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AGENDA
REGULAR MEETING OF THE CITY COUNCIL, AND
THE REDEVELOPMENT AGENCY
AZUSA AUDITORIUM TUESDAY,JULY 5,2011
213 EAST FOOTHILL BOULEVARD 6:30 P.M.
AZUSA CITY COUNCIL
JOSEPH R. ROCHA
MAYOR
KEITH HANKS ANGEL CARRILLO
MAYOR PRO-TEM COUNCILMEMBER
URIEL E. MACIAS ROBERT GONZALES
COUNCILMEMBER COUNCILMEMBER
NOTICE TO THE PUBLIC
Copies of staff reports or other written documentation relating to each item of business referred to on the Agenda
are on file in the Office of the City Clerk and are available for public inspection at the City Library.
Persons who wish to speak during the Public Participation portion of the Agenda, shall fill out a card requesting to
speak and shall submit it to the City Clerk prior to the start of the City Council meeting. When called, each person
may address any item on or off the agenda during the public participation.
6:30 P.M.
CEREMONIAL
1. Presentation of Proclamation to City Manager Francis M. Delach in honor of his retirement from the City of
Azusa.
2. Presentation of Proclamation to Chief of Police Robert Garcia in honor of his retirement from the City of
Azusa.
07/05/11 - I -
CLOSED SESSION
1, CONFERENCE WITH LABOR NEGOTIATOR (Gov. Code Sec. 54957.6)
Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and City
Manager Delach
Organizations APMA (Azusa Police Management Association)
2. CONFERENCE WITH LABOR NEGOTIATOR(Gov. Code Sec. 54957.6)
Agency Negotiators: City Manager Delach
Organization: Executive—Negotiation of Executive Benefits
Any person wishing to comment on any of the Closed Session items listed above may do so now.
7:30 P.M. - REGULAR MEETING OF THE CITY COUNCIL.
1. Call to Order
2. Pledge to the Flag - SrA. Steven G. Izaguirre, United States Air Force
3. Invocation—Pastor Eddie Velasquez Jesus Is Lord Church
4. Presentation of Certificate of Appreciation to SrA. Steven G. Izaguirre.
A. PUBLIC PARTICIPATION
(Person/Group shall be allowed to speak without interruption up to five(5)minutes maximum time, subject
to compliance with applicable meeting rules. Questions to the speaker or responses to the speaker's
questions or comments shall be handled after the speaker has completed his/her comments. Public
Participation will be limited to sixty (60) minutes time.)
B. REPORTS,UPDATES,AND ANNOUNCEMENTS FROM STAFF/COUNCIL
1. NOTICE TO THE PUBLIC
NOTICE IS HEREBY GIVEN of City Board and Commission term of office expirations, ending September 30,
2011 for the following Boards and Commissions of the City of Azusa:
2 Positions Architectural Barriers Commission
2 positions Human Relations Commission
2 positions Library Commission
1 position Park and Recreation Commission
I position Personnel Board
I position Planning Commission
Applications are available in the City Clerk's Office, 213 East Foothill Boulevard, City Library, 729 N. Dalton
Avenue, Light & Water Department, 729 N. Azusa Avenue, Police Department, 725 N. Alameda, Azusa, and at:
www.ci.azusa.ca.us,for interested residents.Applications will be accepted through Thursday,August 25,2011. For
further information, please call: (626) 812-5271.
2. Mayor Rocha—Request for proclamation in honor of the 58`h Anniversary of the Korean War Armistice.
07/05/11 -2 -
C. SCHEDULED ITEMS
1. PUBLIC HEARING — AN APPLICATION FOR A MATERIAL RECOVERY FACILITY AND
TRANSFER STATION TO BE LOCATED AT 1501 W. GLADSTONE STREET. APPLICANT:
WASTE MANAGEMENT
RECOMMENDED ACTION:
Open the Public Hearing; receive testimony; close the Hearing. a. Waive further reading and adopt
Resolutions Nos. 11-C49 through 11-057,and waive further reading,adopt Impact Reports,and introduce
proposed ordinances as listed:
1) Adopt the City Resolution Certifying the Environmental Impact Report (E1R)No.
2010081010;
2) Adopt the Environmental Impact Report Mitigation Monitoring and Report Program;
3) Adopt the Environmental Impact Report Findings of Fact and Statement of
Overriding Considerations;
4) Adopt the City Resolution approving General Plan Amendment(GPA 2010-01);
5) Adopt the City Ordinance for Zone Change (Z 2009-01) Ordinance and approve its
first reading;
6) Adopt the City Resolution approving Use Permit (UP 2009-01);
7) Adopt the City Ordinance for Zoning Code Amendment (ZCA 230) and approve its
first reading;
8) Adopt the City Resolution approving Use Permit(UP 2010-04);
9) Adopt the City Resolution approving Use Permit(UP 2010-05);
10) Adopt the City Resolution approving Variance (V 2010-02);
11) Adopt the City Resolution approving Variance (V 2010-03);
12) Adopt the City Resolution approving Variance (V 2010-04);
13) Adopt the City Resolution approving Design Review (DR 2009-01); and
14) Adopt the City Ordinance for a Development Agreement and approve its first
reading.
D. CONSENT CALENDAR
07/05/11 - 3 -
The Consent Calendar adopting the printed recommended actions will be enacted with one vote. If
Councilmembers or Staff wish to address any item on the Consent Calendar individually, it will be
considered under SPECL4L CALL ITEMS.
1. APPROVAL OF THE MINUTES OF THE SPECIAL MEETING JUNE P-T AND THE REGULAR
MEETING OF JUNE 20, 2011.
RECOMMENDED ACTION:
Approve Minutes as written.
2. HUMAN RESOURCES ACTION ITEMS.
RECOMMENDED ACTION:
Approve Personnel Action Requests in accordance with the City of Azusa Civil Service Rules and
applicable Memorandum of Understanding(s).
3. THE CITY TREASURER'S REPORT AS OF MAY 2011.
RECOMMENDED ACTION:
Receive and file the Report.
4. PURCHASE OF AQUATIC THEMED CHILD'S SLIDE AT SLAUSON PARK POOL.
RECOMMENDED ACTION:
Authorize the purchase of an aquatics themed child's slide at Slauson Park pool in the amount of
$18,654.00.
5. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE CITY.
RECOMMENDED ACTION:
Adopt Resolution No. 11-058.
CONVENE AS THE REDEVELOPMENT AGENCY
E. AGENCY SCHEDULED ITEMS
07/05/11 - 4 -
1. APPROVAL OF ACCEPTANCE AND ASSUMPTION AGREEMENTS BETWEEN THE AZUSA
REDEVELOPMENT AGENCY AND CONGREGATION ALE HOUSE AZUSA CHAPTER LLC
(TALLEY BUILDING).
RECOMMENDED ACTION:
Adopt the agreements between the Azusa Redevelopment Agency("Agency")and Congregation Ale House
Azusa Chapter LLC ("Developer") as follows: a. 1) Acceptance and Assumption of Disposition and
Development Agreement—To facilitate the transfer to Developer of the Agency's Disposition and
Development Agreement("DDA") for the property at 619-621 N. Azusa Avenue("Talley Building")and
2) Congregation Ale House Assumption of Loan Agreement—To permit Developer to assume certain
obligations associated with the Agency's original loan to 11 Forno's Restaurant for furniture, fixtures and
equipment.
F. AGENCY CONSENT CALENDAR
The Consent Calendar adopting the printed recommended actions will be enacted with one vote. If
Boardmembers or Staff wish to address any item on the Consent Calendar individually, it will be
considered under SPECIAL CALL ITEMS.
1. APPROVAL OF THE MINUTES OF THE SPECIAL MEETING OF JUNE 1, 2011 AND THE
REGULAR MEETING OF JUNE 20,2011.
RECOMMENDED ACTION:
Approve Minutes as written.
2. AGENCY TREASURER'S REPORT AS OF MAY 2011.
RECOMMENDED ACTION:
Receive and file the Report.
3. WARRANTS. RESOLUTION AUTHORIZING PAYMENT OF WARRANTS BY THE AGENCY.
RECOMMENDED ACTION:
Adopt Resolution No. 11-R32.
G. ORDINANCES/SPECIAL RESOLUTIONS
1. PROPOSED ORDINANCE AMENDING SECTION 2-469 OF THE AZUSA MUNICIPAL CODE
07/05/11 5 -
RELATING TO SEWER SERVICE FEES AND FEE COLLECTIONS.
RECOMMENDED ACTION:
Waive further reading and adopt Ordinance No. 11-010.
H. ADJOURNMENT
1. Adjourn in memory of Ida Garrett.
UPCOMING MEETINGS:
July 18; 2011, City Council Meeting—6:30 p.m. Azusa Auditorium
July 25, 2011, Utility Board Meeting—6:30 p.m. Azusa Light and Water Conference Room
July 28, 2011, City Hall on the Move—5:30 p.m. Concerts in the Park, Memorial Park
September 6, 2011 (Tuesday), City Council Meeting—6:30 p.m. Azusa Auditorium
September 19, 2011, City Council Meeting—6:30 p.m. Azusa Auditorium
In compliance with Government Code Section 54957.5, agenda materials are available for inspection by
members of the public at the following locations: Azusa City Clerk's Office-213 E. Foothill Boulevard,Azusa
City Library- 729N.Dalton Avenue,and Azusa Police Department Lobby- 725N.Alameda,Azusa, California.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a city
meeting,please contact the City Clerk at 626-812-5229. Notification three(3)working days prior to the meeting
when special services are needed will assist staff in assuring that reasonable arrangements can be made to
provide access to the meeting.
07/05/11 - 6 -
L
PUBLIC HEARING
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: KURT CHRIST IpIRECTOR OF ECONOMIC AND COMMUNITY
DEVELOPME � \
VIA: F.M. DELACH, CITY MANAGERl�V
DATE: JULY 5, 2011
SUBJECT: AN APPLICATION FOR A MATERIAL RECOVERY FACILITY AND
TRANSFER STATION TO BE LOCATED AT 1501 W.GLADSTONE STREET.
APPLICANT: WASTE MANAGEMENT
RECOMMENDATION
Staff recommends that the City Council conduct the Public Hearing, receive testimony, close the
Hearing, waive further reading, and:
1) Adopt the City Resolution Certifying the Environmental Impact Report (EIR) No.
2010081010;
2) Adopt the Environmental Impact Report Mitigation Monitoring and Report Program
3) Adopt the Environmental Impact Report Findings of Fact and Statement of Overriding
Considerations
4) Adopt the City Resolution approving General Plan Amendment (GPA 2010-01);
5) Adopt the City Ordinance for Zone Change (Z 2009-01) and approve its first reading;
6) Adopt the City Resolution approving Use Permit (UP 2009-01);
7) Adopt the City Ordinance for Zoning Code Amendment (ZCA 230) and approve its first
reading;
8) Adopt the City Resolution approving Use Permit (UP 2010-04);
9) Adopt the City Resolution approving Use Permit(UP 2010-05);
10) Adopt the City Resolution approving Variance (V 2010-02);
11) Adopt the City Resolution approving Variance (V 2010-03);
12) Adopt the City Resolution approving Variance (V 2010-04);
13) Adopt the City Resolution approving Design Review (DR 2009-01); and
14) Adopt the City Ordinance for a Development Agreement and approve its first reading.
BACKGROUND
The proposed Material Recovery Facility and Transfer Station (MRF/TS) is a facility that would
receive and sort municipal solid waste, recyclables and green landscaping waste. Any recyclable
materials received would be sorted by type,baled and sent off to be sold,while all green waste would
be separately gathered and loaded into transfer trucks to be sent to other landfills for composting or
used as daily landfill cover. All remainirlg municipal trash and solid waste would be loaded onto
transfer trucks and sent off-site, to a solid waste landfill. Both municipal solid waste and green
waste would be transferred out daily. No long-term storage of either type of waste would occur and
no municipal solid waste would be disposed of on-site The recyclable materials would be stored in a
large 12,680 square foot bale storage building, in preparation for shipping, which would generally
occur within 24 hours. There would be a small, enclosed and covered outdoor storage area for
occasional,temporary storage of overflow recyclable baled material. The proposed MRF/TS facility,
approximately 125,000 square feet in area, would primarily include an enclosed,negative-pressure,
LEED certified structure where waste and recyclables would be dropped off and processed,the bale-
storage structure for stored recyclables, and a scale-house to weigh incoming and outgoing trucks.
The applicant is requesting that the MRF/TS be allowed to operate 24 hours a day, 7 days a week if
the demand is present.
The entitlements include an Environmental Impact Report(EIR)to identify any significant impacts
on the environment by the project and to indicate the manner in which any significant effects can be
mitigated or avoided, a General Plan Amendment(GPA 2010-01)to change a portion of the project
General Plan designation from Recreation/Landfill Mixed Use to Industrial,a Zone Change(Z 2009-
01)to change that same portion of the project zoning from DWL(District West End Light Industrial)
to DW (District West End Industrial) for consistency, a Use Permit (UP 2009-01) to allow the
facility in the DW zone, a Zoning Code Amendment (ZCA 230) to allow 24 hour operations in a
DW zone with a Use Permit, a Use Permit (UP 2010-05) to allow the proposed MRF/TS 24 hour
operations, a Use Pen-nit (UP 2010-04) to allow a reduction in the required amount of provided
parking, a Variance(V 2010'02)to allow an increase in the permitted height of a fence in the front
setback on Irwindale Avenue from 42" to 6', a Variance (V 2010-03) to allow a 2' increase in the
allowable building height from 55' to 57', a Variance (V 2010-04) to allow a deviation from the
required operational standards for a processing facility,a Design Review(DR 2009-01)to allow the
construction of the MRF structure, and a Development Agreement to secure development rights for
Waste Management and to ensure certain public benefits for the City.
In February 2009, Waste Management submitted an application to construct and operate a MRF/TS
on property they own at 1501 W. Gladstone Street. The application was accepted by the City as
complete on August 4, 2010.
An Initial Study was prepared by a city-selected environmental consultant fine,RBF Consulting,for
the proposed MRF/TS project in order to determine the appropriate level of environmental analysis
and documentation needed for the project. Based on the Initial Study,which included each of the 16
environmental categories specified in the CEQA Guidelines,the determination was made for RBF to
prepare a draft Environmental Impact Report (DEIR) for the proposed MRF/TS project in order to
identify the significant impacts on the environment by the project, to identify alternatives to the
project and to indicate the manner in which any significant impacts can be mitigated or avoided.
A Notice of Preparation (NOP) of the DEIR was prepared and sent out on August 3, 2010, for a
thirty day public review period,to property owners within 300 feet of the proposed project site and to
interested agencies, in order to solicit any comments or concerns. A public scoping meeting was .
held on August 18, 2010, during the public review period,to receive input from residents,business
owners, and other interested agencies about the concerns and impacts associated with the proposed
project. Four speakers provided comments at the scoping meeting. Public concerns included:
access to the facility,traffic congestion, air quality, land use, aesthetics, environmental justice and e
health risks impacts. These comments, and comments received in the mail from other interested
agencies, were incorporated into the DEIR in Section 1.3 —EIR Scoping Process, page 1-3.
The DEIR was prepared and circulated for public review to all decision makers and interested parties
as well as the Azusa Public Library,the Azusa City Clerk's office, and to the Planning Division on
March 24, 2011. At that time, copies were also sent to City Council members and to the Planning
Commission. The 45-day public review period of the DEIR closed on May 9, 2011. A Notice of
Availability (NOA) of the DEIR was also published in the San Gabriel Valley Tribune and 130
NOA's were also mailed to owners of property within 300 feet of the project site.
March 30, 2011 Study Session
On March 30, 2011, the Planning Commission held a study session on the proposed project. A
Public Meeting notice regarding the study session was sent out to 130 owners of property within 300
feet of the site on March 17, 2011, and was published in the San Gabriel Valley Tribune on March
17, 2011.
The Commission asked for more information regarding:
• type of vehicles utilizing the facility;
• the proposed 24-hour operation and would the facility create nighttime noise;
• who would be the customers of the facility;
• how would odors be handled;
• what employee protection would be in place;
• what type of material would be stored outside in the temporary storage area; and
• how the ingress and egress queuing lanes would operate.
Two residents spoke in support of the project, citing job creation and an environmental solution to
landfill closures as benefits. One neighboring property owner voiced concerns about traffic, air
quality and debris. A representative from the City of Irwindale noted that the traffic of the proposed
project would impact that City's streets and freeway onramps, that the proposed outdoor storage
could cause odor and vermin problems and that any environmental justice issues should be
addressed.
April 13, 2011 Public Hearing
On April 13,2011,the Planning Commission held a Public Hearing on the application. 130 notices
of the Public Hearing were sent out to property owners within 300 feet of the proposed project and a
Notice of Public Hearing was published in the San Gabriel Valley Tribune.
Staff responded to the study session Commission questions:
• Both standard sized trash collection trucks and large transfer trucks would use the MRF/TS;
• 24-hour operational impacts on the area due to light would be mitigated by a condition of
approval to ensure that there is no glare or light spillage from the proposed project onto the
adjacent properties; impacts due to noise or outdoor work would be mitigated by a condition
of approval requiring the project to adhere to the City noise standards,which require a lower
noise level during the night;and,although the applicant has stated that the work performed at
night will be inside the building, a condition of approval has also been included to prohibit
outdoor activity during the hours of 10:00 p.m. to 6:00 a.m.
• The customers of the facility would be trash and recyclable collectors from the San Gabriel
Valley.
• The MRF/TS would be required to adhere to an Odor Minimization Plan approved by the
South Coast Air Quality Management District (SCAQMD).
• The MRF/TS would be required to meet California Occupational Safety and Health
(CalOSHA) standards. Waste Management also employs a full-time floor"spotter"who is
specially trained,along with the site Supervisors,to identify any prohibited wastes and who
would monitor the tipping floor and other areas of the facility for hazards.
• Recyclable materials, such as baled plastic, aluminum cans and paper would be stored
intermittently, and no longer than 48 hours, in the enclosed and covered temporary storage
area.
• The ingress and egress queuing lanes would be able to hold a maximum of 30 trucks. The
average time spent at the scale house would be 5— 10 seconds for Waste Management trucks
and other trucks equipped with transponders or one to two minutes for third party trucks.
May 11, 2011, 2nd Public Hearing
On May 11,2011,the Planning Commission held a second Public Hearing to continue reviewing the
project application and to receive additional public comment. At that time, staff notified the
Commission that comment letters/emails/signatures had been received; 96 in opposition to the
project and 405 in favor of the project. Eight(8)responses to the DEIR had been received, and the
Commission was informed that they would receive a copy of all the comments. Public comment was
given by 32 members of the public at the hearing. Seventeen (17) supported the project and fifteen
(I 5)opposed it. A petition against the project was submitted by the opposition,although the validity
of the petition and signatures was questioned by members of the public and by a Commissioner.
At this meeting, the Commission asked for clarification regarding the following:
• How were notices sent out and was the City of Irwindale notified?
Public hearing notices were sent out to the property owners within 300 feet of the project
boundary. The property owners were identified through the Los Angeles County Tax
Assessor Ownership rolls. The City of Irwindale was also specifically notified, as an
adjacent jurisdiction, during the EIR scoping process and.the draft EIR review period.
• Was there a Phase I Study performed on the site and what did it entail?
A Hazardous Waste Assessment was performed for the site, which is the equivalent of a
Phase I assessment. Mitigation Measures HAZ-2 through HAZ-5 will require that Waste
t
Management comply with all state and local requirements regarding hazardous materials,
prior to the issuance of any grading or building permits.
• Green waste combustibility.
The proposed MRF/TS facility would comply with Title 14 California Code of Regulations
(CCR) Section 17867(a)(8)regarding composting. This regulation requires: "The operator
shall provide fire prevention,protection and control measures, including,but not limited to,
temperature monitoring of windrows and piles, adequate water supply for fire suppression,
and the isolation of potential ignition sources from combustible material sp F irelanes shall be
provided to allow fire control equipment access to all operation areas." However,the green
waste received at the facility would not be kept at the facility for more than 24 hours, and it
would usually be processed out in shorter time, so no long term composting would take
place. The green waste would be transported to other locations to be used for daily landfill
cover or composted at other landfills.
• The impact of truck traffic on Irwindale street maintenance.
Regarding truck traffic impact on Irwindale street maintenance, Irwindale Avenue is
designated as a Major Truck Route in the City of Irwindale's General Plan. The applicant is
being required to work with the City of Irwindale to install additional traffic lanes and signals
on Irwindale streets in order to reduce the impact of the project. That required mitigation
from the City of Irwindale could include street pavement maintenance.
• How could toxic waste get into the municipal solid waste?
Per Waste Management, toxic waste, such as a car battery or computer monitor; could be
illegally hidden.by a customer in a municipal curb-side trash container. However,a full-time
safety technician/spotter would be at the MRF/TS to remove the waste from the tipping floor
and send it to the correct processing agency off-site.
• Where would the municipal solid waste be taken?
All municipal solid waste would be sent by transfer truck to the EI Sobrante landfill,a Waste
Management owned facility in Corona, California.
May 25, 2011, 3rd Public Hearine
On May 25, 2011, the Planning Commission reviewed the entitlements for the project for a final
time, with the exception of the Development Agreement. Discussion on the Development
Agreement required additional legal noticing, so deliberation on this component was continued to the
June 15, 2011 Planning Commission meeting.
Although the public hearing had been closed at the previous meeting, the Commission allowed
additional public comment. Fourteen (14) persons spoke in support of the project and nine (9)
persons spoke in opposition to the project. The Commission recommended a Condition of Approval
requiring Waste Management to contribute a "fair share" amount of the cost of pavement
maintenance on Irwindale Avenue, from the 210 Freeway south to Gladstone Street and on
Gladstone Street, from Mira Loma Avenue to Irwindale Avenue, for a period of five years. The
Commission also recommended Conditions of Approval limiting the outdoor storage of baled,
recyclable materials to 48 hours,and requiring additional landscaping to help screen the majority of
trucks in the queuing area from public view.
The Planning Commission unanimously voted to recommend approval of the project to the City
Council, with the exception of the Development Agreement.
June 15, 2011, Development Agreement Public Hearin¢
On June 15,2011,the Planning Commission reviewed the project Development Agreement. During
the Public Hearing, a representative from the City of Irwindale and one resident voiced their
concerned about the"draft"format of the Development Agreement under review. The President of
the Irwindale Chamber of Commerce presented a letter to the Commission supporting the MRF in
principal, but with concerns about the traffic impacts. Two other residents supported the
Development Agreement,with one requesting that the existing amenities,such as a safe access drive
aisle,restroom and covered waiting area,now existing at the current day laborer's site,be installed at
the new proposed site.
Staff assured the Commission that the"draft"format of the Development Agreement was the correct
format for a document that they were recommending to the City Council for approval. Staff also
noted that the site plan the Commission had previously reviewed did show that the existing amenities
at the day laborer's site would continue if the site was relocated 500 feet east of its existing location,
as a result of the MRF project.
The Planning Commission unanimously voted to recommend approval of the Development
Agreement to the City Council.
PROJECT ANALYSIS
LAND USE: ZONING:
SITE: Vacant Industrial Property DW/DWL (District West End)/
(District West End Light Industrial)
NORTH: Industrial DW District West End Industrial)
SOUTH: City of Irwindale Industrial / Edison City of Irwindale Industrial
Electric Substation
EAST: Azusa Land Reclamation Landfill DWL (District West End Light
Industrial
WEST: Industrial DW (District West End Industrial)
The subject property site is located on the north side of Gladstone Street,between Irwindale Avenue
and Vincent Avenue. The western portion of the project site is designated in the General Plan as
Industrial and is zoned DW (District West End Industrial), which would allow the facility, see
Exhibit Cl. However, the eastern portion of the project site is designated in the General Plan as
Recreation/Landfill Mixed Use and is zoned DWL(District West End Light Industrial),which would
not allow a recycling facility-processing facility,see Exhibit C2. Therefore,the project includes an
application for a zone change (Z 2009-01) of the eastern portion of the project site from DWL to
DW.
In addition, to make the General Plan designation consistent with the zoning, the project also
includes an application(GPA 2010-01)to change the General Plan designation of the eastern portion
from Recreation/Landfill Mixed Use to Industrial, see Exhibits Dl and D2. The proposed project
includes relocating the existing day laborer's site approximately 500 feet east of its current location.
General Plan Conformance
The City of Azusa General Plan addresses industrial uses and recycling in various ways. The
following table compares the applicable General Plan Goals, Objectives and Policies with the
proposed Material Recovery Facility/Transfer Station project and lists the specific sections in the
draft EIR which would address each policy.
? s � i � h -
General Plan Polrcies' z �ProtectrConsistency. x sem;
LU Land Use(LU)
LU4.8 Accommodate industrial,manufacturing Consistent. The project proposes an
and supporting commercial use within industrial development (i.e., the MRF/TS)
the West End Industrial District and in within the District.
accordance with Table CD-2, Land Use
Classifications.
LU4.9 Require buildings within the West End Consistent. Pursuant to Azusa Development
Industrial District to be uniquely Code Section 88.51.032,Design Review,the
identifiable, distinguished in their proposed project would be subject to Design
architecture and site planning, and Review,in order to ensure that the proposed
compatible with adjacent uses and uses and structures enhance their sites with
districts. the highest standards of improvement and
are compatible with the surrounding land
uses. Namely,the industrial uses located to
the north, east, and west in the City of
Azusa, and the industrial uses located to the
south in the City of Irwindale. Design
Review would also ensure that the proposed
development complies with all applicable
Azusa Development Code standards and
regulations, and Azusa General Plan
Policies, and does not adversely affect
community health, safety, aesthetics, or
natural resources.
Additionally, it is noted land use
compatibility impacts associated with land
development involve quality of life issues,
including aesthetics, traffic, and noise,
among others. While these may generally be
perceived as subjective issues, the
significance criteria detailed in each of the
respective EIR issues sections provides a
basis for assessing land use compatibility
impacts. Quality of life issues are analyzed
in EIR Section 5.2, Aesthetics/Light and
Glare, Section 5.3, Traffic and Circulation,
and Section 5.6, Noise. Further,the.project
would involve Use Permits and Variances,
subjecting the proposed development to
further discretionary review by the City
Staff, Planning Commission, and City
Council, which would also minimize land
use compatibility issues.
LU4.10 In the West End Industrial District, Consistent. The project proposes to retain
establish and require new developments the existing sidewalks located along
to provide pedestrian and landscape Irwindale Avenue and proposes a curb,
linkages to other areas and businesses gutter,and sidewalk along Gladstone Street,
within the district and to the Foothill which are considered sufficient linkages
Boulevard corridor, as appropriate. with the District's other businesses, given
the industrial nature of the surrounding area.
The project also proposes landscaping along
Gladstone Street and Irwindale Avenue, as
depicted on the Preliminary Landscaping
Plan.
LU6.1 Accommodate industrial development in Consistent. The project proposes an
accordance with Table CD-2, Land Use industrial development (i.e., the MRF/TS)
Classifications (Industrial). within the District.
LU6.2 Require all industrial buildings to be Consistent. Pursuant to Azusa Development
distinctive, constructed of high quality Code Section 88.51.032,Design Review,the
materials, and be of interesting and proposed project would be subject to Design
strong design. All buildings shall be Review,in order to ensure that the proposed
visually attractive from the street, and uses and structures enhance their sites with
from adjacent or nearby properties. the highest standards of improvement and
are compatible with the surrounding land
uses. Namely,the industrial uses located to
the north, east, and west in the City of
Azusa, and the industrial uses located to the
south in the City of Irwindale. Design
Review would also ensure that the proposed
development complies with all applicable
Azusa Development Code standards and
regulations, and Azusa General Plan
Policies, and does not adversely affect
community health, safety, aesthetics, or
natural resources.
Additionally, it is noted land use
compatibility impacts associated with land
development involve quality of life issues,
including aesthetics, traffic, and noise,
among others. While these may generally be
perceived as subjective issues, the
significance criteria detailed in each of the
respective FIR issues sections provides a
basis for assessing land use compatibility
impacts. Quality of life issues are analyzed
in EIR Section 5.2, Aesthetics/LiQhi and
Glare, Section 5.3, Traffic and Circulation,
and Section 5.6,Noise. Further,the project
would involve Use Permits and Variances,
subjecting the proposed development to
further discretionary review by the City
Staff, Planning Commission, and City
Council, which would also minimize land
use compatibility issues. Refer to EIR
Section 5.2,Aesthetics/Liht and Glare.
LU6.3 Require rooflines and building Consistent. Pursuant to Azusa Development
elevations to be visually attractive from Code Section 88.51.032,Design Review,the
all vantage points. proposed project would be subject to Design
Review, in order to ensure that the proposed
uses and structures enhance their sites with
the highest standards of improvement and
are compatible with the surrounding land
uses. Namely,the industrial uses located to
the north, east, and west in the City of
Azusa, and the industrial uses located to the
south in the City of Irwindale. Design
Review would also ensure that the proposed
development complies with all applicable
Azusa Development Code standards and
regulations, and Azusa General Plan
Policies, and does not adversely affect
community health, safety, aesthetics, or
natural resources.
Additionally, it is noted land use
compatibility impacts associated with land
development involve quality of life issues,
including aesthetics, traffic, and noise,
among others. While these may generally be
perceived as subjective issues, the
significance criteria detailed in each of the
respective EIR issues sections provides a
basis for assessing land use compatibility
impacts. Quality of life issues are analyzed
in EIR Section 5.2, Aesthetics/Light and
Glare, Section 5.3, Trafc and Circulation,
and Section 5.6, Noise. Further, the project
would involve Use Permits and Variances,
subjecting the proposed development to
further discretionary review by the City
Staff, Planning Commission, and City
Council, which would also minimize land
use compatibility issues.
LU6.4 Require site development plans to: Consistent. Pursuant to Azusa Development
Incorporate physical and visual Code Section 88.51.032,Design Review,the
design elements that buffer industrial proposed project would be subject to Design
use from any nearby residential Review,in order to ensure that the proposed
neighborhood or use; uses and structures enhance their sites with
the highest standards of improvement and
are compatible with the surrounding land
uses. Namely,the industrial uses located to
the north, east, and west in the City of
Azusa, and.the industrial uses located to the
south in the City of Irwindale. Design
Review would also ensure that the proposed
development complies with all applicable
Azusa Development Code standards and
regulations, and Azusa General Plan
Policies, and does not adversely affect
community health, safety, aesthetics, or
natural resources.
Additionally, it is noted land use
compatibility impacts associated with land
development involve quality of life issues,
including aesthetics, traffic, and noise,
among others. While these may generally be
perceived as subjective issues, the
significance criteria detailed in each of the
respective EIR issues sections provides a
basis for assessing land use compatibility
impacts. Quality of life issues are analyzed
in EIR Section 5.2, AestheticslLi hid
Glare, Section 5.3, Traffic and Circulation,
and Section 5.6,Noise. Further,the project
would involve Use Permits and Variances,
subjecting the proposed development to
further discretionary review by the City
Staff, Planning Commission, and City
Council, which would also minimize land
use compatibility issues.
Provide elements that link commercial Consistent. The project proposes to retain
and industrial uses (sidewalks and the existing sidewalks located along
paths, common architectural design, Irwindale Avenue and proposes a curb,
signage, landscape, etc.); and gutter,and sidewalk along Gladstone Street,
which are considered sufficient linkages
with the District's other businesses, given
the industrial nature of the surrounding area.
The project also proposes landscaping along
Gladstone Street and Irwindale Avenue, as
depicted on the Preliminary Landscaping
Plan.
• Require single level, "at grade" Consistent. In addition to the project
parking facilities to be generously proposing landscaping along Gladstone
landscaped with shrubs and trees. Street and Irwindale Avenue,as depicted on
the Preliminary Landscaping Plan, on-site
landscaping will also be required.
LU 10.1 Require the consideration and mitigation Consistent. There are no residential
of noise, light, vehicular, and other properties located nearby. The nearest
impacts on residential properties in the residential uses are the City's southeast
design of commercial and industrial neighborhoods located cast of Jackson
development. Avenue. As discussed in EIR Sections 5.1
through ' 5.11 of the EIR, mitigation
measures are recommended, in
consideration of the project's environmental
impacts. More specifically, refer to EIR
Section 5.6, Noise, Section 5.2,
Aesthetics/Light and Glare,and Section 5.3,
Traffic/Circulation, for discussions
regarding the project's noise, light, and
vehicular impacts, respectively.
LU10.2 Require on-site lighting of institutional, Consistent. The project proposes on-site
commercial, and industrial uses be lighting, as depicted on the Conceptual Site
constructed or located so that only the Lighting Plan. Also, as concluded in EIR
intended area is illuminated, off-site Section 5.21 Aesthetics/Linht and Glare,
glare is minimized, and adequate safety project implementation would result in less
is provided. than significant impacts involving light and
glare. .Condition of Approval #10 also
addresses this requirement.
LU10.7 Control the development of industrial Consistent. Mitigation measures are
and other uses that use,store,produce,or recommended, in order to mitigate the
transport toxins, generate unacceptable project's impacts involving hazardous
levels of noise, air emissions, or materials, noise, air quality, and water
contribute other pollutants requiring quality; refer to EIR Section 5.4, Air
adequate mitigation measures confirmed Quali , Section 5.6, Noise, Section 5.9,
by environmental review and Hazards and Hazardous Materials, and
monitoring. Section 5.10,H drolo ;and Water Quality,
respectively.
LU11.1 Require all structures to be constructed Consistent. The project's building and
in accordance with City building and engineering plans will be reviewed by the
other pertinent codes and regulations, Azusa Building Division, in order to ensure
including all new, adaptively re-used, consistency with Azusa Municipal Code
and renovated buildings; allowing Chapter 14, Buildings and Building
appropriate exceptions for historically- Regulations. Chapter 14 includes the
significant buildings. Building Codes, Electrical Code,
Mechanical Code, and Plumbing Code,
among others. Approval of all project plans
would be required, prior to issuance of any
building,plumbing,electrical,or mechanical
permit.
LU 11.3 Require all developments including Consistent. The project is subject to
renovations and adaptive reuse of Development Review,in order to ensure that
existing structures (except historically the proposed development complies with all
significant buildings) be designed to applicable Azusa Development Code
provide adequate space for access, standards and regulations, and Azusa
parking, supporting functions, open General Plan Policies. Further, the project
space, and other pertinent elements. would include Use Permits and Variances,
subjecting the proposed development to
further discretionary review by the City
Staff, Planning Commission, and City
Council, in order to ensure the adequacy of
the various project elements.
OF Urban Form
UF4.2 Encourage attractive gateway treatments Consistent. The proposed project will
to establish a positive image at the edges revitalize the southwest entrance into the
of the City and its districts and corridors. City via Irwindale Avenue, enhancing the
gateway to the industrial district of Azusa.
EC Economy and Community
EC1 Build and maintain a strong, diverse Consistent. The addition of the MRF/TS
economy in Azusa. business in the City of Azusa will provide
additional revenue to enhance the quality of
life for Azusa residents.
EC4.1 Support the creation of high-quality jobs Consistent. The MRF/TS will create
for relatively low skill levels. approximately 62 new jobs, of various skill
levels.
EC9 Create a diverse and balanced revenue Consistent. The project will provide a
base with long-term value, avoiding revenue stream that will enhance Azusa's
excess reliance on a single revenue economic health and quality of life.
resource.
N Noise Goals and Policies
N1 Maintain community noise levels that Consistent. The project will meet the noise
meet guidelines and allow for a high standards of the Industrial and Residential
quality of life zones in the City of Azusa, as required by
Conditions of Approval #25 and#26.
Development Code Compliance
The project will comply with the following Development Code Compliance Table.
Development Code Standards Pro 6sal
Recycling Facility—Processing Facility 125,000 square foot Material Recovery
Facility and Transfer Station MRF/TS
Building Placement
Front setback: 10 ft. minimum 75 ft.
Side Street setbacks: 10 ft. minimum 32 ft.
Side setback: 0 ft.; 20 feet next to residential 20 ft.
Rear setback: 0 ft.; 20 feet next to residential 50 ft.
Parking Placement: Parking allowed outside
of the setbacks
Front setback: maximum of 50% of lot Front: 17% of lot frontage width
frontage width allowed
Side Street setback: 10 ft. min. Side Street setback: 40 ft. from property line
Side setback: not required Side setback: no parking on north side
Rear setback: not required Rear setback: 50 feet from property line
Building Height:
55 ft. maximum height 57 ft. maximum height with Variance
Frontage Type:
Arcade, Shopfront, Stoop, Forecourt. Shopfront
Parking:
Number of stalls:
263 spaces required 79 spaces provided with a Variance
Motorcycle Parking: 1 motorcycle parking 2 motorcycle parking spaces per Condition of
space for each 50 motor vehicle parking Approval
spaces. (8 - 4'x7' spaces)
Bicycle Parking: 1 bicycle rack for each 20 4 Bicycle racks per Condition of Approval
motor vehicle parking space up to 100 spaces;
one additional bicycle rack for each additional
100 motor vehicle spaces. (a total of 4 bike
racks)
Stall dimensions:
9' x 20' 9' x20'
Development Code Standards Proposal
Driveway width: 12 ft. (one way, no parking) 20 ft. (one way, no parking)
24 ft. (withparking) 30 ft. (withparking)
Landscaping:
City of Azusa Landscaping Standards Preliminary landscape plans submitted
Water Efficient Landscaping Standards Final Landscape and Irrigation plans required
per Condition of Approval #8.
Public Art:
Commercial and Industrial development with a Required per Condition of Approval #22.
total building project valuation of$750,000 or
more are required to select,purchase and install
permanent outdoor are at the development site
or ay an in lieu fees.
REQUIRED ENTITLEMENTS
The proposed project would require the following entitlements and Findings of Fact.
• Certification of the EIR
• Zone Change(Z 2009-01)to change a portion of the project site zoning from D WL(District
West End Light Industrial) to DW (District West End Industrial);
• General Plan Amendment (GPA 2010-01) to change a portion of the project site General
Plan designation from Recreation/Landfill Mixed Use to Industrial to be consistent with the
proposed Zone Change;
• Use Permit (UP 2009-01) to allow the recycling facility in the DW zone;
• Zoning Code Amendment (ZCA 230) to generally allow 24 hour operations in the DW &
DWL zones with a Use Permit;
• Use Permit (UP 2010-05) to allow the proposed 24 hour MRF/TS operations;
• Use Permit.(UP 2010-04) to allow a reduction in the required amount of provided parking;
• Variance (V 2010-02) to allow an increase in the permitted height of a fence in the front
setback on Irwindale Avenue from 42" to 6%
• Variance(V 2010-03)to allow a 2' increase in the allowable building height from 55' to 57';
• Variance (V 2010-04) to allow a deviation from the required operational standards for a
processing facility;
• Design Review (DR 2009-01) to allow the construction of the MRF structure; and
• Development Agreement.
Zone Change Z-2009-01
The Development Code defines a Recycling Facility — Processing Facility as "an entirely indoor
facility for the collection and processing of recyclable materials for shipment, or to an end-user's
specifications, by such means as baling, briquetting, cleaning, compacting, crushing, flattening,
grinding, mechanical sorting, re-manufacturing and shredding. Also includes the disassembling,
breaking up, sorting, and the temporary storage and distribution of recyclable or reusable waste
materials, other than motor vehicles and/or motor vehicle parts."
The Development Code limits a Recycling Facility—Processing Facility to the DW (District West
End Industrial)zone with approval of a Use Permit. However,a portion of the proposed project site
is zoned DWL (District West End Light Industrial) which would not allow Recycling Facility —
Processing Facilities. Therefore,in order to approve the proposed MRF/TS,the DWL portion of the
project would need to be changed to DW through a Zone.Change.
In order to approve the proposed Zone Change,the City Council would need to make the following
findings of fact:
1. That the proposed amendment is consistent with the goals, policies, and objectives of the
General Plan,any applicable specific plan, Owner Participation Agreement or Development
Agreement.
The proposed Zone Change Amendment,to change the zoning designation of a portion of the
project site from DWL (District West End Light Industrial) to DW (District West End
Industrial), is consistent with General Plan Land Use Policy 1.2: "Establish land use
designation and appropriate density standards and development standards to ensure a balance
of land uses and to enhance the City's long term economic and fiscal well-being,
including...employment generating industrial businesses." In addition, the project is
consistent with General Plan Land Use Policy LU4.8: "Accommodate industrial,
manufacturing and supporting commercial use within the West End Industrial District and in
accordance with Table CD-2, Land Use Classifications." The proposed project is also
consistent with the General Plan as illustrated in the previous table.
2. That the proposed zone change will not adversely affect surrounding properties.
The proposed zone change will 'expand a portion of the existing DW zone and reduce the
adjacent D WL zone,which will not substantially change the nature of the area nor adversely
affect the surrounding properties.
General Plan Amendment GPA-2010-01
The General Plan designation of the project is currently a combination of Industrial on the west end
and Recreation /Landfill Mixed Use on the east end. In order to be consistent with the zoning
designation areas of the City, the General Plan should be amended through a General Plan
Amendment.
In order to approve the General Plan Amendment, the City Council would need to make the
following findings of fact:
1. That the proposed amendment is in the public interest, and that there will be a community
benefit resulting from the amendment.
The proposed amendment would be in the public interest in that the amendment is to change
a portion of the City, currently designated Recreation/Landfill Mixed Use by the General
Plan, to a General Plan designation of Industrial. This would make the General Plan
consistent with the accompanying proposed zone change to change that same portion of the
City from zone DWL (District West End Light Industrial) to zone DW (District West End
Industrial). The community would benefit from consistent city designations.
2. That the proposed amendment is consistent with other goals, policies and objectives of the
General Plan.
The proposed General Plan Amendment is consistent with Land Use Policy 1.2: "Establish
land use designation and appropriate density standards and development standards to ensure
a balance of land uses and to enhance the City's long term economic and fiscal well-being,
including...employment generating industrial businesses;" and Land Use Policy 4.8:
"Accommodate industrial, manufacturing and supporting commercial use within the West
End Industrial District and in accordance with Table CD-2, Land Use Classifications." The
proposed project is also consistent with the General Plan as illustrated in the previous table.
3. That the proposed amendment will not conflict with provisions of the Development Code,
subdivision regulations or any applicable specific plan.
The proposed amendment will not conflict with any provisions of the Development Code or
subdivision regulations because the amendment will make the General Plan consistent with
the Zoning map, which in tum supports the Development Code. There is no applicable
specific plan.
4. In the event that the proposed amendment is a change to the land use policy map, that the
amendment will not adversely affect surrounding properties.
The proposed amendment will change the land use policy map. However, the amendment
will not adversely affect surrounding properties which are already zoned industrial.
Use Permit UP-2009-01 (allow a MRF/TS in the DW zone)
Pursuant to Section 88.42.170 of the Development Code,a Recycling Facility—Processing Facility,
in this case the Waste Management MRF/TS, is allowed in the DW zone with approval of a Use
Permit. In order to approve the proposed Use Permit, the City Council would need to make the
following findings of fact:
1. The proposed use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Development Code and the Municipal Code.
Section 88.42.170 of the Development Code allows a Recycling Facility — Processing
Facility, in this case the Waste Management Material Recovery Facility/Transfer Station
(MRF/TS), in the DW zone with approval of a Use Permit. The proposal is to locate a
MRF/TS at the northeast corner of Gladstone Street and Irwindale Avenue, in a DW zone.
With approval of the entitlement applications, the proposed project will comply with the
Development Code and the Municipal Code.
2. The proposed use is consistent with the General Plan and any applicable specific plan.
The proposed use, the MRF/TS recycling facility- processing facility, is consistent with
General Plan Land Use Goal No. 4.8: "Accommodate industrial, manufacturing and
supporting commercial use within the West End Industrial District and in accordance with
Table CD-2, Land Use Classifications". In addition, General Plan Chapter 4: Economy and
Community Goal No. 1 is to"Build and maintain a strong,diverse economy in Azusa." The
new MRF/TS use would support both of these General Plan goals by permitting a new
industrial use in the West End Industrial District which will assist in maintaining the City's
economy by creating new jobs and revenue to the City. The proposed project is also
consistent with the General Plan as previously illustrated.
3. The design, location, size and operating characteristics of the proposed activity are
compatible with the existing and future land uses in the vicinity.
The design, location and size of the proposed MRF/TS is compatible with the existing
industrial uses and structures in the DW zone. The new, state of the art, entirely enclosed
metal building and associated structures will replace an abandoned, open-air tire recycling
facility. The proposed recycling and transfer station operating characteristic will also be
compatible with the existing.and future industrial and landfill land uses in the vicinity.
The DEIR addresses the level of noise that the facility would produce as well as the impact
the noise would have on the adjacent properties. The closest residential area to the proposed
project site is approximately 2,300 feet southeast of the main building, at the corner of
Vincent Avenue and Newburgh Street. Table 5.6-10 Existing Traffic Noise Levels in the
draft EIR, pg 5.6-25, shows that the traffic noise levels on Vincent Avenue, south of .
Gladstone Street and north of Arrow Highway,where this residential area is located, would
not increase with the operation of the proposed MRF/TS. In addition, the noise that would
be generated by the tipping floor activities would be well below the City of Azusa noise
limits. Therefore, the proposed use would be compatible with the existing and future land
uses in the vicinity.
4. The site is physically suitable for the type, density and intensity of use being proposed,
including access, utilities and the absence of physical constraints.
The project site at the northeast corner of Gladstone Street and Irwindale Avenue, is suitable
for the proposed industrial use in that, with approval of the Zone Change, the site will be
zoned entirely DW (West End Industrial). The site is large enough to accommodate the
proposed structures and use. The project site for the proposed MRF/TS use is located next to
an existing landfill and an existing metal foundry,so the intensity of the proposed use will be
compatible with the existing uses.
In addition, the project site includes existing access from the northeast comer of Gladstone
Street and Vincent Avenue. A new access road from the existing landfill entrance to the
facility, designed to run parallel to Gladstone Street, will provide a separate, safe route for
the trash and green waste delivery trucks and exiting haulers. Utilities are existing and
available.
5. Granting the permit would not be detrimental to the public interest, health, safety,
convenience or welfare, or materially injurious to persons,property or improvements in the
vicinity and zoning district in which the property is located.
Granting the Use Permit would not be detrimental to the public interest, health, safety,
convenience or welfare. The operating Use Permit would allow a new business to operate in
the Azusa industrial area, providing much needed jobs and revenue to the City,which is in
the public interest and beneficial to the public's fiscal welfare. The draft Environmental
Impact Report establishes mitigation measures to insure that the public health and safety will
be protected, including review by the South Coast Air Quality Management District
(SCAQMD) of the project's Odor Minimization Plan. The plan would establish odor
management practices and requirements to reduce odors, limit opening in the building, sets
minimum inward face velocity of air through each opening, and limits length of time doors
can be open as well as a protocol for handling community complaints. The facility would
also adhere to California Occupational Safety and Health (CalOSHA) work place
requirements regarding employee safety and health.
The new MRF/TS structure, proposed landscaping and street improvements will be
materially beneficial to persons and property in the vicinity and zoning district in which the
property is located.
Zonine Code Amendment ZCA 230
In order to meet project goals,the MRF/TS is proposed to eventually operate 24 hours a day,7 days a
week. Currently, the Development Code does not address 24 hour operations in the Industrial
districts, although 24 hour retail operations are allowed with aMinor Use Permit in the Corridor
zones. In addition, there are existing industrial businesses that are operating 24 hours a day under
old Conditional Use Permits. Therefore, staff is recommending an amendment to the Zoning Code
which would allow business operations between the hours of 10:00 p.m. and 7:00 a.m. in the
industrial zones, if the operations were approved by the City Council through the Use Permit
Process.
In order to approve the Zoning Code Amendment, the City Council would need to make the
following findings of fact:
1. That the proposed amendment is consistent with the goals, policies, and objectives of the
General Plan,any applicable specific plan,Owner Participation Agreement or Development
Agreement.
The proposed Zoning Code Amendment, to allow the operation of an industrial business
between the hours of 10:00 p.m. and 7:00 a.m.with approval of a Use Permit by the Planning
Commission, is consistent with the General Plan and any applicable specific plan.
The General Plan Chapter 4: Economy and Community Goal No. 1 is to"Build and maintain
a strong, diverse economy in Azusa", and EC Policy 1.2 calls for the maintenance of"a
business climate in Azusa that communicates the city's support for businesses." The
proposed Zoning Code Amendment would provide a way for industrial businesses to apply
for a Use Permit to allow them to work beyond the standard 7:00 a.m. — 10:00 p.m., as
appropriate to their particular location and operating characteristics, and would meet the
goals and policies of the General Plan. The proposed project is also consistent with the
General Plan as illustrated in the previous table.
2. That the proposed Zoning Code Amendment will not adversely affect surrounding properties.
The proposed zoning code amendment will allow industrial businesses the opportunity to
apply for a Use Permit in order to expand their hours of operation with the flexibility needed
to be competitive. The Use Permit process would allow the Planning Commission to review
each application for extended hours of operation in the industrial zone, in order to determine
if the proposed extended hours are compatible the surrounding properties.
Use Permit UP-2010-05 (24-hour operation)
In order to meet the demands of waste removal and recyclable material recovery, and to insure a
fiscally sound project,the proposed MRF/TS is required to operate 24 hours a day,7 days a week. If
a Zoning Code Amendment were to be approved allowing 24 hour operation in the industrial zones
with a Use Permit, the applicant would need to receive approval of the Use Permit as part of the
entitlements for the MRF/TS project. In order to approve the Use Permit, the City Council would
need to make the following findings of fact:
1. The proposed use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Development Code and the Municipal Code.
With approval and effectiveness of the proposed Zoning Code Amendment ZCA 230 and the
proposed Use Permit, the 24 hour operation of the MRF/TS would be compliant with the
Development Code and the Municipal Code.
2. The proposed use is consistent with the General Plan and any applicable specific plan.
The proposed use, the 24 hour operation of the MRF/TS, is consistent with General Plan
Land Use Goal No. 4.8: "Accommodate industrial, manufacturing and supporting
commercial use within the West End Industrial District and in accordance with Table CD-2,
Land Use Classifications" and with Chapter 4: Economy and Community Policy No. 1.2,
which calls for the maintenance of"a business climate in Azusa that communicates the city's
support for businesses."
In addition,the proposal is consistent with General Plan Economy and Community Goal No.
1 to `Build and maintain a strong, diverse economy in Azusa'; Economic and Community
Policy 4.1: "Support the creation of high-quality jobs for relatively low skill levels"; and
Economy and Community Goal No. 9: "Create a diverse and balanced revenue base with
long-term value, avoiding excess reliance on a single revenue resource." The 24 hour
operation of the MRF/TS will create more jobs and create more revenue, as well as help
build and maintain a stronger more diverse Azusa economy. The proposed.project is also
consistent with the General Plan as illustrated in the previous table.
3. The design, location, size and operating characteristics of the proposed activity are
compatible with the existing and future land uses in the vicinity.
The proposed 24 hour operating characteristic is compatible with the existing and future
industrial and landfill uses in the vicinity. The new, state-of-the-art metal building is
designed to contain the material processing noise within the structure. In addition, the 24
hour operation will be required to comply with the current City noise standards for both day
and nighttime generated noise, with most of the facility noise being created during the day,
inside the enclosed building. Section 5.6-29-Noise,Table 5.6-12 of the draft Environmental
Impact Report shows that the noise from the traffic is not projected to increase near
residential areas, and would only increase on Irwindale Avenue, north of 151 Street, in a
sparsely developed industrial zone. The peak hours of traffic,generated by the project would
be from 7:00 am—9:00 am and from 4:00 pm—6:00 pm.
4. The site is physically suitable for the type, density and intensity of use being proposed,
including access, utilities and the absence of physical constraints.
The project site is physically suitable for the proposed 24 hour operation of the MRF/TS.The
site includes adequate parking and lighting to allow a late night shift of workers at the
facility. The processing of the materials is performed entirely within the enclosed MRF/TS
building which will contain the processing noise. The new access road from the entrance to
the existing landfill, designed to run parallel to Gladstone Street and away from any
residential areas, will provide a separate access route for ingress and egress.
5. Granting the permit would not be detrimental to the public interest, health, safety,
convenience or welfare,or materially injurious to persons,property or improvements in the
vicinity and zoning district in which the property is located.
Granting the Use Permit to allow 24 hour operations would not be detrimental to the public
interest,health, safety,convenience or welfare. The closest residential areas to the proposed
project site is approximately 2,300 feet southeast of the main building, at the corner of
Vincent Avenue and Newburgh Street. Table 5.6-10 Existing Traffic Noise Levels in the
draft EIR, pg 5.6-25, shows that the traffic noise levels on Vincent Avenue, south of
Gladstone Street and north of Arrow Highway, where the closest residential area to the
project site is located, would not increase with the operation of Se proposed MRF/TS.
However,the 24 hour operation would allow the proposed Azusa MRF/TS to be competitive
with other similar facilities and would create an increase in the number of employees,
providing a material public benefit.
Use Permit UP-2010-04 (parking reduction)
Pursuant to Section 88.36.050 of the Development Code,all industry,manufacturing and processing
uses require 1 parking space to be provided for each 500 square feet of building; 1 parking space for
each 250 square feet of office area and 1 parking space for each company vehicle. Based on this
calculation,a general manufacturing use occupying a building sized similar to the proposed building,
would be expected to provide 263 parking spaces. Parking requirements for medium and small
recycling collection facilities are to be determined by a Minor Use Permit. However, parking
requirements for large recycling processing facilities are not provided in the Code. Therefore, the
applicant has applied for a reduction of the parking requirements through a Use Permit, as allowed
by Section 88.36.080.1.— Reduction by Use Permit. This section states the "the review authority
may reduce the number of parking spaces required by Section 88.36.050 through Use Permit
approval, based on quantitative information provided by the applicant that documents the need for
fewer spaces." The applicant, Waste Management, has submitted a parking reduction request based
on the low employee count, approximately 66 employees. The low amount of employees is due to
the fact that the proposed MRF/TS building is primarily a large, open processing building and is
heavily automated.
In order to approve of the Use Permit to allow a reduction in the required amount of parking spaces,
the City Council would need to make the following findings of fact:
1. The proposed use is allowed within the applicable zoning district and complies with all other
applicable provisions of this Development Code and the Municipal Code.
The proposed use,a reduction in the required amount of parking spaces,would be consistent
with the current Development Code, which allows the parking requirement for small and
medium recycling facilities to be determined by a Minor Use Permit. The use permit process
allows a review of the specific facts and requirements that are unique to each particular use.
Since the purpose of the parking requirements found in the Development Code is to ensure
that sufficient off-street vehicle parking is provided for each use, the processing of a use
permit to reduce the required parking of this project complies with the Development Code.
2. The proposed use is consistent with the General Plan and any applicable specific plan.
The General Plan Chapter 4: Economy and Community Goal No. 1 is to"Build and maintain
a strong,diverse economy in Azusa", and Policy 1.2 calls for the maintenance of"a business
climate in Azusa that communicates the city's support for businesses." The proposed
reduction in required parking would allow the project to construct sufficient parking for the
project without the added expense of providing unneeded parking, thereby permitting the
efficient operation of the MRF/TS, creating more jobs and more revenue,as well as helping
to build and maintain a stronger more diverse Azusa economy. The proposed project is also
consistent with the General Plan as illustrated in the previous table.
3. The design, location, size and operating characteristics of the proposed activity are
compatible with the existing and future land uses in the vicinity.
The design, location,size and operating characteristics of the proposed reduction in required
parking are compatible with the existing and future land uses in the vicinity in that, because
of the location of the MRF/TS structures,the employees and visitors to the facility would be
provided parking onsite, without the need to overflow into the parking areas for any other
businesses. The large processing facility will house approximately 66 employees. The
facility is heavily automated and will not generate the parking needs of a similarly sized
manufacturing building
4. The site is physically suitable for the type, density and intensity of use being proposed,
including access, utilities and the absence of physical constraints.
The site is physically suitable for the type,density and intensity of the proposed reduction in
the required amount of parking because the access to the site is limited to primarily drive—
through truck traffic dropping off and hauling out material, with a minimal amount of
parking spaces being used by a small number of employees that would comprise the two
work shifts. The large processing facility will house approximately 66 employees and be
heavily automated.
5. Granting the permit would not be detrimental to the public interest, health, safety,
convenience or welfare, or materially injurious to persons,property or improvements in the
vicinity and zoning district in which the property is located.
Granting the Use Permit to allow a reduction in the required amount of parking would not be
detrimental to the public interest, health, safety, convenience or welfare, or materially
injurious to persons, property or improvements in the vicinity and zoning district in which
the property is located. The proposed number of parking spaces will be sufficient to provide
employee and visitor parking. As a result there will be no overflow of parking for the
MRF/TS onto the adjacent properties or streets.
Variance V-2010-02 (increased fence height) _
The applicant is proposing to construct a decorative, 6' tall block wall on the perimeter of the project
site. However,per Development Code Section 88.30.020, a fence is limited to 42" in height in the
front setback of a lot. In this case, the front setback of the project site is located along Irwindale
Avenue. Therefore,the applicant has applied for a Variance to allow the addition wall height along
the property line on Irwindale Avenue.
In order to approve the Variance to allow an increase in the height of the perimeter wall, the City
Council would need to make the following findings of fact:
1. There are special circumstances applicable to the property,including size,shape,topography,
location or surroundings,so that the strict application of this Development Code deprives the
property of privileges enjoyed by other properties in the vicinity and within the same zoning
district.
The subject property is an irregularly shaped corner parcel, with the front and street side
property lines abutting major streets. The majority of other industrial properties in the
vicinity have regular, rectangular lots that front onto the street, with the building frontages
right at the property line. The proposed MRF/TS building will be set back approximately 75
feet from the property line, with the drive aisles for the trucks between the property line and
the building. The requested increase in wall height is to provide safety and security from
vehicular damage for employees and the facility.
2. The approval of the Variance includes conditions of approval as necessary to ensure that the
adjustment granted does not constitute a grant of special privileges inconsistent with the
limitations upon other properties in the vicinity and within the same zoning district.
Conditions of Approval require that the applicant locate the proposed wall entirely on the
subject property and install new landscaping and irrigation along the wall. The wall is
required to be decorative and to act as an improvement at the southeast entrance to the City.
There is also a condition of approval that the project shall include a"public art"component
or in-lieu fee for public art, which could be incorporated into the proposed new wall.
3. The Variance is consistent with the General Plan and any applicable specific plan.
The proposed Variance is consistent with General Plan Chapter 4:Economy and Community
Policy No. 1.2, which calls for the maintenance of "a business climate in Azusa that
communicates the city's support for businesses." The granting of the variance will allow the
proposed new business to install a new, decorative wall for additional security and safety.
The proposed project is also consistent with the General Plan as illustrated in the previous
table.
Variance V-2010-03 (increased building height)
The applicant is proposing to construct a MRF/TS facility that is 2 feet taller than the allowed
building height in order to install the equipment for the recyclable material conveyor system. Per the
Development Code,the maximum allowable building height for structures in the DW zone is 55 feet.
The applicant is proposing a building height of 57 feet on the east elevation of the main structure.
The rest of the structure and the separate bale storage structure are all below the maximum height
limitation. Therefore,the applicant has applied for a Variance to allow an additional building height
of 2 feet over the development standard.
In order to approve the Variance to allow an increase in the building height,the City Council would
need to make the following findings of fact:
I. There are special circumstances applicable to the property,including size,shape,topography,
location or surroundings,so that the strict application of this Development Code deprives the
property of privileges enjoyed by other properties in the vicinity and within the same zoning
district.
The subject property is an irregularly shaped parcel, which limits the location of the main
structure and the location of the bale storage building. The additional height of the main
structure is to accommodate the recyclable material recovery equipment and conveyor system
within the main structure and to allow the conveyor system to connect to the bale storage
building. The conveyor system requires the 57'maximum height in order to operate properly
and convey the recyclable materials to the bale storage structure
2. The approval of the Variance includes conditions of approval as necessary to ensure that the
adjustment granted does not constitute a grant of special privileges inconsistent with the
limitations upon other properties in the vicinity and within the same zoning district.
A condition of approval has been included with the project requiring that the applicant
adhere to the proposed height,as shown on the approved elevations. Granting the requested
variance is necessary for operation of this unique business,and adherence to the condition of
approval just noted will ensure that this unique business will be permitted to operate on the
subject property.
3. The Variance is consistent with the General Plan and any applicable specific plan.
The proposed Variance is consistent with General Plan Chapter 4:Economy and Community
Policy No. 1.2, which calls for the maintenance of "a business climate in Azusa that
9
communicates the city's support for businesses." The granting of the variance will allow the
proposed new business to construct a structure that will accommodate the unique
requirements of the use, thereby permitting a new business which will add needed jobs and
contribute to the City's economy. The proposed project is also consistent with the General
Plan as illustrated in the previous table.
