HomeMy WebLinkAboutResolution No. 03-R260 0
RESOLUTION NO. —0-3---R 2 6
A JOINT RESOLUTION OF THE CITY OF AZUSA AND THE
REDEVELOPMENT AGENCY OF THE CITY OF AZUSA APPROVING
A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF
AZUSA, THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA,
THE CITY OF IRWINDALE, THE IRWINDALE REDEVELOPMENT
AGENCY AND JAR-KINCAID, LLC. REGARDING DEVELOPMENT OF
CERTAIN REAL PROPERTY KNOWN AS THE KINCAID PIT
WHEREAS, the unimproved real property known as the Kincaid pit (the "Property") is
located with the boundaries of the cities of Azusa and Irwindale and was formerly a mining
operation; and
WHEREAS, Jar -Kincaid, LLC, a California limited liability company, is currently in
escrow to purchase a portion of the Property from Vulcan Materials Corp for the purpose of
developing such portion of the Property into a commercial retail center; and
WHEREAS, the cities of Azusa and Irwindale each have jurisdiction over development
of any portion of the Property within their respective boundaries;
WHEREAS, the cities of Azusa and Irwindale believe that the development of the
Property is best accomplished through a cooperative agreement between the two cities and Jar -
Kincaid, LLC; and
WHEREAS, to establish such a cooperative agreement, the City of Azusa (the "City"),
the Redevelopment Agency of the City of Azusa (the "Agency"), the City of Irwindale, the
Irwindale Redevelopment Agency and Jar -Kincaid, LLC wish to enter into a Memorandum of
Understanding ("MOU") in the form attached as Exhibit "A" hereto and incorporated herein by
reference; and
WHEREAS, pursuant to the California Environmental Quality Act ("CEQA"), the City and
the Agency have determined that the approval of the MOU is exempt from any further review under
CEQA, State CEQA Guidelines and the City s and Agency's Local CEQA Guidelines pursuant to
California Public Resources Code Section 15061(b)(3) because City and Agency staff have
determined that there is no possibility that such acquisition will have a significant effect on the
environment; and
WHEREAS, pursuant to the foregoing, City staff and Agency staff have determined that a
Notice of Exemption for the conveyance of the Property should be filed pursuant to Section 15062
of CEQA, State CEQA Guidelines and the City's and Agency's Local CEQA Guidelines.
Exhibit A
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA AND THE
REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DO FIND AND DECLARE THAT:
SECTION 1. The City and the Agency hereby approve the MOU in the form attached
hereto as Exhibit "A" and incorporated herein by reference.
SECTION 2. The City and the Agency hereby authorize the City Manager (with the
concurrence of the City Attorney) and the Agency's Executive Director (with the concurrence of
Agency Counsel) to execute and deliver on behalf of the City and the Agency the MOU and such
other documents and instruments as may be necessary or convenient in the furtherance of the
actions authorized by this Resolution.
SECTION 3. City staff is hereby directed to file a Notice of Exemption, pursuant to CEQA,
with the Los Angeles County Clerk's Office within five (5) days from the adoption of this
Resolution.
SECTION 4. City Staff and Agency Staff are hereby directed to do all that is necessary to
effectuate the intent of the Agreement and consummate the purchase of the Property.
SECTION 5. The City Clerk and the Agency Secretary shall certify the adoption of this
Resolution.
SECTION 6. This Resolution shall become effective upon its adoption.
