CONFIDENTIAL
This Lease shall remain in full force and affect on the portion of the Leased Prexiaes not Taken. Katuithstanding anything in this'Lease which is or appears to be_to the contrary, the portion of the Rant parable under this Least as Annual Minircum Rent shall be 'reduced in the same ratio that thf market value of the Ten- ant's interest in the Leased Prenisei as improved immediately prior to; the Taking is , reduced by the Taking. The reduction in market value of . the Leased .Presisis shall take into account and shall be determined subJect to all subleases, licenses, and concession agreements then art effect,. and 'shall be determined upon completion of any repairs, modifications, 'or alterations to the Improvements on the Leased PremiAes necessary to restore theca to functional and useable condition following the Partial Taking.
The reduction in that portion of the Rent payable under this,Leaje as Annual Per:centage-Rent shall be saexsured solely by the reduction, if any, in 'the revenues, -receipts or other like measure, upon which said Annual Percentage Rent as based.
Promptly after a Partial Taking, at Tenant's expense
and in the manner specified in' the provisions of this.Lease relating to„construction, maintenance, repairs,, and alterations, . Tenant shall' reconstruct, repair, alter, ar modify the improve- ments on the Leased Premises so. as to` ',take then an operable whole. If Tenant doe! -'not. repair,' alter., modify, or reconstruct as required above, the cost cf such repair shall- bs deducted from Tenant's share, if any, of the 'Award and paid .:to Landlord. Any such construction, repairs, aite.ration's;ar modifications shall be undertaken and completed in compliance With all of the provisions of Section 5., of this., Leave applicable. to Changes to the Improvements, including all provisions contained therein relating to consent of or approval by Landlord.
1.2.5 Apportionment and Distribution of Award For Par-
tial Taking.
On t Partial Taking, all sums, including damages and
interest, awarded for the fee title or the leasehold or both, shall be.,distributed and disbursed, first, to the cost of restor- ing the leasehold improvements, and thereafter in accordance with the law in effect at the time of the Taking.
12.6 Taking for Temporary Use.
If there is a.Taking of the Leased Premises for tempo-
rary.us_e, this Lease shall continue in full force and effect, Tenant shall continue to comply with Tenant's obligations under this Lease, neither, the -Term nor the Rent shall be reducedor affected in 'any way, but shall continue at -the level of the last annual rental (regardless of whether -computed on a fixed or Percentage basin) paid prior to the Taking (including any subse- quent increases in such annual rental provided for under this 0580D050.O51/003
-45- 031389-14
M8 9043 1226
c`eAippTIAL
258
Lease), and Tenant shall be entitled to any Award for the use or estate taken.
.ARTICLE 13. DEFAULT
13.1 Events of Default.
The occurrence of any one or more of the following
events shall constitute t default and breach of this Lites by Tenant or Landlord ("Default(s)" or "Event(s)of Default"):
(a) Any failure by Tenant to pay the Rent
any other payment required to be made by Tenant hereunder, 6H`E-fie`3ate the payment is dut;
(b) The abandonment or surrender of the Leased
Premises by Tenant;
(c) A .failure. by Tenant or Landlord to observe
and perform any -other provision of this Lease to be observed di performed by Tenant or Landlord;
(d) An event of .insolvency occurz, which event
shall be any of the following: Tenas►t sha_11 'eaake an. assign- ment for the benefit ' of creditors;' Tenant shall file or acquiesce in Aa .petition •in any. court (whether or not pursu-
ant to any statute of, the'United_States or of any state) in Any bankruptcy,._ reorganizatjon, cospositian, extension, arrangecient or insolvency proceedings; Tenant shall make an application in any.such proceedirigi ' for, or acquiesce in, the -Appointment of 'a trustee or receiver far. it of all or any portion Of its property; any petition shall be filed against Tenant t o which it. doss not acqui.esee in any court (whether or not pursuant to, any Statute of the United States or any state): in any bankruptcy, reorganization, composi- tion, extension, arrangement or.insolvency proceedings, and the proceeding shall not bi diiimissed, .discontinued or vacated within ninety (90) days; any proceeding pursuant to" the application of any person 'other than Tenant to which Tenant does not acquiesce,. in which a receiver or trustee shill.b. appointed fox Tenant or for all or any portion of the.property of .Tenant, and the. receivership,or trusteeship shall not be 'set aside within.ninety (90) days after such appointment; or any_judgment, writ, warrant, .attachment or .execution or 'similar process.. shall : be issued or levied - against. M substantial. .part_. of the property of Tenant and 'such judgment, Writ or similar process shall not -be re- leased. vacated or fu11 bonded. within .ninety (90) days of its is'sus or levy;.. p y 4 y
rovided �th:t if.it it is �datarained that
this Lease tay be assumed by..the .Tanint.`s_ trustee in bank- ruptcy notwithstanding -ths above provision and-riotwithstand- ing.Landlord'a reliance on Tenant`s particular skill, exper- tise and character in entering this Lease, said trustee in 0580D050.451/003
-46- 091389-14
Exhibit 2
CN8 9§ 1227
CONFIDENTIAL
bankruptcy may net assign ,this L,sasa unless (i) said pro- posed assignee has _a.net worth it least 'gull to that of Tenant at the time of 'execution of this Lease, (ii) the business of .the assuring third party is_consist-ant with the character and concept 'of the prescribed -use of the Leased Premises, s.nd (iii).all other provisions of 11 U.S.C. Sec- tion. 36S(f)(2)(B)., ax well as other• applicable bankruptcy .law_pr:•ovisions for Landlord's benefit.and protection, are •. satisfiedbifcre any assignment of Tenant's rights or as- sumption of Tenant's ' ob'ligatjons under this Lease. .This paragraph shall not be deemed to waive any of Landlord's rights under bankruptcy law or otherwise;
(a) A failure by Tenant to perform its obli-
gations.under, or'a failura''by Tenant to observe, Article 8 with respect to Xranifer :at the Leaia. or any .interest there- in, or any other Transfer prohibited therein; or if Tenant shall suffer or permit any of the' foregoing, other than as specifically approved in writing by Landlord;
(f) .A default _13y' Tenant under .the provisionso1
Any Encumbrance placed on zhi teased Premises pursuant
Artic
le 7 hereof; • .
(g) A, failure by Tenant to pay or discharge any
liens or claims Of liens or to provide a bond therefor in accordance With Section 5.4 hereof;
(h) A. failure by Tenant.to perform its obliga-
tions under Section 5.2.4'hereof with respect to implementa- tion of certain mitigating measures; •
(i) A failure by Tenant to make any payment
required by.thie••Leasa to be made by.Tenant with respect to the Agency's Loan'or the SaIis Tax Payment; and
(i) A _default by Tenant under any of the provi-
sions of the DDA applicable to Tenant.
13.2 Notice of Default; 'tenant's Right •to Cure.
If Tenant is in Default under. this Lease, as defined in Section 13.1, as a precondition to pursuing any remedy for an alleged.Default by Tenant,. Landlord'shall give notice of said Default . ("Notice of Default") to .Tenant .and any Lender who has delivered a written request to Landlord for such notice and has registered its address with Landlord.
'If the alleged Default is nonpayment of Rent, Impo-
sitions or °that aumi _to . bt paid by Tenant. As provided in this Lease, Tenant, shall hive. fifteen. (15) days after notice is given to cure the Default.. 'For any other Default, Tenant shall, after notice, promptly and diligently coaaaence .curing the Default and 0580D050.051/003
-47- 091389-14
Exhibit 2 260
CM8 9043 1226
CONFIDENTIAL
shall,have thirty (30) days after notice is given to complete the cure of said Default; provided, however, that if the nature of ,said Default is -such that the sale -cannot reasonably be cured r+ithin said thirty"(30) d*y' period, '-Tinint shall have such Addi- tional time. al is necessary to'cure" such Default, provided Tenant is exercising reasonable diligence in 'its' efforts to cure the Default.
13.3 Landlord's Right to Cure Tenant's Defaults,
After expiration of the applicable time for curing a
particular Default, or before the -expiration of that time in the event of:an emergency, Landlord may,_ at Landlord's election, make any payment required of Tenant under this Lease or under any note or other document pertaining to. the financing -of..impravements or —fixtures'On the . Leveed Premiies, or 'per1ore -or comply with any covenant 'cr. condition imposed. on Tenant under,thii Lease or any such note cr document, and theamqunt so paid, plus the reasona- ble coat'of any such.ptrformance or'compliance,.plue interest on such sum 'at .the Default" Rate;` from the date , of payment, perfor manc.e, "or' compliarnce ' until. the date "of repaysaent .by Tenant, shall be due: and.payable. by. Tsrisnt " on'_the first .day of. the next calen- dar month following any 's'uch . Payment", perforarance or .compliance by Landlord ""as . additional Rent hereunder. 'No such act shall conati'tute a waiver of any Default `or- of any remedy for Default or render' Landlord r liable for any losi or damage -resulting from any such act.
13.4 Notice of Landlord's Default; Tenant Waiver.
If Landlord is in Defaultunder this Lease, as defined
in Section 1.3.1, as a precondition_ to puriuing any remedy for an alleged Default by Landlord, -Tenant shall deliver a Notice of Default 'to Landlord. Each"Notice*of Default shall specify the alleged Event of Default. Lendlord'shall; after -.notice, promptly and diligently commence curing -the 'Default and shall have thirty (30) days after notice is given 'to complete the cure of said Default; provided; however, that if the nature of said Default is such that the "same" cannot reasonably be red within said thirty (30) day period, Lan cu
dlord shall have such.tire as is necessary to
complete the cure"of Said Default,'. provided" Landlord is exercis- ing" reaaonab'le diligence in its efforts:. to cure the Default.
Tenant" hereby Waives the protections" of 'California Civil Code "Sections 1932 and 1933, or any other successor statute containing like protections.
Notwithstanding any assignment of the original'Land-
lord's-rights under this Lease to any other entity, in the event -of a Default by `'such other entity' under this Lease, Tenant . shall deliver a.Notice of Default to -the original -Landlord concerning said Default, and the 'original Lind"lord shall "have the right to 'cure said Default' so long 'as it 'undertakes =and completes said cure prior to expiration of the'applicable cure period. 0580D030.051/003
-48- 091389-14
CM8 a 9043 1229
EXMDI LNFLDENTIAL
261
13.5 Landlord's Remedies.
13.5.1. !izht to Terminate.
If any Default_by Tenant shall continue uncured, fol-
lowing Notice -of Default aa.required by this Lease, for the cure period applicable to that. Default under the provisions of this Lease ("Uncured Default"), then in.addition to any:other remedies available to Landlord at•:Iav'or-in equity, and subject to the_ rights, of a Lender expressly set -forth' in this Lease Landlord shill have the iMmediate option to terminate this' Lease and all rightsi . .•
:of Tenant hereunder b7 giving written notice of such
termination, In the event that Landlbrd-shall io elect to termi- nate this Lease then 'andlord.may recover from Tenant:
(a) The worth at the time of award. of any unpaid
Rent which had been earned at the time of such termination; -plus
(b) The worth at thetime of.award of the amount
by which the unpaid Rent,'which_ would hive: been earned after termination until the'' tiiae ` of award sxceids .the amount of such rental loss that Tenant provei could have been reason- ably avoided; plus
(c) The worth at the time of award of the amount
by which the 'unpaid. Rent for the balance.of the Term after _.. the time of award exceeds' 'the :imcurit .of auch rental loss that Tenant proves could be rea:onablr avoided; plus
(d) Any other account. necessary ,to _compensate
Landlord for all the detriment proximite'ly caused by Ten- ant's failure to perfotm'its obligations under this Lease -or which in the 'ordinary `course of things would be likely to result therefrom; and
(e) At Landlord's ,election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time by applicable California law.
'As used in subsections (a) and (b) above, the "worth at the -time of award"' is -coirput:ed .by. allowing 'intereit at the Default Rate. -As used in iubparagraph (c)'above, the„"worth at the time of award" is computed by;'discounting such L ount at the discount rate of'ths'Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).
/3.5.2. Rissht to Reenter.
Subject to Tenant's and its Lender's right to cure
Tenant's Default under this Lease pursuant to Section 13, in the event of such, ,a Default: by Tenant, Landlord —shall also have the right, with or without terminating this Lease, to reenter the 0580D450.051/003
-49- 091389-14
Exhibit 2
CM8 904S6230
CONFIDENTIAL
Leased Premises and remove all persons end property therefrom by summary proceedings or otherwise. ,'Such property on the Leased Premises may be removed and stored -in t•public warehouse or elsewhere at the cost of and for the account of -Tenant. iYotVith- standing any•provision of_•this Lease which may be or appears to be to the contrary,' in. the 'event of any such Uncured Default 'Landlord may also, elect to. retain all of Tenant's fixtures, furniture, equipment, improvements.; additions;. alterations, and any —other personal property ("fixtures;. furniture and equipment") on the Leased Premises and, -in that events_ and continuing during the length of said Uncured Default,. Landlord shall have the right to tike the **elusive possessi-on.of..jame And -to use same, rent fees and. without _charge therefor. • Ths _election, of one remedy for any one item 'of property should- -not foreclose an erection of any other —remedy for another item or for the saws item at a later time.
13.5.3. Right to Relet on Tc.zant's Account.
• In the event of abandonment of. the Leased Premises by Tenant, o_ r i.n the event . that Landlord' sha11 elect to reenter as provided in Section -13: 5:2 :bay's.. without .-ezarciiing its option to terminate the Lease, then. Landlord '*y,' pursuant to Section 1931,4 of the. Civil Code 'of the State' of California, either racover'all rental aa- it become.: due.:{the Annual Percentage Rent for. the year or years, miter the Leased Prtmisei:are abandoned or vacated by Tenant shall be equal..eich year to the Annual Percent- age Rent paid.for the list -year prior tc-the vacation or abandon-' rnent of the Leased Premises by Tenant) or relet.for Tenant's account the Leased .r--emi3ea or. any part thereof for such term or term, and at..such recital- or rentals end upon such other terms and conditions as Landlord in: -its sole discretion may deem advisable and, n connection therewith-,' Landlord shall 'have the right to make' alterations and repairs to the Leased Premises.
In the event .that Landlord shall so elect to relet,
then rentals received by. Landlord from such reletting shall be 'applied: first, to the pajneant of any indebtedness, other than Rent' due hereunder, owed by Tenant to Landlord; second, to the payment of the cost of such reletting; third, to the payment of the cost of repairs to•tht Leased Premises made by Landlord; fourth, to the payment of Rant due and unpaid hereunder; and the residue, if.any,, shall be -held by Landlord and applied in payment of -future Rant as-ths same may become due and payable hereunder. _Should that portion of such rentals received from such reletting during_Any monthwhich, ii appl,iad to the -payment of Rant hereun- der be less than' the'Rent payatbli during that month by Tenant hereunder, 'then• Tenant - shall pay such deficiency to Landlord.
Such deficiency .:hall be -Calculated and -paid monthly. Tenant shall also- pay -to Landlord,' as soon : as' ascertained, any costs and expenses incurred by' Landlord ire 'such xelettint- or in waking such alterations and repairs not covered by the rental-i received from such reletting.
0580D030.051/003
-50- 091389-14
Exhibit 2
263
CtiB 9043 123].
- CONFIDENTIAL
13.3.4. Ufect of Reentry.
No rsentr7 or taking possession of the Leased Premises
by Landlord pursuant to this .Sectiori-13.5 shall be construed as an election to terminate this Lease unless a .wriLten notice of such intention be given to Tenant by Landlord or unless the termination thereof be decreed by a court -of competent Jurisdic- tion. Landlord may at any tine After- such.rel"ttting elect to terminate this Leash for eny•Default'by Tenant,' And may thereaf_ ter' pursue any and All 'remedies avtilabls•. to Landlord upon .such termination.
13.6 Remedies Cumulative.
Each .right and remedy of Landlord and Tenant provided
for in this Lease "shall b -e cunrulati"ve _and •shall -be in addition to every other right or remedy provided for in this Lease or now or hereafter existing at Taw. or in equity or by statute or other- - wise, and the exercise. or the beginning of the exercise by Land- lord or. Tenant of any one or more of the rights or remedies provided_for in'this Lease 0r now'or hereafter existing at law or in equity' or. by .statute .or otherwise sha11 not preclude the simultaneous or later exercise by Landlord or Tenant of any or all other rights or remedies provided for in this Lease or now Or hereafter existing at law or in' equity "or by .statute or -other- wise.
13.7 No Waiver.
Landlord's or Tenant's. failure to enforce any provision of this Lease with respect to a Default hereunder shall not constitute a waiver of Landlord's or Tenant's right to enforce such provision or any other provision with'respect to any future Default_: The ' Acceptance Of Rent_ by Landlord shall not be deemed a'waiver of Landlord's right to enforce any terms or provision hereof including the right:to collect a late charge. The waiver of any term or 'condition of this Lease crust be in writing and shall not be deetned to be a waiver of any other term or condition hereof or of any subsequent failure of any term or condition hereof. Landlord's fa.ilure'to require or collect the late charge in any one"or more instances ahall not constitute a waiver of the right to collect any subsequent late charge or charges.
13.8 Delays in Performance.
• The time within which the Parties hereto shall be
required to perform any' "act under this Less, other than the payment o.f Rent and, Zarpositionf, shall -b'a ixtended _by a period of time equal: to the number of days during which performance of such act is delayed due to ',en act""oZ God., supernatural causes, strikes, lockouts, earthquake, flood, explosion, war, invasion, insurrectidn,. riot, mob violence, -acts of the public • enea►y, epidemics, quarantine restrictions, freight embargoes, unusually 058011030.051/003
-51- 091389-14
CM8 9043 1232
ExWNEIDENTIAL
264
severs weather, acts of another party in violation of this Agreement; or similar events .which 'would constitute an excuse for performance under the doctrines of •frustration of purpose or impossibility .of Performance._ The. additional -grsce - period or eitensia-n,of tiia provided" above shall be equal to the period of delay "caused by the above -described event, which period shall commence to run from' the" time- of the commencement of the cause for"delay and shall terminate upon termination of that cause. A Party wi:hing..to invoke this.Section shall notify in writing the other Party" to this Agreement ;of. that intention within thirty (30) days of the commencement of ' any such cause for delay and shall, at that- time, specify the reasons therefor. The failure to. ,so "notify the other Party ,within that Period. as to the cause for deli7..sha11 constitute a waiver of any right to liter rely upon. thin Suction with respect "to that cause. In no avant shall any.exteniion of time provided to.Tenent pursuant. to this Section extend th_ a deadline" for cotsh*ncement -of construction of the Shopping Center by a cusaulative . total .of more than twelve (12) months without Agency's constnt,,.after which time this Agreement sha1rb. subject to termination by Agency: In the event of such termination and provided _that Developer is not then in Default hereundei ,. the Developa.r' s :Ft s :.hall be "returned to Developer and th'a.Parties shall hive no further liability to each other under this• Agreement.
ARTICLE 14. EXPIRATION; TERMINATION
14.1 Tenant's -Duty To Surrender.
At the expiration orearliertermination of this Lease,
Tenant shall surrender to Landlord .the 'po'saession of the Leased Prernitea free :and clear of i11 lens and Encuctbrinces other than those, if any, created by Landlord,. Surrender or removal of improvements, fixtures and trade fixtures shall be as directed•in the provisions of this Lease" on ownership of improvements at termination or expiration"of the Terat. Tenant shall leave the Leased Premises and any other "property surrendered in good condition and repair; A11 property that Tenant is' required to surrender. shall. become Landlord`it property at termination or expiration 'of this .Lease.. A11 .property that Tenant. is not required. to surrender but that tenant does abandon by, failure to remove said property within thirty.(30) days after the expiration or earlier termination of this Lease shall, at Landlord's election; become Landlord's property.
Subject to the rights, if any, cf.s. subtenant under a
nondi=turbance agraeieiit spproved by Landlord in accordance -with Section 8.2.3;' at the expiration or earlier termination of this Lease, Landlord" shall have the right. to demand the removal from :the Leased Premises of a11.. improvements or of 'certain specified improvements thereon .at .Tensnt' i sole cost and expense. A demand far :the removal of -said iatprovement (s ). shall be made by notice given within six (6) months before the expiration, or at the time 0580D050.051/003
-52- 091389-14
Exhibit 2 CH926O43 1233
CONFIDENTIAL
of the airlift termination, o€ this Lease. Tenant shall comply with said notice prior to expiration' -of this Lease, or, in the event of earlier termination, not later than ninety (90) days after such earlier termination of this Lease, .'"The duty imposed by this provision include*, but it not Iis{ited . to, the duty to demolish and remove all buildings in compliince'with applicable demolition permits.
If Tenant fails to surrender the Leased Premises at the expiration or sooner. termination 'of thii 'Lease in the condition required by this Lease, Tenant shall indemnify, defend and hold Landlord, City and their —Representatives,' and the property of Landlord 'and City, harmless from all'Lossei and Liabilities resulting from the delay :Or 'failure to 'scirrertder, including, without limitation, claims made by any succeeding tenant founded on or resulting fro Tenant's failure to surrender.
-If requested to do so, Tenant shall, upon the
expiration or _earlier_ termination of this Leese, execute, acknowledge and deliver to Landlord and/cr City such instruments of further assurance as in ' the opinion' of Landlord and/or City are necessary or desirable to confiri or perfect Landlord's right, .title and interest in and to the .Leased Promises, and -any . other property surrendered to 'Landlord pursuant' to this .Lease, free and clear of any claim by Tenant.
ARTICLE 15. TENANT'S REPRESENTATIONS AND WARRANTIES.
15.1 Tenant's Representations and Warranties
Tenant covenants, represents and warrants to Landlord,
as of the date of execution of this Lease,' as follows:
(a) .Tenant. ii a California general partnership,
duly organized, qualified "and validly existing and in good standing- under the laws of California and each other
jurisdiction where the operation of its business or its .ownership of property snakes such qualification necessary, and hat all requisite power and authority to own and operate it= properties and to carry on its businezi' as -now and Whenever_, conducted and to enter 'into and perform its obligations under this Lease;
(b) The execution, delivery and performance of
this Lease..is consistent, with Tenant's general partnership 'agreement and has been duly ,auth'orixed by all necessary action of Tenant's partners. All consents;' approvals and authorizations of 'a_11 applicable governmental authorities (ncluding,' without Limitation; all. consents or approvals, i.f any, required cinder applicable securities laws), and all contents or approvals .of Tenant's partner* required in connection with the execution, delivery and performance by 058013050.051/003
-53- 091389-14
Exhibit 2
266
CHB 9043 1234
CONFIDENTIAL
Tenant:
Tenant of this Lease have been obtained and delivered to the Landlord on or before the Effective Date of this Lease; (c) Tenant has duly obtained and maintained, and
will continue to' o btiin .and Maintainall material licenses, permits, consents and approvals . required by all applicable governmental authorities -to own and'operate its respective businesses and properties as now owned and hereafter owned. (d) With respect to the financial condition of
(1) Tenant .has. furnished Landlord and will,
upon request. by Landlord, furnish Landlord with true
and correct cope _of its: ,balance Sheets and the
related Statements of Income (Loss), and Statements of
Change3 in Financial Foeition (collectively, the
"Financial Statements'•');
(2) The Financial .Statements have basn and
will be prepared..in Accordance.with generally accepted accounting principles. `c'onsist'ently applied .throughout the' . perio:ds indicated'.. ' The' . balance Sheets fairly present financial conditions as of the date indicated,
and the Statements of .Incore:..(Loss) and Statements of Changes in' Financial Condition fairly present, in
accordance )4th'..auch accounting principles, the results of operations, the- '.application- of funds, and the
changes in --shareholder s equity for the respective
periods indicated;
(3) There have been no changes in the
assets., liabilities; financial condition or affairs of Tenant set forth ' 'or ratlected' in the most recent
Financial Statementsrsupplied-to Landlord, which either in any one case or in. the aggregate., would materially or 'adversely affect Tenant's ability to perform its
obligations hereunder; and
(4) The charges, accruals and reserves in
the books of Tenant, if any, since inception of Tenant
to the date hereof are adequate in .accordance with
generally accepted accounting principles to reflect any changes in the financial 'condition' of Tenant since its inception;
(e) A11 ,filings, reports end tax returns of
Tenant which are required to be made or filed with any
governmental authority hays been. and will continue to be duly made. and filed, and all taxes, Xtsessments, fees and ' other- governaaental charges upon Tenant, or upon any of its respective properties, "assets, income or franchises, which are dui and' payable, have been, and Will continua to be, vo80DO5O.O51/003
-54- 091389-14
267
paid when due, other than those which are presently payable without penalty or interest, or which Tenant is contesting in good faith;
(f) There are not suits, other proceedings or
investigations pending or threatened against, or affecting the .business or the properties- of Tenant, other than as previously disclosed •to. Landlord, which would materially impair Tenant's ability to perform under this Lease nor is Tenant nor any of Tenant's general partners in violation of any laws or ordinances;
(g) There are no facts now in existence which
would, 'with the giving of .notice or the' laps. of time or both, constitute. an "Event of Default".hereunder;
(h) Tenant has not received any notice from any
governing jurisdiction_ of any Violation of laws or
ordinances, nor any notice. requiring any% improvements or alterations to be rrrade•'in connection with the Improvements to be constructed on the Leased.Preraises;
(i) Tenant does not. know or have my reason to
know. of my adverse conditions,. circumstances, or pending or threatened litigation, governmental action,_'or other condi- tion which could 'prevent' or materially.'ixp air Tenant's ability to develop 'the Leased Premisei as contemplated by the terms of.this Lease; and
(J) This Lease and all other,instruments to be
executed in connection herewith will, ai of the date of their execution-, have been duly and valid_17 executed by ,Tenant, and -etch such document' constitutes, or will, as of .the date executed, constitute; a legally valid, binding and fully enforceable obligation of the Parties thereto, in accordance with each and every term and condition stated therein.
ARTICLE 16. MISCELLANEOUS
16.1 Estoppel Certificate,
Within. ten (.10) days after request by Landlord or
Tenant (which request__may be from time to time as often as reasonably required 'by'Landlord or Tenant)` Landlord or Tenant 3hali execute. and .deliver.' to the • other, without • charge,- a statement -in.' the fora of 'Exhibit 4, attached hereto; or in such 'other similar fors as Landlord or. Tenant may be reasonably requastm Any' such statement may bi" Conclusively relied upon by any prospective purchaler or 'encumbrancer of the Leased Premises; Tenant's or "Landlord's failure to deliver such statement within ten (10) days of • a written request tharafor shall be a binding agreement 'of Tenant or Landlord (i)-that this Lease is in full 0580D030.051/003
-S5- 091389-14
Exhibit 2
CMa2§b43 1236
CONFIDENTIAL.
force and effect without sodifi.cation except as may represented by the Party requesting said statement,_ 7 be there are no Uncured Defaults in ' the. reque:di-ng {iParty's .performance hereunder, and
.peymenti of advance Rent other that there have not been. any of this Lease. provided in the provi;ions
16.2 Notices.
Any notice provided for herein shall be given by
(i) personal. _service, (ii) .Federal Express, Express Hail, or another like courier service, or iii
fiat class United States Mail { )registered or certified requested,' addressed as follows:p°stage prepaid, returned receipt If to Landlord:
Bell Gardens Redevelopment Agency
7100 S. Garfield Avenue
Bell Gardens, 'California 90.201
Attn: Executive Director
With a copy to: Brown).Winfield i Canzoneri, Inc.
300 South Grnd Avenue, Suitt 1500
Los 'AnIel•es,.. California 900713125
'Attn: Dennis Roy, Esq.
If to City: • City of Bei1 Gardens
7100 S. Garfield Avenue
Bell Gardens, California 90201
Attn: City Manager
With a copy to: Brown, Winfield i Canzoneri, Inc.
300 South Grand Avenue, Suite 1500
Los Angeles, California 90071-3125
Attn: Dennis Roy, Esq.
and, If to Tenant: BELL GARDENS ASSOCIATES,
a. California general partnership
#13 Corporate plaza, Suite 200
N%iport Beach, California 92660_
Attn: Fred Stem*ler, Esq.
Any such notices shall be deemed received upon the earlier of (i).actual receipt •or (ii) twenty-four
(24) hours deposited: with the , courier service or the United States e mail r ias provided above. The. person and the place to which- notices are to be mailed may be changed by either party by notice to the other.
16.3. Attorneys` Fees.
In the event that either Party brings any action or
files any proceeding in connection with the enforcement of its respective rights • under this Lease or as ..i consequence of any breach by the other Party 'of its obligations under this Lease, 0580D050.051/003 -56-
091389-14
Exhibit 2
269
CM$ 9043 1237
the prevailing Party .in such action or proceeding shall be entitled to have iti reasonable attorneys' fees and out-of-pocket expenditures paid by the losing Party:
16.4 Headings.
The headings used in this Lease art inserted for
reference purposes only and do not affect the interpretation of the terms and conditions hereof.
16.3 Rights of Successors.
A11.of the rights and obligations of the Parties under
this _Lease shall bind and inure. to the benefit of
respective heirs, successors'xnd mesa ns• their
at
nothing. fn this Section 16.5 shill be -Construed eor understoodtolimit - the provisions concerning restrictions' on Transfer set forth in Article 8 hereof.
16.6 Amendments in Writing.
This Lease cannot be orally amended or.modified. Any
modification Or amendment hereof must bt'in writing and signed by 'the Party to be charged.
16.7 Time of Essence.
Time is of the essence of each provision in this Lease.
16.8 Interpretation.
When the context and construction so require, all words used in the singular herein shall be -deemed to_have been used in the plural, and 'the masculine shill include the feminine and neuter and vice versa. The term parson,as used in' -this Agreement means a natural person, corporation,. association, partnership, organization, business, trust, individual, or a 'governmentalauthority, agency, instrumentalityor political subdivision, and whenever the word."day". or. "days" is used herein, such shall refer .to calendar day,. or days; unliss otherwise specifically provided herein. Shenever a reference is made herein to a particular Section of this Agreement, it shall mean and include all subsection: and subparts thereof.
16.9 Applicable Law; Severability'.
The interpretation and enforcement of this Lease shall
be governed by the laws of 'the State of California. Should any part; terra, portion. or prcvi=ion of this, Lease, 'or the applica- tion thereof to any 'p.erson dr circumstances .be held" to be illegal or in conflict with any Governmental Restrictions, or otherwise be rendered unenforceable' or ineffectu*I, the validity of the remaining parts, terms, portions or- provisions, or the 0580D050.051/003
'37- 091389-14
�944�,43 1238
1'DENTIAL
270
application thereof to other persons or circumstances, shall be deemed sa_verable and the ias;s shall remain enforceable and valid to the fullest extent permitted by lair:
16.10 Zxhibitj.
A11 exhibits referred to in this Lease Ire attached
hereto and incorporated herein by reference.
16.11 Waiver of Subrogation.
Landlord, City, and.Tenant hereby release the other and their- Representatives from any and all liability_ or responsibil- ity to the other or anyone clouting :through or 'under them by way of subrogation o'r otherwise for any Losses and Liabilities with respect 'to which-insurance`covertge is actually provided, even if such Lasses and_.Liabilities shall have been -caused by the fault 'or negligence of the other Party, or anyone for whom such Party may be responsible.
16.12 Attarnment b� Tenant.
In the event that Landlord. assigns its interest in the Leased Premises' or the Lease, Tensrit shall attorn to the assignee of Landlord, and shall recognize same at Landlord under- this Leas..
16.13 Short torm of Lease.
Concurrently with the execution of this Lease, the
Parties shall execute and thereafter: record with the County Recorder of Los Angeles County. 'a short fore lease- giving notice of the existence of this Lease aged the terse hereof.
16.14 Landlord's Rights of Inspection.
Landlord and its authorized -agents and representatives shall have the right- at any time and front time to time to enter upon the -Leased _Premises for purposes of (i) inspecting the same, (ii) .making any necessary repairs. thereto pursuant. to this Lease or taking',uch.other.actions ai may .b. authorized by the provi- aiona hereof, or -(iii) posting notices of non -responsibility in accordance with.iti rights under this Leas.. If Landlord, in its reasonable discretion,. determines that any work:Or materials are not in.confo-rmity.with any Plan,•approved pursuant to this Lease, any tpPlicable Governmental Restriction,, or any -other provisions of this Lease, L-and1ord-'gay - stop the work and order correction of any such work_ or seaterials 'Inspection b7. Landlord of .the Leased Premissa or• any ieaprovem:F;ts thereon is for the sole purpose of 'protecting , tht rights of . •..andlord -and is not to be construed as an' acknowledgment, acceptance-ar_ repres.n be:
construed
that
there his been compliance with any Plans, or -the DOA', or that the Leased Premises or arty. improvements. thereon' will be free of 0580D050.051/003
-58- 091389-14
Exhibit 2
CHB 9043 0i9
CONFIDENTIAL
faulty _materials or workmanship. Any holder of any encumbrance on any portion of the Leiced .Premises shall make or cause to be aide such other_ independent inspections 'as permitted by this Lease and as it deems nsc•asar7 for its own protection, and nothing centaihid herein shall be const;rued.as requiring Landlord 'to .construct are supervise construction of my improvements on the Leased Premiies or any portion thereof.
16.15 Nonmerger of Fee and Leasehold !1tates.
If both Landlord's and Tenant's estates in the Leased
Premises becocie :vested in 'the same owner other than by termination, •of this Lease by. Landlord, this "Lease shall not be terminated by application•of the.doctrine of merger except at the express ilection..of the owner and with the consent of any Lend- ir(s) on a Leasehold Mortgage.
16.16 Nonliabilit7 of Landlord and City Representatives. •
Neither the City nor any Landlord or City
Representatives shall be'p.rsonally. liable to Tenant, or any successor' in •in erest,. in the, event of any default or breach by the Landlord, or for any. 'imount 'Which may 'become due to the Tenant•or successor, or on any obligation under the terms of this Lease.
