
applicable.
IV. 0400) ACQUISITION AND DISPOSITION OF THE SITE
A. 0401) Purchase Price.
Developer shall acquire the Site from Agency for the Purchase Price of Two Hundred
Thirty Thousand and 00 /100 Dollars ($230,000.00), which represents the fair market value of the
Property, based on the April 19, 2010 appraisal prepared by Fred D. Campagna & Associates,
Developer shall pay the Purchase Price in the manner set forth in Section 405.4 herein.
B. (§ 402)Conveyance of the Site.
In accordance with and subject to all of the terms, covenants and conditions of this
Agreement, Agency agrees to convey the Site to Developer subject to the terms of the
Regulatory Agreement and Developer agrees to accept and develop the Site with the Project as
described in the Scope of Development with the permissible uses as further described in Section
600.
C. ( §403) Escrow.
Escrow shall be opened within the time period specified in the Schedule of Performance.
This Agreement shall constitute the joint escrow instructions of Agency and Developer for the
Site, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the
opening of Escrow. Escrow Agent is empowered to act under these instructions. Agency and
Developer shall promptly prepare, execute, and deliver to the Escrow Agent such additional
escrow instructions consistent with the terms herein as shall be reasonably necessary. No
provision of any additional escrow instructions shall modify this document without specific
written approval of the modifications by both Developer and Agency.
Escrow shall close on or before January 24, 2010 being approximately 30 days
following Agency's approval of this Agreement ( "Closing Date "), unless extended or reduced by
mutual written agreement. The terms "Close of Escrow" or "Closing" are used herein to mean
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the time the Grant Deed (as hereinafter defined) is recorded in the Office of the County Recorder
of Los Angeles County, California. Subject to other provisions of this Agreement, the parties
will endeavor to close before the Closing Date.
D. 0404) Conditions to Close of Escrow for Acquisition.
1. Developer's Conditions to Closing. Developer's obligation to
acquire the Site and to close Escrow hereunder, shall, in addition to any other conditions set forth
herein in favor of Developer, be conditional and contingent upon the satisfaction, or waiver by
Developer, of each and all of the following conditions (collectively, "Developer's Conditions to
Closing ") within the time provided in the Schedule of Performance:
a. Title shall be conveyed subject only to conditions and
exceptions recited in the Deed and the Regulatory Agreement.
b. Agency shall have deposited into escrow a certificate
( "FIRPTA Certificate ") in such form as may be required by the Internal Revenue service
pursuant to Section 1445 of the Internal Revenue Code.
c. Developer shall have obtained evidence of financing
commitments for the development of the Site in accordance with 407.1 — 407.4, and
Agency shall have approved such commitments.
d. Agency shall have deposited into escrow the executed
Grant Deed.
e. Developer shall have obtained from the City all required
approvals and permits, including site plan review, conditional use, subdivision, building,
grading, landscaping, and others for development of the Site as the Project.
Any waiver of the foregoing conditions must be express and in writing. In the event that
the foregoing conditions have not been satisfied within the time provided therefor in the
Schedule of Performance, either party may terminate this Agreement by delivering a written
notice in accordance with Section 410.
2. Agency's Conditions to Closing. Agency's obligation to sell the
Site and to close escrow hereunder, shall, in addition to any other conditions set forth herein in
favor of Agency, be conditional and contingent upon the satisfaction, or waiver by Agency, of
each and all of the following conditions (collectively, "Agency's Conditions to Closing ") within
the time provided in the Schedule of Performance:
a. Developer shall have deposited into escrow the amount of
$220,000 representing the balance of the Purchase Price.
b. Developer shall have obtained evidence of financing
commitments for the acquisition and development of the Site in accordance with Sections
407.1 — 407.4, and Agency shall have approved such commitments.
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c. Developer shall have secured approval by Agency's
Executive Director of the Developer's conceptual plans and drawings for all
improvements to be constructed on the Site, subject to Developer securing appropriate
entitlements therefore including site plan review, conditional use, building, grading,
landscaping and other plans and drawings, as provided in Section 502.
d. Developer shall not have made or attempted to make a
Transfer in violation of Section 303, provided that Agency shall give notice of any
violation of Section 303 and afford Developer the opportunity to cure the violation.
e. Developer shall have deposited into escrow the executed
Regulatory Agreement.
f. Developer shall have deposited into escrow the Deposit.
g. Developer shall have deposited into escrow all the
documents required under Section 405.4.
Any waiver of the foregoing conditions must be express and in writing. In the event that
Developer fails to satisfy Agency's foregoing conditions or defaults in the performance of its
obligations hereunder, Agency may terminate this Escrow.
3. Both Parties' Conditions to Closing. Prior to the Closing Date,
Developer and Agency shall execute and deliver a certificate ( "Taxpayer ID Certificate ") in such
form as may be required by the IRS pursuant to Section 6045 of the Internal Revenue Code, or
the regulations issued pursuant thereto, certifying as to the description of the Site, date of
closing, gross price, and taxpayer identification number for Developer and Agency. Prior to the
Closing, Developer and Agency shall cause to be delivered to the Escrow Agent such other
items, instruments and documents, and the parties shall take such further actions, as may be
necessary or desirable in order to complete the Closing. At the Closing neither party shall be in
breach of its obligations hereunder.
E. 0405) Conveyance of the Site to Developer.
1. Time for Conveyance. Escrow shall close after satisfaction of all
conditions to close of Escrow, but not later than the date specified in the Schedule of
Performance, unless extended by the mutual agreement of the parties or any Enforced Delay.
Possession of the Site shall be delivered to Developer concurrently with the conveyance of title.
2. Escrow Agent to Advise of Costs. On or before the date set in the
Schedule of Performance, the Escrow Agent shall advise the Agency and the Developer in
writing of the fees, charges, and costs necessary to clear title and close Escrow, and of any
documents which have not been provided by said party and which must be deposited in Escrow
to permit timely Closing.
3. Deposits By Agency Prior to Closing. On or before, but not later
than 1:00 p.m. of the date set in the Schedule of Performance, Agency shall execute,
acknowledge and deposit into escrow (i) the Grant Deed; (ii) an estoppel certificate certifying
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promptly execute, acknowledge and deliver all applications, credit applications and data,
financial statements, and documents in connection therewith.
H. 0408) Condition of Site.
1. Site Assessment and Remediation. Developer, at its sole cost
and responsibility, may investigate the Site to assess its environmental condition.
2. Disclaimer of Warranties. Upon the Close of Escrow, Developer
shall acquire the Site in its "AS -IS" condition and shall be responsible for any defects in the Site,
whether patent or latent, including, without limitation, the physical, and geotechnical condition
of the Site. Agency makes no representation or warranty concerning the physical, geotechnical
or other condition of the Site, the suitability of the Site for the Project, or the present use of the
Site and specifically disclaims all representations or warranties of any nature concerning the Site
made by Agency or the City and their employees, agents and representatives. The foregoing
disclaimer includes, without limitation, topography, climate, air, water rights, utilities, present
and future zoning, soil, subsoil, the purpose for which the Site is suited, or drainage. Moreover,
Agency makes no representation or warranty concerning the compaction of soil upon the Site,
nor of the suitability of the soil for construction.
3. Right to Enter Site, Indemnification. Developer shall have the
right to enter upon the Site to conduct soils, engineering, or other tests and studies, to perform
preliminary work or Site investigation or for any other purposes to carry out the terms of this
Agreement. Developer shall indemnify, defend and hold Agency harmless from and against any
claims, injuries or damages arising out of or involving any such entry or activity as provided in
Section 505. Any such activity shall be undertaken only after securing any necessary permits
from the appropriate governmental agencies and providing Agency with certificates of insurance
evidencing the coverages required in Section 506.
4. Hazardous Materials. Developer understands and agrees that in
the event Developer incurs any loss or liability concerning Hazardous Materials (as hereinafter
defined) and/or oil wells and/or underground storage tanks and/or pipelines whether attributable
to events occurring prior to or following the Closing, then Developer may look to current or prior
owners of the Site, but under no circumstances shall Developer look to Agency or City for any
liability or indemnification regarding Hazardous Materials and/or oil wells and/or underground
storage tanks and/or pipelines. Developer, and each of the entities constituting Developer, if any,
from and after the Closing, hereby waives, releases, remises, acquits and forever discharges
Agency and City, their directors, officers, employees, and agents, and their respective heirs,
successors, personal representatives and assigns, of and from any and all Environmental Claims,
Environmental Cleanup Liability and Environmental Compliance Costs, as those terms are
defined below, and from any and all actions, suits, legal or administrative orders or proceedings,
demands, actual damages, punitive damages, loss, costs, liabilities and expenses which concern
or in any way relate to the physical or environmental conditions of the Site, the existence of any
Hazardous Material thereon, or the release or threatened release of Hazardous Materials
therefrom, whether existing prior to, at or after the Closing. It is the intention of the parties
pursuant to this release that any and all responsibilities and obligations of Agency and City, and
any and all rights, claims, rights of action, causes of action, demands or legal rights of any kind
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of Developer, its successors, assigns or any affiliated entity of Developer, against the Agency or
City, arising by virtue of the physical or environmental condition of the Site, the existence of any
Hazardous Materials thereon, or any release or threatened release of Hazardous Material
therefrom whether existing prior to, at or after the Closing, are by this Release provision declared
null and void and of no present or future force and effect as to the parties; provided, however,
that no parties other than the Indemnified Parties (defined below) shall be deemed third party
beneficiaries of such release. In connection therewith, Developer and each of the entities
constituting Developer, expressly agree to waive any and all rights which said party may
have under Section 1542 of the California Civil Code which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
DEVELOPER'S INITIALS: AGENCY'S INITIALS:
Developer and each of the entities constituting Developer, shall, from and after the
Closing, defend, indemnify and hold harmless Agency and City and their officers, directors,
employees, agents and representatives (collectively, the "Indemnified Parties ") from and against
any and all Environmental Claims, Environmental Cleanup Liability, Environmental Compliance
Costs, and any other claims, actions, suits, legal or administrative orders or proceedings,
demands or other liabilities resulting at any time from the physical and /or environmental
conditions of the Site whether before or after the Closing or from the existence of any Hazardous
Materials or the release or threatened release of any Hazardous Materials of any kind
whatsoever, in, on or under the Site occurring at any time whether before or after the Closing,
including, but not limited to, all foreseeable and unforeseeable damages, fees, costs, losses and
expenses, including any and all attorneys' fees and environmental consultant fees and
investigation costs and expenses, directly or indirectly arising therefrom, and including fines and
penalties of any nature whatsoever, assessed, levied or asserted against any Indemnified Parties
to the extent that the fines and/or penalties are the result of a violation or an alleged violation of
any Environmental Law.
For purposes of this Section 408, the following terms shall have the following meanings:
a. "Environmental Claim" means any claim for personal
injury, death and/or property damage made, asserted or prosecuted by or on behalf of any
third party, including, without limitation, any governmental entity, relating to the Site or
its operations and arising or alleged to arise under any Environmental Law.
b. "Environmental Cleanup Liability" means any cost or
expense of any nature whatsoever incurred to contain, remove, remedy, clean up, or abate
any contamination or any Hazardous Materials on or under all or any part of the Site,
including the ground water thereunder, including, without limitation, (A) any direct costs
or expenses for investigation, study, assessment, legal representation, cost recovery by
governmental agencies, or ongoing monitoring in connection therewith and (B) any cost,
expense, loss or damage incurred with respect to the Site or its operation as a result of
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•
actions or measures necessary to implement or effectuate any such containment, removal,
remediation, treatment, cleanup or abatement.
c. "Environmental Compliance Cost" means any cost or
expense of any nature whatsoever necessary to enable the Site to comply with all
applicable Environmental Laws in effect. "Environmental Compliance Cost" shall
include all costs necessary to demonstrate that the Site is capable of such compliance.
d. "Environmental Law" means any federal, state or local
statute, ordinance, rule, regulation, order, consent decree, judgment or common -law
doctrine, and provisions and conditions of permits, licenses and other operating
authorizations relating to (A) pollution or protection of the environment, including
natural resources, (B) exposure of persons, including employees, to Hazardous Materials
or other products, raw materials, chemicals or other substances, (C) protection of the
public health or welfare from the effects of by- products, wastes, emissions, discharges or
releases of chemical sub- stances from industrial or commercial activities, or (D)
regulation of the manufacture, use or introduction into commerce of chemical substances,
including, without limitation, their manufacture, formulation, labeling, distribution,
transportation, handling, storage and disposal.
e. "Hazardous Material" is defined to include any hazardous
or toxic substance, material or waste which is or becomes regulated by any local
governmental authority, the State of California, or the United States Government. The
term "Hazardous Material" includes, without limitation, any material or substance which
is: (A) petroleum or oil or gas or any direct or derivate product or byproduct thereof; (B)
defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous
waste" under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of
the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law); (C) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter- Presley- Tanner
Hazardous Substance Account Act); (D) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Sections 25501(j) and (k) and 25501.1 of the
California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials
Release Response Plans and Inventory); (E) defined as a "hazardous substance" under
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7
(Underground Storage of Hazardous Substances); (F) "used oil" as defined under Section
25250.1 of the California Health and Safety Code; (G) asbestos; (H) listed under Chapter
11 of Division 4.5 of Title 22 of the California Code of Regulations, or defined as
hazardous or extremely hazardous pursuant to Chapter 10 of Division 4.5 of Title 22 of
the California Code of Regulations; (I) defined as waste or a hazardous substance
pursuant to the Porter - Cologne Act, Section 13050 of the California Water Code; (J)
designated as a "toxic pollutant" pursuant to the Federal Water Pollution Control Act, 33
U.S.C. § 1317; (K) defined as a "hazardous waste" pursuant to the Federal Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903); (L) defined
as a "hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (M)
defined as "Hazardous Material" pursuant to the Hazardous Materials Transportation Act,
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49 U.S.C. § 5101 et seq.; or (N) defined as such or regulated by any "Superfund" or
"Superlien" law, or any other federal, state or local law, statute, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or standards of
conduct concerning Hazardous Materials and/or oil wells and/or underground storage
tanks and/or pipelines, as now, or at any time here- after, in effect.
Notwithstanding any other provision of this Agreement, Developer's release and
indemnification as set forth in the provisions of this Section, as well as all provisions of this
Section, shall survive the termination of this Agreement and shall continue in perpetuity.
I. 0409) Costs of Escrow.
1. Allocation of Costs. The Escrow Agent is authorized to allocate
costs as follows: Agency shall pay the cost of the Title Policy as provided above while
Developer shall pay premiums for any additional insurance, extended coverage or special
endorsements. Agency shall pay the documentary transfer tax as well as all recording fees.
Developer and Agency shall each pay one -half of all escrow and similar fees, except that if one
party defaults under this Agreement, the defaulting party shall pay all Escrow fees and charges.
Each party shall pay its own attorneys' fees.
2. Proration and Adjustments. Ad valorem taxes and assessments
on the Site and insurance for the current year shall be prorated by the Escrow Agent as of the
date of Closing with the Agency responsible for those levied, assessed or imposed prior to
Closing and the Developer responsible for those after Closing. If the actual taxes are not known
at the date of Closing, the proration shall be based upon the most current tax figures. When the
actual taxes for the year of Closing become known, Developer and Agency shall, within thirty
days thereafter, reprorate the taxes in cash between the parties.
3. Extraordinary Services of Escrow Agent. It is understood that
Escrow fees and charges contemplated by this Agreement incorporate only the ordinary services
of the Escrow Agent as listed in these instructions. In the event that the Escrow Agent renders
any service not provided for in this Agreement or that there is any assignment of any interest in
the subject matter of this Escrow or that any controversy arises hereunder, or that the Escrow
Agent is made a party to, or reasonably intervenes in, any litigation pertaining to this Escrow or
the subject matter thereof, then the Escrow Agent shall be reasonably compensated for such
extraordinary services and reimbursed for all costs and expenses occasioned by such default,
controversy or litigation.
4. Escrow Agent's Right to Retain Documents. Escrow Agent
shall have the right to retain all documents and/or other things of value at any time held by it
hereunder until such compensation, fees, costs and expenses shall be paid. The undersigned
hereby jointly and severally promise to pay such sums upon demand.
J. ( §410) Termination of Escrow.
1. Termination. Escrow may be terminated by demand of either
party who then shall have fully performed its obligations hereunder required to be performed by
the date of such demand if:
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a. The Conditions to Closing have not occurred or have not
been approved, disapproved, or waived as the case may be, by the approving party by the
date established herein for the occurrence of such Condition, including any grace period
pursuant to this Section; or
b. Either party is in breach of the terms and conditions of this
Agreement; or
c. Either party has been granted such right expressly in this
Agreement.
In the event of the foregoing, the terminating party may, in writing, demand return of its
money, papers, or documents from the Escrow Agent and shall deliver a copy of such demand to
the non - terminating party. No demand shall be recognized by the Escrow Agent until fifteen
(15) days after the Escrow Agent shall have mailed copies of such demand to the non -
terminating party, and if no objections are raised in writing to the terminating party and the
Escrow Agent by the non - terminating party within the fifteen (15) day period. In the event of
such objections, the opportunity to cure shall be provided as stated below in subsection 2 of this
Section. In addition, the Escrow Agent is authorized to hold all money, papers, and documents
until instructed in writing by both Developer and Agency or, upon failure thereof, by a court of
competent jurisdiction. If no such demands are made, the Escrow shall be closed as soon as
possible and neither party shall have any further liability to the other.
2. Opportunity to Cure. Prior to Closing, in the event any of the
Conditions to Closing are not satisfied or waived by the party with the power to approve said
Conditions ( "approving party "), then such party shall explain in writing to the other party
( "nonapproving party ") the reason for the disapproval. Thereafter, the nonapproving party shall
have an additional thirty (30) days to satisfy any such Condition to Closing, and only if such
Conditions still cannot be satisfied may the approving party terminate the Escrow. In the event
Escrow is not in a condition to close because of a default by any party, and the performing party
has made demand as stated in Subsection 1 of this Section, then upon the non - performing party's
delivering its objection to Escrow Agent and the performing party within the above thirty (30)
day period, the non - performing party shall have the right to cure the default in accordance with
and in the time provided in Section 701.
3. Other Duties upon Termination. Upon termination of Escrow
pursuant to this Section for any reason, the Parties shall have the following duties and obligations
in addition to any others described above:
a. All plans, drawings, specifications, reports, and other
documents prepared by Developer or Developer's contractors or vendors shall become
the property of the Agency and shall be delivered to Agency by Developer within ten
(10) days of receipt of notice from Agency; provided that (i) Agency shall reimburse
Developer for the cost of preparing such plans, drawings, specifications, reports, and
other documents prepared by Developer's contractors or vendors (ii) all necessary third
party consents have been obtained, and (iii) such plans, drawings, specifications, reports,
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and other documents prepared by Developer's contractors or vendors shall be delivered
without any representation or warranty of Developer.
b. In the event such termination is due to the default of
Developer, Agency shall be entitled to terminate this Agreement and to keep the Deposit
as a remedy for such default as Agency's sole and exclusive remedy. The parties hereby
agree that if Buyer defaults under this Agreement, then Seller shall be entitled to recover
from Buyer $10,000, the amount of the Deposit, as liquidated damages or compensation,
as the case may be, under this Agreement and that such recovery of the Deposit shall be
the sole and exclusive remedy of or compensation to Agency, as the case may be, as a
result of the Buyer's default under this Agreement.
Buyer's Initials Seller's Initials
d. In the event that the Site has been conveyed to Developer
prior to such termination, the Site shall be reconveyed to Agency within thirty (30) days
following such termination. Developer agrees to execute any documents and take all
actions necessary to accomplish the reconveyance.
K. 0411) Responsibility of Escrow Agent.
1. Deposit of Funds. In accordance with Section 404, all funds
received in Escrow shall be deposited by the Escrow Agent in a special interest - bearing escrow
account with any state or national bank doing business in the State of California and may not be
combined with other escrow funds of Escrow Agent or transferred to any other general escrow
account or accounts.
2. Notices. All communications from the Escrow Agent shall be
directed to the addresses and in the manner provided in Section 801 of this Agreement for
notices, demands and communications between Agency and Developer.
3. Sufficiency of Documents. The Escrow Agent is not to be
concerned with the sufficiency, validity, correctness of form, or content of any document
prepared outside of Escrow and delivered to Escrow. The sole duty of the Escrow Agent is to
accept such documents and follow Developer's and Agency's instructions for their use.
4. Exculpation of Escrow Agent. The Escrow Agent shall in no
case or event be liable for the failure of any of the Conditions to Closing of this Escrow, or for
forgeries or false impersonation, unless such liability or damage is the result of negligence or
willful misconduct by the Escrow Agent.
5. Responsibilities in the Event of Controversies. If any
controversy documented in writing arises between Developer and Agency or with any third party
with respect to the subject matter of this Escrow or its terms or conditions, the Escrow Agent
shall not be required to determine the same, to return any money, papers or documents, or take
any action regarding the Site prior to settlement of the controversy by a final decision of a court
of competent jurisdiction or written agreement of the parties to the controversy. The Escrow
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Agent shall be responsible for timely notifying Developer and Agency of the controversy. In the
event of such a controversy, the Escrow Agent shall not be liable for interest or damage costs
resulting from failure to timely close escrow or take any other action unless such controversy has
been caused by the failure of the Escrow Agent to perform its responsibilities hereunder.
