California Municipal Finance Authority, dated as of January 1, 2004 (the “Agreement”), among certain local agencies, including the City; and
WHEREAS, pursuant to Section 147(f) of the Code, the City Council has, following notice duly given, held a public hearing regarding the issuance of the Bonds, and now desires to approve the issuance of the Bonds by the Authority;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LANCASTER, AS FOLLOWS:
Section 1. The foregoing resolutions are true and correct.
Section 2. The City Council hereby approves the issuance of the Bonds by the Authority. It is the purpose and intent of the City Council that this resolution constitute approval of the issuance of the Bonds by the Authority, for the purposes of (a) Section 147(f) o f the Code by the applicable elected representative of the governmental unit having jurisdiction over the area in which the Project is to be located, in accordance with said Section 147(f) and (b) Section 4 of the Agreement.
Section 3. The issuance of the Bonds shall be subject to the approval of the Authority of all financing documents relating thereto to which the Authority is a party.
The City shall have no responsibility or liability whatsoever with respect to the Bonds.
Section 4. The adoption of this Resolution shall not obligate the City or any department thereof to (i) provide any financing to acquire or construct the Project or any refinancing of the Project; (ii) approve any application or request for or take any other action in connection with any planning approval, permit or other action necessary for the acquisition, construction, rehabilitation, installation or operation of the Project; (iii) make any contribution or advance any funds whatsoever to the Authority; or (iv) take any further action with respect to the Authority or its membership therein.
Section 5. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they deem necessary or advisable to carry out, give effect to, and comply with the terms and intent of this resolution and the financing transaction approved hereby.
CC Resolution No. 26-
PASSED, APPROVED, and ADOPTED this 28th day of April 2026, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
______________________________ ______________________________ ANDREA ALEXANDER R. REX PARRIS
City Clerk Mayor
City of Lancaster City of Lancaster
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss
CITY OF LANCASTER )
CERTIFICATION OF RESOLUTION
CITY COUNCIL
I,__________________, __________________City of Lancaster, California, do hereby certify that this is a true and correct copy of the original Resolution No. 26 -__, for which the original is on file in my office.
WITNESS MY HAND AND THE SEAL OF THE CITY OF LANCASTER, on this _____day of ______, __________________.
(seal)
_________________________
STAFF REPORT
City of Lancaster
Date: April 28, 2026
To: Mayor Parris and City Council Members
From: Patti Garibay, Community Development Director
Jocelyn Swain, Senior Planner
Subject: Jensen Enterprises, Inc. Development Agreement (DA No. 26-001) Recommendation:
1. Introduce Ordinance , adopting Development Agreement (DA) No.. 26-001 to establish specific development rights for Site Plan Review No. 24-010.
Fiscal Impact:
Jensen Enterprises, Inc. (Jensen) will contribute $690,000 to the City to support elementary school reading programs.
Background:
Jensen is currently in the process of developing a new manufacturing facility on the 80 acres located at the northeast corner of 30th Street West and Avenue G in the City of Lancaster (Site Plan Review [SPR] No. 23-012/SPR No. 25-003). They have also acquired the 30 acres immediately to the east which has been entitled under SPR No. 24-010 for development as either a 500,000 square feet industrial distribution facility or expanded parking / storage facilities. Due to the anticipated construction timeline for the first facility, a development agreement has been proposed for SPR No. 24-010.
Development Agreement No. 26-001 (DA No. 26-001) has been proposed between the City of Lancaster and Jensen with respect to SPR No. 24-010. This agreement establishes certain development rights to facilitate the future development of this property, during the term of the agreement. The development agreement would be in effect for a period of 15 years from the effective date and the expiration date of SPR No. 24-010 would be co-terminus with the development agreement. In addition to the standard provisions in a development agreement, the following concessions would be granted with the approval of the Development Agreement:
The types and rate of development impact fees would be frozen for the length of the agreement. Payment of the impact fees for SPR No. 24-010 would be due at time of permit issuance.
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4/28/2026
TN
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Development of the property would be subject to the development standards in place at the time of the effective date of the agreement.
The developer shall make the following contributions for public benefit. These payments are required prior to the issuance of any building permits:
o$690,000 to the City for elementary school reading programs JS/vm
Attachments:
A. Development Agreement Ordinance No.
B. Development Agreement
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LANCASTER, CALIFORNIA, ADOPTING DEVELOPMENT AGREEMENT NO. 26-001 FOR SITE PLAN REVIEW NO. 24-010 TO ESTABLISH SPECIFIC DEVELOPMENT RIGHTS
WHEREAS, in order to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted Government Code Sections 65864 through 65869.5 (the “Development Agreement Statute”), which authorized cities to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property for the purpose of establishing certainty for both the individual City and the property owner in the development process; and
WHEREAS, both the City of Lancaster and the owner of the subject property referenced in Development Agreement No. 26-001 are desirous of entering into this Agreement in conformance with the provisions of the Government Code, City of Lancaster Municipal Code (“LMC”), and applicable City rules, regulations, and official policies; and
WHEREAS, the property owner wishes to develop the project and public improvements as identified in Site Plan Review No. 24-010 in exchange for assurances and concessions referenced in Development Agreement No. 26-001 provided that the property owner will be permitted to implement the development of the subject property pursuant to the terms and conditions set forth in the Agreement; and
WHEREAS, the City wishes to promote the health, safety and general welfare of its residents by ensuring access to well-planned communities with amenities, services, and well-paying jobs by requiring enhanced and accelerated levels of said public improvements and services; and WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code §21000 et seq.) and the State CEQA Guidelines (California Code of Regulations, Title 14, §15000 eq seq.) (“CEQA”), an Initial Study/Mitigated Negative Declaration (IS/MND) was prepared for Site Plan Review No. 24-010 in compliance with CEQA and circulated for a 30-day public review ending on August 25, 2025; and WHEREAS, copies of the IS/MND were available during the public review period at City Hall, the Lancaster Library, the City’s website; and the State Clearinghouse website; and WHEREAS, the public review period closed on August 25, 2025 and four comment letters were received. All comments received from the public and responsible, trustee, and interested agencies were considered and responded to in a responses to comments document; and WHEREAS, Site Plan Review No. 24-010 and the associated Initial Study/Mitigated Negative Declaration have been approved along with the Mitigation Monitoring and Reporting Program; and WHEREAS, it is the intent of both parties that upon execution of Development Agreement No. 26- 001, the property owner shall be obligated to complete the public benefits in the manner and within the time frames set forth in the Agreement, and that the property owner will be entitled to proceed with the project subject to the Agreement and all necessary development approvals.
