Loading...
HomeMy WebLinkAbout2228 ORDINANCE NO, 2228 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ARCADIA AND SANTA ANITA ASSOCIATES, LLC, PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 65864 ET SEQ, WHEREAS, the City of Arcadia ("City") has found that development agreements will strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and WHEREAS, pursuant to California Government Code Section 65864 et seq" the City of Arcadia is authorized to enter into development agreements providing for the development of land under terms and conditions set forth therein; and WHEREAS, Santa Anita Associates, LLC ("Developer") proposes to redevelop approximately 304 acres of land located in the City of Arcadia, more particularly described in Exhibit "A", attached hereto and incorporated herein by reference ("Project Site"), for a mix of commercial, horse racing, and recreational uses on the Project Site in accordance with the Specific Plan, more commonly known as the "Shops at Santa Anita Specific Plan Project" ("Project"); and WHEREAS, the City has approved the "Shops at Santa Anita Park Specific Plan" (the "Specific Plan") and the related General Plan Amendment, Zone Change 1 2228 and Architectural Design Package to provide for the orderly growth and quality development of the Project in accordance with the General Plan; and WHEREAS, because of the logistics, magnitude of the expenditure and considerable lead time prerequisite to planning and developing the Project, the Developer has proposed to enter into a development agreement concerning the Project ("Development Agreement") to provide assurances that the Project can proceed without disruption caused by a change in the City's planning policies and requirements except as provided in the Development Agreement, which assurance will thereby reduce the actual or perceived risk of planning for and proceeding with development (lfthe Project; and WHEREAS, the City desires the timely, efficient, orderly and proper development of the Project in furtherance of the goals of the General Plan and the Specific Plan; and WHEREAS, the City Council has, for the reasons set forth in attached Exhibit "B", found that this Development Agreement is consistent with the City's General Plan; and WHEREAS, the City Council has found that this Development Agreement is consistent with the Specific Plan because it implements and facilitates the development the Project in the way and subject to the land use regulations called for in the Specific Plan, Further, the Development Agreement will remain subject to the regulations contained in the Specific Plan; and WHEREAS, the City Council has found that this Development Agreement is consistent with the regulations prescribed for the zoning in which the real property is located, Much of the zoning regulations prescribed for the Project Site merely incorporate the regulations of the Specific Plan through adding a Specific Plan 2 2228 designation into the Arcadia Municipal Code, To the extent that the zoning has been changed, this is intended to redesignate land uses within the Project Sitein such a way to facilitate development of the Project in the way called for in the Specific Plan. Therefore, the Development Agreement's consistency with the Specific Plan renders it consistent with the zoning regulations of the Project Site, as well; and WHEREAS, the City Council has found that this Development Agreement is in conformity with public convenience, general welfare and good land use practice, The General Plan has articulated the City's vision of what kind of project will serve the public convenience, and general welfare for future development of the Project Site, A project of the type set forth in the Specific Plan implements those General Plan policies and goals and the Development Agreement implements the Specific Plan. As such, the Development Agreement set forth in this Ordinance demonstrates good land use practice of the City, consistent with the City's General Plan and Specific Plan, WHEREAS, for the same reasons articulated above, the Development Agreement will be beneficial to the health, safety and general welfare of the City, The Development Agreement will result in the development of a parking lot into new commercial and entertainment amenities, employment opportunities, as well as public amenities, including without limitation, open air plazas, a community theater, and over 7,5 acres of open space, all to the benefit of the citizens of Arcadia, Furthermore the Development Agreement will provide for a new well site location for the City's water system, a $2,000,000 payment to the City to be used at the City's discretion and a tenant mix that would be consistent with a first class shopping center that will include upscale tenants; and 3 2228 WHEREAS, the City Council has found that this Development Agreement will not adversely affect the orderly development of property or the preservation of property values. The General Plan establishes the City's goals, policies and objectives that ensure the orderly development of property within the City, as well as preservation of property values. For the reasons set forth above, the Development Agreement is consistent with the General Plan, Specific Plan and zoning of the Project Site which implement the City's standards; and WHEREAS, it is the intent of the City and Developer to establish certain conditions and requirements related to review and development of the Project which are or will be the subject of subsequent development applications and land use entitlements for the Project; and WHEREAS, the City and Developer have reached mutual agreement, and desire to voluntarily enter into the Development Agreement to facilitate development of the Project subject to conditions and requirements set forth therein; and WHEREAS, the terms and conditions of the Development Agreement have undergone review by the City Council at a publicly noticed hearing and have been found to be fair, just and reasonable, and consistent with the General Plan and Specific Plan; and WHEREAS, an Environmental Impact Report (State Clearinghouse #2005031131) ("EIR") addressing the Project that is the subject of the Development Agreement has been prepared and adopted by the City Council in accordance with the provisions of the California Environmental Quality Act; and WHEREAS, on March 19, 2007, a duly noticed public hearing was held before the Planning Commission on the proposed Development Agreement, along 4 2228 with the other applications identified above, including the Environmental Impact Report (HEIR") for the Project, at which time all interested persons were given full opportunity to be heard and to present evidence; and WHEREAS, after the public hearing, on March 21, 2007 the Planning Commission adopted Resolution No, 1757 recommending to the City Council approval of General Plan Amendment (05-01), Specific Plan (05-01), Zone Change (05-04), the Development Agreement and Design Review for the Shops at Santa Anita Park and certification of the EIR, as recommended by the Development Services Department and subject to certain conditions of approval; and WHEREAS, on April II, 2007, the City Council held a duly noticed public hearing on the Development Agreement; and WHEREAS, the City Council considered the Staff Report, the EIR, all other land use entitlements in connection with the Project, all recommendations by staff, all documents contained in the record, and all public testimony and written submissions, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION I, Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance promotes the public health, safety and welfare of the community because the Development Agreement will permit land uses that best reflect community needs, and will allow for the most efficient and logical development of the real property governed by the Development Agreement in the City; and 5 2228 SECTION 2. Pursuant to California Government Code Section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented to the City Council, the City Council hereby finds that, for the reasons set forth above and more specifically set forth in attached Exhibit HB", which is incorporated herein by reference, the Development Agreement is consistent with the General Plan and the Specific Plan because the Development Agreement will result in the development of the Property at the intensity and density allowed under the General Plan and consistent with the restrictions and standards in the Specific Plan. SECTION 3, Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds that: (i) the economic interests of Arcadia citizens and the public health, safety and welfare will be best served by entering into the Development Agreement; (ii) this Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the area in which the Property is located; (iii) the Development Agreement is in conformity with the public convenience, general welfare and good land use practice; (iv) the Development Agreement will not be detrimental to the public health, safety and general welfare; and (v) the Development Agreement will not adversely affect the orderly development or the preservation of property values for the property it governs or any other property, SECTION 4. An Environmental Impact Report (HEIR") (State Clearinghouse No, 2005031131) has been prepared for the proposed Development Agreement in accordance with CEQA and State CEQA Guidelines, SECTION 5, Based upon the EIR, the administrative record, and all written and oral evidence presented to the City Council, the City Council finds that the environmental impacts of the Project and the Development Agreement are 6 2228 either less than significant, can be mitigated to a level of less than significant through implementation of the mitigation monitoring and reporting program outlined in the ErR, or with respect to those environmental impacts of the Project and the Development Agreement that have been found to not be mitigable to a level less than significant, these impacts are identified in the ErR and a Statement of Overriding Considerations has been adopted by the City Council for those impacts which outlines the economic, social, legal, or technological benefits to the community that outweigh those environmental impacts. As discussed in greater detail in the City Council's Resolution 6564 certifying the ErR for the Project, the City Council finds that the ErR is supported by substantial evidence and that it contains a complete, objective, and accurate reporting of the environmental impacts associated with the Project and the Development Agreement and reflects the independent judgment of the City Council. SECTION 6, The City Council further finds and declares that the Project and the Development Agreement comply with CEQA as set forth in Resolution 6564 for this Project. SECTION 7, Pursuant to California Government Code Sections 65864, et seq" the City Council hereby approves the Development Agreement attached hereto as Exhibit "C", SECTION 8, Any and all references to the Simulcast Center in this Ordinance or in any Exhibits attached hereto shall be deemed to be not a part of this Ordinance, and shall be deemed to constitute typographical errors which may hereafter be corrected by City Staff. SECTION 9, This Ordinance shall become effective on the thirty-first (3151) day following its adoption. 7 2228 SECTION 10. Severability, If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or any part thereof is for any reason held to be unconstitutional or otherwise invalid, such decision shaH not affect the validity of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that anyone or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases may be declared unconstitutional or otherwise invalid, SECTION 11. The City Clerk shaH certify the adoption of this Ordinance and shaH cause a copy of same to be published in the official newspaper of said City within fifteen (15) days after its adoption. SECTION 12, Recording of Develooment Agreement. Pursuant to Government Code Section 65868.5, within 10 days following the entering into of the Development Agreement, the City Clerk shaH record with the Los Angeles County Recorder a copy of the Development Agreement. [SIGNATURES ON NEXT PAGE] 8 2228 Passed, approved and adopted this 1st day of ATTEST: 06C ~ -.---- City Clerk . "') APPROVED AS TO FORM: ~p,~ Stephen p, Deitsch City Attorney 9 May ,2007, 2228 EXHIBIT" A" Description of the Property 10 2228 EXHIBIT A RACE TRACK PROPERTY ENTIRE PROPERTY LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THOSE PORTIONS OF LOTS 1 AND 5 OF TRACT 949, IN THE CITY OF ARCADIA, AS SHOWN ON MAP RECORDED IN BOOK 17 PAGE 13 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL MAP NO, 4626, AS SHOWN ON MAP FILED IN BOOK 51 PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A POINT ON THE NORTH LINE OF HUNTINGTON DRIVE, 195,00 FEET IN WIDTH; THENCE ALONG THE EASTERLY AND NORTHEASTERLY BOUNDARY OF SAID PARCEL MAP AS FOLLOWS: NORTH 3053'00" EAST 475.68 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 1200,00 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15~31'48. AN ARC DISTANCE OF 325,26 FEET; THENCE TANGENT TO SAID CURVE NG>RTH 19024'48" EAST 534.43 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 350.00 FEET; THENCE NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 71022'48" AN ARC DISTANCE OF 436,03 FEET; THENCE TANGENT TO SAID CURVE NORTH 51058'00" WEST 873,36 FEET; THENCE CONTINUING ALONG SAID BOUNDARY OF PARCEL MAP NO. 4626 NORTH 66058'00" WEST 154.55 FEET AN.D NORTH'51058'00. WEST 437,83 FEET TO THE MOST NORTHE~L Y CORNER OF SAID PARCEL MAP, BEING A POINT ON THE SOUTHEASTERLY LINE OF BALDWIN AVENUE, 100,00 FEET IN WIDTH, THENCE NORTHEASTERLY ALONG SAID SOUTHEASTERLY LINE OF BALDWIN AVENUE, AS IT NOW EXISTS, TO THE' INTERSECTION WITH THE WESTERLY PROLONGATION OF THE' SOUTHERLY BOUNDARY LINE OF TRACT 15318 AS SHOWN ON MAP RECORDED IN BOOK 427 PAGES 34 AND 35 OF SAID MAPS, SHOWN THEREON AS HAVING A BEARING OF NORTH 88057'33" EAST; THENCE NORTH 88057'33" EAST ALONG SAID SOUTHERLY BOUNDARY LINE TO THE ANGLE POINT IN THE SOUTHERLY LINE OF LOT 38 OF SAiD TRACT 15318; THENCE CONTINUING ALONG THE BOUNDARY LINE OF SAID TRACT 15318, AND THE SOUTHERLY BOUNDARY LINE OF TRACT 14940 AS SHOWN ON MAP RECORDED IN BOOK 350 PAGES 48 TO 50 INCLUSIVE -- -- - . --- OF SAID MAPS, NORTH 68046'53" EAST 2265,62 FEET TO THE MOST EASTERLY CORNER OF LOT 81 OF SAID TRACT 14940, BEING A POINT ON THE SOUTHWESTERLY LINE OF COLORADO PLACE; THENCE SOUTH" 30033'16" EAST 2171.20 FEET ALONG SAID SOUTHWEST LINE OF COLORADO PLACE, 80,00 FEET IN WIDTH, AS IT NOW EXISTS, TO THE BEGINNING OF TANGENT CURVE THEREIN, CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 756,78 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE 554,82 FEET' TO THE INTERSECTION WITH THE, CURVED NORTHWESTERLY LINE OF HUNTINGTON DRIVE, 80,00 FEET IN WIDTH, SAID CURVE BEING CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 995,37 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE 607.48 FEET; THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS, 2843,30, FEET' TO THE BEGINNING OF A TANGENT CURVE THEREIN CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 915,20 FEET; THENCE SOUTHWESTERLY AND WESTERLY ALONG SAID CURVE 883,99 FEET; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS TO THE POINT OF BEGINNING. TOGETHER WITH PARCEL 4 OF PARCEL MAP NO, 4626, AS SHOWN ON MAP RECORDED IN BOOK 51, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING WITHIN PARCEL 1 OF PARCEL MAP NO, 15852, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 179 PAGES 93 AND 94 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM THOSE PORTIONS OF THE' ABOVE DESCRIBED PARCEL LYING WITHIN PARCELS 3 AND 4 OF PARCEL MAP NO, 23862, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 261 PAGES 91 THROUGH 95 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ' SAID PARCELS ARE SHOWN ON EXHIBIT "g ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. . . - - - - - - - - - - . - -, . -. - . ---------------- I I I I I I I I I I I I I I I I I I I I I I I I I I I I I, I i I I I I I flet__.. Utnl.Q.~, UUl1UlK ~:.:,;.: ~/, 10 ....111I/101 -7 - -- ~~ ~ ug::.r~:' __~~~Ui &~'& '.~: ~~""coJ' "' ~ . ... ......, ~j" rvJ/lI-* lam_ _"'", - ~-~(..~ Jr ......, '-"";d' ~ ... ~ :P"1ll' lallUr ...........-V ...... "'"~ ...... ~ ",. ~ / J!t,1o ~1~/ /-r...., ....... ,/ / /~~ '<,,< /'..s.........~ <. ;"b/ ,...... , '-<...;,' /f'", ../.J..{j , fJm...tIlIt. I Cl'r..ta...... II ~'~.j/ /f/ ~, ' 1/1j t.~~ !It'S' ~' Iff h' , 1 if:.:- ~ ~t:.:. . I .11I11I1. l.'''fCCII , Ci\CJ:IIIt.~ I I _.-T. , iU ""'::'~"'5Jt- ~'1rtn/~ ~ ...... ~\ I~ ~~~..... ~ ij \ "....,If !5 - - ~ \ 1-+0 .. \ ~l!'; . iJ'~r I \ \. ~ ~+~~ '1r.."""'fo . -~of.o ',p~~ .. \. LOT 1 lR. NO. !Hi BK. 17. Pc. 13 \. ~.,.. n.ll ,. n:ia Jnnl'Ul~.~ ........... SAN\.... ANITA PARK effi~ROPERT.Y :IlM.,g~ \. LOT 5 TR. NO. 949 BK. 17, Pc. IJ \. JtI...'IIC"rr;-/ umurm 'A_ """ICII ICItnAPIJI 'A_ n.rrlltl1/2ll IU''''~J .-.n1"tLDl' lnu", Jl. .."".... \. ~" ~~~"--fa~ .~. ~ c ".ac ~JUW :\ ,.-n,____~ -I' l-tUll5' ,.-.cn_,:ID:I ~111..,...... '..11..'1'1I,.. ~ .......~I.h'l 10 '~~ru.w-r tttit HlJN~ON ORIVE \. ~ II Ja.D3 . U l:IQ.tQ ~. " " o " ~ YON SCALE 1-.500' ......, f1~CII._ Mr.AJQ... J I i , J J I I EXHIBIT "B" , ENTIRE PROPERTY I SANTA ANITA Rl\CE TRACK ARCADIA. CAUFaRNIA EXHIBIT "B" FINDINGS OF CONSISTENCY WITH THE GENERAL PLAN FOR THE SHOPS AT SANTA ANITA PARK SPECIFIC PLAN (SP 05-01); ZONING TEXT AMENDMENT AND ZONE CHANGE FROM "S-I" AND "R-I" TO "SP S-I" "SP R-I" AND "SP CE" , , (ZC 05-04); AND DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ARCADIA AND SANT A ANITA ASSOCIATES, LLC, ALL WITH RESPECT TO THE SHOPS AT SANTA ANITA PARK, PREFATORY NOTE: Reference is made throughout this document to the "Project". For purposes of these Findings, the "Project" is a collective reference to the "Shops at Santa Anita Park Specific Plan Project" and includes the development allowed by each of the following land use entitlements, Shops at Santa Anita Park Specific Plan (SP 05-0 I) ("Specific Plan"); Zoning Text Amendment and Zone Change of Land within the Specific Plan Area from "S-l" AND "R-l", TO "SP S-l", "SP R-I" AND "SP CE" (ZC 05-04) (collectively, "Zoning Amendments"); and Development Agreement between the City of Arcadia and Santa Anita Associates, LLC ("Development Agreement"),1 It is noted that in order for the City Council to approve each of the above land use entitlements, the Council must find that each is consistent with the General Plan of the City of Arcadia, as amended, Because the findings of General Plan consistency for the collective Project are fundamentally the same as they would be for each individual land use entitlement, for the sake of simplicity the General Plan consistency findings have been consolidated into one single document, which is attached to and incorporated by reference into the findings for each individual land use entitlement for the Project. These findings demonstrate that the Project is consistent with the applicable goals, strategies and standards of the General Plan. The Courts in Sequoyah Hills Homeowners Assn, v, City of Oakland (1993) 23 Cal.AppAth 704, 712, 717 and Greenbaum v, City of Los Angeles (1984) 153 Cal. App,3d 391, 406-407 recognized that no project could completely satisfy every single policy or standard 1 The Developer also seelm a General Plan Amendment (GPA 05-01) to develop the Project. These consistency findings are included directly within the Resolution approving lhe General Plan Amendment, (Resolution No, 6565) and are not specifically referenced here, 11 2228 stated in a general plan, and that State law imposes no such requirement. Rather, a general plan is a document that tries to accommodate a wide range of competing interests, including those of developers, neighboring homeowners, prospective homebuyers, environmentalists, current and prospective business owners, jobseekers, taxpayers, and providers and recipients of all types of city-provided services. Therefore, as noted in Napa Citizens for Honest Government v, Napa County Board of Supervisors (2001) 91 Cal. AppAth 342, 379-380, a project will nevertheless be deemed consistent with the general plan, if considering all its aspects, it is compatible with and will not frustrate the general plan's goals and policies, even if it does not satisfy each and every provision of the general plan to the letter. These findings will address General Plan consistency in the order of the Chapters contained in the General Plan: Community Development ("CD") (General Plan, Chapter 2); Municipal Facilities and Services ("FS") (General Plan, Chapter 3); Environmental Resources ("ER") (General Plan, Chapter 4); Environmental Hazards ("EH") (General Plan, Chapter 5); and the City of Arcadia Housing Element (Separate Document from General Plan, adopted in 2005). While the General Plan also contains a Chapter 6, titled "Implementation and Monitoring Programs", this Chapter implements each of the Chapters/Elements stated above and reference is made to the standards contained in Chapter 6 throughout this Document.2 Further, these Findings also reference the analysis contained in the Draft Environmental Impact Report that was prepared for the Project, where appropriate and cite the pages in that document where evidence in support of these findings can be found, For purposes of citation references, the following abbreviations have the following meanings: GPS - General Plan Strategy(ies) (planning strategies outlined In Chapters 2 through 5 of the General Plan) Standard(s) - General Plan Urban Design Performance Standard(s) (design and development standards outlined in Chapter 6 of the General Plan that implement the goals and strategies set forth in Chapters 2 through 5 of the General Plan) 2 The General Plan also contaill5 Chapter I, which is an introductory chapter that contains no additional goals, strategies or standards that are not already addressed in the other chapters, Therefore, these Findings contain no further discussion with respect to Chapter 1. 