L. 0412) Sale of the Residential Units.
Developer shall market and sell or rent each of the Residential Units for a price to
be determined by Developer's in its discretion. As further described in Subsection 602.3(a)
below, Developer shall conduct affirmative marketing and utilize affirmative marketing
procedures consistent with the Approved Marketing Program to effectively market and sell the
Residential Units to Buyers. Developer shall be solely responsible for selecting Buyers for the
Residential Units.
V. 0500) DEVELOPMENT OF THE SITE.
A. 0501) Scope of Development.
The Project shall be developed by Developer as provided in the Scope of Development,
the Regulatory Agreement, and the plans and permits approved by Agency and City pursuant to
Section 502.
B. 0502) Development Plans, Final Building Plans and Environmental
Review.
1. Proposed Development's Consistency With Plan and Codes. Agency
warrants and represents that the City's General Plan, Zoning Ordinance, and Redevelopment
Plan permit Developer's proposed development, and construction, operation, and use of the Site
as provided in this Agreement including, without limitation, the Scope of Development, subject
only to (i) approval of this Agreement pursuant to Health and Safety Code Sections 33433, and
(ii) those development approvals yet to be obtained, including Site Plan Review, conditional use
permit, and /or subdivision approval (if required); provided that it is expressly understood by the
parties hereto that Agency makes no representations or warranties with respect to approvals
required by any other governmental entity or with respect to approvals hereinafter required from
City and Agency, Agency and City reserving full police power authority over the Project.
Nothing in this Agreement shall be deemed to be a prejudgment or commitment with respect to
such items, nor a guarantee that such approvals or permits will be issued within any particular
time or with or without any particular conditions.
2. Evolution of Development Plan. On or before the date set forth
in the Schedule of Performance, Developer shall submit to the City preliminary, and thereafter
final, drawings and specifications for development of the Site in accordance with the Scope of
Development and in accordance with the City's requirements. The term preliminary and final
drawings shall be deemed to include site plans, building plans and elevations, grading plans, if
applicable, landscaping plans, parking plans, signage, a description of structural, mechanical, and
electrical systems, and all other plans, drawings and specifications. Final drawings will be in
sufficient detail to obtain a building permit. Said plans, drawings and specifications shall be
consistent with the Scope of Development and the various development approvals referenced
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hereinabove, except as such items may be amended by City (if applicable) and by mutual consent
of Agency and Developer. Plans (concept, preliminary and construction) shall be progressively
more detailed and will be approved if a logical evolution of plans, drawings or specifications
previously approved. Plans in sufficient detail to obtain all discretionary land use approvals,
including for site plan approval, conditional use permit, and other actions requiring Planning
Commission approval, shall be submitted and processed concurrently for the Site.
3. Developer Best Efforts to Obtain Approvals. Developer shall
exercise its best efforts to timely submit all documents and information necessary to obtain all
development and building approvals from the City in a timely manner. Not by way of limitation
of the foregoing, in developing and constructing the Project, Developer shall comply with all
applicable development standards in City's Municipal Code and shall comply with all building
code, landscaping, signage, and parking requirements, except as may be permitted through
approved variances and modifications.
4. Agency Assistance. Subject to Developer's compliance with (i)
the applicable City and Agency development standards for the Site, and (ii) all applicable laws
and regulations governing such matters as public hearings, site plan review and environmental
review, Agency agrees to provide reasonable assistance to Developer, at no cost to Agency, in
the processing of Developer's submittals required under this Section. City or Agency's failure to
provide necessary approvals or permits within such time periods, after and despite Developer's
reasonable efforts to submit the documents and information necessary to obtain the same, shall
constitute an Enforced Delay.
5. Disapproval. The Agency shall approve or disapprove any
submittal made by Developer pursuant to this Section within sixty (60) days after such submittal.
All submittals made by Developer will note the 60 -day time limit, and specifically reference this
Agreement and this Section. Any disapproval shall state in writing the reason for the disapproval
and the changes which the Agency requests be made. Developer shall make the required
changes and revisions and resubmit for approval as soon as is reasonably practicable but no more
than thirty (30) days after the date of disapproval. Thereafter, Agency shall have an additional
thirty (30) days for review of the resubmittal, but if the Agency disapproves the resubmittal, then
the cycle shall repeat, until the Agency' s approval has been obtained. The foregoing time
periods may be shortened if so specified in the Schedule of Performance.
6. CEOA. The Agency shall be the lead agency in the environmental
review process for the Project as required by the California Environmental Quality Act.
Developer specifically acknowledges and agrees that the Developer shall satisfy all conditions
necessary to ensure that the Project conforms to all applicable CEQA requirements. Developer
also agrees to supply information and otherwise assist Agency, upon Agency's request, to
determine the environmental impact of the proposed development and to allow Agency to
prepare and process such environmental documents needed for the development pursuant to the
requirements of CEQA.
C. 0503) Developer Responsibilities During Construction.
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The cost of constructing all of the improvements required to be constructed for the
Project shall he borne by Developer. No financial assistance is being provided by Agency to
Developer for the development of the Project. As such, the parties do not believe that the Project
would 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. Notwithstanding the foregoing, to the extent
that (contrary to the parties' intent) Developer is required to or is determined to be responsible to
pay prevailing wages for the Project, Developer shall defend and hold the Agency and the City
harmless from and against any 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 any portion of the Project is subject to payment of
prevailing wages.
In addition, in developing the Site, Developer shall water the ground as reasonably
required by Agency, and take such other actions as Agency shall reasonably require to minimize
the impact of construction and airborne debris on nearby property.
D. 0/504) Schedule of Performance; Progress Reports.
Subject to Section 803, Developer shall begin and complete all plans, reviews,
construction and development specified in the Scope of Development within the times specified
in the Schedule of Performance or such reasonable extensions of said dates as may be mutually
approved in writing by the parties.
Once construction is commenced, it shall be diligently pursued to completion, and shall
not be abandoned for more than thirty (30) consecutive days, except when due to an Enforced
Delay. Developer shall keep the Agency informed of the progress of construction and shall
submit monthly written reports of the progress of the construction to the Agency in the form
required by the Agency.
E. 0505) Indemnification During Construction.
During the periods of construction on the Site and until such time as the Agency has
issued a Release of Construction Covenants with respect to the construction of the improvements
thereon, the Developer agrees to and shall indemnify and hold the Agency and the City harmless
from and against all liability, loss, damage, costs, or expenses (including reasonable attorneys'
fees and court costs) arising from or as a result of the death of any person or any accident, injury,
loss, or damage whatsoever caused to any person or to the property of any person which shall
occur on the Site and which shall be directly or indirectly caused by any acts done thereon or any
errors or omissions of the Developer or its agents, servants, employees, or contractors. The
Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors, or
omissions of the Agency or the City, or their respective agents, servants, employees, or
contractors. The Agency and City shall not be responsible for any acts, errors, or omissions of
any person or entity except the Agency and the City and their respective agents, servants,
employees, or contractors, subject to any and all statutory and other immunities. The provisions
of this Section shall survive the termination of this Agreement.
F. ( *506) Insurance.
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Except as provided in this Section, prior to the entry by Developer on the Site pursuant to
Section 408(3) and prior to the commencement of any construction by Developer on the Project,
Developer shall procure and maintain, at its sole cost and expense, in a form and content
satisfactory to Agency, during the entire term of such entry or construction, the following
policies of insurance:
1. Commercial General Liability Insurance. A policy of
commercial general liability insurance written on a per occurrence basis in an amount not less
than a combined single limit of TWO MILLION DOLLARS ($2,000,000.00)
2. Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the State of
California and which shall indemnify, insure and provide legal defense for the Developer,
Agency and the City against any loss, claim or damage arising from any injuries or occupational
diseases occurring to any worker employed by or any persons retained by the Developer in the
course of carrying out the work or services contemplated in this Agreement.
3. Automobile Insurance. A policy of automobile liability
insurance written on a per occurrence basis in an amount not less than ONE MILLION
DOLLARS ($1,000,000.00) combined single limit per accident for bodily injury and property
damage covering owned, leased, hired, and non -owned vehicles.
4. Builder's Risk Insurance. A policy of "Builder's Risk" insurance
covering the full replacement value of all of the improvements to be constructed by Developer
pursuant to this Agreement plus Developer's personal property and equipment. Developer shall
procure the builder's risk insurance policy prior to commencing construction.
All of the above policies of insurance, except the Builder's Risk Insurance, shall be
primary insurance and shall name Agency and City, and their officers, employees, and agents as
additional insureds. The insurer shall waive all rights of subrogation and contribution it may
have against Agency and City, and their officers, employees and agents and their respective
insurers. All of said policies of insurance shall provide that said insurance may not be amended
or cancelled without providing thirty (30) days prior written notice to Agency and City. In the
event any of said policies of insurance are cancelled, Developer shall, prior to the cancellation
date, submit new evidence of insurance in conformance with this Section to the Executive
Director. No work or services under this Agreement shall commence until the Developer has
provided Agency with Certificates of Insurance or appropriate insurance binders evidencing the
above insurance coverages and said Certificates of Insurance or binders are approved by Agency.
The policies of insurance required by this Agreement shall be satisfactory only if issued
by companies qualified to do business in 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 VII or better, unless such requirements are waived by the Risk Manager
of the City ( "Risk Manager ") due to unique circumstances.
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Developer shall provide in all contracts with contractors, subcontractors, architects, and
engineers that said contractor, subcontractor, architect, or engineer shall maintain the same
policies of insurance required to be maintained by Developer pursuant to this Section.
The Developer agrees that the provisions of this Section shall not be construed as limiting
in any way the extent to which the Developer may be held responsible for the payment of
damages to any persons or property resulting from the Developer's activities or the activities of
any person or persons for which the Developer is otherwise responsible.
G. ( §507) City and Other Governmental Agency Permits.
Before commencement of construction or development of any buildings, structures, or
other works of improvement upon the Site which are Developer's responsibility under the
applicable Scope of Development, Developer shall at his own expense secure or cause to be
secured any and all permits which may be required by City or any other governmental agency
affected by such construction, development or work. Developer shall not be obligated to
construct if any permit is not issued despite good faith effort by Developer. If there is delay
beyond the usual time for obtaining any such permits due to no fault of Developer, the Schedule
of Performance shall be extended to the extent such delay prevents any action which could not
legally or would not in accordance with good business practices be expected to occur before such
permit was obtained. Developer shall pay all normal and customary fees and charges applicable
to such permits and any fees or charges hereafter imposed by City or Agency which are standard
for and uniformly applied to similar projects in the City.
H. 0508) Rights of Access.
Representatives of the Agency shall have the reasonable right to access the Site without
charges or fees, at any time during normal construction hours during the period of construction
and upon reasonable notice to Developer, for the purpose of assuring compliance with this
Agreement, including but not limited to the inspection of the construction work being performed
by or on behalf of Developer. Such representatives of Agency shall be those who are so
identified in writing by the Executive Director of Agency. Each such representative of Agency
shall identify himself or herself at the job site office upon his or her entrance to the Site, and
•
shall provide Developer, or the construction superintendent or similar person in charge on the
Site, a reasonable opportunity to have a representative accompany him or her during the
inspection. Agency shall indemnify, defend, and hold Developer harmless from any injury or
property damage caused or liability arising out of Agency's exercise of this right of access.
I. ( §509) Applicable Laws.
Developer shall carry out the construction of the improvements to be constructed by
Developer in conformity with all applicable laws, including all applicable federal and state labor
laws.
J. 0510) Nondiscrimination During Construction.
Developer, for himself and his successors and assigns, agrees that in the construction of
the improvements to be constructed by Developer, it shall not discriminate against any employee
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a
part thereof or interest therein, but unless otherwise provided herein, the terms, conditions,
1 1 1 1 1 •
. covenants, restrictions, easements, and reservations of this Agreement shall be binding and 11
effective against the holder of any such mortgage of the Site whose interest is acquired by 1
foreclosure, trustee's sale or otherwise. - . : I
4. Holder - Not Obligated to . Construct or Complete
Improvements. The holder of any mortgage shall in no way be obligated by the provisions of • i
this Agreement to construct or complete the improvements or to guarantee such construction or Ij
completion. Nothing in this Agreement shall be deemed • or construed to permit or authorize any I
such holder to devote the Site or any portion thereof to any uses, or to construct any I:
improvements thereon, other than those uses or improvements provided for or authorized by this Il
. Agreement.
1 1
" 5. Notice of Default to Mortgages, Deed of Trust or other II
Security Interest Holders. Whenever Agency shall deliver any notice or demand to Developer
with respect to any breach or default _by Developer hereunder, Agency shall at the same time
deliver a copy of such notice or demand to each holder of record of any mortgage who has it
previously made a written request to Agency therefor, or to the representative of such lender as 1
may be identified in such a written request by the lender. No notice of default shall be effective I1
as to the holder unless such notice is given. - II
I 6. Right to Cure. Each holder (insofar as the rights of Agency are I
concerned) shall have the right, at its option, within ninety (90) days after the receipt of the I!
notice, to: 'I
a. Obtain possession, - if necessary, and to commence and I!
diligently pursue said cure until the same is completed, and .
I
b. Add the cost of said cure to the security interest debt and
the lien or obligation on its security interest.
ii
In the event n there is more than one such holder, the right to cure or remedy a breach or h
default of Developer under this Section shall be exercised by the holder first in priority or as the I
. holders may otherwise agree among themselves, but there shall be only one exercise of such !j
.
right to cure and remedy a breach or default of Developer under this Section. II
No holder shall undertake or continue the construction or completion of the
improvements (beyond the extent necessary to preserve or protect the improvements or Ij
construction already made) without first having expressly assumed Developer's obligations to
Agency by written agreement satisfactory to Agency with respect to the Site or any portion •
thereof in which the holder has an interest. The holder must agree to complete, in the manner II
ci
required by this Agreement, the improvements to which the lien or title of such holder relates, il
and submit evidence satisfactory to the Agency that .tit has the qualifications and financial II"
responsibility necessary to perform such obligations. Any holder properly completing such j
improvements shall be entitled, upon written request made to Agency, to a Release of I
Construction Covenants from Agency.
.
.
1
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01095/0013/68628.5 Muriel/Thorson DDA 11 ii — " A
. •
' 7. Agency's Rights upon Failure . of Holder to Complete - II
Improvements. In any case where one hundred eighty (180) days after default by Developer in i E
completion of construction of improvements under this •Agreement, the Holder of any mortgage _
' creating a lien or encumbrance upon the Site or improvements thereon has not. exercised the - - !
. option to construct afforded in this Section or if it has exercised such option and has not . II
proceeded diligently with construction, Agency may, after ninety (90) days' notice to such II
holder and if such holder has not exercised `such option to construct. within said ninety (90) day 9
• period, purchase the mortgage, upon payment to the holder of an amount equal to the sum of the 1.
• following: -:. II
I s
a. The unpaid mortgage debt plus: any accrued and unpaid • .
. interest (less all appropriate credits, including those_ resulting from collection and •'°
application of rentals and other income received during foreclosure proceedings, if any);
• ' 9
b. All expenses incurred by the holder with respect to 11
foreclosure, if any;
c. The net expenses (exclusive - of general overhead), incurred li'
I
by the holder as a- direct result of the _ownership or management of the Site, such as - - 1 1
( ". insurance premiums or real estate taxes, if any; , I!
(, d. . The costs of any improvements made by such holder, if " II
any; and .
{
i" e. An amount equivalent to,_the interest that would have • if
accrued on the aggregate of such amounts had all such amounts become part of the II ,
I mortgage debt and such debt had continued in existence to the date of payment by the
I Agency. _ !!
In the event that the holder- does not exercise its option to construct afforded in this :
41
- Section; and Agency elects not to purchase the mortgage of holder, upon written request by the ' E
C - .holder to Agency, Agency agrees to use; reasonable efforts to assist the holder selling the holder's a
- interest to a qualified and responsible party or parties determined by. Agency), who shall .- 1`
assume the obligations of making or completing the improvements required to be constructed by j
Developer, or such other improvements in their stead . as shall be satisfactory to Agency. The - 11
. p of such a sale • shall . be applied first, to the holder. of - those items specified in II
subparagraphs a. through e. hereinabove, and any balance remaining thereafter shall be applied 11
as follows: " = I
- (1)- t• First, to Agency, on its own behalf and on behalf ,,
•
of the City, for all costs n
and expenses actually and reasonably incurred by Agency, icluding but • . 1 i
= not limited to payroll expenses, management expenses, legal expenses, and others. I .
. (2) Second, to reimburse Agency, on its own behalf and on. _
' . behalf of the City, for all payments made by Agency to discharge any_ other encumbrances or . I; '
Hens on the Site or to discharge ;.or._prevent from attaching, or being made any subsequent I
encumbrances or liens due to obligations, defaults, or acts of Developer, its successors or l, .
• transferees. ... •
- • - . •
- ;I
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I-
(3) Third, to reimburse Agency, on its own behalf and on.. 1
• behalf of the City, for all costs and expenses actually and reasonably incurred by Agency, in
connection with its efforts assisting the holder in selling the holder's interest in accordance with E1 • .
this Section. d
. , (4) . • Fourth, any balance remaining thereafter shall be paid to • 1
Developer. '
8. Right of Agency to Cure Mortgage, Deed of Trust or Other
Security Interest Default. In the event of a default or breach by Developer (or entity permitted
• to acquire title under this Section) of a mortgage prior to the issuance by Agency of a Release of
.Construction Covenants for the Site or portion' s thereof covered by said mortgage, and the holder • Il
n •
. of any such mortgage has not exercised its option to complete the development, Agency may il, •
. cure the- default prior to completion of any foreclosure. In such event, Agency shall be entitled ;
to reimbursement from Developer or other.entity of all costs and expenses incurred by Agency in �
curing the default, to the extent permitted by law, as if such holder initiated such claim for I
reimbursement, including legal costs and attorneys' fees, which right of reimbursement shall be ;1
secured by a lien upon the Site to the extent of such costs and disbursements. Any such lien shall I
, be•subjectto: -
i
. a. Any-mortgage for financing permitted by this Agreement;
• i
.and I
b. Any rights or interests provided in this Agreement for the 1
)
. protection of the holders of such mortgages for financing; -
provided that nothing herein shall be deemed to impose upon Agency any affirmative !!
obligations (by the payment of money,. construction or otherwise) with respect to the Site in the
I
event of its enforcement of its lien. .
• 9. Right of Agency to ` Satisfy Other Li on the Site After
I Conveyance of Title. After the conveyance of title and prior, to the recordation of a Release of !
Construction Covenants for construction and development, and after the Developer has had a i
• reasonable time to challenge, cure, , or satisfy any liens or encumbrances on the Site or any Ij
portion thereof, the Agency shall have the right to satisfy any such liens or encumbrances; 11 t
provided, however, that nothing in this Agreement shall require the Developer to pay or make
- provision for the payment of any tax, assessment, lien or charge so long as the Developer in good 'E
faith shall contest the validity or amount thereof; and so long as such delay in payment shall not 1!
subject the Site or any portion thereof to forfeiture or sale. .
I,: M. ( §513) Release of Construction Covenants. - E
U pon the completion of all construction required to be completed by Developer on the j,
Site, Agency shall furnish Developer with a Release of Construction Covenants for the Site in !I
. - the form attached hereto as Attachment No. 5 upon written request therefore by Developer. The
1 1
Release of Construction Covenants shall be executed' and notarized so as to permit it to be
:. recorded in the office of the Recorder of Los Angeles County: A Release of Construction
• • Covenants shall be, and shall state that it constitutes, conclusive determination of satisfactory
I
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•
completion of the construction and development of the improvements required by this
Agreement upon the Site and of full compliance with the terms of this Agreement with respect • I
thereto. - ! i
After the issuance of a Release of Construction Covenants, any party then owning or
. thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of
• such - ownership, purchase, lease, or acquisition) incur any obligation or liability under this
Agreement with respect to the Site, except that such party shall be bound by the covenants,
encumbrances, and easements contained in the Deed and the Regulatory Agreement attached
hereto. After issuance of a Release of Construction Covenants, the Agency shall not have any
rights or remedies under this Agreement with respect to the Site, except as otherwise set forth or
incorporated in the Deed or the Regulatory Agreement.
Agency shall not unreasonably withhold a Release of Construction Covenants. If Agency
refuses or fails to furnish a Release of Construction Covenants within thirty (30) days after
written request from Developer or any entity entitled thereto, Agency shall provide a written
statement of the reasons Agency refused or . failed to furnish a Release of Construction
Covenants. The statement shall also contain Agency's opinion of the action Developer must take it
to obtain a Release of Construction Covenants. If the reason for such refusal is confined to the
immediate -availability of specific items or materials for landscaping, or other minor so- called
"punch list" items, Agency will issue its Release of Construction Covenants upon the posting of �I
a bond in an amount representing one hundred fifty percent (150 %) of the fair value of the work
not yet completed or other assurance reasonably satisfactory to Agency.