Ordinance No.
THE CITY COUNCIL OF THE CITY OF LANCASTER, CALIFORNIA, DOES ORDAIN AS FOLLOWS:
Section 1. The foregoing Recitals are true, correct and a substantive part of this Ordinance.
Section 2. The City Council hereby makes the following findings with respect to Development Agreement No. 26-001:
a. Development Agreement No. 26-001 is consistent with the goals, objectives, and specific actions of the City’s General Plan and nothing contained within the development agreement creates an inconsistency with the City’s General Plan.
b. Development of the proposed project will further the comprehensive planning objectives contain in the City’s General Plan and will provide benefits to the community including:
1. Fulfilling long-term economic and social goals for the City including, but not limited to, educational and work training, funding of social programs, and public art funding;
2. Providing fiscal benefits to the City in terms of increased property tax and sales revenues which support essential City services; and
3. Providing job creation.
Section 3. Development Agreement No. 26-001 is hereby approved in its entirety.
Section 4. Any ordinance previously adopted by the City Council shall be and hereby is repealed if and to the extent inconsistent with this Ordinance; provided, however, that each such ordinance shall otherwise remain in full force and effect.
Section 5. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is held for any reason to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.
Section 6. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published and posted pursuant to the provisions of law in that regard and this Ordinance shall take effect 30 days after adoption.
Ordinance No.
I, Andrea Alexander, City Clerk of the City of Lancaster, do hereby certify that the foregoing ordinance was regularly introduced and placed upon its first reading on the ________ day of ____________, ______, and placed upon its second reading and adoption at a regular meeting of the City Council on the _______ day of __________, ______, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
____________________________ ___ ______________________________ ANDREA ALEXANDER R. REX PARRIS
City Clerk Mayor
City of Lancaster City of Lancaster
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES }ss
CITY OF LANCASTER }
CERTIFICATION OF ORDINANCE
CITY COUNCIL
I, ________________________________, ___________________________________ City of Lancaster, California, do hereby certify that this is a true and correct copy of the original Ordinance No. , for which the original is on file in my office.
WITNESS MY HAND AND THE SEAL OF THE CITY OF LANCASTER, on this _________ day of ________________, ________.
(seal)
___________________________________
DEVELOPMENT AGREEMENT
NO. 26-001
BETWEEN
CITY OF LANCASTER
AND
JENSEN ENTERPRISES, INC.
TABLE OF CONTENTS
1. Definitions .........................................................................................................................2
2. Development Standards for the Project Property ..............................................................3
3. Vested Rights ....................................................................................................................4
4. Acknowledgements, Agreements, and Assurances of Owner...........................................4
5. Acknowledgements, Agreements, and Assurances of City...............................................5
6. Cooperation and Implementation ......................................................................................7
7. Financing of Public Improvements ...................................................................................9
8. Compliance; Termination; Modifications and Amendments ............................................9
9. Term of Agreement .........................................................................................................12
10. Vesting Tentative Maps...................................................................................................12
11. Administration and Resolution of Disputes ....................................................................12
12. Transfers and Assignments..............................................................................................14
13. Mortgage Protection ........................................................................................................15
14. Notices.............................................................................................................................16
15. Severability......................................................................................................................17
16. Binding Effect .................................................................................................................17
17. Project is a Private Undertaking ......................................................................................17
18. Time of Essence ..............................................................................................................17
19. Force Majeure..................................................................................................................17
20. Waiver .............................................................................................................................17
21. No Third Party Beneficiaries...........................................................................................18
22. Attorneys' Fees ................................................................................................................18
23. Incorporation of Exhibits.................................................................................................18
24. Authority to Execute; Binding Effect..............................................................................18
25. Entire Agreement; Conflicts............................................................................................18
26. Remedies .........................................................................................................................18 i
DEVELOPMENT AGREEMENT
(Development Agreement No. 26-001)
THIS DEVELOPMENT AGREEMENT (this “Agreement”) is made in Los Angeles County, California, as of April 28, 2026, by and between the CITY OF LANCASTER, a California charter city and municipal corporation (“City”), and JENSEN ENTERPRISES, INC., a Nevada corporation doing business as JENSEN INFRASTRUCTURE (“Owner). The City and Owner are sometimes referred to herein individually as a “Party” and/or collectively as the “Parties.”
R E C I T A LS
A. The City is authorized, pursuant to sections 65864 through 65869.5 of the California Government Code to enter into binding development agreements with persons or entities having a legal or equitable interest in real property in order to strengthen the public planning process, encourage private participation in comprehensive planning, reduce the private and public cost of development and establish certainty in the development process.
B. Owner is the record fee owner of certain real property located in the County of Los Angeles, State of California, within the City’s jurisdictional boundaries, as more particularly described on the attached Exhibit “A” (the “Project Property”).
C. Owner plans to develop the Project Property in accordance with the General Plan and zoning as generally depicted on the attached Exhibit “B” (the “Project”). The Parties intend for this Agreement to set forth the terms and conditions of such development.
D. Pursuant to section 65867.5 of the California Government Code, the City Council finds that this Agreement: (i) implements the goals and policies of the City's General Plan, providing balanced and diversified land uses and imposing appropriate standards and requirements with respect to land development and usage in order to maintain the overall quality of life and the environment within the City; (ii) is in the best interests of and not in detriment to the public health, safety and general welfare of the residents of the City and the surrounding region; (iii) is consistent with the City's General Plan and constitutes a present exercise of the City's police power; and (iv) is being entered into pursuant to and in compliance with the requirements of section 65867 of the California Government Code.
E. In consideration of the significant public improvements and benefits to be provided by the Project as more specifically set forth in this Agreement and in order to strengthen the public financing, expedite the planning process and reduce the economic costs of development, by this Agreement the City desires to provide Owner with assurance that Owner can proceed with the development of the Project pursuant to the terms and the conditions of this Agreement and in accordance with the Applicable Rules as hereinafter defined.
2 F. Owner has applied for and the City has approved this Agreement in order to create a beneficial project and a physical environment that will conform to and complement the goals of the City, create a development project sensitive to human needs and values, facilitate efficient traffic circulation, and develop the Project Property.