PASSED, APPROVED AND ADOPTED THIS 4th DAY OF
Mayor
City Clerk
Redevelopment Agency of the City of Azusa
Secretary
Redevelopment Agency of the City of Azusa
Exhibit A
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CERTIFICATION
I, Vera Mendoza, City Clerk of the City of Azusa, and Redevelopment , Secretary of the
Redevelopment Agency of the City of Azusa, do hereby certify that the foregoing joint Resolution
No.o3-R25 was duly adopted by the City Council of the City of Azusa and the Redevelopment
Agency of the City of Azusa at a regular meeting thereof, held on the 4th day of
August , 2003 by the following vote , to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS:
AYES: BOARDMEMBERS
NOES: BOARDMEM 3ERS
. C : I► 1 t7 ul ul hl i
HARDISON, STANFORD, ROCHA, MADRID
MILA
NONE
CHAGNON
HARDISON, STANFORD, ROCHA, MADRID
IRi7k
NONE
CHAGNON
Vera Mendoza Secretary
City Clerk Redevelopment Agency of the City of Azusa
Exhibit A
n
E
EXHIBIT "A"
MEMORANDUM OF UNDERSTANDING
]ATTACHED ON FOLLOWING PAGE]
Exhibit A
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MEMORANDUM OF UNDERSTANDING
FOR DEVELOPMENT OF KINCAID PIT
This MEMORANDUM OF UNDERSTANDING ("Agreement') is made this 23rd day
of July, 2003, by and between the CITY OF IRWINDALE, a California municipal corporation
and IRWINDALE REDEVELOPMENT AGENCY, a public body, corporate and politic
(collectively "Irwindale"), CITY OF AZUSA, a California municipal corporation and AZUSA
REDEVELOPMENT AGENCY, a public body, corporate and politic (collectively "Azusa") and
JAR-KINCAID, LLC, a California limited liability company ('Developer").
RECITALS
The parties enter into this Agreement on the basis of the following facts, understandings, and
intentions.
A. The Kincaid Pit (i) is unimproved real property located within the boundaries of
both the Cities of Irwindale and Azusa, (ii) is bisected by the 210 Freeway and divided into the
North Pit and the South Pit, (iii) is depicted on Exhibit "A" attached hereto and incorporated
herein ("Site"), and (iv) was formerly a mining operation. Developer, a duly formed and
existing California limited liability company, is in escrow for the purchase from Vulcan
Materials Corp. of the northerly portion of the Kincaid Pit, i.e., the "North Pit'.
B. The South Pit is owned by Van Wagner Outdoor ("Van Wagner"). The North
Pit is improved with 2 billboard sign locations, with two (2) faces on each. Concurrently with
the acquisition of the North Pit, Developer intends to grant Van Wagner the right to use such
sign locations in exchange for, among other things, (i) money, (ii) the right to export
approximately 300,000 cubic yards of soil from the South Pit to fill the North Pit, and (iii) the
right to construct, operate and use a retention basin on the South Pit to serve the development of
the North Pit, subject to Developer complying with applicable laws.
C. Developer has represented to Irwindale and Azusa that it wishes to develop the
Site, has access to adequate financial resources, is experienced in the development of retail
centers such as the project planned for the Site, and has had preliminary discussions with tenants
who might occupy the Site.
D. The Cities of Irwindale and Azusa each have jurisdiction over permitting of any
development over that portion of the Site within their respective boundaries, and believe that the
development of the Site is best accomplished through a cooperate agreement between the two
cities and Developer to assure a consistent and efficient development and approval process.
E. The Site is located within the Industrial Redevelopment Project Area of Irwindale,
and the West End Redevelopment Project Area of Azusa and redevelopment of the Site
effectuates the redevelopment plans of Irwindale and Azusa with regard to the aforementioned
W:\AGM TS\KincaidP itCityMOU.do
project areas. Irwindale and Azusa are willing to consider pledging back the tar increment, or a
portion thereof, generated by the Project subject to verification as outlined in 2.03 (b) below, to
alleviate the blight caused by the existence of the North Pit by filling it.
F. Irwindale and Azusa each have the right to condemn all or any interest in the
South Pit and will consider Resolutions of Necessity if requested to do so by Developer.
G. Developer anticipates that the filling operation required to rehabilitate the Site
from the condition left by the effects of mining require significant investment. The fill operation
is scheduled to take approximately 1 '/ years after the full execution of this Agreement to
complete and Developer anticipates significant funds will be required to place engineered fill at
the Site. In light of these obstacles to converting the Site to a useable condition, Developer seeks
financial assistance from Irwindale and Azusa for the purpose of assisting Developer's fill
operation and development of an appropriate storm drain system.
