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RECORDING REQUESTED BY AND WHEN
RECORDED MAIL TO:
City of Norwalk
12700 Norwalk Boulevard
Norwalk, CA 90650
Attention: City Manager
(SPACE ABOVE FOR RECORDER’S USE ONLY)
This document is exempt from the payment of a recording fee pursuant to Government Code § 27383.
DEVELOPMENT AGREEMENT
This Development Agreement (“Agreement”), dated as of April ___, 2025 (the “Reference Date”) and effective on the date it is recorded with the County Recorder of the County of Los Angeles, is made by and among the CITY OF NORWALK, a municipal corporation (the “City”), and LEWIS LAND DEVELOPERS, LLC, a Delaware limited liability company (the “Developer”).
RECITALS
A. The City is authorized to enter into development agreements with persons having legal or equitable development interests in real property which is located either within the City or within its sphere of influence, pursuant to Government Code Sections 65864 through 65869.5 (the “Development Agreement Act”).
B. The City has executed that certain Agreement of Purchase and Sale and Initial Escrow Instructions dated December 26, 2024 (the “State PSA”) for the City’s purchase from the State of California (“State”) of the former Southern Youth Correctional Reception Center and Clinic (the “CYA Facility ”) which is comprised of certain real property consisting of approximately 32.3+/- acres, together with improvements located thereon, including, without limitation, approximately 35-40 structures and ancillary improvements, located at 13200 Bloomfield Avenue in the City of Norwalk, Los Angeles County, State of California, Assessor’s Parcel No: 8045-008-902, which is legally described in Exhibit A and generally depicted in Exhibit A-1 attached hereto (the “Property”).
C. The City and Developer are parties to that certain Disposition and Development Agreement dated December 31, 2024 (the “DDA”) which provides for Developer’s purchase of the Property from the City and Developer’s development of (i) a for-sale and/or for-rent market- rate residential project on approximately 12-13 acres of the Property consisting of a maximum of 462 market-rate Residential Units (the “Developer Residential Project”) and (ii) a neighborhood commercial/retail project on approximately 3.1+/- acres of the Property consisting of a maximum of 66,647 sq.ft. of building area (0.5 floor area ratio) together with a possible hotel (the “Hotel”) containing a maximum of 150 rooms (the “Developer Retail Project”) in accordance with the ATTACHMENT 2
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Current Development Approvals (collectively, the “Developer Project”), and (iii) provide for the development by an Affordable Housing Builder of a for-rent housing project consisting of rental units affordable to lower income and very low income households on approximately 2-3 acres of the Property and consisting of a minimum number of affordable Residential Units which equals 40% of the total number of all Residential Units constructed in the Project (the “Affordable Housing Project”). The Developer Project and Affordable Housing Project are collectively referred to herein as the “Project”.
D. The Project is conceptually planned to be developed as described on the site development plan attached hereto as Exhibit B (the “Preliminary Project Plan”). The Preliminary Project Plan, subject to further revision, currently includes 300 market-rate Residential units and 200 affordable Residential Units and 3.1 acres of retail development and will be finalized by Developer consistent with the Entitlements and approved by the City as set forth in Section
2.10. E. City and Developer have agreed to the recordation of this Agreement against the Property after the City acquires fee title to the Property from the State under the State PSA and after Developer acquires fee title to the Property from the City under the DDA. If either the City does not acquire fee title to the Property, or Developer does not acquire fee title to the Property, then this Agreement shall be of no effect.
F. The City prepared and processed the following land use and development entitlements and approvals for the Project which were previously approved by the City’s Planning Commission and the City Council (the “Current Development Approvals”):
(i) General Plan Amendment (GPA) No. 2022-01 (2024-01); (ii) Zone Change (ZC) No. 2022-01 (2024-02);
(iii) Zoning Text Amendment ZTA No. 2022-02 (2024-04) to establish Specific Plan No. 17, the "Norwalk Transit Village Specific Plan"; and (iv) Final Environmental Impact Report (FEIR) SCH· No. 2022070103.
G. This Agreement and the Project are consistent with the City’s General Plan and each of its elements and with the Current Development Approvals and the DDA.
H. This Agreement and the Project will serve to implement the policies, objectives and standards of each element of the City of Norwalk General Plan, the Current Development Approvals and the DDA.
I. The City Planning Commission held a duly noticed public hearing and recommended approval of this Agreement on March 26, 2025.
J. The City Council also conducted a duly-noticed public hearing on this Agreement on , 2025. In accordance with the Development Agreement Act, the City Council adopted Ordinance No. , to become effective on the 30th day after its adoption, finding that its -3-
provisions are consistent with the City’s General Plan and the Norwalk Municipal Code, and authorized the execution of this Agreement.
K. All actions taken by the City in connection with this Agreement have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act, (Cal. Public Resources Code Sections 21000 et seq.) and the State CEQA Guidelines (Cal. Code of Regs., Title 14,Sections 15000 et seq.) (collectively “CEQA”), and all requirements for notice, public hearings, findings, votes and other procedural matters.
L. All actions taken and all approvals granted by the City under this Agreement are a present exercise of the City’s authority over the Property and the Project.
M. This Agreement and the consent of Developer to each of its terms and conditions will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure timely installation of necessary public improvements, provide for public services appropriate to the development of the Project, and generally serve the public interest.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
a. Definitions. The following capitalized terms when used in this Agreement shall be defined as follows; if not otherwise defined herein, all capitalized terms shall have the meaning given those terms in the DDA:
“Affiliate of Developer” means an entity in which Developer, or its members or partners or any of them directly or indirectly, have a majority ownership or beneficial interest or maintain management and control of the entity. “Affordable Housing Builder” means a builder (or builders) that constructs and manages the Affordable Housing Project as set forth in the DDA. “Affordable Housing Parcel” means the legal lot or lots shown on a final tract map or final parcel map for the Project which is to be conveyed to an Affordable Housing Builder for the development of the Affordable Housing Project in accordance with the Affordability Requirements and the Regulatory Agreement as further described in the DDA.
“Affordable Housing Project” has the meaning set forth in Recital C. “Affordability Requirements” means the requirements of Government Code Section 37364 and the Regulatory Agreement.
“Agreement” means this Development Agreement.
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“Backbone Improvements” has the meaning given that term in the DDA and includes the grading and those improvements described in Exhibit D attached hereto.
“City” means the City of Norwalk, a general law city, including its City Council, officers and employees.
“City Council” means the City Council for the City of Norwalk and the legislative body of the City pursuant to Section 65867 of the California Government Code. “Current Development Approvals” means those Development Approvals for the Property approved before the Effective Date of this Agreement which are listed in Recital F.
“Current Land Use Regulations” means all Land Use Regulations valid and in effect and which are a matter of public record on the Effective Date of this Agreement.