12 2228 Draft EIR - Draft Environmental Impact Report prepared for the Project under the California Environmental Quality Act. 13 2228 GENERAL PLAN CONSISTENCY FINDINGS: I. Community Development ("CD") Chapter: The Project is consistent with the goals, objectives and strategies of the Community Development Chapter of the General Plan, as amended, as well as the design and development standards that implement that Chapter for the following reasons: A. Economic Vitality of the Santa Anita Park Racetrack. One of the primary goals articulated in the General Plan is the continued economic vitality of the Santa Anita Park Racetrack (the "Park" or "Racetrack") through development of compatible commercial uses, To accomplish this goal, the General Plan has, since the 1996 Update, envisioned the redevelopment of the southern parking lot from surplus parking space into a mixture of commercial uses of "urban intensity" to provide a regional attraction that will draw visitors to the Park and surrounding areas, Additionally, the General Plan acknowledges that the Park and neighboring Westfield Mall are currently separated by fencing and other barriers. The General Plan envisions the development of "functional linkages" between the properties so that patrons of the Mall, Racetrack and Project may walk, bicycle or drive between the properties so that patrons may more freely move between the properties without using the external public roadway system, increasing cross-patronage of each location while reducing traffic impacts. The Project will be subject to special design standards that recognize the unique characteristics and needs of this area, as opposed to the more general zoning and development regulations contained in the "R-I" and "S-l" zoning designations, The Specific Plan, Zoning Amendments, Development Agreement and Architectural Design Review, along with their corresponding conditions of approval and mitigation measures, will provide additional development guidelines consistent with the goals and objectives of the General Plan outlined above, and will ensure proper and diversified type, location, architecture, massing, color, and texture of uses and improvements that will complement both existing uses on the Site and surrounding uses. While the General Plan also emphasizes Arcadia's identity as a "community of homes" and endeavors to protect the integrity and quality of existing residential neighborhoods, the Project proposes to redevelop an existing commercial parking lot upon which no residential uses currently exist (although a portion of the Project 14 2228 Site is zoned "R-I "). Further, as indicated above, the land use entitlements, conditions of approval, and mitigation measures for the Project will ensure that the Project is compatible in style and scale with the existing primarily residential nature of the community. For example, no large retaining walls are proposed or permitted for the Project. Any outdoor storage areas, loading areas, mechanical equipment areas, as well as exposed structural and mechanical elements will be screened from public view with appropriate enclosures, architecture or landscaping, The Project will also be required to maintain appropriate setbacks and buffer distance from neighboring residential uses to ensure compatibility with adjacent neighborhoods and land uses, (GPS CD-I, CD-4 through,CD-6, CD-21 through CD-22; Standards #1,2,4,8-13, 17; Draft EIR, Sect. 4.8, pgs. 35-36, 40-44, 83-86, 88-90) B, Maintain the Economic and Social Vitality of the Community, The General Plan sets the following Community Development goals: I. To provide for the retail and commercial service needs of Arcadia residents. 2. To provide appropriate opportunities for employment generating office uses consistent with the overall character of the community, 3, To reserve adequate land for public and quasi-public services, and to create physical places for Arcadia residents to interact and exchange ideas, and promote the development of a municipal auditorium or performing arts center. 4, To ensure an adequate supply of lands which can generate a municipal revenue stream for the City to continue providing residents high quality services. As indicated above, the Project will provide for the redevelopment of the southern parking lot at the Santa Anita Park into a mixture of commercial uses of ''urban intensity" that will significantly expand the retail and commercial opportunities for both residents and visitors to the Park and surrounding areas. The Project would develop approximately 25,000 additional square feet of office uses, Although intended for occupancy by Arcadia Unified School District Employees, this office use would not preclude other employment-generating office projects within the City, Therefore, the Project would not be in conflict with the General Plan. The Project would not remove land previously allocated for public facilities or prohibit redevelopment of these types of uses on other sites, Further, the Project 15 2228 1\ includes open plazas, pedestrian networks, eating areas, and 8.9 total acres of open space (7,5 acres of open space area including a 3,5 acre water feature located to the south of the project and a 1.4 acre landscaped open space area linking the existing Paddock Gardens with the proposed new commercial, retail and office center), as well as providing functional linkages between the Westfield Mall, the Project and the Racetrack. Additionally the Project would provide a space for community performing arts, school productions, and local organization meetings, with a seating capacity of approximately 400. All of these amenities will contribute to a vibrant day and evening environment within which Arcadia citizens may interact. The Project will serve as a diverse trade area with a mix of fashion retailers, restaurants, and shops, catering to upscale sophisticated patrons in the City and the surrounding area, Total sales from the Project are estimated to exceed $300 Million per year, generating substantial tax revenue for the City, while also providing significant employment opportunities within the City (estimated at 1,300 permanent jobs). For these reasons, the Specific Plan, Zoning Amendments and Development Agreement adopted for the Project are consistent with the above-referenced Community Development goals. (GPS CD-3 and CD-16b; Draft EIR, Sect. 4.8, pgs. 41-43) C. Architectural Compatibility with the Racetrack Grandstand. The General Plan contains several approaches for development of the Project Site to maintain architectural compatibility with the existing historical Racetrack Grandstand and to preserve important community views of the Grandstand, However, the General Plan also acknowledges that development to the south of the Grandstand will not be able to preserve unobstructed views of the entire Grandstand structure. Therefore, the General Plan emphasizes that the Grandstand remain "recognizable from key locations along the perimeter of the Racetrack", including the views travelers get from Huntington Drive/Colorado Place, directly east of the Racetrack, as well as views of the unique architecture of the southerly Grandstand face. (General Plan, pgs. 2-17 through 2-19) As such, the General Plan requires any new commercial buildings and structures to respect these views and that the Grandstand remain "recognizable", However, no provision of the General Plan mandates that views of the Grandstand be maintained from any particular location in perpetuity, The Project is consistent with the General Plan, as amended, in that it continues to emphasize maintaining the visibility of the Grandstand from Huntington Drive/Colorado Place and Huntington Drive/Centennial Way, The Project will retain all historical vehicular access points and would provide for pedestrian access points to the Project. 16 2228 Entryways will be improved with decorative walkways, landscaping and signage to create a sense of place for visitors. Fencing and walls will be limited in the Project and wiIl be decorative, appropriately transparent, and employ materials, colors and textures that minimize graffiti, glare, heat and reflection. (Standard #6; Draft EIR, Sect. 4,8, pg, 87) Although the Project proposes to remove some of the previous views of the Grandstand, it would ultimately result in increased overall opportunities for individuals to have "up close" experiences in viewing the Grandstand, ensuring the Grandstand's "recognizability" as called for in the General Plan, balanced against the competing General Plan policy of redeveloping the southern parking lot into a viable commercial project. ' Further, the Project is designed with a "Main Street" concept at a human scale, with varied architecture that is intended to complement the Grandstand's architecture rather than to clash with or obscure it. Additionally, the Project will enhance the economic vitality of Racetrack operations, (GPS CD- l6c; Standards #3,5 and 6; Draft EIR, Sect. 4,8, pgs. 38-39,44,85-87) Lighting will be designed to be warm and pedestrian friendly, It will be designed to minimize glare and spillage onto adjacent properties, A project requirement is incorporated to ensure that lighting will be screened to minimize illumination into the surrounding areas and to minimize glare or interference with vehicular lighting, (Standard #7; Draft EIR, Sect. 4,8, pgs, 87-88) D, Open Space and Parks, The General Plan contains policies for preserving the integrity and viability of existing open space areas, as well as providing a system of active and passive parks and open spaces of sufficient size and in appropriate locations to serve the needs of residents of all ages, The Project will not remove any open space, Rather, it will add 7,5 acres of open space, including a 3,5 acre water feature at the southern end of the Project site and a 1.4 acre landscaped open space area in the northern portion of the Project adjacent to the Paddock Gardens, all of which will be accessible to the public, Further, the water feature will be dedicated for passive use only, There will be no swimming, bathing, wading, boating or fishing in the water feature. The City's existing system of parks and recreational facilities is adequate to serve the Project beyond the open space to be provided, Additionally, all new landscaping shall relate to the overall Site Plan in order to enhance the structures and soften its effect upon the neighborhood, protect views, and protect it from sun and wind. (GPS CD-29 and FS-3l; Standard #17; Draft EIR Sect. 4.8, pgs. 45, 51, 65 and 90) II. Municipal Facilities and Services ("FS") Chapter: The Project is consistent with the goals, objectives and strategies of the Municipal Facilities and Services Chapter of the General Plan, as amended, as well as the design 17 2228 and development standards that implement that Chapter for the following reasons: A. Transportation Svstem and Traffic Impacts. One of the goals articulated in the General Plan is to maintain a transportation system that maximizes freedom and safety of movement, balances mobility and cost efficiency of maintenance, as well as reducing traffic impacts on neighborhood streets. The Project Developer has conducted a Traffic Impact Analysis of traffic patterns that would result from the Project. The Project would be managed through specific mitigation measures that would help maintain roadway performance objectives to the extent feasible, which include the construction of local traffic improvements as well as assisting in the implementation of subregional transportation improvement programs. Among the improvements identified are: I, Physical improvements to public roads and intersections in the vicinity of the Project, 2, Construction of internal circulation roads and accessways that will facilitate movement of vehicles and pedestrians between the Racetrack, the Project and the Westfield Mall, without requiring movement on public streets and rights-of-way, 3, Establishment and operation of a shuttle service to and from the nearest Metro "Gold Line" station, 4. Incorporation of additional bus stops internal to the Project Site, 5, Establishment ofa neighborhood Traffic Management Plan, and 6, Certain bonding and funding for anticipated traffic improvements to offset other traffic impacts. Along these same lines, General Plan Strategies FS-I, FS-2 and FS-3 set the goal of maintaining public roadway operations at better than Level of Service ("LOS") "D" during non-racing season, LOS "E" during racing season for all race- related traffic, and LOS "C" on local residential streets, However, by Resolution 6493 (adopted by the City Council in 2005) although these are intended to be desirable goals, they have been interpreted by the City Council to be non- mandatory elements, The Council has determined that no single goal or strategy in the General Plan is intended to prevent development that is otherwise in harmony with and in furtherance of the General Plan. Further, the Council has determined that where LOS goals have already been exceeded, compliance with the City's Transportation Master Plan will constitute compliance with the General Plan. There are several intersections in the vicinity that currently exceed LOS "D" and it 18 2228 is established practice to approve development projects that may result in incremental decreases in LOS so long as the development is otherwise in harmony with the General Plan, Through incorporation of the traffic mitigation measures described above, the Project would be consistent with the Transportation Master Plan and, as such, would be consistent with the General Plan, (GPS FS-l through FS-3; Standard #19; Draft EIR, Sect. 4,8, pgs, 51-55, 91) Finally, it is anticipated that the Project will not require additional hours of manual traffic control during the racing season. However, if the City determines that such additional manual traffic control is necessary, the Project Developer will be required to participate in manual control to offset the added impact. (GPS FS-9 and ER-8; Draft EIR, Sect. 4,8, pgs, 56, 67) B. Maintaining Service and Facility Standards and Sharing of Costs, Another goal of the General Plan is to maintain municipal service and facility performance standards for existing and future development, realize cost efficiencies and to achieve an equitable sharing of the cost of municipal services and facilities. I, Traffic. The Project Developer has analyzed the potential traffic impacts and the Project will incorporate or contribute to various mitigation measures in order to minimize impacts, both within the City of Arcadia and in surrounding communities, as more particularly discussed in the Section II(A) above and in Resolution No. 6564 adopting CEQA findings for the Project. Where the City of Arcadia has no jurisdiction over certain mitigation measures, the City's policy is to work with outside communities to mitigate such impacts, Further, the Project, with mitigation, is consistent with the Congestion Management Program and Regional Transportation Plan requirements, (GPS FS-I through FS-4, FS-6 through FS-10 through FS-12, FS-15 and FS-16; Standard #20; Draft EIR, Sect. 4,8, pgs, 51-60,91) 2, Fire and Emergency Response. The Project will be adequately served by Fire Station No, 106, The Project will incorporate appropriate emergency access measures, smoke alarms, fire extinguishers, hydrant' pressure ,md spacing, adequate fire flows and safety features required by State law and the Arcadia Municipal Code, Further, Arcadia Fire Department personnel were consulted in connection with review of the Project. (GPS FS-17, FS-27 and FS-28; Standards #24-26, 30; Draft EIR, Sect. 4.8, pgs. 51-62, 64, 92, 94) 3, Police Response/Crime Prevention. The Project will provide a private security force for the proposed "SP-CE" Zone that would be 19 2228 . integrated into the existing private security force at the Racetrack. Prior to the issuance of the first building pennit for the first retail building, a Master Security and Access Plan shall be submitted to the Fire Chief and/or Police Chief for review and approval that would outline all security operations during construction and operation of the Project, both current and anticipated, as well as protocols by which the security force will interface with the Arcadia Police Department. The Project will also make provision for Arcadia police officer workspace adjacent to or in connection with a planned private security office at the Project. Finally, the Project will incorporate "defensible space" design features to discourage theft and other criminal activity at the Project. (GPS FS-17, FS-22 through FS-24; Standards #27-29; Draft EIR, Sect. 4,8, pgs, 51-64, 92-93) 4, Utility Supply/Infrastructure. The needs of the Project have been analyzed and existing utility facilities serving the Project Site are anticipated to be sufficient to serve the demand of the Project. If necessary, the Project will be required to upgrade utility infrastructure to provide adequate services, such as potential expansion of water, sewer, solid waste, electricity, natural gas, telephone and cable infrastructure in order to equitably share the cost of increased municipal utilities/services serving the Project. (GPS FS-17; Draft EIR, Chap 4.8, pgs, 51-61) 5. Development Impact Fees. The Project will be required to pay a Traffic Impact Fee pursuant to the Development Agreement. (See Exhibit "D" of Development Agreement) 6, Added Tax Revenue to Fund Municipal Services. Finally, the Project is anticipated to generate additional sales and property tax revenues that could be used by the City of Arcadia to fund additional infrastructure improvements, purchase additional equipment, as well as to hire additional personnel that may be required to offset impacts due to the Project. This is consistent with the General Plan, as amended, in that the Project will "pay its own way" and municipal services impacts will be minimized to the extent feasible, (Draft EIR, Sect. 4,8, pgs, 47-51) C, Maintaining Emergency and Disaster Response Preparedness, Another goal of the General Plan is to maintain a system of emergency and disaster response preparedness that will save lives, protect property, and facilitate recovery with a minimum of social disruption following minor emergencies, as well as after major catastrophic events, The Santa Anita Park has adopted an Emergency Action and Evacuation Plan (revised January 2005) to ensure adequate 20 2228 preparedness with rapid and appropriate response to emergency situations (i.e.: fire, explosion, hazardous materials release, medical emergencies, bomb threats, etc,) The Plan is in compliance with California law. The Project would not prohibit areas of the Project Site from being used as an evacuation center. Further, prior to issuance of building pennits for the Project, the Developer will be required to submit to the City of Arcadia an Emergency Evacuation/Management Plan for the entire Specific Plan Area that will be integrated into the existing Santa Anita Park Emergency Action and Evacuation Plan, as well as with the City of Arcadia's 2004 Natural Hazard Mitigation Plan. (Draft EIR, Sect. 4,8, pg, 50) III. Environmental Resources ("ER") Chaoter: The Project is consistent with the goals, objectives and strategies of the Environmental Resources Chapter of the General Plan, as amended, as well as the design and development standards that implement that Chapter for the following reasons: A. Air Quality. Qne of the goals articulated in the General Plan is to achieve air quality conducive to good health and enjoyment of the area's climate and to assist in attaining Federal and State air quality standards. The Project Site has historically been designated as a commercial area under the General Plan and, since the 1996 Update, has been earmarked for redevelopment into a commercial and entertainment-oriented venue of "urban intensity", Given this fact, the Air Quality Management Plan ("AQMP") included commercial growth of the Site within its projections, Therefore, the Project does not jeopardize attainment of the air quality levels identified in the AQMP, even if they exceed the SCAQMD's recommended daily emissions thresholds, The Project would be required to comply with City regulations that implement the AQMP which are geared toward reducing pollutant emissions, Further, as outlined in Section Il(A) above, the Project would incorporate various traffic mitigation measures that would reduce vehicle trips and encourage use of public transportation, thereby reducing vehicle air pollution. (Draft EIR, Sect. 4.8, pgs, 65-66) B, Energy Resources. Another goal articulated in the General Plan is to ensure retention and proper stewardship of energy resources located within the City. The General Plan requires that all new large commercial development meet or exceed state and local energy conservation requirements, promote installation of heat recovery and co-generation facilities where feasible, and promote innovative building, site design and orientation techniques which minimize energy use to the extent feasible. 