H. The parties have met to negotiate the terms of the development of the Site and
wish to set forth their respective understandings regarding the process for obtaining necessary
approvals for such development, the anticipated financial assistance required by the Developer
for filling operations, cost and impacts anticipated to be borne by each party and revenue sharing
of any property tax increment and sales tar generated from the Site.
I. The parties desire, for the period set forth herein, to continue negotiating
diligently and in good faith to prepare any agreement as may be necessary or desirable to
accomplish development of the Site as a major regional retail center.
AGREEMENT
NOW, THEREFORE, incorporating and in consideration of the mutual covenants contained
herein, parties mutually agree to the following:
SECTION 1. NATURE OF NEGOTIATIONS.
1.01 Good Faith. Irwindale, Azusa and Developer agree that, for the period set forth in
Section 4.01 herein ("Negotiation Period"), they will negotiate diligently and in good faith to
prepare and enter into any agreement necessary or desirable ("Development Instruments") to
allow for the development of the site ("Project") consistent with the provisions of this
Agreement. The development will be subject to all rules, regulations, standards, and criteria set
forth in the respective Redevelopment Plans of Irwindale and Azusa, the Cities' General Plans,
applicable specific plans and zoning regulations, and this Agreement. The Development
Instruments will eenerally be in the form negotiated by Irwindale and Azusa with other
development entities, and subject to the terms Irwindale, Azusa and Developer mutually agree
upon.
t.02 Purpose of Agreement. It is expressly understood and agreed by the parties that this
is an Agreement to conduct contract negotiations only and does not convey any interest in the
Site whatsoever. It is further agreed and understood that this Project must go through a land use
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entitlement process in each City and will be subject to noticed public hearings. Nothing herein
shall imply any prejudgment concerning this Project nor does this Agreement imply any
obligation on the part of any party to enter into any agreement that may result from the
negotiations contemplated herein.
SECTION 2. SITE FINANCING AND USES.
2.01 Site Description. The Project shall be located upon all or a portion of the real
property designated as the Site, as shown on the "Site Map," attached hereto as Exhibit "A".
The Site is divided into two parcels, herein designated as the "North Pit" and the "South Pit".
Portions of these parcels are in two jurisdictions, Azusa and Irwindale. It is anticipated that the
Project will be developed in phases. The Developer is in escrow to purchase the North Pit,
which is anticipated to close by August 31, 2003.
2.02 Nature of Project and Ownership.
(a) Pursuant to the Development Instruments, the Developer must acquire a fee
interest in the North Pit and the right to construct, operate and use a retention basin on the
South Pit. The design of the Project shall be consistent with the design guidelines of
Irwindale or Azusa, which are based on a similar design theme - Spanish Mission design
- as may be agreed by the parties in the Development Instruments. Developer shall also
obtain architectural review and other approvals for the Project from both Irwindale and
Azusa for the portions of the Project that fall within the boundaries of the respective
Cities. The Developer is solely responsible for obtaining all approvals and entitlements
for the Project, arranging the financing for the Project, and constructing all improvements
upon the Site.
(b) The Project shall be a retail center of approximately 200,000 square feet.
Developer shall endeavor to maximize the sales tax revenue generated by the Site by
soliciting tenants that produce significant amounts of sales tax revenue, such as the
following: electronics, home improvement, general merchandise, food, clothing, sporting
goods, etc. It is anticipated that the construction cost of preparing the Site for
development, i.e., filling in the hole and constructing the retention basin and related
drainage improvements, will exceed $8,000,000.
2.03 Financial Provisions. The parties agree to the following:
(a) Developer shall be responsible for financing and constructing all improvements.
Developer shall pay for all necessary public improvements and pay all of Irwindale's and
Azusa's customary fees to process the Project, as will be described in the Development
Instruments. Developer shall be responsible for all acquisition costs, soils importation
and remediation costs, site development and other costs.
(b) Developer has prepared a financial proforma which contemplates financial
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assistance for the Project provided by the redevelopment agencies of Irwindale and Azusa
to Developer primarily in connection with preparing the Site for development by filling
in the hole and constructing the retention basin. The parties will negotiate the provision
of financial assistance, if any, to Developer through the Development Instruments as the
Developer further refines the scope of the Project. Developer acknowledges that it may
be required to pay prevailing wages for construction of a portion of the public
infrastructure and or re -grading portions of the Project in the event Developer receives
financial assistance from the redevelopment agencies of Irwindale or Azusa.