A Release of Construction Covenants shall not constitute evidence of compliance with or
satisfaction of any obligation of Developer to any Agency of a mortgage, or any insurer of a
mortgage securing money loaned to finance the improvements, or any part thereof. Such Release
of Construction Covenants is not notice of completion as referred to in the California Civil Code
Section 3093. Nothing herein shall prevent or affect Developer's right to obtain a Certificate of I�
Occupancy from the City before the Release of Construction Covenants is issued.
N. (§ 514) Deposit. j
Following the selection of Developer, and in accordance with the terms of the March 20, it
2008 Request for Proposals issued by the Agency, on or about April 29, 2009, Developer
submitted to Agency a deposit check in the amount of Ten Thousand 'Dollars ($10,000)
. ( "Deposit "), which Deposit shall be used toward Buyer's payment of the Purchase Price. The
Deposit shall be subject to Subsection 4.10., 3.b for any default of Buyer.
0. ( §515) Estoppels.
No later than thirty (30) days after the request of Developer or any Agency of a mortgage
or deed of trust, Agency shall, from time, to time and upon the request of such Agency, execute
and deliver to Developer or such Agency a written statement of Agency that no default or breach
exists (or would exist with the passage of time, or giving of notice or both) by Developer under
this Agreement, if such be the determination of the Agency, and certifying as to whether or not
Developer has at the date of such certification complied with any obligation of Developer
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•
hereunder as to which such Agency may inquire. The form of . any estoppel letter shall be
prepared by the Agency or Developer and shall be at no cost to Agency.. -
. VI. ( §600) USES AND MAINTENANCE OF THE SITE
A. 0601) Uses of the Site.
The Developer covenants and agrees for itself, its successors, its assigns and every
successor in interest that during construction and thereafter, the Developer, such successors and
such assigns shall devote the Site to the uses as follows:
The Developer covenants and agrees for itself, its successors and assigns, which
covenants shall run with the land and bind every successor or assign in interest of Developer, �I
that during development of the Site pursuant to this Agreement and thereafter, neither the Site
nor the improvements, nor any portion thereof, shall be improved, used or occupied in violation
of any applicable governmental restrictions or the restrictions of this Agreement. Furthermore,
Developer and its successors and assigns shall not initiate, maintain, commit, or permit the
maintenance or commission on the Site or in the improvements, or any portion thereof, of any !i
{ nuisance, public or private, as now or hereafter defined by any statutory or decisional law
applicable to the Site or the improvements, or any portion thereof. Developer further covenants
and agrees on behalf of itself and its successors and assigns to devote, use, operate and maintain
the Site in accordance with this Agreement, the Grant Deed, the Regulatory Agreement, and the it
other documents recorded against the Site should the. Project be developed with a Multi - Family I!
Residential Complex, or each parcel thereof should the Project be developed with Single - Family
Units, pursuant to the provisions of this Agreement.
Notwithstanding anything to the contrary or that appears to be to the contrary in this
Agreement, Developer hereby covenants, on behalf of itself, and its successors and assigns,
which covenants shall run with the land and bind every successor and assign in interest of
! u
Developer, that Developer and such successors and assigns shall use the Site solely for the
purpose of constructing, maintaining and operating a project meeting the requirements and
restrictions of this Agreement, - including, without limitations, restriction applicable to the .
Residential Units.
B. 0602) Housing Development.
1. Construction of Residential Units. The Developer covenants and 1
' agrees to construct either (i) six (6) or seven (7) Single - Family Units or (ii) a Multi - Family
Residential Complex containing sixteen (16) or seventeen (17) residential units, as described on
the Scope of Development. Each of the Residential Units shall be restricted for sale or lease in
accordance with the Regulatory Agreement. The location, size and specifications of the
Residential Units shall be as set forth in the Scope of Development and as further designated by
the Agency.
2. - . Residential Unit Requirements. Each of the Residential Units i
constructed pursuant to this Agreement shall be occupied by Buyer/Renter selected in
accordance with the Approved Marketing Program. No restrictions upon purchase or lease and
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•
use of each Residential Unit shall be required by the Agency from either the close of Escrow for
the initial purchase or initial lease of each Residential Unit by the Developer to a Buyer/Renter. �I
3. Selling of Residences by Developer. Prior to the deadline
specified in the Schedule of Performance, Developer shall prepare and obtain Agency's approval
. (which shall not be unreasonably withheld) of a marketing and selling program ( "Approved
Marketing Program ") for the selection of purchasers or tenants for the Residential Units at the
Project. The Approved Marketing Program shall include methods for informing the public of
fair housing laws and opportunities. The Residential Units shall thereafter be marketed in
accordance with the Approved Marketing Program as the same may be amended by Developer
from time to time with Agency' s prior written approval, which shall not be unreasonably
withheld. Agency agrees to exercise reasonable efforts to assist Developer in connection with
implementation of the Approved Marketing Program; provided, Agency shall not be under any
obligation to incur any out -of- pocket expenses in connection therewith.
C. 0603) Obligation to Refrain from Discrimination. 6I
(i) General.
•
There shall be no discrimination against, or segregation of, any persons, or group of
persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the rental, sale, lease, sublease, transfer, use, occupancy, or enjoyment of the Site, or any
portion thereof, nor shall Developer, or any person claiming under or through Developer,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or �I
vendees of the Site or any portion thereof (except as permitted by this Agreement). The II
nondiscrimination and nonsegregation covenants contained herein shall remain in effect in
perpetuity.
(ii) Form of Nondiscrimination' and Nonsegregation Clauses.
f I
Subject to the tenancy /occupancy restrictions on the Residential Units not prohibited by
federal law as embodied in this Agreement, which may modify the following nondiscrimination ;I
clauses, the following shall apply: Developer shall refrain from restricting the rental, sale, or
lease of any portion of the Site on the basis of race, color, creed, religion, sex, marital status,
ancestry or national origin' of any person. All such deeds, leases or contracts shall contain or be
subject to substantially the following nondiscrimination or nonsegregation clauses: it
1. Deeds: In Deeds the following language shall appear:
"The grantee herein covenants by and for himself or herself, his or her heirs, executors,
administrators, and 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 I
account of race, color, creed, religion, sex, marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee, or any persons claiming under or through him or her,
establish or permit any such practice or practices' of discrimination or segregation with !I
reference to the selection, location, number, use or occupancy of tenants, lessees, I
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Iv
subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants
shall run with the land." 1
I
2. Leases: In Leases the following language shall appear: 1
"The lessee herein covenants by and for himself or herself, his or her heirs, executors, I
administrators and assigns, and all persons claiming under or through him or her, and this
lease is made and accepted upon and subject to the following conditions: `That there shall
I
be no discrimination against or segregation of any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin or ancestry in the
leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises
herein leased nor shall the lessee, or any person claiming under or through him or her, i
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, I
sublessees, subtenants or vendees in the premises herein leased." i
3. Contracts: Any contracts which Developer or Developer's
heirs, executors, administrators, or assigns propose to enter into for the sale, transfer, or
leasing of the Site shall contain a nondiscrimination and nonsegregation clause 11
substantially as set forth in Section 603 and in this Section. Such clause shall bind the
contracting party and subcontracting party or transferee under the instrument I i
D. ( §604) Maintenance of Improvements.
Developer covenants and agrees for itself, its successors and assigns, and every successor
II
in interest to the Site or any part thereof, that, after Agency's issuance of its Release of I
Construction Covenants, that Developer shall be responsible for maintenance of all i
improvements that may exist on the Site from time to time, including without limitation 'l
buildings, parking lots, lighting, signs, and walls, in first -class condition and repair, and shall
keep the Site free from any accumulation of debris or waste materials. Developer shall also II
maintain all landscaping required pursuant to Developer's approved landscaping plan in a II
healthy condition, including replacement of any dead or diseased plants. The foregoing 11
maintenance obligations shall run with the land in accordance with and for the term of the 1
Regulatory Agreement. Developer's further obligations to maintain the Site, and Agency's ti
remedies in the event of Developer's default in performing such obligations, are set forth in the i
Regulatory Agreement. Developer hereby waives any notice, public hearing, and other
requirements of the public nuisance laws and ordinances of the City that would otherwise apply, i I
except as specified in said Regulatory Agreements. Upon the sale of any portion of the Site,
Developer (but not Developer's successors, or any Buyer/Renter) shall be released from the 1
requirements imposed by this Section 605, and the financial liability therefor, as to the portion of i
the Site conveyed. Developer or its successor shall remain obligated under this Section 605
following the rental of any of the Residential Units.
E. ( §605) Effect of Covenants. "
Agency is deemed a beneficiary of the terms and provisions of this Agreement and of the 1
restrictions and covenants running with the land, whether appearing in the Deed or the fl
Regulatory Agreement, for and in its own right for the purposes of protecting the interests of the !I
I
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community in whose favor and for whose benefit the covenants running with the land have been
. provided. The covenants in favor of Agency shall run without regard to whether Agency has
been, remains or is an owner of any land or interest therein in the Site, or benefits the •
Redevelopment Project Area, and shall be effective as both covenants and equitable servitudes it
. against the Site. Agency shall have the right, if any of the covenants set forth in this Agreement
which are provided for its benefit are breached, to exercise all rights and remedies and to
maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing • •�
of such breaches to which it may be entitled. With the exception of the City, no other person or
entity shall have any right to enforce the terms of this Agreement under a theory of third -party
• beneficiary or otherwise. The covenants running with the land and their duration are set forth in
the Deed and the Regulatory Agreement.
VII. ( §700) DEFAULTS, REMEDIES AND TERMINATION
A. ( §701) Defaults, Right to Cure and Waivers.
•
Subject to any Enforced Delay, failure or delay by either party to timely perform any
covenant of this Agreement constitutes a default under this Agreement, but only if the party who
so fails or delays does not commence to cure, correct or remedy such failure or delay within
thirty (30) days after receipt of a written notice specifying such failure or delay, and does not
thereafter prosecute such cure, correction or remedy with diligence to completion.
{ The injured party shall give written notice of default to the party in default, specifying the
default complained of by the injured party. Except as required to protect against further
damages, the injured party may not institute proceedings against the party in default until thirty
(30) days after giving such notice. Failure or delay in giving such notice shall not constitute a
waiver of any default, nor shall it change the time of default. �I
Except as otherwise provided in this Agreement, waiver by either party of the
performance of any covenant, condition or promise, shall not invalidate this Agreement, nor shall
it be considered a waiver of any other covenant, condition, or promise. Waiver by either party of
the time for performing any act shall not constitute a waiver of time for performing any other act
or an identical act required to be performed at a later time. The delay or forbearance by either
party in exercising any remedy or right as to any default shall not operate as a waiver of any
default or of any rights or remedies or to deprive such party of its right to institute and maintain
any actions or proceedings which it may deem necessary to protect, assert, or enforce any such
rights or remedies.
B. 0702) Legal Actions.
1. Institution of Legal Actions. In addition to any other rights or
remedies, and subject to the requirements of Section 801, either party may institute legal action •
to cure, correct or remedy any default, to recover damages for any default, or to obtain any other
. remedy consistent with the purpose of this Agreement. Legal actions must be instituted and
maintained in the Superior Court of Los Angeles County, State of California, in any other
appropriate court in that county, or in the Federal District Court in the Central District of
California.
32 II
Muriel/Thorson DDA
f 01095/0013/68828.5 1.
' 2. Applicable Law and Forum. The laws of the State of California I
shall govem the interpretation and enforcement of this Agreement. I!
3. Acceptance of Service of Process. In the event that any legal I .
action is commenced by Developer against Agency, service of process on Agency shall be made' li
by personal service upon the Executive Director or" the Se_ cretary .of Agency or in such other
manner as maybe provided by law. .: II
In the event that any legal action is commenced by Agency against Developer, service of 1
process on Developer shall be made in such manner as may be provided by law and shall be {l -
valid whether made within or outside of the State of California. it
C. ( §703) Rights a Remedies Cumulative. - jj
Except as otherwise expressly stated in this Agreement, the rights and remedies of the ![
parties are cumulative, and the exercise by either party of one or more of its rights or remedies 1E
shall not preclude the exercise by it, at the same or different times, of any other rights or
remedies for the same default or any other default by the other party.. - l
II
D. ( §704) Specific Performance. it
. , +1
In addition to any other remedies permitted by this Agreement, if either party defaults i!
hereunder by failing to perform any of its obligations herein; each party agrees that the other II
shall be entitled to the judicial remedy of specific performance, and each party agrees (subject to
II
its reserved right to contest whether in fact a default does exist) not to challenge or contest the I •
- appropriateness of such remedy. In this regard, Developer specifically acknowledges that 3
Agency is entering into this Agreement for the purpose of 'assisting in the redevelopment of the
•
Site and not for the purpose of enabling Developer to speculate with land. - 1'
E. ( §705) Right of Reverter. II
t
. The Agency shall have the right ;'at its opt to reenter and take possession of the Site or I L -
I any portion thereof with all improvements thereon and to terminate and revest in the Agency the' I1 . . •
estate conveyed to the Developer, if after conveyance of the estate and prior to the recordation of 1
the Release of Construction Covenants, the Developer (or his - successors in interest) shall:
1. Fail to commence construction of the improvements as required by - it
this Agreement, if such failure is in violation of the Schedule of Performance, for a period of 90
days after issuance of a building permit, provided that the Developer shall not have obtained an ( i
extension or postponement to which the Developer may be entitled pursuant to this Agreement; II
- . . or I
I
- 2. Abandon or substantially suspend construction of the I!
improvements for a period of 90 days after written notice of such abandonment or suspension
from the Agency, provided that the Developer shall not have obtained an extension of time to
which the Developer may be entitled pursuant to this Agreement; or 11
1I,
-
33 -
- " - - MurieUThorson DDA
01095/0013/68828.5 ' - - - • - - I
.
i
I
I I
il 3. Assignor attempt to assign this Agreement, or any rights herein, or
Transfer, or suffer any involuntary Transfer of, the Site, or any ,part thereof, in violation of this .
Agreement, and such violation shall not be cured within one hundred twenty (120) days after the
date of receipt of written notice thereof by the Agency to the Developer. y
. The right to re- enter, repossess, terminate, and revest shall be subject to and be limited by I}
II
and shall not defeat, render invalid, or limit: •
1 II
i. Any. mortgage, deed of trust, or other security interests I, 1 permitted by this Agreement; or
I
ii. Any rights or interests provided in this Agreement for the I
I protection of the Agency of such mortgages, deeds of trust, or other security i I
interests permitted by this Agreement. j
I Upon the revesting in Agency of possession of the Site, or any part thereof, as provided i
in this Section 705, Agency shall, pursuant to -its responsibilities under state law, use its best
efforts to release, or resell the Site, as the case may be, or any part thereof, as soon and in such
manner as Agency shall find feasible and consistent with the objectives of such law and of the
Redevelopment Plan to a qualified and responsible party or parties (as determined by the
Agency), who will assume the obligation of making or completing the improvements, or such II
other improvements in their stead, as shall be satisfactory to the Agency and in accordance with
the uses specified for the Site, or any part thereof, in the Redevelopment Plan.
In the event of a resale, the proceeds thereof shall be applied as follows: li
i. First, to reimburse the Agency on its own behalf or on I ii
behalf of the City for all costs and expenses incurred by the Agency, including but f I
not limited to, salaries to personnel, legal costs and attorneys' fees, and all other I
II
contractual expenses in connection with the recapture, management, and resale of 'I
the Site (but less any income derived by the Agency from the Site or part thereof I
in connection with such management); all taxes, assessments and water and sewer I
charges with respect to the Site (or, in the event the Site is exempt from taxation
or assessment or such charges during the period of ownership, then such taxes, it
assessments, or charges, as determined by the City, as would have been payable if 1'
the Site were not so exempt); any payments made or necessary to be made to
discharge or prevent from attaching or being made any subsequent encumbrances 1
Or liens due to obligations incurred with respect to the making or completion of
. the agreed improvements or any part thereof on the Site or part thereof; and i
amounts otherwise owing the Agency by the Developer, its successors, or II
transferees; and 1
ii. Second, to reimburse the Developer, its successor or
transferee, up to the amount equal to (i) the sum of the Purchase Price paid to the I
Agency by the Developer for the Site, (ii) the costs incurred for the development
I ,i
of the Site and for the agreed improvements existing on the Site at the time of the II
' 34 I
Muriel/Thorson DDA II
01095/0013/68828.5 I
. • I
• I
re -entry and repossession, less (iii) any gains or income withdrawn or made by the P
Developer from the Site or the improvements thereo ?j
iii. Any balance remaining after such reimbursements shall be II
retained by the Agency as its property.
II •
To the extent that the right established in this Section involves a forfeiture, it must be I
strictly interpreted against the Agency, the party for whose benefit it is created. The rights
established in this Section are to be interpreted in light of the fact that the Agency will sell the
Site to the Developer for development, and not for speculation in undeveloped land. ! I
I
F. ( §706) Attorneys' Fees. I
If either party to this Agreement is required to initiate or defend any action or proceeding
in any way arising out of the parties' agreement to, or performance of, this Agreement, or is
made a party to any such action or proceeding by the Escrow Agent or other third party, such it
that the parties hereto are adversarial, the prevailing party, as between the Developer and Agency II
only, in such action or proceeding, in addition to any other relief which may be granted, whether I
legal or equitable, shall be entitled to reasonable attomey's fees from the other. As used herein, II .
the "prevailing party" shall be the party determined as such by a court of law, pursuant to the 11
definition Code of Civil Procedure Section 1032(a)(4), as it may be subsequently amended.
Attorneys' fees shall include attorneys' fees on any appeal, and in addition a party entitled to ,
attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking I!
depositions and discovery and all other necessary costs the court allows which are incurred in jI
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 judgment. I
VIII. " ( §800) GENERAL PROVISIONS - I
- II
A. ( §801) Notices, Demands and Communications Between the Parties.
Except as expressly provided to the contrary herein, any notice, consent, report, demand,
document or other such item to be given, delivered, ° furnished or received hereunder shall be
deemed given, delivered, furnished, and received when given in writing and personally delivered
to an authorized agent of the applicable party, or upon delivery by the United States Postal I.
Service, first -class registered or certified mail, postage prepaid, return receipt requested, or by a
national "overnight courier" such as Federal Express, at the time of delivery shown upon such ,I
receipt; or by facsimile, if such facsimile is followed by a notice sent out the same day by mail; II
in any case, delivered to the address, addresses and persons as each party may from time to time I'.
by written notice designate to the other and who initially are: 1
I Agency: Lynwood-Redevelopment Agency I
i 11330 Bullis Road • ,1
Lynwood, CA 90
. Attn: Executive Director j
I Copy to: Aleshire & Wynder, LLP I'
18881 Von Karman Avenue, Suite 400 I
I.
Il
35 II
Muriel Thorson DDA 1
01095/0013/68828.5
__ II
1
i
failure to obtain financing for the Project, and (ii) Developer's failure to negotiate agreements '
. ' with prospective users for the Project or the alleged absence of favorable market conditions for - • 1f .
such uses.. - 1 •
•
Times • of performance under this Agreement may also be. extended by mutual written E1E1 •
agreement by Agency and "Developer. The Executive Director of Agency shall have the it •
authority on behalf of Agency to approve extensions of time not to exceed a cumulative total of II
one hundred eighty (180) days with respect to the development of the Site. 1
•
D. 0804) Books and Records. - El
- 1'
.1. Developer to Keep - Records. Developer shall prepare and i .
maintain all books; records and reports necessary to substantiate Developer's- compliance with -
" the terms of this - Agreement or reasonably required by the •Agency. 3
2. Right to Inspect. Either party shall have the right, upon not less j
than seventy -two (72) hours -notice, at all reasonable times, to inspect, the books and records of
• the other party pertaining to the Site as pertinent to the purposes of this Agreement. f
I
:. 3. Ownership of Documents. Copies of all drawings, specifications, -'
reports, records, documents and other materials" prepared by Developer, its employees, agents 1r
and subcontractors,' in the performance of this Agreement, which documents are in the _
possession of Developer and are not confidential shall be delivered to Agency upon request in- - l'
- the - event of a termination of this Agreement, •however, . Developer shall be entitled to
. reimbursement from Agency for the cost to prepare any ,, drawings, specifications, reports, k
records, documents and other materials prepared by Developer's subcontractors as a result of the . 1
exercise by Agency of its rights hereunder. Any drawings, specifications, reports, records, 11
documents and other materials prepared by Developer's subcontractors shall be delivered
: without representation or warranty by Developer. The Agency shall have an unrestricted right to : i f
use such documents and materials as if it were in all respects the owner of the same. Developer j
makes no or representation regarding the accuracy. or sufficiency of such documents for 1
' any future use by Agency, and Developer shall have no liability therefor. -
E. ( §805) Assurances to Act in Good Faith. • " E
a
- Agency and Developer agree to execute all documents a nd instruments and to take all !
action, including making a deposit of funds in addition to such funds as may be specifically
provided for herein, and as - may be required in order to consummate conveyance and I • 'development of the Site as herein contemplated, and shall use their best efforts, to accomplish ' '
the closing and subsequent development of the Site in accordance with the provisions hereof. 11
' Agency and - Developer shall each diligently and in -good faith pursue the satisfaction of any , II
:conditions or contingencies subject to their approval.