21 2228 All buildings within the Project will comply with the energy efficiency standards under Title 24 of the California Code of Regulations, However, it is not feasible to develop heat recovery or co-generation facilities at this location due to prohibitive cost and given the fact that the Project is principally retail in nature, The Project is designed to contain a varied collection of open air plazas and pedestrian areas, as well as landscaped areas that would maximize solar gain and minimize heat-reflective surfaces, Further, the Project Developer will cooperate with SCE and the Gas Company on available energy conservation demonstration projects where feasible. (GPS ER-23, ER-26 and ER-27; Standards #34-35; Draft EIR, Sect. 4.8, pgs, 68-69, 95-96) The General Plan also seeks to facilitate the provision of energy efficient modes of transportation. As more specifically set forth above, the Project is a pedestrian-oriented development which would encourage the use of walking and public transportation, (GPS ER-28; Draft EIR, Sect. 4,8, pg. 69) C, Water Resources, Another goal articulated in the General Plan is to ensure retention and proper stewardship of water resources located within the City, The Project would incorporate various water conservation measures, such as low- flow plumbing fixtures and drip irrigation, (GPS ER-37 and ER-42; Draft EIR, Sect. 4.8, pgs, 72-73) Further, the Project will be required to comply with all NPDES, SWPPP, SUSMP, the City of Arcadia's Water Conservation Plan (A.M.C. Section 7553.0) and various other water discharge mitigation measures consistent with those requirements, all of which prohibit violation of water quality standards, (GPS ER- 31; Standard #36; Draft EIR, Sect. 4.8, pgs, 69-70, 96) The Project will not contribute to a change that would result in any violation of the waste discharge requirements associated with the Racetrack. (GPS ER-32; Draft EIR, Sect. 4.8, pg, 70) The Project would also increase the amount of pervious surfaces to allow percolation of storm water into the ground, The area where the commercial entertainment project will occur is currently a 100% impervious parking lot. The Project would reduce surface lot hardscape area, add an approximately 7.5 acre open space area to the south side of the Project Site, of which 3,5 acres would be a water feature and four acres would be pervious landscaping, Further, the Project would develop 1.4 acres of open space to the north around the Paddock Gardens, The Project would also add buffer and other landscaping as well as a meandering sidewalk. Stormwater runoff would be filtered in accordance with NPDES requirements prior to discharge into the Arcadia Wash, (GPS ER-33, ER-35, ER- 36, ER-41 and ER-43; Standards #42 and 43; Draft EIR, Sect. 4.8, pgs. 70-73,98- 22 2228 99) The Project would also incorporate water-conserving landscaping to reduce water usage, (GPS ER-37; Draft EIR, Sect. 4,8, pg, 72) D, Cultural Resources, Another goal articulated in the General Plan is to ensure retention and proper stewardship of cultural resources located within the City, Building fayades would be individualized to reflect a variety of architectural styles designed to evoke the architecture and cultural history of horse racing, while also preserving views of the Grandstand, Further, as noted above, the project would help to revitalize the existing Racetrack and surrounding areas, preserving a central cultural feature of the City of Arcadia, (Draft EIR, Sect. 4,8, pgs. 66-67) (GPS ER-49; Draft EIR, Sect. 4,8, pgs, 73-74) The Santa Anita Park Historic District has been determined eligible as a National historical landmark and is currently a California state landmark. The Project would not result in the delisting or loss of eligibility of the District on the National or California Register. (GPS ER-54; Draft ErR, Sect. 4.8, pg. 74) Although the Project Site is located within an area that may contain a portion of the Gabrielifio prehistoric village, mitigation measures will be in place to ensure that any earth-disturbing activities are supervised by a qualified archeologist to identify anyon-site archeological resources and, if the resources are significant, the archeologist will take appropriate measures to ensure that the scientific information that could be provided from these resources is not lost. (GPS ER-55 and ER-57; Standards #37-39; Draft EIR, Sect. 4,8, pgs, 74-75, 97- 98) With respect to geological or paleontological resources, none are known to exist on the Project Site. However, if paleontological resources are discovered, mitigation measures are in place that would require the retention of a qualified paleontologist to assess any finds and provide appropriate treatment. (GPS ER-55, ER-56 and ER-58; Standards #37-39; Draft EIR, Sect. 4,8, pgs, 75,97-98) E, Biological and Mineral Resources, A goal articulated in the General Plan is to ensure retention and proper stewardship of biological and mineral resources located within the City, However, with respect to biological, habitat, riparian or mineral resources, no such resources would be significantly impacted by the Project. (Standards #31-33; Draft EIR, Sect. 4,8, pgs, 66, 94-95) F, Mixed-Use Development. The General Plan also sets the goal of encouraging mixed-use development, where appropriate, in order to allow employees the opportunity to live and work at the same location, While the Project will not develop residential uses, it will include a mix of commercial, retail and office uses that would provide employment opportunities to persons living in nearby residential neighborhoods, (GPS ER-15; Draft ErR, Sect. 4,8, pgs, 67-68) 23 2228 Project will not develop residential uses, it will include a mix of commercial, retail and office uses that would provide employment opportunities to persons living in nearby residential neighborhoods. (GPS ER-15; Draft EIR, Sect. 4,8, pgs, 67-68) G, Waste Recvcling. The General Plan also sets the goal of facilitating the City's Source Reduction and Recycling Chapter. The Project will comply with all City of Arcadia standards. (GPS ER-16; Draft EIR, Sect. 4.8, pg. 68) IV. Environmental Hazards ("EH") Chapter: The Project is consistent with the goals, objectives and strategies of the Environmental Hazards Chapter of the General Plan, as amended, as well as the design and development standards that implement that Chapter for the following reasons: A. Seismic Safety. One of the goals articulated in the General Plan is to incorporate adequate mitigation measures to achieve an acceptable risk from potential seismic hazards. While the Project is located in the Alquist-Priolo zone and would be subject to ground rupture, the Project will comply with all seismic safety regulations under the Arcadia Municipal Code and California Building Code to achieve an acceptable level of seismic risk. (GPS EH-I; Standards #40 and 41; Draft EIR, Sect. 4,8, pgs. 76, 79, 98) B. Flooding. Another goal articulated in the General Plan is to incorporate adequate mitigation measures to achieve an acceptable risk from potential flooding hazards. The SP CE zoned area is not located within the Morris Jones Inundation Zone or in the Santa Anita Dam Flood Hazard Zone. Further, the Developer wiIl prepare an emergency evacuation/management plan for the Project, as more particularly referenced in Section n(C) above. The Project would also be designed to direct surface runoff away from the water feature, reducing the potential for flooding thereby, (GPS EH-9; Draft EIR, Sect. 4,8, pg, 79) C. Noise, Another goal articulated in the General Plan is to ensure that noise-sensitive land uses and noise generators are located and designed in such a manner so that (1) adverse noise effects of the Project are avoided on adjacent uses and (2) adverse noise effects of adjacent uses are avoided on the Project. A detailed noise analysis was prepared for the Project, which is referenced in the Draft EIR, Section 4.9. With respect to non-traffic noise, the Report concluded that either the Project would not generate operational noise in violation of the above standards or that noise-sensitive uses and noise generators will be designed in a way to reduct: noise to below a level of significance (i,e,: rooftop HV AC equipment). Therefore, the objectives for non-traffic operational noise of the General Plan would be met. (GPS EH-13 through EH-15, EH-17 through EH-19; 24 2228 Standards #44, 45, 47, 48 and 50; Draft EIR, Sect. 4.8, pgs, 80-81, 98-102; Draft EIR, Sect. 4.9) With respect to traffic noise, certain noise thresholds may be exceeded in the vicinity, However, noise levels are already being exceeded on most of the roadways surrounding the Project Site. As indicated in Section II(A)above with respect to traffic impacts, the General Plan does not require strict adherence to a particular standard if a project is otherwise consistent with the General Plan. Therefore, the Project is consistent with the General Plan for this purpose, (Draft EIR, Sect. 4,8, pgs, 77-78). In September, 2006, the City Council amended Performance Standard #44 of the General Plan to remove thresholds related to traffic noise citywide that are already exceeded by existing conditions and do not reflect an accurate measure of an individual project's impacts, The Project has addressed this change to the General Plan. D, Hazardous Waste, Another goal articulated in the General Plan is to ensure that all commercial, office and industrial uses within the City adhere to both the City's and the Los Angeles County Hazardous Waste Management Plan, as weIl as the most current amendments to California Code of Regulations, Title 22, AIl retail, office and commercial businesses within the Project wiIl be required to comply with the City's and County's Plans, Cal-OSHA requirements, the Hazardous Materials Management Act, Title 22, and other applicable State and local requirements, Further, no hazardous materials other than routine cleaning compounds and possibly propane would be utilized in the Project, which would not present a significant risk of injury or harm to the environmental or the community through upset or accident. (GPS EH-21 and EH-23; Standard #52; Draft EIR, Sect. 4,8, pgs. 78-79, 81-82, 103) Also, as required by the General Plan, a Phase I environmental assessment was also completed on the Project Site, as weIl as a geotechnical analysis to determine the presence of hazardous substances on the Site. (Standard #53; Draft EIR, Sect. 4,8, pg. 103), V. Housinl!: Element: The Project is consistent with the goals, objectives and strategies of the Housing Element of the General Plan, as amended, as well as the design and development standards that implement that Chapter for the following reasons: The General Plan sets the goal of providing adequate sites to meet Arcadia's share of regional housing needs by accommodating 46] new dweIling units from 1998 through 2005, including adequate numbers of affordable housing. However, the Project does not provide for any residential units, since the Project Site has 25 2228 historically been designated in the General Plan as commercial and horse racing (although a portion of the Project Site is zoned "R-l "), The General Plan Housing Element identifies seven potential sites within the City for affordable housing, none of which include the Project Site. Therefore, while the Project will not provide any housing, it will not preclude the inclusion of housing in other areas of the City. Therefore, it is consistent with and will not conflict with the Housing Element of the General Plan, (GPS CD-24; Arcadia Housing Element 2000-2005, Policy 1.1, Table 29; Draft EIR, Sect. 4.8, pgs, 45, 82) 26 2228 EXHIBIT "C" Development Agreement [attached behind this page] 27 2228 EXEMPT FROM RECORDER'S FEES Pursuant ta Gavernment Cade SS 6103 and 27383 Recarding requested by and when recarded return to: City Clerk City of Arcadia 240 Huntington Drive Arcadia, CA 91066 (SPACE ABOVE FOR RECORDER'S USE) DEVELOPMENT AGREEMENT By and Between THE CITY OF ARCADIA, a California municipal corporation and SANTA ANITA ASSOCIATES, LLC, a Delaware limited liability company (a joint venture between SANTA ANITA ASSOCIATES HOLDING CO" LLC, a California limited liability company and SANTA ANITA COMMERCIAL ENTERPRISE, Inc" a Delaware corporation) and THE SANTA ANITA COMPANIES, INC" a California corporation TABLE OF CONTENTS PaQe(s) 1, Definitions,.,..,..,..",..,..,....................,..,..,..,..,....,..,....,........,.......,.......,....,..,..,.., 4 2, Binding Effect; Change in Developer Composition..,......,........,......,.................. 7 3, Negation of Agency ................,..,..,..,..,..,..,..,....,................'........,......,.............., 7 4, Reserved Powers "....,..,..,.................,..,............,.....,......,.............,......,...,....,..,., 7 5, Acknowledgements, Agreements and Assurances on the Part of the Developer..,..,....,..,....,..,...........,..,..,........,..,..,.......,....",......,...............,....,....., 1 0 6, Acknowledgements, Agreements and Assurances on the Part of the City"""""".""""".""""""""""",."",.".""""".""."".""""""""""""",."."", 1 0 7, Acknowledgements, Agreements, and Assurances on the Part of the Parties..",."....,.. ,....,..,..,..,.....,........,.....,..,..,..,..,....,....,........,.. ....,......,....,... ...., 15 8, Public Benefits.....,..,....,..,..,.."..,..,..,..,..,..,..,..........,.............,........,....,......,...... 16 9, Cooperation and Implementation ....................,..,....................................,......,16 10, Compliance; Default; Termination; Modifications and Amendments, ..,..........,18 11, Amendment or Modification....,....................,..,..............,........,......,..,..,........,..21 12, Term of Agreement ,..,..,..,...........,..,..,..,.....,..,.......,.........'"......,......................21 13, Administration of Agreement and Resolution of Disputes, ........,..,..................22 14, Transfers and Assignments, ..,..,.........,..,..,..,....,..,....,......,.............,......,..,..,.." 24 15, Mortgagee Rights, ,.......,........,'..,..,.....,........,............,.............,......,............,.." 25 16, Notices.........,..,....,.....,..,..,..,........,..,..,..,..,..,.......,....,....................,......,..,....." 28 17, Severability,.....,..,..,....,..,..,..,..,..,.."........................,....",......",....,...........,....." 29 18, Time of Essence....,..,....,..,..,..,..,..,.........,....,..,..,....,......,......,...............,..,..,.." 29 19, Force Majeure/Enforced Delay; Extension Of Time Of Performance ..,..,........ 30 20 Waiver........,..,....,..,....................,..,..,..,..,..,..,..,......,...,.........,......,....,....,..,..,.., 30 21, No Third Party Beneficiaries............,..........................,....,............,.................. 30 22, Estoppel Certificates ,..,..,..,..,..,..,..,..,..,..,..,..,..,..,......,......,.............'.........,..,.., 30 23, Attorney's Fees ,..,.......,..,..'.."............................,.........,,'........,................,..,.., 31 24, Applicable Law ....,.......................,..,..,..,..,..,..,....,.........,.............,........,....,..,.., 31 25, Authority to Execute ,..,..,..,..,......,................,..,....,....,......,......,................,......, 31 26, Entire Agreement; Conflicts,..,.."..,..,................,.........,......,..................,....,..,.. 32 27, City Approvals and Actions ........,..,..,..,..,..,..,....,....,..,..............................,......32 28, Counterparts.., ....,.....,..,..,..,..,..,..,..,.....,...........,..,......... ....,......,.. ...., ....,..,..,..,,32 29, Exhibits.. ....,....,..,.......,..,..,..,..,.....,......,..,..,.......,..,....,.. ....,......,...........,....,..,..,,32 30,1 nterpretalion """,.""."""""""."."""""""""".".""",."""""""""""""""""""" 32 31, Copies of Existing Land Use Regulations and Existing Development Approvals.""",.""""""""."."."."""""".""""""""""."""""""""."""""".", 32 R VPUBVBALLlNGERI728683,2 Development Agreement This Development Agreement ("Agreement") is made in Los Angeles County, California as of , 2007, by and between the City of Arcadia, a municipal corporation and charter city (the "City"), and Santa Anita Associates, LLC, a Delaware limited liability company ("SAA") (a joint venture between Santa Anita Associates Holding Co" LLC, a California limited liability company ("Caruso") and Santa Anita Commercial Enterprise, Inc" a Delaware corporation ("SACE")) and The Santa Anita Companies, Inc" a California corporation ("Owner") (SAA and Owner are sometimes collectively referred to herein as the "Developer"), The City and the Developer shall be referred to singularly as a "Party" or collectively as the "Parties," Recitals, This Agreement is made with respect to the following facts and for the following purposes: A. The City is authorized, pursuant to its authority as a charter city over municipal affairs and pursuant to Government Code Sections 65864-65859,5 (the "Development Agreement Statute"), to enter into binding agreements with persons having a legal or equitable interest in real property located in the City for the development of such property in order to establish certainty in the development process, the City has adopted Resolution No, 6469 establishing policies for the consideration of development agreements under the Development Agreement Statute, the Parties hereto acknowledge that this Agreement has been considered and adopted in compliance with the Development Agreement Statute and Resolution No, 6469; B, Owner is the fee owner of an approximately 304-acre site located in the City, legally described in Exhibit "A" attached hereto and depicted in the diagram attached as Exhibit "B" (the "Entire Property"), Caruso is managed by an experienced developer of pedestrian-oriented retail centers and, as stated above, is the joint venture partner of SACE in SAA, SAA has an option to ground lease certain land (the "Property") pursuant to a ground lease ("Ground Lease") that is a part of the CE zoned (under the Specific Plan, defined below) portion of the Entire Property, Exercise of the option to Ground Lease is conditioned on the satisfaction or waiver of certain conditions, SAA will develop on the Property the Commercial Entertainment Center (defined below), The CE Zone, as depicted in the Specific Plan, is legally described in Exhibit "A-1" attached hereto and depicted in the diagram attached as Exhibit "B_1", C, The City has adopted the Santa Anita Park Specific Plan through the adoption of Ordinance No, (the "Specific Plan"), a comprehensive plan to guide the design and future development of certain portions of the Entire Property, which has been used historically as a horse racing facility known as the Santa Anita Racetrack, The Specific Plan provides for the development of the Property with a new commercial entertainment development including approximately 806,405 square feet (Gross Leasable Area as that term is used in the Specific Plan) of retail and commercial space, accompanying parking, as depicted in the Specific Plan, and the necessary infrastructure to serve such uses (collectively, the "Project," defined further below), as depicted on the site plan attached hereto as Exhibit "C" (the "Site Plan"); D, The constituent entities of Developer have a legal or equitable interest in their respective portions of the Entire Property in accordance with the Development Agreement Statute, SM desires to develop the Properly with a high-quality commercial, restaurant, entertainment and retail development project, and they require substantial long-term planning, comprehensive design, significant investment by Developer in public and private infrastructure, and an assurance of stable land use entitlements in order to maximize the potential for Developer to finance and develop it. Accordingly, consistent with the Development Agreement Statute and Resolution No, 6469, Developer has requested that City enter into this Agreement to provide certain assurances that the Project will be permitted to proceed in accordance with, and subject to, the provisions set forth herein and in City's Existing Land Use Regulations (defined below), City's Existing Development Approvals (defined below), and the Future Development Approvals (defined below) to be obtained by Developer, all as more particularly set forth herein; E. The City has determined that the Project is consistent with, and satisfies, the relevant provisions of the Arcadia Municipal Code and the Specific Plan, including the goals and objectives of the City's General Plan, as amended, City has determined that development of the Project will provide significant benefits to the community and that the Project promotes the public health, safety, and welfare for the following reasons, among others: (1) the Project ensures the comprehensive planning of a high quality Project within the Specific Plan area that will enhance the image and stature of the City; (2) the Project will provide a long-term source of employment opportunities for residents of the City and the surrounding region; (3) the Project will revitalize the Santa Anita Racetrack by incorporating development in a manner that is complementary and respectful of the Racetrack's important and historic role in the community; (4) the Project will preserve historic portions of the Santa Anita Racetrack grandstand and other historic structures by maintaining architectural compatibility; (5) the Project will preserve public visual accessibility of the existing Santa Anita Racetrack grandstand such that