HomeMy WebLinkAboutOrdinance No. 2015-O2ORDINANCE NO. 2015-02
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA
APPROVING A DEVELOPMENT AGREEMENT WITH MCS EDGEWOOD
CENTER LLC REGARDING PROPERTY LOCATED AT 485 E.
GLADSTONE STREET, AZUSA, CA, PURSUANT TO GOVERNMENT
CODE SECTION 65864 ET SEQ.
WHEREAS, on September 24, 2014, World Gym filed with the City of Azusa ("City") an
application for Design Review (DR -2014-31) to allow a non -retail fitness center to occupy
approximately 35,000 square feet of an existing shopping center ("Proposed Project"), located within
the Edgewood District zone at 485 E. Gladstone Street in Azusa ("Project Site"); and
WHEREAS, in conjunction with its application, MCS Edgewood Center LLC ("Owner"), the
owner of the Project Site, requested and applied to enter into a development agreement with the City
governing the Proposed Project; and
WHEREAS, a development agreement between the City and Owner is required for World
Gym to locate at the Project Site because World Gym's use would exceed the 15 percent limit on non -
retail uses in a shopping center, as provided in the Azusa Development Code; and
WHEREAS, in accordance with State and local law, the Planning Commission of the City of
Azusa, after giving notice thereof as required by law, held a public hearing on the application of MCS
Edgewood Center LLC to enter into a development agreement with the City; and
WHEREAS, the Planning Commission, upon consideration of all pertinent testimony and
the staff report offered in the case as presented at the public hearing, recommended that the City
Council approve the proposed development agreement with MCS Edgewood Center LLC; and
WHEREAS, the City Council of the City of Azusa, after giving notice as required by law,
held a public hearing on the application of MCS Edgewood Center LLC to enter into a development
agreement with the City; and
WHEREAS, the City Council of the City of Azusa, after carefully considering all pertinent
testimony and the staff report offered in the case as presented at the public hearing, now wishes to
approve the development agreement with MCS Edgewood Center LLC.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AZUSA DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1: Pursuant to, and in compliance with, the California Environmental Quality
Act ("CEQA") (Public Resources Code section 21000 et seq.), the Proposed Project is considered
categorically exempt from environmental review under CEQA pursuant to Section 15301, Class 1—
Existing Facilities, which includes the operation, repair, maintenance, permitting, leasing, licensing,
or minor alteration of existing public or private structures, and facilities. The Proposed. Project is
consistent with the General Plan and Zoning Code, and the Proposed Project would not result in any
significant effects relating to traffic, noise, air quality or water quality. Moreover, the Project Site
has no value as habitat for endangered, rare, or threatened species, and the Project Site can be.
adequately served by all required utilities and public services.
SECTION 2: That in accordance with Section 88.53.030 of the Azusa Municipal Code, the
City Council finds that the development agreement and the Proposed Project are consistent with the
General Plan and Chapter 88.53 of the Development Code, based on the following findings:
A. That the proposed Development Agreement and Proposed Project are consistent
with the goals, policies, and objectives of the General Plan.
The Project Site is located within the Edgewood District zone. Pursuant to Azusa Municipal
Code Section 88.24.030, Table 2-2 and Azusa Development Code Section 88.70.020, health/fitness
facilities are permitted within the Edgewood District zone with approval of a minor use permit and
non -retail uses that exceed 15 percent a site are allowed at a shopping center through a development
agreement. In addition, Design Review (DR 2014-31) was approved for the Proposed Project.
The development agreement helps implement the Proposed Project and affirms MCS
Edgewood Center LLC's and the City's rights and obligations related thereto. The following table
details elements of the General Plan and those aspects of the proposed project and development
agreement that are in compliance with the listed elements. As shown below, the proposed
development agreement and the Proposed Project are consistent with the General Plan.
City of
Goal/Policyi
CHAPTER 4: ECONOMY AND
COMMUNITY
Land Use Goals and Policies
Economic Development
GOAL l: Build and maintain a strong,
diverse economy in Azusa.
The proposed World Gym would provide a small
Policy 1.5: Provide high-quality, flexible section of commercial space, while providing an
commercial spaces at a competitive price. alternative, non -retail use to strengthen and
diversity the commercial shopping center for
Azusa residents.
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City of Azusa General Plan
Goal/Policy
Proposed Project
GOAL 10: Strengthen the retail and
commercial base.
The Proposed Project would utilize a tenant space
Policy 10.1: Address key gaps in retail
in the Edgewood Shopping Center, which has
and commercial services.
stood vacant since 2012, according to City
building permit records.
Land Use implementation Programs
LU5: Development Agreements
Development Agreements are authorized
by State law to enable a city to enter into
a binding contract with a developer that
A development agreement is a component of the
assures the city as to the type, character
application to allow World Gym to occupy
and quality of development and additional
approximately 35,000 square feet of space at the
"benefits" that may be contributed and
Edgewood Shopping Center.
assures the developer that the necessary
development permits will be issued
regardless of regulation changes.
B. That the proposed Development Agreement is consistent with Chapter 88.53 of the
Development Code.
Section 88.53.030.E of the Development Code requires that in addition to its General Plan
consistency determination, the City Council find that the development agreement is consistent with
Chapter 88.53. The City Council determines that the development agreement is consistent with
Chapter 88.53 of the Development Code because the development agreement complies with every
requirement of Chapter 88.53, including the following:
The Development Agreement contains all of the following mandatory elements listed in
Section 88.53.040.A and Government Code 65865.2:
The duration of the agreement: pursuant to section 2.3 of the Development
Agreement, the term of the Agreement is 20 years from the date this proposed
Ordinance authorizing the Agreement becomes effective.
The permitted uses on the property: pursuant to section 3.1 of the Development
Agreement, the only permitted uses on the Project Site are those related to MCS
Edgewood Center LLC entitlements, as contained in DR 2014-31 and other related
planning documents.
The density or intensity of permitted uses: pursuant to sections 3.1 and 3.2 of the
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Development Agreement, the density and intensity of the permitted uses (i.e., the
extent of permitted a World Gym at the Project Site) is governed by DR 2014-31 and
other related planning documents.
4. The maximum height and size of proposed structures: pursuant to sections 3.1 and 3.2
of the Development Agreement, the maximum height or size of proposed structures is
governed by DR 2014-31 and other related planning documents.