G. This Agreement will bind the Parties to the terms and obligations specified in this Agreement and will limit, to the degree specified in this Agreement and California law, the future exercise of the City's ability to delay, postpone, preclude or regulate development on the Project Property.
H. The following actions were taken with respect to the approval of this Agreement and Project:
Approval of the Initial Study/Mitigated Negative Declaration (including Responses to Comments)
Approval of the Mitigation Monitoring and Reporting Program Approval of Site Plan Review No. 24-010
I. Owner represents to the City that, as of the Effective Date, it is the owner of the Project Property, subject to encumbrances, easements, covenants, conditions, restrictions, and other matters of record.
J. The Project Property is located within the City’s jurisdictional boundaries.
NOW, THEREFORE, pursuant to the authority contained in state law and the Lancaster Municipal Code and in consideration of the foregoing recitals of fact, all of which are expressly incorporated into this Agreement, and for other consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. In this Agreement, the following terms have the following meanings:
1.1 “Applicable Rules” means the development standards and restrictions set forth in this Agreement which shall govern the use and development of the Project Property and shall amend and supersede any conflicting or inconsistent provisions of rules, regulations, ordinances, policies or other City requirements relating to development of property within the City.
1.2 “City” means the City of Lancaster, California.
1.3 “Development Agreement Statutes” means sections 65864 through 65869.5 of the California Government Code.
1.4 “Development Approvals” include all permits, licenses, consents, rights and privileges, entitlements and other actions subject to approval or issuance by the City in connection with development of the Project Property including without limitation: the Initial 2 3
Study/Mitigated Negative Declaration (“IS/MND”); tentative and final subdivision and parcel maps; variances; conditional or other use permits; and grading and building permits.
1.5 “Discretionary Actions” and “Discretionary Approvals” are actions which require the exercise of judgment or a discretionary decision, and which contemplate and authorize the imposition of revisions or additional conditions by the City including any board, commission, or department of the City and any officer or employee of the City; as opposed to actions which in the process of approving or disapproving a permit or other entitlement merely requires the City, including any board, commission, or department of the City and any officer or employee of the City, to determine whether there has been compliance with applicable statutes, ordinances, regulations, or conditions of approval.
1.6 “Effective Date” is the date that all of the following actions by the City are enacted and become final and effective under California law: the ordinance adopting this Agreement, provided that Owner has not prior to such date delivered to the City a written notice of cancellation of this Agreement. This Agreement is not binding or effective prior to the Effective Date. The Parties intend that the Effective Date of this Agreement would be delayed by the pendency of any referendum regarding the ordinances or resolutions described in this paragraph, and that Owner shall have the right to send a written notice of cancellation to the City at any time for any reason in its absolute discretion prior to the Effective Date.
1.7 “Future Approvals” means any action in implementation of development of the Project Property that requires a Discretionary Approval pursuant to the Applicable Rules, including, without limitation, parcel maps, tentative subdivision maps, development plans, and conditional use permits. Upon approval of any Future Approvals, they shall become part of the Development Approvals, and Owner shall have a “vested right,” as that term is defined under California law, in and to such Future Approvals by virtue of this Agreement.
2. Development Standards for the Project Property
2.1 Applicable Rules. Except as otherwise specified in this Agreement and the Development Approvals, the City's rules, regulations and official policies governing the permitted uses of the Project Property, the density and intensity of use of the Project Property, the provisions for reservation or dedication of land for public purposes and the design, improvement and construction standards and specifications applicable to development of the Project Property, as they exist on the Effective Date, shall govern the use and development of the Project Property and shall constitute the Applicable Rules. Except as provided herein, the Applicable Rules shall amend and supersede any conflicting or inconsistent rules, regulations, ordinances, policies or other City requirements relating to development of the Project Property. The Applicable Rules include, but are not limited to, the City's General Plan as it exists on the Effective Date and the non-exhaustive list of Applicable Rules attached hereto as Exhibit “C”. 3 4
2.2 Other Rules. Notwithstanding the foregoing, the City reserves the right to apply other laws, ordinances and regulations under the certain limited circumstances described below:
(a) The application of new ordinances, rules, regulations and policies relating to uniform codes adopted by City or by the State of California as state codes, such as the Uniform Building Code, National Electrical Code, Uniform Mechanical Code or Uniform Fire Code, as amended, and the application of such codes to the Project Property at the time of application for issuance of building permits for structures on the Project Property including such amendments as the City may adopt from time to time.
(b) In the event that State or Federal laws or regulations prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. Notwithstanding the foregoing, City shall not apply to the Project or Project Property any regulation, program or action or fail to take any action which is inconsistent or in conflict with this Agreement until City makes a finding that such regulation, program actions or inaction is required (as opposed to permitted) to comply with such State and Federal laws or regulations after taking into consideration all reasonable alternatives.
(c) The application of City ordinances and regulations (including amendments to Applicable Rules) adopted by the City after the Effective Date, in connection with any Future Approvals, if in the City’s sole discretion such application is required to protect the physical health or safety of existing or future occupants of the Project Property, or any portion thereof or any lands adjacent thereto.
3. Vested Rights. During the term of this Agreement, Owner shall have a vested right, to the maximum extent allowed under the Development Agreement Statutes, to develop the Project Property in accordance with this Agreement, the Development Approvals, and the Applicable Rules.
4. Acknowledgments, Agreements, and Assurances of Owner.
4.1 Owner’s Faithful Performance. The Parties acknowledge and agree that Owner’s faithful performance in developing the Project on the Project Property and in constructing and installing certain public improvements (past, present or future) and complying with the Applicable Rules will fulfill significant public needs. The City acknowledges and agrees that there is good and valuable consideration to the City resulting from Owner's assurances and faithful performance thereof and resulting from the significant public benefits set forth in Section
4.2, below, and otherwise in this Agreement, and that same is in balance with the benefits 4 5
conferred by the City to the Owner. The Parties further acknowledge and agree that the exchanged consideration hereunder is fair, just and reasonable.
4.2 Significant Public Benefit. Owner will provide significant public benefits in conjunction with development of the Project. The Parties recognize that the public benefits provides in this Section are subject to further specificity and detail by both Owner and City, as well as further review and approval by City. This Agreement shall set forth the conceptual plan for these improvements and shall guide the parties in the implementation and construction of these public benefits. The Parties agree that the following constitute significant public benefits being provided by the Project:
(a) Donation of $690,000.00 to the City to be used for elementary school programs.