the grandstand remains recognizable from within the Specific Plan area and from select locations along Huntington Drive; (6) the Project will attract new visitors to the Santa Anita Racetrack and increase its visibility to the general public; R VPUB\JBALLlNGER\72B683,2 2 (7) the Project will establish a balance of land uses that benefits various segments of the community and creates a special place that blends the design heritage of the Santa Anita Racetrack into a new complex of uses and buildings; (8) the Project will offer both daytime and nighttime recreational and entertainment opportunities for the community in a safe and reasonably secure environment; (9) the Project will enhance the cultural fabric of the community by providing outdoor plazas, open space areas, as well as publicly accessible art work as articulated in the Specific Plan; (10) the Project will provide an expanded economic base for the City that maximizes property and sales tax revenue while balancing community design principles; (11) the Project will create a pedestrian-oriented open air commercial center with an emphasis on an open space network of landscaped pedestrian streets, sidewalks, paseos, promenades, and public space that will form an important gathering place for the Arcadia community; (12) the Project will ensure land use compatibility by creating a logical physical relationship to the adjacent Westfield Santa Anita mall, existing residential uses, and existing circulation infrastructure through vehicular and pedestrian links; (13) the Project will develop a unique open-air commercial entertainment center to attract retail uses; (14) the Project will utilize architectural design, lighting, signage, and landscape materials to give the Project a distinctive and pleasing appearance; (15) the Project will generate public tax revenues that can be utilized to provide police, fire, recreation and other essential and important public services to the community; and (16) the Project will put portions of the Entire Property to productive use consistent with the objectives of City's General Plan, In consideration for Developer's provision, in all material respects, of the foregoing public benefits, City has determined that it is appropriate to enter into this Agreement to provide assurances to Developer that the Project will be permitted to proceed in accordance with and subject to the provisions set forth herein and in City's Existing Land Use Regulations, City's Existing Development Approvals, and the Future Development Approvals to be obtained by Developer, all as more particularly set forth herein; R VPUBVBALLlNGERI728683,2 3 F, In connection with its approval of the Project, the Final Environmental Impact Report No, _ (the "Final Environmental Impact Report" or "FEIR") was prepared by the City and certified by the City Council on , 2007, The FEIR analyzed potential adverse environmental impacts of full buildout for the Project; G, The City Council has found that the provisions of the Agreement are consistent with the relevant provisions of the Arcadia Municipal Code, the City's General Plan, as amended, and the Specific Plan; H, All actions taken by City have been duly taken in accordance with all applicable legal requirements, including those of the California Environmental Quality Act, Public Resources Section 21000 et seq, ("CEQA"), and all other requirements for notice, public hearings, findings, votes and other procedural matters; I. On , 2007, the Planning Commission of the City of Arcadia conducted a duly noticed public hearing concerning this Agreement, thoroughly considered this Agreement, and recommended adoption thereof to the City Council; J, On ,2007, the City Council conducted a duly noticed public hearing concerning this Agreement, thoroughly considered this Agreement, introduced Ordinance No, _ approving this Agreement, and on ,2007, the City Council conducted a second reading of and adopted said Ordinance; NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants and agreements contained herein and other good and valuable consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows: 1, Definitions, Capitalized terms used in this Agreement shall have the meanings set forth below, or if not defined in this Section 1, shall have the meaning ascribed thereto when such terms are first used herein, Other initially capitalized terms not specifically defined in this Agreement shall have the same meaning as set forth in the Specific Plan, or, if not defined therein, in the Arcadia Municipal Code: (a) The terms "Development," "development" and "develop" mean the improvement of certain portions of the Entire Properly for the purposes of constructing and completing the structures, improvements and facilities comprising the Project as more particularly described in the Specific Plan, Existing Development Approvals, and Future Development Approvals including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Entire Properly; the construction, demolition, reconstruction and redevelopment of buildings and structures; and the installation of landscaping; (b) The term "Development Approvals" means all land use, planning, zoning and building permits and entitlements subject to approval or issuance by City in connection with Development of the Project, including, but not limited to: R VPUBIJ BALLlNGER\728683,2 4 parcel maps and/or lot line adjustments; subdivisions, tentative and final maps; conditional use permits, final development permits, architectural design reviews and approvals; variances; parking approvals and modifications; zoning changes; specific plan approvals or amendments; general plan approvals or amendments; substantial conformance and minor modification reviews and approvals under the Specific Plan; grading and building permits; demolition permits; and occupancy permits for buildings; (c) The term "Development Exaction(s)" means any requirement or precondition of City, whether or not in connection with or pursuant to any Land Use Regulations (defined below) or Development Approval, for the dedication of land, the construction of public improvements or public facilities, or the payment of Development Impact Fees; (d) The term "Development Impact Fees" 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 the City to an applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to a development project, including, but not limited to "Quimby Act" fees specified in Government Code section 66477 and capacity charges, as those terms are defined in Government Code section 66013; provided however, that the term Development Impact Fee does not include any of the following: (1) Filing or Processing Fees as defined herein; (2) fees or charges that are adopted and imposed by a public agency other than the City (even if collected by the City in connection with the Project); or (3) fees for water connections or fees for sewer connections, as those terms are defined in Government Code section 66013, (e) The term "Director" means the Director of the Development Services Department of the City of Arcadia; (f) The term "Existing Development Approvals" means all of the Development Approvals for the Project approved or issued prior to the Effective Date of this Agreement, and includes. without limitation, the following Development Approvals: (1) The General Plan of the City of Arcadia, as amended by Resolution No, -' (2) adopted by Ordinance No, The Specific Plan with Design and Sign Guidelines, as Q (3) Zone Change Ordinance No, _ for the Entire Property; (4) Ordinance No, _ approving this Agreement, and this Agreement; R VPUBIlBALLlNGER\728683,2 5 (5) The Final Environmental Impact Report, the Mitigation Monitoring and Reporting Program adopted therefor, and the environmental findings adopted therefor pursuant to City Council Resolution No, ; and (6) Architectural Design Review approval No, (g) The term "Existing Land Use Regulations" means all of City's Land Use Regulations (as defined in subsection (k) below) in effect as of the Effective Date of this Agreement, including, without limitation, the following: (1) The Arcadia General Plan, as amended by Resolution No, -' (2) The Specific Plan, as adopted by Ordinance No. (3) The City Charter of the City of Arcadia; and (4) The Arcadia Municipal Code, including the Zoning Code, (h) The term "Effective Date" means the date that Ordinance No, _ approving this Agreement becomes effective, (i) The term "Filing or Processing Fees" means those fees that are uniformly charged for all commercial projects in the City, which fees cover the administrative costs of, among other things, reviewing and analyzing permit applications and similar requests for ministerial and/or discretionary approvals, 0) The term "Future Development Approvals" means Development Approvals (other than the Existing Development Approvals), including any amendments or modifications thereto, required or requested subsequent to the Effective Date of this Agreement in connection with the Development of the Project and any portion of the Entire Property, (k) The term "Land Use Regulations" means all ordinances (including the Specific Plan), resolutions, codes (including the Arcadia Municipal Code, including the Zoning Code), rules, regulations and official written policies of City governing land use development, including, without limitation: the permitted use of land; the density or intensity of use; subdivision requirements; the maximum height and size of proposed buildings; Development Exactions; regulations regarding the rate, time or sequence of development; and the design standards applicable to the Development or any portion of the Entire Property, (I) The term "Municipal Code" means the Arcadia Municipal Code, R VPUBIJBALLlNGERI 728683,2 6 (m) The term "Project" means (i) the commercial entertainment development to be constructed on the Property consisting of up to 830,000 square feet, calculated in accordance with the provisions of the Specific Plan (Gross Leasable Area as that term is used in the Specific Plan), of retail and commercial space (including offices, cinemas and restaurants), and accompanying parking as permitted by the Specific Plan (the "Commercial Entertainment Center"), (ii) the development of the necessary infrastructure to serve such uses, all as more particularly described in the Specific Plan and the Existing Development Approvals, and as depicted on the attached Site Plan, 2, Bindina Effect: Chanae in Developer Composition, This Agreement, and all of the terms and conditions of this Agreement shall, to the extent permitted by law, constitute covenants that shall run with the land comprising the applicable portions of the Entire 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. Notwithstanding any provision of this Agreement to the contrary: (i) if prior to the expiration of the initial Term, the Ground Lease has not been fully executed by the Owner and SAA; or (ii) in the event that SAA is not the ground lessor under the Ground Lease prior to the grand opening of the Project (which shall be defined for purposes of this Section as the actual, lawful occupancy of at least fifty percent (50%) of the square footage of the Commercial Entertainment Center); or (iii) in the event that Caruso no longer is the manager of SAA; or (iv) in the event that SAA does not have an equitable or leasehold interest in the Property, then all vested rights granted under this Agreement as to the Commercial Entertainment Center component of the Project shall terminate, In order to enable the City to determine compliance with this Section 2, SAA, Caruso, SACE, and Owner hereby agree to provide written certifications, provided under penalty of perjury, necessary for the City to determine compliance or non-compliance with this Section 2, 3. Neaation of Aaencv, The Parties acknowledge that, in entering into and performing under this Agreement, each 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 Developer joint venturers, partners, agents of the other, or employer/employee, 4, Reserved Powers, Notwithstanding any provisions in this Agreement to the contrary, the City reserves the right through its Reserved Powers, as herein defined, to enact and apply to the development of the Project on certain portions of the Entire Property (or to deny or conditionally approve any Future Development Approval based on) the following laws, ordinances, regulations, and written official policies after the Effective Date (collectively, the "Reserved Powers"): (a) Filina or Processina Fees, Adjustments to existing Filing or Processing Fees, or new Filing or Processing Fees, by City to cover the direct, reasonable and actual costs of processing applications for Development Approvals or for monitoring compliance with any Development Approvals, Such Filing or Processing R VPUBIJBALLlNGER\728683,2 7 Fees shall be limited to those Filing Fees or Processing Fees that are imposed on all commercial projects within the City, and the City shall not impose any Filing or Processing Fee on the Project merely as a result of the fact that this Development Agreement has been entered into, (b) Procedural Reaulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure, applicable on a citywide basis, provided such regulations are consistent with and impose no greater requirements, economic burdens or time delays than the Existing Land Use Regulations, Existing Development Approvals and Future Development Approvals, (c) Enaineerina and Construction Standards, Provisions of building, engineering and construction standards and specifications applicable to comparable public and private improvements set forth in the California Building Standards Code in effect in the City at the time of the issuance of the building permit for a building or structure shall apply to the Entire Property and the Project, including without limitation the applicable provisions of the Uniform Building Code, Uniform Plumbing Code, Uniform Mechanical Code, National Electrical Code, and Uniform Fire Code, (d) Public Health and Safety, Regulations that City determines are necessary because the failure of the City to adopt such regulations would place the occupants of the applicable portion of the Entire Property, or the occupants of the City, or both, in a condition dangerous to their health or safety, or both" (e) Consistent Future Citv Ordinances. Resolutions and Reaulations. City ordinances, resolutions, regulations, and official policies governing development and building that are in furtherance of and not in conflict with this Agreement, the Existing Development Approvals, and the Existing Land Use Regulations and Future Development Approvals, (f) Consented to Ordinances. Resolutions and Reaulations, Any ordinances, resolutions, regulations, and official policies, not set forth in this Section 4, that are in conflict with the Project, provided Developer has given written consent to the application of such regulations to the Project. (g) Overridina State and Federal Laws and Reaulations, State and federal laws and regulations that are adopted or approved after the Effective Date of this Agreement that override or conflict with Developer's vested rights set forth in this Agreement ("Overriding Laws") shall apply to the Entire Property and/or the Project, together with any Mandatory Implementing Regulations, For purposes of this subparagraph (g), the term "Mandatory Implementing Regulation" shall mean any implementing City ordinance, resolution, regulation, or written official policy that is necessary to enable City to comply with any Overriding Law and that overrides or conflicts with Developer's vested rights set forth in this Agreement, but only if the failure R VPUBIJ BALLlNGER\ 728683,2 8 of the City to adopt and implement any such ordinance, resolution, regulation or written official policy will result In the City losing then existing sources of revenue, Conversely, the City shall not apply to the Project any "Optional Implementing Regulation", The term "Optional Implementing Regulation" shall mean any implementing City ordinance, resolution, regulation, or written official policy that is necessary to enable City to comply with any Overriding Law and that overrides or conflicts with Developer's vested rights set forth in this Agreement, which, if adopted, would result in the City receiving a source of revenue that the City had not received as of the date of adoption by the City of an Optional Implementing Regulation City may adopt any such Optional Implementing Regulation and apply any such Optional Implementing Regulation, but the City may not apply such Optional Implementing Regulation to the Project, or any part thereof, or to the Entire Property, or any part thereof, Developer does not waive its right to challenge or contest, at Developer's sole cost and expense and at no liability to the City, the validity of any such Overriding Law, Mandatory Implementing Regulation or Optional Implementing Regulation on its face or as applied to any portion of the Entire Property and/or the Project. In the event that any such Overriding Law (and/or any Mandatory Implementing Regulation undertaken pursuant thereto) prevents or precludes compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified or suspended only as may be necessary to comply with such Overriding Law or Mandatory Implementing Regulation and, subject to the provisions of the following paragraph, this Agreement shall remain in full force and effect to the extent that it is not inconsistent with such Overriding Law and its Mandatory Implementing Regulation and that performance of the remaining provisions of this Agreement would not be inconsistent with the intent and purposes of this Agreement. In the event any Mandatory Implementing Regulation is being considered by the City for adoption, City shall use good faith efforts to provide the Developer with written notice of such fact; provided however, that nothing contained in this sentence shall impose any monetary liability on the part of the City, its officials, officers, employees or agents, nor shall any SUbsequently adopted Mandatory Implementing Regulation be affected by the failure of the City to actually provide such notice, City and Developer shall thereafter meet and confer in good faith concerning (i) the Overriding Law and/or Mandatory Implementing Regulation and the City's application or application of the same to the Entire Property, or any part thereof and/or the Project, or any part thereof, and, (ii) modification of this Agreement, if and as necessary, to comply with such Overriding Law and/or Mandatory Implementing Regulation, If, however, in the opinion of Developer, the Overriding Law and/or Mandatory Implementing Regulation at issue is inconsistent with the intent or objectives of this Agreement, or renders the remaining provisions of this Agreement for the benefit of Developer impractical or less profitable to enjoy and/or enforce, Developer shall have the option of either referring the matter for resolution pursuant to the provisions of Section 13 below, or shall have the right to terminate this Agreement upon thirty (30) days' advanced written notice to City. City agrees to cooperate with Developer in resolving the conflict in a manner that minimizes any financial impact upon Developer and that preserves, to the maximum feasible extent possible, the intent and objectives of this Agreement. City shall, at City's sole cost and expense, process Developer's proposed changes to the Project as may be R VPUBVBA LLlNGER\72868J,2 9 necessary to comply with such Overriding Law and/or Mandatory Implementing Regulation and to process proposed Project changes in accordance with City procedures and findings, 5. Acknowledaements. Aareements and Assurances on the Part of the Developer, In order to effectuate the provisions of this Agreement, and in consideration for the City entering into this Agreement and obligating itself to carry out the covenants and conditions set forth herein, the Developer hereby agrees and acknowledges that: (a) Construction of the Proiect. Subject to the provisions of Section 7(c) below, from and after the Effective Date, each constituent entity of Developer, in accordance with its sound business judgment, agrees to work towards development of the portion of the Project applicable to it in accordance with the Existing Land Use Regulations, the Existing Development Approvals, and the Future Development Approvals to be obtained pursuant hereto, Not by way of limitation of the foregoing, in connection with development of the Project, constituent entity of each Developer shall, with respect to the applicable portion of the Project, subject to the provisions of this Agreement, comply, in all material respects, with all conditions contained in the Existing Development Approvals and all valid conditions consistent with this Agreement that City may impose on the Future Development Approvals, (b) Other Governmental Permits, Subject to the provisions of Section 7(c) below, Developer shall apply in a timely manner for such other permits and approvals as may be required from other governmental or quasi-governmental agencies having jurisdiction over the Project for the development of, or provision of services to, the Project. As specified in Section 6(f), City shall cooperate with Developer in its endeavors to obtain such permits and approvals, 6, Acknowledaements, Aareements and Assurances on the Part of the Citv. City hereby agrees that commencing on the Effective Date, and continuing during the entire remaining Term of this Agreement, Developer shall have the vested