Provisions for reservation or dedication of lands for public purposes: the reservation
or dedication of lands for public purposes is not being required pursuant to the
Development Agreement. However, pursuant to sections 4.1 and 4.2 of the
Development Agreement, an annual in -lieu fee will be provided by the Owner to the
City.
• The Planning Commission considered the Development Agreement and made a written
recommendation to the City Council.
• The City Council considered the Development Agreement during a duly noticed public
hearing.
C. That the proposed Development Agreement is consistent with City of Azusa
Development Code regulations.
Development of the Project Site in accordance with the terms of the Development
Agreement, other related planning documents, and DR 2014-31 will ensure that the improvements
contemplated in the Development Agreement are consistent with the City's Development Code.
D. That the proposed Development Agreement promotes the health, safety and
general welfare and would not be materially detrimental or injurious to persons or property in
the vicinity and in the same zone.
The Development Agreement would allow the occupation of a tenant space in the Edgewood
Shopping Center that has been vacant since 2012. Occupation of the vacant space would strengthen
the diversity the shopping center and economically improve it. Those improvements would inure to
the benefit of the public interest and welfare.
E. That the proposed Development Agreement is fair and equitable and has a positive
effect on the orderly development of property and the preservation of property values.
The Development Agreement accommodates a project that will improve an existing
shopping center located close to other commercial and residential uses. The improvements to the
tenant space and overall shopping center are expected to have a positive effect on surrounding uses,
and are also expected to preserve or potentially increase area property values.
F. That the proposed Development Agreement provides sufficient benefits to the
community to justify its approval.
Pursuant to sections 4.1 and 4.2 of the Development Agreement, an annual in -lieu fee will be
Page 4 of 7
provided by the Owner to the City.
SECTION 3: Based on the aforementioned findings, the City Council does hereby find and
ordain that the Development Agreement for the Proposed Project, located at the Project Site is
consistent with the City of Azusa General Plan, the City of Azusa Development Code, including
Chapter 88.53 of the Development Code, California Government Code, Section 65864 et seq. and
based on the findings contained herein, approves the Development Agreement, substantially in the
form attached hereto as Exhibit "A" subject to any non -substantive changes made by the City
Attorney and the Community Development Director.
SECTION 4: The applicant shall indemnify; protect, defend, and hold the City, and/or any
of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof,
harmless from any and all claims, demands, lawsuits, writs of mandamus, and other actions and
proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and
alternative dispute resolution procedures (including, but not limited to arbitrations, mediations, and
other such procedures), judgments, orders, and decisions (collectively "Actions"), brought against
the City, and/or any of its officials, officers, employees, agents, departments, agencies, and
instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, this or
any other action of, or any permit or approval issued by the City and/or any of its officials, officers,
employees, agents, departments, agencies, and instrumentalities thereof (including actions approved
by the voters of the City) for or concerning the project, whether such Actions are brought under the
Ralph M. Brown Act, California Environmental Quality Act, the Planning and Zoning Law, the
Subdivision Map Act, Community Redevelopment Law, Surface Mining and Reclamation Act, Code
of Civil Procedure Sections 1085 or 1094.5, or any other federal, state, or local constitution, statute,
law, ordinance, charter, rule, regulation, or any decision of a court of competent jurisdiction. It is
expressly agreed that the City shall have the right to approve, which approval will not be
unreasonably withheld, the legal counsel providing the City's defense, and that applicant shall
reimburse City for any costs and expenses directly and necessarily incurred by the City in the course
of the defense. City shall promptly notify the applicant of any, Action brought and City shall
cooperate with applicant in the defense of the Action. The applicant or successor in interest shall be
the real party in interest and shall assume primary responsibility for the defense of any legal action or
proceeding commenced against the City to challenge this approval or the City's approval of Land Use
Entitlements and/or the City's approval related to this approval or such land use approval. The
applicant or successor in interest shall reimburse the City for all reasonable attorneys' fees and other
reasonable costs incurred by the City in defending such action or proceeding.
SECTION 5: This Ordinance shall not be effective unless and until the effective date of
Development Code Amendment No. 236.
SECTION 6: The City Clerk shall certify to the passage and adoption of this Ordinance,
causing it to be posted as required by law, and it shall be effective (30) days after its adoption.
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law. SECTION 7: A summary of this Ordinance shall be published in the manner required by
PASSED, APPROVED and ADOPTED this 201h day of January, 2015.
oseph omero Rocha
Mayor
ATTEST:
.e .,
3`61766y nce Cornea , Jr.
City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
CITY OF AZUSA )
I HEREBY CERTIFY that the foregoing Ordinance No. 2015-02, was duly introduced
and placed upon its first reading at a regular meeting of the Azusa City Council on the 5'h day of
January, 2015 and that thereafter, said Ordinance was duly adopted and passed at a regular
meeting of the Azusa City Council on the 20`h day of January, 2015 by the following vote to wit:
AYES: COUNCILMEMBERS: GONZALES, CARRILLO, MACIAS, ALVAREZ, ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
s_,. �✓
rdx
i
APPROVED AS TO FORM:
Marc A. Martinez
Best l3est & Kriege LLP
City Attorney
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EXHIBIT A
DEVELOPMENT AGREEMENT
Page 7 of 7
RECORDING REQUESTED BY:
(This Space for Recorder's Use)
City Clerk
City of Azusa
WHEN RECORDED MAIL TO:
City of Azusa
Azusa, CA
Attention: City Clerk
No Transfer Tax Due
Exempt from filing fees pursuant to Government Code §6103
DEVELOPMENT AGREEMENT
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF AZUSA
and
MCS Edgewood Center LLC, a California limited liability company
45635.01000\9443408.4
DEVELOPMENT AGREEMENT
This Development Agreement (hereinafter "Agreement') is entered into as of this 20th
day of January, 2015 by and between the City of Azusa, California (hereinafter "CITY"), and
MCS Edgewood Center LLC, a California limited liability company (hereinafter "OWNER"):
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with
persons having legal or equitable interests in real property for the development of such property,
pursuant to Section 65864, et sq. of the Government Code; and
WHEREAS, OWNER has requested CITY to enter into a development agreement and
proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive
review by CITY and OWNER and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the City of Azusa and the public health,
safety and welfare will be served by entering into this Agreement; and
WHEREAS, the City Council hereby finds and determines that this development
agreement is of major significance because it will enable the City to fund much needed capital
improvements and provide much needed public services and will therefore also have a major,
beneficial economic impact on the City; and
WHEREAS, the physical effects, if any, of the Project have been or will be separately
analyzed pursuant to CEQA and therefore, this Agreement is exempt from further review under
CEQA; and
WHEREAS, this Agreement and the Project are consistent with the Azusa General Plan
and any specific plan applicable thereto; and
WHEREAS, all actions taken and,approvals given by CITY have been duly taken or
approved in accordance with all applicable legal requirements for notice, public hearings,
findings, votes, and other procedural matters; and
WHEREAS, development of the Property in accordance with this Agreement will
provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the
orderly development of the Property, ensure progressive installation of necessary improvements,
provide for public services appropriate to the development of the Project, and generally serve the
purposes for which development agreements under Section 65864, et seq. of the Government
Code are intended.