5. Acknowledgments, Agreements, and Assurances of City. In order to effectuate the provisions of this Agreement, and in consideration for Owner to obligate itself to carry out the covenants and conditions, and provide the significant public benefits set forth in this Agreement, the City agrees and assures Owner that Owner will be permitted to carry out and complete the development of the Project and development on the Project Property in accordance with the Development Approvals and Applicable Rules, subject to the terms and conditions of this Agreement. Therefore, the City hereby agrees and acknowledges that:
5.1 Entitlement to Develop. Owner is hereby granted the vested right to develop the Project on the Project Property to the extent and in the manner provided in this Agreement.
5.2 Conflicting Enactments. Any change in the Applicable Rules, including, without limitation, any change in any applicable general plan or specific plan, zoning, subdivision or building regulation, adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, the Planning Commission or any other board, commission or department of the City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Project Property and which would conflict in any way with or be more restrictive than the Applicable Rules (“Subsequent Rules”), shall not be applied by the City to any part of the Project Property except as otherwise specifically provided in this 5 6
Agreement. Owner may give the City written notice of its desire to have any Subsequent Rule applied to such portion of the Project Property as it may own, in which case such Subsequent Rule may be deemed, by mutual consent, to be an Applicable Rule insofar as that portion of the Project Property is concerned.
5.3 Permitted Conditions. Provided Owner's applications for Future Approvals are consistent with this Agreement and the Applicable Rules, the City shall grant the Future Approvals in accordance with the Applicable Rules and authorize development of the Project Property for the uses and to the density and regulations as described herein. The City shall have the right to impose reasonable conditions in connection with Future Approvals and, in approving tentative subdivision maps, impose dedications for rights of way or easements for public access, utilities, water, sewers, and drainage necessary for the Project on the Project Property; provided, however, that such conditions and dedications shall be consistent with the Applicable Rules and consistent with the development of the Project as contemplated by this Agreement; and provided further that such conditions and dedications shall not impose additional infrastructure or public improvement obligations in excess of those identified in this Agreement. The party applying for a Future Approval may protest any conditions, dedications or fees to the City Council or as otherwise provided by City rules or regulations while continuing to develop the Project Property.
Such a protest shall not delay or stop the issuance of building permits or certificates of occupancy.
5.4 Moratorium. No City-imposed moratorium or other limitation (whether relating to the rate, timing or sequencing of the development or construction of all or any part of the Project Property whether imposed by ordinance, initiative, resolution, policy, order or otherwise, and whether enacted by the City Council, an agency of the City, the electorate, or otherwise) affecting parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (including, without limitation, water and sewer, should the City ever provide such services) approved, issued or granted within the City, or portions of the City, shall apply to the Project Property to the extent such moratorium or other limitation is in conflict with this Agreement.
5.5Permitted Fees and Exactions. Except as otherwise provided in this Agreement, the City shall only charge and impose those fees and exactions, including, without limitation, dedications and any other fees or taxes (including excise, construction or any other taxes) relating to development or the privilege of developing the Project as in effect on the Effective Date. The sole development impact fees (“DIF”) that shall be imposed on development of the Project are specified in Exhibit “D”, in the amounts specified in Exhibit “D”. The amounts specified in Exhibit “D” shall remain in effect until the fifteenth (15th) anniversary of the Effective Date. Thereafter, the Project shall be subject to any new categories of DIF, as long as such new categories are imposed and collected by the City generally on development and which is applicable on a Citywide non- discriminatory basis for similar approvals, permits and entitlements. After the fifteenth (15th) anniversary of the Effective Date, for the DIF categories in effect on the Effective Date and any new DIF categories, the amount to be imposed shall be calculated based upon the fee rate in effect at the time Owner becomes liable to pay such DIF. The provisions of this section shall not be applicable to the following fees and taxes and shall not be construed to limit the authority of the City to:
6 7
(a) Charge an administrative facility impact fee, if adopted after the Effective Date, which fee is imposed and collected by the City generally on development and which is applicable on a City-wide non-discriminatory basis for similar approvals, permits and entitlements; or
(b) Impose or levy general or special taxes, including but not limited to, property taxes, sales taxes, parcel taxes, transient occupancy taxes, and business taxes, which may be applied to the Project Property or to businesses occupying the Project Property; provided, however, that the tax is of general applicability City-wide and does not burden the Project Property disproportionately to other development within the City; or (c) Collect such fees or exactions as are imposed and set by governmental entities not controlled by the City but which are required to be collected by the City; or
(d) Charge duly adopted processing fees which are designed to reimburse the City for administrative time and related costs incurred in preparing and considering any application for the Development Approvals, which fees shall be assessed in the amount they exist at the time Owner becomes liable to pay such fees.
6. Cooperation and Implementation. The City agrees that it will cooperate with Owner to the fullest extent reasonable to implement this Agreement. Upon satisfactory performance by Owner of all required preliminary conditions, actions and payments, the City will commence and in a timely manner proceed to complete all steps necessary for the implementation of this Agreement and the development of the Project in accordance with the terms of this Agreement. Owner shall, in a timely manner, provide the City with all documents, plans, and other information necessary for the City to carry out its obligations. Additionally the parties agree:
6.1 Further Assurances; Covenant to Sign Documents. Each party shall take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all documents and writings that may be necessary or proper to achieve the purposes and objectives of this Agreement.
6.2 Reimbursement and Apportionment. Although the parties do not contemplate a condition of a Future Approval requiring excess capacity or size of required dedications or public facilities beyond that required by the Applicable Rules, nothing in this Agreement precludes the City and Owner from entering into any reimbursement agreements for the portion (if any) of the cost of any dedications, public facilities and/or infrastructure that the City, pursuant to this Agreement, may require as a condition of the Future Approvals agreed to by the Parties, to the extent that they are in excess of those reasonably necessary to mitigate the impacts of the Project or development on the Project Property.
6.3 Processing. Upon satisfactory completion by Owner of all required preliminary actions and payments of appropriate processing fees, if any, the City shall, subject to 7 8
all legal requirements, promptly initiate, diligently process, and complete all required steps, and promptly act upon any approvals and permits necessary for the development by Owner in accordance with this Agreement, including, but not limited to, the following:
(a) the processing of applications for and issuing of all Discretionary Approvals, including without limitation, the Future Approvals; (b) the holding of any required public hearings; and
(c) the processing of applications for and issuing of all ministerial approvals requiring the determination of conformance with the Applicable Rules, including, without limitation, site plans, grading plans, improvement plans, building plans and specifications, and ministerial issuance of one or more final maps, grading permits, improvement permits, wall permits, building permits, lot line adjustments, encroachment permits, temporary use permits, certificates of use and occupancy, and approvals and entitlements and related matters as necessary for the completion of the development of the Project Property (“Ministerial Approvals”).