(c) Nothing in this agreement shall be construed to be contrary to the provisions of
Health & Safety Code Section 33426.5, which states:
"Notwithstanding the provisions of Sections 33391, 33430, 33433, and 33445, or
any other provision of this part, an agency shall not provide any form of direct assistance
to:
(b) (1) A development that will be or is on a parcel of land of five acres or more
which has not previously been developed for urban use and that will, when
developed, generate sales or use tax pursuant to Part 1.5 (commencing with
Section 7200) of Division 2 of the Revenue and Taxation Code, unless the
principal permitted use of the development is office, hotel, manufacturing, or
industrial, or unless, prior to the effective date of the act that adds this section, the
agency either owns the land or has entered into an enforceable agreement, for the
purchase of the land or of an interest in the land, including, but not limited to, a
lease or an agreement containing covenants affecting real property, that requires
the land to be developed.
(2) For the purposes of this subdivision, a parcel shall include land on an adjacent
or nearby parcel on which a use exists that is necessary for the legal development
of the parcel.
(e) This section shall not be construed to apply to agency assistance in the
construction of public improvements that serve all or a portion of a project area
and that are not required to be constructed as a condition of approval of a
development described in subdivision (a), (b), or (c), or to prohibit assistance in
the construction of public improvements that are being constructed for a
development that is not described in subdivision (a), (b), or (c)."
2.04 Use, Transfer, and Maintenance Restrictions. The Development Instruments will
generally be subject to restrictions on (a) transfer during construction, and (b) use for a specified
period thereafter (i) to assure that the use will be consistent with and promote the Redevelopment
Plans of the redevelopment agencies of Irwindale and Azusa, (ii) to protect the character of the
Project and to provide an adequate long-term financial return, (iii) to prevent speculation prior to
completion, and (iv) to assure that any transferee has the resources, capability, and experience to
successfully develop the Project. In addition, restrictions shall be recorded to assure proper
maintenance of landscaping and improvements.
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SECTION 3. DEVELOPMENT OF PROJECT.
Hl Soils. Developer shall be solely responsible for investigating the Site and
remediating any contaminated or hazardous soil condition thereon completely and as necessary
to develop the Project. Developer shall be responsible for filling the North Pit and preparing it
so it is suitable for development. Developer shall further secure any geological or geotechnical
engineering report as may be necessary or advisable to assure that the Project is geotechnically
feasible, and any recommendation contained in the report shall be incorporated into the final
design and construction phase of the Project.
3.02 Permitting Process. Irwindale and Azusa will process those Project entitlements
required for the portions of the Site located within their boundaries, respectively. To the extent
permitted by law, the parties will cooperate to process the Project without requiring duplicate
submittals by Developer for each jurisdiction. Such cooperation may include, but is not limited
to, holding joint public hearings by Irwindale and Azusa to consider Project entitlements. Azusa
will be principally responsible for processing the environmental reviews necessary for the
Project. As permitted under CEQA, Irwindale will cooperate with Azusa in the preparation of
any environmental document required for the Project and utilize such documents for its
consideration in adopting mitigation measures and issuing necessary entitlements for the Project.
3.03 Traffic Impacts. The Cities of Irwindale and Azusa shall retain one traffic
engineering consultant, and Developer shall reimburse Cities, to perform a complete traffic study
("Traffic Study"), to analyze the potential impacts the Project may have on traffic circulation on
the area roadways. The traffic engineering consultant shall be selected by the Cities from a list
of qualified firms provided by Developer, and the form of the consultant's contract shall be
subject to Developer's approval. This traffic analysis may be accomplished either separately, or
as part of the CEQA process. Developer shall incorporate, with the cooperation of Irwindale and
Azusa, mitigation measures, as recommended by the Traffic Study, to assure traffic impacts at
the Site are mitigated to an acceptable level, as reasonably determined by the respective City
Engineer of Azusa or Irwindale, conceming the impact in his/her respective city, and the area
roadways will continue to operate at acceptable levels.