Variance V-2010-04 (Variance to operational standards)
The applicant is proposing to operate a material recovery facility and transfer station in the DW zone.
This facility would accept and process municipal solid waste,green waste and recyclable materials
for shipment to other facilities. The project would be categorized as a Recycling Facility —
Processing Facility as defined in the Development Code. Section 88.42.170.0 of the Development
Code provides standards for recycling processing facilities. The standards include location
requirements; activity limitations, maximum size, container location, outdoor storage or activities
and operating standards. The applicant is requesting a variance to some of the operational standards,
specifically:
1. The limitation on activities which allows only two outbound truck shipments per day;
2. Maximum facility size of 45,000 square feet; and
3. Outdoor storage restrictions.
In order to approve the Variance to listed operational standards, the City Council would need to
make the following findings of fact:
1. There are special circumstances applicable to the property,including size,shape,topography,
location or surroundings,so that the strict application of this Development Code deprives the
property of privileges enjoyed by other properties in the vicinity and within the same zoning
district.
The subject property is an irregularly shaped, large industrial parcel, which is located in the
heavy industrial zone of the city, bordered by two busy streets which carry both local and
regional traffic. Because of the large size and location-of the property, limits on the truck
activity,the maximum facility size and outdoor storage are not as important as they might be
at a smaller, less industrial lot.
The larger size property can more easily accommodate a larger size facility while the location
of the proposed facility with easy access to regional transit routes can accommodate more
truck traffic. The draft EIR (Section 5.3 Traffic) addresses the traffic that would be
generated by the proposed MRF/TS use and includes mitigation measures such as: installing
timing control systems at impacted intersections, new turn lanes and fair-share monetary
contribution to Caltrans projects, to expedite the smooth flow of traffic.
The majority of the baled recycling materials would be stored inside the bale storage
building. However,an outdoor storage area is proposed for the temporary storage of already
processed/baled materials and would be located in a paved area north of the bale storage
building. The large size of the project site and the proposed location abutting the existing
landfill would both ensure that the temporary outdoor storage area would be shielded from
public view. The outdoor storage area would also be included in the SCAQMD Odor
Minimization Plan, as per the Air Quality (Section 5.4 Air Quality)mitigation measures of
r-
the draft EIR. This plan is required to include housekeeping activities, such as sweeping and
odor neutralizing substances to minimize odor generation from damp materials,as well as a
protocol for handling community complaints,i.e.requiring an odor survey of the surrounding
community be conducted within 2 hours of a community complaint.
2. The approval of the Variance includes conditions of approval as necessary to ensure that the
adjustment granted does not constitute a grant of special privileges inconsistent with the
limitations upon other properties in the vicinity and within the same zoning district.
The Conditions of Approval for the project includes the mitigation measures from the draft
EIR which address the aesthetics of the large building,the traffic impacts of more than two .
outbound truck shipments per day and the outdoor storage area. Additional conditions
require that the outdoor storage area be used for the short-term, temporary storage of baled
recyclable materials only and that it shall be roofed and enclosed by a solid wall or opaque
fence.
3. The Variance is consistent with the General Plan and any applicable,specific plan.
The proposed Variance is consistent with General Plan Chapter 4:Economy and Community
Policy No. 1.2, which calls for the maintenance of "a business climate in Azusa that
communicates the city's support for businesses." The granting of the variance will allow the
proposed new business to construct a structure that will accommodate the unique
requirements of the use, thereby permitting a new business which will add needed jobs and
contribute to the City's economy. The proposed project is also consistent with the General
Plan as illustrated in the previous table.
Design Review DR-2009-01
The applicant is proposing to build an approximately 125,000 square foot MRF/TS which will
include a 640 square foot scale house; a tipping floor of approximately 96,750 square feet; an
approximately 12,680 square foot bale storage building, approximately 1,800 square feet of green
waste loadout area; a glass load out area of approximately 1,150 square feet; and approximately
17,800 square feet of office/maintenance area.
In order to approve the Design Review,the City Council would need to make the following findings
of fact:
1. The project provides architectural design, building massing and scale appropriate to and
compatible with the site surroundings and the community.
The proposed building massing and scale are compatible to the site surroundings and the
community. The large project site, adjacent to the existing Azusa Land Reclamation landfill,
can accommodate the proposed structure which is appropriate in size to the location. The
architectural design of the proposed building is industrial in nature but provides articulation
and architectural details that make the structure interesting as well as functional.
9
2. The project provides attractive and desirable site layout and design,including,but not limited
to, building arrangement, exterior appearance and setbacks, drainage, fences and walls,
grading, landscaping, lighting, signs, etc.
The building is proposed to be constructed to Leadership in Energy and Environmental
Design or LEED standards. These standards are defined as an internationally recognized
green building certification system,which is the recognized standard for measuring building
sustainability.The LEED green building rating system--developed and administered by the
U.S. Green Building Council, a Washington D.C.-based, nonprofit coalition of building
industry leaders -- is designed to promote design and construction practices that increase
profitability while reducing the negative environmental impacts of buildings and improving
occupant health and well-being. LEED certification includes a rigorous third-party
commissioning process. The LEED rating system offers four certification levels for new
construction -- Certified, Silver, Gold and Platinum -- that correspond to the number of
credits accrued in five green design categories: sustainable sites,water efficiency,energy and
atmosphere, materials and resources and indoor environmental quality. The goal of the
project is to construct a LEED Certified facility as the premier industrial facility in the City
of Azusa.
The main processing building and the bale storage building will be located at the northeast
corner of Irwindale Avenue and Gladstone Street, adjacent to the very large Azusa Land
Reclamation landfill property. The exterior of the modern building will provide windows,
wall articulation and different construction materials,for an attractive building design. There
will be a six-foot tall decorative block wall on the perimeter of the property with new
landscaping and lighting. The buildings will be setback from the wall to allow truck access.
The project will incorporate all these features to provide attractive and desirable site layout
and design.
3. Provide efficient and safe public access, circulation and parking.
The proposed project includes a new, internal road branching off from the existing landfill
entrance,providing efficient and safe access and circulation. It is designed to run parallel to
Gladstone Street and provide a separate, designated route for the trash and green waste
delivery trucks and exiting haulers. Employee and visitor parking is provided on site.
4. The project provides appropriate open space and landscaping, including the use of water
efficient landscaping.
The project proposes to include construction of a new, decorative block wall as well as the
installation of new landscaping. Conditions of Approval have been included to ensure that
appropriate landscaping and water efficient irrigation will be utilized.
5. The project is consistent with the General Plan, any applicable specific plan, development
agreement, and/or any previously approved planning permit.
The project is consistent with General Plan Land Use Policy LU4.9 which requires
"buildings within the West End Industrial District to be uniquely identifiable,distinguished
in their architecture and site planning, and compatible with adjacent uses and districts", and
Policy LU6.2 which also requires "all industrial buildings to be distinctive, constructed of
high quality materials,and be of interesting and strong design.All buildings shall be visually
attractive from the street, and from adjacent or nearby properties." The proposed LEED
design and unique building materials will provide a new structure that is consistent with
these policies. The proposed project is also consistent with the General Plan as illustrated in
the previous table.
6. The project complies with all applicable requirements of the Development Code, and any
other adopted City design standards, guidelines, and policies.
As proposed, and with approval of the entire entitlement package, including all use permits
and variances,the project complies with the required setbacks, frontage design,and parking
location, and the proposed structures are consistent with the massing and scale requirements
of the Development Code.
Development Agreement
The City of Azusa will enter into a Development Agreement with Waste Management in order to
secure development rights for Waste Management and to ensure certain public benefits for the City.
A draft Development Agreement has been attached as Exhibit B.
In order to approve the Development Agreement,the City Council must make the following finding
of fact:
1 That the proposed Development Agreement is consistent with the goals, policies, and
objectives of the General Plan.
The proposed Development Agreement is consistent with General Plan Chapter 4: Economy
and Community Goal 1: "Build and maintain a strong,diverse economy in Azusa,"and Goal
9: "Create a diverse and balanced revenue base with long-term value, avoiding excess
reliance on a single revenue resource." The project will add a new and different revenue
stream to the economy of Azusa. It will also provide a long-term revenue stream that will
enhance Azusa's economic health and quality of life.
The proposed Development Agreement is also consistent with General Plan Chapter 4:.
Economy and Community Goal 4: "Support the creation of high-quality jobs for relatively
low skill levels." The MRF/Transfer Station will create approximately 62 new jobs of
varying skill levels. The proposed project is also consistent with the General Plan as
illustrated in the previous table.
FINAL ENVIRONMENTAL IMPACT REPORT
The California Environmental Quality Act (CEQA) Guidelines provide objectives, criteria and
procedures for the orderly evaluation of projects. The Guidelines include 16 categories that need to
be evaluated in order to identify and review the environment factors that could be potentially affected
by the proposed project. The categories are:
Aesthetics/Light and Glare Greenhouse Gas Emissions Noise
Agricultural Resources Hazards/Hazardous Materials Population/Housing
Air Quality Hydrology/Water Quality Public Services and Utilities
Biological Resources Land Use/Planning Recreation
Cultural Resources Mineral Resources Traffic/Circulation
Geology/Soils
Impacts to these categories can be determined as:no impact; less than significant impact;potentially
significant; significant; and significant and unavoidable impacts
The project EIR addresses all of these categories and identifies five (5) categories where the
proposed MRF/TS project would have no impacts or less than significant impacts. Those categories
are: Agricultural Resources, Biological Resources, Mineral Resources, Population/Housing and
Recreation. These issues are addressed in Section 10.0 Effects Not Found to Be Sil4nificant of the
draft EIR.
Of the remaining eleven categories, the EIR finds nine categories, i.e. Land Use/Planning,
Aesthetics/Light and Glare, Greenhouse Gas Emissions, Noise, Public Services and Utilities,
Cultural Resources,Hazards/Hazardous Materials, Hydrology/Water Quality,and Geology/Soils to
.be impacted by the proposed MRF/TS project. However,there are mitigation measures proposed for
each of these categories which can lower the environmental impacts of the project to less than
significant levels. A list of the proposed mitigation measures can be found in the Summary Section
of the draft EIR, beginning on page2-11.
The EIR identifies two categories, Traffic/Circulation and Air Quality, where the environmental
impacts of the proposed MRF/TS project, even with mitigation measures,would be significant and
unavoidable.
Traffic/Circulation Section 5.3
The Traffic/Circulation section analyzed the impact of the proposed MRF/TS project on local
intersections and regional transportation facilities and found there were areas of Potentially
Significant Impact. Mitigation measures have been included in the draft EIR which can be
implemented to reduce the traffic impacts of the proposed project to less than significant levels.
However,there were four'areas that are under thejurisdiction of another agency or City,where there
is no guarantee that the recommended mitigation measure would be implemented. The four areas of
impact are:
1. the intersection of Irwindale Avenue and Gladstone Street for both the weekday a.m. and
p.m. peak hours;
2. the intersection of Irwindale Avenue and Arrow Highway during the weekday p.m.peak hour
in 2014 & 2035;
3. Irwindale Avenue and the I-210 eastbound on and off ramps during the weekday p.m. peak
for the buildout year 2035; and
4. the impact to Caltrans facilities at the I-210 Freeway
Since the City of Azusa would not be able to ensure that the necessary improvements would be
implemented in these areas, these four impacts would need to be regarded as significant and
unavoidable impacts. However, if the other jurisdictions agree to allow the improvements, the
4
impacts would be reduced to a level of insignificance. For example, in response to their review of
the draft EIR, Caltrans has evaluated the project's impact to the east bound on-ramp of the 210
Freeway as approximately$232,800,which,per Mitigation Measure TR-5,would be paid to Caltrans
prior to the issuance of Building Permits, see Exhibit G.
Air Quality Section 5.4
This section focused on the short-term and long-term air quality impacts associated with the
construction of the proposed MRF/TS project and long-term local and regional air quality impacts
associated with the operation of the MRF/TS. In most instances, mitigation measures are
recommended which can be implemented to reduce the air quality impacts of the proposed project to
less than significant levels. However,the entire Los Angeles Basin has been determined to be a"non
attainment area" for ozone, which includes nitrogen dioxide (NOx), without any increase in
development. The construction and operation of the proposed MRF/TS project would increase the
levels of Nitrogen Dioxide (NOx) to a significant and unavoidable impact to the region.
Staff is recommending that the City Council approve the proposed project with a Statement of
Overriding Considerations for these two categories.
FISCAL IMPACT
The proposed Development Agreement between the City of Azusa and Waste Management will
secure development rights for Waste Management and ensure that a minimum of$1.60 per ton in
host fees will be paid to the City for all waste material delivered to the transfer station and processed.
CONCLUSION
Staff recommends that the City Council certify the final Environmental Impact Report with a
Statement of Overriding Considerations for the Waste Management Material Recovery and Transfer
Station project and approve the entitlements required for the project based on the findings of facts
presented and based on the.beneficial fiscal impact to the City.
ATTACHMENTS:
Exhibit A - Draft Conditions of Approval
Exhibit B - Draft Development Agreement
Exhibit CI - Existing Zoning Designation
Exhibit C2 - Proposed Zoning Designation
Exhibit D1 - Existing General Plan Designation
Exhibit D2 - Proposed General Plan Designation
Exhibit E - Final EIR, Mitigation Monitoring and Report Program, EIR Findings of Fact
and Statement of Overriding Considerations
Exhibit F - Draft Ordinances and Resolutions
Exhibit G - Caltrans Comment letter
Exhibit H - Irwindale Chamber of Commerce Comment letter
Exhibit I - Site Plan
s , �,.OP A
V
CITY OF AZUSA
MINUTES OF THE CITY COUNCIL
REGULAR MEETING -
MONDAY,JUNE 20,2011 —6:30 P.M.
The City Council of the City of Azusa met in regular session at the above date and time in the Azusa
Auditorium located at 213 E.Foothill Boulevard,Azusa,CA 91702,
CLOSED SESSION Closed Session
The City Council recessed to Closed Session at 6:32 p.m.to discuss the following:
I. CONFERENCE WITH LABOR NEGOTIATOR(Gov.Code Sec 54957.6)
Agency Negotiators: Administrative Services Director-Chief Financial Officer Kreimeier and Conference
City Manager Delach wa abor
Organizations APMA(Azusa Police Management Association)and CAPP(Civilian Negotiator
Association of Police Personnel). APMA
2. REAL PROPERTY NEGOTIATIONS (Gov. Code Sec 54956.8) Real Prop
Agency Negotiators: City Manager Delach and Assistant City Manager Makshanoff Negotiations
Under Negotiation: Price and Terms of Payment.
a. BLOCK 37
_ Address: Block 37
624—630 N.San Gabriel Avenue,Azusa,CA 91702 San Gabriel
622 N. San Gabriel Avenue,Azusa,CA 91702 Avenue
604 N. San Gabriel Avenue,Azusa,CA 91702
600 N. San Gabriel Avenue,Azusa,CA 91702
Negotiating Parties: City of Azusa and City of Azusa Redevelopment Agency
Address: 634 N. San Gabriel Avenue,Azusa,CA 91702 634 San Gabriel
Negotiating Parties: Soon Kwon I - S.Kwon I
Address: 150 W.Foothill Boulevard,Azusa,Ca 91702
Negotiating Parties: Antranik and Houri Kassabian 150 W.Foothill
Kassabian
BLOCK 36 Block 36
Address: 100 E.Foothill Boulevard,Azusa,CA 91702 100 Foothill
614—640 N.Azusa Avenue,Azusa,CA 91702 614-640 Azusa
Negotiating Parties: City of Azusa and City of Azusa Redevelopment.Agency
Address: 152 E.Foothill Boulevard,Azusa,CA 91702 152 E.Foothill
Negotiating Parties: Bank of America&City of Azusa Redevelopment Agency Bank of Amer.
The City Council reconvened at 7:30 p.m.City Attorney Carvalho stated that instructions were given to staff Cncl rcvnd
but there was no reportable action taken in Closed Session. Closet Sess -
No Reports
Mayor Rocha called the meeting to order. Call to Order
Sergeant First Class Genaro"Jerry"Caballero led in the Flag Salute. Flag Salute
Invocation was given by Pastor Rick Me Donald of the Azusa House of Nations Invocation
The City Council presented a Certificate of Appreciation to Sergeant First Class Genaro"Jerry" Caballero Cert J.
for his services our country. Caballero
ROLL CALL Roll Call
PRESENT: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
ABSENT: COUNCILMEMBERS: NONE
ALSO PRESENT: Also Present
City Attorney Carvalho, City Manager Delach, Assistant City Manager Makshanoff, Police Chief Garcia,
Director of Public Works Haes, Administrative Services Director-Chief Financial Officer Kreimeier,
Director of Economic and Community Development Christiansen, Director of Utilities Morrow, Assistant .
Library Director Strege, Revenue Supervisor Cawte, Principal Civil Engineer Bobadilla, Director of
Recreation and Family Services Jacobs,Recreation Supervisor Gonzales,City Clerk Mendoza, Deputy City
Clerk Toscano. - -
PUBLIC PARTICIPATION Pub Part
Ms. Debbie Kindred addressed Council advising of a missing no parking sign on the 500 block of north D.Kindred
Sunset which caused someone to receive a citation and asked if someone could look into the matter. She Comments
also reported that Vulcan trucks are coming out of their facility without covers on the back. She welcomed
the newly appointed Planning Commissioner Robert Donnelson.
Mr. Mike Lee addressed Council congratulating Robert Donnelson on his appointment to the Planning M.Lee
Commission. He spoke about the following items: Safe 4'of July, recycling cell phones for the homeless Comments
veterans, parking structure, Jerry Caballero, Applebees, Yolanda Pena running for School Board, and Jeri
Vogel.
Mr.Joe Guarmra addressed Council reading a letter into the record regarding his opposition to the proposed J.Guarrera
parking structure on contribution from Foothill Transit, the EIR, the City's responsibility for electricity, Comments
maintenance, elevator, insurance, etc. He stated that there is no benefit to the City and requested, as the
Representative of the Save Azusa Park Committee,to stop the project.
Ms. Madelyn Payne addressed Council expressing her opposition to the proposed parking structure and read M.Payne
a letter into the record that was published in the paper regarding negative aspects of the project. Comments
Mr. Dick Cortez addressed Council stating that he will miss the City Manager and the Chief of Police, and D.Cortez
expressed his opposition to the proposed parking structure. Comments
Mr. Jorge Rosales addressed Council expressing his sadness over the retirement of the Chief of Police, and J.Rosales
that he thinks Captain Sam Gonzalez should be able to fill the vacancy. Comments
REPORTS,UPDATES COUNCIL BUSINESS AND ANNOUNCEMENTS-STAFF Rpts,Updates
City Manager Delach responding to comments made regarding the Parking Structure stating that there would City Mgr
be no parkland taken away due to prohibitions from Federal Funds,the current parking will be returned back Response to
to park space and the Gazebo restrooms,playground and picnic shelter will be replaced. - Comments
Moved by Councilmember Gonzales, seconded by Councilmember Carrillo and unanimously carried to Cert Azusa
approve request for certificates of recognition to the Azusa National Little League team for winning the City Nat LL appvd
Series.
Mr. Jorge Rosales, Representative of Sister City addressed Council providing information regarding recent J.Rosales
visit of Councilwoman Patricia Gonzalez Borrego of Sister City Zacatecas Mexico regarding the Youth and Comments
Adult Exchange. He noted that she expressed a strong desire to strengthen the relationship between the two
cities,wished to revive the Adult and Youth Exchange Program,and invited the members of Council to visit -
Zacatecas during the annual September 16"celebration.
Moved by Councilmember Carrillo, seconded by Councilmember Gonzales and unanimously carried to Sponsor Joet &
approve request for sponsorship in the amount of$100 each to Joet Gonzalez and Jousce Gonzalez of the Jousce Gonzalez
Azusa Youth Boxing Club who will be competing in Olympic trials in Colorado,Springs. Approved
Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Gonzales and unanimously carried that staff Procs for City
be directed to prepare a proclamations for City Manager Delach and Chief of Police Garcia in recognition of Mgr& Chief of
their retirements. Police
Moved by Councilmember Carrillo,seconded by Councilmember Macias and unanimously carried to cancel August
both meetings in August as well as the Utility Board Meeting,with the understanding that if there is a need, Meetings
a Special meeting will be called. Councilmember Macias suggested that stipends for canceled meeting be Cancelled
donated to charity; City Attorney Carvalho responded -stating that it was an individual choice of
Councilmembers.
06120/11 PAGE TWO
rt
Assistant City Manager Makshanoff introduced Assistant Library Director Reed Strege who cited summer Intro R.Strege
activities at the Library. Assist.Lib Dir
Captain Sam Gonzalez provided an update on crime statistics. - Crime Statistics
Moved by Councilmember Macias, seconded by Councilmember Gonzales and unanimously carried to LCC Delegate
appoint Councilmember Carrillo as voting delegate to the League of California Cities Annual Conference to A.Carrillo
be held in September 21-23, 2011, in San Francisco. Moved by Councilmember Gonzales, seconded by Alternate
Mayor Pro-Tem Hanks to appoint Councilmember Macias as the alternate voting delegate to the Conference. U.Macias
Mayor Pro-Tem Hanks announced the American Amateur Relay League Field Day on Saturday, June 25, K.Hanks
2011 at Horse Thief Canyon Park in San Dimas from I 1 a.m.till dusk,and urged all to attend. Comments
Councilmember Macias requested that staff look into the feasibility of cleaning up weeds in the railroad Macias
public right a way by the Target Site, noted the banner in front of City Hall of Azusa graduating students Comments
who will be continuing their education by attending college, military,or trade school; noted the many good
things going on in the City today,and asked that the meeting be adjourned in memory of the City of Azusa's
Customer Service Representative Jenny Pryor,a city employee,who passed away of the week end.
Councilmember Gonzales congratulated all grates of the high schools, announced Tuesday night movies at Gonzales
Memorial Parks, Canyon City overnight camp out at Northside Park on August W. and asked drivers to Comments
look out for children walking,riding bikes,etc. now that summer is here.
Councilmember Carrillo congratulated all high school graduates, asked all to follow safe and sane laws for Carrillo
the 4ih of July,and reminded all of the dangers of swimming in San Gabriel River. Comments
Mayor Rocha announced the Summer Reading Program every Tuesday, Library Summer Movies, Azusa Rocha
Beautiful tree planting June 241°, July 2nd meet to turn in phones to help homeless Veterans,an Azusa Cares Comments
clean up at a local residence who needed help,thanked PIO Quiroz for flyer announcing that no Fireworks
are allowed beyond Sierra Madre, Azusa Veterans Dance July 9"proceeds to go towards monument, July
10'"Chaperone Bike Ride,and a series of Bike events, congratulations to all graduates, and pray for service
men and women.
SCHEDULED ITEMS Sched Items
PUBLIC HEARING — 2011 REFUSE RATE ADJUSTMENT. Assistant to the Director of Utilities Public Hrg
Kalscheuer addressed Council presenting the Refuse Rate Adjustment in accordance with the 2011 Refuse
Exclusive Franchise Agreement with Athens Services for refuse collection and recycling services, Rate
He stated that Single Family service will be reduced by$0.03,Multifamily will be reduced by$2.07 Adjustment
and 3 Cubic Yard Bin will increase by$5.06. -
The Mayor declared the Hearing open. The City Clerk read the affidavit of proof of publication of notice of Hrg Open
said Hearing published in the Azusa Herald on May 12,2011.
Ms. Helen Katra addressed the Hearing stating that she doesn't think she should be charged as a family rate H.Katra .
as she is the sole person in the household. Comments
Mr. Mike Lee addressed the Hearing asking how some could take campaign funds and then make a decision M.Lee
on this item. He stated that he knows it's legal but asked if it is morally right. Comments
Assistant to the Director of Utilities Kalscheuer responded to Ms. Katra concern stating that there are C.Kalscheuer
discounts for Senior Citizens,but it is difficult to monitor how many'people are in a household,especially if Responses
it is a single family home with a yard. Further, another discount rate would affect Athens and they would
have to create a new rate schedule.-
Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Gonzales to close the Public Hearing. Hrg Closed
City Attorney Carvalho responded to comments regarding campaign contributions noting that the Fair City Attorney
Political Practices Commissions establishes regulations which determine when and if a councilmember Response
should disqualify from a decision and they deem campaign contributions not to be any type of interest that
causes a disqualifying conflict.
Mayor Pro-Tem Hanks offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA,APPROVING THE FIFTEENTH Res.No. 11-
AMENDMENT TO THE EXCLUSIVE FRANCHISE AGREEMENT WITH ARAKELION C41 Amend
ENTERPRISES TO AMEND THE SERVICE RATES AND FEES FOR THE PERIOD OF JULY 1, 2011 Exclusive
THROUGH JUNE 20,2012. Franchise
Agreement
Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales to waive further reading and Arakelian
adopt. Resolution passed and adopted by the following vote of the Council:
06/20/11 PAGE THREE
AYES: COUNCILMEMBERS: GONZALES,CARRILLO.MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS: NONE -
ABSENT: COUNCILMEMBERS: NONE
Pub Hrg
PUBLIC HEARING — SEWER FUND RATE INCREASE. City Manager Delach stated that this Sewer Sewer Rate Inc -
increase will be for coverage of Debt service payment to the sewer bonds,coverage of regulation increasing City Mgr
stringent for NPDES storm water run off and CIP needs for the entire sewer system for the future. Comments
Director of Public Works Hoes addressed the Hearing stating that sewer rates require an adjustment to meet T.Haes
the increased costs due to State Mandated requirements, compliance with National Pollution Discharge Dir Pub Wks
elimination System Program and to fund a 10 year Sewer Capital Improvement Program (CIP). He stated Presentation
that the initial rates will be as follows: Residential- $8.18/unit+$0.200 per 100 cubic feet of water usage
(hcf), Commercial $10:52/unit+$0.200 per 100 cubic feet of water usage (hcf), Industrial - S12.84/unit+
$0.200 per 100 cubic feet of water usage(hcf) and discount rates for low income of$1.22 per month. He
responded to questions posed regarding percentage of increase and number of severe mileage.
The Mayor declared the Hearing open. The City Clerk read the affidavit of proof of publication of Hrg Open
notice of said Hearing published in the Azusa Herald on May 12,2011.
City Clerk read two letters into record in opposition to the increase by John X.He and Helen M.Yuan, and City Clerk
Duo Wang. Read Lns
Mr. Jorge Rosales addressed the Hearing calculating the new sewer fee in his current personal bill stating L Rosales
that the monthly sewer increase is higher than the reports states. Comments
Discussion was held and each Councilmember provided input regarding miles of sewer with severe need, Discussion
water usage fee, percentage of increase, the importance of the sewer system in general,thanks to staff and
consultant, possible increase in time of sewer plan,calculation process and compliance with NPDES storm
water run off.
Moved by Councilmember Carrillo, seconded by Mayor Pro-Tem Hanks and unanimously carried to close Hrg Closed
the Public Hearing.
Mayor Pro-Tem Hanks offered an Ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA,AMENDING 1x Rdg Ord
SECTION 2-469 OF THE AZUSA MUNICIPAL CODE RELATING TO SEWER SERVICE FEES AND Sewer Fees
FEE COLLECTIONS. .
Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales and carried to waive further Ordinance
reading and introduce the proposed ordinance to approve a sewer fund rate increase (effective July 1, 2011) Introduced
of 5%annual adjustments and an hcf(hundred cubic feet of water)fee of$.20 with 5%annual adjustments.
Councilmember Macias dissenting.
PUBLIC HEARING-RESOLUTIONS ADOPTING 2011/12 FISCAL YEAR SCHEDULE OF FEES AND Pub Hrg
CHARGES. Administrative Services Director-Chief Financial Officer addressed the Hearing stating that Fees&Charges
this is for consideration and approval of updates and revisions to the City's fees charges for costs CFO Kreimeier
"reasonably borne". The resolutions enact a "User Fee Schedule for Various Municipal Activities and Presentation
Services",and another resolution to formally enact"Development Project Fees and Service Charges",which
requires a public hearing;he provided details on the fees. He responded to questions posed regarding Senior
Dog Licenses,
The Mayor declared the Hearing open. The City Clerk read the affidavit of proof of publication of notice of Hrg open
said Hearing published in the San Gabriel Valley Tribune on June 10'and 15i°,2011.
Testimony was solicited,but none was received. Testimony/none
Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales and unanimously carried to close 'Hrg Closed
the Public Hearing.
Mayor Pro-Tem Hanks offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, Res. II-C42
ESTABLISHING CERTAIN DEVELOPMENT PROJECT FEES AND SERVICE CHARGES. Establishing
Dev Project
Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales to waive further reading and Fees and
adopt. Resolution passed and adopted by the following vote of the Council: Service Charge
AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
06/20/11 PAGE FOUR
Mayor Pro-Tem offered a Resolution entitled:
7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA, CALIFORNIA, Res No. I1-C43
ESTABLISHING A USER FEE SCHEDULE FOR VARIOUS MUNICIPAL ACTIVITIES AND establishing Fee
SERVICES. for Various
Municipal
Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales to waive further reading and Activities.
adopt. Resolution passed and adopted by the following vote of the Council:
_ AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
POLICE CHIEF PART-TIME/POST RETIREMENT EMPLOYMENT AGREEMENT. Post PT Agmt
Chief of Police
Discussion was held between Councilmembers and staff and each Councilmember expressed his Discussion
appreciation to Chief Garcia. Discussion was held regarding the succession plan for the position of Chief of
Police.
Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Carrillo and unanimously carried to Agreement
approve the Police Chief Part-Time Post Retirement Employment Agreement. Approved
ADOPT A RESOLUTION AUTHORIZING THE ISSUANCE OF NOT TO EXCEED $8.5 MILLION Resolution
AGGREGATE PRINCIPAL AMOUNT CITY OF AZUSA COMMUNITY FACILITIES DISTRICT NO Issuance of
2002-1 (SPECIAL TAX REFUNDING BONDS SERIES 2011) APPROVING THE EXECUTION AND CDF Special
DELIVERY OF AN INDENTURE A BOND PURCHASE AGREEMENT AND THE PREPARATION Tax Refunding
OF AN OFFICIAL STATEMENT AND OTHER MATTERS RELATED THERETO Bonds 2011
City Manager Delach addressed the item stating that although the bond market has not improved,the Bond City Mgr
Counsel,Urban Futures,has taken a reduction in their fees to insure a minimum savings of no less than$170 Comments
a year per resident of Mountain Cove for paying into the Community Facilities District.
Administrative Services Director-Chief Financial Officer Kreimeier addressed the item stating that the total Admin Svs Dir
savings over the life of the bonds is nearly$1.4 million,or,on average,approximately$66,000 annually.He CFO Comments
provided four factors for the refinancing as follows: 1) volatility of the interest rate market; 2) highly
competitive interest rates assigned to the bonds in 2002; 3) limited window of opportunity for the City to
execute a current refunding, and 4)desire to lock in savings for the property owners now,staff recommends
a lightly lower saving target of 2750°/x. He stated that saving from the refinancing will lower the special tax
for each resident within the Mountain Cove subject to the CFD assessment.
Councilmember Macias offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AUTHORIZING THE Res. 11-C44
ISSUANCE OF SPECIAL TAX REFUNDING BONDS FOR CITY OF AZUSA COMMUNITY authorizing
FACILITIES DISTRICT NO. 2002-1 IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED refinancing of
$8,500,000 AND APPROVING CERTAIN DOCUMENTS AND TAKING CERTAIN OTHER ACTIONS the CFD 2002-1
IN CONNECTION THEREWITH. Special Tax
Bonds
Moved by Councilmember Macias, seconded by Councilmember Carrillo to waive further reading and Mountain
adopt. Resolution passed and adopted by the following vote of the Council: Cove
AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE -
The CONSENT CALENDAR consisting of Items D-1 through D-6 was approved by motion of Consent Cal
Mayor Pro-Tem Hanks, seconded by Councilmember Gonzales and unanimously carried with the exception D-1-6
of item D-4,which was considered under the Special Call portion of the Agenda. D-4 Spec Call
I. The minutes of the regular meeting of June 6,2011,were approved as written. Min appvd
2. HUMAN RESOURCES ACTION ITEMS. Approved
Human Resources Action Items were approved as follows: Human Res
Merit Increase: S.Jauregui,J.Gasca,D.Ursua,and G.Espinoza Action Items
3. In accordance with Sections 2-523 and 2-524, under Article VII, Bidding and Contracting, Blanket P.O.
of the Azusa Municipal Code,approval was given the issuance of Blanket Purchase Orders FY2011-12
in an amount of$10;000 or more,FY 2011-12. Approved
4. SPECIAL CALL ITEM. - Spec Call
06/20/11 PAGE FIVE
5. Staff was authorized to award the Safe Routes to School Project No. SRTSL-5112(011) to TSR Safe Routes i
Construction and Inspection. TSR Construct.
6. The following resolution was adopted and entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA ALLOWING CERTAIN Res. I 1-C46
CLAIMS AND DEMANDS AND SPECIFYING THE FUNDS OUT OF WHICH THE SAME Warrants
ARE TO BE PAID.
SPECIAL CALL.ITEM Spec Call Item
4. RESOLUTION APPOINTING ROBERT DONNELSON TO THE PLANNING COMMISSION. Ping Com Appt
Mayor Pro-Tem Hanks addressed the item congratulating Bob Donnelson on his appointment to the K.Hanks
Planning Commission,and also thanked the candidates who applied for the position. Comments
Councilmember Carrillo offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA APPOINTING ROBERT Res. 11-C45
DONNELSON TO THE PLANNING COMMISSION. appointing R.
Donnelson to
Moved by Councilmember Carrillo,seconded by Mayor Pro-Tem Hanks to waive further reading and adopt. the Planning
Resolution passed and adopted by the following vote of the Council: Commission
AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
NOES: COUNCILMEMBERS: NONE -
ABSENT: COUNCILMEMBERS: NONE
THE CITY COUNCIL CONVENED JOINTLY WITH THE REDEVELOPMENT AGENCY AT Cnct Convened
9:37 P.M.TO DISCUSS THE FOLLOWING: Jointly w/CRA
JOINT CITY AND AGENCY ITEM.
REDEVELOPMENT AGENCY ADMINISTRATION/ADVANCE FROM THE CITY. CRA Admin
Advance from
Resolutions authorizing an advance of$1,563,290 from the City's General Fund to the Redevelopment City
Agency,and execution of the Note,were approved.
Director Gonzales offered a Resolution entitled:
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA REQUESTING A Res. 11-R29
LOAN FROM THE CITY OF AZUSA FOR PURPOSES OF THE MERGED REDEVELOPMENT (Agency)
PROJECT AREA, Request Loans
Merged
Moved by Director Gonzales, seconded.by Director Hanks to waive further reading and adopt. Resolution Redevelopment
passed and adopted by the following vote of the Agency: Project Area
AYES: DIRECTORS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
NOES: DIRECTORS: NONE
ABSENT: DIRECTORS: NONE
Mayor Pro-Tem Hanks offered a Resolution entitled:
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AUTHORIZING LOANS FOR Res.l LC47,
PURPOSES OF THE MERGED REDEVELOPMENT PROJECT AREA. (City)
Authorizing
Moved by Mayor Pro-Tem Hanks,seconded by Councilmember Carrillo to waive further reading and adopt. Loans
Resolution was passed and adopted by the following vote of the Council: Merged
Redevelopment
AYES: COUNCILMEMBERS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA Project Area
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
THE CITY COUNCIL RECESSED AND THE REDEVELOPMENT AGENCY CONTINUED AT Cnel Recess
9:43 P.M. THE REDEVELOPMENT AGENCY ADJOURNED AND THE CITY COUNCIL CRA Adjourn
RECONVENED AT 9:44 P.M. - Cncl
Reconvened
It was consensus of Councilmembers to adjourn in memory of the City of Azusa's Customer Service Adjourn in
Representative Jenny Pryor. - Memory of
Jenny Pryor
06/20/11 PAGE SIX
4 TIME OF ADJOURNMENT: 9:45 P.M.
CITY CLERK
NEXT RESOLUTION NO.2011-C48. -
NEXT ORDINANCE NO.2011-010.
06/20/11 PAGE SEVEN
CITY OF AZUSA
MINUTES OF THE CITY COUNCIL,THE
REDEVELOPMENT AGENCY AND THE
AZUSA PUBLIC FINANCING AUTHORITY
SPECIAL MEETING
MONDAY,JUNE 1,2011—6:34 P.M.
The City Council of the City of Azusa met in special session at the above date and time in the Azusa Light
and Water Conference Room located at 729 N.Azusa Avenue,Azusa.
Mayor Rocha called the meeting to order. - Call to Order
ROLL CALL Roll Call
PRESENT: COUNCILMEMBERS/DIRECTORSBOARDMEMBERS: GONZALES,
CARRILLO,MACIAS,HANKS,ROCHA
ABSENT: COUNCILMEMBERSBIRECTORSBOARDMEMBERS: NONE
Also Present
ALSO PRESENT:
City Attorney,General Counsel Carvel,City Manager/Executive Director Detach,Assistant City Manager
Makshanoff,Director of Public Works/Assistant City Manager Haes,Chief of Police Garcia,Director of
Utilities Morrow,Director of Information Management Graf,Director of Recreation and Family Services
Jacobs,Administrative Services Director-Chief Financial Officer Kreimeier,Finance Controller Paragas,
Library Director Johnson, Director of Economic and Community Development Christiansen, City
Treasurer Hamilton,City Clerk Mendoza,Deputy City Clerk Toscano.
PUBLIC PARTICIPATION Pub Part
Mr.Art Morales addressed Council requesting that funds be placed in the budget for bathroom facilities A.Morales
during ceremonies in front of City Hall,seek funds for a free swim grant program,and seek funds for a Comments
youth center to include various programs including a boxing program.
AGENDA ITEM Agenda Item
. FISCAL YEAR 20011/12 CITY, AZUSA PUBLIC FINANCING AUTHORITY, AND City/Agency/
REDEVELOPMENT AGENCY PRELIMINARY BUDGET REVIEW. APFA Budget
Review
City Manager/Executive Director Delach presented the proposed budget providing an overview,stating City Mgr Delach
that balanced budget may have to be done with reserves or one time monies,the total budget increaseover Comments
the past three years is three percent, there has been significance saving in workers compensation,but
liability costs have increased due to claims against the City,there have been no service cuts and the budget
does not include any revenues from increased mining operations or unapproved projects.
Administrative Services Director-Chief Financial Officer Kreimeier addressed the issue providing Budget A.Kreimeier
Background i.e.maintaining service levels,economy—impact on revenues,historic low interest rales,CPI Presentation
3.3%April 2010 to April 2011, and the Stated Budget Crisis-Take from Cities. He talked about the Proposed Budget
Capital Improvement Program,Capital equipmentreplacement,full year of revenue from Target,Increased
PERS Costs and the sale of property. He noted that the fallowing is not funded in the budget: possible
State Budget Takeaways,Transfer to Equipment Replacements,potential costs related to current Employee
Contract Negotiations,Staffing Changes,Liability Claims costs for Major Cases.He talked about future _
issues as follows: Continued Implementation of Rosedale Project, Gold Line Extension and Parking
Structures,Proposed Development ofNew Library,Review of Application for Materials Recovery Facility
by Waste Management, Inc. He detailed the Budget Overview, General Fund Budget Summary, and -
presented charts of General Fund Balances,Expenditures by Function-General Fund,Expenditures by
Function—All Funds,and Expenditures by Funds—Major Funds. He detailed the Redevelopment Agency
Budget and Director of Economic and Community Development Christiansen responded to questions.
City Manager/Executive Director Delacb and Administrative Services Director-Chief Financial Officer Budget
Kreimeier presented each department and it's budget and responded to questions throughout the meeting, Continued
lengthy discussion was held regarding many issues and the Budget was amended to include: Parks Amendments
Maintenance Special Supplies in the amount of$2,000(volunteer supplies), Graffiti Abatement Small
Equipment in the amount of$3,000(cameras/graffiti)and Community Promotions Special Supplies in the
Amount of$4,000(Mist Account).
It was consensus of Council/Directors and Board Members to adjourn. Adjourn
TIME ADJOURNMENT:8:36 P.M.
CITY CLERK
NEXT RESOLUTION NO. 11-C36. (City)
NEXT.RESOLUTION NO. 11-1125. (Agency) - -
NEXT RESOLUTION NO. 11-P1. (Authority)
06/01/11 PAGE TWO
lop
Y
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: KERMIT FRANCIS, INTERIM DIRECTOR OF HUMAN RESOURCESIPERSONNEL OFFICER
VIA: F.M. DELACH, CITY MANAGER
DATE: JULY 5, 2011 MANAGER/*
��r
SUBJECT: HUMAN RESOURCES ACTION ITEMS
A. SEPARATION: The following separations are submitted for informational urposes.
DEPARTMENT:' "NAME' CLASSIFICATION. EFFECTIVErDATE
UTL Monica Bauer Administrative Analyst 06/16/2011
FISCAL IMPACT
There is no fiscal impact, as positions listed are funded in approved department budgets.
y{0
U
- �r"417f+UPG��P
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: MARCENE HAMILTON, CITY TREASURER
z
DATE: JULY 5, 2011
SUBJECT: CITY TREASURER'S STATEMENT OF CASH AND INVESTMENT
BALANCES FOR THE MONTH OF MAY 2011
RECOMMENDATION:
It is recommended that the Council Members receive, review, and file the City Treasurer's
Report for the City of Azusa for the month of May 2011.
BACKGROUND:
Transmitted herewith is the City Treasurer's Statement of Cash Balances for the City of Azusa
for the month of May 2011. City investments are made in accordance with the City's
Investment Policy adopted and approved with Resolution No. 05 — C16 dated, October 18, 2010
and Government Code Section 53600 et seq.
FISCAL IMPACT:
The balances of cash, investments, and projected revenues for the next six months are expected
to be sufficient to meet cash disbursement requirements of the City for at least the next six
months.
The change in total cash in bank and investments from April 30, 2011 to May 31, 2011 is a net
increase of$1,852,153.96.
-
CITY OF AZUSA TREASURER'S REPORT
Treasury Checking Accounts and Certificates of Deposit May 31, 2011
Held in Wells Fargo Bank
Prepared by: Marcene Hamilton, Treasurer
Face MaturityInterest or Balance
Coupon Description Account Number
Amount Date or CUSIP or
Rate Market Value
Checking Accounts
General Checking Account XXX-XXX1244 178,269.00
Stagecoach Sweep Account DDA XXX-XXX1244 2,409,908.62
Worker's Compensation Checking XXXX-XX0318 0.00
Flexible Reimbursement XXXX-XX5036 0.00
Payroll Checking(ZBA account) XXXX-XX1393 0.00
Police Petty Cash Fund XXX-XXX0334 189.12
Section 108
0.970% Choice FV-Public Fund Account XXX-XXX2239 30,877.05
200,000 11/14/06 3.060% FHLB 3.060 11/14/06 (Matured) 3133X6PD2 0.00
ISO Collateral Account
300,000 Every 30 Days 0.050% Certificate of Deposit XXX-XXX1658 314,200.71
1,975,001 04/07/07 3.748% Certificate of Deposit XXX-XXX2840 2,367,029.39
Covington Endowment
WFB Advantage Heritage Money Markel
Fund (rated AAAm/Aaa) WFB XXXX7554 17,246.85
Certificate of Deposit
100,000 06/29/09 1.400% Discover Bank DE Matures 5/12/14 CUSIP 254670D66 100,000.00
TOTALS 5,417,720.74
CITY OF AZUSA TREASURER'S REPORT
TREASURY INVESTMENTS May 31,2011
Prepared by: Me Bene Hamilton.Treasury
Broker Faee Amount Deseei thn Coupon Malui hlarktl Price
P Rale Date ty AaVCmip No. SNDaterol PrindpaP fCM1seg. Market Vvlue'-
City of Away Investments -AAA RatedFederA Agen<Y Banta MontM1ly)
w.ch-,Sec LQ]0,000 FFCB 225003/17/12 2.2STA OUM2 3133I0ND7 03/16139 1,999.000.DO 101.351000 2,027,020.0 `
warhovla Stu 1000.000 FHL02.25004/13/12 2.2509A 04113/12 3I33XTAW6 03116/09 999,50000 101.726000 1,01],260.00
Wadovla Sec 2,000,000 FFCB 1.600006/1]/13 1.60M4 06/17/13 313311RR6 0611)/10 2.000000.00 100.054000
x,001080.00
G;Ifmd sec 1000,000 FHLB 19150 V16113 LI50% 1116113 313370VW5 09116/10 1,000.000.00 100.079000 1,000,390.00
GIIfoMSer 11000,000 FHLB 1.]25]/28/14 1,723% 000114 313372DG6 01n0/11 1.000,00000 100.2060Y) LW;060.0
Wachovia Sec 1,000000 FHLB L25D Mafia 1250'/. 0189114 313370YK8 09 IMI)
1.000.00000 100.]50000 1.007.500.0
Wachovia Sec 1,000.000 FHLB 1.4500825/14 1.450'/. 0805/14 31337084 09R5110 100000000 100.OIOoco 1,000,100,
Washmia Sec 1.000.000 FFCB 1.450091OVI 4 1.450% MMY14 3132UC43 09132/10 1,000,00000 100018000
1,000.]00.
G;ITOM Ser 1.000,000 FFCB x.00002133115 2.000U.. 02/03/15 31331 KID MVII 1.,s M.W IW.J64"
1.00].640.
Gilford See 1,000.000 FHLB x.100 J/23/15 2.1 W1.. 0303115 313372UBS 0303111 999,000.00 100662000
L021 620.0
Gilford Sec 1,000.007 FHLB 2.185 p4/15/15 26185% 04115/15 31]]13DW9 04/IS/II 1000,000.00 102J650001,021.650.0
wacnov;,s« 1.00o.We FHLB 2.dd0 Jan0r15 z.Wo•A d4ndns 3133738re a4nau 1.000.000.00 IWss4JOB
4,Ws,s40.
Gilfard See 2,000,000 FFCB 2.9800401315 29801A 0428/15 3133ULB7 0480/10 2700040'M.00 101.054700
L021.094.00
Huggins 14000000 FHLB 2.2200489115 2.220% 0429/15 313373M Wnwii LOOO.000.00 100.351000 L003.510.
Wachovia Sec 2,000000 FHLB 2.000 Step Up to 3.300 2.0002 05118115 3133XYM 05118/10 1,998,75000 100.849000 24016198Om
Wachovia Sec L001000 FHLB 1.00o Step Up to 4% 1.0001.. 0005115 313370129 0005110 h000.000g9 1003040',50 104MM0
.00
Gilford Sec I,WOy00 FHLB 1000 Step Up m3% 1.000% iM9115 313371 N77 11119/10 1,000.0(000 100013000 1,000,130.
Gilford Sec 19000,000FFCB 2.000 II nil s 3.00014. 1103115 31331J3A9 Un3110 /000.00009 100.4460.50'
OO A60.
' Wachovia Sec 1000,000 FHLB 2.200128 05 1200% 12/21/15 3113723L6 1721/10 1000,00000 100.129000
1,001,290.
Gilford Sa 1000,000 FFCB 11300704/16 3A4P/. O]R4/Ifi 31331KFK1 0004111 LOOO,OW.00 101.317000
1.013,130.
WellsFare.Benk 1000,000 FHLB 1925 Step a 109000 1.250°/. 0506II6 31337] 54 05/16/11 LOOO,O00.00 IQ1156000
TOTAIS 1.002.560.
35,000.000 -24,994350.00
25,163,3)1.00
CUr of Arron Investmwts-- Cereifseates of Depeait-FDIC/mored
Wvdlrvia Sec 100.000.00 GE MONEY BANK 1300°A 1022/13 36159SUC3 1031/10
10.000.00 100.921008 100,921.00
Wuhovin See 100.000.00 MMIFEBANK,NA Ll00•/. IORB/U 591557FHI 1021/10
100.00000 IM 927WO 100.98.00
200.000.00 201a48.00
WFB-CITY THI RD PARTY NSTODIAL TRUST ACCT 0.13 M. I N/A N/A. NIA
I,ODO,WO.W IOU WW00 2000pW,00
Light&Water Fund-Invealmemb - AAA Rated Federal Agenry Bonds
RWa&miaS=
ted 1,215,WO.CO FHLB 2.10009106/11 1100K 119106/11 3133XTA97 03/05AN 1,215,000.00 100.530000 1231439.50
ee 1000.00.00 FHLB 1.40007112/13 1.4"A V'IY13 3133]02W] 07/12/10 I,OW,Pq^.00 100.625000
1,00625000
Glared 1,000,000,00 FHLB L690 2112/14 1.690•. 0&12114 313370G91 001Ib10 I.M.000.00 100274000
1,002.740900
ilal 2,007 OOO.00 FHLB 1.2009/13119 13Wy. 09/13/14 ]17]70859 09/13710 1000.000 CO 100.2]1000
2,0114,63000
Stt 1,000000 p0 FHL83.W01128/l4 2000'. 1120/14 ]13]813X. ONxB/II hQ'OOWCO 101.29]D'4 1011930.00See 100000000 FHLB L5001 H15114 L500% 12/15/14 3U370UH9 09115/10 LO"0. 00000 1000160_00 1,000160.00
isal 1000.000.00 FFCB 1.99031]0/15 1.990% 03gN15 31331 KF34 039041
- 1.0.13.00000 101.104000 1,011,040.
Higgins Cepieal 19000000.00 FNMA 1.005 Up3W8141 1.000Y. 13146116 LaL6FPSG8 02/16111 99sq50,)r0Dj 1W.173W0 1,001]50.
TOTA" -9315AW.00 -
9.11]500.00 9360b9950
WFB-L'&W THIRD PARTY CUSTODIAL TRUST ACCT --0.150/. N/A N/A NIA - O,Ip' IW 000000
0.0]
LAIF-CITY 'LOCAL AGENCY INVESTMENT FUND" -0413% - N/A NIA - N/A 1 4.16]a1J.97100000000 14.1673]3900
TOTAL INVESTMENTS IN FEDERAL AGENCIES;WFB INSTITUTIONAL TRUSTS,and LAIF50373,124.04 - Sa,]g9355.54
INTEREST RECEIVED FROM INVESTMENTS FISCAL YEAR-TO-DATE (From July 1,2010) -879,956.69
L'Ta- ephmm reflects Ne halero,on the lase day of the mouth or the niRonW rest"open/to yarehase a s,eun,
The"Market Value^is the ewer,once at which a reenuir,can be ceded or sold.
Treasurer Reran Mav 2011 Times RomanslS
W=Ol( 7:48PM
CITY OF AZUSA TREASURER'S REPORT
INVESTMENT INTEREST EARNINGS Thru May 31,2011
Prepared by: Marten Hand110n,Treasurer -
ScheduledScheduled Inaeost
I
n Amoam NetAmount CO�"Pe" Maturity Dal Aca/Custp No. Payment 201moll Semi-Annual Received
Schedule Interest Payment Fiscal Year to
Earning Amount pate`
City of Azusa lnyeslments - AAA Rated Federal Agency Bonds .
1000,000, 1 .1;000,000 :. 2.700%-. ' CALLED3128X9WY 7127&Int .'.0.00 .- '13,50000 11,250.00
2,000,000 2,000,000-- -3:68 - GA1LFn 31331 G159- 8/IB&v18 - T1.'0000 -36,80000 36,800.00
2;000,OUD 2,000,000. ..)1050% CALLIM )128X9XE$- -Jana-&v14- .61,000:00 30500.00 30,500.00
2;000,000 2,000,000' : 2.950°6-'' CALLED 3133XYRJl'- -.12/9&6/9-- .,9000.00 - 24,500.00 12150.00
100,000 1;000,000 - .3.000% CALLm -3133Xffi142' .923&323.' .)0;00000: 15,00000 15,000.00
11;OW,000. 1;000;000 2.300.6. -CALLED 3133XY2A2: - `IM8&428 25,000:00 12;500.00 12,500.00
1,000,000 - -999,230, 1.125'6 CA1 m 313370M 9114&d/14• S,625.DO 5;625.00 1,8]300
2000;000 3,000,000 -1,500% CALLED. ')133XYKV6 112&3126 5 -30;000.0013;00000 15,000.00
2;000;000 2,000,000 3.125%--. CALLED "3133XSM70 'I iii]-&S/IT 6250000 3135000 31,250.00
1,000,000- --1,000,000- : 2:007%- 1,111.30 T133XYPJCI 12/9''&6/9 : 20;000.00 -10,000.00 IO,000AO
2,000,000 1,99],000 2:500°6,: 'GALLED 311111 E3 . '1223&6/23 ...'50,000.00 '25,0000025,9]2.22
1,000,000 1:000;000 '2.920%' 1,111,30 71331ro1a-- _8111 F&vi I- 24 200.00 - 121 OD W 24.200.00
"1000,000 1,000,000 2.9507°°'. .CALLED '313319CX9: - B2&_ffi - '29,500.00. 147 DUD 29,500.00
i 000,000. 998,400 2.4D�_. CALLED �3133XX not : -9n4&3/24: - 24,UOU 00 12000.00 24,000.00
2,000,000 2,ong DID ' -25009..:. CALI:ED: •3129MTZ5. IM&4DI - 50,000.001. 25,00000 5,000.00
2000000 2,000,000 2.450%. -'CALLED - -31331JNMI =IV13&5/13 49,000.00 24,50:00 49;00D0O
2.000.000 ],999,000 2.2507. 02/17112 31331GN07 8116&V17 45,000.00 22.500.00 45,000.00 -
1,000,000 999,500- 2.250°6 04/13112 31=AW6 10/13&4/13 22,500.00 11.250.00 22500.0D
2,000,000 2,0110
,000 1.600% 06/17/13 11331IRk6 Ivi7&NO R.00p.00 16,00000 16.000.00
1,000,000 1000,000 1.150% 12/16/13 313370VW5 9/15&3115 5,750.00 5,750.00 5,750.00
1.000,0011 110001000 1.725% ,0728/14 ]11372DG6 128&]28 O00 0.00
1,000000 1,000,000 1250% 07n9/14 313370YM 729 or 129 4,58].]3 6,25000 4,583.33
11000,0110 1,00,000 1.450% 08125/14 313370Q84 825&225 7,250.00 7,25000 7150.00
1. 0.0 110 MOO 1.4507. 090)v14 31)3111,11 92&l2 7,25000 7,250.00 7,250.00
1,000,000 1n Unto 2.000°/. OVOv15 31]J1KBD1 BR&v2 0.00 1,000.00
1,000,000 1,Wp,WO 1.0-4.0% 0225/13 ]Il3]OIZ9 825&2125 5,000.00 S,000.00 5,000.011
1,000,000 999,000 2.100°6 0323/15 311372UBe 923&323 000 10,500.00
1,D00000 1,000,000 2.185% 04!15/15 ]]))]30009 Ia15&4115 0.00 10,925.00
110001000 1,00,000 2000% 042a15 }133738TH 1020&420 000 10.000.00
2,000000 2,DW,000 2.980% 0412a15 ]IJ)I1LHi lain&ono 59,600.00 29,80000 59.600.00
1,000,000 1,0m,000 2.2207. 0429/15 JI33l3FJ] IO129&429 0.00 I1,100.00
2.000,000 1,998,750 1.000.. OS/IB/IS 31)]X711] II/18&5/18 4,000.00 20.000.00 - 40;00600
1.000,000 1,000.000— 0-3.0% llll9lt f 31337IN77 11/19&5/19 5.000.00 5,000.00 '• - .5;000.00
1000,000 1,000,000 2.DWI/e IInVIS 31331J3A9 1123&5123 10.000.00 10.000.00 10,000.00
1000.000 110001000 2.200% I 1221/15 3133723L6 12/21&6/21 11,0W.O0 11,000.00
1,000.000 1,000,000 2440% 1 03124/16 31JJ—It 924&124 0.00 12.200.00
100,000 I,OW,O00 1.25-9.07. OSWI6 31337] S4 1026&52fi 000 6,250.00
25,000,000. - 21,996,250 ACTIVE iii ESEMENTS - "" -838358)3 536,050:00- 600,03055
City of Azusa lnvntments - Cerufinies of Deposit-FDIC Insured'
100,000.00 100,000.00 1,300•/. 1012v13 36159SUC3 1022&422 646.22 64822 64812
100,000.00 100,0011.00 1.3007. 1028113 591557FHI IOa7&4/27 646.22 64812 64822
200;000.00 - - 200,000.00 1196,14'
CITY.Wells Fargo Bonk Inatimtionel Third Parry Custodial Money Marko Account-Liquid Asset
2,000,000.00 1 0.150% I Ne. -.:NlA I : 11 y.' - Per Balance end Rale 2,974
99
Light&Water Fund Inentmmts-AAA Rated Federal Agency Bonds
3,0001300 1560A�1�.�STMEWS
000 J.p 0% 1,111.30 )1398AHBI. ]129&129 -45;000.00 45.000.00 03,000.00
3,000,000 000- 3680% QAt's an 31)31 GJ59 -8/IS&x/16 IIp,400.00 55,200.00 55,200.00
z.Wo,WO - 000 2150%- -.-CALLED 3136FHCFO 824&22A 45:000.00 22;50000 45,000.00
1;oOnOoO 000 .1.750%. CALLED. 3133]OHCS 625&'915 : 8,950:00 - 8;750.00 10,]54.11
1.215,000 000 2.100% 09/06/11 3133X A97 916&3/6 25,515.00 12,7SZ50 25,515.00
I AOQ000 ,000 1.400°6 0711913 313370200/ 7/12&1/12 7,000.00 7,OOD.00 7,000.00
1000,000 ,000 1.690% 0811v10 313370GSI S02&V12 8.450.00 81450.00 8,450.00
2.000.000 ,000 1.200% 09113/14 313370M9 9113&3/13 12.000.00 t2.000.W 12.000.Oo
],100,000 000 2.000% 1128/14 JI337NX8 826&v28 OOO 10.000.00
000 1.500% 1915/10 31J3DO 9 Ivl5&6/15 71.000,000 000 1,990% 03/30/15 31331KFJ4 9130&3130 000]'.000,000 00 1,0%Ste 0916/16 3136FPSG8 8/Ib&2/16 0.00 200!1000
9,215,000 00 ACTIN .: STMENTS 269,615.00 . 219,10750 212169.17
Light&Water Sfidca2dan-Wole Fargo Bank Institutional TLird Party Custodial Money Market Account-Liquid Asset
0.07 - 0I5D°6 N/A N/A Moodily - Per BAanceand Rene S(Zqp
CIT'-Local Agency locraament Food-Liquid Meet
14,16)31).970.413% N/A - N/A Qaankady Per Balsdceand Rata 55,8224
•Fiscal Year: Job,l-June 30 TOTAL N'TERESTEARNED VTD 879,956.69
hJ:(J)F' G
CONSENT ITEM
TO: THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JOE JACOBS, DIRECTOR OF RECREATION AND FAMILY SERVICES
VIA: F. M. DELACH, CITY MANAGER�/��
DATE: JULY 5, 2011 ���
SUBJECT: AUTHORIZATION TO PURCHASE AQUATICS THEMED CHILDREN'S SLIDE
AT SLAUSON PARK POOL
RECOMMENDATION:
It is recommended that City Council authorize the purchase of an aquatics themed children's slide at
Slauson Park pool in the amount of$18,654.00.
BACKGROUND:
The Aquatic Center was built in 1994, and will soon celebrate its 17-year anniversary. At the time,a
signature two-story water slide was constructed within the project. The amenity is well received to
this day,but only open to patrons 48"tall or greater. The aquatics theme child's slide will be placed
in the zero depth pool, allowing the younger patrons the same thrills and memories of our older and
taller patrons.
As the two-story slide was at its inception, the children's slide is a custom piece, new to this
geographical area as well. The children's slide will be purchased as a single source item with respect
to the following approved purchasing procedure as depicted below:
(d) No competitive market: when the authorized contracting party determines that a competitive
market does not exists, such as, but not limited to, with memberships in certain professional
organizations, meetings, conventions, some farms of travel, legal advertising and when the needed
supplies, services and equipment are propriety and can only be provided by one source.
The vendor is Aqua Blue International out of Cornelius, North Carolina.
FISCAL IMPACT:
Funding for 2011-12 has been secured in the Capital Outlay section of the approved 2011-12 Fiscal
Year budget and is held in account # 50-00-000-129-2719 (Kids Come First Golf Tournament
proceeds) specifically for this purpose.
I1-056
t
- C'9(lPORTilP .