F. - ( §806) Interpretation. - - 1
The terms of this Agreement shall-be construed.in " accordance with the meaning of the
,language used and shall not be construed for or against either. party by reason of the authorship" . 11 -
- " • 'of this Agreement or any other rule of construction -which might otherwise apply. The Section
37 €f
MurieVTirorson DDA ' ' I
0109510013/68828.5 _ " 1
headings are for purposes of convenience only, and shall not he construed to limit or extend the
meaning of this Agreement. This Agreement includes all attachments attached hereto, which are
by this reference incorporated in this Agreement in their entirety. This Agreement also includes
the Redevelopment Plan and any other documents incorporated herein by reference, as though
fully set forth herein.
G. ( §807) Entire Agreement, Waivers and Amendments.
This Agreement integrates all of the terms and conditions mentioned herein, or incidental
hereto, and this Agreement supersedes all negotiations and previous agreements between the
parties with respect to all or any part of the subject matter hereof. All waivers of the provisions
of this Agreement, unless specified otherwise herein, must be in writing and signed by the
appropriate authorities of Agency or Developer, as applicable, and all amendments hereto must
be in writing and signed by the appropriate authorities of Agency and Developer.
H. 0808) Severability.
In the event any term, covenant, condition, provision or agreement contained herein is
held to be invalid, void or otherwise unenforceable, by any court of competent jurisdiction, such
holding shall in no way affect the validity or enforceability of any term, covenant, condition,
provision or agreement contained herein.
L
0809) Time for Acceptance of Agreement by Agency.
This Agreement, when executed by Developer and delivered to Agency, must be
authorized, executed and delivered by Agency, after consideration at a public hearing. After
execution by Developer, this Agreement shall be considered an irrevocable offer until such time
as Agency is authorized to execute and deliver the Agreement.
J. 0810) Execution.
1. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, and such counterparts shall constitute one and the same
instrument.
2. Agency represents and warrants that: (i) it is a Redevelopment
Agency duly organized and existing under the laws of the State of California; (ii) by proper
action of Agency, Agency has been duly authorized to execute and deliver this Agreement,
acting by and through its duly authorized officers; and (iii) the entering into this Agreement by
Agency does not violate any provision of any other agreement to which Agency is a party.
3. Developer represents and warrants that: (i) it is duly organized and
existing under the laws of the State of California; (ii) by proper action of Developer, Developer
has been duly authorized to execute and deliver this Agreement, acting by and through its duly
authorized officers; and (iii) the entering into this Agreement by Developer does not violate any
provision of any other agreement to which Developer is a party.
[Signatures on next page.]
38
Muriel/Thorson DDA
01095/0013/68828.5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the Agency.
"AGENCY"
LYNWOOD REDEVELOPMENT
AGENCY,
a public body, corporate and politic
Date
, Chair
ATTEST:
Maria Quinonez, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Fred Galante, Agency Counsel
"DEVELOPER"
J.B. DEVELOPMENT GROUP, LLC, a
California limited liability company
By:
Javier Barajas
[End of Signatures]
39
Muriel/Thorson DDA
01095/0013/68828.5
ATTACHMENT NO. 1
MURIEL/THORSON DDA
SITE MAP
1
Site Map
Attachment No. 1 to
Muriel /Thorson DDA
01095/0013/68828 5
ATTACHMENT NO. 2
MURIEL /THORSON DDA
LEGAL DESCRIPTION OF THE SITE
1
Legal Description
Attachment No. 2 to
Muriel/Thorson DDA
01095/0013/68828.5
ATTACHMENT NO. 3
MURIEL /THORSON DDA
SCHEDULE OF PERFORMANCE
Item To Be Performed Time for Performance
1. Developer executes and delivers DDA to Agency On or before December 20, 2010
2. Agency holds public hearing on DDA. Agency December 21, 2010
approves or disapproves DDA, and, if approves,
executes DDA (Effective Date).
3. Open Escrow Within 1 week after Effective Date
4. Developer provides Agency with evidence of 2 weeks following Agency's approval
financial capability of this Agreement
5. Agency approves evidence of financial capability Within 30 days after receipt by
Agency
6. Developer secures financial commitments Within 90 days after Effective Date
7. Agency approves or disapproves financial Within 30 days after receipt by
commitment and lender Agency
8. Agency delivers to Developer Preliminary Title Within 30 days after Effective Date
Report
9. Developer approves or disapproves title exceptions Within 15 days after delivery of
Preliminary Title Report to Developer
10. Agency delivers notice to Developer as to whether Within 15 days after receipt of
it will cure disapproved exceptions Developer's notice
11. Developer submits proposed Site Plan and project Within 45 following of the Effective
description for entire site for Agency Executive Date
Director's conceptual approval
12. Executive Director approves or disapproves Within 30 days after submittal of
conceptual Site Plan and other submissions proposed Site Plan
13. Escrow Agent gives notice of fees, charges, and One (1) week prior to Closing
costs to close escrow
14. Deposits into escrow by Agency:
a) Executed Deed On or before 1:00 p.m. on the last
1
Schedule of Performance
Attachment No. 3 to
Muriel/Thorson DDA
01095/0013/68828.5
Item To Be Performed Time for Performance
business day preceding the Closing
Date
b) Estoppel Certificate On or before 1:00 p.m. on the last
business day preceding the Closing
Date
c) Payment of Agency's share of Escrow On or before 1:00 p.m. on the last
Costs business day preceding the Closing
Date
d) Taxpayer ID Certificate Prior to Closing Date
e) FIRPTA Certificate Within 15 days after opening
15. Deposits into escrow by Developer:
a) Estoppel Certificate On or before 1:00 p.m. on the last
business date preceding the Closing
Date
b) Regulatory Agreement On or before 1:00 p.m. on the last
business date preceding the Closing
Date
c) Payment of balance of Purchase Price and On or before 1:00 p.m. on the last
Developer's Share of Escrow Costs business date preceding the Closing
Date
d) Certificates evidencing insurance Prior to closing, site preparation or
construction
e) Taxpayer ID Certificate Prior to Closing Date
16. Agency or Developer, as case may be, may cure Within 30 days after date established
any condition to closing disapproved or waived; or therefor, or date of breach, as the case
may cure any default may be
17. Close of Escrow for the Site; recordation and Within 90 days of Effective Date
delivery of documents
18. Developer submits application for Development Within 120 days of Effective Date
Permit, including building elevations, materials
board, and conceptual landscaping plan, Site Plan
and/or conditional use permit and other
discretionary actions for public hearing
19. City staff approves or disapproves plans, drawings, Within 30 days after submittal by
2
Schedule of Performance
Attachment No. 3 to
Muriel/Thorson DDA
01095/0013/68828 5
Item To Be Performed Time for Performance
and specifications Developer
20. Developer revises and resubmits plans, drawings, Within 30 days after City staff's
and specifications, if necessary disapproval per paragraph 19 above
21. City's Planning Commission approves or
disapproves Site Plan and /or conditional use Within 30 days after submittal by
permit and other discretionary actions Developer
22. Developer prepares and submits to City Within 45 days after City's approvals
construction plans, drawings and specifications per paragraph 21 above
prepared in accordance with City approvals
23. Developer completes construction of Within 16 months after issuance of
improvements on the Site building permits
24. Agency issues Release of Construction Covenants Within 30 days of written request by
for the Site Developer, and Developer's
satisfactory completion of all
improvements on the Site
3
Schedule of Performance
Attachment No. 3 to
MurielThorson DDA
01095/0013/68828 5
ATTACHMENT NO. 4
MURIEL /THORSON DDA
SCOPE OF DEVELOPMENT
A. PROJECT CONCEPT
The project will consist of the construction of 6 or 7 new 2 -story single - family detached homes
with a driveway courtyard between the homes. Each home shall contain 3 bedrooms and 2
bathrooms and be at least 1,600 square feet. The homes will share a private driveway with
outlets to Muriel Drive and Thorson Avenue. Construction will be Type V, wood -frame
construction.
Parking for residents and guests will be consistent with City requirements. Each unit will have a
two -car garage, as well as one guest parking space for each home will be provided on the Site.
Alternatively, Developer shall construct a muti- family residential rental complex containing 16
or 17 separate residential units, with adequate on -site parking and in compliance with City all
applicable City standards.
Landscaping will be aesthetically pleasing, appropriate for the surrounding neighborhood, and
will be consistent with City requirements.
The building construction will utilize materials that will meet or exceed Title 24 energy
standards.
B. PROJECT DESIGN
1. Design Process
The Developer and its representatives, including its architect and engineer, shall work
with City and Agency staff to develop and execute the architectural concept, architectural
drawings, site plan, grading plan, off -site improvement plans, landscaping plan and related
drawings and documents consistent with Planning Commission and Agency direction pursuant to
the Lynwood Municipal Code.
2. Architectural Concept
The improvements to be constructed on the Site shall be of high architectural quality,
shall be well landscaped, and shall be effectively and aesthetically designed. The shape, scale of
volume, exterior design, and exterior finish of each structure and all other improvements must be
consistent with, visually related to, physically related to, and an enhancement to each other and,
to the extent reasonably practicable, to adjacent improvements existing or planned. The
Developer's plans, drawings, and proposals submitted to the Agency for approval shall describe
1
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828.5
in reasonable detail the architectural character intended for the Project. The open spaces on the
Site, where they exist, shall be designed, landscaped and developed with the same degree of
excellence. All architectural drawings shall be consistent with the preliminary elevations of all
four sides of the Project, site plan and floor plan, as included in Attachment No. 4 -1 included
immediately following this Attachment 4.
3. Site Work
The Project shall substantially conform to the site and building plans and landscaping
plans approved pursuant to subsection A above and with the Site Map attached to the Agreement
as Attachment No. 1. It shall be the responsibility of the Developer, the architect and the
contractor to develop the Project consistent with the aforementioned plans. Any substantial
modification to the approved site or building plans, as determined by the Director of Community
Development, shall be referred to the Planning Commission for review and approval through a
conformity report. Developer further acknowledges that it has inspected the Site and the existing
housing foundations and preparatory work (collectively, "Foundations ") built by a previous
developer and warrants that it shall be solely responsible for ascertaining whether the
Foundations comply with applicable laws, including but not limited to the Building Code, as
adopted by the City, and may be suitable for the Project. Should Developer, in its sole
discretion, determine that such Foundations do not comply with such applicable laws or are not
suitable for the Project, Developer shall be solely responsible for removing the Foundations at its
cost.
The Developer shall be responsible for the construction and installation of all
improvements to be constructed or installed on the Site including, but not limited to, the
following:
a. Residential Units
Developer shall construct 6 or 7 detached 2 -story single- family homes with a driveway
courtyard between the homes. Alternatively, Developer shall construct a muti- family residential
rental complex containing 16 or 17 separate residential units, all in accordance with City
standards.
b. Parking
Developer shall develop parking for residents and guests that is consistent with City
requirements. Each unit shall have a two -car garage and one guest parking space on site.
c. Landscaping
Developer shall install and maintain on -site landscaping and automatic irrigation pursuant
to approved plans i consistent with the requirements of the Lynwood Municipal Code.
d. Lighting
2
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828 5
Developer shall install and maintain on -site lighting in a manner consistent with the
approved lighting and electrical plans. The design of light standards and fixtures shall be subject
to the approval of the Director of Community Development.
e. Trash Storage
Trash storage areas shall be provided of sufficient size to ensure containment of all solid
waste materials generated from the Site in trash disposal and recycling bins.
4. Undergrounding Utilities
All new utility service connections servicing the Site shall be installed underground,
including connections to facilities within the public right -of -way.
5. Mechanical Equipment
On -site mechanical equipment, whether roof or ground mounted, shall be completely
screened from public view. Screening material shall be constructed of materials which
coordinate with the overall architectural theme. Where public visibility will be minimal, the
Director of Community Development may permit use of landscaping to screen ground mounted
equipment.
6. Applicable Codes
All improvements shall be constructed in accordance with the California Building Code
(with Lynwood, modifications), the Los Angeles County Fire Code (with Lynwood
modifications), the Lynwood Municipal Code, and all other current City standards.
7. Offsite Improvements
Pursuant to the Agreement, Agency and Developer shall perform, or cause to be
performed, all offsite improvements required by law or as a condition to any governmental or
local approval orl permit. Developer shall provide plans to the City's Public Works Department
for approval and completion of all improvements, but not limited to the following:
A. Predevelopment improvements. Developer shall construct the following
off -site improvements, in accordance with applicable law, before the construction of the
Residential Units to ensure the design and construction budget are compatible with the
Agency's goals and that Developer has the resources to complete construction so that the
Residential Units may be readily sold in accordance with the terms of this Agreement: (i)
closure of existing driveway approach and construction of proposed driveway on both
Muriel Drive and Thorson for shared access to each of the Residential Units, (ii) re-
grading of parkway and landscaping along the east side of the street on Muriel Drive
from Josephine to the end of the street at the 105 Freeway and the western side of the
street on Thorson Avenue from Josephine to the end of the street at the 105 Freeway , and
(iii) reconstruction of alley approach at Thorson Avenue as requested or required by
City's Public Works Department; and or per plans submitted and approved by Public
Works in accordance with the City Building Code.].
3
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828.5
B. Improvements concurrent with Residential Units construction. The off -
site improvements to be constructed by Developer as part of the Project for the
construction of the Residential Units shall include, but not be limited to, (i) new
sidewalks on both Muriel Drive and Thorson Avenue along all areas immediately
abutting the Site, (ii) new curb and gutters on both Muriel Drive and Thorson Avenue
along all areas immediately abutting, (iii) construction of new wheelchair ramps on the 4
northern corners where both Muriel Drive and Thorson Avenue intersect with Josephine
Street, (ib) provide and install light street pole with light fixture on, (v) grind and overlay
all asphalt pavement on Muriel Drive, north of Josephine Street to the end of the street
abutting the 105 Freeway. All concurrent improvements shall be as requested or required
by City' Public Works Department; and or per plans submitted and approved by Public
Works in accordance with the City Building Code.
4
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828.5
ATTACHMENT NO. 5
Muriel /Thorson DDA
RELEASE OF CONSTRUCTION COVENANTS
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
J.B. DEVELOPMENT GROUP, LLC
8116 Eastern Avenue
Bell Gardens, CA 90201
Attention: Project Management
(Space Above This Line for Recorder's Office Use Only)
RELEASE OF CONSTRUCTION COVENANTS
WHEREAS, by a Disposition and Development Agreement ( "Agreement ") dated
2011 between and among the LYNWOOD REDEVELOPMENT AGENCY
("Agency ") and J.B. DEVELOPMENT GROUP, LLC, a California limited liability company
( "Developer "), Developer has agreed to develop either six single family detached houses or a
multi - family complex ( "Project ") on the Site (as such term is defined in the Agreement); and
WHEREAS, as referenced in the Agreement, Agency shall furnish Developer with a
Release of Construction Covenants upon completion of construction and development, which
release shall be in such form as to permit it to be recorded in the Official Records of the County
Clerk of Los Angeles County, California; and
WHEREAS, Developer has requested that Agency furnish Developer with the Release of
Construction Covenants for the Site more particularly described on Exhibit "A" attached hereto
and incorporated herein by reference (the "Site "); and
WHEREAS, the Agreement provided for certain covenants to run with the land, which
covenants were incorporated in the Regulatory Agreement, as those terms are defined in the
Agreement; and
WHEREAS, such Release of Construction Covenants shall constitute a conclusive
determination by Agency of the satisfactory completion by Developer of the construction and
development required by the Agreement and of Developer's full compliance with the terms of
the Agreement with respect to such construction and development, but not of the Regulatory
Agreement, the provisions of which shall continue to run with the land pursuant to their terms;
and
WHEREAS, Agency has conclusively determined that the construction and development
on the Site required by the Agreement has been satisfactorily completed by Developer in full
compliance with the terms of the Agreement.
5
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828.5
NOW, THEREFORE,
1. The improvements required to be constructed have been satisfactorily completed
in accordance with the provisions of said Agreement.
2. This Release shall constitute a conclusive determination of satisfaction of the
agreements and covenants contained in the Agreement with respect to the obligations of the
Developer, and its successors and assigns, to construct the improvements and the dates for the
beginning and completion thereof.
3. This Release shall not constitute evidence of Developer's compliance with the
Regulatory Agreement, the provisions of which shall continue to run with the land.
4. This Release shall not constitute evidence of compliance with or satisfaction of
any obligation of the Developer to any Agency of a mortgage or any insurer of a mortgage,
securing money loaned to finance the improvements or any part thereof.
5. This Release is not a Notice of Completion as referred to in California Civil Code
Section 3093.
6. Except as stated herein, nothing contained in this instrument shall modify in any
way any other provisions of the Agreement or any other provisions of the documents
incorporated therein.
IN WITNESS WHEREOF, the Agency has executed this Release of Construction
Covenants this day of
LYNWOOD REDEVELOPMENT AGENCY,
a public body, corporate and politic
By
Executive Director
6
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828 5
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On , 20_, before me, , a Notary Public,
personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
7
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828.5
EXHIBIT "A"
DESCRIPTION OF SITE
That certain real property located in the City of Lynwood, Los Angeles County, State of
California, more particularly described as:
[To Be Inserted]
8
Release of Construction Covenants
Attachment No. 5 to
Muriel/Thorson DDA
01095/0013/68828.5
ATTACHMENT NO. 6
Muriel /Thorson DDA
GRANT DEED
FREE RECORDING REQUESTED BY AND
AFTER RECORDATION RETURN TO:
J.B. GROUP, LLC
8116 Eastern Avenue
Bell Gardens, CA 90201
(Space Above This Line For Recorder's Office Use Only)
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,
THE LYNWOOD REDEVELOPMENT AGENCY, a public body, corporate and politic,
of the State of California ( "Grantor "), acting to carry out its functions under the housing law of
the State of California, hereby grants to J.B. DEVELOPMENT GROUP, LLC, a California
limited liability company ( "Grantee "), the real property located between Muriel Drive and
Thorson Avenue, immediately south of the 1 -105 Freeway (APN: 6174 - 008 -901), Lynwood,
California ( "Site ") legally described in Exhibit "A" attached hereto and incorporated herein by
this reference.
As conditions of this conveyance, the Grantee covenants by and for itself and any
successors in interest for the benefit of the Grantee, Grantor and the City of Lynwood ( "City "),
as follows:
1. Governing Documents. The Site is conveyed pursuant to a Disposition and
Development Agreement ( "DDA ") entered into between and among Grantor and Grantee dated
, 2010. Grantee covenants and agrees for itself and its successors and assigns to
use, operate and intaintain the Site in accordance with the DDA and this Deed. In the event of
any conflict between this Grant Deed and the DDA, the provisions of the DDA shall control.
2. Regulatory Agreement. Grantee covenants and agrees for itself and its
successors and assigns to its interest in the Site that it shall abide by all of the terms listed in the
Regulatory Agreement attached to the DDA as Attachment No. 7.
3. Use of Site. The Grantee covenants that Grantee may only use the Site for
residential purposes consistent with the terms, covenants and conditions set forth in the DDA and
1
Grant Deed
Attachment No. 6 to
Muriel /Thorson DDA
01095/0013/68828.5
the Regulatory Agreement, by which Grantee has agreed to be bound. Grantee shall have no
right to subdivide, separate, or partition the Site except as necessary to separate ownership of the
six or seven single family residential units as provided in the DDA. Breach of the terms,
covenants, conditions, and provisions of the DDA or Regulatory Agreement shall be a material
breach of this conveyance.
4. Encumbrances Prohibited. Prior to issuance of the Release of Construction
Covenants by the Grantor as provided in the DDA, the Grantee shall not place or suffer to be
placed on the Site any lien or encumbrance other than mortgages, deeds of trust or any other
form of conveyance (collectively, "lien "), except as specifically provided in the DDA and
attachments thereto.
5. Non-Discrimination. The Grantee covenants that except for the
tenancy /occupancy restrictions not prohibited by federal law as embodied in the DDA, there
shall be no discrimination against, or segregation of, any persons, or group of persons, on
account of race, color, creed, religion, sex, marital status, national origin or ancestry in the rental,
sale, lease, sublease, transfer, use, occupancy, or enjoyment of the Site, or any portion thereof,
nor shall Grantee, or any person claiming under or through Grantee, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site or
any portion thereof. The nondiscrimination and nonsegregation covenants contained herein shall
remain in effect in perpetuity.
6. Form of Nondiscrimination Clauses in Agreements. Subject to occupancy
restrictions not prohibited by federal law as embodied in the DDA, which may modify the
following nondiscrimination clauses, the following shall apply: Grantee shall refrain from
restricting the sale, or lease of any portion of the Site on the basis of race, color, creed, religion,
sex, marital status, age, physical or mental disability, ancestry, or national origin of any person.