“DDA” has the meaning set forth in Recital C.
“Developer” means Lewis Land Developers, LLC, a Delaware limited liability company, and its successors in interest to all or any part of the Property. “Development” means the improvement of the Property by constructing and completing the buildings, structures, improvements, and facilities which are part of the Project including, but not limited to, grading; the construction of all on-site and offsite public facilities and improvements, including, without limitation, the Backbone Improvements, and all Project Parks and landscaping. “Development” does not include maintenance, repair, reconstruction or redevelopment of any building, structure, improvement, or facility after its initial construction and completion unless such repair, reconstruction or redevelopment is undertaken as a result of casualty or condemnation of the Project and such repair, reconstruction or redevelopment is performed and completed in a manner consistent with the Development Approvals.
“Development Approvals” means all permits, licenses, or other entitlements, whether discretionary or ministerial, subject to approval or issuance by the City in connection with Development of the Property including, but not limited to, specific plans and amendments; tentative and final subdivision and parcel maps; conditional use permits and site plan review; zoning and zone changes; grading, building, and occupancy permits. Development Approvals include collectively, the Current Development Approvals and Subsequent Development Approvals. “Development Impact Fee” means a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of -5-
public facilities related to the development project, including “Quimby” fees specified in Government Code Section 66477; provided Development Impact Fees expressly excludes processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 65838, 57004, 65104, 645446, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superseded, including by amendment or replacement.
“Effective Date” means the date on which this Agreement is recorded with the County Recorder. The Agreement shall not be recorded until Developer acquires title to the Property in accordance with the DDA.
“Exaction” means any requirement of the City in connection with or pursuant to any Land Use Regulation or Development Approval for the construction or improvement and/or dedication of public facilities, payment of Development Impact Fees, or other contributions required in order to address the impacts of Development on the community or for other public purposes. Processing fees shall not be considered exactions for the purposes of this Agreement. “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations, and official policies of the City, whether adopted by ordinance, resolution, or otherwise, controlling or regulating any aspect of the development and use of land, including, but not limited to, the permitted uses of land, the density or intensity of use, subdivision requirements, setbacks, development standards, the maximum height and size of proposed buildings, parking requirements, the reservation or dedication of land for public purposes, sign regulations, zoning, and the design, improvement and construction standards and specifications for development of land in the City. Land Use Regulations do not include any City ordinance, resolution, code, rule, regulation or official policy, governing:
(i) the conduct of businesses, professions, and occupations; (ii) taxes and assessments;
(iii)the control and abatement of nuisances;
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(iv)the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or (v) the exercise of the power of eminent domain.
“Lot” or “lot” means a legal subdivided lot.
“NMC” means the City of Norwalk Municipal Code.
“Permitted Transfer” has the meaning set forth in Section 7.3.2 of the DDA. “Preliminary Project Plan” means the conceptual site development plan for the Project described in Recital D and attached hereto as Exhibit B. “Project” has the meaning set forth in Recital C and includes the Development of the Developer Residential Project, Developer Retail Project and the Affordable Housing Project (all defined in Recital C) as contemplated by the Development Approvals.
“Project Map” means a tentative map and final tract map or final parcel map that legally subdivides the Property into legal parcels, including the Affordable Housing Parcel, for Development in accordance with the Development Approvals. “Property” means the real property described on Exhibit A. “Regulatory Agreement” means that certain “Regulatory Agreement” recorded against the Property at the State PSA closing as set forth in the State PSA. “Residential Unit” means any completed for-sale or for-rent residential unit for which a certificate of occupancy has been issued by the City. “Reservations of Power” means the rights and authority excepted from the assurances and rights provided to Developer under this Agreement and reserved to the City under Section 3.e of this Agreement.
“Retail Unit” means any completed retail/commercial/office building for which a certificate of occupancy has been issued by the City.
“Subsequent Development Approvals” means all Development Approvals required after the Effective Date of this Agreement in connection with Development of the Property. The Subsequent Development Approvals may include, without limitation, the following: design review approvals, improvement agreements, use permits, grading permits, excavation permits, plan checks, building permits, lot line adjustments, sewer and water connection permits, certificates of occupancy, subdivision maps, site plan and project plan approvals, and any amendments to, or repealing of, any of the foregoing or of the Current Development Approvals, this Agreement or the DDA.
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“Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement. “Transfer” has the meaning set forth in Section 2.e.
b. Exhibits. The following documents are attached to and by this reference made a part of this Agreement:
Exhibit A Legal Description of Property
Exhibit A-1 Map of Property
Exhibit B Preliminary Project Plan
Exhibit C Development Impact Fees
Exhibit D Description of Backbone Improvements
2. TERM AND GENERAL RIGHTS.
a. Binding Effect of Agreement/DDA. Development of the Property is hereby authorized and shall be carried out in accordance with the terms of the DDA and this Agreement. All of the terms and conditions in the DDA which apply to the Property and the Project from and after the Developer’s acquisition of title to the Property under the DDA are incorporated into this Agreement and made a part hereof as if those terms and conditions were stated herein in their entirety. b. Ownership of Property. The City and Developer agree that upon close of escrow pursuant to the DDA, Developer will be the fee title owner of the Property. This Agreement shall automatically terminate and be of no force or effect if either the City does not acquire title to the Property pursuant to the State PSA or Developer does not acquire title to the Property pursuant to the DDA. c. Term. The term of this Agreement shall expire and terminate on the date that is ten (10) years from the Effective Date of this Agreement (the “Term”), unless said Term is otherwise terminated, modified or extended by circumstances set forth in this Agreement or by mutual consent of the Parties hereto. Without limiting the foregoing, the Term shall automatically extend for an additional five (5) years if certificates of occupancy have been issued for at least 150 total Residential Units by the expiration of the initial Term.