AGENCY AGENDA ITEM
TO: HONORABLE CHAIRPERSON AND MEMBERS OF THE AGENCY BOARD
FROM: KURT CHRISTIANSEN, DEPUTY EXECUTIVE DIRECT
VIA: F.M. DELACH, EXECUTIVE DIRECTORJPV
���'iii
DATE: JULY 5, 2011
SUBJECT: APPROVAL OF ACCEPTANCE AND ASSUMPTION AGREEMENTS
BETWEEN THE AZUSA REDEVELOPMENT AGENCY AND
CONGREGATION ALE HOUSE AZUSA CHAPTER LLC (TALLEY
BUILDING)
RECOMMENDATION
It is recommended that the Redevelopment Agency Board adopt the following two agreements
between the Azusa Redevelopment Agency ("Agency") and Congregation Ale House Azusa
Chapter LLC ("Developer"):
1) Acceptance and Assumption of Disposition and Development Agreement—To facilitate
the transfer to Developer of the Agency's Disposition and Development Agreement
("DDA") for the property at 619-621 N. Azusa Avenue ("Talley Building")
2) Congregation Ale House Assumption of Loan Agreement — To permit Developer to
assume certain obligations associated with the Agency's original loan to Il Forno's
Restaurant for furniture, fixtures and equipment.
BACKGROUND
The Agency acquired the Talley Building in July 1989. Four years later, on October 20, 2003,
the Agency entered into a DDA with Hagop Sargisian (dba 621 Talley LLC) for $450,000 in
financial assistance for the rehabilitation of the structure. In addition to providing for the
building improvements, this Agreement also included a 30-year operating covenant.
In November of 2005, the Agency also entered into a loan agreement with Seyed S. Zaribaf
which provided $150,000 for the acquisition of furniture, fixtures and equipment for the new Il
Fomo Restaurant that was proposed for the Talley Building. This was a forgivable loan that was
to be cancelled after five years if Zaribaf remained in continuous operation. In October 2007, the
Agency granted Zaribaf an additional $70,000 loan from its Economic Development Loan
Program to provide operating capital (this loan, also forgivable, carried a three-year term).
In April of 2009, the Agency learned that the Talley Building was listed for sale. In September of
2009, staff learned that Zaribaf was also looking to sell the Il Forno Restaurant. Since that time,
the Talley Building was taken over by Boston Private Bank & Trust in a foreclosure action and
Zaribaf closed the Il Forno Restaurant. The bank has actively worked with local real estate
brokers to secure a buyer for the Talley Building.
ANALYSIS
Escrow for the sale of the Talley Building closed on Thursday, June 30, 2011. The property was
acquired by Mr. John Hale (dba Congregation Ale House Azusa Chapter LLC). In addition to
owning and managing the Talley Building, Mr. Hale intends to operate a new restaurant in place
of the now-closed Il Forno Restaurant.
Because the original DDA (and amendments) have been recorded against the property, Mr. Hale
is obliged to adhere to those terms and conditions. The City Attorney has prepared the attached
Acceptance and Assumption of Disposition and Development Agreement to facilitate the change
of ownership.
Also, since Mr. Hale is proposing to open a new restaurant in place of Il Forno, and since the
terms of the original Agency loan with Zaribaf for furniture, fixtures and equipment have not
been fulfilled, the City Attorney has prepared the attached Congregation Ale House Assumption
of Loan Agreement to insure that the Agency's investment is protected. This new Agreement is
for 24 months and establishes a current value of $60,000 for the furniture fixtures an
d
equipment that Mr. Hale will be assuming.
FISCAL IMPACT
There are no direct fiscal impact on the Agency of the two assumption agreements.
Attachments:
1. Acceptance and Assumption of Disposition and Development Agreement
2. Congregation Ale House Assumption of Loan Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The Redevelopment Agency of
the City of Azusa
213 E. Foothill Blvd,
Azusa, CA 91702-1295
Attn: Executive Director
Exempt from Recording Fee
per Government Code 27383
(Space above for Recorder's Use)
ACCEPTANCE AND ASSUMPTION OF
DISPOSITION AND DEVELOPMENT AGREEMENT
This ACCEPTANCE AND ASSUMPTION OF DISPOSITION AND DEVELOPMENT
AGREEMENT (the "Agreement") is entered into as of July 5, 2011, by and between THE
REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body, corporate and
politic, assignor ("A enc "), and CONGREGATION ALE HOUSE AZUSA CHAPTER LLC, a
California limited liability company ("Developer").
RECITALS:
A. On or about November 11, 2003, Agency and 621 Talley, LLC entered into
the Talley Building Disposition and Development Agreement (DDA), on or about May 17, 2004,
Agency and Developer entered into Amendment No, 1 to the DDA, on or about February 7,
2005, Agency and Developer entered into Amendment No, 2 to the DDA and on or about
November 3, 2006, Agency and Developer entered into the Third Amended and Restated
DDA concerning that real property identified on the attached Exhibit "A," the Property.
The original DDA and subsequent amendments No. 1, No. 2 and No. 3 are each attached
hereto and incorporated herein by reference as Exhibit "B" and are hereafter collectively
referred to as the DDA.
B. In December 2009, 621 Talley LLC was served a Notice of Default and Election
to Sell Under Deed of Trust and ultimately lost the property to its lender. The DDA remained as
an encumbrance on the Property and its terms, conditions and restrictions shall continue to apply
to the Property until the end of the DDA's term.
C. Congregation Ale House Azusa Chapter LLC (Developer) desires to acquire the
Property. In exchange for the benefits of the DDA and Agency's approval of Developer to
operate on the Property, Developer desires to acknowledge its acceptance and assumption of the
assignment of the DDA pursuant to this Agreement and accepts the terms, conditions and
restrictions of the DDA
NOW THEREFORE, in consideration of the foregoing recitals which by this reference
are incorporated herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Agency and Developer agree and represent as follows:
1. Acceptance. Developer hereby assumes all of 621 Talley's right, title and
interest in and to the DDA, and obligations pursuant to the DDA, including all past, present and
future rights obligations and restrictions (the "Acceptance").
2. Representations. Developer hereby represents and warrants that Developer (i) has
full power and authority to accept the right, title and interest in, and obligations under, the DDA
and will not in the future contest such acceptance and (ii)has full power and authority to enter
into this Agreement.
3. Assumption. Developer, for itself and its successors and assigns, hereby assumes
and agrees to perform and be bound by all of the covenants, agreements, provisions, conditions
and obligations of the Developer in the DDA.
4. Further Actions. The parties each, jointly and severally, covenant to take such
further actions as may be necessary to effect the acceptance of the DDA, including, but not
limited to the acceptance of any other agreements that may affect the subject of the DDA.
5. Effect of this Agreement. Except as expressly modified by this Agreement, the
DDA shall continue in full force and effect according to its terms. In the event of a conflict
between the terms of the DDA and this Agreement, this Agreement shall govern. This
Agreement shall not be construed as (i) conferring upon Agency or Developer any greater rights
than those contained in the DDA, (ii) diminishing any rights under the DDA, or (iii) modifying
the DDA in any respect.
6. Entire Agreement. This Agreement, when taken together with the DDA, shall be
deemed to constitute the entire understanding and agreement of the parties with regard to the
subject matter hereof.
7. Notice Address. Any notices required under the DDA shall be effective when
served on Assignee as set forth in Section 13.08 of the DDA at the addresses set forth below:
If to Developer: Congregation Ale House Azusa Chapter LLC
Attn: Richard T. Hale
513 S. Myrtle Avenue, Suite A
Monrovia, CA 91016
Facsimile:
2
If to Assignor: Redevelopment Agency of the City of Azusa
Attn: Executive Director
213 E. Foothill Blvd.
Azusa, CA 91702
Facsimile: (626)
8. Authoritv. Each signatory of this Agreement represents hereby that he or she has
the authority to execute and deliver the same on behalf of the party hereto for which such
signatory is acting.
9. Counterparts. This Agreement may be executed in counterparts and shall
constitute an agreement binding on all parties notwithstanding that all parties are not signatories
to the original or the same counterpart provided that all parties are furnished a copy or copies
thereof reflecting the signature of all parties.
[SIGNATURES ARE ON FOLLOWING PAGE]
3
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement on the
day and year first above written.
DEVELOPER:
CONGREGATION ALE HOUSE AZUSA CHAPTER
LLC, a California limited liability company
By:
Name: Richard T. Hale
Title:
ATTEST
APPROVED AS TO LEGAL FORM:
Attorneys for Developer
REDEVELOPMENT AGENCY OF THE CITY OF
AZUSA, a public body, corporate and politic
By:
Name: Francis Delach
Title: Executive Director
ATTEST
APPROVED AS.TO LEGAL FORM:
BEST BEST&KRIEGER LLP
Agency Counsel
4
Exhibit A
To the Acceptance and Assumption of Disposition and
Development Agreement
Legal Descriptions
Breezeway Parcel
The land referred to herein is situated in the County of Los Angeles, State of California, and is
described as follows:
Lot 41, in Block 37 of Azusa Tract as recorded in the Miscellaneous Records, Book 15,
Page 93 through 96.
Talley Parcel
The land referred to herein is situated in the County of Los Angeles, State of California, and is
described as follows:
Lots 42 and 43,in Block 37 of Azusa Tract as recorded in the Miscellaneous Records,Book
15, Page 93 through 96.
Exhibit B
To the Acceptance and Assumption of Disposition and
Development Agreement
See Attached
�pj57, � ,
This page is part of your document- DO NOT DISCARD
04 0723858
RECORDEDIFILED IN OFFICIAL RECORDS
RECORDER'S OFFICE
r., LOS ANGELES COUNTY
leo CALIFORNIA
9:21 AM MAR 26 2004
TITLE(S)
IIIIIIIII0�1���II�II�IIII�OII�I��lllil
L E A D S H E E T
FEE D.T.T
FREE
ReCEIVED
CODE
20 APR 2 8 2004
CODE REDEVELOP r 07USA
19 MENTAGENCy
CODE
9
Assessor's Identification Number (AIN)
To be completed by Examiner OR Title Company in black ink. Number of AIN's Shown
THIS FORM NOT TO BE DUPLICATED
RECORDING REQUESTED BY AND
WREN RECORDED MAIL.TO: 04 0723858
The Redevelopment Agency
of the City of Azusa
Attn:Executive Director
213 E. Foothill Blvd.
Azusa, CA 91702-1295
Exempt from Recording Fee per
Government Code'2 73 83
(Space above for Recordees Use)
TALLEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT
between
THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA
a California public agency
and
621 Talley LLC
a California Limited Liability Company
Y:\Agenoy%TaB_y Bw1&ng\TeDey333)A_io08o3 with w=cfiomdoc
ORIGINAL
ARTICLE 1. EFFECTIVE DATE; PARTIES; DEFINITIONS
1.1 Effective Date of Agreement. This Talley Building-Disposition and Development
Agreement ("Agreement") is dated as of the 11th day of November 2003, for reference purposes
only. This Agreement will not become effective until the date("Effective Date")on which all ofthe
following are true:
(i) This Agreement has been approved and executed by the appropriate
authorities of the Developer,as defined in Section 1.2.21,and this Agreement
has been delivered to the Agency;
(ii) Following all legally required notices and hearings,this Agreement has been
approved by the Agency's governing board and the City Council(acting as the
Agency's legislative body); and
(iii) This Agreement has been executed by the appropriate authorities of the
Agency and delivered to Developer.
If this Agreement has been approved and executed by the Developer and delivered to
the Agency as provided in(i)above,but the Agency fails to approve and/or deliver this Agreement
as described in (iii) and (iv) above by December 4, 2003, then this Agreement shall not become
effective and any prior signatures and approvals of the Parties will be deemed void and ofno force or
effect This Agreement shall be recorded against the Property at any time following the Effective
Date.
1.2 Parties to Agreement.
1.2.1 The Agency. The address of the Agency is 213 E.Foothill Blvd.,Azusa,CA
91702-1295;telephone 626-812-5200;facsimile 626-334-5464,with copies to Best Best&Krieger
LLP, P.O. Box 1028, 3750 University Avenue, Suite 400,Riverside, CA 92501,Attention: Azusa
Redevelopment Agency Counsel, facsimile(909) 686-3083.
"Agency,"as used in this Agreement,means THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA,a California public agency,and any nominee,assignee of,or successor
to its rights,powers and responsibilities.
I All article and section references are to articles and sections of this Agreement unless
otherwise stated.
Y:\Ageney�TaBLy B"0ding,TnBeyDDtt1""Bo3,%;u,mnweomdm -1- 04 0723858
L/
Agency represents and warrants to Developer that, to the Agency's actual current
knowledge:
(i) The Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under
the California Community Redevelopment Law(California Health&
Safety Code Section 33000, et seg.)("CRL");
(ii) The Agency has taken all actions required by law to approve the
execution of this Agreement;
(iii) The Agency's entry into this Agreement and/or the performance of the
Agency's obligations under this Agreement does not violate any
contract, agreement or other legal obligation of the Agency;
(iv) The Agency's entry into this Agreement and/or the performance of the
Agency's obligations under this Agreement does not constitute a
violation of any state or federal statute or judicial decision to which
the Agency is subject;
(v) There are no pending lawsuits or other actions or proceedings that
would prevent or impair the timely performance of the Agency's
obligations under this Agreement;
(vi) The Agency has the legal right,power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby,
and the execution, delivery and performance of this Agreement has
been duly authorized and no other action by Agency is requisite to the
valid and binding execution, delivery and performance of this
Agreement, except as otherwise expressly set forth herein;
(vii) The individual executing this Agreement is authorized to execute this
Agreement on behalf of the Agency; and
• (viii) This Agreement constitutes a legal, valid and binding agreement of
the Agency,enforceable in accordance with its terms.
The representations and warranties set forth above are material consideration to the
Developer and the Agency acknowledges that the Developer is relying upon the representations set
Y:\,lgeoeyUaBey Bwlding\lalleyDDA_iocaog_with eortee mdoc -2- 04 0723858
S
forth above in undertaking the Developer's obligations set forth in this Agreement The Agency's
representations and warranties shall survive the Close of Escrow(as herein defined below)and shall
not be deemed merged with the Grant Deed
The term "Agency's actual current knowledge" means, and is limited to,the actual
current knowledge of the Agency's Executive Director as of the Effective Date without having
undertaken any independent inquiry or investigation for the purpose of making such representation or
warranty and without any duty of inquiry or investigation.
All of the terms,covenants and conditions of this Agreement shall be binding on and
shall inure to the benefit of the Agency and its nominees, successors and assigns.
1.2.2 The Developer. The Developer is 621 Talley LLC, a California Limited
Liability Company. The address of the Developer for purposes of this Agreement is 280 S.Beverly
Drive, Penthouse, Beverly Hills, California, 90212-3906 telephone (310) 888-3222; facsimile
(310) 888-4046
Developer represents and warrants to Agency that,to the Developer's actual current
knowledge:
(i) The Developer 5s a duly formed and existing California Limited
Liability Company and is in good standing and qualified to do
business under the laws of the State of California;
(ii) The individual(s) executing this Agreement is/are authorized to
execute this Agreement on behalf of the Developer,
(iii) The Developer has taken all actions required by law to approve the
execution of this Agreement;
(iv) The Developer's entry into this Agreement and/or the performance of
the Developer's obligations under this Agreement does not violate any
contract, agreement or other legal obligation of the Developer;
(v) The Developer's entry into this Agreement and/or the performance of
the Developer's obligations under this Agreement does not constitute
a violation of any state or federal statute or judicial decision to which
the Developer is subject;
04 0723858
Y.-Wmry\raDey Bm'Iding\raDeyDDA ioO8o3_i4th WMCdons.dM -3-
(vi) There are no pending lawsuits or other actions or proceedings that
would prevent or impair the timely performance of the Developer's
obligations under this Agreement; and
vii) The Developer has the legal right, power and authority to enter into
this Agreement and to consummate the transactions contemplated
hereby, and the execution, delivery and performance of this
Agreement have been duly authorized and no other action by
Developer is requisite to the valid and binding execution, delivery
and performance of this Agreement,except as otherwise expressly set
forth herein.
The representations and warranties set forth herein are material consideration to the
Agency and the Developer acknowledges that the Agency is relying upon the representations set
forth above in undertaking the Agency's obligations set forth above.
The term"Developer's actual current knowledge"means,and is limited to,the actual
current knowledge of Hagop Sargisian as of the Effective Date without having undertaken any
independent inquiry or investigation for the purpose of making such representation or warranty and
without any duty of inquiry or investigation.
All of the terms,covenants and conditions of this Agreement shall be binding on and
shall inure to the benefit of the Developer and its permitted nominees, successors and assigns.
Wherever the term "Developer" is used herein or therein, such term shall include any permitted
nominee, assignee or successor of the Developer.
The qualifications and identity of the Developer are of particular concern to the
Agency, and it is because of such qualifications and identity that the Agency has entered into this
Agreement with the Developer. No voluntary or involuntary successor-in-interest of the Developer
shall acquire any rights or powers under this Agreement except as expressly set forth herein. Prior to
the earlier of the tenth(10'h)anniversary of the Close of Escrow(defined below),the Developer may
not assign or transfer all or any part of this Agreement or the Property(hereinafter defined)without
the prior written approval of the Agency,which shall be given,withheld or condition as provided in
Sections 3.4.15 and 3.4.17.
04 0723858
Y:\Agency\TaBcy Building\TacyDDAtiooBo3 with wrmcbi ns.doc -4-
1.23 Agency and Developer are sometimes individually referred to herein as
"Party" and collectively as "Parties."
ARTICLE 2. RECITALS ABOUT THE PLAN AND PROJECT
2.1 The Redevelopment Plan and Project Area. The City Council of the City of Azusa
("City") has approved and adopted a redevelopment plan ('Redevelopment Plan") for the
redevelopment project area known as the Merged Central Business DistrictfWest End Project Area
("Project Area")by its adoption of Ordinance No. 23 82 on November 7, 1988. The original Central
Business District Redevelopment Plan, amended seven (7) times, was originally approved by
Ordinance No. 2062 on September 18, 1978. The original West End Redevelopment Plan was
approved by Ordinance No. 2196 on November 28, 1983. This Agreement is subject to the
provisions of the Redevelopment Plan as it now exists and as it maybe subsequently amended. The
Redevelopment Plan is incorporated by this reference.
The Project Area is located in the City of Azusa, California; its boundaries are specifically
described in the Redevelopment Plan.
2.2 Purpose of this Agreement. This Agreement and the Exhibits attached hereto
implement the Redevelopment Plan for the Project Area by providing for the disposition and
development of real property in the City of Azusa as more specifically described in the Scope of
Development (Exhibit B attached hereto ("Development'). The development of the Property
pursuant to this Agreement is in the best interests of the City and Agency and the health, safety,
morals and welfare of its taxpayers and residents and is in accordance with public purposes set forth
in federal, state and local law and regulation. Implementation of this Agreement will further the
goals and objectives of the Redevelopment Plan and the City's General Plan by strengthening the
City's land use and social structure and by alleviating economic and physical blight within the Project
Area-
ARTICLE
reaARTICLE 3. ACQUISITION, CONVEYANCE AND DEVELOPMENT
3.1 The Property. The subject property consists of the Breezeway Parcel and the Talley
Parcel,totaling approximately 10,498 square feet of land,more or less, and Iocated at 617-621 N.
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Azusa Avenue, in the City of Azusa, California 91702 (the "Property"). The Property is legally
described on the attached Exhibit A.
3.1.1 Breezeway Parcel. The first parcel,located at 617 N.Azusa Avenue,Azusa
California 9I 702(Assessor Parcel No. 8611-004909)shall be referred to as the"Breezeway Parcel".
The Breezeway Parcel lot is approximately 3,498 square feet, more or less, and is currently
improved witb a 2,880 square foot,two story building(the'Breezeway Building").The Breezeway
Parcel is currently owned by the Azusa Valley Water Company,
3.1.2 Talley Parcel. The second parcel, located at 619-621 N. Azusa Avenue,
Azusa California 91702(Assessor Parcel Nos. 8611-004-900 and 8611-004901)shall be referred to
as the"Talley Parcel'', The Talley Parcel lot is approximately 7,000 square feet,more or less,and is
currently improved with a 7,200 square foot, two story, brick building (the "Existing Talley
Building"). The Talley Parcel is currently owned by the Agency.
3.2 Phase I—Acquisition of Breezeway Parcel.
The Scope of Development includes three(3)phases of Development. Each such phase will
be individually referred to herein as a"Phase"and collectively as"Phases"and will be numbered to
correspond to the requirements described in the Scope of Development, i.e., Phase I, Phase U and
Phase Ul.
In accordance with the time frame set forth in the Schedule of Performance,the Agency shall
undertake reasonable and good faith efforts to obtain title to the Breezeway Parcel sufficient to
enable Developer to perform its development obligations in accordance with the terms of this
Agreement Such conveyance from Azusa Valley Water Company to the Agency shall be and is
hereby expressly made a condition to the Close of Escrow,defined below.Failure of the Agency to
acquire the Breezeway Parcel in accordance with this Section 3.2 shall not constitute an Event of
Default on the part of the Agency, but shall entitle either or both party(ies) to terminate this
Agreement without liability of any kind in accordance with Section 3.3.13 hereof.
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33 Phase 11—Conveyance of Talley Parcel; Lease of Portion of Breezeway Parcel.
In accordance with and subject to all the terms, conditions and covenants of this Agreement, the
Agency agrees to convey fee simple defeasible title to the Talley Parcel to Developer as more
specifically set forth in the grant deed attached bereto as Exhibit D ("Grant Deed"),and Developer
agrees to acquire such title from Agency pursuant to this Agreement,as more fiilly set forth below.
3.3.1 Consideration. In consideration of Developer's obligation to undertake the
Development in accordance with this Agreement,the Agency shall convey to Developer the Talley
Parcel.
33.2 .[Intentionally Left Blank.)
33.3 Escrow.
333.1 Opening of Escrow. Within the time period set forth in the
Schedule of Performance(Exhibit C),the Agency and Developer shall open an escrow("Escrow")
for the conveyance of the Talley Parcel with First American Title Company("Escrow Holder"),at a
location mutually agreeable to the Parties. For purposes of this Agreement, the Escrow shall be
deemed open on the date Escrow Holder shall have received a fully executed original or originally
executed counterparts of this Agreement from Agency and Developer("Opening of Escrow"),and
Escrow Holder shall notify Agency and Developer,in writing,of the date Escrow is opened. Agency
and Developer acknowledge and agree that the Opening of Escrow shall occur within five (5)
business days following the Effective Date. This Agreement constitutes the joint basic escrow
instructions ofthe Agency and the Developer for the conveyance ofthe Talley Parcel,and a duplicate
original of this Agreement shall be delivered to the Escrow Holder upon the Opening of Escrow.
Agency and Developer agree to execute, deliver and be bound by any reasonable or customary
supplemental or additional escrow instructions("Additional Instructions")of Escrow Holder or other
instruments as may be reasonably required by Escrow Holder in order to consummate the transaction
contemplated by this Agreement. Any such Additional Instructions shall not conflict with,amend or
supersede any portions of this Agreement unless expressly consented or agreed to in writing by
Agency and Developer.
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3.33.2 Close of Escrow. "Close of Escrow"or"Closing"means the
recordation of the Chant Deed (defined herein) in Los Angeles County Official Records. Close of
Escrow shall occur on or before August 30, 2004("Outside Closing Date"),provided that Agency
and Developer may,but shall not be obligated to,close the Escrow upon such earlier date as Agency
and Developer mutually agree to in writing. The Closing shall be subject to the 'satisfaction or
written waiver of all conditions precedent thereto. The Agency and the Developer agree to perforin
all acts necessary for the conveyance in sufficient time for title to be conveyed by the Outside
Closing Date. Agency and Developer may mutually agree to change the Outside Closing Date by
joint written notice to Escrow Holder.
33.4 Condition of Title. It shall be a condition to the Close of Escrow for
Developer's benefit that title to any portion of the Talley Parcel conveyed to Developer pursuant to
this Agreement shall be subject only to the following conditions and exceptions to title("Approved
Condition of Title"):
3.3.4.1 A lien to secure payment of general and special real property
taxes and assessments,if any,not delinquent;
33.4.2 The lien of supplemental taxes assessed pursuant to Chapter
3.5 commencing with Section 75 of the California Revenue
and Taxation Code;
33.43 Matters affecting the condition of title created by or with the
consent of Developer,
33.4.4 All exceptions that are disclosed by the "Title Report"
described in Section 3.3.16 that are approved or deemed
approved by Developer as provided therein;
3.3.4.5 All matters that would be shown by an accurate survey of the
Talley Parcel or by a physical inspection ofthe Talley Parcel;
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33.4.6 Any and all casements,documents and/or memoranda that are
recorded against the Talley Parcel upon the Close of Escrow
pursuant to the terms and conditions of this Agreement;
3.3.4.7 All applicable laws, ordinances, Hiles and governmental
regulations (including, but not limited to, those relative to
building,zoning and land use)affecting the development,use,
occupancy or enjoyment of the Talley Parcel; and
3.3.4.8 Conveyance of title in the Breezeway
Parcel from Azusa Valley Water Company to Agency.
33.5 Title Policy. Title shall be evidenced by the willingness of First American
Title Company("Title Company")to issue its CLTA Owner's Form Policy of Title Insurance and its
CLTA Lender's Form Policy of Title Insurance(collectively, "Title Policy") in the amount of One
Hundred Fifty Eight Thousand dollars ($158,000) showing title to the Talley Parcel vested in
Developer, subject only to the Approved Condition of Title. The premium for the CLTA Owner's
Form Policy Title Insurance shall be paid by Developer and the premium for the CLTA Lender's
Form Policy of Title Insurance shall be paid by Agency. Dbveloper may, at its option,request an
Extended Coverage ALTA Owner's Form Policy of Title Insurance("ALTA Policy")provided that
the issuance of said ALTA Policy does not delay the Close of Escrow. Any additional costs
including,but not limited to,title and endorsement fees and survey fees incurred in connection with
the issuance of such ALTA Policy shall be Developer's sole responsibility. The issuance by Title
Company of the Title Policy or ALTA Policy in favor of Developer insuring fee title to the Talley
Parcel in the amount of One Hundred Fifty Eight Thousand dollars($158,000), subject only to the
Approved Condition of Title, shall be conclusive evidence that Agency has complied with any
contractual or statutory obligation,express or implied,to convey to Developer good and marketable
title to the Talley Parcel.
3_3.6 Conditions to Close of Escrow.
33.6.1 Developer's Conditions. Developer's obligation toaccepttitle
to the Talley Parcel and pay the Purchase Price is subject to the satisfaction of the following
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conditions for Developer's benefit(or Developer's waiverthereot it being agreed that Developer may j
waive any or all of such conditions) on or prior to the Outside Closing Date:
3.3.6.1.1 The Agency shall have deposited into Escrow the
Grant Deed and all other documents and funds
required of it under this Agreement;
33.6.1.2 The Escrow Holder shall have received a commitment
from the Title Company to issue the Title Policy or an
ALTA Policy, as applicable, for the Talley Parcel
pursuant to this Agreement, subject only to the
Approved Condition of Title;
3.3.6.1.3 The City and the Agency shall have approved a
specific plan for the Development (which may
include surrounding properties pursuant to
Government Code Section 65450, et seq.) and those
development applications, entitlements and permits
required for Phase III, in accordance with this
Agreement and all applicable local, state and federal
laws and regulations including, without limitation,
environmental approvals related thereto and all
applicable judicial and administrative challenge
periods with respect thereto shall have expired;
3.3.6.1.4 The Agency and/or City, as applicable, shall have
taken all actions and issued such approvals as legally
required pursuant to provisions of the California
Environmental Quality Act ("CEQA") as pre-
conditions to the approval of the Development and all
applicable judicial and administrative challenge
periods have expired;
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33.6.1.5 The Developer shall have approved or been deemed to
have approved the environmental condition and
condition of title of the Talley Parcel, as set forth in
more detail in Section 3.3.1 5 and Section 3.3.16;
3.3.6.1.6 All representations and warranties of the Agency
hereunder shall be true as of the Effective Date and
beyond and as of the Close of Escrow and shall
continue thereafter for the full statutory period; and
33.6.1.7 The Developer shall have approved Escrow Holder's
estimated closing costs statement
33.6.2 Agency's Conditions. Agency's obligation to convey the
Talley Parcel is subject to the satisfaction of the following conditions for Agency's benefit (or
Agency's waiver thereof,it being agreed that Agency may waive any or all of such conditions)on or
prior to the Outside Closing Date:
33.6.2.1` The City and the Agency shall have approved those
development applications, entitlements and permits
required for Phase III, in accordance with this
Agreement and all applicable local, state and federal
laws and regulations including, without limitation,
environmental approvals related thereto and all
applicable judicial and administrative challenge
periods with respect thereto shall have expired;
3.3.6.2.2 Developer shall have furnished to the Agency
satisfactory evidence,in the Agency's sole discretion,
of the Developer's ability to finance the acquisition,
construction and operation of the Development in a
form approved by the Agency. The evidence of said
financing may include,without limitation:(a)a letter
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i
of commitment from a reputable lending institution
approved by the Agency pursuant to Section 3.4.15,
evidencing that institution's agreement to loan funds
to acquire the Talley Parcel and construct the
Development; and/or(b)evidence of the Developer's
ability to self-finance the acquisition,construction and
operation of the Development;
33.6.23 The Developer shall have tendered into Escrow all
funds and documents required of it pursuant to this
Agreement;
33.6.2.4 The Developer shall have completed in a timely
fashion all of its obligations that are to be completed
prior to the Close of Escrow as provided in this
Agreement and the Schedule of Performance;
33.6.2.5 The Escrow Holder shall have received a commitment
from the Title Company to issue the Title Policy or an
ALTA Policy, as applicable, for the Talley Parcel, '
subject only to the Approved Condition of Title;
3.3.6.2.6 The Agency and/or City, as applicable, shall have
taken all actions and issued such approvals as legally
required pursuant to provisions of the California
Environmental Quality Act ("CEQA") as pre-
conditions to the approval of the Development;
3..3.6.2.7 All representations and warranties of the Developer
hereunder shall be true as of the Effective Date and
beyond and as of the Close of Escrow and shall
continue thereafter for the full statutory period; and
33.6.2.8 The Agency shall have approved Escrow Holder's
estimated closing costs statement; and
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33.6.2.9. The Developer shall have provided to Agency the
insurance endorsements required by Section 3.4.9
hereof-, and
33.61.10. The City's Planning Commission shall have provided
or be deemed to have provided a determination of `
consistency with the City's general plan pursuant to
Government Code Section 65402 and any other
entities affiliated with the City with jurisdiction over
the Development shall have approved the
Development; and
33.6.2.11. Conveyance of title in the Breezeway Parcel from
Azusa Valley Water Company to Agency.
3.3.7 Developer Payments and Documents. At least one(])day prior to Closing,
the Developer shall pay or tender(as applicable)to the Escrow Holder the following documents(in
recordable form, as necessary),fees, charges and costs:
33.7.1 The Purchase Price;
33.7.2 One-half(2)of the escrow fees,recording fees and notary fees
attributable to the conveyance of the Talley Parcel;
3.3.73 The premium for any ALTA Policy and any charges for
survey or other endorsements required as set forth in Section
3.3.5 of this Agreement;
3.3.7.4 The prorated amount of ad valorem taxes,if applicable,upon
the Talley Parcel with respect to the period subsequent to
transfer of title;
3.3.7.5 Any additional changes customarily charged to buyers in
accordance with common escrow practices in Los Angeles
County; and
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33.7.6 Such other documents and instruments required by the
Escrow Holder in the performance of its contractual or
statutory obligations.
33.8 Agency Payments and Documents. The Agency shall pay or tender (as
applicable)to the Escrow Holder the following documents(in recordable form,as necessary),fees,
charges and costs promptly after the Escrow Holder has notified the Agency of the amount of such
fees, charges and costs:
3.3.8.1 One-half(2)of the escrow fees,recording fees and notary fees
attributable to the conveyance of the Talley Parcel;
33.8.2 The premium for the Title Insurance Policy to be paid by the
Agency as set forth in Section 3.3.5 of this Agreement;
33.83 The prorated amount of ad valorem taxes,if applicable,upon
the Talley Parcel with respect to the period prior to transfer of
title;
33.8.4 Any state,county or city documentary transfer taxes or stamps
relating to the conveyance of the Talley Parcel; .
3.3.8.5 Any additional costs and charges customarily charged to
sellers in accordance with common escrow practices in Los
Angeles County;
33.8.6 A FIRPTA Certificate and California Form 597, and such
other documents and instruments required by the Escrow
Holder in the performance of its contractual or statutory
obligations; and
3.3.8.7 A fully executed and recordable Grant Deed in substantially
in the form attached as Exhibit D.
3.3.9 Escrow Holder Responsibilities. Upon the Closing,the Escrow Holder is
authorized to:
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33.9.1 Pay,and charge the Agency and the Developer,respectively,
for any fees, charges and costs payable under Sections 33.7
and 3.3.8 of this Agreement Before such payments or
charges are made,the Escrow Holder shall notify the Agency
and the Developer of the fees,charges and costs necessary to
clear title and close the Escrow;
33.9.2 Record in the following order: the Grant Deed, the Trust
Deed, and any other instruments delivered through the
Escrow; and
33.93 Deliver to the Agency and disburse such other funds and
deliver such other documents to the Parties entitled thereto.
3.3.10 Deposit of Escrow Funds. All funds received in the Escrow shall be
deposited by the Escrow Holder with other escrow funds of the Escrow Holder in an interest earning
general escrow account Such funds may be transferred to any other general escrow account or
accounts. All disbursements shall be made by check of the Escrow Holder. All adjustments and
proration are to be made on the basis of'a thirty (3 0) day month.
33.11 Amendment of Escrow Instructions. Any amendment to these escrow
instructions shall be in writing and signed by the Agency and the Developer. At the time of any
amendment, the Escrow Holder shall agree to carry out its duties as Escrow Holder under such
amendment
33.12 Notices. All communication from the Escrow Holder to the Agency or the
Developer shall be directed to the addresses and in the manner established in Sections 1.2 and 5.1 of
this Agreement for notices,demands and communications between the Agency and the Developer.
3.3.13 Parties Right to Terminate for Failure of Escrow to Close. If, for any
reason other than the Default of the Agency or the Developer(as defined below)Escrow does not
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close on or before the Outside Closing Date or such other date that has been mutually agreed upon by
the Parties, then either the Agency or the Developer may terminate this Agreement without cost,
expense or liability to either Party. Upon such termination,the Escrow Holder shall return all funds
and documents to the party depositing the same. The Agency and the Developer shall eacb bear one-
half of Escrow Holder's fees and expenses. `
3.3.14 Prevailing Wages.
33.14.1 Public Works Determination. Developer has been alerted to
the requirements of California Labor Code section 1770 et seq., including,without limitation S.B.
975,which require the payment of prevailing wage rates and the performance of other requirements
if it is determined that this Agreement constitutes a public works contract It shall be the sole
responsibility of Developer to determine whether to pay prevailing wages for any or all work
required by this Agreement As a material part of this Agreement,Developer agrees to assume all
risk of liability arising from any decision not to pay prevailing wages for work required by this
Agreement
3.3.14.2 Indemnification.As a further material part ofthis Agreement,
Developer agrees to indemnify, defend and hold harmless the Agency, the City, their officials,
officers,employees, consultants and agents from any and all claims,liability,loss,costs,damages,
expenses,fines and penalties,of whatever type or nature,including all costs of defense and attorneys'
fees,arising from any alleged failure of the Developer or Developer's contractors to comply with the
prevailing wage laws of the State of California. If the Agency or any ofthe other indemnified parties
are named as a party in any dispute arising from the failure of Developer or Developer's contractors
to pay prevailing wages,Developer agrees that the Agency and those other indemnified parties may
appoint their own independent counsel,and Developer agrees to pay all attomeys'fees and defense
costs of Owner and the other indemnified parties as billed, in addition to all other damages, fines,
penalties,and losses incurred by Agency and those other indemnified parties as a result of the action.
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3.3.15 Environmental Review. The Close of Escrow shall be contingent upon
Developer's approval of the environmental condition of the Talley Parcel prior to [***
200_ * *],which date shall be the expiration of the"Environmental Review Period."
33.15.1 Developer shall have the right, at its sole cost, expense and
liability,to commence Developer's environmental inspection of the Talley Parcel immediately after
the Opening of Escrow. No invasive testing or boring shall be done without prior written
notification to Agency and Agency's written permission of the same,which Agency may withhold in
its sole and absolute discretion. Copies of data,surveys and tests obtained or made pursuant to this
Section shall be provided to the Agency within fifteen(15)days after receipt by the Devel oper. Any
inspection and/or testing work shall be undertaken only after securing any necessary permits from the
appropriate governmental agencies.Developer shall use care and consideration in connection with
any of its inspections or tests and Agency shall have the right to be present during any inspection of
the Talley Parcel by Developer or its agents. Developer shall restore the Talley Parcel to its original
condition immediately after any and all tests and/or inspections.
33.15.2 Developer shall protect, indemnify, defend (with counsel
reasonably acceptable to Agency) and hold the Property, Agency, the City and their officials,
officers, employees, agents and attorneys free and harmless from and against any and all claims,
damages, liens,stop notices,liabilities, losses, costs and expenses,including reasonable attorneys'
fees and court costs and expenses (all of the foregoing, collectively "Liabilities"), resulting from
Developer's inspection and testing of the Talley Parcel,including,without limitation,repairing any
and all damages to any portion of the Property, arising out of or related (directly or indirectly)to
Developer's conducting such inspections, surveys,tests, and studies, except as to those Liabilities
attributable to the negligence or wilful misconduct of the Agency, the City and their officials,
officers,employees,agents, contractors and attorneys. TheDeveloper's indemnificationobligations
set forth herein shall survive the Close of Escrow,shall not be merged with the Grant Deed and shall
survive the termination of this Agreement and Escrow prior to the Close of Escrow.
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33.15.3 Prior to any entry upon the Talley Parcel by Developer or
Developer's agents,contractors,subcontractors or employees,Developer shall deliver to Agency an
original endorsement to Developer's commercial general liability insurance policy that evidences that
Developer is carrying a commercial general liability insurance policy with a financially responsible
insurance company acceptable to Agency, covering: (1)the activities of Developer, Developer's
agents, contractors, subcontractors and employees on or -upon the Property and (2)Developers
indemnity obligation contained in Section 3.3.15. Such endorsement to such insurance policy shall
evidence that such insurance policy shall have a per occurrence limit of at least One Million Dollars
($1,000,000)and an aggregate limit of at least Two Million Dollars($2,000,000),shall name Agency
and City and their officials,officers,employees,and agents as additional insureds,shall be primary
and non-contributing with any other insurance available to Agency and City and shall contain a full
waiver of subrogation clause.
33.15.4 If, during the Environmental Review Period, Developer
determines that it is dissatisfied,in Developer's sole discretion,with the environmental condition of
the Talley Parcel,then,pursuant to Section 3.3.13,Developer may terminate this Agreement and the
Escrow created pursuant hereto by delivering written notice to Agency and Escrow Holder on or
before the expiration of the Environmental Review Period of Developer's election to terminate this
Agreement- If Developer fails to deliver any such written termination notice to Agency and Escrow
Holder on or before the expiration of the Environmental Review Period, then Developer shall
conclusively be deemed to have approved the environmental condition of the Talley Parcel and to
have waived the requirement for a satisfactory appraisal. If Developer waives such contingencies,or
is seemed to have waived such contingencies,then Developer shall conclusively be deemed satisfied
with all aspects of the Talley Parcel,including,without limitation,the condition and suitability for
Developer's intended use.
33.16 Developer's Review of Title. The Close of Escrow shall be contingent upon
Developer's approval or deemed approval of title to the Talley Parcel pursuant to this Agreement
Within the time frame set forth in the Schedule of Performance,Developer shall obtain,and provide
a copy to Agency, a standard preliminary report from the Title Company with respect to the Talley
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Parcel, together with the underlying documents relating to the Schedule B exceptions set forth in
such report (collectively, the "Title Report"). At Developer's election, Developer may obtain, at
Agency's sole cost,expense and liability,an ALTA survey("Survey")of the Talley Parcel;provided
that Developer's election to obtain the Survey shall in no event affect Developer's "Title Review
Period" (as hereinafter defined) and shall in no event delay the Close of Escrow. Developer shall
have until August 30, 2004 ("Title Review Period") to give Agency and Escrow Holder written
notice ("Developer's Title Notice") of Developer's disapproving or conditional approval of any
matters shown in the Title Report or survey (if applicable). The failure of Developer to give
Developer's Title Notice on or before the end of the Title Review Period shall be conclusively
deemed to constitute Developer's approval of the condition of title to the Talley Parcel asset forth in
the Title Report.
If Developer disapproves or conditionally approves in writing any matter of title
shown in the Title Report or survey(if applicable),then Agency may,but shall have no obligation to,
within three (3) business days after its receipt of Developers Title Notice ("Agencys Election
Period"),elect to eliminate or ameliorate to Developer's satisfactionthe disapproved or conditionally
approved title matters by giving Developer written notice ("Agency's Title Notice") of those
disapproved or conditionally approved title matters, if any, that Agency agrees to so eliminate or
ameliorate by the Closing Date; provided, that, Agency shall have no obligation to pay any
consideration or incur any liability in order to eliminate or ameliorate such disapproved title matters.
If Agency does not elect to eliminate or ameliorate any disapproved or conditionally approved title
matters, or if Developer disapproves Agency's Title Notice, or if Agency fails to timely deliver
Agency's Title Notice, then Developer shall have the right, upon delivery to Agency and Escrow
Holder(on or before two(2)business days following the expiration of Agency's Election Period)of a
written notice, to either. (1)waive its prior disapproval, in which event said disapproved matters
shall be deemed unconditionally approved; or (2)terminate this Agreement pursuant to Section
3.3.13 and the Escrow created pursuant thereto. Failure to take either one of the actions described in
(1) and (2) above shall be deemed to be Developer's election to take the action described in (1)
above.
It in Agency s Title Notice,Agency has agreed to either eliminate or ameliorate to
Developer's satisfaction by the Closing Date certain disapproved or conditioconditionallyapproved title
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matters described in Developer's Title Notice,but Agency fails to do so,then Developer shall have
the right (which shall be Developer's sole and exclusive right or remedy for such failure), upon
delivery to Agency and Escrow Holder(on or before one(1)business day prior to the Closing Date)
of a written notice to either: (x)waive its prior disapproval,in which event said disapproved matters
shall be deemed approved;(y) terminate this Agreement pursuant to Section 3.3.13 and the Escrow
created pursuant hereto,or(z)at the Developer's election,allowthe Agency an additional period of
time, not to exceed thirty (30) days, to eliminate or ameliorate to Developer's satisfaction the
disapproved or conditionally approved title matters described in Developer's Title Notice. If the
Developer elects to proceed pursuant to (z) above, the Closing Date set forth in the Schedule of
Performance shall be automatically extended by the length of the additional time period that
Developer provides to the Agency. Failure to take any one ofthe actions described in(x),(y)and(z)
above shall be deemed to be Developers election to take the action described in (x) above.
In the event that the Developer elects to proceed pursuant to(z)above and the Agency
fails to eliminate or ameliorate to Developer's satisfaction the disapproved or conditionally approved
title matters described in Developer's Title Notice priortd the expiration of the additional time period
allowed to the Agency,then Developer shall have the right(which shall be the Developer's sole and
exclusive right or remedy for such failure), upon delivery to Agency and Escrow Holder (on or
before one business day prior to the Closing Date, as it may be extended pursuant to the preceding
paragraph) of a written notice to either: (1)waive its prior disapproval, in whicb event said
disapproved matter sball be deemed approved;or(2)terminate this Agreement pursuant to Section
3.3.13 and the Escrow created pursuant hereto. Failure to take either one of the actions described in
(1) and (2) above shall be deemed to be Developer's election to take the action described in (1)
above.
33.17 Review of Documents and Materials. Agency agrees to provide to
Developer for Developer's review those documents and materials,if any,respecting the Talley Parcel
(collectively, "Documents and Materials"), provided (i) such Documents and Materials are in
Agency's possession and control or are reasonably available at no cost to Agency, and(ii)Agency
does not represent,warrant or certify the accuracy,adequacy or completeness of the Documents and
Materials. During the period commencing upon the date that the Agency first provides Developer
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with any Documents and Materials and ending at 5:00 p.m.PST on the thirtieth(3e)day thereafter
("Feasibility Period"),the Developer shall have the right to review and examine the Documents and
Materials. The failure of Developer to disapprove in writing any of the Documents and Materials on
or before the expiration of the Feasibility Period shall be deemed to constitute Developer's approval
of all the soils,environmental and reports and engineering data pertaining to the Talley Parcel and
any architectural studies, grading plans,topographical maps and similar data regarding the Talley
Parcel. Developer shall keep all information contained in the Documents and Materials confidential,
as provided below.
If, during the Feasibility Period, Developer reasonably determines that it is
dissatisfied with any aspects of the Talley Parcel and/or its condition or suitability for Developer's
intended use or with any of the Documents and Materials,then Developer may,pursuant to Section
3.3.13,terminate this Agreement and the Escrow created pursuant hereto by delivering written notice
to Agency and Escrow Holder on or before the expiration of the Feasibility Period of Developer's
election to terminate. If Developer fails to deliver any such written termination notice to Agency and
Escrow Holder on or before the expiration of the Feasibility Period,then Developer shall be deemed
to be satisfied with all aspects of the Documents and Materials and with all aspects of the Talley
Parcel, inchiding,without implied limitation,the condition and suitability of the Talley Parcel for
Developer's intended use:
33.18 Reliance Upon Documents and Materials. Developer acknowledges that:
(i) The Documents and Materials are being furnished to it solely for
Developer's review in connection with its possible purchase of the
Talley Parcel;
(ii) Developer is using the Documents and Materials and relying on any
information or conclusion contained in the Documents and Materials
at its own risk, and, except to the extent that the Documents and
Materials are prepared by the Agency, Agency shall have no liability
for any inaccuracies,omissi ons,errors or other matters that appear in
the Documents and Materials; and
04 0723858
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(iii) Developer will use the Documents and Materials solely in connection
with its examination of the Talley Parcel and for no other purpose
whatsoever.
3.3.19 Developer's Representations and Warranties Re:Condition of the Talley
Parcel. In consideration of Agency entering into this Agreement and as an inducement to Agency to
sell the Talley Parcel to Developer,Developer makes the following representations and warranties,
each of which is material and is being relied upon by Agency:Developer represents and warrants that
it is purchasing the Talley Parcel based solely upon Developer's inspection and investigation of the
Talley Parcel and all documents related thereto, or its opportunity to do so, and Developer is
purchasing the Talley Parcel in an "AS IS, WHERE IS" condition, without relying upon any
representations or warranties,express,implied or statutory,of any kind. Without limiting the above,
Developer acknowledges that neither Agency,except as expressly setforth in this Section 3.3.19,nor
any other party has made any representations or warranties,express or implied,on which Developer
is relying as to any matters, directly or indirectly, concerning the Talley Parcel, including but not
limited to,the land,the square footage of the Talley Parcel,improvements and infrastructure,if any,
development rights and exactions, expenses associated with the Talley Parcel,taxes, assessments,
bonds, permissible uses,title exceptions,water or water rights,topography,utilities, zoning of the
Talley Parcel, soil, subsoil, the purposes forwhich the Talley Parcel is to be used, drainage,
environmental or building laws,rules or regulations,toxic waste or Hazardous Materials or any other
matters affecting or relating to the Talley Parcel. Developer hereby expressly acknowledges that no
such representations have been made. The Closing of Escrow for the Talley Parcel by Developer
hereunder shall be conclusive evidence that(1) Developer has fully and completely inspected(or has
caused to be fully and completely inspected) the Talley Parcel, (2)Developer accepts the Talley
Parcel as being in good and satisfactory condition and suitable for Developer's purposes,and(3)the
Talley Parcel fully complies with Agency's covenants and obligations hereunder.
Developer shall perform and rely solely upon its own investigation concerning its
intended use of the Talley Parcel, the Talley Parcel's fitness thereof, and the availability of such
intended use under applicable statutes,ordinances,and regulations. Developer further acknowledges
and agrees that Agency's cooperation with Developer in connection with Developer's due diligence
04 0723858
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review of the Talley Parcel,whether by providing the Title Report other documents,or permitting
inspection of the Talley Parcel,shall not be construed as any warranty or representation,express or
implied,of any kind with respect to the Talley Parcel,or with respect to the accuracy,completeness,
or relevancy of any such document.
Furthermore, without limiting the generality of the foregoing, Developer hereby
expressly waives,releases and relinquishes any and all claims,causes of action,rights and remedies
Developer may now or hereafter have against Agency, the City, and their officials, officers,
employees, and agents, whether known or unknown, with respect to any past, present or future
presence or existence of Hazardous Materials on,under or about the Talley Parcel or with respect to
any past, present or future violations of any rules, regulations or laws, now or hereafter enacted,
regulating or governing the use, handling, storage, release or disposal of Hazardous Materials,
including, without limitation, (i) any and all rights Developer may now or hereafter have to seek
contribution from Agency or City under Section 113(f)(i) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund
Amendments and Reauthorization Act of 1986 (42 U_S_C.A. ' 9613), as the same may be further
amended or replaced by any similar law,rule or regulation,(ii)any and all rights Developer may now
or hereafter have against Agency or City under the Carpenter-Presley-Tanner Hazardous Substances
Account Act(California Health and Safety Code,Section 25300,et seq.),as the same may be further
amended or replaced by any similar law,rule or regulation,(iii) any and all claims,whether known
or unknown, now or hereafter existing, with respect to the Talley Parcel under Section 107 of
CERCLA(42 U.S.C.A. ' 9607), and(iv) any and all claims,whether known or unlmown,based on
nuisance,trespass or any other common law or statutory provisions. Nothing in this paragraph shall
operate as a release of any rights or remedies of the Developer against the Agency arising from the
migration or release of Hazardous Materials from/on adjacent property owned by the Agency. As
used herein,the term"Hazardous Material(s)" includes,without limitation,any hazardous or toxic
materials, substances or wastes, such as (A)those materials identified in Sections 66680 through
66685 and Section 66693 through 66740 of Title 22 of the California Administrative Code,
Division 4, Chapter 30, as amended from time to time, (B)those materials defined in Section
25501 G)of the California Health and Safety Code, (C)any materials,substances or wastes that are
toxic,ignitable,corrosive or reactive and that are regulated by any local governmental authority,any
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agency of the state of California or any agency of the United States Government, (D)asbestos,
(E)petroleum and petroleum based products, (F) urea formaldehyde foam insulation,
(G)polychlorinated biphenyls (PCBs), and (H)freon and other chlorofluorocarbons.
DEVELOPER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
("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 FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
BY INITIALING BELOW,DEVELOPER HEREBY WAIVES THE PROVISIONS
OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS THAT ARE THE
SUBJECT OF THE FOREGOING WAIVERS RELE ES:
Develo s Initials
The waivers and releases by Developer herein contained shall survive the Close of
Escrow and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed
upon its recordation.
The release and waiver provisions of this Section 33.19 shall not apply to any cause
of action, claim,demand or liability that is attributable to a breach of the Agency's representations
and warranties under Section 3.14.20 or to the migration of Hazardous Materials onto or under the
Talley Parcel from any adjacent Agency-owned property.
Upon the Close of Escrow,the Agency conditionally assigns to the Developer any
rights,remedies,or chooses in action that the Agency may have against any prior owner of the Talley
Parcel in connection with the presence or release of Hazardous Materials on or under the surface of
the Talley Parcel;provided,however,that the Agency may revoke such assignment by written notice
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� 7
to the Developer upon:(i)the Agency's reasonable determination that such revocation is necessary to
allow the Agency to assert a claim or defense against any such prior owner,and(ii)the Agency being
made a party to a clean up order,lawsuit,or other proceeding concerning the presence or release of
Hazardous Materials on or under the surface of the Talley Parcel. Such revocation shall not operate
to restrict the Developer's right to defend itself if it is named in any action by such prior owner(s).
33.20 Agency's Representations and Warranties Re: Condition of the Talley
Parcel. In consideration of Developer entering into this Agreement and as an inducement to
Developer to purchase the Talley Parcel from Agency,Agency represents and warrants that pursuant
to California Health and Safety Code Section 25359.7, to the actual current knowledge of the
Agency,the Agency is not aware of the release or the presence of any Hazardous Materials on or in
the Talley Parcel
33.21 Taxes and Assessments. Any assessments and ad valorem taxes on the
Talley Parcel levied, assessed or imposed for any period commencing prior to conveyance of title
shall be paid by the Agency. All assessments, ad valorem taxes, possessory interest taxes and
personal property taxes levied or imposed upon the Talley Parcel or upon this Agreement or any right
hereunder for any period after the Closing shall be paid by the Developer. The Developer shall cause
all taxes and assessments levied against the Talley Parcel to be paid in a timely fashion.
3.3.22 Lease of Portion of Breezeway Parcel. Upon identification of a tenant for
the first floor of the Talley Parcel, the Agency shall enter into good faith negotiations with such
tenant for the lease by the Agency to such tenant of those portions ofthe Breezeway Parcel identified
in the Conceptual Plans as the outdoor portion of the first floor tenant's business. The Agency shall
enter into a commercially reasonable lease acceptable to the Agency for such portion of the
Breezeway Parcel with such tenant
3.4 Phase III—Development of Property.The Developer shall perform its obligations
with respect to the Development of the Property in accordance with this Agreement, including,
Without implied limitation, the Scope of Development and Schedule of Performance attached as
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7238CU
Exhibits Band C respectively,the Grant Deed to the Talley Parcel and any additional plans provided
by the Developer and approved by the Agency and the City pursuant to this Agreement The Scope
of Development shall include,without limitation,the demolition ofthe improvements located on the
Breezeway Parcel by the Agency,the rehabilitation of the improvements located on the Talley Parcel
by the Developer, which rebabilitation'shall include,without limitation,the construction of a third
story on the rear (Western) portion of the Existing Talley Building, and the construction of the
landscaping,lighting and hardscaping improvements on the Breezeway Parcel by Developer. As set
forth in the Scope of Development, the Agency anticipates that a Iot line adjustment sball be
performed on the Breezeway Parcel in order to accommodate the construction of an elevator to be
used by the owner and occupants of the real property to the north of the Breezeway Parcel.
Developer and Developer's contractors and subcontractors shall cooperate and coordinate the
construction and installation of the improvements on the Breezeway Parcel so as to not unreasonably
interfere with the construction of such elevator.
3.4.1 Preparation of Concept and Site Plans and Related Documents. Within
the time set forth in the Schedule of Performance,the Agency shall prepare conceptual drawings and
working drawings and related documents for the construction of the improvements for the
Breezeway Parcel. Within the time set forth in the Schedule of Performance,the Developer shall
prepare and submit to the Agency for approval, conceptual drawings and working drawings and
related documents for the demolition of the existing Breezeway improvements and the rehabilitation
of the Talley Parcel.All conceptual drawings and working drawings and related documents shall be
consistent with the Scope of Development Any changes to the Plans required by the Agency shall
not operate to extend the time for performance of the Developer's obligations hereunder,unless such
changes are necessary due to the Agency-initiated deviations from the Scope of Development, The
Agency's staff,Planning staff,and the Developer shall hold regular progress meetings to coordinate
the preparation and submission of the conceptual drawings and working drawings and related
documents. The Agency's staff and the Developer shall communicate and consult informally as
frequently as is necessary to assure that the formal submittal of any documents to the City receive
prompt consideration. The Agency and the Developer sball confer in good faith regarding
appropriate time extensions for any Agency-initiated changes.
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0723858 .
3.4.2 [Intentionally Left Blank]
3.4.3 Governmental Requirements. If any governmental official, agency,
department or bureau having jurisdiction over the Development (including, without implied
limitation,the City)requires material revisions or corrections of the Plans,the Developer,Agency,
and Planning Department shall cooperate in efforts to obtain waivers of such requirements or to
develop a mutually acceptable set of alternative Plans.
3.4.4 Cost of Construction. Except as otherwise provided in this Section 3,.4.4,
the cost and expense of undertaking and completing the Development and providing all utilities for
the Development, shall be borne solely by the Developer at its sole cost, expense and liability.'
3.4.4.1 Talley Parcel Design, Construction/Installation Cost
Reimbursement. The Agency shall reimburse Developer for
any and all reasonable hard costs that are actually incurred or
paid by Developer in the design,construction and installation
of the rehabilitation improvements at the Talley Parcel. All
contracts or other agreements of any type entered into by
Developer that Developer seeks reimbursement for shall have
been approved by the Agency in order to qualify for
reimbursement In the event Developer seeks reimbursement
for costs incurred,but not yet paid,the Agency may in its sole
and absolute discretion provide reimbursement through means
of a third-party(ies) check. Notwithstanding any Agency
review or approval of Developer's contracts or other
agreements, the Agency shall not incur any liability or
obligation of any kind with respect to such contracts or
agreements. Developer shall submit written invoices to the
Agency on the fust working day of each month(or upon such
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other time frame mutually agreed upon by the parties in
writing) for such reimbursable costs. The Agency shall
review all such invoices and shall, within thirty(30)days of
submittal to the Agency,reimburse Developer for such costs
as the Agency, in its sole an absolute discretion, determines
are reasonable. Notwithstanding any provision herein to the
contrary, the Agency shall not be obligated to reimburse
Developer for any cost or expense except upon proof
acceptable to the Agency,in its sole and absolute discretion,
that all mechanics or workman' liens or similar obligations
have been satisfied by Developer. the total amount of the
reimbursement distributed by the Agency pursuant to this
Section 3.4.4.2 shall not exceed Four Hundred Fifty Thousand
Dollars ($450,000).
3.4.43 Breezeway Parcel Construction/Ingtallation Cost
Reimbursement. The Agency shall reimburse , separately
from the amount to be reimbursed for the development of the
Talley parcel,Developer for any and all reasonable hard costs
that are actually incurred or paid by Developer in the
demolition of existing improvements,proposed construction
and installation of the improvements and landscaping,
lighting and bardscaping at the Breezeway Parcel consistent
with the plans and specifications provided by the Agency. All
contracts or other agreements of any type entered into by
Developer that Developer seeks reimbursement for shall have
been approved by the .Agency in order to qualify for
reimbursement In the event Developer seeks reimbursement
for costs incurred,but not yet paid,the Agency may in its sole
and absolute discretion provide reimbursement through means
of a third-party(ies) check. Notwithstanding any Agency
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review or approval of Developer's contracts or other
agreements, the Agency shall not incur any liability or
obligation of any kind with respect to such contracts or
agreements. Developer shall submit written invoices to the
Agency on the first working day of each month(or upon such
other time frame mutually agreed upon by the parties in
writing) for such reimbursable costs. The Agency shall
review all such invoices and shall,within thirty(30)days of
submittal to the Agency,reimburse Developer for such costs
as the Agency, in its sole an absolute discretion,determines
are reasonable.
3.4.4.4 Limitation on Agency's Financial Assistance.
Notwithstanding any provision herein to the contrary, the
Agency shall not be obligated to provide Developer financial
assistance other than the reduction in the purchase price for
the transfer of the Talley Parcel and the reimbursements set
forth in this Section 3.4.4.
3.4.5 Construction and Development Schedule of Performance. The Developer
shall begin and complete all construction and development within the times specib ed in the Schedule
of Performance or such reasonable extension of said dates as may be granted by the Agency. In
addition to extensions of time provided by express provisions of this Agreement, the Schedule of
Performance may be revised from time to time as mutually agreed upon in writing between the
Developer and the Agency.
From time to time during the period of construction and as reasonably requested by
the Agency,the Developer shall report to the Agency on the progress of construction. The reports
shall be in such form and detail as may reasonably be required by the Agency and shall include
construction photographs taken since the last report
04 0723858
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3.4.6 Grading,Paving and Landscaping Plans. The Agency sball prepare and 3 /
submit to the City for its approval,preliminary and final,grading,paving and landscaping plans for.
the Breezeway Parcel. The Developer shall prepare and submit to the City for its approval,
preliminary and final, grading, paving and landscaping plans for the Talley Parcel. All such plans
shall be prepared,submitted and approved by the City Engineer prior to thestart of construction. All
grading plans shall be prepared by a registered civil engineer. Developer shall complete installation
of landscaping on the Property prior to the issuance of a certificate of occupancy. The landscaping
plan to be prepared pursuant to this Agreement,including plant materials and types,shall be subject
to the approval of the City's Community Development Director.
3.4.7 Right of Accesi. Until a Certificate of Completion is issued for the
Development and for the purpose of assuring compliance with this Agreement,representatives of the
Agency and the City shall have reasonable right of access to the Development without charge,during
Agency business hours and after not less than forty-eight(48) hours prior written notice. Agency
will use good faith efforts to minimize any interference that the Agency's entry may have upon the
Developer's operations.
