Proposed Third Amendment to Development Agreement for SyWest Goleta Gardens LLC, 907 South Kellogg Avenue, APN 071-190- 035; Case No 24-0001-ORD

Agenda Item C.1

PUBLIC HEARING
Meeting Date: September 3, 2024
TO: Mayor and Councilmembers
SUBMITTED BY: Peter Imhof, Planning and Environmental Review Director PREPARED BY: Lisa Prasse, Current Planning Manager
Kathy Allen, Supervising Senior Planner
SUBJECT: Proposed Third Amendment to Development Agreement for SyWest/Goleta Gardens LLC, 907 South Kellogg Avenue, APN 071- 190- 035; Case No 24-0001-ORD
RECOMMENDATION:

Introduce and conduct the first reading (by title only) and waive further reading of Ordinance No. 24-___, entitled “An Ordinance of the City Council of the City of Goleta, California, approving a Third Amendment to the Goleta Gardens LLC Development Agreement to provide that the term of the Development Agreement must not extend beyond the date the Coastal Commission certifies the City’s Local Coastal Program or December 31, 2025, whichever occurs first and find that the Ordinance is exempt under the California Environmental Quality Act for the property located at 907 S Kellogg Avenue; Case No. 24-0001-ORD.”
PROPERTY OWNER/APPLICANT:

Goleta Gardens, LLC
c/o Robert Atkinson
150 Pelican Way
San Rafael, CA 94901
BACKGROUND/PROJECT DESCRIPTION:

The subject property (APN 071 -190-035) is an 11.71 -acre parcel located at the south terminus of Kellogg Avenue at 907 S Kellogg Avenue, within the Coastal Zone. The Westwind Drive -In Theater is located on the site but is no longer in operation. The property is zoned Service Industrial (I -S), and the land use designation is Service Industrial (I-S).

The applicant, SyWest Development on behalf of the Property Owner Goleta Gardens LLC, is requesting a third amend ment to extend the timeframe of an existing 1 Meeting Date: September 3, 2024

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Development Agreement (“DA”) in which the Property Owner grants a license to the City to use a private access road that leads into the San Jose Creek Channel in exchange for the City to extend the deadline for Property Owner to use the City’s former zoning ordinance (Article 35 Coastal Zoning Ordinance) for a development project.

The City Council originally adopted the DA in 2021 and adopted a deadline to use the former zoning ordinance on December 31, 2023. The DA has been amended twice. The first amendment to the DA , approved by the City Council on September 6, 2022, implemented a condition from the California Coastal Commission to state that the term of the DA must not extend beyond the date the Coastal Commission certifies the City’s Local Coastal Program or December 31, 2023, whichever occurred first . The second amendment to the DA , approved by the City Council on September 19, 2023, changed the term of the DA to the date the Coastal Commission certifies the City’s Local Coastal Program or December 31, 2024, whichever occurred first. Copies of the previous Council Ordinances (Nos. 21-04, 22-12, and 23-10) are provided as Attachment 2. The executed DA and the 1st and 2nd executed Amendments to the DA are provided as Attachment 3.

The proposed third amendment would extend the term of the DA to December 31, 2025, or the certification date of the City’s Local Coastal Program, whichever occurs first (“Third Amendment”). The applicant requests the third amendment to allow time to complete the preparation of the project Environmental Impact Report (EIR) and conduct the associated public hearings before the Planning Commission and possibly the City Council. Since the public hearing on the second amendment, s everal unexpected issues related to transportation, air quality, and greenhouse gas topics arose which warranted additional environmental analysis. The EIR is now anticipated to be released for public review in October 2024. To allow adequate review time of the EIR and subsequent public hearings, the applicant is requesting a one-year term extension of the DA to December 31, 2025.

Coastal Commission staff confirmed that the Coastal Development Permit issued for the DA would not need to be amended for the currently proposed term extension.

Development Agreements

DAs are a device that allow s a project applicant to pursue a development with vested rights in exchange for the provision of public benefits to the local entity granting those vested rights. California Government Code Section 65864 authorizes the adoption of DAs to recognize the lack of certainty for development projects and that reliance on existing rules and regulations can reduce th e burden of that uncertainty. Government Code Section 65865 provides standards for agencies to process DA’s.

Goleta Municipal Code ( GMC) Section 17.6 5 provides the process and findings for the City to review a DA, consistent with the Government Code sections referenced above. If approved, a DA creates a contract between the City and developer that identifies, for a specified time period, the rules, regulations, and policies that are applicable to a particular development. Such agreements must provide a public benefit to the City in accordance with findings (Section 17.65.040.C). An amendment to an approved DA is processed under the same codes as those of the original DA.
2 Meeting Date: September 3, 2024

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The proposed Third Amendment must demonstrate that it is consistent with the City’s General Plan, will be compatible with uses authorized in the GMC, will provide substantial public benefit, will be non -detrimental to the public health , safety and general welfare of surrounding neighborhoods, and that it complies with the California Environmental Quality Act.

JURISDICTION

Per Goleta Zoning Ordinance Chapter 17.65, the City Council is the Review Authority on DA’s, following a recomme ndation by Resolution from the Planning Commission. The City Council’s action on a DA Amendment is adopted by Ordinance.

The underlying project, Case No. 17 -121-DP-DRB-CDP (in concept), is currently under review and an EIR is being prepared to analyze t he potential environmental impacts resulting from the proposed project to construct a new warehouse building. Upon completion and circulation of the EIR, the project will require review by the Design Review Board and Planning Commission at a minimum. City Council review would only occur if there were significant unavoidable environmental impacts identified in the EIR and/or on appeal. Given the site’s location within the Coastal Zone, a Coastal Development Permit would also need to be approved by the California Coastal Commission.

Planning Commission review

On July 22, 2024, the Planning Commission reviewed the proposed Third Amendment.

After concluding the public hearing, the Planning Commission unanimously (5-0 vote) recommended adoption of the proposed Third Amendment.

DISCUSSION:

Proposed Development Agreement Third Amendment

Exhibit A to the proposed ordinance (Attachment 1) provides the proposed Third Amendment to the DA for Goleta Gardens, LLC. As stated above, the purpose of this Third Amendment is to extend the term of the DA until December 31, 2025, or the adoption date of the City’s Local Coastal Program, whichever occurs first. The term extension would allow for processing of the underlying project to be completed, including environmental review, and entitlement hearings to be held.

The Draft EIR of the underlying project is nearing completion and is anticipated to be released for the 45- day public review period in October 2024. Once the public comment period is closed, then work on the Final EIR including preparing responses to comment and preparing the necessary documents for action by the Planning Commission and potentially the City Council, will commence. The public hearing(s) would not occur and/or be completed before the end of 2024 ; hence the request for the term extension. Given the status and anticipated timing to complete the City’s review process, the extension seems reasonable.
3 Meeting Date: September 3, 2024

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Findings

The findings associated with approval of a DA or an ame ndment to a DA are outlined in Goleta Municipal Code Section 17.65.040.C . Staff believes the findings to grant the extension can be made and are as follows:

1. The Third Amendment is consistent with the General Plan policies and zoning ordinance as it does not propose allowing any development different from what is permitted in the Service Industrial (I-S) General Plan designated land use areas.

2. The current zoning is also Service Industrial (I -S) zoning district while prior to the adoption of Title 17 (Zoning Code) in April 2020, the site was zoned Light Industry (M- 1) and Service Industrial-Goleta (M-S-GOL).

3. The DA Third Amendment would provide substantial public benefits by facilitating the ability for the City of Goleta and other local agencies to access and maintain the lower San Jose Creek Channel as stated in Planning Commission Staff Report dated March 29, 2021 (Report can be accessed at this link:
https://goleta.legistar.com/LegislationDetail.aspx?ID=4889953&GUID=9A645B0B- 2E8C-4206-ABBD-65D52B47D4A4).

4. The Third Amendment does not po se public health, safety and general welfare concerns to the surrounding neighborhood or residents near the project site in that it only authorizes additional time to review the proposed development application using the previous zoning standards and process.

These findings are included in Section 2 of the proposed Ordinance provided as Attachment 1 to this report.

Conclusion

The DA Third Amendment does not change or modify any existing policy or use of the property or influence the City’s discretion to entitle the underlying project. The DA Third Amendment would only extend the term of the Development Agreement to December 31, 2025, or the adoption date of the City’s Local Coastal Plan, whichever occurs first. As described in detail in the attached R esolution, the findings can be made to support the approval of the DA Third Amendment. For these reasons, staff recommends adoption of Ordinance granting the proposed Third Amendment to the DA.

CALIFORNIA ENVIRONMENTAL QUALITY ACT

Pursuant to the requirements of the California Environmental Quality Act (CEQA) (Public Resources Code §§ 21000 et seq.), the regulations promulgated thereunder (14 Cal.

Code of Regulations §§ 15000 et seq.), and the City’s Environmental Review Guidelines, the project is exempt from CEQA, and a Notice of Exemption is proposed. The City of Goleta is acting as the Lead Agency for this project. The DA Third Amendment complies with the provisions for implementation of CEQA and can be found exempt per CEQA 4 Meeting Date: September 3, 2024

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Guidelines 15061(b)(3) and 15060(c)(2). The DA Third Amendment does not involve physical development of the property at issue, nor does it approve the underlying 2017 project, which will undergo its own process under CEQA and be subject to the full entitlement process under the City’s zoning regulations.

A draft Notice of Exemption has been prepared and is provided as Attachment 1, Exh. B.

FISCAL IMPACTS

The review costs associated with this request are the responsibility of the applicant.

NOTICING

On August 22, 2024, notice of this hearing was published within the Santa Barbara Independent and written notices were mailed to property owners and tenants within 500 feet of the subject property, as well as to the California Coastal Commission. A posted notice was also placed on the property frontage on August 16, 2024.

ALTERNATIVES:

The City Council may continue the matter for additional information or discussion.

LEGAL REVIEW BY: Megan Garibaldi, City Attorney

APPROVED BY: Robert Nisbet, City Manager

ATTACHMENTS:

1. An Ordinance of the City Council of the City of Goleta, California, approving a Third Amendment to the Goleta Gardens LLC Development Agreement to provide that the term of the Development Agreement must not extend beyond the date the Coastal Commission certifies the City’s Local Coastal Program or December 31, 2025, whichever occurs first and find that the Ordinance is exempt under the California Environmental Quality Act for the property located at 907 S Kellogg Avenue; Case No. 24-0001-ORD

Exhibit A – Third Amendment to Development Agreement By and Between City of Goleta and Goleta Gardens, LLC

Exhibit B – Proposed Notice of Exemption

2. Council Ordinance Nos. 21-04, 22-12, and 23-10

3. Executed Development Agreement (DA) and 1st and 2nd Executed Amendments to the DA and Signed License Agreement

4. Presentation
5 ATTACHMENT 1:

An Ordinance of the City Council of the City of Goleta, California, approving a Third Amendment to the Goleta Gardens LLC Development Agreement to provide that the term of the Development Agreement must not extend beyond the date the Coastal Commission certifies the City’s Local Coastal Program or December 31, 2025, whichever occurs first and find that the Ordinance is exempt under the California Environmental Quality Act for the property located at 907 S Kellogg Avenue; Case No. 24-0001-ORD

Exhibit A – Third Amendment to Development Agreement By and Between City of Goleta and Goleta Gardens, LLC

Exhibit B – Proposed Notice of Exemption

6 ORDINANCE NO. 24-__

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GOLETA,

CALIFORNIA, APPROVING A THIRD AMENDMENT TO THE GOLETA

GARDENS LLC DEVELOPMENT AGREEMENT TO PROVIDE THAT THE

TERM OF THE DEVELOPM ENT AGREEMENT MUST N OT EXTEND

BEYOND THE DATE THE COASTAL COMMISSION C ERTIFIES THE
CITY’S LOCAL COASTAL PROGRAM OR DECEMBER 31, 2025,

WHICHEVER OCCURS FIR ST AND FIND THAT THE ORDINANCE IS

EXEMPT UNDER THE CAL IFORNIA ENVIRONMENTAL QUALITY ACT
FOR THE PROPERTY LOCATED AT 907 S KELLOGG AVENUE; CASE
NO. 24-0001-ORD

WHEREAS, on May 18, 2021, the City Council approved a Development Agreement with Goleta Gardens LLC (the “Development Agreement” or “DA”) to grant the City a license to use a private access road to the San Jose Creek Channel in exchange for the City’s extension of the deadline to use the City’s former zoning ordinance (Article 35 Coastal Zoning Ordinance) to December 31, 2023, for review of the applicant’s pending development p roposal at 907 S. Kellogg Avenue (Case No 17 -121-DP-DRB); and

WHEREAS, on April 6, 2022 , the California Coastal Commission approved the Development Agreement with a condition that the term of the Development Agreement must not extend beyond the date the Coastal Commission certifies the City’s Local Coastal Program. Subsequently, the applicant submitted an application to amend the Development Agreement to implement the Coastal Commission’s condition (“First Amendment”); and

WHEREAS, on July 25, 2022, the Planning Commission recommended that the City Council approve the First Amendment to the Development Agreement to set the term of the Development Agreement to December 31, 2023, or the adoption date of the City’s Local Coastal Program, whichever occurred earlier; and

WHEREAS, on September 6, 2022, the City Council adopted the first Development Agreement Amendment to set the term of the DA to December 31, 2023, or the adoption date of the City’s Local Coastal Program, whichever occurred earlier; and

WHEREAS, on April 3, 2023, Robert Atkinson/SyWest Development (“applicant”) on behalf of Goleta Gardens LLC, owner of 907 S. Kellogg Avenue (Assessor Parcel Number 071-190-035) submitted an application for a second amendment to the Goleta Gardens LLC Development Agreement (the “Second Amendment) with the City requesting a term extension of the DA to December 31, 2024 or the adoption date of the City’s Local Coastal Program, whichever occurs earlier; and 7 Ordinance 24- ___
Third Amendment to the Sywest DA
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WHEREAS, on July 2 4, 2023, the Planning Commission recommended that the City Council approve the Second Amendment to the Development Agreement to set the term of the Development Agreement to December 31, 2024, or the adoption date of the City’s Local Coastal Program, whichever occurred earlier; and

WHEREAS, on September 5, 202 3, the City Council adopted the second amendment to the Development Agreement (“Second Amendment) to set the term of the DA to December 31, 202 4, or the adoption date of the City’s Local Coastal Program, whichever occurred earlier; and

WHEREAS the applicant has been diligently processing its underlying project under a different case and will not be able to get the case to hearing by December 31, 2024, and the City’s Local Coastal Program has not been approved yet; and

WHEREAS, on March, 26 2024, Robert Atkinson/SyWest Development (“applicant”) on behalf of Goleta Gardens LLC, owner of 907 S. Kellogg Avenue (Assessor Parcel Number 071 -190-035) submitted an application for a third amendment to the Goleta Gardens LLC Development Agreement (the “ Third Amendment”) with the City requesting a term extension of the DA to December 31, 2025 or the adoption date of the City’s Local Coastal Program, whichever occurs earlier; and

WHEREAS the application for Case No. 24-0001-ORD was deemed complete on April 25, 2024; and

WHEREAS Government Code Sections 65865 et seq. authorize local agencies to enter into Development Agreements with persons having legal or equitable development interests in real property located within that jurisdiction and provide guidance for adoption of development agreements by local agencies; and

WHEREAS Chapter 17.65 of the Goleta Municipal Code establishes the process and findings for Development Agreements proposed within the City of Goleta; and

WHEREAS, on July 2 2, 202 4, the Planning Commission conducted a noticed public hearing on the Third Amendment, at which time all interested persons were given an opportunity to be heard and unanimously recommended adoption of the Third Amendment to the City Council; and

WHEREAS, on August 16, 2024, the site was posted for the September 3, 2024, 8 Ordinance 24- ___
Third Amendment to the Sywest DA
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City Council meeting by the applicant (a minimum of 15 days prior to the City Council meeting); and

WHEREAS, on August 22, 2024, notice of the public hearing was published in the Santa Barbara Independent and notices were mailed to owners and occupants within 500 feet of the project site; and

WHEREAS, on September 3, 2024, the City Council conducted a duly noticed public hearing on the Third Amendment, at which time all interested persons were given an opportunity to be heard; and

WHEREAS the City Council considered the entire administrative record, including the staff report, the Draft Third Amendment and oral and written testimony from interested persons.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GOLETA, AS FOLLOWS:

SECTION 1: Findings of Facts. The City Council hereby finds and determines that the foregoing recitals, which are incorporated herein by reference, are true and correct.

SECTION 2 : Development Agreement Findings. Pursuant to Goleta Municipal Code Section 17.65.040(C):

A. The Third Amendment is consistent with the goals, objectives, policies, general land uses, and programs specified in the General Plan and any applicable Specific Plan.

The Development Agreement facilitates the ability of the City of Goleta and other local agencies to access and maintain the lower San Jose Creek Channel, a major flood control channel and public works project called out to be completed in the City’s General Plan, consistent with the City of Goleta General Plan, Conservation Element policies 1.10, 2.5 , and 2.6. The Third Amendment would change the date of the termination clause to either be at the time the Local Coastal Program is certified by the California Coastal Commission or December 31, 202 5, whichever occurs first.

This clarification on timing does not change the Development Agreement’s consistency with the goals, objectives, and policies of the General Plan. Instead, it allows for time to complete the preparation of the applicant’s pending project Environmental Impact Report (EIR) and conduct the associated public hearings.

B. The Third Amendment is or will be compatible with the uses authorized in this Title, the district, and any applicable Specific Plan in which the property is located.

The Third Amendment does not affect the uses allowed or conditionally allowed as provided for in the applicable Service Industrial (I -S) land use designations. Further, 9 Ordinance 24- ___
Third Amendment to the Sywest DA
907 S. Kellogg Ave.

the purpose of the Third Amendment is to clarify the duration of the term of the Development Ag reement to terminate either on the date the California Coastal Commission certifies the City of Goleta’s Local Coastal Program or December 31, 2025, whichever occurs first.

C. The Third Amendment will provide substantial public benefits.

The Third Amendment to the DA does not change the previously identified public benefits as adopted in Ordinance 21 -04, which is incorporated herein by reference.

The Development Agreement grants a license agreement by Goleta Gardens LLC to allow the City and Count y Flood Control District to access the San Jose Creek Channel. The City and Flood Control District would be able maintain the creek channel and provide flood protection to the surrounding properties and area. As stated, the purpose of the Third Amendment is to clarity that the term of the Development Agreement either terminates on the date the California Coastal Commission certifies the City of Goleta Local Coastal Program or December 31, 202 5, whichever occurs first.

D. The Third Amendment will be non-detrimental to the public health, safety and general welfare of persons residing or working in the neighborhood, and to property and improvements in the neighborhood.

The Third Amendment does not pose public health, safety and general welfare concerns to the surrounding neighborhood or residents near the project site in that it only authorizes the time for the review of the proposed development application using the previous zoning standards and process. As stated above, the Third Amendment has the effect of protecting the public health, safety and general welfare of persons in the neighborhood because it allows the City and County Flood Control District the right to access the San Jose Creek Channel to maintain it and provide flood protection.