d. Subdivision Maps. For as long as this Agreement remains in effect, the term of any tentative subdivision map or tentative parcel map approved for the Property after the Effective Date shall automatically be extended for the Term of this Agreement as provided under the provisions of Government Code section 66452.6(a). -8-
e. Assignment. Developer shall have the right to assign this Agreement in whole or in part to any person, partnership, limited liability company, corporation or other legal entity at any time during the term of this Agreement that acquires a fee or ground leasehold interest in any of the Property (a “Transfer”), subject to the following terms and conditions:
(i) The qualifications and identity of the Developer are of particular concern to the City. It is because of those qualifications and identity that the City has entered into this Agreement with the Developer. Accordingly, during the Term of this Agreement, no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement, and the Developer shall not be released from liablity for the performance of all obligations of Developer under this Agreement, without the prior written approval of the City, except as expressly set forth herein. (ii) The City’s prior written consent to the assignment and release of Developer, which consent shall not be unreasonably withheld, shall be required unless the assignment shall be made as part of a Permitted Transfer of all or a part of the Property under the DDA in which event the City’s approval is not required. The City agrees that it will give reasonable consideration to approving a request for approval of an assignment of this Agreement and release of Developer as to that portion of the Property which is the subject of the Transfer in accordance with the standards of such approval set forth below, provided the Developer delivers written notice to the City requesting such approval in pursuant to Section 2.e(ii) of this Agreement. Such notice shall be accompanied by evidence regarding the proposed transferee’s development and/or operational qualifications and experience, and its financial commitments and resources, in sufficient detail to enable the City to evaluate the proposed assignee or purchaser as reasonably determined by the City. The City may, in considering any such request, take into consideration such factors as (i) the quality of any new and/or replacement developer (ii) the transferee’s past performance and experience as developer of high-quality mixed-use residential and/or retail developments and (iii) the current financial condition of the transferee, and similar factors. (iii) At least sixty (60) days prior to any Transfer, Developer shall provide the City with written notice of the proposed assignment of this Agreement as to that portion of the Property that is the subject of the Transfer together with an assignment agreement executed by Developer and the transferee providing that the transferee expressly and unconditionally assumes all the duties and obligations of Developer under this Agreement (an “Assignment Agreement”), which shall be in a form reasonably approved by the City Attorney.
(iv) Notwithstanding the failure of any transferee in a Transfer to execute an Assignment Agreement, the burdens of this Agreement shall be binding upon such transferee, but the benefits of this Agreement shall not inure to -9-
such transferee until and unless such Assignment Agreement is executed and Developer shall remain liable for the performance of all obligations of Developer under this Agreement unless and until released by the City. (v) Provided the transferee executes the Assignment Agreement, the transferring Developer shall be released by the City from the obligations of this Agreement first arising subsequent to the effective date of such Transfer with respect to the portion of the Property transferred. (vi) Notwithstanding the foregoing, the Developer may execute mortgages, deeds of trust, sales and leaseback, or any other form of encumbrance or conveyance required for any reasonable method of financing from a bank, savings and loan, insurance company, or similar institutional lender, for the purpose of securing loans of funds to be used for financing the direct and indirect costs of the Development (including land development costs, reasonable and customary developer fees, loan fees and costs, and other normal and customary project costs). The execution of any of the above- described financing documents shall not be considered a sale, transfer or assignment for purposes of this Section 2.e. In the event of a foreclosure of any mortgage, deed of trust, or receipt of a deed in lieu of foreclosure, any such institutional lender shall not be required to submit documentation called for in Section 2.e(ii), or obtain the prior consent of the City with respect to any transfer of title to the Property to such lender or to any purchaser from such lender. No such parties shall receive any rights or incur any obligations under this Agreement by reason of the foreclosure of the mortgage, deed of trust, or deed in lieu of foreclosure, without assuming in writing the Developer’s obligations of this Agreement.
(vii) A transferee of a lot that has been finally subdivided as provided for in the Development Approvals and for which a site plan for Development of the lot has been approved by the City pursuant to the Development Approvals and for which all obligations for Development of the lot under this Agreement have been completed, may submit a request in writing, to City to release said lot from the record encumbrance of this Agreement. Within thirty (30) days of such request, the City Manager shall review, and if the above site plan condition is satisfied shall approve, the request for release and execute and deliver the release in recordable form to the that transferee.
No such release approved pursuant to this paragraph shall cause, or otherwise effect, a release the Developer from its duties and obligations under this Agreement as to the remainder of the Property (exclusive of the released lot).
(viii) This Section 2.e does not apply to restrict or limit any assignment of this Agreement to an Affordable Housing Builder as part of the Transfer of the Affordable Parcel to the City or the Affordable Housing Builder. -10-
f. Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of the parties in the manner provided for in Government Code Section 65868. This provision shall not limit any remedy of the City or the Developer as provided by this Agreement. g. Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(i) Cancellation this Agreement pursuant to Section 2.f. (ii) Expiration of the Term of this Agreement pursuant to Section 2.c. (iii) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(iv) The adoption of a referendum measure repealing the ordinance approving this Agreement, or repealing any ordinance, law or Current Land Use Regulation which the Developer determines is reasonably necessary to its completion of the Project in accordance with the Development Approvals.
Termination of this Agreement as provided in this Section 2.g shall not constitute termination of any Development Approvals approved for the Property prior to the date of termination. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed before such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred before such termination or with respect to any obligations which are specifically set forth as surviving this Agreement.
h. Termination of Agreement With Respect to Individual Residential Units or Retail Units Upon Completion of Construction and Sale. The restrictions and requirements of Section 2.e shall not apply to the sale or lease of (i) any Residential Unit or (ii) Retail Unit to a member of the public or other ultimate user.
Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any such Residential Unit or Retail Unit and such Residential Unit or Retail Unit shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of all of the following conditions, as applicable:
(i) The Residential Unit or Retail Unit has been sold or leased to a member of the public or other ultimate user; and
(ii) A final certificate of occupancy or similar certificate has been issued for a Residential Unit or Retail Unit.
i. Notices.
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As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder.
All notices, demands, consents, requests or other communications required to or permitted to be given pursuant to this Agreement shall be in writing, shall be given only in accordance with the provisions of this Section, shall be addressed to the parties in the manner set forth below, and shall be conclusively deemed to have been properly delivered: (a) upon receipt when hand delivered during normal business hours (provided that, notices which are hand delivered shall not be effective unless the sending party obtains a signature of a person at such address that the notice has been received); (b) upon receipt when sent by email to the email address set forth below (provided that, any Default Notice given by email shall not be effective unless the sending party delivers the notice also by one other method permitted under this Section); (c) upon the day of delivery if the notice has been deposited in an authorized receptacle of the United States Postal Service as first- class, registered or certified mail, postage prepaid, with a return receipt requested (provided that, the sender has in its possession the return receipt to prove actual delivery); or (d) one (1) business day after the notice has been deposited with any national overnight delivery service (e.g. FedEx, UPS, USPS, DHL) to be delivered by overnight next-day delivery (provided that, the sending party receives a confirmation of actual delivery from the courier). The addresses of the parties to receive notices are as follows:
If to the City:
City Manager
City of Norwalk
127000 Norwalk Boulevard
Norwalk, CA 90650
Attention: Jesus Gomez, City Manager
Email: [email protected]
With a copy to:
Alvarez-Glasman & Colvin
13181 Crossroads Pkwy. North
Suite 400 - West Tower
City of Industry, CA 91746
Attn: Arnold M. Alvarez-Glasman, City Attorney
Email: [email protected]
If to the Developer:
Lewis Land Developers, LLC
c/o Lewis Management Corp
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1156 North Mountain Ave,
Upland, CA 81785
Attention: John Goodman
Email: [email protected]
With a copy to:
Lewis Management Corp.