16.17 Counterparts.
This Lease Italy be executed in any number of coun-
terparts ,. etch of which shall .be deemed an original, and all of which shall constitute one and` thesame"instrument.
16.13 Authority.
Each person executing this Agreement on behalf of
Tenant and Landlord hereby represents and warrants (i) his authority to do so' on behalf of that Party, (ii) thee such authority hes been duly and validly conferred by Tenant's partners or Landlord's. officers, and (iii) that Tenant or Landlord, as appropriate, has'full right and authority to enter into this Lease.
16.1! Option to Purchase.
Subject to the following terms and conditions, Landlord grants to Tenant the option to, purchese'("Option to Purchase") the fee title to ths•Leesed Premises. The option to Purchase may only be exercised if tho .Tenant' is not. then in Default of -any "of eta obligations hereunder and'if they Lease is in full force and effect. _ Tenant shall have the _right to -exercise the Option to _Purchase at 'any time •during the first six months .of the Fifteenth (15th) Leese Tear of -the original Teri (tht "Option Period"). 05a0n050.051/003
-59- 091339-14
'•N+'RoI•I V.
Exhibit 2
272
CMS 9043 1240
Tenant shall exercise the Option by jiving written notice ("Option Notice") to Landlord within the Option Period.
Landlord and Tenant sha11.:have thirty (30) days after
Landlord recaivas -the Option Notice in which -to a;see on the purchase price for the- Leased Premises ("Purchase Price"). If -the Parties are unable to agree on the Purchase,. Price within the above thirty (30) day period, then within twenty•(20) days after the expiration of that period each Party-,- at its respective coat and by giving notice to the other art
qualified real estate a � party, shall appoint a
qualified real estate
cial appraisal
at least ten (10) years'
ppraisal experience in the Los Angeles area
to -appraise and set _t -he Purchase. Price. If a Party does not appoint an. appraiser within twenty.(20) days after the other party has given n otice of the. name of its appraiser, the single '..appraiser -appointed shall be the sole appraiser and shall set the Purchase Price. If the- two appraisers are appointed by the Parties a_s _ stated in this Section, ,the shill meet
and
attempt to sat the Purchase Price. Iftheyare unab m
le to agree
on the Purchase Price within thirty (30) days after the second appraiser has-been. appointed, they shall attempt to elect a third *ppraiser meeting the qualificati,'on1. 'stated in —this Section within ten (10) days 'after the list dsy the :.two appraisers are givento set'the Purchisa Price. If they are -unable to agree on the third -appraiser, either. of the Parties to this Lease by giving ten (10) -days' .notice to the other Party can apply to the superior -court of LOS Angeles Count'y,' for * the 'selection of a third appraiser who ' .meets .the..qualifications -stated in this kction.- Each of. the Parties. !hall bear -one half of the. cost of -ppointing the third- appraiser and- of paying the third appraiser's fee. The third appraiter, however selected, shall be a -Person who has not previously acted in any capacity- for either party.
Within thirty (30) days after the selection of the
third appraiser, the appriisera.shall complete their appraisal of the fair market value 'of .Leased Premise; and a majority of the appraisers shall- set the Purchase Price. If a majority of the appraiaars are unable to sat *the -Purchase Price within the 'stipulated period of time, the three appraisals shall be added together and their -total divided by three; the. resulting quotient shill be th_e Purchase Price; provided that, if the /ow sppraisal and/or the high appraisal. are/is siore than fifteen percent (151) lower and/or higher than'the middle appraisal, the low appraisal -and/or: the high appraisal shall be disregarded. If only one appraisal ii disregarded, the rer& inin*'two appraisals shall be .added'together and their total divided by two; the resulting quotient shall b'a the'Purchase Price. If both the low appraisal and the high.app rainel are disregarded as stated in this Section, the Biddle appraisal shall be the Purchase Price.
Section,
In appraising the Leased Premises as provided in this
appraisers shall not take into consideration the
•
;0D030.Q31/003
-b0` 091383-14
3 9043 1241
3NFOtirgRTIAL
273
existence of this Cease, unless the existence thereof results in a higher fair market value for the'Leased Premises.
After the Purchase. Price -for the Leased -Premises has been set, the appraisers shall immediately notity the Parties, The. Purchase 'Price shall be payable in Cash in lawful money of the United States to Landlord.by Tenant'thirty.(30) days after .said Purchase Price : is -established,. Upon payment of the Purchase Price plus .the then outstanding. balance of the Agency's Loan (including all accrued but unpaid interest thereon) within said thirty (30) day period, Landlord shall deliver to Tenant executed -grant deed, in the form'attached-hereto as Exhibit G, -conveying .the Leased' Premises "to the ' Tenant,. Rent shall ..prorated as of the -date of Tenant':t psyment of ,the. Purchase Price and the then outstanding balance of the Agency's Loan. Transfer taxes and recording fees on the deeds shall be paid by Tenant.
If the Improvements are totally or partially destroyed
.betceen.the date Tenant exercises its Option t� Purchase and the date: of Tenant's payment of the Purchase' Price, -Tenant shall- reitore. the Leased Premises pursuant to- Section 6.J. The destruction shall not affect this. option, the Tenant's exercise -of , the Option to Purchass-; th.: Purchiie Price of the Leased Premises,. or the data.for "transfer .thereof. Tenant shall not assign, transfer or otherwise' convey..its 'interest. ar an thereof, in the Option to -Purchase separately from the Leas tion, er
Upon conveyance of fee title to the Leased Premises
fro Landlord to :Tenant pursuant to this Section, this Lease 'Their terminate, and the Parties shall be released from all further liabilities and 'obligations under this Lease.
16.20 Guaranty of Tenant's Obligations.
Within the time set forth in the Schedule of
Performance, Developer shall provide Agency with a guaranty, in the Fors of Exhibit F attached hereto, duly executed by Stephen.
Hopkins ("Guarantor") in his individual capacity, by which Guarantor shall guaranty Tenant's performance of Tenant's obligations under this Lease.
16.21 Gas Station Parcel Easementt.
Tenant agrees that Landlord may.reserve from the Leased Premises. tore -exclusive ingress and egress easements for the benrf_it of the Gas Station Parcel, on and over the portion of the Site adjacent- to the' Gas Station .Parcel so as to enable public ace*ss to. the- Cai Station.Parcel• in connection with *its gas station use.. or other commercial use. If such casements are not reserved frail the .'conveyance of the Sits under the Ground Lease, Tenant agreti, promptly upon request by Landlord, to thereafter $rant such easement's, in for* and• content -acceptable to Landlord, as may be 'necessiry.or appropriate for operation of the Gas 0580D050.051/003
-61- 091389-14
Exhibit 2
CMS 904274,242
CONFIDENTIAL
Station Parcel: Tenant hereby
attorna7_ coupled with an interest,
nter st;ryes grants a polder
the event that Tenant fails to want such easements in
request by Landlord. execute such documents upon
16.22 0 's Harlot Relocat o
Tenant currently intends to sublease the market s
on the . Leased .Prepists referred. to. ,in the Scope of Development (the ."n;rk'eC spcce') to Ba s' pace
relocate its existing operations from iti •existin site nt {��Boy',s") which intends to
O1,
"Existing Site") within the. Ci.t� - s e
ane _hundred eighty T .to the ceases
Spac:. If, Within
ceases operati htyatl thedExistiner Bo7 ,s ceases or substantially cdeases d "Cessati.on L�venCs. does
the first der of the__first month Site, either n, the following not .occur, then, rand commencing the
first. day of each ant'h..thereeft:ereuntila a Cessatf nEvent occur, . ?errant each
continuing on the
Payment") equal to One Thou :nand Landlord. an sisount does {S1,b66.00 "Cessation and Sixty -Si= Dollaes r
)'- The terra Cessation Event" shall mean either:
tenant(s) (a) The issuance of occupancy permits) to a trail repla'cing Boy's it the Existing Site with respect
.to at least 19,300 square 'fief of . the 26,000 square feet comprising the Existing Site; or
(b) Surrender of the Existing Site to the owner
of the Existing .Sits and -the teiseinat'ion of the Boy's least now covering the Existing Site.
•
Lease as o the WITNESS
f t= WHEREOF, the
parties have executed this
above written.
TENANT:
BELL GARDENS ASSOCIATES,
a California general partnership
By: H0P1CZKS DEVELOPKENT C0KPAN;,
a -Delaware limited partne rship.P.,
General Partner
By: STEPHEN H0PKINS DEVEL.OttENT
COMPANY OP NEWPORT BEACH*
A . California corporation,
General Partner
By:
Stephen C. Hopkins,
President
P' '0D030.031/003
-62-
091389-14
Exhibit 2
275 CMS 9043 1243
CONFIDENTIAL
ATTEST:
B7:
D. Hopkin
ice President
By: HATTSHAN CORPORATION
a California corporation
General Partner
•
John D. Hopkin4, President
LANDLORD:
BELL GARDENS REDEVELOPMENT AGENCY
Claude L. Booker
Executive Director .
APPROVED AS TO FORM:
BROWN, '•INFIELD & CANZONERI, INC.
Landlord Attorney
By e% , j f✓
13 5. y Esq.
0580D030.051/0Q3
-63- 091389-14
Cep43 1244
ENTIAL
276
OBIT A
LEGAL, DFSCRLPTIOi;
'THAT PORTION OF LOT A OF TRACT NO. 3562,_YN 'THAT
ANGELP R ION OP CA AI OFT A, AS pE3 THE CITY OF BELL GARDENS, CO ES 4 STATE
o .MA RECORDED IN BOOK 38 PACE 38 OF RAPS OF LOS
LOTS
_THROUGH
11453, 'AS us1 IN BLOCK 1 . LOTS 1 SOUGH 6 INCLUSIVE , AC I -LOTS 5 At, 6 • MAP RECORDED IN BOOR 207, PAGES IN 8 OF PO ,, IN -BLOCK 2, LOTS 1 27 AND I OF MAPS, AND 2 TRACT
LOTS 6 ANDQU, I THROUGH 4 INCLUSIVE, IN'BLOCK 3 A PORTION OF .LOTS5 THROUGH 8, INCLUSIVE, AHD'ALL LOTS.:1 THROUGH 5 INCLUSIVE 3,
NND PORTIONS OF
INCLUSIVE, IN BLOC I, ALL.OF INCLUSIVE, IN BLOC 4
'IN BOOK 207 PAGES 29 AND 30 OP �pS'. TRACT ?t0. 11456, 'AS PER � � AND ALL ANGELES, STATE OP CALIFORNIA. r ALL IN THE CITY OF'BELL GARDTNS ECORDED o coCOt1NTY OF LOS
TOGETHER WITH. THOSE PORTIONS OF SPEC AyENUE
UNNAMED ar.ITH. HOSE F WITHIN , LUDELL STREET, . HAR.LOW AVE AND 28 E OF LAPS,"pii TRACTNO:. AS PER MAP RECORDED IN N0, PAGES D THE TRACT NO. MAP RECORDED IN Sfl7 27
11453. AS PER BOOK
,OF NAPS,. .�NI1 WITHIN LOT A OF.TRACT TRACT NO. 1� BOOK 207 PACES 29 OF MAPS, VACATED AS PER A OF . TRACT NO. .19 65 r .AS PER• HAP RECORDED IN AND 30 OFAPHA 11 , A CERTIFIED COPY Off' WHICH K 38 PAGE ON
8 198.4 !►S INSTRUMENT NO. 89-5551-60; OFFICIAL RECORDS O! SAID COUNTY WHICH IS HORS P RECORDED ARTICULARLy'DESCRIBED AS FOLLOWSL ALL OF
BEGINNING AT',THE NORTHEASTERLY
BG 40 AGES 11 NORTHEASTERLY
13, CORNER OF LOT 171 OF A RECORD OF SURVEY
IOOX 4 CTIOH OF T RECORDS OF :SAID C0tNi{TY,• •BRIO C , RECORDED IN HE WESTERLY LINE OF Rm W BEING I THE
SOUTHg�;Y.LIH$ OF LUBEC ST EASTERN AVENUE, 140.40 FEET WIDE, WITH
THENCE SOUTHERLY
. REET'• 6Q' 00_ FEET .WIDE, AS "SHOWN ON SAID THE
NORTH 82 DEGREES -27 MINUTES 52 SECONDS RECORD LOFI SURVEY FEET TO TF{E INTERSECTION WI � WEST,. ALANG SAID SO '
FEET TO
OI SAID TH•�•WESTERLY LINE OF SOUTHERLY 130, LINE, 595.09 RECORD OF SURVEY 06 DEGREES 124 THROUGH LOT
"EST ALONG SAID , THE14C$ .SOUTH 42 MINUTES 25 SECONDS
WESTERLY LINE .545030 FEET'TO THE, S0
ENCE NORTH 82 DEGREES 29 MINUTES -59. SECONDS UTHWEST CORNER or SAID a23 NOTSAID-RECORD2 E OF SURVEY WEST �ALCNG TEE SO LINE oO 124,
10.01 FEET SOUTHERLY LO OF LOT
SAID TRACT 11456; THENCE SOUTH, Ofi DEGREEST42� NORTHEAST CORNER OF LOT 1, BLOCK SAIDETRA LINE OP LTHE 1 NUTES'25 SECONDS E1 OF
EASTERLY
or 307.2L9 THROUGH.4,•BLOCK-1, INCLUSIVE WEST, ALONG AHE
DIET DISTANCE
3 FEET TO A POINT IN.THE INCLUSIVE, SAID TRACT 11456, RC A ACE 45, OFFICIAL• •SSi3'I'HHSST'EALY LINE Or A DEED RECORDED IN BOOK
R2619, 2 27 SECONDS 4 EAOF RECORDS, -OF SAID COUNTY; THENCE SOUTH 37 DEGREES 10 MNORTHERLY LINE SC OF , ALONG SAID LAST MENTIONED LIKE, 64.22 LOT 4; BLOCK 2, by SAID FEET 82 A DEGREESF 3IN6 THE
MINUTES 10 SECONDS EAST, ALONG SAID NORTHERLY LINE, 6.47 FEET TO H 82 ST 36 CORNER OF LOT 5, BLOCK 2, OF SAID TRACT 11456 THENCE SO THE NORTHWESTERLY SECONDS EAST ALONG ; a
THE COMMON. LINE OF SAID LOT ' 4 " SOUTH.06 DEGREES C 42 O MINUTES 0 2 5 TO '� POINT_IN THE NORTHEASTERLY LINE OF - AND.LOT 5, A DISTANCE OF 0.09 FEET TOJANAI�PO •N, IN5T IN' A DEED TO THE STATE OF CALIFORNIA 33 DER?. BOCK D322,.PAGE 360, OFFICIAL RECORDS O1r'SAID CO RECORDED NC
ES 26 HINUTES 28 SECONDS EAST ALONG SAID NOR , 2'1 207.78 FEE 50U;:? THENCE SOUTH 29 DEGREES 31 HI, NORTHEASTERLY LINE, FEET; THE NORTHEASTERLY MINUTES 34 SECONDS EAST 101.51 FEET TO AN ANGLE POINT IN LINE OF.A DEED.TO THE STATE OF
.CALIFORNIA BOOK D430,. PAGE. 199, OFFICIAL ` . CALIFORNIA RECORDED APRIL 10, 1959 IN S OK DI30, RECORDS or SAID COUNTY; THENCE CONTINUING ALONG SAID LINE'SOUTH 33 DEGREES 06 MINUTES 41 SECONDS EAST 165.93 FEET; THENCE SOUTH 61 DEGREES.41 MINUTES 30 SECONDS EAST 57.28 FEET TO THE SOUTHEASTERLY LOT 6, BLOCK 4, OF SAID TRACT 11456 SAID CO CORNER OF
THENCFLORENCE AVENUE, 100.00 FEET WIDE AS SHOW?e' UNSAID TRACTBEI11455 NG IN A.NDD NORTHERLY ,HENCE SOUTH 8Z DECREES 36, MINUTES lfl SECONDS EAST, THERLY LINE OF E
SAID TONED 11453;
RLY LINE, 183.58 FEET TO- .. ALONG SAID LAST MENTIONED
CRRTH 11453 THE SOUTHEASTERLY CORNER OF LOT 6, BLOCK 2, OF SAID 1 THENCE NORTH 52 DEGREES 03 MINUTES 08 SECONDS EAST, ALONG THE 3OtTi'HEASTEAt,Y LINE OF SAID LOT 6
IF SAID EASTERN AVENUE A SHOWN' A DISTANCE OF 23.90 FEET TO A POINT IN THE WESTERL Y
.IEEE 25 SECONDS EAST, ALONG SAD WESTERLY LINE 1264.95 FEETCT 11453; CTOE NTHEH 06 DEGREES 42 1EGINNING. THE POINT OF
Exhibit 2
277
EXHIBIT B
SITE PLAN
•
•
Ot050.051/003[65]
278
091389-14
Summary
Laid 11s. 111C I2r1,a22si
Building 100.942st
Land/Wdg O.ao/1
4O
c
PARKING SUMMARY
RETAIL
SHOPS
DRUG
RETAIL
MARKET
RETAIL
PAD A 14. 2I2 .n ul I
PAD 0
PA D C IM.IFI.MYI
PAD D I I.s I.4.,u.1 J
PAD E
PAD F
PAD G
10,000 s.r. - 33
32,2223.P, •• a2
10,222 9ff. 40
2.414 LF. 14
22.0242.2. 133
Ia,OOO IF. 48
4.200 S F. 14......4 I 49
3,900 L P, 0
3,321 CFA i. I..I. I 20
3.209 S. I. I.. r. Ii J 20
2,2OOIJ, 7
7,490 SF, 9
2.400 S.F. •- 9
PARKING REQUIRED
PARKING PROVIDED
PARKING RATIO
\o.
7, 140 31 .4
R TAIL e
1000031.
, ti E.•IIT) 8
422
292
4.22 iii
Py�•
LO AOJMG
r4�-ya__.;
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7b96sr. Z6OO1 .1%
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5 VICINITY MAP
o
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r
C pACTQA pan
1 1��1115111;
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Mafi
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EASTE RN AVE . two ss
t.
LEASE PLAN
Nev
.RECAJL
2.000 S .F .
i 4P ,0210
TLOM
ALL s0a zuW OO, a16P NOY[WEHTL. TiaN OCCUPAMTs
AND 7040 Wits AS SIIOwd Od TJ L. rLAII ARC
Summer= 11o 0IPJCATO M AT PIZ OWNE R'S
O1S C7ffiTOOM WITHOUT NOTICE;
•
w
EXHIBIT C
SCOPE OF DEVELOPMENT
I• GENERAL DESCRIPTION
The Leased Premises contain 55 parcels totaling
approximately 15 acres. The parcels are to be consolidated into. a single legal lot in connection with its redevelopment as provided, herein. . The Leased Premises are located in the Bell Gardens Central City Redevelopment Project Area. The project area contains approximately 4Q acres and allows for various uses -within its boundaries, including
medical/professional uses,_•medium density residential use, and freeway' oriented commercial development. The Leased Premises are 'generally' bounded by Florence Avenue on the south, Eastern Avenue on the east, Specht Avenue on the west, and Lubec Street on the north. The Leased -Premises are in ,need of redevelopment, as .they are currently
characterized by obsolescent and deteriorating structures and inadequate ' circulation and •infrastructure. The • redevelopment of the Leased Premises in accordance with the DDA and the Lease will, serve 'as a catalyst for further redevelopment cif surrounding areas; while creating addi- tional revenues .to Landlord and City, increased employment opportunities to residents of City and surrounding areas, and an enhanced business and social environment.
II. DESIGN OBJECTIVES
Following is a statement of design objectives for develop- ment of the Leased Premises:
The creation of a high quality commercial retail center reflecting concern for architectural and urban design
principles both in terms of the development itself and
its compatibility with the Bell Gardens -Central City
Redevelopment Project Area and the surrounding communi- ty.
III. SITE PREPARATION AND DEMOLITION
A. Demolition. Tenant shall, at its sole 'cost and
expense, and without expense to Landlord, prepare the
Leased Premises for redevelopment as contemplated
herein.' Such preparation of the Leased Premises shall
include, without limitation, the following:
1. Remove or relocate existing utility services,
water, sewer, electrical, and gas lines, and
streets, curbs, gutter, and sidewalks as necessary
to allow redevelopment of the Leased Premises as
required by the DDA and the Lease.
Exhibit 2
0580D050.051/003[66] 091389-14
280
2. Complete grading and preparation necessary to
provide for redevelopment of the Leased Premises
as required by the DDA and the Lease.
3. Alldemolition work undertaken by Tenant shall be
performed iri accordance with all applicable
Governmental Restrictions: -
IV. DEVELOPER IMPROVEMENTS
A. Tenant shall construct or cause to be constructed the following' Tenant Improvements:
1. Construction and operation of a first-class,
neighborhood. shopping center containing approxi-
mately 155,000 square feet, and comprised of:
a) A market containing approximately 44,600
square feet;
b) A drug store containing approximately 18,000
square feet;
c) :Two other major retail spaces containing a
total of approximately 35,000 square feet;
d) Satellite retail shops containing approxi-
mately 43,000 square feet of floor area; and
e) Restaurant, retail and/or financial pad uses
of approximately 15,000 square feet.
The above improvements are more specifically
depicted on the Site Plan.
The Shopping Center shall have a Construction Cost
of not less than $5,000,000. "Construction Cost"
shall mean the direct, out of pocket costs of
constructing the Shopping Center shell, installing
the furniture and fixtures therein, and installing
the landscaping and parking improvements on the
Leased Premises. "Construction Cost" shall not
include any other costs related.- to the
improvements at issue, such as operating costs, or
any indirect or soft costs, including, but a
limited to, architectural, legal, or engineering
fees, inspec nnec ion ees, ran his:
fees, interest reserve, loan fees, pre -opening
costs, contingency reserves, or developer's fees.
Tenant anticipates that, upon completion, the
Shopping Center will have an assessed value of at
least $12,000,000.
E'' HD050. 051 / 003 [ 67 ]
281
091389-14
2. Parking for_not less than 650 passenger cars and
'as provided in the Site Plan will be provided.
V. PUBLIC IMPROVEMENTS
A. Tenant., At Tenant's expense, shall be. required to
provide or cause. to be provided certain public improve- ments (as necessary for the 'project) within the
time
set forth for completion of such improvements in the
Schedule of Performance, including, but not limited to:
1. Replotting or resubdivision of the Leased
Premises, if necessary.
2. Improvements %s required by Cit73) consisting of
resurfacing, rebuilding, and/or replacement of
. existing streets, alleys, or other public
.rights -of -way (including catch basins, curbs and
gutters, drives and curb cuts, and drives between
the property line of the Leased Premises and the
public 'rights -of -way) abutting on the -Leased
Premises, and any other off -site or- on -site
improvement's required of Tenant by the Tentative
or Final Subdivision Map.
3. Installation of public sidewalks along the front-
age of the public streets abutting on the Leased
Premises -or within the rights -of -way sines of such
public streets and appropriate street landscaping
as required by City.
4. Installation or relocation of sewers, drains,
water and gas distribution lines, electric,
telephone and telegraph lines, and other public
utility lines, installations, and facilities as
are necessary to be installed or relocated in
connection with the redevelopment of .the Leased
Premises.
5. Removal of all abandoned driveway approaches.
6. Removal and replacement of damaged or below
standard sidewalks.
7.' Removal and replacement of damaged or below .
standard curbs and gutters.
8. Plant street trees as required by City.
9. Removal and/or replacement of any public works
improvements damaged during construction of the
Shopping Center.
282
Exh d0D05O.O51/003[68]
091389--14
B.
10. Relocation or installation of street lights.
.11. Installation of the Street Improvements, Waterline Improvements' and Sanitary Sewer and Storm Drain
Improvements which are more specifically described
on' that certain Construction Estimate, dated
March 11, 1988, Job No. SP1764, prepared by Tait &
Associates, Inc.
All of Items 1 to 11 inclusive of Paragraph V.A shall
be performed in accordance with 'the technical specifi- cations, standards, and requirements of, and under the
direction of the City .Engineer.. Once such items are
constructed, Tenant shall be responsible at its expense for (1) any and all -repairs due to damage caused by
Tenant's construction, and (2) changes' required by
Tenant.
C. Landlord does not and cannot stipulate to the -require- ments of other. public and quasi -public agencies (i.e., gas, electric and telephone).
D. It is understood that construction of the above public improvements may require the incurring of costs for
engineering, design work, supervision of construction
and inspection, and that these items will also be at
the expense of Tenant.
VI. DEVELOPMENT STANDARDS
A. Building Setbacks. Minimum building setbacks for
buildings and parking areas, and enhancement of these
areas with landscaping, shall be as required by the
Bell Gardens Municipal Code.
B. Building Coverage. The amount of land within the
Leased Premises covered by buildings shall be as
required by the Redevelopment Plan and City.
C. Building Height. The building height limitation shall be in accordance with the Bell Gardens Municipal Code.
D.- Vehicular Access. The placement of vehicular•driveways shall be coordinated with the needs of proper street
traffic flow. In the interest of minimizing traffic
congestion, City will control the number and location
of curb breaks for access to the Leased Premises for
off-street parking and truck loading.
E. Signs. The height, size, location, color, lighting and design of signs will be subject to Landlord/City
approval and shall comply with all applicable
Governmental Restrictions.
Exhibit$OD050.051/003[69]
283
091389-14.
F.
Outdoor Stara e. No outdoor storage of materials or
equipment shall be permitted.
G. .Landsca in Tenant shall provide and 'maintain
landscaping within the public rights -of -way and within setback area along all street frontages.. Tenant shall
provide landscaping in areas shown on the Site Plait and shall maintain and .automatically irrigate such
landscaping.
Lands-caping shall consist of trees, shrubs and instal- lation of an irrigation _system adequate to maintain
such plant material. The type 'and size of trees to be
planted, together with the .landscaping plan, shall be
subject to Landlord/City approval prior.to planting.
H. Utilities. All utilities on the Leased Premises shall be underground or enclosed'at Tenant's expense. No
meters or other mechanical equipment shall be exposed
in yard areas or on any roof.
I. Buildin Desi n. Each structure shall be constructed
.such that -the design of the building reflects a high
quality of. development consistent with the purposes of the Lease ' and the DDA and in conformance with all
applicable Governmental Restrictions.
J. Standards. The criteria and standards established by the Redevelopment Plan are hereby incorporated as a
part of this Lease. In no case is Tenant relieved of
the requirements of the Plan or of any applicable
Governmental Restrictions.
K. Service Area, All refuse shall be kept in enclosed
containers stored in masonry enclosures readily acces-
sible to off-street loading and servicing and/or kept
in enclosed containers stored within building(s).
L.- Codes. The project shall be developed in accordance with all applicable Building Codes.
VII. AGENCY IMPROVEMENTS
A. Subject to the terms and conditions set forth in the DDA, Landlord shall be responsible for site acqui-
sition, and the relocation of all private persons from
the Leased Premises.
B.
Landlord shall also be responsible, prior to conveyance of the Leased Premises to Tenant, for -demolition of any structures. on the Leased Premises as follows: each
Parcel shall be cleared, on a Parcel by Parcel basis,
of all existing structures thereon, including fences,
Exha.580DOS0.0S1/003[70] 284
091389-14
signs, buildings, and walls, and all known foundation
and structures located below grade'associated with the
-above.
-
C. The. relocation . and demolition obligations described above shall be completed in a two-step process. The first step .shall.be completed prior to Tenant's exercise of the Option to Lease set forth in the )20A.and shall consist of comple- tion of the 'above Landlord relocation and demolition
obligations with respect to the portion of the Leased
Premises identified as Phase 1 on the Site Plan. The second step shall be completed within three (3) months after
Tenant's exercise' of the Option to Lease. and shall consist of completion of -the Landlord relocation and demolition obligations with respect to the balance of the Leased
Premises as depicted on the Site Plan.
Exhibit 2 285
0580D050.051/003[71] 091389-14
EXHIBIT D
SCHEDULE OF PERFORMANCE
1. 2.
3. 4.
ACTION
Executjon and Deliver of
A raement and 0 tion Fee b
j. W ant . ` Tenant
shall execute and deliver 3
copies of the DDA to
Agency and shall pay a $150,000
Developer's Fee to Landlord in
the form of cash or cashier's
check. The remainder of the
Developer's Fee shall be paid
at the time set forth in
Section 3.1 of the DDA.
A roval and Execution of
A reement b Landlord
Landlord shall hold a
hearing to authorize execu-
tion of the DDA by Landlord,
and,, if so authorized,
Landlord shall execute and
deliver the DDA to the
Tenant.
Submission -- Tenant
Submits A lication for
General. Plan Amendment,
Redev'elo tnent Plan Amend--
' ment ' Zonin Chan e CUP
and' Tentative Parcel Mao. Etc.
Tenant shall submit all
documentation required by
Landlord/City to process all
necessary land use approvals
for the Leased Premises.
A royal. --- General Plan
±&iendment Redevelo meet
Plan Amendment, Zoning
Chan a Tentative Parcel
Ma CUP Etc. City
acts to approve or disapprove
General Plan Amendment and
DATE
Within 45 days after the
Tenantexecutes .the .DDA
• and delivers it to Landlord
(Event 1)
Within 45 days after
Landlord/City execution of
the DDA. (Event 2)
Within 30 days after
submission of applications.
(Event 3)
05802D050.051/003[72]
Exhibit
26 .091389-1.4
ACTION
Zoning Change and approve,._
conditionally approve, or
disapprove the tentative
parcel map, any conditional
use permit, and etc. -
5. Exercise of Landlord's Right
-'to include `Gas Station Parcel
as"a -Part of the Site;
Submission Amended Site
Plan. Landlord may in its
sole discretion, exercise
its right to include the
Gas Station Parcel, and the
Tenant shall, within
fifteen (15) days there-
after, submit an Amended
Site Plan.
6. 7.
8. Submission -- Preliminary
Construction Drawings,
Landscape and Grading
Plans; Approval Amended_
Site Plan. Tenant
shall prepare and submit
to Landlord preliminary con-
struction drawings, and
preliminary landscape and
grading plans. Landlord
shall approve or dis-
approve the Amended Site
Plan within thirty (30)
days after the submission
of that Plan by Tenant.
Approval -- Preliminary
Construction Drawings,
Landscape and Grading Plans.
Landlord shall approve or
disapprove the preliminary
construction drawings,
landscape and grading plans.
Submission -- Evidence of
Equity Capital and Mortgage
Financing. Tenant
shall submit to Landlord
evidence of a Construction
Commitment from a Construc-
tion Lender and Permanent
Loan Commitment from a
DATE
Within 150 days after Land-
lord execution of Agreement.
(Event. 2)
Within 90 Days after Landlord
execution of Agreement.
(Event 2)
Within 30 days after
receipt by Landlord/City.
(Event 6)
As soon as possible after
execution of Agreement by
Landlord but not later
than 90 days following
approval by City of land
use approvals. (Event 4)
.Exhia 80D050.051/003[73]
287
091389-14
ACTION
Permanent Lender consistent
with the requirements of the
Agreement.
9. A ravai -- Evidence of
Equity Capital and Mortgage
Finances, = Landlord shall
approve or disapprove
Tenant's evidence of
a Construction Commitment
from a Construction Lender
and Permanent Loan Commit-
ment from a Permanent Lender
consistent with the require-
ments of the DDA.
10. 1L
Submission -- Final Con-
struction Drawings and
.Site —Development Plans,
Finish Landscape and Grading
Plan,- and proposed CC&Rs for
the Leased Premises. Tenant
shall prepare and submit to
Landlord/City all final
construction•drawings and
specifications, site
development plans, finish
grading and final landscape
plans necessary to secure
those building and grading
permits from City required
to construct Tenant
Improvements, and shall
submit the proposed CC&Rs
for the Leased Premises.
Approval a- Final Drawings
and Plans and CC&Rs. The
Landlord/City shall approve
• or disapprove the final con-
• struction drawings and
specifications, site
development plans, final
landscaping plan, finish.
grading plan and CC&Rs.
12. Final Parcel Map, Landlord/
City approves Final Parcel
Map and Landlord records map.
DATE
Within 30 days after
receipt by Landlord.
,(Event 8)
Not later than 60 days after
Landlord approves Preliminary
Drawings (Event 7).
30 days after receipt by
Landlord.
(Event 10)
Within 60 days after
approval of Final Plans
CC&Rs (Event 11)
&
Exhibi 8ODO5O. 051/003 [74 ]
288
091389-14
ACTION
13• Submission _- Construction_
Contract and General.
Contract"or • Tenant
shall submit binding
contracts concerning the
Construction Contract and
General Contractor.
14. A roval -- Construction
Contract and General
Contractor. Landlord
shall•approve, or disapprove
Tenant's evidence of a
Construction Contract and
General. Contractor
15. Ne otiation of Ac uasition.
Landlord attempts to negoti-
ate acquisition of privately
owned Parcels.
16. 17.
18. Eminent Domain Action (if
ndcessar ). :Landlord deter-
mines whether. it will be
necessary to exercise power
of eminent domain to acquire
privately owned Parcels. If
decision is made to proceed
with condemnation, condem-
nation action(s) filed.
Landlord Obtains Possession
and or Title to All Parcels.
Landlord'obtains.title and/or
orders for prejudgment
possession as to Parcels
being condemned -and title
to the remaining Parcels.
Exercise of 0 tion and
Execution of Lease.
Tenant may exercise the
Option and enter into the
Ground Lease. Landlord shall
deliver title and/or
right to possession of
the Leased Premises.
DATE
Within 30 days after Landlord
approves Final Construction
Drawings. (Event 11)
Within 30 days of receipt
by Landlord. (Event 13)
Within 180 days after
execution of the DDA by
Landlord/City. (Event 2)
Within 180 days after
commencement of negotiation
period. (Event 15)
Within 150 days after
commencement of eminent
domain action(s).