E. The Third Amendment complies with the provisions for the implementation of the California Environmental Quality Act.

The Third Amendment complies with the provisions for implementation of the California Environmental Quality Act (CEQA) and can be found exempt per CEQA Guidelines 15061(b)(3). The Third Amendment does not involve physical development of the property at issue nor does it approve the underlying development project, which w ill undergo its own process under CEQA and be subject to the full entitlement process under the City’s zoning regulations

SECTION 3: Environmental Assessment for the Third Amendment. The City Council makes the following environmental findings:

A. The Third Amendment was analyzed for its potential environmental impacts and is 10 Ordinance 24- ___
Third Amendment to the Sywest DA
907 S. Kellogg Ave.

exempt pursuant to the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.; “CEQA”) and CEQA Guidelines (14 Cal. Code Regs. Sections 15000 et seq.). Speci fically, the project is statutorily exempt from environmental review pursuant to the following CEQA Guidelines: no possibility of significant effect [Section 15061 (b)(3)]; the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment [Section 15060(c)(2)].

B. There is substantial evidence in the record showing that the Exemption is appropriate for the Third Amendment.

C. A Notice of Exemption was prepared in full compliance with CEQA.

SECTION 4: Actions. The City Council take the following actions:

A. Approve the Third Amendment to the Development Agreement by and between the City of Goleta and Goleta Gardens, LLC for the property located at 907 S Kellogg provided as Exhibit A to this Ordinance based on the find ings provided in Sections 1-4 above.

B. Find the Third Amendment to the Development Agreement is exempt under the California Environmental Quality Act as described in the Notice of Exemption (NOE) as provided as Exhibit B to this Ordinance and direct staff t o file the NOtice of Exemption (NOE) within five (5) business days after Council action.

SECTION 5: Reliance on Record. Each and every one of the findings and determinations of this Ordinance is based on the competent and substantial evidence, both or al and written, contained in the entire record relating to the Third Amendment to the Development Agreement. The findings and determinations constitute the independent findings and determinations of the City Council in all respects and are fully and completely supported by substantial evidence in the record as a whole.

SECTION 6 : Repeals. To the extent any provision of this Ordinance repeals or supersedes any previous approvals, such repeal or replacement will not affect any penalty, forfeiture, or liability incurred before, or precluded prosecution and imposition of penalties for any violation occurring before this Ordinance’s effective date. Any such repeal or superseded part of previous approvals will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance.

SECTION 7: Limitations. The City Council’s analysis and evaluation of the Third Amendment to the D evelopment Agreement is based on the best information currently 11 Ordinance 24- ___
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available. It is inevitable that, in evaluating a project, absolute and perfect knowledge of all possible aspects of the project will not exist. One of the major limitations on analysis of the Third Amendment to the Development Agreement and Project is the City Council’s lack of knowledge of future events. In all instances, best efforts have been made to form accurate assumptions.

SECTION 8 : Summaries of Information. All summaries of information in the findings, which precede this section, are based on the substantial evidence in the record. The absence of any particular fact from any such summary is not an indication that a particular finding is not based in part on that fact.

SECTION 9: Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or ap plications, and, to this end, the provisions of this Ordinance are severable.

SECTION 10: Mailing to Applicant. The City Clerk is directed to mail a copy of this Ordinance to The Goleta Gardens LLC and to any other person requesting a copy.

SECTION 11: Certification of City Clerk. The City Clerk shall certify to the passage and adoption of this ordinance and, within 15 days after its adoption, shall cause it to be published in accord with California Law.

SECTION 12: Effective Date. This ordinance shall take effect on the 31 st day following adoption by the City Council.

INTRODUCED ON the ____day of ____ 2024.

PASSED, APPROVED, AND ADOPTED this ____day of ____2024.

_________________________

PAULA PEROTTE
MAYOR

ATTEST: APPROVED AS TO FORM:

__________________________ _________________________
DEBORAH S. LOPEZ ISAAC ROSEN

CITY CLERK ACTING CITY ATTORNEY
12 Ordinance 24- ___
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STATE OF CALIFORNIA )
COUNTY OF SANTA BARBARA ) ss.

CITY OF GOLETA )

I, DEBORAH S. LOPEZ, City Clerk of the City of Goleta, California, DO HEREBY CERTIFY that the foregoing Ordinance No. 2 4-__ was introduced on___ ______, and adopted at a regular meeting of the City Council of the City of Goleta, California, held on the ______ day of _________, 2024 by the following roll-call vote, to wit:

AYES:

NOES:

ABSENT:

ABSTENTIONS:

(SEAL)

_________________________
DEBORAH S. LOPEZ

CITY CLERK

13 THIRD AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN

CITY OF GOLETA
AND

GOLETA GARDENS LLC
THIS THIRD AMENDMENT (“ Third Amendment”) by and between the CITY OF GOLETA, a municipal corporation (the “City”), and GOLETA GARDENS LLC, a California limited liability corporation (“Goleta Gardens” or “Owner”) (together “Parties”) to the DEVELOPMENT AGREEMENT between the Parties which was approved by the City Council on May 18, 2021 (“Origin al Development Agreement”) and amended by the City Council on September 6, 2022 (“First Amendment”) and September 19, 2023 (“Second Amendment”).

RECITALS
A. Goleta Gardens is the owner of a 11.71-acre parcel of real property designated as APN 071-190-035 and located at 907 S. Kellogg Avenue in the City of Goleta, California (“Property”). A legal description of the Property is attached hereto as Exhibit A.

B. The City Council approved the Original Development Agreement on May 18, 2021, that among other things set the term of the Development Agreement to December 31, 2023.

C. The City Council approved the First Amendment to the Original Development Agreement on September 6, 2022, to incorporate a condition that the California Coastal Commission imposed in its approval of the Original Development Agreement that the term not exceed the adoption date of the City’s Local Coastal Program. The First Amendment set the term of the Development Agreement to December 31, 2023, or the adoption date of the City’s Local Coastal Plan, whichever occurred earlier.

D. The City Council approved the Second Amendment to the Original Development Agreement on September 19, 2023. The Second Amendment set the term of the Development Agreement to December 31, 2024, or the adoption date of the City’s Local Coastal Plan, whichever occurred earlier.

E. Owner has been diligently processing its underlying project under a different permit application and will not be able to get the case to hearing with the City by December 31, 2024, and the City’s Local Coastal Program has not been approved yet.

F. If the City’s hearing and decision on the case is made without a certified Local Coastal Plan, the case will be forwarded to the Coastal Commission for issuance of a Coastal Development Permit. Neither the City nor the Owner have control over the Coastal Commission’s processing timeline or decision. It is therefore 14 foreseeable that even if the City takes action on the case prior to December 31, 2025, the Coastal Commission may not complete their review prior to that date.

Moreover, the Coastal Commission’s action may modify the project and therefore require the City to hear the case once again to acknowledge new or revised project components or conditions.

G. In consideration of the uncertainty for timing and result of the Coastal Commission’s process, the Third Amendment seeks to revise the Term to extend beyond December 31, 2025, with no further action by Council for the limited purpose of allowing the Coastal Commission’s process to occur and allowing the City to apply the Development Agreement terms to any project revisions that may require City approval after the Coastal Commission’s permitting process.

H. Goleta Gardens now seek a one-year extension to the term of the Development Agreement so that the term of the Development Agreement is set to expire as to Goleta Gardens’ current application on December 31, 2025, or the adoption date of the City’s Local Coastal Program, whichever occurs earlier; however the terms of this Development Agreement shall apply after December 31, 2025 to allow Goleta Gardens to return to the City of Goleta to modify their project approval after the Coastal Commission process to conform the project to the Coastal Commission approval (“Third Amendment”).

I. The terms and conditions of this Third Amendment have been found by the City to be fair, just, and reasonable.

J. The public health, safety, and welfare of the citizens of the city will be served by entering into this Third Amendment by virtue of the Owner’s commitment to license the City’s and SBFCD’s use of the Creek Access Road during the term of the Development Agreement and a conditional commitment to convey an easement to the City and SBFCD.

K. This Third Amendment will bind future City Councils to the terms and obligations specified in this Amendment and limit, to the degree specified in this Amendment, the future exercise of the City's ability to regulate development on the Property.

L. This Third Amendment will serve to implement the policies, objectives, and standards of the elements of the City of Goleta General Plan and is consistent with the General Plan.

M. This Third Amendment and the consent of Owner and City to each of its terms and conditions will eliminate uncertainty in planning and provide for the orderly development of the Property and generally serve the public interest.

N. On July 2, 2024, the site was posted for the July 22, 2024, Planning Commission meeting by the applicant (a minimum of 15 day prior to the Planning Commission meeting);
O. On July 11, 2024, notice of the public hearing was published in the Santa Barbara 15 Independent and notices were mailed to owners and occupants within 500 feet of the project site; and
P. On July 22, 2024, the Planning Commission conducted a duly noticed public meeting on the Goleta Gardens LLC Development Agreement, at which time all interested persons were given an opportunity to be heard; and Q. On July 22, 2024, the Planning Commission considered the entire administrative record, including the staff report, the Draft Third Amendment to the Original Development Agreement and oral and written testimony from interested persons and on a 5-0 vote, recommended adoption to the City Council.

R. On August 20, 2024, the City Council conducted a duly noticed public meeting on the Goleta Gardens, LLC Development Agreement, at which time all interested persons were given an opportunity to be heard and considered the entire administrative record, including the staff report, the Draft Third Amendment to the Original Development Agreement and oral and written testimony from interested persons.

16 THIRD AMENDMENT TO ORIGINAL DEVELOPMENT AGREEMENT
NOW THEREFORE, in consideration of the above recitals, the mutual covenants and conditions herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

SECTION 1. DEFINITIONS
For purposes of this Amendment, except as otherwise expressly provided or unless the context otherwise requires:
a) “Original Development Agreement” means this Development Agreement by and between the City and Owner, approved by City Council on May 18, 2021. b) “Approval Date” means the date on which the Approval Ordinance for the Third Amendment is adopted by the City Council.
c) “Approval Ordinance” means Ordinance No. , adopted by the City Council of the City on [date] 2024, approving this Third Amendment. d) “CEQA” means the California Environmental Quality Act, Section 21000, et seq., of the California Public Resources Code.
e) “City” means the City of Goleta, California.
f) “City Council” means the City Council of the City of Goleta. g) “Code” means the Municipal Code of the City of Goleta. h) “Commencement Date” means that date which is 30 days following the Approval Date, provided, however, (i) if the Approval Ordinance is made the subject of a referendum, the Commencement Date shall be the date when the referendum proceedings have been concluded by any process which results in the Approval Ordinance, and (ii) if litigation challenging the validity of the Original Development Agreement (with the Amendment) and/or environmental review pursuant to CEQA should be brought after the Approval Date, the Commencement Date shall be the date such litigation is concluded in a manner that permits the commencement or continuation of the parties’ rights and obligations under the Original Development Agreement.
i) “Development Agreement Act” means Section 65864 et seq., of the California Government Code.
j) “First Amendment” means the Development Agreement as amended by ordinance approved by City Council on September 6, 2022.
k) “Second Amendment” means the Development Agreement as amended by ordinance approved by City Council on September 19, 2023. l) “Owner" means Goleta Gardens LLC, a California limited liability corporation and 17 each of its respective successors and assigns to all or any portion of the Property during such time as such portion is subject to the Original Development Agreement.

Goleta Gardens represents that it is the legal owner of the entire Property as of the date of adoption of the Approval Ordinance.

m) "Term" means the term of the Original Development Agreement, as amended in this Amendment.
n) "Zoning Ordinance" means the comprehensive Zoning Ordinance of the City, found in Title 17 of the Code of the City of Goleta as it exists on the Approval Date.

SECTION 2. THIRD AMENDMENT TO ORIGINAL DEVELOPMENT AGREEMENT

(1) Section 7.01 of the Original Development Agreement shall be amended to read in its entirety:
“Term. This Agreement shall terminate on December 31, 2025 or the date that a coastal land use plan for the City is effectively certified by the Coastal Commission (whichever is sooner), except the Agreement extends beyond December 31, 2025 for the limited purpose of applying for project revisions that may require City approval after the Coastal Commission’s CDP permitting process.

Additionally, the Term can be extended if (i) it has been extended by written instrument executed by the Parties, or (ii) the “Commencement Date” has been delayed as a result of referendum proceedings or litigation as set forth in Section 1(h).” IN WITNESS WHEREOF, the parties have each executed this Amendment on the date first written above.
(signatures on next page)
18 CITY OF GOLETA

By:

Robert Nisbet, City Manager

GOLETA GARDENS, LLC
A Limited Liability Corporation

By:

William Vierra, Senior Vice President

ATTEST

By:

Deborah Lopez, City Clerk
APPROVED AS TO FORM:

By:

Isaac Rosen, Acting City Attorney
19 EXHIBIT “A”

PROPERTY LEGAL DESCRIPTION

Legal Description FOR APN/Parcel ID(s): 071-190-035
Parcel "B" of Parcel Map No. 11950, in the City of Goleta, County of Santa Barbara, State of California, in Book 13, Page 58 of Parcel Maps, in the Office of The County Recorder of said County
20 To:

Office of Planning and Research From: City of Goleta
P.O. Box 3044, 1400 Tenth St. Rm. 212 130 Cremona Drive, Suite B Sacramento, CA 95812-3044 Goleta, CA 93117

Clerk of the Board of Supervisors
County of Santa Barbara
105 E. Anapamu Street, Room 407
Santa Barbara, CA 93101

Subject: Filing of Notice of Exemption

Project Title:

Goleta Gardens LLC Development Agreement Third Amendment Case No. 24-0001-ORD

Project Applicant:

Goleta Gardens LLC

Project Location (Address and APN):
907 S. Kellogg Avenue
Goleta, CA 93117
County of Santa Barbara
APN 071-190-035

Description of Nature, Purpose and Beneficiaries of Project:

Third Amendment to an existing Development Agreement (DA) that grants a license to the City to use a private access road to the San Jose Creek Channel in exchange for an extension of the deadline to use the City’s former zoning ordinance (Article 35 Coastal Zoning Ordinance) to December 31, 202 5 for review of the applicant’s pending development proposal (Case No 17 -121-DP-DRB). The Third Amendment would extend the Development Agreement term to December 31, 2025, or the adoption date of the City’s Local Coastal Program, whichever occurs first.

The beneficiaries of the projects are the property owner and the City of Goleta.

Name of Public Agency Approving the Project:

Goleta City Council

Name of Person or Agency Carrying Out the Project:

Goleta Gardens LLC

21 Exempt Status: (check one)
 Ministerial (Sec. 15268)
 Declared Emergency (Sec. 15269 )
 Emergency Project (Sec. 15269)
 Statutory Exemption/Other: §15061.B.3 & §15060.C.2

Reason(s) why the project is exempt:

Pursuant to the requirements of the California Environmental Quality Act (CEQA) (Public Resources Code §§ 21000 et seq.), the regulations promulgated thereunder (14 Cal. Code of Regulations §§ 15000 et seq.), and the City’s Environmental Review Guidelines, the project has been found to b e exempt from CEQA. The City of Goleta is acting as the Lead Agency for this project.

The Development Agreement Amendment complies with the provisions for implementation of the California Environmental Quality Act (CEQA) and can be found exempt per CEQA Guidelines 15061(b)(3). The Development Agreement Amendment does not involve physical development of the property, nor does it approve the underlying project (Case No. 17-121- DP-DRB), which will undergo its own process under CEQA and be subject to the full entitlement process under the City’s zoning regulations. Therefore, the Development Agreement Amendment is statutorily exempt from environmental review pursuant to CEQA guidelines: no possibility of significant effect [Section 15061(b)(3); and the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment [Section 15060(c)(2)].

City of Goleta Contact Person, Telephone Number, and Email:

Kathy Allen, Supervising Senior
Planner (805) 961-7545,
[email protected]

________________________________________________________________________ Name Title Date

If filed by the applicant:

1. Attach certified document of exemption finding

2. Has a Notice of Exemption been filed by the public agency approving the project?
 Yes No

Date received for filing at OPR:

Note: Authority cited: Section 21083 and 211110, Public Resources Code Reference: Sections 21108, 21152.1, Public Resources Code 22 ATTACHMENT 2:

Council Ordinance Nos. 21-04, 22-12, and 23-10

23 ORDINANCE NO. 21-04

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

GOLETA, CALIFORNIA, APPROVING A DEVELOPMENT

AGREEMENT TO EXTEND THE DATE OF APPLICATION OF

THE FORMER ZONING ORDINANCE TO THE

SYWEST/GOLETA GARDENS LLC PROJECT LOCATED AT
907 S. KELLOGG AVENUE, CASE NO. 20-0004-ORD
The City Council does ordain as follows:

SECTION 1: Recitals. The City Council finds and declares that:

WHEREAS an application for a Development Agreement was filed on November 30, 2020 by Goleta Gardens LLC, owner of 907 S. Kellogg Avenue (Assessor Parcel Number 071-190-035), as demonstrated by a preliminary title report dated January 4, 2021, and related to a pending development application (“SyWest Project”) for a high-cube warehouse (“Project”); and

WHEREAS Goleta Gardens LLC proposes a Development Agreement to extend the deadline for use of the City’s former zoning ordinance (Article 35 Coastal Zoning Ordinance) for the applicant’s pending development proposal (Case No. 17-121-DP-DRB) from December 31, 2021 to December 31, 2023 in exchange inter alia for the granting of a license and, if the SyWest Project is approved, a permanent easement by Goleta Gardens LLC to the City of Goleta for use of a private access road to the San Jose Creek Channel along a portion of the subject site; and

WHEREAS Government Code Sections 65684 et seq. recognize an efficiency for development projects to rely on existing policies, rules and regulations, while also recognizing that development agreements can facilitate the provision of public facilities as part of new development; and WHEREAS Government Code Sections 65865 et seq. authorize local agencies to enter into Development Agreements with persons having legal or equitable development interests in real property located within that jurisdiction and provide guidance for adoption of development agreements by local agencies; and
WHEREAS the City of Goleta adopted a new Zoning Ordinance (Title 17 of the Municipal Code) on March 3, 2020, which became effective on April 3, 2020;
WHEREAS, on August 18, 2020, the City adopted amendments to Title 17 that allowed for the extension of the time frame for projects deemed 24 Ordinance No. 21-04, Approving a Development Agreement to Extend the Date of Application of the Former Zoning Ordinance to the SyWest/Goleta Gardens LLC Project Located at 907 S. Kellogg Ave. complete prior to September 1, 2019 to use the City’s former Zoning Ordinance (Article 35) beyond December 31, 2021 with the approval of a Development Agreement as provided in Section 17.01.040(E)(4) of the Goleta Municipal Code; and

WHEREAS Chapter 17.65 of the Goleta Municipal Code establishes the process and findings for Development Agreements proposed within the City of Goleta; and

WHEREAS Goleta Gardens LLC requested a Development Agreement to allow for the SyWest Project to be processed under the standards of the City’s former Zoning Ordinance until December 31, 2023 in exchange for inter alia the Owner’s grant of a license to the City of Goleta to use an access road on Owner’s property during the term of the proposed Development Agreement, provided in Exhibit 1 to this Ordinance; and

WHEREAS, on March 29, 2021, the Planning Commission conducted a duly noticed public hearing, at which time all interested persons were given an opportunity to be heard; and

WHEREAS, on March 29, 2021, the Planning Commission
recommended against the City Council entering into the Development Agreement on a 3-2 vote; and

WHEREAS, on April 18, 2021, the site was posted for the May 4, 2021 City Council meeting by the applicant (a minimum of 15 days prior to the City Council meeting);

WHEREAS, on April 18, 2021, notice of the public hearing was published in the Santa Barbara Independent and notices were mailed to owners and occupants within 500 feet of the project site; and
WHEREAS, on May 4, 2021, the City Council conducted a duly noticed public on the Goleta Gardens LLC Development Agreement, at which time all interested persons were given an opportunity to be heard; and WHEREAS the City Council considered the entire administrative record, including the staff report, the Draft Development Agreement by and between the City of Goleta and Goleta Gardens, LLC, and oral and written testimony from interested persons;

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUCIL OF THE CITY OF GOLETA AS FOLLOWS:

SECTION 2. Findings of Facts. The City Council hereby finds and determines that the foregoing recitals, which are incorporated herein by reference, are true 25 Ordinance No. 21-04, Approving a Development Agreement to Extend the Date of Application of the Former Zoning Ordinance to the SyWest/Goleta Gardens LLC Project Located at 907 S. Kellogg Ave. and correct.