3.04 Schedule of Performance. The goal will be to (a) commence filling the North Pit by
June 1, 2004, (b) commence construction of the above -grade improvements (e.g., buildings) by
January 1, 2005, and (e) open the Project by December 1, 2005, with an understanding that the
opening of the Project may be phased. The Development Instruments shall contain a more
detailed Schedule of Performance.
3.05 Sales Tax Sharing Agreement. Irwindale and Azusa intend to share sales tax
revenues, if any, produced from the Project, regardless of where the sales tax generating sources
are located on the Site. The sharing of sales tax revenue shall be based on a number of factors.
including: (i) the disproportionate, unavoidable traffic impacts upon Irwindale roadways to and
from access points to the Site: (ii) the loss of utility tax revenues to Irwindale from the proposed
provision of utility services to the Site by Azusa Light & `Vater, a municipal utility owned and
operated by Azusa, (iii) assumption of liability relating to the Basin by Azusa, (iv) the utility tax
revenue anticipated by Azusa from the Project, (v) the receipt of extraction taxes by Azusa or
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Irwindale for fill used in the Project, and (vi) other relevant factors. If, through any
administrative proceeding or change in state law, or for any other reason, the determination of
sales tar is altered in a manner affecting the return of sales taxes to the jurisdictions
disproportionately, Irwindale and Azusa shall develop, and Developer shall cooperate with, but
not contribute financially to, any necessary procedures to adjust the financial return to each so
that each is receiving a return equivalent to the agreed-upon sharing of sales tax. The Cities'
inability to reach agreement on the allocation of such revenue shall not delay the Project.
3.06 Drainage Retention Basin. As permitted by law, Irwindale shall transfer to Azusa
and Azusa shall accept lead agency status over the design, processing, and approval of a drainage
retention basin ('Basin") for the Site. The Basin shall be located on the South Pit, i.e., the
portion of the Site located south of the 210 Freeway. Irwindale shall have no responsibility for
the design, acceptance, construction, operation or maintenance of the Basin in any manner.
Developer shall obtain and maintain a comprehensive general liability insurance policy in form
and content reasonably approved by Irwindale and Azusa, which names each City as additional
insureds, with respect to the risks posed by the development, operation and existence of the
Basin. Developer, for itself and its successors and assigns, shall release Irwindale and Azusa
from any liability relating to the Basin. Developer shall be solely responsible, with cooperation
from Irwindale and Azusa, for securing the following approvals for development of the Basin:
(a) Caltrans Permit. Developer shall secure all necessary approvals from Caltrans
to secure the right of way and construct a drainage conduit and conveyor system to
transport fill material under the 210 Freeway, which shall connect the retail center portion
of the Project north of the freeway to the Basin south of the freeway.
(b) Department of Conservation Waiver. Irwindale, shall endeavor to secure a
waiver from the Department of Conservation from the provisions of the Surface Mining
and Reclamation Act (Pub. Res. Code §§ 2710, et seq., "SMAR4") for the grading work
to construct the Basin and Project. Developer shall remain solely responsible for
complying with SMARA.
3.07 Billboards. The parties acknowledge that the North Pit presently contains 2 outdoor
advertising structures (`Billboard") leased to third parties. One Billboard is within the City of
Irwindale, pursuant to Irwindale Conditional Use Permit 94 -3 -CUP ("Irwindale CUP"). One
Billboard is within the City of Azusa, pursuant to Azusa Conditional Use Permit C-93-4 ("Azusa
CUP") (the Irwindale CUP and Azusa CUP are jointly "CUPS"). Developer has requested that
such Billboards remain on the Site as part of the Project using the existing Billboard structures
and allowing Billboard faces to be elevated commensurately in their existing locations to
accommodate the increased height of the Project. Developer has represented that the revenue
from the lease or sale of such Billboards and the other benefits provided by Van Wagner with
respect to the South Pit (e.a., the right to withdraw fill from it and to use it for the Basin), are
crucial to the financial viability of the Project and limiting the financial assistance required from
Irwindale and Azusa for development of the Project, and, absent those benefits, additional
assistance will be required.