All such deeds, leases, or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
a. Deeds: In deeds the following language shall appear: "The
grantee herein covenants by and for itself, its heirs, executors, administrators, and
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, age, physical or mental
disability, ancestry, or national origin in the sale, lease, rental, sublease, transfer,
use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the
grantee itself, or any persons claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees, or vendees in the land herein conveyed. The foregoing covenants
shall tun with the land."
b. Leases: In leases the following language shall appear: "The lessee
herein covenants by and for itself, its heirs, executors, administrators, successors,
2
Grant Deed
Attachment No. 6 to
Muriel/Thorson DDA
01095/0013/68828.5
and assigns, and all persons claiming under or through them, and this lease is
made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons on account of race, color, creed, religion, sex, marital status,
age, physical or mental disability, ancestry, or national origin in the leasing,
subleasing, renting, transferring, use, occupancy, tenure, or enjoyment of the land
herein leased nor shall the lessee itself, or any person claiming under or through
it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of
tenants, lessees, sublessees, subtenants, or vendees in the land herein leased."
c. Contracts: In contracts the following language shall appear:
"There shall be no discrimination against or segregation of any person or group of
per -sons on account of race, color, creed, religion, sex, marital status, age,
physical or mental disability, ancestry, or national origin in the sale, lease, rental,
sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the
transferee itself, or any person claiming under or through it, establish or permit
any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees, or vendees of the land."
The foregoing covenants shall remain in effect in perpetuity.
7. Mortgage Protection. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid
or in any way impair the lien or charge of any mortgage, deed of trust or other financing or
security instrument permitted by the DDA; provided, however, that any successor of Grantee to
the Site shall be bound by such remaining covenants, conditions, restrictions, limitations and
provisions, whether such successor's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
8. Covenants to Run With the Land. The covenants contained in this Grant Deed
shall be construed as covenants running with the land and not as conditions which might result in
forfeiture of title, and shall be binding upon Grantee, its heirs, successors and assigns to the Site,
whether their interest shall be fee, easement, leasehold, beneficial or otherwise.
9. Counterparts. This Grant Deed may be executed in any number of counterparts,
each of which shall be an original and all of which shall constitute one and the same instrument.
3
Grant Deed
Attachment No. 6 to
Muriel/Thorson DDA
01095/0013/68828.5
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers thereunto duly authorized, this day of
"GRANTOR"
LYNWOOD REDEVELOPMENT
AGENCY, INC., a public body, corporate
and politic
Date , Chair
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
Fred Galante, Agency Counsel
4
Grant Deed
Attachment No. 6 to
Muriel/Thorson DDA
01095/0013/68828.5
ACCEPTANCE OF GRANT DEED
By its acceptance of this Grant Deed, Grantee hereby agrees as follows:
1. Grantee expressly understands and agrees that the terms of the Grant Deed shall
be deemed to be covenants running with the land and shall apply to all of the Grantee's
successors and assigns.
2. The provisions of this Grant Deed are hereby approved and accepted.
"GRANTEE"
J.B. DEVELOPMENT GROUP, LLC, a
California limited liability company
Date:
By: Javier Barajas
5
Grant Deed
Attachment No. 6 to
Muriel/Thorson DDA
01095/0017/68828 5
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
[To Be Inserted]
6
Grant Deed
Attachment No. 6 to
Muriel/Thorson DDA
01095/0013/68828 5
STATE OF CALIFORNIA
) ss.
COUNTY OF LOS ANGELES
On , 2010, before me, , a Notary Public,
personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On , 2010, before me, , a Notary Public,
personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
7
Grant Deed
Attachment No. 6 to
Muriel/Thorson DDA
01095/0013/68828 5
ATTACHMENT NO. 7
Muriel/Thorson DDA
REGULATORY AGREEMENT
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
LYNWOOD REDEVELOPMENT AGENCY
11330 Bullis Road
Lynwood, CA 90262
Attn: Executive Director
(Space Above This Line for Recorder's Office Use Only)
REGULATORY AGREEMENT AND
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS REGULATORY AGREEMENT AND DECLARATION OF COVENANTS AND
RESTRICTIONS ( "Covenant Agreement ") is made and entered into and effective as of this
day of , 2010, by and between the LYNWOOD REDEVELOPMENT AGENCY, a
public body, corporate and politic ( "Agency ") and J.B. DEVELOPMENT GROUP, LLC, a
California limited liability company ( "Developer ").
RECITALS:
Pursuant to a Disposition and Development Agreement between and among Agency, City
and Developer dated , 2010 ( "Disposition and Development Agreement "),
the Agency has agreed to sell to Developer that certain real property located between Muriel
Drive and Thorson Avenue, immediately south of the I -105 Freeway (APN: 6174 - 008 -901)
in Lynwood, California ( "Property ") to allow Developer to redevelop the Property by creating
additional housing opportunities within the City. The Property will be developed with either 6
detached 2 -story homes or a Multi - Family Residential Complex (each home or rental unit shall
be referred to as a "Unit ", and collectively, the "Project "). This redevelopment of the Property
will occur pursuant to a Disposition and Development Agreement between the Agency and
Developer dated , 2010 ( "DDA ").
Developer and Agency desire to place restrictions upon the Property and the use of each
of the Units to be developed to ensure that each Unit is continuously used consistent with the
requirements and restrictions under Redevelopment Law and be binding on Developer, its
lessees, assignees and successors -in- interest in the Property for so long as this Covenant
Agreement shall remain in effect. The owner or renter of each residential unit shall collectively
be referred to as "Residents" whereas the owner of a residential unit or owner of the multi - family
residential complex shall collectively be referred to as "Owner ")
1
Regulatory Agreement
Attachment No. 7 to
Muriel/Thorson DDA
01095/0013/68828.5
•
AGREEMENT:
NOW, THEREFORE, the Owner and Agency declare, covenant and agree, by and for
themselves, their heirs, executors, administrators and assigns, and all persons claiming under or
through them, that each of the Units shall be held, transferred, encumbered, used, sold,
conveyed, and occupied subject to the covenants and restrictions hereinafter set forth, all of
which are declared to be in furtherance of a common plan for the development and sale or rental
of each of the Units, and are established expressly and exclusively for the use and benefit of the
residents of the Units.
A. RESIDENTIAL PROPERTY. Owner hereby represents, covenants, warrants
and agrees as follows:
1. Purpose. The Property is being acquired and each of the Units shall be
developed to provide improved housing stock within the community.
2. Residential Use. None of the Units may be used at any time on a
transient basis or used as a hotel, motel, dormitory, fraternity house, sorority house, rooming
house, nursing home, hospital, sanitarium, trailer court or park without the prior consent of the
City and Agency, which consent may be given or withheld in its sole and absolute discretion.
3. Conversion of Project. No part of any of the Units will at any time be
owned by a cooperative housing corporation, nor shall the Owner take any steps in connection
with the conversion to any other form of ownership besides the approved housing units, without
the prior written approval of City and Agency, which approval may be given or withheld in its
sole and absolute discretion.
B. MAINTENANCE.
1. Maintenance Obligation. Developer hereby covenants and agrees to
maintain and repair, or cause to be maintained and repaired, the Property and each Unit and all
related on -site improvements and landscaping including, without limitation, buildings, parking
areas and lighting in a first class condition and repair, free of rubbish, debris and other hazards to
persons using the same, and in accordance with all applicable laws, rules, ordinances and
regulations of all federal, state, and local bodies and agencies having jurisdiction, at Developer's
sole cost and expense. Such maintenance and repair shall include, but not be limited to, the
following: (i) sweeping and trash removal; (ii) the care and replacement of all shrubbery,
plantings, and other landscaping in a healthy condition; and (iii) all graffiti and defacement of
any type including marks, words or pictures shall be removed from any Unit and any necessary
repair or painting completed within a reasonable time but in no event more than one week after
the notice to Developer from City. In addition, Developer shall be required to maintain the
Property in such a manner as to avoid the reasonable determination of a duly authorized official
of the City that a public nuisance has been created by the absence of adequate maintenance such
as to be detrimental to the public health, safety or general welfare.
2. Right of Entry. In the event that Developer fails to maintain the Property
in the above - mentioned condition, and satisfactory progress is not made in correcting the
condition within thirty (30) days from the date of written notice from City, or if Developer and
2
Regulatory Agreement
Attachment No. 7 to
Muriel/Thorson DDA
01095/0013/68828 5
City agree such condition cannot reasonably be cured within such 30 -day period, Developer shall
have such time as Developer and City mutually agree may be reasonably necessary to correct the
condition provided that Developer is diligent in pursuit of the cure, City may, at its option, and
without further notice to Developer, declare the unperformed maintenance to constitute a public
nuisance. Thereafter, City, its employees, contractors or agents, may cure Developer's default
by entering the Property and performing the necessary landscaping and /or maintenance. The
City shall give Developer or its representative reasonable notice of the time and manner of entry,
and entry shall only be at such times and in such manner as is reasonably necessary to carry out
this Covenant Agreement. Developer shall pay such costs as are reasonably incurred by City for
such maintenance, including attorneys' fees and costs.
3. Homeowners' Association; Reserves. Prior to selling or renting any of
the Units, Developer shall establish a homeowners' association or rental rules, as applicable, to
govern the operation and shall require that, for the duration of the existence of the Units.
Additionally, if single - family units are created, each of the Residents shall make an annual
contribution sufficient to establish to a replacement reserve account for the maintenance and
replacement of the Units and Property.
4. Lien. If City maintenance costs incurred pursuant to Section C.2 herein
are not reimbursed within thirty (30) days after Resident's receipt of notice thereof, the same
shall be deemed delinquent, and the amount thereof shall bear interest thereafter at a rate of the
lower of ten percent (10 %) per annum or the legal maximum until paid. Any and all delinquent
amounts, together with said interest, costs and reasonable attorneys' fees, shall be a personal
obligation of Developer as well as a lien and charge, with power of sale, upon the property
interests of Developer, and the rents, issues and profits of such property. City may bring an
action at law against Developer to obligate Developer to pay any such sums or foreclose the lien
against Developer's property interests. Any such lien may be enforced by sale by the City
following recordation of a Notice of Default of Sale given in the manner and time required by
law as in the case of a deed of trust; such sale to be conducted in accordance with the provisions
of Section 2924, et seq., of the California Civil Code, applicable to the exercise of powers of sale
in mortgages and deeds of trust, or in any other manner permitted by law.
Any monetary lien provided for herein shall be subordinate to any bona fide mortgage or
deed of trust covering an ownership interest in and to a Unit at the Property, and any purchaser at
any foreclosure or trustee's sale (as well as any deed or assignment in lieu of foreclosure or
trustee's sale) under any such mortgage or deed of trust shall take title free from any such
monetary lien, but otherwise subject to the provisions hereof; provided that, after the foreclosure
of any such mortgage and/or deed of trust, all other assessments provided for herein to the extent
they relate to the expenses incurred subsequent to such foreclosure, assessed hereunder to the
purchaser at the foreclosure sale, as owner of the Property after the date of such foreclosure sale,
shall become a lien upon the Property upon recordation of a Notice of Assessment or Notice of
Claim of Lien as herein provided.
C. COMPLIANCE WITH LAWS.
1. State and Local Laws. Developer and Residents shall comply with all
provisions of the Health & Safety Code, including but not limited to Section 33437 prohibiting
3
Regulatory Agreement
Attachment No. 7 to
Muriel/Thorson DDA
01095/0013/68828.5
speculation or excess profit taking in undeveloped land. The Residents shall comply with all
ordinances, regulations and standards of the City applicable to the Property. The Residents shall
also comply with all rules and regulations of any assessment district of the City and/or Agency
with jurisdiction over the Property, if any.
F. ENFORCEMENT. In the event that Owner defaults in the performance or
observance of any covenant, agreement or obligation of Owner pursuant to this Covenant
Agreement, and if such default remains uncured for a period of thirty (30) days after written
notice thereof shall have been given by City and/or Agency, or, in the event said default cannot
be cured within said time period, and Owner has failed to commence to cure such default within
said thirty (30) days and thereafter fails to diligently prosecute said cure to completion, then City
and /or Agency shall declare an "Event of Default" to have occurred hereunder, and, at its option,
may take one or more of the following steps:
1. By mandamus or other suit, action or proceeding at law or in equity,
require Owner to perform its obligations and covenants hereunder or enjoin any acts or things
which may be unlawful or in violation of this Covenant Agreement; or
2. Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of Owner hereunder; or
3. Enter the Property and cure the Event of Default as provided in Section C
above.
4. Impose, through the City Manager, an administrative fine for each day the
violation continues. The amount of the fine shall be Twenty -Five Dollars ($25.00) per day,
unless the violation is deemed a major violation, in which case the fine shall be Seventy -Five
Dollars ($75.00) per day. The Owner may appeal the assessment of any fine to the City Council
who may reverse, modify or uphold the decision of the City Manager. In making this decision,
the City Council shall determine whether the violation exists and whether the amount of the fine
is appropriate under the circumstances.
Except as otherwise expressly stated in this Covenant Agreement, the rights and remedies
of the parties are cumulative, and the exercise by any party of one or more of its rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other rights
or remedies for the same default or any other default by another party.
G. NONDISCRIMINATION. There shall be no discrimination against or
segregation of any person, or group of persons, on account of race, color, creed, religion, sex,
age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of any portion of the Property, nor shall the Owner, or any
person claiming under or through Owner, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants or lessees of the Property, or any part thereof (except as permitted by this Covenant
Agreement).
H. FORM OF NONDISCRIMINATION CLAUSES IN AGREEMENTS.
Subject to the tenancy /occupancy restrictions not prohibited by federal law as embodied in the
4
Regulatory Agreement
Attachment No. 7 to
Muriel/Thorson DDA
01095/0013/68828.5
Disposition and Development Agreement and herein, which may modify the following
nondiscrimination clauses, the following shall apply: Owner shall refrain from restricting the
rental, sale, or lease of any portion of the Property on the basis of race, color, creed, religion, sex,
marital status, age, physical or mental disability, ancestry, or national origin of any person. All
such deeds, leases, or contracts shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
1. Deeds. In deeds the following language shall appear: "The grantee herein
covenants by and for itself, its heirs, executors, administrators, and 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, age,
physical or mental disability, ancestry, or national origin in the sale, lease, rental, sublease,
transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee
itself, or any persons claiming under or through it, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location, number, use,
or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed.
The foregoing covenants shall run with the land."
2. Leases. In leases the following language shall appear: "The lessee herein
covenants by and for itself, its heirs, executors, administrators, successors, and assigns, and all
persons claiming under or through them, and this lease is made and accepted upon and subject to
the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, age,
physical or mental disability, ancestry, or national origin in the leasing, subleasing,
renting, transferring, use, occupancy, tenure, or enjoyment of the land herein leased nor
shall the lessee itself, or any person claiming under or through it, establish or permit any
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or
vendees in the land herein leased."
3. Contracts. In contracts the following language shall appear: "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, age, physical or mental disability, ancestry, or national
origin in the sale, lease, rental, sublease, transfer, use, occupancy, tenure, or enjoyment of the
land, nor shall the transferee itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the land."
The foregoing covenants shall remain in effect in perpetuity.
I. COVENANTS TO RUN WITH THE LAND. The Owner hereby subjects each
Unit to the covenants, reservations, and restrictions set forth in this Covenant Agreement. City,
Agency and the Owner hereby declare their express intent that all such covenants, reservations,
and restrictions shall be deemed covenants running with the land and shall pass to and be binding
5
Regulatory Agreement
Attachment No. 7 to
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0109510013/68828.5
upon the Owner's successors in title to each Unit; provided, however, that on the termination of
this Covenant Agreement said covenants, reservations and restrictions shall expire. All
covenants without regard to technical classification or designation shall be binding for the
benefit of the City and Agency, and such covenants shall run in favor of the City and Agency
and cease to be in effect five (5) years from the date of approval . Each and every contract, deed
or other instrument hereafter executed covering or conveying any Unit or any portion thereof
shall conclusively be held to have been executed, delivered and accepted subject to such
covenants, reservations, and restrictions, regardless of whether such covenants, reservations, and
restrictions are set forth in such contract, deed or other instrument.
Agency and Owner hereby declare their understanding and intent that the burden of the
covenants set forth herein touch and concern the land in that Owner's legal interest in each Unit
is rendered less valuable thereby. Agency and Owner hereby further declare their understanding
and intent that the benefit of such covenants touch and concern the land by enhancing and
increasing the enjoyment and use of the Units by their Owners, the intended beneficiaries of such
covenants, reservations, and restrictions, and by furthering the public purposes for which the
Agency was formed.
Owner hereby agrees to hold, sell, and convey each of the Units subject to the terms of
this Covenant Agreement. Owner also grants to the City and Agency the right and power to
enforce the terms of this Covenant Agreement against the Owner and all persons having any
right, title or interest in the Property, or any part thereof, their heirs, successive owners and
as signs.
J. INDEMNIFICATION. Owner agrees for itself and its successors and assigns to
indemnify, defend, and hold harmless City and Agency and their respective officers, members,
officials, employees, agents, volunteers, and representatives from and against any loss, liability,
claim, or judgment relating in any manner to the Property excepting only any such loss, liability,
claim, or judgment arising out of the intentional wrongdoing or gross negligence of City, Agency
or their officers, officials, employees, members, agents, volunteers, or representatives. Owner,
while in possession of the Property, and each successor or assign of Owner while in possession
of any portion of the Property, shall remain fully obligated for the payment of property taxes and
assessments in connection with such portion of the Property. The foregoing indemnification,
defense, and hold harmless agreement shall only be applicable to and binding upon the party then
owning the Property or applicable portion thereof.
K. ATTORNEYS' FEES. hl the event that a party to this Covenant Agreement
brings an action against the other party hereto by reason of the breach of any condition,
covenant, representation or warranty in this Covenant Agreement, or otherwise arising out of this
Covenant Agreement, the prevailing party in such action shall be entitled to recover from the
other reasonable expert witness fees, and its attorneys' fees and costs. Attorneys' fees shall
include attomeys' fees on any appeal, and a party entitled to attorneys' fees shall be entitled to all
other reasonable costs for investigating such action, including, but not limited to, the conducting
of discovery, motions and expert witness fees.
6
Regulatory Agreement
Attachment No. 7 to
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0109510013/68828.5
L. AMENDMENTS. This Covenant Agreement shall be amended only by a written
instrument executed by the parties hereto or their successors in title, and duly recorded in the real
property records of the County of Los Angeles.
M. NOTICE. Any notice required to be given hereunder shall be made in writing
and shall be given by personal delivery, certified or registered mail, postage prepaid, return
receipt requested, at the addresses specified below, or at such other addresses as may be
specified in writing by the parties hereto:
City /Agency: City of Lynwood
11330 Bullis Road
Lynwood, CA 90262
Attn: City Manager
Copy to: Aleshire & Wynder, LLP
18881 Von Karman, Suite 400
Irvine, California 92612
Attn: Fred Galante, Esq.
Owner: J.B. DEVELOPMENT GROUP, LLC
8116 Eastern Avenue
Bell Gardens, CA 90201
The notice shall be deemed given three (3) business days after the date of mailing, or, if
personally delivered, when received.
N. SEVERABILITY /WAIVER/INTEGRATION.
1. Severability. If any provision of this Covenant Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
portions hereof shall not in any way be affected or impaired thereby.
2. Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate this Covenant Agreement nor shall it be considered a waiver
of any other covenants or conditions, nor shall the delay or forbearance by either party in
exercising any remedy or right be considered a waiver of, or an estoppel against, the later
exercise of such remedy or right.
3. Integration. This Covenant Agreement contains the entire agreement
between the parties and neither party relies on any warranty or representation not contained in
this Covenant Agreement.
0 GOVERNING LAW. This Covenant Agreement shall be governed by the laws
of the State of Califomia.
P. COUNTERPARTS. This Covenant Agreement may be executed in any number
of counterparts, each of which shall constitute one original and all of which shall be one and the
same instrument.
7
Regulatory Agreement
Attachment No. 7 to
Muriel/Thorson DDA
01095/0013/68828 5
IN WITNESS WHEREOF, the City, Agency and Developer have executed this
Regulatory Agreement and Declaration of Covenants, Conditions and Restrictions by duly
authorized representatives on the date first written hereinabove.