SECTION 3. Development Agreement Findings. Pursuant to Goleta Zoning Ordinance Section 17.65.040 (C), the following findings of consistency can be made for adoption of the Goleta Gardens LLC Development Agreement:

A. The Development Agreement is consistent with the goals, objectives, policies, general land uses, and programs specified in the General Plan and any applicable Specific Plan because acquisition of a wider license/easement area would allow the City of Goleta and other local agencies greater access to the lower San Jose Creek channel in order to perform flood protection activities. This periodic work is specified to be completed in the City’s General Plan.

B. The Development Agreement is compatible with the uses authorized in Title 17 because the Development Agreement does not contemplate allowing the underlying property to undertake any uses different from what is allowed in the Service Industrial (I-S) zone district. However, if approved, the Development Agreement will allow the development standards and review process in place at the time the application was deemed complete to apply beyond the December 31, 2021 sunset date as established in Section 17.01.040(E)(4) and extend these development standards and review process to December 31, 2023.

C. The Development Agreement will result in the granting of a license and, if the SyWest Project is approved, an easement by Goleta Gardens LLC to allow the City greater access to the San Jose Creek Channel. The City and Flood Control District would be able access the creek channel via the easement in order to engage in more extensive construction activity than they are able to do now, thereby enhancing flood protection to the surrounding properties and area.

D. The Development Agreement does not pose public health, safety and general welfare concerns to the surrounding neighborhood or residents near the project site in that it only authorizes additional time for the review of the proposed development application using the previous zoning standards and process. Further, through the terms of the Development Agreement, the public health, safety, and general welfare of the neighborhood would be improved with the wider access easement to provide maintenance within the San Jose Creek channel.

E. The Development Agreement complies with the provisions for the implementation of the California Environmental Quality Act (CEQA) and can be found exempt per CEQA Guidelines 15061(b)(3) because the Development Agreement does not involve physical development of the 26 Ordinance No. 21-04, Approving a Development Agreement to Extend the Date of Application of the Former Zoning Ordinance to the SyWest/Goleta Gardens LLC Project Located at 907 S. Kellogg Ave. property at issue nor does it approve the underlying SyWest project, which will undergo its own process under CEQA and be subject to the full entitlement process under the City’s zoning regulations. The Development Agreement allows the application of the development standards and review process in place at the time the application was deemed complete past the December 31, 2021 sunset date as established in Section 17.01.040(E)(4).

Further, the Development Agreement will result in granting of a license by Goleta Gardens LLC to the City to use an existing access road to the San Jose Creek Channel to conduct maintenance and flood protection activities. The City and Flood Control’s minimal use of this access road for creek maintenance purposes will not result in any foreseeable significant effect on the environment.

SECTION 4: Environmental Assessment for the Project. The City Council makes the following environmental findings:

A. The Development Agreement was analyzed for its potential environmental impacts and is exempt pursuant to the California Environmental Quality Act (Public Resources Code §§ 21000 et seq.; “CEQA”) and CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et seq.). Specifically, the project is categorically exempt from environmental review pursuant to the following CEQA Guidelines: no possibility of significant effect [Section 15061(b)(3)]; the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment [Section 15060(c)(2)];
B. There is substantial evidence in the record showing that an Exemption is appropriate for the Development Agreement;
SECTION 5: Actions. Based on the findings contained in Sections 1-4 above, the City Council take the following actions:

A. Approves the Development Agreement by and between the City of Goleta and Goleta Gardens LLC for the property located at 907 S. Kellogg provided as Exhibit 1 to this Ordinance.

B. Directs staff to file the Notice of Exemption (NOE) within five (5) business days after Council action.

SECTION 6: Reliance on Record. Each and every one of the findings and determinations in this Ordinance is based on the competent and substantial evidence, both oral and written, contained in the entire record relating to the Development Agreement. The findings and determinations constitute the independent findings and determinations of the City Council in all respects and are fully and completely supported by substantial evidence in the record as a whole.
27 Ordinance No. 21-04, Approving a Development Agreement to Extend the Date of Application of the Former Zoning Ordinance to the SyWest/Goleta Gardens LLC Project Located at 907 S. Kellogg Ave.

SECTION 7. Repeals. To the extent any provision of this Ordinance repeals or supersedes any previous approvals, such repeal or replacement will not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before this Ordinance’s effective date. Any such repeal or superseded part of previous approvals will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance.

SECTION 8: Limitations. The City Council’s analysis and evaluation of the Development Agreement are based on the best information currently available. It is inevitable that, in evaluating a project, absolute and perfect knowledge of all possible aspects of the project will not exist. One of the major limitations on analysis of the Development Agreement and Project is the City Council’s lack of knowledge of future events. In all instances, best efforts have been made to form accurate assumptions.

SECTION 9 : Summaries of Information . All summaries of information in the findings, which precede this section, are based on the substantial evidence in the record. The absence of any particular fact from any such summary is not an indication that a particular finding is not based in part on that fact.

SECTION 10. Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable.

SECTION 11 : Mailing to Applicant. The City Clerk is directed to mail a copy of this Ordinance to The Goleta Gardens LLC and to any other person requesting a copy.

SECTION 12. Certification of City Clerk. The City Clerk shall certify to the passage and adoption of this ordinance and, within 15 days after its adoption, shall cause it to be published in accord with California Law. 28 Ordinance No. 21-04, Approving a Development Agreement to Extend the Date of Application of the Former Zoning Ordinance to the SyWest/Goleta Gardens LLC Project Located at 907 S. Kellogg Ave.

SECTION 13. Effective Date. This ordinance shall take effect on the 31 st day following adoption by the City Council.

INTRODUCED ON the 4th day of May, 2021.

PASSED, APPROVED, AND ADOPTED this 18th day of May 2021. _____________________

PAULA PEROTTE
MAYOR
ATTEST: APPROVED AS TO FORM:

___________________ ________________________ DEBORAH S. LOPEZ MICHAEL JENKINS

CITY CLERK CITY ATTORNEY
29 Ordinance No. 21-04, Approving a Development Agreement to Extend the Date of Application of the Former Zoning Ordinance to the SyWest/Goleta Gardens LLC Project Located at 907 S. Kellogg Ave.

STATE OF CALIFORNIA )
COUNTY OF SANTA BARBARA ) ss.

CITY OF GOLETA )
I, DEBORAH S. LOPEZ, City Clerk of the City of Goleta, California, do hereby certify that the foregoing Ordinance No. 21-04 was introduced on May 4, 2021, and adopted at a regular meeting of the City Council of the City of Goleta, California, held on the 18th day of May, by the following roll-call vote, to wit:

AYES: MAYOR PRO TEMPORE KYRIACO, COUNCILMEMBERS

ACEVES, AND RICHARDS

NOES: MAYOR PEROTTE AND COUNCILMEMBER KASDIN

ABSENT: NONE

ABSTENTIONS: NONE
(SEAL)

__________________________
DEBORAH S. LOPEZ

CITY CLERK
30 DEVELOPMENT AGREEMENT BY AND BETWEEN

CITY OF GOLETA
AND

GOLETA GARDENS LLC
THIS DEVELOPMENT AGREEMENT (“Development Agreement” or
“Agreement”) is entered into as of the th day of 2021, by and between the CITY OF GOLETA, a municipal corporation (the "City"), and GOLETA GARDENS LLC, a California limited liability corporation (“Goleta Gardens” or “Owner”).

B. The Property is bounded on the east by San Jose Creek, a portion of which is a concrete-lined channel built and maintained to ensure that flood water is carried away from the City’s developed areas, including properties adjacent to the creek along Kellogg Avenue, including the Goleta Gardens Property. Both upstream and downstream of the concrete lined section, San Jose Creek is an important riparian and natural resource for the City and region. The City has a longstanding commitment to the enhancement and protection of San Jose Creek, and devotes significant resources to ensuring that it is maintained in a condition that protects the City’s residents and businesses from flooding.

C. A portion of the Property is improved with a dirt road that allows limited vehicle access from Kellogg Avenue, the nearest public road, to the westerly bank of San Jose Creek (“Creek Access Road”). A graphic depicting the Creek Access Road is attached hereto as Exhibit B and a legal description is attached hereto as Exhibit C.

D. A portion of the Creek Access Road is burdened by easements in favor of the Santa Barbara County Flood Control and Water Conservation District (“SBFCD”) that grant SBFCD a right of access for flood control purposes. The City and the SBFCD have, with the Owner’s permission, utilized the Creek Access Road for vehicular access to San Jose Creek for purposes of creek maintenance and repair, both the portion of the Creek Access Road burdened by the easements and a portion of the Creek Access Road over which there is no easement, license or other formal agreement between Goleta Gardens and the City or the SBFCD to allow such a use of the Creek Access Road.

E. The City has approached Goleta Gardens with a request that it convey to the Cityan easement for the use of the entirety of the Creek Access Road for purposes of Ordinance No. 21-04, Exhibit 1
31 vehicular access to San Jose Creek for purposes of creek maintenance and repair by the City and the SBFCD. Such a conveyance would confer a substantial and compelling public benefit on the City and its residents, since the City would thereby avoid the necessity of utilizing public funds to acquire the easement.

F. Goleta Gardens has submitted an application to the City to develop the Property with an industrial project (“Project”). On April 11, 2018, the City determined the Project application to be “complete” under the provisions of the City zoning code then in effect (“Prior Code”). The Project Description is attached as Exhibit D.

G. On March 3, 2020, the City adopted a comprehensive revision to its zoning code (“New Code”). On August 18, 2020, the City adopted a number of amendments to the New Code. Under the New Code, as amended, Goleta Gardens has the option to have its Project evaluated under the development standards of the Prior Code or the development standards of the New Code, which option expires on December 31, 2021 or such later date as may be set by a Development Agreement.

H. The City is authorized to enter into development agreements with persons having legal or equitable development interests in real property located within the City pursuant to Government Code Section 65864 et seq.

I. The City has adopted rules and regulations for consideration of development agreements, pursuant to Government Code Section 65865, in Chapter 17.65 of the Goleta Municipal Code.

J. Owner has requested that City enter into a development agreement with Owner and proceedings have been undertaken in accordance with Title 17 of the Goleta Municipal Code.

K. The terms and conditions of this Agreement have been found by the City to be fair, just and reasonable.

L. The public health, safety and welfare of the citizens of the City will be served by entering into this Agreement by virtue of the Owner’s commitment to license the City’s and SBFCD’s use of the Creek Access Road during the term of this Agreement and a conditional commitment to convey an easement to the City and SBFCD for that purpose should the Project be approved.

M. This Agreement will bind future City Councils to the terms and obligations specified in this Agreement and limit, to the degree specified in this Agreement, thefuture exercise of the City's ability to regulate development on the Property.

N. This Agreement and the Project will serve to implement the policies, objectives, and standards of the elements of the City of Goleta General Plan and is consistent with the General Plan.

Ordinance No. 21-04, Exhibit 1
32 O. This Agreement and the consent of Owner and City to each of its terms and conditions will eliminate uncertainty in planning and provide for the orderly development of the Property and generally serve the public interest.

P. On , 2021, the Planning Commission of the City, after giving notice pursuant to Sections 65090 and 65867 of the California Government Code, held a public hearing on Owner’s application for this Agreement. The City Council, after providing public notice as required by law, similarly held a public hearing on ________________, 2021.

Q. The City Council finds that review of the environmental impacts of this Agreement has been conducted in accordance with the provisions of CEQA and the State and local guidelines adopted thereunder, and the City Council has given consideration to such environmental review prior to its approval of the Agreement has undertaken all actions necessary to comply with CEQA, including adoption of findings. The City Council further finds that this Agreement is consistent with the General Plan and all other applicable City plans, policies and regulations of the City of Goleta.

AGREEMENT
NOW THEREFORE, in consideration of the above recitals, the mutual covenants and conditions herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agrees as follows:

SECTION 1. DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
a) "Agreement" means this Development Agreement by and between the City and Owner.
b) "Approval Date" means the date on which the Approval Ordinance is adopted by the City Council.
c) "Approval Ordinance" means Ordinance No. , adopted by the City Council of the City on , approving this Agreement.
d) "CEQA" means the California Environmental Quality Act, Section 21000, et seq., of the California Public Resources Code.
e) "City" means the City of Goleta, California.
f) "City Council" means the City Council of the City of Goleta. g) "Code" means the Municipal Code of the City of Goleta.

Ordinance No. 21-04, Exhibit 1
33 h) "Commencement Date" means that date which is 30 days following the Approval Date, provided, however, (i) if the Approval Ordinance is made the subject of a referendum, the Commencement Date shall be the date when the referendum proceedings have been concluded by any process which results in the Approval Ordinance, and (ii) if litigation challenging the validity of this Agreement and/or environmental review pursuant to CEQA should be brought after the Approval Date, the Commencement Date shall be the date such litigation is concluded in a manner that permits the commencement or continuation of the parties' rights and obligations under this Agreement.
i) "Development Agreement Act" means Section 65864 et seq., of the California Government Code.
j) "Owner" means Goleta Gardens LLC, a California limited liability corporation and each of its respective successors and assigns to all or any portion of the Property during such time as such portion is subject to this Agreement. Goleta Gardens represents that it is the legal owner of the entire Property as of the date of adoption of the Approval Ordinance.
k) "Project" means the Property and the proposed development of the Property described in the Project Description contained in Exhibit D. l) "Public Benefits" means the license and easement described in Sections 3 and 4. m) "Term" means the term of this Agreement, as provided in Section 7.1 of this Agreement.
n) "Zoning Ordinance" means the comprehensive Zoning Ordinance of the City, found in Title 17 of the Code of the City of Goleta as it exists on the Approval Date.

SECTION 2. USE OF PRIOR CODE TO EVALUATE THE PROJECT; GENERAL PLAN CHANGES.

During the term of this Agreement, the Project shall be evaluated by all City staff and agencies utilizing the provisions of the Prior Code, including but not limited to its development standards, environmental standards and procedures. “Prior Code” shall refer to the Zoning Ordinance as it existed on April 11, 2018. During the term of this Agreement, the Project shall be evaluated by all City staff and agencies utilizing the provisions of the General Plan and Airport Land Use Plan as they exist on the date of execution of this Development Agreement.

Goleta Gardens recognizes and acknowledges that the City is under no obligation to approve the Project or any environmental review document prepared in connection with the application, and that the City reserves all of its discretion and the full measure of its police powers to evaluate the application on its merits in accordance with applicable procedures, standards and requirements. It is understood and agreed that this Agreement shall not be construed in any fashion as an approval of the Project or an advance determination and does not provide Goleta Gardens with any expectation as to the outcome of the discretionary review Ordinance No. 21-04, Exhibit 1
34 process. The City neither expressly nor by implication conveys any position with regard to whether the Project may or may not be approved or as regards any conditions that may be imposed on such Project. An adverse decision on those applications will not constitute a default of this Agreement, but instead will constitute a terminating event of this Agreement.

SECTION 3. GRANT OF EASEMENT.

Goleta Gardens agrees that the City may impose a condition of Project approval requiring Goleta Gardens to execute and record, within thirty (30) days of the City’s discretionary entitlements for the Project becoming final if the Project is approved, a non-exclusive easement in perpetuity by which the City and SBFCD may utilize the Creek Access Road for vehicular and pedestrian access to the creek for creek maintenance and repair purposes only. The easement shall be in the form attached hereto as Exhibit E. "Final" in this Section 3 shall mean: (i) the entitlements are granted and are subject to no further administrative appeal (including City and Coastal Commission); and (ii) any litigation over the validity of the entitlements is resolved by final judgment in favor of their validity.

SECTION 4. INTERIM REVOCABLE LICENSE.

Upon execution of this Development Agreement, Goleta Gardens shall execute and deliver to the City a non-exclusive revocable license under which the City and SBFCD may utilize the Creek Access Road for vehicular and pedestrian access to the creek for creek maintenance and repair purposes only. This License shall be in the form attached hereto as Exhibit F and shall terminate at the expiration or earlier termination of this Agreement or upon recordation of the easement referred to in Section 3 above, whichever occurs later.

SECTION 5. ANNUAL/SPECIAL REVIEW.

5.01 Annual Review . The City shall, at least every twelve (12) months during the Term of this Agreement review the extent of good faith substantial compliance by Owner with the terms of this Agreement. Subject to the notice and cure procedure set forth in Section 6.01.02, such a periodic review may result in amendment or termination of this Agreement, provided a default has been established under the terms of this Agreement. Pursuant to Government Code Section 65865.1, as amended, Owner shall have the duty to file an annual review request with the City, pay any applicable Processing Fees for such annual review and demonstrate its good faith compliance with the terms of this Agreement at such periodic review. The parties recognize that this Agreement and the documents incorporated herein could be deemed to contain many requirements (i.e., construction standards, landscape standards, etc.) and that evidence of each and every requirement would be a wasteful exercise of the parties' resources. Accordingly, Owner shall be deemed to have satisfied its duty of demonstration if it presents evidence satisfactory to the City of its good faith and substantial compliance with the major provisions of this Agreement. (a) Any party may address any requirement of this Agreement during the review. However, ten (10) days’ written notice of any requirement to be addressed shall be made by the requesting party. If at the time of review an issue not previously identified in writing is Ordinance No. 21-04, Exhibit 1
35 required to be addressed, the review at the request of either party shall be continued to afford sufficient time for analysis and preparation.

5.02 Special Review . The City Council may order a special review of compliance with this Agreement at any time. The Director of Planning and Environmental Review or City Council, as determined from time to time by the City Council, shall conduct such special reviews.

5.03 Opportunity to be Heard. Upon written request to the City by Owner, Owner shall be permitted an opportunity to be heard orally and/or in writing at a hearing before the City Council regarding its performance under this Agreement. Owner shall also be heard before the City Council at any required public hearing concerning a review of action on the Agreement.

5.04 Information to be Provided Owner . The City shall, to such an extent as is practical, deposit in the mail to Owner a copy of staff reports and related exhibits concerning contract performance a minimum of seven (7) business days prior to any such review or action upon this Agreement by the Planning Commission or the City Council.

SECTION 6. DEFAULT, REMEDIES AND TERMINATION

6.01 Enforceability.

6.01.01 Default . Subject to Sections 6.01.02 and 6.01.03, failure by any party to perform any term or provision of this Agreement required to be performed by such party shall constitute an event of default ("Event of Default”). In the event that Owner files for reorganization or other relief under any Federal or State bankruptcy or insolvency law, whether voluntarily or by involuntary bankruptcy or insolvency action, all provisions of this Agreement shall remain in full force and effect unless Owner engages in an Event of Default. For purposes of this Agreement, a party claiming another party is in default shall be referred to as the "Complaining Party", and the party alleged to be in default shall be referred to as the "Party in Default".

6.01.02 Procedure Regarding Defaults .
(a) Notice of Default . The Complaining Party shall give written notice of default to the Party in Default, specifying the default complained of by the Complaining Party.

Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. The Party in Default shall diligently endeavor to cure, correct or remedy the matter complained of, provided the such cure, correction or remedy shall be completed within the applicable time period set forth herein after receipt of written notice (or such additional, time as may be deemed by the Complaining Party to be reasonably necessary to correct the matter). Any failures or delays by a Complaining Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by a Complaining Party in asserting any of its rights and remedies shall not deprive the Complaining Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. If an Event of Default occurs, prior to exercising any remedies, the Complaining Party shall give the Party in Default written notice of such default. Without limitation, evidence of default may arise in the course of the regularly scheduled annual review or a special review described in Section 5.

Ordinance No. 21-04, Exhibit 1
36 (b) Cure Periods. If the default is reasonably capable of being cured within thirty (30) days, the Party in Default shall have such period to effect a cure prior to exercise of remedies by the Complaining Party. If the nature of the alleged default is such that it cannot practicably be cured within such thirty (30) day period, the cure shall be deemed to have occurred within such thirty (30) day period if (i) the cure is commenced at the earliest practicable date following receipt of the notice; (ii) the cure is diligently prosecuted to completion at all times thereafter; (iii) at the earliest practicable date (in no event later than thirty (30) days after the curing party's receipt of the notice), the curing party provides written notice to the other party that the cure cannot practicably be completed within such thirty (30) day period; and (iv) the cure is completed at the earliest practicable date. In no event shall the Complaining Party be precluded from exercising remedies, subject to the preceding sentence if a default is not cured within sixty (60) days after the first notice of default is given. Subject to the foregoing, if a party fails to cure a default in accordance with the foregoing, the Complaining Party, at its option, may terminate this Agreement pursuant to California Government Code Section 65868, and/or institute legal proceedings pursuant to this Agreement.
(c) Procedures Regarding City Termination . Notice of intent to terminate shall be by certified mail return receipt requested. Upon delivery by the City of notice of intent to terminate, the matter shall be scheduled for consideration and review by the City Council within thirty (30) days in accordance with Government Code Sections 65867 and 65868. Upon consideration of the evidence presented in said review and a determination by the City Council based thereon, the City may give written notice of termination of this Agreement to Owner. Any determination of default (or any determination of failure to demonstrate good faith compliance as a part of annual review) made by the City against Owner, or any person who succeeds to Owner with respect to any portion of the Property, shall be based upon written findings supported by substantial evidence in the record. Any purported termination of this Agreement for alleged default shall be subject to review in the Superior Court of the County of Los Angeles pursuant to Code of Civil Procedure § 1094.5(c).

6.01.03 Institution of Legal Action . Subject to notice of default and opportunity to cure under Section 6.01.02, and subject further to the limitation on remedies set forth in Section

6.01.04, in addition to any other rights or remedies, any party to this Agreement may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with this Agreement. If a legal action or proceeding is brought by any partyto this Agreement because of an Event of Default under this Agreement, or to enforce a provision hereof, the prevailing party shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees, incurred in prosecuting such legal action or proceeding. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.

6.01.04 Remedies.
(a) Owner Remedies. It is acknowledged by the parties that the City would not have entered into this Agreement if it were liable in damages under or with respect to this Agreement or the application thereof. In addition, the parties agree that monetary damages are not an adequate remedy for Owner if the City should be determined to be in default under this Ordinance No. 21-04, Exhibit 1
37 Agreement. The parties further agree that specific performance shall be Owner’s only remedy under this Agreement and Owner may not seek monetary damages in the event of a default by City under this Agreement. Owner covenants not to sue for or obtain monetary damages for the breach by City of any provision of this Agreement.
(b) City's Remedies. The parties agree that the City shall have limited remedies for monetary damages and specific performance as specifically provided for in this Section 6.01.04.

The City shall not have any right to compel specific performance with respect to the construction of the Project, or any obligation to construct the Project. Further, the City shall have no right to monetary damages as a result of Owner's failure to construct the Project. (c) Voter Actions . The parties understand that the Development Agreement Act authorizes this Development Agreement to bind the City even as to actions taken by voters of City. If a court of competent jurisdiction enters a final, non-appealable order to the contrary and City fails or refuses to perform its obligations under this Agreement solely to comply with a measure adopted by initiative after entry of such a final, non-appealable order subjecting this Agreement to the effects of legislation adopted by initiative after the Approval Date, this Agreement shall be modified or suspended to the extent required by Government Code Section 65869.5 and Owner's remedies by reason thereof shall be limited to reformation or rescission of this Agreement.
(d) Other Actions. Nothing in this Agreement shall be deemed to waive or limit any rights and remedies that the parties would otherwise have against the other relating to matters not covered by this Agreement.

6.02 Termination of Agreement .

As to the Property and all of the rights of Owner hereunder, and except as otherwise provided in this Agreement, this Agreement shall be deemed terminated and of no further effect upon the expiration of the Term of this Agreement unless earlier terminated pursuant to this Agreement. Subject to the notice and cure provisions set forth in Section 6.01.02, the City shall have the right to terminate this Agreement as to the Property and the rights of Owner hereunder, in the event Owner defaults and fails to cure such default within the respective cure period. Subject to the notice and cure provisions set forth in Section 6.01.02, Owner shall have the right to terminate this Agreement and the rights of the City hereunder in the event the City defaults and fails to cure such default within the respective cure period. Upon the termination of this Agreement, neither party shall have any further right or obligation with respect to the Property hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination (other than commencement of construction of either phase) or with respect to any obligations which are specifically set forth as surviving this Agreement.

6.02.01 Termination by Owner Prior to Development . The Owner is free, in its sole and subjective business judgment, not to proceed with development of the Project and, in such an event, to terminate this Agreement. The City acknowledges that such a right is consistent with the intent, purpose and understanding of the parties to this Agreement. In the event Owner decides not to proceed with development of the Project and to terminate this Ordinance No. 21-04, Exhibit 1
38 Agreement, the Owner shall provide written notice to the City of that decision and of the final, irrevocable termination of this Agreement. Immediately upon the giving of such written notice to the City, the parties’ rights and obligations under this Agreement shall cease, except with respect to any obligations which are specifically set forth as surviving this Agreement.

SECTION 7. GENERAL PROVISIONS

7.01 Term . This Agreement shall terminate on December 31, 2023, except to the extent that (i) it has been extended by written instrument executed by the Parties, or (ii) the “Commencement Date” has been delayed as a result of referendum proceedings or litigation as set forth in Section 1(h).

7.02 Approval Procedure: Recordation . The following procedure shall govern approval of this Agreement (which shall precede the execution hereof by the City):
(a) Prior to City Council approval of this Agreement, Owner shall execute this Agreement;
(b) City Council shall undertake all necessary proceedings to consider this Agreement in accordance with the procedures established by the Development Agreement Ordinance. Approval by the City shall be by adoption of the Approval Ordinance; and (c) As provided in Section 65868.5 of the Development Agreement Act, the City shall cause a copy of this Agreement to be recorded with the County Recorder within ten (10) days following the Commencement Date. The Owner shall reimburse the City for recording costs.

7.03 Cooperation and Implementation. City represents that it will cooperate with Owner to the fullest extent reasonable and feasible to implement this Agreement. Upon satisfactory completion by Owner of all of its preliminary actions and payments of appropriate fees, City shall promptly commence and diligently proceed to complete all steps necessary for the implementation of this Agreement. Owner shall, in a timely manner, provide City with all documents, plans and other information necessary for the City to carry out its obligations hereunder.

7.04 Legal Challenges .

7.04.01 Defense . If any legal action or other proceeding is instituted by a third party or parties, other governmental entity or official challenging the validity of any provision of this Development Agreement, Owner and the City shall cooperate in defending any such action. The City shall notify Owner of any such legal action against City within ten (10) days after the City receives service of process, except for any petition for a Temporary Restraining Order, in which case the City shall notify Owner immediately upon receipt of notice thereof.

7.04.02 Continued Processing. The filing of any lawsuit(s) by a third party (not a party to this Agreement) after the Approval Date against the City and/or Owner relating to this Agreement or to other development issues affecting the Project shall not delay or stop the Ordinance No. 21-04, Exhibit 1
39 processing or issuance of any permit or authorization necessary for development of the Project, unless the City in good faith determines that such delay is legally required.

7.05 Indemnity.

7.05.01 Owner Indemnity. To the fullest extent permitted by law, Owner hereby agrees, at its sole cost and expense, to defend, protect, indemnify, and hold harmless the City and its elected officials, officers, attorneys, agents, employees, volunteers, successors, and assigns (collectively "Indemnitees") from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including reasonable fees of accountants, attorneys, engineers, consultants or other professionals and all costs associated therewith, arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to any act, failure to act, error, or omission of Owner or any of its officers, agents, servants, lessees, employees, contractors, subcontractors, materialmen, suppliers or their officers, agents, servants, lessees, or employees, or arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to this Agreement, any construction permitted pursuant to this Agreement, or any subsequent use of the Property, or any portion thereof, permitted by this Agreement except for any actions resulting from the gross negligence or intentional acts of an Indemnitee.

7.05.02 Survival of Indemnity. The indemnity provisions contained in Sections

7.05.01 and shall survive the termination of the Agreement and are in addition to any other rights or remedies which Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under these indemnity provisions, and an entry of judgment against an Indemnitee shall be conclusive in favor of the Indemnitee's right to recover under these indemnity provisions. Owner shall pay Indemnitees for any reasonable attorneys’ fees and costs incurred in enforcing these indemnification provisions.

7.06 Notices. All notices or other communications required hereunder shall be in writing and shall be personally delivered (including by means of professional messenger service), or sent by registered or certified mail, postage prepaid, return receipt required, or by electronic facsimile transmission (provided the facsimile transmission is followed by delivery of a "hard" copy), and shall be deemed received on the date of receipt personally, by registered or certified mail or by facsimile.

Unless otherwise indicated in writing, such notice shall be sent addressed as follows:

If to the City: City Manager, City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
With a copy to: City Attorney, City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
If to Owner: Goleta Gardens LLC, c/o William Vierra
Syufy Enterprises
Ordinance No. 21-04, Exhibit 1
40 150 Pelican Way
San Rafael, California 94901
With a copy to: Steven Amerikaner, Esq.

Brownstein, Hyatt, Farber & Schreck
1021 Anacapa St. Floor 2
Santa Barbara, CA 93101-2102

7.07 No Third Party Beneficiaries . This Agreement is made and entered into for the sole protection and benefit of the parties to this Agreement and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

7.08 Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element.

7.09 Modification, Amendment or Extension . Subject to any notice and hearing requirements imposed by law, this Agreement may be modified, amended and/or extended from time to time by mutual written consent of the City and Owner in the same manner as its adoption by ordinance as set forth in Government Code Sections 65867, 65867.5 and 65868 and the Approval Ordinance and Title 17 of the Municipal Code.

7.10 Conflicts of Law. In the event that state, regional or federal laws or regulations enacted after the Approval Date or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall (a) provide the other party with written notice of such state, regional or federal restriction, provide a copy of such regulation or policy and a statement of conflict with the provisions of this Agreement, and (b) Owner and the City staff shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement, but only to the minimum extent necessary to comply with such federal, regional or state law or regulation. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal, regional or state law or regulation upon this Agreement, the matter shall be scheduled for hearings before the Council. Ten (10) days’ written notice of such hearing shall be given, pursuant to Government Code Sections 65090 and 65867. The Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal, regional or state law or regulation. Owner, at the hearing, shall have the right to offer oral and written testimony. Any modification or suspension shall be taken by the affirmative vote of not less than a majority of the authorized voting members of the Council. Any suspension or modification may be subject to judicial review. The City shall cooperate with Owner in the securing of any permits which may be required as a result of such modifications or suspensions. If Owner and the City do not agree on the modification or suspension, either party may elect to terminate this Agreement.

7.11 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought and referring expressly to this Section. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event
Ordinance No. 21-04, Exhibit 1
41 7.12 Successors and Assigns . Except as expressly provided to the contrary in this Agreement, the burdens and obligations of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement and all successors in interest to the Property or any portion thereof or any interest therein, and shall be covenants running with the land.

7.13 Governing State Law . This Agreement shall be construed in accordance with the laws of the State of California.

7.14 Constructive Notice and Acceptance . Every person who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property.

7.15 Statement of Compliance. Within thirty (30) days following any written request, in accordance with the notice provisions of this Agreement, which either party may make from time to time, the other party shall execute and deliver to the requesting party a statement certifying that: (a) this Agreement is unmodified and in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modifications; (b) that this Agreement is in full force and there are no current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; and (c) any other information reasonably requested. The failure to deliver such statement within such time shall be conclusive upon the party which fails to deliver such statement that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party. Said statement(s) shall be in the form reasonably satisfactory to the City, Owner and to any purchaser, lender, title company, governmental agency, or other person reasonably requesting such statement(s) in connection with sale, use, development, construction, financing or marketing of the Property. The City and Owner, for their own respective uses, shall also be entitled to obtain a statement of compliance at any reasonable time.

7.16 Mortgagee Protection . The parties hereto agree that this Agreement shall not prevent or limit the right of Owner at its sole discretion, to encumber the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device (collectively "Mortgage") securing financing of the purchase, development or operation of the Property or any portion thereof (including, without limitation, any combination of purchase financing, construction financing, bridge loans, take-out and permanent financing), as provided in this Agreement; provided, however, that any such Mortgage shall be subordinate to this Agreement and provided further that if any portion of the Property is to be dedicated or transferred to the City pursuant to this Agreement then such Mortgage shall not encumber the portion of the property to be dedicated or transferred to the City.

The City acknowledges that prospective lenders providing such financing may request certain interpretations and modifications of this Agreement, and agrees upon request, from timeto time, to meet with Owner and representatives of such lenders to discuss in good faith any such request for interpretation or modification. The City shall not unreasonably withhold its consent Ordinance No. 21-04, Exhibit 1
42 to any such requested interpretation or modification which the City determines is consistent with the intent and purposes of this Agreement and protects the interests of the City under this Agreement. Any Mortgagee of Property shall be entitled to the following rights and privileges:

Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value.

If the City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, the City shall provide a copy of that notice to the Mortgagee within three (3) days of sending the notice of default to Owner, as the case may be.

The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement.

Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement; in no event shall any such Mortgagee or its successors or assigns be entitled to a building permit or occupancy certificate until all fees and other obligations due by Owner under this Agreement have been performed and/or paid to the City, all defaults have been cured, and all otherwise applicable conditions to such permit or certificate have been satisfied.

7.17 Covenant of Good Faith and Fair Dealing. No party shall do anything which shall have the effect of harming or injuring the right of the other parties to receive the benefits of this Agreement.

7.18 Covenant of Cooperation. Owner and the City shall cooperate with and assist each other in the performance of the provisions of this Agreement, including assistance in obtaining permits for the development of the Property or the Project which may be required from public agencies other than the City. Owner reserves the right to challenge any ordinance, measure, moratorium or other limitation in a court of law if it becomes necessary to protect the development rights vested in the Property pursuant to this Agreement.

7.19 Justifiable Reliance. The City acknowledges that, in investing money and planning effort in and to the Project and all public improvements and dedication offers required hereunder, and in undertaking commencement of the Project, Owner will be doing so in reliance upon the City's covenants contained in this Agreement and upon the enforceability of this Agreement, and the City agrees that it will be reasonable and justifiable for Owner to so rely.

7.20 Project Is Private Undertaking. It is specifically understood and agreed to by and between the parties hereto that: (1) the subject development is a private development; (2) except for the obligations of the City described herein, if any, the City has no responsibilities for or duty to third parties concerning any public improvement until such time and only until such time that the City accepts the same pursuant to the provisions of this Agreement or in connection with any subdivision map approval; (3) Owner shall have full power over and exclusive control of the real property herein described subject only to the limitations and obligations of Owner under this Agreement and the Project Approvals; and (4) the contractual relationship between the City and Owner is such that Owner is not an agent of the City nor is City an agent of Owner.

Ordinance No. 21-04, Exhibit 1
43 Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to waive or modify any otherwise applicable obligations the City, acting in its governmental capacity and not as a party to this Agreement, may have to Owner or any other party, under and in accordance with all applicable laws.

7.21 Further Actions and Instruments . The parties to this Agreement shall cooperate with and provide reasonable assistance to the other parties to the extent contemplated in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.

Upon the request of any party, the other parties shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.

7.22 Section Headings . All Article and Section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

7.23 Severability. Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and the same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and/or the rights and obligations of the parties hereto.

7.24 Interpretation . The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each party has independently reviewed this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the party preparing it, and instead other rules of interpretation and construction shall be utilized.

7.25 Counterparts . This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original and all of which when taken together shall constitute one and the same instrument.

7.26 Entire Agreement . This Agreement consists of ( ) pages and six (6) exhibits (designated A through F), which constitute the entire understanding and agreement of the parties.

IN WITNESS WHEREOF, the parties have each executed this Agreement on the date first written above.
(signatures on next page)
Ordinance No. 21-04, Exhibit 1
44 CITY OF GOLETA OWNER
By: ____________________________ By: ______________________________ William Vierra
Senior Vice President
ATTEST
By: _____________________________ City Clerk
APPROVED AS TO FORM:

By: _____________________________ City Attorney
Ordinance No. 21-04, Exhibit 1
45 EXHIBIT A

Property Legal Description

Goleta Gardens LLC Development Agreement
Ordinance No. 21-04, Exhibit 1
46 EXHIBIT "A"
Legal Description

For APN/Parcel ID(s): 071-190-035
Parcel "B" of Parcel Map No. 11950, in the City of Goleta, County of Santa Barbara, State of California, in Book 13, Page 58 of Parcel Maps, in the Office of The County Recorder of said County.

CLTA Preliminary Report Form - Modified (11.17.06)
SCA0002402.doc / Updated: 07.10.19
Printed: 01.07.21 @ 12:37 PM by
CA-CT-FWVE-02180.054775-SPS-1-21-FWVE-775150061 3
Goleta Gardens DA Exhibit A
City Council 5-4-2021
Ordinance No. 21-04, Exhibit 1
47 EXHIBIT B

Creek Access Road Graphic

Goleta Gardens LLC Development Agreement
Ordinance No. 21-04, Exhibit 1
48 Ordinance No. 21-04, Exhibit 1
49 EXHIBIT C

Creek Access Road Legal Description
Goleta Gardens LLC Development Agreement
Ordinance No. 21-04, Exhibit 1
50 EASEMENT LEGAL DESCRIPTION

CREEK ACCESS ROAD EASEMENT
That portion of Parcel B of Parcel Map No. 11,950, in the City of Goleta, County of Santa Barbara, State of California, as shown on the map filed in the office of the County Recorder of said County in Book 13, Page 58 of Parcel Maps, described as follows:

Beginning at the northeast corner of said Parcel B; thence, along the north line of said Parcel B, North 89°10'40" West 23.80' to a point in the northwest line of the parcel described in the deed to County of Santa Barbara and Santa Barbara County Flood Control and Water Conservation District recorded in the office of said County Recorder on July 7, 1967 in Book 2196, Page 507 of Official Records, said point being the True Point of Beginning; thence, continuing along said north line of said Parcel B,
1st - North 89 °10'40" West 20.00 feet; thence, at right angles to said north line, 2nd - South 0 °49'20" West 12.56 feet to a line parallel with and distant westerly 10.00 feet from the northwest line of said parcel described in said deed to County of Santa Barbara and Santa Barbara County Flood Control and Water Conservation District; thence, along said parallel line,
3rd - South 33 °38'22" West 82.98 feet; thence,
4th - South 28 °51'27" West 13.16 feet to a line parallel with and distant westerly 5.00 feet from said northwest line; thence, along said parallel line, 5th - South 44 °09'14" West 186.52 feet; thence,
6th - South 45 °50'46" East 5.00 feet to said northwest line; thence, along said northwest line by the following two courses:
7th - North 44 °09'14" East 208.36 feet; thence,
8th - North 33 °38'22" East 96.92 feet to the True Point of Beginning.