3.4.8 Indemnity. The Developer shall defend,indemnify and hold the Agency and
the City,and their officers,directors,agents,servants,attorneys,employees and contractors harmless
from and against all liability,loss,damage,costs,or expenses(including reasonable attomeys'fees
and court costs) (all of the foregoing collectively, "Liabilities") arising from or as a result of the
death of any person or any accident injury,loss or damage whatsoever caused to any person or to the
property of any person and that shall be, or alleged to be, directly or indirectly, caused by any acts
done thereon or any errors or omissions of the Developer or its officers, directors,agents,servants,
attorneys,employees or contractors,or that are in any way related to the design and construction of
the Development. The Developer shall not be responsible for(and such indemnity shall not apply to)
any acts, errors or omissions ultimately found to have been directly or indirectly caused by the
Agency or the City,or their respective officers,directors,agents, servants,attorneys,employees or
contractors. The Agency and the City shall not be responsible for any acts,errors or omissions of
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�J
any person or entity except the Agency and the City and their respective officers, agents,servants,
employees or contractors.
The Developer's obligations under this Section 3.4.8 shall continue to apply past the
expiration or termination of this Agreement.
3.4.4 Insurance. Prior to the commencement of construction of the Development,
the Developer shall furnish or cause to be famished to the Agency duplicate originals and
appropriate endorsements to the Developers commercial general liability and automobile insurance
policies in the amounts set forth below,naming the Agency and the City as additional or co-insureds:
(a) $1,000,000 for any one person; and
(b) $3,000,000 for any one occurrence; and
(c) $1,000,000 for any property damage.
The policies shall be"occurrence,"not"claims made,"policies and shall be primary
and non-contributing to any insurance that the Agency may elect to obtain. Such policies shall
contain a full waiver of subrogation clause. The policies shall be issued by a carrier licensed to do
business in California, with a then-current Best's rating of A:VlU or better. Said policies shall
provide that they shall not be canceled or reduced in types of coverage or amount of coverage
without at least thirty (30) days' prior written notice to the Agency and that such reduction or
cancellation shall become effective until at least twenty(20)days after receipt by the Agency of the
written notice thereof. The policy amounts set forth above shall not limit or define the extent of the
Developer's indemnity liability pursuant to Section 3.4.8 or any other provision of this Agreement,or
arising as a matter of law or at equity.
The Developer shall also famish or cause to be famisbed to the Agency evidence
satisfactory to the Agency that any contractor with whom it has contracted for the performance of
work on the Project carries workers' compensation insurance as required by law.
The Developer shall also maintain,or cause its contractor to maintain,all-risk course
of construction insurance,insuring the Developer,the Agency and the City against all risk(including
earthquake) of loss or damage to the Development Except as provided in the Grant Deed, the
obligations set forth in this Section shall remain in effect until the final Certificate of Completion has
been issued for the Development
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jf
3.4.10 Governmental Permits and Compliance With Laws. Before
commencement of construction or development of any buildings, structures or other work of
improvement upon the Property, the Developer shall, at its own expense, secure or cause to be
secured any and all permits,entitlements,or other approvals that may be required by or from the City
of any other governmental agency with jurisdiction over the Development The Agency shall
provide reasonable non-financial assistance to the Developer in securing these permits or approvals.
The Developer shall carry out the construction of the Development in conformity with all applicable
laws, including all applicable federal and state labor and safety standards.
3.4.11 No Unlawful Discrimination. The Developer agrees that the Developer will
not unlawfully discriminate against any employee or applicant for employment because of sex,
marital status,race, color,religion, creed, national origin, or ancestry, and that the Developer will
comply with all applicable local, state and federal fair employment laws and regulations.
The Developer covenants and agrees that it will not unlawfully discriminate against or
segregation of any person or group of persons on account of race,color,creed,religion,sex,marital
status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Talley Parcel, nor shall the Developer itself, or any person claiming under or
through it, establish or.permit any such practice or practices of unlawful discrimination or
segregation with reference to the selection, location,number, use of occupancy of tenants,lessees,
subtenants, sublessee or vendees of the Talley Parcel. The foregoing covenants shall run with the
land, be binding upon the Developer's transferee's, successors and assigns,and shall,to the extent
provided by law, remain in effect in perpetuity.
All deeds, leases or contracts relative to the Talley Parcel, or the improvements
constructed thereon,shall contain or be subject to substantially the following nondiscrimination and
non-segregation clauses,pursuant to California Health and Safety Code Section 33435 and 33436.
3.4.12 In deeds: The grantee herein covenants by and for himself, his heirs,
executors, administrators, and assigns, and all persons claiming under or through them,that there
shall be no unlawful discrimination against or segregation of, any person or group of persons on
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account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale,
lease,sublease,transfer,use,occupancy,tenure or enjoyment of the land herein conveyed,nor shall
the grantee himself or any person claiming under or through him, establish or permit any such
practice or practices of unlawful discrimination or segregation with reference to the selection,
location,number,use or occupancy of tenants,lessees,subtenants,sublessees or vendees in the land
herein conveyed. The foregoing covenants shall run with the land in perpetuity.
3.4.13 In leases: The lessee herein covenants by and for himself, his heirs,
executors,administrators and assigns,and all persons claiming under or through him,and this lease
is made and accepted upon the subject to the following conditions: That there shall be no unlawful
discrimination against or segregation of any person or group of persons, on account of race,color,
creed,religion,sex,marital status,national origin or ancestry,in the leasing,subleasing,transferring,
use, occupancy, tenure or enjoyment of the land herein leased,nor shall the lessee himself,or any
person claiming under or through him,establish orpermit any such practice or practices of unlawful
discrimination or segregation with reference to the selection,location,number,use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the Iand herein leased.
3.4.14 In contracts: There shall be no unlawful discrimination against or
segregation of,any person or group of persons on account of race,color,creed,religion,sex,marital
status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land,nor shall the transferee himself or any person claiming under or through him
establish or permit any such practice or practices of unlawful discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees subtenants,
sublessees or vendees of the land. Nothing in this Section 3.4.14 shall operate as a waiver of any
legal defenses that the Developer may have for a breach of any covenant contained herein,or operate
to impose additional burdens upon the Developer other than those imposed by current law.
3.4.15 Prohibition Against Transfer. Prior to the tenth (10'b) anniversary of the
recordation of the Grant Deed,the Developer may not,except as permitted by this Section 3.4.15 or
Section 3.4.17,assign or attempt to assign this Agreement or any right or obligation herein,nor make
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any total or partial sale,transfer,conveyance or assignment of the Talley Parcel or the improvements 1
on the Property,without prior written approval of the Agency,which may be given or withheld in the
Agency's reasonable discretion. In determining whether to approve of such a partial sale,transfer,
conveyance or assignment of the Property or the improvements on the Property the Agency shall
evaluate: (i)the financial ability of the proposed transferee to own and operate the Development and
to meet the Developer's obligations under this Agreement;and(ii)the fitness and experience of the
proposed transferee and its senior managerial personnel to own and operate the Development
The foregoing prohibition shall not apply to Sections 3.4.15.1 or 3.4.15.2,
provided the Developer shall first notify the Agency in writing of the proposed action. The actions
to which this exception applies are:
3.4.15.1 The granting of dedications, easements or permits to
facilitate the development of the Property; or
3.4.15.2 The assignment of all of the Developer's rights and
obligations hereunder, or the sale,transfer or lease of
the entirety of the Talley Parcel and any
improvements thereon to an entity formed for the
purpose of constructing and operating the
Development, provided that the majority voting and
ownership interest in such entity is held by Developer.
Any such assignment, sale, transfer or conveyance
pursuant to this Section 3.4.15.2 shall not relieve the
Developer of liability for the timely and faithful
performance of any assigned obligation, absent an
express agreement between the Agency, the
Developer and the third party transferee to the
contrary.
3.4.16 Obligations Remain. No rmpermitted sale, transfer, conveyance or
assignment of all or any portion of this Agreement or any portion of the Talley Parcel shall be
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deemed to relieve the Developer or any other party from any obligation under this Agreement, nor
shall any such unpemvtted sale,transfer,conveyance or assignment transfer any rights in the Talley
Parcel or this Agreement.
3.4.17 Permitted Encumbrances. Section 3.4.15 notwithstanding,Developer shall
not, at any time prior to the tenth(I0`b) anniversary of the Close of Escrow, grant or permit any
mortgage, deed of trust, sale and leaseback or any other form of conveyance or encumbrance in
connection with the financing and development of the Property(a "Lien") other than a Permitted
Encumbrance,as hereinafter defined.
For purposes hereof;a"Permitted Encumbrance"is any Lien that secures financing:
(i)provided to Developer by a nationally chartered bank or any finance subsidiary thereof, an
insurance company(or affiliate thereof)rated at least B+XII by A.M.Best;(ii)providing sufficient
funds to permit the construction and long term financing of the Development; (iii)collateralized by
the Talley Parcel; (iv)with respect to which the Agency receives written notice prior to the
recordation of any documentation recording such Lien; (v)with respect to which the lender agrees to
give the Agency written notice concurrent with notice to Developer of any default under any of the
financing documents pertaining to such Lien and the right to cure such default within any cure period
afforded Developer by such lender or bylaw,and(vi)with respect to which the lender provides the .
Agency the right to purchase the lender's interest no less than three (3) days prior to the judicial or
non judicial foreclosure sale or transfer by deed in lieu.
Nothing in this Agreement shall be deemed to obligate the bolder of any Permitted
Encumbrance to construct the Development or to guarantee such construction. Nothing in this
Agreement shall be deemed to permit or authorize any such holder to develop the Property or
construct improvements thereon except in strict compliance with this Agreement. Any right,title
and interest in the Property(or any portion thereof)acquired by any means by any bolder of a Lien,
or by such holder's assignees or successors, shall be subject to the terms and provisions of this
Agreement and the Grant Deed.
The word "Lien" means all customary modes of financing real estate acquisition,
construction and land development
04 . 0'723858
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3.4.18 Certificate of Completion. Upon the Developer's receipt of notification 'IJ
from the City's Building Department that the Developer has satisfactorily completed any and all
improvements required for the Development,the Developer shall be entitled to receive a Certificate
of Completion substantially in the form and substance as set forth in Exhibit E. Except as otherwise
provided therein,the Certificate of Completion shall be a conclusive determination of satisfactory
completion by Developer of all of the obligations required to be completed underthis Agreement for
the Development. A Certificate of Completion will not constitute: (i) evidence of compliance with
or satisfaction of any obligation of the Developer to any party other than Agency,(ii) evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any
insurer of a mortgage,or(iii) a notice of completion as referred to in California Civil Code Section
3093.
3.4.19 Covenants Running With the Laud.
3.4.19.1 Use Covenant. The Developer covenants and agrees for itself,
its assigns and all voluntary and involuntary successors in interest to the Talley Parcel or any part
thereof,that for the life of the Redevelopment Plan,the Talley Parcel shall be put to no use other
than those uses specified in the City's General Plan and zoning ordinances,the Grant Deed and this
Agreement, as such documents may be amended fiom time to time.
3.4.19.2 Opening and Operation Covenant Developer covenants and
agrees that the Developer will construct and open the Development as required by this Agreement
and,until the thirtieth(30th)anniversary of the earlier of:(i)the Close of Escrow,or(ii)the issuance
of a Certificates of Completion,will continuously operate the Development,unless properly assigned
or transferred pursuant to Section 3.4.15, in which case, this covenant shall bind the
assignee/transferee for the full term hereof.
The Developer will not be deemed to be in breach of this Section 4.5.19.2
should Developer temporarily cease to operate the Development for the following reasons:
(i) general repair and/or maintenance,the construction of improvements,
and the installation of utilities;
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(ii) acts of enforced delay as defined in Section 5.4 due to wear, � f
insurrection,labor disputes,lockouts,third party litigation,acts of'a
public enemy or governmental authority; and
(iii) the restoration and rebuilding of the Development, as more
particularly described in Section 3.4.19.4, following casualty loss due
to floods, earthquakes, fires, other acts of God or third parties.
3.4.193 Maintenance Covenant The Developer covenants and agrees
that the Developer shall maintain or cause to be maintained,the interior and exterior appearances of
all portions of the Property and Development,excluding the Breezeway Parcel,in a good condition,
ordinary wear and tear excepted. The maintenance covenant of this Section 3.4.19.3 shall remain in
effect for the same period of time as the operating covenant set forth in Section 3.4.19.2.
3.4.19.4 Rebuilding Covenant The Developer covenants and agrees
that following the damage,destruction and/or demolition of the Property and/or Development by an
act of God or casualty,including,but not limited to,fire,floods and earthquakes,the Developer will
promptly restore and rebuild the Property and/or Development (as applicable) in substantially the
same form as required by this Agreement, subject to such modifications as Agency and Developer
may agree upon. The covenants of this Section 3.4.19.4 shall remain in effect for the same period of
time as the operating covenant set forth in Section 3.4.19 2.
3.4.19.4.1 No Conveyance to Tax Exempt Entity. The
Developer covenants and agrees for itself,its assigns and all voluntary and involuntary successors in
interest to the Talley Parcel or any part thereof,that the Talley Parcel or any portion thereof may not
be used,or otherwise sold,transferred,conveyed,assigned,leased,leased back,orhypothecatedto or
for any use that is partially or wholly exempt from the payment of real property taxes or which would
cause the exemption of all or any portion of such real property taxes.
3.4.19.4.2 No Property Tax Contest. The Developer covenants
and agrees for itself, its successors, its assigns and all voluntary and involuntary successors in
M.
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interest to the Talley Parcel or any part thereof, that, for any period that the Agency is allocated
property taxes pursuant to Health and Safety Code Section 33670 or successor statute,the Developer
shall not contest the assessed valuation of the Talley Parcel or any partthereof,as established by the
Los Angeles County Assessors Office.
3.4.19.5 Enforcement of Covenants. The covenants set forth in
Sections 3.4.19.1 through 3.4.19.4 and Section 3.4.11 to 3.4.14 touch and concern the Property,and
every part thereof,and constitute covenants running with the Property and every part thereof for the
full term set forth therein. These covenants may be enforced by the Agency or the City (as an
intended third party beneficiary),regardless of whether the Agency or the City currently or continue
to own an interest in any property within the Project Area.
The Developer irrevocably stipulates and agrees that breach of any of the
covenants set forth in Section 3.4.19.1 through 3.4.19.4 and Section 3.4.11 to 3.4.14 will result in
great and irreparable damage to the Agency and the City, will violate the public policy and the
purposes of the CRL, and will result in damages to the Agency and the City that are either
impracticable or extremely difficult to quantify. Accordingly,upon the breach of any covenant set
forth in Sections 3.4.19.1 through 3.4.19.4 and Section 3.4.11 to 3.4.14,the Agency may institute an
action for injunctive relief and/or for damages attributable to.such breach. The covenants set forth in
Sections 3.4.19.1 through 3.4.19.4 and Section 3.4.11 to 3.4.14 constitute obligations ofthe owner of
the Ialley Parcel or any portion thereof. Neither the Developer nor any voluntary or involuntary
successor in interest shall have any liability under this Agreement for the breach of any of the
covenants described above, if such breach occurs at any time following the Developer's or
successor's cessation or ownership of the Talley Parcel.
ARTICLE 4. DAMAGES AND REMEDIES
4.1 Civil Code Section 1542 Waiver. This Agreement provides,in some instances,for
limitations on damages and for sole and exclusive remedies in lieu of certain other remedies that
would otherwise be available to the parties for the uncured breach of an obligation under this
Agreement The Agency and the Developer acknowledge and agree that such limitations are material
consideration for their entry into this Agreement and,in the absence of such limitations,neither the
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Agency nor the Developer would have entered into this Agreement. As to those breaches of
obligations that are subject to the above-described limitations,the Agency and the Developerhereby
waive, to the maximum legal extent, any and all other claims, remedies and cause of action for
damages, liabilities, losses or injuries,whether known or unknown, foreseeable or unforeseeable.
Both the Agency and the Developer are aware of California Civil Code Section 1542, which
provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
4.2 Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise
provided by a specific term of this Agreement, the rights and remedies of the Agency and the
Developer under this Agreement are nonexclusive, and all remedies hereunder may be exercised
individually or cumulatively. In addition to those remedies expressly granted herein,the Parties shall
also have the right to seek all other available legal and equitable remedies, including, without
implied limitation, general and consequential damages,unless otherwise expressly provided to the
contrary herein.
43 Notice and Opportunity to Cure. If eitherparty to this Agreement believes that the
other party has failed to perform any obligation of that party in accordance with the terns of this
Agreement,the party alleging the default shall provide written notice("Default Notice")to the other
party,setting forth the nature of the alleged default. The party claimed to be in default shall have:(i)
with respect to a default involving the payment of money,ten(10)days after its receipt of the Default
Notice to completely cure such default,and(ii)with respect to any other type of default, sixty(60)
days from the receipt of the Default Notice to completely cure such default or,if such default cannot
reasonably be cured within such sixty(60)day period,to commence the cure of such default within
the sixty (60)day period and diligently prosecute the cure to completion thereafter.
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If the party alleged to be in default fails to cure, or commence to cure (if applicable), as
provided in the preceding paragraph, the parry alleging the default may exercise such rights and
remedies as provided for in this Agreement.
4.4 Remedies for Breach Prior to Close of Escrow.
4.4.1 Developer's Breach. If the Developer breaches any obligation hereunder that
is to be performed prior to the Close of Escrow,and fails to cure such breach as provided in Section
4.3,the following are the Agency's sole and exclusive remedies:
4.4.1.1 The Agency may terminate this Agreement and the Escrow without
cost,expense or liability to the Agency; and
4.4.1.2 The Agency may obtain the amount set forth below as liquidated
damages.
THE AGENCY AND THE DEVELOPER STIPULATE THAT THE AGENCY WILL
SUFFER DAMAGES IF ESCROW FAILS TO CLOSE DUE TO THE UNCURED
MATERIAL DEFAULT OF THE DEVELOPER AND THAT SUCH DAMAGES WOULD
BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO QUANTIFY. IF ESCROW
FAILS TO CLOSE DUE TO THE DEVELOPER'S DEFAULT, AND THE AGENCY
ELECTS TO TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 4.4.1,
THE AGENCY AND THE DEVELOPER AGREE THAT THE AMOUNT OF TWENTY
FIVE THOUSAND DOLLARS ($25,000) IS A REASONABLE ESTIMATION OF THE
DAMAGES THAT THE AGENCY WILL SUFFER. UPON THE AGENCY'S ELECTION
TO TERMINATE THIS AGREEMENT AS PROVIDED ABOVE,THE AGENCY SHALL
RECEIVE FROM THE DEVELOPER THE SUM OF TWENTY FIVE THOUSAND
DOLLARS($25,000)AS LIQUIDATED DAMAGES AND AS ITS SOLE AND EXCLUSIVE
REMEDY FOR SUCH DEFAULT. THE FOREGOING IS NOT A PENALTY, BUT
CONSTITUTES LIQUIDATED DAMAGES TO T AGENCY PURSUANT TO
CALIFORNIA C_ IVIL BODE SECTIONS 1671 77.
Agency's Initials Inniiti_als Develop r s Initials
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4.4.2 Agency's Breach. If the Agency breaches any obligation hereunder that is to
be performed prior to the Close of Escrow, and fails to cure such breach as provided in Section 4.3,
the following are the Developer's sole and exclusive remedies:
4.4.2.1 The Developer may terminate this Agreement and the Escrow without
cost, expense or liability and obtain the amount set forth below as
liquidated damages; or
4.4.2.2 The Developer may institute an action for specific performance of the
terms of this Agreement as to the conveyance of the title to the Talley
Parcel.
THE AGENCY AND THE DEVELOPER STIPULATE THAT THE DEVELOPER
WILL SUFFER DAMAGES IF ESCROW FAILS TO CLOSE DUE TO THE UNCURED
MATERIAL DEFAULT OF THE AGENCY AND THAT SUCH DAMAGES WOULD BE
EXTREMELY DIFFICULT OR IMPRACTICABLE TO QUANTIFY. IF ESCROW FAILS
TO CLOSE DUE TO THE AGENCY'S DEFAULT,AND THE DEVELOPER ELECTS TO
TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 4.4.2,THE AGENCY
AND THE DEVELOPER AGREE THAT THE AMOUNT OF TWENTY FIVE THOUSAND
DOLLARS($25,000)IS A REASONABLE ESTIMATION OF THE DAMAGES THAT THE
DEVELOPER WILL SUFFER. UPON THE DEVELOPER'S ELECTION TO TERMINATE
THIS AGREEMENT AS PROVIDED ABOVE, THE DEVELOPER SHALL RECEIVE
FROM THE AGENCY THE SUM OF TWENTY FIVE THOUSAND DOLLARS($25,000)AS
LIQUIDATED DAMAGES AND AS ITS SOLE AND EXCLUSIVE REMEDY FOR SUCH
DEFAULT. THE FOREGOING IS NOT A PENALTY,BUT CONSTITUTES LIQUIDATED
DAMAGES TO THE DEVELOPER PURSUANT IFORNIA CIVIL CODE
SECTION 1671. n
Agency's II-nitials Develop;rU Initials
04 0723858
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4.5 Power of Termination.
4.5.1 The Grant Deed shall reserve to the Agency a power of termination in the
Talley Parcel, as such powers as described in California Civil Code Section 885.010, et seg.
Notwithstanding anything else in this Agreement, to the contrary (inclusive of Section 4.3), the
Agency shall, upon sixty(60) days written notice to the Developer,have the right,at its option and
due to any cause set forth in this Section 4.5, to terminate the estate in the Talley Parcel granted to
the Developer and take possession of the Talley Parcel and all improvements thereon,and to revert
in the Agency the estate in the Talley Parcel conveyed to the Developer and to vest title to all
improvements constructed thereon, if after conveyance of title and prior to the recordation of the
Certificate of Completion, the Developer(or its successors in interest) shall:
(i) Fail to obtain a final certificate of occupancy (as provided by City's
Municipal Code)for the shell and core improvements of the Development by
the date set forth therefor in the Schedule of Performance; or
(ii) Abandon or substantially suspend, or allow the abandonment or substantial
suspension,of construction of all or any portion of the Development for sixty
(60) days after written notice of such abandonment or suspension from the
Agency; or
(iii) Assign or attempt to assign this Agreement, or any rights or obligations
herein, or transfer, or suffer any involuntary transfer,of the Talley Parcel or
any part thereof, in violation of this Agreement, and such violation shall not
have been cured within sixty(60)days after of written notice thereof from the
Agency; or
(iv) Fail to cure within sixty(60)days after occurrence any default with respect to
any financing secured by a deed of trust,mortgage or other security interest in
the Talley Parcel or any portion thereof:
The sixty(60) day written notice specified in this Section 4.5 shall specify that the
Agency proposes to take action pursuant to this Section 4.5 and shall specify which of the
Developer's obligations set forth in subsections 4.5.I(i)through 4.5.1(iv)have been breached. The
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Agency may proceed with the remedy set forth herein only if the Developer does not cure such
default within sixty(60) days following such notice.
4.5.2 The right of the Agency to reenter,repossess,terminate,vest and revest shall
be subject and subordinate to, shall be limited by and shall not defeat,render invalid or limit any
mortgage,deed of trust or other security interest required for any reasonable method of financing the
construction of improvements on the Talley Parcel and.any other expenditures necessary to
appropriately develop the Property under this Agreement(provided that the Agency has consented to
such financing pursuant to Section 3.4.15)or any rights or interests provided in this Agreement for
the protection of the holders of any such mortgage, deed of trust or other security interest.
Any grant deed to the Talley Parcel or any portion thereof conveyed or leased by the
Developer to another party shall contain appropriate references and provisions to give effect to the
Agency's rights as set forth in this Section 4.5,
4.5.3 Upon the Agency's exercise of its rights and powers as provided in this
Section 4.5,the Developer or its successors shall convey by warranty deed to the Agency title to the
Talley Parcel and all improvements thereon in accordance with Civil Code Section 1109,as hereafter
amended or substituted. Such conveyance shall be duly acknowledged by the Developer in a manner
suitable for recordation. The Agency may enforce its rights pursuant to this Section 4.5 by means of
an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.
45.4 Upon the revesting in the Agency of title to the Talley Parcel by grant deed or
court decree,the Agency shall use its reasonable good faith efforts to resell the Talley Parcel at fair
market value as soon and in such manner as the Agency shall find feasible and consistent with the
objectives of the Community Redevelopment Law and of the Redevelopment Plan,to a qualified and
responsible party or parties (as reasonably determined by the Agency) who will assume the
Developer's obligation to begin and/or complete and/or operate the Development, or such other
replacement project acceptable to the Agency in its soie and absolute discretion,in accordance with
this Agreement and the Redevelopment Plan. Upon such resale of the Talley Parcel(or any portion
thereof),the proceeds thereof shall be applied as follows:
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04 0723858
(i) First,to pay any and all amounts required to release/reconvey any Permitted
Encumbrance;and
(ii) Second, to reimburse the Agency on its own behalf or on behalf of the City
for all actual internal and third parry costs and expenses previously or
currently incurred by the Agency and the City related to the Talley Parcel or
the Development, including, but not limited to, customary and reasonable
fees or salaries to third party personnel engaged in such actions,in connection
with the recapture,management and resale of the Talley Parcel or any part
thereof,all taxes,assessments and utility charges paid by the City and/or the
Agency with respect to the Talley Parcel or portion thereof, any payment
made or necessary to be made to discharge or prevent from attaching or being
made any subsequent encumbrances or liens due to obligations incurred by
the Developer or the Agency or the City with respect to the making or
completion of the Development or any part thereof upon the Talley Parcel;
and amounts otherwise owing to the Agency by the Developer or its
successors in interest to the Talley Parcel or any part thereof pursuant to the
terms hereof, and
(iii) Third,to the extent that any and all funds that are proceeds from such resale
are thereafter available, taking into account any prior encumbrances with a
claim thereto,to reimburse the Developer,or its successors in interest to the
Talley Parcel or any part thereof, equal to the third parry costs actually
incurred and paid by the Developer for the Development of the Property,
including,but not limited to,costs of carry,taxes,and other items as set forth
in the Developer's cost statement, which,sball be subject to the Agency's
reasonable approval; provided, however, that the Developer shall not be
entitled to reimbursement for any expenses to the extent that such expenses
relate to any liens or other encumbrances that are paid by the Agency
pursuant to the provisions of subsections (i)or(ii) above.
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Any portion of the resale proceeds remaining after the foregoing applications shall be retained bythe
Agency as its sole and its exclusive property.
45.5 IMMEDIATELY FOLLOWING THE SIXTY (60) DAY PERIOD
SPECIFIED ABOVE, THE AGENCY, ITS EMPLOYEES AND AGENTS SHALL HAVE THE
RIGHT TO REENTER AND TAKE POSSESSION OF ALL OR ANY PORTION OF THE
TALLEY PARCEL AND ITS IMPROVEMENTS WITHOUT PRIOR NOTICE OR
COMPENSATION TO THE DEVELOPER BY ITS INITIALS BELOW, THE DEVELOPER
HEREBY EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL
RIGHTS THAT IT MAY HAVE UNDER CIVIL CODE SECTION 791 AND CODE OF CIVIL
PROCEDURE SECTION 1162,AS THOSE STATUTES ARE AMENDED OR SUBSTITUTED,
OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR
EFFECT.
DEVELOPER'S INITIALS
THE DEVELOPER ACKNOWLEDGES AND AGREES THAT THE AGENCY'S
EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO
THIS SECTION 4.5 SHALL WORK A FORFEITURE OF THE ESTATE IN THE TALLEY
PARCEL CONVEYED TO THE DEVELOPER HEREUNDER. THE DEVELOPER HEREBY
EXPRESSLY WANES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL EQUITABLE
AND LEGAL DEFENSES THAT IT MAY HAVE TO SUCH FORFEITURE,INCLUDING,BUT
NOT LIMITED TO, THE DEFENSES OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL.
PERFORMANCE OR COMPENSABLE DAMAGES. THE DEVELOPER FURTHER
EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ALL RIGHTS AND DEFENSES
THAT IT MAY HAVE UNDER CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR
COMMON LAW PRINCIPLE OF SIMILAR EFFECT.
THE DEVELOPER ACKNOWLEDGES THAT THE PURCHASE PRICE HAS
BEEN AD.IUSTED TO REFLECT THE POSSIBILITY OF FORFEITURE HEREUNDER AND
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9.
•V V
FURTHER ACKNOWLEDGES THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE
CONSIDERATION FOR ITS WAIVER AND RELINQUISHMENT OF RIGHTS AND
REMEDIES.
DEVELOPER'S INITIALS—kz
`
The Agency's remedies under this Section 4.5 and its remedies under the Grant Deed are not
mutually exclusive and the Agency may elect to enforce any or all of them.
ARTICLE 5. GENERAL.TERMS
5.1 Notices and Demands. All notices or other communications required or permitted
between the Agency and the Developer under this Agreement shall be in writing, and may be (i)
personally delivered, (ii) sent by United States registered or certified mail,postage prepaid,return
receipt requested, (iii) sent by telecopierlfacsimile, or(iv) sent by nationally recognized overnight
courier service (e.g., Federal Express), addressed to parties at the addresses provided in Article 1,
subject to the right of either party to designate a different address for itself by notice similarly given.
Any notice so given by registered or certified United States mail shall be deemed to have been given
on the second business day after the same is deposited in the United States mail. Any notice not so
given by registered or certified mail,such as notices delivered by telecopier or courier service(e.g.,
Federal Express),shall be deemed given upon receipt of the same by the party to whom the notice is
given.
5.2 Nonliability of Agency or City Officials and Employees. No board member,
official,contractor,consultant,attorney or employee of the Agency or City shall be personally liable
to the Developer, any voluntary or involuntary successors or assignees,or any lender or other party
holding an interest in the Talley Parcel, in the event of any default or breach by the Agency, or for
any amount that may become due to the Developer or to its successors or assignees, or on any
obligations arising under this Agreement.
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Uci53 Conflict of Interests. No board member,official,contractor,consultant,attorney or
employee ofthe Agency or City shall have any personal interest,direct or indirect,in this Agreement
nor shall any such board member, official or employee participate in any decision relating to this
Agreement that affects his/her personal interests or the interests of any corporation,partnership or
association in that he/she is directly or indirectly interested.
5.4 Time Deadlines Critical; Extensions and Delays; No Excuse Due to Economic
Changes. Time is of the essence in the performance of the Agency's and Developer's obligations
under this Agreement In addition to specific provisions of this Agreement,providing for extensions
of time,times for performance,hereunder shall be extended where delays or defaults are due to war;
insurrection; any form of labor dispute;lockouts;riots;floods;earthquakes;fires;acts of God or of
third parties; third party litigation; acts of a public enemy; acts of governmental authorities;
epidemics;quarantine restrictions;and freight embargoes(collectively,"Enforced Delays")provided,
however, that the Party claiming the extension notify the other Party of the nature of the matter
causing the default; and,provided further,that the extension of time shall be only for the period of
the Enforced Delays.
The foregoing notwithstanding,Developer expressly agrees that adverse changes in economic
conditions, either of Developer specifically or the economy generally, or changes in market
conditions or demands, shall not operate to excuse or delay the performance of each and every of
Developer's obligations and covenants arising under this Agreement Developer expressly assumes
the sole risk of such adverse economic or market changes or conditions,whether foreseeable or not
at the time of Developer's entry into this Agreement Without limiting the generality of the
foregoing,deadlines for performance may not be extended as provided above due to any inability of
the Developer to obtain or maintain financing for the construction and/or operation of the Project
5.5 Attorneys' Fees. In the event of the bringing of an arbitration, action or suit by a
Parry hereto.against another Party hereunder by reason of any breach of any of the covenants or
agreements or any intentional inaccuracies in any of the representations and warranties on the part of
the other Parry arising out of this Agreement or any other dispute between the Parties concerning this
Agreement or the Property, then, in which event, the prevailing party in such action or dispute,
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whether by final judgment or arbitration award,shall be entitled to have and recover of and from the
other Parry all costs and expenses of suit or claim,including actual attomeys'fees. Any judgment,
order or award entered in any final judgment or award shall contain a specific provision providing
for the recovery of all costs and expenses of suit or claim, including actual attorneys' fees
(collectively,the "Costs")incurred in enforcing,perfecting and executing such judgment or award.
For the purposes of this Section 5.5, Costs shall include,without implied limitation,attorneys'and
experts' fees,costs and expenses incurred in the following: (i)postjudgment motions and appeals,
(ii) contempt proceedings, (iii) garnishment, levy and debtor and third parry examination; (iv)
discovery; and (v) bankruptcy litigation. This Section 5.5 shall survive any termination of this
Agreement.
5.6 Submission of Documents and Other Actions for Approval. Except where such
approval is expressly reserved to the sole discretion of the approving party,all approvals required
hereunder by either party sball not be unreasonably withheld or delayed.
5.7 Amendments to This Agreement. The Developer and the Agency agree to consider
reasonable requests for amendments to this Agreement that may be made by any of the Parties
hereto, lending institutions, bond counsel or financial consultants. Any amendments to this
Agreement must be in writing and signed by the appropriate authorities of both the Agency and the
Developer. The Agency's Executive Director or designee is authorized on behalf of the Agency to
approve any documents relating to the implementation of this Agreement, including, without
Iimitation,Additional Instructions,the Grant Deed,any minor amendments to this Agreement,or the
granting of extensions of time to the Developer.
5.8 Jurisdiction and Venue. Any legal action or proceeding concerning this Agreement
shall be filed and prosecuted in the appropriate California state court in the County of Los Angeles,
California. Each party hereto irrevocably consents to the personal jurisdiction of that court. The
Agency and the Developer each bereby expressly waive the benefit of any provision of federal or
state law or judicial decision providing for the filing,removal,or change of venue to any other court
or jurisdiction, including,without implied limitation,federal district court,due to any diversity of
Y:\Agmey\Taney Budding\TaBryDDA_3o 803_�itb mrmcdow.dnc -48- 04 0723858 .
citizenship between the Agency and the Developer,due to the fact that either the City or the Agency
is a party to such action or proceeding or due to the fact that a federal question or federal right is
involved or alleged to be involved. Without limiting the generality of the foregoing,the Developer
and the Agency specifically waive any rights provided to it pursuant to California Code of Civil
Procedure Section 394. The Developer acknowledges that the provisions of this Section 5.8 are '
material consideration to the Agency for its entry into this Agreement,in that the Agency will avoid
the potential cost, expense and inconvenience of litigating in a distant forum.
5.9 Interpretation. The Agency and the Developer acknowledge that this Agreement is
the product of mutual aims-length negotiation and drafting and that each party has been represented
by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of
construction that provides the ambiguities in a document shall be construed against the drafter of that
document shall have no application to the interpretation and enforcement of this Agreement In any
action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to any
extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine
and give effect to the intention of the Parties.
5.16 Counterpart Originals;Integration. This Agreement maybe executed in duplicate
originals,each of which is deemed to be an original,but when taken together shall constitute but one
and the same instrument This Agreement, and its Exhibits, which are attached hereto and
incorporated by reference herein,represent the entire understanding of the parties and supersedes all
negotiations, letters of intent, memoranda of understanding or previous agreements between the
parties with respect to all or any part of the subject matter hereof.
5.11 No Waiver. Failure to insist on any one occasion upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such term,covenant or
condition,nor shall any waiver or relinquishment of any rights or powers hereunder at any one time
or more times be deemed a waiver or relinquishment of such other right or power at any other time or
times.
Y.\Agmry\Talley 6u0ding\TahayDDA_ioo8o3_witb conl=6om.dot -49- 04 0723858
F723858
51
5.12 Successors and Assigns. The terms, covenants and conditions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns.
Except as provided by Section 3.4.15.2,upon the permitted sale,transfer or conveyance by an owner
of the Talley Parcel of its interest therein in accordance with Section 3.4.15, such owner shall
thereupon be relieved of its obligations under this Agreement from and afterthe date of sale,transfer
or conveyance except with respect to any defaults in the performance of its obligations hereunder
that occurred prior to such sale,transfer or conveyance,and the transferee shall thereafter be solely
responsible for the performance of all of the duties and obligations of Developer under this
Agreement
5.13 No Third Party Beneficiaries. The performance of the Agency's and the Developer's
respective obligations under this Agreement are not intended to benefit any party other than the
Agency or the Developer,except as expressly provided otherwise herein. No person or entity not a
signatory to this Agreement shall have any rights or causes of action against any party to this
Agreement as a result of that party's performance or non-performance under this Agreement,except
as expressly provided otherwise herein.
5.14 No Effect on Eminent Domain Authority. Nothing in this Agreement shall be
deemed to limit,modify, or abridge or affect in any manner whatsoever the Agency's and the City's
eminent domain powers with respect to any portion of the Property,the Development,or any other
property owned by the Developer.
5.15 Survival of Representations and Warranties. The representations and warranties
of the Parties set forth in this Agreement shall survive the recordation of the Grant Deed and the
Close of Escrow and shall not be deemed merged into the Grant Deed upon its recordation.
5.16 Real Estate Commissions. The Agency and Developer each represent that it has not
engaged any broker, agent or finder in connection with this Agreement. Neither Party shall be
responsible, either directly or indirectly,for any broker's,agent's or finder's fees. Each Party shall
indemnify, defend and bold the other Party and their officials, officers, employees and agents
Y:Wmey\Ta➢ey Binding\TalleyDDA_100803_y%ith mrre[riam.dae -50- ® ,1 0723858
723g5U
harmless for any actual or alleged claims, suits, damages or losses arising from the indemnifying
Party's breach of the foregoing provision.
5.17 Tax Consequences. The Developer acknowledges that it may experience tax
consequences as a result of its receipt of the benefits provided for in and related to this Agreement
and agrees that it shall bear,at its sole cost and expense, any and all responsibility,liability,costs,
and expenses connected in any way therewith.
[Signatures on following pages]
Y:\Aomcy\TaDLyBwlding\TnbcyDDA_ioogoa—withmrmctiow.doc -S1- 0723858 -
SIGNATURE PAGE TO.
DISPOSITION AND DEVELOPMENT AGREEMENT
THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA,
a California public agency
By: ✓�'�'�—
Rick Cole
Executive Director
ATTES
LAgency Secretary
APPROVED AS TO LEGAL FORM:
BEST BEST &KRIEGER LLP
By: ��h - lt'Uc'LY
Agency Counsel
04 0 ''123858
y:\Agmcy\TaDLyDuDding\7aDeyDDA_iooBo3_witheDn-ettam.doe -52-
V
SIGNATURE PAGE TO
DISPOSITION AND DEVELOPMENT AGREEMENT
621 Talley LLC
a California Limited Liability Company
i
By:
Its: .00$0L r P✓ r .
By:
Its:
04 0723858
Y: �tcy\Tolley➢wlding\TntleyDDA_aooea�with wneetions.doc -53-
STATE OF CALIFORNIA ) CAPACITY CLAZIED BY SIGNER:
COUNTY OF LOS ANGELES ) I Ihdividaat(s)
CorporA
oBi=r(s)
1 Partn=(s)
On NOVgrn-i tLZ'{ , 2003, before me, the (Anamcy-m-Fact
undersigned notary public, personally appeared tTnutee(s)
(Subsmbiag Witness
I personally known to me OR 1 proved to me on the basis of camel adCoase vnrar
satisfactoryevidence to be the person(s)whose nam {s islare SIGNER IS REPRESENTING:
subscribed to the within instrument and acknowledged to me NAN EOF PERSON(S)OR ENmYw)
that he/sbe/they executed the same in his/ber/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument
WITNESS my hand and official seal. JESSICA E.BRAVO
JESSICnIg
A
# 1445870
-m Notary PuhBc-Caffomlo
cos .EXP& County
MyComm.Erytrea Od 17,207;
Signature of Notary Public
J�acn�.eta�o
Commlt�fl dF lQ4BB70
�vCaeRm..6�0ef�iT
04 0723858
AVPIJS\.758\65g97n
STATE OF CALIFORNIA ) CAPACIr'Y OLADJIED BY SIGNER:
COUNTY OF LOS ANGELES ) 1]ncorpaat(s)
cn�pmute
OM=T(s)
I P.,b=fs)
On �, S t , 2003, before me, the i AADmny-i-rw
undeigned notary public, personally appeared I rms ee(c)
j �, ✓ /i� I i Subsrnbing Wimas
I personally known to me OR i proved to me on the basis of o"n`diazi/c°m""n'°`
Ofhu
satisfactory evidence to be the person whose name 15 SIGNER IS REPRESENMr:
subscribed to the within instrument and acknowledged to me NAME OFPEmON(s)OR EWT1T1 ffs)
that he/shefl�executed the same in histhap4h i a:uthorized
capacityW,' and that by his/her/their signature(A on the
instrument the persons , or the entity upon behalf of which
the person(4 acted,executed the instrument
CYNTHIA SEFFEn
WITNESS my hand and official seal. eammtsstaef V9S88YP
Nato Y Psibtt=-
all
I
Las Angeles CouRtp
Sipajhre of Notary Public
04 0723858
RWUB\JSB\659970 -
,50
STATE OF CALIFORNIA ) CAPACITY CLAMED BY SIGNER:
COUNTY OF LOS ANGELES ) I mCMPDn(S)
Corpmme
OSca(s)
�ParmMs)
On 2003, before me, the IAnomcy-inFna
undersigned notary public, personally appeared Tmft*1
Sub=bing VrM=s
I personally Imown to me OR l proved to me on the basis of i c,wdiwdconservawr
satisfactoryevidence to bathe erson(s)whosenam s is/are °a"
P � ) SIGNER is REPRESEN`Mc:
subscribed to the within instrument and aclmowledged to me NAME OFIFIMON(S)OR MM Y(ES)
that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
04 0723858
RVPUB\JSO\659970
EXHIBIT A TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Legal Descriptions
Breezeway Parcel
The land referred to herein is situated in the County of Los Angeles, State of California, and is
described as follows:
Lot 41, in Block 37 of Azusa Tract as recorded in the Miscellaneous Records,Book 15,
Page 93 through 96.
Talley Parcel
The land referred to herein is situated in the County of Los Angeles, State of California, and is
described as follows:
Lots 42 and 43,in Block 37 of Azusa Tract as recorded in the Miscellaneous Records,Book
15,Page 93 through 96.
RVPUB\JSBV159970 Exhibit A 04 0723858
EXMBrT B TO kD
DISPOSITION AND DEVELOPMENT AGREEMENT
Scope of Development
The scope of development consist of
1. The rehabilitation of the existing Talley building to include approximately 3,462 square feet
of ground floor retail with restaurant space, and five loft apartments on the second and third
floors. Apartments will range between 845 square feet and 1,297 square feet in size. The
third floor will be recessed to the rear so as not to disturb the western view of the east facade.
Key features of the rehabilitation are the maintenance of the existing design of the east
facade, and the design and use of materials for the windows and doors as specified by the
Azusa Cultural and Historic Landmark Commission
2. The demolition of the existing structure on the Breezeway parcel,and the construction of the
Breezeway improvements as specified on construction drawings to be provided by the City of
Azusa Redevelopment Agency.
0723858
RWUBWSB\659970 Exhibit B. -
EhffiIT C TO
DISPOSMON AND DEVELOPMENT AGREEMENT J ;'
Schedule of Performance
Nalc Days assumes basins days and excludes holidays
Task - Time Frame Date
Agency Approval of Agreement October 20,2003 (effective
date
Opening of Escrow 5 days from Effective Date - October 27,2003
Agency to Provide Preliminary Title 20 days from Effective Date November 17,2003
Report
Beginning of Environmental Review 8 days from effective date October 30,2003
Period
Developer to Provide Developer's Title 30 Days from receipt of Preliminary December 30,2003
Notice Title Report
Agency to Provide"Documents and 8 Days from Effective Date October 30,2003
Materials"
Submission by Developer of Precise Plan Within 20 days of Effective Date November 18,2003
of Design
Approval of Precise Plan of Design(PPD) 15 days from submittal of PPD December 10,2003
Agency to Make Election regarding title Within 10 Days of receipt of January 14,2004
issues Developer's Title Notice
Developer to Make Election regarding Within 10 Days of receipt of Agency January 29,2004
title issues Election
End of Environmental Review Period 30 days from beginning period December 16,2003
Developer submits construction Within 30 days of final approval of January 26,2004
documents,preliminary and final,grading, Precise Plan of Review
paving and landscaping plans and
ancillary documents
City Approval/Disapproval construction Within 30 days from receipt of March 9,2004
documents,preliminary and final,grading, constructions plans and documents
paving and landscaping plans and
ancillary documents
Developer corrects construction Within 21 days from receipt of April 7,2004
documents,preliminary and final,grading Disapproval
paving and landscaping plans and
ancillary documents
Developer begins construction 90 days from approved construction August 13,2004
drawings and documents
Developer to Provide Notice of Intent to On or before one(1)business day August 30,2004
Waive Title Issues or Permit Agency 30 prior to the Closing Date
days to clear title issues
Payments and Submittals provided to At least one(1)day prior to Closing August 30,2004
Escrow Holder
Close of Escrow August 31,2004
Obtain Certificate of Completion August 2,2004
Obtain a final certificate of occupancy August 30,2004
RVPUa\•156\659970 Exhibit C - V d 0 7 23858
E7 HMff D TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Grant Deed
[attached following this page]
04 0723858
xvrus\Jsa\659970 Exhibit D
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
621 Talley LLC
280 S. Beverly Drive,Penthouse
Beverly Hills, California, 90212-3906
MAIL TAX STATEMENTS TO:
621 Talley LLC
280 S.Beverly Drive, Penthouse
Beverly Hills, California, 90212-3906
GRANT DEED
For valuable consideration,receipt of which is hereby acknowledged,
THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA,a public body,corporate
and politic,of the State of California,herein called"Grantor,"acting to carry out the Redevelopment
Plan for the Redevelopment Agency of the City of Azusa ("City") Merged Central Business
DistrictfWest End Project Area ("Project Area") (which plan is hereinafter referred to as the
"Redevelopment Plan")under the Community Redevelopment Law of California,hereby grants to:
621 Talley LLC,a California Limited Liability Company
as "Grantee,"the real property (hereinafter referred to as the "Property"),described as:
See attached Exhibit "1" attached hereto and
incorporated by reference herein ("Talley Parcel")
Excepting therefrom:
[***INSERT ANY OTHER TITLE EXCEPTIONS***]
And further.
1. The Talley Parcel is conveyed subject to the Redevelopment Plan and pursuant to a
Disposition and Development Agreement(the "Agreement") entered into by and between Grantor,
and the Grantee dated as of .200_,which Agreement is incorporated herein by
reference. The Agreement is a public record and a copy of the Agreement is available for public
inspection and copying at the office ofthe Grantor,213 E.Foothill Blvd.,Azusa,California 91702-
1295. The Talley Parcel is conveyed further subject to all easements, rights-of-way, covenants,
conditions,restrictions,exceptions pursuant to the Agreement,reservations and all other matters of
RVPUB\J9B\659970 D-1 04 0723858
record. All initial capitalized terms used,but not otherwise defined herein,shall have the meanings
ascribed to such terms in the Agreement
2. The Grantee covenants and agrees for itself, its assigns and all voluntary and
involuntary successors in interest to the Talley Parcel or any part thereof, that for the life of the
Redevelopment Plan,the Talley Parcel shall be put to no use other than those uses specified in the
City's General Plan and zoning ordinances,this Grant Deed and the Agreement,as the same maybe
amended from time to time. Nothing in this Section 2 shall Iimit,expand,modify or otherwise affect
any right of the Grantee to continue any legal nonconforming use upon the Talley Parcel following
changes in the City's General Plan or zoning ordinances.
3. Grantee covenants and agrees that the Grantee will construct and open the
Development as required by this Agreement and,until the thirtieth(30th)anniversary of the earlier
of: (i)the Close of Escrow, or(ii) the issuance of a Certificates of Completion, will continuously
operate the Development, unless properly assigned or transferred pursuant to Section 3.4.15, in
which case,this covenant shall bind the assignee/transferee for the full term hereof.
The Grantee will not be deemed to be in breach of this Section 3 should Grantee
temporarily cease to operate the Development for the following reasons:
(i) general repair and/or maintenance,the construction of improvements,
and the installation of utilities;
(ii) acts of enforced delay as defined in Section 5.4 of the Agreement due
to wear, insurrection, labor disputes, lockouts,third party litigation,
acts of a public enemy or governmental authority; and
(iii) the restoration and rebuilding of the Development, as more
particularly described in Section 3.4.19.4 of the Agreement,
following casualty loss due to floods,earthquakes,fires,other acts of
God or third parties.
4. The Grantee covenants and agrees that except as otherwise provided herein the
Grantee shall maintain, or cause to be maintained, the interior and exterior appearances of all
portions of the Property and Development,including,without limitation,the Breezeway Parcel,in a
good condition,ordinary wear and tear excepted_ The maintenance covenant of this Section 4 shall
remain in effect for the same period of time as the Operating Covenants set forth in Section 3 of this
Deed.
5. The Grantee covenants and agrees that following the damage, destruction and/or
demolition of the Property and/or Development by an act of God or casualty, including, but not
limited to,fire,floods and earthquakes,the Grantee will promptly restore and rebuild the Property
and/or Development(as applicable) in substantially the same form as required by the Agreement,
subject to such modifications as Grantor and Grantee may agree upon. The covenants of this
Section 5 shall remain in effect for the same period of time as the Operating Covenants set forth in
Section 3 of this Deed.
RVPUBWSB1659970 D-2 04 0723858
5.1 The Grantee covenants and agrees for itself, its assigns and all voluntary and
involuntary successors in interest to the Talley Parcel or any part thereof,that the Talley Parcel or
any portion thereof may not be used, or otherwise sold, transferred, conveyed, assigned, leased,
leased back,or hypothecated to or for any use that is partially or wholly exempt from the payment of
real property taxes or which would cause the exemption of all or any portion of such real property
taxes.
5.2 The Grantee covenants and agrees for itself,its successors,its assigns and all
voluntary and involuntary successors in interest to the Talley Parcel or any part thereof,that,for any
period that the Grantor is allocated property taxes pursuant to Health and Safety Code Section 33670
or successor statute,the Grantee shall not contest the assessed valuation of the Talley Parcel or any
part thereof, as established by the Los Angeles County Assessors Office.
The covenants set forth in this Deed touch and concern the Property,and every part thereof;
and constitute covenants running with the Property and every part thereof. These covenants may be
enforced by the Grantor or the City of Azusa(as an intended third party beneficiary),regardless of
whether the Grantor or the City currently or continue to own an interest in any property within the
Project Area
The Grantee irrevocably stipulates and agrees that breach of any of the covenants set forth in
Section 8, 16, 17 or Sections 2 through 5 will result in great and irreparable damage to the Grantor
and the City,will violate the public policy and the purposes of the CRL,and will result in damages
to Grantor and the City that are either impracticable or extremely difficult to quantify. Accordingly,
upon the breach of any covenant set forth in any such Section(s),Grantor may institute an action for
injunctive relief and/or for damages attributable to such breach. The covenants set forth in Sections
2 through 5 constitute obligations of the owner of the Talley Parcel or any portion thereof. Neither
the Grantee nor any voluntary or involuntary successor in interest shall have any liability under this
Grant Deed for the breach of any of the covenants described above,if such breach occurs at any time
following the Grantee's or successor's cessation or ownership of the Talley Parcel.
6. Prior to the tenth(10'b)anniversary of the recordation of this Grant Deed,the Grantee
shall not,except as permitted by the Agreement, sell,transfer, convey, assign or lease the whole or
any part of the Talley Parcel without the prior written approval of the Grantor (other than as
expressly permitted in the Agreement).
7, This Section 7 reserves to the Grantor a power of termination in the Talley Parcel,as
such powers as described in California Civil Code Section 885.010, et M. Notwithstanding
anything else in this Deed or the Agreement to the contrary(inclusive of Section 4.3),the Grantor
shall,upon ninety(90)days written notice to the Grantee,have the right,at its option and due to any
cause set forth in this Section 7,to terminate the estate in the Talley Parcel granted to the Grantee
and take possession of the Talley Parcel and all improvements thereon,and to revest in the Grantor
the estate in the Talley Parcel conveyed to the Grantee and to vest title to all improvements
constructed thereon, if after conveyance of title and prior to the recordation of the Certificate of
Completion for the Development,the Grantee(or its successors in interest) shall:
RVPUB\M1 659970 - D-3 04 0723858
f,
(i) Fail to obtain a certificate of occupancy (as provided by City's Municipal
Code)for the shell and core improvements of the Development by the date
set forth in the Schedule of Performance attached to the Agreement; or
(ii) Abandon or substantially suspend, or allow the abandonment or substantial
suspension,of construction of all or any portion of the Development for thirty
(30) days after written notice of such abandonment or suspension from the
Grantor, or
(iii) Assign or attempt to assign the Agreement, or any rights or obligations
herein,or transfer,or suffer any involuntary transfer,of the Talley Parcel or
any part thereof,in violation of the Agreement,and such violation shall not
have been cured within thirty (30) days after of written notice thereof from
the Grantor, or
(iv) Fail to cure within thirty(30) days after occurrence any default with respect
to any financing secured by a deed of trust,mortgage or other security interest
in the Talley Parcel or any portion thereof.
The sixty (60) day written notice specified in this Section 7 shall specify that the
Grantor proposes to take action pursuant to this Section 7 and shall specify which of the Grantee's
obligations set forth in subsections(i)through(iv)have been breached. The Grantor may proceed
with the remedy set forth herein only if the Grantee does not cure such default within ninety (90)
days following such notice.
7.1 The right of the Grantor to reenter,repossess,terminate,vest and revest shall
be subject and subordinate to, shall be limited by and shall not defeat,render invalid or limit any
mortgage,deed of trust or other security interest required for any reasonable method of financing the
construction of improvements on the Talley Parcel and any other expenditures necessary to
appropriately develop the Property under the Agreement(provided that the Grantor has consented to
such financing pursuant to Section 3.4.15 ofthe Agreement)or any rights or interests provided in the
Agreement for the protection of the holders of any such mortgage, deed of trust or other security
interest.
Any deed to the Talley Parcel or any portion thereof conveyed or leased by the
Grantee to another party shall contain appropriate references and provisions to give effect to the
Grantor's rights as set forth in this Section 7 of the Agreement
7.2 Upon the Grantor's exercise of its rights and powers as provided in this
Section 7 of the Agreement, the Grantee or its successors shall convey by warranty deed to the
Grantor title to the Talley Parcel and all improvements thereon in accordance with Civil Code
Section 1109,as bereafter amended or substituted. Such conveyance shall be duly acknowledged by
the Grantee in a manner suitabl a for recordation. The Grantor may enforce its rights pursuant to this
Section 7 by means of an injunctive relief or forfeiture of title action filed in any court of competent
jurisdiction.
RVFUB\TS8\659970 D-4
04 0723858
7.3 Upon the revesting in the Grantor of title to the Talley Parcel by grant deed or
court decree,the Grantor shall use its reasonable good faith efforts to resell the Talley Parcel at fair
market value as soon and in such manner as the Grantor shall find feasible and consistent with the
objectives of the Community Redevelopment Law and ofthe Redevelopment Plan,to a qualified and
responsible party or parties(as reasonably determined by the Grantor)who will assume the Grantee's e
obligation to begin and/or complete and/or operate the Development, or such other replacement
project acceptable to the Grantor in its sole and absolute discretion, in accordance with this
Agreement and the Redevelopment Plan. Upon such resale of the Talley Parcel (or any portion
thereof),the proceeds thereof shall be applied as follows:
(i) First,to pay any and all amounts required to release/reconvey any Permitted
Encumbrance; and
(ii) Second,to reimburse the Grantor on its own behalf or on behalf of the City
for all actual internal and third parry costs and expenses previously or
currently incurred by the Grantor and the City related to the Talley Parcel or
the Development, including, but not limited to, customary and reasonable
fees or salaries to third party personnel engaged in such actions,in connection
with the recapture, management and resale of the Talley Parcel or any part
thereof;all taxes,assessments and utility charges paid by the City and/or the
Grantor with respect to the Talley Parcel or portion thereof; any payment
made or necessary to be made to discharge or prevent from attaching or being
made any subsequent encumbrances or liens due to obligations incurred by
the Grantee or the Grantor or the City with respect to the making or
completion of the Development or any part thereof upon the Property; and
amounts otherwise owing to the Grantor by the Grantee or its successors in
interest to the Talley Parcel or any part thereof pursuant to the terms hereof;
and
(iii) Third,to the extent that any and all funds that are proceeds from such resale
are thereafter available,taking into account any prior encumbrances with a
claim thereto, to reimburse the Grantee, or its successors in interest to the
Talley Parcel or any part thereof, equal to the third party costs actually
incurred and paid by the assignee for the Development of the Property
including,but not limited to,costs of carry,taxes,and other items as set forth
in the Grantee's cost statement, which shall be subject to the Grantors
reasonable approval;provided,however,that the Grantee shall not be entitled
to reimbursement for any expenses to the extent that such expenses relate to
any liens or other encumbrances that are paid by the Grantor pursuant to the
provisions of subsections (i) or(ii)above.
Any portion of the resale proceeds remaining after the foregoing applications shall be retained by the
Grantor as its sole and its exclusive property.
RWUH\356\559970 D-5 0 0723858
f 7 }
7.4 IMMEDIATELY FOLLOWING THE SIXTY (60) DAY PERIOD
SPECIFIED ABOVE,THE GRANTOR,ITS EMPLOYEES AND AGENTS SHALL HAVE THE
RIGHT TO REENTER AND TAKE POSSESSION OF ALL OR ANY PORTION OF THE
TALLEY PARCEL AND TI'S IMPROVEMENTS WITHOUT PRIOR NOTICE OR
COMPENSATION TO THE GRANTEE. BY ITS INITIALS BELOW,THE GRANTEE HEREBY
EXPRESSLY WANES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL RIGHTS THAT
IT MAY HAVE UNDER CIVIL CODE SECTION 791 AND CODE OF CIVIL PROCEDURE
SECTION 1162, AS THOSE STATUTES ARE AMENDED OR SUBSTITUTED, OR UNDER
ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.
GRANTEE'S INITIALS
THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE GRANTOR'S
EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO
THIS SECTION OF THE AGREEMENT SHALL WORK.A FORFEITURE OF THE ESTATE IN
THE TALLEY PARCEL CONVEYED TO THE GRANTEE HEREUNDER. THE GRANTEE
HEREBY EXPRESSLY WANES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL
EQUITABLE AND LEGAL DEFENSES THAT IT MAY HAVE TO SUCH FORFEITURE,
INCLUDING,BUT NOT LIMITED TO,THE DEFENSES OF LACHES,WAIVER,ESTOPPEL,
SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. THE GRANTEE
FURTHER EXPRESSLY WAIVES TO THE MAX RUM LEGAL EXTENT ALL RIGHTS AND
DEFENSES THAT IT MAY HAVE UNDER CIVIL CODE SECTION 3275 OR ANY OTHER
STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT.
THE GRANTEE ACKNOWLEDGES THAT THE PURCI4ASE PRICE HAS BEEN
ADJUSTED TO REFLECT THE POSSIBILITY OF FORFEITURE HEREUNDER AND
FURTHER ACKNOWLEDGES THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE
CONSIDERATION FOR ITS WAVER AND RELINQUISHMENT OF RIGHTS AND
REMEDIES.
GRANTEE'S lNrF ALS
8. The Grantee agrees that the Grantee will not unlawfully discriminate against any
employee or applicant for employment because of sex, marital status, race, color, religion, creed,
national origin, or ancestry, and that the Grantee will comply with all applicable local, state and
federal far employment laws and regulations.
The Grantee covenants and agrees that it will not unlawfully discriminate against or
segregation of any person or group of persons on account of race,color,creed,religion,sex,marital
status,.ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Talley Parcel,nor shall the Grantee itself,or any person claiming under or through
it,establish or permit any such practice or practices of unlawful discrimination or segregation with
reference to the selection, location, number, use of occupancy of tenants, lessees, subtenants,
sublessee or vendees of the Talley Parcel. The foregoing covenants shall run with the land, be
rzvros\as3\659970 D-6 04 0723858
�J
binding upon the Grantee's transferee's, successors and assigns, and shall remain in effect in
perpetuity.
All deeds,leases or contracts relative to the Talley Parcel,or the improvements constructed
thereon, shall contain or be subject to substantially the following nondiscrimination and non-
segregation clauses,pursuant to California Health and Safety Code Section 33435 and 33436.
A. In deeds: "The grantee herein covenants by and for himself,his heirs,
executors, administrators, and assigns,and all persons claiming under or through them,that there
shall be no unlawful discrimination against or segregation of, any person or group of persons on
account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale,
lease, sublease,transfer,use,occupancy,tenure or enjoyment of the land herein conveyed,nor shall
the grantee himself or any person claiming under or through him, establish or permit any such
practice or practices of unlawful discrimination or segregation with reference to the selection,
location,number,use or occupancy of tenants,lessees,subtenants,sublessees or vendees in the land
herein conveyed. The foregoing covenants shall run with the land."