45635.0100019443408. 5
Code are intended.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as
follows:
1.1.1 "Agreement" means this Development Agreement.
1.1.2 "CITY" means the City of Azusa, a California municipal corporation.
1.1.3 "City Council" means the duly elected city council of the City of Azusa.
1.1.4 "Commencement Date" means the date the Term of this Agreement
commences
1.1.5 "Development" means the improvement of the Property for the purposes
of completing the structures, improvements and facilities comprising the Project including, but
not limited to: grading; the construction of infrastructure and public facilities related to the
Project whether located within or outside the Property; the construction of buildings and
structures; and the installation of landscaping. "Development" does not include the maintenance,
repair, reconstruction or redevelopment of any building, structure, improvement or facility after
the construction and completion thereof.
1.1.6 '"Development Approvals" means all permits and other entitlements for
use subject to approval or issuance by CITY in connection with development of the Property
including, but not limited to:
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
(c) conditional use permits, public use permits and plot plans;
(d) zoning;
(e) grading and building permits.
1.1.7 "Development Exaction" means any requirement of CITY in connection
with or pursuant to any Land Use Regulation or Development Approval for the dedication of
45635.01000\9443408. 5 -2-
land, the construction of improvements or public facilities, or the payment of fees in order to
lessen, offset, mitigate or compensate for the impacts of development on the environment or
other public interests.
1.1.8 "Development Impact Feu' (to the extent they are applicable) means a
monetary exaction other than a tax or special assessment, whether established for a broad class of
projects by legislation of general applicability or imposed on a specific project on an ad hoc
basis, that is charged by a local agency to the applicant in connection with approval of a
development project for the purpose of defraying all or a portion of the cost of public facilities
related to the development project, but does not include park "in lieu' fees specified in
Government Code Section 66477, fees for processing applications for governmental regulatory
actions or approvals, fees collected under development agreements adopted pursuant to Article
2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected
pursuant to agreements with redevelopment agencies which provide for the redevelopment of
property in furtherance or for the benefit of a redevelopment project for which a redevelopment
plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing
with Section 33000) of Division 24 of the Health and Safety Code).
1.1.9 "Development Plan" means the plan for development of the Property as
set forth in Exhibit "C".
1.1.10 "Effective Date' means the date the ordinance approving and authorizing
this Agreement becomes effective.
1.1.11 "Land Use Regulations" means all ordinances, resolutions, codes, rules,
regulations and official policies of CITY governing the development and use of land, including,
without limitation, the permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed buildings, the provisions for reservation
or dedication of land for public purposes, and the design, improvement and construction
standards and specifications applicable to the development of the Property. "Land Use
Regulations" does not include any CITY ordinance, resolution, code, rule, regulation or official
policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) taxes (special or general) and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights
and interests that provide for the use of or the entry upon public property;
(e) the exercise of the power of eminent domain.
45635.01000\9443408. 5 -3-
1.1.12 "OWNER" means the persons and entities listed as OWNER on page I of
this Agreement and their successors in interest to all or any part of the Property.
1.1.13 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a
deed of trust or any other security -device lender, and their successors and assigns.
1.1.14 "Project' means the development of the Property contemplated by the
Development Plan as such Plan may be further defined, enhanced or modified pursuant to the
provisions of this Agreement.
1.1.15 "Property" means the real property described on Exhibit "A" and shown
on Exhibit `B" to this Agreement.
1.1.16 "Reservation of Rights" means the rights and authority excepted from the
assurances and rights provided to OWNER under this Agreement and reserved to CITY under
Section 3.3 of this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit "A" — Legal Description of the Property.
Exhibit `B" — Map showing Property and its location.
Exhibit "C" — Development Plan.
GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this
Agreement. Development of the Property is hereby authorized and shall be carried out in
accordance with the terms of the Development Plan and this Agreement.
2.2 Ownership of Property. OWNER represents and covenants that it is the owner of
the fee simple title to, or has an equitable interest in, the Property or a portion thereof.
2.3 Term. The term of this Agreement shall commence on the date (the
"Commencement Date") that is the Effective Date, and shall continue for a period of TWENTY
(20) years thereafter, unless this term is modified or extended pursuant to the provisions of this
Agreement. Thereafter, the OWNER shall have no vested right under this Agreement, regardless
of whether or not OWNER has paid any Development Impact Fee.
2.4 Ass�mnent.
2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign
the Property in whole or in part (provided that no such partial transfer shall violate the
Subdivision Map Act, Government Code Section 66410, et SeMc .) to any person, partnership, joint
45635.01000\9443408. 5 -4-
venture, fine or corporation at any time during the Term of this Agreement; provided, however,
that any such sale, transferor assignment shall include the assignment and assumption of the
rights, duties and obligations arising under or from this Agreement and be made in strict
compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this
Agreement shall be made unless made together with the sale, transfer or assignment of all or a
part of the Property.
(b) Concurrent with any such sale, transfer or assignment, OWNER
shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with
an executed agreement ("Assignment and Assumption Agreement'), in a form reasonably
acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the
purchaser, transferee or assignee expressly and unconditionally assumes all the duties,
obligations, agreements, covenants, waivers.of OWNER under this Agreement, including,
without limitation, the covenants not to sue and waivers contained in Sections 7.2 and 8.4 hereof.
Any sale, transfer or assignment not made in strict compliance with the foregoing
conditions shall constitute a default by Owner under this Agreement. Notwithstanding the
failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph
(b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser,
transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser,
transferee or assignee until and unless such agreement is executed.