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The City of Irwindale confirms that the Billboard conditions for approval have been
fulfilled, that the Irwindale CUP runs with the land (and may only be revised, modified,
terminated or extended by a noticed, public hearing), and that the existing Billboard structure
may be utilized during the process of entitling and constructing the Project. Irwindale anticipates
approving the Developer's request to modify the Irwindale CUP to allow the existing Billboard
to be raised in its current location in connection with the development of the Project.
The City of Azusa confirms that the Billboard conditions for approval have been fulfilled,
that the Azusa CUP runs with the land (and may only be revised, modified, terminated or
extended by a noticed, public hearing), and that the existing Billboard structure may be utilized
during the process of entitling and grading the Project. Azusa anticipates approving the
Developer's request to modify the Azusa CUP to allow the existing Billboard to be raised in its
current location in connection with the development of the Project. The City of Azusa will
approve the Assignment of the Agreement to Secure Conditions of Approval between the City of
Azusa and Calmat Properties Co. and Eller Media Co. dated the 19th day of October 1993 to the
Developer.
SECTION 4. OF NEGOTIATIONS
4.01 Period of Exclusive Negotiation. The period of negotiation shall be one (1) year
from the date this Agreement is signed by the parties, except as otherwise provided herein (the
"Term").
4.02 Early Termination. Within one hundred and eighty (180) days from the date hereof,
the parties shall meet and review the status of performance under this Agreement ("Review
Meeting"). Within such period, Developer should have done the following:
(a) Prepared a financial proforma for the construction of the Project which identifies
the total number of square feet for the Project and estimates the cost per square foot for
the construction thereof.
(b) Prepared a "Site Plan" specifying tenants contacted and those from whom
commitments have been or will be obtained, as well as the minimum square footage per
tenant. The Site Plan shall also describe the other pads to be constructed on the Site and
specify the various uses of each pad.
4.03 If any of the parties determine that the Project is not economically feasible, or if
Irwindale or Azusa find Developer's progress with respect to the matters set forth in this Section
4 unsatisfactory in its reasonable discretion, then such party may terminate this Agreement by
delivering written notice thereof to the other parties.
SECTION 5. EXTENSION OF TIME. This Agreement may be extended as follows:
5.01 For sixty (60) days if, within the Term, the Development Instruments have been
prepared and executed by the Developer and have been submitted to Irwindale and Azusa but
have not yet been approved by Irwindale's or Azusa's respective governing boards, or
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5.02 For thirty (30) days if, within the Term, the parties have agreed on the major business
terms and the City Managers and Executive Directors of Irwindale and Azusa reasonably
determine that further negotiations are likely to result in approval of Development Instruments;
or
5.03 By mutual agreement of the parties, as evidenced in writing.
5.04 Irwindale and Azusa Approval. Developer understands and acknowledges that if
negotiations culminate in Development Instruments, such Development Instruments shall be
effective only after and if the agreements have been considered and approved by the respective
governing boards of Irwindale and Azusa after public hearings thereon as required by law.
SECTION 6. DEVELOPER'S RESPONSIBILITIES.
6.01 During the period of negotiation, Developer will prepare such studies, reports, and
analysis as shall be necessary to permit Developer to determine the feasibility of the Project.
During the period of negotiation, and as requested by Irwindale or Azusa, the Developer shall
submit to Irwindale and Azusa the following:
(a) Full disclosure of Developer's principals, partners, joint venturers, negotiators,
consultants, professional employees, or other associates of the Developer who are
participants or principals of the Project, and all other relevant information concerning the
above.
(b) When appropriate, statement of financial condition in sufficient detail to
demonstrate Developer's financial capabilities, those of its principals, partners, joint
ventures, and those of its prospective developers to satisfy the commitments necessitated
by the Project, including all information necessary to demonstrate the availability of
construction and permanent financing. To the extent Developer wants such financial
statements to remain confidential; they shall be supplied to and maintained by Azusa and
Irwindale in confidence to the extent permitted by law.