Containing 2,082 square feet, more or less.

Roger Hemman, PLS 5785
Date: 15 January 2021

Page 1 of 1 ends

w:\work\data\2325\legal\2325-easement-city-access.doc w:\work \data\2325\cad\2325-EX-01.DWG (EX-B)
W.O. 2325.01
Goleta Gardens DA Exhibit C
City Council 5-4-2021
Ordinance No. 21-04, Exhibit 1
51 EXHIBIT D
Project Description
Goleta Gardens LLC Development Agreement
Ordinance No. 21-04, Exhibit 1
52 Exhibit D

Project Description - Goleta Gardens LLC

The subject property (APN 071-190-035) is an 11.71-acre parcel located at the south terminus of Kellogg Avenue at 907 S. Kellogg Avenue, within the California Coastal Zone. The site is currently operating as the Westwind Drive- In Theater and Public Market. The property is zoned Service Industrial (I-S) and the land use designation is Service Industrial (I-S). The applicant proposes a Development Agreement to grant a license to the City of Goleta to use a private access road to the San Jose Creek Channel in exchange for the extension of the deadline to use the City’s former zoning ordinance (Article 35 Zoning Ordinance) from December 31, 2021 to December 31, 2023 on applicant’s pending development proposal (Case No. 17-121-DP-DRB).

Goleta Gardens DA Exhibit D
City Council 5-4-2021
Ordinance No. 21-04, Exhibit 1
53 EXHIBIT E

Creek Access and Maintenance Easement
Goleta Gardens LLC Development Agreement
Ordinance No. 21-04, Exhibit 1
54 RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF GOLETA
130 Cremona Drive , Suite B
Goleta, California 93117

No RecordingFee Pursuant toGov' t Code§§ 6I03 a n d 27383 (Space above this line is for Recorder's use) No Documentary Transfer Tax Pursuant to California Revenue & Taxation Code§11922

ACCESS AND MAINTENANCE EASEMENT

THIS ACCESS AND MAINTENANCE EASEMENT is en tered into this _ day of ,202_, by and between GOLETA GARDENS LLC, a California limited liability company ("Grantor") and the the CITY OF GOLETA, a municipal corporation of the State of California ("Grantee") who hereby agree as follows:

1. Grantor's Property. The Property that is the subject of the Easement is located at 907 S. Kellogg Avenue, in the City of Goleta, the County of Santa Barbara, State of California, commonly known as APN 071-190-035, and is further described in Exhibit "A" attached hereto (" Property").

Grantor covenants that it is the owner of the above described real property and has full right, power, and authority to grant this Easement, and that said Property i s free and clear of encumbrances and lien s of whatsoever character except those recorded against the Property.

2. Grant of Easement. Grantor hereby grants to Grantee , and its successors and assigns, a perpetual nonexclusive easement and right of way for pedestrian and vehicular access by Grantee, and its employees, agents, contractors, customers, invitees and guests over, across, under and on that certain real property in the County of Santa Barbara , State of Ca lifornia, described on the attached Exhibit "B-1" and depicted on the attached Exhibit "B-2" (such rights being described hereafter as the "Easement" and the area affected by thereby, the " Easement Area"). The Easement shall include the right to use the Easement Area to access, maintain, repair, construct and reconstruct, an existing flood control channel and flood control appurtenances ("Flood Control Channel") adjacent to the Easement Area, together with the reasonable right of access over and across the Property for purpo ses of exercis ing the rights granted herein. Grantee shall have an irrevocable easement to go over, under, across and through the Easement Ar ea, and all portions thereof determined by Grantee , in its sole discretion, to be necessary, expedient or convenient to effectuate or implement the rights of Grantee as set forth herein. Any action or inaction by the Grantee pursuant to this paragraph shall not create any liability on the part of the Grantee.

3. No Obstruction/Modification. No walls, fences, barriers or improvements of any kind will be con structed or maintained within the Ea sement Area by Grantor in any manner which would impair free access and movement of pedestrian and vehicular traffic through the Easement Area. Grantor shall not alter, modify or change the location or alignment of any vehicular access, the grade of the Easement Area, the flow of water or storm water within the Easement Area, cause any erosion, allow any water run-off from irrigation, construction any permanent or temporary structures such as buildings, sheds, barns, garages, or walls without the

65266 .00412/33720097.3 1 Goleta Gardens DA Exhibit E
City Council 5-4-2021
Ordinance No. 21-04, Exhibit 1
55 prior written consent of Grantee, which may be withheld in the sole and absolute discretion of Grantee.

4. Permitted Partie s. The Easement may be u sed by and for the benefit of Grantee, and its successors, assigns, tenants, subtenants, employees, agents, contractors, customers, visitors, licensees, invitees, and guests, including, without limitation the Santa Barbara Flood Control and Water Conservation District.

5. Grantee Non-responsibility. The Grantee shall be under no obligation to protect the Grantor, its property or any improvements located on the Property. The rights granted herein shall be without notice to Grantor or any third party. No exercise by Grantee of any of the rights herein shall entitle Grantor to any compensation for any matter whatsoever. More particularly , Grantor hereby assumes all risk of damage to property (real or per sonal) and injury to persons and waives and releases Grantee and its officers, directors , employees, agents, representatives, successors and assigns (collectively, "Representatives") from any damages, costs (including , but not limited to, reasonable attorneys' fees), actions, causes of action, demands, claims, lo sses, liabilities and expenses of every type and description (co llectively , "Costs") arising from this Easement, including, without limitation, any flood control activities conducted at or around the Flood Control Channel.

6. Indemnification. Notwithstanding anything herein to the contrary , Grantee shall indemnify and hold Grantor harmless from and against any and all Costs arising solely from the acts or omissions of Grantee in making use of the Easement.

7. Runs with Land. This Agreement and the benefits and burdens herein shall be binding upon, and inure to the benefit of, each party and any person ha ving or acquiring any right, title, or interest in or to any portion of the Property, whether by operation of law or any manner whatsoever.

All provi sions of this Agreement are intended to be covenants running with the land pursuant to Section 1468 of the Civil Code of the State of California.

8. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.

9. Attorney's Fees. In the event any party shall commence any legal action or arbitration proceeding to enforce the terms or condition s hereof , the pre vailing party shall be entitled to reasonable fees, costs, and expenses incurred.

10. Counterparts; Document Execution and Change. This Agreement ma y be executed in one or more counterparts, all of which taken together shall be deemed one original.

11. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and may not b e modified or amended except by a writing executed by the Parties

IN WITNESS WHEREOF, Grantor has executed this agreement as of the day and year first above written.

Ordinance No. 21-04, Exhibit 1
56 GRANTOR

Goleta Gardens LLC

By: SyWest Holdings LLC,
a California limited liability company
Its: Member/Manager

By: Syufy Enterprises ,
a California limited partnership
Its: Member/Manager
By: Syufy Properties , Inc.,
a California corporation
Its: General Partner

By: __________________
William Vierra
Its: Senior Vice President
Ordinance No. 21-04, Exhibit 1
57 For APN/Parcel ID(s):071-190-035

Parcel "B" of Parcel Map No. 11950, in the City of Goleta, County of Santa Barbara, State of California, in Book 13, Page 58 of Parcel Maps, in the Office of The County Recorder of said County.

65266.00412/33720097.3
4 Goleta Gardens DA Exhibit E
City Council 5-4-2021
Ordinance No. 21-04, Exhibit 1
58 Exhibit B -1

Legal Description of the Easement Area

65266.00412\33720097.3
5 Goleta Gardens DA Exhibit E
City Council 5-4-2021
Ordinance No. 21-04, Exhibit 1
59 EASEMENT LEGAL DESCRIPTION

Containing 2,082 square feet, more or less.

Roger Hemman, PLS 5785
Date: 15 January 2021

Page 1 of 1 ends

w:\work\data\2325\legal\2325-easement-city-access.doc w:\work \data\2325\cad\2325-EX-01.DWG (EX-B)
W.O. 2325.01
Goleta Gardens DA Exhibit C
City Council 5-4-2021
Ordinance No. 21-04, Exhibit 1
60 Exhibit “B -2”
Depiction of the Easement Area

65266.00412\33720097.3
Ordinance No. 21-04, Exhibit 1
61 Ordinance No. 21-04, Exhibit 1
62 CERTIFICATE OF ACCEPTANCE
Pursuant to Section 27281 of the
California Government Code
This is to certify that the interest in real property conveyed by the Flood Easement dated , 2021, from Goleta Gardens, LLC to City of Goleta, a municipal corporation, is hereby accepted by the undersigned officer on behalf of the City of Goleta, pursuant to the authority conferred by Resolution No. , adopted by the City Council of the City of Goleta on , 202_, and the City of Goleta consents to recordation thereof by its duly authorized officer.

Dated: , 202_ CITY OF GOLETA
65266.00412\33720097.3
Ordinance No. 21-04, Exhibit 1
63 EXHIBIT F

Revocable License Agreement

Goleta Gardens LLC Development Agreement
Ordinance No. 21-04, Exhibit 1
64 EXHIBIT F

NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT
This Non-Exclusive Revocable License Agreement (“License”) is executed on , 20 , by and between Goleta Gardens LLC, a California limited liability corporation (“Licensor”) and City of Goleta, a municipal corporation(“Licensee”).

RECITALS
A. Licensor is the fee owner of that certain real property located at 907 S. Kellogg Avenue, Goleta, California, APN 071-190-035 (the “ Property”). Licensor has submitted to Licensee an application for approvals to construct a new commercial development on the Property (“Project”), and Licensor and Licensee have entered into a Development Agreement dated (“Development Agreement”) to memorialize their agreement with respect to the Licensor’s application.

B. Licensee has requested that Licensor license a portion of the Property to Licensee for the non-exclusive use thereof by Licensee for the purpose of vehicular and pedestrian access to San Jose Creek to accomplish repair and maintenance activities.

C. Licensor agrees to license such portion of the Property to Licensee for such purposes for a specified period of time, subject to and upon the terms and conditions contained in this License.

AGREEMENT
NOW, THEREFORE , in consideration of the foregoing recitals, which by this reference are incorporated herein, and in consideration of the mutual covenants, conditions and agreements contained herein, Licensor and Licensee hereby agree as follows:

1. GRANT OF LICENSE AND PERMITTED USE.

Licensor hereby grants to Licensee a license to utilize that certain portion within the Property as shown on Exhibit A (the “ Premises”) on the terms set forth herein. Licensee may grant a sublicense the Santa Barbara Flood Control and Water Conservation District to use the Premises, subject to all the terms and conditions of this license. The Premises collectively contain approximately 2,082 square feet of land, in the location shown on the Site Plan (attached hereto as Exhibit A and incorporated herein). During the Term (defined in Section 2, below), Licensee and Licensee’s employees and contractors shall have the non-exclusive right to utilize the Premises only for vehicular and pedestrian access from the public right of way known as S. Kellogg Avenue to San Jose Creek, such access to be utilized only by Licensee’s employees and contractors for creek, channel and bridge repair and maintenance purposes only (the “ Permitted Use”). Licensee and its employees and contractors shall make no other use of the Premises or any use of any other portion of the Property. Licensee acknowledges and understands that, during the Term, Licensor shall have the right to license and lease any portion of the Property, including the Premises, to third parties, so long as such additional licenses and leases do not unreasonably interfere with Licensee’s right to use the Premises hereunder.

Ordinance No. 21-04, Exhibit 1
65 2. TERM, TERMINATION; NO RIGHT TO RENEW OR EXTEND; NO LICENSE FEE.

The term (“Term”) of this License shall commence on the date this License is executed by and delivered to both parties (“Commencement Date”) and terminating on the earlier of:
(i) execution and recording of a non-exclusive easement in perpetuity as described in Section 3 of the Development Agreement, or (ii) the expiration or earlier termination of the Development Agreement. Licensee shall have no right or option to extend or renew the Term. During the Term, Licensee shall have no obligation to pay to Licensor any rent or any license fee.

3. USE OF PREMISES.
(a) The Premises shall be used only by Licensee and its employees and only for the Permitted Use specified in Section 1 above, and for no other use or purpose.

Licensee shall, at Licensee’s sole cost and expense, comply with all governmental laws, statutes, ordinances, codes, orders, rules, regulations, requirements and mandates (collectively, “Laws”) affecting Licensee’s use of the Premises. Licensee shall not: (i) do or permit anything to be done, nor bring or keep anything in or around the Premises or the Property, that will increase the risk of fire or other loss (including by way of example, bring flammables or explosives onto the Property) except for gasoline (and other substances typically found in vehicles) in Licensee’s vehicles, if any, on the Premises; (ii) do or permit anything to be done which may be a nuisance to nearby occupants; (iii) commit or suffer any waste upon or about the Property; (iv) permit any liens to be recorded against the title to the Property or any portion thereof as a result of the activities of Licensee or Licensee’s agents, contractors or employees; or (v) work on, wash, clean, maintain, repair or refuel any vehicles on the Premises or Property. In the event that any such liens are recorded, Licensee shall immediately cause such liens to be discharged and released from the title to the Property.
(b) Except for gasoline (and other substances typically found in vehicles) in Licensee’s vehicles, if any, on the Premises, Licensee shall not, and shall not direct, suffer or permit any of Licensee’s agents, contractors or employees at any time to handle, use, manufacture, store or dispose of in or about the Property any flammables, explosives, radioactive materials, hazardous wastes or materials, toxic wastes or materials, petroleum products or derivatives or any substance subject to regulation (collectively, “Hazardous Materials”) by or under any federal, state or local laws, regulations, statutes or ordinances relating to the protection of the environment or the keeping, use or disposition of environmentally hazardous materials, substances, or wastes (collectively, “ Environmental Laws ”). Licensee shall protect, defend, indemnify and hold Licensor and each and all of Licensor’s directors, officers, general partners, beneficiaries, stockholders, employees and agents harmless from and against any and all loss, claims, liability or costs (including court costs and attorney’s fees) incurred by reason of any actual or asserted failure of Licensee to fully comply with all applicable Environmental Laws, or the presence, handling, use or disposition in or from the Premises of any Hazardous Materials, or by reason of any actual or asserted failure of Licensee to keep, observe, or perform any provision of this Section 3.

Ordinance No. 21-04, Exhibit 1
66 (c) Licensee shall be responsible for the acts and omissions of all of Licensee’s employees, agents and contractors, and shall ensure that they do not do anything upon the Property which Licensee is not allowed to do under this License. Also, Licensee shall faithfully observe and comply with any and all rules and regulations which Licensor may promulgate from time to time regarding the use of the Property.

4. UTILITIES, SERVICES AND OTHER COSTS.

During the Term, Licensee shall be solely responsible for and shall apply for, arrange and promptly pay directly to the utility service provider for Licensee’s Permitted Use of the Premises all charges for gas, electricity, water, telephone, telecommunications, data, refuse and garbage removal, sewer service charges, fire sprinkler service, fire alarm service and any other utility or service used, consumed or provided in, or furnished, or attributable to the Premises, however supplied, at the rates charged by the supplying utility companies and service providers.

5. CONDITION OF PREMISES.

Licensee acknowledges and agrees that Licensee is familiar with the condition of the Premises, and agrees to accept the Premises in their existing condition "AS IS", without any obligation of Licensor to modify, improve or alter the Premises, or to perform any other construction or work of improvement upon the Premises. Pursuant to California Civil Code Section 1938, Licensor hereby notifies Licensee that the Premises have not undergone inspection by a Certified Access Specialist. A Certified Access Specialist (CASp) can inspect the subject Premises and determine whether the subject Premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject Premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject Premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Premises. Accordingly, the parties hereby agree that Licensee shall, at Licensee’s sole cost and expense, assume the full responsibility for: (a) obtaining a CASp inspection of the subject Premises in the event Licensee elects to obtain such an inspection, or if such an inspection is or becomes required in order to comply with Laws; and (b) perform any such repairs necessary to correct violations of construction-related accessibility standards within the Premises.

Licensee shall obtain Licensor’s prior written approval as to both the time and manner of any such CASp inspection and any such repairs.

6. ALTERATIONS, REPAIRS AND MAINTENANCE.

Licensee agrees not to make or permit any alterations or modifications to the Premises or other portions of the Property. During the Term of this License, Licensee shall maintain and keep the entire Premises in the same condition as it existed immediately prior to Licensee’s use thereof, and Licensee shall keep the Premises neat, clean and orderly during the Term of this License. Licensee shall repair any damage Licensee causes to the Premises or other portions of the Property, or in lieu of requiring Licensee to make repairs, Licensor shall have the right (but not the obligation) to perform such Ordinance No. 21-04, Exhibit 1
67 repairs itself, in which case, all repair costs shall be payable by Licensee upon Licensor’s request. Upon the expiration or termination of the Term of this License: (a) Licensee shall cease using the Premises and the Property; (b) Licensee shall remove all of Licensee’s equipment, vehicles and personal property from the Premises and the Property; and (c) Licensee shall deliver the Premises to Licensor in the same condition as it existed immediately prior to Licensee’s use thereof.

7. INDEMNITY, RELEASE AND INSURANCE.
(a) Licensee shall defend, indemnify, protect and hold harmless Licensor and Licensor’s directors, officers, partners, employees, representatives and agents (the “Protected Parties”) from and against any and all losses, damages, liability, claims, demands, obligations, causes of action, judgments, costs, settlements or expense of any kind or character (including attorney’s fees and costs for mediation, arbitration, litigation and/or settlement) for any loss or damage, bodily injury, including death, damage to or loss of use of property caused by Licensee’s Permitted Use arising from: (i) Licensee’s entry upon or use of the Property or anything done, permitted, suffered or omitted by Licensee or any of Licensee’s employees, agents, officers, consultants, contractors or invitees in or about the Property; and/or (ii) any breach or default by Licensee hereunder. Licensee’s obligation to indemnify Licensor shall apply to the fullest extent permitted by Laws, except to the extent that any such loss or damage is caused by the negligence or willful misconduct of Licensor. Licensee’s obligation to indemnify Licensor shall survive the expiration or sooner termination of the Term of this License. As a material part of the consideration to Licensor under this License, except for any injuries or property damage resulting from the negligence or willful misconduct of Licensor, Licensee hereby assumes all risk of damage to property or injury to persons on or about the Property from any cause whatsoever that occurs during the Term of this License, and Licensee waives all claims against Licensor and the other Protected Parties on account of the same.
(b) Commencing on the Commencement Date, Licensee is required to maintain in full force and effect throughout the Term and at its sole expense, a primary self- insurance policy of $30 million and an excess policy of $20 million, both with California Joint Powers Insurance Authority. Any insurance provided by Licensor and applicable to the Premises shall apply in excess of, and shall not contribute with the insurance provided by Licensor. Upon request, Licensee shall provide to Licensor written evidence reasonably satisfactory to Licensor that the requirements of this Section 7(b) have been met.
(c) Licensor shall not be liable for any damage to the property of Licensee, or of others, located in, on or about the Premises, nor for the loss of any property of Licensee or of others by theft or otherwise. Licensor shall not be liable to Licensee, Licensee’s employees, agents, contractors or representatives for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain or leaks from any part of the Premises or from the pipes, appliances or plumbing works or from the roof, street or sub-surface or from any other places or by dampness or by any other cause of whatsoever nature.