2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or
assignment, a transferring OWNER shall continue to be obligated under this Agreement with
respect to the transferred Property or any transferred portion thereof, unless such transfer -ring
OWNER is given a release in writing by CITY, which release shall be provided by CITY upon
the full satisfaction by such transferring OWNER of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any
part of the Property subject to the transfer.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed
agreement required under Paragraph (b) of Subsection 2.4.1, above.
(d) The purchaser, transferee or assignee provides CITY with security
equivalent to any security previously provided by OWNER to secure performance of its
obligations hereunder.
2.4.3 Subsequent Assignment. Any subsequent sale, transfer or assignment
after an initial sale, transfer or assignment shall be made only in accordance with and subject to
the terms and conditions of this Section.
45635.01000\9443408. 5 -5-
2.4.4 Utilities. The Project shall be connected to all utilities necessary to
provide adequate water, sewer, gas, electric, and other utility service to the Project, prior to the
issuance of a certificate of occupancy for any portion of the Project.
2.5 Amendment or Cancellation of Aereement. This Agreement maybe amended or
canceled in whole or in part only by written consent of all parties in the manner provided for in
Government Code Section 65868. This provision shall not limit any remedy of CITY or
OWNER as provided by this Agreement.
2.6 Termination. This Agreement shall be deemed terminated and of no further effect
upon the occurrence of any of the following events:
(a) Expiration of the stated Term of this Agreement as set forth in
Section 2.3.
(b) Entry of a final judgment setting aside, voiding, or annulling the
adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the
ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this
Agreement, defined as the termination of the World Gym lease of the premises at the Property
prior to the expiration of the term or any extension thereof. Notwithstanding anything to the
contrary above, in the event that the World Gym lease terminates or expires during the term of
this Agreement, but another gym replaces World Gym at the same premises at the Property
within one year of World Gym's lease termination or expiration, such event would not be
deemed to be a "completion of the Project" that terminates this Agreement.
Termination of this Agreement shall not constitute termination of any other land
use entitlements approved for the Property. Upon the termination of this Agreement, no party
shall have any further right or obligation hereunder except with respect to any obligation to have
been performed prior to such termination or wiih respect to any default in the performance of the
provisions of this Agreement that has occurred prior to such termination or with respect to any
obligations that are specifically set forth as surviving this Agreement.
2.7 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to,
the communication of notice, request, demand, approval, statement, report, acceptance, consent,
waiver, appointment or other communication required or permitted hereunder.
(b) All notices shall be in writing and shall be considered given either:
(i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown
on the return receipt, after deposit in the United States mail in a sealed envelope as either
45635.01000\9443408. 5 -6-
registered or certified mail with return receipt requested, and postage and postal charges prepaid,
and addressed to the recipient named below; or (iii) on the date of delivery shown in the records
of the telegraph company after transmission by telegraph to the recipient named below. All
notices shall be addressed as follows:
If to CITY:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: City Manager
Telephone: (626) 812-5200
Facsimile: (626) 334-5464
Copy to:
Best, Best & Krieger, LLP
18101 Von Karm-an Ave., Ste. 1000
Irvine, CA 92612
Attn: City Attorney
Telephone: (949) 263-2600
Facsimile: (949) 260-0972
If to OWNER:
MCS Edgewood Center LLC
990 Highland Drive — Suite 200
Solana Beach, CA 92075
Attn: Matthew C. Strauss, Manager
Telephone: 858-792-7500
Facsimile: 858-792-7834
(c) Either party may, by notice given at any time, require subsequent
notices to be given to another person or entity, whether a party or an officer or representative of a
party, or to a different address, or both. Notices given before actual receipt of notice of change
shall not be invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement including the
Reservation of Rights, OWNER shall have a vested right to develop the Property in accordance
with, and to the extent of, this Agreement. Except as expressly provided otherwise herein, the
Project shall remain subject to all Land Use Regulations and Development Approvals, whether in
effect on the Effective Date or subsequently adopted or amended, that are required to complete
45635.01000\9443408. 5 -7-
the Project as contemplated by the Development Plan: Except as otherwise provided in this
Agreement, and notwithstanding the authority of the CITY to further revising the Land Use
Regulations pursuant to Government Code section 65866, the permitted uses of the Property, the
density and intensity of use, the maximum height and size of proposed buildings, and provisions
for reservation and dedication of land for public purposes shall be those set forth in the Land Use
Regulations and Development Approvals, whether in effect on the Effective Date or
subsequently adopted or amended. OWNER shall comply with all mitigation measures required
to be undertaken pursuant to any document prepared in compliance with the California
Environmental Quality Act with respect to the Project.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided
under the terms of this Agreement including the Reservation of Rights, the rules, regulations and
official policies governing permitted uses of the Property, the density and intensity of use of the
Property, the maximum height and size of proposed buildings, and the design, improvement and
construction standards and specifications applicable to development of the Property shall be the
Land Use Regulations and Development Approvals, whether in effect on the Effective Date or
subsequently adopted. In connection with any subsequently imposed Development Approvals
and except as specifically provided otherwise herein, CITY may exercise its discretion in
accordance with the Land Use Regulations then in effect, as provided by this Agreement,
including, but not limited to, the Reservation of Rights. CITY shall accept for processing,
review and action all applications for subsequent development approvals, and such applications
shall be processed in the same manner and the CITY shall exercise its discretion, when required
or authorized to do so, to the same extent it would otherwise be entitled in the absence of this
Agreement.
3.3 Reservation of Rights.
3.3.1 Limitations, Reservation and Exceptions. Notwithstanding any other
provision of this Agreement, the following regulations shall apply to the development of the
Property:
(a) Processing fees and charges of every kind and nature imposed by
CITY to cover the estimated actual costs to CITY of processing applications for Development
Approvals or for monitoring compliance with any Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions,
applications, notices, findings, records, hearings, reports, recommendations, appeals and any
other matter of procedure.
(c) Regulations, policies and rules governing engineering and
construction standards and specifications applicable to public and private improvements,
including, without limitation, all uniform codes adopted by the City and any local amendments to
those codes adopted by the CITY, including, without limitation, the CITY's Building Code,
Plumbing Code, Mechanical Code, Electrical Code, and Grading Ordinance.