"AGENCY"
LYNWOOD REDEVELOPMENT
AGENCY, a public body, corporate and
politic
Date:
Executive Director
ATTEST:
Secretary
"J.B. DEVELOPMENT GROUP, LLC"
Date:
By: Javier Barajas
[End of Signatures]
8
Regulatory Agreement
Attachment No. 7 to
Muriel /Thorson DDA
01095/0013/68828.5
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On , 20_, before me, , a Notary Public,
personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
On , 20_, before me, , a Notary Public,
personally appeared , who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the
within instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
9
Regulatory Agreement
Attachment No. 7 to
Muriel/Thorson DDA
01095/0013/68828.5
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
That certain real property located in the City of Lynwood, Los Angeles County, State of
California, more particularly described as:
[Insert Legal Description]
10
Regulatory Agreement
Attachment No. 7 to
Muriel/Thorson DDA
01095/0013/68828.5
TABLE OF CONTENTS
Page
1
01095/0013/68828.5
SUMMARY REPORT PERTAINING TO THE DISPOSITION AND DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF LYNWOOD REDEVELOPMENT
AGENCY AND J.B. DEVELOPMENT GROUP, LLC, DEVELOPER
This report has been prepared in compliance with Section 33433 of the
California Community Redevelopment Law (Health and Safety Code Section 33000 et
seq.), which provides in part:
"Before any property of the agency acquired in whole or in part, directly or indirectly,
with tax increment moneys is sold or leased for development pursuant to the
redevelopment plan, the sale or lease shall first be approved by the legislative body by
resolution after public hearing. Notice of the time and place of the hearing shall be
published in a newspaper of general circulation in the community for at least two
successive weeks prior to the hearing.
The Agency shall make available for public inspection and copying at a cost not
to exceed the cost of duplication:
a. A copy of the proposed sale or lease;
b. A summary which describes and specifies...:
1. The cost of the agreement to the agency, including land acquisition
costs, clearance costs, relocation costs, the costs of any improvements to
be provided by the agency, plus the expected interest on any loans or
bonds to finance the agreements; and
2. The estimated value of the interest to be conveyed or leased,
determined at the highest and best uses permitted under the plan; and
3. The estimated value of the interest to be conveyed or leased,
determined at the use and with the conditions, covenants, and
development costs required by the sale or lease. The purchase price or
present value of the lease payments that the lessor will be required to
make during the term of the lease. If the sale price or total rental amount
is less than the fair market value of the interest to be conveyed or leased,
determined at the highest and best use consistent with the redevelopment
plan, then the agency shall provide as part of the summary an explanation
of the reasons for the difference; and
4. An explanation of why the sale or lease of the property will assist in
the elimination of blight."
A. PROPOSED AGREEMENT
A copy of the proposed Real Estate Agreement ( "Agreement ") between J.B.
DEVELOPMENT GROUP, LLC (Developer) and the Redevelopment Agency of the City
of Lynwood ( "Agency ") is attached for public review. The Agreement sets forth the
responsibilities of the Developer and Agency and specifically establishes the
parameters, restrictions and limitations of the proposed redevelopment project
( "Project "). The proposed Project will benefit the housing replacement needs of Project
Area "A" and the Alameda Project Area ( "Project Areas ").
B. SUMMARY OF THE AGREEMENT
1. The Site. The subject property ( "Site ") consists of a 41,470 square foot
parcel located immediately south of the 105 Freeway between Muriel
Drive and Thorson Avenue. The proposed Project is located just outside
the Project Areas. The development of the Site is regulated by City of
Lynwood General Plan, and Zoning Ordinance.
The Agency -owned Site (parcel number 6174 - 008 -901) is almost an acre
in size, commonly known as Muriel/Thorson Site. The site is mostly
vacant, with some foundation work already completed.
The Site is described in Attachment 1 of the Agreement. The Agency
intends to convey to the Developer the Site in an "as -is" basis.
2. Proposed Project. The Developer proposes to complete construction of
six (6) new single - family dwelling units on the Site. The units will be
unrestricted and sold at fair market rate.
Alternatively, Developer shall construct a multi - family rental complex
containing 16 or 17 separate residential units, with adequate on -site
parking and in compliance with City all applicable City standards
The improvements to be constructed on the Site are expected to be of
good architectural quality, shall be well landscaped, and shall be
effectively and aesthetically designed. The total development shall be in
conformity with the Redevelopment Plan.
3. Purchase Price. The terms of the Agreement require the Agency to
convey the Site to the Developer for a purchase price of Two hundred
Thirty Five Thousand Dollars ($230,000), or $5.55 per square foot. Said
consideration is to be paid by the Developer to the Agency.
2
4. Condition of the Site, Remediation of the Site. The Developer shall
indemnify Agency on any suits (hazardous, environmental and other)
resulting from the development or use of the Site. The Agreement
requires that the Developer accept the Site in "as -is" condition, with no
warranty expressed or implied by the Agency.
5. Use Covenants. N/A
6. Transfers of Interest in Site. Transfers are permitted only as expressly
described in the Agreement.
7. Obligation to Refrain from Discrimination. The Developer covenants 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, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Site. The
anti - discrimination covenants shall run with the land.
8. Indemnification. The Agreement contains a comprehensive hold
harmless clause that requires the Developer to indemnify, upon closing,
Agency from and against any claims, demands, obligations, losses, costs,
damages, liabilities, judgements or expenses (including reasonable
attorneys' fees, charges and disbursements) arising out of or in
connection with claims against the Agency pertaining to the Agency's
authority and /or right to transfer Site to the Developer or pertaining to the
Agency's use or alleged improper use of the funds originally used by the
Agency to acquire the Site.
C. SUMMARY OF AGENCY COSTS AND REVENUES
The cost of the Agreement to the public is defined as the net cost which may be
expressed as the total project costs to the Agency Board less the proceeds of the sale
of the property to the Developer.
The 41,470- square foot Site was acquired July 15, 1987 for $210,000. In addition, the
Agency spent $435,975 on partial on -site improvements.
Acquisition of Site $ 210,000
Foundation /On -Site costs paid by Agency $ 435,975
Legal $ 7,500
Total Cost 47
3
The Agency Board is selling the Site for $230,000.
The net loss to the Agency is $423,475 (total Agency cost of $653,475 less Developer
payment for land of $230,000).
Other Costs
1. Public Improvements. The Agency has not paid for any public improvements
related to this Project.
2. Demolition. There have been no demolition costs paid by the Agency.
3. Bond Interest. There have been no Agency bond expenses to acquire the
Site.
D. ESTIMATED FAIR MARKET VALUE
1. Highest and Best Use
The California Health and Safety Code requires the disclosure of the highest and best
use of the property to be sold.
The estimated value of the Site, based on an appraisal completed on April 19, 2010
was $230,000. This amount was justified with the current market conditions, existing
assessments, and zoning.
2. Fair Re -Use Value
Under the terms of the Agreement, the total compensation to be paid for the Site is
$230,000, the estimated market value of the Site. The Site is being sold to the
Developer for an amount that is not less than the fair re -use value specified in the
Agreement based on current market conditions.
4
E. ELIMINATION OF BLIGHT
The disposition of property under current law requires that the Agency explain how the
disposition will assist in the elimination of blight. The Site exhibits characteristics of
both economic and physical blight, since the Site has been underutilized for many years
and the private market has not been able to put the property to productive use. The
proposed disposition will allow the development of the Site that will result in a use that
meets the requirements of the Lynwood General Plan and Development Code.
Redevelopment of the Site will eliminate adverse economic and physical conditions,
and generate additional tax revenues to the City.
A summary of the conditions of blight and an explanation of how the Agreement
addresses these conditions is as follows:
a. Physical Blight. The characteristics of physical blight at the Site include
unfinished single - family housing foundations.
b. Economic Blight. There are four characteristics of economic blight at the
Site: 1) Graffiti is prevalent along the fence next to the 105 Freeway; 2)
The vacant parcel seems to be used, on occasions, as a dumping ground.
In addition, there have been reports of heavy trash on the site in the past.
Though the Agency has fenced the entire site, graffiti and dumping will
continue to be a problem since the area appears to be used for loitering
and other illegal activity; 3) vacancy; and 4) underutilization. The Site has
been unused and underutilized for many years. Redevelopment of the
Site will contribute to the economic health of the surrounding area and is
anticipated to provide additional economic opportunities for the
community.
F. SUMMARY STATEMENT
The full Agreement and this disclosure report prepared in compliance with Section
33433 of the California Community Redevelopment Law (Health and Safety Code
Section 33000 et seq.) are available for public review at the City Clerks office located at
11330 Bullis Road, Lynwood, CA 90262. A photocopy of these documents may be
obtained from the Agency Secretary/City Clerk by paying the usual photocopy fee
regularly charged by the Agency and City.
5
RESOLUTION NO.
A JOINT RESOLUTION OF THE CITY COUNCIL AND THE LYNWOOD
REDEVELOPMENT AGENCY OF THE CITY OF LYNWOOD APPROVING THE
DISPOSITION AND DEVELOPMENT AGREEMENT (DDA) BETWEEN THE
LYNWOOD REDEVELOPMENT AGENCY (AGENCY) AND J.B.
DEVELOPMENT GROUP, LLC (DEVELOPER) FOR THE SALE AND
DEVELOPMENT OF AGENCY OWNED PROPERTY COMMONLY KNOWN AS
THE MURIEUTHORSON SITE AND ACCEPTING THE 33433 SUMMARY
REPORT
WHEREAS, the Lynwood Redevelopment Agency ( "Agency ") is a public
body, corporate and politic, organized and existing under California Community
Redevelopment Law (Health & Safety Code § 33000, et seq.) ( "CRL "); and
WHEREAS, in accordance with the CRL, the City Council of the City of
Lynwood adopted the Redevelopment Plan for the Redevelopment Project Area
"A" in the City of Lynwood on July 10, 1973, as established by Ordinance No.
945 of the City Council, and as amended from time to time; and
WHEREAS, the Agency currently owns the property commonly known as
the Muriel/Thorson Site ( "Property ") located between Muriel Drive and Thorson
Avenue adjacent to the south side of the 1 -105 Freeway, having a lot size of
approximately 41,470 square feet; and
WHEREAS, the Property, which is the subject of the proposed project and
Disposition and Development Agreement ( "DDA "), was purchased from Caltrans
for $210,000 in 1987; and
WHEREAS, the Property has been underutilized for years and is
considered blighted as it has been subject to vandalism, graffiti, and illegal
dumping that has impacted Agency funds for maintenance and upkeep; and
WHEREAS, the Developer proposes to complete construction of six to
seven (6 -7) new single - family dwelling units on the Site or alternatively 16 -17
multi - family rental residential units, to be sold or rented at fair market rate,
subject to the covenant agreement, the form of which is attached to the DDA
( "Project "); and
WHEREAS, the sale of the Property pursuant to the DDA effectuates the
Redevelopment Plan insofar as the Property is located nearby and benefits the
Redevelopment Project Area by causing the development to improve the
Property with new housing, landscaping and on /offsite improvements that will
assist in the elimination of blight and beautification of the community; and
{ W` {s AGENDA STAFF REPORT
DATE: December 21, 2010
TO: Honorable Chair and Members of the Redevelopment
Agency
APPROVED BY: Roger L. Haley, Executive Direc rA
PREPARED BY: Maria Quinonez, Secretary
l Cesar Ortiz, Office Assistant II G. D.
SUBJECT: Lynwood Redevelopment Agency Minutes
Recommendation:
Staff recommends that the Lynwood Redevelopment Agency approve the
following minutes:
• Regular Meeting — November 16, 2010
• Special Meeting — November 30, 2010
Background: N/A
Discussion & Analysis: N/A
Fiscal Impact: N/A
Coordinated With: N/A
AGENDA I
ITEM
2
1
LYNWOOD REDEVELOPMENT AGENCY
REGULAR MEETING
November 16, 2010
The Lynwood Redevelopment Agency of the City of Lynwood met in a regular meeting
in the Council Chambers, 11330 Bullis Road on the above date at 5:30 p.m.
Chairman Santillan presiding.
Members Flores, Morton, Rodriguez, Castro and Santillan were present.
Also present were Executive Director Haley, Agency Counsel Galante, Secretary
Quinonez and Treasurer Alatorre.
Secretary Quinonez announced that the Agenda had been posted in accordance with
the Brown Act.
PUBLIC ORAL COMMUNICATIONS
(Regarding Agenda Items Only)
NONE
PUBLIC ORAL COMMUNICATIONS
NONE
CONSENT CALENDAR
It was moved by Member Rodriguez, seconded by Member Morton, to approve the
consent calendar and to receive and file staff reports.
AYES: MEMBERS FLORES, MORTON, RODRIGUEZ, CASTRO AND
SANTILLAN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
Item #1. MINUTES OF THE PREVIOUS MEETINGS:
•
i
Regular Meeting of November 2, 2010
Item #2. RESOLUTION OF THE LYNWOOD REDEVELOPMENT AGENCY OF
LYNWOOD, CALIFORNIA, ALLOWING AND APPROVING THE
DEMANDS AND WARRANTS.
RESOLUTION NO. 2010.051 ENTITLED:
RESOLUTION OF THE LYNWOOD REDEVELOPMENT AGENCY OF LYNWOOD,
CALIFORNIA, ALLOWING AND APPROVING THE DEMANDS AND WARRANTS
1
Item #3. Mayor Pro Tem Castro pulled Item #3 - TREASURER'S QUARTERLY
INVESTMENT REPORT - to vote in conjunction with City Council Item
#16 and LPFA Item #5.
City Treasurer Sal Alatorre provided a report for this item.
Vice Chair Castro requested that the City Treasurer provide a presentation of the City's
investments during the next mid year budget review.
It was moved by Vice Chair Castro, seconded by Chair Santillan, to receive and file the
Treasurer's Quarterly Investment Report listed under the City Council agenda Item #16,
Lynwood Public Finance Authority Item #5, and Lynwood Redevelopment Agency Item
#3.
AYES: COUNCIL MEMBERS FLORES, MORTON, RODRIGUEZ, CASTRO AND
SANTILLAN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
CLOSED SESSION
NONE
ADJOURNMENT
Having no further discussion, it was moved by Vice Chair Castro, seconded by Member
Flores and carried to adjourn the regular Lynwood Redevelopment Agency meeting at
5:31 p.m.
Maria T. Santillan, Chair Maria Quinonez, Secretary
2
LYNWOOD REDEVELOPMENT AGENCY
SPECIAL MEETING
November 30, 2010
The Lynwood Redevelopment Agency of the City of Lynwood met in a special meeting
in the Council Chambers, 11330 Bullis Road on the above date at 5:33 p.m.
Chairman Santillan presiding.
Members Flores, Morton, Rodriguez, Castro and Santillan were present.
Also present were Executive Director Haley, Agency Counsel Galante, Secretary
Quinonez and Treasurer Alatorre.
Secretary Quinonez announced that the Agenda had been posted in accordance with
the Brown Act.
PUBLIC ORAL COMMUNICATIONS
(Regarding Agenda Items Only)
NONE
PUBLIC ORAL COMMUNICATIONS
NONE
CONSENT CALENDAR
It was moved by Member Rodriguez, seconded by Member Morton, to approve the
consent calendar and to receive and file staff reports.
AYES: MEMBERS FLORES, MORTON, RODRIGUEZ, CASTRO AND
SANTILLAN
NOES: NONE
ABSTAIN: NONE
ABSENT: NONE
Item #1. APPROVAL OF ON -CALL LIST FOR HOUSING REHABILITATION
PROGRAM, PROJECT MANAGEMENT, PLANNING AND
ENVIRONMENTAL, REDEVELOPMENT AND HOUSING SERVICES
RESOLUTION NO. 2010.052 ENTITLED:
A RESOLUTION OF THE LYNWOOD REDEVELOPMENT AGENCY APPROVING
THE HOUSING, REDEVELOPMENT SERVICES, PROJECT MANAGEMENT,
PLANNING AND ENVIRONMENTAL SERVICES FIRMS FOR ON -CALL SERVICES
FOR CURRENT AND FUTURE AGENCY PROJECTS FOR A PERIOD OF THREE
YEARS
1
o', } AGENDA STAFF REPORT
DATE: December 21, 2010
TO: Honorable Chairperson and Members of the Agency Board
APPROVED BY: Roger L. Haley, Executive Direc . ��
PREPARED BY: Robert S. Torrez, Assistant City ManagZ
Monica Ochoa, Accounting Technician(
SUBJECT: Approval of the Warrant Register
Recommendation:
Staff respectfully recommends that the Agency Chairperson and Board Members
approve the warrant register for Fiscal Year 2010 -2011.
Attached Warrant Register dated December 21, 2010
AGENDA
ITEM
3
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i
o AGENDA STAFF REPORT
DATE: December 21, 2010
TO: Honorable Chair and Members of the Agency Board
APPROVED BY: Roger L. Haley, Executive Director
PREPARED BY: Fred Galante, Agency Counsel
SUBJECT: Approval of Retainer Agreement with Law Firm of Cox, Castle
& Nicholson for Services Related to Remediation on the
Proposed Imperial Highway Brownsfield Area
Recommendation:
Staff recommends that the Agency adopt the attached resolution entitled "A
RESOLUTION OF THE AGENCY BOARD OF THE LYNWOOD
REDEVELOPMENT AGENCY APPROVING THE RETAINER AGREEMENT
WITH THE LAW FIRM OF COX, CASTLE & NICHOLSON FOR LEGAL
SERVICES RELATED TO REMEDIATION ON THE PROPOSED IMPERIAL
HIGHWAY BROWNSFIELD AREA."
Background:
Redevelopment Agency staff requested a proposal from the law firm of Cox
Castle & Nicholson ( "CCN ") that currently represents M +D Properties, Plaza
Mexico's developer and operator, to assist in compelling responsible parties in the
proposed Plaza Mexico expansion area to remediate contaminated properties.
CCN would work in conjunction with Agency Counsel in this regard. CCN charges
$465 per hour for its services and has estimated the costs of the proposed work to
be between $35,000 and $100,000, which costs will be paid by M +D pursuant to a
deposit or exclusive negotiating agreement to be negotiated and executed
between the Agency and M +D.
Discussion & Analysis:
The law firm of CCN has background and experience in litigating on behalf of AGENDA
M +D in compelling the party responsible for contamination of the former K &K site ITEM
immediately east of the Plaza Mexico development to pay for the cleanup of that
L+
property. As such, Agency staff sought a proposal from CCN to assist Agency
Counsel in the legal effort to compel parties responsible for contamination of the
proposed area to remediate or pay for remediation as well as incidental additional
services related to the proposed Plaza Mexico expansion in coordination with
Agency Counsel. Although Agency Counsel has expertise in this area, the
background possessed by CCN on these particular sites is viewed as a potential
resource to the Agency.
Because CCN has and continues to represent M +D and 3000 E. Imperial, LLC in
these matters, CCN is requiring that the Agency, as a condition of retaining its
services, (1) waive any right to claim that CCN has a conflict of interest and that
CCN cannot continue to represent M +D and (2) not seek to disqualify CCN from
representing M +D. Because this conflict could potentially impede the completion
of all steps toward remediation, the Agency will have to monitor this issue with the
assistance of Agency Counsel.
Due to the conflict issues, the proposed retainer agreement attached to this report
further limits CCN's representation. The retainer agreement explains that CNN
will not initiate any litigation to compel compliance. If litigation becomes
necessary, those services would be performed by Agency Counsel.
Fiscal Impact:
All costs charged by CCN will be reimbursed by M +D pursuant to a deposit or
exclusive negotiating agreement to be negotiated and executed between the
Agency and M +D. As such, CCN's services should not commence until such
agreement with M +D is executed and M +D provides the appropriate deposit to the
Agency.
Coordinated With:
Assistant City Manager
Redevelopment Director
Attachments:
1. Resolution of the Agency Board of the Lynwood Redevelopment
Agency Approving the Retainer Agreement with the Law Firm of
Cox, Castle & Nicholson for Legal Services Related to Remediation
on the Proposed Imperial Highway Brownsfield Area
2. December 13, 2010 Engagement Letter from Cox, Castle &
Nicholson
2
RESOLUTION NO.
A RESOLUTION OF THE AGENCY BOARD OF THE LYNWOOD
REDEVELOPMENT AGENCY APPROVING THE RETAINER AGREEMENT WITH
THE LAW FIRM OF COX, CASTLE & NICHOLSON FOR LEGAL SERVICES
RELATED TO REMEDIATION ON THE PROPOSED IMPERIAL HIGHWAY
BROWNSFIELD AREA
WHEREAS, the Lynwood Redevelopment Agency ( "Agency ") is engaged in
activities necessary to carry out and implement the Redevelopment Plan for Project
Area "A "; and
WHEREAS, in implementing such Redevelopment Plan and the
Implementation Plan, the Agency is desirous of retaining the services of Cox, Castle
& Nicholson, LLP to work with Agency Staff and Agency Counsel in compelling
responsible parties in the proposed Imperial Highway Brownsfield Area to remediate
contaminated properties; and
WHEREAS, the Agency has duly considered all of the terms and conditions
of the December 13, 2010 engagement letter and finds that approving the
engagement letter with Cox, Castle & Nicholson, LLP is in the best interest of the
Agency and the health, safety, morals and welfare of its residents, and in accord
with the public purposes and provision of applicable state and local law and
requirements.
NOW THEREFORE, THE LYNWOOD REDEVELOPMENT AGENCY OF
THE CITY OF LYNWOOD DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. Having carefully reviewed the terms and conditions set forth in the
December 13, 2010 engagement letter with Cox, Castle & Nicholson, LLP, and both
oral and written testimony regarding same, the Agency hereby approves the
engagement letter, provided that the services shall not commence until such time as
the Agency or Staff approves an agreements which spells out cost recovery and
funding of legal services in connection with the proposed Imperial Highway
Brownsfield Area services of Cox, Castle & Nicholson.