Attn: General Counsel
P.O. Box 670
Upland, CA 91786-3633
1156 North Mountain Avenue
Upland, California 91785-0670
Email: [email protected]
Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
3. VESTED DEVELOPMENT RIGHTS.
a. Rights to Develop. Subject to the terms, conditions, and covenants of this Agreement, including the Reservations of Power in Section 3.e, Developer has a vested right to develop the Project on the Property in accordance with, and to the extent of, the Development Approvals. Additionally the City hereby approves the proposed uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes as set forth in the Development Approvals. In the absence of this Agreement, Developer would have no assurance that it can complete the Project for the uses and to the density and intensity of development set forth in this Agreement and the Development Approvals. This Agreement, therefore, is necessary to assure Developer that the Project will not be (1) reduced or otherwise modified in density, intensity or use from what is set forth in the Development Approvals, (2) subjected to new rules, regulations, ordinances or official policies or plans which are not adopted or approved pursuant to the City’s Reservation of Powers or (3) subjected to delays for reasons other than Citywide health and safety enactments related to critical situations. The Developer’s vested rights under this Agreement shall include, without limitation, the right to remodel, renovate, rehabilitate, redevelop, rebuild or replace the Project or any portion thereof throughout the Term for any reason, including, without limitation, in the event of damage, destruction or obsolescence of the Project or any portion thereof, in accordance with this Agreement and the Development Approvals. -13-
b. Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Power in Section 3.e, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to Development of the Property shall be the Current Land Use Regulations provided they do not conflict with the Current Development Approvals. Based upon all information made available to the City up to or concurrently with the execution of this Agreement, the City finds and certifies that no Current Land Use Regulations prohibit, prevent or encumber the full completion of the Project in accordance with the uses, intensities, densities, designs and heights, permitted demolition, and other development entitlements incorporated and agreed to herein and in the Current Development Approvals. c. Timing of Development. The parties acknowledge that the Developer cannot at this time predict when or the rate at which the Property will be developed. Such decisions depend upon numerous factors which are not within the control of the Developer, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Except as expressly provided by this Agreement, the rate, timing, phasing, and sequencing of development shall be at the discretion of the Developer. In the event that a Land Use Regulation is enacted, whether by action of the City Council or by initiative or otherwise, which governs the rate, timing, phasing or sequencing of new development or construction in the City, or imposes a residential growth management program or moratorium on development, such Land Use Regulation shall not apply to the Property or the Project or any portion thereof. The intent of the parties in agreeing to this subsection is to avoid the result in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984) where a subsequent growth management program adopted by initiative prevailed over a prior land use agreement which did not expressly address the timing, phasing or sequencing of development.
d. Changes and Amendments. The parties acknowledge that refinement and/or further Development of the Project will require that changes may be necessary, appropriate and/or desirable to the Current Development Approvals. In the event the Developer finds that a change in the Current Development Approvals is necessary, appropriate and/or desirable, the Developer may apply for a Subsequent Development Approval to effectuate such change and the City shall process and act on such application to approve, approve conditionally, or deny it in accordance with the Current Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Power. Unless otherwise required by law, as determined in the City’s reasonable discretion, a change to the Current Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided, however, that such change does not:
(i) Alter the permitted uses of the Property as a whole; or, -14-
(ii) Increase the density or intensity of use, or number of Residential Units, of the Project as a whole; or,
(iii) Increase the maximum height and size of permitted buildings; or, (iv) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(v) Constitute a project requiring the preparation of an environmental impact report pursuant to Public Resources Code Section 21166. e. Reservations of Power.
(i) Limitations, Reservations and Exceptions. Unless otherwise expressly set forth in this Agreement, or as requested by Developer, only the following Subsequent Land Use Regulations shall apply to the Development of the Property:
a) Processing fees and charges usually and uniformly imposed by the City on applicants and projects to cover the estimated actual costs to the City of processing applications for Development Approvals, for monitoring compliance with any Development Approvals, or for monitoring compliance with environmental mitigation measures. b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure. c) The then-current California Building Standards Code referred to in California Health and Safety Code Section 18935 or other successor state statute and other Uniform Construction Codes provided that any such Uniform Code shall apply to the Development only to the extent that the Code has been adopted by the City and is in effect in the City and provided that the Code is (1) necessary to the health and safety of the residents of the City, and (2) are generally applicable on a Citywide basis (except in the event of natural disasters as found by the City Council, such as floods, earthquakes and similar disasters).
d) Land Use Regulations which may be in conflict with the Development Approvals but which are reasonably necessary to protect imminent risk or danger to the public health and safety. To the extent possible, any such regulations shall be applied and construed so as to provide the Developer with all of the rights and assurances provided under this Agreement. In the event of a dispute between the City and the Developer with respect to this provision, the dispute shall be resolved by a court of competent jurisdiction. -15-
e) Land Use Regulations which are not in conflict with the Development Approvals.
f) Land use Regulations which are in conflict with the Development Approvals provided the Developer has given written consent to the application of such regulations to Development of the Property, which consent may be granted or withheld in the Developer’s sole discretion.
(ii) Conflicts. In the event of any conflict or inconsistency between this Agreement and/or the Development Approvals and any Current Land Use Regulation or Subsequent Land Use Regulation, the provisions of this Agreement and the Development Approvals shall control. Without limiting the generality of the foregoing, any Land Use Regulation or other City law or action shall be deemed to conflict with the Development Approvals or this Agreement if it would accomplish any of the following results, in the absence of the Developer’s vested rights as set forth in this Agreement, either by specific reference to the Project or as part of a general enactment which applies to or affects the Project:
a) Change any land use designation or permitted use of the Project or the Property.
b) Limit or control the availability of public utilities, services or facilities or any privileges or rights to public utilities, services, or facilities (such as water rights, water connections or sewage capacity rights, or sewer connections) for the Project, other than those actions by the City’s utilities that are applied on a uniform and non- discriminatory basis to all other utility customers in the City. c) Limit or control the location of buildings, structures, grading, or other improvements of the Project in a manner that is inconsistent with or more restrictive than the limitations included in the Development Approvals.
d) Limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner except as otherwise expressly provided in this Agreement.
e) Apply to the Property or the Project affordable housing, attainable housing, inclusionary housing, or other similar programs and requirements, including inclusionary housing fees, other than the Affordability Requirements which shall apply to the Affordable Housing Parcel only.
f) Materially delay or materially increase the cost to develop or construct the Project because of the need for additional permits, -16-
entitlements, or approvals from the City other than those required by the Current Land Use Regulations.
g) Impose against the Project any new condition, dedication or other Exaction not specifically authorized by the Current Land Use Regulations, the Current Development Approvals, or this Agreement.
h) Establish, enact, increase, or impose against the Project or the Property any fees or other non-tax obligations other than those specifically permitted by the Current Land Use Regulations (as limited in this Agreement) or connection fees imposed by third party utilities.