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(d) Regulations imposing Development Exactions; provided, however,
that no such subsequently adopted Development Exaction shall be applicable to development of
the Property unless such Development Exaction is applied uniformly to development, either
throughout the CITY or within a defined area of benefit which includes the Property. No such
subsequently adopted Development Exaction shall apply if its application to the Property would
physically prevent development of the Property for the uses and to the density or intensity of
development set forth in the Development Plan. In the event any such subsequently adopted
Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in
Section 4 of this Agreement, CITY shall allow a credit against such subsequently adopted
Development Exaction for the fees paid under Section 4 of this Agreement to the extent such
fees fulfill the same purposes.
(e) Regulations that may be in material conflict with this Agreement
but that are reasonably necessary to protect the residents of the project or the immediate
community from a condition perilous to their health or safety. To the extent possible, any such
regulations shall be applied and construed so as to provide OWNER with the rights and
assurances provided under this Agreement.
(f) Regulations that are not in material conflict with this Agreement or
the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the
rate or timing of development of the Property shall be deemed to materially conflict with the
Development Plan and shall therefore not be applicable to the development of the Property.
(g) Regulations that are in material conflict with the Development
Plan, provided OWNER has given written consent to the application of such regulations to
development of that Property in which the OWNER has a legal or equitable interest.
(h) Regulations that impose, levy, alter or amend fees, charges, or
Land Use Regulations relating to consumers or end users, including, without limitation, trash can
placement, service charges and limitations on vehicle parking.
(i) Regulations of other public agencies, including Development
Impact Fees adopted or imposed by such other public agencies, although collected by CITY.
3.3.2 Subsequent Development Approvals. This Agreement shall not prevent
CITY, in acting on subsequent development approvals and to the same extent it would otherwise
be authorized to do so absent this Agreement, from applying subsequently adopted or amended
Land Use Regulations that do not materially conflict with this Agreement.
3.3.3 Modification or Suspension by State or Federal Law. In the event that
State, County or Federal laws or regulations, enacted after the Effective Date of this Agreement,
prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such State or Federal laws or regulations; provided, however, that this Agreement shall
remain in full force and effect to the extent it is not inconsistent with such laws or regulations
45635.01000\9443408. 5 -9-
and to the extent such laws or regulations do not render such remaining provisions impractical to
enforce.
3.3.4 Intent. The parties acknowledge and agree that CITY is restricted in its
authority to limit certain aspects of its police power by contract and that the foregoing
limitations, reservations and exceptions are intended to reserve to CITY all of its police power
that cannot be or are not expressly so limited. This Agreement shall be construed, contrary to its
stated terms if necessary, to reserve to CITY all such power and authority that cannot be or is not
by this Agreement's express terms so restricted.
3.4 Reeulation by Other Public Aizencies. It is acknowledged by the parties that other
public agencies not within the control of CITY may possess authority to regulate aspects of the
development of the Property separately from or jointly with CITY and this Agreement does not
limit the authority of such other public agencies.
4. PUBLIC BENEFITS.
4.1 Intent. The parties acknowledge and agree that development of the Property will
result in substantial public needs that will not be fully met by the Development Plan and further
acknowledge and agree that this Agreement confers substantial private benefits on OWNER that
should be balanced by commensurate public benefits. Accordingly, the parties intend to provide
consideration to the public to balance the private benefits conferred on OWNER by providing
more fully for the satisfaction of the public needs resulting from the Project.
4.2 Annual In -Lieu Fees. OWNER agrees to pay to CITY in cash an in lieu payment
equal to SIXTY CENTS ($0.60) per square foot of the World Gym premises at the Property per
year commencing one year after the CITY's issuance of a certificate of occupancy for World
Gym, and payments shall be made on a quarterly basis, continuing on the 1 st day of each
successive calendar quarter, until World Gym's lease expires or the World Gym lease is earlier
terminated by World Gym or the OWNER; provided, however, that during any period in which
World Gym is not operating its intended use at the Property (whether due to casualty,
condemnation, remodeling or any other similar purposes), the in lieu payments shall be
suspended or prorated as applicable so that in lieu payments are only being made by OWNER for
periods in which World Gym is operating its intended use at the Property. The in lieu payment
shall similarly be prorated upon the expiration or earlier termination of World Gym's lease based
upon the portion of the final calendar quarter in which World Gym is operating at the Property.
OWNER'S failure to timely make an in lieu payment to CITY shall be deemed an event of
default if not fully cured within five (5) business days following notice of such default delivered
by CITY to OWNER; the foregoing cure period shall specifically supersede any cure period
provided in this Agreement. The provisions of this Section 4.2 shall continue to apply if any
other gym locates at the World Gym premises at the Property during the term of this Agreement.
The provisions of this Section 4.2 shall also survive the expiration of this Agreement if another
gym locates at the World Gym premises after the expiration of this Agreement. Notwithstanding
OWNER'S obligation to pay an in lieu payment, OWNER may, between January 1 and January
30 of each year, request that an amount equal to the sales tax actually paid and derived from
45635.01000\9443408. 5 -10-
retail sales generated from the World Gym premises at the Property in the previous calendar year
be credited to OWNER'S first quarterly in lieu payment for the subsequent year. Such request
shall be in writing and accompanied by data to substantiate the amount of sales tax generated by
World Gym's intended use at the Property that exceeds $1,000 during the previous calendar year.
CITY shall review the request, verify the data (to the extent possible) and make a written
determination concerning whether such credit will be provided or whether additional information
is needed.
5. INTENTIONALLY DELETED.
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6.1 Periodic Review. The CITY shall review this Agreement annually, on or before
the anniversary of the Effective Date, in order to ascertain the compliance by OWNER with the
terms of the Agreement. OWNER shall submit an Annual Monitoring Report, in a form
acceptable to the City Manager, within thirty (30) days after written notice from the City
Manager. The Annual Monitoring Report shall be accompanied by an annual review and
administration fee sufficient to defray the estimated costs of review and administration of the
Agreement during the succeeding year. The amount of the annual review and administration fee
shall be set annually by resolution of the City Council.
6.2. Special Review. The City Council may order a special review of compliance with
this Agreement at any time. The Community Development Director, or his or her designee, shall
conduct such special reviews.
6.3 Procedure
(a) During either a periodic review or a special review, OWNER shall
be required to demonstrate good faith compliance with the terms of the Agreement. The burden
of proof on this issue shall be on OWNER.