right to carry out and complete the Project in accordance with the express provisions of this Agreement, the Existing Land Use Regulations, the Existing Development Approvals and Future Development Approvals, and once the same have been obtained, the Future Development Approvals, In furtherance of such agreement and assurance, and pursuant to the authority and provisions set forth in the Development Agreement Statute, City further hereby agrees and acknowledges as follows: (a) General. The uses permitted on the applicable portions of the Entire Property hereunder, the density and intensity of development, the maximum height and size of buildings, and all other matters affecting land use and development of the Project shall be as set forth in the Specific Plan, the Existing Land Use Regulations, the Existing Development Approvals, and, once the same have been obtained, the Future Development Approvals, In addition, subject to the City'S Reserved Powers as set forth herein, Developer's applications for Future Development Approvals shall be R VPUB\JBALLlNGER\72868J,2 10 reviewed pursuant to the provisions of the City's Existing Land Use Regulations and the Existing Development Approvals, (b) Citv's Consideration and Aooroval of Recuested Chances in the Proiect. City acknowledges that Developer may in the future desire to change or modify the precise location, configuration, size and height of the proposed buildings and develop a mix of proposed uses after the Effective Date of this Agreement based upon more precise planning, changes in market demand, changes in development occurring in the vicinity, and similar factors. In such event, City shall cooperate with Developer to review and take final action on such requested changes in accordance with City's Existing Land Use Regulations, the Existing Development Approvals and Future Development Approvals, No change to the Project (including Substantially Conforming Changes under Section 7(a)) that is consistent with the Existing Land Use Regulations, the Existing Development Approvals and Future Development Approvals shall require an amendment of this Agreement and, in the event any change in the Project proposed by Developer is approved by the City, the references in this Agreement to the Project or applicable portion thereof shall be deemed to refer to the Project as so changed, In the event that any reduction by the Developer in the scale of the Project reduces the Gross Leasable Area of the Commercial Entertainment Center to less than Five Hundred Thousand (500,000) square feet, all vested rights under this Agreement shall automatically be deemed terminated, In addition, the Parties intend that if parcelization of the Entire Property, or any portion thereof, that is consistent with the development of the Project as contemplated under the Existing Development Approvals is, subsequent to the Effective Date of this Agreement, authorized and approved under the Subdivision Map Act and the Existing Land Use Regulations, no additional Development Exactions, beyond those contemplated by this Agreement, the Existing Development Approvals, the Existing Land Use Regulations and Future Development Approvals shall be imposed on any such parcelization, (c) Reservations and Dedication of Land for Public Purooses, Developer shall not be required to dedicate, convey, or transfer any interest in land or to construct or install public improvements or facilities in conjunction with the Project, whether on or off the Entire Property, except (i) as expressly provided for in the Existing Land Use Regulations, Existing Development Approvals or Future Development Approvals, or (ii) as expressly set forth in the provisions of this Agreement. If the scope of the Project is changed with the consent of the Developer in a manner that increases the Project's effect on the City's street, transit or utility facilities, in such case, any requirement for such additional dedication, conveyance, transfer, construction or installation shall be limited to that supported by a sufficient nexus and necessary to accommodate the Project change, Any necessary CEQA analysis shall be conducted to examine such incremental change, Developer shall also be entitled to credit and/or reimbursement for the reservation or dedication of land or the installation of public improvements, in accordance with any future written policy of the City concerning fee credits and/or reimbursements for the reservation or dedication of land and the installation of public improvements, Pursuant to Section 202 of Resolution 6469, the public improvements to be constructed and dedicated to the City in connection with the R VPUB\JBALLlNGERI 728683,2 II Project shall be those listed in Exhibit "F", and the amount of Development Impact Fees that shall be deemed satisfied by such construction and dedication shall be approximately the amount set forth in Exhibit "G", (d) Development Exactions, Except as otherwise expressly set forth in this Agreement and as authorized under the Existing Development Approvals, City shall not impose Development Exactions in conjunction with Developer's development of the Entire Property, or any part thereof or the Project, or any part thereof, excepting only those Development Exactions that are authorized by the Existing Development Approvals and Existing Land Use Regulations, A schedule of payment of Development Impact Fees applicable to the Project is attached hereto as Exhibit "D" and incorporated by reference herein, Pursuant to Section 202 of Resolution 6469, the amount of such Development Impact Fees shall not be increased, nor shall the City attempt to apply to the Entire Property, or any part thereof or the Project, or any part thereof, any new or different Development Impact Fees, during the first five (5) years following the full execution of this Agreement. Nothing contained in this Agreement shall affect the ability of the City to collect Development Impact Fees that have been adopted and imposed by a public agency other than the City, (e) Future Environmental Review, The potential environmental impacts of the Project were analyzed in the FEIR. Future Development Approvals will be reviewed in light of the FEIR to determine if any additional environmental documentation will be required, The determination will be made consistent with the applicable provisions of CEQA and the State and local CEQA Guidelines, (f) Other Governmental Permits. After City has approved the Project, City shall cooperate, at no direct cost to City, with Developer in its efforts to obtain such additional permits and approvals as may be required by any other governmental or quasi-governmental agencies having jurisdiction over such portion of the Project; provided permits and approvals are consistent with City's approval(s) and are consistent with this Agreement. City does not warrant or represent that any other governmental or quasi-governmental permits or approvals will be granted, (g) City Review of Applications for Future Development Approvals, All subsequent consideration by City of Developer's applications for Future Development ApprovalS for the Project shall be subject to the terms and conditions set forth in this Agreement. City shall not disapprove, condition, or delay the processing of any applications for any Future Development Approval for reasons inconsistent with the Existing Land Use Regulations, the Existing Development Approvals, or the express provisions of this Agreement. Upon satisfactory completion by Developer of all required preliminary actions and payments of then applicable Filing or Processing Fees, if any, City shall, in accordance with and subject to Existing Land Use Regulations, Existing Development Approvals, Future Development Approvals and all other legal requirements, initiate, process, and complete all required steps, and act upon any approvals and permits necessary for the development of the Project by Developer in as prompt and diligent a manner as it performs such actions for other development projects R VPUB\) BALLlNGER\728683,2 12 and in accordance with this Agreement, including, but not limited to, (i) the processing of applications for and issuing of all discretionary approvals requiring the exercise of judgment and deliberation by City, including without limitation, the Future Development Approvals; (ii) the holding of any required public hearings; and (iii) the processing of applications for and issuing of all ministerial approvals requiring the determination of conformance with the Existing Development Approvals, Existing Land Use Regulations and Future Development Approvals, If City is unable to process any of Developer's applications for Future Development Approvals in a timeframe acceptable to Developer, Developer shall provide written notice to City requesting aid in such processing, Upon Developer's written request, City shall engage qualified outside consultants reasonably acceptable to Developer to aid in such processing, provided that Developer shall be required to reimburse to City, within thirty (30) days of invoicing by City, all reasonable and direct charges to be incurred by City for such outside consultants, In this regard, Developer, in timely manner, will provide City with all documents, applications, plans and other information necessary for City to carry out its obligations hereunder and will cause Developer's planners, engineers, and all other consultants to submit in a timely manner all required materials and documents therefor, The Term of this Agreement shall be automatically extended for the time period commencing as of the receipt by City of Developer's written request for aid and ending on the date that such consultant actually begins work on the Project ("Processing Delay"), (h) Vested Riqhts to Future Development. After the date that City approves an application for a Future Development Approval, Developer shall have the vested right to develop pursuant to said Future Development Approval to the same extent that Developer has the vested right to develop pursuant to the Existing Development Approvals and the Existing Land Use Regulations, Upon City approval of Future Development Approvals they will automatically become part of the Existing Development Approvals, (i) Conflictinq Enactments, With the exception of those changes authorized by the Reserved Powers, any other change in the Existing Land Use Regulations or Existing Development Approvals, including, without limitation, any change in the General Plan, zoning, or subdivision law, adopted or becoming effective after the Effective Date, and adopted in any form by the City Council, the Planning Commission or any other board, commission or department of City, or any officer or employee thereof, or by the electorate (including, without limitation, by initiative or referendum), as the case may be, that would, absent this Agreement, otherwise be applicable to the Entire Property, or any part thereof, or the Project, or any part thereof, and that would either: (x) conflict in any way with the Existing Land Use Regulations or Existing Development Approvals (and, once issued, the future Development Approvals); or (y) be more restrictive, burdensome or costly to the Entire Property, or any part thereof or the Project, or any part thereof, than would be the case under the Existing Land Use Regulations and Existing Development Approvals (and, once issued, the Future Development Approvals) shall not be applied by City to any part of the Entire Property, or any part thereof or the Project, or any part thereof, In addition to the foregoing, unless provided for in the Existing Land Use Regulations or Existing R VPUB\JBALLlNGER\ 728683,2 13 Development Approvals or Future Development Approvals or except to the extent the Project is changed with the consent of the Developer thus necessitating any of the following, the following shall be considered in direct conflict with this Agreement: (a) Limits on Density and Intensity, Limiting or reducing the density or intensity of all or any part of the Project, inconsistent with the Specific Plan or this Agreement. (b) Location of Improvements, Limiting the location of or increasing or decreasing the size of buildings, or requiring grading, or other improvements for the Commercial Entertainment Center in a manner that is inconsistent with the Specific Plan or not required of other commercial projects in the City. (c) Discriminatory Application of Ordinances, Applying to the Project or the Entire Property any Land Use Regulations, or interpreting or enforcing any Land Use Regulation in a stricter or more demanding fashion than was theretofore applied anywhere else within City or in a manner that is not uniformly applied on a City-wide basis to all development projects or project sites in City, (d) Exactions. Imposing any Development Exaction, requirement, condition, or other restriction on the Project that is not expressly contained within this Agreement, any Existing Development Approval (including the Specific Plan), or Existing Land Use Regulations, The above list of actions is not intended to be comprehensive, but is illustrative of the types of actions that would conflict with this Agreement. Notwithstanding the foregoing, this Agreement shall not preclude the application to the Project of rules, regulations, ordinances and officially adopted plans and policies in conflict with the Existing Land Use Regulations, Development Approvals, Future Development Approvals or Existing Land Use Regulations where such additional rules, regulations, ordinances and officially adopted plans and policies are mutually agreed to in writing by Developer and the City in accordance with this Agreement. G) Permitted Conditions, Provided Developer's applications for any Future Development Approvals are consistent with the development of the Project under this Agreement, the Existing Land Use Regulations and Existing Development Approvals, City shall, subject to the Reserved Powers, grant the Future Development Approvals in accordance with the Existing Land Use Regulations, the Existing Development Approvals and this Agreement. City shall have the right to impose reasonable conditions in connection with Future Development Approvals provided, however, that such conditions shall not be inconsistent with this Agreement, the Existing Development Approvals or the Existing Land Use Regulations, or more restrictive, burdensome or costly to the Project than the Existing Land Use Regulations and R VPUBIlBALLlNGER\728683.2 14 Existing Development Approvals, or create delays for the development of the Entire Property, or any part thereof or the Project, or any part thereof" (k) Time Period of Tentative Maps, To the extent permitted by law, the term of (i) any tentative map, parcel map, vesting tentative map or vesting parcel map that may be approved for the Project, (ii) any amendment (or reconfiguration) of any such map (including any lot line adjustment or merger of lots within such a map), or (iii) any other map for any part of the Property filed prior to the termination of this Agreement, shall automatically be extended for the Term of this Agreement. 7, Acknowledoements. Aoreements, and Assurances on the Part of the Parties, In order to effectuate the provisions of this Agreement, and in consideration for the Parties entering this Agreement and obligating themselves to carry out the covenants and conditions set forth in Section 6 and Section 7 of this Agreement, the Parties hereby agree and acknowledge that: (a) Administrative Chanoes and Modifications, The Parties acknowledge that further planning and development of the Project may demonstrate that refinements and changes are appropriate with respect to the details and performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Project development and with respect to those items covered in general terms under this Agreement, the Existing Development Approvals, the Existing Lang Use Regulations, and, once issued, any Future Development Approvals, If and when the Parties find that "Substantially Conforming Changes," as herein defined, are necessary, desirable or appropriate, they shall, unless otherwise required by law, effectuate such changes or adjustments through administrative modifications executed by the Developer and the Director or his or her designee, As used herein, "Substantially Conforming Changes" are changes, modifications or adjustments that are those changes that are deemed to be in substantial conformance under the Specific Plan, Substantially Conforming Changes shall not be deemed to be an amendment to this Agreement and/or the Existing Development Approvals, and Substantially Conforming Changes shall not require prior notice or hearing by the Planning Commission or City Council. (b) Moratorium. Subject to the City's exercise of its Reserved Powers, no City-imposed moratorium or other limitation, relating to the rate, timing or sequencing of the development or construction of all or any part of the Project, whether imposed by ordinance, initiative, referendum, resolution, policy, order or otherwise, and whether enacted by the Council, an agency of City, the electorate, or affecting the rate, timing or sequencing of parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service approved, issued or granted within City, or portions of City, shall apply to the Project. (c) Timino of Development. Because the California Supreme Court held in Pardee Construction Co, v, Citv of Camarillo, 37 Cal.3d 465 (1984) that the failure of the parties to provide for the timing of development allowed a later-adopted R VPUBIlBALLlNGER\ 728683,2 15 initiative that restricted the timing of development to prevail over the parties' agreement, it is the intent of Developer and the City to cure any such deficiency by acknowledging and providing that Developer shall have the right (without the obligation) to develop the Project and the Entire Property in such order and at such rate and at such time as it deems appropriate within the exercise of its subjective business judgment. 8, Public Benefits. The Parties acknowledge that significant public benefits will be derived from the following covenants of Developer: (a) Develooment Aareement Fee, Notwithstanding any provIsion herein to the contrary, SAA shall pay to City a development agreement fee totaling Two Million Dollars ($2,000,000,00) payable in cash, cashier's check or otherwise immediately available funds, Such payment shall be made by SAA to City as a condition precedent to the issuance of the first building permit associated with the Project. (b) Well Site, Notwithstanding any provision herein to the contrary, and notwithstanding that the City has no current plans to develop a municipal water well on any portion of the Entire Property and merely desires to reserve the right to do so, Owner shall cause to be dedicated, in fee simple, to the City a municipal water well site of approximately Five Thousand (5,000) to Fifteen Thousand (15,000) (as determined by City, depending on whether water treatment capabilities are required) square feet, within an existing parking area and in such an area as to minimize any reduction in parking area, traffic impacts and in a location so as to not impact buildings proposed by the Project. The precise location of such well site shall be approved by Developer, in Developer's reasonable discretion, Such dedication shall be made by means of a recordable instrument, in a form approved by the City Attorney, Such instrument shall be delivered to City within thirty (30) days following Developer's receipt a written request for same by City, If the City ever determines to construct a municipal water well as provided above, any construction of a well on such well site shall be subject to compliance with CEQA, and the exterior design shall be consistent with the design guidelines of the Specific Plan, (c) Tenant Character and Qualitv. Notwithstanding any provision herein to the contrary, SAA covenants that, for the Term of this Agreement, the Commercial Entertainment Center shall meet the following criteria, The tenant mix shall be consistent with a first-class shopping center and shall include upscale tenants such as those tenants who occupy space at anyone or more of the following regional shopping centers: Newport Beach's Fashion Island, Costa Mesa's South Coast Plaza, the Grove adjacent to the Farmer's Market, and Glendale's Americana on Brand, 9, Coooeration and Imolementation, City and Developer agree that they will cooperate with one another to the fullest extent reasonable and feasible to implement this Agreement. Such cooperation shall include, but is not limited to, the following: R VPUB\J BA LLI NGER\ 728683.2 16 (a) Further Actions and Instruments, Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent necessary to implement 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, including estoppel certificates, and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. (b) Approvals. Reasonableness, Except when this Agreement specifically authorizes a Party to withhold its approval or consent in its sole and absolute discretion, when either City or Developer shall require the approval or consent of the other Party in fulfilling any covenant, provision, or condition set forth herein, such approval or consent shall not be unreasonably withheld, conditioned, or delayed by the Party from whom such approval or consent is sought. (c) Processina Durina Third Partv Litiaation, The filing of any third party lawsuit(s) against City and/or Developer relating to this Agreement, the Existing