(iii) Subsequent Development Approvals. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project.
The City shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters. Except as otherwise provided in Section 3.e, the City, in acting on Subsequent Development Approvals, shall apply the Current Land Use Regulations.
This Agreement shall not prevent the City from denying or conditionally approving any Subsequent Development Approval on the basis of the Current Land Use Regulations consistently applied to the Project and all other materially similar projects. The Parties agree that this Agreement shall not modify, alter or change the City’s obligations pursuant to CEQA and acknowledge that future Subsequent Development Approvals may require additional environmental review pursuant to CEQA. (iv) Modification or Suspension by State or Federal Law. In the event that state or federal laws or regulations, enacted after the Effective Date or by determination of a court of competent jurisdiction, 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 that the parties agree that it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render the remaining provisions impractical to enforce.
(v) Police Power. The parties acknowledge and agree that the City is restricted in its authority to limit its police power by contract and that the limitations, reservations and exceptions set forth in this Section 3.e are intended to reserve to the City all of its police power which cannot be so limited. (vi) Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of the City possess -17-
authority to regulate aspects of the Development of the Property separately from or jointly with the City and this Agreement does not limit the authority of such other public agencies.
f. Development Impact Fees. Developer shall pay only those Development Impact Fees listed in Exhibit C attached hereto for the Project in the amounts, and in the manner, set forth in Exhibit C. No other Development Impact Fees in effect on the Effective Date or adopted by the City after the Effective Date during the Term shall apply to the Development of the Property. Without limiting the foregoing, the Project shall not be subject to any inclusionary housing fees but Developer shall instead cooperate with the City and the Affordable Housing Builder to comply with the Affordable Housing Requirements on the Affordable Housing Parcel. g. Project Plan. Unless otherwise mutually agreed by City and Developer, the Developer Project shall be planned and developed by Developer, and the Affordable Housing Project planned and developed by the Affordable Housing Builder, in substantial conformance with the Preliminary Project Plan and in accordance with the Development Approvals and this Agreement. Developer shall submit a final Project Plan (the “Final Project Plan”) to the City for approval as a Subsequent Development Approval within six (6) months (or such later time as approved by the City Manager) after Closing Date under the DDA. City’s approval of the Final Project Plan shall not be unreasonably withheld provided the Final Project Plan is consistent with the Current Development Approvals and substantially similar to the Preliminary Project Plan attached hereto as Exhibit B.
4. PUBLIC BENEFITS.
a. Extraordinary Benefits. The parties acknowledge and agree that Development of the Property will result in substantial public needs and further acknowledge and agree that this Agreement confers substantial private benefits on the Developer which should be balanced by commensurate public benefits of the types identified below in Sections 4.b through 4.e. Accordingly, the Developer has agreed to deliver the consideration and undertake the obligations of Developer in this Agreement and in the DDA to balance the private benefits conferred on the Developer, to provide public assurance that this Agreement is fair, just and reasonable and prompted by the necessities of the situation, and to provide extraordinary benefits to the City and the public. The Developer acknowledges that this consideration is reasonably related to the impacts of the Project upon the community, and further acknowledges that this consideration is necessary to address the direct impacts caused by the Project. The City hereby acknowledges the fairness and adequacy of such consideration. It is further acknowledged by the parties that neither party would have entered into this Agreement if each party had not acknowledged that a reasonable relationship exists between all exactions imposed and all consideration referenced in this Agreement and the impact of the Project upon the community, and that all exactions imposed and all consideration referenced in this Agreement are fair and adequate. In addition, it is further acknowledged that the City would not have entered into this Agreement if the -18-
Developer had not acknowledged that the direct impacts of the Project warrant the exactions and other terms and conditions of this Agreement. b. Developer DDA Obligations. All of the covenants and obligations of the Developer under the DDA, including, without limitation, Developer’s obligation to design and construct the Backbone Improvements, are incorporated herein and made a part of this Agreement by this reference. Developer shall construct and dedicate to the City all public streets, parks, trails, and other public areas as required by the Development Approvals.
c. Public Park. In lieu of the payment of any Quimby park fees or other Development Impact Fees for parks or open space, Developer will construct and dedicate two (2) public parks in the Project: (1) a main park at approximately 1.66 acres and (2) a linear park at approximately 1.19 acres for a total of 2.76+/- acres of parkland provided (collectively, the “Project Parks”) in accordance with the Current Development Approvals. The construction and dedication of the Project Parks fully satisfies the City’s park dedication and fee requirements for the Project and no other exactions for parks or open space will be required for the Development of the Project.
d. Affordable Housing. City agrees that development of the Affordable Housing Project on the Affordable Housing Parcel by an Affordable Housing Builder in accordance with the Regulatory Agreement and the Entitlements shall meet the Affordability Requirements. City shall take all actions required to release the Regulatory Agreement from all of the Property except the Affordable Housing Parcel (defined below) concurrent with the recordation of the Project Map. The Development Approvals shall identify the location of the Affordable Housing Parcel which shall be included as a separate legal lot (or lots) on the Project Map restricted for the development of the Affordable Housing Project in accordance with the Affordability Requirements and the Regulatory Agreement. Developer intends to Transfer the Affordable Housing Parcel to an Affordable Housing Builder and contract with that Affordable Housing Builder to assume and perform all of the City’s obligations under the Regulatory Agreement with regards to the Affordable Housing Parcel and the Affordable Housing Project and to construct and manage the Affordable Housing Project. Developer’s selection of the Affordable Housing Builder shall be based, in part, upon evaluation criteria, reasonably approved by the City, which will consider a prospective builder’s experience and financial wherewithal in working on projects of similar type, size, scope, and quality. Without limiting the foregoing, the Developer agrees that the Affordable Housing Builder selected by Developer shall have the capital necessary to successfully fund and/or finance the Affordable Housing Project. Developer may also elect at any time after completion of the Backbone Improvements, upon sixty (60) days prior written notice to the City and subject to City’s written acceptance of title to the Affordable Housing Parcel which shall be at City’s sole and absolute discretion, to convey fee title in the Affordable Housing Parcel to the City whereupon the City shall be responsible for the selection and management of an Affordable Housing Builder. City acknowledges and agrees that the timing of -19-
Developer’s Development of the Developer Project shall not be conditioned upon or otherwise delayed or impacted by the timing of the development of the Affordable Housing Project by the City or an Affordable Housing Builder. e. Art in Public Places. Notwithstanding the requirement of the City’s “Art in Public Place Program” as set forth in NMC Chapter 15.44 (the “Public Art Program”), the City agrees that the In-Lieu Contribution or fee payment under the Public Art Program for the Developer Project shall be in the amount set forth in Exhibit C attached (the “Public Art Fee”). Developer may, instead of payment of all or a portion of the Public Art Fee, elect to install artwork within the Project Parks or other public areas within, or in the vicinity of, the Project in accordance with the terms of Exhibit C. The cost or value of such artwork determined in accordance with the Public Art Program shall be a credit against the Public Art Fee.