6.4 Processing During Third Party Litigation. The filing of any third party lawsuit(s) against the City and Owner relating to this Agreement or to other development issues affecting the Project Property, including, without limitation, litigation under CEQA, shall not delay or stop the development, processing or construction of the Project, approval of the Future Approvals, or issuance of Ministerial Approvals, unless a court order is issued prohibiting the activity. Absent agreement by Owner, the City shall not stipulate to, and shall oppose, the issuance of any such order.
6.5 State, Federal, or Case Law. Where any state, federal or case law allows the City to exercise any discretion or take any act with respect to that law, the City shall, in an expeditious and timely manner: (i) exercise its discretion in such a way as to be consistent with and to carry out the terms of this Agreement; and (ii) take such other actions as may be necessary to carry out in good faith the terms of this Agreement.
6.6 Defense of Agreement. The City shall timely take all actions necessary to uphold the validity and enforceability of this Agreement and the Applicable Rules, subject to the indemnification provisions of this Section. Owner shall indemnify, defend and hold harmless, the City and any agency or instrumentality thereof, and any of its officers, employees, and agents from any and all claims, actions, or proceedings against the City, or any agency or instrumentality thereof, and any of its officers, employees and agents, to attack, set aside, void, annul, limit or seek monetary damages or attorneys' fees resulting from an approval of the City, or any agency or instrumentality thereof, advisory agency, appeal board or legislative body concerning this Agreement. The City shall promptly notify Owner of any such claim, action, or proceeding and request that Owner defend the same. The City and Owner agree to cooperate in the defense of any such action. Should the City fail to either promptly notify Owner or cooperate fully in the defense of any such action, Owner shall not thereafter be responsible to indemnify, defend, or 8 9
hold harmless the City, any agency or instrumentality thereof, or any of its officers, employees, or agents. Should Owner fail to indemnify, defend or hold harmless when properly requested to do so, the City may terminate this Agreement pursuant to its terms.
7. Financing of Public Improvements.
7.1 Formation of Financing Districts. If so requested by Owner, the City will cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for development fees imposed by the City on the Project and the construction, acquisition, maintenance and/or operation of public or quasi-public infrastructure, lighting, landscape, or other facilities required as part of the Development Approvals. In the event that such a district or other financing mechanism is formed and sells bonds for those purposes, Owner may be reimbursed from such bonds to the extent Owner has spent funds or dedicated land for the establishment of such facilities and creation of the district or other financing mechanism. While it is acknowledged that this Agreement cannot require the City to form any such district or other financing mechanism, or issue and sell bonds, the City represents that it can, and does hereby agree that it shall not refuse Owner's request to form such a district and issue and sell bonds, except for good and reasonable cause, as long as such Financing District is in conformance with the Applicable Rules. The City shall retain complete discretion as to the type of Financing District to be formed.
7.2 Owner’s Right to Construct Facilities. It is understood and agreed that Owner may elect, and reserves the right, to construct, or cause the construction of, any public or quasi-public facility for which the City intends to collect a fee, and to dedicate the completed facility to the City, in lieu of payment of the fee, as long as such facility conforms to specifications approved by the City. Additionally, Owner may elect, and reserves the right, to construct or cause construction of any public or quasi-public facility for which the City intends to form a district, in which case the district shall be formed for purposes of acquiring rather than constructing such facilities, subject to the provisions of Section 7.1, above.
8. Compliance; Termination; Modifications and Amendments.
8.1 Periodic Review. The City's Director of Community Development (“Director”) shall review this Agreement once each year, on or before each anniversary of the Effective Date (“Periodic Review”), in accordance with this Section and the Applicable Rules, in order to determine the prima facie compliance of Owner with the terms of this Agreement. At commencement of each Periodic Review, the Director shall notify Owner in writing that said Periodic Review is being commenced.
8.2 Prima Facie Compliance. During each Periodic Review, the Director shall request, in writing, that Owner demonstrate that it has, during the preceding twelve (12) month period, been in prima facie compliance with this Agreement. For purposes of this Agreement, the phrase “prima facie compliance” shall mean that Owner has demonstrated that it has acted in substantial compliance with this Agreement.
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8.3 Owner Non-Compliance; Cure Rights. If during any Periodic Review the Director reasonably concludes that (i) Owner has not demonstrated that it is in prima facie compliance with this Agreement, and (ii) Owner is out of compliance with a specific, substantive term or provision of this Agreement, then the Director may issue and deliver to Owner a written notice of non-compliance (''Notice of Non-compliance”) detailing the specific findings of noncompliance (including references to sections and provisions of this Agreement and Applicable Rules which have allegedly been breached) and a complete statement of all facts demonstrating such non-compliance. Owner shall have thirty (30) calendar days following its receipt of the Notice of Non-compliance in which to cure said failure(s); provided, however, that if any one or more of the item(s) of non-compliance set forth in the Notice of Non-compliance cannot reasonably be cured within said thirty (30) calendar day period, then Owner shall not be in breach of this Agreement if it commences to cure said item(s) within said thirty (30) day period and diligently prosecutes said cure to completion. Upon completion of each Periodic Review, the Director shall submit a report to the City Council setting forth the Director's determination of whether or not Owner has satisfactorily demonstrated prima facie compliance with this Agreement, and if not, what steps have been taken or should be taken to resolve such noncompliance.
8.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic Review, Owner is found in compliance with this Agreement, the City shall, upon request by Owner, issue a Certificate of Agreement Compliance (“Certificate”) to Owner stating that after the most recent Periodic Review and based on the information known or made known to the City, that (1) this Agreement remains in full force and effect, and (2) Owner is not in default. The Certificate shall be in a recordable form and shall contain information necessary to communicate constructive record notice of the finding of compliance. Owner may record the Certificate with the County Recorder.