B. In leases: "The lessee herein covenants by and for himself, his heirs,
executors,administrators and assigns,and all persons claiming under or through him,and this lease
is made and accepted upon the subject to the following conditions: That there shall be no unlawful
discrimination against or segregation of any person or group of persons,on account of race, color,
creed,religion,sex,marital status,national origin or ancestry,in the leasing,subleasing,transferring,
use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee himself, or any
person claiming under or through him,establish or permit any such practice or practices of unlawful
discrimination or segregation with reference to the selection,location,number,use or occupancy of
tenants, lessees, subtenants, sublessees or vendees of the land herein leased."
C. In contracts: "There shall be no unlawful discrimination against or
segregation of;any person or group of persons on account of race,color, creed,religion,sex,marital
status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land nor shall the transferee himself or any person claiming under or through him
establish or permit any such practice or practices of unlawful discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the land."
Nothing in this Section S shall operate as a waiver of any legal defenses that the
Grantee may have for a breach of any covenant contained herein, or operate to impose additional
burdens upon the Grantee other than those imposed by current law.
9. No violation or breach of the covenants, conditions, restrictions, provisions or
limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien
or charge of any mortgage,deed of trust or other financing or security instrument expressly permitted
by the Agreement;provided,however,that any successor of Grantee to the Talley Parcel or parcels
thereof shall be bound by such remaining covenants, conditions, restrictions, limitations and
RVPOB\J56\65947"
D-7 04 0'723850
provisions,whether such successor's title was acquired by foreclosure,deed in lieu of foreclosure,
trustee's sale or otherwise.
10. All covenants contained in this Grant Deed shall run with the Iand and shall be
binding upon the Grantee and for the benefit of the Grantor its successors and assigns and such
covenants shall run in favor of the Grantor and for the entire period during which such covenants
shall be in force and effect,without regard to whether the Grantor is or remains an owner of any land
or interest therein to which such covenants relate. The Cantor, in the event of any breach of any
such covenants, shall have the right to exercise all of the rights and remedies provided herein or
otherwise available,and to maintain any actions at law or suits in equity or other proper proceedings
to enforce the curing of such breach. The covenants contained in this Grant Deed shall be for the
benefit of and shall be enforceable only by the Grantor and its successors and assigns.
11. The covenants contained in this Grand Deed,without regard to technical classification
or designation, shall not be deemed to benefit or be enforceable by any person,firm or corporation,
public or private, except Grantor and the City of Azusa and their successors and assigns.
12. In the event of any express conflict between this Grant Deed and the Agreement,the
provisions of this Grant Deed shall control_
13. Grantee, its successors and assigns and all persons claiming under or through it
(including,without limitation,all lessees)hereby covenants that the Talley Parcel conveyed in this
Deed is to be developed compatible with the Redevelopment Plan and that is approved by the
Grantor. Grantee further covenants to commence and complete construction of the entirety of the
Development on or before the date speci5ed in the Agreement. Should Grantee fail to commence
and complete construction by such date, the Grantor may exercise the rights under the Power of
Termination in Section 7 of this Deed.
IN VJTNbSS ''HEREOF, the Grantor and Grantee have caused this instrument to be
executed this day of 200_
[Signatures on following pages]
BVPUB\JSB\6$9970 D-s 04 0723858
1
GRANTOR:
Dated: THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA
a California public agency
By:
Rick Cole
Executive Director
ATTEST:
City Clerk
APPROVED AS TO LEGAL.FORM
BEST BEST &KRIEGER LLP
Agency Counsel
04 0723858
@VPUa\JS5\659970 D-9
GRANTEE:
Dated: 621 Talley LLC
A California Limited Liability Company
By:
Its:
By:
Its:
RVPUEW58\65997o D-10 04 0723858
EXHIBIT "1"
LEGAL DESCRIPTION TO GRANT DEED
LEGAL DESCRIPTION OF TALLEY PARCEL
Lots 42 and 43,in Block 37 of Azusa Tract as recorded in the Miscellaneous Records,Book
15,Page 93 through 96.
04 0723858
RVPUB\JSB\659970 D-11
STATE OF CALIFORNIA ) cArAcrry GLum ED BY siGNER:
COUNTY OF RIVERSIDE ) (Indio duals)
Colpo me
Officu(s)
j Partners)
On 2003, before me, the Ammay-b-Fact
undersigned nptary public, personally appeared jT-1*0
j Subscribing Witness
I personally mown to me ORj proved to me on the basis of Ga duWCons Wr
i�
satisfactory evidence to be the person(s)whose name(s)islare SIGNER IS REPRESENTING:
subscribed to the within instrument and acknowledged to me NAME OF PERSON(S)OR EN=(MS)
that be/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which
the persons)acted,executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
04 0723858
RVPU13WSB\659970 D-12
j ;
RECORDING REQUESTED BY:
The Redevelopment Agency
of the.City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702-1295
Attn: City Manager
WHEN RECORDED MAIL TO:
621 Talley LLC
280 S. Beverly Drive,Penthouse
Beverly Hills, California, 90212-3906
Exempt from Recording Fee per
Government Code'27383
(Sparc above for Recorders Use)
CERTIFICATE OF COMPLETION
I, 1 1,Executive Director ofThe Redevelopment Agency ofthe City of
Azusa ("Agency"),certify as Mows:
By its Resolution No. 1,adopted and approved( 1, the Agency resolved
as follows:
Section 1. The improvements("Development")required to be constructed in accordance
with that certain Disposition and Development Agreement ("Agreement") dated as of
_, 200_ between the Agency and 621 Talley LLC ("Grantee") on that certain real property
("Property") described on the attached Exhibit I have been completed in accordance with the
provisions of the Agreement The Agreement was recorded on ( 1, as Instrument No.
f 1•
Section 2. Pursuant to Section 3.4.18 of the Agreement,this Cgrtificate of Completion is
a conclusive determination of the satisfactory completion of the Grantee's obligations under the
Agreement with respect to the completion of the Development, including all buildings and all
parldng,landscaping and related improvements necessary to support that Phase of the Development
and its use and occupancy upon the Property;,provided,however,that the Agency may enforce any
covenants and obligations surviving this Certificate of Completion in accordance with the terms and
conditions of the Agreement. The Agreement is an official record of the Agency and a copy of the
Agreement may be inspected in the office of the Secretary of the Agency,located at 213 E.Foothill
Blvd.,Azusa, CA 91702-1295, during regular business hours.
RVRM\JSB\6s9970 E-I
04 0723858
I
EAMIT E TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Certificate of Completion
[attached behind this page]
04 0723858
RVPM\JSs\659M Exhibit E
7
DATED AND ISSUED this day of
Rick Cole
Executive Director
ATTEST:
Agency Secretary
04 0723858
AVPUH\JSH\65997a E-2
EXHIBIT 1 TO
CERTIFICATE OF COMPLETION
Property Legal Description
Lots 42 and 43,in Block 37 of Azusa Tract as recorded in the Nfiscellaneous Records,Book
15,Page 93 through 96.
04 0723858
RVPU6\Jg8\6s997o E-3
E Is MIMMISHMEMEW2 IBM
LIBRARY COPY
Return Promptly - - Leave Outcard
® This page is part of your clocument- DO NOT DISCARD
04 1674762
f
RECORD'cD1Fl DINA
N OFFtCIAL REGORDS
RECORDER'S OFFICE
LOS ANGELES COUtIrry
CALIFORNIA
9:01 AM JUN 30 2004
TITLE(S)
t
I�III� �I���IIIIIIII,III9RI� � �III
L E A -D S H E E T
FEE D.T.T
FREE '
CODE
20F-CEIVED
CODE JUL 2 6 2004
19
C!'N OF AZUSA
CODE REDEVELOPMENT AGENCY
9
Assessor's Identification Number (AIN)
To be completed by Examiner OR Title Company in black ink. Number of AIN's Shown
® THIS FORM NOT TO BE DUPLICATED
04 N44 itjZ
RECORDING REQUESTED BY AND
WREN RECORDED MAIL.TO:
r
The Redevelopment Agency ! i
of the City of Azusa
Attn: Executive Director
213 E. Foothill Blvd.
Azusa, CA 91702-1295
Exempt from Recording Fee per
Government Code'27383 (Space above forRecanicesUse)
FIRST AMENDED AND RESTATED
TALLEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT
between
THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA
a California public agency
and
621 Talley LLC
a California Limited Liability Company
ORIGINAL
WATalley Su11ding\Talk_yDDA_0504.D0C -1-
T
i
ARTICLE 1. EFFECTIVE DATE; PARTIES; DEFINITIONS
1.1 Effective Date of Agreement. This First Amended and Restated Talley Building-
Disposition and Development Agreement is dated as of the 18th day of May, 2004, for reference
purposes only. This Agreement will not become effective until the date("Effective Date")on which
all of the following are true: e
(i) This Agreement has been approved and executed by the appropriate
authorities of the Developer,as defined in Section 1.2.21,and this Agreement
has been delivered to the Agency;
(ii) Following all legally required notices and hearings,this Agreement has been
approved by the Agency's governing board and the City Council(acting as the
Agency's legislative body); and
(iii) This Agreement has been executed by the appropriate authorities of the
Agency and delivered to Developer.
If this Agreement has been approved and executed by the Developer and delivered to
the Agency as provided in(i)above,but the Agency fails to approve and/or deliver this Agreement
as described in (iii) and (iv) above by December 4, 2003, then this Agreement shall not become
effective and any prior signatures and approvals of the Parties will be deemed void and of no force or
effect. This Agreement shall be recorded against the Property at any time following the Effective
Date.
1.2 Parties to Agreement.
1.2.1 The Agency. The address of the Agency is 213 E.Foothill Blvd.,Azusa,CA
91702-1295;telephone 626-812-5200;facsimile 626-334-5464,with copies to Best Best&Krieger
LLP, P.O. Box 1028, 3750 University Avenue, Suite 400,Riverside, CA 92501,Attention: Azusa
Redevelopment Agency Counsel, facsimile (909)686-3083.
"Agency," as used in this Agreement,means THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA,a California public agency,and any nominee,assignee of,or successor
to its rights,powers and responsibilities.
1 All article and section references are to articles and sections ofthis Agreement unless
otherwise stated.
04 1674762
W:lTalley Buildin9\Ta11eyDDA_0504.D0C -2-
J
Agency represents and warrants to Developer that, to the Agency's actual current
knowledge: f
(i) The Agency is a public body, corporate and politic, exercising
governmental functions and powers and.organized and existing under
the California Community Redevelopment Law(California Health&
Safety Code Section 33000, et seq.)("CRL");
(ii) The Agency has taken all actions required by laws to approve the
execution of this Agreement;
(iii) The Agency's entry into this Agreement and/or the performance ofthe
Agency's obligations under this Agreement does not violate any
contract, agreement or other legal obligation of the Agency;
(iv) The Agency's entry into this?agreement and/or the performance of the
Agency's obligations under this Agreement does not constitute a
violation of any state or federal statute orjudicial decision to which
the Agency is subject;
(v) There are no pending lawsuits or other actions or proceedings that
would prevent or impair the timely performance of the Agency's
obligations under this Agreement;
(vi) The Agency has the legal right,power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby,
and the execution, delivery and performance of this Agreement has
been duly authorized and no other action by Agency is requisite to the
valid and binding execution, delivery and performance of this
Agreement, except as otherwise expressly set forth herein;
(vii) The individual executing this Agreement is authorized to execute this
Agreement on behalf of the Agency; and
(viii) This Agreement constitutes a legal, valid and binding agreement of
the Agency,enforceable in accordance with its terms.
The representations and wan-antics set forth above are material consideration to the
Developer and the Agency acknowledges that the Developer is relying upon the representations set
WATalley BuadinglTalleyDDA_0504.DOC -3- 04 1674762
forth above in undertaking the Developer's obligations set forth in this Agreement. The Agency's
representations and warranties shall survive the Close of Escrow(as herein defined below)and shall C "
not be deemed merged with the Grant Deed.
The term "Agency's actual current knowledge" means, and is limited to,the actual
current knowledge of the Agency's Executive Director as of the Effective Date without having
undertaken any independent inquiry or investigation for the purpose of making such representation or
warranty and without any duty of inquiry or investigation.
All of the terms,covenants and conditions of this Agreement shall be binding on and
shall inure to the benefit of the Agency and its nominees, successors and assigns.
1.2.2 The Developer. The Developer is 621 Talley LLC, a California Limited
Liability Company. The address of the Developer for purposes of this Agreement is 280 S.Beverly
Drive,Penthouse,Beverly Hills,California,90212-3906,telephone(310)888-3222;facsimile(310)
888-4046.
Developer represents and warrants to Agency that,to the Developer's actual current
knowledge:
(i) The Developer is a duly foamed and existing California Limited
Liability Company and is in good standing and qualified to do
business under the laws of the State of California;
(ii) The individual(s) executing this Agreement is/are authorized to
execute this Agreement on behalf of the Developer;
(iii) The Developer has taken all actions required by law to approve the
execution of this Agreement;
(iv) The Developer's entry into this Agreement and/or the performance of
the Developer's obligations under this Agreement does not violate any
contract,agreement or other legal obligation of the Developer;
(v) The Developer's entry into this Agreement and/or the performance of
the Developer's obligations under this Agreement does not constitute
a violation of any state or federal statute or judicial decision to which
the Developer is subject;
WATalley Building\TalleyDDA_0504.DOC -4- 04 1674762
(vi) There are no pending lawsuits or other actions or proceedings that
would prevent or impair the timely performance of the Developer's
obligations under this Agreement; and
vii) The Developer has the legal right,power and authority to enter into
this Agreement and to consummate the transactions contemplated
hereby, and the execution, delivery and performance of this
Agreement have been duly authorized and no other action by
Developer is requisite to the valid and binding execution, delivery
and performance of this Agreement,except as otherwise expressly set
forth herein.
The representations and warranties set forth herein are material consideration to the
Agency and the Developer acknowledges that the Agency is relying upon the representations set
forth above in undertaking the Agency's obligations set forth above.
The term"Developer's actual current knowledge"means,and is limited to,the actual
current knowledge of Hagop Sargisian as of the Effective Date without having undertaken any
independent inquiry or investigation for the purpose of making such representation or warranty and
without any duty of inquiry or investigation.
All of the terms,covenants and conditions of this Agreement shall be binding on and
shall inure to the benefit of the Developer and its permitted nominees, successors and assigns.
Wherever the term "Developer" is used herein or therein, such term shall include any permitted
nominee, assignee or successor of the Developer.
The qualifications and identity of the Developer are of particular concern to the
Agency,and it is because of such qualifications and identity that the Agency has entered into this
Agreement with the Developer. No voluntary or involuntary successor-in-interest of the Developer
shall acquire any rights or powers under this Agreement except as expressly set forth herein. Prior to
the earlier of the tenth(I Om)anniversary of the Close of Escrow(defined below),the Developer may
not assign or transfer all or any part of this Agreement or the Property(hereinafter defined)without
the prior written approval of the Agency,which shall be given,withheld or condition as provided in
Sections 3.4.15 and 3.4.17.
WATalley BuildingWalleyODA DSU DOC -5- - 04 1674762
.y
1.23 Agency and Developer are sometimes individually referred to herein as µ
r
"Party" and collectively as "Parties."
r
3
ARTICLE 2. RECITALS ABOUT THE PLAN AND PROJECT
2.1 The Redevelopment Plan and Project Area. The City Council of the City of Azusa
("City") has approved and adopted a redevelopment plan ("Redevelopment Plan") for the
redevelopment project area known as the Merged Central Business District/West End Project Area
("Project Area")by its adoption of Ordinance No.2382 on November 7, 1988. The original Central
Business District Redevelopment Plan, amended seven (7) times, was originally approved by
Ordinance No. 2062 on September 18, 1978. The original West End Redevelopment Plan was
approved by Ordinance No. 2196 on November 28, 1983. This Agreement is subject to the
provisions of the Redevelopment Plan as it now exists and as it may be subsequently amended. The
Redevelopment Plan is incorporated by this reference.
The Project Area is located in the City of Azusa, California; its boundaries are specifically
described in the Redevelopment Plan.
2.2 Purpose of this Agreement. On or about Novemebr 11,2003,the Parties entered
into that certain Talley Building-Disposition and Development Agreement("Original Agreement'.
Pursuant to section 5.7 of the Original Agreement,the Parties may,by writing signed by both Parties
amend the Original Agreement. The Original Agreement, as amended by this First Amended and
RestatedTalley Building-Disposition and Development Agreement,shall be referred to herein as the
"Agreement". This Agreement and the Exhibits attached hereto implement the Redevelopment Plan
for the Project Area by providing for the disposition and development of real property in the City of
Azusa as more specifically described in the Scope of Development TAhLbit B attached hereto
("Development"). The development of the Property pursuant to this Agreement is in the best
interests of the City and Agency and the health, safety, morals and welfare of its taxpayers and
residents and is in accordance with public purposes set forth in federal, state and local law and
regulation. Implementation of this Agreement will further the goals and objectives of the
Redevelopment Plan and the City's General Plan by strengthening the City's land use and social
structure and by alleviating economic and physical blight within the Project Area
W:Walley BuildinglTalleyMkD504.DOC -6- 04 1674762
ARTICLE 3. ACQUISTI'ION, CONVEYANCE AND DEVELOPMENT
3.1 The Properly. The subject property consists of the Breezeway Parcel and the Talley '
Parcel, totaling approximately 10,498 square feet of land,more or less, and located at 617-621 N.
Azusa Avenue, in the City of Azusa, California 91702 (the "Property"). The Property is legally
described on the attached Exhibit A-
3.1.1 Breezeway Parcel. The first parcel,located at 617 N.Azusa Avenue,Azusa
California 91702(Assessor Parcel No.8611-004-909)shall be referred to as the"Breezeway Parcel".
The Breezeway Parcel lot is approximately 3,498 square feet, more or less, and is currently
improved with a 2,880 square foot,two story building(the"Breezeway Building"). The Breezeway
Parcel is currently owned by the Azusa Valley Water Company.
3.1.2 Talley Parcel. The second parcel, located at 619-621 N. Azusa Avenue,
Azusa California 91702(Assessor Parcel Nos.8611-004-900 and 8611-004-901)shall be referred to
as the"Talley Parcel". The Talley Parcel lot is approximately 7,000 square feet,more or less,and is
currently improved with a 7,200 square foot, two story, brick building (the "Existing Talley
Building"). The Talley Parcel is currently owned by the Agency.
3.2 (Intentionally Left BlanLJ
3.3 Phase I -- Conveyance of Talley Parcel. In accordance with and subject to all the
terms, conditions and covenants of this Agreement, the Agency agrees to convey fee simple
defeasible tide to the Talley Parcel to Developer as more specifically set forth in the grant deed
attached hereto as Exhibit D("Grant Deed"),and Developer agrees to acquire such tide from Agency
pursuant to this Agreement_ as more fully set forth below.
33.1 Consideration. In consideration of Developer's obligation to undertake the
Development in accordance with this Agreement,the Agency shall convey to Developer the Talley
Parcel.
WATalley Building%Talley0DA_05D4.D0C -7-
04 1674762 .
r
1t
33.2 [Intentionally Left Blank.] +,
F
33.3 Escrow.
333.1 Opening of Escrow. Within the time period set forth in the
Schedule of PerformanceExhibit C),the Agency and Developer shall open an escrow('Escrow")
for the conveyance of the Talley Parcel with First American Title Company(Escrow Holder"),at a
location mutually agreeable to the Parties. For purposes of this Agreement, the Escrow shall be
deemed open on the date Escrow Holder shall have received a fully executed original or originally
executed counterparts of this Agreement from Agency and Developer('Opening of Escrow"),and
Escrow Holder shall notify Agency and Developer,in writing,of the date Escrow is opened. Agency
and Developer acknowledge and agree that the Opening of Escrow shall occur within five (5)
business days following the Effective Date. This Agreement constitutes the joint basic escrow
instructions of the Agency and the Developer for the conveyance of the Talley Parcel,and a duplicate
original of this Agreement shall be delivered to the Escrow Holder upon the Opening of Escrow.
Agency and Developer agree to execute, deliver and be bound by any reasonable or customary
supplemental or additional escrow instructions('Additional Instructions")of Escrow Holder or other
instruments as may be reasonably required by Escrow Holder in order to consummate the transaction
contemplated by this Agreement. Any such Additional Instructions shall not conflict with,amend or
supersede any portions of this Agreement unless expressly consented or agreed to in writing by
Agency and Developer.
3.3.3.2 Close of Escrow. "Close of Escrow"or"Closing"means the
recordation of the Grant Deed (defined herein) in Los Angeles County Official Records. Close of
Escrow shall occur on or before August 30,2004 ('Outside Closing Date"),provided that Agency
and Developer may,but shall not be obligated to,close the Escrow upon such earlier date as Agency
and Developer mutually agree to in writing. The Closing shall be subject to the satisfaction or
written waiver of all conditions precedent thereto. The Agency and the Developer agree to perform
all acts necessary for the conveyance in sufficient time for title to be conveyed by the Outside
WATalley Bui1ding%TalieyDDA D5D4.DDC -8- 04 1674762
Closing Date. Agency and Developer may mutually agree to change the Outside Closing Date by
joint written notice to Escrow Holder. 1
33.4 Condition of Title. It shall be a condition to the Close of Escrow for
Developer's benefit that title to any portion of the Talley Parcel conveyed to Developer pursuant to
this Agreement shall be subject only to the following conditions and exceptions to title("Approved
Condition of Title"):
3.3.4.1 A lien to secure payment of general and special real property .
taxes and assessments, if any, not delinquent;
3.3.41 The lien of supplemental taxes assessed pursuant to Chapter
3.5 commencing with Section 75 of the California Revenue
and Taxation Code;
3.3.43 Matters affecting the condition of title created by or with the
consent of Developer,
33.4.4 All exceptions that are disclosed by the "Title Report"
described in Section 3.3.16 that are approved or deemed
approved by Developer as provided therein;
33.4.5 All matters that would be shown by an accurate survey of the
Talley Parcel or by a physical inspection of the Talley Parcel;
33.4.6 Any and all easements,documents and/or memoranda that are
recorded against the Talley Parcel upon the Close of Escrow
pursuant to the terms and conditions of this Agreement; and
3.3.4.7 All applicable laws, ordinances, rules and governmental
regulations (including, but not limited to, those relative to
building,zoning and land use)affecting the development,use,
occupancy or enjoyment of the Talley Parcel.
33.5 Title Policy. Title shall be evidenced by the willingness of First American
Title Company("Title Company")to issue its CLTA Owner's Form Policy of Title Insurance and its
WATalley BuiidingUalleyDDA_0504.DOC -9- 04 1674762
CLTA Lender's Form Policy of Title Insurance(collectively, "Title Policy") in the amount of One
Hundred Fifty Eight Thousand dollars ($158,000) showing title to the Talley Parcel vested in
Developer, subject only to the Approved Condition of Title. The premium for the CLTA Owner's
Form Policy Title Insurance shall be paid by Developer and the premium for the CLTA Lender's
Form Policy of Title Insurance shall be paid by Agency. Developer may, at its option,request-an
Extended Coverage ALTA Owner's Form Policy of Title Insurance("ALTA Policy")provided that
the issuance of said ALTA Policy does not delay the Close of Escrow. Any additional costs
including,but not limited to,title and endorsement fees and survey fees incurred in connection with
the issuance of such ALTA Policy shall be Developer's sole responsibility. The issuance by Title
Company of the Title Policy or ALTA Policy in favor of Developer insuring fee title to the Talley
Parcel in the amount of One Hundred Fifty Eight Thousand dollars($158,000),subject only to the
Approved Condition of Title, shall be conclusive evidence that Agency has complied with any
contractual or statutory obligation;express or implied,to convey to Developer good and marketable
title to the Talley Parcel.
33.6 Conditions to Close of Escrow.
33.6.1 Developer's Conditions. Developer'sobligationtoaccepttitle
to the Talley Parcel and pay the Purchase Price is subject to the satisfaction of the following
conditions for Developer's benefit(or Developer's waiver thereof,it being agreed that Developer may
waive any or all of such conditions) on or prior to the Outside Closing Date:
33.6.1.1 The Agency shall have deposited into Escrow the
Grant Deed and all other documents and funds
required of it under this Agreement;
33.6.1.2 The Escrow Holder shall have received a commitment
from the Title Company to issue the Title Policy or an
ALTA Policy, as applicable, for the Talley Parcel
pursuant to this Agreement, subject only to the
Approved Condition of Title;
WATalley BuildinglTalleyDDA_0504.DOC -- -10-
04 1674762
3.3.6.1.3 The City and the Agency shall have approved a
specific plan for the Development (which may
include surrounding properties pursuant to
Government Code Section 65450, at sept.) and those
development applications, entitlements and permits
required for Phase II, in accordance with this
Agreement and all applicable local, state and federal
laws and regulations including, without limitation,
environmental approvals related thereto and all
applicable judicial and administrative challenge
periods with respect thereto shall have expired;
3.3.6.1.4 The Agency and/or City, as applicable, shall have
taken all actions and issued such approvals as legally
required pursuant to provisions of the California
Environmental Quality Act ("CEQA") as pre-
conditions to the approval of the Development and all
applicable judicial and administrative challenge
periods have expired;
3.3.6.1.5 The Developer shall have approved or been deemed to
have approved the environmental condition and
condition of title of the Talley Parcel, as set forth in
more detail in Section 3.3.15 and Section 3.3.16;
3.3.6.1.6 All representations and warranties of the Agency
hereunder shall be true as of the Effective Date and
beyond and as of the Close of Escrow and shalI
continue thereafter for the full statutory period; and
3.3.6.1.7 The Developer shall have approved Escrow Holder's
estimated closing costs statement.
WATalley BuAding,TaJIeyDDA_0504.DOC -11- 04 1674762
33.6.2 Agency's Conditions. Agency's obligation to convey the
Talley Parcel is subject to the satisfaction of the following conditions for Agency's benefit (or
Agency's waiver thereof,it being agreed that Agency may waive any or all of such conditions)on or t
prior to the Outside Closing Date:
33.6.2.1 The City and the Agency shall have approved those
development applications, entitlements and permits
required for Phase II, in accordance with this
Agreement and all applicable local, state and federal
laws and regulations including, without limitation,
environmental approvals related thereto and all
applicable judicial and administrative challenge
periods with respect thereto shall have expired;
3.3.6.2.2 Developer shall have fiunished to the Agency
satisfactory evidence,in the Agency's sole discretion,
of the Developer's ability to finance the acquisition,
construction and operation of the Development in a
form approved by the Agency. The evidence of said
financing may include,without limitation: (a)a letter
of commitment from a reputable lending institution
approved by the Agency pursuant to Section 3.4.15,
evidencing that institution's agreement to loan funds
to acquire the Talley Parcel and construct the
Development; and/or(b)evidence of the Developer's
ability to self-finance the acquisition,construction and
operation of the Development;
3.3.6.23 The Developer shall have tendered into Escrow all
funds and documents required of it pursuant to this
Agreement;
WATalley BuildinglTalleyDDA_0504.DOC -12-
04 1674762
3.3.6.2.4 The Developer shall have completed in a timely
fashion all of its obligations that are to be completed
prior to the Close of Escrow as provided in this ; 1
L
Agreement and the Schedule of Performance;
33.6.2.5 The Escrow Holder shall have received a commitment
from the Title Company to issue the Title Policy or an
ALTA Policy, as applicable, for the Talley Parcel,
subject only to the Approved Condition of Title;
33.6.2.6 The Agency and/or City, as applicable, shall have
taken all actions and issued such approvals as legally
required pursuant to provisions of the California
Environmental Quality Act ("CEQA") as pre-
conditions to the approval of the Development;
33.6.2.7 All representations and warranties of the Developer
hereunder shall be true as of the Effective Date and
beyond and as of the Close of Escrow and shall
continue thereafter for the full statutory period; and
3.3.6.2.8 The Agency shall have approved Escrow Holder's
estimated closing costs statement;and
33.6.2.9. The Developer shall have provided to Agency the
insurance endorsements required by Section 3.4.9
hereof; and
33.6.2.10. The City's Planning Commission shall have provided
or be deemed to have provided a determination of
consistency with the City's general plan pursuant to
Government Code Section 65402 and any other
entities affiliated with the City with jurisdiction over
the Development shall have approved the
Development.
W:17alley BuilainglTalleyDDA_0504.DDC -13- - 04 1674762
33.7 Developer Payments and Documents. At least one(1)day prior to Closing,
the Developer shall pay or tender(as applicable)to the Escrow Holder the following documents(in �f
recordable form, as necessary), fees, charges and costs: l
t✓
33.7.1 The Purchase Price;
33.7.2 One-half(1/2) of the escrow fees, recording fees and notary
fees attributable to the conveyance of the Talley Parcel;
33.7.3 The premium for any ALTA Policy and any charges for
survey or other endorsements required as set forth in Section
3.3.5 of this Agreement;
3.3.7.4 The prorated amount of ad valorem taxes,if applicable,upon
the Talley Parcel with respect to the period subsequent to
transfer of title;
3.3.75 Any additional changes customarily charged to buyers in
accordance with common escrow practices in Los Angeles
County; and
3.3.7.6 Such other documents and instruments required by the
Escrow Holder in the performance of its contractual or
statutory obligations. .
3.3.8 Agency Payments and Documents. The Agency shall pay or tender (as
applicable)to the Escrow Holder the following documents(in recordable form, as necessary),fees,
charges and costs promptly after the Escrow Holder has notified the Agency of the amount of such
fees, charges and costs:
3.3.8.1 One-half(1/2) of the escrow fees, recording fees and notary
fees attributable to the conveyance of the Talley Parcel;
3.3.8.2 The premium for the Title Insurance Policy to be paid by the
Agency as set forth in Section 3.3.5 of this Agreement;
WATalley BuildinglTalleyDDA_0564.DOC -14-
04 1674762
3.3.8.3 The prorated amount of ad valorem takes,if applicable,upon
the Talley Parcel with respect to the period prior to transfer of
title; t
3.3.8.4 Any state,county or city documentary transfer taxes or stamps
relating to the conveyance of the Talley Parcel;
3.3.8.5 Any additional costs and charges customarily charged to
sellers in accordance with common escrow practices in Los
Angeles County;
3.3.8.6 A FIRPTA Certificate and California Form 597, and such
other documents and instruments required by the Escrow
Holder in the performance of its contractual or statutory
obligations; and
3.3.8.7 A fully executed and recordable Grant Deed in substantially
in the form attached as Exhibit D.
33.9 Escrow Holder Responsibilities. Upon the Closing,the Escrow Holder is
authorized to:
3.3.9.1 Pay, and charge the Agency and the Developer,respectively,
for any fees, charges and costs payable under Sections 3.3.7
and 3.3.8 of this Agreement. Before such payments or
charges are made,the Escrow Holder shall notify the Agency
and the Developer of the fees, charges and costs necessary to
clear title and close the Escrow;
3.3.9.2 Record in the following order: the Grant Deed, the Trust
Deed, and any other instruments delivered through the
Escrow; and
33.9.3 Deliver to the Agency and disburse such other funds and
deliver such other documents to the Parties entitled thereto.
WATalley Building\TaIIeyDDA, 0504.DOC -1 j- 04 1674762
z
33.10 Deposit of Escrow Funds. All funds received in the Escrow shall be
deposited by the Escrow Holder with other escrow funds of the Escrow Holder in an interest earning 1Z
general escrow account Such funds may be transferred to any other general escrow account.or '.
1
accounts. All disbursements shall be made by check of the Escrow Holder. All adjustments and
prorations are to be made on the basis of a thirty(30)day month.
3.3.11 Amendment of Escrow Instructions. Any amendment to these escrow
instructions shall be in writing and signed by the Agency and the Developer. At the time of any
amendment, the Escrow Holder shall agree to carry out its duties as Escrow Holder under such
amendment.
33.12 Notices. All communications from the Escrow Holder to the Agency or the
Developer shall be directed to the addresses and in the manner established in Sections 1.2 and 5.1 of
this Agreement for notices,demands and communications between the Agency and the Developer.
3.3.13 Parties Right to Terminate for Failure of Escrow to Close. If, for any
reason other than the Default of the Agency or the Developer(as defined below) Escrow does not
close on or before the Outside Closing Date or such other date that has been mutually agreed upon by
the Parties, then either the Agency or the Developer may terminate this Agreement without cost,
expense or liability to either Parry. Upon such termination,the Escrow Holder shall return all funds
and documents to the party depositing the same. The Agency and the Developer shall each bear one-
half of Escrow Holder's fees and expenses.
33.14 Prevailing Waves.
3.3.14.1 Public Works Determination. Developer has been alerted to
the requirements of California Labor Code section 1770 et seq., including, without limitation S.B.
975,which require the payment of prevailing wage rates and the performance of other requirements
if it is determined that this Agreement constitutes a public works contract. It shall be the sole
responsibility of Developer to determine whether to pay prevailing wages for any or all work
required by this Agreement. As a material part of this Agreement, Developer agrees to assume all
W:%7alley Bui1dinglTa11eyDDA_0504.D0C -16-
04 1674762
risk of liability arising from any decision not to pay prevailing wages for work required by this
Agreement. (^i
33.14.2 Indemnification.As a further material part of this Agreement,
Developer agrees to indemnify, defend and hold harmless the Agency, the City, their officials,
officers, employees, consultants and agents from any and all claims,liability,loss,costs,damages,
expenses,fines and penalties,of whatever type or nature,including all costs of defense and attorneys'
fees,arising from any alleged failure of the Developer or Developer's contractors to comply with the
prevailing wage laws of the State of California. If the Agency or any of the other indemnified parties
are named as a parry in any dispute arising from the failure of Developer or Developer's contractors
to pay prevailing wages,Developer agrees that the Agency and those other indemnified parties may
appoint their own independent counsel, and Developer agrees to pay all attorneys'fees and defense
costs of Owner and the other indemnified parties as billed, in addition to all other damages,fines,
penalties,and losses incurred by Agency and those other indemnified parties as a result of the action.
33.15 Environmental Review. The Close of Escrow shall be contingent upon
Developer's approval of the environmental condition of the Talley Parcel prior to December 16,
2003, which date shall be the expiration of the "Environmental Review Period."
33.15.1 Developer shall have the right, at its sole cost, expense and
liability,to commence Developer's environmental inspection of the Talley Parcel immediately after
the Opening of Escrow. No invasive testing or boring shall be done without prior written
notification to Agency and Agency's written permission of the same,which Agency may withhold in
its sole and absolute discretion. Copies of data, surveys and tests obtained or made pursuant to this
Section shall be provided to the Agency within fifteen(15)days after receipt by the Developer. Any
inspection and/or testing work shall be undertaken only after securing any necessary permits from the
appropriate governmental agencies. Developer shall use care and consideration in connection with
any of its inspections or tests and Agency shall have the right to be present during any inspection of
the Talley Parcel by Developer or its agents. Developer shall restore the Talley Parcel to its original
condition immediately after any and all tests and/or inspections.
WATalley Building7alleyDDA_0504.DOC -17 04 1674,762
3.3.15.2 Developer shall protect, indemnify, defend (with counsel
reasonably acceptable to Agency) and hold the Property, Agency, the City and their officials, 1
officers, employees, agents and attorneys free and harmless from and against any and all claims,
damages, liens, stop notices,liabilities, losses, costs and expenses, including reasonable attorneys'
fees and court costs and expenses (all of the foregoing, collectively "Liabilities"), resulting from
Developer's inspection and testing of the Talley Parcel,including,without limitation,repairing any
and all damages to any portion of the Property, arising out of or related(directly or indirectly)to
Developer's conducting such inspections, surveys,tests, and studies, except as to those Liabilities
attributable to the negligence or willful misconduct of the Agency, the City and their officials,
officers,employees,agents, contractors and attorneys. The Devel oper's indemnification obligations
set forth herein shall survive the Close of Escrow,shall not be merged with the Grant Deed and shall
survive the termination of this Agreement and Escrow prior to the Close of Escrow.
3.3.153 Prior to any entry upon the Talley Parcel by Developer or
Developer's agents,contractors,subcontractors or employees,Developer shall deliver to Agency an
original endorsement to Developer's commercial general liability insurance policy that evidences that
Developer is carrying a commercial general liability insurance policy with a financially responsible
insurance company acceptable to Agency, covering: (1)the activities of Developer, Developer's
agents, contractors, subcontractors and employees on or upon the Property and (2)Developer's
indemnity obligation contained in Section 3.3.15. Such endorsement to such insurance policy shall
evidence that such insurance policy shall have a per occurrence limit of at least One Million Dollars
($1,000,000)and an aggregate limit of at least Two Million Dollars($2,000,000),shall name Agency
and City and their officials,officers,employees,and agents as additional insureds, shall be primary
and non-contributing with any other insurance available to Agency and City and shall contain a full
waiver of subroeation clause.
3.3.15.4 If, during the Environmental Review Period, Developer
determines that it is dissatisfied,in Developer's sole discretion,with the environmental condition of
the Talley Parcel,then,pursuant to Section 3.3.13,Developer may terminate this Agreement and the
WATalley Bu IdBng,TafleyDDA_0504.D0C =18- 04 1674762
Escrow created pursuant hereto by delivering written notice to Agency and Escrow Holder on or
before the expiration of the Environmental Review Period of Developer's election to terminate this
Agreement. If Developer fails to deliver any such written termination notice to Agency and Escrow
Holder on or before the expiration of the Environmental Review Period, then Developer shall
conclusively be deemed to have approved the environmental condition of the Talley Parcel and to
have waived the requirement for a satisfactory appraisal. If Developer waives such contingencies,or
is deemed to have waived such contingencies,then Developer shall conclusively be deemed satisfied
with all aspects of the Talley Parcel,including,without limitation,the condition and suitability for
Developer's intended use.
33.16 Developer's Review of Tide. The Close of Escrow shall be contingent upon
Developer's approval or deemed approval of title to the Talley Parcel pursuant to this Agreement.
Within the time frame set forth in the Schedule of Performance,Developer shall obtain,and provide
a copy to Agency, a standard preliminary report from the Tide Company with respect to the Talley
Parcel, together with the underlying documents relating to the Schedule B exceptions set forth in
such report (collectively, the "Title Report"). At Developer's election, Developer may obtain, at
Agency's sole cost,expense and liability,an ALTA survey("Survey")of the Talley Parcel;provided
that Developer's election to obtain the Survey shall in no event affect Developer's "Title Review
Period" (as hereinafter defined) and shall in no event delay the Close of Escrow. Developer shall
have until August 30, 2004 ("Title Review Period") to give Agency and Escrow Holder written
notice ('Developer's Title Notice") of Developer's disapproving or conditional approval of any
matters shown in the Title Report or survey (if applicable). The failure of Developer to give
Developer's Title Notice on or before the end of the Title Review Period shall be conclusively
deemed to constitute Developer's approval of the condition of title to the Talley Parcel as set forth in
the Title Report
1f Developer disapproves or conditionally approves in writing any matter of title
shown in the Title Report or survey(if applicable),then Agency may,but shall have no obligation to,
within three (3) business days after its receipt of Developer's Title Notice ("Agency's Election
Period"),elect to eliminate or ameliorate to Developer's satisfaction the disapproved or conditionally
approved title matters by giving Developer written notice ("Agency's Title Notice") of those
VVATalley BuldinglTaIISYMA_0504AOC -19- 04 16
7
4762
disapproved or conditionally approved title matters, if any, that Agency agrees to so eliminate or
ameliorate by the Closing Date; provided, that, Agency shall have no obligation to pay any
consideration or incur any liability in order to eliminate or ameliorate such disapproved title matters.
If Agency does not elect to eliminate or ameliorate any disapproved or conditionally approved title
matters, or if Developer disapproves Agency's Title Notice, or if Agency fails to timely deliver
Agency's Title Notice, then Developer shall have the right, upon delivery to Agency and Escrow
Holder(on or before two(2)business days following the expiration of Agency's Election Period)of a
written notice, to either: (1)waive its prior disapproval, in which event said disapproved matters
shall be deemed unconditionally approved; or (2)terminate this Agreement pursuant to Section
3.3.13 and the Escrow created pursuant thereto. Failure to take either one of the actions described in
(1) and (2) above shall be deemed to be Developer's election to take the action described in (1)
above.
If, in Agency's Title Notice, Agency has agreed to either eliminate or ameliorate to
Developer's satisfaction by the Closing Date certain disapproved or conditionally approved title
matters described in Developer's Title Notice, but Agency fails to do so,then Developer shall have
the right (which shall be Developer's sole and exclusive right or remedy for such failure), upon
delivery to Agency and Escrow Holder(on or before one(1)business day prior to the Closing Date)
of a written notice to either: (x)waive its prior disapproval,in which event said disapproved matters
shall be deemed approved; (y)terminate this Agreement pursuant to Section 3.3.13 and the Escrow
created pursuant hereto,or(z)at the Developer's election,allow the Agency an additional period of
time, not to exceed thirty (30) days, to eliminate or ameliorate to Developer's satisfaction the
disapproved or conditionally approved title matters described in Developer's Title Notice. If the
Developer elects to proceed pursuant to (z) above, the Closing Date set forth in the Schedule of
Performance shall be automatically extended by the length of the additional time period that
Developer provides to the Agency. Failure to take any one of the actions described in(x),(y)and(z)
above shall be deemed to be Developer's election to take the action described in (x)above.
In the event that the Developer elects to proceed pursuant to(z)above and the Agency
fails to eliminate or ameliorate to Developer's satisfaction the disapproved or conditionally approved
title matters described in Developer's Title Notice prior to the expiration of the additional time period
allowed to the Agency,then Developer shall have the right(which shall be the Developer's sole and
W:Ualley BuildingUalleyDDA 0504.DOC -20- - 04 1674760
exclusive right or remedy for such failure), upon delivery to Agency and Escrow Holder (on or
before one business day prior to the Closing Date, as it may be extended pursuant to the preceding
paragraph) of a written notice to either: (1)waive its prior disapproval, in which event said
disapproved matter shall be deemed approved;or(2) terminate this Agreement pursuant to Section r�
e
3.3.13 and the Escrow created pursuant hereto. Failure to take either one of the actions described in
(1) and (2) above shall be deemed to be Developer's election to take the action described in (1)
above.
33.17 Review of Documents and Materials. Agency agrees to provide to
Developer for Developer's review those documents and materials,if any,respecting the Talley Parcel
(collectively, "Documents and Materials"), provided (i) such Documents and Materials are in
Agency's possession and control or are reasonably available at no cost to Agency, and(ii)Agency
does not represent,wan-ant or certify the accuracy,adequacy or completeness of the Documents and
Materials. During the period commencing upon the date that the Agency first provides Developer
with any Documents and Materials and ending at 5:00 p.m.PST on the thirtieth(30th)day thereafter
("Feasibility Period"),the Developer shall have the right to review and examine the Documents and
Materials. The failure of Developer to disapprove in writing any of the Documents and Materials on
or before the expiration of the Feasibility Period shall be deemed to constitute Developer's approval
of all the soils,environmental and reports and engineering data pertaining to the Talley Parcel and
any architectural studies, grading plans, topographical maps and similar data regarding the Talley
Parcel. Developer shall keep all information contained in the Documents and Materials confidential,
as provided below.
If, during the Feasibility Period, Developer reasonably determines that it is
dissatisfied with any aspects of the Talley Parcel and/or its condition or suitability for Developer's
intended use or with any of the Documents and Materials,then Developer may,pursuant to Section
3.3.13,terminate this Agreement and the Escrow created pursuant hereto by delivering written notice
to Agency and Escrow Holder on or before the expiration of the Feasibility Period of Developers
election to terminate. If Developer fails to deliver any such written termination notice to Agency and
Escrow*Holder on or before the expiration of the Feasibility Period;then Developer shall be deemed
to be satisfied with all aspects of the Documents and Materials and with all aspects of the Talley
WATalley BuIIding%TalleyDDA O5O4.DOC -21-
04 1674762
Parcel, including,without implied limitation,the condition and suitability of the Talley Parcel for
Developer's intended use:
i�
33.18 Reliance Upon Documents and Materials. Developer acknowledges that:
(i) The Documents and Materials are being fiunished to it solely for
Developer's review in connection with its possible purchase of the
Talley Parcel;
(ii) Developer is using the Documents and Materials and relying on any
information or conclusion contained in the Documents and Materials
at its own risk, and, except to the extent that the Documents and
Materials are prepared by the Agency, Agency shall have no liability
for any inaccuracies,omissions,errors or other matters that appear in
the Documents and Materials; and
(iii) Developer will use the Documents and Materials solely in connection
with its examination of the Talley Parcel and for no other purpose
whatsoever.
33.19 Developer's Representations and Warranties Re:Condition of the Talley
Parcel. In consideration of Agency entering into this Agreement and as an inducementto Agency to
sell the Talley Parcel to Developer,Developer makes the following representations and warranties,
each of which is material and is being relied upon by Agency:Developer represents and warrants that
it is purchasing the Talley Parcel based solely upon Developer's inspection and investigation of the
Talley Parcel and all documents related thereto, or its opportunity to do so, and Developer is
purchasing the Talley Parcel in an "AS IS, WHERE IS" condition, without relying upon any
representations or warranties,express,implied or statutory,of any kind. Without limiting the above,
Developer acknowledges that neither Agency,except as expressly set forth in this Section 3.3.19,nor
any other party has made any representations or warranties,express or implied,on which Developer
is relying as to any matters, directly or indirectly, concerning the Talley Parcel, including but not
limited to,the land,the square footage of the Talley Parcel,improvements and infrastructure,if any,
development rights and exactions, expenses associated with the Talley Parcel,taxes, assessments,
WATalley Building7alleyDDA_0504.DOC - -22-, 04 1674762
bonds,permissible uses,title exceptions,water or water rights,topography,utilities, zoning of the
Talley Parcel, soil, subsoil, the purposes for which the Talley Parcel is to be used, drainage,
environmental or building laws,rules or regulations,toxic waste or Hazardous Materials or any other
matters affecting or relating to the Talley Parcel. Developer hereby expressly acknowledges that no ?'
such representations have been made. The Closing of Escrow for the Talley Parcel by Developer
hereunder shall be conclusive evidence that(1) Developer has fully and completely inspected(or has
caused to be fully and completely inspected) the Talley Parcel, (2)Developer accepts the Talley
Parcel as being in good and satisfactory condition and suitable for Developer's purposes,and(3)the
Talley Parcel fully complies with Agency's covenants and obligations hereunder.
Developer shall perform and rely solely upon its own investigation concerning its
intended use of the Talley Parcel, the Talley Parcel's fitness thereof,-and the availability of such
intended use under applicable statutes,ordinances,and regulations. Developer further acknowledges
and agrees that Agency's cooperation with Developer in connection with Developer's due diligence
review of the Talley Parcel,whether by providing the Title Report other documents, or permitting
inspection of the Talley Parcel,shall not be construed as any warranty or representation,express or
implied,of any kind with respect to the Talley Parcel,or with respect to the accuracy,completeness,
or relevancy of any such document
Furthermore, without limiting the generality of the foregoing, Developer hereby
expressly waives,releases and relinquishes any and all claims,causes of action,rights and remedies
Developer may now or hereafter have against Agency, the City, and their officials, officers,
employees, and agents, whether known or unknown, with respect to any past, present or future
presence or existence of Hazardous Materials on,under or about the Talley Parcel or with respect to
any past, present or future violations of any rules, regulations or laws, now or hereafter enacted,
regulating or governing the use, handling, storage, release or disposal of Hazardous Materials,
including, without limitation, (i)any and all rights Developer may now or hereafter have to seek
contribution from Agency or City under Section 113(f)(i) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund
Amendments-and Reauthorization Act of 1986 (42 U.S.C.A. ' 9613), as the same may be further
amended or replaced by any similar law,rule or regulation,(ii)any and all rights Developer may now
or hereafter have against Agency or City under the Carpenter-Presley-Tanner Hazardous Substances
WATalley BuildinMTalleyDDA 0504.DOC -23- 04 1674762
Account Act(California Health and Safety Code, Section 25300,et seq.),as the same maybe further
amended or replaced by any similar law,rule or regulation,(iii) any and all claims,whether known
or unknown, now or hereafter existing, with respect to the Talley Parcel under Section 107 of '
CERCLA(42 U.S.C.A. '9607), and(iv) any and all claims, whether known or unknown, based on
nuisance,trespass or any other common law or statutory provisions. Nothing in this paragraph shall.
operate as a release of any rights or remedies of the Developer against the Agency arising from the
migration or release of Hazardous Materials from/on adjacent property owned by the Agency. As
used herein,the term "Hazardous Material(s)" includes,without limitation, any hazardous or toxic
materials, substances or wastes, such as (A) those materials identified in Sections 66680 through
66685 and Section 66693 through 66740 of Title 22 of the California Administrative Code,
Division 4, Chapter 30, as amended from time to time, (B)those materials defined in Section
255010)of the California Health and Safety Code, (C) any materials,substances or wastes that are
toxic,ignitable,corrosive or reactive and that are regulated by any local governmental authority,any
agency of the state of Califomia or any agency of the United States Government (D) asbestos,
(E)petroleum and petroleum based products, (F) urea formaldehyde foam insulation,
(G)polychlorinated biphenyls (PCBs),and (H) freon and other chlorofluorocarbons.
DEVELOPER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542
("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 FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR_"
BY INITIALING BELOW,DEVELOPER HEREBY WAIVES THE PROVISIONS
OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS THAT ARE THE
SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
WATalley Bui1ding%Ta11eyDDA_D5D4.D0C _�4_ "f�4 1674762
Developer's Initials
The waivers and releases by Developer herein contained shall survive the Close of
Escrow and the recordation of Jhe Grant Deed and shall not be deemed merged into the Grant Deed
upon its recordation.
The release and waiver provisions of this Section 3.3.19 shall not apply to any cause
of action, claim, demand or liability that is attributable to a breach of the Agency's representations
and warranties under Section 3.14 20 or to the migration of Hazardous Materials onto or under the
Talley Parcel from any adjacent Agency-owned property.
Upon the Close of Escrow, the Agency conditionally assigns to the Developer any
rights,remedies,or chooses in action that the Agency may have against any prior owner of the Talley
Parcel in connection with the presence or release of Hazardous Materials on or under the surface of
the Talley Parcel;provided,however,that the Agency may revoke such assignment by written notice
to the Developer upon:(i)the Agency's reasonable determination that such revocation is necessary to
allow the Agency to assert a claim or defense against any such prior owner,and(ii)the Agency being
made a party to a clean up order,lawsuit,or other proceeding concerning the presence or release of-
Hazardous Materials on or under the surface ofthe Talley Parcel. Such revocation shall not operate
to restrict the Developer's right to defend itself if it is named in any action by such prior owner(s).
3.3.20 Agency's Representations and Warranties Re: Condition of the Talley
Parcel. In consideration of Developer entering into this Agreement and as an inducement to
Developer to purchase the Talley Parcel from Agency,Agency represents and warrants that pursuant
to California Health and Safety Code Section 25359.7, to the actual current knowledge of the
Agency,the Agency is not aware of the release or the presence of any Hazardous Materials on or in
the Tallev Parcel.
33.21 Taxes and Assessments. Any assessments and ad valorem taxes on the
Talley Parcel levied, assessed or imposed for any period commencing prior to conveyance of title
shall be paid by the Agency. All assessments, ad valorem taxes, possessory interest taxes and
personal property taxes levied or imposed upon the Talley Parcel or upon this Agreement or any right
WATalley Building%TalleyDDA 0504.DOC -25- 04 1674762
hereunder for any period after the Closing shall be paid by the Developer. The Developer shall cause
all taxes and assessments levied against the Talley Parcel to be paid in a timely fashion.
3.4 Phase 11—Development of Property.The Developer shall perform its obligations
with respect to the Development of the Property in accordance with this Agreement, including,
without implied limitation, the Scope of Development and Schedule of Performance attached as
Exhibits B and C respectively,the Grant Deed to the Talley Parcel and any additional plans provided
by the Developer and approved by the Agency and the City pursuant to this Agreement. The Scope
of Development shall include,without limitation:(a)the demolition of the improvements located on
the Breezeway Parcel by the Developer(at the Developer's sole cost and expense);(b)the design and
rehabilitation of the improvements located on the Talley Parcel by the Developer,which design and
rehabilitation shall include,without limitation,the construction of a third story on the rear(Western)
portion of the Existing Talley Building;(e)the design of the landscaping,lighting and hardscaping of
the Breezway by the Agency;and(d)the construction of the landscaping,lighting and hardscaping
improvements on the Breezeway Parcel by the Agency.
3.4.1 Preparation of Concept and Site Plans and Related Documents. Within
/the time set forth in the Schedule of Performance,the Agency shall prepare conceptual drawings and
working drawings and related documents for the construction of the improvements for the
i�Breezeway Parcel. Within the time set forth in the Schedule of Performance,the Developer shall
prepare and submit.to the Agency for approval, conceptual drawings and working drawings and
related documents for the rehabilitation of the Talley Parcel.All conceptual drawings and working
drawings and related documents shall be consistent with the Scope of Development.Any changes to
the Plans required by the Agency shall not operate to extend the time for performance of the
Developer's obligations hereunder, unless such changes are necessary due to the Agency-initiated
deviations from the Scope of Development. The Agency's staff, Planning staff and the Developer
shall hold regular progress meetings to coordinate the preparation and submission of the conceptual
drawings and working drawings and related documents. The Agency's staff and the Developer shall
W:Ualley Building\TalleyODA 05O4.DOC -26- 04 1674762
communicate and consult informally as frequently as is necessary to assure that the formal submittal
of any documents to the City receive prompt consideration. The Agency and the Developer shall
confer in good faith regarding appropriate time extensions for any Agency-initiated changes. tl
3.4.2 [Intentionally Left Blank]
3.4.3 Governmental Requirements. If any'governmental official, agency,
department or bureau having jurisdiction over the Development (including, without implied
limitation,the City)requires material revisions or corrections of the Plans,the Developer,Agency,
and Planning Department shall cooperate in efforts to obtain waivers of such requirements or to
develop a mutually acceptable set of alternative Plans.
3.4.4 Cost of Construction. Except as otherwise provided in this Section 3.4.4,
the cost and expense of undertaking and completing the Development and providing all utilities for
the Development, shall be borne solely by the Developer at its sole cost, expense and liability.
3.4.4.1 Talley Parcel Design, Constructionllnstallation Cost
Reimbursement. The Agency shall reimburse Developer for
any and all reasonable hard costs that are actually incurred or
paid by Developer in the design,construction and installation
of the rehabilitation improvements at the Talley Parcel. All
contracts or other agreements of any type entered into by
Developer that Developer seeks reimbursement for shall have
been approved by the Agency in order to qualify for
reimbursement In the event Developer seeks reimbursement
for costs incurred,but not yet paid,the Agency may in its sole
and absolute discretion provide reimbursement through means
of a third-party(ies) check. Notwithstanding any Agency
review or approval of Developer's contracts or other
agreements, the Agency shall not incur any liability or
W:Ualley BuildinglTallepDA_0504.DOC -27- 04 1674762
obligation of any kind with respect to such contracts or
agreements. .Developer shall submit written invoices to the
Agency on the first working day of each month(or upon such ( S
other time frame mutually agreed upon by the parties in
writing) for such reimbursable costs. The Agency shall
review all such invoices and shall, within thirty (30) days of
submittal to the Agency,reimburse Developer for such costs
as the Agency, in its sole an absolute discretion, determines
are reasonable. Notwithstanding any provision herein to the
contrary, the Agency shall not be obligated to reimburse
Developer for any cost or expense except upon proof .
acceptable to the Agency, in its sole and absolute discretion,
that all mechanics or workmans' liens or similar obligations
have been satisfied by Developer. The total amount of the
reimbursement distributed by the Agency pursuant to this
Section 3.4.4.2 shall not exceed Four Hundred Fifty Thousand
Dollars($450,000).
3.4.43 Cost Reimbursement.All contracts or other agreements of
any type entered into by Developer that Developer seeks
reimbursement for shall have been approved by the Agency in
order to qualify for reimbursement. In the event Developer
seeks reimbursement for costs incurred, but not yet paid, the
Agency may in its sole and absolute discretion provide
reimbursement through means of a third-party(ies) check.
Notwithstanding any Agency review or approval of
Developer's contracts or other agreements, the Agency shall
not incur any liability or obligation of any kind with respect to
such contracts or agreements. Developer shall submit written
invoices to the Agency on the first working day of each month
(or upon such other time frame mutually agreed upon by the
WATalley BLfRding\TalleyDDA_0504.000 -2$ 041674762
parties in writing) for such reimbursable costs. The Agency
shall review all such invoices and shall, within thirty (30)
days of submittal to the Agency, reimburse Developer for r fj
such costs as the Agency, in its sole an absolute discretion,
!
determines are reasonable:
3.4.4.4 Limitation on Agency's Financial Assistance.
Notwithstanding any provision herein to the contrary, the
Agency shall not be obligated to provide Developer financial
assistance other than the reduction in the purchase price for
the transfer of the Talley Parcel and the reimbursements set
forth in this Section 3.4.4.
3.4.5 Construction and Development Schedule of Performance. The Developer
shall begin and complete all construction and development within the times specified in the Schedule
of Performance or such reasonable extension of said dates as may be granted by the Agency. In
addition to extensions of time provided by express provisions of this Agreement,the Schedule of
Performance may be revised from time to time as mutually agreed upon in writing between the
Developer and the Agency.
From time to time during the period of construction and as reasonably requested by
the Agency,the Developer shall report to the Agency on the progress of construction. The reports
shall be in such form and detail as may reasonably be required by the Agency and shall include
construction photographs taken since the last report.
3.4.6 Grading,Paving and Landscaping Plans. The Agency shall prepare and
submit to the City for its approval,preliminary and final,grading,paving and landscaping plans for
the Breezeway Parcel. The Developer shall prepare and submit to the City for its approval,
preliminary and final, grading,paving and landscaping plans for the Talley Parcel. All such plans
shall be prepared,submitted and approved by the City Engineer prior to the start of construction. All
grading plans shall be prepared by a registered civil engineer. Developer shall complete installation
of landscaping on the Property prior to the issuance of a certificate of occupancy. The landscaping
WATalley BuHdtngSTalleyDDA-0504.DOC -29- 04 1674762
plan to be prepared pursuant to this Agreement,including plant materials and types,shall be subject
to the approval of the City's Community Development Director.
a
3.4.7 Right of Access. Until a Certificate of Completion is issued for the
Development and for the purpose of assuring compliance with this Agreement,representatives of the
Agency and the City shall have reasonable right of access to the Development without charge,during
Agency business hours and after not less than forty-eight (48) hours prior written notice. Agency
will use good faith efforts to minimiany interference that the Agency's entry may have upon the
Developer's operations.
3.4.8 Indemnity, The Developer shall defend,indemnify and hold the Agency and
the City,and their officers,directors,agents,servants,attorneys,employees and contractors harmless
from and against all liability,loss,damage,costs,or expenses(including reasonable attomeys'fees
and court costs) (all of the foregoing collectively, "Liabilities") arising from or as a result of the
death of any person or any accident injury-,loss or damage whatsoever caused to any person or to the
property of any person and that shall be, or alleged to be, directly or indirectly,caused by any acts
done thereon or any errors or omissions of the Developer or its officers,directors,agents, servants,
attorneys,employees or contractors, or that are in any way related to the design and construction of
the Development. The Developer shall not be responsible for(and such indemnity shall not apply to)
any acts, errors or omissions ultimately found to have been directly or indirectly caused by the
Agency or the City,or their respective officers, directors, agents,servants,attorneys,employees or
contractors. The Agency and the City shall not be responsible for any acts, errors or omissions of
any person or entity except the Agency and the City and their respective officers, agents, servants,
employees or contractors.
The Developer's obligations under this Section 3.4.8 shall continue to apply past the
expiration or termination of this Agreement.
3.4.9 Insurance. Prior to the commencement of construction of the Development,
the Developer shall furnish or cause to be furnished to the Agency duplicate originals and
WATalley Buildmg7a11eyDDA_O5D4.DOC -30-
04 1674762
appropriate endorsements to the Developer's commercial general liability and automobile insurance
policies in the amounts set forth below,naming the Agency and the City as additional or co-insureds:
(a) $1,000,000 for any one person; and f
(b) $3,000,000 for any one occurrence; and
(c) $1,000,000 for any property damage.
The policies shall be"occurrence,"not"claims made,"policies and shall be primary
and non-contributing to any insurance that the Agency may elect to obtain. Such policies shall
contain a full waiver of subrogation clause. The policies shall be issued by a carrier licensed to do
business in California, with a then-current Best's rating of A:VIII or better. Said policies shall
provide that they shall not be canceled or reduced in types of coverage or amount of coverage
without at least thirty (30) days' prior written notice to the Agency and that such reduction or
cancellation shall become effective until at least twenty(20)days after receipt by the Agency of the
written notice thereof. The policy amounts set forth above shall not limit or define the extent of the
Developer's indemnity liability pursuant to Section 3.4.8 or any other provision of this Agreement,or
arising as a matter of law or at equity.