(b) Upon completion of a periodic review or a special review, the
Community Development Director, or his or her designee, shall submit a report to the Planning
Commission setting forth the evidence concerning good faith compliance by OWNER with the
terms of this Agreement and his or her recommended finding on that issue.
(c) If the Planning Commission finds and determines on the basis of
substantial evidence that OWNER has complied in good faith with the terms and conditions of
this Agreement, the review shall be concluded.
(d) if the Planning Commission finds and determines on the basis of
substantial evidence that OWNER has not complied in good faith with the terms and conditions
of this Agreement, the Commission may recommend to the City Council modification or
termination of this Agreement. OWNER may appeal a Planning Commission determination
pursuant to this Section 6.3(d) pursuant to CITY's rules for consideration of appeals in zoning
45635.01000\9443408. 5 -11-
matters then in effect. Notice of default as provided under Section 7.3 of this Agreement shall be
given to OWNER prior to or concurrent with proceedings under Section 6.4 and Section 6.5.
6.4 Proceedings Upon Modification or Termination. If, upon a finding under Section
6.3, CITY determines to proceed with modification or termination of this Agreement, CITY shall
give written notice to OWNER of its intention so to do. The notice shall be given at least ten (10)
calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not CITY proposes to terminate or to
modify the Agreement; and
(c) Such other information that the CITY considers necessary to
inform OWNER of the nature of the proceeding.
6.5 Hearing on Modification or Termination. At the time and place set for the
hearing on modification or termination, OWNER shall be given an opportunity to be heard.
OWNER shall be required to demonstrate good faith compliance with the terms and conditions
of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council
finds, based upon substantial evidence, that OWNER has not complied in good faith with the
terms or conditions of the Agreement, the City Council may terminate this Agreement or modify
this Agreement and impose such conditions as are reasonably necessary to protect the interests of
the CITY. The decision of the City Council shall be final.
6.6 Certificate of agreement Compliance. If, at the conclusion of a Periodic or
Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon
request by OWNER, issue a Certificate of Agreement Compliance ("Certificate") to OWNER
stating that after the most recent Periodic or Special Review and based upon the information
known or made known to the Community Development Director and City Council that: (1) this
Agreement remains in effect; and (2) OWNER is not in default. The Certificate shall be in
recordable form, shall contain information necessary to communicate constructive record notice
of the finding of compliance, shall state whether the Certificate is issued after a Periodic or
Special Review and shall state the anticipated date of commencement of the next Periodic
Review. OWNER may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or
OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic
or Special Review, but was concealed from or otherwise not known to the Community
Development Director or City Council.
7. DEFAULT AND REMEDIES.
7.1 Remedies in General. It is acknowledged by the parties that CITY would not
have entered into this Agreement if it were to be liable in damages under this Agreement, or with
45635.01000\9443408. 5 -12-
respect to this Agreement or the application thereof. In general, each of the parties hereto may
pursue any remedy at law or equity available for the breach of any provision of this Agreement,
except that CITY shall not be liable in damages to OWNER, or to any successor in interest of
OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any
damages:
(a) For any breach of this Agreement or for any cause of action that
arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest
conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue
regarding the application or interpretation or effect of the provisions of this Agreement.
7.2 Release. Except for non -monetary remedies, OWNER, for itself, its successors
and assignees, hereby releases CITY, its officers, agents and employees from any and all claims,
demands, actions, or suits of any kind or nature arising out of any liability, known or unknown,
present or future, including, but not limited to, any claim or liability, based or asserted, pursuant
to Article I, Section 19 of the California Constitution, the Fifth and Fourteenth Amendments to
the United States Constitution, or any other law or ordinance which seeks to impose any other
liability or damage, whatsoever, upon CITY because it entered into this Agreement or because of
the terms of this Agreement. OWNER hereby acknowledges that it has read and is familiar with
the provisions of California Civil Code Section 1542, which is set forth below:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR."
By initialing below, OWNER hereby waives the provisions of Section 1542 in
connection with the matters that are the subject of thee i waivers and releases.
Own s s
7.3 Termination or Modification of Agreement for Default of OWNER. CITY may
terminate or modify this Agreement for any failure of OWNER to perform any material duty or
obligation of OWNER under this Agreement, or to comply in good faith with the terms of this
Agreement (hereinafter referred to as "default'); provided, however, CITY may terminate or
modify this Agreement pursuant to this Section only after providing written notice to OWNER of
default setting forth the nature of the default and the actions, if any, required by OWNER to cure
45635.01000\9443408. 5 -13
such default and, where the default can be cured, OWNER has failed to take such actions and
cure such default within sixty (60) days after the later to occur of (i) the delivery of such notice
to OWNER, or (ii) the effective date of such notice or, in the event that such default cannot be
cured within such sixty (60) day period but can be cured within a longer time, has failed to
commence the actions necessary to cure such default within such sixty (60) day period and to
diligently proceed to complete such actions and cure such default.
7.4 Termination of Agreement for Default of CITY. OWNER may terminate this
Agreement only in the event of a default by CITY in the performance of a material term of this
Agreement and only after providing written notice to CITY of default setting forth the nature of
the default and the actions, if any, required by CITY to cure such default and, where the default
can be cured, CITY has failed to take such actions and cure such default within sixty (60) days
after the later to occur of (i) the delivery of such notice to CITY, or (ii) the effective date of such
notice or, in the event that such default cannot be cured within such sixty (60) day period but can
be cured within a longer time, has failed to commence the actions necessary to cure such default
within such sixty (60) day period and to diligently proceed to complete such actions and cure
such default.
8. LITIGATION
8.1 Third Party Litigation Concerning Agreement. OWNER shall defend, at its
expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and
employees from any claim, action or proceeding against CITY, its agents, officers, or employees
to attack, set aside, void, or annul the approval of this Agreement, or the approval of any permit
granted pursuant to this Agreement. CITY shall promptly notify OWNER of any claim, action,
proceeding or determination included within this Section 8.1, and CITY shall cooperate in the
defense. If CITY fails to promptly notify OWNER of any such claim, action, proceeding or
determination, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be
responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate
in the defense of any such claim, action, proceeding or determination.