8.5 Termination of Agreement by City. If Owner fails to timely cure any substantive item(s) of non-compliance set forth in a Notice of Non-compliance, then the City shall have the right, but not the obligation, to initiate proceedings for the purpose of terminating this Agreement. If the City determines to terminate, the City shall give Owner written notice of its intent to so terminate this Agreement, specifying the precise grounds for termination and setting a date, time and place for a public hearing on the issue, all in compliance with the Development Agreement Statutes. At the noticed public hearing, Owner and/or its designated representative shall be given an opportunity to make a full and public presentation to the City. If, following the taking of evidence and hearing of testimony at said public hearing, the City finds, based upon substantial evidence, that the Owner has not demonstrated prima facie compliance with this Agreement, and that Owner is out of compliance with a specific, substantive term or provision of this Agreement, then the City may (unless the parties otherwise agree in writing) terminate this Agreement.
8.6 City Non-Compliance; Cure Rights. If at any time Owner reasonably concludes that (i) the City has not demonstrated that it is in prima facie compliance with this Agreement and (ii) the City is out of compliance with a specific, substantive term or provision of 10 11
this Agreement, then Owner may issue and deliver to the City a Notice of Non-compliance detailing the specific findings of non-compliance (including references to sections and provisions of this Agreement which have allegedly been breached) and a complete statement of all facts demonstrating such non-compliance. The City shall have thirty (30) calendar days following its receipt of the Notice of Non-compliance in which to cure said failure(s); provided, however, that if any one or more of the item(s) of non-compliance set forth in the Notice of Non-compliance cannot reasonably be cured within said thirty (30) calendar day period, then the City shall not be in breach of this Agreement if it commences to cure said item(s) within said thirty (30) day period and diligently prosecutes said cure to completion.
8.7 Termination of Agreement by Owner. If Owner is not satisfied by City action to cure any item(s) of non-compliance set forth in a Notice of Non-compliance, Owner shall have the right, but not the obligation, to terminate this Agreement. If Owner determines to terminate this Agreement, it shall notify the City of such determination in writing and the Agreement shall be deemed terminated thirty (30) days after the date of such notice.
8.8 Modification or Amendment of Agreement. Subject to the notice and hearing requirements of the applicable Development Agreement Statutes, this Agreement may be modified or amended from time to time only with the written consent of Owner and the City or their successors and assigns in accordance with the provisions of the Municipal Code and section 65868 of the California Government Code.
8.9 Operating Memoranda. The Parties acknowledge that the provisions of this Agreement require a close degree of cooperation between the City and Owner and that minor or insubstantial changes to the Project may be required from time to time to accommodate design changes, engineering changes, and other refinements. Refinements to the Project may demonstrate that clarifications to this Agreement and the Applicable Rules are appropriate with respect to the details of performance of the City and Owner. If and when, from time to time during the term of this Agreement, the City and Owner agree that such clarifications are necessary or appropriate, the parties shall effectuate such clarifications through operating memoranda approved in writing by the City and Owner which, after execution, shall be attached hereto and become a part of this Agreement, and the same may be further clarified from time to time as necessary with future written approval by the City and Owner. Operating memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications, therefore, no public notice or hearing shall be required. The City Attorney shall be authorized, upon consultation with and approval of Owner, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such a character to constitute an amendment hereof which requires compliance with the provisions of Section 8.8, above. If the City Attorney determines that an operating memorandum is appropriate under this Section, the City Manager is authorized to execute any such operating memoranda without further action by the City Council.
8.10 Project Changes and Amendment. The Parties acknowledge that in connection with development of the Project and Future Approvals, Owner may determine that 11 12
changes are appropriate and desirable in the existing Development Approvals. In the event Owner determines that such changes are appropriate and desirable, Owner may apply in writing for an amendment to the Development Approvals to effectuate such change, and the City shall process and act on such application notwithstanding anything in this Agreement that may be to the contrary. The City shall have no obligation to grant any such application by Owner that modifies the Development Approvals. If approved in a form to which Owner has consented in writing, any such change in the Development Approvals shall be incorporated into this Agreement as an addendum, and may be further changed from time to time as provided in this Section. Any change in the Development Approvals made in accordance with the procedures therefore required by applicable City, State or Federal laws or regulations and with the written consent of Owner shall be conclusively deemed to be consistent with this Agreement, without need for any amendment to this Agreement or any of its exhibits.
9. Term of Agreement. This Agreement shall become operative as to the Project Property upon the Effective Date and shall remain in effect for a period of fifteen (15) years from the Effective Date unless otherwise terminated, modified or extended upon mutual written consent of the parties or as otherwise provided in this Agreement. Following expiration of the term, this Agreement shall be deemed terminated and of no further force and effect; provided, however, that no such expiration shall automatically affect any right of the City and Owner arising from City approvals on the Project Property prior to expiration of the term hereof and arising from the duties of the parties as prescribed in this Agreement.
10. Vesting Tentative Maps. If any tentative or final subdivision map, or tentative or final parcel map, approved in connection with the Project is a vesting map under the Subdivision Map Act, and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to develop to Owner, then and to that extent, the rights and protections afforded Owner under the laws and ordinances applicable to vesting maps shall supersede the provisions of this Agreement provided that Owner meets its obligations to provide the significant public benefits as set forth in Section 4.2 of this Agreement. Except as specifically set forth herein, development of the Project Property shall occur only as provided in this Agreement, and the provisions of this Agreement shall be controlling over any conflicting provision of law or ordinance concerning vesting maps. Pursuant to section 65867.5(c) of the California Government Code any tentative maps prepared for the Project shall comply with section 66473.7 of the California Government Code. In accordance with section 66452.6(a)(1) of the California Government Code, any tentative map within the Project Property shall be extended for the greater of (i) the term of this Agreement or (ii) the expiration period set forth therein in the absence of this Agreement.
11. Administration and Resolution of Disputes.
11.1 Administration of Disputes. All disputes involving the enforcement, interpretation or administration of this Agreement shall first be subject to good faith negotiations between the parties to resolve the dispute. In the event the dispute is not resolved by negotiations, Owner may file a written request to have the dispute heard and decided by the City Council. The 12 13
City shall set the matter for a hearing before the City Council within 30 days of Owner's written request for such a hearing, unless the parties mutually agree to a longer time. Thereafter, any decision of the City Council that remains in dispute shall be resolved pursuant to the procedures set forth in Section 11.2, below. Nothing in this Agreement shall prohibit Owner or the City from seeking a temporary or preliminary injunction in state or federal court if such party believes that injunctive relief is necessary to prevent irreparable harm related to the issue in dispute.