(Event 16)
Within the earlier of (i)
thirty (30) days. after satis-
faction of all conditions to
exercise of Option to Lease
contained in the DDA includ-
ing the occurrence of Event
17, and the securing of Land-
lord approval with respect
l5§ .50.051/003[75]
289
091389-14
19. ACTION
Submission -- Certificates
of Insurance. Tenant
shall furnish to Landlord/
City a duplicate original or
certificate of bodily injury
and property damage insurance
policies, contractor's
workers' compensation
insurance, and builder's
risk insurance in accordance
with the requirements of the
DDA and the Lease.
20• Commencement of Construc-
tion. Tenant shall
commence construction of
improvements on the Leased
Premises.
21. Completion of Construction.
Tenant shall complete
construction of the
improvements on the
Leased Premises.
•
22.. Issuance -- Certificate of
.Compaction. Landlord shall
furnish Tenant with a
Certificate of Completion
in .accordance with the
requirements of the
DDA and the Lease
DATE
to the mr,tters referenced in
Events 9, 11, and 14, or (ii)
four' (4) months after
Land1o"rd obtains the right to
possession and/or title to
all parcels (Event 17). If
the Option is not exercised
by the earlier of these two
deadlines it shall expire
as provided in Section 5.3
of the DDA. (Event 17) •
Prior to or concurrent with
execution of Ground Lease.
(Event 18)
Within 60 days after
exercise of the Option.
Within 12 months after
commencement of
construction. (Event 20)
Promptly after satisfactory
_completion of all
construction required to be
completed by Tenant
on the Leased Premises and
upon written request
therefor by Tenant.
(Event 21)
M801)050.051/003[763
290
091389-14
EXHIBIT E
ESTOPPEL CERTIFICATE
STATEMENT OF TENANT
The undersigned, as -tenant; under that lease dated
maLandlord, hereby certifies as as follows: as
(1) That the undersigned has entered into occupancy of
the premises described in said lease;
(2) That said lease is in full force and effect and
has not been assigned, modified, supplemented or amended in any way, except as follows:
(3) That the Effective Date of said lease is
(4) That there is an unexpired term"lhereunder of
years.
That all conditions of said lease to be performed
by Landlord and necessary to the enforceability of said lease have been satisfied;
(6) That there are no defaults by either Tenant or
Landlord thereunder;
(7) That no rents have been prepaid, other than as
provided in said lease; and
(8) That on this date there are no existing defenses
or offsets which the undersigned has against the enforcement of said lease by Landlord.
The undersigned hereby agrees:
(1) To disclaim all right, title or interest in said
premises except the rights granted by said lease; and
(2) To give to the .holder of any mortgage affecting
the Leased Premises, or its assignee, the same right as the ExhiMOD050.051/003[7i] 291 091389-14
•andlord has to cure any default complained of in any notice or remand.
EXECUTED THIS � day of
19�.
Tenant
By
By
RAAR050.051 j003[ i8 ] 292. 091389-14
EXHIBIT F
GJARANTY.OF LEASE
WHEREAS, the Redevelopment Agency of the City of Bell
Gardens ("Landlord") and Bell Gardens Associates, a California general partnership ("Tenant") have- entered into that Certain Ground Lease ("Lease") dated as of
, 1989; and
WHEREAS, as an inducement to Landlord's execution of
the Lease, the undersigned have agreed to guarantee the full performance of the obligations of Tenant thereunder.
NOW, THEREFORE, in consideration of the execution of
said Lease by Landlord, the undersigned, ("Guarantor") -hereby unconditionally guarantees the full performance of each and all of the terms' and 'conditions thereof, as it may be amended hereafter: from time to time, to be kept and perfcrmed by said Tenant, including the payment of all Surds and other charges that may accrue thereunder. Guarantor further. agrees as follows:
1. This covenant and agreement on the part of Guaran-
tor shall continue: in favor of_ Landlord notwithstanding any extension, modification,or alteration of said Lease entered into by and between the ',parties thereto, or their successors or assigns, or notwithstanding any assignment of said Lease, with or without the consent of -Landlord, and no extension, modif4--ation, alteration or assignment of the above-referred'to Lease shall in. any manner release or discharge the undersigned, and Guarantor does hereby consent thereto.
2. Guarantor waives the benefit of any statute of
limitations affecting Guarantor's liability under this Guaranty.
3. This Guaranty will continue unchanged by any
bankruptcy, reorganization or insolvency of Tenant or any successor or assignee thereof or by any disaffirmance or abandon- ment by a trustee of Tenant.
4. Landlord may, at its election, exercise any right
or remedy it may have against Tenant or any security held by Landlord, including without limitation the right to•foreclose upon any such security by judicial or nonjudicial sale, without affecting or impairing in any way the liability of Guarantor hereunder. except to the extent the indebtedness has been paid, and Guarantor waives any defense arising out of the absence, impairment or loss of any right or remedy of Guarantor against Tenant or any such security, whether resulting from such election by Landlord, or otherwise. Guarantor -waives any defense arising by reason of any disability or other defense of Tenant or by reason of the cessation from any cause whatsoever of the liability of Tenant. Until all indebtedness of Tenant to Exhi�t5280D050.051J003 [ 79 ] 293
091389-14
Landlord shall have been paid in full, even though such indebted_ nes.s is in excess of Guarantor's liability hereunder, Guarantor ,shall have no right of subrogation, and waives- any right .enforce any remedy "which Landlord now has or may-hereafter a to
'against Tenant, and waives 'any . benefit of, and
d hanea rig to
have
participate:in any security now or hereafter held by Landlord.
Guai-ant:or waives all
_notices'of nonperformanCeresentments, demands for performance,of • dishonoi, and alotices 'of racceptanceot of this Guaranty and protest, notices the existence, creation, or incurring- of new or additional indebtedness. Guarantoj. assumes' -the responsibility for being keeping himself informed of the financial condition of Tenant and of all other circumstances bearing upon the risk of nonpayment ond f
the indebtedness which diligent inquiry would reveal, and agrees that absent a request for such -information by Guarantor, Landlord -shall-have no duty to advise Guarantor of information known to it regarding such condition or any such circumstances.
expressly 5. Any married person who signs this Guaranty p y agrees that recourse may be had against his orerher separate property and any community
may be manager for all obligations under
pthis Guaranty. ert of which he or she
.6. Guarantor agrees to provide d finacial
statements from time; to time upon request, not nmore oftennthan yearly, and represents: and warrants that all financial statements so provided accurately reflect -Guarantor's then current financial condition.
7. Landlord may, without notice, assign this Guaranty
of Lease in whole or in part, and no assignment or transfer o the Lease shall operate to extinguish or diminish the liability of the Guarantor hereunder. y
8. The liability of the Guarantor under this Guaranty
of Lease shall be primary, at. Landlord's election; and in any right of action which shall accrue to Landlord under the Lease, Landlord may, at its option, proceedagainstGuarantor without having commenced any action, or having
obtained any
against Tenant. The obligations hereunder are Joint and sevseveral, and independent of Tenant's obligations, eral,
9. Guarantor shall pay Landlord's
ble
attorneys' fees and all costs and other expenses incurred sinaany
litigation related hereto relative to the obligations hereby guaranteed, or in enforcing this Guaranty of Lease against Guarantor individually and Jointly,
10. Guarantor does hereby waive the following:
(a) notice of any demand by Landlord;
0580D050.051/003[80]
Exhibit 2
294
091389-14 •
(b) notice of default in the payment of rent or
Y ,cher amount contained or reserved in•.the Lease;
(c) the requirement; if any, •that 'Landlord
pceed against Tenant, including any requirement that Landlord :taust any security that Landlord holds from Tenant;
(d). the requirement, if any, that Landlord pursue
f other remedy in Landlord's power;
(e)
notice of amendments to the Lease; and
(f) notice of any adverse condition or circum-
ince, whether or•not Landlord is aware of such.
11. The use of the singular herein shall include the
tral. The terms and provisions of- this Guaranty shall be tding upon and inure to the benefit of the respective succes- 's and assigns of Guarantor and Landlord. This Guaranty may be modified of cancelled except by a writing signed by
dlord.
12. If any provision of this Guaranty shall be deter-
ed to be void by' any court of competent jurisdiction, then h determination shall not affect any other
x'�-ty and all' such -other provisionsr of .this
:ect; and it is the intention of the -parties n full in heretothatrif
provision of this Guaranty is capable of two constructions, y one of which would render the provision -valid, then the vision shall have the meaning which renders it valid.
13. The obligations of Guarantor hereunder shall
ain in full force and effect notwithstanding any assignment, e, encumbrance, conveyance or -transfer of the Lease and/or the perty subject to the Lease.
14. This Guaranty is not intended, nor shall it be
ned to amend, modify, limit, supersede nor affect any other •
}Dp p51/003[81]
295
091389-14
SPOUSE'S CONSENT AND WAIVER
OF
COMMUNITY PROPERTY RIGHTS
WITH RESPECT TO
GUARANTY OF LEASE
I hereby acknowledge that I have read and understand
the contents of that certain Guaranty of Ground Lease ("Guaran- ty") dated as of , 19 , given by my spouse,
, to the Redevelopment Agency of the City of
Bell Gardens ("Agency") to secure that certain Ground Lease ("Lease") dated as of , 19_, between Agency and
Hopkins Development Co., LP, a Delaware limited partnership.
I hereby give my full, unconditional and unequivocal
consent to my spouse's Guaranty of the Lease, and agree that all of our community property, including my interest therein, shall be available to Agency, if needed, to satisfy any and all claims, losses, liabilities and obligations to Agency pursuant to the Guaranty. I agree that all of our community property including my interest therein shall be subject to execution with respect to any lawsuit brought or judgment obtained by Agency in connection with the Guaranty, and I waive any and all rights that I might have to object thereto.
I further agree that Agency shall have the same rights
with respect to my one-half interest in our community property as it has with respect to my spouse's property, taking into full account all liabilities, obligations, covenants, conditions, waivers and other provisions contained in the Guaranty, to the same extent as if I had executed the Guaranty, and that this consent and waiver shall be in addition to and not in derogation of the rights that are otherwise available to Agency as a matter of law.
Dated:
(Signature)
(Print Name)
D:0580a014.032/003
-82- 050388-27
Exhibit 2 296
SPOUSE'S CONSENT AND WAIVER
OF°
CO UNITY PROPERTY RIGHTS
WITH RESPECT TO
GUARANTY OF LEASE
I hereby acknowledge that I have read and understand
the contents 'of that certain Guaranty of Ground Lease
( "Guaranty") dated, as of , 19 , given by my spouse,
, to the Redevelopment Agency of City of Bell
Gardens ("Landlord") to secure that certain Ground Lease ("Lease") dated as of 1989, between Landlord and
Bell Gardens Associates, a California general partnership.
I hereby give my full, unconditional and unequivocal
consent to my spouse's Guaranty of the Lease, and agree that all of our .community property, including .ny interest therein, shall be available to Landlord, if needed, to satisfy any and all claims, losses, liabilities and obligations to Landlord pursuant to the Guaranty. I agree that all of our community property including my interest therein shall be subject to execution with respect to any lawsuit brought or judgment obtained by Landlord in. connection with the Guaranty, and I waive any and all rights that I might have t� object thereto.
I further agree that Landlord shall have the same
rights with respect to my one-half interest in our community property as it has with respect to my spouse's property, taking. into full account all liabilities, obligations, covenants, conditions, waivers and other provisions contained in .the Guaranty', to the same extent as if I had executed the Guaranty, and that this consent and waiver shall be in addition to and not in derogation of the rights that are otherwise available to Landlord as a matter of law.
Dated:
(Signature)
(Print Name)
Exhibit J580D050.051/O03 [ 83 ] 297
O91389-14
EXHIBIT G
RECORDING REQUESTED BY: )
BELL GARDENS REDEVELOPMENT AGENCY )
)
AFTER RECORDATION, MAIL TO: )
)
BROWN, WINFIELD & CANZONERI, INC. )
)
300 South Grand Avenue, Suite 1500 )
Los Angeles, California 90071 )
Attention: Dennis Roy, Esq. )
MAIL TAX STATEMENTS TO: )
)
HOPKINS DEVELOPMENT CO., LP, )
)
a Delaware limited partnership
#13 Corporate Plaza, Suite 200 )
)
Newport Beach, California 92660
)
GRANT DEED
For valuable consideration, the receipt of which is
hereby acknowledged,
THE BELL GARDENS REDEVELOPMENT AGENCY (herein called
"Grantor"), a public body, corporate -and politic, of the State of California, acting to carry out the Redevelopment Plan for the Central City Redevelopment Project Area (herein called "Redevel- opment Plan"), under the Community Redevelopment Law of the State of California, hereby grants to BELL GARDENS ASSOCIATES, a California general partnership, (herein called "Grantee"), the real property (the "Site") legally described in the document attached hereto, labeled Exhibit A, and incorporated herein by this reference.
1. The Site is conveyed subject to the Redevelopment Plan and pursuant to a Disposition and Development Agreement (the "DDA") entered into by and between Grantor and Grantee's predecessor, and dated as of May 23, 1988 and a ground lease ("Ground Lease"). entered into by and between Grantor and Grantee and dated as of 1989. Grantee
covenants and agrees for itself and its successors and
assigns to use, operate and maintain the Site in accordance with the Redevelopment Plan and this Deed. The Site is
conveyed subject to all covenants, conditions, restrictions, liens, encumbrances and other matters affecting title and any. other matters approved by the Grantee or Grantee's predecessor pursuant to the DDA or the Ground Lease.
Exhibit
058OD050.051/003[84]
298 ' 091389-14
The Grantee hereby covenants and agrees, for itself and its successors and assigns, that during. construction and
"_thereafter, the Grantee shall ..not use, operate or maintain the Site 'in violation of the Redevelopment Plan and (unless expressly ,waived in writing by' the Grantor) shall use the Site in accordance With and as required by the terms,
covenants, conditions, restrictions and provisions of.
Article 4 o€ the Ground Lease, notwithstanding the
termination thereof.
The Grantor and the Grantee agree that this use covenant on the part of the Grantee is necessary to carry out the
purposes of the Redevelopment Plan and the DDA with respect to the Site.
3. The Grantee covenants by and for itself and any successors ininterest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion; sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Grantee itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Site.
All deeds, leases .or contracts made relative to the Site, the Improvements thereon or any part thereof, shall contain or be subject to substantially the following nondis-
crimination clauses:
A. In deeds: "The grantee herein covenants by and for
himself or herself, and his or her heirs, executors,
administrators, and assigns, and all persons claiming
under or through them, that there shall be no discrim-
ination 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 herself_or any person claiming under or' through him or her; establish or permit . any such
practice or practicesof discrimination or segregation
with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, subles-
sees, or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
h.• In leases: "The lessee herein. covenantsby and for
himself or herself, and his or her heirs, executors,
administrators and assigns, and all persons claiming
DA5M2D050d051/003[85] . 299 091389-14
under or through him or her, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination
against or segregation of any person or
group of persons, on account of race,
color, creed, religion, sex, marital
status•, 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 herself, or any person
claiming under or through him or her,
establish or permit ahy such practice or
practices of discrimination or
segregation with reference to the
selection, location, number, use or
occupancy, of tenants, lessees, sub-
lessees, .subtenants or vendees in the
land herein leased."
C. In contracts: "There shall be no discrimination
against or segregation of any person or group of
persons on account of race, color, creed, religion,
sex, marital status, national origin -or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee him- self or herself, or any person claiming under or
through him or her, establish or permit any such
practice or practices of discrimination or segregation
with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees,
subtenants or vendees in -the land."
4. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted by the DDA or the Ground Lease; provided', however, that any• successor of Grantee to the Site shall be bound by such 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.
5. The covenants contained in paragraphs 1 through 4,
inclusive, of this Grant Deed shall be binding for the
benefit of the Grantor, its successors, assigns and the City of Bell Gardens against any successor in interest to the Site or any part thereof, and such covenants shall run in favor of the Grantor and such aforementioned parties for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or Exhibitd580O050.05 1/003 86 300
� � 091389-14
remains an owner of any land or interest therein to which such covenants relate. . The Grantor and such aforementioned parties, in the event of-ariy breach -of -any such covenants, shall have the right to exercise "all, of the rights and remedies, and to maintain any actions at law or suits in equity, or oth;er: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, its successors and such aforementioned parties.
6. The covenants contained in this Grant Deed shall be
construed as covenants running with the land and not as conditions which might result in forfeiture of title.
Exhibit 2
301
0580D050.051/003[87] 091389-14
Unless otherwise expressly provided, all defined terms used in this Grant Deed shall have. the defined meaning provided for such term in tha DDA.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their•behalf by their respective officers thereunto duly authorized, this day of
19 .
"GRANTOR"
BELL GARDENS REDEVELOPMENT AGENCY
By:
Claude L. Booker
Executive Director
The provisions of this Grant Deed are hereby approved and accepted.
"GRANTEE"
BELL GARDENS ASSOCIATES,
a California general partnership
By: HOPKINS DEVELOPMENT COMPANY, L.P.
a Delaware limited partnership
General Partner•
By: STEPHEN HOPKINS DEVELOPMENT
COMPANY OF NEWPORT BEACH,
a California corporation,
General Partner
By:
Stephen C. Hopkins,
President
By:
, Secretary
Exh t820D050.051/003[883
302
091389--14
By: MATTSHAN CORPORATION
a California corporation
General. Partner =
By:
John. Hopkins,. President
By:
By:
JEFFREY B. ARMOUR,
General Partner
THOMAS D. LENNY,
General Partner
Exhib j80D050.051/003[89] 303
091389--14
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
)
SS.
On , 19_, before me, the under-
signed, _ a Notary Public ,in and for said State
kiris y persunally appeared Stephen C. Hopkins, P R Personall known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as President and
:personally known to me (or proved to me to on the basis of satisfactory evidence) to be'the person who executed the within instrument as Secretary of STEPHEN HOPK'INS DEVELOPMENT COMPANY OF NEWPORT BEACH, a Califofnia'corporation, Said'corporation being known to me (or proved to me on -the.. basis' of satisfactory evidence) to.be a general partner of HOPKINS DEVELOPMENT COMPANY, L.P., a Delaware limited partnership, said limited partnership being known to me (or proved to me on the basis of satisfactory evidence) to be a general partner -of BELL GARDENS ASSOCIATES, a California general partx ersiiip," the "partnership which executed the within instrument, and acknowledged to me that -said cor- poration executed the within :instrument pursuant to its bylaws and'a resolution of its board of directors, that such corporation executed the same As such general partner of said limited partnership, that said'limited "partnership executed the within instrument as such general partner of the partnership last above named, and that said partnership last above named executed the same.
WITNESS my hand and official seal.
Notary Public in and for the
State of California
ExF,bSt&OD050.051/ 003 [ 90 ] 304
091389-14
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
)
)
ss.
On , 19.,_, before me, the under-
signed, a Notary Public in and for- said State, personally appeared John Hopkins, personally known to me
proved
the basis of satisfactory evidence) to be.the personwho executed the within instrument as President of MATTSHAN CORPORATION, a California corporation, said corporation being known to me (or proved to me on the basis of satisfactory evidence) to be a general partner of BELL -GARDENS ASSOCIATES, a California general partnership_, the -partnership which executed the within instrument, and acknowledged to me that said corporation executed the within instrument pursuant to its-bylawsand a resolution of its board of directors, that such corporation executed the same as general partner of such partnership, and that said partnership executed the same.
WITNESS my hand and official seal.
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
)
)
ss.
Notary Public
On , 19 , before me, the under-
signed, a Notary Public in and for said State
appeared JEFFREY B. ARMOUR �- personally
personally known to me (or proved to
me on the basis of satisfactory evidence) to be a general partner of BELL GARDENS ASSOCIATES, a California general partnership., the partnership.that executed the within instrument, and acknowledged to me:that he executed the same as a general partner of such partnership, and that said partnership executed the same:
WITNESS my hand and official seal.
Notary Public
' B050.051/003[91]
305
091389-14
STATE OF CALIFORNIA
COUNTY OF ORANGE .
)
)
SS.
On
signed, a .Notary Public in and }for .said before State ' personally ona11
appeared_ THOMAS D. LENNY, personally known to me , r o ol e on the basis pf satisfactory evidence to be a (or proved p to of BELL' GARDENS ASSOCIATES, a California eneralgener partnership, partner the e
partnership that executed the within instrument, nd acknowledged to 'me that he ' executed the same as a
general
partnership, and that -said partnership executed ther of such same.
WITNESS my hand and official seal.
STATE OF CALIFORNIA )
•
COUNTY OF LOS ANGELES .)
ss.
Notary Public
On , 19 , before me, the
undersigned, a Notary Public in and for said County and State, personally appeared CLAUDE L. BOOKER, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as Executive Director of the BELL GARDENS REDEVELOPMENT AGENCY, and acknowledged to me that the BELL GARDENS REDEVELOPMENT AGENCY executed the same.
WITNESS my hand and official seal.
Notary Public
EVsicg D050.051/003[92]
306
no•io❑ 74
EXHIBIT H
LIST OF MITIGATING'MEASURES
Ex[M0D050a051/003[93]
307
091389-44'
'TtOOUCTIO14 -
abskc9roun,d
£XIa Cr
Addi nal radenal Observations
UTURt TRAFFIC
„Background C th_N t!
Pr*act Traffic Ca
IP CjH�RATION Conditions ..Ina
DISTRIBUTION ANO ASSICHMEHT
Trio ion
AddrtC rat
on 'Prone
'Trip
E Ois butj , on Considerations A R,d j a =slgr++ nt
rroiaet .RNat I �Exrav� Uses
OMMEN0A; IONS
Mitigation Measures
Ort-Sita-Ciriulation and Access
?mix
a-otanation of ICU
Lri q{ Calculations
CU csrc Sail-
Ca'.. Qeserip�s �a
+'dant Street Classifications
•
t
2 i
I
I
9 TI
ti
Exhibit 2
308
t
2 3
4 S
t
Oefic tion
mat Lotation _.-
ExistiRg f !ii 1 Roadway Comic• kfans
Existing OM) TraffSe .Comditlons
Traffic CoRdltfons
MO Na Project kee1arN
Traffic CandltIons
'1990 'with Project
Traffic Conditions
1990 with Project. With Mit
3 4
S
T
13 Exhibit 2
309
urr OPr
t
z
3 3
7 4.1i}
- Land uses Ud by Exl:ttng
TrLandio V Cans -ration Rates foe Existing
ses
Bail
Tr a,CfRns 4rarkatolaca Prefect
*ration
IcyCo wrison a With Existing
+Y Car+aitioAs
ICU Ca++Dsriw. with Mitigation
11 1=
1?
Exhibit 2
310
• This
d C� IS tram( sto which his been A re��1 r#d on
R rote 1r ge�+cy, #•sas�e c• 1M o the OC � mg! rtai C - Marketplace. .. the tratfk; 1m City of son
Ear l t Arlo..., Cards ng Marketpla e . fett With Cent% wry, "fatter 1 fa , venue freesLubec Street Florence is locatevenue on•t ins City • 1' diets crYe aro fort of various c t '''mow and contains a of system.oss Oeatlon of the Aroj. t• in e la 11.04tion to. trla SCP111. xre Exist, Circulation ur r►ddh9 sir
Svc
ThE project area is served by the folrowi
ng highways:
Ptoikw
Classrflcs ,1 .
Long. Basch .Fr .�-- -
Florence Avenue
.Eastern Avenue
C+9 Avenue
Clara Street
olrecta� _
The number a f thr�gh ear+
the traffk cantrors at ttno Crka�t intersections -are +vy '�1thfn the study a as well as •
shoran in 2.
T wen ty- fou r hour tea f
*nuo are on 1.111 at . l e city... l taken ,on and an fy. In �a113 t Avenue 'were edjustad to reflect city. tt�e addition, 1111: tratf t 'yakking on ed� j t Turning �,uVe�n growth -indicated bar .ti�e updihd volur-s, Turndetiii is County
. a '0wrert� '"'ay taken during t#�e 1144 Christmas Batson . at the talrawin try K .r • f� r existing condition,. Counts to 9 t*tiedtians an are -also In the City fifes.
> taken
Eastern A vertua and Cage Avenue
Eastern Ave '* d Lubec Street
•
Eastern Averrtii and Ludo 1 Street
Eastern Avenue Florence Avenue
Elistorrt A and Ajax Street
1fe nto and.. Fry Str.*t
Eeetern Avernue' arid..Live Oak Street
Fang Avenue and Clara Street
Mo►Ca Avernus and the northbound Long Such (710) FretwaY ' romps
1 Street
Fu l ry Cantrei red Maas Rreew
h
Mfe 'H ay aY .
'Secondary Highir�ay
C
On/olf
These classifications are based on the City of .dart Carden, General Pan dattd 1911 and are described in full in the aooindix of this report. -1-
Exhibit 2
311
STATE OF CALIFORNIA
1 ss.
COUNTY OF LOS ANGELES )
On September 1, 1989, before me, the undersigned, a
Notary Public in and for said State, personally appeared John D. Hopkins, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as President of MATTSHAN CORPORATION, a California corporation, said corporation being known to me (or proved to me on the basis of satisfactory evidence) to be a general partner of BELL GARDENS ASSOCIATES, a California general partnership, the partnership which executed the within
instrument, and acknowledged to me that said corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors, that such corporation executed the same as general partner of such partnership, and that said partnership executed the same.
WITNESS my hand and official seal.
_JANNAKE 1NER
'!tY PU3Ll CALIFO N1A ;(
LOS M GELES COUNTY
My town. expires MAR 1S, 1962
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
ss.
fit` -L 1G (L
ry Public
On September 1, 1989 before me, the undersigned, a
Notary Public in and for said State, personally appeared CLAUDE L. BOOKER, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as its Executive Director on behalf of the BELL GARDENS REDEVELOPMENT AGENCY, the public entity therein named, and acknowledged to me that said public entity executed the within instrument.
WITNESS my hand and official seal.
7AL
LEANT iA KELINPR
w PUBLIC - CALf: ORPJJA 1�
LOS ANGELES COUNTY
: y cnmm. expires ;,1AR 16, ]992 I�
E:0580a052.051/003
,r 77L, c-
Not y Public in and for the
State of California
- 8 - 071289-10
Exhibit 2 312
dated as of May 23, 1988, governing the development of the Entire Property. Following execution of the Shopping Center Ground Lease (attached as Exhibit 6 to the DDA) ("Ground Lease") in accordance with the terms of the DDA, Developer plans to develop the Entire Property as an integrated commercial center for the mutual benefit of all portions of the Entire Property.
D. The Redevelopment Plan and DDA are each incorporated herein by this reference and made a part hereof as though fully set forth herein.
E. The City of Bell Gardens ("City") and Agency'have fee or easement interests in various streets, highways, sidewalks and other property within the City and are responsible for planning the development of land within the City and the Project Area in such a manner as to provide for the health, safety and welfare of residents of the Project Area and the entire City. The portions of the City and Agency's interest in real property most directly affected by this Declaration, herein the "Public Parcel," are the streets surrounding the Entire Property.
F. Developer and Agency intend that the Entire Property be developed as an integrated commercial -retail shopping center, substantially as shown on the "Site Plan", attached hereto and incorporated herein as Exhibit "B" ("Shopping Center") , and for such purposes do hereby fix and establish, for their benefit and their heirs, assigns, successors, mortgagees and tenants, certain easements, covenants, restrictions, liens and charges (collectively the "Restrictions") upon and subject to which all of the Entire Property, and any part thereof, shall be improved, maintained, held, leased, sold and/or conveyed. Such Restrictions shall run with each and every portion of the Entire Property including all portions thereof which may later constitute separate legal lots pursuant to any subdivision of the Entire Property and shall inure to and pass with each and every such portion, and shall apply and bind the respective successors in interest thereof, and all and each of the Restrictions are imposed upon the Entire Property as mutual and reciprocal equitable servitudes in favor of the Entire Property, and each portion thereof. Any deed, lease or other instrument by which all or any portion of the Entire Property is conveyed, whether by fee, easement, leasehold interest or otherwise (including any conveyance pursuant to the option to purchase provided in the Ground Lease) , shall be subject to this Declaration, and any instrument of conveyance shall be deemed to incorporate the provisions of this Declaration, whether or not such instrument makes specific reference to this Declaration. References to an "Owner" shall be defined as the "Tenant" under the Ground Lease so long as the Ground Lease is in effect, and thereafter references to an "Owner" shall mean the fee owner of the Entire Property and the fee owner of any portion thereof constituting a separate legal lot, so long as such fee ownership continues. "Owner" shall not, in any case, be construed to include any lessee or sublessee under any lease between an Owner and an occupancy tenant.
-2--
Exhibit 2
313
1.3 For the purpose of this Declaration, the Entire. Property is divided into two (2) categories which relate to use, each of which is delineated on the Site Plan, and are hereinafter referred to respectively as "Building Area" and "Common Area". The buildings and improvements to be constructed on the Entire Property and the Entire Property are sometimes collectively referred to herein as the "Shopping Center". For purposes of this Declaration, all references to Developer shall be deemed to mean and include the Tenant under the Ground Lease so long as the Ground Lease is in effect, and thereafter, Developer shall mean the Tenant under the Ground Lease at the time the Ground Lease is terminated by exercise of the option to purchase pursuant to the Ground Lease or the successors and assigns of all or substantially all of such interest in the Entire Property.
SECTION 2. BUILDING AREA
2.1 The construction, establishment and maintenance of
buildings upon the Entire Property shall be specifically confined and limited to the areas of land shown for buildings on the Site Plan, and any deviations shall require the prior written consent of Developer, which consent shall not be unreasonably withheld or delayed. Such areas are hereinafter referred to as "Building Areas". Additionally, any changes in the Site Plan shall require the prior approval of the Agency, which approval may be granted or withheld in Agency's sole discretion.
2.2 (a) Following construction of the Developer Improvements required by the Ground Lease, no building or other structure shall be erected, placed, maintained or substantially altered on any part of the Entire Property until or unless the exterior appearance and coloring thereof, specifically including, but not limited to, elevations, height, canopy design and dimensions and location of other building projections, shall have been approved by Developer, which approval may be delegated; provided, however, that such approval shall not be unreasonably withheld or delayed, and any such approval is not a warranty or guaranty of all necessary governmental approvals and/or compliance. Additionally, any changes in the Site Plan shall require the prior approval of the Agency, which approval may be granted or withheld in Agency's sole discretion. Neither the Agency nor Developer shall be liable to any party or third party whatsoever by reason of mistake in judgment, negligence or non-feasance arising out of or in connection with, or for any action or non -action in connection with the approval or disapproval of or failure to approve any such plans. In the event that Developer withholds such approval and the Owner of such building believes that such withholding of approval is unreasonable, then the dispute shall be arbitrated in accordance with the laws of the State of California. Developer and Agency shall, upon giving such approval, evidence the same by endorsing such approval upon a copy of the final specifications and the elevations sheets of the working drawings for such building. -4-
Exhibit 2 314
SECTION 3. COMMON AREA
3.1 For purposes of this Declaration, all of the land area within the Entire Property to be used ?.n common shall be referred to as "Common Area," which Common Area includes all land areas within the Entire Property other than Building Areas and is delineated as "Common Area" on the Site Plan.
3.2 The Common Area shall be used for "Parking" and for "Service" (as each term is hereinafter defined) and for no other purposes except those specifically described herein, without the prior written consent of Developer, which consent shall not be unreasonably withheld or delayed. No changes in the number of parking spaces, or in the configuration of the Common Area from that shown on the Site Plan shall be made without the prior written consent of Developer and the Agency, which consent may be withheld in their sole and absolute discretion.
3.3 The term "Parking" as used herein shall mean and be deemed to include and permit the following:
(a) The parking of passenger vehicles and the pedestrian and vehicular traffic of the Owners and their respective heirs, successors, assigns, grantees, mortgagees, tenants, subtenants, licensees and concessionaires, hereinafter called "permitted users", of any and all portions of the Building Area within the Entire Property, and the officers, directors, agents, employees, customers, visitors and licensees and invitees of any of them;
(b) The ingress and egress of any of the
above -designated persons and the vehicles thereof, to any and from any portion of the Common Area and the public streets adjacent to the Common Area;
(c) The installation, maintenance and operation, within the confines of the Common Area, of underground public utilities serving Building Areas, together with and including vaults, manholes, meters, pipelines, valves, hydrants, sprinkler controls, conduits and related facilities, and sewage facilities, all of which shall be even with or below the surface, except hydrants, transformers, risers and other facilities which by their nature must be installed, maintained or operated above ground;
(d) The movement of pedestrians and passenger vehicles
between mercantile, business and professional establishments and occupants located or to be located within the Building Area; (e) The provision of other facilities such as mailboxes, public telephones and benches for the comfort and convenience of customers, visitors, invitees, licensees, and patrons of the mercantile, business and professional establishments and occupants located or to be located upon the Building Area or any portion thereof, as the Owners may from time to time deem appropriate; -6-
Exhibit 2
315
meters, pipelines, valves, hydrants, conduits, poles and related facilities, and sewage services, serving any Building Area; provided, however, than any poles or other above —surface installatioais shall be located so that there shall be an unimpeded access for vehicles and trucks to and from the public streets from and to the loading areas of any Building Area and all crossarms and pole racks and the like attached thereto shall be in compliance with all applicable laws; (d) Subject to the provisions of Sections 3 .2► 3.4(a), (b) , and (c) above, rearrangement and reconstruction of truck loading and unloading areas including ramps, .docks and similar, facilities; trash, refuse and garbage container storage areas; the opening of doors from a Building Area onto and over the Common Area adjacent to the Building Area; areas for the parking of the automobiles of employees or the occupants of any Building Area; and other incidental and related facilities;
(e) The temporary parking or standing of trucks,
tractors, trailers and other delivery vehicles used in conjunction with the exercise of any of the activities described in subparagraph
3.4(a) above;
(f) All the Service uses permitted within the Common
Area shall be performed with reason and judgment so as not to unreasonably interfere with the serving and supplying of the loading areas of the Building Areas.