The Developer shall also furnish or cause to be furnished to the Agency evidence
satisfactory to the Agency that any contractor with whom it has contracted for the performance of
work on the Project carries workers'compensation insurance as required by law.
The Developer shall also maintain,or cause its contractor to maintain,all-risk course
of construction insurance,insuring the Developer,the Agency and the City against all risk(including
earthquake) of loss or damage to the Development. Except as provided in the Grant Deed, the
obligations set forth in this Section shall remain in effect until the final Certificate of Completion has
been issued for the Development.
3.4.10 Governmental Permits and Compliance With Laws. Be€ore
commencement of construction or development of any buildings, structures or other work of
improvement upon the Property, the Developer shall, at its own expense, secure or cause to be
secured any and all permits,entitlements,or other approvals that maybe required by or from the City
or any other governmental agency with jurisdiction over the Development. The Agency shall
provide reasonable non-financial assistance to the Developer in securing these permits or approvals.
W,Ualley BLAIding1Ta11eyDDA O5D4.DOC -31- 04 1674762
The Developer shall carry out the construction of the Development in conformity with all applicable
laws, including all applicable federal and state labor and safety standards.
rr
3.4.11 No Unlawful Discrimination. The Developer agrees that the Developer will
not unlawfully discriminate against any employee or applicant for employment because of sex,
marital status, race, color, religion, creed, national origin, or ancestry, and that the Developer will
comply with all applicable local, state and federal fair employment laws.and regulations.
The Developer covenants and agrees that it will not unlawfully discriminate against or
segregation of any person or group of persons on account of race,color,creed,religion,sex,marital
status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or .
enjoyment of the Talley Parcel, nor shall the Developer itself, or any person claiming under or
through it, establish or permit any such practice or practices of unlawful discrimination or
segregation with reference to the selection,location,number, use of occupancy of tenants,lessees,
subtenants, sublessee or vendees of the Talley Parcel. The foregoing covenants shall run with the
land,be binding upon the Developer's transferee's, successors and assigns, and shall, to the extent
provided by law, remain in effect in perpetuity.
111 deeds, leases or contracts relative to the Talley Parcel, or the improvements
constructed thereon,shall contain or be subject to substantially the following nondiscrimination and
non-segregation clauses, pursuant to California Health and Safety Code Section 33435 and 33436.
3.4.12 In deeds: The grantee herein covenants by and for himself, his heirs,
executors, administrators, and assigns, and all persons claiming under or through them, that there
shall be no unlawful discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale,
lease, sublease,transfer,use, occupancy,tenure or enjoyment of the land herein conveyed,nor shall
the grantee himself or any person claiming under or through him, establish or permit any such
practice or practices of unlawful discrimination or segregation with reference to the selection,
location,number,use or occupancy of tenants,lessees,subtenants,sublessees or vendees in the land
herein conveyed. The foregoing covenants shall run with the land in perpetuity.
WATalley nui1ding%Ta11eyDDA_0504.DOC -32- 04 1674762
3.4.13 In leases: The lessee herein covenants by and for himself, his heirs,
executors,administrators and assigns,and all persons claiming under or through him,and this lease
is made and accepted upon the subject to the following conditions: That there shall be no unlawful
discrimination against or segregation of any person or group of persons, on account of race, color, ✓'
creed,religion,sex,marital status,national origin or ancestry,in the leasing,subleasing,transferring,
use, occupancy,tenure or enjoyment of the land herein leased,nor shall the lessee himself, or any
person claiming under or through him,establish or permit any such practice or practices of unlawful
discrimination or segregation with reference to the selection,location,number,use or occupancy of
tenants,lessees, subtenants, sublessees or vendees of the land herein leased.
3.4.14 In contracts: There shall be no unlawful discrimination against or
segregation of,any person or group of persons on account ofrace,color,creed,religion,sex,marital
status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land,nor shall the transferee himself or any person claiming under or through him
establish or permit any such practice or practices of unlawful discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees subtenants,
sublessees or vendees of the land. Nothing in this Section 3.4.14 shall operate as a waiver of any
legal defenses that the Developer may have fora breach of any covenant contained herein,or operate
to impose additional burdens upon the Developer other than those imposed by current law.
3.4.15 Prohibition Against Transfer. Prior to the tenth(I O h) anniversary of the
recordation of the Grant Deed;the Developer may not,except as permitted by this Section 3.4.15 or
Section 3.4.17,assign or attempt to assign this Agreement or any right or obligation herein,nor make
any total or partial sale,transfer,conveyance or assignment of the Talley Parcel or the improvements
on the Property,without prior written approval of the Agency,which may be given or withheld in the
Agency's reasonable discretion. In determining whether to approve of such a partial sale, transfer,
conveyance or assignment of the Property or the improvements on the Property the Agency shall
evaluate:(i)the financial ability of the proposed transferee to own and operate the Development and
to meet the Developer's obligations under this Agreement; and(ii)the fitness and experience of the
proposed transferee and its senior managerial personnel to own and operate the Development.
WATalley BuRdingl'ralleyDDA_0504.DOC -33- 04 1674762
The foregoing prohibition shall not apply to Sections 3.4.15.1 or 3.4.15.2,
provided the Developer shall first notify the Agency in writing of the proposed action. The actions "
to which this exception applies are: ;
i
3.4.15.1 The granting of dedications, easements or permits to
facilitate the development of the Property; or
3.4.15.2 The assignment of all of the Developer's rights and
obligations hereunder,or the sale,transfer or lease of
the entirety of the Talley Parcel and any
improvements thereon to an entity formed for the
purpose of constructing and operating the
Development, provided that the majority voting and
ownership interest in such entity is held by Developer.
Any such assignment, sale, transfer or conveyance
pursuant to this Section 3.4.15.2 shall not relieve the
Developer of liability for the timely and faithful
performance of any assigned obligation, absent an
express agreement between the Agency, the
Developer and the third party transferee to the
contrarv.
3.4.16 Obligations Remain. No unpermitted sale, transfer, conveyance or
assignment of all or any portion of this Agreement or any portion of the Talley Parcel shall be
deemed to relieve the Developer or any other parry from any obligation under this Agreement,nor
shall any such unpermitted sale,transfer,conveyance or assignment transfer any rights in the Talley
Parcel or this Agreement.
3.4.17 Permitted Encumbrances. Section 3.4.15 notwithstanding,Developer shall
not, at any time prior to the tenth (10') anniversary of the Close of Escrow, grant or permit any
mortgage, deed of trust, sale and leaseback or any other form of conveyance or encumbrance in
WATalley Building%TaMl DA 0504.DOC -34- - 0 • 1674762
connection with the financing and development of the Property (a "Lien") other than a Permitted
Encumbrance, as hereinafter defined.
For purposes hereof,a"Permitted Encumbrance" is any Lien that secures financing:
(i)provided to Developer by a nationally chartered bank or any finance subsidiary thereof, an
insurance company(or affiliate thereof)rated at least B+X11 by A.M.Best;(ii)providing sufficient
funds to permit the construction and long term financing of the Development;(iii) collateralized by
the Talley Parcel; (iv)with respect to which the Agency receives written notice prior to the
recordation of any documentation recording such Lien;(v)with respect to which the lender agrees to
give the Agency written notice concurrent with notice to Developer of any default under any of the
financing documents pertaining to such Lien and the right to cure such default within any cure period
afforded Developer by such lender or by law-, and(vi) with respect to which the lender provides the
Agency the right to purchase the lender's interest no less than three (3) days prior to the judicial or
non judicial foreclosure sale or transfer by deed in lieu.
Nothing in this Agreement shall be deemed to obligate the holder of any Permitted
Encumbrance to construct the Development or to guarantee such construction_ Nothing in this
Agreement shall be deemed to permit or authorize any such holder to develop the Property or
construct improvements thereon except in strict compliance with this Agreement. Any right,title
and interest in the Property(or any portion thereof)acquired by any means by any holder of a Lien,
or by such holder's assignees or successors, shall be subject to the terms and provisions of this
Agreement and the Grant Deed.
The word "Lien" means all customary modes of financing real estate acquisition,
construction and land development
3.4.18 Certificate of Completion. Upon the Developer's receipt of notification
from the City's Building Department that the Developer has satisfactorily completed any and all
improvements required for the Development,the Developer shall be entitled to receive a Certificate
of Completion substantially in the form and substance asset forth in Exhibit E. Except as otherwise
provided therein, the Certificate of Completion shall be a conclusive determination of satisfactory
completion by Developer of all of the obligations required to be completed under this Agreement for
the Development A Certificate of Completion will not constitute: (i) evidence of compliance with
W 1Talley 6uildinglTalleyDDA_0504.DOC -35 04 1674762
6747hn
or satisfaction of any obligation of the Developer to any panty other than Agency, (ii)evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any
insurer of a mortgage,or(iii) a notice of completion as referred to in California Civil Code Section �f
3093. ri
J
3.4.19 Covenants Running With the Land.
3.4.19.1 Use Covenant. The Developer covenants and agrees for itself,
its assigns and all voluntary and involuntary successors in interest to the Talley Parcel or any part
thereof, that for the life of the Redevelopment Plan, the Talley Parcel shall be put to no use other
than those uses specified in the City's General Plan and zoning ordinances,the Grant Deed and this
Agreement, as such documents may be amended from time to time.
3.4.19.2 Opening and Operation Covenant. Developer covenants and
agrees that the Developer will construct and open the Development as required by this Agreement
and,until the thirtieth(30th)anniversary of the earlier of: (i)the Close of Escrow,or(ii)the issuance
of a Certificates of Completion,will continuously operate the Development,unless properly assigned
or transferred pursuant to Section 3.4.15, in which case, this covenant shall bind the
assignee/transferee for the full term hereof.
The Developer will not be deemed to be in breach of this Section 4.5.19.2
should Developer temporarily cease to operate the Development for the following reasons:
(i) general repair and/or maintenance,the construction of improvements,
and the installation of utilities;
(ii) acts of enforced delay as defined in Section 5.4 due to wear,
insurrection, labor disputes, lockouts,third party litigation, acts of a
public enemy or governmental authority; and
(iii) the restoration and rebuilding of the Development, as more
particularly described in Section 3.4.19.4, following casualty loss due
to floods, earthquakes, fires, other acts of God or third parties.
04 16174762
. W:1Talley 6uiltling\TalleyDDA_0504.D0C -36-
3.4.193 Maintenance Covenant. The Developercovenants and agrees
that the Developer shall maintain,or cause to be maintained,the interior and exterior appearances of
all portions of the Property in a good condition,ordinary wear and tear excepted. The maintenance
covenant of this Section 3.4.19.3 shall remain in effect for the same period of time as the operating
covenant set forth in Section 3.4.19.2.
3.4.19.4 Rebuilding Covenant. The Developer covenants and agrees
that following the damage,destruction and/or demolition of the Property and/or Development by an
act of God or casualty,including,but not limited to,fire,floods and earthquakes,the Developer will
promptly restore and rebuild the Property and/or Development(as applicable) in substantially the
same form as required by this Agreement, subject to such modifications as Agency and Developer
may agree upon. The covenants of this Section 3.4.19.4 shall remain in effect for the same period of
time as the operating covenant set forth in Section 3.4.19.2.
3.4.19.4.1 No Conveyance to Tax Exempt Entity. The
Developer covenants and agrees for itself, its assigns and all voluntary and involuntary successors in
interest to the Talley Parcel or any part thereof,that the Talley Parcel or any portion thereof may not
be used,or otherwise sold,transferred,conveyed,assigned,leased,leased back,or hypothecated to or
for any use that is partially or wholly exempt from the payment of real property taxes or which would
cause the exemption of all or any portion of such real property taxes.
3.4.19.4.2 No Property Tax Contest. The Developer covenants
and agrees for itself, its successors, its assigns and all voluntary and involuntary successors in
interest to the Talley Parcel or any part thereof, that, for any period that the Agency is allocated
property taxes pursuant to Health and Safety Code Section 33670 or successor statute,the Developer
shall not contest the assessed valuation of the Talley Parcel or any part thereof,as established by the
Los Angeles County Assessors Office.
3.4.19.5 Enforcement of Covenants. The covenants set forth in
Sections 3.4.19.1 through 3.4.19.4 and Section 3.4.1Ito 3.4.14 touch and concern the Property,and
WaTalley Bui1ding1Ta11ey0Dk05D4.D0C -37- 04 1674 AO
every part thereof,and constitute covenants running with the property and every part thereof for the
full term set forth therein. These covenants may be enforced by the Agency or the City (as an
F�lam'
intended third party beneficiary),regardless of whether the Agency or the City currently or continue
to own an interest in any property within the Project Area,
The Developer irrevocably stipulates and agrees that breach of any of the
covenants set forth in Section 3.4.19.1 through 3.4.19.4 and Section 3.4.11 to 33.4.14 will result in
great and irreparable damage to the Agency and the City, will violate the public policy and the
purposes of the CRL, and will result in damages to the Agency and the City that are either
impracticable or extremely difficult to quantify. Accordingly,upon the breach of any covenant set
forth in Sections 3.4.19.1 through 3.4.19.4 and Section 3.4.11 to 3.4.14,the Agency may institute an
action for injunctive relief and/or for damages attributable to such breach. The covenants set forth in
Sections 3 A.19.1"through 3.4.19.4 and Section 3.4.11 to 3.4.14 constitute obligations of the owner of
the Talley Parcel or any portion thereof. Neither the Developer nor any voluntary or involuntary
successor in interest shall have any liability under this Agreement for the breach of any of the
covenants described above, if such breach occurs at any time following the Developer's or
successor's cessation or ownership of the Talley Parcel.
ARTICLE 4. DAMAGES AND REMEDIES
4.1 Civil Code Section 1542 Waiver. This Agreement provides,in some instances,for
limitations on damages and for sole and exclusive remedies in lieu of certain other remedies that
would otherwise be available to the parties for the uncured breach of an obligation under this
Agreement. The Agency and the Developer acknowledge and agree that such limitations are material
consideration for their entry into this Agreement and;in the absence of such limitations,neither the
Agency nor the Developer would have entered into this Agreement. As to those breaches of
obligations that are subject to the above-described limitations,the Agency and the Developer hereby
waive, to the maximum legal extent, any and all other claims, remedies and cause of action for
damages, liabilities, losses or injuries,whether known or unknown, foreseeable or unforeseeable.
Both the Agency and the Developer are aware of California Civil Code Section 1542, which
provides:
WATalley Bui1ding\Ta11eyDDA_0504.D0C -3$-
04 1674762
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his < '
settlement with the debtor."
4.2 Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise
provided by a specific term of this Agreement, the tights and remedies of the Agency and the
Developer under this Agreement are nonexclusive, and all remedies hereunder may be exercised
individually or cumulatively. In addition to those remedies expressly granted herein,the Parties shall
also have the right to seek all other available legal and equitable remedies, including, without
implied limitation,general and consequential damages,unless otherwise expressly provided to the
contrary herein.
43 Notice and Opportunity to Cure. If either party to this Agreement believes that the
other party has failed to perform any obligation of that parry in accordance with the terms of this
Agreement,the party alleging the default shall provide written notice("Default Notice")to the other
party,setting forth the nature of the alleged default. The parry claimed to be in default shall have:(i)
with respect to a default involving the payment of money,ten(10)days after its receipt of the Default
Notice to completely cure such default, and(ii)with respect to any other type of default, sixty(60)
days from the receipt of the Default Notice to completely cure such default or,if such default cannot
reasonably be cured within such sixty(60)day period,to commence the cure of such default within
the sixty (60) day period and diligently prosecute the cure to completion thereafter.
If the party alleged to be in default fails to cure, or commence to cure (if applicable), as
provided in the preceding paragraph, the party alleging the default may exercise such rights and
remedies as provided for in this Agreement.
4.4 Remedies for Breach Prior to Close of Escrow.
4.4.1 Developer's Breach. If the Developer breaches any obligation hereunder that
is to be performed prior to the Close of Escrow,and fails to cure such breach as provided in Section
4.3, the following are the Agency's sole and exclusive remedies:
WATalley Bui1dmg\Ta11ey0DA 05Da.DOC -39- 04 1674762
4.4.1.1 The Agency may terminate this Agreement and the Escrow without
cost, expense or liability to the Agency;and
4.4.1.2 The Agency may obtain the amount set forth below as liquidated 1
damages.
THE AGENCY AND THE DEVELOPER STIPULATE THAT THE AGENCY WILL
SUFFER DAMAGES IF ESCROW FAILS TO CLOSE DUE TO THE UNCURED
MATERIAL DEFAULT OF THE DEVELOPER AND THAT SUCH DAMAGES WOULD
BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO QUANTIFY. IF ESCROW
FAILS TO CLOSE DUE TO THE DEVELOPER'S DEFAULT, AND THE AGENCY
ELECTS TO TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 4.4.1,
THE AGENCY AND THE DEVELOPER AGREE THAT THE AMOUNT OF TWENTY
FIVE THOUSAND DOLLARS (525,000) IS A REASONABLE ESTIMATION OF THE
DAMAGES THAT THE AGENCY WILL SUFFER. UPON THE AGENCY'S ELECTION
TO TERMINATE THIS AGREEMENT AS PROVIDED ABOVE, THE AGENCY SHALL
RECEIVE FROM THE DEVELOPER THE SUM OF TWENTY FIVE THOUSAND
DOLLARS(525,000)AS LIQUIDATED DAMAGES AND AS ITS SOLE AND EXCLUSIVE
REMEDY FOR SUCH DEFAULT. THE FOREGOING IS NOT A PENALTY, BUT
CONSTITUTES LIQUIDATED DAMAGES TOAGENCY PURSUANT TO
CALIFORNIA CIVIL CODE SECTIONS 1671 Art17.
Agency's Initials Develop s Initials
4.4.2 Agency's Breach. If the Agency breaches any obligation hereunder that is to
be performed prior to the Close of Escrow,and fails to cure such breach as provided in Section 4.3,
the following are the Developer's sole and exclusive remedies:
4.4.2.1 The Developer may terminate this Agreement and the Escrow without
cost, expense or liability and obtain the amount set forth below as
liquidated damages; or 1
WATalley auildinglTalleyM OSN DOC -40- 04 1674762
4.4.2.2 The Developer may institute an action for specific performance of the
terms of this Agreement as to the conveyance of the title to the Talley
Parcel.
t t`?
1�
• G
THE AGENCY AND THE DEVELOPER STIPULATE THAT THE DEVELOPER
WILL SUFFER DAMAGES IF ESCROW FAILS TO CLOSE DUE TO THE UNCURED
MATERIAL DEFAULT OF THE AGENCY AND THAT SUCH DAMAGES WOULD BE
EXTREMELY DIFFICULT OR IMPRACTICABLE TO QUANTIFY. IF ESCROW FAILS
TO CLOSE DUE TO THE AGENCY'S DEFAULT,AND THE DEVELOPER ELECTS TO
TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 4.4.2,THE AGENCY
AND THE DEVELOPER AGREE THAT THE AMOUNT OF TWENTY FIVE THOUSAND
DOLLARS(S221,000)IS A REASONABLE ESTIMATION OF THE DAMAGES THAT THE
DEVELOPER WILL SUFFER UPON THE DEVELOPER'S ELECTION TO TERMINATE
THIS AGREEMENT AS PROVIDED ABOVE, THE DEVELOPER SHALL RECEIVE
FROM THE AGENCY THE SUM OF TWENTY FIVE THOUSAND DOLLARS($25,000)AS
LIQUIDATED DAMAGES AND AS ITS SOLE AND EXCLUSIVE REMEDY FOR SUCH
DEFAULT. THE FOREGOING IS NOT A PENALTY,BUT CONSTITUTES LIQUIDATED
DAMAGES TO THE DEVELOPER PURSUANT TO CALIFORNIA CIVIL CODE
SECTION 1671. /S/ao il
Agency's Initials Devel4era Initials
4.5 Power of Termination.
4.5.1 The Grant Deed shall reserve to the Agency a power of termination in the
Talley Parcel, as such powers as described in California Civil Code Section 885.010, et LN.
Notwithstanding anything else in this Agreement, to the contrary (inclusive of Section 43), the
Agency shall,upon sixty(60)days written notice to the Developer,have the right,at its option and
due to any cause set forth in this Section 4.5,to terminate the estate in the Talley Parcel granted to
the Developer and take possession of the Talley Parcel and all improvements thereon,and to revest
in the Agency the estate in the Talley Parcel conveyed to the Developer and to vest title to all
WaTalley BuildinglTaReyDDA_0504.DOC -41-
04 1674762 -
improvements constructed thereon, if after conveyance of title and prior to the recordation of the
Certificate of Completion,the Developer(or its successors in interest) shall:
(i) Fail to obtain a final certificate of occupancy (as provided by City's f
Municipal Code)for the shell and core improvements of the Development by J
the date set forth therefor in the Schedule of Performance; or
(ii) Abandon or substantially suspend, or allow the abandonment or substantial
suspension,of construction of all or any portion of the Development for sixty
(60) days after written notice of such abandonment or suspension from the
Agency; or
(iii) Assign or attempt to assign this Agreement, or any rights or obligations
herein,or transfer,or suffer any involuntary transfer,of the Talley Parcel or
any part thereof, in violation of this Agreement, and such violation shall not
have been cured within sixty(60)days after of written notice thereof from the
Agency; or
(iv) Fail to cure within sixty(60)days after occurrence any default with respect to
any financing secured by a deed of trust;mortgage or other security interest in
the Talley Parcel or any portion thereof.
The sixty(60) day written notice specified in this Section 4.5 shall specify that the
Agency proposes to take action pursuant to this Section 4.5 and shall specify which of the
Developer's obligations set forth in subsections 4.5.1(i)through 4.5.1(iv)have been breached. The
Agency may proceed with the remedy set forth herein only if the Developer does not cure such
default within sixty(60) days following such notice.
4.5.2 The right of the Agency to reenter,repossess,terminate,vest and revest shall
be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit any
mortgage,deed of trust or other security interest required for any reasonable method of financing the
construction of improvements on the Talley Parcel and any other expenditures necessary to
appropriately develop the Property under this Agreement(provided that the Agency has consented to
WATalley Building\7alleyDDA_0504.DOC -42- 04 1674762
such financing pursuant to Section 3.4.15)or any rights or interests provided in this Agreement for
the protection of the holders of any such mortgage, deed of trust or other security interest
Any grant deed to the Talley Parcel or any portion thereof conveyed or leased by the
Developer to another party shall contain appropriate references and provisions to give effect to the `
Agency's rights as set forth in this Section 4.5.
4.5.3 Upon the Agency's exercise of its rights and powers as provided in this
Section 4.5,the Developer or its successors shall convey by warranty deed to the Agency title to the
Talley Parcel and all improvements thereon in accordance with Civil Code Section 1109,as hereafter
amended or substituted. Such conveyance shall be duly acknowledged by the Developer in a manner
suitable for recordation. The Agency may enforce its rights pursuant to this Section 4.5 by means of
an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.
4.5.4 Upon the revesting in the Agency of title to the Talley Parcel by grant deed or
court decree,the Agency shall use its reasonable good faith efforts to resell the Talley Parcel at fair
market value as soon and in such manner as the Agency shall find feasible and consistent with the
objectives of the Community Redevelopment Law and of the Redevelopment Plan,to a qualified and
responsible party or parties (as reasonably determined by the Agency) who will assume the
Developer's obligation to begin and/or complete and/or operate the Development, or such other
replacement project acceptable to the Agency in its sole and absolute discretion,in accordance with
this Agreement and the Redevelopment Plan. Upon such resale of the Talley Parcel(or any portion
thereof),the proceeds thereof shall be applied as follows:
(i) First,to pay any and all amounts required to releaselreconvey any Permitted
Encumbrance; and
(ii) Second,to reimburse the Agency on its own behalf or on behalf of the City
for all actual internal and third party costs and expenses previously or
currently incurred by the Agency and the City related to the Talley Parcel or
the Development, including, but not limited to, customary and reasonable
fees or salaries to third party personnel engaged in such actions,in connection
with the recapture, management and resale of the Talley Parcel or any part
WATalley Building\TalleyDDA_0504.DOC -43- 04 1674762
thereof;all taxes,assessments and utility charges paid by the City and/or the
Agency with respect to the Talley Parcel or portion thereof; any payment
made or necessary to be made to discharge or prevent from attaching or being
made any subsequent encumbrances or Bens due to obligations incurred by
the Developer or the Agency or the City with respect to the making or
completion of the Development or any part thereof upon the Talley Parcel;
and amounts otherwise owing to the Agency by the Developer or its
successors in interest to the Talley Parcel or any part thereof pursuant to the
terms hereof; and
(iii) Third,to the extent that any and all funds that are proceeds from such resale
are thereafter available, taking into account any prior encumbrances with a
claim thereto,to reimburse the Developer, or its successors in interest to the
Talley Parcel or any part thereof, equal to the third party costs actually
incurred and paid by the Developer for,the Development of the Property,
including,but not limited to,costs of carry,taxes,and other items as set forth
in the Developer's cost statement, which shall be subject to the Agency's
reasonable approval; provided, however, that the Developer shall not be
entitled to reimbursement for any expenses to the extent that such expenses
relate to any liens or other encumbrances that are paid by the Agency
pursuant to the provisions of subsections (i) or(ii) above.
Any portion of the resale proceeds remaining after the foregoing applications shall be retained by the
Agency as its sole and its exclusive property.
4.5.5 IMMEDIATELY FOLLOWING THE SIXTY (60) DAY PERIOD
SPECIFIED ABOVE, THE AGENCY, ITS EMPLOYEES AND AGENTS SHALL HAVE THE
RIGHT TO REENTER AND TAKE POSSESSION OF ALL OR ANY PORTION OF THE
TALLEY PARCEL AND ITS IMPROVEMENTS WITHOUT PRIOR NOTICE OR
COMPENSATION TO THE DEVELOPER. BY ITS INITIALS BELOW, TEE DEVELOPER
HEREBY EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL
W1Talley BuiWing\Ta11-yDDA_05o4.DOC -44-
RIGHTS THAT IT MAY HAVE UNDER CIVIL CODE SECTION 791 AND CODE OF CIVIL
PROCEDURE SECTION 1162,AS THOSE STATUTES ARE AMENDED OR SUBSTITUTED,
OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR
EFFECT.
DEVELOPER'S INITLALS
THE DEVELOPER ACKNOWLEDGES AND AGREES THAT THE AGENCY'S
EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO
THIS SECTION 4.5 SHALL WORK A FORFEITURE OF THE ESTATE IN THE TALLEY
PARCEL CONVEYED TO THE DEVELOPER HEREUNDER. THE DEVELOPER HEREBY
EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL EQUITABLE
AND LEGAL DEFENSES THAT IT MAY HAVE TO SUCH FORFEITURE,INCLUDING,BUT
NOT LIMITED TO, THE DEFENSES OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL
PERFORMANCE OR COMPENSABLE DAMAGES. THE DEVELOPER FURTHER
EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ALL RIGHTS AND DEFENSES
THAT IT MAY HAVE UNDER CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR
COMMON LAW PRINCIPLE OF SIMILAR EFFECT.
THE DEVELOPER ACKNOWLEDGES THAT THE PURCHASE PRICE HAS
BEEN ADJUSTED TO REFLECT THE POSSIBILITY OF FORFEITURE HEREUNDER AND
FURTHER ACKNOWLEDGES THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE
CONSIDERATION FOR ITS WAIVER AND RELINQUISHMENT OF RIGHTS AND
REMEDIES.
DEVELOPER'S INITIALS
The Agency's remedies under this Section 4.5 and its remedies under the Grant Deed are not
mutually exclusive and the Agency may elect to enforce any or all of them.
W Walley Suilding%TalleyDDA_0504.DOC -45-
04 1874762
ARTICLE 5. GENERAL TERMS
5.1 Notices and Demands. All notices or other communications required or permitted t
between the Agency and the Developer under this Agreement shall be in writing, and may be (i)
personally delivered, (ii) sent by United States registered or certified mail,postage prepaid, return
receipt requested, (iii) sent by telecopier/facsimile, or(iv) sent by nationally recognized overnight
courier service (e.g., Federal Express), addressed to parties at the addresses provided in Article 1,
subject to the right of either party to designate a different address for itself by notice similarly given.
Any notice so given by registered or certified United States mail shall be deemed to have been given
on the second business day after the same is deposited in the United States mail. Any notice not so
given by registered or certified mail,such as notices delivered by telecopier or courier service(e.g_,
Federal Express),shall be deemed given upon receipt of the same by the parry to whom the notice is
given.
5.2 NonIiability of Agency or City Officials and Employees. No board member,
official,contractor,consultant,attorney or employee of the Agency or City shall be personally b able
to the Developer, any yoluntary or involuntary successors or assignees,or any lender or other party
holding an interest in the Talley Parcel, in the event of any default or breach by the Agency,or for
any amount that may become due to the Developer or to its successors or assignees, or on any
obligations arising under this Agreement.
53 Conflict of Interests. No board member,official,contractor,consultant,attorney or
employee of the Agency or City shall have any personal interest,direct or indirect,in this Agreement
nor shall any such board member, official or employee participate in any decision relating to this
Agreement that affects his/her personal interests or the interests of any corporation, partnership or
association in that he/she is directly or indirectly interested.
5.4 Time Deadlines Critical; Extensions and Delays; No Excuse Due to Economic
Changes. Time is of the essence in the performance of the Agency's and Developer's obligations
under this Agreement. In addition to specific provisions of this Agreement,providing for extensions
of time,times for performance hereunder shall be extended where delays or defaults are due to war;
WATalley Buildin9\Ta1leyDDA 0504.DOC - - -46" 04 1674762
insurrection;the failure or delay in obtaining the necessary interest in the Talley Parcel to complete
any obligation hereunder, any form of labor dispute;lockouts; riots;floods;earthquakes;fires;acts
of God or of third parties; third party litigation; acts of a public enemy; acts of governmental
authorities; epidemics; quarantine restrictions; and freight embargoes (collectively, "Enforced
Delays")provided,however,that the Party claiming the extension notify the other Party of the nature
of the matter causing the default; and,provided further,that the extension of time shall be only for
the period of the Enforced Delays.
The foregoing notwithstanding,Developer expressly agrees that adverse changes in economic
conditions, either of Developer specifically or the economy generally, or changes in market
conditions or demands, shall not operate to excuse or delay the performance of each and every of
Developer's obligations and covenants arising under this Agreement. Developer expressly assumes
the sole risk of such adverse economic or market changes or conditions,whether foreseeable or not
at the time of Developer's entry into this Agreement. Without limiting the generality of the
foregoing,deadlines for performance may not be extended as provided above due to any inability of
the Developer to obtain or maintain financing for the construction and/or operation of the Project.
5.5 Attorneys' Fees. In the event of the bringing of an arbitration, action or suit by a
Party hereto against another Party hereunder by reason of any breach of any of the covenants or
agreements or any intentional inaccuracies in any of the representations and warranties on the part of
the other Party arising out of this Agreement or any other dispute between the Parties concerning this
Agreement or the Property, then, in which event, the prevailing party in such action or dispute,
whether by final judgment or arbitration award,shall be entitled to have and recover of and from the
other Party all costs and expenses of suit or claim,including actual attorneys'fees. Any judgment,
order or award entered in any final judgment or award shall contain a specific provision providing
for the recovery of all costs and expenses of suit or claim, including actual attomeys' fees
(collectively,the"Costs")incurred in enforcing,perfecting and executing such judgment or award.
For the purposes of this Section 5.5, Costs shall include, without implied limitation,attorneys'and
experts' fees, costs and expenses incurred in the following: (i)post judgment motions and appeals,
(ii) contempt proceedings, (iii) garnishment, levy and debtor and third party examination; (iv)
04 1674762
WATaky Buildinii\TalleyDDA_0504.DOC -47-
discovery; and (v) bankruptcy litigation. This Section 5.5 shall survive any termination of this
Agreement.
n
rte=
�t
5.6 Submission of Documents and Other Actions for Approval. Except where such
approval is expressly reserved to the sole discretion of the approving party, all approvals required
hereunder by either parry shall not be unreasonably withheld or delayed.
5.7 Amendments to This Agreement. The Developer and the Agency agree to consider
reasonable requests for amendments to this Agreement that may be made by any of the Parties
hereto, lending institutions, bond counsel or financial consultants. Any amendments to this
Agreement must be in writing and signed by the appropriate authorities of both the Agency and the
Developer. The Agency's Executive Director or designee is authorized on behalf of the Agency to
approve any documents relating to the implementation of this Agreement, including, without
Imitation,Additional Instructions,the Grant Deed,any minor amendments to this Agreement,or the
granting of extensions of time to the Developer.
5.8 Jurisdiction and Venue. Any legall action or proceeding concerning this Agreement
shall be filed and prosecuted in the appropriate California state court in the County of Los Angeles,
California. Each party hereto irrevocably consents to the personal jurisdiction of that court. The
Agency and the Developer each hereby expressly waive the benefit of any provision of federal or
state law or judicial decision providing for the filing,removal,or change of venue to any other court
or jurisdiction, including,without implied limitation, federal district court, due to any diversity of
citizenship between the Agency and the Developer,due to the fact that either the City or the Agency
is a party to such action or proceeding or due to the fact that a federal question or federal right is
involved or alleged to be involved. Without limiting the generality of the foregoing,the Developer
and the Agency specifically waive any rights provided to it pursuant to California Code of Civil
Procedure Section 394. The Developer acknowledges that the provisions of this Section 5.8 are
material consideration to the Agency for its entry into this Agreement,in that the Agency will avoid
the potential cost expense and inconvenience of litigating in a distant forum.
04 1674762
WATalley BuildinglTalleyDDA_0504.DOC -48- .
5.9 Interpretation. The Agency and the Developer acknowledge that this Agreement is
the product of mutual arms-length negotiation and drafting and that each party has been represented
by legal counsel in the negotiation and drafting of this Agreement. Accordingly, the rule of __.
construction that provides the ambiguities in a document shall be construed against the drafter of that
document shall have no application to the interpretation and enforcement of this Agreement. In any
action or proceeding to interpret or enforce this Agreement, the finder of fact may refer to any
extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine
and give effect to the intention of the Parties.
5.10 Counterpart Originals;Integration. This Agreement maybe executed in duplicate
originals,each of which is deemed to bean original,but when taken together shall constitute but one
and the same instrument. This Agreement, and its Exhibits, which are attached hereto and
incorporated by reference herein,represent the entire understanding of the parties and supersedes all
negotiations, letters of intent, memoranda of understanding or previous agreements between the
parties with respect to all or any part of the subject matter hereof.
5.11 No Waiver. Failure to insist on any one occasion upon strict compliance with any of
the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or
condition,nor shall any waiver or relinquishment of any rights or powers hereunder at any one time
or more times be deemed a waiver or relinquishment of such other right or power at any other time or
times.
5.12 Successors and Assigns. The terms, covenants and conditions of this Agreement
shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns.
Except as provided by Section 3.4.15.2,upon the permitted sale,transfer or conveyance by an owner
of the Talley Parcel of its interest therein in accordance with Section 3.4.15, such owner shall
thereupon be relieved of its obligations under this Agreement from and after the date of sale,transfer
or conveyance except with respect to any defaults in the performance of its obligations hereunder
that occurred prior to such sale,transfer or conveyance,and the transferee shall thereafter be solely
04 1674762
WATWL-y Bu11dinglTa11ey0DA_05D4.D0C -49-
responsible for the performance of all of the duties and obligations of Developer under this
Agreement.
1
5.13 No Third Party Beneficiaries. The performance of the Agency's and the Developer's
respective obligations under this Agreement are not intended to benefit any party other than the
Agency or the Developer, except as expressly provided otherwise herein. No person or entity not a
signatory to this Agreement shall have any rights or causes of action against any party to this
Agreement as a result of that party's performance or non-performance under this Agreement,except
as expressly provided otherwise herein.
5.14 No Effect on Eminent Domain Authority. Nothing in this Agreement shall be
deemed to limit,modify,or abridge or affect in any manner whatsoever the Agency's and the City's
eminent domain powers with respect to any portion of the Property,the Development,or any other
property owned by the Developer.
5.15 Survival of Representations and Warranties. The representations and warranties
of the Parties set forth in this Agreement shall survive the recordation of the Grant Deed and the
Close of Escrow and shall not be deemed merged into the Grant Deed upon its recordation.
5.16 Real Estate Commissions. The Agency and Developer each represent that it has not
engaged any broker, agent or finder in connection with this Agreement. Neither Party shall be
responsible, either directly or indirectly,for any broker's, agent's or finder's fees. Each Party shall
indemnify, defend and hold the other Party and their officials, officers, employees and agents
harmless for any actual or alleged claims, suits, damages or losses arising from the indemnifying
Party's broach of the foregoing provision.
5.17 Tax Consequences. The Developer acknowledges that it may experience tax
consequences as a result of its receipt of the benefits provided for in and related to this Agreement
and agrees that it shall bear, at its sole cost and expense, any and all responsibility,liability,costs,
and expenses connected in any way therewith.
04 167476,
WATalley Building\TalleyDDA_0504.DDC -50-
SIGNATURE PAGE TO
r:
DISPOSITION AND DEVELOPMENT AGREEMENT
THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA,
a California public agency
By: �—
Executive Director
ATTEST:
A ency Secretary
APPROVED AS TO LEGAL FORM:
BEST BEST& KRIEGER LLP
Agency Counsel
104 1674762
WATalley Building\TalleyDDA_05DCDOC -51-
SIGNATURE PAGE TO
DISPOSITION AND DEVELOPMENT AGREEMENT !'r r
621 Ta11ey LLC
a California Limited Liability Company
By: —
Its:
By:
Its:
04 1674762
WATalley BuildingiTalleyDDA_05N-DOC -52-
STATE OF CALIFORNIA } p
} CAPACITY CLAIMED BY SIGNER: ,f
/ wl
COUNTY OF LOS ANGELES ) ]Individual(s)
Corporate 1
Offic-(s)
I Pa eT(s)
On Jr�o� 2004,` before me, the ]Aumey-in-Faet
undersigned notary public, personally appeared Robert Truste (s)
Person, personally known to me OR proved to me on the SuhsmbingWimess
basis of satisfactory evidence to be the person whose name is Guardian/Censer Ia
subscribed to the within instrument and acknowledged to me otber
SIGNER IS REPRESENTING:
that he executed the same in his authorized capacity, and that NAME OF PERSON(S)OR BIM Y(MS)
by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal. F �_
L tIA F==EF
s Gmmisstar�8 a��r'e .
it
SignUture.of Notary Public
RVPUB\ass\bnsa;.t 04 1674762
DRAFr 4/23/04 D-53
STATE OF CALIFORNIA {
) CAPACnY CI,AIIJ'tiB BY 51CNFi1t:
COUNTY OF LOS ANGELES ) 1 marvidimt(6) f'
come
officet(s) e
S pw=4F)
On OVAL n E01+" 2404, before me, the Aaomcj in-Fac[
undersigned notary public, personally appeared I Tm Im(s)
U,4-r,Q1,Ya�to e ry N T subsa;bing vlmmess
1 personally known to me OR I proved to me on the basis of of d Ncnn^avaco
satisfac twidence to be the erson s whose names',s is/are I°cb�
tA�' ' P { ) "1 ) SIGNER[S RFS➢LFSEhTOT'C:
subscribed t>the within instrumentand azlmowledgedtome NAME OFFFRsoN(s>DRENmT(ms)
that he/she/flky executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s),or the entity upon behalf of which
the person(s) acted,executed the instrument.
WITNESS my hand and official seal.
E 6RAVp
�( Canmh�n*1"6870
L=It ales CCU*
Signature ofNotary Public MYCamnG BrptasOd 17,20D7
04 1674762
RV?UB\TSB\6.7is7a ,
DILAFr4/23/04 D-54
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY SIGNER:
COUNTY OF LOS ANGELES ) I)"dmdual(s) '^
CoTomt % A;
O@'ica(s) .
I Partna(s)
On 2004, before me, the I An—y-in-Fact
undersigned notary public, personally appeared ITmsl*s)
Subsm-bmg Vr=m
I personally known to me OR I proved to me on the basis of
satisfactoryevidence to be the person(s)s whose nam s is/are SIGN
p � ) � ) SIGNER Is RRrRESEn rwc:
subscribed to the within instrument and acknowledged to me NAME OF PERSON(5)OR ENnTY(ws)
that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
04 1674762
RVPISB\JSB\67y577.i
DRAFT 4/23/04 D-55
EXHMFr A TO ,'j
DISPOSITION AND DEVELOPMENT AGREEMENT
Legal Descriptions e
Breezway Parcel
The land referred to herein is situated in the County of Los Angeles, State of California, and is
described as follows:
Lot 41, in Block 37 of Azusa Tract as recorded in the Miscellaneous Records,Book 15,
Page 93 through 96.
Talley Parcel
The land referred to herein is situated in the County of Los Angeles, State of California, and is
described as follows:
Lots 42 and 43,in Block 37 of Azusa Tract as recorded in the Miscellaneous Records.Book
15,Page 93 through 96.
04 1674762
RVPUB\JSB\677577.i
DRAFT 4/23/04 D-56
EXHIBIT B TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Scope of Development ✓ €
The scope of development consist of:
1. The rehabilitation of the existing Talley building by Developer to include approximately
3,462 square feet of ground floor retail with restaurant space,and five loft apartments on the
second and third floors. Apartments will range between 845 square feet and 1,297 square
feet in size. The third floor will be recessed to the rear so as not to disturb the western view
of the east fagade. Key features of the rehabilitation are the maintenance of the existing
design of the east fagade,and the design and use of materials for the windows and doors as
specified by the Azusa Cultural and Historic Landmark Commission.
2. The demolition of the existing structure on the Breezeway Parcel by Developer.
04 1674762
RVPUB\7SB\67-7a
DRAFT 4/23/04 D-57 -
EXH[ IT C TO
DISPOSTITON AND DEVELOPMENT AGREEMENT ,
Schedule of Performance `.
Note: Days assumes business days and excluding holidays
Task Date
Agency Approval of Agreement October 20,2003(effective date)
Opening of Escrow October 27,2003
Agency to Provide Preliminary Title Report December 10,2003
Beginning of Environmental Review Period April 19,2004
Developer to Provide Developer's Title Notice May 6,2004
Agency to Provide"Documents and December 10,2003
Materials"
Submission by Developer of Precise Plan of October 21,2003
Design
Approval of Precise Plan of Design(PPD) December 10,2003
Agency to Make Election regarding title issues February 9,2004
Developer to Make Election regarding title February 18,2004
issues
End of Environmental Review Period May 6,2004
Developer submits construction documents, February 9,2004
preliminary and final,grading,paving and
landscaping plans and ancillary documents
City Approval/Disapproval construction April 6,.2004
documents,preliminary and final,grading, .
paving and landscaping plans and ancillary
documents
Developer corrects construction documents, May 20,2004
preliminary and final,grading,paving and
landscaping plans and ancillary documents
Developer begins construction June 14,2004
Developer to Provide Notice of Intent to March 24,2004
Waive Title Issues or Permit Agency 30 days
to clear title issues
Payments and Submittals provided IoT Escrow May 24,2004
Holder
Close of Escrow May 26,2004
Obtain Certificate of Completion March 1,2005
Obtain a final certificate of occupancy March 2,2004
RVPUB\d5B\671577.1 04 1674762
DRAFT4/23/04 D-58
EXHIBIT D TO
DISPOSITION AND DEVELOPMENT AGREEMENT
Grant Deed
[attached following this page]
04 1674762
RVPUB\JSB\67f577.1
DRAFT 4/23/04 D-59
RECORDING REQUESTED BY AND
VVHEN RECORDED MAIL TO:
621 Talley LLC
280 S. Beverly Drive, Penthouse
Beverly Hills, California, 90212-3906
MAIL TAX STATEMENTS TO:
621 Talley LLC
280 S. Beverly Drive,Penthouse
Beverly Hills, California, 90212-3906
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged,
THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a public body,
corporate and politic, of the State of California, herein called "Grantor," acting to carry out the
Redevelopment Plan for the Redevelopment Agency of the City of Azusa ("City") Merged
Central Business District/West End Project Area ('Project Area") (which plan is hereinafter
referred to as the 'Redevelopment Plan") under the Community Redevelopment Law of
California, hereby grants to:
621 Talley LLC, a California Limited Liability Company
as "Grantee," the real property(hereinafter referred to as the 'Property"), described as:
See attached Exhibit "1" attached hereto and
incorporated by reference herein ("Property")
1. The Property is conveyed subject to the Redevelopment Plan and pursuant to a
Disposition and Development Agreement (the "Agreement") entered into by and between
Grantor, and the Grantee dated as of November 11, 2003; which Agreement is incorporated
herein by reference. The Agreement is a public record and a copy of the Agreement is available
for public inspection and copying at the office of the Grantor, 213 E. Foothill Blvd., Azusa,
California 91702-1295. The Property is conveyed further subject to all easements, rights-of-
way, covenants, conditions, restrictions, exceptions pursuant to the Agreement, reservations and
all other matters of record. All initial capitalized terms used, but not otherwise defined herein,
shall have the meanings ascribed to such terms in the Agreement.
2. The Grantee covenants and agrees for itself, its assigns and all voluntary and
involuntary successors in interest to the Property or any part thereof, that for the life of the
Redevelopment Plan, the Property shall be put to no use other than those uses specified in the
City's General Plan and zoning ordinances, this Grant Deed and the Agreement, as the same may
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RVPUB\JSB\67784=.x
be amended from time to time. Nothing in this Section 2 shall limit, expand, modify or
otherwise affect any right of the Grantee to continue any legal nonconforming use upon the
Property following changes iri the City's General Plan or zoning ordinances.
3. Grantee covenants and agrees that the Grantee will construct and open the
Development as required by this'Agreement and, until the thirtieth (30th) anniversary of the
earlier of. (i) the Close of Escrow, or (ii) the issuance of a Certificates of Completion, will
continuously operate the Development, unless properly assigned or transferred pursuant to
Section 3.4.15, in which case, this covenant shall bind the assignee/transferee for the full term
hereof.
The Grantee will not be deemed to be in breach of this Section 3 should Grantee
temporarily cease to operate the Development for the following reasons:
(i) general repair and/or maintenance, the construction of
improvements, and the installation of utilities;
(ii) acts of enforced delay as defined in Section 5.4 of the Agreement
due to wear, insurrection, labor disputes, lockouts, third party
Iitigation, acts of a public enemy or governmental authority; and
(iii) the restoration and rebuilding of the Development, as more
particularly described in Section 3.4.19.4 of the Agreement,
following casualty loss due to floods, earthquakes, fires, other acts
of God or third parties.
4. The Grantee covenants and agrees that except as otherwise provided herein the
Grantee shall maintain, or cause to be maintained, the interior and exterior appearances of all
portions of the Property in a good condition, ordinary wear and tear excepted. The maintenance
covenant of this Section 4 shall remain in effect for the same period of time as the Operating
Covenants set forth in Section 3 of this Deed. .
5. The Grantee covenants and agrees that following the damage, destruction and/or
demolition of the Property and/or Development by an act of God or casualty, including, but not
limited to, fire, floods and earthquakes, the Grantee will promptly restore and rebuild the
Property and/or Development (as applicable) in,substantially the same form as required by the
Agreement, subject to such modifications as Grantor and Grantee may agree upon. The
covenants of this Section 5 shall remain in effect for the same period of time as the Operating
Covenants set forth in Section 3 of this Deed.
5.1 The Grantee covenants and agrees for itself, its assigns and all voluntary
and involuntary successors in interest to the Property or any part thereof, that the Property or any
portion thereof may not be used, or otherwise sold, transferred, conveyed, assigned, leased,
leased back, or hypothecated to or for any use that is partially or wholly exempt from the
payment of real property taxes or which would cause the exemption of all or any portion of such
real property taxes.
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5.2 The Grantee covenants and agrees for itself, its successors, its assigns and
all voluntary and involuntary successors in interest to the Property or any part thereof, that, for
any period that the Grantor is allocated property taxes pursuant to Health and Safety Code
Section 33670 or successor statute, the Grantee shall not contest the assessed valuation of the
Property or any part thereof, as established by the Los Angeles County Assessors Office.
The covenants set forth in this Deed touch and concern the Property, and every part
thereof, and constitute covenants n,nning with the Property and every part thereof. These
covenants may be enforced by the Grantor or the City of Azusa (as an intended third party
beneficiary), regardless of whether the Grantor or the City currently or continue to own an
interest in any property within the Project Area.
The Grantee irrevocably stipulates and agrees that breach of any of the covenants set
forth in Section 8,16, 17 or Sections 2 through 5 will result in great and irreparable damage to
the Grantor and the City, will violate the public policy and the purposes of the CRL, and will
result in damages to Grantor and the City that are either impracticable or extremely difficult to
quantify. Accordingly, upon the breach of any covenant set forth in any such Section(s), Grantor
may institute an action for injunctive relief and/or for damages attributable to such breach. The
covenants set forth in Sections 2 through 5 constitute obligations of the owner of the Property or
any portion thereof. Neither the Grantee nor any voluntary or involuntary successor in interest
shall have any liability under this Grant Deed for the breach of any of the covenants described
above, if such breach occurs at any time following the Grantee's or successor's cessation or
ownership of the Property.
6. Prior to the tenth (10w) anniversary of the recordation of this Grant Deed, the
Grantee shall not, except as permitted by the Agreement, sell, transfer, convey, assign or lease
the whole or any part of the Property without the prior written approval of the Grantor(other
than as expressly permitted in the Agreement).
7. This Section 7 reserves to the Grantor a power of termination in the Property, as
such powers as described in California Civil Code Section 885.010, et sem. Notwithstanding
anything else in this Deed or the Agreement to the contrary (inclusive of Section 4.3), the
Grantor shall, upon ninety (90) days written notice to the Grantee, have the right, at its option
and due to any cause set forth in this Section 7, to terminate the estate in the Property granted to
the Grantee and take possession of the Property and all improvements thereon, and to revest in
the Grantor the estate in the Property conveyed to the Grantee and to vest title to all
improvements constructed thereon, if after conveyance of title and prior to the recordation of the
Certificate of Completion for the Development,the Grantee (or its successors in interest) shall:
(i) Fail to obtain a certificate of occupancy (as provided by City's Municipal
Code) for the shell and core improvements of the Development by the date
set forth in the Schedule of Performance attached to the Agreement; or
(ii) Abandon or substantially suspend, or allow the abandonment or
substantial suspension, of construction of all or any portion of the
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Development for ninety (90) days after written notice of such
abandonment or suspension from the Grantor; or
(iii) Assign or attempt to assign the Agreement, or any rights or obligations
herein, or transfer, or suffer any involuntary transfer, of the Property or
any part thereof, in violation of the Agreement; and such violation shall
not have been cured within ninety (90) days after of written notice thereof
from the Grantor; or
(iv) Fail to cure within ninety (90) days after occurrence any default with
respect to any financing secured by a deed of trust, mortgage or other
security interest in the Property or any portion thereof.
The ninety (90) day written notice specified in this Section 7 shall specify that the
Grantor proposes to take action pursuant to this Section 7 and shall specify which of the
Grantee's obligations set forth in subsections (i) through (iv) have been breached. The Grantor
may proceed with the remedy set forth herein only if the Grantee does not cure such default
within ninety (90) days following such notice.
7.1 The right of the Grantor to reenter, repossess, terminate, vest and revest
shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or
limit any mortgage, deed of trust or other security interest required for any reasonable method of
financing the construction of improvements on the Property and any other expenditures
necessary to appropriately develop the Property under the Agreement (provided-that the Grantor
has consented to such financing pursuant to Section 3.4.15 of the Agreement) or any rights or
interests provided in the Agreement for the protection of the holders of any such mortgage, deed
of trust or other security interest.
Any deed to the Property or any portion thereof conveyed or leased by the
Grantee to another party shall contain appropriate references and provisions to give effect to the
Grantor's rights as set forth in this Section 7 of the Agreement.
7.2 Upon the Grantor's exercise of its rights and powers as provided in this
Section 7 of the Agreement, the Grantee or its successors shall convey by warranty deed to the
Grantor title to the Property and all improvements thereon in accordance with Civil Code Section
1109, as hereafter amended or substituted. Such conveyance shall be duly acknowledged by the
Grantee in a manner suitable for recordation. The Grantor may enforce its rights pursuant to this
Section 7 by means of an injunctive relief or forfeiture of title action filed in any court of
competent jurisdiction.
7.3 Upon the revesting in the Grantor of title to the Property by grant deed or
court decree, the Grantor shall use its reasonable good faith efforts to resell the Property at fair.
market value as soon and in such manner as the Grantor shall find feasible and consistent with
the objectives of the Community Redevelopment Law and of the Redevelopment Plan, to a
qualified and responsible party or parties (as reasonably determined by the Grantor) who will
assume the Grantee's obligation to begin and/or complete and/or operate the Development, or
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RVPUB\JSB\677642.2 _
such other replacement project acceptable to the Grantor in its sole and absolute discretion, in
accordance with this .Agreement and the Redevelopment Plan. Upon such resale of the Property
(or any portion thereof),the proceeds thereof shall be applied as follows:
(i) First, to pay any and all amounts required to release/reconvey any
Permitted Encumbrance; and
(ii) Second, to reimburse the Grantor on its own behalf or on behalf of the
City for all actual internal and third party costs and expenses previously or
currently incurred by the Grantor and the City related to the Property or
the Development, including, but not limited to, customary and reasonable
fees or salaries to third party personnel engaged in such actions, in
connection with the recapture, management and resale of the Property or
any part thereof; all taxes, assessments and utility charges paid by the City
and/or the Grantor with respect to the Property or portion thereof; any
payment made or necessary to be made to discharge or prevent from
attaching or being made any subsequent encumbrances or liens due to
obligations incurred by the Grantee or the Grantor or the City with respect
to the making or completion of the Development or any part thereof upon
the Property; and amounts otherwise owing to the Grantor by the Grantee
or its successors in interest to the Property or any part thereof pursuant to
the terms hereof, and
(iii) Third, to the extent that any and all funds that are proceeds from such
resale are thereafter available, taking into account any prior encumbrances
with a claim thereto, to reimburse the Grantee, or its successors in interest
to the Property or any part thereof, equal to the third party costs actually
incurred and paid by the assignee for the Development of the Property
including, but not limited to, costs of carry, taxes, and other items as set
forth in the Grantee's cost statement, which shall be subject to the
Grantor's reasonable approval; provided, however, that the Grantee shall
not be entitled to reimbursement for any expenses to the extent that such
expenses relate to any liens or other encumbrances that are paid by the
Grantor pursuant to the provisions of subsections (i) or(ii) above.
Any portion of the resale proceeds remaining after the foregoing applications shall be retained by
the Grantor as its sole and its exclusive property.
7.4 IMMEDIATELY FOLLOWING THE NINETY (90) DAY PERIOD
SPECIFIED ABOVE, THE GRANTOR, ITS EMPLOYEES AND AGENTS SHALL HAVE
THE RIGHT TO REENTER AND TAKE POSSESSION OF .ALL OR ANY PORTION OF
THE PROPERTY AND ITS IMPROVEMENTS WITHOUT PRIOR NOTICE OR
COMPENSATION TO THE GRANTEE. BY ITS INITIALS BELOW, THE GRANTEE
HEREBY EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL
RIGHTS THAT IT MAY HAVE UNDER CIVIL CODE SECTION 791 AND CODE OF CIVIL
PROCEDURE SECTION 1162, AS THOSE STATUTES ARE AMENDED OR
_5_
RVPUB\JSB\b77B42.2
SUBSTITUTED, OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES
OF SIMILAR EFFECT.
GRANTEE'S INITIALS
THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE GRANTOR'S
EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT
TO THIS SECTION OF THE AGREEMENT SHALL WORK A FORFEITURE OF THE
ESTATE IN THE PROPERTY CONVEYED TO THE GRANTEE HEREUNDER THE
GRANTEE HEREBY EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ANY
AND ALL EQUITABLE AND LEGAL DEFENSES THAT IT MAY HAVE TO SUCH
FORFEITURE, INCLUDING, BUT NOT LIMITED TO, THE DEFENSES OF LACHES,
WAIVER ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES.
THE GRANTEE FURTHER EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT
ALL RIGHTS AND DEFENSES THAT IT MAY HAVE UNDER CIVIL CODE SECTION
3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT.
THE GRANTEE ACKNOWLEDGES THAT THE PURCHASE PRICE HAS
BEEN ADJUSTED TO REFLECT THE POSSIBILITY OF FORFEITURE HEREUNDER
AND FURTHER ACKNOWLEDGES THAT IT HAS RECEIVED INDEPENDENT AND
ADEQUATE CONSIDERATION FOR ITS WAIVER AND RELINQUISHMENT OF RIGHTS
AND REMEDIES.
GRANTEE'S INITIALS
8. The Grantee agrees that the Grantee will not unlawfully discriminate against any
employee or applicant for employment because of sex,marital status, race, color, religion, creed,
national origin, or ancestry, and that the Grantee will comply with all applicable local, state and
federal fair employment laws and regulations.
The Grantee covenants and agrees that it will not unlawfully discriminate against or
segregation of any person or group of persons on account of race, color, creed, religion, sex,
marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property, nor shall the Grantee itself. or any person claiming under or
through it, establish or, permit any such practice or practices of unlawful discrimination or
segregation with reference to the selection, location, number, use of occupancy of tenants,
lessees, subtenants, sublessee or vendees of the Property. The foregoing covenants shall run
with the land, be binding upon the Grantee's transferee's, successors and assigns, and shall
remain in effect in perpetuity.
All deeds, leases or contracts relative to the Property, or the improvements constructed
thereon, shall contain or be subject to substantially the following nondiscrimination and non-
segregation clauses,pursuant to California Health and Safety Code Section 33435 and 33436.
A. In deeds: "The grantee herein covenants by and for himself, his heirs,
executors, administrators, and assigns, and all persons claiming under or through them, that there
6
RV PUB\JSB\67.7842.2 .
shall be no unlawful discrimination against or segregation of, any person or Ooup of persons on
account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor
shall the grantee himself or any person claiming under or through him, establish or permit any
such practice or practices of unlawful discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed: The foregoing covenants shall run with the land."
B. In leases: "The lessee herein covenants by and for himself. his heirs,
executors, administrators and assigns, and all persons claiming under or through him, and this
lease is made and accepted upon the subject to the following conditions: That there shall be no
unlawful discrimination against or segregation of any person or group of persons, on account of
rase, color, creed, religion, sex, marital status, national origin or ancestry,. in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall
the lessee himself, or any person claiming wider or through him, establish or permit any such
practice or practices of unlawful discrimination or.segregation with reference to the selection,
location, nwnber, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the
land herein leased."
C. In contracts: "There shall be no unlawful discrimination against or
segregation of, any person or group of persons on account of race, color, creed, religion, sex,
marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or
through him establish or permit any such practice or practices of unlawful discrimination or
segregation with reference to the selection, location, number, use, or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the land."
Nothing in this Section 8 shall operate as a waiver of any legal defenses that the
Grantee may have for a breach of any covenant contained herein, or operate to impose additional
burdens upon the Grantee other than those imposed by current law.
9. No violation or breach of the covenants, conditions, restrictions, provisions or
limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the
lien or charge of any mortgage, deed of trust or other financing or security instrument expressly
permitted by the Agreement; provided, however, that any successor of Grantee to the Property or
parcels thereof shall be bound by such remaining covenants, conditions, restrictions, limitations
and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
10. All covenants contained in this Grant Deed shall run with the land and shall be
binding upon the Grantee and for the benefit of the Grantor its successors and assigns and such
covenants shall run in favor of the Grantor and for the entire period during which such covenants
shall be in force and effect, without regard to whether the Grantor is or remains an owner of any
land or interest therein to which such covenants relate. The Grantor, in the event of any breach
of any such covenants, shall have the right to exercise all of the rights and remedies provided
herein or otherwise available, and to maintain any actions at law or suits in equity or other proper
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RVPUB\JSB\6-,784'z _
proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed
shall be for the benefit of and shall be enforceable only by the Grantor and its successors and
assigns.
11. The covenants contained in this Grand Deed, without regard to technical
classification or designation, shall not be deerrfed to benefit or be enforceable by any person,
firm or corporation, public or private, except Grantor and the City of Azusa and their successors
and assigns.
12. In the event of any express conflict between this Grant Deed and the Agreement,
the provisions of this Grant Deed shall control.