Licensor shall not be liable to Licensee, Licensee’s employees, agents, contractors or representatives for any such damage caused by other tenants or persons in the Premises or on the Property. Licensor shall not be liable for any Ordinance No. 21-04, Exhibit 1
68 latent defects in the Premises or on the Property. All property of Licensee kept or stored on the Premises shall be so kept or stored at the sole risk of Licensee, and Licensee shall hold Licensor harmless from any claims arising out of damage to the same, including subrogation claims by Licensee’s insurance carriers.

Licensee shall give immediate notice to Licensor in case of fire or accidents in or upon the Premises or of any damage or defects in or upon the Premises or any fixtures or equipment therein or thereon.

8. ASSIGNMENT AND SUBLICENSE.

Licensee shall not, without Licensor’s prior written consent (which consent may be withheld in Licensor’s sole and absolute discretion): (i) assign this License or any interest in this License; (ii) permit the use of the Premises by any person or persons other than Licensee and Licensee’s employees, agents or contractors; or (iii) sublicense (sublease) all or any part of the Premises other than to the Santa Barbara Flood Control and Water Conservation District.

9. DEFAULT BY LICENSEE; LICENSOR’S REMEDIES.
(a) The occurrence of any of the following shall constitute a default by Licensee under this License: (i) intentionally deleted; (ii) any assignment, sublicensing or encumbrance in violation of this License; (iii) the insolvency, or filing of any voluntary or involuntary proceeding under the Bankruptcy Code or similar State Laws providing for relief or protection from creditors by or against Licensee, or the making of an assignment for the benefit of creditors by Licensee; (iv) if a receiver or trustee shall be appointed for all of the Premises or for all or substantially all of the assets of Licensee; or (v) the failure by Licensee to perform any non-monetary provision of this License if the failure to perform is not cured within thirty (30) days after written notice of such failure has been given to Licensee; provided that if the non-monetary default cannot reasonably be cured within thirty (30) days, Licensee shall not be in default of this License if Licensee commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default.
(b) Licensor shall have the following remedies if Licensee commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by Law.
(i) Intentionally deleted.
(ii) Licensor may elect to terminate this License and Licensee’s right to possession of the Premises. If Licensor elects to do so, Licensor shall have all of the rights and remedies of a landlord provided by California Civil Code Section 1951.2, or successor code section.

10. NOTICES.

Any notices required or permitted to be given by one party to the other party under this License shall be given by reputable courier service which provides for written evidence of delivery, or by certified or registered mail, postage prepaid, addressed to Licensor or Licensee at its address set forth below in this Section 11, or at such other address as Ordinance No. 21-04, Exhibit 1
69 Licensor or Licensee may designate by written notice to the other party pursuant to this Section 11. Any notice given by courier service or by mail shall be deemed effective upon receipt, or attempted delivery.

Licensor’s Address:

Goleta Gardens LLC
c/o William Vierra, SyWest
Development 150 Pelican Way
San Rafael, CA 94901
Attention: Candice Ramirez
Licensee’s Address:

City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
Attention: Charlie Ebling
805-961-7569
[email protected]

11. INTERPRETATION.
(a) This License shall be governed by the laws of the State of California, and shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assigns. This License contains the entire agreement of the parties relating to Licensee licensing the Premises from Licensor for Licensee’s Permitted Use. Any oral understanding or oral agreement, if any, between Licensor and Licensee, which is not incorporated herein, shall not be binding on Licensor or Licensee. This License cannot be amended, or any right or provision waived, except by a written document signed by both parties. (b) All obligations, liabilities, indemnities, waivers and releases hereunder, as well as the attorneys’ fees provision hereof, shall survive the expiration or termination of the Term of this License.

12. LIMITATION ON LIABILITY.

Redress for any claim against Licensor under this License shall be limited to and enforceable only against and to the extent of Licensor’s unencumbered interest in the Property. The obligations of Licensor under this License are not intended to and shall not be personally binding on the Protected Parties. No claims, demands or actions by Licensee shall be made against the Protected Parties or against any of the private properties of the Protected Parties.

Ordinance No. 21-04, Exhibit 1
70 13. BROKERS.

Licensee and Licensor warrant that they have had no dealings with any broker or agent in connection with this License. Licensor and Licensee each covenant to hold harmless and indemnify and defend the other from and against any and all cost, expense or liability for any compensation, commissions and charges claimed by any broker or agent to have been engaged to be representing such party with respect to this License or the negotiation hereof.

15. LICENSOR’S RIGHT OF ENTRY.

Licensor and its employees, agents, contractors and assigns may enter the Premises at all reasonable times: (a) to examine and inspect the Premises; (b) to perform any obligation of, or exercise any right or remedy of, Licensor under this License; (c) to make repairs, alterations, improvements or additions to the Premises, or to other portions of the Property as Licensor deems necessary; (d) to perform work necessary to comply with Laws or any requirements of any insurance underwriter; (e) to show prospective tenants the Premises; (f) to show prospective purchasers the Premises at any time during the Term; and (g) to post leasing signs on the Premises. Licensor may take such reasonable steps as required to accomplish the stated purposes. Licensee hereby waives any claims for damages or for any injuries or inconvenience to or interference with Licensee’s loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by Licensor’s entry into or upon the Premises pursuant to this Section 15.

16. ATTORNMENT AND SUBORDINATION.

Licensee shall, in the event any proceedings are brought for the foreclosure of, or in the event of exercise of the power of sale under any mortgage made by Licensor covering the Premises, attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Licensor under this License, provided that any such purchaser shall recognize this License as remaining in full force and effect, so long as Licensee observes and performs the terms, covenants and conditions of this License to be observed and performed by Licensee. This License shall be subject and subordinate to the lien of any mortgage, trust deed or other encumbrances now or hereafter in force against the Property or any part thereof, if any, and to all renewals, extensions, modifications, consolidations and replacements thereof, and to all advances made or hereafter to be made upon the security of such mortgages or trust deeds, unless the holders of such mortgages, trust deeds or other encumbrances require in writing that this License be superior thereto.

Further, in the event Licensor shall sell, convey, transfer or exchange the Premises or the Property, Licensee agrees to recognize and attorn to the purchaser or transferee, as the Licensor hereunder and Licensor shall be relieved and released from any liability under any and all of its covenants and obligations under this License arising out of any act, occurrence or event after such sale, conveyance, transfer or exchange. Licensor’s title is subject to: (a) the effect of any covenants, conditions, restrictions, easements, development agreements, mortgages or deeds of trust, ground leases, rights of way, and other matters or documents of record now or hereafter recorded against Licensor’s title to the Property; and (b) the effects of any zoning Laws of the city, county and state where the Property is situated. Licensee agrees that it will conform to and will not violate any matters of record, and that this License is and shall be subordinate to said matters of record and any amendments or modifications thereto.

Ordinance No. 21-04, Exhibit 1
71 17. DAMAGE AND CONDEMNATION.

In the event that any portion of the Premises is damaged, or in the event that twenty-five percent (25%) or more of the square footage on the Property is damaged or destroyed by fire or other casualty notwithstanding that the Premises may be undamaged by such fire or other casualty, Licensor shall have the ongoing right to terminate the Term of this License by notice thereof from Licensor to Licensee. Upon the giving of such notice to Licensee, the Term shall terminate on the date set forth in such notice, and Licensee shall vacate the Premises and surrender the same to Licensor in the condition required under this License. If any portion of the Premises is acquired for any public or quasi- public use or purpose or taken by eminent domain, then the Term shall cease and terminate as of the date possession or title is given to such condemning authority in any proceeding. In the event that twenty-five percent (25%) or more of the square footage of space on the Property is acquired for any public or quasi-public use or purpose or taken by eminent domain notwithstanding that no portion of the Premises may be so acquired or taken, or if any of the parking or access areas on the Property may be so acquired or taken notwithstanding that no portion of the Premises may be so acquired or taken, then the Term shall cease and terminate as of the date possession or title is given to such condemning authority in any proceeding.

18. HOLDING OVER.

No holding over by Licensee shall operate to extend the Term. If Licensee remains in possession of the Premises after the expiration or termination of this License, Licensee shall become a tenant at sufferance upon all the applicable terms and conditions of this License, and such holding over shall constitute a default by Licensee under this License.

19. SALE OF PREMISES OR PROPERTY.

In the event Licensor shall sell, convey, transfer or exchange the Property, Licensee agrees to recognize and attorn to the purchaser or transferee as the Licensor hereunder, and Licensor shall be thereby relieved and released from any liability under any and all of its covenants and obligations under this License arising out of any act, occurrence or event arising after such sale, conveyance, transfer or exchange.

20. SECURITY DEPOSIT.

Licensee shall have no obligation to deposit with Licensor any sum as a security deposit.

IN WITNESS WHEREOF, Licensor and Licensee have executed this License as of the date first written above. The individual(s) signing on behalf of Licensee warrants and represents that he/she has the authority to bind Licensee to the provisions of this License.

LICENSOR:

Goleta Gardens LLC

By: SyWest Holdings LLC,
a California limited liability company
Its: Member/Manager
Ordinance No. 21-04, Exhibit 1
72 By: Syufy Enterprises,
a California limited partnership
Its: Member/Manager

By: Syufy Properties, Inc.,
a California corporation
Its: General Partner

By:

William Vierra
Its: Senior Vice President
LICENSEE:

City of Goleta
Michelle Greene
City Manager
Attest:

Deborah S. Lopez, City Clerk
APPROVED AS TO FORM:

Michael Jenkins, City Attorney
Ordinance No. 21-04, Exhibit 1
73 EXHIBIT A - SITE PLAN SHOWING THE PREMISES
Ordinance No. 21-04, Exhibit 1
74 ORDINANCE NO. 22-12

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GOLETA,

CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT

AMENDMENT TO PROVIDE THAT THE TERM OF THE

DEVELOPMENT AGREEMENT MUST NOT EXTEND BEYOND THE

DATE THE CITY RECEIVES A CERTIFIED LOCAL COASTAL
PROGRAM OR DECEMBER 31, 2023, WHICHEVER OCCURS
FIRST; 907 S. KELLOGG AVENUE; CASE NO. 22-0003-ORD
WHEREAS, on May 18, 2021, the City Council approved a Development Agreement with Goleta Gardens LLC to grant the City a license to use a private access December
Kellogg Avenue (Case No 17-121-DP-DRB); and
WHEREAS the California Coastal Commission approved the Development Agreement with a condition that the term of the Development Agreement, currently set at December 31, 2023, must not extend beyond the date the Coastal Commission certifies tal Program. The
; and
WHEREAS an application for a Development Agreement Amendment was filed on June 13, 2022, by Robert Atkinson/SyWest Development on behalf of Goleta Gardens LLC, owner of 907 S. Kellogg Avenue (Assessor Parcel Number 071-190-035), as demonstrated by a preliminary title report dated June 1, 2022; and WHEREAS Government Code Sections 65684 et seq. recognize an efficiency for development projects to rely on existing policies, rules and regulations, while also recognizing that development agreements can facilitate the provision of public facilities as part of new development; and
WHEREAS Government Code Sections 65865 et seq. authorize local agencies to enter into Development Agreements with persons having legal or equitable development interests in real property located within that jurisdiction and provide guidance for adoption of development agreements by local agencies; and
WHEREAS Chapter 17.65 of the Goleta Municipal Code establishes the process and findings for Development Agreements proposed within the City of Goleta; and WHEREAS, on July 25, 2022 , the Planning Commission conducted a noticed public hearing on the Goleta Gardens LLC Development Agreement Amendment request, 75 Ordinance No. 22-12 Approving a Development Agreement Amendment to Provide that the Term of the Development Agreement Must Not Extend Beyond the Date the City Receives a Certified Local Coastal Program or December 31, 2023, Whichever Occurs First; 907 S. Kellogg Avenue; Case No. 22-0003-ORD at which time all interested persons were given an opportunity to be heard.

WHEREAS, on July 25, 2022, the Planning Commission recommended the City Council approve the Development Agreement Amendment on a 4-0 vote (1 absence); and

WHEREAS, on July 29, 2022, the site was posted for the August 16, 2022, City Council meeting by the applicant (a minimum of 15 days prior to the City Council meeting);

WHEREAS, on August 4, 2022, notice of the public hearing was published in the Santa Barbara Independent and notices were mailed to owners and occupants within 500 feet of the project site; and

WHEREAS, on August 16, 2022, the City Council conducted a duly notice public hearing on the Development Agreement Amendment, at which time all interested persons were given an opportunity to be heard; and

WHEREAS the City Council considered the entire administrative record, including the staff report, the Draft Development Agreement Amendment and oral and written testimony from interested persons;

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GOLETA AS FOLLOWS:

SECTION 1. Findings of Facts. The City Council hereby finds and determines that the foregoing recitals, which are incorporated herein by reference, are true and correct.

SECTION 2. Development Agreement Findings. Pursuant to Goleta Zoning Ordinance Section 17.65.040 (C), the following findings of consistency can be made for adoption of the Development Agreement Amendment:

A. The Development Agreement Amendment is consistent with the goals, objectives, policies, general land uses, and programs specified in the General Plan and any applicable Specific Plan.

The Development Agreement facilitates the ability of the City of Goleta and other local agencies to access and maintain the lower San Jose Creek Channel, a major flood General Plan, consistent with the City of Goleta General Plan, Conservation Element policies 1.10, 2.5, and 2.6. The Amendment would simply change the wording of the termination clause to either be at the time the Local Coastal Program is certified by the California Coastal Commission or December 31, 2023, whichever occurs first.

This clarification on timing does not change the Dev
consistency with the goals, objectives, and policies of the General Plan.

76 Ordinance No. 22-12 Approving a Development Agreement Amendment to Provide that the Term of the Development Agreement Must Not Extend Beyond the Date the City Receives a Certified Local Coastal Program or December 31, 2023, Whichever Occurs First; 907 S. Kellogg Avenue; Case No. 22-0003-ORD B. The Development Agreement Amendment is or will be compatible with the uses authorized in this Title, the district, and any applicable Specific Plan in which the property is located.

The Amendment does not affect the uses allowed or conditional allowed as provided for in the applicable Service Industrial (I-S) land use designations. Further, the purpose of the Amendment is to clarify the duration of the term of the Development Agreement to terminate either on the date the California Coastal Commission certifies first.

C. The Development Agreement Amendment will provide substantial public benefits.

The DA Amendment does not change the previously identified public benefits as adopted in Ordinance 21-04. The DA grants an easement by Goleta Gardens LLC to allow the City to access the San Jose Creek Channel. The City and Flood Control District would be able maintain the creek channel and provide flood protection to the surrounding properties and area. As stated, the purpose of the Amendment is to clarify that the term of the Development Agreement either terminates on the date the California Coastal Commission certifie
December 31, 2023, whichever occurs first.

D. The Development Agreement Amendment will be non-detrimental to the public health, safety and general welfare of persons residing or working in the neighborhood, and to property and improvements in the neighborhood.

The DA Amendment does not pose public health, safety and general welfare concerns to the surrounding neighborhood or residents near the project site in that it only authorizes the time for the review of the proposed development application using the previous zoning standards and process.

E. The Development Agreement Amendment complies with the provisions for the implementation of the California Environmental Quality Act.

The DA Amendment complies with the provisions for implementation of the California Environmental Quality Act (CEQA) and can be found exempt per CEQA Guidelines 15061(b)(3). The DA Amendment does not involve physical development of the property at issue, nor does it approve the underlying development project, which will undergo its own process under CEQA and be subject to the full entitlement process SECTION 3 . Environmental Assessment for the Project. The City Council makes the following environmental findings:

A. The Development Agreement Amendment was analyzed for its potential 77 Ordinance No. 22-12 Approving a Development Agreement Amendment to Provide that the Term of the Development Agreement Must Not Extend Beyond the Date the City Receives a Certified Local Coastal Program or December 31, 2023, Whichever Occurs First; 907 S. Kellogg Avenue; Case No. 22-0003-ORD environmental impacts and is exempt pursuant to the California Environmental Quality Act (Public Resources Code Sections 21000 et
(14 Cal. Code Regs. Sections 15000 et seq.). Specifically, the project is categorically exempt from environmental review pursuant to the following CEQA Guidelines: no possibility of significant effect [Section 15061 (b)(3)]; the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment [Section 15060(c)(2)].

B. There is substantial evidence in the record showing that the Exemption is appropriate for the Development Agreement Amendment.

C. A Notice of Exemption was prepared in full compliance with CEQA.

SECTION 4. Actions. The City Council take the following actions:

A. Approve the Development Agreement Amendment by and between the City of Goleta and Goleta Gardens, LLC for the property located at 907 S Kellogg provided as Exhibit 1 to this Ordinance based on the findings provided in Sections 1-4 above.

B. Direct staff to file the Notice of Exemption (NOE) within five (5) business days after Council action.

SECTION 5. Reliance on Record. Each and every one of the findings and determinations in this Ordinance is based on the competent and substantial evidence, both oral and written, contained in the entire record relating to the Development Agreement Amendment. The findings and determinations constitute the independent findings and determinations of the City Council in all respects and are fully and completely supported by substantial evidence in the record as a whole.

SECTION 6. Repeals. To the extent any provision of this Ordinance repeals or supersedes any previous approvals, such repeal or replacement will not affect any penalty, forfeiture, or liability incurred before, or precluded prosecution and imposition of penalties for any violation occurring bef Any such
repeal or superseded part of previous approvals will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Ordinance.

SECTION 7. Limitations. The analysis and evaluation of the Development Agreement Amendment are based on the best information currently available. It is inevitable that, in evaluating a project, absolute and perfect knowledge of all possible aspects of the project will not exist. One of the major limitations on analysis of the Development Agreement and Project is the lack of knowledge of future events. In all instances, best efforts have been made to form accurate assumptions.

SECTION 8. Summaries of Information . All summaries of information in the findings, which precede this section, are based on the substantial evidence in the record. The 78 Ordinance No. 22-12 Approving a Development Agreement Amendment to Provide that the Term of the Development Agreement Must Not Extend Beyond the Date the City Receives a Certified Local Coastal Program or December 31, 2023, Whichever Occurs First; 907 S. Kellogg Avenue; Case No. 22-0003-ORD absence of any particular fact from any such summary is not an indication that a particular finding is not based in part on that fact.

SECTION 9. Severability. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications, and, to this end, the provisions of this Ordinance are severable.

SECTION 10. Mailing to Applicant. The City Clerk is directed to mail a copy of this Ordinance to Goleta Gardens LLC and to any other person requesting a copy.

SECTION 11. Certification of City Clerk. The City Clerk shall certify to the passage and adoption of this ordinance and, within 15 days after its adoption, shall cause it to be published in accord with California Law.

SECTION 12. Effective Date. This ordinance shall take effect on the 31 st day following adoption by the City Council.

INTRODUCED ON the 16th day of August, 2022.

PASSED, APPROVED, AND ADOPTED this 6th day of September 2022. _________________________

PAULA PEROTTE
MAYOR
ATTEST: APPROVED AS TO FORM:
__________________________ _________________________
DEBORAH S. LOPEZ MEGAN GARIBALDI

CITY CLERK CITY ATTORNEY
79 Ordinance No. 22-12 Approving a Development Agreement Amendment to Provide that the Term of the Development Agreement Must Not Extend Beyond the Date the City Receives a Certified Local Coastal Program or December 31, 2023, Whichever Occurs First; 907 S. Kellogg Avenue; Case No. 22-0003-ORD

STATE OF CALIFORNIA )
COUNTY OF SANTA BARBARA ) ss.