SECTION 4. COMMON AREA IMPROVEMENT
4.1 Developer shall improve or cause to be improved, for Parking and Service, as herein contemplated, all portions of the Common Area herein established and as shown on the Site Plan.
4.2 All sidewalks adjacent to a Building Area shall be of concrete construction and not exceed fifteen (15) feet in width. All areas for vehicular use shall be paved with a suitable base and surfaced with a bituminous or asphaltic wearing surface or, as to portions of the Service Area if Developer and Agency approve, in the alternative, with concrete or such other heavy-duty paving material suitable to withstand heavy truck traffic.
4.3 Subject to the foregoing limitations and restrictions, during the course of construction of any buildings which may hereafter be constructed upon a Building Area, portions of the Common Area may be used by the Owner thereof for the temporary storage of construction materials and equipment used and to be used in connection therewith, provided that such use does not damage existing improvements (unless repaired by and at the expense of the Owner causing such damage within ten (10) days from the date that such damage occurs) nor unreasonably interfere with the normal use of such Common Area or any other portion of any Building Area.
-8-
Exhibit 2
316
the Common Area in first-class condition and repair and so as not to constitute a public nuisance, said maintenance to include, but not be limited to, the provision of adequate lighting (provided, however, Common Area lighting required after 11:00 P.M., except for security purposes, shall not be considered as a Common Area expense and shall be paid for by the Owner (s) or occupant (s) with business operations after 11:00 P.M.), water, electricity, sweeping, gardening, security (including without limitation, additional security and control measures deemed reasonably necessary by Developer, such as control of loitering, vandalism, malicious mischief and unauthorized use of the Common Area), janitorial services, repairs to and replacing of asphalt paving so as to maintain a smooth and level surface, bumpers, striping, light bulbs, light standards and sprinkler systems and planting area, and any other items of repair, replacement and/or maintenance that may be needed from time to time to properly maintain the Common Area. Except as provided otherwise in Section 4.3 hereof, no storage of any kind shall be permitted outside any building on the Entire Property except for trash storage in any outside storage areas approved in the Site Plan. Adequate trash areas shall be provided in an attractive design. Locations of such areas and design shall be subject to the approval of the City. Trash containers shall at all times be kept in the trash areas. Gates for trash storage areas shall be kept closed at all times except when in actual use.
5.2 As a part of such maintenance and operation, the
Maintenance Director shall obtain and maintain insurance as required by Paragraph 9.4.
5.3 (a) The Maintenance Director shall have (and is hereby given) the full right and authority of operation, control and maintenance of the entire Common Area, consisting of driveways, sidewalks, parking areas, delivery ways, loading areas (except exclusive loading ramps and docks for use by an Owner or occupant) , pylon signs, landscaped areas and comfort stations, such authority to also include the right to enact rules and regulations subject to the reasonable approval of Developer for the use and operation of the Common Area, including employee parking. Such right and authority of the Maintenance Director shall continue until the Maintenance Director shall resign by giving ninety (90) days' notice in writing to Developer, Agency, and all Owners, if any, or, in the event that Developer shall at any time be reasonably dissatisfied with the Maintenance Director's performance of its obligations under this Section 5, then Developer shall have the right to give the Maintenance Director thirty (30) days' written notice of such dissatisfaction, specifying the particulars in respect of which the Maintenance Director's performance is deemed unsatisfactory. If at the end of the thirty (30) day period from the date of such notice such performance shall continue to be unsatisfactory and not reasonably cured, the Developer shall have the right to cause to be taken over from the Maintenance Director effective on the first day of the next succeeding calendar month, the maintenance, management and operation of the Common Area and of any improvements located thereon. In the event -10-
Exhibit 2
317
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Exhibit 2
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POSSIBLE DRUG EXPANSION AREA
Mr. Stephen C. Hopkins
September 1, 1989
(2) Section 4.3 of the DDA originally required that
HDC submit to the Agency, and obtain its' approval of,
construction contracts for all of the Developer Improvements to be built upon the Shopping Center Site prior to execution of the Ground Lease. Since only a portion of these contracts have been awarded at this time, the Agency has agreed, in response to/the request of the representatives of HDC, to extend the .deadline for submission and approval of the balance of those contracts until ninety (90) days after execution of the Ground Lease. Except as modified above with respect to the applicable deadline, the requirements of Section 4.3 remain unmodified and the failure to comply with those requirements by the deadline set forth above will constitute a default under the DDA and the Ground Lease; (3) At the request of your counsel, we wish to confirm
that, notwithstanding anything to the contrary in Section 7.4 of the DDA, the Agency and City have not required that the City be made a party to the CC&RS and, notwithstanding the deviation of the CC&RS dated September 1, 1989, from this requirement, those CC&RS are acceptable to the Agency and the City;
(4) We wish to confirm that the Agency is still in the
process of the acquiring the Thrifty Parcel Site located at the corner of Eastern and Florence and that the Agency reserves the right, in its sole discretion, to remove the Thrifty Parcel from the Shopping Center Site if that acquisition is not completed for any reason, including, discovery of additional facts concerning the presence of hazardous or toxi- substances on the Thrifty Parcel. HDC and the lessee under the Ground Lease ("Ground Lessee") hereby agree to promptly execute any documents necessary to later exclude the Thrifty Parcel from the property subject to the Ground Lease upon request by the Agency. If such exclusion occurs, the Agency will adjust holding period payments and construction period rent payments as appropriate, and promptly reimburse the Ground Lessee for any excess payments received; (5) We also wish to confirm that the Agency is still
in the process of completing its acquisition and relocation obligations with respect to the Shopping Center Site, including, acquisition and relocation, as applicable, of the Smith property (D/B/A as BG Jewelry and Loan), that certain leasehold interest concerning billboard advertising located on the Shopping Center Site, and the relocation of certain telephone lines. You understand and agree that this process will be continuing and will not be completed until following execution of the Ground Lease.
0580L009.032
Exhibit 2 319
prevent such person from so doing and to recover damages for any such violation.
(d) The remedies permitted or available at law or equity to any one or all such persons specified herein shall be cumulative.
In the event that suit is brought for the enforcement of this Declaration and/or as the result of any alleged breach thereof, the prevailing party or parties in such suit shall be entitled to recover their reasonable attorneys' fees from the losing party or parties, and any judgment or decree rendered in such proceedings shall include an award thereof.
(e) In the event that the maintenance, management and
operation of the Common Area are taken from Maintenance Director or if the Maintenance Director resigns as provided in this Section, the Maintenance Director shall, within sixty (60) days after the effective date of its termination as Maintenance Director, provide to all of the Owners a written statement of all costs, fees and expenses which are to be reimbursed to the Maintenance Director pursuant to the terms hereof. Such sums shall be payable by the Owners to the Maintenance Director within fifteen (15) days after the delivery of such statement. Any new Maintenance Director will, after its appointment in accordance with the terms hereof, perform the maintenance, management and operation obligations of the Maintenance Director set forth in this Declaration throughout the remainder of the term of this Declaration, or until resignation or termination in accordance with the terms of this Declaration.
5.4 Notwithstanding any provisions of this Section 5 which may be to the contrary:
(a) Developer may employ an independent party or entity as the Maintenance Director to assume and perform all of the obligations of the Maintenance Director provided for in this Declaration. The employment of any Maintenance Director as provided for hereinabove shall be binding upon any Owner who has or subsequently acquires an interest in any portion of the Entire Property. The Maintenance Director shall be subject to removal in accordance with the terms hereof.
(b) Each Maintenance Director shall save and hold
harmless the preceding Maintenance Director of and from any and all claims, demands, costs, fees, expenses, liabilities and damages arising or occurring subsequent to the date said new Maintenance Director assumes its duties, except for the intentional misconduct or negligence of the preceding Maintenance Director or that of its employees or agents. The preceding Maintenance Director shall save and hold harmless the new Maintenance Director of and from any and ail claims, demands, costs, fees, expenses, liabilities and damages arising or occurring prior to the date the new Maintenance Director assumes its duties, except for the intentional or negligent misconduct of said new Maintenance Director or that of its employees or agents. _12 -
Exhibit 2
320
expenses.are billed on a monthly estimated basis, an annual adjustment based on actual expenses in such calendar year shall be made by the Maintenance Director within sixty (60) days following the close of each calendar year whereby an Owner shall receive a refund or pay any additional amount, both within ten (10) days of notice thereof.
5.7 The proportionate share of the cost of operation,
management, control and maintenance of the entire Common Area is to be borne and paid monthly in accordance with Paragraph 5.6, above, by the Owner of any part of the Entire Property, in the same ratio that the number of square feet of ground floor area owned by such ,Owner bears to the total number of square feet of ground floor area in the Entire Property.
5.8 If any Owner sells all or part of the Entire Property owned by it, then such Owner shall have no further obligation under this Declaration with respect to the part of such real property thus sold after the date of the conveyance, other than obligations arising prior to the date of the conveyance. However, the provisions of this Declaration shall be binding upon, and shall inure to the benefit of, all present and future Owners of all or any part of the Entire Property.
5.9 In the event that any Owner fails or refuses at any time to pay its share of any of the maintenance expenses when due, then, after written demand and failure to pay within thirty (3O) days after receipt of such demand, legal action may be instituted against the defaulting Owner for reimbursement, plus interest at five (5) percentage points over the then current discount rate of interest as announced from time to time by the Bank of America, N.T. & S.A. , main office, San Francisco, California, computed annually, but adjusted quarterly; but in no event more than the maximum permitted by law. If any Owner defaults under this Declaration, any other Owner may institute legal action against the defaulting Owner for specific performance, declaratory relief, damages, or other available remedy.
In addition to recovery of the sum or sums expended on behalf of the defaulting Owner, the prevailing Owner shall be entitled to receive from the losing Owner such amount as the court may adjudge to be reasonable attorneys' fees as part of its judgment. Any and all delinquent mounts together with said interest shall be a lien and charge upon all of the parcel or parcels of such Owner subject to, and junior to, and shall in no way impair or defeat the lien or charge of any bona fide mortgage or deed of trust upon the same or any part hereof at any time given or made.
5.10 Notwithstanding anything contained herein to the
contrary, in the event that the provisions of a particular lease between an Owner and its tenant with respect to the calculation, time and method of billing and payment of Common Area operating and maintenance expenses are different from the provisions of this Declaration, the lease provisions shall prevail between such Owner and its tenants, but as among the Owners, this Declaration shall prevail. -14-
Exhibit 2
321
7.2 No portion of the Entire Property shall be used during the term of this Declaration for a junk yard, movie theatre, night club, discotheque, educational, training or vocational facility, adult bookstore, aJult theatre or adult entertainment, billiard or pool hall, bowling alley, skating rink, laundromat, blood bank, appliance repair, food processing and wholesale (not as part of a supermarket or retail baker) , wholesale building supplies/construction material, bar or dance hall (except as part of a permitted restaurant), bingo, massage parlor or massage shop, martial arts studio, tattoo parlor, fortune telling, narcotics paraphernalia.
7.3 Intentionally Omitted.
7.4 (a) Except as provided herein, no part of the Shopping Center, other than the Building Area labelled "Drug" as depicted on. the Site Plan, shall be used for a store compounding prescriptions or drugs which, under any law, rule, or authority must be sold by, or in the presence of, a registered pharmacist or requires a license or permit from the California State Board of Pharmacy or any other agency which hereinafter may be empowered to license or permit the conduct of a pharmacy or a drug store. The pharmaceutical restrictions set forth above shall terminate in the event that the Building Area labelled "Drug" or some part thereof shall not be used for pharmacy usage for a continuous period of two hundred forty (240) days or more. Any such two hundred forty (240) day period shall be extended by the period of any and each occurrence of any strikes, labor difficulties, governmental restrictions upon building activity, or delays caused by or resulting from fire, casualty, war or acts of God. Such two hundred forty (240) day period shall not apply during any period in which a building or buildings for such pharmacy usage are being built rebuilt, repaired or remodeled upon the Building Area labelled Drug or some part thereof.
(b) No parcel or part of the Shopping Center other than the Building Area on the Site Plan labelled "Market" shall be used to open and operate a supermarket, grocery store, or market to sell (for off -premises consumption) the following items (whether canned, fresh, frozen or smoked) : groceries, meats, meat products, fish, poultry, fruits and vegetables, unless after the Market has initially opened for business, any use is not thereafter operated for a period in excess of two hundred forty (240) days (excluding reasonable time periods as set forth below) . For example, if the occupant of the Market elects to subsequently close its meat product sales, the exclusive right for meat product sales shall terminate. The foregoing restrictions do not restrict, in the Shopping Center, operation of a health food store or any restaurant, bakery, coffee or sandwich shop, delicatessen, or ice cream store or candy store, or prepared food operation (such as hamburgers, donuts, fried chicken or fish) selling such prepared food for on or off -premises consumption, or the incidental sale of food items including, without limitation, cookies, candy, crackers and ice cream, and specifically excluding fresh meat -I6-
Exhibit 2
322
SECTION S. EXPRESS GRANTS OF EASE`
8.1 Developer and Agency do hereby grant to their successors and assigns, grantees, tenants, sub -tenants, licensees, concessionaires and agents, employees, customers, visitors and invitees a non-exclusive easement appurtenant to over, across, upon, in, under, and through the Common Area for the purposes set forth in this Declaration.
SCION 9. INSURANCE
9,1 At all times during the term of this Declaration, each Owner shall, at its sole expense, continuously maintain or cause to be continuously maintained for the mutual benefit of the Agency and Owner, standard fire and standard extended coverage insurance with vandalism and malicious mischief endorsements on all buildings and all the other improvements located on its parcel, including Common Area improvements. Each Owner shall carry coverage against damage from earthquake. Said insurance shall be in amounts at least sufficient to avoid the effects of co-insurance provisions of the policies, that is, not less than one hundred percent (100%) of the full replacement cost of buildings and improvements, but excluding foundations, excavation costs and the costs of underground flues, pipes and drains if such costs are properly under co-insurance requirements. Each policy of insurance carried by each Owner shall provide that the proceeds thereof shall be applied to restoration, reconstruction and repairs to the buildings and all of the other improvements located on such Owner's parcel, including Common Area improvements. The proceeds of the policies required by this Section 9 shall be deemed to be held in trust by the recipient to the extent of the uses and purposes prescribed by the Ground Lease. All insurance required by this Declaration shall be carried only with responsible insurance companies licensed to do business in California, except in those instances where an Owner or occupant is self --insuring its obligations. A11 such policies shall be nonassessable and shall contain language to the effect that (i) any loss shall be payable notwithstanding any act or negligence of Agency or City that might otherwise result in a forfeiture of the insurance, (ii) the insurer waives the right of subrogation against Agency and City and against all Agency and City predecessors, successors, assigns, officials, employees, members, affiliates, principals, officers, directors, attorneys, accountants, representatives, staff, council members, board members, and planning commissioners, (iii) the policies are primary and noncontributing with any insurance that may be carried by Agency or City, (iv) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to Agency and City, and (v) neither Agency nor City shall be liable for any premiums or assessments. All such insurance shall have deductibility limits of not greater than Fifty Thousand Dollars ($50 ,000 .00) , except in those instances where an Owner or occupant is self -insuring its obligations.
Exhibit 2
323
assigns as the additional insured and any lender with a lien secured by the Ground Lease.
9.4 (a) At all times during the term hereof, the Maintenance Director shall continuously maintain or cause to be maintained insurance coverages and limits required by Section 9.3(a) above covering the Common Area. Such insurance shall afford protection to the Owners, Developer and the Agency as additional insureds to the limits specified in Section 9.3(a).
(b) The Maintenance Director is hereby designated the
agent of each Owner for the purpose of obtaining such insurance. The premiums for said policy shall be apportioned among the Owners in the proportion set forth in Section 5.7. Any policy required hereunder shall provide that such policy shall not be cancelled without at least thirty (30) days' prior notice to each Owner, the Developer, Agency and City, and shall comply with the requirements in Section 9.1(b).
9.5 Before commencement of any demolition or construction work on any portion of the Entire Property, each Owner shall procure or cause to be procured, and shall maintain or cause to be maintained in force until completion and acceptance of the work (i) builder's all risk insurance, including coverage for vandalism and malicious mischief, in a form and amount and with a company reasonably acceptable to Landlord, and (ii) worker's compensation insurance covering all persons employed in connection with work on the Entire property and with respect to whom death or bodily injury claims could be asserted against the Agency or the Entire Property. The builder's all risk insurance shall cover improvements in place and all material and equipment at the job site furnished under contract.
9.6 Each Owner shall indemnify, defend and hold the Agency, City and their Representatives (defined below) , and the property of the Agency and City, including the Entire Property or any portion thereof and any improvements thereon, free and harmless from any and all Losses and Liabilities (defined below) resulting from the use, occupancy or enjoyment of the Entire Property or any portion thereof by Owner or any person thereon or holding under Owner arising from any cause. The above indemnification includes, without limitation, any Losses and Liabilities arising by reason of:
(a) The death or injury of any person, including Owner
or any person who is an employee or agent of an Owner, or damage to or destruction of any property, including property owned by an Owner or by any person who is an employee or agent of an Owner, from any cause whatever while such person or property is in or on any portion of the Entire Property or in any way connected with any portion of the Entire Property or with any of the improvements or personal property thereon, (b) The death or injury of any person, including an
Owner or any person who is an employee or agent of an Owner, or damage to or destruction of any property, including property owned by an -20--
Exhibit 2
324
provisions shall prevail, and (b) as among the Owners, this Declaration shall prevail.
10.3 Any repair, reconstruction or replacement of any
building(s), or Common Area, or other improvements performed by any Corner, pursuant to this Section, shall be performed in accordance with the following requirements:
(a) Plans and specifications therefor not previously
approved for the original construction of the building shall be approved by Developer and Agency as to exterior architectural design, exterior construction and location of improvements being restored, prior to the commencement of the work of such repair, reconstruction and replacement, which approvals shall not be withheld without good and valid reason and notice thereof made in writing.
(b) The buildings, Common Area or other improvements
being restored shall be at least of equal value per square foot, and at least as usable for its intended purpose„ as such building, Common Area, or other improvements were just prior to the happening of such casualty.
SECTION 11. MISCPLLANEODS PROVISIONS
11.1 Each and all of the foregoing covenants, conditions and restrictions:
(a) Shall apply to and bind each and all of the Owners
and each and all of their respective heirs, successors, assigns, grantees and mortgagees;
(b) Are hereby imposed pursuant to a general plan for
the improvement and use of the Entire Property and each parcel thereof and shall obligate and benefit each such parcel and the Owners thereof; and
(c) Shall obligate, inure to and pass with each and
every portion of the Entire Property and shall remain in force and effect as hereinafter provided.
(d) Are hereby imposed pursuant to a general plan for
the improvement and use of the Entire Property and each parcel thereof and shall benefit each such parcel and the occupants thereof. (e) Shall obligate and bind each and all of the
occupants of each parcel or portion thereof with respect to Section 1, Section 7, and Section 8 hereof.
11.2 Breach of any of the covenants or restrictions contained in this Declaration shall not defeat or render invalid the lien of any mortgage or deed of trust made in good faith, but all of the foregoing provisions, restrictions and covenants shall be binding and effective -22--
Exhibit 2
325
of any such suit or proceeding, including attorneys' fees as hereinafter provided, shall be assessed against the defaulting Owner and shall constitute a lien against its real property or the interest therein wrongfully deeded, leased, assigned, conveyed or contracted for until paid such lien to be effective upon the recording of notice in the office of the county recorder for the county in which the Entire Property is located, though any such lien shall be subordinate to any bona fide mortgage or deed of trust covering any portion of the Entire Property, and any purchaser at any foreclosure or trustee's sale (as well as any grantee by a deed in lieu of foreclosure or trustee's sale) under any such mortgage or deed of trust shall take title free from any such lien, though otherwise subject to the provisions hereof.
11.9 If this Declaration provides that a consent or approval shall not be unreasonably withheld, such consent or approval shall be granted or withheld without unreasonable delay, and, if consent is withheld or approval not granted, the reasons for withholding consent or approval shall be stated with reasonable certainty.
11.10 In the event that suit is brought for the enforcement of this Declaration or as the result of any alleged breach, the prevailing party or parties shall be entitled to be paid court costs, including reasonable attorneys' fees, by the losing party or parties and any judgment or decree rendered shall include an award of attorneys' fees.
11.11 Intentionally Omitted.
11.12 The captions heading the various sections of this Declaration are for convenience and identification only, and shall not be deemed to limit or define the contents of their respective sections.
11.13 Subject to the provisions of Section 5 above, each Owner shall keep, maintain, repair, manage and operate their respective buildings, whether occupied or unoccupied, located on its respective parcel(s) in good and clean order, operation, condition and repair in conformity with first-class shopping center standards, and in such manner to establish, maintain and present, at all times, the appearance of a clean, well -managed, attractive, well coordinated and unified operation.
11.14 Except as herein specifically provided, no rights, privileges or immunities conferred upon Owners by this Declaration shall inure to the benefit of any tenant, customer, employee or invitee of the Entire Property or any other third party; nor shall any tenant, customer, employee or invitee of the Entire Property or any other third party be deemed to be a third party beneficiary of any of the provisions contained herein.
-24-
Exhibit 2
326
EXHIBIT "A"
LEGAL DESCRIPTION OF ENTIRE PROPERTY"
A portion of Lot A of Tract no. 3562, as per flap recorded in Book 38 Page 38 of raps, Lots 1 through 4 inclusive, in Block 1 and Lots 1 through 6 inclusive, in Block 2 of Tract No. 11453, as oer map recorded in Book 207 Paget 27 and 28 of Maps, and a portion of Lot S and all of Lots 6 throjh 8 inCluslve,in Block . 1 , portions of Lots 5 end 6, in Block 2, Lots 1 through 4 inclusive. in Block 3, and portions of Lots 6 through 8, inclusive, and all of Lots 1 through S inclusive, In Block 4, s11 of Tract No. 11456, as per rap recorded 1n Book 207 Pages 29 and 30 of Maps, all in the City of Ball Gardens, County of Los Angeles, Stets of California.
Together with those portions of Specht Avenue, Wdell Strait, Kar1cw Avenue, and the unnamed alleys lying within Tract No. 11453, as per sap recorded 1n Book 207 Daggs 27 and 28 of Maps, and Tract Ko. 11456, is par map recorded in Book 207 Pages 29 and 10 of maps, and within Lot A of Tract No. 1362. as per map recorded In Book 38 Page 38 of gaps, vacated as per Resolution )b. 34-5, a certifies copy of wtfith recorded on April 11, 1959, as Instrument No. 89-558160, Official Records.
Exhibit 2 327
IN WITNESS WHEREOF, this Declaration is executed by the Developer as of the day and year first above written.
BELL GARDENS ASSOCIATES,
a California general partnership
BY: HOPKINS DEVELOPMENT COMPANY, L.P.,
a Delaware limited partnership,
General Partner
BY: STEPHEN HOPKINS DEVELOPMENT
COMPANY OF NEWPORT BEACH, a
California corporation,
General Partner
w Dev el ope r
OHN D. HOPKIN
Vice President
-27-
BELL GARDENS REDEVELOPMENT
AGENCY
BY:
t
CLAUDE L. BOOKER,
Executive Director
uAgencyg
328
intaiTic
:sigt14111tedt capacity utii, an (iCU)' caccss( s
*ere then con
c�,� :siting c nOttians in dp tad 'a 1 all
c' `'"'°' vot ar*ir in Figur _ 7 o Atf . t' i �� , t�
Janl'a'i '� t fbr. tip! irltersn t at i LwN of
o r; ' wit* it a t0tO of Sfrvl. we during Avg ind
Knaiabli ( wd .ofel • O u 'WC' :riti�a of AO .l �'Q ow; roar 'treed �►aurs. . etta
Additional p ;during the peek houryo
oral ObeervitIone
• A member 'of -operatfonat da 1
� files 101.0a+ net bacaee e+Idont rr, the ICU
. ire 1-dontlfl� be4e�wt
Calculations were identified within thf study arep. me most critkm aroel.mi
1. . The Aroxiretity of t
• intersection proximity
y the Intersection of L.ude(( suit/ Gstern Avenue
tratifd on CisternfFlia*A*n a AvMuailaitarn Avenue ii such thatsouthbound to the
.tr.fflrr ofn L. Avenue .at Flo�ct Avenue 'Sticks through A na Quring.tht evening peak.
tttt inter-
*: -
_ • The notttl bccrr�0 loft turn
nue
doa� +}Qt northbound
ad pocket on [:sewn Avenue it
row .cau causes smote storage. • The relied mean (Gaff at this excess left . turn 'traffic to stick in tt'4 island it tnis cow a blocica,ge for the through traffic throug m
p I
�p The *swing dtitanct between
o K-rt r end the (n to rs oc et the northbound. • Freeway ..rrwrglnal. EHtaound triffle F(lences roue inr _ <, Avee (a Beach Aen►ue lift 'turn' pocket ru � Avinuue after' . a. Floe- '
Freeway. Mg the Long
.The Ecycis Club hay inedectuite Bark! ng on the actives roadway reducing • the n facilities ft avallabta trot* .i t
S. The Ail= Avenue/F hi
A
Ave uvl FlortrKt •,�y Avenue Intersection Is so c(osa 'ta .the Eastern aetuo Intersection fiat • weitbcurd traffic MeltsMeltsthr"ot�o the (nt bIki..vstlai on Ajax Avwne.s during •P • h k hours. the
An exg of the ICU calculations are included in the appendix. 2 X cormpt'ft. Level of Saclike description can be found in the appendix. of this report. - ..
Exhibit 2
329
3 0
Exhibit 2
330
fl INTKRUCTICN
VaEtM
NUM -
L RIM OP rNPI0UGH TAMIL t. sou
IN (OTN C1�IIGT10F��
EXISTN�3 (l9e6)
WILLDAN ASScctAr 5, ) ROADWAY CONDITIONS
4 Exhibit 2
331
0.*M 20 $OU* YGLLi14R
*LOH a URINATE) 24 KOLA Y0LLM'
YIC A O UIV1L GP SLAVIC -II (WV
tt.lH
3 TA C.ONDITIONI - FIGURE,
ICCITING (111•) 3
I®
►r0 l 1Cuc
Exhibit 2
332
r°';th In
•xp�ri�>t t ;i� wq Mti�Mtll et..Ola
uri i;� Wit*! tJ?�t tlt y F Aergir'tt por Y
Rat • " areal why •c°a{s�+ci t!. r�t�anabt4 ta' r I cities uThe rb Otirodh ofa four Ae •bo t 7 • � relatively stsb.ke ThJ= t �chly ;n Year t!f . y c ! tP. f iii ` trifr4 v�,l to
N ed 14- sari -as 'the:
YNr�- of sitar ed J ciatigimcy 1a folr. .
° Pre act ?raffle Condition„ 4 chi
!^tKseetJpe 14
� Caoaei
n to • ty Utilization calculations were r
�n•dition= ' end "ire ixrttd• fie
ie
ettianr litice l a 1, "i s shown. in - Fi u•'y :4... �0 f .� oz pt ,ttheie :mai foiion of..atni l#vei .of sue, Unetar x.is f o. ill Oro "D" " to I tl oCti �astlrn AvMua/ A nwithue WIWI S Milani L03. 40! thi! 001 �'a9a Avenue socti't
hour.
fax variya rrhrch goy f S?a� h°"' a
roar OS � ..� .O. ng Morothe AM n -es
-4-
Exhibit 2
333
�►M
lan VIC I►rep uvEs op ltitY{C* (441
Exhibit 2 -
334
a o�'�dria tp '_-' I via '
r a �� � �� tiorl Patti " Girl � di tt!'lJFiri4t
any expressedare n t �, pf.-viilkfa(tt i0_ l tria lfdti«. Trill tl y.. .or_ QQP dt i f 9a m
• end ti 9 Cora ars lane de fined Vic, ¥ square t of Per nose ao` Y+s. .T�r� volumes tiny � use. ycrlar �►aorsnta�, ���+ae.
ar
41 i ti�volueH rated by the R
rcomid t• f idolkae of T Trio Centratloet - troy st. R Dr t" de ih+d use * to o ^=a�rtatlon " irigi ! " rh• O onK R � lad bad on 13rciect -area are shoes I d srlpttoel ana si�� kow by
Adciiiional reef Ceneratton Cens Table i.
There . - ..1__ �tfar+a
f u• v trip genera. dint
the tion
• �e s troy ixl elopment 'sits *I l.sll' alt �tks of
of ornrPran t 'twisting ng traffic stream. I Ti sett San 0 �atsd tratip a generatiot; rites Ash
r this " . r �.t f t e. wad ' a tlsy it'''.
-than �stt wrlil �tw•Ih+-9o+'firite' t Thlralw'!-,. It, y a : ;� t theism in Tawfl l 1. " tt�Im an the
� � strict
'1t rNatid Impacts ac DaN pyrp ..tl1ka ae s ysie trn 1h1 eretior+ " due to' this anticipated lit i e'►9 s ?! percent'reduction in traffic tho _
.—
Tri Ofstr(buttvn and Ass nment
�. •p "dlatr�fbuth�n Is the determination .... .0 at Is e+atk� of the general dtrattfen t+e be taken by �a ult.:
octal;' busietigs«; .'rss�ntjai b sad on the geo�raphl Iogt of -- � � s� ��t� - ap9drtun t1p,
Trip :ssFgrnmenx is the �t�nati�OiA of the
traffic 'wifl take `per the sDsditt route that pro�ectad major fact a general trslri�t distribution is �f rood. The Istonca path. p focide •are minima 'time path and minimum tate, When the t the minima t� and distance atits are o :eke •
path ire " different... the Minimal time thene and
tektf�Ons' �= assuoci�e+g .aal other .considerations.. ire _ Nth will r consid- er' be a stiaUc city. of altsev to rout*, grades ands. (forth. t should be n* that minims • t nth is cognizant of c
fl+sgrstion, As �
''Trip reonseation - An Informational R
!E^Ai^ s, 1913® sport`, institute of Transportation
May tOr(ng Passerby Trips into Traffic imp ct Analyses'. Public works. d;-
Exhibit 2
335
voltole apart , 1t-ed c It)f, tosses
.t '� "t will ' th" Vltlrrat�
eel; 'tip,`• �rtff�t it]] s a -a
.. _—we tttael �, '� ti I �
Est time
Orig.., ! ' secs 04110 11- ere city ...of eclstirg reiideettiii 'based r+tisi d+ +Ioortiar+t 'alarm Esste�rn AYE.. Trtp t 'with t•hi i neti tali of Transportation .. i •
.-: end. I. - � new . Trf� � .:'4ensrat� . rath
. , Study cen▪ duc4d, •by -'the" City. of .Sae: pti
o f • u sa 'in the .. ro i . it .I _ tlP i day the tyRts zips- _,.. ▪ A ldei.• ins; 170 • trFpll _per reeldalntlei -acre Da, and sa r�efal acre air say are appro�,Nato.- Tam ! anti �o
'gene -ration,- raise Used.: T1bI .: I• Ilsts: the an
esld°^tia'dtr+4laCe�.orit M►ithlh `t,o a+�+i�cirtt" Of actstiry and g rate. b._ 'the • ix proiset iros gong with t]H sat te! trafttt • .y ^9 u'sas,
The total redtctlon hi trips Identified. In
+d• tr. ffk 'vol�i' for the' Tibio i wits subtracted irk pralact- ¢ . act to r t!� removal e[ earlstirEg 'v;a.
• lh•o Related Impacts
Ti. p+'ojettsd traffic from Table.] (after sib to ti
ussel fires dlstributfd•the�cl,�ghoaif •t e surrou the .its K ex] t0:_t#!Q tntesetiiarit'.[h' -the '=tudY 'arid. street s�rtttw acyii ass Th4sd vattieesa were ti n sddM b
tie bae~icgrour►d trsfflt''fa� .the y;a,r -tM, .
._Inter4ectlon Ca*a�city. iltlliaation cakvlatians were then - ted for the -Kwitat- pro{ect" ' scsnart lied .are d
coerrpardd � to the exlit# '. . a �ttd in Figure S. � Ti+esl . rs4uits are then RI tralrl4, to -ng rd.."n0 anise' saer►arb .In Tabu' d-. As 1ndi�. will paw_ 'a full occuliarriy. "of the: mad . pro{ett. -all ' �bhetuions operate' at a- "La4N of SerVica '" D' :exert for 'the fol lcwkg:
Intersection
Eastern Avenue/Cage Avenue
Eastern Aveuel Ludell Street
Eastern Avenw/FlOeer<f Avon*
Eastern AvenueJCiare Street
Ptak Period
PM
Los
E
PM F
PM F
FM
Exhibit 2
336
I. ura
Construction of
tilt + t� yon t activities Aro,fftt rfl1 '* 1ra t
St fh mov tt fit ties far the craitleo of �itsl
ins oth+r ft � Oohed
i4ars! sods or its. There sky M 'spotted
on th+ g4otichntcsl comditloet jra 1
sits.: toy: ss y kno�,it to
1M ctS ups ssrth resource dry' ,' c sigrof fit�t sfrsrss sysa: *�irictsd for LA1s rods.*
1) tha_i
pplicint well
soils r pity s arollriryry lgt4fes1/
pity
for the site
of my o1rt!� prtot .to t!N i�lueatittot
movement icttritiHs
2) slt gritting sctirfttoi will ,
s� f�n�tlo� dad l �'''�' co earth - ao1r�t
�• dittos fn the prtlfa.
fnarj►' gNfadMtullioil=
+rft ! 111 1' li Mort i,, bt In sccords,X+
ciilo City of ;ell Girdins codas;
J) in the evtnt of fill import,. ill import 144ntablfst City of Lill ;ruck: .�t 1 t r to minimise - Gi rotas, in
roans truck
srw,
orda
roschment into residontisl ieiss;
. 4) in ;t went of. ff 1l import!