11.2 Mandatory Alternative Dispute Resolution. After the provisions of Section
11.1, above, have been complied with, and pursuant to section 638, et seq., of the California Civil Procedure Code, all disputes regarding the enforcement, interpretation or administration of this Agreement shall be heard and resolved pursuant to the alternative dispute resolution procedure set forth in this Section 11.2. All matters to be heard and resolved pursuant to this Section shall be heard and resolved by a single appointed referee who shall be a retired judge from either the California Superior Court, the California Court of Appeals, the California Supreme Court, the United States District Court or the United States Court of Appeals, provided that the appointed referee shall have significant and recent experience in resolving land use and real property disputes. The parties who are involved in the dispute shall agree and appoint a single referee who shall then try all issues, whether of fact or law, and report in writing to the parties to such dispute all findings of fact and issues and decisions of law and the final judgments made thereon, in sufficient detail to inform each party as to the basis of the referee’s decision. The referee shall try all issues as if he/she were a California Superior Court judge and to the extent permitted by this Agreement, shall have all legal and equitable powers granted a California Superior Court judge.
Prior to the hearing, the parties shall have full discovery rights as provided by the California Code of Civil Procedure. At the hearing, the parties shall have the right to present evidence, examine and cross-examine lay and expert witnesses, submit briefs and have arguments of counsel heard, all in accordance with a briefing and hearing schedule reasonably established by the referee. The referee shall be required to follow and adhere to all laws, rules and regulations of the State of California in the hearing of testimony, admission of evidence, conduct of discovery, issuance of a judgment and fashioning of remedy, subject to such restriction on remedies as set forth in this Agreement. If the parties involved in the dispute are unable to agree on a referee, any party to the dispute may seek through the Los Angeles County Superior Court, to have a single referee appointed pursuant to section 640 of the California Civil Procedure Code. The cost of such proceeding shall initially be borne equally by the parties involved in the dispute, and each party shall bear its own attorneys' fees. Any referee selected pursuant to this Section shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of the Constitution of the State of California. If any party to the dispute fails to timely pay its fees or costs, or fails to cooperate in the administration of the hearing and decision process as determined by the referee, the referee shall, upon the written request of any party to the dispute, be required to issue a written notice of breach to the defaulting party, If the defaulting party fails to timely respond or cooperate within the period of time set forth in the notice of default (which may not exceed thirty (30) calendar days), then the referee shall, upon the request of any nondefaulting party, render a default judgment against the defaulting party. At the end of the hearing, the referee shall issue a written judgment (which may include an award of reasonable attorneys’ fees and costs as provided in this 13 14
Agreement), which judgment shall be final and binding between the parties and which may be entered as a final judgment in a California Superior Court. The referee shall use his/her best efforts to finally resolve the dispute and issue a final judgment within ninety (90) calendar days from the date of his/her appointment.
11.3 No Recourse for Damages. The Parties hereto agree that (i) the City would not have entered into this Agreement if it were to be held liable for general, special or compensatory damages for any default with respect to this Agreement, and (ii) Owner has adequate remedies, other than general, special or compensatory damages, to secure City's compliance with its obligations under this Agreement. Therefore, Owner agrees that neither the City nor its officers, employees or agents shall be liable for any general, special or compensatory damages to Owner or to any successor or assignee or transferee of Owner for the City’s breach or default with respect to this Agreement; and Owner covenants not to sue the City, its officers, employees or agents for, or claim against the City, its officers, employees or agents, any right to receive general, special or compensatory damages for the City’s breach or default under this Agreement. Notwithstanding the provisions of this Section, the City agrees that Owner shall have the right to seek a refund or return of any deposit made with the City or fee paid to the City in accordance with the Applicable Rules.
11.4 Challenges to Application of City Rules. In the event Owner challenges the application of an ordinance, rule, regulation or policy of the City as being outside of the authority of the City to apply to the Project and Project Property pursuant to this Agreement, Owner shall bear the burden of proof in establishing that such ordinance, rule, regulation, or policy is inconsistent with the terms of this Agreement and applied in violation thereof.
12. Transfers and Assignments.
12.1 Right to Assign. Owner shall have the right to sell, transfer or assign all or any portion of the Project Property and the rights under this Agreement which it may own to any person at any time during the term of this Agreement without approval of the City, provided that Owner has given thirty (30) days prior written notice of the proposed transfer to the City Manager and Owner provides the City with notice of the name and address of the assignee within thirty (30) days of the effective date of the transfer.
12.2 Liabilities Upon Transfers. Upon the delegation of all duties and obligations and the sale, transfer or assignment of all or any portion of the Project Property, Owner shall be released from its obligations under this Agreement with respect to the Project Property or portion thereof so transferred arising subsequent to the Effective Date of such transfer if (1) Owner has provided to City thirty (30) days prior written notice of such transfer, together with the corresponding entitlements and obligations being transferred and (2) the transferee has agreed in writing to be subject to all of the provisions hereof applicable to the portion of the Project Property so transferred. If any of the obligations to provide the public benefits listed in Section 4.2 of this Agreement are being transferred, the City may require a performance bond for such significant public benefit from a surety reasonably acceptable to the City as a condition 14 15
precedent to the effectiveness of the transfer. Upon any transfer of any portion of the Project Property and the express assumption of Owner's obligations under this Agreement by such transferee and if applicable, the provision of a performance bond, the City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Project Property acquired by such transferee. Any such transferee shall be entitled to the benefits of this Agreement and shall be subject to the obligations of this Agreement, applicable to the parcel(s) transferred. A default by any transferee shall only affect that portion of the Project Property owned by such transferee and shall not cancel or diminish in any way Owner’s rights hereunder with respect to any portion of the Project Property not owned by such transferee. The transferee shall be responsible for the reporting and annual review requirements relating to the portion of the Project Property owned by such transferee, and any amendment to this Agreement between City and a transferee shall only affect the portion of the Project Property owned by such transferee.
13. Mortgage Protection. The parties hereto agree that this Agreement shall not prevent or limit Owner, at Owner's sole discretion, from encumbering the Project Property or any portion thereof or any improvement thereon in any manner whatsoever by any mortgage, deed of trust or other security device securing financing with respect to the Project Property; provided that prior to the time any property is transferred to the City, it shall be free and clear of any and all such encumbrances. The City acknowledges that the lender(s) providing such financing may require certain Agreement interpretations and modifications and agrees, upon request, from time to time, to meet with Owner and representatives of such lender(s) to negotiate in good faith any such request for interpretation or modification. The City will not unreasonably withhold its consent to any such requested interpretation or modification, provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any mortgagee of a mortgage or a beneficiary of a deed of trust (“Mortgagee”) on the Project Property shall be entitled to the following rights and privileges:
13.1 Mortgage Not Rendered Invalid. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the Project Property made in good faith and for value.