5. DEVELOPER PROJECT BENEFITS. As a material part of the consideration to Developer for entering into this Agreement, the City hereby covenants and agrees to the following:
a. City DDA Obligations. All of the covenants and obligations of the City under the DDA, including, without limitation, City’s obligations with regards to the Demolition Work and Remediation Work and Affordable Housing, are incorporated herein and made a part of this Agreement by this reference. b. Subsequent Development Approvals. Developer shall submit applications for any and all Subsequent Development Approvals as necessary to develop the Project, subject to the City’s discretionary police powers. Upon submission by Developer of any application, City shall promptly commence and diligently complete all steps necessary to review and process the requested Subsequent Development Approval subject to the terms and conditions of this Agreement and all applicable laws.
Subsequent Approvals contemplated for the Project include, without limitation:
(i) Final Project Plan, Design and Site Plan approvals; (ii) Building Permits;
(iii) Certificates of Occupancy;
(iv) Backbone Improvement and building plans; and
(v)Tentative and Final subdivision map(s)
c. City Processing. City will agree, at Developer’s cost, to retain additional staff if requested by Developer to expedite the processing of Developer’s Subsequent Development Approvals. City shall furnish Developer a rate schedule for this service upon request of Developer. Without limiting the foregoing, to complete the improvement plan and final map review, City agrees that it shall make a good faith effort to return first check prints to Developer no later than four (4) calendar weeks from the date of submittal to City. Upon receipt by City of the second submittal, City shall, provided that Developer adequately responds to City’s comments on the -20-
first check prints, make a good faith effort to review and verify whether or not the second submittal satisfactorily addresses all City comments within two (2) weeks of City’s receipt of such second submittal. City shall make a good faith effort to issue final approval of completed plans and maps, evidenced by the requisite signatures of appropriate City staff members, within one (1) week of City’s receipt of completed plans and maps which are deemed ready for approval, and to place such maps on the next available City Council hearing agenda. d. Project Parking Requirements. City agrees to allocate and restrict public street parking within the Project for the use by Project residents as necessary to meet all of the City’s residential guest parking code requirements for the Project in accordance with the Current Development Approvals. The City agrees that Developer or the Project’s HOA may enforce such parking restrictions by contract with a private traffic enforcement company at the cost of Developer and/or the HOA.
e. Public Financing. The City will cooperate with Developer, as requested by Developer, to provide Mello Roos CFD financing, Enhanced Infrastructure District financing, or other eligible public financing to fund all or some of the Backbone Improvements, Development Impact Fees or the maintenance of any public improvements. Without limiting the foregoing, Developer may elect to petition the City to finance all or portions of the costs of any of the Project’s public improvements to be constructed by Developer using a Community Facilities District (“CFD”). Upon the receipt of such a petition, the City agrees to use reasonable, good faith efforts to promptly proceed with all the actions required to authorize such financing subject to all applicable laws, including Government Code Sections 53311 to 53368.3, inclusive, and all public hearing and validation requirements. City and Developer shall enter into a deposit and reimbursement agreement advancing to the City funds for any and all costs of the City associated with the formation of the CFD. The City shall use good faith efforts to include any such advances in the financing plan for the CFD, which shall be reimbursed to Developer from the proceeds of any bonds issued by the City for the CFD to the extent legally permissible.
f. City Maintenance Covenants/LLMD. City shall at all times maintain all portions of the Property dedicated to the City for public use (the “Dedication Parcels”) together with all improvements that are constructed within the Dedication Parcels, including all landscaping, all in good condition and repair and in full compliance with the terms of all applicable provisions of the Development Approvals and the City Municipal Code. Without limiting the foregoing, the City agrees to form a landscape and lighting maintenance district (“LLMD”) for the Project to maintain all of the Dedication Parcels, including, without limitation, all park, open space, trail, and parkway landscaping and improvements. City and Developer shall enter into a deposit and reimbursement agreement advancing to the City funds for any and all costs of the City associated with the formation of the LLMD. The City shall use good faith efforts to include any such advances to be repaid from the annual -21-
assessments levied and collected within the LLMD to the extent legally permissible.
6. PERIODIC REVIEW FOR COMPLIANCE.
a. Periodic Review. The Director of Community Development for the City or the Planning Commission, as determined from time to time by the Director of Community Development, shall, pursuant to California Government Code Section 65865.1, review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain compliance by the Developer with the terms of this Agreement. The Developer shall submit an annual report, in a form acceptable to the Director of Community Development, within thirty (30) days after written notice from the Director.
b. Special Review. In the event of an alleged default or breach of this Agreement, the City Council of the City may order a special review of compliance with this Agreement at any time. The Director of Community Development or the Planning Commission, as determined from time to time by the Director of Community Development, shall conduct such special reviews.
c. Procedure. During either a periodic review or a special review, the Developer shall be required to demonstrate good faith compliance with the terms of this Agreement.
The burden of proof on this issue shall be on the Developer. Upon completion of either a periodic review or a special review, the Director of Community Development or the Planning Commission, as applicable, shall decide whether the Developer has complied in good faith with the terms of this Agreement.
If the Director of Community Development, or the Planning Commission, as applicable, finds, on the basis of substantial evidence, that the Developer has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded. Failure of the City to initiate a periodic review hereunder shall not be considered a default by Developer under this Agreement.
If the Director of Community Development, or the Planning Commission, as applicable, finds, on the basis of substantial evidence, that the Developer is in Default (as defined in Section 7.a below) under the terms and conditions of this Agreement, the Director of Community Development, or the Planning Commission, shall submit its findings to the City Council setting forth the evidence of the Developer’s alleged Default.
d. Proceedings Upon Alleged Default. If, upon a review of the evidence presented to it under Section 6.e, the City determines that the Developer is in Default under this Agreement, the City shall give written notice to the Developer of such determination which notice shall contain a statement of its findings and contentions.