•defer covered OF sprinkled
itrtots In or,dir- to ainftita
ill imOort trucks will bi
prior`="to entsrin# quid is
fugitive dust.
Exhibit 2
337
2. ,six
y
The
Jf NEad proJfct It Ca st$t*t sitar
Phi
u *M fie theitfoH alt• t fisteat :with General
h-Mana�rt )'lees. Tufts 2 s � tit fir.
laMtane :arfsstons. attri�tairli. � �S � M! yti„�t�
iiats�,jry, the p^0.fett f
? i l e soi rci . It #herald 11s. be notfti
roil both
-that shirt.ti� -dh t and. construction related meissfoni Rive C°nstroction vehicle litive
vacta#; � x wfsslor�s) CAA t1�
o�avers neither be axe
r'lssions constitute significant ntledvars ap,a,c .tere -or sit to ra
t because:
n°real *patting Procedures or other dust
measures rill 4a followed pilliativa
exCaratio� dad _durini t!!! sate! �alitione
dust gredfn} erattams to . fugitive
aisissjoni. Ind in 'order to meat Oiitrict *rle 403
requirements:
I)
2)
trucks importing fill
Tea shall be covered andh r IJrink.
prior • to antaring pudic streets t$ N1MUf .
Potantiel fugitive dust;
3) canstrrction equipment engines will be mein
p rye r tune. u i end i n
4) vegetative corer associated with landscapfst will be implemented as soon as practicable following final
gaming acttvitias.
S) signs prohibiting idling periods of in excess of tire* wirwtta will' be placed at the :rear of the shopping
center nfar loading arses;
•
6) construction during second stage smog alerts will be discontinued; and,
7) ust of public_ transportation br project rflatad
employHI and project clientele will be encouraged.
Exhibit 2
338
l?
Air Pall utaets .
Ca rben
Reactive
M,fidt
ids '131.11
TAKE
ESE MATED EMISSIONS [lis/day)
Mot ar Vehicles *
Natural Gas**
repose
t xustsi
u
Pro ec
pr s t
005 .4
43 .4 65.1 •
Nitrate* Oxides 101.2 171.3
3.4 Sulfur Oxides
Particulates 20.1 37.5
0.7 0 .3
0.2 0.1
Electrical ***
stef
Uses
-------- T Not Ali S s 14
41.9 In
1 .4 5.0
0.5 1.1
MILS
22.3 11.0
•.3
i liefer ve hicle omissions ar c lased Co •.1
Bair Quality fart t�miss Iaa fact ors far 35 miles pe r ,r reparl,y Emviraa.e otal aatitiix d fry . , Ix I. • 1l/i emission f actors wer e used for,am
Rapsrts' ° , a t,�
ill a/ t.! miles, rune 1!!0 ; as exisi<i mg 110T a L de vlsa/ verag - 110) 11, i. wllb ,am average •trl 1 omissi. 5 .fac for the. eyedwith ills .t rl. p eay}tlt s! ] .3 milts. . M'°0'tsad Pra.ct Al3E o!
®• kalural gas estimated cwissioas art lash ea e sisil as lICt4• Maodbaak • !sr Preparing Eavir.ayeta! Lmpact eltalntd fry t4 "Air Existleg uses are estimated to have a natural is revised April llgy 4wlity wa+ttla. will+! °the Pra posrd pr oject is estimated is rate of 1.422.11S wti,c b. cuilc • lef t per nth, 'thane s mature' gas cv ii c tit per consumption rate it 441.14%
'® O Electrical esti.atc# cIlllssiows arr based
ta r Preparin g Eo viraemtetal act ts; ra cier: �taleed from t� Existing uses are estimated to have as electrical acs aMa'll lgt) Air Quality per year. while the pr opo sed prajact is rate ar 1.50).014 kilowatt ho I.
2. 331.123 kilawtt hours per, ye ar. sstl�ted +� as electrical cMs�tie kilowatt hou rs . rate of
Denotes:less than 0.1 pound per day ar. a MIligille taaarthailoa.
3._ tar
The s t to of the proposed
.,r,fl�'rith .. . Rrolett is prafe�rtly
resfdentfel and do� fullyes de.
.an exisLi` rofal use3 �M
r*ortfh,
"�ardiC4its Mv1ronmMC. The Proie ti
cam be expected to ereete localised
stair - - prH,0
drilna n!'ti fm aHerptfdn
ge Cisterns aM the firer, thetl Chid �04At o11 surface ry minor end 9es aro 4.rrt1cfp.eta! to be relatively
note,
es' a result, will not yield a #1 itf �'eTatl ri.
i cti upO rwater as related.te drainage +1=e:
I) the applicant scent will
approval b preparea drainage ilex * 1+Ct to
]+ the City inetr .weirig cell
runoff in accord with K eKu surface
atoneable pity copy c!!LN e iAa i� practices
ry'4a 1 rt■!A ti.
4. Plant Life
Existing vegetation in the stuff
general area and i s not unf y et, f s Well of LM
construction: -Will necessitate rere in anyway. �Kt
the removal afl all ve}eta.
tfon, yOwlrer,
. this rural dots not constitute a sf�ff.
feint adversaf i
a4act dux'to the lack of significance of tie
vegetation in the area and because:
14 the aRpilcaxt will prepare and implement a landscaping plam apiroyM by the City will into
which incorporate
appropriate ornamental ant naturally occurring plant -
' 4c1es.
5. Animal Li!
Existing inisel,.11fe in the study area is typical of the cameral area, comprises species' typically � y found in urban • are*s. And f s not unique or rent in any way. Project
construction will result 1n the removal of all urban anlwl Exhibit 2
340
'life it.„4 ..,.+ project sites
• der, due to the lick al
tilpelficancal. of the eefeyl ilfo •fs the era. this r
eleet het carntltuti I ill lffc>jjt Cherie 14ct. Loral
Existing exterior noise levels in
• Comer n t cat ha I s e[ rJ i r a t M t C w j• (Ctha area duo net a;CeH I 4 f N! .) of 13.3
Droppsie Or0'1Kt t3 '�e3L1�y �' The
terlOr noose levels
to fnCreiii 1 •tire a:a
erels 1n the area by ne more th.iR
(OIL) at any lccatlan along � I.S dOd
level is Imperceptible • � 3 i t•i s per f terry. This
t0 the hulA oar, will be below the
applicable exLariar noise level standard of if dIA (Oat), and does 'not constitute a !
�oadin 3 fIIif1{L_M adlr i impact.
9_ootratlans et the rear of the smolt. center ray
yield accesionel sound _leve1s a
strvCtfon•r � •� � - Io�lt� #Q �. Con.
elated. noise level= may ottasld illy egQKr i0
dIA. H rir. these' ierels.
limited dtlratt r;R; w+orl!-� bi short -tire lad of
no significant long or sh4rt.terw
significant adverse 1ipacts are anticipated for the rations stated above and because:
1) in $ foot well is planned between the DrojeCt site and _adjacent residential units and will be constructed
immediately after dauolitia.n; grading and excavation
Activities to minimize projected noise levels frc*
building construction and loading activities;
2) ali grocery aile retail sure deliveries and pickups
will bt nstrictid to between the hour's of 7:00 AM and
10:00 IM; and,
3).
trash Dickwpi and parkin, lot swwping and cleaning
will bi restricted to between the hours of 7:00 AM and
10:00 Pit it the rear of the sh-opping center.
Exhibit 2
341
7. .M existing eftr f rogt a t -the site to c
glare 'dukes. � �lrfsK-_light ane
rtl..ctlr1ly attributable to
ictir�t.. vehicular
a c y. +� Dutl�tnf +siurtalt assocfeted with r'1 d t
o�lrciii uses. !f t al
existing light Mae -proposed project will r ,y +li
and glare sagrch. While. the proposal
nroJect will also pcsseis 1t hti '
14 -use, Are ix � Q M. effects upoA a+jace�t
oected to be insignificant because:
I} th.e applicant will proy144 lighting along tip
wasters periphery site'ss
which will be directed away from
abtting residences and be shielded;
2) the applicant will construct LA 'ilia foul high wall buffer along the site's western -periphery is order to
preclude 'the lntrvsioA of pr0,ject.relete# light from
mobile sources; and;
3) all onsite lighting will be directed downwerd, be in accordance with applicable City codes. be of 1o+r•fn.
tensity. around parking areas, and will not employ
flood lighting.
8. kistille
The proposed project will change in area presently charac- terfzed. by rssideijtiel -and cwsrerctal uses to a community + 1A. center. All existlne residential and commercial
4atsfllfshmelits will be removed. The proposed project is consistent with the •present Gametal plan designation,
• tril Iustness Ofstrict. As indicated, development
of the proposed project will alter th4 'Assent land use of the arts. but will more closely reflect the planned land uses for the area. Asa result, the proposed project will not have a significant impact upon land use for this reason and because:
Exhibit 2
342
L) 4l. J d f sp l aree rep f drrttf
440
foNM�! rel�catfoR �fsfs �in �+finessy will
if-
FNaa 1 Uniform accord with
tetatation Assistance and l p tne
-
•t ies Fo 1 f Cy Act Of I170, as anendde. •
9. ttiou ce
to 1: asttnate4
alit a'ne- that the proposed project wfIl roc ira
thtrd {7a4,QJ!
MA'S Currynt kWh/yr} 'Cr, electricity t
han thill
fossil uses, This will
ua 1 s At r Mr �'e'Q�I f� t1Sl. con of
hossil than Alional ie etial fsCflftlet at a rat!
At present. Hearer, the antfcf
Lhe rata of fossil AatM increase
minimal. As a result rv41 COR1ijti0# is Considerede�c t� f , no significant adverse f ar this reaioni because:
and cta art
I)
the proposes project will comply
ration measures °� y with ewtrgy t r.
stipulates in Title 24 of the Cali-
fornia Administrative Co ,
11. Pa iseion
12. Bated stpolt an,average
rural of 127 residentialhousehold
size of 3.5 for thl City,
site will p santlr occurrfry an
result in the relocetion of about 444
However, this is residents.
got considered a significant adverse
impact because:
1) all displaced residents will be afforded relocation
assistance in accord with the Federal Uniform 'sloes.
tl"oi Assistance and Real Properties Policy Art of
1470, as
in
Removal of 1Z7 residential units from the pro,)ect site will correspondingly reduce the housing stock within the City..
Exhibit 2
343
K,4h'w. .At, the City's r
d rrttl�s a �ietite itw ] Q.f�� rats c f try t 4 psr,tMt available house =ltd initifraetl .ts t!e City, tills-re4uttf M for pros. t*t# fi ,Mt .cowsldertd a..;ignificant adverse fegur houin9 t.
13. ri i.ft CI fatten
trips t; not
faction -to nsu]t to 'my. sited in
Qperating at a Level of Service �� than p
ttr0
besausa:
tnti�
The proposed proJett is estt
trips during the F tetN to generate 1,344 vehicle
elk I+r. this velL of P�1 Ptak Our
�pa
I) the intersection of Florence Avenue axe Eastern Avenue will aa:i� "eDroved by adding dwi eastfeend left turn
I+nos ' on F1 -
or�a Avem.4 and dual soetk6eund left
•
turn lane' jry i 'southtiou64 rf¢i1-t tuns large oA Eastern Avenue;
2) the intersection cf Gage Avenue and [astern A
will be 'lN4rorN b - r!�
north y tdding a third tn-re lane for
fund trill southbound Eastern Aver and
in=tlTlatio+� of Ieft turn theand, phasing in all directions; 3) the raised median an Eastern Avenue at Gage
will reconfigured Avenue
— w be to allow a longer northbound Taft
tU a pocket.
Ostelled evaluation of project -related effects .upon the City's circulation sines can be found 44 A00endix A.
Existing onastrrit parkiry within the Pr Ject area will be relieved as the itreets -on which they exist are proposed for vacation -to 400 ' its drv.topeit of the
pr•a¢osed pro.
jolt. .This reduction in available on stmt parting is not considered significant becauia:
Exhibit 2'
344
lj the proprsed $r.Ject Wf `r t
the parking metered by
in excess of ice
this tIN and size. �. City Cola for a argJkt of
Ida
tiah
Out to the reiattvel
tares y .delapidattil conditioA at
Dr'istntlY occurring. many std.
structures aria 'mew of � the site. remittalDr,oJeCt :r`elated CanstrtaCti0�n o t yli c�plfa�i w1t,h'��i -.cades wl1. - .. tali
tom- ty' 1 1a�er. L1M risk of fire in
project aril..
for fire thus- t ikily redrec. trig tide pfuatial one
re Qrotectfort, '.4 a -�
f ! rr Qrn tec t f oh at � 11r-. � a#s►ersa ie�ts
tribUtakle-to care
•xQeCted for reason projectprojectare
son and because:
1)
the proDased project will c
Cointy of lac - °i �?Y •ri t11 -al i aRl1 fukle
4�e1es end City of 1411 ids fire
co -11O bvi 1df dam. regiirteent3, respectively.
to. f2lise_protattion
me proposed project will remove existing residences
cause the racatfoo of is existing Citystreet. and
derilopeet, es 'Witch Comm
peola�lly that Witch is newly constructed, is
generally less subfict to activities which warrant law
enfo t attention than are residential areas. C4Ase.
4w+stly, the :pro0gstd project is expected to yield a net ruction in the rigaireeits far police protection in the project area. As a result, Al sf ifica, adverse t
� t mac is
uPo polfcs protctfoa. are expected fop this mason and.
because:
1) the proposed project will include appropriate security features Including proper door _lacks and a
interior and exterior lighting; adequate
Exhibit 2
345
2) pm:01144 OrtiJoct will
4CCes$ Q1i,tg !ice•i: rot irKlr�,e *soy a;terfar
awry windcal;.444.
3) the Police Depari2Wit will. rei I
r
� sna an
M sp4Ciffc sicurlty litigation ees re
to pro.tett construction. w Prfor
1k. !still
The ryel of 127 d+.fttin wilts
tha aro¢csea ! in ordaP to uso�pdate
at sch prci*Ct could ryult in efrolt�o-t Dols s e ry $, the n redu�C t t on s currMt eRrall _ ^as. llnier tha assueottee that all
os+tsfda the i tents residiiif the preJett braswsre to NYa gal ichael distriet NrisdictisQ, the effect®
N jUrtsdlCtfen(s)cOuif
o s E4 a 1 � � : �"f N1Ca a rtdaoC.tf aA by as mtny
aanttry and
....-
'melts as jUnfor I4gis and 32 hfih school are t result a:f tha roll• considered a Pro.1lct. Th.sa r', ctteirs ary 1Qt
significant adverts iffiNct.
I6. !I 1littas
I6c. tile:
T�+* Proposed Project will have an estf,tata-d dadasttc .rater dwM of 15,234 god which ra
Prftial.ts Alum prasalt wand attrfb4tabla to utstt h of the ng onstteuse .
rest' l t, na sf gai fiCtnt adverse impacts upon ,ester derand art expected. Current Tatar sarricss is pia situated in sn alloy which' Aro�tde�d fops a
c' presently trararses the
sits. Ms proposed Project will not: have a significant
adverse .f■Dact upon 'the water delivery systaaa to that: • :
I) t4a applicant will retain the aligtment and location of the existing main.
Exhibit 2
346
_AreJeCt f: estiartad to hi1t• o! taw -�-�tr�tx cy�t1 g�+arst# about one. .. irld fts thtryl8�!` y 4ttloPated 0w, atftte �sH
ups • net Expected to platl'additfonal
existing wastewater CallKtlp� , ds- NI
ex1stfry �_ facilities.teeter collection system
reTitt�eTy =�11` af systie f= conceited
p�es+fnv iaeter .cc2iettar' sitrratad (� 11 a
y. travenfmg the s1t a� a11�,
s f gn t tf�Can t - adr +• eased a++ t!w foregoing,
arse wou is up4M ws u a tap. faci isart
t
exp te.d because: ro
1)
the applicant r(11
of th of the Alignment amd io,t;lion
e existing collector.
I6e. Star* Peter
Orafha
whiletheexistln
of the g ruNff p+ttei n$ will change IS vroposed 'proJ�tt, overall 'runoff volumed a Mutt vetted LO in n ex -
taro will crease..- Existing atsiti drainage infrastrec altered to acc-
n+r+ofl. �U4s _thy pro,,iKR-related
Hc'w yer, tM' drairs-aga infrastructure alteration
will not cause a signiffcteit 4di,erse•ivict since:
1) the applicant will prima drainage concept
to apgroral jr the city Engineer; :nd, subject
2) prKt-related runoff will be channeled to exi
storm drain facilities in Florence sting
Ce �t
1ufffctent capacity to acc venw which have
flows. �adate vroltct-related
437!/304
Exhibit 2
347
APPQro!X A
Tpfrc sir.
t.
Exhibit 2
348
&
A Y SOUTH . sU 1 ri 744 • I
NwTrRY®CALIF0RNIA !17430C (213) 69,
Exhibit 2
349
TASLE 4R CONTIlTS
lNTR000CTION
Beckground
ExIa ng Circulation System
Additional
Operational Observations
FUTURE TRAp!,C
Background Crowth a 1994
No Project Traffic Conditions - 1990 I
TRIP GENERATION, DISTRIBUTION AND ASSIGNMENT `
Trip Generation
Additional Traffic Generation Considerations
Trip Distribution and Assignment
$
Trip Reduction due to Existing Use
Project Related impact d 9
9 RECOMMENDATIONS
Mitigation Measures
On -Site Circulation and Access
APPENDIX
Explanation of ICU Calculations
Level of Service Descriptions
City of Sell Gardens Street Classifications
ICU Calculations
2 d
to
ti
Exhibit 2
350
Tabs N .
2 3
s
Dyers tbn
Traffte Generated by Ex!sting
Lind Uses
Trip Coloration Rates for Existing
Land Uses
Bell Cordons Marketplace Project
Trrp Ceneratlon
ICU Comoarfson With Existing
Roadway Conditions
ICU Comparison- With Mitigation
alb
11 13
11 Exhibit 2
351
Int.?liCtlenCapacity Utilization (ICU)1 calculations were then condyct signalitea IOd1g0Afit foe existing conditions and ire dWlcted aeon bat III tview 2,i.P , v' 1 ee In Kure 3. All intersections operate at h wsth the Service 'pe or better except for the intersection of Eastern Ave",� of Clare strew, IW elaerete! at a Level of Service "1" during the pee „Id hour. Level of Service "0' (maximum V/C ratio of .90) is teak acceptable level of performance for urban streets during the peak Lour . the ours.
Additional o rational Observations
A number of operational deficiencies which do not become evident In calculations were identified within the study arse. The most critical the ICUare identified bowl.: pro4ie�=
1. The proximity of the intersection of
t
intersection of Florence Avenue/Eastern Avenue Is such that sew to the traffic on Eastern Avenue at Florence southbound
section of Ludell Street during trio ening peak.
through the inter-
section
2. The northbound left turn pocket on Eastern Avenue at Gage Avenue does not provide adeouate storage.
location causes excess left tu ttraftfic to�stick iised n mediant Isth through this
causing a blockage for the through traffic.
3. The weaving distance between the northbound Lonq Such Freeway off -ramp and the intersection of Florence Avenue and Eastern Avenue Is marginal. Eastbound traffic experiences difficulty merging to the Fier"' ems Avenue left turn pocket at Eastern Avenue after exiting the Long Beach Freeway.
C. The Bicycle Club haw inadequate parking facilities and patrons must park on the access roadway reducing the number of available travel lanes.
S. The Ajax Avenue/Florence Avenue intersection is so close to the Eastern Avenue/ Florence Avenue Intersection that westbound traffic stacks through the intersection blocking vehicles on Ajax Avenue during the peak hours.
1 2
An explanation of the ICU calculations are included In the appendix.
A complete Level of Service description can be found in the appendix of this redact.
-2-
Exhibit 2
352
o
• lbMA IZIO INT><RUCTION
• STOP SON
O • MUMMER OP THIPOUOM TRAY1I. LAMS
IN IIOTH OIMICTION$
(SELL OAMOENI idMRemAC1 440,ACT
WILLOAN ASSOCIATES
L.2.47
Valgssiliii aloe ok.awke»e I
4 EXISTING (1988)
ROADWAY CONDITION
S
FIGURE
= �
4 Exhibit 2
353
Pumas Tufmc
Growth In background traffic was estimated at one percent per experi�a indicates that this estimate is reasonable for established veeri mast
urbanized areas when Deputations are relatively stable. This tra later tto is 1!!
net growth of four percent from the 1114 traffic volumes to the 0 vatu a The year 1294 was chosen as the year of expected full occu a proposed profile!.. ^cY for he
No Pro eet Traffic Conditions - 1990
Intersection Capacity Utilization catcutations were recomputed foe the 1!!0 RN, Project" conditions and are shown in RI intersections maintain the same level of s� 4. Undr this scenario, di all except the Intersection of Eastern Avenue/ ice as with existing conditions a
LOS "° 0" to "E' during the PM Cage Avenue which g� from a Avenue/Ajax Avenue which peak hour and the intersection et Florence hour, goes from a LOS 'A' to "Ss during the AM peak
-4-
Exhibit 2
354
TRIP C IRATTON DISTRIBUTION ANO ASSICZT
Trf C !l1111
The protected trio generation of a land use can be determined appropriate trip generation rates by land use quantities, Tables �ui'laryin9 rates are expressed In terns of vehicle trip ends per dwells a generation Aer acre or vehicle trip ends per thousand s n9. per eeA 01ce, Vehicle trips ends are donned as one-way vehicular Movemient ts doer exiting the generating land use. Mteringcor
Traffic volumes generated by the proposed
the publication of "Trip Cenerattan - An Infbroj ect +"ere ore" da ba*id on
the institute of Transportation Engineers. rmational Report" d oped by land use within the project arse a shown in r 1, 1. description and sa=e of each able 1.
Additional Trsff1C Canerstfon Considerations
Then Is substantial trip generation dotal which suggests that the types of land uses proposed for the development site will •
of business from the existing traffic stream. The In and S p amound tlon of Covernments' trip generation rates weed to Identify the dewloop+Mnt related trsff'ie do not account for this. Therefore, It Is resesnable to expel that this protect will actually generate less "new" traffic on the street systems than shown in Table 1. for comparison purposes, this analysts identifies the development related impacts. assuming a 25 percent reduction in traffic gen- eration due to this anticipated factor.
Trip Distribution and Assignment
Trip distribution is the determination of the general direction to be taken by traffic generated from a land use. It is based on the geographical location of commercial, business, residential and recreational opportunities.
Trip assignment Is the determination of the specific route that projected traffic will take once the general traffic distribution is determined. The rnaloe factors affecting route selection are minimum time path and minimum distance path. Often the minimum time and distance paths are one and the same. When the two paths are different, the minimum time path will usually take precedence, assuming all other considerations are equal. Other consid- erations might be aesthetic quality of alternate routes. grades and so forth.
It should be noted that minimal time path is cognisant of congestion. As a T
"Trip Generation - An Informational Report', Institute of Transportation Engineers, 1983.
"Restoring Passerby Trips into Traffic Impact Analyses", Public Works, May 11U.
-1-
Exhibit 2
355
roeciWay's volume approaches capacity.
lye on the shortest distance
alternative Nutt tikes las time. Trot
Rath,
gating speeds deerss�.
Oath will decrease the s anUin t •
fie will thin divert to the s ti! an
nest time
The protect site consists primarily of existing residential development strf0 commercial development along Eastern Avenue. Trip With based on the Institute of Transportation Engineers "Trip eneration �tloM racy study conducted by the City of San Olego indicate that for the typal ales
of uses In the prefect area, T 70 trips per residential acre tYpdd tripe per commercial acre Per day are a O�* tin' and add generation rate! used. Table 3 fists the appropriate. Tibia 2 oudlnes the trip antount o
reek...mai devccoment within the profeeet ara a fr existing he CO nMrcfai and generated by the existing uses. a'g t aead traffic
The total reduction in trips Identified In Table 3 was subtracted from project- ed traffic volumes for the project to account for the removal of existing uses.
Pro set Resisted !"+pacts
The protected traffic from Tablet (after shibtrsetinq the effects of existing uses) was distributed throughout the surrounding street system and assigned to the Intersections in the study arse. These volumes were then added. to the background traffic for the year 1110.
Intersection Capacity Utilization calculations were them recomputed for the with protest• scenario and are depicted In Figure S. These results ire then compared to the existing and "no protect• scenario In Table C. As Indicated in Table 4, upon a full occupancy of the proposed pro act, all Intersections will operate at a Level of Service "p• except for the following:
intersection
Eastern Avenue/Gage Avenue
Eastern Avenue/ Ludell Street
Eastern Avenue/ Florence Avenue
Eastern AvenuelCiars Street
_9 -
Peek Period
PM
PM
Pi F
PM
Exhibit 2
356
TABLE 2
TRIP GENERATION RA } POR EXISTING LAND USES
Land Use
t Residential
2 Commerc tai
1 2
Unit
Acre
Acre
AM Pule
13 10
PM Ptak ajz
17 170
50 a00
Residential trips of 170 per sore der day determined by the ITE 'Trio Generation Manual" and by evaluation of the -14 acres of existing resi- dential development In the Protect Area.
Commercial trips of '100 per acre per day from the City of San Diego recommended trip generation rates for freestanding Retail/Strip Conmer- cial,
TAILI 3
TRAFFIC GENERATED BY EXISTING LAND USES
Land
Commerclai
Residential
1 4.00
14.00 Daily1
Trip
Rate
400
170
Total
Trios
1 ,b00
2,720
Determination of daily trip rates for existing uses described In Table 2. -11
Exhibit 2 357
TALE
BELL GARDENS MARKETPL ACE PROJECT
ICU COMP ARISON - WITH EXISTING ROADWAY C ONDITIONS
Inlerse clian
EastarnlGag•
Ea slarnl Lubec
Eas terni Loeds1l
EastsrniFlorenca
Ftoren calAjax
Easta rn1Fry
Ea stern/ Uva Oa k
EaalarnlClara
Existing Conditions 1116 1!!11 is
11.6 No Proj ect Project Ares i
AM PM AM Pt~t AM PM
s •.66
•.42 A
•.33 A
•.1S C
6.5, A
6.35 A
6.32 A
6.A A
•.16 D
8.61 8
6 .61 8
6 .84 D
6 .64 8
4.41 A
6.52 A
6.13 E
6.688
0 .43 A
0.34 A
6.78 C
•.62 8
6.36 A
6.33 A
0.54 A
6.14 E
6.63 8
6.63 8
6.97 D
6.67 8
6.46 A
1.53 A
6.17 E
6.68 8
0 .44 A
0.53 A
6 .12 D
6.62 8
6 .37 A
0.34 A
6.55 A
1.00 E
•.6! 8
1.16 F
1.•6 F
•.6! B
•.53 A
•.5• A
• .!1 E
2. P*o+Icia a 1$ -foot wld. twe•tarWl 1n and two-#snf out drivihway it the sivolized location.
3• Prairie, 121 feet of dasr on -sit• stacking distance at the main antranc*.
a. All athe driveways should bo restricted to right turn in and r; out only by tla oresefCe of raked m.dlans on Eastern Avenue. right turn -IS-
Exhibit 2
359
TABLE S
BELL GARDENS MARKETPLACE PROJECT
IC U C OMP ARISON - /ITN MITIGATION
Inlersec Iton
EasternlG•age
Easlerni Liabec
Eastern! Ludsll
EasternlFlorenc e
F lorencelAjau
Easler nlfry
East:rnll.lye Oak
Eastern/Clara
•ISS
Existing Conditions 1191 1966 w ProOct
1616 No Projecl Prot Are a 6 w M
.U1 PM AM PM AM PM AM
•.6S B 6.16 D 1.61 8 1.64E 6 .61 8 1.66E •.61 8
6.41A 6.61 B 6.43A 6.638 6 .4#A 6.668 •.36A
6.33 A • .61 B 6.34 A 1.63 8 6 .51 A 1.16 F 6.37 A
• .7S C 6 .140 1.71C • .17D 1.120 1.66 F •.7$8
6.59 A 6.64 8 6.62 8 6 .67 8 6.62 B 6.611 8 6.62 8
6.35 A 6.4] A 40.16 A D •.61 A 6.37 A 6.53 A 6.21 A
6.32 A • .S2A 1.33 A 6.53 A 6.34A 6.56A 6.34 A
6.52 A • .93 E 6.54 A $.17 E 6.55 A 11.96E 6.42 A
RECORDING REQUESTED BY )
AND WHEN RECORDED RETURN TO: )
BROWN, WINFIELD & CANZONERI )
300 S. Grand Avenue )
Suite 1500 )
Los Angeles, California 90071-3125 )
Attention: Dennis Roy, Esq. )
MEMORANDUM OF LEASE
(a) Parties. This Memorandum of Lease, dated for
identification purposes only September 1, 1989, is entered into by THE BELL GARDENS REDEVELOPMENT AGENCY, a public body, corporate and politic ("Landlord") and BELL GARDENS ASSOCIATES, a California general partnership ("Tenant").
(b) Grant of Lease: Term: For good and valuable
consideration received, Landlord leases to Tenant, and Tenant leases from Landlord, that certain improved real property (the "Property") located in the County of Los Angeles, State of Cali- fornia, described in Exhibit "A" attached hereto and incorporated herein by this reference, for a term commencing on September 1, 1989, and ending on September 1, 2044, subject to the terms, conditions, provisions and covenants of that certain Shopping Center Ground Lease (the "Lease") between the parties hereto, dated for identification purposes only September 1, 1989. Al]. of the terms, provisions and covenants of the Lease are incorporated in this Memorandum of Lease by reference as though written out at length herein, and the Lease and this Memorandum of Lease shall be deemed to constitute a single instrument or document. (c) Purpose of Memorandum of Lease. This Memorandum
of Lease is prepared for recordation purposes only, and it in no way modifies the terms, conditions, provisions and covenants of the Lease. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum of Lease and the Lease, the terms, conditions and covenants of the Lease shall prevail.
The parties hereto have executed this Memorandum of
Lease at the place and on the dates specified immediately adja- cent to their respective signatures.
"Landlord"
BELL GARDENS REDEVELOPMENT
AGENCY, a public body,
corporate -and politic
By:
nude L. Booker,
Executive Director
E:058Oa058.051/003
"Tenant"
BELL GARDENS ASSOCIATES,
a California general partnership
By: HOPKINS DEVELOPMENT COMPANY,
L.P., a Delaware limited
partnership, General Partner
By: STEPHEN HOPKINS
DEVELOPMENT COMPANY OF
NEWPORT BEACH,
a California corporation,
General Partner
By: ( ( /K_
Stephen C. Hopkins,
President
-1- 0721B9-3
Exhibit 2
361
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
ss.
)
On September 1, 1989 before me, the undersigned, a
Notary Public in and for said State, personally appeared CLAUDE L. BOOKER, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as its Executive Director on behalf of the BELL GARDENS REDEVELOPMENT AGENCY, the public entity therein named, and acknowledged to me that said public entity executed the within instrument.
WITNESS my hand and official seal.
LEANNA KKELTNER
PIGi,,.hY JU$LC
LOS ANGELES COUNTY
My comm, expires MAR IS, I992
STATE OF CALIFORNIA
E.
COUNTY OF LOS ANGELES )
� J /
Notary Public in and for the
State of California
On September 1, 1989, before me, the undersigned, a
Notary Public in and for said State, personally appeared Stephen C. Hopkins, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as President and John D. Hopkins, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as of STEPHEN HOPKINS DEVELOPMENT COMPANY OF NEWPORT
BEACH, a California corporation, said corporation being known to me (or proved to me on the basis of satisfactory evidence) to be a general partner of HOPKINS DEVELOPMENT COMPANY, L.P., a Delaware limited partnership, said limited partnership being known to me (or proved to me on the basis of satisfactory evi- dence) to be a general partner of BELL GARDENS ASSOCIATES, a California general partnership, the partnership which executed the within instrument, and acknowledged to me that said cor- poration executed the within instrument pursuant to its bylaws or a resolution of its board of directors, that such corporation executed the same as such general partner of said limited partnership, that said limited partnership executed the within instrument as general partner of the partnership last above named, and that said partnership last above named executed the same.
WITNESS my hand and official seal.
L ANNA `(.ELTNEP,
LOS ANGELES COLNfY
My camm- expires MAR 15 1992
E:0580a058.051/003
Notary Public in and for the
State of California
-3- 072169-3
Exhibit 2 362
EXHIBIT WAN
A portion of t A of ok as P40 3
of Maps. Lots 1tthrough r4cinclusivi, ins Block pl d Lots 1recordedlthrn ough 6 inclusive, in Block 2 of Tract No. 11453, as per map recorded in look 207 Pages 27 and 28 of Maps. and a portion of Lot S and all of Lots 6 through 8 inclusive,in BIock • 1 . portions of Lots 5 and 6, in Block 2, Lots 1 through 4 Inclusive, in Block 3, and portions of Lots 6 through 8, inclusive, and all of Lots 1 through 5 inetusivf, 1n Block 4, all of Tract No. 11456, as per :tap recorded in Book 207 Pages 29 and 30 of Maps, all In tn= City of Bell Gardens. County of Los Mpelas. State of California.
Together with those portions of Specht Avenue, Ludell Strut. Marlow Avenue. and the unnamed alleys lying within Tract No. 11453, as perr maprecorded in Book 207 07 Aages 27 and 28 of is 29 and 30 of Maps, and within Los, and Tract t lA4of�Tracas taMo. 3562, as O��er�map r*gook torded in Book of which38Page rrecordedBonfAprll 11, s. 1989.ted saspinsr trueention Mo. Mo. 82-56160. OfficialoRecords.