13.2 Request for Notice to Mortgagee. The Mortgagee of any mortgage or deed of trust encumbering the Project Property, or any part thereof, who has submitted a request in writing to the City in the manner specified herein for giving notices shall be entitled to receive written notification from the City of any default by Owner in the performance of Owner's obligations under this Agreement.
13.3 Mortgagee’s Time to Cure. 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 ten (10) days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed Owner under this Agreement. 15 16
13.4 Project Property Taken Subject to Obligations. Any Mortgagee who comes into possession of the Project Property or any portion thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of foreclosure, shall take the Project Property or portion thereof subject to the terms of this Agreement; provided, however, that in no event shall such Mortgagee be held liable for any default or monetary obligation of Owner arising prior to acquisition of title to the Project Property by such Mortgagee. However, no Mortgagee (nor its successors or assigns) shall be entitled to a building permit or occupancy certificate until all obligations due under this Agreement for the portion of the Project Property acquired by such Mortgagee have been satisfied.
14. Notices. All notices under this Agreement shall be in writing and shall be deemed delivered when personally received by the addressee, or within three (3) calendar days after deposit in the United States mail by registered or certified mail, postage prepaid, return receipt requested, to the following parties and their counsel at the addresses indicated below; provided, however, if any party to this Agreement delivers a notice or causes a notice to be delivered to any other party to this Agreement, a duplicate of that notice shall be concurrently delivered to each other party and their respective counsel.
To the City: City of Lancaster
4433 Fern Avenue
Lancaster, California 93534
Attn: City Manager
With a copy to: Stradling Yocca Carlson & Rauth LLP
660 Newport Center Drive, Suite 1600
Newport Beach, California 92660
Attn: Allison E. Burn
To Owner: Jensen Enterprises, Inc.
DLJ Palmdale LLC
Kurt Jensen
9899 Double R Blvd
Reno, NV 89521
With a copy to:
Notice given in any other manner shall be effective when received by the addressee. The addresses for notices may be changed by notice given in accordance with this provision. 16 17
15. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is superseded or rendered unenforceable according to any law which becomes effective after the Effective Date, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement.
16. Binding Effect. This Agreement, and all of the terms and conditions of this Agreement shall, to the extent permitted by law, constitute covenants which shall run with the land comprising the Project Property for the benefit thereof, and the benefits and burdens of this Agreement shall be binding upon and inure to the benefit of the parties and their respective assigns, heirs, or other successors-in-interest.
17. Project is a Private Undertaking. The parties acknowledge that, development of the Project is a private undertaking and that in entering into and performing under this Agreement, each party is acting as an independent entity and not as an agent of the other in any respect.
Nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Owner joint venturers, partners, agents of the other, or employer/employee.
18. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element.
19. Force Majeure. Changed conditions, changes in local, state or federal laws or regulations, floods, earthquakes, delays due to strikes or other labor problems, moratoria enacted by City or by any other governmental entity or agency, injunctions issued by any court of competent jurisdiction, the inability to obtain materials, civil commotion, fire, acts of God, or other circumstances which substantially interfere with the development or construction of the Project Property or the ability of any of the parties to perform their obligations under this Agreement, shall collectively be referred to as “Events of Force Majeure.” If any party to this Agreement is prevented from performing its obligation under this Agreement by any Event of Force Majeure, then, on the condition that the party claiming inability to perform due to an Event of Force Majeure; (a) did not cause the Event of Force Majeure and (b) such Event of Force Majeure was beyond said party's reasonable control, the time for performance by said party of its obligations under this Agreement shall be extended by a number of days equal to the number of days that said Event of Force Majeure continued in effect and by the number of days it takes to repair or restore the damage caused by any such Event of Force Majeure to the condition which existed prior to the occurrence of the Event of Force Majeure; but in no event may the term of this Agreement be extended for more than two years for Events of Force Majeure, unless the parties mutually agree.
20. 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.
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21. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of Owner and the City and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
22. Attorneys’ Fees. If any party commences any action for the interpretation enforcement, termination, cancellation or rescission of this Agreement, or for specific performance for the breach hereof, the prevailing party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs arising from the action. Attorneys' fees under this Section shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post-judgment proceedings to collect or enforce the judgment.
23. Incorporation of Exhibits. The exhibits that are part of this Agreement are attached hereto and each is incorporated herein by this reference as though set forth in full.
24. Authority to Execute; Binding Effect. The parties represent and warrant to each other that they have the power and authority to execute this Agreement and, once executed, this Agreement shall be final, valid, binding and enforceable against each party in accordance with its terms. Further, the City represents and warrants to Owner that all public notices and public hearings have been held in accordance with law and all required actions for the adoption of this Agreement have been completed in accordance with applicable law.
25. Entire Agreement; Conflicts. This Agreement represents the entire agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Applicable Rules, then the provisions of this Agreement shall prevail.
26. Remedies. Except as otherwise provided herein, upon either party's breach hereunder, the non-breaching party shall be permitted to pursue any remedy provided for by this Agreement. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies available to any party under this Agreement. 18 IN WITNESS WHEREOF, the Parties have each executed this Agreement on the date first written above.
CITY:
CITY OF LANCASTER,
a charter city and California municipal corporation
By:
Name: Trolis Niebla
Its: City Manager
ATTEST:
Andrea, Alexander, City Clerk
APPROVED AS TO FORM:
Allison E. Burns, City Attorney
OWNER:
JENSEN ENTERPRISES, INC., a Nevada
corporation doing business as Jensen Infrastructure
By:
Name: Kurt Jensen
Its: President
A-1
EXHIBIT “A”
LEGAL DESCRIPTION OF PROJECT PROPERTY
[INSERT]
A-1
B-1
EXHIBIT “B”
GENERAL PLAN AND ZONING
[INSERT]
B-1
C-1
EXHIBIT “C”
LIST OF APPLICABLE RULES
(ZONING CODE -
[INSERT]
C-1
D-1
EXHIBIT “D’
DEVELOPMENT IMPACT FEES
(ADOPTED FEE SCHEDULE – OCTOBER 2025)