(c) All information necessary for the design of the Project to meet Irwindale's and
Azusa's reasonable requirements. This information shall be sufficient to allow htivindale
and Azusa to evaluate site configuration, architectural design and similar issues.
(d) All Information necessary to show tenant availability and interest, the nature of
the proposed tenants, and the financial strength and resources of the tenants (to the extent
available). To the extent Developer wants such information to remain confidential, they
shall be supplied to the Irwindale and Azusa only if confidentiality can be maintained.
(e) All information necessary to conduct the Review Meeting required under Section
4.02 hereof.
6.02 During the period of negotiations, no public statements will be made by the
Developer, Irwindale or Azusa to the media without the approval of all parties to this Agreement,
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or as may be required by law. No prepared statements shall be released to the media without the
consent of all parties to this Agreement.
SECTION 7. IRWINDALE'S AND AZUSA'S RESPONSIBILITIES.
7.01 Extraction Tax. Developer has represented to Irwindale that it does not intend to
extract any material from the portion of the Site located within Irwindale. The Parties recognize
that the City of Azusa levies an extraction tax on the source of the mined material if it has
economic value. Overburden, when it becomes fill material, has an economic value, which
would be subject to the tax. To the extent that the Developer will realize an economic gain from
the waiver of any excavation tar, the total value of the extraction taxes Azusa would have
received shall be credited to Azusa's financial participation in the project.
7.02 Project Assistance. Irwindale and Azusa shall cooperate fully in providing
Developer with appropriate information and assistance, but such assistance shall not include
financial assistance unless specifically provided herein.
7.03 Preparation of Agreement. If agreement is reached on the business terms for
inclusion in the Development Instruments, Irwindale or Azusa shall prepare such Development
Instruments for consideration by the Developer. The parties will consider in good faith whether,
and to what extent, Developer should reimburse Irwindale and Azusa their expenses incurred in
connection with the preparation of the Development Instruments.
7.04 California Environmental Quality Act. The City of Azusa, in cooperation with the
City of Irwindale, shall retain one CEQA consultant to comply with CEQA. The CEQA
consultant shall be selected by the Cities from a list of qualified firms provided by Developer,
and the form of the consultant's contract shall be subject to Developer's approval. The
Developer shall enter into a Reimbursement Agreement with the City of Azusa to facilitate
reimbursement of the cost of complying with CEQA.
7.05 Grant Funds. Irwindale or Azusa may, but are not required to, apply for financial
assistance for the project from the U.S. Environmental Protection Agency, Department of
Housing & Urban Development and the California Integrated Waste Management Board or other
relevant agencies.
7.07 Access to Site. The Cities shall provide the following permanent vehicular and
pedestrian access to the Site not less than sixty (60) feet wide: (a) from Camino de la Cantera
(through the Denny's parking lot), and (b) from Foothill Boulevard through the westerly portion
of the Costco parking lot. To provide the access from Camino de la Cantera through the Denny's
parking lot, Irwindale shall negotiate with the tenant thereof, and, although its parking may be
reconfigured, it will not result in a net decrease in the total number of parking spaces. If such
negotiations are unsuccessful, at Developers request and expense, Irwindale may consider a
Resolution of Necessity with respect to providing such access, which it has the right, but not the
obligation, to do.
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7.08 Zoning of Site. The Cities represent and warrant to Developer that the current
zoning for the Site is M-2 General Manufacturing in Azusa and M-2 Heavy Manufacturing in
Irwindale, which allows the retail uses contemplated by this Agreement without the need for any
other discretionary approval or permit, other than Precise Plan of Design or CUPS for alcohol
sales or drive-throughs.
7.09 Hauling Material from Reliance Pit. Developer shall be allowed to remove fill,
overburden and similar materials from the Reliance Pit and to transport it to the North Pit for the
purpose of tilling it, in accordance with applicable laws.
SECTION 8. MISCELLANEOUS.