Exhibit 2
363
conditions or restrictions of the DDA, (ii) this Assignment does not relieve Assignor of day-to-day control of and responsibility for development, construction, leasing and/or management of the Property or any of its obligations under the DDA, (iii) Assignor remains fully responsible to Agency in accordance with the terms and provisions of the DDA, (iv) unless Agency's prior written consent is obtained, Assignor shall at all times retain at least fifty percent (50%) management and operating voting control of Assignee, and (v) all consideration received by or payable to Assignor for such assignment shall be reinvested in the develop- ment of the Property or used to reimburse Assignor for amounts previously invested in the Property.
Notwithstanding anything to the contrary contained in
the individual Guaranty of DDA, dated as of May 24, 1988, ("Guaranty") executed by Stephen C. Hopkins ("Guarantor"), the execution of this Assignment or the Agency's approval thereof shall not release Guarantor from any of his covenants and obligations under said Guaranty, and, as a condition precedent to the effectiveness of this Assignment, Guarantor shall execute a document acknowledging that such Guaranty remains effective notwithstanding this Assignment and that Guarantor shall thereafter continue to guaranty the obligations of the Assignee under the DDA upon the terms set forth in the Guaranty.
4. Indemnification by Assignor. Assignor agrees to
indemnify Assignee against and to hold Assignee harmless from any loss, damage, liability, cost or expense, including attorneys' fees and costs incurred as a consequence of any act or occurrence originating prior to the date of this Assignment and arising under the DDA.
5. Indemnification by Assignee. Assignee agrees to
indemnify Assignor against and to hold Assignor harmless from any loss, damage, liability, cost or expense, including attorneys' fees and costs incurred as a consequence of any act or occurrence originating from and after the date of this Assignment and arising under the DDA.
6. Effective Date. This Assignment shall be
effective upon the execution of this Assignment.
7. Binding on Successors. The provisions of this
Assignment shall bind and inure to the benefit of the heirs, representatives, successors and assigns of the Parties hereto.
8. Counterparts. This Assignment may be executed in
several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
9. Definitions. Unless otherwise defined herein, all
defined terms shall have the meanings ascribed to them in the DDA.
10. No Waiver. Assignor and Assignee each acknowledge
and agree that Agency's approval of the Assignment shall not constitute consent to or approval of any other assignment or Transfer (as defined in Section 1.2.11 of the DDA) and each such other assignment or Transfer shall be undertaken in compliance with all terms of the DDA, including any requirements for approval by the Agency.
11. Further Acts. The Parties agree to execute and
deliver any further documents and to perform any further actions reasonably requested by any other party in order to fulfill the intention hereof.
12. Attorneys Fees. In the event of any litigation
between the Agency and the Assignor or Assignee to enforce any of the provisions of this Assignment, the prevailing party shall be E:0580a052.051/003
- 2 - 071289-10
Exhibit 2 364
"ASSIGNEE"
BELL GARDENS ASSOCIATES, a
California general partnership
By: HOPKINS DEVELOPMENT COMPANY, LP,
a Delaware limited partnership
General Partner
By: STEPHEN HOPKINS
DEVELOPMENT COMPANY OF
NEWPORT BEACH, a California
corporation
General Partner
r
By:
Stephen' C. Hopkins
President
By: MATTSHAN CORPORATION,
a California corporation
General Partner
ATTEST:
�C-?t-> G - /_1 "
i
Clerk C y k
APPROVED AS TO FORM:
BROWN, WINFIELD & CANZONERI, INC.
Attorneys for Agency
By:
Denn s S. J, Esq.
Sy:
"AGENCY"
6-‘,/
D. Hopki
resident
THE BELL GARDENS REDEVELOPMENT
AGENCY
By:
a L. Booker
Executive Director
[This signature page is a part of that document entitled Assignment and Assumption of Disposition and Development Agreement and Consent of Agency.]
E:0580a052.051/003
- 4 - 071289-10
Exhibit 2
365
rWSTAMERICAN TITLE COMPANY OF LA.
"SUBDIVISION"
RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:
Brown, Winfield & Canzoneri, Inc.
300 S. Grand Ave, Suite 1500
Los Angeles, California 90071
Attn: Steven Abram, Esq.
92- 93642'7
. •t:Ca�ns
lye
1.°S CAUFOR A
3x J
MtH. 4 P.M. MAY 221992
p1 ST.
SPACE *ROVE FOR RECORDER'S USE
FIRST AMENDMENT TO BELL GARDENS SHOPPING CENTER GROUND PLEAS
AND DISPOSITION AND DEVELOPMENT AGREEMENT
This First Amendment ("First Amendment") to Bell Gardens Shopping Center Ground Lease and Disposition and Development Agreement is dated for identification purposes as of March 20, 1992, and is entered into by and between the following
(collectively, the "Parties"): THE BELL GARDENS REDEVELOPMENT AGENCY, a public body corporate and politic ("Landlord"), and BELL GARDENS ASSOCIATES, a California general partnership ("Tenant").
This First Amendment is made and entered into with reference to the following facts:
RECITALS
A. The Parties have previously entered into that certain.
Bell Gardens Shopping Center Ground Lease, dated for identification purposes as of September 1, 1989 (the "Ground Lease"), a memorandum of which was recorded in the official Records of Los Angeles County, California, on December 20, 1989 as Instrument No. 89- 2048053. The Ground Lease covers that certain real property in the County of Los Angeles, State of California legally described on Exhibit "I" attached hereto, together with all buildings, structures, improvements and fixtures now or hereafter erected thereon ("Shopping Center").
B. A11 of the property subject to the Ground Lease is also subject to that certain Disposition and Development Agreement dated as of May 23, 1988 for identification purposes ("DDA") entered into by and between Landlord and Hopkins Development Co., L.P., a Delaware limited partnership ("Hopkins"). Tenant acquired Hopkins' rights and obligations under the DDA by means of that certain Assignment and Assumption of Disposition and Development Agreement and Consent of Agency, dated as of September 1, 1989, and recorded in the Official Records of Los Angeles County, California on December 20, 1989 as Instrument No. 89-2048052.
C. Pursuant to Section 5.7 of the Ground Lease and Section
6.6 of the DDA, Landlord has made a loan to Tenant in the current outstanding principal amount of Nine Hundred Thousand Dollars ($900,000) ("Agency's Loan"). Both the Ground Lease and the DDA I:1000S1SEC1AORlueOS80A.lBG.ALG -1 -
Q5/21/92.1
.� ,T 2oI _ /
Exhibit 2 366
provide that until the entire outstanding balance of the Agency's Loan, with interest as provided therein, is repaid in full, the Agency is entitled to participate in any Net Sale Proceeds and Net Refinancing Proceeds (the "Agency Participation") as more particularly described in the Ground Lease and the DDA.
D. The Chase Manhattan Bank, N.A., a national banking
association ("Chase"), has, as of the date of this First Amendment, advanced Ten Million Four Hundred Seventy -Eight Thousand Five Hundred and Twenty -Two Dollars ($10,478,522) to Tenant pursuant to a loan ("Project Loan") made to Tenant by Chase. The terns of the Project Loan provide for a maximum principal amount outstanding of Eleven Million Eight Hundred Ninety -Six Thousand Dollars ($11,896,000). The DDA and Ground Lease require that the proceeds of the Project Loan are to be used by Tenant to fund construction of the Improvements on the Leased Premises and related costs and for no other purposes. The Project Loan is secured by, inter alit,, that certain Leasehold Deed of Trust, Assignment of Rents and Security Agreement dated September 29, 1989, and recorded on December 20, 19$9, as instrument No. 89-2048055 of the Official Records of Los Angeles County, California ("First Trust Deed").
Tenant and Chase have executed, delivered and recorded, or intend in the next several weeks to execute, deliver and record that certain First Modification to Leasehold Deed of Trust, Assignment of Rents and Security Agreement dated as of February 28, 1992 ("First Trust Deed Modification").
E. Tenant is currently in default of its obligations under the Ground Lease, the DDA and the Project Loan.
F. Chase and Tenant are considering restructuring the
Project Loan and other financings in effect between Chase and entities affiliated with Tenant. The proposed refinancing would involve (i) additional advances by Chase to Tenant under the Project Loan, a portion of which are to be used by Tenant to fund costs and obligations of affiliates of Tenant in connection with other projects, and (ii) the recordation against the Leased Premises by Chase of (x) a second leasehold deed of trust (the "Second Trust Deed") as additional security for the obligations of San Pablo Associates ("San Pablo"), an affiliate of Tenant, to Chase under a revolving construction loan (maximum principal amount outstanding not to exceed' $15,226,275.19) made by Chase to San Pablo in connection with that certain shopping center project constructed and operated by San Pablo and located in the City of San Pablo, Contra Costa County, California, and (y) a third leasehold deed of trust (the "Third Trust Deed") as additional security for a $700,000 operating loan made by Chase to Tenant.
G. The discharge ("Discharge") of petroleum from gasoline tanks which were previously located under that portion of the Leased Premises depicted on the Site Plan as Pad "A" ("Pad A") has been discovered under Pad A.
1:1DDLV4ECIABRN110580AA8G.ALG
-2-
92-.936427
05/21/92.1
Exhibit 2 367
H. The Parties wish to amend the Ground Lease and the DDA, as provided hereinbelow, to (i) permit the advance of funds to Tenant under the Project Loan for certain limited expenditures other than the construction of the Improvements on the Leased Premises, (ii) permit recordation of the First Trust Deed Modification, Second Trust Deed and Third Trust Deed, (iii) provide certain Limited exceptions to Tenant's obligation to pay Landlord a percentage of the Net Sale Proceeds and the Net Refinancing Proceeds which may accrue in connection with the execution, delivery and recordation of the First Trust Deed Modification, Second Trust Deed and the Third Trust Deed and certain other permitted transfers and refinancings as expressly specified hereinbelow, (iv) provide for the implementation of certain specified soil remediation measures on Pad A, (v) reflect the agreement between the Parties respecting Tenant's obligation to pay rent on Pad A in light of the remediation work to be performed as provided in (iv) above, and (vi) provide a schedule for payment by Tenant of all due and unpaid Rent under the Ground Lease.
NOW, THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby supplement and amend the Ground Lease and the DDA as provided hereinbelow.
AGREEMENT
1.. Consent to First Trust Deed Modification Second Jr≥st, Deed and Third Trust Deed: Landlord's Priority.. Landlord hereby consents to recordation of the First Trust Deed Modification, the Second Trust Deed and the Third Trust Deed, on the condition that:
(i) each such instrument shall expressly acknowledge that it encumbers only the Tenant's interest under the Ground Lease and does not encumber or constitute any sort of lien upon Landlord's fee interest in the Leased Premises, and each such instrument shall further expressly acknowledge that Chase's rights under such instrument are subject to the terms of the Groans' Lease and the DDA, as amended by this First Amendment, including without limitation Landlord's rights thereunder to receive the Agency Participation, and (ii) Landlord shall have received a letter from Chase executed by an authorized representative of Chase (x) consenting to this First Amendment and acknowledging each of the above matters, and (y) representing to Landlord the "Sale Deduction Amount" (as defined in Section 3 below) as of the date of this First Amendment. Reference is hereby made to that certain Collateral Assignment of Development and Disposition Agreement dated as of September 29, 1989 (the "DDA Assignment") made by Tenant to Chase pursuant to which Tenant collaterally assigned to Chase all of its right, title and interest in and to the DOA as additional security for the Project Loan. Landlord consented to the DDA Assignment pursuant to the Consent and Agreement dated September 7, 1989 (the "Agency Consent"). Landlord hereby reaffirms its consent to Tenant's collateral assignment of the DDA, as amended by this First Amendment, to Chase as additional security : osocs\Smmeemn8omm.ex -3 -
92- 936427
05/21/92-5
Exhibit 2 368
for the Project Loan subject to the terns and conditions set forth in the Agency Consent excepting Sections ld and le thereof.
Landlord hereby further consents to Tenant's collateral assignment of the DDA, as amended by this First Amendment, to Chase as additional security for the obligations of Tenant secured by the Second Trust Deed and the Third Trust Deed, subject to the terms and conditions set forth in the Agency Consent excepting Sections ld and le thereof.
2. Exempt Transfers. Notwithstanding the provisions of
Section 5.7 of the Ground Lease and Section 6.6 of the DDA, Tenant shall not be obligated to pay to Landlord any portion of any Net Sale Proceeds or Net Refinancing Proceeds which result from the following transfers and refinancings ("Exempt Transfers"):
(a) execution, delivery and recordation of the First
Trust Deed Modification;
(b) execution, delivery and recordation of the Second
Trust Deed;
(c) execution, delivery and recordation of the Third
Trust Deed; and
(d) the transfer to Chase or any wholly -owned subsidiary of Chase of Tenant's rights and interest under the Ground Lease, as amended by this First Amendment, by reason of any judicial or non - judicial foreclosure of the First Trust Deed (as amended by the First Trust Deed Modification if and when the same is executed, delivered and recorded), the Second Trust Deed or the Third Trust Deed, or pursuant to any bona fide deed -in -lieu executed by Tenant and delivered to Chase or any wholly -owned subsidiary of Chase in connection with the loans secured by the above -referenced Trust Deeds.
3. Non -Exempt Sale. For purposes of Section 5.7.3(c) of the Ground Lease and the first paragraph of Section 6.6.3(c) of the DDA, the phrase "financing secured by the Leased Premises" and the phrase "financing secured by the Site" shall be deemed not to refer to any of the following:
(a) any amounts, obligations or monies secured by the First Trust Deed, as may be amended by the First Trust Deed Modification, to the extent that the proceeds of such funds are not used for the construction of the initial Improvements within the Shopping Center;
(b) any amounts, obligations or monies secured by the Second Trust Deed; or
(c) any amounts, obligations or ;conies secured by the Third Trust Deed.
::\DOGS\SECIABRAM o58UAA8G.ALG -4-
92- 936427
O5/2t/92-1
Exhibit 2
369
Tenant hereby represents and warrants to Landlord that as of the date of this First Amendment the outstanding principal balance of the loan secured by the First Trust Deed is Ten Million Four Hundred Seventy -Eight Thousand Five Hundred and Twenty -Two Dollars ($10,478,522) (the "Sale Deduction Amount"), and the entire amount of such loan has been applied to project casts incurred in connection with construction of the initial Improvements within the Shopping Center. The only additional advances contemplated by the parties with respect to construction of the initial Improvements within the Shopping Center after the date of this First Amendment are: (i) advances used to construct additional tenant improvements within certain space within the Shopping Center which has yet to be occupied and the construction of the Improvements to be located on Pad A, (ii) advances used to pay certain outstanding mechanics' liens recorded against the Shopping Center or Tenant's interest therein by contractors and/or subcontractors performing improvement work on the Shopping Center, which advances may be up to the amount of Three Hundred and Seventy Five Thousand Dollars ($375,000), and (iii) advances to be used to cure delinquent interest payments in the loan secured by the First Trust Deed, which are in the approximate amount of Five Hundred and Twenty Five Thousand Dollars ($525,000). Tenant recognizes and agrees that the advances described in (iii) in the preceding sentence are pot funds used in construction of the Improvements within the Shopping Center and will pot constitute a deduction from gross sale proceeds or gross refinancing proceeds for purposes of calculating the Agency Participation. Landlord agrees not to unreasonably withhold its consent to any further modification of the First Trust Deed required by Chase to secure reasonable advances to be made by Chase to fund construction of the Improvements to be located on Pad A.
4. }ion -Exempt RJJjnancinq. Notwithstanding any definition in the Ground Lease to the contrary, the term "Leasehold Mortgage" as used in Section 5.7.3(h) of the Ground Lease and Section
6.6.3(h) of the DOA shall be deemed not to refer to any of the following:
(a) any amounts, obligations or monies secured by the First Trust Deed, as it may be amended by the First Trust Deed Modification, to the extent that the proceeds of such funds are not used for the construction of the initial Improvements within the Shopping Center;
(b) any amounts, obligations or monies secured by the Second Trust Deed; or
(c) any amounts, obligations or monies secured by the Third Trust Deed.
This paragraph 4 affects the term "Leasehold Mortgage" only as it is used in Section 5.7.3(h) of the Ground Lease and Section
6.6.3(h) of the DDA, and shall not affect the meaning of the term [:\COGS\SEC\ABEAN\0590AASG.ALN
-5- 05/21/92-1
92- 936427
Exhibit 2 370
"Leasehold Mortgage" as such term is used elsewhere in the Ground Lease or the DDA.
5. Carrv-Forward of Chase Financing. Upon a sale or
refinancing by Chase or any wholly -owned subsidiary of Chase following any Exempt Transfer described in Section 2(d) hereof, Chase or such wholly -owned subsidiary, as Tenant, shall be entitled to deduct an amount equal to the Total Project Loan (as hereinafter defined) for purposes of computing "Net Sale Proceeds" or "Net Refinancing Proceeds" in lieu of the amounts specified in Sections
5.7.3(c)(1) and 5.7.3(h)(ii)(A) of the Ground Lease and Sections
6.6.3(c)(1) and 6.6.3(h)(2)(A) of the DDA, inasmuch as the First Trust Deed (as amended by the First Trust Deed Modification) may have been satisfied or otherwise deemed to have been discharged by virtue of any Exempt Transfer described in Section 2(d) hereof. As used herein, "Total Project Loan" shall mean the Sale Deduction Amount plus the sum of the advances described in clauses (i) and (ii) of the next to last sentence of Section 3 hereof. "Total Project Loan" shall not include any advances made pursuant to clause (iii) of the next to last sentence of Section 3 hereof.
6. Payment re Delinquent Rent and Interest. Upon the
earlier of: (i) recordation of the First Trust Deed Modification, Second Trust Deed and/or the Third Trust Deed, or (ii) June 1, 1992, Tenant shall pay to Landlord the amount of Forty -Two Thousand Three Hundred and Forty -Three Dollars and Thirty -Five Cents ($42,343.35) (the "Delinquency Amount"), which Landlord shall accept as payment in full for all due and unpaid Annual Minimum Rent and Annual Percentage Rent ("Unpaid Rent") and interest on delinquent Unpaid Rent which is due under the Ground Lease as of May 31, 1992 ("Reference Date"). The Delinquency Amount includes (i) Annual Percentage Rent due as of the Reference Date, in the amount of $18,104, and (ii) Annual Minimum Rent due for Pad A as of the Reference Date, in the stipulated amount of Eighteen Thousand Four Hundred Twenty Dollars and Eighty -Five Cents ($18,420.85).
Nothing in this paragraph shall be deemed to waive or otherwise affect.Landlord's right to collect Rent, interest on delinquent Rent, or other obligations accruing or payable after the Reference Date. The Delinquency Amount does not include late charges owing pursuant to Section 3.3 of the Ground Lease as of the Reference Date.
7. Payment re Late Charges. Landlord and Tenant agree that the amount of unpaid and accrued late charges owing pursuant to Section 3.3 of the Ground Lease is Forty -Four Thousand Three Hundred. and Fifty -Nine Dollars ($44,359.) (the "Late Charge Obligation") as of the Reference Date. Tenant shall satisfy the Late Charge Obligation by payment to Landlord, in eighteen equal monthly installments, due on the first day of each month, commencing on June 1, 1992; provided, that if any such monthly installment or other payment of Rent required under the Ground Lease, as amended, is not paid when due, then the entire unpaid I: IDDCS\SEC AaRAM1058OAA8G.ACC
-6- 05/21/92-1
92- 936427
Exhibit 2 371
balance of the Late Charge Obligation shall become immediately due and payable and the failure to pay the same shall constitute an Event of Default under the Ground Lease. Nothing in this paragraph shall be deemed to waive or otherwise affect Landlord's right to collect late charges accruing after the Reference Date.
8. Pad A Releases. Except as to the payments specified in paragraphs 5 and 6 above, Landlord hereby releases Tenant from any obligation to pay any Unpaid Rent, interest or late charges accruing prior to the Reference Date with respect to Pad A. Except with respect to Landlord's obligations under paragraph 9 hereinbelow, Tenant hereby releases Landlord from any Losses and Liabilities which may have arisen or which may arise from or relate to (i) the condition of Pad A, or (ii) construction or remediation activities on Pad A undertaken prior to the date hereof. The foregoing releases shall apply to both known and unknown obligations, and known and unknown Losses and Liabilities with respect to the Pad A obligations described above, and, with respect to these specific releases (but not other matters), the parties hereby waive the application, if any, of Section 1542 of the california Civil Code which provides:
A general release does not extend to claims which the
creditor does not now 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.
9. Soil Remediation on Pad A. Landlord shall at no cost to Tenant install or cause to be installed on Pad A a vapor extraction system ("VES") of a type and scope which substantially conforms to the VES detailed in that certain document entitled "Notice Inviting Bids for Soil Remediation Using Vapor Extraction System at Former Thrifty Oil Site in the City of Bell Gardens -- Fiscal Year 1992," prepared for Tenant by The Earth Technology Corporation and presented to Landlord in January, 1992 ("Notice Inviting Bids"), as such Notice Inviting Bids may be amended from time to time with the mutual consent of the Parties, which consent shall not be unreasonably withheld. Landlord shall be responsible for all costs of installation and maintenance of the VES, and shall cause the VES to be operated until such time as Landlord's environmental consultant certifies that the necessary state and federal agencies no longer require such operation in connection with remediation of Pad A. Tenant shall cooperate reasonably in allowing access to Landlord and its agents for the purpose of installing and maintaining the VES. Except as expressly provided above, Tenant acknowledges that it has accepted possession of the Leased Premises (including Pad A) in accordance with and subject to the provisions of the Ground Lease and the DDA, including without limitation Section 2.3 of the Ground Lease and Section 1.2.2 of the DDA.
10. Bent Holiday €or .Pad A. No Annual Minimum Rent shall I:toocstsEcueau 16580AAac.ALG
-7-
92- 936427
05/2t/92.1
Exhibit 2 372
accrue with respect to Pad A ("Pad A Rent Holiday") for the period ("Pad A Rent Holiday Period") commencing upon the date of this First Amendment and ending on the date ("Lapse Date") which is six months following the date on which installation of the VES is certified as complete by Landlord's Environmental Consultant.
Provided, however, that in the event that Tenant demonstrates, to Landlord's reasonable satisfaction, that notwithstanding the installation of the VES, Tenant remains unable to secure, because of the presence of the contaminants being remediated by the VES, the permits necessary to legally permit it to proceed with the construction of the Improvements required to be installed by Tenant on Pad A (the "Required Permits"), the Pad A Rent Holiday Period shall continue beyond the Lapse Date until the earlier of (i) the date on which Tenant secures the Required Permits, or (ii) the date which is six months following the date on which Landlord's environmental consultant certifies (the "Certification") that the soil remediation on Pad A for which the VES was installed (the "Remediation") has been completed. Landlord shall, upon Landlord's receipt of the Certification, deliver written notice (the "Completion Notice") to Tenant stating that the Remediation has been completed, together with a copy of the Certification. The Remediation shall be conclusively deemed to have been accomplished unless Tenant, in its reasonable discretion, determines that the Remediation has not been completed and delivers written notice (the "Contest Notice") to Landlord contesting the Certification within fourteen (14) calendar days following delivery of the Completion Notice. Such Contest Notice shall specify the grounds upon which Tenant objects to the Completion Notice and the Certification.
In the event Tenant delivers the Contest Notice, Landlord may elect to either (i) perform further Remediation on Pad A in which event Annual Minimum Rent for Pad A shall continue to be waived until delivery of a new Certification and Completion Notice pursuant to the procedure set forth in the preceding paragraph, or, (ii) submit the determination of whether the Remediation has been completed to a judicial reference proceeding conducted pursuant to Section 638 et. seq. of the California Code of Civil Procedure (or such successor statute or amendment thereto as may hereafter be enacted). Landlord and Tenant agree that such reference shall be maintained in Los Angeles County and that the Superior Court of the State of California for Los Angeles County shall have personal jurisdiction over it in any such action or proceeding. Such reference shall be ordered by said Court to any member of the Los Angeles County trial panel of retired judges, promptly upon commencement of such action or proceeding, by agreement of Landlord and Tenant or (failing such agreement) upon motion brought by either of the Parties. The prevailing party in any such proceeding, including appeal, shall be entitled to its reasonable legal fees and costs incurred in respect thereto. During the pendency of any judicial reference action and any appeal therefrom respecting whether the Remediation of Pad A has been completed, Tenant shall not be obligated to pay to Landlord Annual Minimum I:\DOCS\SEC\ABRAM\OSLGAABG.ALG
~S- 05/21t92.1
92- 936427
Exhibit 2 373
Rent for Pad A but shall instead pay into an escrow account (the "Escrow") established by Landlord with a title company or independent escrow holder selected by Landlord, all Annual Minimum Rent which would be owing Landlord with respect to Pad A if a Contest Notice had not been delivered by Tenant to Landlord. The Annual Minimum Rent held in the Escrow shall earn interest and all amounts deposited in Escrow, including interest, shall be immediately disbursed to Landlord or Tenant as determined by the reference judge following conclusion of that proceeding and any appeal therefrom.
11. Resumption of Pad A Rent Obligation. From and after the expiration of the Pad A Rent Holiday Period, Rent (including Annual minimum Rent, Annual Percentage Rent, late charges and interest) shall accrue with respect to Pad A at the rates specified in the Ground Lease. The timing of periodic increases and adjustments in Rent for Pad A shall not be affected by the Pad A Rent Holiday Period, and shall occur at the time they would have occurred in the absence of the Pad A Rent Holiday. The Pad A Rent Holiday shall apply only to Annual Minimum Rent, and shall not apply to other sums required to be paid by Tenant as additional Rent pursuant to provisions of the Ground Lease, including without limitation the provisions of Sections 5.3, 9.1, 9.7 and 13.3 of the Ground Lease.
12. Schedule of Performance for Pert A Improvements. Tenant shall without cost to Landlord construct certain restaurant and related Improvements as described in the Ground Lease and the DDA on and around Pad A within the times specified on the Supplemental Schedule of Performance attached hereto as Exhibit "2", which Exhibit supplements the Schedule of Performance attached as Exhibit "D" to the Ground Lease. The failure to timely commence and complete these Improvements shall constitute an Event of Default under the Ground Lease and the DDA .
13. Reaffirmation of Ground Lease and DDA; Conflicting Terms.
Except to the extent such terms and provisions are modified by this First Amendment, the terms and provisions of the Ground Lease and of the DDA are hereby reaffirmed by Landlord and Tenant, including without limitation the restrictions on Tenant's right to transfer and assign its interest thereunder. The conditional approval given in paragraph 1 hereinabove to certain loans and transfers shall not constitute a waiver of any such restrictions, and shall not constitute approval of any loans or transfers other than those contemplated by the form of First Trust Deed Modification, Second Trust Deed, Third Trust Deed and related loan documentation provided by Chase and Tenant to Landlord prior to the date hereof.
In the event any term or provision hereof is inconsistent with a term or provision of the Ground Lease or of the DDA, the term or provision hereof shall govern.
14. Confirmation of Agency's Loan Outstanding. Tenant and the Agency hereby confirm that, as of the Reference Date, the total I:IDOCSISCC\AIRAM10560AA66.ALL
-9-
s2- 936427
OSf21/F2.1
Exhibit 2 374
principal and accrued interest outstanding on the Agency's Loan is Nine Hundred Ninety -Three Thousand Four Hundred and Thirty -Five Dollars and Thirty -Six Cents ($993,435.36).
15. Incorporation of Exhibits. The exhibits attached to this First Amendment are hereby incorporated by reference into the body of this First Amendment as if set forth in full herein.
16. Incorporation of Defined Terms. Unless otherwise defined in this First Amendment, all defined terms herein shall have the definitions assigned to them in the Ground Lease, which definitions are hereby incorporated into this First Amendment to the extent they are not inconsistent with the terms hereof.
17. jrcornoration of First Amendment into Ground Lease. The provisions hereof are hereby incorporated into the Ground Lease.
Except to the extent that such provisions of the Ground Lease are amended by this First Amendment, the terms and provisions hereof shall be subject to the notice, default, cure, remedy and other provisions of the Ground Lease.
18. Guaranty of Lease. Concurrently with its execution of this First Amendment, and as a condition precedent to the effectiveness thereof, Tenant shall secure and deliver to Landlord an executed Consent to Amendment and Affirmation of Guaranty in the form attached hereto as Exhibit "3".
19. Recordation. Upon the execution and delivery of this First Amendment by Landlord and Tenant, Landlord shall cause this First Amendment to be recorded in the Official Records of Los Angeles County, California.
20. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original document, and all of which together shall constitute one and the same instrument. In the event of counterpart execution, all original signature pages may be attached to one original text for purposes of recordation.
1000CS\SEC Vl8R04105a0AA9G. ALG
-10- 05/x1/92 -t
92- 9364V
Exhibit 2 375
i
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date first above written.
TENANT:
BELL GARDENS ASSOCIATES,
a California general partnership
By: HOPKINS DEVELOPMENT COMPANY, L.P.,
a Delaware limited partnership
General Partner
By: STEPHEN HOPKINS DEVELOPMENT
COMPANY OF NEWPORT BEACH,
a California corporation,
General Partner
By:
Steph,ei:..C. Hopkins,
Pre 1dent
By:
By:
nn D. HopkiIiso
ice President
Thomas D. Lenny, an in ividual,
General Partner
LANDLORD:
ATTEST: BELL GARDENS REDEVELOPMENT AGENCY
By:
William Vasquez,
Agency Secretary Executive Director
APPROVED AS TO FORM:
BROWN, WINFIELD & CANZONERI, INC.
Landlord Attorney
By:
Dennis Roy, Esq.
I : 1,00CS\SEC WWAM0586M9G. At6
—11-
92 936427
o5/n1/92.1
Exhibit 2 376
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date first above written.
TENANT:
BELL GARDENS ASSOCIATES,
a California general partnership
By: HOPKINS DEVELOPMENT COMPANY, L.P.,
a Delaware limited partnership
General Partner
By: STEPHEN HOPICINS DEVELOPMENT
COMPANY OF NEWPORT BEACH,
a California corporation,
General Partner
By:
Stephen C. Hopkins,
President
ATTEST:
i;
By:
By:
John D. Hopkins,
Vice President
Thomas D. Lenny, an individual,
General Partner
LANDLORD:
BELL GARDENS REDEVELOPMENT AGENCY
By: f.
illiam Vasquez,,
Agency Secretary Executive Dire
APPROVED AS TO FORM:
BROWN, WINFIELD & CANZONERI, INC.
Landlord Attorney
By:
Den
1;\00CS\SEWBRAM\0SSCAABG.ALG
-11-
92- 936427
65/21/91--1
Exhibit 2 377
STATE OF CALIFORNIA
COUNTY OF [ f rry,
HOPKINS DEVELOPMENT
) SS. COMPANY, L.P.
On �` L L , 1992, before me, f' (; i , 1 f 1'1r11ry ?Y r/'(t ! i , a Notary Pudic, personally appeared Stephen . Hopkins, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity on behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
'MACE(71 IW
OAMOECOUNIT
im
A0129.
Kota., PitioDawes
kV 19V4M
STATE OF CALIFORNIA
COUNTY OF L}' !; f Vf
J
on 'i16l- ,ra[_ , 1992, before me, ; 1 11_i "��r{'l , irr`r-'r{ ft-; a Notary Public, personally appeared John E. Hopkins, personally known to me (or proved to me on the basis o satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity on behalf of which the person acted, executed the instrument.
Notary
WITNESS my hand and official seal.
1:1 DOCSkSECNABRAK\OS$OM G.ua
)
) SS.
HOPKINS DEVELOPMENT
COMPANY, L.P.
Notary Pub ],CI
-12-
92- 936427
05/21/92-1
Exhibit 2 378
STATE OF CALIFORNIA
COUNTY OF (...„0,r(4„
On '"_•)I i � , 1992, before me, iV(L 0) '}•'r -v (r r) " +. P\ , a Notary Public, personally appeared Thomas' D. Lenny, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity on behalf of which the person acted, executed the instrument.
THOMAS D. LENNY
WITNESS my hand and official seal.
STATE OF CALIFORNIA
COUNTY OF
Notary
}
} SS.
FELL GARDENS
REDEVELOPMENT AGENCY
On , 1992, before me, a
Notary Public, personally appeared William Vasquez, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity on behalf of which the person aster, executed the instrument.
WITNESS my hand and -official seal.
1:\D0GS\SEC\A AA\4580AA8G.ALG
Notary Public
-13- 45/27/92-7
92- 936427
Exhibit 2 379
STATE OF CALIFORNIA
COUNTY OF Los Angeles
}
) SS.
O ::: D. L
On May 21, , 1992, before me, Nancy A. Hicham , a
Notary Public, personally appeared Thomas D. Lenny, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity on behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
STATE OF CALIFORNIA
COUNTY OF Los Angeles
Notary Public
)
SS.
)
SE GARDENS
LO s AGENCY
On May 21. , 1992, before me, Nancy A. Ni©ham , a
Notary Public, personally appeared William Vasquez, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity on behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
1 : VOCS\SECVLIMA$0.05500.84.ALG
Notary Public
-13-92-•64
05/21/92.1
Exhibit 2 380
TABLE OP EXHIBITS
EXHIBIT "1"
EXHIBIT "2"
EXHIBIT "3"
I:\DOCS\SEC\ABRPM\05EOMBG.ALG
LEGAL DESCRIPTION OF PROPERTY
SUBJECT TO GROUND LEASE
SUPPLEMENTARY SCHEDULE OP
PERFORMANCE
CONSENT TO AMENDMENT AND
AFFIRMATION OF GUARANTY
-14-
92- 936427
05121/92.1
Exhibit 2
381
EXHIBIT `1'
LEGAL DESCRIPTION
Real PSowty
That certain real property situated in the State
of California, County of Los. Angeles, City of Bell Gardens, and legally described as follows:
PARCELS 1 THROUGH 15 INCLUSIVE OF PARCEL MAP NO.