The notice shall be given at least ten calendar days before a scheduled hearing and shall contain:
(i) The time and place of the hearing;
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(ii) A statement of the City’s facts and contentions as to how and in what manner the Developer has failed to perform; and
(iii) Such other information as is reasonably necessary to inform the Developer of the nature of the claims being asserted by the City and of the proceeding. e. Hearing on Default Claim. At the time and place set for the hearing, the Developer shall be given an opportunity to be heard, to present oral and written evidence and to respond to the contentions of the City. If the City Council finds, based upon substantial evidence, that the Developer is in Default under this Agreement, the City Council may, subject to the Developer’s cure rights (if any), exercise its remedies under Section 7.c below. The decision of the City Council shall be final and subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5.
f. Certificate of Compliance. If, at the conclusion of a periodic or special review, the Developer is found to be in compliance with this Agreement, the City shall, upon request by the Developer, issue a Certificate of Compliance (“Certificate”) to the Developer stating that after the most recent periodic review and based upon the information known or made known to the City that (1) this Agreement remains in effect and (2) the Developer is not in Default.
The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance and shall state the anticipated date of commencement of the next periodic review. The Developer may record the Certificate.
The Developer shall be entitled to rely on the Certificate, provided that the City shall not be bound by a Certificate if a Default existed at the time of the review, but was concealed from the Director of Community Development, Planning Commission, or the City Council by the Developer.
7. DEFAULT AND REMEDIES.
a. Default by Developer. The Developer shall be in default (“Default”) under this Agreement for any of the following reasons:
(i) The Developer’s failure to perform any material obligation or comply with any material provision set forth in this Agreement or the Development Approvals; provided, however, the Developer shall be in Default only after the City provides written notice to the Developer of Default setting forth the nature of the Default and the actions, if any, required by the Developer to cure such Default and, where the Default can be cured, the Developer has failed to take such actions and cure such Default within 90 days after the effective date of such notice or, in the event that such Default cannot be cured within such 90 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such Default within such 90 day period and to diligently proceed to complete such actions. -23-
(ii) The Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or the Developer applies or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of the Developer and the appointment continues undischarged or unstayed for 90 days; or the arrangement, readjustment of debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of the Developer and continues undismissed or unstayed for 60 days.
b. Default by City. The City shall be deemed in default in the event of a failure by the City in the performance of a material term of this Agreement; provided, however, the City shall be deemed in default only after the Developer provides the City with written notice of default setting forth the nature of the default and the actions, if any, required by the City to cure such default and, where the default can be cured, the City has failed to take such actions and cure such default within 90 days after the effective date of such notice or, in the event that such default cannot be cured within such 90 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 90 day period and to diligently proceed to complete such actions.
c. Remedies. It is acknowledged that the City would not have entered into this Agreement if the Developer had not acknowledged that a reasonable relationship exists between all exactions imposed on the Project as of the Effective Date and all consideration given by this Agreement, and the impact of the Project upon the community. In addition, it is further acknowledged that the City would not have entered into this Agreement if the Developer had not acknowledged that the direct impacts of the Project warrant the exactions imposed on the Project as of the Effective Date and other terms and conditions of this Agreement.
Each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, including termination of this Agreement.
d. Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance is an appropriate remedy for the enforcement of this Agreement and should be available to all parties for the following reasons:
Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, the Developer may be foreclosed from other choices it may have had to utilize the Property. The -24-
Developer has invested significant time and resources and performed extensive planning, processing, and construction of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in further implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate the Developer for such efforts.
8. LITIGATION.
a. General Plan Litigation. The City has determined that this Agreement is consistent with its General Plan, and that the General Plan meets all requirements of law. The Developer has reviewed the General Plan and concurs with the City’s determination. The parties acknowledge that the City shall have no liability to the Developer under this Agreement for any failure of the Developer to perform under this Agreement or the inability of the Developer to develop the Property as contemplated by the Development Approvals or this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law. In the event a determination is made that the General Plan, or portions thereof, is invalid, inadequate or not in compliance with law, the Developer shall have the right, upon delivery of written notice to the City, to terminate this Agreement.
b. Indemnification. Developer agrees to indemnify and hold harmless City and its agents, officers, contractors, attorneys and employees (“Indemnified Parties”) from and against any claims or proceeding against the Indemnified Parties to set aside, void or annul the approval of this Agreement or any Development Approvals or Subsequent Development Approvals pursuant to this Agreement including, without limitation, claims related to the sufficiency of the actions taken to comply with CEQA in connection with the Project. Notwithstanding the provisions of this Agreement, Developer’s obligation pursuant to this Section 8.b is not a benefit or burden running with the land and shall not be assigned to any person without the prior, express written consent of City. Developer’s duties under this Section 8.b are solely subject to and conditioned upon the Indemnified Parties written request to Developer to indemnify the Indemnified Parties. Developer shall deposit the expected costs of defense, as reasonably determined by the City Attorney, with City within five (5) business days of notice from City of the claim and shall add to the deposit within five (5) business days from City’s request.
Without in any way limiting the provisions of this Section 8.b, the Parties agree that this Section 8.b shall be interpreted in accordance with the provisions of California Civil Code Section 2778 in effect as of the Effective Date. c. Environmental Assurances. The Developer shall indemnify and hold the City, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of the Developer, its officers, agents, employees, contractors, subcontractors and independent contractors for any violation of any -25-
federal, state or local law, ordinance or regulation relating to hazardous or toxic materials, industrial hygiene, or environmental conditions created by the Developer or its officers, agents, employees, contractors, subcontractors and independent contractors after the Effective Date on, under or about the Property, including, but not limited to, soil and groundwater conditions, and the Developer shall defend, at its expense, including attorneys’ fees, the City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. The City may in its discretion participate in the defense of any such action. d. Reservation of Rights. With respect to Sections 8.b and 8.c of this Agreement, the City reserves the right to approve the attorney(s) which the Developer engages to defend the City hereunder, which approval shall not be unreasonably withheld or delayed.
e. Survival. The provisions of Sections 8.a through 8.d, inclusive, shall survive the termination of this Agreement.
9. MORTGAGEE AND REGULATORY COOPERATION.
This Agreement shall not prevent or limit the Developer, in any manner, at the Developer’s sole discretion, from (1) encumbering the Property or any portion of it or any improvement on it by any mortgage, deed of trust or other security interest securing financing with respect to the Property, subject to the terms and conditions of this Agreement, or (2) obtaining the approval of any regulatory agency necessary to the sale or transfer of portions of the Property or interests therein, subject to the terms and conditions of this Agreement. The City acknowledges that secured lenders as well as certain governmental authorities and agencies, including, but not limited to, the California Department of Real Estate (“DRE”), may request certain interpretations and modifications of this Agreement. The City agrees upon request, from time to time, to meet with the Developer and representatives of such lenders and governmental authorities and agencies to consider (in the City’s reasonable discretion) any request for interpretation or modification which is consistent with the intent and purposes of this Agreement and which will not diminish in any manner the benefits of this Agreement to the City.