13. Grantee, its successors and assigns and all persons claiming under or through it
(including, without limitation, all lessees) hereby covenants that the Property conveyed in this
Deed is to be developed compatible,with the Redevelopment Plan and that is approved by the
Grantor. Grantee further covenants to commence and complete construction of the entirety of
the Development on or before the date specified in the Agreement. Should Grantee fail to
commence and complete construction by such date, the Grantor may exercise the rights under the
Power of Termination in Section 7 of this Deed.
IN WITNESS WHEREOF. the Grantor and Grantee have caused this instrument to be
executed this_day of 200_
[Signatures on following pages]
8
RVPUB\JSB\679842.2
GRANTOR:
Dated: THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA
a California public agency
By:
Executive Director
ATTEST:
City Clerk
APPROVED AS TO LEGAL FORM
BEST BEST & KRIEGER LLP
Agency Counsel
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RVPUB\JSB\677842.2
GRANTEE:
Dated: 621 Talley LLC,
a California Limited Liability Company
By:
Its:
By:
Its:
-lo-
RVPUB\JSB\6-,/84z.z
EXHIBIT "1"
LEGAL DESCRIPTION TO GRANT DEED
LEGAL DESCRIPTION OF PROPERTY
Lots 42 and 43, in Block 37 of Azusa Tract as recorded in the Miscellaneous
Records, Book 15, Page 93 through 96.
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RVPUB\JSB\6778422
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY SIGNER:
COUNTY OF )
In
Co porai>
Officar(s)
1
Partner(s)
,On 2004, before me, the 1Attorney-in-Fact
undersigned notary public, personally appeared TrustWs)
Subscribing Witness
i personally known to me OR)proved to me on the basis of cuaraianrconse amr
satisfactoryevidence o be the person(s) whose names i Other
tP SIGNER IS REPRESENTING:
is/are subscribed to the within instrument and NAME OFPERSON(S)0RENTI7Y(7ES)
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by
his/herhheir signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
-12-
RVPUB\JSB\6—,7842.2
STATE OF CALIFORNIA ) CAPACITY CLAIMED RY SIGNER:
COUNTY OF ) Individual(s)
Carporatc
Officer(s)
i Partncr(s)
On 2004, before me, the Attorney-in-Fact
undersigned notary public, personally appeared Trusue(s)
I Subscribing witness
personally known to me ORi proved to me on the basis of I Guardian/Cmrservator
satisfactory evidence to be the person(s) whose names I oth"
SIGNER IS REPRESENTING:
is/are subscribed to the within instrument and NAME OFPERSON(S)Ort ENIITY(IES)
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seat.
Signature of Notary Public
-t3-
RVPUB\JSB\6776422
T
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The Redevelopment Agency
of the City of Azusa
Attn: Executive Director
213 E. Foothill Blvd.
Azusa, CA 91702-1295
Exempt from Recording Fee per
GovemmentCode'27353
(Space above for Recorder's Use)
AMENDMENT NO. 2
TO
TALLEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT
between
THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA
a California public agency
and
621 Talley LLC
a California Limited Liability Company
®��G1NAL
Exhibit B
AMENDMENT NO. 2
TO
TALLEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT
This Amendment No. 2 ("Amendment No. 2") to that certain TAL.LEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT, dated as of November 11, 2003, and
amended May 18, 2004 (the "DDA"), by and between the Azusa Redevelopment Agency, a
California public agency (the "Agency") and 621 Talley, LLC, a California limited liability
company ("Developer") is dated February 7, 2005, for reference purposes only, and is entered
into by and between the Agency and Developer with reference to the following recited facts
(each, a"Recital"):
RECITALS
A. On or about November 11, 2003, Agency and Developer entered into that certain
DDA wherein Agency agreed to sell all of its right, title and interest in the Agency Property
identified and more specifically described in the DDA as the Talley Parcel.
B. The DDA also established certain obligations for Agency and Developer with
respect to a parcel known as the Breezeway Parcel, adjacent to the Talley Parcel,
C. On or about May 18, 2004, Agency and Developer entered into Amendment No. 1
to the DDA.
D. Section 3.4 and Exhibit `B" of the DDA require Developer to construct and/or
rehabilitate certain improvements on the Talley Parcel, including the construction of a third story
on the Talley Building, located on the Talley Parcel.
E. The Parties have jointly concluded that construction of a third story on the Talley
Building is not economically feasible, and that Developer may not be able to obtain funding for
the construction of the third story.
F. The Agency and Developer desire to enter into this Amendment No. 2 to amend
Developer's obligations under the DDA to remove the requirement to construct the third story.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET
FORTH IN THIS AMENDMENT NO. 2 AND OTHER VALUABLE CONSIDERATION, THE
AGENCY AND DEVELOPER AGREE, AS FOLLOWS:
I. Incorporation of Recitals. The Recitals set forth above are true and correct and
are incorporated into this Amendment No. 2.
2. Defined Terms. All terms, phrases and words indicated to be defined terms by
initial capitalization that are not specifically defined in this Amendment No. 2 shall have the
meaning ascribed to the same term, phrase or word in the DDA. The defined terms, phrases and
words defined in the initial paragraph and Recitals of this Amendment No. 2 are also
incorporated into the DDA and this Amendment No. 2, by this reference. The Agency and
RVPUB\JM%687737I 1 -
z
Developer are each, individually, referred to in this Amendment No.. 2 as a "Party" and,
collectively, as the"Parties."
3. Effect of Amendment. Except as to provisions expressly tenninated, removed or
amended by this Amendment No. 2, the DDA is, in all other respects, ratified and confirmed and
all of the terms and provisions and conditions of the DDA, as amended by this Amendment No.
2, shall be and remain in full force and effect.
4. Amendments to DDA. The Parties mutually agree to amend the DDA as
follows:
4.1 Section 3.4 is hereby amended to read as follows:
"The Developer shall perform its obligations with respect to the
Development of the Property in accordance with this Agreement,
including, without implied limitation, the Scope of Development and
Schedule of Performance attached as Exhibits B and C respectively, the
Grant Deed to the Talley Parcel and any additional plans provided by the
Developer and approved by the Agency and the City pursuant to this
Agreement. The Scope of Development shall include, without limitation:
(a) the demolition of the improvements located on the Breezeway Parcel
by the Agency (at the Agency's sole cost and expense); (b) the design and
rehabilitation of the improvements located on the Talley Parcel by the
Developer; (c) the design of the landscaping, lighting and hardscaping of
the Breezeway Parcel by the Agency; and (d) the construction of the
landscaping, lighting and hardscaping improvements on the Breezeway
Parcel by the Agency."
4.2 Exhibit "B" of the DDA is hereby amended to read as shown in
Attachment 1.
4.3 Exhibit "C" of the DDA is hereby amended to read as shown in
Attachment 2.
S. Acceptance of Amendment No. 2 by Developer. Developer shall acknowledge
its acceptance of this Amendment No. 2 by delivering to the Agency three (3) original
counterpart executed copies of this Amendment No. 2 signed by the authorized representative(s)
of Developer.
6. Counterpart Originals. This Amendment No. 2 may be executed by the Agency
and Developer in multiple counterparts, all of which together shall constitute a single agreement.
7. Binding on Successor and Assigns. The terns and provisions of this
Amendment No. 2 are intended to bind any successors and assigns of the Agency and Developer
to the same extent and effect as the same are binding to the Parties hereto.
8. Governing Law. The Agency and Developer acknowledge and agree that this
Amendment No. 2 was negotiated, entered into and is to be fully performed in the City of Azusa,
California. The Agency and Developer agree that this Amendment No. 2 shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the State of
California.
RVPUaVJM�697737 1 2
3
9. Partial Invalidity. If any term or provision or portion thereof of this Amendment
No. 2 or the application thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Amendment No. 2, or the application of such term or
provision or portion thereof to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each such term and provision of this
Amendment No. 2 shall be valid and enforced to the fullest extent permitted by law.
10. Waivers. No waiver of any breach of any covenant or provision contained in this
Amendment No. 2 shall be deemed a waiver of any preceding or succeeding breach of such
provision, or of any other covenant or provision contained in this Amendment No. 2.
11. Construction. Headings at the beginning of each section and sub-section of this
Amendment No. 2 are solely for the convenience of reference of the Agency and Developer and
are not a part of this Amendment No. 2. Whenever required by the context of this Amendment
No. 2, the singular shall include the plural and the masculine shall include the feminine and vice
versa. This Amendment No. 2 shall not be construed as if it had been prepared by one or the
other of the Agency or Developer, but rather as if both the Agency and Developer prepared this
Amendment No. 2. Unless otherwise indicated, all references to sections are to this Amendment
No. 2. All exhibits referred to in this Amendment No. 2 are attached to this Amendment No. 2
and incorporated into this Amendment No. 2 by this reference. If the date on which the Agency
or Developer is required to take any action pursuant to the terms of this Amendment No_ 2 is not
a business day,the action shall be taken on the next succeeding business day.
12. Effective Date. The Effective Date of this Amendment No. 2 is the date it is
approved by the Agency's governing body and fully executed by both Parties.
[Signatures on following page]
RVPUBIAJNR687737 7 3
r
IN WITNESS WHEREOF, the Parties execute this Amendment No. 2, by and through the
signatures of their duly authorized representatives below,as follows:
THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA,
a California public agency
By:
Executive D' ctor
Joseph F. Hsu
ATTES .
Agency Secretary
tJd�—
APPROVED AS TO LEGAL FORM:
BEST BE &
KRER LLP
A un I
621 Talley LLC
a California Limited Liability Company
By:
Its:
By:
Its:
RVPU8VUM\6977371 4
STATE OF CALIFORNIA )
) CMACITI'CLAIMED BY SIGNER:
COUNTY OF LOS ANGELES ) 0 Individual(s)
Corporate
Officer(s)
0 Parincr(s)
On Fc-6cun /� , 2005, before me, the 0 Attonncy-in-pact
undersigned no public, personally appeared 0 rrustce(s)
Hke'o p S4 fLbl C /,4,L/ 0 Subscribing Witness
0 personally known to me OR 0 proved to me on the basis 0 0uardiW1C0nscrv3t0r
of satisfactory evidence to be the person(s) whose name(s) 0 other
SIGNER 1S REPRESENTING:
is/are subscribed to the within instrument and NAME OFPERSON(S)ORENTRN(IES)
acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s),or
the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal. JESSICA E.WAV
_ ComMa+lalO1416B7p
Nafty Nft•Ca"aft
leLoftwonewft
14 �Y�tDI1 71
Signature of Notary Public
RVPUDWM1687737 1 5
STATE OF CALIFORNIA ) CAPACITY CLAIMED BY SIGNER:
COUNTY OF LOS ANGELES ) ❑Individual(s)
Corporals
ofl'iccr(s)
Pamcr(s)
On reD2J !T-A, 2005, before me, the 0 Attomcy-in-Fact
unde[,isigned nottt333777,'yy public, Pegonally�� appeared 0 Tnm-(s)
ITI✓ei p ❑SuhscribingWimm
P/ersonally known to me OR 0 proved to me on the basis n GuardiWConscrvetor
of satisfactoryevidence to be the erson� 0 otha
p ) whose name SIGNER IS REPRESENTING:
is/( . subscribed to the within Instrument and NAME orPERSON(S)ORDrrmyIFs)
acknowledged to me that be/sKe/th6 e ecuted the same in
his/l#r/th(�r authorized capaclty(ie), and that by
his/b�r/th�r signature(g um
on the instrument the person#), or
the entity upon beh f of which the person( acted,
executed the instrument
WITNESS my hand and
dd official seal.
CgtyDACE TOSCgryp
Signature of Notary Public4 Commisslon#1417186
4•'� Nolary Public-
Cat lomia
Las Angeles Caunly
My Comm.Expires Moy 12.2oD7
RVPUDIAIM\667737.1 6
ATTACHMENT I
(EXHIBIT B TO DISPOSITION AND DEVELOPMENT AGREEMENT)
Scope of Development
The scope of development consists of-
1.
f:1. The rehabilitation of the existing Talley building by Developer to include
approximately 3,462 square feet of ground floor retail with restaurant space, and three loft
apartments on the second floor. Apartments will range between 800 square feet and 912 square
feet in size. Key features of the rehabilitation are the maintenance of the existing design of the
east fagade, and the design and use of materials for the windows and doors as specified by the
Azusa Cultural and Historic Landmark Commission.
2. The demolition of the existing structure on the Breezeway Parcel by Developer.
RVPUBWM\667737 1 7
2
Exhibit C
(EXHIBIT C TO DISPOSITION AND DEVELOPMENT AGREEMENT)
Schedule of Performance
Note: Days assumes business days and excludio holidays
Task Date
Agency Approval of Agreement October 20, 2003 (effective
date)
Opening of Escrow October 27,2003
Agency to Provide Preliminary Title Report December 10,2003
Beginning of Environmental Review Period April 19,2004
Developer to Provide Developer's Title Notice May 6,2004
Agency to Provide"Documents and Materials" December 10,2003
Submission by Developer of Precise Plan of Design October 21,2003
Approval of Precise Plan of Design(PPD) December 10,2003
Agency to Make Election regarding title issues February 9,2004
Developer to Make Election regarding title issues February 18,2004
End of Environmental Review Period May 6,2004
City Council consideration/approval of revised DDA February 7,2005
Planning Commission consideration/approval of February 16,2005
revised plan
Developer submits construction documents, February 17,2005
preliminary and final, grading, paving and landscaping
plans and ancillary documents
City Approval/Disapproval construction documents, March 17,2005
preliminary and final, grading, paving and landscaping
plans and ancillary documents
Developer corrects and resubmits construction March 31,2005
documents, preliminary and final, grading, paving and
landscaping plans and ancillary documents
Developer to Provide Notice of Intent to Waive Title April 11,2005
Issues or Permit Agency 30 days to clear title issues
Payments and Submittals provided to Escrow Holder April 13,2005
City's (Building Dept) I° Recheck of corrected plan April 18,2005
submittal and/or Final Approval of plans.
Close of Escrow on or before April 30,2005
Developer begins construction May 31,2005
Obtain Certificate of Completion November 30,2005
Obtain a final certificate of occupancy December 1,2005
RVPUBI M)68773T1 8
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
The Redevelopment Agency of the
City of Azusa >
213 E. Foothill Blvd.
Azusa, CA 91702-1295
Attn: Executive Director
Exempt from Recording Fee per
Government Code 27383
(Space above for Recorder's Ilse)
THIRD AMENDED AND RESTATED
TALLEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT
between
THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA
a California public agency
and
621 TALLEY LLC
a California limited liability company
RPPURIUVADE1722426I
THIRD AMENDED AND RESTATED
TALLEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT
This Amendment No. 3 ("Amendment No. 3") to that certain TALLEY BUILDING
DISPOSITION AND DEVELOPMENT AGREEMENT, dated as of November 11, 2003 (the
"Original Agreement"), and amended May 17, 2004 and February 7, 2005 (as amended, the
"DDA"), by and between the Azusa Redevelopment Agency, a California public agency (the
"Agency") and 621 Talley, LLC, a California limited liability company ("Developer") is dated
November_, 2006, for reference purposes only, and is entered into by and between the Agency
and Developer with reference to the following recited facts (each, a"Recital"):
RECITALS
A. On or about November 11, 2003, Agency and Developer entered into the
Original Agreement. On or about May 17, 2004, Agency and Developer entered into
Amendment No. 1 to the DDA and on or about February 7, 2005, Agency and Developer
entered into Amendment No. 2 to the DDA. The DDA touches and concerns that real
property identified on the attached Exhibit "A".
B. Exhibit "B" of Amendment No. 2 to the DDA amended the description of
the improvements to be constructed by Developer, which included three (3) loft
apartments for residential use on the second floor of the Talley Building.
C. Exhibit "C" of Amendment No. 2 to the DDA amended the schedule of
actions to be undertaken by the Parties.
D. The Parties have jointly concluded that construction of three (3) loft
apartments for residential use on the second floor of the Talley Building is not
economically feasible. Developer has proposed to construct in lieu thereof one (1) non-
residential office unit on the second floor of the Talley Building and Agency is willing
to permit such change.
E. The Agency and Developer desire to enter into this Amendment No. 3 to
amend Developer's obligations under the DDA to substitute the construction of one (1)
office unit in lieu of the three (3) loft apartments on the second floor of the Talley
Building and to restate the timeline for performance of the Developer's obligations under
the DDA.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES
SET FORTH IN THIS AMENDMENT NO. 3 AND OTHER VALUABLE
CONSIDERATION, THE AGENCY AND DEVELOPER AGREE AS FOLLOWS:
1. Incorporation of Recitals. The Recitals set forth above are true and correct and
are incorporated into this Amendment No, 3.
BVPUBV VAD07.22426.!
1
2. Defined Terms. All terms, phrases and words indicated to be defined terms by
initial capitalization that are not specifically defined in this Amendment No. 3 shall have the
meaning ascribed to the same term, phrase or word in the DDA. The defined terms,phrases and
words defined in the initial paragraph and. Recitals of this Amendment'No. 3 are also
incorporated into the DDA and this Amendmept No. 3 by this reference. The Agency and
Developer are each, individually, referred to in this Amendment No. 3 as a 'Party" and,
collectively, as the 'Parties."
3. Effect of Amendment. Except as to provisions expressly terminated, removed
or amended by this Amendment No. 3, the DDA is, in all other respects, ratified and confirmed
and all of the terms and provisions and conditions of the DDA, as amended by this
Amendment No. 3, shall be and remain in full force and effect.
4. Amendments to DDA. The Parties mutually agree to amend the DDA as
follows:
4.1 Exhibit "B" (Scope of Development) of the DDA is deleted and replaced.
with the revised Exhibit "B" (Scope of Development) attached as Exhibit "B" to this
Amendment No. 3.
4.2 Exhibit "C" (Schedule of Performance) of the DDA is deleted and
replaced with the revised Exhibit "C" (Schedule of Performance) attached as Exhibit "C" to
this Amendment No. 3.
5. Acceptance of Amendment No.3 by Developer. Developer shall acknowledge
its acceptance of this Amendment No. 3 by delivering to the Agency three (3) original
counterpart executed copies of this Amendment No. 3 signed in recordable form by the
authorized representative(s)of Developer.
6. Counterpart Originals. This Amendment No. 3 may be executed by the
Agency and Developer in multiple counterparts, all of which together shall constitute a single
agreement This Amendment No. 3 shall be recorded by the Agency against the Property
promptly following its execution.
7. Binding on Successor and Assigns. The terms and provisions of this
Amendment No. 3 are intended to bind any successors and assigns of the Agency and
Developer to the same extent and effect as the same are binding to the Parties hereto.
8. Governing Law. The Agency and Developer acknowledge and agree that this
Amendment No. 3 was negotiated, entered into and is to be fully performed in the City of Azusa,
California. The Agency and Developer agree that this Amendment No. 3 shall be governed by,
interpreted under, and construed and enforced in accordance with the laws of the State of .
California-
9.
alifornia9. Partial Invalidity. If any term or provision or portion thereof of this
Amendment No. 3 or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Amendment No. 3 or, the application of such
term or provision or portion thereof to persons or circumstances other than those as to which it
'-- RVPUBIC.IVADLt72?426.1
2
is held invalid or unenforceable, shall not be affected thereby, and each such term and provision
of this Amendment No. 3 shall be valid and enforced to the fullest extent permitted by law.
10. Waivers. No waiver of any breach of any covenant or provision contained in
this Amendment No. 3 shall be deemed a waiver of any preceding or succeeding breach of such
provision, or of any other covenant or provision contained in this Amendment No. 3.
11. Construction. Headings at the beginning of each section and sub-section of this
Amendment No. 3 are solely for the convenience of reference of the Agency and Developer and
are not apart of this Amendment No. 3. Whenever required by the context of this Amendment
lar shall include the lural and the masculine shall include the feminine and vice
No. 3,the singe p
versa. This Amendment No. 3 shall not be construed as if it had been prepared by one or the
other of the Agency or Developer,but rather as if both the Agency and Developer prepared this
Amendment No. 3. Unless otherwise indicated, all references to sections are to this
Amendment No. 3. All exhibits referred to in this Amendment No. '3 are attached to this
Amendment No. 3 and incorporated into this Amendment No. 3 by this reference. If the date on
which the Agency or Developer is required to take any action pursuant to the terms of this
Amendment No. 3 is not a business day, the action shall be taken on the next succeeding
business day.
12. Effective Date. The Effective Date of this Amendment No. 3 is the date it is
approved by the Agency's governing body and fully executed by both Parties.
IN WITNESS WHEREOF, the Parties execute this Amendment No. 3, by and through
the signatures of their duly authorized representatives below,as follows:
[Signatures on following page]
RVPUBK-N'ADEI722426.1
3
ff AGENCY:
Dated: THE REDEVELOPMENT AGENCY
OF THE CITY OF AZUSA,
a California public a�genccyJ
/
By:
F. M. Delach
Executive Director
A
Agency Secretary
APPROVED AS TO LEGAL FORM:
BEST BEST &KRIEGER LLP
Agency Counsel
nn DEVELOPER:
Dated: ( 5 V 621 TALLEY LLC
a California limited liabil" company_—
By: AIV
Its: ,
Date: Z O�
RVPUBU IVADEV22426.1
4
NOTARY ACKNOWLEDGMENT
(California All-Purpose Acknowledgment)
STATE OF CIh Q'01G )
ss.
COUNTY OFto�,,., )
On Nov. 1 .3 2006 before me, JESStcN �'• �fAy`O > notary
public, personally appeared IU&-oe SAO,(,t S 1 A rl personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the
same m his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature of Notary Public
ATTACHED TO:
JESSICA E.BRAVO
Commission#1445a70�
6MYCOMFIL
Notary Public-CalifornialosAngelos County
EKpires Oct 17,2007
RIPUBILVADE172?4261 .
5
r
NOTARY ACKNOWLEDGMENT
(California All-Purpose Acknowledgment)
STATE OF
OS PM efes ) ss.
COUNTY OF i ) r
On NQJ - CJD 2006 before me, 0,U11�\'a SC? �Z� , notary
public, personally appeared �1,( o(j(5 Iv1l DD 169'm personally known to
me (or proved to me on the basis of satisfactory evidence) to be the persono whose namefm
is/ate'subscribed to the within instrument and acknowledged to me that he/sheAhe}-executed the
same in his/herkheir authorized capacity(icsj, and that by his/herfteir signature(,S f on the
instrument the personal, or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature 16fNotary Publi
ATTACHED TO:
CYNTHIA SEFFER
Commission# 1550351
.-m Nofary Public-California
Los Angeles County -
My Comm.Expires Feb 5,20D9
RIPUBV WADE17221261
6
EXHIBIT A
TO THE THIRD AMENDED AND RESTATED
TALLEY BUILDING DISPOSITION AND DEVELOPMENT AGREEMENT
(Legal Description)
RIPUBILWADE 712416./
EXI-IIBIT A
T
EXHIBIT B
TO TILE THIRD AMENDED AND RESTATED
TALLEY BUILDING DISPOSITION AND DEVELOPMENT AGREEMENT
(EXHIBIT B TO DISPOSITION AND DEVELOPMENT AGREEMENT)
Scope of Development
The Scope of Development consists of.
The rehabilitation of the existing Talley building by Developer to include approximately
3,462 square feet of ground floor retail with restaurant space, and one (1) non-residential office
unit on the second floor. Office units will range between 800 square feet and 912 square feet in
size. Key features of the rehabilitation are the.maintenance of the existing design of the east
fagade, and the design and use of materials for the windows and doors as specified by the Azusa
Cultural and Historic Landmark Commission.
RITUBILN'ADD722061
EXHIBIT B
EXHIBIT C
TO THE THIRD AMENDED AND RESTATED
TALLEY BUILDING DISPOSITION AND DEVELOPMENT AGREEMENT
(EXHIBIT C TO DISPOSITION AND DEVELOPMENT AGREEMENT)
Schedule of Performance
[To be updated)
Nolc: Days assumes business days and excluding holidays
Task Date
Agency Approval of Agreement October 20,2003(effective
date
Opening of Escrow October 27,2003
Agency to Provide Preliminary Title Report December 10,2003
Beginning of Environmental Review Period April 19,2004
Developer to Provide Developer's Title Notice May 6,2004
Agency to Provide"Documents and Materials" August 15,2005
Submission by Developer of Precise Plan of Design October 21,2003
Approval of Precise Plan of Design(PPD) December 10,2003
Agency to Make Election regarding title issues February 9,2004
Developer to Make Election regarding title issues February 18,2004
EndofEnvironmental Review Period May 6,2004
City Council considerationtapproval of revised DDA February 7,2005
Planning Commission considerationlapproval of February 16,2005
revised pian .
Developer submits construction documents, February 17,2005
preliminary and final,grading,paving and landscaping
plans and ancillary documents
City Approval/Disapproval construction documents, March 17,2005
preliminary and final,grading,paving and landscaping
plans and ancillary documents
Developer corrects and resubmits construction March 31,2005
documents,preliminary and final,grading,paving and
landscaping plans and ancillary documents
Developer to Provide Notice of Intent to Naive Title October 15,2005
Issues or Permit Agency 30 days to clear title issues
Payments and Submittals provided to Escrow Holder October 28,2005
FVPUBV L IVADE17224261
EXHIBIT C
City's(Building Dept) I'Recheck of corrected plan September 3,2005
submittal and/or Final Approval of plans.
Close of Escrow on or before November 9,2005
Developer begins construction December 18,2005
Obtain Certificate of Completioff February 28,2006
Obtain a final certificate of occupancy April 1,2006
R VP UB ILWADEf 7224261
E)-IIBIT C
CONGREGATION ALE HOUSE
ASSUMPTION OF LOAN AGREEMENT
This ASSUMPTION OF LOAN AGREEMENT ("Agreement') is made effective as of
Jul5 5, 2011, by and between CONGREGATION ALE HOUSE AZUSA CHAPTER LLC, a
California limited liability company] (`Borrower"), and AZUSA REDEVELOPMENT
AGENCY, a California public agency ("Lender"). This Agreement shall become effective on
the date ("Effective Date") it has been approved and executed by both parties hereto.
RECITALS
A. Lender entered into that certain loan agreement with Seyed S. Zaribaf (on
November 7, 2005 to finance the purchase and/or leasing of furniture, fixtures and equipment
("FF&E") necessary for the establishment and operation of a restaurant to be located at the
certain property commonly known as the Talley Building and located at 621 N. Azusa Avenue,
City of Azusa, County of Los Angeles, California. A copy of the loan agreement is attached
hereto as Exhibit A and incorporated herein by reference. Pursuant to the terms of said
agreement the unpaid balance of the loan was to be cancelled and discharged if Zaribaf met
certain terms and conditions.
B. Zaribaf did not satisfy the terms and conditions of the agreement and did not
repay the loan amount owed to the Lender. In accordance with the default provisions of the loan,
Lender has the option of recovering the FF&E from the business location.
C. Congregation Ale House Azusa Chapter LLC intends to purchase the Talley
Building which contains the FF&E and has asked to assume the terms of the Loan Agreement
made with Zaribaf as a condition of retaining the FF&E. Lender is willing to make such loan
pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and
promises set forth herein, the parties hereto agree as follows:
1. Terms of Assumption. Borrower, for itself and its successors and assigns, hereby
assumes and agrees to perform and be bound by all of the covenants, agreements, provisions,
conditions and obligations of the Borrower under the original Loan Agreement for a period of
twenty four (24) months following the Effective Date of this Agreement. Based on the terms of
the original Loan Agreement the remaining debt as of the date this Agreement is entered into is
deemed to be Sixty Thousand Dollars ($60,000).
2. Effect of this Agreement. Except as expressly modified by this Agreement, the
Agreement shall continue in full force and effect according to its terms. In the event of a conflict
between the terms of the LOAN AGREEMENT and this Agreement, this Agreement shall
govern. This Agreement shall not be construed as (i) conferring upon Agency or Borrower any
greater rights than those contained in the LOAN AGREEMENT, (ii) diminishing any rights
under the LOAN AGREEMENT, or (iii) modifying the LOAN AGREEMENT in any respect.
45636.06001\6075820.2 -1-
3. Notice Address. Any notices required under the LOAN AGREEMENT shall be
effective when served on Assignee as set forth in Section 13.08 of the LOAN AGREEMENT at
the addresses set forth below:
If to Borrower: Congregation Ale House Azusa Chapter LLC
Attn: Richard T. Hale
513 S. Myrtle Avenue, Suite A
Monrovia, CA 91016
Facsimile:
If to Assignor: Redevelopment Agency of the City of Azusa
Attn: Executive Director
213 E. Foothill Blvd.
Azusa, CA 91702
Facsimile: (626)
4. Authority. Each signatory of this Agreement represents hereby that he or she has
the authority to execute and deliver the same on behalf of the party hereto for which such
signatory is acting.
5. Counterparts. This Agreement may be executed in counterparts and shall
constitute an agreement binding on all parties notwithstanding that all parties are not signatories
to the original or the same counterpart provided that all parties are furnished a copy or copies
thereof reflecting the signature of all parties.
6. Severability. The unenforceability or invalidity of any provision or provisions of
this Agreement as to any persons or circumstances shall not render that provision or those
provisions unenforceable or invalid as to any other persons or circumstances, and all provisions
hereof, in all other respects, shall remain valid and enforceable.
7. Binding Effect; Inurement. This Agreement shall bind Borrower and its
successors and assigns and the benefits hereof shall inure to Lender and Lender's successors and
assigns.
8. Governing Law: Jurisdiction. This Agreement shall be governed by and
construed exclusively in accordance with the internal substantive laws of the State of California.
The parties hereto consent to the exclusive jurisdiction of the state courts sitting in the City of
Los Angeles, California, for any action or proceeding arising under this Agreement or the Loan.
9. Attorneys' Fees. Borrower agrees to pay the following costs, expenses, and
attorneys' fees paid or incurred by the Lender or adjudged by a Court: (i) reasonable costs of
collection, costs, expenses, and attorneys' fees paid or incurred in connection with the collection
or enforcement of the Loan, whether or not suit is filed; and (ii) costs of such sum as the Court
may adjudge as attorneys' fees in an action to enforce payment of this note or any part of it. In
the event Lender brings an action under this Agreement in which Borrower is the prevailing
party, Borrower shall be entitled to its reasonable attorney's fees and costs.
45636.06001\6075820.2 -2-
10. Entire Agreement. This Agreement, when taken together with the LOAN
AGREEMENT, shall be deemed to constitute the entire understanding and agreement of the
parties with regard to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
BORROWER:
CONGREGATION ALE HOUSE AZUSA
CHAPTER LLC
By:
Name:
Its:
LENDER:
AZUSA REDEVELOPMENT AGENCY
a California public agency
By:
F.M. Delach
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
Agency Counsel
45636.0600116075820.2 -3-
EXHIBIT A
TO
LOAN AGREEMENT
PROMISSORY NOTE
[To Be Attached] `
EXHIBIT A
45636.06001\6075820.2
EXHIBIT B
TO
LOAN AGREEMENT
DEED OF TRUST
[To Be Attached]
EXHIBIT B
45636.0600116075820.2
J
EXHIBIT C
TO
LOAN AGREEMENT
SECURITY AGREEMENT
[To Be Attached] `
EXHIBIT C
4563 6.0600156075 820.2
Exhibit A
To the Congregation Ale House
Assumption of Loan Agreement
See Attached
s
LOAN AGREEMENT
This LOAN AGREEMENT(".Agreement") is made effective as of November 7, 2005,by
and between SEYED S. ZARIBAF ("Borrower"), and REDEVELOPMENT AGENCY OF THE
CITY OF AZUSA, a California public agency("Lender").
RECITALS
A. Borrower has requested that Lender make a loan to Borrower to finance the
purchase and/or leasing of furniture,fixtures and equipment("FF&E")necessary for
the establishment and operation of a restaurant ("Business") to be located at the
certainproperty commonly known as the Talley Building and located at 621 NORTH
AZUSA AVENUE, City of Azusa, County of Los Angeles, California.
B. Borrower,contemporaneously with entering into this Agreement,is entering
into an agreement with the owner of the Talley Building to lease the location for the
proposed restaurant in the Talley Building. Borrower's interest under such lease
agreement is referred to hereunder as the"Leasehold."
C. Lender is willing to make such loan pursuant to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and
promises set forth herein, the parties hereto agree as follows:
I. Terms of Loan. Subject to the fulfillment of Lender's funding contingencies as set
forth in Section 4, Lender shall advance to Borrower an amount (the"Loan") not to exceed One
Hundred Fifty Thousand and No/100 Dollars ($150,000.00). The disbursement of the Loan funds
may be in such periodic disbursements and in the form, including two-party drafts payable to
Borrower and its vendors, as the Lender may elect in its reasonable discretion. The outstanding
balance of the Loan shall accrue interest at a rate per annum equivalent to the prevailing prime rate
plus two percent(2%),adjusted annually on the anniversary date of the promissory note evidencing
the Loan. The prevailing prime rate shall be the prime rate pub]isbed in the print edition of the Wall
Street Journal, which as of the date of this Agreement is seven percent (7.000%). Provided
Borrower maintains and operates the Business to the reasonable satisfaction of Lender during all of
the term hereof("Term"), and in consideration of the public benefit received by Lender,Borrower
shall not be required to make any payments to Lender during the Term and the entire unpaid balance
of the Loan and accrued interest thereon shall be canceled and discharged on the Loan's maturity
date,which shall be November 71 2010, or five years after the Certificate of Occupancy has been
issued by the City ofAzusa for 621 North Azusa Avenue, whichever occurs later. In the event
Borrower ceases to maintain and operate the Business to the reasonable satisfaction of Lender prior
to the expiration of the Term, such event shall be an "Event of Default" under the Note(defined
following)and Lender may,at Lender's option,declare the Note and the entire indebtedness thereby
evidenced to be immediately due and payable, regardless of the maturity date. Borrower shall
execute a promissory note to evidence the Loan in the form attached hereto as Exhibit A ("Note's
and incorporated herein by reference,
RVBUS\EHP\689009 2 't'
2. Securi . Borrower's obligations under the Loan and the Note shall be secured by a
first deed of trust on the Leasehold in the form attached hereto as Exhibit B and incorporated herein
by reference(the"Deed of Trust"). Borrower's obligations under the Loan and Note shall be secured
further by the grant of a security interest in the FF&E purchased by Borrower pursuant to a security
agreement("Security Agreement")in the form attached hereto as Exhibit C,which security interest
shall be perfected by the filing of a UCC Financing Statement(form UCC-I).
3. Further Assurances. Borrower shall, at Borrower's own cost and expense, execute
and deliver such further documents and instruments and take such other actions as may be reasonably
required or appropriate to evidence or cant'out the intent and purposes of this Agreement,including,
without limitation, cooperating in good faith to sell the Borrower's Alcoholic Beverage Control
license to any party Lender approves to succeed to Borrower's interest in the Leasehold upon the
occurrence of an Event of Default.
4. Funding Contingencies. Lender's obligation to fund the Loan shall be contingent
upon the fulfillment of the following contingencies,all to Lender's sole and absolute satisfaction,on
or before November 7,2005:
(a) Borrower shall have delivered to Lender an original executed copy of the
Note,the Deed of Trust and the Security Agreement; and
(b) Borrower shall have delivered to Lender a copy ofthe executed lease creating
the Leasebold and a schedule describing the FF&E to be acquired, including the
estimated cost thereof.
5. Severability. The unenforceability or invalidity of any provision or provisions ofthis
Agreement as to any persons or circumstances shall not render that provision or those provisions
unenforceable or invalid as to any other persons or circumstances,and all provisions hereof,in all
other respects, shall remain valid and enforceable.
6. Binding Effect,Inurement. This Agreement shall bind Borrower and its successors
and assigns and the benefits hereof shall inure to Lender and Lender's successors and assigns.
7. Governing*Law: Jurisdiction. This Agreement shall be govemed by and construed
exclusively in accordance with the internal substantive laws of the State of California. The parties
hereto consent to the exclusive jurisdiction of the state courts sitting in the City of Los Angeles,
California, for any action or proceeding arising under this Agreement or the Loan.
8. Attorneys'Fees. Borrower agrees to pay the following costs,expenses,and attorneys'
fees paid or incurred by the Lender or adjudged by a Court: (i)reasonable costs of collection,costs,
expenses,and attomeys'fees paid or incurred in connection with the collection or enforcement of the
Loan,whether or not suit is filed; and(5)costs of such sum as the Court may adjudge as attorneys'
fees in an action to enforce payment of this note or any part of it. In the event Lender brings an
action under this Agreement in which Borrower is the prevailing party,Borrower shall be entitled to
its reasonable attorney's fees and costs.
[Signatures Follow on the Next Page]
RVBDS\EHP\6e9D09.2 -�-
IN WITNESS WIIEREOF,the parties hereto have executed this Agreement as of the date
first written above.
BORROWER:
SEYED S.ZARIBAF
By:
�_J J
Name: Se ed arib
Its: An Individual
LENDER:
REDEVELOPMENT AGENCY OF THE CITY OF
AZUSA
a California public agency
By: A Q
�F.M. DDelach
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO LEGAL FORM:
BEST BEST&KRIEGER LLP
Agency Counsel
RVBOS\EHP\669009.2 -3-
EXHIBIT A
TO
LOAN AGREEMENT
PROMISSORY NOTE
[To Be Attached]
EXHIBIT A
RVBUS\EHP\6B9D09.2
DO NOT DESTROY THIS NOTE: When paid, this Note and the Deed of Trust securing same must be
surrendered to Trustee for cancellation before reconveyance will be made.
SECURED PROMISSORY NOTE
$150,000.00 Azusa,California November 7 ,2005
FOR VALUE RECEIVED, SEYED S. 7AMBAF_> an individual ("Maker"),promises
to pay to REDEVELOPMENT AGENCY OF THE CITY OF AZUSA, a California public agency
("Holder"), or order, at such place as Holder may from time to time designate by written notice to Maker,
the principal sum of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00), together with
interest thereon accruing from the date of each disbursement under this Note and thereafter at a rate per
annum equivalent to the prevailing prime rate plus two percent(2%),adjusted annually on the anniversary
date of this Note. The prevailing prime rate shall be the prime rate published in the print edition of the
Tvall Street Journal, which as of the date of this Note is seven percent (7.000%). Principal and interest
will be due and payable in lawful money of the United States of America without set-off, deduction, or
counterclaim, except as provided herein.
1. Term. The term("Term's of this Note shall expire on the Maturity Date, defined
below, and all amounts outstanding pursuant to the terms of this Note shall be due and payable, as
provided under Section 2 hereof,at the end of the Term.
2. Payments. During the Term,Maker shall not make any payments of principal or
interest to Holder. The entire unpaid principal balance of this Note, together with interest accrued
thereon, shall be fully due and payable November 7,2010, or five years after the Certificate of Occupancy
has been issued by the City of Azusa for 621 North Azusa Avenue, whichever occurs later ("Maturity
Date"); provide however, if Maker maintains and operates the-Business (defined below) to the
reasonable satisfaction of the Holder during all of the Term (and is otherwise not in default under the
terms and conditions hereof), and in recognition of the public benefit received by Holder, the entire
unpaid principal balance of this Note, together with interest accrued thereon, shall be canceled and
discharged.
3. Prepayment. Maker shall have the right to prepay any amount owing under this
Note, in whole or in part,without penalty.
4. Waiver. Maker waives presentment, protest, notice of dishonor and
non-payment.
5. Securi . Maker has executed that certain Security Agreement of even date
herewith, attached hereto as Exhibit A pursuant to which Maker grants to Holder a continuing security
interest in the furniture, fixtures, and equipment of Maker's restaurant business ("Business") located at
621 North Azusa Avenue , Azusa, California, in order to secure prompt payment and performance of
Maker's obligation under this Note. This Note is also secured by that certain Leasehold Deed of Trust of
even date herewith,attached hereto as Exhibit B.
6. Acceleration of Note. Should an event of default(defined below)occur,then and
in any such event, Holder may, at Holder's option, declare this Note and the entire indebtedness hereby
evidenced to be immediately due and payable,regardless of the Maturity Date..
I
RVBUM14P\6B9036 I -
7. Indemnity Maker agrees to indemnify Holder and to hold Holder and Holder's
successors and assigns harmless from and against any and all claims, demands, costs, liabilities and
obligations of any kind or nature arising out of any default hereunder, including without limitation all
costs of collection, including reasonable attorneys' fees and all costs of suit, in the event the unpaid
principal sum of this Note and/or any interest thereon is not paid when due.
8. Interest Rate on Remaining Amount. Following the maturity of the indebtedness
evidenced hereby, whether by acceleration or otherwise, any amount remaining unpaid to Holder,
together with unpaid interest on such unpaid amounts, shall thereafter bear interest at the rate of ten
percent(10%)per annum.
9. Events of Default. The occurrence of any of the following events shall be an
event of default hereunder: (i) Maker's ceasing to maintain and operate the Business to the reasonable
satisfaction of Holder at any time prior to the Maturity Date; (ii) the failure of Maker to make payment in
full of the unpaid principal and interest thereon on or before the Maturity Date; (iii) the making of any
general arrangement or assignment for the benefit of creditors; (iv)becoming a "debtor" as defined in 11
U.S.C. § 101 or any successor statute thereto; (v) the appointment of a trustee or receiver to take
possession of substantially all of Maker's assets; or(vi) the attachment, execution or other judicial seizure
of substantially all of Maker's assets. If any provision of this Section 9 is contrary to applicable law, such
provision shall be of no force or effect and shall not affect the validity of the other provisions, which shall
remain in full force and effect.
10 Severability The unenforceability or invalidity of any provision or provisions of
this Note as to any persons or circumstances shall not render that provision or those provisions
unenforceable or invalid as to any other persons or circumstances, and all provisions hereof, in all other
respects,shall remain valid and enforceable.
11. Binding Effect: Inurement. This Note shall bind Maker and its successors and
assigns and the benefits hereof shall inure to Holder and Holder's successors and assigns.
12. Governing Law and Jurisdiction. The enforcement and interpretation of this
Note shall be govemed exclusively by the laws of the State of California without regard to its choice of
law rules (or those of any state) and regardless of which state's law would govern, if at all, otherwise.
Maker consents to the exclusive jurisdiction of the federal or state courts sitting in the City of Los
Angeles,California, for any action or proceeding to enforce or interpret the terms of this Note.
13. Time of the Essence. Time is of the essence of this Note.
MAKER
SEYED S. ZARIBAF
By:
Name: Se ed S. baf
Its: An Individual
7
RVBUS EHPkGa903G i
EXHIBIT B
TO
LOAN AGREEMENT
DEED OF TRUST
[To Be Attached]
EXHIBIT B
RVBUS\ERP\689004.2
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
)
REDEVELOPMENT AGENCY OF THE )
CITY OF AZUSA )
213 East Foothill Boulevard )
Azusa,CA 91702-1395 )
Attn: Executive Director )
Exempt from Recording Fee per
Government Code§27363
Space above for Recorder's Use
LEASEHOLD DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND FIXTURE FILING
The parties to this Deed of Trust With Assignment of Rents, and Fixture Filing (this
"Deed of Trust"), made as of , 2005, are SEYED S. ZARIBAF, as trustor
("Trustor"), , as trustee ("Trustee"), and REDEVELOPMENT
AGENCY OF TBE CITY OF AZUSA, a California public agency, as beneficiary and secured
party ("Beneficiary').
L Grant in Trust and Secured Oblieations.
1.1 Grant in Trust. For the purpose of securing payment and performance of
the Secured Obligations defined and described in Section 1.2, Trustor hereby irrevocably and
unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the benefit of
Beneficiary, with power of sale and right of entry and possession, all estate, right, title and
interest which Trustor now has or may later acquire in and to the following property (all or any
part of such property, or any interest in all or any part of it, together with the Personality (as
hereinafter defined)being hereinafter collectively referred to as the"Property"):
(a) All present and future leasebold estate, right, title and interest of
Trustor in and to that certain real property in the County of Los Angeles, State of
California, more particularly described in Exhibit A attached hereto and incorporated
herein by reference (the "Land"), said leasehold estate, right, title and interest having
been created by that certain lease by and between Trustor and 621 TALLEY. LLC,
together with all currently existing and hereafter arising amendments, modifications,
renewals, extensions and replacements thereof),together with any and all other further or
additional title, estates, interests or rights which may at any time be acquired by Trustor
in or to the Land (Trustor hereby expressly agreeing that if Trustor shall, at any time prior
to payment in full of all indebtedness secured hereby,acquire fee title or any other greater
estate to the Land, the lien of this Deed of Trust shall automatically attach, extend to,
cover and be a lien upon such fee simple title or other greater estate);
RVBMEHP16BW9.1 -I-
(b) All right, title and interest of Trustor in and to all options to
purchase or lease the Land (as hereinafter defined), or any portion thereof or interest
therein of any kind, and any rights of first refusal or first offer, privileges and other
benefits of Trustor under the lease described above or pertaining to the Land;
(c) All Fixtures(as that term is hereinafter defined); and
(d) All additions and accretions to, substitutions and replacements for,
and changes in,any of the property described above.
1.2 Secured Obligations. Trustor makes the grant, conveyance, transfer and
assignment set forth in Section 1.1 and grants the security interest set forth in Section 3, all for
the purpose of securing the following obligations in any order of priority that Beneficiary may
choose(collectively,the Secured Obligations;" individually, a"Secured Obligation"):
(a) Payment of all obligations at any time owing under a promissory
note (the "Note') of even date herewith, payable by Trustor as maker in the stated
principal amount of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) to
the order of Beneficiary;
(b) Payment and performance of all obligations of Trustor under this
Deed of Trust and/or the Loan Agreement(defined below);and
(c) Payment and performance of all modifications, amendments,
extensions,and renewals,however evidenced, of any of the Secured Obligations.
All persons who may have or acquire an interest in all or any part of the Property will be
considered to have notice of, and will be bound by, the terms of the Secured Obligations and
each other agreement or instrument made or entered into in connection with each of the Secured
Obligations. These terms include any provisions in the Note, or the loan agreement ("Loan
Agreement") between Trustor and Beneficiary of even date herewith, which permit borrowing,
repayment and reborrowing, or which provide that the interest rate on one or more of the Secured
Obligations may vary from time to time. The Note and Loan Agreement may be referred to
hereunder as the"Loan Documents."
2. rReservedl.
3. Fixture Filing.
3.1 Fixture Filing; Description of Fixtures. This Deed of Trust constitutes a
fixture filing under Sections 9334 and 9502 of the California Uniform Commercial Code, as
amended or recodified from time to time, and covers property which includes goods which are or
are to become fixtures on the Property. "Fixtures" include all articles of personal property now
or hereafter attached to, placed upon for an indefinite term or used in connection with said real
property, appurtenances and improvements,together with all goods and other property which are
or at any time become so related to the Property that an interest in them arises under real estate
law.
RV13USIEFI1669049.1 - -2-
4. Rights and Duties of the Parties.
4.1 Representations and Warranties- Trustor warrants that, except as
previously disclosed to Beneficiary in a writing making reference to this warranty:
,(a) Trustor lawfully possesses and holds the leasehold interest to the
Land and certain improvements thereon ("Improvements");
(b) Trustor has or will have good title to all Property other than the
Land and Improvements;
(c) Trustor has the full and unlimited power, right and authority to
encumber the Property;
(d) This Deed of Trust creates a first and prior lien on the Property;
(e) The Property includes all property and rights which may be
reasonably necessary or desirable to enable Trustor to use, enjoy and operate the Land
and the Improvements for the present uses thereof;
(f) Trustor owns any Property which is personal property free and
clear of any security agreements, reservations of title or conditional sales contracts, and
there is no presently effective financing statement affecting such personal property on file
in any public office; and
(g) Trustor's place of business, or its chief executive office,if it has
more than one place of business, is located at the address specified below.
4.2 Performance of Secured Obligations. Trustor must promptly pay and
perform each Secured Obligation in accordance with its terms.
4.3 Taxes and Assessments. Trustor must pay prior to delinquency all taxes,
levies, charges and assessments (individually and collectively, an "Imposition"), imposed by any
public or quasi-public authority or utility company which are (or if not paid, may become) a lien
on all or part of the Property or any interest in it, or which may cause any decrease in the value
of the Property or any part of it. If any such Imposition becomes delinquent, Beneficiary may
require Trustor to present evidence that they have been paid in full, on ten (10) days' written
notice by Beneficiary to Trustor. Notwithstanding the foregoing provisions of this Section 4.3,
Trustor may, at its expense, contest the validity or application of any Imposition by appropriate
legal proceedings promptly initiated and conducted in good faith and with due diligence,
provided that (i) Beneficiary is reasonably satisfied that neither the Property nor any part thereof
or interest therein will be in danger of being sold, forfeited, or lost as a result of such contest, and
(ii) Trustor shall have posted a bond or furnished such other security as may be reasonably
required from time to time by Beneficiary_
4.4 Liens. Charees and Encumbrances. Trustor must immediately discharge
any lien on the Property which Beneficiary has not consented to in writing. Trustor must pay
when due each obligation secured by or reducible to a lien, charge or encumbrance which now
rtvausEFU1\699o49.1 -3-
does or later may encumber or appear to encumber all or part of the Property or any interest in it,
whether the lien, charge or encumbrance is or would be senior or subordinate to this Deed of
Trust
4.5 Damages and Insurance and Condemnation Proceeds.
(a) Trustor hereby absolutely and irrevocably assigns to Beneficiary,
and authorizes the payor to pay to Bene5ciary, the following claims, causes of action,
awards,payments and rights to payment:
(i) All awards of damages and all other compensation payable
directlyor indirectly because of a condemnation, proposed condemnation or
Y
taking for public or private use which affects all or part of the Property or any
interest in it; and
(ii) All other awards,claims and causes of action, arising out of
any warranty affecting all or any part of the Property, or for damage or injury to
or decrease in value of all or part of the Property or any interest in it; and
(iii) All proceeds of any insurance policies payable because of
loss sustained to all or part of the Property or any interest in it; and
(iv) All interest which may accrue on any of the foregoing.
(b) Trustor must immediately notify Beneficiary in writing if:
(i) Any damage occurs or any injury or loss is sustained in the
amount of $25,000 or more to all or part of the Property, or any action or
proceeding relating to any such damage,injury or loss is commenced; or
(ii) Any offer is made, or any action or proceeding is
commenced, which relates to any actual or proposed condemnation or taking of
all or part of the Property.
If Beneficiary chooses to do so, it may in its own name appear in or prosecute any action
or proceeding to enforce any cause of action based on warranty, or for damage, injury or loss to
all or part of the Property or any interest therein, and it may make any compromise or settlement
of the action or proceeding. Beneficiary, if it so chooses, may participate in any action or
proceeding relating to condemnation or taking of all or part of the Property, and may join Trustor
in adjusting any loss covered by insurance.
(c) All proceeds of these assigned claims, other property and rights
which Trustor may receive or be entitled to must be paid to Beneficiary. In each
instance, Beneficiary must apply those proceeds first toward reimbursement of all of
Beneficiary's costs and expenses of recovering the proceeds,including attorneys' fees.
(d) Trustor hereby specifically, unconditionally and irrevocably
waives all rights of a property owner granted under California Code of Civil Procedure
RVBUS\EHM89049.1 -4-
Section 1265.225(a), which provides for allocation of condemnation proceeds between a
property owner and a lienholder, and any other law or successor statute of similar import.
4.6 Maintenance and Preservation of Property.
(a) Trustor must keep the Property in good condition and repair.
(b) Trustor must not commit or allow any waste of the Property.
(c) Trustor must perform all other acts which from the character or use
of the Property may be reasonably necessary to maintain and preserve its value and
utility.
4.7 Releases Extensions Modifications and Additional Security.
(a) From time to time, Beneficiary may perform any of the following
acts without incurring any liability or giving notice to any person:
(i) Extend the time for payment, or otherwise alter the terms of
payment, of any Secured Obligation;
(ii) Accept additional real or personal property of any kind as
security for any Secured Obligation, whether evidenced by deeds of trust,
mortgages, security agreements or any other instruments of security; or
(iii) Alter, substitute or release "any property securing the
Secured Obligations.
4.8 Reconveyance. When all of the Secured Obligations have been paid and
performed in full,Beneficiary shall request Trustee in writing to reconvey the Property, and must
surrender this Deed of Trust and all notes and instruments evidencing the Secured Obligations to
Trustee. When Trustee receives Beneficiary's written request for reconveyance and all fees and
other sums owing to it by Trustor under Section 4.9, Trustee must reconvey the Property, or so
much of it as is then held under this Deed of Trust, without warranty to the person or persons
legally entitled to it That person or those persons must pay any costs of recordation. In the
reconveyance, the grantee may be described as "the person or persons legally entitled thereto,"
and the recitals of any matters or facts are conclusive proof of their truthfulness. Neither
Beneficiary nor Trustee have any duty to determine the rights of persons claiming to be rightful
grantees of any reconveyance.
4.9 Compensation Exculpation. Indemnification_
(a) Trustor agrees to pay fees in the maximum amounts legally
permitted, or reasonable fees as may be charged by Beneficiary and Trustee when the law
provides no maximum limit, for any services that Beneficiary or Trustee may render in
connection with this Deed of Trust, including Beneficiary's providing a statement of the
Secured Obligations or Trustee's rendering of services in connection with a
reconveyance. Trustor must also pay or reimburse all of Beneficiary's and Trustee's
RV13US1EW6B9049 1 -5-
costs and expenses which may be incurred in rendering any such services. Trustor
further agrees to pay or reimburse Beneficiary for all costs, expenses and other advances
which may be incurred or made by Beneficiary or Trustee in any efforts to enforce any
terms of this Deed of Trust, including any rights or remedies afforded to Beneficiary or
Trustee or both of them under Section 6.2, whether any lawsuit is filed or not, including
any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the
adjustment of debtor-creditor relationships, or in defending any action or proceeding
arising under or relating to this Deed of Trust, including attorneys' fees and other legal
costs, costs of any Foreclosure Sale (as defined in Section 6.2(g)) and any cost of
evidence of title. If Beneficiary chooses to dispose of Property through more than one
Foreclosure Sale, Trustor must pay all costs, expenses or other advances that may be
incurred or made by Trustee or Beneficiary in each of those Foreclosure Sales.
(b) Beneficiary is not directly or indirectly liable to Trustor or any
other' person as a consequence of any of the following:
(i) Beneficiary's exercise of or failure to exercise any rights,
remedies or powers granted to it in this Deed of Trust;
(ii) Beneficiary's failure or refusal to perform or discharge any
obligation or liability of Trustor under any agreement related to the Property
under this Deed of Trust; or
(iii) Any loss sustained by Trustor or any third party resulting
from Beneficiary's failure to lease the Property, or from any other act or omission
of Beneficiary in managing the Property, after an Event of Default,unless the loss
is caused by the willful misconduct and bad faith of Beneficiary.
Trustor hereby expressly waives and releases all liability of the types described above,
and agrees that no such liability be asserted against or imposed upon Beneficiary.
(c) Trustor agrees to indemnify Trustee and Beneficiary against and
hold them harmless from all losses, damages, liabilities, claims, causes of action,
judgments, court costs, attorneys' fees and other legal expenses, cost of evidence of title,
cost of evidence of value,and other costs and expenses which either may suffer or incur:
(i) In performing any act required or permitted by this Deed of
Trust or any of the other Loan Documents or by law, or
(ii) Because of any failure of Trustor to perform any of-the
Secured Obligations.
This agreement by Trustor to indemnify Trustee and Beneficiary survives the release and
cancellation of any or all of the Secured Obligations and the full or partial release and/or
reconveyance of this Deed of Trust.
(d) Trustor must pay all obligations to pay money arising under this
Section 4. 9 immediately upon demand by Trustee or Beneficiary. Each such obligation
RVBUS1EHP\689049.1 - - -6- -
must be added to, and considered to be part of; the principal of the Note, and bears
interest from the date the obligation arises at the rate then being applied to the principal
balance of the Note.
4.10 Defense and Notice of Claims and Actions. At Trustor's sole expense,
Trustor must protect, preserve and defend the Property and title to and right of possession of the
Property and the security of this Deed of Trust and the rights and powers of Beneficiary and
Tnlstee created under it, against all adverse claims. Trustor must give Beneficiary and Trustee
prompt notice in writing if any claim is asserted which does or could affect any of these matters,
or if any action or proceeding is commenced which alleges or relates to any such claim.
4.11 Substitution of Trustee. From time to time, Beneficiary may substitute a
successor to any Trustee named in or acting under this Deed of Trust in any manner now or later
to be provided at law, or by a written instrument executed and acknowledged by Beneficiary and
recorded in the office(s) of the recorder(s) of the county or counties where the Land and
Improvements are situated. Any such instrument is conclusive proof of the proper substitution of
the successor Trustee, who will automatically upon recordation of the instrument succeed to all
estate,title, rights,powers and duties of the predecessor Trustee,without conveyance from it.
4.12 Subrogation. Beneficiary is subrogated to the liens of all encumbrances,
whether released of record or not, which are discharged in whole or in part by Beneficiary in
accordance with this Deed of Trust or with the proceeds of any loan secured by this Deed of
Trust
4.13 Site Visits Observation and Testing. Beneficiary and its agents and
representatives have the right to enter and visit the Property at any reasonable time for the
purposes of observing it,performing appraisals.
5. Accelerating Transfers.
5.1 Acceleration Upon Sale or Encumbrance. Trustor agrees that Trustor shall
not, without the prior written consent of Beneficiary (which consent may be withheld in
Beneficiary's sole discretion), make or permit, whether voluntarily or involuntarily by operation
of law or otherwise, any Accelerating Transfer.
5.2 Accelerating Transfers. "Accelerating Transfer" means any sale, contract
to sell, conveyance, encumbrance, pledge, mortgage, lease not expressly permitted under this
Deed of Trust, or other transfer of all or any material part of the Property or any interest in it,
whether voluntary, involuntary, by operation of law or otherwise. If Trustor is a corporation,
"Accelerating Transfer" also means any transfer or transfers of shares possessing, in the
aggregate,more than fifty percent(50%) of the voting power or more than fifty percent (50%) of
the direct or indirect beneficial ownership of Trustor. If Trustor is a partnership, "Accelerating
Transfer" also means withdrawal or removal of any general partner, dissolution of the
partnership under California law, or any transfer or transfers of, in the aggregate, more than fifty
percent (50%) of the partnership interests. If Trustor is a limited liability company,
"Accelerating Transfer" also means withdrawal or removal of any managing member,
termination of the limited liability company or any transfer or transfers of, in the aggregate, more
RVBUS1EW'%6990491 -7-
than fifty percent(50%) of the voting power or in the aggregate more than fifty percent (50%) of
the ownership of the economic interest in the Trustor.
6. Events of Default; Remedies.
6.1 Events of Default. Upon the occurrence of any one or more of the
following events, Beneficiary may, by written notice delivered to Trustor, declare Trustor to be
in default, and thereupon the same sball constitute an "Event of Default" under this Deed of
Trust:
(a) An Event of Default is declared under the Loan Documents; or
(b) Trustor fails to perform any obligation to pay money which arises
under this Deed of Trust and does not cure that failure within ten (10) days after written
notice from Beneficiary or Trustee; or
(c) Trustor makes or permits the occurrence of an Accelerating
Transfer in violation of Section 5. 2; or
(d) Any representation or warranty made or given by Trustor in this
Deed of Trust proves to be false or misleading in any material respect;or
(e) Trustor fails to perform any obligation arising under this Deed of
Trust other than as provided in clauses (b) through (d) of Section 6.1, and does not cure
that failure within thirty (30) days after written notice from Beneficiary or Trustee, or,if
the Default cannot be cured in thirty (30) days,within a reasonable time but not to exceed
ninety(90) days after written notice.
6.2 Remedies. At any time after an Event of Default, Beneficiary and Trustee
shall be entitled to invoke any and all of the rights and remedies described below. All of such
rights and remedies are cumulative, and the exercise of any one or more of them does not
constitute an election of remedies.
(a) Acceleration Beneficiary may declare any or all of the Secured
Obligations to be due and payable immediately.
(b) Receiver. Beneficiary may apply to any court of competent
jurisdiction for,and obtain appointment of, a receiver for the Property.
(c) Ems. Beneficiary, in person, by agent or by court-appointed
receiver, may enter, take possession of, manage and operate all or any part of the
Property, and may also do any and all other things in connection with those actions that
Beneficiary may in its sole discretion consider necessary and appropriate to protect the
security of this Deed of Trust. Such other things may include: taking and possessing all
of Trustor's or the then owner's books and records; entering into, enforcing, modifying,
or canceling leases on such terms and conditions as Beneficiary may consider proper;
obtaining and evicting tenants; fixing or modifying rents; collecting and receiving any
payment of money owing to Trustor; completing any unfinished construction; and/or
RVBU51EM669049.1 "8"
contracting for and making repairs and alterations. If Beneficiary so requests, Trustor
will assemble all of the Property that has been removed from the Land and make all of it
available to Beneficiary at the site of the Land. Trustor hereby irrevocably constitutes
and appoints Beneficiary as Trustor's attorney-in-fact to perform such acts and execute
such documents as Beneficiary in its sole discretion may consider to be appropriate in
connection with taking these measures, including endorsement of Trustor's name on any
instruments. Regardless of any provision of this Deed of Trust or the Loan Documents,
Beneficiary shall not be considered to have accepted any property other than cash or
immediately available funds in satisfaction of any obligation of Trustor to Beneficiary,
unless Beneficiary has given express written notice of its election of that remedy in
accordance with California Uniform Commercial Code Section 9620, as it may be
amended or recodified from time to time.