20044, IN THE CITY OF BELL GARDENS, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER PARCEL MAP
FILED IN BOOK 244, PAGES 18 THROUGH 23 INCLUSIVE
OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF LOS ANGELES COUNTY.
EXCEPT THEREFROM, ALL OIL, GASES, MINERALS AND
HYDROCARBON SUBSTANCES IN AND UNDER SAID REAL
PROPERTY AS RESERVED IN VARIOUS DEEDS OF RECORD
ONE OF THEN BEING REGISTERED ON TUNE 14, 1945, AS
DOCUMENT NO. 10090-N OF TORRENS.
92- 936427
Exhibit 2 382
EXHIBIT "2"
CHEDULE OF PERFORMANCE
1. ACTION
Execution and Delivery of
First Amendment to Bell
Gardens Shopping Center Ground
Lease and Disposition and
Development Agreement.
2. Tenant delivers as -built plans
for all_ of -site improvements
previously constructed by or
on behalf of Tenant in
connection with the Shopping
Center.
3. Submission -- Construction
Drawings. Landscape and
Grading Plan. Tenant shall
prepare and submit to Landlord
construction drawings, and
landscape and grading plans
for the Pad A Improvements.
4. Approval -- Construction
Drawings. Landscape and
Grading Plans. Landlord shall
approve or disapprove the
construction drawings,
landscape and grading plans.
5. Submission -- Construction
Contract and General Contrac-
tor. Tenant shall submit a
binding Construction Contract
with a General Contractor for
construction of the Pad A
Improvements.
6. Approval -- Construction Con-
tract and General Contractor.
Landlord shall approve, or
disapprove Tenant's
Construction Contract and
General Contractor.
K:1000S`SEC \RGY‘0580AALE.J2/3 - 1 -
DATE
Within 30 days after
Landlord execution of
First Amendment. (Event
1)
Within 45 days after
Agency execution of the
First Amendment.
(Event 1)
Within 30 days after
receipt by Landlord.
(Event 3)
Within 30 days after
Landlord approves Final
Construction Drawings.
(Event 4)
Within 30 days of receipt
by Landlord. (Event 5)
92- 936427
05/21192.3
Exhibit 2 383
ACTION
7. Commencement of Censtructi_on.
Tenant shall commence
construction of the Pad A
Improvements.
8. Completion of Construction.
Tenant shall complete
construction of the
improvements on the Leased
Premises, including Pad A.
9. jssua_nce -- Certificate of
Completion. Landlord shall
furnish Tenant with a Certifi-
cate of Completion in accor-
dance with the requirements of
the OD? and the Lease.
K:\DOGS\SEC\ROT\O56OMCE.J213
OATS
Within 30 days after
approval of Construction
Contract and General
Contractor by Agency;
provided that, in no
event shall Tenant be
required to commence
construction of the Pad A
Improvements so long as
Tenant demonstrates, to
Landlord's reasonable
satisfaction, that
notwithstanding Land-
lord's installation of
the Vapor Extraction
System (IVES") upon
Pad A, Tenant remains
unable to secure, because
of the presence of the
contaminants being
remediated by the VES,
the permits necessary to
legally permit it to
proceed with construction
of the Pad A Improve-
ments. (Event 6)
Within 6 months after
commencement of
construction. (Event 7}
Promptly after
satisfactory completion
of all construction
required to be completed
by Tenant on the Leased
Premises and upon written
request therefor by
Tenant. (Event 8)
92- 936427
-2- 05/21/92.3
Exhibit 2
384
EXHIBIT "3"
CONSENT TO AMENDMENT AND AFFIRMATION OP GUARANTY
As an inducement for the Landlord executing and
delivering the foregoing First Amendment to Bell Gardens Shopping Center Lease and Disposition and Development Agreement (the "First Amendment"), the undersigned, being the guarantor of Tenant's obligations under the Ground Lease pursuant to that certain Guaranty of Lease dated as of September 1, 1989 (the "Guaranty"), hereby consents to the First Amendment and agrees that the modifications effected by the First Amendment shall not affect or limit in any way his obligations under the Guaranty. The undersigned hereby reaffirms all of his obligations under the Guaranty.
Dated as of: March 20, 1992
Stephen c. Hopkins
1:\DOG$\SECNABNAM\O5D0AABG.ALG
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92- 936427
05/21/92-1
Exhibit 2 385
SPOUSE'S CONSENT AND AFFIRMATION OP WAIVER
or COMMUNITY PROPERTY RIGHTS
I hereby acknowledg. that I have read and understand the contents of that certain First Amendment to Bell Gardens Shopping Center Ground Lease and Disposition and Development Agreement (the "First Amendment") and that certain Consent to Amendment and Affirmation of Guaranty (the "Consent") dated as of March 20, 1992, given by my spouse, Stephen C. Hopkins, to the Redevelopment Agency of City of Bell Gardens ("Landlord") in connection with that certain Guaranty of Ground Lease ("Guaranty") dated as of September 1, 1989 executed by my spouse to secure that certain Ground Lease (the "Lease") dated as of September 1, 1989, between Landlord and Bell Gardens Associates, a California general partnership.
I hereby give my full, unconditional and unequivocal
consent to the First Amendment and my spouse's execution of the Consent and agree that the Spouse's Consent and Waiver of Community Property Rights with Respect to Guaranty of Lease executed by mein connection with the Guaranty is not affected or limited in any way by the First Amendment and I hereby reaffirm my spousal consent to the Guaranty and my waiver of any and all rights that I might have to object to the Landlord executing on our community property in connection with any lawsuit brought or judgment obtained by the Landlord in connection with the Guaranty.
Dated as of: March 20, 1992
Denise F. Hopkins
92- 93642'7
[;WOOS\SEC\AIRAM\G5SOAA24.ALG
-2 _
05/21/92-1
Exhibit 2 386
CITY OF BELL GARDENS
OFFICE OF THE CITY MANAGER
AGENDA REPORT
Item 9.
TO:
FROM:
BY:
SUBJECT:
Honorable Mayor and City Council Members
Michael B. O'Kelly, City Manager
Gustavo Romo, Director of Community Development
CONSIDERATION OF A RESOLUTION AUTHORIZING ACCEPTANCE OF THE
CALIFORNIA DEPARTMENT OF TRANSPORTATION SUSTAINABLE
TRANSPORTATION PLANNING GRANT FUNDING
DATE: October 9, 2023
RECOMMENDATION:
It is staff's recommendation that the City Council adopt a Resolution authorizing acceptance of the California Department of Transportation Sustainable Transportation Planning Grant funding.
BACKGROUND/DISCUSSION:
The City of Bell Gardens ("City") was recently conditionally awarded two grants from Caltrans totaling $566,625 ($211,175 and $355,450, respectively). The $211,175 grant award will be used to develop a Climate Action Plan ("CAP") to address reduction in greenhouse gas emissions, adopt resilience strategies, and identify clean energy targets as well as economic and social goals. The $355,450 grant award will assist in the creation of a Transit Oriented Community ("TOC") Specific Plan to address mobility, connectivity, and active transportation ridership where needed.
In July 2017, California's legislature passed Assembly Bill 398 ("AB 398") to reauthorize and extend until 2030 the state's economy -wide greenhouse gas ("GHG") reduction program setting the current GHG target of at least forty percent (40%) below the 1990 level of emissions by the year 2030. As of 2015, about eighty-six percent (86%) of California's GHG emissions were related to the consumption of energy. The original bill that established the state's greenhouse gas reduction program, AB 32, passed in 2006 and authorized the California Air Resources Board ("CARB") to monitor and regulate sources emitting greenhouse gases. The initial target was to reduce emissions to the 1990 level by 2020. An executive order from California's governor targets an eighty percent (80%) reduction from 1990 levels by 2050. The California Department of Transportation ("Caltrans") announced programs to support state and federally mandated initiatives for strategic planning, long-range and integrated transportation, environmental justice, and climate action for transportation infrastructure. Caltrans received a total of 161 applications with requests totaling approximately $66.8 million. Of those applications, 90 are being awarded, totaling approximately $41.6 million. The City was conditionally awarded grants to further the Regional Transportation Plan ("RTP")/Sustainable Communities Strategy ("SCS").
California's climate leadership has made the ambitious commitment to reduce GHG emissions and facilitate a transition to a carbon neutral economy. However, impacts of climate change are occurring sooner than expected and are disproportionately affecting the most vulnerable among us in disadvantaged communities. Many impacts are expected to become more frequent and severe. Caltrans awarded three cycles of local adaptation planning grants allocated through the passage of SB 1 for climate vulnerability and risk assessments, planning for extreme weather events, resilience improvement plans, natural and green infrastructure planning, technical feasibility studies, technical assistance projects for vulnerable communities, and development of educational materials and resources. 387
The Sustainable Transportation Planning Grant Program includes:
• Sustainable Communities Grants ($29.5 million) to encourage local and regional planning that supports state goals to achieve the state's GHG reduction target. • Climate Adaptation Planning Grants ($50 million) to support local and regional identification of transportation -related climate vulnerabilities through the development of climate adaptation plans, as well as project -level adaptation planning to identify adaptation projects and strategies for transportation infrastructure.
• Strategic Partnerships Grants ($4.5 million) to identify and address statewide, interregional, or regional transportation deficiencies on the state highway system in partnership with Caltrans.
In 2020, the Los Angeles County Metropolitan Transportation Authority ("Metro") Board adopted the Transit -Oriented Community ("TOC") Implementation Plan, which established a series of actions for Metro to carry out directly, or in partnership with others, to realize equitable TOCs. Bell Gardens took part in a Metro funding program that provided a free TOC grant writing assistance opportunity with Evan Brooks Associates ("EBA"). EBA is a full -service strategic planning firm offering project management, grant writing, multi -modal studies, community outreach, and environmental compliance services for public agencies to assist in achieving their desired capital program, operations efficiency, and project development goals.
The City submitted grant applications with the assistance of grant writing firms Global Urban Strategies, Inc. and EBA Planning. The applications demonstrated how a proposed CAP and TOC would promote climate change adaptation planning and would align with Caltrans' goals to identify and address transportation, housing, and land use adaptation coordination and contribute to shifts in land use toward a more sustainable and equitable area, and therefore, region, and state through contribution to the state's GHG reduction targets.
CONCLUSION:
The proposed projects aim to develop a climate action plan and address connectivity challenges with a TOC that would serve as comprehensive planning documents to guide future land use development and transportation access, leading towards a more resilient infrastructure that could adapt to climatechange and build a more sustainable community.
Acceptance of the funding will allow the City to recover costs associated with the development and deployment of these plans to implement equitable climate change mitigation measures that both property owners and renters can implement. It will also assist in the improvement of mobility infrastructure and access.
FISCAL IMPACT:
Local matches of $27,815 and $46,052, are required, respectively, for the $211,175 and $355,450 grant awards.
Requests for Proposals ("RFPs") will be prepared for both programs. The budgets will be required to fall within the grant amounts awarded. Expenditures for staff time necessary and reasonable for the accomplishment of program objectives but not paid for by the grants would be credited towards meeting the local match requirements.
ATTACHMENTS:
Exhibit 1 - Resolution No. 2023-83
Exhibit 2 - Executive Order N-73-20
388
APPROVED ELECTRONICALLY BY:
Michael B. O'Kelly, City Manager
Stephanie Vasquez, City Attorney and/or Susie Altamirano, Assistant City Attorney Manuel Carrillo, Director of Finance and Administrative Services
RESOLUTION NO. 2023-83
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELL
GARDENS, CALIFORNIA AUTHORIZING ACCEPTANCE OF THE
CALIFORNIA DEPARTMENT OF TRANSPORTATION SUSTAINABLE
TRANSPORTATION PLANNING GRANT FUNDING
WHEREAS, in July 2017, California's legislature passed Assembly Bill 398 ("AB 398") to reauthorize and extend until 2030, the state's economy -wide greenhouse gas ("GHG") reduction program setting the current GHG target of at least forty percent (40%) below the 1990 level of emissions by the year 2030;
WHEREAS, the California Department of Transportation ("Caltrans") announced programs to support state and federally mandated initiatives for strategic planning, long- range and integrated transportation, environmental justice, and climate action for transportation infrastructure;
WHEREAS, the City of Bell Gardens ("City") received grant writing assistance from grant writers Evan Brooks Associates and Global Urban Strategies, Inc., firms offering project management, grant writing, multi -modal studies, community outreach, and environmental compliance services for public agencies to assist in achieving their desired capital program, operations efficiency, and project development goals; WHEREAS, climate change effects are occurring sooner than expected and are disproportionately affecting the most vulnerable among us in disadvantaged communities; WHEREAS, the City is committed to creating a more sustainable, resilient, and equitable community for area residents to help mitigate the effects of climate change; WHEREAS, staff submitted applications that clearly demonstrated how a proposed climate action plan and a proposed specific plan would promote climate change adaptation planning and would align with Caltrans goals to identify and address transportation, housing, and land use adaptation coordination and contribute to shifts in land use toward more a more sustainable and equitable area, and therefore, region, and state through contribution to the state's GHG reduction targets;
WHEREAS, the City was recently conditionally awarded two grants from Caltrans totaling $566,625 ($211,175 and $355,450, respectively); WHEREAS, the $211,175 grant award will be used to develop a Climate Action Plan ("CAP") to address reduction in greenhouse gas emissions, adopt resilience strategies, and identify clean energy targets as well as economic and social goals; WHEREAS, the $355,450 award grant will assist in the creation of a Transit Oriented Community ("TOC") plan to address mobility, connectivity, and active transportation ridership where needed;
Exhibit 1 390
Resolution No. 2023-83
WHEREAS, a local match of $27,815 and $46,052, are required, respectively, for the $211,175 and $355,450 grants, and a Request for Proposals ("RFP") will be prepared for both projects, which will require the budgets to fall within the grant amounts; and WHEREAS, the City Council has determined that it will use Caltrans grant funds for the development and deployment of climate action plan and transit -oriented community specific plan as described in its application for grant funds.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Bell Gardens as follows:
SECTION 1. The City Council of the City of Bell Gardens hereby finds that the above recitals are true and correct and incorporated herein by this reference.
SECTION 2. The City Council hereby authorizes acceptance of the California Department of Transportation Sustainable Transportation Planning Grant funding.
SECTION 3. The City Council hereby authorizes the City Manager to execute any Caltrans grant agreements, including any extensions or amendments thereof and any subsequent Caltrans grant agreements in relation thereto.
SECTION 4. The City of Bell Gardens agrees to abide by the terms and conditions as set forth by Caltrans.
SECTION 5. The provisions of this Resolution are severable. If any provision, clause, sentence, word, or part thereof is found to be illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impact any of the remaining provisions, clauses, sentences, sections, words, or parts thereof the Resolution or their applicability to other persons or circumstances.
SECTION 6. The City Clerk shall attest and certify to the passage and adoption of this Resolution and enter into the book of original resolutions, and it shall become effective immediately upon its approval.
Exhibit 1
2 914
Resolution No. 2023-83
PASSED, APPROVED and ADOPTED this 9th day of October 2023.
THE CITY OF BELL GARDENS
Francis De Leon Sanchez, Mayor
APPROVED AS TO FORM: ATTEST:
Stephanie Vasquez Daisy Gomez, MMC
City Attorney City Clerk
Exhibit 1
Resolution No. 2023-83
I, , City Clerk of the City of Bell Gardens, hereby CERTIFY that City Council Resolution No. was adopted by the Bell Gardens City Council at a regular meeting of the City Council held on , and was approved and passed by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Exhibit 1
EXECUTIVE DEPARTMENT
STATE OF CALIFORNIA
EXECUTIVE ORDER N-73-20
WHEREAS deploying affordable and reliable broadband networks throughout California will accelerate continuous improvements in economic and workforce development, infrastructure, public safety, education, economy, and an engaged citizenry; and
WHEREAS broadband access, adoption, and training are essential components of digital equity for California's diverse populations; and WHEREAS over 2,000,000 Californians do not have access to high-speed broadband service at benchmark speeds of 100 megabits per second download, including 50 percent of rural housing units; and WHEREAS as of December 2018, 23 percent of California housing units, housing 8.4 million residents, do not have broadband subscriptions; and WHEREAS despite the increasing importance of broadband for employment, health, public safety information and community connections, 34 percent of adults 60 and over do not currently use the Internet; and WHEREAS the COVID-19 pandemic has amplified the extent to which broadband is essential for public safety, public health, and economic resilience; and
WHEREAS the COVID-19 pandemic has caused schools to shift to distance learning; and
WHEREAS telehealth greatly expands the ability of Californians to access medical, behavioral and oral health services, and has been prioritized across health systems during the COVID-19 pandemic, yet not all Californians have access to sufficient broadband to allow live video connections; and WHEREAS effective emergency services require using broadband infrastructure to integrate data in real time from all available sources so decision makers at the local, regional, and statewide level have access to the information necessary for the protection of lives and property; and WHEREAS local and tribal governments play a critical role in understanding the broadband needs of their communities and in infrastructure planning and permitting.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the power and authority vested in me by the Constitution and statutes of the State of California, do hereby issue this Order to become effective immediately.
vhjhit ?
IT IS HEREBY ORDERED THAT:
California state agencies subject to my authority are directed to pursue a minimum broadband speed goal of 10O megabits per second download speed to guide infrastructure investments and program implementation to benefit all Californians..
2, The California Broadband Council is requested to create a new State Broadband Action Plan by December 31, 2020 and to review the plan annually thereafter. The California Department of Technology's Office of Broadband and Digital Literacy is directed to support and monitor implementation of the Plan and this Executive Order. The Plan shall incorporate the 100 megabits per second goal, and include the following elements:
a. A roadmap to accelerate the deployment and adoption of broadband by state agencies and to support such deployment and adoption by local governments.
b. Publicly accessible information on all federal and state funding opportunities and eligibility requirements.
c. Provisions to maximize the inclusion of tribal lands in all broadband access and adoption opportunities developed in consultation with tribal governments.
MAPPING AND DATA
3. The California Public Utilities Commission (CPUC) is requested to lead data aggregation and mapping efforts in collaboration with the California State Transportation Agency (CaISTA) and other relevant state agencies, local and tribal governments, and regional consortia. These efforts should address:
a. Locations without broadband access;
b. Information on public and private broadband network
infrastructure;
c. State-owned infrastructure and rights of way;
d. The costs of deploying various middle and last -mile network components; and
e. Information to support the development of local broadband infrastructure deployment and digital equity plans.
4. The California Department of Technology (CDT), in collaboration with the Governor's Office of Business and Economic Development (GO -Biz) and the Department of General Services (D S), is directed to regularly convene private -sector companies in an effort to understand and predict current and future demand for broadband, for the purpose of enabling the State to more effectively allocate resources and manage policies and Exhibit 2
395
programs supporting broadband goals and continuing the State's leadership in broadband innovation.
FUNDING
5. GO -Biz is directed to identify funding opportunities for broadband deployment and adoption by:
a. Collaborating with all cabinet -level agencies, independent departments, and independent constitutional officers to create a list of funding sources to support broadband, equipment, and digital literacy; and
b. Coordinating efforts of state agencies to maximize federal broadband funding for California..
6. CDT, in collaboration with DGS, is directed to seek opportunities to leverage the State's contract authorities as resources to further statewide broadband access and adoption.
DEPLOYMENT
7. CaISTA and California Department of Transportallon (Caltrans) are directed to work with the California Transportation Commission (CTC) to identify and incorporate the installation of conduit and/or fiber into all appropriate and feasible transportation projects along strategic corridors.
8. CPUC, in collaboration with CDT and other relevant agencies, is requested to seek opportunities to use programs under its jurisdiction to accelerate broadband deployment and to leverage utility infrastructure to increase access to existing fiber and cost-effectively deploy new fiber.
9. DGS is directed to provide an inventory of state property for possible use for broadband infrastructure based on such criteria as may be provided by the CPUC, Caltrans, and other relevant agencies, to accelerate broadband deployment.
10. The Governor's Office of Emergency Services (CaiOES) is directed to coordinate with jurisdictions implementing Next -Generation 9-1-1 to expand broadband infrastructure to enhance public safety and disaster preparedness, response, recovery, and mitigation capabilities. 1 1.The California Department of Food and Agriculture (CDFA) is directed to identify and facilitate new broadband projects that support precision agriculture and food systems in rural communities. CDFA is also directed to work with CaIOES to inventory the status of existing broadband connectivity at all fairgrounds.
1 .The California Department of Housing and Community Development and the California Housing Finance Agency are directed to provide recommendations to the CPUC to increase free or low-cost broadband connectivity at all publicly subsidized housing communities for residential units.
Exhibit 2
396
ADOPTION
1 . GO -Biz is directed to coordinate the outreach efforts of existing statewide programs and institutions to inform residents of affordable Internet service offerings, including.
a. The CPUC is requested to develop tools for low-income individuals and social service organizations to easily identify and subscribe to affordable broadband plans;
b. The California Emerging Technologies Fund is directed to continue promoting affordable home Internet service offers to recipients of the National School Lunch Program; and
c. The California State Library, in consultation with local libraries, is directed to promote affordable home Internet services within their communities.
1 4.The California Department of Education is requested to continue leading statewide efforts to ensure that students have the computing devices and connectivity necessary for distance learning and online instruction,.
15.The California Department of Aging, in partnership with CDT and CPUC, is directed to analyze the needs of people ages 60 and older for access to affordable, reliable, high-speed broadband, and to identify program and partnership opportunities to close the digital divide among older Californians.
IT IS FURTHER ORDERED that, as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given to this Order.
This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.
IN WIT ESS HEREOF I ave hereunto set
y h, d and cause. the Great Seal of the
California to ,e affixed this 14th
ust 2020
GA NEWSO
. ' rnor of California
ATTEST:
ALEX PADILLA
Secretary of State
Exhibit 2
397
CITY OF BELL GARDENS
OFFICE OF THE CITY MANAGER
AGENDA REPORT
Item 10.
TO: Honorable Mayor and City Council Members
FROM: Michael B. O'Kelly, City Manager
BY: Hailes H. Soto, Assistant to the City Manager
SUBJECT: ADOPTION OF RESOLUTION AUTHORIZING THE TERMINATION OF ECO-RAPID
TRANSIT (ERT)
DATE: October 9, 2023
RECOMMENDATION:
It is staff's recommendation that the City Council adopt the attached resolution which authorizes its ERT representative to vote to terminate ERT and directs the City Manager and staff to take all needed actions to complete the City's withdrawal from ERT.
BACKGROUND/DISCUSSION:
ERT, formally known as Orangeline Development Authority, is a Joint Powers Authority formed in 2003 to pursue development of a transit system along the Gateway Cities Corridor that moves as rapidly as possible, uses grade separation as appropriate, and is environmentally friendly and energy efficient. The City became a member of ERT on Upon the execution of Resolution No. 2012-54 on September 24, 2012.
In part due to ERT's advocacy, LA Metro has resolved to develop the WSAB project — a light rail transit line that will connect southeast LA County to downtown Los Angeles. Therefore, ERT has served its purpose. During ERT's July 12, 2023 Regular Meeting, the ERT Board of Directors approved an annual budget through Resolution No. 2023-05, with the intention of restructuring the agency by December 31, 2023. The ERT Board of Directors unanimously voted in support of the formal termination of the Joint Powers Authority on September 13, 2023 and directed their staff to proceed with necessary steps (see attached ERT Board report dated 9/13/2023 and draft meeting minutes). The ERT General Counsel's Office prepared a template resolution for every member agency to formally adopt the resolution or something similar before voting to terminate at their last ERT Board meeting on November 8, 2023.
The City selected Council Member Marco Barcena to serve on the ERT Board of Directors as its representative. If the resolution is approved, the City authorizes Council Member Barcena to vote to terminate ERT and directs the City Manager and staff to take all needed actions to complete the City's withdrawal from ERT, including paying any amounts owed to ERT as final membership dues.
CONCLUSION:
In part due to ERT's advocacy, LA Metro has resolved to develop the WSAB project which is a light rail transit line that will connect southeast LA County to downtown Los Angeles. Therefore, ERT served its purpose and the ERT Board of Directors desires to terminate ERT. The City authorizes its ERT representative to vote to terminate ERT.
FISCAL IMPACT:
The attached resolution directs the City Manager and staff to take all needed actions to complete the City's 398
withdrawal from ERT, including paying any amounts owed to ERT as final membership dues. Upon the termination of ERT, the City of Bell Gardens will save approximately $4,000 a year.
ATTACHMENTS:
Exhibit 1 - Resolution No. 2023-84
Exhibit 2 - Resolution No. 2012-54
Exhibit 3 - ERT Board Report 9/13/2023
Exhibit 4 - ERT Board Board Draft Meeting Minutes 9/13/2023 APPROVED ELECTRONICALLY BY:
Michael B. O'Kelly, City Manager
Stephanie Vasquez, City Attorney and/or Susie Altamirano, Assistant City Attorney Manuel Carrillo, Director of Finance and Administrative Services 399
RESOLUTION NO. 2023-84
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELL
GARDENS, CALIFORNIA, AUTHORIZING THE TERMINATION OF THE
ECO-RAPID TRANSIT, FORMALLY KNOWN AS THE ORANGELINE
DEVELOPMENT AUTHORITY
WHEREAS, Eco-Rapid Transit ("ERT"), formally known as Orangeline Development Authority, is a Joint Powers Authority formed in 2003 to pursue development of a transit system along the Gateway Cities Corridor that moves as rapidly as possible, uses grade separation as appropriate, and is environmentally friendly and energy efficient; and
WHEREAS, upon the execution of Resolution No. 2012-54 on September 24, 2012, the City of Bell Gardens ("City") became a member of ERT; and WHEREAS, the City selected Council Member, Marco Barcena, to serve on the ERT Board of Directors as its representative; and
WHEREAS, in part due to ERT's advocacy, Los Angeles County Metropolitan Transportation Authority ("LA Metro") has resolved to develop the West Santa Ana Branch Transit Corridor ("WSAB") project — a light rail transit line that will connect southeast LA County to downtown Los Angeles; and
WHEREAS, ERT has therefore served its purpose; and
WHEREAS, during ERT's July 12, 2023 Regular Meeting, the ERT Board of Directors approved an annual budget through Resolution No. 2023-05, with the intention of restructuring the agency by December 31, 2023; and
WHEREAS, during ERT's September 13, 2023 Regular Meeting, the ERT Board of Directors authorized ERT Executive Director and ERT General Counsel's Office to take steps to terminate ERT subject to final Board approval; and WHEREAS, under Section 3.2(i) of the ERT Joint Powers Agreement, ERT may terminate upon the unanimous vote of its Members; and
WHEREAS, under Section 3.2(a)(7) of the ERT Joint Powers Agreement, any debts of ERT are its own debts, not debts of its members, including the City of Bell Gardens; and
WHEREAS, the ERT Board of Directors desires to terminate ERT.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Bell Gardens as follows:
SECTION 1. The City Council finds that the above recitals are true and correct and incorporate them herein.
Exhibit 1 400
Resolution No. 2023-84
SECTION 2. The City authorizes its ERT representative to vote to terminate ERT under Section 3.2(i) of the ERT Joint Powers Agreement.
SECTION 3. The City directs the City Manager and staff to take all needed actions to complete the City's withdrawal from ERT, including paying any amounts owed to ERT as final membership dues.
SECTION 4. The City Clerk shall attest and certify to the passage and adoption of this Resolution, enter it into the book of original Resolutions, and it shall become effective immediately upon its approval.
PASSED, APPROVED AND ADOPTED this 9th day of October 2023.
THE CITY OF BELL GARDENS
Francis De Leon Sanchez, Mayor
APPROVED AS TO FORM: ATTEST:
Stephanie Vasquez
City Attorney
Daisy Gomez
City Clerk
[Signatures on the following page]
2 of 3
Exhibit 1 401
Resolution No. 2023-84
I, , City Clerk of the City of Bell Gardens, hereby CERTIFY that City Council Resolution No. was adopted by the Bell Gardens City Council at a regular meeting of the City Council held on , and was approved and passed by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Daisy Gomez
City Clerk
2 of 3
Exhibit 1 402
APPROVED AS TO FORM:
Ar ol+ M. Alvarez-Glasman
RESOLUTION NO. 2012-54
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELL GARDENS
ADOPTING THE ORANGELINE DEVELOPMENT AUTHORITY THIRD
AMENDED JOINT EXERCISE OF POWERS AGREEMENT
WHERAS, the City Council of the City of Bell Gardens is joining the Orangeline Development Authority ("OLDA") as a voting member;
WHERAS, the City Council of the City of BeII Gardens approves the Third Amended Joint Exercise of Powers Agreement ("Agreement");
THE CITY COUNCIL OF THE CITY OF BELL GARDENS DOES HEREBY FIND, RESOLVE AND ORDER AS FOLLOWS:
Section 1. The Third Amended Joint Exercise of Powers Agreement, Attached hereto as Exhibit "A" is hereby approved as to form and content.
Section 2. The City Manager or his designee is authorized to execute the Third Amended joint Exercise of Powers Agreement on behalf of the City of BeII Gardens and to forward the executed original to the Secretary of the Orangeline Development Authority.
Section 3. The clerk of the City of BeII Gardens shall certify this Resolution.
PASSED, APPROVED, and ADOPTED this 24th day of September, 2012.
PEDRO ACEITUNO, MAYOR
ATTEST:
Rosalia A. Conde, CMC
Cit ` ttorney City Clerk
Exhibit 2 403
I, ROSALIA A. CONDE, CMC, City Clerk of the City of Bell Gardens, hereby CERTIFY that City Council Resolution No. 2012-54 was adopted by the Bell Gardens City Council at a regular meeting of the City Council held on Monday, September 24, 2012 and was approved and passed by the following vote:
AYES: Council Members Crespo, Flores, Rodriguez, Mayor Aceituno NOES: None
ABSTAIN: None
ABSENT: Mayor Pro -Tern Infanzon
Rosalie A. Con e, CMG
City Clerk
Exhibit 2 404
EXHIBIT A
ORANGELINE DEVELOPMENT AUTHORITY
THIRD AMENDED
JOINT EXERCISE OF POWERS AGREEMENT
71543.1
100744.3
Exhibit 2
405
Attachment 2
TABLE OF CONTENTS
Page No.
ARTICLE I DEFINITIONS 2
Section1.1. Definitions 2
ARTICLE II GENERAL PROVISIONS 3
Section2.1. Creation of Authority. ............... ...................... ...... ................ 3 Section 2.2. Purpose 4
ARTICLE III POWERS 4
Section 3.1. General Powers. 4
Section3.2. Specific Powers 5
(a) Financial 5
(1) Annual Budget 5
(2) Accounts. 5
(3) Expenditures Within Approved Annual Budget 5
(4) Disbursements 6
(5) Audit. 6
(6) Securities. 6
(7) Liabilities 6
(8) Hold Harmless and Indemnification. 6
(b) Condemnation. ..... ......... ....... ............... .......... ..... ........... ...................... 7 (c) Parkland Maintenance 7
(d) Manner of Exercise 7
(e) Compliance with CEQA and NEPA. 7
(f) Contributions. 7
(g) Expulsion 7
(h) Withdrawal 8
(i) Termination of Authority 8
(1) Causes.................... ....... .......... ........... . ........ ..... ......................... 8 (2) Limitations 8
(3) Distribution of Funds and Property. 9
100744.3
Exhibit 2 406
ARTICLE IV ORGANIZATION 9
Section4.1. Members 9
Section4.2. Board 9
(a) Composition f 9
(b) Compensation and Expense Reimbursement 10
(c) Voting 10
(1) Required Vote 10
(2) Proxy and Absentee Votes. 10
(d) Political Reform Act 10
(e) Levine Act 10
(f) Principal Office 10
(g) Meetings 11
(1) Time and Place 11
(2) Call and Conduct 11
Quorum 11
Rules 11
Minutes 11
Section 4.3. Officers 11
(a) Chair and Vice -Chair 11
(b) Secretary 11
(c) Treasurer and Auditor. 11
(d) Executive Director........ ....... ..... ...„ ............................ . ...... 12 (e) Terms. 12
(f) Additional Officers..... ........... ...................... ........ ..... .......................... 12 Section 4.4. Bonding Requirements...... ....... . ................... . ...... 12 Section 4.5. Status of Officers and Employees 12
Section 4.6. Committees 13
(a) Creation 13
(b) Meetings 13
(h)
ARTICLE V MISCELLANEOUS 13
Section 5.1. Amendments. 13
Section 5.2. Notice. 13
-2-
100744.3
Exhibit 2 407
Section 5.3. Attorney's Fees............................................................. . 13 Section5.4. Successors. ..... .......................... ................................... . ......... ................ 13 Section 5.5. Assignment and Delegation. 13
Section 5.6. Counterparts. *r 13
Section 5.7. Severability 13
Section5.8. Integration..........„... .......... ............ ......... ................. . ..... ............... 13 Section 5.7. Execution 13
100744.3
Exhibit 2 408
ORANGELINE DEVELOPMENT AUTHORITY
THIRD AMENDED JOINT EXERCISE OF POWERS AGREEMENT
THIS THIRD AMENDED JOINT EXERCISEC'OF POWERS AGREEMENT (this "Agreement"), is made and entered into by and between those public entities (collectively "Members") whose names are set forth on Exhibit A attached hereto who have authorized and executed this Agreement pursuant to Section 6500 et seq. of the California Government Code and other applicable law as of the ' lay of S. p.lvia
WITNESSETH
WHEREAS, the Members are each authorized and empowered to plan, finance, acquire, and construct and operate transportation facilities and issue bonds to provide the funds therefore; and
WHEREAS, the Members are authorized and empowered to enter into public -private partnerships pursuant to which revenue -generating public accommodations, infrastructure, and services can be designed, funded, constructed, and operated; and WHEREAS, the Act provides that two or more public agencies may by agreement jointly exercise any powers common to the parties to the agreement and may by that agreement create an entity which is separate from the parties to the agreement; and WHEREAS, the parties to this Agreement have each determined that an agency for the joint exercise of their common powers shall be formed to exercise their respective powers for the purpose of establishing one or more public -private partnerships to plan, finance, acquire, construct and operate transportation facilities adjacent to or within the boundaries of the Members and WHEREAS, the Members desire to amend this Agreement to permit any joint powers or other governmental or county agencies within the Sphere of Influence of the Orangeline, to become members of the Orangeline Development Authority; and
WHEREAS, by this Agreement, the Members desire to create and establish the Orangeline Development Authority for the purposes set forth herein and to exercise the powers described herein and as provided by law.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
100744.3
Exhibit 2 409
Section 1.1 Definitions. For the purposes of this Agreement, the following words shall have the following meanings:
"Act" means the Joint Exercise of Powers Act of the State of California, California Government Code Sections 6500-6599.2, inclusive, as it now exists or may hereafter be_amended. "Agreement" means this Joint Exercise of Powers Agreement. "Authority" means the Orangeline Development Authority. "Board of Directors" or "Board" means the governing body of the Authority. "Bonds" means bonds, notes or other obligations of the Authority issued pursuant to any provision of law which may be used by the Authority for the authorization and issuance of bonds, notes or other obligations.