Development Approvals, Existing Land Use Approvals, Future Development Approvals, or to other Development Approvals affecting the Entire Property, or any part thereof or the Project, or any part thereof, shall not, unless agreed to by Developer, delay or stop the development, processing or construction of the Project, or any part thereof, or of the Entire Property, or any part thereof, the approval of the Future Development Approvals, or the issuance of ministerial approvals, unless the third party obtains a court order preventing the activity, City shall not stipulate to or fail to oppose the issuance of any such order. In the absence of such a court order, Developer shall have the right (without the obligation but at its sole risk) to develop the Project and the Entire Property in such order and at such rate and at such time as it deems appropriate within the exercise of its subjective business judgment, as provided for under Section 7(c), (d) Defense of Aareement and Development Approvals, In the event of any legal action instituted by a third party, including without limitation any other governmental entity or official, challenging the validity of this Agreement, any of the Existing Development Approvals, the Existing Land Use Regulations, or any Future Development Approval granted pursuant to this Agreement, or any element thereof or the proceedings, acts, or determinations taken, done or made prior to such matters, or the right of either Party to engage in the acts and transactions contemplated by this Agreement, upon the election of the Developer to defend against the lawsuit, the Parties agree to cooperate fully with each other in defending such action (including any actions reasonably requested to mitigate the impact of such action), Developer shall, at its sole cost and expense, indemnify, defend and hold harmless, the City, its officials, officers and employees for any damage or liability incurred by the same while acting within the scope of their official duties, as the result of the City's obligation hereunder to not stop the development, processing or construction of any portion of the Project, the approval of any Future Development Approvals, or the issuance of ministerial approvals, The City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate; provided however, that the City shall consult with Developer R VPUB\J BALLlNGER\728683,2 17 in the selection of such legal counsel. In the event of any such third party action or proceeding, Developer's counsel shall assume the lead counsel role in the defense of such action or proceeding, and the City's counsel shall assume a review and approval role, The lead counsel role shall include, without limitation, the following types of duties: gathering and organizing documents for the preparation of the administrative record, preparation of motions, briefs and other court pleadings, assuming the lead role in oral arguments and other court appearances, propounding and responding to any discovery requests if discovery is permitted pursuant to applicable law, The review and approval counsel role shall include, the following types of duties: reviewing and approving documents for the preparation of the administrative record, reviewing and approving motions, briefs and other court pleadings, attending (but not assuming the lead role in) oral arguments and other court appearances, reviewing and approving any discovery requests and responses to any discovery requests if discovery is permitted pursuant to applicable law, Developer shall be obligated to reimburse the City for only those reasonable legal fees and costs incurred in connection with the review and approvals of the City's counsel that are set forth in the immediately preceding sentence that are incurred in any such third party action or proceeding. To the extent this Section 9(d) is inconsistent with that certain reimbursement agreement entered into between the City and Caruso Management, Inc., dated June 15, 2005, the provisions of this Section 9(d) shall prevail. The duty of Developer to indemnify, defend and hold harmless the City shall not apply to the extent that any damage or liability is the result of the breach of this Agreement by, or the willful misconduct or gross negligence of, the City, its officials, officers or employees, In the event Developer chooses not to indemnify, defend and hold harmless (or any combination thereof) as required by this Section, the City, its officials, officers and employees shall be under no obligation to indemnify any party, defend any such action, or hold harmless any party, 10, Compliance: Default. (a) Periodic Review, The City shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by Developer with the terms of the Agreement. Developer shall submit an Annual Monitoring Report, in substantially the form attached hereto as Exhibit "E", within ten (10) days after written notice from the City Manager. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the actual reasonable and direct City costs of review of the Monitoring Report, (b) Special Review, A special review ("Special Review") of compliance with this Agreement may be made either by agreement of the Parties or by initiation in one or more of the following ways following the issuance of a Notice of Non- Compliance to Developer and an opportunity to cure any alleged breach pursuant to Section 10 0): (1) Recommendation of the Development Services Department staff: R VPUB\JBALLlNGER\ 728683,2 18 (2) Affirmative vote of at least three (3) members of the Planning Commission; or (3) Affirmative vote of at least three (3) members of the City Council. (c) Procedure. During either a periodic review or a special review, Developer shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on Developer. (d) Upon completion of a periodic review or a special review, the Director shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by Developer with the terms of this Agreement and his or her recommended finding on that issue, The Planning Commission shall consider such report at a public hearing. The City Manager or designee shall provide notice to Developer at least ten (10) days prior to the hearing by the Planning Commission, (e) If the Planning Commission finds and determines on the basis of substantial evidence that Developer has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded, (f) If the Planning Commission finds and determines on the basis of substantial evidence that Developer has not complied in good faith with the terms and conditions of this Agreement, the Commission shall state with reasonable specificity and particularity the nature of the Developer's default and the facts supporting such determination and the Commission may recommend to the City Council to modify or terminate this Agreement. Developer may appeal a Planning Commission determination pursuant to this Section 10(1') pursuant to City's procedural rules for consideration of appeals in zoning matters then in effect; provided however, that any substantive rules shall be pursuant to the Existing Land Use Regulations, (g) Proceedinqs Upon Modification or Termination, If, upon a finding under Section 10(1'), City determines to proceed with modification or termination of this Agreement, City shall give written notice to Developer and Mortgagee ( as defined in Section 15(b) and as provided in Section 15(d)) of its intention so to do, The notice shall be given at least ten (10) calendar days prior to the scheduled hearing and shall contain: (1) The time and place of the hearing; (2) A statement as to whether or not City proposes to terminate or to modify the Agreement; and, (3) Such other information that the City considers necessary to inform Developer of the nature of the proceeding, RVPUBIlBALLlNGERI728683,2 19 (h) Hearina on Modification or Termination, At the time and place set for the hearing on modification or termination pursuant to Section 10(g), Developer shall be given an opportunity to be heard and Developer shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on Developer, If the City Council finds, based upon substantial evidence, that Developer has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the City, The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094,5 of the Code of Civil Procedure. (i) Certificate of Aareement Compliance. If, at the conclusion of a Periodic or Special Review, Developer is found to be in compliance with this Agreement, City Manager or designee shall, upon request by Developer, issue a Certificate of Agreement Compliance ("Certificate") to Developer stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Director and City Council that: (1) this Agreement remains in effect; and (2) 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, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review, Developer may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or Developer, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Director or City Council. 0) Notice and Opportunitv to Cure for Breaches, If at any time either Party reasonably concludes that the other Party (i) has not acted in reasonable prima facie compliance with this Agreement, and (ii) is out of compliance with a specific material term or provision of this Agreement, then that Party may issue and deliver to the breaching Party a written Notice of Non-Compliance, detailing the specific reasons of non-compliance (including references to sections and provisions of this Agreement that have allegedly been breached) and a complete statement of all facts demonstrating such non-compliance, The Parties shall also meet with each other as appropriate to discuss any alleged non-compliance, A Party 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 anyone 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 Party receiving such Notice 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. (k) Termination of Development Aareement as to Breachina PartY, If Developer fails to timely cure any item(s) of non-compliance set forth in a written Notice of Non-Compliance issued pursuant to Section 100), then the City shall have the R VPUB\J BALLlNGER\ 728683,2 20 right, but not the obligation, to initiate proceedings under Resolution No, 6469 for the purpose of modifying or terminating this Agreement. Such proceedings shall be initiated by written notice to the Developer and Mortgagee, If the City determines to terminate this Agreement following a reasonable opportunity for the Developer to cure any non- performance, the City shall give Developer and Mortgagee 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 before the City Council on the issue, pursuant to Section 10U), At the noticed public hearing, Developer 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 a preponderance of evidence, that the Developer has not demonstrated compliance with any material term of this Agreement, and that Developer is out of material 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. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094,5 of the Code of Civil Procedure, 11, Amendment or Modification, Except for Substantially Conforming Changes as defined under Section 7(a), or a modification following proceedings instituted pursuant to Section 10 hereof, this Agreement may be amended or modified from time to time only with the written consent of Developer and the City or their successors and assigns, and only upon approval of an amendment by the City Council after a public hearing pursuant to Government Code Section 65868, 12, Term of Aqreement. This Agreement shall become operative on the Effective Date and the "Term" of this Agreement shall end five (5) years after the Effective Date, unless this Agreement is terminated, modified or the Term is extended upon mutual written consent of the Parties hereto or as otherwise provided by this Agreement. The initial five (5) year term of this Agreement may be extended by the Parties for an additional three (3) years provided that: (a) Developer provides at least 180 days written notice to City prior to expiration of the initial term; and (b) at or before the expiration of the Term, as such Term may be extended as provided for in Section 6(g) for the period of any City Processing Delay, and as specified in Section 19 by the number of days equal to the delay caused by any Enforced Delay, at least one (1) building permit has been issued for a building included within the Project; and (c) Developer is not then in uncured default under the Agreement. For purposes of clause (b), above, the Parties hereby agree that any decision by the City Council to not extend the Term shall be conclusively deemed "reasonable" if the first building permit has not yet been issued as of the expiration of the initial Term of this Agreement, subject to the provisions of the final sentence of this Section, No notice or public hearing need be conducted prior to any such extension. Following expiration or termination of the initial Term and any extension thereof, this Agreement shall be deemed terminated and of no further force and effect. The Term, including both the initial Term and any extension, shall be extended as provided for in Section 6(g) for the period of any City Processing RVPUBIlBALLlNGERI728683,2 21 Delay, and as specified in Section 19 by the number of days equal to the delay caused by any Enforced Delay, 13, Administration of Aqreement and Resolution of Disputes, (a) Administration of Disputes, Subject to Sections 10(h) and 10(k), all disputes involving the enforcement, interpretation, or administration of this Agreement (including, but not limited to, decisions by the City staff concerning this Agreement and the Project or other matters concerning this Agreement that are the subject hereof and also including the adoption of any Implementing Regulation) 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, the dispute shall then be heard and decided by the City Council within thirty (30) days following receipt of a written request by any Party therefor, Thereafter, any decision of the City Council that remains in dispute shall be appealed to, heard by, and finally resolved pursuant to the Alternative Dispute Resolution procedures set forth in Section 13(b) below, Nothing in this Agreement shall prevent or delay Developer or City frorn seeking a temporary or preliminary injunction in state or federal court if it believes that injunctive relief is necessary on a more immediate basis, (b) Alternative Dispute Resolution, After the provisions of Section 13(a) above have been complied with, subject to the provisions of the final sentence of Section 10(k), all disputes regarding the enforcement, interpretation, termination, modification or administration of this Agreement shall be heard and resolved pursuant to the alternative dispute resolution procedure set forth in this Section 13(b). All matters to be heard and resolved pursuant to this Section 13(b) shall be heard and finally resolved by a single arbitrator 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. This arbitrator shall be selected by mutual agreement of the Parties. In the event that the Parties are unable to agree upon the selection of an arbitrator within twenty (20) days following the expiration of the thirty (30) day time period for the City Council's action on the dispute in subsection (a) of this Section, then any Party may petition the Superior Court of Los Angeles County for the appointment of the arbitrator pursuant to the procedures specified in Code of Civil Procedure Section 1281,6, Upon appointment of the arbitrator, the matter shall be set for arbitration at a time not less than thirty (30) nor more than ninety (90) days from the effective date of the appointment of the arbitrator. The arbitration shall be conducted under the procedures set forth in Code of Civil Procedure Section 1280 et seq" or under such other procedures as are agreeable to both Parties, except that the provisions of the California Code of Civil Procedure pertaining to discovery and the provisions of the California Evidence Code shall be applicable to such proceeding and either Party shall have the right to appeal the final decision of the arbitrator, The cost of the arbitrator shall be borne by the non-prevailing party (as that term is used in the California Civil Code) as set forth in Section 23 of this Agreement concerning attorneys' fees and costs, RVPUBIJBALLlNGERI728683,2³ 22 (c) Iniunctive Relief, Any Party to the dispute may, in addition to any other rights or remedies provided by this Agreement, seek to enjoin any threatened or attempted violation hereof, seek a stay pursuant to the provisions of California Code of Civil Procedure Section 1094,5(g), or enforce by specific performance the obligations and rights of the Parties hereto, except as otherwise provided herein. (d) No Personal Liabilitv, No board member, councilmember, official or employee of the City shall be personally liable to Developer in the event of any default or breach by the City for any amount that may become due to Developer or on any obligations under the terms of this Agreement. No board member, partner, member, manager, officer or employee of the Developer shall be personally liable to City in the event of any default or breach by the Developer for any amount that may become due to City or on any obligations under the terms of this Agreement. (e) Monetary Damaaes Limited, It is acknowledged by the Parties that neither Party would have entered into this Agreement if it were to be liable in an unlimited amount of monetary damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the Parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement. Except as provided in this paragraph, neither Party shall be liable in damages to the other, or to any respective successor in interest of or to any other person, and both Parties covenants not to sue for damages or claim any damages: (1) For any breach of this Agreement or for any cause of action that arises out of this Agreement; or (2) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement (provided, however, that this provision shall not authorize any taking of property without payment of just compensation); or (3) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement; provided however, that the Parties may be liable to one another or their successors in interest, and the Parties may sue one another for damages, including attorneys fees and costs, of up to Two Million Dollars ($2,000,000), (f) Soecific Performance, The Parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all Parties for the following reasons: (1) Unlimited money damages are unavailable as provided above, R VPUB\JBALLlNGER\ 728683,2 23 (2) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Entire Property, or any portion thereof, to its natural condition once implementation of this Agreement has begun, After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Entire Property or portions thereof, Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money that would adequately compensate Developer for such efforts, 14, Transfers and Assiqnments, (a) Riqhts to Assiqn, Except as provided in Section 15(a), Developer may not assign or transfer its rights or obligations under this Agreement without the prior written consent of City, Notwithstanding the foregoing, Developer shall have the right to assign, transfer or otherwise convey its interests, rights or obligations hereunder: (i) in whole or in part, to an entity under common control with Caruso or its members; and (ii) in part, with respect to one or more building pads on the Property, to one or more subtenants for the purpose of constructing building(s) thereon in accordance with the Specific Plan, without approval or consent of the City, provided that Developer provides reasonable evidence thereof to City and gives thirty (30) days' prior written notice of the proposed transfer to the City Manager, and Developer provides City with notice of the name and address of the transferee within ten (10) days of the effective date of the transfer. A person or entity approved hereunder for a transfer of all or any part of the Developer's rights and obligations under this Agreement shall be known as a "Transferee", Upon the effective date of any sale, lease, sublease, or other transfer or assignment, the seller, lessor, sublessor, or other transferor or assignor automatically shall be released from any executory obligations to City hereunder with respect to the portion of the Entire Property sold, leased, subleased, transferred or assigned; provided, however, that unless City releases the seller, lessor, sublessor, or other transferor or assignor in writing, it shall remain responsible to City for performance of any obligations as to which it was in default as of the effective date of the transfer, (b) Liabilities Upon Transfer. Upon the delegation of all duties and obligations and the sale, lease, sublease, transfer or assignment of all or any portion of the Entire Property to a Transferee, Developer shall be released from its obligations under this Agreement with respect to the Entire Property or portion thereof so transferred arising subsequent to the effective date of such transfer if (1) Developer has provided to City thirty (30) days' prior written notice of such transfer and (2) the Transferee has agreed in a writing, the form and substance of which has been reasonably approved by the Director, to be subject to all of the provisions and obligations hereof applicable to the portion of the Entire Property so transferred, Upon any transfer of any portion