10.8 Survival. The provisions of Sections 10.1 through 10.7 inclusive, shall survive the termination or expiration of this AGREEMENT, until such time as the uses of the Property established in the Development Plan are permanently terminated.
ARTICLE 11. THIRD PARTY LENDERS, ASSIGNMENT & SALE.
11.1 Encumbrances. The parties hereto agree that this AGREEMENT shall not prevent or limit LICENSEE, in any manner, at LICENSEE's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property.
11.2 Lender Requested Modification/Interpretation. The CITY acknowledges that the lenders providing such financing may request certain interpretations and modifications of this AGREEMENT and agrees upon request, from time to time, to meet with LICENSEE and representatives of such lenders to negotiate in g ood faith any such request for interpretation or modification. The CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modi fication is consistent with the intent and purposes of this AGREEMENT and as long as such requests do not minimize, reduce, curtail, negate or in any way limit CITY’s rights under this AGREEMENT.
11.3 Non-Transferable Without CITY Approval. LICENSEE shall not sell or transfer its right, title and interest in this AGREEMENT and any permits, licenses, entitlements, and related benefits, except in full compliance with the transferability provisions in Chapter 128 of the BPMC.
ARTICLE 12. MISCELLANEOUS PROVISIONS.
12.1 Amendment of Agreement. This Agreement shall be amended only by mutual consent of the Parties. All amendments shall be in writing and executed by both Parties. The City Council hereby expressly authorizes the Chief Executive Officer to approve a Minor Amendment to this Agreement. A Major Amendment to this Agreement shall be approved by the City Council. The Chief Executive Officer shall, on behalf of CITY, have sole discretion to determine if an amendment constitutes a Minor Amendment or a Major Amendment. Nothing in this Agreement shall be construed as requiring a noticed public hearing, unless required by law.
12.2 Entire Agreement. This AGREEMENT sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements that are not contained or expressly contained herein.
12.3 Severability. If any term, provision, covenant, or condition of this AGREEMENT shall be determined invalid, void, or unenforceable, by a court of competent jurisdiction, the remainder of this AGREEMENT shall not be affected thereby and shall remain in full force and effect to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this AGREEMENT.
12.4. Federal Law. The Parties expressly agree that each Party is strictly prohibited from failing to perform any and all obligations under this Agreement on the basis that this AGREEMENT is invalid, unenforceable, or illegal under federal law. By entering into this AGREEMENT, each Party disclaims any right to tender an affirmative defense in any arbitration
or court of competent jurisdiction, that performance under this AGREEMENT is not required because the AGREEMENT is invalid, unenforceable, or illegal under federal law.
12.5 Interpretation and Governing Law. Any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This AGREEMENT shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this AGREEMENT, since all parties were represented by counsel in the negotiation and preparation of this AGREEMENT, and/or were advised to consult counsel and had the opportunity to obtain counsel for the negotiation and preparation of this AGREEMENT.
12.6 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this AGREEMENT.
12.7 Singular and Plural; Gender, and Person. Except where the context requires otherwise, the singular of any word shall include the plural and vice versa, and pronouns inferring the masculine gender shall include the feminine gender and neuter, and vice versa, and a reference to "person" shall include, in addition to a natural person, any governmental entity and any partnership, corporation, joint venture or any other form of Project entity.
12.8 Time of Essence. Time is of the essence in the performance of the provisions of this AGREEMENT as to which time is an element.
12.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this AGREEMENT thereafter.
12.10 No Third-Party Beneficiaries. The only parties to this AGREEMENT are LICENSEE and the CITY. This AGREEMENT is made and entered into for the sole protection and benefit of the parties and their successors and assigns. There are no third-party beneficiaries, and this AGREEMENT is not intended, and shall not be construed, to benefit, or be enforceable by any other person whatsoever.
12.11 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
12.12 Counterparts. This AGREEMENT may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
12.13 Jurisdiction and Venue. Any action at law or in equity arising under this AGREEMENT or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this AGREEMENT shall be filed and prosecuted in the Superior Court of the County of Los Angeles, State of California, and the parties hereto waive all provisions of federal or state law or judicial decision providing for the filing, removal or
change of venue to any other state or federal court, including, without limitation, Code of Civil Procedure Section 394.
12.14 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this AGREEMENT. No partnership, joint venture or other association of any kind is formed by this AGREEMENT. The only relationship between the CITY and LICENSEE is that of a government entity regulating the development of private property and the LICENSEE of such property.
12.15 Further Actions and Instruments. Each of the parties shall cooperate with and provide Reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this AGREEMENT and the satisfaction of the conditions of this AGREEMENT. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this AGREEMENT to carry out the intent and to fulfill the provisions of this AGREEMENT or to evidence or consummate the transactions contemplated by this AGREEMENT.
12.16 Eminent Domain. No provision of this AGREEMENT shall be construed to limit or restrict the exercise by the CITY of its power of eminent domain.
12.17 Agent for Service of Process. In the event LICENSEE is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer, resident of the State of California, or if it is a foreign corporation, then LICENSEE shall file, upon its execution of this AGREEMENT, with the Chief Executive Officer or his or her designee, upon its execution of this AGREEMENT, a designation of a natural person residing in the State of California, giving his or her name, residence and Project addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this AGREEMENT, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon LICENSEE. If for any reason service of such process upon such agent is not feasible, then in such event LICENSEE may be personally served with such process out of the County of Los Angeles and such service shall constitute valid service upon LICENSEE. LICENSEE is amenable to the process so described, submits to the jurisdiction of the Court so obtained, and waives any and all objections and protests thereto.