CITY OF GOLETA )
I, DEBORAH S. LOPEZ, City Clerk of the City of Goleta, California, do hereby certify that the foregoing Ordinance No. 22-12 was introduced on August 16, 2022, and adopted at a regular meeting of the City Council of the City of Goleta, California, held on the 6th of September, 2022, by the following roll-call vote, to wit:

AYES: MAYOR PEROTTE, MAYOR PRO TEMPORE KASDIN,

COUNCILMEMBERS ACEVES, KYRIACO AND RICHARDS
NOES: NONE
ABSENT: NONE
ABSTENTIONS: NONE
(SEAL)
_________________________
DEBORAH S. LOPEZ

CITY CLERK
80 24013844.1
1 AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN

CITY OF GOLETA
AND

GOLETA GARDENS LLC
THIS

DEVELOPMENT
AGREEMENT between the Parties which was approved by the City Council on May 18, 2021

RECITALS
A. Goleta Gardens is the owner of a 11.71-acre parcel of real property designated as APN 071-191-035-00 and located at 907 S. Kellogg Avenue in the City of Goleta, Exhibit A.

B. The City Council approved the Original Development Agreement on May 18, 2021.

C. Since the City does not have a certified local coastal program, pursuant to California Government Code Section 65869, and the Property is located in the Coastal Zone, the California Coastal Commission must approve the Development Agreement.

Goleta Gardens applied for such approval and the Coastal Commission held a hearing on April 6, 2022 and approved the Original Development Agreement subject to one special conditions.

D. The Coastal Commission special conditions provides The applicant shall submit to the Executive Director, for review and approval, a Revised Development Agreement or Development Agreement Amendment, approved by the City of Goleta Agreement shall include the following provision: The Owner acknowledges and agrees that this Agreement pertains to local planning documents only and does not constitute approval of standards to be utilized for processing a coastal development permit application for any existing or future development of the subject site, that a coastal development permit is required to be obtained from the Coastal Commission under Section 30600 of the Coastal Act for any proposed development of the subject site, and the standard of review shall be the Chapter 3 policies of the Coastal Act. (2) Section 7.01 Term shall be amended to include the following provision: This agreement, including any extensions, shall terminate no later than the date that a coastal land use plan for the City is effectively certified by the Coastal Commission.

The Coastal Commission also found that the Owner shall not execute the Amendment until such document has been approved by the Executive Director.

Ordinance No. 22-12, Exhibit 1
81 24013844.1
2 E. The Parties seek to enter this Amendment to satisfy the special conditions approved by the Coastal Commission on April 6, 2022.

F. The terms and conditions of this Amendment have been found by the City to be fair, just and reasonable.

G. The public health, safety and welfare of the citizens of the City will be served by entering into this Amendment
the Original
Development Agreement (as amended in this Amendment) and a conditional commitment to convey an easement to the City and SBFCD.

H. This Amendment will bind future City Councils to the terms and obligations specified in this Amendment and limit, to the degree specified in this Amendment, the future exercise of the City's ability to regulate development on the Property.

I. This Amendment will serve to implement the policies, objectives, and standards of the elements of the City of Goleta General Plan and is consistent with the General Plan.

J. This Amendment and the consent of Owner and City to each of its terms and conditions will eliminate uncertainty in planning and provide for the orderly development of the Property and generally serve the public interest.

K. On July 8, 2022, the site was posted for the July 25, 2022, Planning Commission meeting by the applicant (a minimum of 15 day prior to the Planning Commission meeting);
L. On July 14, 2022, notice of the public hearing was published in the Santa Barbara Independent and notices were mailed to owners and occupants within 500 feet of the project site;and
M. On July 25, 2022, the Planning Commission conducted a public meeting on the Goleta Gardens LLC Development Agreement, at which time all interested persons were given an opportunity to be heard; and
N. On July 25, 2022, the Planning Commission considered the entire administrative record, including the staff report, the Draft Amendment to the Original Development Agreement and oral and written testimony from interested persons.

Ordinance No. 22-12, Exhibit 1
82 24013844.1
3 AMENDMENT TO ORIGINAL DEVELOPMENT AGREEMENT
NOW THEREFORE, in consideration of the above recitals, the mutual covenants and conditions herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agrees as follows:

SECTION 1. DEFINITIONS
For purposes of this Amendment, except as otherwise expressly provided or unless the context otherwise requires:
a) "Original Development Agreement" means this Development Agreement by and between the City and Owner.
b) "Approval Date" means the date on which the Approval Ordinance for the Amendment is adopted by the City Council.
c) "Approval Ordinance" means Ordinance No. ______, adopted by the City Council of the City on _________, approving this Amendment.
d) "CEQA" means the California Environmental Quality Act, Section 21000, et seq., of the California Public Resources Code.
e) "City" means the City of Goleta, California.
f) "City Council" means the City Council of the City of Goleta. g) "Code" means the Municipal Code of the City of Goleta. h) "Commencement Date" means that date which is 30 days following the Approval Date, provided, however, (i) if the Approval Ordinance is made the subject of a referendum, the Commencement Date shall be the date when the referendum proceedings have been concluded by any process which results in the Approval Ordinance, and (ii) if litigation challenging the validity of the Original Development Agreement (with the Amendment) and/or environmental review pursuant to CEQA should be brought after the Approval Date, the Commencement Date shall be the date such litigation is concluded in a manner that permits the commencement or continuation of the parties' rights and obligations under the Original Development Agreement
i) "Development Agreement Act" means Section 65864 et seq., of the California Government Code.
j) "Owner" means Goleta Gardens LLC, a California limited liability corporation and each of its respective successors and assigns to all or any portion of the Property during such time as such portion is subject to the Original Development Agreement.

Goleta Gardens represents that it is the legal owner of the entire Property as of the date of adoption of the Approval Ordinance.

Ordinance No. 22-12, Exhibit 1
83 24013844.1
4 k) "Term" means the term of the Original Development Agreement, as amended in this Amendment.
l) "Zoning Ordinance" means the comprehensive Zoning Ordinance of the City, found in Title 17 of the Code of the City of Goleta as it exists on the Approval Date.

SECTION 2. AMENDMENT TO ORIGINAL DEVELOPMENT AGREEMENT TO

IMPLEMENT SPECIAL CONDITIONS
(1) The Owner acknowledges and
agrees that the Original Development Agreement and this Amendment pertains to local planning documents only and does not constitute approval of standards to be utilized for processing a coastal development permit application for any existing or future development of the subject site, that a coastal development permit is required to be obtained from the Coastal Commission under Section 30600 of the Coastal Act for any proposed development of the subject site, and the standard of review shall be the Chapter 3 policies of the Coastal Act. (2) Section 7.01 of the Original Development Agreement shall be amended to read in its entirety: Term. This Agreement shall terminate on December 31, 2023, except to the extent that set forth in Section
1(h). This Agreement, including any extensions, shall terminate no later than the date that a coastal land use plan for the City is effectively certified by the Coastal Commission.

IN WITNESS WHEREOF, the parties have each executed this Amendment on the date first written above.
(signatures on next page)
Ordinance No. 22-12, Exhibit 1
84 24013844.1
5 CITY OF GOLETA
By:

ATTEST
By:

City Clerk
APPROVED AS TO FORM:

By:

City Attorney
OWNER
By:

By:
(Title)
Ordinance No. 22-12, Exhibit 1
85 24013844.1
6 PROPERTY LEGAL DESCRIPTION
Legal Description FOR APN/Parcel ID(s): 071-190-035
Parcel "B" of Parcel Map No. 11950, in the City of Goleta, County of Santa Barbara, State of California, in Book 13, Page 58 of Parcel Maps, in the Office of The County Recorder of said County
Ordinance No. 22-12, Exhibit 1
86 NOTICE OF EXEMPTION (NOE)
1 To: Office of Planning and Research From: City of Goleta P.O. Box 3044, 1400 Tenth St. Rm. 212 130 Cremona Drive, Suite B Sacramento, CA 95812-3044 Goleta, CA 93117
Clerk of the Board of Supervisors
County of Santa Barbara
105 E. Anapamu Street, Room 407
Santa Barbara, CA 93101
Subject: Filing of Notice of Exemption
Project Title:

Goleta Gardens LLC Development Agreement Amendment
Case No. 22-0003-ORD
Project Applicant:

Goleta Gardens LLC
Project Location (Address and APN):
907 S. Kellogg Avenue
Goleta, CA 93117
County of Santa Barbara
APN 071-190-035
Description of Nature, Purpose and Beneficiaries of Project:

The Goleta Gardens LLC (SyWest as agent) is requesting approval to amend an existing Development Agreement that grants a license to the City to use a private access road to the San Jose Creek Channel in exchange for an extension of the deadline to use the City’s former zoning ordinance (Article 35 Coastal Zoning Ordinance) to December 31, 2023 for review of the applicant’s pending development proposal (Case No 17-121-DP-DRB). The proposed amendment implements a condition from the California Coastal Commission to provide that the term of the Development Agreement must not extend beyond the date the Coastal Commission certifies the City’s Local Coastal Program. Therefore, the Development Agreement term will be December 31, 2023 or the adoption date of the City’s Local Coastal Program, whichever occurs first.

The beneficiaries of the projects are the property owner and the City of Goleta.

Name of Public Agency Approving the Project:

Goleta City Council
Name of Person or Agency Carrying Out the Project:

Goleta Gardens LLC
Ordinance No. 22-12, Exhibit 2
87 NOTICE OF EXEMPTION (NOE)
2 Exempt Status: (check one)
Ministerial (Sec. 15268)
Declared Emergency (Sec. 15269 )
Emergency Project (Sec. 15269)
Categorical Exemption/Other: §15061.B.3 & §15060.C.2
Reason(s) why the project is exempt:

Pursuant to the requirements of the California Environmental Quality Act (CEQA) (Public Resources Code §§ 21000 et seq.), the regulations promulgated thereunder (14 Cal. Code of Regulations §§ 15000 et seq.), and the City’s Environmental Review Guidelines, the project has been found to be exempt from CEQA and a Notice of Exemption is proposed.

The City of Goleta is acting as the Lead Agency for this project.

The Development Agreement Amendment complies with the provisions for implementation of the California Environmental Quality Act (CEQA) and can be found exempt per CEQA Guidelines 15061(b)(3). The Development Agreement Amendment does not involve physical development of the property nor does it approve the underlying project (Case No. 17-121- DP-DRB), which will undergo its own process under CEQA and be subject to the full entitlement process under the City’s zoning regulations. Therefore, the Development Agreement Amendment is categorically exempt from environmental review pursuant to CEQA guidelines: no possibility of significant effect [Section 15061(b)(3); and the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment [Section 15060(c)(2)].

City of Goleta Contact Person, Telephone Number, and Email:

Kathy Allen, Supervising Senior
Planner (805) 961-7545,
[email protected]
________________________________________________________________________ Name Title Date
If filed by the applicant:

1. Attach certified document of exemption finding

2. Has a Notice of Exemption been filed by the public agency approving the project?
Yes No
Date received for filing at OPR:

Note: Authority cited: Section 21083 and 211110, Public Resources Code Reference: Sections 21108, 21152.1, Public Resources Code Ordinance No. 22-12, Exhibit 2
88 89
90 91
92 93
94 95
96 97
98 99
100
101
102
103
ATTACHMENT 3:

Executed Development Agreement (DA) and 1st and 2nd Executed Amendments to the DA and Signed License Agreement

104
2 1

AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN

CITY OF GOLETA
AND

GOLETA GARDENS, LLC
THIS AMENDMENT (“Amendment”) to the DEVELOPMENT AGREEMENT by and between the CITY OF GOLETA, a municipal corporation (the “City”), and GOLETA GARDENS LLC, a California limited liability corporation (“Goleta Gardens” or “Owner”) (together “Parties”) is made on this 20th day of March 2023 to the original DEVELOPMENT AGREEMENT that was approved by the City Council on May 18th, 2021.

RECITALS
A. Goleta Gardens is the owner of a 11.71- acre parcel of real property designated as APN 071-191-035-00 and located at 907 S. Kellogg Avenue in the City of Goleta, California (“Property”). A legal description of the Property is attached hereto as Exhibit A.

B. The City Council approved the Original Development Agreement on May 18, 2021.

C. Since the City does not have a certified local coastal program, pursuant to California Government Code Section 65869, and the Property is located in the Coastal Zone, the California Coasta l Commission must approve the Development Agreement.

Goleta Gardens applied for such approval and the Coastal Commission held a hearing on April 6, 2022 and approved the Original Development Agreement subject to one special conditions.

D. The Coastal Comm ission special conditions provides that: “ The applicant shall submit to the Executive Director, for review and approval, a Revised Development Agreement or Development Agreement Amendment, approved by the City of Goleta (“City”), consistent with the follo wing: (1) The Revised or Amended Development Agreement shall include the following provision: The Owner acknowledges and agrees that this Agreement pertains to local planning documents only and does not constitute approval of standards to be utilized for processing a coastal development permit application for any existing or future development of the subject site, that a coastal development permit is required to be obtained from the Coastal Commission under Section 30600 of the Coastal Act for any proposed development of the subject site, and the standard of review shall be the Chapter 3 policies of the Coastal Act. (2) Section 7.01 Term shall be amended to include the following provision: This agreement, including any extensions, shall terminate no later than the date that a coastal land use plan for the City is effectively certified by the Coastal Commission.” The Coastal Commission also found that the Owner shall not execute the Amendment “until such document has been approved by the Executive Director.” DocuSign Envelope ID: 4B3F324B-3EF6-4708-B449-521B7A576A78 2023-024.1
105

2 E. The Parties seek to enter this Amendment to satisfy the special conditions approved by the Coastal Commission on April 6, 2022.

F. The terms and conditions of this Amendment have been found by the City to be fair, just and reasonable.

G. The public health, safety and welfare of the citizens of the City will be served by entering into this Amendment by virtue of the Owner’s commitment to license the City’s and SBFCD’s use of the Creek Access Road during the term of the Original Development Agreement (as amended in this Amendment) and a conditional commitment to convey an easement to the City and SBFCD.

I. This Amendment will serve to implement the policies, objectives, and standards of the elements of the City of Goleta General Plan and is consistent with the General Plan.

M. On July 25, 2022, the Planning Commission conducted a public meeting on the Goleta Gardens LLC Development Agreement, at which time all interested persons were given an opportunity to be heard; and

N. On July 25, 2022, the Planning Commission considered the entire administrative record, including the staff report, the Draft Amendment to the Original Development Agreement and oral and written testimony from interested persons.

DocuSign Envelope ID: 4B3F324B-3EF6-4708-B449-521B7A576A78 106

3 AMENDMENT TO ORIGINAL DEVELOPMENT AGREEMENT
NOW THEREFOR E, in consideration of the above recitals, the mutual covenants and conditions herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agrees as follows:

SECTION 1. DE FINITIONS
For purposes o f this Amendment , except as otherwise expressly provided or unless the context otherwise requires:
a) "O riginal Development Agreement" means this Development Agreement by and between the City and Owner.
b) "Approval Date" means the date on which the Approval Ordinance fo r the Amendment is adopted by the City Council.
c) "Approval Ordinance" means Ordinance No. 22- 12, adopted by the City Council of the City on September 6, 2022, approving this Amendment. d) "CEQA" means the California Environmental Quality Act, Section 21000, et seq., of the California Public Resources Code.
e) "City" means the City of Goleta, California.
f) "City Council" means the City Council of the City of Goleta. g) "Code" means the Municipal Code of the City of Goleta. h) "Commencement Date" means that date which is 30 days following the Approval Date, provided, however, (i) if the Approval Ordinance is made the subject of a referendum, the Commencement Date shall be the date when the referendum proceedings have been concluded by any process which results in the Approval Ordinance, and (ii) if litigation challenging the validity of the Original Development Agreement (with the Amendment) and/or environmental review pursuant to CEQA should be brought after the Approval Date, the Commencement Date shall be the date such litigation is concluded in a manner that permits the commencement or continuation of the parties' rights and obligations under the Original Development Agreement
i) "Development Agreement Act" means Section 65864 et seq., of the California Government Code.
j) "Owner" me ans Goleta Gardens LLC, a California limited liability corporation and each of its respective successors and assigns to all or any portion of the Property during such time as such portion is subject to the Original Development Agreement.

Goleta Gardens represents that it is the legal owner of the entire Property as of the date of adoption of the Approval Ordinance.

DocuSign Envelope ID: 4B3F324B-3EF6-4708-B449-521B7A576A78 107

4 k) "Term" means the term of the Original Development Agreement, as amended in this Amendment.
l) "Zoning Ordinan ce" means the comprehensive Zoning Ordinance of the City, found in Title 17 of the Code of the City of Goleta as it exists on the Approval Date.

SECTION 2. AME NDMENT TO ORIGINAL DEVELOPMENT AGREEMENT TO

IMPLEMENT SPECIAL CONDITIONS
(1) Section 2 is amended to add the following language: “ The Owner acknowledges and agrees that the Original Development Agreement and this Amendment pertains to local planning documents only and does not constitute approval of standards to be utilized for processing a coastal development permit application for any existing or future development of the subject site, that a coastal development permit is required to be obtained from the Coastal Commission under Section 30600 of the Coastal Act for any proposed development of the subject site, and the standard of review shall be the Chapter 3 policies of the Coastal Act.” (2) Section 7.01 of the Original Development Agreement shall be amended to read in its entirety: “Term. This Agreement shall terminate on December 31, 2023, except to the extent that (i) it has been extended by written instrument executed by the Parties, or (ii) the “Commencement Date” has been delayed as a result of referendum proceedings or litigation as set forth in Section 1(h). This Agreement, including any extensions, shall terminate no later than the date that a coastal land use plan for the City is effectively certified by the Coastal Commission.” IN WITNESS WHEREOF, the parties have each executed this Amendment on the date first written above.
( Signatures on next page)

DocuSign Envelope ID: 4B3F324B-3EF6-4708-B449-521B7A576A78 108
5 CIT

Y OF GOLETA,
a Municipal Corporation
________________________________
Robert Nisbet, City Manager

GOLETA GARDENS, LLC
a Limited Liability Corporation
______________________________
William
Vierra, Senior Vice-President
AT
TEST:
______
_______________________
Deborah Lopez, City Clerk
APP
ROVED AS TO FORM:

MEGAN GARIBALDI, CITY ATTORNEY
______
_____________________________
Megan Garibaldi, City Attorney
DocuSign Envelope ID: 4B3F324B-3EF6-4708-B449-521B7A576A78 109

6 EXHIBIT A

PROPERTY LEGAL DESCRIPTION

Parcel "B" of Parcel Map No. 11950, in the City of Goleta, County of Santa Barbara, State of California, in Book 13, Page 58 of Parcel Maps, in the Office of The County Recorder of said County.

APN/Parcel ID(s): 071-190-035
DocuSign Envelope ID: 4B3F324B-3EF6-4708-B449-521B7A576A78 110

NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT

This Non-Exclusive Revocable License Agreement (“License”) is executed on 20th day of March 2023, by and between Goleta Gardens LLC, a California limited liability corporation (“Licensor”) and City of Goleta, a municipal corporation (”Licensee”).

RECITALS

A. Licensor is the fee owner of that certain real property located at 907 S. Kellogg Avenue, Goleta, California, APN 071-190-035 (the ‘Property’). Licensor has submitted to Licensee an application for approvals to construct a new commercial development on the Property (“Project”), and Licensor and Licensee have entered into a Development Agreement dated March 20, 2023 (“Development Agreement”) to memorialize their agreement with respect to the Licensor’s application.