of the Entire Property and the express assumption of Developer's obligations under this Agreement by such Transferee, the Transferee becomes a Party to this Agreement with respect only to the portion of the Entire R VPUB\JBALLlNGERI 728683,2 24 Property acquired by the Transferee, and 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 Entire Property acquired by such Transferee, Any such Transferee shall be entitled to the benefits of this Agreement and, except as otherwise provided in Section 15 below, shall be subject to the obligations of this Agreement, applicable to the parcel(s) transferred, Notwithstanding any provision in this Agreement expressly or impliedly to the contrary, no Transferee shall have the right to amend or modify this Agreement in any respect whatsoever with respect to that portion of the Entire Property that is not acquired by the Transferee, A default by any Transferee shall only affect that portion of the Entire Property owned, leased or subleased by such Transferee, Except as otherwise provided in Section 15 below, the Transferee shall be responsible for the reporting and annual review requirements relating to the portion of the Entire Property owned, leased or subleased by such Transferee, and any amendment to this Agreement between City and a Transferee shall only affect the portion of the Entire Property owned, leased or subleased by such Transferee, In the event that Developer retains its obligations under this Agreement with respect to the portion of the Entire Property transferred by Developer, the Transferee in such a transaction (a "Non-Assuming Transferee") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from all rights provided by this Agreement for the duration of the Term of this Agreement. Nothing in this Section shall exempt any Non-Assuming Transferee from payment of applicable fees and assessments or compliance with applicable permit conditions of approval or the Mitigation Monitoring and Reporting Program, 15. MortQaqee Riqhts, (a) Encumbrances on the Entire Prooertv, The Parties hereto agree that this Agreement shall not prevent or limit Developer, at Developer's sole and absolute discretion, from encumbering the Entire Property or any estate or interest therein, including the leasehold interest in the Ground Lease, or any portion thereof, or any improvement thereon, in any manner whatsoever by one or more mortgages, deeds of trust, sale and leaseback, or other form of secured financing ("Mortgage") with respect to the construction, development, use or operation of the Project and parts thereof, (b) Mortqaqee Protection, To the extent legally permissible, this Agreement shall be superior and senior to any lien placed upon any portion of the Entire Property, or any portion thereof, including the lien of any Mortgage, Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, Any acquisition or acceptance of title or any right or interest in or with respect to the Entire Property or any portion thereof, including the leasehold estate created by the Ground Lease, by the holder of a Mortgage (a "Mortgagee"), pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease or sublease termination or otherwise, shall be subject to all of the terms and conditions of this Agreement except that any such Mortgagee, including its affiliate and any purchaser at a foreclosure, trustee's sale or deed in lieu of R VPUBVBALLINGERI728683,2 25 foreclosure, lease or leaseback who takes title to the Entire Property or any portion thereof, including the leasehold estate created by the Ground Lease, shall be entitled to the benefits arising under this Agreement provided Mortgagee complies with Section 15(c) below, (c) Mortqaqee Not Obliqated, Notwithstanding the provisions of this Section 15, Mortgagee will not have any obligation or duty pursuant to the terms set forth in this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that the Mortgagee and its successor, including any purchaser at a foreclosure sale, shall have no vested right to develop the Project without fully complying with the terms of this Agreement and executing and delivering to City, in a form and with terms reasonably acceptable to City, an assumption agreement of Developer's obligations hereunder. (d) Request for Notice to Mortqaqe, The Mortgagee of any Mortgage encumbering the Entire Property, or any portion thereof, including the leasehold estate created by the Ground Lease, who has submitted a request in writing to City in the manner specified herein for giving notices shall be entitled to receive written notification from City of any Notice of Non-Compliance by Developer in the performance of Developer's obligations under this Agreement. (e) Mortqaqee's Time to Cure, If City timely receives a request from a Mortgagee requesting a copy of any Notice of Non-Compliance given to Developer under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the Notice of Non-Compliance to Developer. (f) Mortqaqee Riqhts and Obliqations, The Mortgagee of the Entire Property, or any portion thereof, shall, upon written request to City, be entitled to receive from City written notification of any default by Developer of the performance of Developer's obligations under the Agreement which has not been cured within thirty (30) days following the date of default, provided that the failure of City to provide such required notice shall not constitute a material breach of this Agreement nor shall it affect the status of such Developer default other than that the period of time for the Mortgagee's right to cure the default shall not begin to run until it receives such notice, (i) Riqht to Cure, Notwithstanding Developer's default, this Agreement shall not be terminated by City as to any Mortgagee to whom notice is actually given and to which either of the following is true: (a) The Mortgagee cures any default by Developer involving payment of money within ninety (90) days after Mortgagee's receipt of written notice of default; (b) As to defaults requiring title or possession of the Entire Property, or any portion thereof, to effectuate a cure: (a) the Mortgagee agrees in R VPUBIJBALLlNGERI 7286B3 ,2 26 writing, within ninety (90) days after receipt from City of the written notice of default, to perform the proportionate share of Developer's obligations under this Agreement allocable to that portion of the Entire Property in which the Mortgagee has an interest, conditioned upon such Mortgagee's acquisition of the Entire Property, or portion thereof, including the leasehold estate created by the Ground Lease, by foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback; (b) the Mortgagee commences proceedings to reacquire title to the Entire Property, or applicable portion thereof, including the leasehold estate created by the Ground Lease, within said ninety (90) days after receipt from City of the written notice of default and thereafter diligently pursues such proceedings to completion; and (c) the Mortgagee promptly and diligently cures such default after obtaining title or possession, Subject to the foregoing, in the event any Mortgagee records a notice of default as to its Mortgage, upon the Mortgagee's written request to assume Developer's obligations hereunder, City shall consent to the assignment of all of Developer's rights and obligations under this Agreement to the Mortgagee or to any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback, provided the Mortgagee or such purchaser executes and delivers to City an assumption agreement in a form and with terms reasonably acceptable to City, and Developer shall thereafter be released by City from liability hereunder with regard to the applicable portion of the Entire Property that is transferred in accordance with Section 14 above, Notwithstanding the foregoing, City shall not impose any terms on the Mortgagee or any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback which are inconsistent with the provisions of this Agreement. (ii) Extended Cure Period, Notwithstanding Section 15(f)(i) above, if any Mortgagee or any purchaser at a foreclosure, trustee's sale or deed In lieu of foreclosure, lease or leaseback is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings, including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction or any bankruptcy or insolvency proceeding involving Developer, the times specified in Section 15(f)(i) above for commencing or prosecuting foreclosure or other proceedings or curing any default by Developer, but not including the payment of money as provided in Section 15(f)(i)(a) above, shall be extended for the period of the prohibition, (iii) Superior Lien, The lien of any existing or future Mortgage recorded against all or any part of the Entire Property or interest therein, including the leasehold interest under the Ground Lease, shall be superior and senior to any lien created by this Agreement or the recordation thereof, At the request of any lender whose loan will be secured by a Mortgage on all or any portion of the Entire Property, including the leasehold estate created by the Ground Lease, City shall execute a subordination agreement, subordinating City's interest hereunder to the lien of such Mortgage, which subordination agreement shall be subject to the reasonable approval of City, Notwithstanding the foregoing: (i) at the option of the Mortgagee, any foreclosure of any such deed of trust shall not serve to extinguish or terminate this Agreement, provided that in no event shall any dedications or conveyances made by R VPUB\JBALLlNGER\ 728683,2 27 Developer to City be affected or reversed; and (ii) the lien of any real property bond or assessment shall be superior to the lien of any deed of trust and this Agreement. (iv) No Impairment of Lien. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any existing or future Mortgage on the Entire Property, or any portion thereof, including the leasehold estate created by the Ground Lease, made in good faith and for value. (v) Election to Assume Obliqations. Except as provided to the contrary in this Agreement, no Mortgagee or beneficiary shall have an obligation or duty under this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, and no Mortgagee shall be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title to the Entire Property or any portion thereof, including the leasehold estate created by the Ground Lease, and the execution of an assumption agreement as required by Section 15(c) above by such Mortgagee or their respective successors or assigns; except that to the extent any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. In the event a Mortgagee or any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback elects to develop all or any portion of the Entire Property in accordance with the Existing Development Approvals, Future Development Approvals, Existing Land Use Regulations, the Mortgagee or any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback shall be required to assume, in writing, and perform the obligations or other affirmative covenants of Developer under this Agreement pursuant to Section 15(c) above. (vi) Request to Modifv. City acknowledges that the lenders providing financing for the Project may require certain modifications to this Agreement and City agrees, upon request from time to time, to meet with Developer and/or representatives of such lenders to negotiate in good faith any such requirement for modification. City will not unreasonably withhold its consent to any such requested interpretation or modification, provided such interpretation or modification is consistent with the language, intent and purposes of this Agreement. To the extent that City Council action is required in order to lawfully adopt the requested modification to this Agreement, the City Council shall promptly and reasonably consider the request, without imposing any additional conditions or Development Exactions from Developer so long as such requested modification(s) do(es) not materially affect the terms of this Agreement. 16. Notice!!. All notices under this Agreement shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; (ii) on the date of delivery or refusal shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient R VPUB\JBALLlNGER\ 728683.2 28 named below; (iii) on the date of delivery or refusal, when delivered by Federal Express or other commercial express delivery services providing acknowledgements of receipt; or (iv) on the date of delivery when delivered by facsimile providing verification of delivery and receipt. Such notices or communications shall be given to the Parties and their respective counsel at their addresses set forth below: To City: With copies to: To Developer: With copy to: City of Arcadia 240 West Huntington Drive P.O. Box 60021 Arcadia, California 91066 Attention: City Manager FAX: (626) 446-5729 City Attorney, City of Arcadia 240 West Huntington Drive P.O. Box 60021 Arcadia, California 91066 Attention: Steve Deitsch, City Attorney FAX: (626) 574-5407 Caruso Affiliated 101 The Grove Drive Los Angeles, California 90036 Attention: Rick J. Caruso FAX: (323) 900-8101 Donfeld, Kelley & Rollman 11845 West Olympic Blvd, Suite 1245 Los Angeles, California 90064 Attention: Jeffrey Donfeld, Esq. FAX: (310) 312-8014 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. 17. Severabilitv. If any provision of this Agreement is determined by the final judgment of 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 that 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. 18. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. R VPUB\JBALLlNGERI 728683.2 29 19. Force Maieure/Enforced Delav: Extension Of Time Of Performance. In addition to specific provisions of this Agreement, performance by either Party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement, including the Term, shall be extended, and all elements thereof where delays or Defaults are due to: third party litigation (until a final, non-appealable judgment has been obtained), or referendum or initiative challenging the validity of this Agreement, the Existing Development Approvals, the Existing Land Use Regulations, any Future Development Approvals, or any element thereof or the proceedings, acts, or determinations taken, done or made prior to or related to such matters, or the right of either Party to engage in the acts and transactions contemplated by this Agreement; inability to secure necessary fuel, construction or labor materials, or tools; actions in connection with the remediation of hazardous materials, including groundwater and soil contamination; withdrawal of financing not caused by any act or omission of Developer; war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; building moratoria; unusually severe weather; acts, delays, or omissions of the other Party; acts or failures to act of the City or any other public or governmental agency or entity; or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform ("Enforced Delay"). The time for performance by a Party of its obligations under this Agreement under any Enforced Delay shall be extended by a number of days that is equal to the number of days that are caused by the delay, including the number of days it takes to repair or restore the damage or reposition idled contractors caused by any such Enforced Delay to the condition that existed prior to the occurrence of the Enforced Delay (the "Delay Period") provided that the Party asserting a Delay Period has notified the other Party, in writing, within thirty (30) calendar days following receipt of written notification by the Party of the Enforced Delay. In addition, the Term, as extended, of this Agreement as set forth in Section 12 of this Agreement shall be extended by any Delay Period. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the City and/or Developer. 20. Waive~. 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. 21. No Third Partv Beneficiaries. This Agreement and all of its terms, conditions, and provisions, is made and entered into for the sole protection and benefit of the Developer and the City (and their respective successors and assigns), and not for the benefit of any other individual or entity. No other person shall have any right of action of any kind based upon any provision of this Agreement nor be deemed to be a third party beneficiary under this Agreement. 22. Estoppel Certificates. Either Party hereunder may, at any time, deliver written notice to the other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended or modified, RVPUB\JBALLlNGERI728683.2 30 or if so amended, identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligations set forth in this Agreement or, if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within a reasonable time following the receipt thereof. Developer shall pay City's reasonable costs, including attorney fees, incurred in complying with this Section. 23. Attornevs' 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. 24. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any legal action or proceeding (other than any dispute heard pursuant to Section 13(b)) concerning this Agreement shall be filed and prosecuted in the appropriate California state court in the County of Los Angeles, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The Parties each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including, without implied limitation, federal district court, due to any diversity of citizenship between the parties, due to the fact that either or both of the Parties is a party to such action or proceeding or due to the fact that a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Parties each specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394. The Parties acknowledge that the provisions of this paragraph are material consideration to the Parties' entry into this Agreement, in that the Parties will avoid the potential cost, expense and inconvenience of litigating in a distant forum. 25. Authoritv to Execute. The persons executing this Agreement warrant and represent that they have the authority to execute this Agreement and represent that they have the authority to bind the Parties for which they are signing to the performance of the obligations hereunder. Developer represents and warrants to the City that it has the power and authority to execute this Agreement and, once executed, this Agreement shall be final, valid, binding and enforceable against Developer in accordance with its terms. The City represents and warrants to Developer that (a) 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; (b) this Agreement, once executed by the City, shall be final, valid, binding and enforceable against the City in accordance with its terms; and (c) this Agreement may not be amended, modified, changed or terminated in the future by the City except in accordance with the terms and conditions set forth herein. R VPUB\J BALLlNGERI 728683.2 31 26. Entire Aqreement: Conflicts. This Agreement, including all Exhibits attached hereto, represents the entire agreement of the Parties with respect to the subject matter of this Agreement and this Agreement supersedes all previous negotiations or 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 Existing Land Use Regulations, the Existing Development Approvals, or the Future Development Approvals, then the provisions of this Agreement shall prevail. 27. Citv Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by the City, the Director, or his or her designee is authorized to act on behalf of City unless specifically provided otherwise or the context should require otherwise. 28. Counterparts. This Agreement may be signed in multiple counterparts, which, when signed by all Parties, shall constitute a binding agreement. This Agreement is executed in _ (_) originals, each of which is deemed to be an original. 29. Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" - Legal Descriptions of Entire Property and CE Zone. Exhibit "B" - Maps of Entire Property and CE Zone. Exhibit "C" - Site Plan showing Development of the Project. Exhibit "D" - Schedule of Development Impact Fees. Exhibit "E" - Annual Monitoring Report. Exhibit "F" - Public Improvements to be Constructed and Dedicated Exhibit "G" - Development Impact Fee Satisfaction List 30. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. This Agreement shall be interpreted as though prepared jointly by both Parties. 