12.18 Authority to Execute. The person or persons executing this AGREEMENT on behalf of LICENSEE warrants and represents that he/she/they have the authority to execute this AGREEMENT on behalf of his/her/their corporation, partnership or Project entity and warrants and represents that he/she/they has/have the authority to bind LICENSEE to the performance of its obligations hereunder. LICENSEE shall each deliver to CITY on execution of this AGREEMENT a certified copy of a resolution and or minute order of their respective board of directors or appropriate governing body authorizing the execution of this AGREEMENT and naming the officers that are authorized to execute this AGREEMENT on its behalf. Each individual executing this AGREEMENT on behalf of his or her respective company or entity shall represent and warrant that:
(i) The individual is authorized to execute and deliver this AGREEMENT on behalf of that company or entity in accordance with a duly adopted resolution of the company's board of directors or appropriate governing body and in accordance with that company's or entity's articles of incorporation or charter and bylaws or applicable formation documents; and
(ii) This AGREEMENT is binding on that company or entity in accordance with its terms; and
(iii) The company or entity is a duly organized and legally existing company or entity in good standing; and
(iv) The execution and delivery of this AGREEMENT by that company or entity shall not result in any breach of or constitute a default under any mortgage, deed of trust, loan agreement, credit agreement, partnership agreement, or other contract or instrument to which that company or entity is party or by which that company or entity may be bound.
12.19 Nexus/Reasonable Relationship Challenges. LICENSEE agrees that the fees imposed are in fact Reasonable and related to the mitigation of the negative impacts of the Project on the CITY and consents to, and waives any rights it may have now or in the future to challenge the legal validity of, the conditions, requirements, policies or programs set forth in this AGREEMENT including, without limitation, any claim that the terms in this AGREEMENT constitute an abuse of the police power, violate substantive due process, deny equal protection of the laws, effect a taking of property without payment of just compensation, and/or impose an unlawful tax.
12.20 No Damages Relief Against CITY. The parties acknowledge that the CITY would not have entered into this AGREEMENT had it been exposed to damage claims from LICENSEE, its agents, officers, employees, or anyone acting on behalf of LICENSEE for any breach thereof. As such, the parties agree that in no event shall LICENSEE, or LICENSEES' agents, officers, employees, partners, or anyone acting on behalf of LICENSEE be entitled to recover damages against CITY for breach of this AGREEMENT.
12.21 Laws. LICENSEE agrees to comply with all applicable state, regional, and local laws, regulations, polices and rules. In addition, LICENSEE further agrees to comply with all issued entitlements, permits, licenses, including any and all applicable development standards.
Specifically, LICENSEE agrees to comply with all applicable provisions of BPMC.
12.22 Compliance with Conditions of Approval. LICENSEE agrees to comply with and fulfill all conditions of approval for any and all entitlement, permits, and/or licenses it receives from the CITY. All conditions of approval for all entitlements, permits and/or licenses are attached hereto and incorporated herein by this reference.
12.23 Consistent with State and Federal Regulations. The CITY acknowledges that this AGREEMENT shall be read consistent with any statewide or national regulation of commercial cannabis that is promulgated in the future, either by legislative action or voter approval. In the event national or statewide regulations are promulgated which decriminalize or legalize the adult-use of marijuana for recreational use, this AGREEMENT shall govern the conduct of the property under such future regulations.
12.24 Compliance with Applicable Laws. LICENSEE shall comply with all applicable laws, ordinances, administrative regulations, and permitting requirements in carrying out its obligations under this Agreement.
12.25 Necessary Acts. Each Party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate, to implement the terms of the Agreement and the intent of the Parties to the Agreement.
12.26 Consultation with Counsel. The Parties have entered and executed this Agreement freely and voluntarily based on their own independent judgment, after consultation with their respective counsel, and without duress, coercion, or undue influence of any kind.
12.27 Superseding Clause. This AGREEMENT supersedes any and all other agreements or contracts, either oral or written, between the parties with respect to the subject matter herein.
DOCUMENTS ATTACHED
The following documents are attached to and, by this reference, are made part of this AGREEMENT:
No. 1 – Legal Description of the Property and/or Properties No. 2 – Map showing Property and its or their location(s) No. 3 – CITY Cannabis Permit Application Form
No. 4 – Landlord Consent
No. 5 – Personal Guaranty
No. 6 -- Project Plan
No. 7 –Three years revenue projections from date of execution of AGREEMENT No. 8 – California State License Type ________________, when issued by the DCC.
No. 9- Checklist for Determination of Renewal of AGREEMENT by CEO (per § 3.4, herein)
[Signatures on next page]
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed as of the dates written above.
CITY OF BALDWIN PARK
By: ___________________________
Emmanuel J. Estrada, Mayor
LICENSEE
By: __________________________
Title:
ATTEST:
By: ____________________________
City Clerk
Approved as to Form:
By: _______________________________
Julia Sylva, Special Counsel
Commercial Cannabis Activity,
City of Baldwin Park
Approved as to Form:
By: __________________________________
Name:
Title:
No. 1 - Legal Description of the Property and/or Properties Common Address:
TBD
Assessor’s Parcel Number: TBD
No. 2 – Map showing Property and its or their location(s)
No. 3 – CITY Cannabis Permit Application
No. 4 – Landlord Consent, if applicable
No. 5 – Personal Guaranty/Performance Bond
No. 6 – Project Plan
No. 7 – Financial Projections
No. 5 – California State License Types
State License Type: TBD