(d) Cure• Protection of Security. Either Beneficiary or Trustee may
cure any breach or default of Trustor, and if it chooses to do so in connection with any
such cure, Beneficiary or Trustee may also enter the Property and/or do,any and all other
things which it may in its sole discretion consider necessary and appropriate to protect the
security of this Deed of Trust. Such other things may include: appearing in and/or
defending any action or proceeding which purports to affect the security of, or the rights
or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing,
contesting or compromising any encumbrance, charge, lien or claim of lien which in
Beneficiary's or Trustee's sole judgment is or may be senior in priority to this Deed of
Trust, such judgment of Beneficiary or Trustee to be conclusive as among the parties to
this Deed of Trust; obtaining insurance and/or paying any premiums or charges for
insurance required to be tamed under the Loan Documents; otherwise caring for and
protecting any and all of the Property; and/or employing counsel, accountants,
contractors and other appropriate persons to assist Beneficiary or Trustee. Beneficiary
and Trustee may take any of the actions permitted under this Section 6.2 either with or
without giving notice to any person.
(e) Uniform Commercial Code Remedies. Beneficiary may exercise
any or all of the remedies granted to a secured party under the California Uniform
Commercial Code.
(f) Judicial Action. Beneficiary may bring an action in any court of
competent jurisdiction to foreclose this instrument or to obtain specific enforcement of
any of the covenants or agreements of this Deed of Trust.
(g) Power of Sale. Under this power of sale, Beneficiary has the
discretionary right to cause some or all of the Property, including any Property which
constitutes personal property, to be sold or otherwise disposed of in any combination and
in any manner permitted by applicable law.
(i) Sales of Personal Property
For purposes of this power of sale, Beneficiary may elect to treat
as personal property any Property which is intangible or which can be severed
RV1113SIHHM894191 -9-
from the Land or Improvements without causing structural damage. If it chooses
to do so, Beneficiary may dispose of any personal property separately from the
sale of real property, in any manner permitted by Division 9 of the California
Uniform Commercial Code, including any public or private sale, or in any manner
permitted by any other applicable law. Any proceeds of any such disposition
shall not cure any Event of Default or reinstate any Secured Obligation for
purposes of Section 2924c of the California Civil Code.
In connection with any sale or other disposition of such Property,
Trustor agrees that the following procedures constitute a commercially reasonable
sale:
Beneficiary must mail written notice of the sale to Trustor not later
than forty-five (45) days prior to such sale. Once per week during the four weeks
immediately preceding such sale, Beneficiary must publish notice of the sale in a
local daily newspaper of general circulation. Upon receipt of any written request,
Beneficiary must make the Property available to any bona fide prospective
purchaser for inspection during reasonable business hours. Notwithstanding,
Beneficiary is under no obligation to consummate a sale if, in its judgment, none
of the offers received by it equals the fair value of the Property offered for sale.
The foregoing procedures do not constitute the only procedures that may be
commercially reasonable.
(ii) Trustee's Sales of Real Pronertv
Beneficiary may choose to dispose of some or all of the Property
which consists solely of real property in any manner then permitted by applicable
law. in its discretion, Beneficiary may also or alternatively choose to dispose of
some or all of the Property, in any combination consisting of both real and
personal property, together in one sale to be held in accordance with the law and
procedures applicable to real property, as permitted by Section 9604(4) of the
California Uniform Commercial Code. Trustor agrees that such a sale of personal
property together with real property constitutes a commercially reasonable sale of
the personal property. For purposes of this power of sale, either a sale of real
property alone, or a sale of both real and personal property together in accordance
with California Uniform Commercial Code Section 9604(4), will sometimes be
referred to as a"Trustee's Sale."
Before any Trustee's Sale, Beneficiary or Trustee must give such
notice of default and election to sell as may then be required by law. When all
time periods then legally mandated have expired, and after such notice of sale as
may then be legally required has been given, Trustee must sell the property being
sold at a public auction to be held at the time and place specified in the notice of
sale. Neither Trustee nor Beneficiary have any obligation to make demand on
Trustor before any Trustee's Sale. From time to time in accordance with then
applicable law, Trustee may, and in any event at Beneficiary's request must,
RVBU5TJM689099.1 -I
postpone any Trustee's Sale by public announcement at the time and place
noticed for that sale.
At any Trustee's Sale, Trustee must sell to the highest bidder at
public auction for cash in lawfid money of the United States. Trustee must
execute and deliver to the purchaser(s) a deed or deeds conveying the property
being sold without any covenant or warranty whatsoever, express or implied. The
recitals in any such deed of any matters or facts, including any facts bearing upon
the regularity or validity of any Trustee's Sale, are conclusive proof of their
truthfulness. Any such deed shall be conclusive against all persons as to the facts
recited in it
6.3 Credit Bids. At any Foreclosure Sale, any person, including Trustor,
Trustee or Beneficiary, may bid for and acquire the Property or any part of it to the extent
permitted by then applicable law. Instead of paying cash for that property, Beneficiary may
settle for the purchase price by crediting the sales price of the property against the following
obligations: _
(a) First, the portion of the Secured Obligations attributable to the
expenses of sale,costs of any action and any other sums for which Trustor is obligated to
pay or reimburse Beneficiary or Trustee under Section 4.9;and
(b) Second, all other Secured Obligations in any order and proportions
as Beneficiary in its sole discretion may choose.
6.4 Application of Foreclosure Sale Proceeds Beneficiary and Trustee shall
apply the proceeds of any Foreclosure Sale in the following manner:
(a) First, to pay the portion of the Secured Obligations attributable to
the expenses of sale, costs of any action and any other sums for which Trustor is
obligated to reimburse Beneficiary or Trustee under the terms hereof;
(b) Second, to pay the portion of the Secured Obligations attributable
to any sums expended or advanced by Beneficiary or Trustee under the terms of this
Deed of Trust which then remain unpaid;
(c) Third, to pay all other Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(d) Fourth, to remit the remainder, if any, to the person or persons
entitled to it
6.5 Application of Sums Collected Beneficiary must apply any and all sums,
other than the proceeds of a Foreclosure Sale, received or collected by Beneficiary, in the
following manner:
(a) First, to pay the portion of the Secured Obligations attributable to
the costs and expenses of collection of such sums, including reasonable attorneys' fees,
RVB1JS5 M1\669049.1
that may be incurred by Beneficiary, Trustee and/or any receiver appointed in accordance
with this Deed of Trust;
(b) Second, to pay any and all Secured Obligations in any order and
proportions as Beneficiary in its sole discretion may choose; and
(c) Third, to remit the remainder, if any, to the person or Persons
entitled thereto.
Beneficiary has no liability for any funds which it does not actually receive.
7. eserved .
S. Miscellaneous Provision.
8.1 Additional Provisions. The Loan Documents fully state all of the terms
and conditions of the parties' agreement regarding the matters mentioned in or incidental to this
Deed of Trust. The Loan Documents also grant further rights to Beneficiary and contain further
agreements and affirmative and negative covenants by Trustor which apply to this Deed of Trust
and to the Property.
8.2 No Waiver or Cure.
(a) Each waiver by Beneficiary or Trustee must be in writing, and no
waiver is to be construed as a continuing waiver. No waiver is to be implied from any
delay or failure by Beneficiary or Trustee to take action on account of any default of
Trustor. Consent by Beneficiary or Trustee to any act or omission by Trmstor must not be
construed as a consent to any other or subsequent act or omission or to waive the
requirement for Beneficiary's or Trustee's consent to be obtained in any future or other
instance.
(b) If any of the events described below occurs, that event alone shall
not: cure or waive any breach, Event of Default or notice of default under this Deed of
Trust or invalidate any act performed pursuant to any such default or notice; or Nullify the.
effect of any notice of default or sale (unless all Secured Obligations then due have been
paid and performed and all other defaults under the Loan Documents have been cured);
or impair the security of this Deed of Trust; or prejudice Beneficiary, Trustee or any
receiver in the exercise of any right or remedy afforded any of them under this Deed of
Trust; or be construed as an affirmation by Beneficiary of any tenancy,lease or option, or
a subordination of the lien of this Deed of Trust.
(i) Beneficiary, its agent or a receiver takes possession of all
or any part of the Property in the manner provided in subsection 6.2(c).
(ii) Beneficiary receives and applies to any Secured Obligation
any proceeds of any Property, including any proceeds of insurance policies,
condemnation awards, or other claims, property or rights assigned to Beneficiary
under Section 4.5.
RVBUS1EHM699049 1 -12
(iii) Beneficiary makes a site visit, observes the Property and/or
conducts tests as permitted under Section 4.13.
(iv) Beneficiary receives any sums under this Deed of Trust or
any proceeds of any property held for any of the Secured Obligations, and applies
them to one or more Secured Obligations.
(v) Beneficiary, Trustee or any receiver invokes any right or
remedy provided under this Deed of Trust.
8.3 Powers of Beneficiary and Tnistee.
(a) Trustee has no obligation to perform any act which it is
empowered to perform under this Deed of Trust unless it is requested to do so in writing
and is reasonably indemnified against loss, cost,liability and expense.
(b) If either Beneficiary or Trustee performs any act which it is
empowered or authorized to perform under this Deed of Trust, including any act
permitted by Section 4.7 or Section 6.2(d), that act alone does not release or change the
personal liability of any person for the payment and performance of the Secured
Obligations then outstanding, or the lien of this Deed of Trust on all or the remainder of
the Property for full payment and performance of all outstanding Secured Obligations.
The liability of the original Trustor does not release or change if Beneficiary grants, any
successor in interest to Trustor any extension of time for payment, or modification of the
terms of payment, of any Secured Obligation. Beneficiary is not required to comply with
any demand by the original Trustor that Beneficiary refuse to grant such an extension or
modification to, or commence proceedings against,any such successor in interest.
(e) Beneficiary may take any of the actions permitted under Sections
6.2(b) and/or 6.2(c) regardless of the adequacy of the security for the Secured
Obligations, or whether any or all of the Secured Obligations have been declared to be
immediately due and payable, or whether notice of default and election to sell has been
given under this Deed of Trust.
8.4 Mereer. No merger occurs as a result of Beneficiary's acquiring any other
estate in or any.other lien on the Property unless Beneficiary consents to a merger in writing.
8.5 Joint and Several Liability. If Trustor consists of more than one person,
each is jointly and severally liable for the faithful performance of all of Trustor's obligations
under this Deed of Trust.
8.6 Applicable Law. This Deed of Trust is governed by California law. This
Deed of Trust may be executed in one or more counterparts, each of which is, for all purposes
deemed an original and all such counterparts taken together, constitute one and the same
instrument.
RV13USIERR689049 1 43-
8.7 Successors in Interest The terms, covenants and conditions of this Deed
of Trust are binding upon and inure to the benefit of the heirs, successors and assigns of the
parties. However,this Section does not waive the provisions of Section 5.1.
8.8 Interpretation. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and each gender will
include any other gender. The captions of the sections of this Deed of Trust are for convenience
only and do not define or limit any terms or provisions. The word "include(s)" means
"include(s), without limitation", and the ward"including" means "including,but not limited to".
The word "obligations" is used in its broadest and most comprehensive sense, and includes all
primary, secondary, direct, indirect, fixed and contingent obligations. It further includes all
principal, interest, prepayment charges, late fees, loan fees and any other fees and charges
accruing or assessed at any time, as well as all obligations to perform acts or satisfy conditions.
No listing of specific instances, items or matters in any way Iimits the scope or generality of any
language of this Deed of Trust. The exhibits to this Deed of Trust are hereby incorporated in this
Deed of Trust. Any capitalized words which are defined in the Loan Documents are used in this
Deed of Trust as so defined.
8.9 [Reserved].
8.10 [Reserved].
8.11 Severability. If any provision of this Deed of Trust should be held
unenforceable or void, that provision shall be deemed severable from the remaining provisions
and in no way affect the validity of this Deed of Trust except that if such provision relates to the
payment of any monetary sum, then Beneficiary may, at its option, declare all Secured
Obligations immediately due and payable.
8.12 Notices. Trustor whose address is set forth below hereby requests that a
copy of notice of default and notice of sale be mailed to it at that address. If Trustor fails to
insert an address,that failure shall constitute a designation of Trustor's last known address as the
address for such notice.
Address Where Notices to Trustor Are to be Sent:
Seved S. Zaribaf
621 N.Azusa Avenue
Azusa. CA 91702
Address Where Notices to Beneficiary Are to be Address Where Notices to Trustee Are to be
Sent: Sent:
City of Azusa Redevelopment Agency
'?13 E. Foothill Blvd.
Azusa. CA 91702-1395
Attn: Executive Director
RV13USIEHK6E9D49.1 -14-
8.13 . Leasehold Provisions. Trustor agrees to all of the provisions set forth in Exhibit
B attached and incorporated herein by this reference regarding the leasehold.
IN WITNESS WBEREOF,Trustor has executed this Deed of Trust as of the date first written
above.
TRUSTOR:
SEYED S. ZARIBAF
By: J
Name: Se ed ibaf
Its: An Individual
[Signature Must be Notarized]
RVBUS1EM1\6890991 -15- - `
STATE OF CALIFORNIA )
COUNTY OF � _� i � )
On l� -� 2'0'9905 before me, liy/ 4 �t� y �- � Notary Public,
personally appeared LV 0A 3 e%c� 7�u ��- personally known to me to be the
person whose names)- is/, € subscribed to the within instrument and acknowledged to me that
he/she4thW executed the same in hishrerltheiT- authorized capacity(ies-), and that by his/her/their
signature(5) on the instrument the person(, or the entity upon behalf of which the personX acted,
executed the instrument
WITNESS my hand and official seal.
lr �
NotaryyPublic
CYNMIA SEFFEa
Com 0don IC 1550951
NM**j Publlo cwmnr la
Un Angeles COUMV
AAy Ciasnm.Wdmtr Fab 5.20
MUSEHM699949 I
EXMBIT A
TO
LEASEHOLD DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND FIXTURE FILING
Legal Description of the Land
[See attached]
RV3UMHft99U491 EXHIBIT A
Legal Description
Lots 42 and 43, in Block 37 of Azusa Tract as recorded in the Miscellaneous
Records, Book 15, Pgge 93 through 96.
EXHIBIT B
TO
LEASEHOLD DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND FIXTURE FILING
Leasehold Provisions
The provisions of this Exhibit relate to the lease ("Lease") and the leasehold
("Leasebold'� described in Section 1.1 of this Deed of Trust The lien of this Deed of Trust encumbers
the Leasehold.
1. Trustor shall timely perform the obligations of the tenant under the Lease.
Without limiting the generality of the other provisions of this Deed of Trust, Trustor specifically
acknowledges Beneficiary's right,while any default by any tenant under the Lease remains uncured,to
perform the defaulted obligations and take all other actions which Beneficiary reasonably deems
necessary to protect its interests with respect thereto, and Trustor hereby irrevocably appoints
Beneficiary its true and lawful attorney-in-fact in its name or otherwise to execute all documents, and
perform all other acts, which Beneficiary reasonably deems necessary to preserve its or such tenant's
rights with respect to the Lease.
2. Trustor shall not, without Beneficiary's prior written consent, cause, permit or
suffer the modification or termination of the Lease, or waive or in any way release the landlord under
the Lease of any obligation or condition.
3. Trustor shall notify Beneficiary promptly in writing of(i) the occurrence of any
material default under the Lease and(ii) the receipt by Trustor of any notice claiming the occurrence of
any default under the Lease or the occurrence of any event which, with the passage of time or the
giving of notice or both,would constitute a default under the Lease.
4. Trustor shall not subordinate the Leasehold or other leasehold estate to any deed
of trust or other encumbrance of,or lien on, any interest in the Land or Improvements without the prior
written consent of Beneficiary. Any such subordination without such consent shall, at Beneficiary's
option,be void.
5. All subleases entered into by Trustor with respect to all or any portion of the
Property (and all existing subleases modified by Trustor) shall provide that such subleases are
subordinate to the lien of this Deed ofTrust and any modifications of this Deed of Trust and the
obligations secured hereby and that, if Beneficiary forecloses under this Deed of Trust or enters into a
new lease with any landlord under the Lease pursuant to the provisions for a new lease, if any,
contained in the Lease or in any other document or agreement,the subtenant shall attorn to Beneficiary
or its assignee at the request of the Beneficiary or its assignee and the sublease shall remain in hill
force and effect in accordance with its terms notwithstanding the termination of the Lease.
6. Without limiting the provisions of Article 1, Trustor hereby specifically assigns
to Beneficiary, as security for the Secured Obligations, all prepaid rents and security deposits and all
other security which the landlord under the Lease holds for the performance of any of Trustor's
obligations thereunder.
RVB1JS1EFn689W9.1 EXHIBIT B-1
7. Trustor shall notify Beneficiary promptly in writing of any request by either
parry to the Lease for arbitration, appraisal or other proceedings relating to the Lease and of the
institution of any such proceeding, and shall promptly deliver to Beneficiary a copy of all
determinations in any such proceeding. Beneficiary shall have the right, following written notice to
Trustor, to participate in any such proceeding in association with Trustor or on its own behalf as an
interested party. Trustor shall notify Beneficiary promptly in writing of the institution of any legal
proceeding involving obligations under the Lease, and Beneficiary may intervene in any such legal
proceeding and be made a party. Trustor shall promptly provide Beneficiary with a copy of any
decision rendered in connection with any such proceeding.
9. To the extent permitted by Iaw, the price payable by Trustor or any other party
in the exercise of the right of redemption, if any, from any sale under, or decree of foreclosure of, this
Deed of Trust shall include all rents and other amounts paid and other sums advanced by Beneficiary
on behalf of any tenant under the Lease.
9. In addition to all other Events of Default described in this Deed of Trust, the
occurrence of any of the following shall be an Event of Default hereunder:
(a) A breach or default by the tenant under the Lease; or
(b) The occurrence of any event or circumstance which gives the landlord
under the Lease a right to terminate the Lease; or
(c) Receipt by Beneficiary of any notice of default under or notice of
termination of the Lease.
10. The generality of the provisions of this Deed of Trust shall not be limited by any
provision of this Exhibit that sets forth particular obligations of Trustor as the tenant under the Lease.
RVBUSIEF916890491 EXHIBIT B-2 . .
EXGIIBIT C
TO
LOAN AGREEMENT
SECURITY AGREEMENT
[To Be Attached]
E)=IT C
RVE09\EHP\689009.2
SECURITY AGREEMENT
This SECURITY AGREEMENT ("Agreement') is made effective as of NOVEMBER 7, 2005,
by and between SEYED S. ZARIBAF ("Borrower"), and AZUSA REDEVELOPMENT AGENCY, a
California public agency("Secured Party").
RECITALS e
A. Borrower has executed a promissory note ("Note"), which is attached hereto as
Exhibit of even date herewith in favor of Secured Party in the principal amount of One
Hundred Fifty Thousand and No/100 Dollars($150,000.00). The Note is made pursuant
to that certain Loan Agreement of even date herewith.
B. To induce Secured Party to extend to Borrower the credit evidenced by the Note,
Borrower agrees to grant Secured Party, subject to the terms hereof, a security interest in
any and all furniture, fixtures and equipment located at Borrower's restaurant business at
621 NORTH AZUSA AVENUE Azusa, California, which shall include, without
limitation, the furniture, fixtures and equipment identified on the UCC-1 Financing
Statement attached hereto as Exhibit B (collectively,"Collateral").
NOW,THEREFORE,Borrower and Secured Party agree as follows:
I. Grant of Security Interest_ Borrower hereby grants to Secured Party a continuing security
interest in the Collateral in order to secure prompt payment and performance of Borrower's obligation
under the Note ("Obligation"). Secured Party's security interest in the Collateral shall attach without
further act on the part of Secured Party or Borrower.
2. Perfection of Security Interest Borrower shall execute and deliver to Secured Party,
upon the request of Secured Party and in a form satisfactory to Secured Party, any financing statements,
continuation financing statements, and other documents that are reasonably necessary to perfect Secured
Party's security interest in the Collateral. Otherwise, Borrower acknowledges and agrees that Secured
Party is entitled to file the UCC-1 Financing Statement to perfect its security interest in the Collateral.
3. Further Assurances. Without limiting the generality of any provision in the Obligation,
Borrower will, at the reasonable request of Secured Party, appear in and defend any action or proceeding
which may affect Borrower's title to or the security interests of Secured Party in the Collateral.
4. Covenants of Borrower. Borrower warrants,represents,and covenants that:
(a) Borrower will defend the Collateral against all claims and demands of all persons
at any time claiming any interest therein;
(b) Borrower has not previously and will not in any way encumber, hypothecate or
create or permit to exist any lien, security interest or encumbrance on or other interest in the Collateral
senior or adverse to that of Secured Party, nor will Borrower sell, transfer, assign, exchange or otherwise
dispose of the Collateral, except in the ordinary course of business and otherwise for fair value, without
the written consent of Secured Party;
(c) Borrower will pay and discharge all taxes, assessments and governmental
charges or levies against the Collateral prior to delinquency thereof and will keep the Collateral free of all
unpaid charges whatsoever,
RVBUSIEHMS9037.2 I
(d) Borrower will keep and maintain the Collateral in good condition and repair.
Borrower will not misuse or abuse the Collateral, or waste or allow it to deteriorate except for the
ordinary wear and tear of its normal and expected use in Borrower's business. Borrower will comply
with all laws, statutes and regulations pertaining to the use or ownership of the Collateral, except where
the failure thereof does not adversely affect the Collateral or the condition, financial or otherwise, of
Corporation. Nothing in this Section 4(d)shall prevent Borrower from improving the condition or quality
of the Collateral;
(e) Secured Party shall at all times upon reasonable notice to Borrower have the
right during normal business hours to enter into and upon any premises where any of the Collateral or
records with respect thereto are located for the purpose of inspecting the same, making copies of records,
observing the use of any part of the Collateral, or otherwise protecting their security interest in the
Collateral;
(f) Upon, and during the continuation of, an "Event of Default" (as that term is
defined in Section 5 hereof), Borrower hereby irrevocably appoints and constitutes Secured Party as
Borrower's attorney-in-fact for purposes of(i) conveying any item of Collateral to any purchaser thereof,
(ii) executing, in Borrower's stead, any certificates of ownership, registration cards, applications,
affidavits or other documents required or necessary to transfer or convey any and all right, title and
interest in and to the Collateral or any portion thereof; to any person or persons, or to perfect the security
interest of Secured Party in any of the Collateral, and to do and perform any and all other acts necessary
or incident to the security interest granted hereunder to Secured Party by Borrower, (iii) giving any
.notices or recording any liens hereunder, and (iv) making any payments or taking any acts hereunder.
The authority of Secured Party provided herein may be exercised only after the occurrence of an Event of
Default.or any event which upon notice or lapse of time or both shall constitute an Event of Default; and
(g) Upon an Event of Default, Secured Party shall have the right at any time to make
any payments and do any other acts such Secured Party may deem reasonably necessary to protect its
security interest in the Collateral, including without limitation, paying, purchasing, contesting or
compromising any encumbrance, charge or lien which in the judgment of such Secured Party appears to
be prior to or superior to the security interest in or affects the value of the Collateral, and in exercising
any such powers or authority, paying all expenses incurred in connection therewith, including reasonable
attorney's fees, the repayment of which by Borrower shall be secured under this Security Agreement.
Borrower hereby agrees that it shall be bound by any such payment made or act taken by any Secured
Party hereunder, and shall repay immediately to such Secured Party all sums expended by such Secured
Party together with interest on the amount of each such expenditure from the date of such expenditure at
the rate per annum set forth in the Note. Secured Party shall have no obligation to make any of the
foregoing payments or perform any of the foregoing acts.
5. Events of Default The occurrence of a default in any respect of the Obligation, which
default is not cured by Borrower's pursuant to the terms of the Note,shall be an "Event of Default"under
this Agreement
6. Remedies on Default Upon the occurrence of an Event of Default, the Secured Party
may,at its option,without notice to or demand upon Borrower,do any one or more of the following:
(a) Declare the Obligation to be immediately due and payable whereupon all
principal and interest on said Obligation and other indebtedness shall become and be immediately due and
payable.
RVBUSIE}I16890372 7
x;
(b) Exercise any and all of the rights and remedies provided for by the applicable
UniformCommercial Code, including without limitation, the right to recover the reasonable attorneys'
fees and legal expenses incurred by Secured Party in the enforcement of this Security.
(c) Enforce one or more remedies hereunder, successively or concurrently, and such
action shall not operate to estop or prevent the Secured Party from pursuing any other or further remedy
which it may have, and any repossession or retaking or sale of the Collateral pursuant to the terms hereof
shall not operate to release Borrower until full payment of any deficiency has been made in cash.
7. Termination. This Security Agreement shall expire and have no further force or effect
upon payment in full of all indebtedness of Borrower to Secured Party under the Obligation. Secured
Patty agrees to execute any and all termination statements and other documents necessary or appropriate
to cavy out the intent of this Section.
8. Miscellaneous. Any notices required hereunder shall be given in accordance with the
terms of the Note. This Agreement shall be interpreted according to the laws of the State of California.
Venue for any action brought to enforce this Agreement shall be in the state courts.sitting in the City of
Los Angeles, California, and Borrower and Secured Party hereby consent to the exclusive jurisdiction of
such courts. Borrower shall be responsible to reimburse Secured Party for all reasonable attorneys' fees
and costs incurred by Secured Party in the enforcement of this Agreement and Secured Party shall be
entitled to an award for same.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date fust
set forth above_
BORROWER:
SEYED S.ZARIBAF
By:
Name: Se ed of
Its: An Individual
SECURED PARTY:
AZUSA REDEVELOPMENT AGENCY
a California public agency
By: A -�-
Name: F�r'ancis M.Delach
Its: Executive Director
P V13US\EHM99037 2 3
0F q2G
CITY OF AZUSA
MINUTES OF THE REDEVELOPMENT AGENCY -
REGULAR MEETING
MONDAY,JUNE 20,2011—9:37 P.M.
The Board of Directors of the Redevelopment Agency of the City of Azusa met in regular session at the
above date and time in the Azusa Auditorium,213 E.Foothill Blvd.,Azusa CA,
Chairman Rocha called the meeting to order. Call to Order
ROLL CALL Roll Call
PRESENT: DIRECTORS: GONZALES,CARRILLO,MACIAS,HANKS,ROCHA
ABSENT: DIRECTORS: NONE
ALSO PRESENT: Also Present
General Counsel Carvalho, Executive Director Delach, Assistant Executive Director Makshanoff,
Department Heads,Secretary Mendoza,Deputy Secretary Toscana.
THE CITY COUNCIL CONVENED JOINTLY WITH THE REDEVELOPMENT AGENCY AT Cncl Convened
9:37 P.M.TO DISCUSS THE FOLLOWING: Jointly w/CRA
JOINT CITY AND AGENCY ITEM.
REDEVELOPMENT AGENCY ADMINISTRATION/ADVANCE FROM THE CITY CRA Admin
Advance from
Resolutions authorizing an advance of$1,563,290 from the City's General Fund to the Redevelopment City
Agency,and execution of the Note,were approved.
Director Gonzales offered a Resolution entitled:
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA REQUESTING Res. 11-R29
A LOAN FROM THE CITY OF AZUSA FOR PURPOSES OF THE MERGED REDEVELOPMENT (Agency)Request
PROJECT AREA. Loans Merged
Redevelopment
Moved by Director Gonzales,seconded by Director-Hanks to waive further reading and adopt. Resolution Project Area
passed and adopted by the following vote of the Agency:
AYES: DIRECTORS: GONZALES, CARRILLO, MACIAS, HANKS,
ROCHA
NOES: DIRECTORS: NONE
ABSENT: DIRECTORS: NONE
Mayor Pro-Tem Hanks offered a Resolution entitled: -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AZUSA AUTHORIZING LOANS FOR Res.I I-C47, (City)
PURPOSES OF THE MERGED REDEVELOPMENT PROJECT AREA. Authorizing Loans
Merged
Moved by Mayor Pro-Tem Hanks, seconded by Councilmember Carrillo to waive further reading and Redevelopment
adopt. Resolution was passed and adopted by the following vote of the Council: Project Area
AYES: COUNCILMEMBERS: GONZALES, CARRILLO, MACIAS, HANKS,
ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
THE CITY COUNCILRECESSED AND THE REDEVELOPMENT AGENCY CONTINUED AT Cncl Recess
9:43 P.M. CRA Continued
The CONSENT CALENDAR consisting of items G-1 through G-4 was approved by motion of Director Consent Cal.
Gonzales,seconded by Director Carrillo and unanimously carried. Approved
I. Minutes of the regular meeting of June 6,2011,were approved as written. Min appvd
2. A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA MAKING Res. 11-R30
A FINDING THAT THE PLANNING AND ADMINISTRATIVE EXPENSES TO BE FUNDED Ping&Admin
FROM THE LOW AND MODERATE INCOME HOUSING FUND ARE NECESSARY FOR THE Svs from Low-to-
PRODUCTION,IMPROVEMENT OR PRESERVATION OF THE COMMUNITY'S SUPPLY OF Mod Inc Hsg
LOW AND MODERATE INCOME HOUSING.
3. Approval was given to approve Urban Futures,Inc.contract to allow them to continue to provide real Contract
estate advisory and redevelopment as-needed consulting services in conjunction with the Agency's Urban Futures,Inc.
new FY 2011/12 under the economic development program.
4. Resolution authorizing payment of warrants by the Agency was adopted and entitled:
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA Res. Il-R31
ALLOWING CERTAIN CLAIMS AND DEMANDS TO BE PAID OUT OF REDEVELOPMENT Warrants
AGENCY FUNDS.
SPECIAL CALL ITEMS Spec Call Items
None. None
Adjourn
It was consensus of the Redevelopment Agency Board Members to adjourn.
TIME OF ADJOURNMENT:9:44 P.M.
SECRETARY
NEXT RESOLUTION NO. 11-R32
06/20/11 PAGE TWO -
U �
. I
CITY OF AZUSA
MINUTES OF THE CITY COUNCIL,THE
REDEVELOPMENT AGENCY AND THE
AZUSA PUBLIC FINANCING AUTHORITY
SPECIAL MEETING
MONDAY,JUNE 1,2011—6:34 P.M.
The City Council of the City of Azusa met in special session at the above date and time in the Azusa Light
and Water Conference Room located at 729 N.Azusa Avenue,Azusa.
Mayor Rocha called the meeting to order. - Call to Order
ROLL CALL Roll Call
PRESENT: COUNCILMEMBERS/DIRECTORSBOARDMEMBERS: GONZALES,
CARRILLO,MACIAS,HANKS,ROCHA
ABSENT: COUNCILMEMBERS/DIRECTORSBOARDMEMBERS: NONE
ALSO PRESENT: Also Present
City Attorney,General Counsel Carvel,City Manager/Executive Director Detach,Assistant City Manager
Makshanoff,Director of Public Works/Assistant City Manager Haes,Chief of Police Garcia,Directorof
Utilities Morrow,Directorof Information Management Graf,Director of Recreation and Family Services
Jacobs,Administrative Services Director-Chief Financial Officer Kreimeier,Finance Controller Paragas,
Library Director Johnson, Director of Economic and Community Development Christiansen, City
Treasurer Hamilton,City Clerk Mendoza,Deputy City Clerk Toscana.
PUBLIC PARTICIPATION Pub Part
Mr.Art Morales addressed Council requesting that funds be placed in the budget for bathroom facilities A.Morales
during ceremonies in front of City Hall,seek funds for a free swim grant program,and seek funds for a Comments
youth center to include various programs including a boxing program.
AGENDA ITEM Agenda Item
FISCAL YEAR 20011/12 CITY, AZUSA PUBLIC FINANCING AUTHORITY, AND City/Agency/
REDEVELOPMENT AGENCY PRELIMINARY BUDGET REVIEW. APFA Budget
Review
City Manager/Executive Director Delach presented the proposed budget providing an overview,stating City Mgr Delach
that balanced budget may have to be done with reserves or one time monies,the total budget increase over Comments
the past three years is three percent, there has been significance saving in workers compensation,but
liability costs have increased due to claims against the City,there have been no service cuts and the budget
does not include any revenues from increased mining operations or unapproved projects.
Administrative Services Director-Chief Financial Officer Kreimeier addressed the issue providing Budget A.Kreimeier
Background i.e.maintaining service levels,economy—impact on revenues,historic low interestrates.CPI Presentation
3.3%April 2010 to April 2011, and the Stated Budget Crisis-Take from Cities. He talked about the Proposed Budget
Capital Improvement Program,Capital equipment replacement,full yeanoftevenue from Target,Increased
PERS Costs and the sale of property. He noted that the following is not funded in the budget: possible
State Budget Takeaways,Transfer to Equipment Replacements,potential costs related to current Employee
Contract Negotiations,Staffing Changes,Liability Claims costs for Major Cases.He talked about future
issues as follows: Continued Implementation of Rosedale Project, Gold Line Extension and Parking
Structures,Proposed Development of New Library,Review of Application for Materials Recovery Facility
by Waste Management, Inc. He detailed the Budget Overview, General Fund Budget Summary, and
presented charts of General Fund Balances,Expenditures by Function-General Fund,Expenditures by
Function—All Funds,and Expenditures by Funds—Major Funds. He detailed the Redevelopment Agency
Budget and Director of Economic and Community Development Christiansen responded to questions.
4
City Manager/Executive Director Delach and Administrative Services Director-Chief Financial Officer Budget
Kreimeier presented each department and it's budget and responded to questions throughout the meeting, Continued
lengthy discussion was held regarding many issues and the Budget was amended to include: Parks Amendments
Maintenance Special Supplies in the amount of$2,000(volunteer supplies),Graffiti Abatement Small
Equipment in the amount of$3,000(cameras/graffiti)and Community Promotions Special Supplies in the
Amount of$4,000(Mise Account).
It was consensus of Council/Directors and Board Members to adjourn. Adjourn
TIME ADJOURNMENT:8:36 P.M.
CITY CLERK
NEXT RESOLUTION NO. 11-C36. (City)
NEXT RESOLUTION NO. I1-1125. (Agency)
NEXT RESOLUTION NO. 11-P1. (Authority)
06/01/11 PAGE TWO
S
_. _ 4
c�trroarP
AGENCY CONSENT ITEM
TO: HONORABLE CHAIRPERSON AND AGENCY MEMBERS
FROM: MARCENE HAMILTON, REDEVELOPMENT AGENCY TREASURER/
DATE: July 5, 2011
SUBJECT: REDEVELOPMENT AGENCY OF THE CITY OF AZUSA TREASURER'S
STATEMENT OF CASH BALANCES FOR THE MONTH OF MAY 2011
RECOMMENDATION
It is recommended that.the Agency Members receive and file the Agency Treasurer's Statement of
Cash Balances for the Redevelopment Agency of the City of Azusa for the month of May 2011
BACKGROUND
Transmitted herewith is the Agency Treasurer's Statement of Cash Balances for the Redevelopment
Agency of the City of Azusa("Agency") for the month of May 2011. Agency investments are made
in accordance with the Redevelopment Agency Investment Policy approved and adopted with
Resolution No. 10-R33 dated October 18,2010, and Government Code Section 53601. Investment
activity is summarized in the "Treasury Book Balances-Cash and Investments" schedule, attached
herewith and an integral part of this report.
Agency cash and investment balances increased by $820,295.81. Cash received totaled
$1,820,295.81, and disbursements of$1,000,000.00 were made.
The Agency is the issuer of several Merged Project Tax Allocation Bonds. Of the total cash and
investments of$9,943,545.06,Wells Fargo Bank, the fiscal agent,held$4,122,489.06 on behalf of
the Agency. These funds are restricted for payment of debt service on the bonds and special bond-
funded projects. The remaining $5,821,056.00 was available for Agency operating, debt service,
restricted expenses, and outstanding liabilities.
FISCAL IMPACT
The balance of cash and investments and projected revenues for the next six months is expected to
be sufficient to meet cash disbursement requirements for at least the next six months.
MH:EG
CITY OF AZUSA REDEVELOPMENT AGENCY
AGENCY TREASURER'S STATEMENT OF CASH
AND INVESTMENT COST BALANCES
MAY 2011
Beginning Cash Balance $9,123,249.25
(All Restricted and Unrestricted Accounts & Investments)
Receipts (All Sources) 1,820,295.81
Disbursements (1,000,000.00)
Ending Cash Balance $9,943,545.06
(All Restricted and Unrestricted Accounts & Investments)
Mar en6 Hamilton, Agency freasurer
: CITY OF AZUSA
REDEVELOPMENT AGENCY
TREASURY BOOK BALANCES-CASH AND INVESTMENTS
MAY 2011
Maximum
Deposits Cost Interest Mkt
Bank Accounts _ Allowed Amount Pledged Securities Maturity Rate Value'
CASH AND INVESTMENTS HELD BY AGENCY TREASURER
Wells Fargo Bank
Government checking No limit $216,246.96 FDIC up to S1D0,000.00 Ongoing 0.000% $216,246.96
>$100,000 Wilaterizeb by 110%in govn9 securities
Local Agency Investment Fund(-AIF) $20,060,000.00 5,6Dg809.D4 Backed by faith 8 credit of the State of California Ongoing 0413% 5,611,883.18
SUBTOTAL CASH AND INVESTMENTS
HELD BY AGENCY TREASURER: $5,821,066,00 $6,828,130.14
Interest Collections: $0.00
CASH AND INVESTMENTS HELD BY FISCAL AGENT -
2003 Merged Protect Tax Allocation Bonds
2003A Special Fund
AIM Govt Portfolio No limit 0 38 Investments in direct obliga0ons of the U.S.Treasury Ongoing 0.000%. 0.38
2003A Interest Account
AIM Gov't Portfolio No limit 0.D0 Investments in direct obligations Of the U S.Treasury Ongoing 0.000% D.00
2003A Principal Account
AIM GOVt Portfolio No limit 076 Investments in direct obligations of the U.S.Treasury Ongoing 0000% 0.76
2003A Reserve Account
Reliance Certificate of Deposit No limit 1,085,19259>$100,000 collalenzed by 110%in govn't securities 12104/14 0.010% 1,085,192.59
Reliance Trust Co Cash Equivalent Mmkt No limb 21,83322 NIA Ongoing OD00% 21,83332
AIM Gov't Portfolio No Iimft 1,15092 Investments in direct obligations of the U.S.Treasury Ongoing 0,000% 1,150.02
2003 Merged Project Tax Allocation Bonds Subtotal $1,108,176.97 $1,108,176.97
Interest Collections: $0.21
2OD5 Melded Protect Tax Allocation Bonds
2005 Special Fund
Wells Fargo Advantage Gov't Mmkt No limit $8,346.32 NIA _ Ongoing D.010% $8,348.32
20D5 Interest Account
Wells Fargo Advantage Gov't Mind No limit 0.00 NIA Ongoing 0000% D.00
2005 Redevelopment Fund
AIM Institutional Pnme-Cash MgmUMMk No limit 0 Go NIA Ongoing 0.000% 0.00
2005 Reserve Account
Reliance Catered.of Deposit No limit 869,259.17 1$100,000 collatenzed by 110%in govn't seventies 12/04/14 0.010% 869,259.17
Reliance Twat Co.Cash Equivalent Mmkt No limit 0.13 WA Ongoing 0,1300% 0.13
2005 Merged Project Tax Allocation Bonds Subtotal: $877,60762 $877.607.62
Interest Collections: $0.07
2007A Memetl dialect Tax Allocation Bonds
2007A Bond Fund
Wells Fargo Advantage 1013%Treasury Mmkt No limit $0.B5 NIA Ongoing 0:000% $0.85
2007A Interest Account
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.00 NIA Ongoing D000% $0.00
2007A Princpal Account
Wells Fargo Advantage 100%Treasury Mmkt No lint $D.32 NIA Ongoing 0.000% $0.32
2007A Merged Project Tax Allocation Bonds Subtotal: $1.17 $1.17
Interest Collections: $0.00
2DO70 Merged Protect Tax Allocation Refunding Bonds
200713 Bond Fund
Wells Fargo Advantage 100%Treasury Mmkt No limit $3,10930 NIA Ongoing 0.000% $3,109.30
20078 Interest Account
CITY OF AZUSA !
REDEVELOPMENT AGENCY -
TREASURY BOOK BALANCES-CASH AND INVESTMENTS
MAY 2011
Maximum
Deposits Cost Interest Mkt
Bank Accounts Allowed Amount Pledged Securities Maturity Rate Value`
Wells Fargo Advantage 100%Treasury Mmkt No limit $0.00 NIA Ongoing 0 NO% $D.00
20078 pdndpal Account
Wells Fargo Advantage 100%Treasury Mmkt No limb $0.07 NIA Ongoing 0.000% $0.07
20078 Reserve Fund
Reliance Certificate of Deposit No Iimf 325,042 50>$100,000 collaterized by 110%in govn'I securities 12/04114 D 010% 325,042.50 -
Reliance Trust Co.Cash Equivalent Mail No limit 0.05 NIA Ongoing 0.000% 0.05
20078 Merged Project Tax Allocation Bonds Subtotal: $328,151.92 $3213,151.92
Interest Collections: $0.03
2008A Merced Protect Tax Allocation Bonds
2008A Bond Fund
Wells Fargo Advantage 100%Treasury Mmki ' No limit $6,792.38 NIA Ongoing 0010% $9,792.38
2008A Interest Account
Walls Fargo Advantage 100%Treasury Mmkt No limit $D.00 NIA Ongoing _0.000% 50.00
20D8A Reserve Fund
Reliance Trust Co.Savings and Can.of Deposit No limit $655,24076 4100,000 collatenzed by 110%in gmn't securities 12/10'13 2.650% 655,24076
Reliance Trust Co.Cash Equivalent MmK No limit $0.14 WA Ongoing 0.000% D.14
2008A Redevelopment Fund
Wells Fargo Advantage 100%Treasury Mri No limit $006 N/A Ongoing 0.000% $0.06
2008A Merged Project Tax Allocation Bonds Subtotal: $664,033.34 $664,033.34
Interest Collections: $OD7
2009B Merged Prolect Tax Allocation Housing Bonds .
20088 Band Fund .
Wells Fargo Advantage Government Mmkl No limit $20,795.42 N/A Ongoing OD10% $20,79542
20088 Interest Amount
Wells Fargo Advantage Government Mmkt No limit $0.00 NIA Ongoing 0.000% $0.00
2DOBB Reserve Fund
Random Trust Co.Savings and Can.of Deposit No limit $1,043,482.50 >$100,000 collaterized by 110%in govn't securities 11121113 4.D00% 1,043,4B2.50
Reliance Trust Co.Cash Equivalent Mmkt No limit $80,240.02 NIA Ongoing 0.00096 80,240.02
20088 Low 8 Moderate Income Housing Fund
Reliance Trust Co.Cash Equivalent Mmkt No limit 0.00>$I00,000 collaterized by 110%in govn't sewrines Ongoing 0000% 0 D
Wells Fargo Advantage Government Mori No limit $0.10 NIA Ongoing 0.000% 0.10
20088 Merged Project Tax Albcation Bonds Subtotal: $1,144,518 04 $1,14.518 04 -
Interest Collections: $0.86
SUBTOTAL CASH AND INVESTMENTS
HELD BY FISCAL AGENT: $4,122,489.06 $4,122,489.06 _
Total-Azusa Redevelopment Agency
Cash and Investments: $9,943,545.06 $9,950,619.20
Total Interest Collections: 51.24
Source of Market Value Informatlon:
Wells Fargo Corporate Trust,Trustee
Local Agency Investment Fund(LAIF)
Wells Fargo Institutional Secunlies
Tax Allocation Bond Dale is based on Trustee-genereted Statements:bond funs listed
hereto are restricted for payment of debt service and eligible projects and governed by
strict regulations described in the Trust Indentures.
-Market Value is the current price at which a security can be traded or said.
d
WARRANT REGISTER NO. 17
WARRANTS DATED 5/16/11 THROUGH 5/31/11 FISCA010-11
FOR REDEVELOPMENT AGENCY MEETING OF 7/05/11
RESOLUTION NO. 4
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE
CITY OF AZUSA ALLOWING CERTAIN CLAIMS AND DEMANDS
TO BE PAID OUT OF REDEVELOPMENT AGENCY FUNDS
THE REDEVELOPMENT AGENCY OF THE CITY OF AZUSA DOES RESOLVE AS
FOLLOWS:
SECTION 1. That the following claims and demands have been audited as required bylaw and that
the same are hereby allowed in the amounts and ordered paid out of the Redevelopment Agency Funds as
hereinafter set forth:
80-110-REDEVELOPMENT ADMINISTRATION FUND $ 31,527.68
80-125-CBD CAPITAL PROJECTS FUND - 9255.14
80-135-WED CAPITAL PROJECTS FUND
80-185-RANCH CAPITAL PROJECTS FUND
80-165-624-2008A TAX ALLOCATION BONDS
81-155-TAX INCREMENT SET-ASIDE FUND 14,696.65
81-165-LM MRG TAB08B HS
.82-125-CBD DEBT SERVICE FUND
82-135-WED DEBT SERVICE FUND -
82-165-MERGED PROJECT TAX ALLOCATION BONDS
82-185-RANCH CENTER DEBT SERVICE FUND -
TOTAL ALL FUNDS: $ 55.479 47
SECTION 2. That the Secretary shall certify to the adoption of this resolution and shall deliver a
certified copy thereof to the Agency Treasurer and shall retain a certified copy thereof in his own records.
ADOPTED AND APPROVED THIS DAY OF 2011.
Chairman
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Redevelopment Agency of the
City of Azusa at a regular meeting thereof, held on the day of 2011.
AYES: AGENCY MEMBERS:
NOES: AGENCY MEMBERS:
ABSTAIN: AGENCY MEMBERS:
ABSENT: AGENCY MEMBERS:
Secretary
City of Azusa HP 9000 06/28/11 O P E N H O L D D B LISTING �/ P�
J[N 28, 2011, 10:38 AM ---req: RUBY-------leg: GL JL---loc: BI-=---jcb: 825741 #J5895--pgn: CFAOO <11..344re xpt id: CUMM02
SECSST FOND Codes: 80-82 ; Check Issue Dates: 051611-053111
FE ID PE Nmn ACS= NLNffi2 / JOB NCNffi2 Irrvoice Nurber Das=pticr St Disc. Ant. Dist. Dirt.
V05613 A T & T 8010110000-6915 6263345464042411 626-3345464 FD 0.00 6.80
PEID Upaid: 0.00
Paid: 6.80
Total: 6.80
V00363 AZLE A C *EM OF 8010110000-6630 1330 FY 2010/2011 AZU PD 0.00 2,712.15
PEIDT�-�d: 0.00
Paid: 2,712.15
Total: 2,712.15
V01305 AZCSA CITY IInDLO 8000000000-3035 051711 FR#10/11 FD 0.00 350.00
PESUaid: 0.00
Paid: 350.00
Total: 350.00
V07241 BETAAVD:ES, STS 8010110000-6235 052211 TRAVEL ADJ/ICSC PD 0.00 956.68
PEID LVd: 0.00
d: 956.68
Notal: 956.68
V05804 QST BESI & KRIE 8110155000-6301/505320-6301 650971 L�,O�W,��/��w R V#6509 FD 0.00 11,977.62
V05804 BEST BEST' & = 8010110000-6301 650972 DEEM) DISIRICT; PD 0.00 2,289.42
V05804 BEST QST & = 8010125000-6301/505900-6301 650972 MEIN DISTRICT• FD 0.00 693.00
V05804 FEST BEST & = 8010125000-6301/505900-6301 650974 FC1,1M ACQ -NN PD 0.00 6,967.83
V05804 BEST BFST & KRIE 8010110000-6301 650973 CBS B UMM;IN PD 0.00 63.00
PEID T i �;d: 0.00
Paid: 21,990.87
Total: 21,990.87
V06783 CTTISIP= 8000000000-3010 2315/1101010 PY#10/11 FD 0.00 125.08
PEED 0.00
Paid: 125.08
Total: 125.08
V01646 HEL C= & CLQ 8010110000-6493 0017808IN FY 10/11 PRDPI'Y PD 0.00 1,510.21
V01646 HCL CCHN & ME 8010110000-6493 00165771N FY 10/11 FROPTY FD 0.00 2,700.00
6
City of Azusa HP 9000 06/28/11 O P E N H O L D D B LISTING P�
JCN 28, 2011, 10:38 PM ---req: RUBY-------leg: GL JLr--loc: BI-TECH---jcb: 825741 #}J5895---pgn:�400<11.344> rpt id: CHFLTR02
SEUTT FiDID Cbdes: 80-82 ; Check Issue Dates: 051611-053111
PE ID PE Nare ACCOM NMER / JCB N VEER hwoioe Nudes Des=pticri St Disc. Ant. Dist. Ant.
V01646 HDL CCREN & COM 8010110000-6493 0017697IN FY 10/11 PRDPIY FD 0.00 750.00
PEID UtiW: 0.00
Paid: 4,960.21
Total: 4,960.21
V02688 INIERMUMAL CO 8010110000-6230 1041194031811 K.CHRI PD 0.00 50.00
V02688 D IERYMOML, CO 8010110000-6230 1041194031811 S.E�VIDF.S/� PD 0.00 50.00
PEID d: 0.00
Paid: 100.00
Total: 100.00
V05574 IRCN MXNAIN RE 8010110000-6493 II�M966UVU5973 EMT5966-E 'M973 FD 0.00 135.27
PEID d: 0.00
1135.27
Total: 135.27
V06940 LANCE SCIS, & LLN 8010110000-6315 1546 FY 10/11 ALDIT R FD 0.00 3,000.00
PEID Lkie: 0.00
Paid: 3,000.00
Total: 31000.00
V11039 Ma\Pl RA, Ca\AL 8010110000-6235 052211 TRAVEL ADV/ICSC PD 0.00 855.80
PEID UJ id: 0.00
Paid: 855.80
Total: 855.80
V00540 OFFICE DEEP = 8010110000-6530 562502302001 878270 HP O5A BL PD 0.00 85.33
V00540 OFFICE D= 11�r 8010110000-6530 562502302001 319-209 HP TCNER PD 0.00 202.16
V00540 OFFICE DEEC7P INC 8010110000-6530 562502302001 319-099 HP TCNER PD 0.00 202.16
V00540 OFFICE DEEY7P INC 8010110000-6530 562502302001 319-275 I3P TUM FD 0.00 149.60
V00540 OFFICE DEFC)r INC 8010110000-6530 562502302001 319-055 I3P TUSIER FD 0.00 202.16
PEID TIIV�)d: 0.00
Paid: 841.41
Total: 841.41
VU457 SEFFER PEITY CAS 8010110000-6625 050211 Prog= E>Peise FD 0.00 27.67
City of Azusa HP 9000 06/28/11 O P E N H 0 L D D B LISTING By R_-� l�tity Natce Page 3
TLr JUQ 28, 2011, 10:38 PM ---req: RUBY-------leg: GL JL---loc: BI-T➢U-I---job: 825741 W5895---p9m: CCE400 <1.34> rpt id: CHFL7R02
SECT FUID Codes: 80-82 ; Check Issue Dates: 051611-053111
PE ID PE Narre ACSIXNP NU42ER / JOB NUvffi2 Invoice Nurber Description St Disc. Ant. Dist. Acct.
V12457 SEFFER PEPI1' CAS 8010110000-6563 050211 sTplies/SFecial PD 0.00 9.26
PEIDLfiImid: 0.00
Paid: 36.93
Total: 36.93
V12065 iNICN BANK OF CA 8000000000-2727 LB-5/26/11 PARS Payable FD 0.00 535.00
PEID Uipai
Paidc 535.00
00
Total: 535.00
V11824 URBAN FUIURES IN 8010110000-6345 0411028 FRO.FEE 4 25 11; FD 0.00 6,568.75
V11824 URBAN FUIURFS IN 8010125000-6345/505800-6345 0411026 MMY ® ;M FD 0.00 117.69
V11824 URBAN FUI RFS IN 8010110000-6345/504700-6345 0411026 IvIMY REIPIIVEIt;M FD 0.00 1,059.22
V11824 URBAN FUIURER IN 8010125000-6345/505900-6345 0411026 Y= REM=;M FD 0.00 745.37
VU824 URBAN FUIURES IN 8110155000-6345/505320-6345 0411026 MIIII Y M FD 0.00 1,451.53
V11824 URBAN FUIURFS IN 8010125000-6345/505900-6345 0411028 FfdO.FEE 4 25 11; FD 0.00' 731.25
V11824 URBAN FUII.II2HS IN 8010110000-6345 0411026 NDMY M FD 0.00 6,826.19
V11824 URBAN FUIURFS IN 8110155000-6345/505320-6345 011028 I�.FES;4 25 1l; FD 0.00 1,267.50
PEID LIV: 0.00
Paid: 18,767.50
Total: 18,767.50
V00388 VERI7CN 8010110000-6915 6261975078042811 626-1975078 PD 0.00 19.99
PEID d: 0.00
d: 19.99
Total: 19.99
V04678 VERDIN WIRELESS 8010110000-6915 0971392022 INV## 0971392022 FD 0.00 85.78
MID LdmPaid: 0.00
id: 85.78
Total: 85.78
GRAND TOTALi d: 0.00
Paid: 55,479.47
Total: 55,479.47
{
ORDINANCE NO. ,
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AZUSA,
CALIFORNIA, AMENDING SECTION 2-469 OF THE AZUSA
MUNICIPAL CODE RELATING TO SEWER SERVICE FEES AND FEE
COLLECTIONS
WHEREAS, the City of Azusa ("City") has an aging sanitary sewer system which
requires preventive maintenance, rehabilitation, and an adequate sewer capital improvement
program fund; and
WHEREAS, sewer rate funds are the most practical and equitable means of providing
for necessary sewer maintenance, rehabilitation, and capital improvements; and
WHEREAS, the consulting firm of Lee and Ro completed a Sewer Master Plan
("Study") that contains an analysis of the future needs of the City in order to maintain a safe and
operation sanitary sewer system that meets the future needs of the residents businesses of the
City; and
WHEREAS, said Study lays out a 10-year Sewer Capital Improvement Program at a cost
of approximately $8,100,000 in needed capital investment in the sewer system; and
WHEREAS, the City Council of the City of Azusa ("City Council") finds, with respect
to the revenue generated from the increased fees that: (1) there is reasonable relationship
between the use of the rate fund increased herein and the services for which they are imposed
and this relationship is more fully documented in the Study; (2) the revenue generated from the
increased rate fund .does not exceed the amount necessary to provide the services; (3) the
increased rate fund shall not be used for any other purpose than that for which the fees are
imposed; (4) the increased rate fund do not exceed the proportional cost of the services
attributable to each customer; and (5) the increased rate funds are not levied for general
governmental purposes. Said apportionment of the rate fund is fair and equitable and insures a
reasonable relationship based upon the amount of the rate fund and the amount of sanitary sewer
use; and
WHEAREAS, the 10-year sewer rate fund increase will add 1% to the existing approved
rates for fiscal years 2011-12 and 2012-13 along with an additional initial rate of $.20 per
hundred cubic feet ("hcf') for residential users and an increase in the hcf charge for commercial
and residential users. The increase will be a gradual 5% increase per year over the next ten years;
and
WHEREAS, Pursuant to California Government Codes 65090-65096, a copy of the
Study was available for public review at the Office of the City Clerk, City Library, and Public
Works Yard at least ten (10) days prior to the public hearing and Public Hearing Notices were
mailed to all property owners subject to the sewer rate fund increase at least ten (10) days prior
to the public hearing; and
WHEREAS, the revenues generated from the rate funds shall be placed in a separate
fund to be used only for construction, rehabilitation, maintenance and operations of sanitation
and sewage facilities (including street sweeping operations); and
WHEREAS, the City Council finds and determines that amendment of Section 2-469 of
the Azusa Municipal Code is both statutorily and categorically exempt from the provisions of the
California Environmental Quality Act ("CEQA") (Public Resources Code Section 21000) and
that no significant environmental impacts will occur. Amendment of the above sections of the
Azusa Municipal Code is statutorily exempt under the "Rates, Tolls, Fares and Charges"
exemption contained in Public Resources Code Section 21080. This ordinance sets fees to
maintain existing sewers and sewage service in accordance with Health and Safety Code Section
5470. The above described amendment is also categorically exempt under the "Replacement or
Reconstruction" exemption contained in State CEQA Guidelines Section 15302.
NOW, THEREFORE, THE CITY. COUNCIL OF THE CITY OF AZUSA DOES
ORDAIN AS FOLLOWS:
SECTION 1. Section 2-469(a.1) of the City of Azusa Municipal Code is
amended to read:
Pursuant to the authorization contained in Section 5470 et seq. of the California
Health and Safety Code, the following rates are hereby established, prescribed, and imposed for
payment to the City for services and facilities famished by the City in connection with its
sanitary sewer system, including street sweeping operations.
MONTHLY SEWER FEES - 5% ANNUAL INCREASE
Laundromat/Car Not Low
Residential Commercial Industrial Wash Connected Income
To Sewer Discount
Base HCF Base HCF Base HCF Base HCF
Fee I Fee Fee Fee Fee Fee Fee Fee
Current
Rate $7.79 $0.00 $10.02 $0.094 $12.22 $0.094 $16.68 $0.094 $1.50 $0.75
FY 11-12 $8.18 $0.20 $10.52 $0.20 $12.84 $0.20 $17.52 $0.20 $1.58 $1.22
FY 12-13 $8.51 $0.21 $10.95 $0.21 $13.35 $0.21 $18.22 $0.21 $1.65 $1.28
FY 13-14 $8.93 $0.22 $11.49 $0.22 $14.02 7$0.22 $19.14 $0.22 $1.74 $1.35
FY 14-15 $9.38 $0.23 $12.07 $0.23 $14.72 $0.23 $20.09 $0.23 $1.82 $1.41
FY 15-16 $9.85 $0.24 $12.67 $0.24 $15.45 $0.24 $21.10 $0.24 $1.91 $1.48
FY 16-17 $10.34 $0.26 $13.30 $0.26 $16.23 $0.26 $22.15 $0.26 $2.01 $1.56
FY 17-18 $10.86 $0.27 $13.97 1 $0.27 $17.04 $0.27 $23.26 $0.27 $2.11 $1.63
FY 18-19 $11.40 $0.28 $14.67 $0.28 $17.89 $0.28 $24.42 $0.28 $2.22 $1.72
FY 19-20 $11.97 $0.30 $15.40 $0.30 $18.79 $0.30 $25.64 $0.30 $2.33 $1.80
FY 20-21 $12.57 $0.31 $16.17 $0.31 $19.72 $0.31 $26.93 $0.31 $2.44 $1.89
FY 21-22 $13.20 $0.33 $16.98 $0.33 $20.71 $0.33 $28.27 $0.33 1 $1.99
HCF = hundred cubic feet
FY =fiscal year (July 1 -June 30)
SECTION 2. The Mayor shall sign this Ordinance and the City Clerk shall attest
and certify to the passage and adoption of it, and within fifteen (15) days, publish in a newspaper
of general circulation in the City of Azusa.
SECTION 3. This ordinance.shall take effect July 1, 2011.
PASSED, APPROVED AND ADOPTED this 201h day of June, 2011.
Joseph R. Rocha, Mayor
ATTEST:
Vera Mendoza, City Clerk
APPROVED AS TO FORM:
City Attorney, City of Azusa
I HEREBY CERTIFY that the foregoing ordinance was duly adopted at a regular meeting of
the City Council on the 20'' day of June, 2011, by the following vote, to wit:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
Vera Mendoza, City Clerk
AOP N410111;
IAZUSA
CONSENT CALENDAR
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: KERMIT FRANCIS, INTERIM DIRECTOR OF HUMAN RESOURCES/PERSONNEL OFFICER
VIA: F.M. DELACH, CITY MANAGER
DATE: JULY 5, 2011
SUBJECT: HUMAN RESOURCES ACTION ITEMS
A. SEPARATION: The following separations are submitted for informational purposes.
DEPARTMENT NAME CLASSIFICATION EFFECTIVE DATE
UTL Monica Bauer Administrative Analyst 06/16/2011
FISCAL IMPACT
There is no fiscal impact, as positions listed are funded in approved department budgets.
0/M91/ CI