8.2 Environmental Assurances. OWNER shall indemnify and hold CITY, its officers,
agents, and employees free and harmless from any liability, based or asserted, upon any act or
omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest,
successors, assigns and independent contractors for any violation of any federal, state or local
law, ordinance or regulation relating to industrial hygiene or to environmental conditions on,
under or about the Property, including, but not limited to, soil and groundwater conditions, and
OWNER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents and
employees in any action based or asserted upon any such alleged act or omission. CITY may in
its discretion participate in the defense of any such action.
8.3 Reservation of Rights. With respect to Section 8.1 and Section 8.2 herein, CITY
reserves, the right to either (1) approve the attorney(s) that the indemnifying party selects, hires
or otherwise engages to defend the indemnified party hereunder, which approval shall not be
unreasonably withheld, or (2) conduct its own defense; provided, however, that the indemnifying
45635.01000\9443408. 5 -14-
party shall reimburse the indemnified party forthwith for any and all reasonable expenses
incurred for such defense, including attorneys' fees, upon billing and accounting therefor.
8.4 Challenge to Existing Land Use Approvals. By accepting the benefits of this
Agreement, OWNER, on behalf of itself and its successors in interest, hereby expressly agrees
and covenants not to sue or otherwise challenge any land use approval affecting the Property and
in effect as of the Effective Date. Such agreement and covenant includes, without limitation, the
covenant against any direct suit by OWNER or its successor in interest, or any participation,
encouragement or involvement whatsoever that is adverse to CITY by OWNER or its successor
in interest, other than as part of required response to lawful orders of a court or other body of
competent jurisdiction. OWNER hereby expressly waives, on behalf of itself and its successors
in interest, any claim or challenge to any land use approval affecting the Property and in effect as
of the Effective Date. In the event of any breach of the covenant or waiver contained herein,
CITY shall, in addition to any other remedies provided for at law or in equity, be entitled to:
(a) impose and recover (at any time, including after sale to a member
of the public or other ultimate user) from the party breaching such covenant or waiver, the full
amount of Development Impact Fees that the breaching party would have been required to pay in
the absence of this Development Agreement; and
(b) impose any subsequently adopted land use regulation on those land
use approvals for which the breaching party had not, as of the time of such breach, obtained a
building permit.
OWNER hereby acknowledges that it has read and is familiar with the provisions
of California Civil Code Section 1542, which is set forth below:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR." Z
By initialing below, OWNER hereby waives throvisions of Section 1542 in
connection with the matters that are the subject of the�orqQffig waivers and releases.
8.5 Survival. The provisions of Sections 8.1 through 8.4, inclusive, shall survive the
termination of this Agreement.
45635.01000%9443408. 5 -15-
9. MORTGAGEE PROTECTION
The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any
manner, at OWNER's sole discretion, from encumbering the Property or any portion thereof or
any improvement thereon by any mortgage, deed of trust or other security device securing
financing with respect to the Property. CITY acknowledges that the lenders providing such
financing may require certain Agreement interpretations and modifications and agrees upon
request, from time to time, to meet with OWNER and representatives of such lenders to
negotiate in good faith any such request for interpretation or modification. CITY will not
unreasonably withhold its consent to any such requested interpretation or modification provided
such interpretation or modification is consistent with the intent and purposes of this Agreement.
Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach or termination of
this Agreement, nor CITY's exercise of any of its rights or remedies shall defeat, render invalid,
diminish or impair the lien of any mortgage on the Property made in good faith and for value,
unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY
in the manner specified herein for giving notices, shall be entitled to receive written notification
from CITY of any default by OWNER in the performance of OWNER's obligations under this
Agreement.
(c) If CITY timely receives a request from a mortgagee requesting a
copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall
provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of
default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the
default during the remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any
part thereof. pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have
an obligation or duty under this Agreement to perform any of OWNER's obligations or other
affirmative covenants of OWNER hereunder, or to guarantee such performance; provided,
however, that to the extent that any covenant to be performed by OWNER is a condition
precedent to the performance of a covenant by CITY, the performance thereof shall continue to
be a condition precedent to CITY's performance hereunder, and further provided that any sale,
transfer or assignment by any Mortgagee in possession shall be subject to the provisions of
Section 2.4 of this Agreement.
45635.01000\9443408. 5 -16-
10. MISCELLANEOUS PROVISIONS
10.1 Recordation of Agreement. This Agreement and any amendment or cancellation
thereof shall be recorded with the Los Angeles County Recorder by the Clerk of the City Council
within ten (10) days after the City enters into the Agreement, in accordance with Section 65868.5
of the Government Code. If the parties to this Agreement or their successors in interest amend or
cancel this Agreement, or if the CITY terminates or modifies this Agreement as provided herein
for failure of the OWNER to comply in good faith with the terms and conditions of this
Agreement, the City Clerk shall have notice of such action recorded with the Los Angeles
County Recorder.
10.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements that are not contained or
expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
10.3 Severabilitv. If any term, provision, covenant or condition of this Agreement
shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not rendered impractical to perform
taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the
provision of the Public Benefits set forth in Section 4,of this Agreement, including the payment
of the in lieu fees set forth therein, are essential elements of this Agreement and CITY would not
have entered into this Agreement but for such provisions, and therefore in the event such
provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be
null and void and of no force and effect whatsoever.
10.4 Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of
California. This Agreement shall be construed as a whole according to its fair language and
common meaning to achieve the objectives and purposes of the parties hereto, and the rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall not
be employed in interpreting this Agreement, all parties having been represented by counsel in the
negotiation and preparation hereof.
10.5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect,any construction or interpretation of this Agreement.
10.6 Singular and Plural. As used herein, the singular of any word includes the plural.
10.7 Joint and Several Obligations. If at any time during the Term of this Agreement
the Property is owned, in whole or in part, by more than one OWNER, all obligations of such
OWNERS under this Agreement shall be joint and several, and the default of any such OWNER
shall be the default of all such OWNERS. Notwithstanding the foregoing, no OWNER of a
45635.01000\9443408. 5 -17-
single lot that has been finally subdivided and sold to such OWNER as a member of the general
public or otherwise as an ultimate user shall have any obligation under this Agreement except as
expressly provided for herein.
10.8 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as -to which time is an element.