Section 2. The Agency hereby authorizes the Chairperson to execute the
December 13, 2010 engagement letter with Cox, Castle & Nicholson, LLP.
Section 3. The Agency finds, as evidenced by a 4 /5ths vote or better, that
the retention of consulting services may be more economically and efficiently
effected through the use of an alternate procedure, such that the Agency Board
hereby approves the exercise of the purchasing exemption authorized under
Lynwood Municipal Code Section 6- 3.12(a)(3).
1
Section 4. This Resolution shall become effective immediately upon its
adoption by the Agency.
PASSED, APPROVED and ADOPTED this 21st day of December 2010.
AIDE CASTRO, CHAIR
ATTEST:
MARIA QUINONEZ ROGER L. HALEY
SECRETARY EXECUTIVE DIRECTOR
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
FRED GALANTE SARAH MAGANA - WITHERS
AGENCY COUNSEL REDEVELOPMENT DIRECTOR
1 C O X C A S T L E N I C H O L S O N Cox, Castle & Nicholson LLP
555 California Street, 10 Floor
San Francisco, California 94104 -1513
P 415.392.4200 F 415.392.4250
Robett P. Doty
415.262.5115
rdoty@coxcasde.com
File No. 99999
December 13, 2010
PRIVILEGED & CONFIDENTIAL
ATTORNEY- CLIENT COMMUNICATION; ATTORNEY WORK PRODUCT
Sarah Magana Withers
Director of Redevelopment
City of Lynwood
11330 Bullis Road
Lynwood, CA 90262
Fred Galante
City Attorney
Aleshire & Wynder LLP
18881 Van Karman Av.
Tower 17, Suite 400
Irvine, CA 92612
Re: Engagement
Dear Ms. Withers and Mr. Galante:
It has been our pleasure to meet with you and discuss Lynwood's redevelopment
projects and the special counsel services the City of Lynwood Redevelopment Agency
( "Agency" or "you ") may need as it pursues its projects. It would our firm's pleasure and
privilege to work with staff, the City Attorney, and of course the Council/Agency Board and the
community to accomplish the Agency's goals.
As follow -up to our recent meetings and discussions, we have prepared this
engagement agreement to address the range of special counsel services we recent discussed with
Mr. Galante. Based on that discussion, we understand that the Agency wants to focus Cox
Castle & Nicholson's work on Plaza Mexico, so we will create a "matter" number for that and a
separate "matter" number for general consultation that may be requested in connection with
other sites.
In addition to providing the scope of work, time and budget estimates for those
two matters, this Agreement also addresses the other terms of our engagement. We apologize for
the length and formality of this Agreement, but we believe that it is important that our clients
have a clear understanding of Cox Castle & Nicholson's (the "Firm ") policies regarding legal
services and fees from the inception of our relationship. Moreover, many of the provisions of
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 2
this Engagement Agreement ( "Agreement ") are required or recommended by California law, the
State Bar of California, or the Code of Professional Responsibility of the American Bar
Association.
1. Scope of Engagement. By means of this Agreement, the Agency is
engaging the Firm to provide special counsel services to assist the Agency and its regular outside
counsel with legal issues associated with the investigation, remediation, acquisition, cleanup cost
recovery, and related redevelopment issues arising in connection with "brownfield" sites, in
particular the Plaza Mexico site. Our initial identification of tasks associated with that tract is
provided in Attachment A, and we would anticipate refining that task list through further
discussion of priorities and budget resources. As noted above, we will also create a "general
consultation" matter for work that is not specific to Plaza Mexico. Subject to our mutual
agreement, the Agency could also engage us to perform additional services in the future.
For each of the matters covered by this Agreement, we would endeavor to keep
the Agency informed of the progress of those matter and to respond promptly to your inquiries.
On its part, the Agency acknowledges the need to provide us with truthful and accurate
information, and the need to cooperate and to keep us informed of any developments.
2. Fees and Hourly Rates: Budgeting. Our billing practice is to charge for
our legal services, based primarily on the amount of time, including local travel time, devoted to
a matter at hourly rates for the particular professionals involved. These hourly rates are
generally based upon these professionals' experience, expertise, and standing. Our standard
hourly rates generally range from $295.00 per hour to $620.00 per hour for our most senior
attorneys. Both Preston Brooks and Robert Doty have the same standard rate ($560.00 per hour
for 2010). The Firm appreciates that public agencies are a different market than private sector
clients and that they face unique budgetary pressures in the current environment. Accordingly,
the Firm would cap our rates at $465.00 per hour for 2010 and 2011. That represents an
approximately 17% discount this year, and likely a discount for 2011 in excess of 20 %. We
would apply an 8% discount to the rates applicable to any associates or "senior counsel"
attorneys who work on the Agency's matters. Billing is in either quarter -hour or tenth -of -an-
hour increments.
We are happy to work with the Agency to establish "not to exceed amounts" if the
Agency customarily uses that approach when it engages other professionals. We would also
work with you to develop and revise budgets periodically as the precise nature of the needed
services is defined and/or revised.
We normally treat our hourly rates as guidelines and do not always merely
multiply the time by the hourly rate to determine the proper fee. When billing, we review our
computer - prepared time records carefully and make appropriate downward adjustments if we
feel they are called for under the circumstances. In our experience, this manner of billing is
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 3
customary for finns like ours, where work is performed by various professionals, many of whom
are specialists in the type of work being undertaken.
We normally charge for all activities undertaken in providing legal services to you
under this Agreement, including but not limited to the following: conferences, including
preparation and participation; preparation and review of correspondence and other documents;
legal research; court and other appearances; including preparation and participation; and
telephone calls, including calls with you, other attorneys or persons involved with this matter,
and governmental agencies. The legal personnel assigned to your matter will confer among
themselves about the matter, as required. When they do confer, each person will charge for the
time expended. Likewise, if more than one of our legal personnel attends a meeting, court
hearing or other proceeding, each will record his or her time spent, and we will review those time
entries as part of our monthly review process, making adjustments as warranted to avoid
duplication of effort that does not produce corresponding value to the Agency. We will charge
for local travel time, but not for out of town travel (nor for airline tickets or local hoteUmeal
disbursements should travel logistics require Robert Doty to stay overnight).
3. Additional Services and Outside Expenditures. We may provide
additional services in -house in connection with our legal representation of you. These in -house
additional services typically include photocopying, computerized research, facsimile services,
long distance telephone, postage, staff overtime, word processing, and small field expenses for
mileage, meals, parking, lodging, and the like. Our practice is to bill these services directly at
our usual and customary rates. A summary of our charges for these services is available on
request.
Our legal representation may also involve additional services provided by third
party vendors outside of the Firm. The Agency will be required either to pay for these outside
additional services directly, or to reimburse us if we make payment for these services on its
behalf. We sometimes will make payment for, and then bill for reimbursement of smaller items
such as filing fees, photocopying by outside copying services, recording fees, messenger
services, service of process, and Court fees. When there are substantial expenditures involving
outside vendors (such as for depositions, expert witnesses, or exhibit preparation) or substantial
out -of- pocket expenditures (such as extended field expenses, large outside copying jobs, or jury
fees), we will require either that the Agency pay those sums to us before we expend them, that it
provide an advance deposit for such expenditures, or that it directly contract with and pay the
outside vendor.
•
4. Monthly Statements and Payment Terms. Our practice is to send a
monthly statement of our charges for legal services and in -house additional services rendered
and for reimbursement of payments made on our client's behalf for outside additional services.
The detail in the monthly statement will inform you of the nature and progress of our work and
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 4
of the charges and expenditures being incurred. The invoices will correspond to the specific
matters created to correspond to particular projects.
Each monthly statement is fully due and payable upon receipt, but in no event
later than thirty (30) days after its issuance date. We reserve the right to charge, at the rate of ten
percent (10 %) per year, a monthly late payment charge on the unpaid balance of any statement
not timely paid in full, computed from thirty (30) days after the statement issuance date until
payment. Although we reserve that right, we have agreed that it will not invoke without further
discussion with and approval by you.
We specifically reserve the right to withdraw from this representation and to cease
performing immediately all services if we do not receive full payment of any amounts owed to us
within thirty (30) days of any statement.
We do our best to see to it that our clients are satisfied not only with our legal
representation and services, but also with the reasonableness of our charges. Therefore, if the
Agency should have any question about or objection to a monthly statement, our services, or our
charges, then it should raise such issue(s) promptly for discussion. If the Agency objects to only
a portion of the charges on a statement, then it agrees to pay the remainder, which will not
constitute a waiver of any objection.
5. Advance Deposit for Payments. No advance deposit for payments is
required at this time. However, we reserve the right to require an advance deposit for payment
of our charges for services and expenditures in the future due to circumstances such as
substantial expenditures, imminence of trial or other hearing, or delayed payment of any prior
statement.
6. Withdrawal From Representation. The attorney- client relationship is one
of mutual trust and confidence. If you have any questions at all about the provisions of this
Agreement, we invite your inquiries. We encourage our clients to inquire about any matter
relating to our engagement agreements or monthly statements which may be in any way unclear
or appear unsatisfactory. If you do not meet your obligation of timely payments or deposits
under this Agreement, we reserve the right to withdraw from your representation on that basis
alone, subject of course to any required judicial, administrative, or other approvals.
This Agreement is also subject to termination by either party upon reasonable
notice for any reason. If there were to be such a termination, however, the Agency would remain
liable for all unpaid charges for services provided and expenditures advanced or incurred.
7. Duties Upon Termination of Active Representation. Upon termination of
our active involvement in a particular matter for which we had previously been engaged, we will
have no further duty to inform the Agency of future developments or changes in law which may
be relevant to such matter in which our representation has terminated. Further, unless the
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 5
Agency and the Firm agree in writing to the contrary, we will have no obligation to monitor
renewal or notice dates or similar deadlines which may arise from the matters for which we had
been engaged. If an Agency matter involves obtaining a judgment and such judgment is
obtained, we will only be responsible for those post judgment services (such as recording
abstracts, filing judgment liens, and calendaring renewals of judgments) as are expressly agreed
to and for the Agency will be obligated to pay.
8. Document Storage Policies. The Firm's policy with regard to documents
and other materials at the conclusion of a matter is to maintain them in storage. All documents
and other materials in our file may be destroyed or discarded after a period of seven (7) vears
following the conclusion of the matter without notice. Accordingly, if there are any documents
or other materials the Agency wishes to have retrieved from its files at the conclusion of a
matter, it will be necessary to advise us of that request to ensure that they are not destroyed.
9. Arbitration. We appreciate the opportunity to serve as the Agency's
attorneys and anticipate a productive and harmonious relationship. If you should feel for any
reason that there is a problem with the services we have performed or with our charges, we
encourage you to bring that to our attention immediately. If we perceive a problem with this
representation, we likewise will endeavor to discuss it with the Agency. Most problems should
be rectified by communication and discussion. However, a dispute might arise between us which
could not be resolved by negotiation. We believe that such attorney- client disputes are most
satisfactorily resolved through final and binding arbitration rather than by litigation. Both the
United States Supreme Court and the California Supreme Court have endorsed arbitration as an
accepted and favored method of resolving disputes, because it is economical and expeditious.
In arbitration, there is no right to a trial by jury and the arbitrator's legal and
factual determinations are generally not subject to appellate review. Arbitration rules of
evidence and procedure are often less formal and less rigid than the rules which apply in Court.
Arbitration usually results in a decision much more quickly than proceedings in Court, and the
attorneys' fees and other costs incurred by both sides may be substantially less. The Agency is
free to discuss the advisability of arbitration with us, or with its regular outside counsel or any of
its other advisors, and to ask any questions which it may have.
By signing this Agreement, we both agree that, in the event of any dispute or
claim arising out of or relating to this Agreement, our relationship, our charges, or our services
(including but not limited to disputes or claims regarding professional malpractice, errors or
omissions, breach of contract, breach of fiduciary duty, fraud, or violation of any statute
(hereinafter referred to as "Professional Claims ")), SUCH DISPUTE OR CLAIM SHALL BE
RESOLVED BY SUBMISSION TO FINAL AND BINDING ARBITRATION IN LOS
ANGELES COUNTY, CALIFORNIA, BEFORE A RETIRED JUDGE OR JUSTICE. BY
AGREEING TO ARBITRATE, YOU WAIVE ANY RIGHT YOU HAVE TO A COURT OR
JURY TRIAL. Venue with regard to any ancillary proceedings arising out of such dispute or
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 6
claim shall also be in Los Angeles County. We will attempt to agree upon a single arbitrator,
who will decide the dispute or claim. If we are unable to mutually agree on a retired judge or
justice, to serve as the sole arbitrator, then either party may petition a court of competent
jurisdiction to appoint a retired judge or justice to serve as sole arbitrator. The fees of the
arbitrator will be paid initially equally by both the Firm and you. However, the arbitrator shall
have the right to order either party to pay all fees and costs as part of his award.
In arbitration, we shall both be entitled to conduct discovery in accordance with
the provisions of the California Code of Civil Procedure, but either of us may request that the
arbitrator limit the amount or scope of such discovery and, in determining whether to do so, the
arbitrator shall balance the need for the discovery against the parties' mutual desire to resolve
disputes expeditiously and inexpensively.
The arbitrator shall decide the matter in accordance with the applicable law. Any
error in law by the arbitrator or in application of the law shall be deemed in excess of the
arbitrator's authority. Any such error in law may be reviewed de novo by the Superior Court
upon a Petition to Vacate or Confirm the arbitration award and may thereafter be appealed as
with any other judgment. The provisions of the California Arbitration Act shall govern this
arbitration.
Under California law, the Agency has the right, if it desires, to request arbitration
of any fee dispute before an arbitrator or panel of arbitrators selected by a local bar association or
the State Bar ("Bar Arbitration ") and a trial de novo in court (which is a new trial without regard
to the prior decision or knowledge by the court of the prior decision) if dissatisfied with the
result. If the Agency requests a Bar Arbitration, the law provides that evidence of any claim of
malpractice or professional misconduct (i.e. Professional Claims) is admissible only conceming
the fees or costs in dispute and that the Bar Arbitrators shall not award any affirmative relief in
the form of damages, offset or otherwise on account of such claim.
By signing this Agreement, the Agency agrees that if a Bar Arbitration is
conducted, that Bar Arbitration or any trial de novo in Court thereafter shall determine only the
issue of the amount of fees properly chargeable, if any, and that such Bar Arbitration or trial de
novo in Court thereafter shall have no effect on the provisions set forth above which require
arbitration before a retired judge or justice of any Professional Claims. Any such Professional
Claims shall be solely determined in an arbitration proceeding by a retired judge or justice
without regard to the result of any Bar Arbitration or trial de novo thereafter. This agreement to
arbitrate the Professional Claims is separate from the agreement to arbitrate claims related to any
fee dispute, and if arbitration of a fee dispute is determined to be invalid, the agreement and right
to arbitrate the Professional Claims shall not be deemed to be invalid.
10. Consent to Electronic Communications. In order to improve efficiency in
this matter, we intend to use advanced communications devices (e.g., email, document transfer
by computer, cellular telephones, and facsimile transfers). The use of such devices under current
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 7
technology may place the Agency's confidences and privileges at risk. However, we believe the
effectiveness involved in use of these devices outweighs the risk of accidental disclosure. By
signing this letter, the Agency acknowledges its consent to the use of these devices.
11. Disclaimer of Guarantee. Nothing in this Agreement should be construed
as a promise or guarantee about the outcome of any matter which we are handling on your
behalf. Our comments about the outcome of any matter are expressions of opinion only. If we
should provide an estimate of the fees and costs which may be incurred in connection with our
representation of the Agency, it is important that the Agency understand and acknowledge that
any such estimate is merely an estimate based on numerous assumptions which may or may not
prove to be correct and that any estimate is not a guarantee or agreement of what the maximum
amount of fees and/or costs will be. We will work with you to establish realistic "not to exceed"
amounts, to complete tasks within them and/or revise them as warranted, but "not to exceed"
amounts are not guarantees or agreements as to the ultimate level of effort or fees associated with
completion of a particular task unless they are expressly stated to be guaranteed maximums.
12. Future Matters. Unless otherwise agreed in writing between us, all other
matters referred to us for representation shall be governed by the terms of this Agreement, except
that our obligation to represent the Agency shall consist of an obligation to famish appropriate
representation in such future matters with reasonable diligence as applicable to the matter in
question.
13. Conflicts and Consents to Representations of Other Parties. Our
undertaking to represent the Agency in matters described in this Agreement will not generally act
as a bar so as to prevent the Firm from representing any existing or future client with respect to a
claim, litigation or transaction adverse to the Agency or the City of Lynwood, so long as in the
course of our representation of the Agency we have not obtained any information that would be
adverse to your interests with respect to such claim, litigation or transaction.
More specifically, this letter will confirm that the Firm has disclosed to the
Agency that the Firm represents a broad array of clients across the full spectrum of issues
affecting real property, including but not limited to zoning, land use, and entitlements. We have
disclosed to you one such current matter. The Firm represents M + D Properties and 3000 E.
Imperial, LLC in connection with certain property owned by them in Lynwood and elsewhere in
California, and Preston Brooks has worked extensively with M + D on issues affecting the
development of their properties, including but not limited to advice in connection with the
purchase of the 3000 E. Imperial Highway property, and litigation against Robertshaw Controls
Company and Whittaker Corporation in connection with contamination emanating from that site.
Robert Doty has not worked on that matter, however. Inasmuch as the M + D matter has been
on -going for some time such that any interruption of our work for M + D would be prejudicial to
them, we ask the Agency to confine specifically that (1) nothing in this engagement with the
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 8
Agency will prevent the firm from continuing its work on behalf of M + D and (2) neither the
Agency nor the City of Lynwood will seek to disqualify the Firm from representing M + D.
Apart from that specific matter, we have advised you that clients of the Firm are
active in many municipal jurisdictions throughout Califomia, so the Firm may, now or in the
future, represent entities or individuals that own, acquire, or seek to develop land within
Lynwood. In the event that those individuals or entities seek governmental approvals from the
Agency and/or the City of Lynwood, the Agency and the City consent to our representation of
these individuals or entities in connection with these approvals or actions; provided, however,
that with the exception of the M + D matter, the attorneys directly involved in representing the
Agency will not represent those other clients in seeking approvals from the Agency or City. In
other words, nothing in our representation under this Agreement shall prevent the Firm from
representing landowners or other applicants within the Agency's or the City's jurisdiction. If
one of these potential future representations were to involve litigation against the Agency or
City, we would consult with the Agency and/or the City to resolve such conflict through the use
of ethical walls or other appropriate, similar means.
14. Client. The Firm's client for the purpose of our representation is only the
person or entity identified in this Agreement. Unless expressly agreed, we are not undertaking
the representation of any related or affiliated person or entity, nor any parent, brother - sister, their
officers, directors, agents, or employees.
* *
If this Agreement correctly sets forth the Agency's understanding of the scope of
the services to be rendered to you by Cox, Castle & Nicholson LLP and if all of the terms set
forth in this Engagement Letter are satisfactory, then please sign the original of the letter and
return it so that we will be engaged as your legal counsel. Please also sign the enclosed copy of
this letter and retain it for your records. If the scope of services described is incorrect or if the
terms set forth are not satisfactory, please let us know in order that we can discuss either aspect.
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 9
We look forward to working with you and thank you once again for the
opportunity to be of service.
Very truly yours,
COX, CAST�CHOLSON LLP
Robert P. Doty and Preston W. Brooks
RPD/PWBse
The undersigned has read and understands the above Agreement, and accepts and
agrees to all of its terms and conditions.
CITY OF LYNWOOD REDEVELOPMENT AGENCY
December 2010 SARAH MAGANA WITHERS
DIRECTOR OF REDEVELOPMENT
CITY OF LYNWOOD WITH RESPECT TO THE
CONFLICT WAIVER/CONSENT PROVISION
December , 2010
CITY ATTORNEY
Sarah Magana Withers
Fred Galante
December 13, 2010
Page 10
ATTACHMENT A: INITIAL ANTICIPATED SCOPE OF WORK
I. Plaza Mexico Extension
1. Technical Strategy: Confer with the technical consultants and likely developer
regarding the extent of investigation and remediation work necessary for the anticipated land
uses; assist with development of a regulatory agency strategy to secure approval for a
remediation plan sufficient to permit redevelopment to proceed and to support cost recovery;
assist with development of a detailed task list and schedule for implementation of the
technical /regulatory strategy.
Most of the work here is a matter of consultation regarding documents generated
by technical consultants. We would not expect to generate significant amounts of formal written
work product beyond a memoranda summarizing the strategy and/or responding to discrete
inquiries.
2. Monitor and Enforce On -Going Remediation: Monitor properties within the
project area that are about to undergo remediation; evaluate strategies against the Responsible
Party ( "RP ") performing the investigation and remediation; determine scope of remediation and
impact on redevelopment in project area; work with technical consultants to evaluate
redevelopment opportunities, including type of buildings and timing of redevelopment, in
connection with remediation footprint and timing; enforce lapses by RPs not performing
remediation effectively and/or timely (short of litigation).