8.01 No Commissions. Neither Irwindale or Azusa shall be liable for any real estate
commission or any broker's fees which may arise in relation to the Project. Irwindale and Azusa
represent that neither have engaged no broker, agent, or finder in connection with this
transaction, and the Developer agrees to hold Irwindale and Azusa harmless from any claim by
any broker, agent, or finder retained by the Developer.
8.02 Ownership of Documents. If the negotiations contemplated by this Agreement do
not result in the execution of Development Instruments, Developer acknowledges that all reports,
studies, analysis, site plan layouts, engineering studies, memorandums, or similar documents
regarding the proposed development which were prepared during the period of negotiations
(except tenant information and proformas), which have been submitted to Irwindale, Azusa, the
County of Los Angeles, or any other governmental agency are public documents and will not be
kept confidential.
8.03 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing
this Agreement, such party is formally bound to the provisions of this Agreement, and (iv)
entering into this Agreement does not violate any provision of any other Agreement to which
said party is bound.
8.04 Eminent Domain. Azusa and Irwindale have the right to condemn all or any
interest in the South Pit. Upon Developer's request, and without in any way making any
commitment to take anv action as a result thereof. Azusa and Irwindale shall consider a
Resolution of Necessity to condemn an interest in, or fee title to, the South Pit, at Developer's
expense.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first
above written.
[SIGNATURES ON NEXT PAGE.]
I OO5M (/24.166 vi
-10-
0 0
"IRWINDALE"
CITY OF IRWINDALE, a municipal
corporation
By:
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
IRWINDALE REDEVELOPMENT
AGENCY, a public body, corporate and
politic
By:
Chairman
F.%wv w
Agency Secretary
APPROVED AS TO FORM:
Agency Counsel
Mailing Address:
1005/001124466 v5
0
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
ATT
Agency Secretary
APPROVED AS TO FORM:
,(LLL e - Ld✓��"""" —
Agency Counsel
0
CITY OF AZUSA, a California municipal
corporation
By:
Citylvlanager
AZUSA R[ t'�EVELOPMENT AGENCY, a
Mailing Address:
[SIGNATURES CONTINUED ON NEXT PAGE]
1005/001124466 v5
-12-
0
"DEVELOPER"
JAR-KNCAID, LLC,
a California limited liability company
M.
Print Name: � . i L�LjF- i LAbFoQ-'is
Print Title: q� R,�/�� w1L� to D�N aci-
Print Name: � . A-ut7J u-h:1FDi1
Print Title: 011G600 -
Mailing Address:
Attn:
(All Signatures must be notarized.)
10051001124466 v5
-13-
0
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of C
On7yil1t.4 ZOa� before me, 3e in
personally appeared
JENNIFER HORCASITAS
Comm. 91302201
NOTARY PUCLIGCALIFORNIA
Los Angelis County
mN Comm. Ecplses Apsi114.7W5's
Ne 11 dsor"sl
C personally known to me
proved to me on the basis of satisfactory
evidence
to be the person(p( whose name is/!X
subscribed to the within instrument and
acknowledged to me that he/AltP kexecuted
the same in his/Aft authorized
cafgacity(�ii,64 and that by his/her/ heir
signatureon the instrument the person or
the entity upon behalf of which the person(
acted, executed the instrument.
wl ESS my hand and offici I seat.
(7MM C C
Eri of 1 rt P
OPTIONAL
Though the inrormation below is not required by taw, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
. i
C Individual Top of ll u b here
C Corporate Officer—Title(s):
Partner — C Limited G General
C Attomey-in-Fact
Trustee
C Guardian or Conservator
C Other:
Signer Is Representing:
0 1999 Na l %W� Av non • 93 D Sow Am., PO. Box 2r - CNns. CA 913133002 • w-w.nalmav,dary Pw W. 5907 R . Ca Tui�,i- 1d 76 7
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South Pit
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11 I•!� _ ',`' !ii. ' ." - 1\.
may\ �' .. - ' '1 I i_ . _.. �1 � .. �qR �__:.; ";L.�•. '. '.`^. _ ,i." 'z�"- �"`"`_..•Y-.�:-: 0 ' _ .. _''IL, awa+.�.�e� i .