C. Licensor agrees to license such portion of the Property to Licensee for such purposes for a specified period of time, subject to and upon the terms and conditions contained in this License.

AGREEMENT

NOW, THEREFORE , in consideration of the foregoing recitals, which by this reference are incorporated herein, and in consideration of the mutual covenants, conditions and agreements contained herein, Licensor and Licensee hereby agree as follows:

1. GRANT OF LICENSE AND PERMITTED USE.

Licensor hereby grants to Licensee a license to utilize that certain portion within the Property as shown on Exhibit A (the “Premises”) on the terms set forth herein. Licensee may grant a sublicense the Santa Barbara Flood Control and Water Conservation District to use the Premises, subject to all the terms and conditions of this license. The Premises collectively contain approximately 2,082 square feet of land, in the location shown on the Site Plan (attached hereto as Exhibit A and incorporated herein). During the Term (defined in Section 2, below), Licensee and Licensee’s employees and contractors shall have the non-exclusive right to utilize the Premises only for vehicular and pedestrian access from the public right of way known as S. Kellogg Avenue to San Jose Creek, such access to be utilized only by Licensee’s employees and contractors for creek, channel and bridge repair and maintenance purposes only (the “Permitted Use”). Licensee and its employees and contractors shall make no other use of the Premises or any use of any other portion of the Property. Licensee acknowledges and understands that, during the Term, Licensor shall have the right to license and lease any portion of the Property, including the Premises, to third parties, so long as such additional licenses and leases do not unreasonably interfere with Licensee’s right to use the Premises hereunder.

DocuSign Envelope ID: 6D5DF6EF-C5EA-4474-8C1E-999774B225B4 2023-040
111

2. TERM, TERMINATION; NO RIGHT TO RENEW OR EXTEND; NO LICENSE FEE.

The term (‘Term’) of this License shall commence on the date this License is executed by and delivered to both parties (“Commencement Date”) and terminating on the earlier of:
(i) execution and recording of a non -exclusive easement in perpetuity as described in Section 3 of the Development Agreement, or (ii) the expiration or earlier termination of the Development Agreement. Licensee shall have no right or option to extend or re new the Term. During the Term, Licensee shall have no obligation to pay to Licensor any rent or any license fee.

3. USE OF PREMISES.

(a) The Premises shall be used only by Licensee and its employees and only for the Permitted Use specified in Section 1 above, and for no other use or purpose.

(b) Except for gasoline (and other substances typically found in vehicles) in Licensee’s vehicles, if any, on the Premises, Licensee shall not, and shall not direct, suffer or permit any of Licensee’s agents, contractors or employees at any time to handle, use, manufacture, store or dispose of in or about the Property any flammables, explosives, radioactive materials, hazardous wastes or materials, toxic wastes or materials, petroleum products or derivatives or any substance subject to regulation (collectively, “Hazardous Materials”) by or under any federal, state or local laws, regulations, statutes or ordinances relating to the protection of the environment or the keeping, use or disposition of environmentally hazardous materials, substances, or wastes (collectively, “Environmental Laws”). Licensee shal l protect, defend, indemnify and hold Licensor and each and all of Licensor’s directors, officers, general partners, beneficiaries, stockholders, employees and agents harmless from and against any and all loss, claims, liability or costs (including court c osts and attorney’s fees) incurred by reason of any actual or asserted failure of Licensee to fully comply with all applicable Environmental Laws, or the presence, handling, use or disposition in or from the Premises of any Hazardous Materials, or by reason of any actual or asserted failure of Licensee to keep, observe, or perform any provision of this Section 3.

DocuSign Envelope ID: 6D5DF6EF-C5EA-4474-8C1E-999774B225B4 112
(c) Licensee shall be responsible for the acts and omissions of all of Licensee’s employees, agents and contractors, and shall ensure that they do not do anything upon the Property which Licensee is not allowed to do under this License. Also, Licensee shall faithfully observe and comply with any and all rules and regulations which Licensor may promulgate from time to time regarding the use of the Property.

4. UTILITIES, SERVICES AND OTHER COSTS.

During the Term, Licensee shall be solely responsible for and shall apply for, arrange and promptly pay directly to the utility service provider for Licensee’s Permitted Use of the Premises all charges for gas, electricity, water, telephone, telecommunications, data, refuse and garbage removal, sewer service charges, fire sprinkler service, fire alarm service and any other utility or service used, consumed or provided in, or furn ished, or attributable to the Premises, however supplied, at the rates charged by the supplying utility companies and service providers.

5. CONDITION OF PREMISES.

Licensee acknowled ges and agrees that Licensee is familiar with the condition of the Premises, and agrees to accept the Premises in their existing condition "AS IS", without any obligation of Licensor to modify, improve or alter the Premises, or to perform any other construction or work of improvement upon the Premises. Pursuant to California Civil Code Section 1938, Licensor hereby notifies Lic ensee that the Premises have not undergone inspection by a Certified Access Specialist. A Certified Access Specialist (CASp) can inspect the subject Premises and determine whether the subject Premises comply with all of the applicable construction -related accessibility standards under state law. Although state law does not require a CASp inspection of the subject Premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject Premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the Premises. Accordingly, the parties hereby agree that Licensee shall, at Licensee’s sole cost and expense, assume the f ull responsibility for: (a) obtaining a CASp inspection of the subject Premises in the event Licensee elects to obtain such an inspection, or if such an inspection is or becomes required in order to comply with Laws; and (b) perform any such repairs necess ary to correct violations of construction -related accessibility standards within the Premises.

Licensee shall obtain Licensor’s prior written approval as to both the time and manner of any such CASp inspection and any such repairs.

6. ALTERATIONS, REPAIRS AND MAINTENANCE.

Licensee agrees not to make or permit any alterations or modifications to the Premises or other portions of the Property. During the Term of this License, Licensee shall maintain and keep the entire Premises in the same condition as it existed immediately prior to Licensee’s use thereof, and Licensee shall keep the Premises neat, clean and orderly during the Term of this License. Licensee shall repair any damage Licensee causes to the Premises or other portions of the Property, or in lieu of requiring Licensee to make repairs, Licensor shall have the right (but not the obligation) to perform such DocuSign Envelope ID: 6D5DF6EF-C5EA-4474-8C1E-999774B225B4 113
repairs itself, in which case, all repair costs shall be payable by Licensee upon Licensor’s request. Upon the expiration or termination of the Term of this License: (a) Licensee shall cease using the Premises and the Property; (b) Licensee shall remove all of Licensee’s equipment, vehicles and personal property from the Premises and the Property; and (c) Licensee shall deliver the Premises to Licensor in the same condition as it existed immediately prior to Licensee’s use thereof.

7. INDEMNITY, RELEASE AND INSURANCE.

(a) Licensee shall defend, indemnify, protect and hold harmless Licensor and Licensor’s directors, officers, partners, employees, representatives and agents (the “Protected Parties”) from and against any and all losses, damages, liability, claims, demands, obligations, causes of action, judgments, costs, settlements or expense of any kind or character (including attorney’s fees and costs for mediation, arbitration, litigation and/or settlement) for any loss or damage, bodily injury, including death, damage to or loss of use of property caused by Licensee’s Permitted Use arising from: (i) Licensee’s entry upon or use of the Property or anything done, perm itted, suffered or omitted by Licensee or any of Licensee’s employees, agents, officers, consultants, contractors or invitees in or about the Property; and/or (ii) any breach or default by Licensee hereunder. Licensee’s obligation to indemnify Licensor shall apply to the fullest extent permitted by Laws, except to the extent that any such loss or damage is caused by the negligence or willful misconduct of Licensor. Licensee’s obligation to indemnify Licensor shall survive the expiration or sooner termination of the Term of this License. As a material part of the consideration to Licensor under this License, except for any injuries or property damage resulting from the negligenc e or willful misconduct of Licensor, Licensee hereby assumes all risk of damage to property or injury to persons on or about the Property from any cause whatsoever that occurs during the Term of this License, and Licensee waives all claims against Licensor and the other Protected Parties on account of the same.

(b) Commencing on the Commencement Date, Licensee is required to maintain in full force and effect throughout the Term and at its sole expense, a primary self - insurance policy of $30 million and an excess policy of $20 million, both with California Joint Powers Insurance Authority. Any insurance provided by Licensor and applicable to the Premises shall apply in excess of, and shall not contribute with the insurance provided by Licensor. Upon request, Licensee shall provide to Licensor written evidence reasonably satisfactory to Licensor that the requirements of this Section 7(b) have been met.

(c) Licensor shall not be liable for any damage to the property of Licensee, or of others, located in, on or about the Premises, nor for the loss of any property of Licensee or of others by theft or otherwise. Licensor shall not be liable to Licensee, Licensee’s employees, agents, contractors or representatives for any injury or damage to persons or property resulting from fire, explosion, steam, gas, electricity, water, rain or leaks from any part of the Premises or from the pipes, appliances or plumbing works or from the roof, street or sub-surface or from any other places or by dampness or by any other cause of whatsoever nature.

Licensor shall not be liable to Licensee, Licensee’s employees, agents, contractors or representatives for any such damage caused by other tenants or persons in the Premises or on the Property. Licensor shall not be liable for any DocuSign Envelope ID: 6D5DF6EF-C5EA-4474-8C1E-999774B225B4 114
latent defects in the Premises or on the Property. All property of Licensee kept or stored on the Premises shall be so kept or stored at the sole risk of Licensee, and Licensee shall hold Licensor harmless from any claims arising out of damage to the same, including subrogation claims by Licensee’s insurance carriers.

8. ASSIGNMENT AND SUBLICENSE.

9. DEFAULT BY LICENSEE; LICENSOR’S REMEDIES.

(a) The occurrence of any of the following shall constitute a default by Licensee under this License: (i) intentionally deleted; (ii) any assignment, sublicensing or encumbrance in violation of this License; (iii) the insolvency, or filing of any voluntary or involuntary proceeding under the Bankruptcy Code or similar State Laws providing for relief or protection from creditors by or against Licensee, or the making of an assignment for the benefit of creditors by Licensee; (iv) if a receiver or trustee shall be appointed for all of the Premises or for all or substantially all of the assets of Licensee; or (v) the failure by Licensee to perform any non- monetary provision of this License if the failure to perform is not cured within thirty (30) days after written notice of such failure has been given to Licensee; provided that if the non-monetary default cannot reasonably be cured within thirty (30) days, Licensee shall not be in default of this License if Licensee commences to cure the default within the thirty (30) day period and diligently and in good faith continues to cure the default.

(b) Licensor shall have the following remedies if Licen see commits a default. These remedies are not exclusive; they are cumulative and in addition to any remedies now or later allowed by Law.

(i) Intentionally deleted.

(ii) Licensor may elect to terminate this License and Licensee’s right to possession of the Premises. If Licensor elects to do so, Licensor shall have all of the rights and remedies of a landlord provided by California Civil Code Section 1951.2, or successor code section.

10. NOTICES.

Any notices required or permitted to be given by one party to the other party under this License shall be given by reputable courier service which provides for written evidence of delivery, or by certified or registered mail, postage prepaid, addressed to Licensor or Licensee at its address set forth below in this Section 11, or at such other address as DocuSign Envelope ID: 6D5DF6EF-C5EA-4474-8C1E-999774B225B4 115
Licensor or Licensee may designate by writ ten notice to the other party pursuant to this Section 11. Any notice given by courier service or by mail shall be deemed effective upon receipt, or attempted delivery.

Licensor’s Address:

Goleta Gardens LLC
c/o William Vierra, SyWest
Development150 Pelican Way
San Rafael, CA 94901
Attention: Candice Ramirez

Licensee’s Address:

City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
Attention: Charlie Ebling
805-961-7569
[email protected]

11. INTERPRETATION.

(a) This License shall be governed by the laws of the State of California, and shall be binding upon and inure to the benefit of the parties hereto and their respective successors, transferees and assigns. This License contains the entire agreement of the parties relating to Licensee licensing the Premises from Licensor for Licensee’s Permitted Use. Any oral understanding or oral agreement, if any, between Licensor and Licensee, which is not incorporated herein, shall not be binding on Licensor or Licensee. This License cannot be amended, or any right or provision waived, except by a written document signed by both parties.

(b) All obligations, liabilities, indemnities, waivers and releases hereunder, as well as the attorneys’ fees provision hereof, shall survive the expiration or termination of the Term of this License.

12. LIMITATION ON LIABILITY.

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13. BROKERS.

15. LICENSOR’S RIGHT OF ENTRY.

Licensor and its employees, agents, contractors and assigns may enter the Premises at all reasonable times: (a) to examine and inspect the Premises; (b) to perform any obligation of, or exercise any right or remedy of, Licensor under this License; (c) to m ake repairs, alterations, improvements or additions to the Premises, or to other portions of the Property as Licensor deems necessary; (d) to perform work necessary to comply with Laws or any requirements of any insurance underwriter; (e) to show prospective tenants the Premises; (f) to show prospective purchasers the Premises at any time during the Term; and (g) to post leasing signs on the Premises. Licensor may take such reasonable steps as required to accomplish the stated purposes. Licensee hereby waives any claims for damages or for any injuries or inconvenience to or interference with Licensee’s loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned by Licensor’s entry into or upon the Premises pursuant to this Section 15.

16. ATTORNMENT AND SUBORDINATION.

Licensee shall, in the event any proceedings are brought for the foreclosure of, or in the event of exercise of the power of sale under any mortgage made by Licensor covering the Premises, attorn to the purchaser upon any such foreclosure or sale and recog nize such purchaser as the Licensor under this License, provided that any such purchaser shall recognize this License as remaining in full force and effect, so long as Licensee observes and performs the terms, covenants and conditions of this License to be observed and performed by Licensee. This License shall be subject and subordinate to the lien of any mortgage, trust deed or other encumbrances now or hereafter in force against the Property or any part thereof, if any, and to all renewals, extensions, modifications, consolidations and replacements thereof, and to all advances made or hereafter to be made upon the security of such mortgages or trust deeds, unless the holders of such mortga ges, trust deeds or other encumbrances require in writing that this License be superior thereto.

Further, in the event Licensor shall sell, convey, transfer or exchange the Premises or the Property, Licensee agrees to recognize and attorn to the purchaser or transferee, as the Licensor hereunder and Licensor shall be relieved and released from any liability under any and all of its covenants and obligations under this License arising out of any act, occurrence or event after such sale, conveyance, transfer or exchange. Licensor’s title is subject to: (a) the effect of any covenants, conditions, restrictions, easements, development agreements, mortgages or deeds of trust, ground leases, rights of way, and other matters or documents of record now or hereafter recorded against Licensor’s title to the Property; and (b) the effects of any zoning Laws of the city, county and state where the Property is situated. Licensee agrees that it will conform to and will not violate any matters of record, and that t his License is and shall be subordinate to said matters of record and any amendments or modifications thereto.

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17. DAMAGE AND CONDEMNATION.

In the event that any portion of the Premises is damaged, or in the event that twenty -five percent (25%) or more of the square footage on the Property is damaged or destroyed by fire or other casualty notwithstanding t hat the Premises may be undamaged by such fire or other casualty, Licensor shall have the ongoing right to terminate the Term of this License by notice thereof from Licensor to Licensee. Upon the giving of such notice to Licensee, the Term shall terminate on the date set forth in such notice, and Licensee shall vacate the Premises and surrender the same to Licensor in the condition required under this License. If any portion of the Premises is acquired for any public or quasi - public use or purpose or taken by eminent domain, then the Term shall cease and terminate as of the date possession or title is given to such condemning authority in any proceeding. In the event that twenty -five percent (25%) or more of the square footage of space on the Property is acquired for any public or quasi -public use or purpose or taken by eminent domain notwithstanding that no portion of the Premises may be so acquired or taken, or if any of the parking or access areas on the Property may be so acquired or taken notwithstanding that no portion of the Premises may be so acquired or taken, then the Term shall cease and terminate as of the date possession or title is given to such condemning authority in any proceeding.

18. HOLDING OVER.

No holding over by Licensee shall operate to extend the Term. If Licensee remains in possession of the Premises after the expiration or termination of this License, Licensee shall become a tenant at su fferance upon all the applicable terms and conditions of this License, and such holding over shall constitute a default by Licensee under this License.

19. SALE OF PREMISES OR PROPERTY.

In the event Licensor shall sell, convey, transfer or exchange the P roperty, Licensee agrees to recognize and attorn to the purchaser or transferee as the Licensor hereunder, and Licensor shall be thereby relieved and released from any liability under any and all of its covenants and obligations under this License arising out of any act, occurrence or event arising after such sale, conveyance, transfer or exchange.

20. SECURITY DEPOSIT.

Licensee shall have no obligation to deposit with Licensor any sum as a security deposit.

LICENSOR:

Goleta Gardens LLC

By: SyWest Holdings LLC,
a California limited liability company
Its: Member/Manager
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LICENSEE:

City of Goleta

Robert Nisbet, City Manager
LICENSOR:

Goleta Gardens LLC

By: SyWest Holdings LLC,
a California limited liability company
Its: Member/Manager

Attest:

By:

Syufy Enterprises,
a California limited partnership

Deborah S. Lopez, City Clerk
Its: Member/Manager
By: Syufy Properties, Inc., a
California corporation
Its: General Partner

APPROVED AS TO FORM:

Megan Garibaldi, City Attorney

By:

Its:

William Vierra
Senior Vice President
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SITE PLAN SHOWING THE PREMISES

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ATTACHMENT 4:

Presentation

127
City Council
Meeting
Tuesday, September 3, 2024-
5:30p.m.

Goleta Gardens/SyWest
Third Amendment to
Development Agreement
128
Development Agreements - General
Development Agreements (DAs) purpose
California Government Code Standards for DAs;
Goleta Municipal Code Section 17.65;
DA Review Authority
September 3, 2024 City Council 2
129
Vicinity Map – 907 S. Kellogg Avenue
3 September 3, 2024 City Council
130
Sywest Development Agreement
DA g ranted license to private access road to San Jose Creek Channel in exchange for use of former zoning
ordinance
September 3, 2024 City Council 4
131
Background/Chronology
May 2021 - Ci ty Council adopted Ord. No. 21-04 approving the DA April 2022 – California Coastal Commission (CCC) approved DA with condition
July 2022- Pl anning Commission recommended approval of first DA Amendment
Sept 2022 - City Council approved first DA Amendment
September 3, 2024 City Council 5
132
Background/Chronology con’t
July 2023 – Planning Commission recommended
approval of second DA Amendment
Sept 2023 – C ity Council approved second DA
Amendment
July 2024 – Planning Commission recommended
approval of third DA Amendment
September 3, 2024 City Council 6
133
Third DA Amendment Request
Extends D A date to December 31, 2025 or Local
Coastal Program (LCP) certification date
September 3, 2024 City Council 7
134
Summary
 Gole ta Gardens LLC/Sywest DA Third Amendment
complies with Municipal Code §17.65;
DA Third Amendment Findings met
Project is exempt from CEQA - 15061( b)(3) &
15060(c)(2)
September 3, 2024 City Council 8
135
Recommendation
City Council adopts the proposed Ordinance that:

1) Approves the Goleta Gardens LLC/SyWest
Development Agreement Third Amendment; and
2) Approves of
the Notice of Exemption
September 3, 2024 City Council 9
136
Questions?
September 3, 2024 City Council 10
137
License granted via DA
September 3, 2024 City Council 11
138

Goleta City CouncilSeptember 3, 2024

Goleta City Council
September 3, 2024