"CEQA" means the California Environmental Quality Act, contained in the California Public Resources Code, Section 21000 et seq., together with the State CEQA Guidelines, 14 CCR §15000 et seq., as they now exist or may hereafter be amended. "Director" means any person serving as the representative of a Member on the Board. "Fiscal Year" means July 1s` to and including the following June 30th or such other period as the Board may specify by resolution.
"Member" means a public agency that is a party to this Agreement. "NEPA" means the National Environmental Policy Act, contained in 42 U.S.C. Section 4321 et seq., as it now exists or may hereafter be amended. "Orangeline" means a high-speed ground transportation service that is provided by an environmentally friendly, grade separated, state-of-the-art high speed transit system in Southern California.
"Orangeline Project" means the activities required to plan, put in place, maintain and maximize the benefits of, the Orangeline.
ty" means a Member.
"Sphere of Influence" means an area that: 1) is within one mile of the right-of-way of the Orangeline; or 2) is within a distance of the right-of-way from which people will travel to use the Orangeline as determined by the Board; or 3) is within an area that is directly or indirectly influenced by or has an influence upon the Orangeline as determined by the Board.
ARTICLE II
GENERAL PROVISIONS
100744.3
Exhibit 2 410
Section 2.1 Creation of Authority. Pursuant to Section 6502iofthe Act, there is hereby created a public entity separate and independent from the Parties hereto, to be known as the "Orangeline Development'•Authority."
(a) Within thirty (30) days after the effective ate of this Agreement and after any amendment, the Authority shall cause a notice of such Agreement or amendment to be prepared and filed with the office of the California Secretary of State containing the information required by California Government Code Section 6503.5. (b) Within ten (10) days after the effective date of this Agreement, the Authority shall cause a statement of the information concerning the Authority, its Members and Directors required by California Government Code Section 53051 to be filed with the office of the California Secretary of State and with the County Clerk of each county in which the Authority maintains an office, and within ten (10) days after any amendment which makes any change in the facts required to be stated pursuant to Subdivision (a) of such Section, a statement of such facts also shall be filed as provided therein.
Section 2.2 Purpose. The purpose of the Authority is to pursue its stated objective to use the common powers of its Members to enter into one or more public -private partnerships to finance, acquire, design, construct, reconstruct, improve, and operate the facilities and improvements to the Orangeline as may be approved by action of the Authority.
ARTICLE III
POWERS
Section 3.1 General Powers. The Authority shall have the power in its own name to exercise any and all common powers of its Members reasonably related to the purposes of the Authority, including but not limited to the powers to:
(a) study the feasibility of and plan for and implement the design, acquisition, financing, construction and operation of the Orangeline; and
(b) seek, receive and administer funding from any available public or private source, including grants or loans under any available federal, state and local programs for assistance in achieving the purposes of the Authority; and
(c) contract for the services of engineers, attorneys, planners, financial and other necessary consultants or entities; and
(d) make and enter into any other contracts; and
employ agents, officers and employees; and
acquire, lease, construct, own, manage, maintain, dispose of or operate (subject to (f)
the limitations herein) any buildings, works or improvements; and -6-
100744.3
Exhibit 2 411
(g) acquire, hold, manage, maintain, or dispose of any other property by any lawful means, including without limitation gift, purchase, eminent domain, lease, lease -purchase, license or sale; and'.
(h) incur all authorized debts, liabilities, and obligations, including issuance and sale of bonds, notes, certificates of participation, bonds authorized pursuant to the Marks -Roos Local Bond Pooling Act of 1985, California Government Code Sections 6584 et seq. (as it now exists or may hereafter be amended) ox any other legal authority common to the Members and such other evidences of indebtedness described in Section 3.2(a)(6) of this Agreement, subject to the limitations herein; and
(i) receive gifts, contributions and donations of property, funds, services and other forms of financial or other assistance from any persons, firms, corporations and governmental entities; and
(j)
sue and be sued in its own name; and
(k) seek the adoption or defeat of any federal, state or local legislation or regulation necessary or desirable to accomplish the stated purposes and objectives of the Au and
(1) adopt rules, regulations, policies, bylaws and procedures governing the operation of the Authority; and
(m) to invest any money in the treasury pursuant to California Government Code Section 6505.5 that is not required for the immediate necessities of the Authority, as the Authority determines is advisable, in the same manner and upon the.same conditions as local agencies, pursuant to Section 53601 of the California Government Code as it now exists or may hereafter be amended; and
(n) to carry out and enforce all the provisions of this Agreement; and (o) exercise all other powers not specifically mentioned herein, but common to Members, and authorized by California Government Code Section 6508.
Section 3.2 Specific Powers.
(a) Financial.
(1) Annual Budget. The Board shall adopt an annual budget for the ensuing fiscal year by a two-thirds (2/3) vote of the Board.
(2) Accounts. All funds will be placed in object accounts and the receipt, transfer, or disbursement of such funds shall be accounted for in accordance with the generally accepted accounting principles applicable to governmental entities, with strict accountability of all funds. All revenues, expenditures and status of bank accounts and investments shall be reported to the Board as frequently as the Board -7-
100744.3
Exhibit 2 412
shall direct and, in any event, not less than annually, pursuant to procedures established by the Board.
(3) Expenditures Within Approved Annual Budget. All expenditures within the limitations of the approved annual budgethshall be made upon approval of the Executive Director in accordance with the rule's, policies and procedures adopted by the Board. However, no expenditure shall be made for the purpose of purchasing or otherwise acquiring real property without prior approval of the Board by the representatives of not less than two-thirds (2/3) of the Members. No expenditures in excess of those budgeted shall be made without the approval of an amended annual budget by the Board pursuant to paragraph (1) of this Section. (4) Disbursements. Warrants shall be drawn upon the approval and written order of the Board and the Board shall requisition the payment of funds only upon approval of claims, disbursements and other requisitions for payment in accordance with this Agreement and other rules, regulations, policies and procedures adopted by the Board.
(5) Audit. The records and accounts of the Authority shall be audited annually by an independent certified public accountant and copies of such audit report shall be filed with the State Controller, the County Auditor in each county in which a Member is located, and shall be provided to each Member no later than fifteen (15) days after receipt of such audit reports by the Authority. In any fiscal year during which the Authority has gross revenues of less than $250,000 the Board may, in its discretion, dispense with such an audit, and instead rely on such other financial review by the Authority's staff or other reviewers as the Board shall deem prudent. (6) Securities. The Authority may use any statutory power available to it under the Act and any other applicable laws of the State of California, whether heretofore or hereinafter enacted or amended, for issuance and sale of any revenue bonds or other evidences of indebtedness necessary or desirable to finance the exercise of any power of the Authority, and may borrow from any source including, without limitation, the federal government, for these purposes. (7) Liabilities. The debts, liabilities and obligations of the Authority shall be the debts, liabilities and obligations of the Authority alone, and not of the Members, although a Member may separately contract for, or assume responsibility for, specific debts, liabilities or obligations of the Authority, as authorized by California Government Code Section 6508.1.
(8) Hold Harmless and Indemnification. To the fullest extent permitted by law, each Member agrees to save, indemnify, defend and hold harmless the Authority and all other Parties from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including attorneys fees and costs, court costs, interest, defense costs, and expert witness fees, where the same arise out of, or are any way attributable in whole or in part, to negligent acts or omissions of the indemnifying Party or its employees or agents, except when acting within the scope -8-
100744.3
Exhibit 2 413
of their authority as employees or agents of the Authority. Where the Authority, or its Parties, in their capacities as Members or agents or employees of the Authority, are held liable for injuries to persons or property, including death, the liability of each Party for contribution or indemnification for such injuries shall be determined by agreement among the Parties or a court oftcompetent jurisdiction, and the Party responsible for liability to the others will indemnify the other Parties to this Agreement for the percentage of liability determined as set forth therein. In the event of liability imposed upon the Authority, or any of its Patties, for injury or death which is caused by the negligent or wrongful act or omission of any Party in the performance of this Agreement, the contribution of the Party or Parties not directly responsible for such negligent or wrongful act or omission shall be limited to one hundred dollars ($100). The Party or Parties directly responsible for such negligent or wrongful acts or omissions shall defend, indemnify and hold the Authority and all other Parties harmless from any liability arising out of such wrongful act or omission.
In no event, however, shall the indemnification of an employee or former employee of the Authority or Member exceed that provided in California Government Code Article 4 of Chapter 1 of Part 2 of Division 3.6, beginning with Section 825, as it now exists or may hereafter be amended. (b) Condemnation. The Authority shall have the power to exercise any available eminent domain power of its Members, upon approval of (i) two-thirds (2/3) of the entire membership of the Board, and (ii) the concurrence of the governing body of any Member(s) within the boundaries of which the real property is to be acquired. (c) Parkland Maintenance. The Authority shall maintain all parkland and open space installed or constructed within the right-of-way of the Orangeline. (d) Manner of Exercise. For purposes of California Government Code Section 6509, the powers of the Authority shall be exercised subject to the restrictions upon the manner of exercising such powers as are imposed upon the City- of Artesia, a general law city, provided, however, that if the City of Artesia shall fail or cease to be a Member, then the Authority shall be restricted in the exercise of its powers in the same manner as the City of Bell, a general law city.
(e) Compliance with CEQA and NEPA. The Authority shall comply with all requirements of CEQA and NEPA as a condition precedent to its commitment to carry out any obligation under this Agreement for which such compliance is required. However, the execution of this Agreement does not constitute a project or approval of any commitment to carry out any project as those terms are used in CEQA and NEPA. (f) Contributions. Individual Members may contribute funds, personnel and equipment to the Authority in furtherance of the purposes of the Authority set forth herein. Pursuant to Government Code Sections 6504, 6512.1 and related provisions, the Authority is empowered after the issuance of bonds or receipt of funds from any other source, to reimburse such Members for such contributions.
-9-
1007443
Exhibit 2 414
(g) Expulsion. A Party may be expelled from the Authprity for violation of this Agreement, upon a vote of three -fourths (3/4) of the entire membership of the Board (excluding the vote of the Party to be expelled), after the Board has given thirty (30) days' written notice to the Party to be expelled of the Authority's intention to expel that Member if the violations of this Agreement identified in thf notice are not cured or, if the cure cannot by its nature be completed within (30) days, commenced within that notice period and diligently pursued to completion. Any Party that fails to execute any amendment to this Agreement within thirty (30) days after execution by the last Member required for approval of such amendment by Section 5.1 of this Agreement, shall be deemed to be expelled on the thirty-first (31st) day after such execution.
Expulsion of a Party shall not relieve the expelled Party of any liabilities imposed upon or incurred by the Party pursuant to this Agreement prior to the effective date of such expulsion. However, such expulsion shall result in the forfeiture of all rights and claims of the expelled Party to any repayment of contributions or advances or other distribution of funds or property after withdrawal, including distribution in the event of termination of the Authority. The Members agree that the liquidated damages provided by this paragraph are necessary and appropriate because the furtherance of the Orangeline Project is a complex venture, which will require sustained, collective effort over a period of years. If a Member fails to fulfill its commitment to the other Members to accomplish the mission of constructing, developing and maintaining the Orangeline, there will be real and substantial injury to the success of the project and to the other Members, which injury is necessarily difficult to quantify. Accordingly, the Members agree the provision of this paragraph and of paragraph (h) below constitute an appropriate measure of the damages an early withdrawal will cause.
(h) Withdrawal. Any Party may withdraw from the Authority at any time, for any reason, by giving written notice to the Board of its intention to do so thirty (30) days prior to the effective date of that withdrawal.
Withdrawal of a Party, however, shall not relieve it of any liabilities imposed upon or incurred by the Party pursuant to this Agreement prior to the effective date of such withdrawal, and such withdrawal shat result in the forfeiture of a1 rights and claims of the withdrawing Party to any repayment of contributions or advances or other distribution of funds or property after withdrawal, including distribution in the event of termination of the Authority.
i)
Termination of Authority.
(1) Causes. The Authority shall terminate, and its assets be distributed in accordance with the provisions of this Agreement, upon the unanimous vote of its Members or at such time as there shall be only one Member remaining. (2) Limitations
a. No termination of the Authority shall occur until all of its debts, liabilities, and obligations, including issuance and sale of bonds, notes, certificates of participation and other evidences of indebtedness described in Section 3.2(a)(6) of -10-
100744.3
Exhibit 2 415
this Agreement are paid or adequate provision for s,uch payment is made in accordance with the resolution of the Authority authorizing issuance and sale thereof.
b. No termination of the Authority shall occur which constitutes or will necessary cause a material breach of any contract or agreement entered into by the Authority.
c. No termination of the Authority shall occur which adversely affects the operation, repair, maintenance, improvement or administration of any facility then owned, leased, permitted, licensed or otherwise controlled by the Authority. d. No termination of the Authority shall occur which is prohibited by law.
(3) Distribution of Funds and Property. Upon termination of the Authority, any remaining funds, property or other assets of the Authority, following discharge of all debts, liabilities and obligations of the Authority, shall be distributed to the Members for any un-reimbursed advances, contributions or in -lieu contributions made or given to the Authority by such Members, and then distributed to all Members in proportion to the contributions to the Authority by the Members. Alternatively, the Board, by a vote of 2/3 of its entire membership, may distribute the assets of the Authority to another public or private non-profit agency capable of using the assets of the Authority for the benefit of the public.
ARTICLE IV
ORGANIZATION
Section 4.1 Members. The Members of the Authority shall be the Members described in the introductory paragraph of this Agreement, and any public agency whose territory lies within the Sphere of Influence of the Orangeline, and which is subsequently added as a Member by approval of the agency's governing body and by the Board of Directors, and which has executed this Agreement and all subsequent amendments, and has not withdrawn nor been expelled thereafter. (a)
Admitting Eligible Public Entities.
(1) Eligible public entities whose names are set forth on Exhibit A to this Agreement "`Eligible Public Entities") shall become Members by 1) adopting this Agreement by a majority vote of the legislative body of the Eligible Public Entity and 2) executing this Agreement and 3) paying in full all dues owed for the then current fiscal year.
(2) Dues shall be established annually by the Board. The dues to be -paid by Los Angeles County and Orange County (the "Counties") will be based u?on the number of Directors the Counties appoint, with separate dues to be ?aid for each Director a -?pointed, u7 to a total of three per County. The Counties, in their sole discretion, may appoint fewer than three Directors and subsequently increase their representation by one or more additional Directors contin ent only on ?ayment in -11-
100744.3
Exhibit 2 416
full of all dues for the then current fiscal year at the time that any additional Director commences representation of the County. The dues to be paid by the City of Los Angeles will be based upon the number of Directors the City of Los Angeles appoints, with se-parate dues to be ?aid for each Director appointed, u7 to a total of six. The City of Los Angeles, in its sole c}lscretion, may op -point fewer than six Directors and subsecuently increase its representation by one or more additional Directors contingent only on -payment in full of all dues for the then current fiscal year at the time that any additional Director commences re -presentation of the City of Los Angeles.. An Eligible Public Entity may be admitted regardless of whether it adopted and signed this Agreement before or after the Effective Date of the last amended Agreement. No vote of the Board of Directors shall be required to admit an Eligible Public Entity.
Section 4.2 Board
(a)
Composition
(1) The Board shall consist of one person designated as a Director by each of a maximum of three Supervisorial Districts of each County choosing to participate, one person designated as a Director by the Mayor of the City of Los Angeles and one person designated by each of a maximum of five Council Districts of the City of Los Angeles choosing to participate and one person designated as a Director by the governing body of each of the remaining Members, as well as non- voting representatives of the California Department of Transportation, Southern California Association of Governments, Los Angeles County Metropolitan Transportation Authority and the Orange County Transportation Authority, and other agencies as determined by the Board. Each Member shall also appoint one or more Alternate Directors.
(2) All Directors and Alternate Directors shall be current members of the governing body of their appointing Member with the exception of the Directors and Alternate Directors of the Counties, the City of Los Angeles and the Burbank - Glendale -Pasadena Airport Authority. The Directors and Alternate Directors from the Counties and the City of Los Angeles shall be employed by or reside in the Supervisorial District or Los Angeles City Council District by whom they were appointed. The Directors and Alternate Directors from the Burbank -Glendale - Pasadena Airport Authority shall be employed by the Authority or reside within the territorial jurisdiction of the airport authority. Directors and Alternate Directors shall serve during the pleasure of their respective appointing authorities and during that pleasure shall hold office for a period of one year, concurrent with the Authority's fiscal year, and thereafter until their successors are selected and qua ified (unless a Director or Alternate Director ceases to qualify for service, as by loss of elective office). Any vacancy caused by a Director or Alternate Director ceasing to serve on the body which appointed him or her or otherwise shall be filed in the same manner as the original appointment. Nothing in this Agreement shall bar the reappointment of a Director or an Alternate Director to successive terms provided that the Director or Alternate Director continues to be qualified to serve. -12-
100744.3
Exhibit 2 417
(b)
Compensation and Expense Reimbursement
All'Directors and Alternate Directors on the Board shall receive a stipend per meeting attended as the Member's voting representative upon a vote of the Board to authorize such stipends. Each Director and 4lternate Director on the Board shall be reimbursed for reasonable and necessary expenses actually incurred in the conduct of the Authority's business, pursuant to an expense reimbursement policy established by the Board prior to such expenses being incurred.
(c) Voting
(1) Required Vote. All actions of the Board shall be by vote of the representatives of a majority of Directors or Alternate Directors present and voting, except as otherwise specifically provided herein.
(2) Proxy and Absentee Votes. Directors and Alternate Directors may not cast proxy or absentee votes. Each Director shall have an equal vote. Each Alternate Director shall have one vote only during the absence of the Director for whom he or she serves as an Alternate Director.
(d) Political Reform Act
Directors and Alternate Directors shall be considered "public officials" within the meaning of the Political Refoini Act of 1974, as amended, and its regulations, for purposes of financial disclosure, conflict of interest and other requirements of such Act and regulations, subject to a contrary opinion or written advice of the California Fair Political Practices Commission. The Authority shall adopt a conflicts of interest code in compliance with the Political Reform Act. (e) Levine Act
Directors and Alternate Directors are "officials" within the meaning of California Government Code Section 84308 et seq., commonly known as the "Levine Act," and subject to the restrictions of such act on the acceptance, solicitation or direction of contributions.
(f) Principal Office
(g)
The principal office of the Authority shall be established or moved to any place in Los Angeles County or Orange County by resolution of the Board.
Meetings
(1) Time and Place. The Board shall meet at the principal office of the Authority, or at such other place designated by the Board if notice is provided in the manner of notice of an adjourned meeting under the Ralph M. Brown Act, California Government Code Section 54950 et seq. The time and place of regular meetings of the Board shall be designated by -13-
100744.3
Exhibit 2 418
resolution adopted by the Board. Notice shall be furnished to each ,Member at least three (3) days prior to the next meeting. At least one regular meeting shall be held each year. (2) Call and Conduct. All meetings of the Board shall be called and conducted in accordance with the provisions of the Ralph M. Brown Act and other applicable law.
(h) Quorum
Directors representing more than 50% of the members shall constitute a quorum of the Board required to conduct the business of the Authority.
Rules
The Board may adopt from time to time rules and regulations for the conduct of meetings of the Board and of the affairs of the Authority consistent with this Agreement and other applicable law.
Minutes
The Secretary of the Authority shall cause minutes of all meetings of the Board to be drafted and mailed to each Member promptly after each such meeting.
Upon approval by the Board, such minutes shall become a part of the official public records of the Authority.
(k) Officers
(1) Chair and Vice -Chair. The Board shall select a Chair and Vice - Chair from among its Directors.
(2) Secretary. The Board shall appoint a Secretary from the Directors or the officers or employees of the Authority or a Member. (3) Treasurer and Auditor. The Board shall appoint an officer or employee of the Authority or an officer or employee of a Member to hold the offices of Treasurer and Auditor of the Authority. Such offices may be held by separate officers or employees or may be combined and held by one such officer or employee, as provided by the Board. Such person or persons shall possess the powers and duties of, and shall perform all Treasurer and Auditor functions for the Authority, including those required or authorised by California Government Code Sections 6505, 6505.5, and 6505.6. (4) Executive Director. The Board shall appoint an Executive Director, which appointment shall require the approval of two-thirds (2/3) of its entire membership. The Executive Director may be an officer or employee of a Member, and shall have full authority and responsibility to implement the purposes and objectives of the Authority, subject only to the general authority of the Board. -14-
Exhibit 2 100744.3
419
ti
(5) Terms. The Chair, Vice -Chair, Secretary, Treasurer and Auditor shall serve during the pleasure of the Board and during that pleasure shall hold office for a period of one year, concurrent with the Authority fiscal year, and thereafter until their successors are selected and qualified (unless the Chair or Vice -Chair should cease to be a member of the Board). The appointment of such persons by the Board shall be evidence that the position of an officer, employee, or agent of the Authority is compatible with those of an officer, employee or agent of any Member.
(6) Additional Officers. The Board may appoint any additional officers deemed necessary or desirable. Such additional officers also may be officers or employees of a Member or of the Authority.
a. Bonding Requirements. The officers or persons designated to have charge o£, handle, or have access to any funds or property of the Authority shall be so designated and empowered by the Board. Each such officer or person shall be required to file an official bond with the Authority in an amount established by the Board. Should the existing bond or bonds of any such officer or persons be extended to cover the obligations provided herein, said bond shall be the official bond required herein. The premiums on any such bonds attributable to the coverage required herein shall be appropriate expenses of the Authority.
b. Status of Officers and Employees. All of the privileges and immunities from liability, exemption from laws, ordinances and rules, all pension, relief, disability, workmen's compensation, and other benefits which apply to the activity of officers, agents, or employees of the Authority when performing their respective functions within the territorial limits of a Member shall apply to them to the same degree and extent while engaged in the performance of any of their functions and duties under the provisions of this Agreement and Chapter 5 of Division 7 of Title 1 of the California Government Code, commencing with Section 6500. However, none of the officers, agents or employees appointed by the Board shall be deemed to be employed by any of the Members or to be subject to any of the requirements of such Members by reason of their employment by the Authority.
c. Committees.
(i) Creation. The Board may by resolution create permanent or ad hoc committees to give advice to the Board of Directors on such matters as may be referred to such committee by the Board. Qualified persons shall be appointed to such committees by the Board and each such appointee shall serve at the pleasure of the Board. (ii) Meetings. All regular, adjourned and special meetings of such committees shall be called and conducted in accordance with the applicable requirements of the Ralph M. Brown Act, Government Code Section 54950 et. seq., as it now exists or may hereafter be amended, and all other applicable law.
-15-
100744.3
Exhibit 2 420
ARTICLE V
MISCELLANEOUS
Section 5.1 Amendments. This Agreement may be amended with the approval of not less than three -fourths (3/4) of all Members; provided, however, that no amendment may be made which would adversely affect the interests of the owner or owners of bonds, letters of credit or other financial obligations of the Authority without the consent of that owner or owners.
Section 5.2 Notice. Any notice required to be given or delivered by any provision of this Agreement shall be personally delivered or deposited in the U.S. Mail, registered or certified, postage prepaid, addressed to the Members at their addresses as reflected in the records of the Authority, and shall be deemed to have been received by the Member to which the same is addressed upon the earlier of receipt or seventy-two (72) hours after mailing.
Section 5.3 Attorney's Fees. In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing party in such litigation or other proceeding shall be entitled to an award of its actual and reasonable attorney's fees, costs and expenses incurred in the proceeding.
Section 5.4 Successors. This Agreement shall be binding upon and inure to the benefit of any successor of a Member.
Section 5.5 Assignment and Delegation. No Member may assign any rights or delegate any duties under this Agreement without the unanimous written consent of all other Members and any attempt to make such an assignment shall be null and void for all purposes.
Section 5.6 Counterparts. This Agreement may be executed in one (1) or more counterparts, all of which together shall constitute a single agreement, and each of which shall be an original for all purposes.
Section 5.7 Severability. Should any part, tetfii or provision of this Agreement be decided by any court of competent jurisdiction to be illegal or in conflict with any applicable law, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms, or provisions of this Agreement shall not be affected thereby and to that end the parts, terms and provisions of this Agreement are severable.
Section 5.8 Integration. This Agreement represents the full and entire Agreement among the Members with respect to the matters covered herein.
Section 5.9 Execution. The legislative bodies of the Members each have authorized execution of this Agreement, as evidenced by the respective signatures attested below. -16-
1007443
Exhibit 2 421
ATTEST:
By:
APPROVED AS TO FORM:
By:
By:
(Seal)
-17-
Exhibit 2 10©7aa'3
422
EXHIBIT A
Burbank -Glendale -Pasadena
Airport Authority
City of Anaheim
City of Artesia
City of Bell
City of Bell Gardens
City of Bellflower
City of Buena Park
City of Burbank
City of Cerritos
City of Commerce
City of Compton
City of Cudahy
City of Cypress
City of Downey
City of Fullerton
City of Garden Grove
City of Glendale
City of Hawaiian Gardens
City of Huntington Beach
City of Huntington Park
City of Irvine
City of La Habra
City of La Mirada
City of La Palma
City of Lakewood
City of Lancaster
City of Long Beach
City of Los Alamitos
City of Los Angeles
City of Lynwood
City of Maywood
City of Norwalk
City of Orange
City of Palmdale
City of Paramount
City of San Fernando
City of Santa Ana
City of Santa Clarita
City of Santa Fe Springs
City of Seal Beach
City of South Gate
City of Stanton
City of Tustin
City of Vernon
City of Westminster
County of f Qs Angeles
County of Orange
Exhibit 2 ioo�4a,3
423
Attachment 2
Connecting its cities via environmentally effective rapid transit Eco-Rapid Transit, formally known
as the Orangeline Development
Authority, is a joint powers
authority (JPA). Its Board of
Directors consists of the following
public entities and primary
representatives:
County of Los Angeles
Hon. Janice Iiahn
Supervisor, Forth District
City of Artesia
Hon. Ali Sajjad Taj
Chair of the Board
City of Bell
City of Bell Gardens
City of Cerritos
lion. Bruce Borrows
City of Cudahy
Hon. Jose R. Gonzalez
Vice Chair of the Board
City of Glendale
City of Huntington Park
lion. Karina Macias
Secretary of the Board
City of Maywood
Ms. Angelina Martinez
City of Paramount
Hon. Isabel Aguayo
Treasurer of the Board
City of South Gate
lion. Maria Davila
Burbank -Glendale -Pasadena
Airport Authority
Hon. Frank Quintero
Executive Director
Eric C. Shen, P.E., PTP, CPE
General Counsel
Matthew T. Summers
Ex -Officio
Internal Auditor
TO:
FROM:
DATE:
AGENDA REPORT
Members of Eco-Rapid Transit Board of Directors
Eric C. Shen, Executive Director
September 13, 2023
SUBJECT: ITEM 9: Update on the Authority's Restructuring Progress Public comments on items on the agenda will be taken at the time the item is called and are limited to 3 minutes per speaker.
RECOMMENDATION
Authorize Executive Director and General Counsel's Office to take steps to terminate Eco- Rapid Transit subject to final Board approval.
ISSUES
Staff are seeking the Board's authorization to take steps, including all debts are paid off and past audits are completed, to terminate Eco-Rapid, subject to final Board approval.
BACKGROUND
At its July 2023 meeting, the Board approved a limited operating budget for FY2023-24 through December 31, 2023 and directed staff to explore restructuring options with Gateway Cities Council of Governments (GCCOG).
On August 9, 2023, ERT Executive Director, Eric Shen, held a faunal meeting with Mr.
Hector De La Torre, GCCOG Executive Director and Ms. Marisa Perez GCCOG Executive Deputy. The meeting was also guided by Ms. Ivy Tsai, GCCOG General Counsel and Mr.
Matthew Summers, ERT General Counsel. At the conclusion of the meeting, Mr. De La Torre agreed to present a proposal to GCCOG's Governing Board for creating a new committee that will continue advocating for the WSAB Project at policy level. In concept, the new committee would be open to jurisdictions within GCCOG and situated along the new transit corridor, most of them are current ERT members. Ms. Perez will provide additional details of the new committee at the ERT Board meeting on September 13 and with the WSAB City Managers Technical Advisory Committee on September 14, 2023.
The new GCCOG committee could be in operation by early 2024. Other than the City of Glendale and the Burbank Airport Authority, the current Eco-Rapid Transit members within GCCOG region will be eligible to join the new committee.
Exhibit 3
16401 Paramount Boulevard • Paramo42t4 California 90723 • (562) 663-6850 • www eco-rapid.org
Connecting its cities via environmentally effective rapid transit Eco-Rapid Transit, formally known
as the Orangeline Development
Authority, is a joint powers
authority (JPA). Its Board of
Directors consists of the following
public entities and primary
representatives:
County of Los Angeles
Hon. Janice Iiahn
Supervisor, Forth District
City of Artesia
Hon. Ali Sajjad Taj
Chair of the Board
City of Bell
City of Bell Gardens
City of Cerritos
lion. Bruce Borrows
City of Cudahy
Hon. Jose R. Gonzalez
Vice Chair of the Board
City of Glendale
City of Huntington Park
lion. Karina Macias
Secretary of the Board
City of Maywood
Ms. Angelina Martinez
City of Paramount
Hon. Isabel Aguayo
Treasurer of the Board
City of South Gate
lion. Maria Davila
Burbank -Glendale -Pasadena
Airport Authority
Hon. Frank Quintero
Executive Director
Eric C. Shen, P.E., PTP, CPE
General Counsel
Matthew T. Summers
Ex -Officio
Internal Auditor
While the current Eco-Rapid Transit Board may consider keeping the current joint powers authority in an inactive state after December 31, 2023, the Board would need to consider the regulatory compliance and associated costs. In the proposed GCCOG Corridor Cities Committee concept, Mr. Da La Torre has clearly stated that GCCOG does not have the resources to administer the inactive Eco-Rapid Transit.
In the interest of accountability, the Board is advised to contemplate the formal termination of the joint powers authority rather than maintaining it in an inactive state. Should the Board consider and approve staffs recommendation, staff will begin taking steps to terminate Eco-Rapid Transit as a joint powers authority, subject to final Board approval.
ERT B0D 20230913 09 UPDATE ON ERT RESTRUCTURING
Exhibit 3
16401 Paramount Boulevard • Paramo42t5 California 90723 • (562) 663-6850 • www eco-rapid.or>;
DRAFT
MINUTES OF THE REGULAR MEETING OF
ECO-RAPID TRANSIT/ORANGELINE DEVELOPMENT AUTHORITY
September 13, 2023
In -Person Meeting
CALL TO ORDER
Chair Taj called the meeting to order at 6:07 PM Pacific Daylight Time. A quorum (7 voting members out of 12 filled seats) was reached; thus, action items were taken by the Board.
PLEDGE OF ALLEGIANCE
Vice Mayor Annette Delgadillo (Paramount) led the assembly in the flag salute.
ROLL CALL AND INTRODUCTION OF ATTENDEES
Voting Board of Directors were present (listed by agency and position on the Board):
1. City of Artesia — Hon. Ali Sajjad Taj, Chair
2. City of Bell — Ms. Daisy Castillo (Alternate)
3. City of Bell Gardens — Hon. Marco Barcena
4. City of Cerritos — Hon. Bruce Barrows, Director
5. City of Cudahy — Hon. Jose R. Gonzalez, Vice Chair
6. City of Huntington Park — Hon. Karina Macias, Director
7. City of Maywood - Ms. Angelina Martinez, Director
8. City of Paramount — Hon. Annette Delgadillo (Alternate)
9. City of South Gate — Hon. Maria Davila, Director
10. County of Los Angeles Supervisor Hahn's Office — Ms. Viviana Gomez (Alternate) Eco-Rapid Transit Staff:
11. Eric Shen, Executive Director
12. Thais Alves, Assistant General Counsel
13. Kathryn Morrison, Administrative Services Manager
Guest Presenter:
14. Ms. Marisa Perez, Gateway Cities COG
PUBLIC COMMENTS
No written public comments were received prior to the meeting. No additional public comments were received during the meeting.
ITEM 5 — CONSENT CALENDAR
No written public comments were received prior to the meeting. No additional public comments were received during the meeting.
Eco-Rapid Transit September 13, 2023
Board of Directors Meeting
Exhibit 4 426