10.9 Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
10.10 No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
10.11 Force Maieure. Neither party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor
difficulties beyond the party's control, (including the party's employment force), government
regulations, court actions (such as restraining orders or injunctions), or other causes beyond the
party's control. If any such events shall occur, the Term of this Agreement and the time for
performance by either party of any of its obligations hereunder may be extended by the written
agreement of the parties for the period of time that such events prevented such performance,
provided that the Term of this Agreement shall not be extended under any circumstances for.
more than five (5) years.
10.12 Mutual Covenants. The covenants contained herein are mutual covenants and
also constitute conditions to the concurrent or subsequent performance by the party benefited
thereby of the covenants to be performed hereunder by such benefited party.
10.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all successors in interest to the parties to this
Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and
constitute covenants running with the land. Each covenant to do or refrain from doing some act
hereunder with regard to development of the Property: (a) is for the benefit of and is a burden
upon every portion of the Property; (b) runs with the Property and each portion thereof; and (c) is
binding upon each party and each successor in interest during ownership of the Property or any
portion thereof.
10.14 Counterparts. This Agreement maybe executed by the parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the parties
had executed the same instrument.
45635.01000\9443408. 5 -18-
10.15 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by a party hereto for the purpose of enforcing, construing or determining
the validity of any provision of this Agreement shall be filed and tried in the Superior Court of
the County of Los Angeles, State of California, and the parties hereto waive all provisions of law
providing for the filing, removal or change of venue to any other court.
10.16 Proiect as a Private Undertaking. It is specifically understood and agreed by and
between the parties hereto that the development of the Project is a private development, that
neither party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and OWNER is that of a government entity
regulating the development of private property and the owner of such property.
10.17 Further Action and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement.
10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the exercise by CITY of its power of eminent domain.
10.19 Agent for Service of Process. In the event OWNER is not a resident of the State
of California or it is an association, partnership or joint venture without a member, partner or
joint venturer resident of the State of California, or it is a foreign corporation, then in any such
event, OWNER shall file with the Community Development Director, upon its execution of this
Agreement, a designation of a natural person residing in the State of California, giving his or her
name, residence and business addresses, as its agent for the purpose of service of process in any
court action arising out of or based upon this Agreement, and the delivery to such agent of a
copy of any process in any such action shall constitute valid service upon OWNER. If for any
reason service of such process upon such agent is not feasible, then in such event OWNER may
be personally served with such process out of this County and such service shall constitute valid
service upon OWNER. OWNER is amenable to the process so served, submits to the
jurisdiction of the Court so obtained and waives any and all objections and protests thereto.
10.20 Authority to Execute. The person or persons executing this Agreement on behalf
of OWNER warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of his or her/their corporation, partnership or business entity and warrants
and represents that he or she/they has/have the authority to bind OWNER to the performance of
its obligations hereunder.
45635.01000\9443408. 5 -19-
[Signature Page to Development Agreement:
IN WITNESS WHEREOF, the parties hereto have executed this Development
Agreement on the last day and year set forth below.
CITY OF AZUSA
By:
/putt . /4
-� X "'e
7Joseph`R. Rocha, Mayor
Date: JO�-k LCLi"11
ATTEST:
By:
Jeffrey Lawrence Cornejo, Jr.
City Clerk, City of Azusa
APPROVED AS TO LEGAL FORM
By: 'jP— q l
Best B st & Krieger LP
City Attorney
OWNER
MCS EDGEWOOD
California limited L
By:
Its:
Date:
45635.01000\9443408. 5 -20-
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of LDS A x Frfe__ )
Or-iQ.lAu as o?& d0/S before me, �ke—rhCi A PZ
Date P Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(sf whose nameWis/are
subscribed to the within instrument and acknowledged to me that he/speAhay executed the same in
his/he dheir authorized capacity(ies), and that by his/hAF4he r signatures) on the instrument the persor o,
or the entity upon behalf of which the person.(s) acted, executed the instrument.
J. V.NERNANOEZ
Commission # 1998874
a:.m Notary Public - California n
i Los Angeles County
My Comm. Expires Nov 22.2016'
Place Notary Seal Above
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.
USignature
Signature of Notary 9blic
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fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: bet% evt ( reekiecrT Document Date: I /,LO/apl S_
Number of Pages: a_ Signer(s) Other Th n Named Above:
Capacityroes) Clay med by Signers}
Signer's Name:.Jb.S,-_ IZUrNErU
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
ZOther: a
Signer Is Representing: b t* OF k2 -uv-
-
❑ Corporate cer —
L1 Partner — ❑ Li
❑ Individual ❑ A
❑ Trustee ❑ G
❑ Other:
Signer Is Representing
Title(s):
❑ General
tto in Fact
02014 National Notary Association • www,NationalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907
ZALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of SI°*^)Ie S�1 )
On Z Z/Z before me,�eU55r-, 0 Law. 11 ` c /Jo V a( ,,f Ull t c ,
DaD , d r I , Here Insert Name and Title of thel, Officer
personally appeared
J-9
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the persons) 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 signatures) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
RUSSELL LAMBE
COMM. #1954514 i
¢ ® Notary Public California o
Z r- San Diego County
Comm. Ex fres Sep. 30,21)115t
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
11 Signatu ary Public
Place Notary Seal Above
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fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Number of Pages
Document Date:
Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
02014 National Notary Association • www.NationalNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907
EXHIBIT "A"
(Legal Description of the Property)
Exhibit A
45635.01000\9443408.5
LEGAL DESCRIPTION
EDGEWOOD CENSER
121-495 E. GLADSTONE ST.,
AZUSA, CA 91702
LOTS 8 AND 16 IN BLOCK "C" OF SUBDIVISION NO. 1 OF THE LAND OF AZUSA LAND
AND WATER COMPANY, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 16, PAGE 17 OF MISCELLANEOUS
RECORDS, IN THE OFFICE OF THE COUNTY OF RECORDER OF SAID COUNTY.
EXCEPT THE NORTHERLY 18 FEET AND THE WESTERLY 10 FEEL' OF THE ABOVE
DESCRIBED LAND.
EXHIBIT_
CP
IMPROVEMENTS LAYOUT
p��W�oD SNDPPI1v6- C.wr4t-
�rLrk�'�NE S1. +A-2 tSA AVE'NIAF
A �U z -A I cA-
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4 L•YA a T e 1 1 f T II t S T --'
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&u
EXHIBIT "C"
(Development Plan)
Code Amendment No. 236
Ordinance No. 2015-01
Development Site Plan
Design Review No. DR -2014-31
45635.01000\9443408. 4