10. ADMINISTRATION.
a. Recordation. This Agreement and any amendment or cancellation thereof shall be recorded with the County Recorder by the City Clerk, and recordation shall be deemed to be the act of entering into this Agreement for the purposes of California Government Code Section 65868.5.
b. Entire Agreement. This Agreement contains the entire understanding and agreement of the parties with respect to the subject matter hereof. There are no oral or written representations, understandings, undertakings, or agreements which are not contained or expressly referred to in this Agreement, and any such representations, understandings, or agreements not contained or expressly referred to herein are superseded by this Agreement. No evidence of any representations, understandings, or agreements which are not contained or expressly referred to -26-
herein shall be admissible in any proceeding of any kind or nature relating to the terms or conditions of this Agreement, its interpretation, or breach. c. Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected to the extent the remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement.
Notwithstanding the foregoing, the provisions of Section 3 of this Agreement are essential elements of this Agreement and the City and the Developer would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable by a judicial decision, this entire Agreement shall be null and void and of no force and effect whatsoever.
d. Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel and having fully participated in the negotiation of this Agreement.
e. Headings. All section headings and subheadings are inserted for convenience only and shall have no effect on the construction or interpretation of this Agreement. f. Singular Includes Plural. The singular of any word used in this Agreement includes the plural.
g. No Joint and Several Obligations. If at any time during the term of this Agreement the Property has been subdivided and the subdivided parcels are each owned by separate Developers, then the Default of any Developer as to the portion of the Property owned by such Developer shall not be the Default of all Developers. h. Time is of the Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
i. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand thereafter strict compliance by the other party with the terms of this Agreement.
j. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. -27-
k. Mutual Covenants. The covenants contained in this Agreement are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the benefitted party of the covenants to be performed by such party. l. Successors in Interest. The burdens 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. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act with regard to Development of the Property:
(a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion of it. m. Attorneys’ Fees and Costs. If legal action by either party is brought because of breach of this Agreement or to enforce a provision of this Agreement, the prevailing party is entitled to reasonable attorneys’ fees and court costs. n. Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by any party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, and the parties waive all provisions of law providing for the filing, removal or change of venue to any other court.
o. Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the Development of the Project is a private development, that neither party is acting as the agent of the other in any respect, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between the City and Developer is that of a government entity regulating the development of private property and the owner of such property. p. Further Actions. Each of the parties shall cooperate with and provide reasonable assistance to the other 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 either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. q. Authority to Execute. The person or persons executing this Agreement on behalf of the Developer warrants and represents that they have the authority to execute this Agreement on behalf of their corporation, partnership or business entity and warrants and represents that they have the authority to bind the Developer to the performance of its obligations hereunder.
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r. Recitals Are a Part. The recitals are made a part of this Agreement. s. Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
[Remainder of Page Left Blank; Signatures Follow Immediately on Next Page] -29-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Reference Date.
CITY OF NORWALK,
a municipal corporation
By: _____________________________
Mayor
ATTEST:
By: ____________________________
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
DEVELOPER:
LEWIS LAND DEVELOPERS, LLC,
a Delaware limited liability company
By: LEWIS MANAGEMENT CORP.,
a Delaware corporation - Its Manager
By: ______________________________
Name: ___________________________
Its: ______________________________
[Notary jurats to be inserted]
EXHIBIT A
Legal Description of Property
All that certain real property situated in the City of Norwalk, County of Los Angeles, State of California described as follows:
EXHIBIT A-1
Map of Property
EXHIBIT B
Preliminary Project Plan
EXHIBIT C
Development Impact Fees
[This Exhibit is a Draft. Final Form to Be Submitted by City and Developer to City Council for Approval]
1.City Park Dedication/Fee Requirement (NMC Section 16.030.090):
NMC Section 16.030.090 requires park dedication of 133.73 sf per residential unit or payment of park fee in-lieu of park dedication.
The Project will satisfy the City Park Fee Requirement by the construction and dedication of two (2) parks in the Project: (1) a main park at 1.66 acres and (2) a linear park at 1.19 acres for a total of 2.76 acres of parkland provided (collectively the “Project Parks”). Assuming a maximum of 770 residential units (as permitted by the Current Development Approvals) at 133.73 SF per unit, the construction and dedication of the Project Parks fully satisfies the City’s Park Dedication/Fee Requirement ---no additional Park Fees will be required.
2.Public Art Fee Requirement (NMC Chapter 15.44):
Developer shall pay the City Public Art Fees that are in effect at the time the ordinance approving this Agreement goes into effect in accordance with NMC Chapter 15.44 (or as otherwise determined and approved for the Project by the City Council), which shall not exceed, and shall be calculated based on, 1% (one percent) of the total project cost according to the value designated on the Building and Safety Department Plan Check and Permit Application in the form attached as Schedule 1 to this Exhibit C to be completed for all grading or building permits issued for the Project.
Developer may, instead of the payment of all or a portion of the Public Art Fee, elect to acquire and install artwork in the Project Parks or other public places on, or in the vicinity of, the Project site in accordance with NMC Sections 15.44.030 A, 15.44.050, 15.44.060 and 15.44.070. The cost or value of such artwork determined in accordance with the Public Art Program shall be a credit against the Public Art Fee.
Without limiting the foregoing, City acknowledges and agrees that Developer may incorporate landscape architecture and landscape gardening and decorative, ornamental or functional elements within the Public Parks for which credit against the Public Art Fee will be provided. Public Art Fee credits shall be reviewed by the Art in Public Places Advisory Committee in accordance with NMC Chapter 15.44 and shall provide its recommendation to the City Council, which shall be approved by the City Council.
NO OTHER DEVELOPMENT IMPACT FEES EXISTING AS OF , OR ADOPTED BY THE
CITY AFTER, THE EFFECTIVE DATE OF THE DEVELOPMENT AGREEMENT, SHALL BE CHARGED TO THE PROJECT.
Schedule 1 to Exhibit C
Form of Permit Application
EXHIBIT D
Description of Backbone Improvements
Public Improvements
Surveying and Staking
Elect Dist System
Street Paving
Curb and Gutter
Sidewalk
Traffic Signals
Other Street Work
Park Development
Perimeter Landscape
Site Work
Surveying and Staking
Demolition
Clearing/Prewater/Mobil
Dirt Haul incl Import/Export
Erosion Control/SWAPP
Over Excavation
Grading/Earthwork
Sewer System
Storm Drain System
Water System
Recycled Water
Electric/Gas
Electrical Distribution
A/C Paving
Curb and Gutter
Sidewalks and Steps
Street Lights
Perimeter Block Walls
Landscaping
Monuments