3. Cost Recovery Strategy: Confer with technical consultant regarding site use
history research and identification of PRPs; evaluate available information concerning "as if
clean" values and other PRP assets, if any; evaluate technical information potentially linking
PRPs to the contamination to assess the viability of litigation with those PRPs; in consultation
with the Agency's regular counsel, evaluate Agency's ability to employ eminent domain in
tandem or in parallel with statutory and common law theories (e.g., Polanco, CERCLA/RCRA,
nuisance); assist the Agency and its regular counsel with preparation of a detailed task list and
schedule for execution of the cost recovery strategy.
4. CEQA: In conjunction with the Agency's regular counsel, evaluate the CEQA
issues associated with the remediation process and develop a CEQA compliance strategy (and
task List) for use by the Agency and the regulatory agency; coordinate that strategy with any pre-
existing CEQA strategy.
5. ENA: Confer/Negotiate regarding ENA with developer to address cost -
sharing/funding and associated issues. The deliverable here would be an ENA or similar
agreement jointly prepared by the Agency's regular counsel, CCN as special counsel, and the
AGENDA STAFF REPORT
DATE: December 21, 2010
TO: Honorable Chair and Members of the Agency Board
APPROVED BY: Roger L. Haley, Executive Direc • ��/
PREPARED BY: Fred Galante, Agency Counsel
SUBJECT: Approval of Professional Services Agreement with MG
Resolutions, Inc. Environmental Consulting Services
Regarding the Project at Long Beach and Imperial with
Developer M &A Gabaee
Recommendation:
Staff recommends that the Agency adopt the attached resolution entitled: "A
RESOLUTION OF THE AGENCY BOARD OF THE LYNWOOD
REDEVELOPMENT AGENCY APPROVING THE CONSULTING SERVICES
AGREEMENT WITH MG RESOLUTIONS INC. FOR THE PREPARATION OF
THE ANALYSIS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
REGARDING THE PROPOSED PROJECT AT LONG BEACH AND IMPERIAL
WITH DEVELOPER M &A GABAEE."
Background:
In accordance with the July 6, 2010 Exclusive Negotiating Agreement between
the Agency and M &A Gabaee, the Agency sought proposals from consultants to
prepare the analysis required under the California Environmental Quality Act
( "CEQA ") related to the proposed commercial retail project bounded by East
Imperial Highway, Long Beach Boulevard, Sanborn and California Avenue in the
City of Lynwood. The Agency received 2 proposals, one from the Harvey
Meyerhoff Consulting Group and the other from MG Resolutions, Inc. to prepare
the required CEQA analysis. Agency staff recommend that the Agency Board
retain MG Resolutions insofar as its proposal provides the most comprehensive
and cost effective proposal.
AGENDA
ITEM
5
Discussion & Analysis:
MG Resolutions proposes to prepare the Initial Study pursuant to CEQA to
analyze the scope of potential environmental impacts of the proposed project.
Based on the information gathered in the Initial Study, MG Resolutions will
evaluate with City and Agency staff the scope of the CEQA analysis required. At
minimum, the services will consist of noise, traffic, parking, circulation, air quality
and greenhouse gas studies. Attached is MG Resolutions proposal for such
services. The estimated cost if a full EIR is not required, is $40,000 and is
anticipated to take 8 weeks to complete.
The services provided by MG Resolutions would be paid entirely through the ENA
deposit provided by the developer, as such deposit is to be augmented to cover
these services as well as the Agency Counsel and a financial consultant to be
retained by the Agency separately.
•
Fiscal Impact:
All costs charged by MG Resolutions will be reimbursed by the developer M &A
Gabaee pursuant to the July 6, 2010 Exclusive Negotiating Agreement, including
supplemental deposits required to be made by the Developer thereunder.
Coordinated With:
Assistant City Manager
Attachments:
1. Resolution of the Agency Board of the Lynwood Redevelopment Agency
Approving the Consulting Services Agreement with MG Resolutions Inc. for the
Preparation of the Analysis under the California Environmental Quality Act
Regarding the Proposed Project at Long Beach and Imperial with Developer M &A
Gabaee
2. November 16, 2010 Proposal from MG Resolutions, Inc.
2
RESOLUTION NO.
A RESOLUTION OF THE AGENCY BOARD OF THE LYNWOOD
REDEVELOPMENT AGENCY APPROVING THE CONSULTING SERVICES
AGREEMENT WITH MG RESOLUTIONS INC. FOR THE PREPARATION OF THE
ANALYSIS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
REGARDING THE PROPOSED PROJECT AT LONG BEACH AND IMPERIAL
WITH DEVELOPER M &A GABAEE
WHEREAS, the Lynwood Redevelopment Agency ( "Agency ") is engaged in
activities necessary to carry out and implement the Redevelopment Plan for Project
Area "A "; and
WHEREAS, in implementing such Redevelopment Plan and the
Implementation Plan, the Agency is desirous of retaining the services of MG
Resolutions Inc. to prepare the environmental analysis required under the California
Environmental Quality Act ( "CEQA ") related to the proposed commercial retail
project bounded by East Imperial Highway, Long Beach Boulevard, Sanborn and
California Avenue in the City of Lynwood ( "Proposed Project "); and
WHEREAS, the Agency has evaluated the proposal provided by MG
Resolutions Inc. and finds that retaining its services to evaluate the potential
environmental impacts of the Proposed Project is the best interest of the Agency and
the health, safety, morals and welfare of its residents, and in accord with the public
purposes and provision of applicable state and local law and requirements.
NOW THEREFORE, THE LYNWOOD REDEVELOPMENT AGENCY OF
THE CITY OF LYNWOOD DOES HEREBY RESOLVE AS FOLLOWS:
Section 1. Having carefully reviewed the terms and conditions set forth in the
November 16, 2010 proposal by MG Resolutions Inc., and both oral and written
testimony regarding same, the Agency hereby approves retaining the services of
MG Resolutions to provide the CEQA analysis related to the Proposed Project.
Section 2. The Agency hereby authorizes the Chairperson to execute a
professional consulting services agreement with MG Resolutions Inc. in a form
approved by Agency Counsel, the costs of which shall be borne by the developer of
the Proposed Project under the terms of the July 6, 2010 Exclusive Negotiating
Agreement, as may be amended, between the Agency and M &A Gabaee.
Section 3. The Agency finds, as evidenced by a 4 /5ths vote or better, that
the retention of consulting services may be more economically and efficiently
effected through the use of an alternate procedure, such that the Agency Board
1
hereby approves the exercise of the purchasing exemption authorized under
Lynwood Municipal Code Section 6- 3.12(a)(3).
Section 4. This Resolution shall become effective immediately upon its
adoption by the Agency.
PASSED, APPROVED and ADOPTED this 21st day of December 2010.
AIDE CASTRO, CHAIR
ATTEST:
MARIA QUINONEZ ROGER L. HALEY
SECRETARY EXECUTIVE DIRECTOR
APPROVED AS TO FORM:
FRED GALANTE
AGENCY COUNSEL
2
M4 resolutions, inc.
•
Planning & RedevelopmentConsulting
November 16, 2010
VIA EMAIL (fgalante @awattorneys.com)
Mr. Fred Galante
Aleshire & Wynder, LLP
18881 Von Karman Avenue, Tower 17, Suite 400
Irvine, CA 92612
RE: Proposal to Prepare a Mitigated Negative Declaration of Environmental Impact (MND) for the City of
Lynwood — SEC Long Beach Boulevard @ Imperial Highway (Charles Company ENA)
Dear Mr. Galante:
MG Resolutions, Inc. appreciates the opportunity to present the following proposal to provide environmental
consulting services for a new retail commercial shopping center at the SEC of Long Beach Boulevard and Imperial
Highway in the City of Lynwood, CA. Based upon the information provided in your email and during our telephone
conversation on November 1, 2010 MG Resolutions, Inc. proposed services would consist of preparing an Mitigated
Negative Declaration of Environmental Impact Report (MND)pursuant to the California Environmental Quality Act
(CEQA). Provided below is a statement of our qualifications and relevant project experience, a statement of our
understanding of the proposed project, and a detailed scope of services and cost estimate to prepare a MND for
this project.
Qualifications and Relevant Project Experience
MG Resolutions, Inc. capabilities, proficiency, and expertise in the preparation of NEPA and CEQA documents (EIS's,
EIR's, MND's and FONSI's), entitlement services, private land development consulting, municipal planning, feasibility
analysis, redevelopment, and project /construction management has led to continued growth and success in
performing multi - discipline, multi -task projects. MG Resolutions, Inc. is also supported by a professional network of
technical specialists, experienced environmental analysts, and sub - consultants to supplement in -house staff as
needed.
MG Resolutions, Inc. clients have benefited from the experience that our staff has acquired from challenging
projects throughout California. We are currently in a leadership role for fifteen retail, office, industrial, housing and
mixed -use projects.
As our motto ( "Inception to Completion ") represents, we take time to listen to our clients and to understand their
business and technical needs, as well as budgetary, personnel, and schedule constraints. We then tailor our services
to satisfy those desires combining experience with creativity to find the best solutions for each dilemma.
With regard to the Long Beach Boulevard @ Imperial Highway Project, MG Resolutions, Inc. has project experience
with similar projects in nearby communities involving size, type, mix, location setting and intensity, which brings an
in -depth and unique understanding of the environmental issues and constraints that exist with a project of this
595 E. Colorado Boulevard • Suite 528
Pasadena • California 91101
626 584 1098 • 626. 584. 1253 fax
milanc mgresolutionsinc com
www.mgresolutionsinc.com
CEQA /NEPA Proposal (MND /FONSI)
SEC Long Beach Boulevard @ Imperial Highway, Lynwood, CA
November 16, 2010
Page 2 of 6
scope. MG Resolutions, Inc. has recently completed CECtA documentation for similar projects, including the
following:
• Crenshaw @ Rodeo, Los Angeles - 285,000 square foot two -story commercial retail shopping center on a
6 -acre site. MG Resolutions, Inc. prepared the entitlements and MND /FONSI for this development.
• 7 and New Hampshire, Los Angeles— 220 room, 23 -story high -rise hotel development. MG Resolutions,
Inc. prepared the entitlements and MND for this development.
• 6`" and Catalina, Los Angeles — 200 room, 20 -story high -rise hotel development. MG Resolutions, Inc.
prepared the entitlements and MND for this development.
• Whittier @ Atlantic, East Los Angeles — Conversion of a National Registered Historical Theater into a retail
commercial use. MG Resolutions, Inc. prepared the entitlements and EIR for this development.
Understanding of the Project
It is our understanding that the developer (Charles Company) wishes to construct a "retail commercial project on
10.33 acres bounded on all four sides by streets; E. Imperial Hwy., Long Beach Blvd., Sanborn, and California
Avenue. The project requires the assembly of 43 parcels of varying sizes and uses and will consist of approximately
392,000 s.f. of retail space. The project will consist of two levels of retail with parking on the ground level in
addition to roof top parking for a total of 1254 parking stalls for the project. The estimated construction cost will be
in excess of 5100 million and will create over 2,000 construction jobs. Full time equivalent employment after
completion is expected to reach 900 jobs. Expected construction is 14 months with an expected project completion
of Fall 2013."
It is also our understanding that the desire is to complete a MND for the project. The feasibility of this scenario
will be based on the completion of the Initial Study and the results of the litmus test for traffic impacts. If the
environmental impacts can be mitigated to a level of less than significant, we can proceed with a MND. However,
the City of Lynwood as the lead agency under the California Environmental Quality Act (CEQA) will make that
final determination. This proposal assumes a MND will be the determined CEQA assessment.
The project may include some form of public financial assistance from various funding sources (RDA, Tax Credits,
etc.). However, it is further assumed that the project will not include any funds from CDBG or other HUD
initiative, and therefore will not require the preparation of an Environmental Assessment and resulting Finding of
No Significant Impact under the National Environmental Protection Act (NEPA).
Assuming that the Traffic Impact Analysis for the project would not exceed the established threshold for traffic
related impacts, then a MND will be prepared.
The scope of the environmental issues discussed below Is based upon a very preliminary assessment of the project,
and may change during the actual analysis. Given the proposed land use, project location and size, existing
conditions, and neighboring land uses in the vicinity, the following topics would be addressed in the Initial Study
(I5), as indicated in the following scope of work; the remaining environmental impacts are anticipated to be focused
out of the IS. The following scope for the technical analyses will be prepared for the development.
CEQA /NEPA Proposal (MND /FONSI)
SEC Long Beach Boulevard @ Imperial Highway, Lynwood, CA
November 16, 2010
Page 3 of 6
Air Quality
Issues: Site preparation and construction activities could generate substantial, although temporary, emissions of
particulates and other criteria air pollutants that exceed South Coast Air Quality Management District (SCAQMD)
significance thresholds for the construction phase. The net increase in vehicle trips associated with the project may
result in project operational emissions that exceed SCAQMD thresholds of significance for the operational phase.
These new emissions, added to existing sources of air pollution and cumulative development planned for the area,
would contribute to the degraded air quality within the South Coast Air Basin.
Due to the decline in CO concentrations, future local concentrations in the area are likely to be less than significant.
According to the 2004 Revision to the California State Implementation Plan for Carbon Monoxide, requirements for
cleaner vehicles, equipment, and fuels have cut peak CO levels in half since 1980 despite growth. EMFAC2007
estimates that 2005 emission rates are almost five times greater than those that are anticipated in 2030.
The operational analysis will be based on the traffic report trip generation and distribution.
Tasks:
• Briefly review local and regional climate, meteorology, and topography as they affect the accumulation or
dispersal of air pollutants.
• Identify federal, state, and local regulatory agencies responsible for air quality management, and briefly
summarize pertinent federal, state, and local air quality policies, regulations and standards as they pertain
to the project area.
• Summarize current air quality conditions and recent trends (last three years) in the project area on the
basis of the annual air quality monitoring data summaries published by the Air Resources Board (ARB).
• Discuss SCAQMD projections of future air quality trends as presented in the most recent Air Quality
Management Plan (AQMP), and the assumptions upon which the projections are based. Identify any
policies or goals embodied in the AQMP that would apply to the project.
• Identify air pollutant-sensitive land uses or activities in the vicinity of the project and along roads providing
access to the project.
• Describe the SCAQMD's air quality impact significance thresholds for new development.
• Using the most recent Urbemis model identify short -term construction emissions and long -term
operational emissions of air pollutants (those for which the SCAQMD has established significance
thresholds) that would be generated by the project.
• Discuss the potential for air pollutant emissions from the project to adversely affect sensitive land uses or
activities, or to impede attainment of state or federal air quality goals.
• Discuss conformance of the project with the AQMP, and determine whether identified air quality impacts
would meet any SCAQMD thresholds of significance.
CEQA /NEPA Proposal (MNO /FONSI)
SEC Long Beach Boulevard @ Imperial Highway, Lynwood, CA
November 16, 2010
Page 4 of 6
• Identify cumulative development (i.e., development that is under formal consideration or has been
approved) in the area and discuss the potential for cumulative development to adversely affect air quality
or impede attainment of air quality goals. The cumulative baseline will include assumptions for ambient
growth in the area in conformance with Los Angeles County Congestion Management Plan.
• Identify practical, feasible and clear measures to reduce/mitigate any adverse impacts of the project on air
quality that are identified in the analysis, the entities that would be responsible for imposing and carrying
out the mitigation measures, and the performance standards or activities necessary upon which mitigation
compliance can be assessed. For each measure, discuss generally whether the mitigation measure would,
by itself or in concert with other proposed measures identified in this analysis, fully or partially mitigate
the impact it addresses.
• Discuss the types of emissions sources that would be associated with development, including additional
motor vehicle traffic (cars and trucks) and additional stationary and fugitive emissions sources (water
heaters and architectural coatings).
• Discuss the impact of project - related traffic (as identified in the traffic report) on local carbon monoxide
(CO) concentrations at up to three local intersections. As appropriate compare modeled CO concentrations
with CO standards to assess the significance of the project.
Greenhouse Gases
• Discuss the regional and local air quality setting as it pertains to the project and GHG's.
• Summarize statewide planning efforts relative to climate change and the generation of GHG emissions,
including Assembly Bill 32, Executive order 5 -01 -07 and the reporting and recommendations to date of the
California EPA Climate Action Team.
• Identify the recommendations of the Association of California Air Pollution Control Officers Association
(CAPCOA) on how to analyze GHG emissions and global climate change in CEQA documents.
• Use the traffic study and the emission factors generated by EMFAC2007 model to quantify the increase in
GHG emissions from the motor vehicle trip generation resulting from the project.
• Determine the net increase in GHG emissions that will result from the proposed project. Assess this net
change in GHG emissions relative to the recommendations of the CAPCOA document CEQA & Climate
Change, OPR's Proposed CEQA Guidelines Amendments (April 13, 2009) and the goals of AB32 for the
purposes of determining impact significance relative to CEQA.
• Identify practical, feasible mitigation measures from the California EPA Climate Action Team which has
developed a report that outlines strategies for meeting the targets mandated by AB32 and the Governor's
Executive Order 5 -3 -05. Incorporate standard mitigations provided by the City, as appropriate.
CEQA /NEPA Proposal (MND /FONSI)
SEC Long Beach Boulevard @ Imperial Highway, Lynwood, CA
November 16, 2010
Page 5 of 6
Noise
Issues: Noise generated by construction and operation (mostly traffic) activities within the project area could
increase noise levels at sensitive receptors. The analysis of operational noise will be based on traffic volumes along
street segments as reported in the traffic report or otherwise provided by the traffic consultant.
Tasks:
• Briefly describe and discuss existing major noise sources in the project area, particularly the noise from
adjacent roadways. Describe the existing noise environment on the basis of up to four short -term (30
minutes) measurements.
• Briefly summarize state and local noise policies, regulations, and standards as they pertain to the project.
• Identify noise- sensitive land uses or activities in the vicinity of the project, and along roads providing
access to the project site.
• Discuss the potential for on -site construction activities to affect any nearby residences and /or any other
sensitive receptors. This discussion will be based upon proposed construction activities and scheduling
information provided by the applicant. Otherwise, this discussion will be based upon peak noise levels
generated by an assumed standard mix of construction equipment and activities.
• Using the Federal Highway Administration's Highway Traffic Noise Prediction Model (FHWA -RD -77 -108),
calculate existing, future base case (i.e., without the project), future project case (i.e., with the project),
roadside noise levels along up to four road segments that would be affected by motor vehicle traffic
generated by the Community Plan, to determine whether Community Plan vehicular traffic would
adversely affect adjacent land uses.
• Discuss the potential for stationary noise sources to affect any nearby residences and other sensitive
receptors. This discussion will include, but not be limited to, any new mechanical and loading dock noise.
• Identify cumulative development in the project area (i.e., developnient that is underfornial consideration
or has been approved) and discuss the potential for cumulative development to adversely affect noise -
sensitive land uses.
• Identify practical, feasible and clear measures to mitigate any adverse impacts of the project on noise.
Traffic, Circulation, and Parking
A traffic impact study for the proposed development will be required. MG Resolutions, Inc. will select the traffic
consultant and have the required assessment prepared based on the MOU from the City's Engineering Department
for the scope of Work, and review and summarize information from the study into the Traffic, Circulation, and
Parking Section of the IS. MG Resolutions, Inc. has made some basic assumptions to the number of intersections to
be studied and the methodology to be used in order to further refine the scope and price.
It is anticipated that the IS and MND will be completed in 8 weeks from the date that all documents are received as
listed below.
' CEQA /NEPA Proposal (MND /FONSI)
SEC Long Beach Boulevard @ Imperial Highway, Lynwood, CA
November 16, 2010
Page 6 of 6
Items to be provided by City
In order to complete the 15 for complete submittal to the City of Lynwood within a reasonable time frame, the
following items shall be provided to MG Resolutions, Inc. as soon as reasonably possible:
• Phase I and II Environmental Site Assessment, if available
• Geotechnical Analysis and /or Soils Report, if available
• Complete Set of Drawings (Site Plan, Floor Plan, Elevations, Sections, Landscape Plans)
• Zoning Map and General Plan Land Use Map
• General Plan and Zoning Code
• Long Beach Boulevard Specific Plan
All items shall be provided in an electronic format as well as a hard copy.
PROFESSIONAL FEES
I5 and MND Complete: $40,000.00 (including the Traffic Impact Analysis).
• $25,000 —IS /MND
• $15,000 — Traffic Study
Payment shall be a lump sum at the initiation of the preparation of the MND.
Please note that direct cost items such as reprographic expenses, mailing labels, copies, maps, plans, etc. will be I
billed as reimbursable expenses at 110% of cost.
Again, thank you for the opportunity to work with you on this important project. If you should have any questions
or require any additional information, please do not hesitate to contact me at (626) 584 -1098 office, (626) 664 -5003
cell, or milan @mgresolutionsinc.com.
Redi b
Milan L. r '
Pres ident
II.