31. Copies of Existinq Land Use Requlations and Existinq Development Approvals. Prior to the Effective Date, the Parties shall prepare two (2) sets of the Existing Land Use Regulations and Existing Development Approvals, one each for the R VPUB\JBALLlNGERI728683.2 32 City and Developer, so that if it becomes necessary in the future to refer to any of the Existing Land Use Regulations or Existing Development Approvals, there will be a common set available to the Parties. [signatures on next pages >>] R VPUB\JBALLlNGERI 728683.2 33 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. CITY CITY OF ARCADIA, CALIFORNIA By: William R. Kelly, City Manager Date: APPROVED AS TO FORM: By: Stephen P. Deitsch City Attorney ATTEST: By: City Clerk of the City of Arcadia R VPUB\J BALLlNGER\728683.2 DEVELOPER SAA Santa Anita Associates, LLC, a Delaware limited liability company By: CARUSO Santa Anita Associates Holding Co., LLC, a California limited liability company By: Print name: Rick J. Caruso Title: Manager Date: SACE Santa Anita Commercial Enterprise, Inc., a Delaware corporation By: Print name: Title: Date: By: Print name: Title: Date: OWNER The Santa Anita Companies, Inc., a California corporation By: Print name: Title: Date: By: Print Name: R VPUB\JBALLINGERI 728683.2 Date: Title: R VPUB\JBALLlNGERI 728683.2 EXHIBITS "A" AND "A-1 Legal Descriptions of Entire Property and CE Zone [attached as following page(s)] RVPUBIIBALLlNGERI72868l.2 EXHIBIT A . RACE TRACK PROPERTY ENTIRE PROPERTY LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THOSE PORTIONS OF LOTS 1 AND 5 OF TRACT 949, IN THE CITY OF ARCADIA, AS SHOWN ON MAP RECORDED IN BOOK 17 PAGE 13 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL MAP NO. 4626, AS SHOWN ON MAP FILED IN BOOK 51 PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A POINT ON THE NORTH LINE OF HUNTINGTON DRIVE, 195.00 FEET IN WIDTH; THENCE ALONG THE EASTERLY AND N~RTHEASTERL Y BOUNDARY OF SAID PARCEL MAP AS FOLLOWS: NORTH 3053'00" EAST 475.68 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 1200.00 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15031'48" AN ARC DISTANCE OF 325.26 FEET; THENCE TANGENT TO SAID CURVE NGlRTH 19024'48" EAST 534.43 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 350.00 FEET; THENCE NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 71022'48" AN ARC DISTANCE OF 436.03 FEET; THENCE TANGENT TO SAID CURVE NORTH 51058'00" WEST 873.36 FEET; THENCE CONTINUING ALONG SAID BOUNDARY OF PARCEL MAP NO. 4626 NORTH 66058'00" WEST 154.55 FEET AND NORTH 51058'00" WEST 437.83 FEET TO THE MOST NORTHERLY CORNER OF SAID PARCEL MAP, BEING A POINT ON THE SOUTHEASTERLY LINE OF BALDWIN AVENUE, 100.00 FEET IN WIDTH, THENCE NORTHEASTERLY ALONG SAID SOUTHEASTERLY LINE OF BALDWIN AVENUE, AS IT NOW EXISTS, TO THE INTERSECTION WITH THE WESTERL Y PROLONGATION OF THE SOUTHERLY BOUNDARY LINE OF TRACT 15318 AS SHOWN ON MAP RECORDED IN BOOK 427 PAGES 34 AND 35 OF SAID MAPS, SHOWN THEREON AS HAVING A BEARING OF NORTH 88057'33" EAST; THENCE NORTH 88057'33" EAST ALONG SAID SOUTHERLY BOUNDARY LINE TO THE ANGLE POINT IN THE SOUTHERLY LINE OF LOT 38 OF SAID TRACT 15318; THENCE CONTINUING ALONG THE BOUNDARY LINE OF SAID TRACT 15318, AND THE SOUTHERLY BOUNDARY LINE OF TRACT 14940 AS SHOWN ON MAP RECORDED IN BOOK 350 PAGES 48 TO 50 INCLUSIVE OF SAID MAPS, NORTH 68046'53" EAST 2265.62 FEET TO THE MOST EASTERLY CORNER OF LOT 81 OF SAID TRACT 14940, BEING A POINT ON THE SOUTHWESTERLY LINE OF COLORADO PLACE; THENCE SOUTH 30033'16" EAST 2171.20 FEET ALONG SAID SOUTHWEST LINE OF COLORADO PLACE, 80.00 FEET IN WIDTH, AS IT NOW EXISTS, TO THE BEGINNING OF TANGENT CURVE THEREIN, CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 756.78 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE 554.82 FEET TO THE INTERSECTION WITH THE CURVED NORTHWESTERLY LINE OF HUNTINGTON DRIVE, 80.00 FEET IN WIDTH, SAID CURVE BEING CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 995.37 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE 607.48 FEET; THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS, 2843.30 FEET TO THE BEGINNING OF A TANGENT CURVE THEREIN CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 915.20 FEET; THENCE SOUTHWESTERLY AND WESTERLY ALONG SAID CURVE 883.99 FEET; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS TO THE POINT OF BEGINNING. TOGETHER WITH PARCEL 4 OF PARCEL MAP NO. 4626, AS SHOWN ON MAP RECORDED IN BOOK 51, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING WITHIN PARCEL 1 OF PARCEL MAP NO. 15852, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 179 PAGES 93 AND 94 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM THOSE PORTIONS OF THE ABOVE DESCRIBED PARCEL LYING WITHIN PARCELS 3 AND 4 OF PARCEL MAP 'NO. 23862, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 261 PAGES 91 THROUGH 95 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. SAID PARCELS ARE SHOWN ON EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. ~..-3.'.O>- PATRICK R. MERCA 0, PLS, LS 6382 EXHIBIT A-1 COMMERCIAL ENTERTAINMENT ZONE PROPERTY LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THOSE PORTIONS OF LOTS 1 AND 5 OF TRACT 949, IN THE CITY OF ARCADIA, AS SHOWN ON MAP RECORDED IN BOOK 17 PAGE 13 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL MAP NO. 4626, AS SHOWN ON MAP FILED IN BOOK 51 PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A POINT ON THE NORTH LINE OF HUNTINGTON DRIVE, 195.00 FEET IN WIDTH; THENCE ALONG THE EASTERLY AND NORTHEASTERLY BOUNDARY OF SAID PARCEL MAP AS FOLLOWS: NORTH 3053'00" EAST 475.68 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 1200.00 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15031'48" AN ARC DISTANCE OF 325.26 FEET; THENCE TANGENT TO .SAID CURVE NORTH 19024'4B" EAST 534.43 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 350.00 FEET; THENCE NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 71022'48" AN ARC DISTANCE OF 436.03 FEET; THENCE TANGENT TO SAID CURVE NORTH 51058'00" WEST B73.36 FEET; THENCE CONTINUING ALONG SAID BOUNDARY OF PARCEL MAP NO. 4626 NORTH 66058'00" WEST 154.55 FEET; THENCE NORTH 53000'43" WEST 42.12 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 90.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NqRTH 53000'43" WEST, THENCE EASTERLY AND NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGl:.E OF 42009'04" AN ARC DISTANCE OF 66.21 FEET TO THE BEGINNING OF A REVERSING CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 169.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 30024'38" WEST, THENCE NORTHEASTERLY AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 84029'41" AN ARC DISTANCE OF 249.23 FEET; THENCE SOUTH 35054'57" EAST 134.95 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 481.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16040'55" AN ARC DISTANCE OF 140.05 FEET; THENCE TANGENT TO SAID CURVE SOUTH 52035'52" WEST 150.00 FEET; THENCE SOUTH 55013'59" EAST 142.20 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 300.00 FEET; THENCE SOUTHEASTERLY AND EASTERLY ALONG SAI D CURVE THROUGH A CENTRAL ANGLE OF 28038'52" AN ARC DISTANCE OF 150.00 FEET; THENCE TANGENT TO SAID CURVE SOUTH 83052'52" WEST 32.57 FEET; THENCE SOUTH 87"25'14" WEST 171.59 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 25.00 FEET; THENCE EASTERL Y AND NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 51007'50" AN ARC DISTANCE OF 22.31 FEET TO THE BEGINNING OF A REVERSING CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 115.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 48033'04" WEST, THENCE NORTHEASTERLY AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48024'24" AN ARC DISTANCE OF 97.16 FEET; THENCE SOUTH, 89051'19" WEST 6.06 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 50.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 85057'34" AN ARC DISTANCE OF 75.01 FEET; THENCE NORTH 03053'45" EAST 292.68 FEET; THENCE SOUTH 87047'13" EAST 653.26 FEET THENCE SOUTH 73009'27" EAST 583.47 FEET: THENCE NORTH 16050'33" EAST 38.22 FEET;; THENCE SOUTH 73009'27" EAST 36.78 FEET; THENCE NORTH 16050'33:~EA_ST UL5..H FEET; THENCE SOUTH 73009'27" EAST 521.61 FEET; THENCE SOUTH 52027'43" EAST 424.98 FEET TO THE NORTHWESTERLY LINE OF HUNTINGTON DRIVE 80.00 FEET WIDE; THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS, 1,831.93 FEET TO THE BEGINNING OF A TANGENT CURVE THEREIN CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 915.20 FEET; THENCE SOUTHWESTERLY AND WESTERLY ALONG SAI D CURVE 883.99 FEET; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS TO THE POINT OF BEGINNING. TOGETHER WITH PARCEL 4 OF PARCEL MAP NO. 4626, AS SHOWN ON MAP RECORDED IN BOOK 51, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING WITHIN PARCEL 1 OF PARCEL MAP NO. 15852, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 179 PAGES 93 AND 94 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM THOSE PORTIONS OF THE ABOVE DESCRIBED PARCEL LYING WITHIN PARCELS 3 AND 4 OF PARCEL MAP NO. 23862, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 261 PAGES 91 THROUGH 95 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. SAID PARCELS ARE SHOWN ON EXHIBIT "B-1" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. ~~".7.07 PATRICK R. MERCADO, PLS, LS 6382 R VPUBIlBALLINGERI728683.2 EXHIBITS "B" AND "B-1" Maps of Entire Property and CE Zone [attached as following page(s)] ""'"'~t. U.J1ll'a.~. urn'.elK ::::,:: __..,~.,:, I'D! ....'U,..... -~-:a ..-_...... ",...-... ...-:~-,.;.,...,"1". .....1\\ ", ~v~a.~II:....:...<......l1"': '\f.o.~...... .vf)l'''::?{' ~::~ ""-.... - , ~_-.:,..~ nu- . -J'''' .........11 En.. t.'lIIT '~I ~ t"ll~ '" ~;;;t- ' \ 0":..'1< . ~o_ \ ~ ~~3:'" IS \ --:,.-J-qJ' diE \ '?"'..t ~f( >. , '\> '<:'~"1'('... ~ ./ "~'b "'t-~... .' .' J-' . ~""~" .~<a~/,.>-. ~~./.?:--.. C' '~../... ~, 0' 1..1tS........ oa:.UCl'" :: ~~I.~..~ / ~'~".ii !' // , , /II"; ~f~; ~/! ~"d /,/ , , ~~l~"~ !1-...,:,.o:"..... ....'Srw ff'/ ~:s'-~ _1111 IOttI'OSl >t~I" f "'~.nrl""-" ~~:~"\ '\ I I '/lKOOIU. I_,M " 1lJTn.!t_'~" _____~-- \ ----.=- - ...c__.,... ----...:.._ \~.".. c....... 1<:..., ..~.tACOt- Y ~Jll'" CLS_ \ 0011I1. ::.DII;; \ ;''\.f\. "4''"; <}.,:t-~ -"'..."'b ',g".:o", ~ "'1.'..l!:M:l .nn.u:'....u.lJ rlr........ LOT 5 TR. NO. 949 8K. 17, PG. 13 fll...l,OG.It..l" a:tlnltl"llll '.z.-! .....,Ie.. QIJ1IIIII'U1 P.,"- u.I ... I".q I'" J'[JI.....t.II&l IInl'lrt... JUt '..ll _KT....U/T .. ...-. ~ fD.rI'UJl:ZZJ---..: fD.l"'IIIIOC "",.,~ Tr.JI't".'~ 09"'1<11: UI .H-----:1 IlnnrT Ul ..",../ ..~(j .AIrtlll g.i;J ~...,. '?i".....n. ,,"" 'USJ = ......,...., '...J.I...... "!!ID'U.!!..IIJ ~~ ~ -. II ,:.: ~ . - " " " " '" lOT I lll. NO. Il<lll BK 17. PC. 13 '" SAN\.... ANITA. PARK EN~;~PROPERTY ..,,~ '" ~~~C' . , ";.>...b -=-::r "..~ ........ " .... "..,. ........, '" '" ~ SCAlE 1".. 500' '" YON CO". U l T I" G ~...-.~~..-:..:;;.~ I . i l , I I I EXHIBIT "B" I ENTIRE PROPERTY I SANTAANITARACETRACK -, ARCADIA, CALIFORNIA E8 SCAlE ,".30(]' CANYON COli' U L" N G ::~.......--.~_...._..~ ". '. /'''. , ' ,'r-, " /' /' / '-,/ ... ." ," .' '",,".(~.~ ........ ...,'"-' lME WlCtH II 10.00 l2 15Q.00 ..-, H8110"(}"1I 1f0'2-:(f17' ""~ " " " " ClJIM:T.I8..E lAOlJS O[LIA 2174.82" , 2!.1!. O"2Tocr J9,~ !"Ill)" l156g.11' OM' LEtlClti 71.1" JO. . X1.58" JO. . ! ! i , I f I I I EXHIBIT "B-1" 1 PROPERTY I COMMERCIAL ENTERTAINMENT ZONE " ARCADIA, CALIFORNIA RVPUB\JBA LLlNGER1728681.2 EXHIBIT "e" Site Plan [attached as following page(s)] EEl CANYON COli 11 U l TIN Ii ...........,;.I_.~-.......~"" SCAI....E 1.~300' ". ''-'':'', " '..-:..,/ ",.... .. " " ," lH( lAElI 1JI{ lINenl t1 10.00 U 150.00 .....,,, foI87'U1"43'. N02$ln """ " C2 CJ " C1Il'o{TA(l.( JI.lOlJS DUTA 1U' 1'1HJ- 392!lJ' O'2f1xi" !Ial9 I1ltroo" 1156911' OUU)' ""'~ " . Ja.ar JO.~' ,,' ! i i .. i I I EXHIBIT"B-1" i PROPERTY I COMMERCIAL ENTERTAINMENT ZONE ! ARCADIA. CALIFORNIA EXHIBIT "D" Schedule of Development Impact Fees The only Development Impact Fee that applies to the Project is the City's Traffic Impact Fee. The Traffic Impact Fee schedule is provided below: PM Peak Hour Land Use Trips Cost Per Unit General Retail 3.751 KSF $ 5.851 sa FT Restaurant 7.49/KSF $11.68/SaFT Fast Food Restaurant 17.321 KSF' $27.021 sa FT SUDermarket 7.32 1 KSF" $11.42/SaFT General Office 1.491 KSF $ 2.321 sa FT The Park and Recreation Facilities Fee only applies to residential projects and therefore is not applicable to this Project. The City has no other Development Impact Fees at the time of the Effective Date of this Agreement. R VPUB\J BALLI NGERI 728683.2 EXHIBIT "E" Annual Monitoring Report [attached as following page(s)] RVPUB\JBALLlNGERI728683.2 '-'.- - ~ (- . ;~~-'!:\~':'~::\!;::J<.l,> v. .~- -- 7' ...: ./ : ~ ;, ..! \:i '\ "~'. I lW ~~':.- . ..: -IM'''~'''.''.r. .. "':::~~;,~.i'Ji;r,~.~> . ,.,.. "'~-/ ", t),,1J "', . ./~\'~,~/ .~~~1.!.11 ~.~_~..... City of Arcadia Development Services Post Oflice Box 60021 Arcadia, CA 91006 Phone: (626) 574-5423 Fax: (626) 447-9173 Development Agreement Annual Monitoring Report PROJECT PROPONENT INFORMATION (prillt or type) Applicant's Primary Contact: Address: Telephone No.: (For staff use only) FileNo.: Related Files: Fax No.: Subminal Date: Rec'd By: Fee Paid: $ Applicant's Additional Contact (optional): Address: Telephone No.: Fax No.: DEVELOPMENT AGREEMENT INFORMATION Development Agreement No.: Date of Original Development Agreement: (Month, Day, Year) Name of PartyIParties (Other than City) Subject to the Development Agreement: Date of Last Review: (Month, Day, Year) DEVELOPMENT AGREEMENT STATUS PLEASE COMPLETE THE FOLLOWING QUESTIONS. ATTACH ADDITIONAL SHEETS IF NECESSARY. Has the Development Agreement been assigned to any other Party not listed above? If yes, who has the Development Agreement been assigned to and when did the assignment occur? R VPUB\JBALLlNGERI 72868l.2 Describe the current nature of proponent's project. The description should include a brief explanation of the size of the project, where the project is located, what the proponent. intends to build, how long it should take the proponent to complete development of the project, and any changes in the nature, type, scope, timing of the project. R VPUB\JBALLlNGERI728683.2 What development has occurred since the last review (either special or annual)? Include the entitlements that have been issued to date, including, discretionary entitlements, including architectural review, subdivisions, variances, etc., as well as ministerial permits, including, grading permits, building permits, certificates of occupancy that have been issued for the project. Include the percentage, if any, of the project that is completed and the percentage, if any, actually occupied. If any development has not occurred that was required or expected to occur, provide an explanation of why such development has not yet occurred. Please list all development exactions, dedications, development impact fees and public improvements that the developer has provided in connection with the project since the last review. Please describe any outstanding obligations of developer. Please provide a detailed explanation of why the proponent has not met an obligation and when total compliance is contemplated. If there are any impediments that have prevented the project proponent from complying with the terms of the Development Agreement, please explain. R VPUB\JBALLlNGER\728683.2 Please provide, in detail, any periods of delay in performance by developer that developer believes are subject to any force majeure/enforced delay provisions of the development agreement. This list shall be cumulative of all such force majeure/ enforced delays since the adoption of the development agreement. CERTIFICA TION I, , certify that I have used all reasonable diligence in preparing this report. I have reviewed all the information in the report and I certify that all information contained herein is true and correct. Date Signed (Month, Day, Year) Signature Additional Comments/ Notes by developer/applicant: R VPUB\JBALLlNGERI 728683.2 EXHIBIT "F" Public Improvements to be Constructed and Dedicated . Bus Stop Locations - Currently, the MTA has four bus stops near the perimeter of the project site, located at Huntington Drive and Baldwin Avenue, Huntington Drive and La Cadena Avenue, Huntington Drive and Holly Avenue and Huntington Drive West and Centennial Way. Relocation of existing bus stops and the provision of additional bus stops should be considered to accommodate transit users at convenient locations, including possible new stops that would be internal to the site. . Restripe/reconstruct eastbound off-ramp to provide one shared through-left lane and one exclusive left turn only lane and one right turn lane that could allow right turns. Free carry extra southbound lane along Baldwin Avenue to Gate 8. (Baldwin Avenue and 1-210 Eastbound Ramps [partially controlled by Caltrans]) . Restripe the westbound approach lanes to provide dual right turn lane and a shared through left turn lane (north bound right turn lane). Extend southbound left turn pocket 200 feet farther to the north to accommodate left turning queues. (Baldwin Avenue and Gate 8) Also, install fiber optic cable/conduit. . Restripe/reconstruct northbound approach to provide an exclusive right turn lane. Reconstruct to provide dual north and south bound left turn lanes. (Rosemead Boulevard and Huntington Drive [County of L.A.]) . Restripe/reconstruct to provide eastbound and westbound dual left turn lanes. (Baldwin Avenue and Duarte Road) Also, install video detection/CCTV camera and a traffic monitoring station. . Add a second northbound left turn lane northbound. (Baldwin Avenue and Huntington Drive) Also, install video detection/CCTV camera and a communications hub. . Restripe/reconstruct approach (between the two one-way legs of Huntington Drive and Campus Drive) to provide left lane, shared through left lane and an additional northbound through lane. Restripe/reconstruct westbound approach to provide an exclusive right turn lane. Reconstruct southbound at Gate 3 to provide three through lanes and an exclusive right turn lane. (Holly Avenue-Gate 3 and Huntington Drive) Also, install a video detection/CCTV camera and a traffic monitoring system. . Modify track parking entrance to Colorado Place, providing additional storage capacity, and route track ingress traffic to the north. Implement race-day traffic R VPUB\JBA LLlNG ERI 728683.2 control. Restripe/reconstruct westbound movement to provide additional third through lane on Huntington Drive to the southwest direction. (West Colorado Place and Huntington Drive) Also, install video detection/CCTV camera. . Widen northbound approach to provide one left turn lane, two through lanes, two right turn lanes. Restripe/reconstruct westbound approach to provide three through lanes. (Santa Clara Street and Huntington Drive) Also, install a communications hub. . Reconstruct to provide dual northbound and southbound left turn lanes. (Santa Anita Avenue and Huntington Drive) Also, install a communications hub. . Restripe/reconstruct to provide a northbound exclusive right turn lane. Restripe/reconstruct to provide dual left turn lanes eastbound, one through lane and one right turn lane, modify signal phasing. (Santa Anita Avenue and Santa Clara Street) Also, install a communications hub. . Install traffic signal. (Centennial Way and Huntington Drive West) Also, install fiber optic cable/conduit. . Install traffic signal. Also widen to provide northbound exclusive left turn lane in addition to existing three through lanes. (Centennial Way and Huntington Drive East) . Change northbound/southbound phasing to permitted phasing. Restripe/reconstruct NB and SB lanes to provide one left turn lane, one through lane and one shared through-right lane. Restripe northbound lanes to provide right turn only lane. (Sunset Boulevard and Huntington Drive). Also, install fiber optic cable/conduit. . Reconstruct to provide dual southbound'left turn lanes, and eastbound right turn only lane. (Santa Anita Avenue and Duarte Road) Also, install a video detection/CCTV camera and a traffic monitoring system. . Re-stripe/reconstruct to add dual left turn lanes to northbound, southbound, and westbound approaches. (Santa Anita Avenue and Foothill Boulevard) Also, install fiber optic cable/conduit, a video detection/CCTV camera, and a traffic monitoring station. . Restripe/reconstruct southbound approach to provide one left turn lane, one through lane and one shared through-right lane. (Michillinda Avenue and Colorado Street [partially controlled by County of L.A.]) . Restripe/reconstruct to provide northbound and southbound right turn only lanes. (Duarte Road at Rosemead Boulevard [County of LA]) R VPUB\JBALLlNGERI 728683.2 . Add overlap phase for northbound right turn. (San Gabriel Boulevard and Huntington Drive [County of LA and San Marino]) . Re-stripe/reconstruct to provide eastbound right-turn-only lane and eastbound dual-left-turn lanes. (Sierra Madre and Huntington Drive [San Marino]) . The Developer shall post a bond in the amount of $300,000 to fund potential neighborhood traffic improvements for the locations identified under Impacts 4.13-4 and 4.13-12 that may be subject to potentially significant neighborhood impacts. It is anticipated that this amount shall be sufficient to implement one or more of the following measures to make local routes less attractive to through traffic: turn restrictions, chokers or narrowing of street widths, diverters or semi-diverters, cul-de-sacs or street closures, stop signs or other measures approved by the Development Services Director. Further, it is anticipated that this amount shall be sufficient to implement one or more of the following parking restrictions in conjunction with the affected residents on the streets impacted by parking or traffic intrusion. These measures may include, but are not limited to, the following: 1. Posting of parking restrictions in the residential neighborhoods on these streets or other streets that might be affected (such as parking for 1 hour only on street or no parking at certain times) 2. Implementation of permit parking district(s) in the residential neighborhoods (allowing only residents or guests or both to park on street with a permit) The neighborhood traffic control program will include outreach to and participation by all affected residents, with affected residents voting on the program elements and with a required 60 percent approval. The approved program then would be submitted to the City's Traffic Advisory Committee and then to City Council for final approval. . Construction of sidewalk, handicapped ramps and concrete pads for pedestrians at bus stops along perimeter of property along Huntington Drive. . Construction of improvements in public right-of-way at Gate 8. R VPUB\J BALLING ERI 728683.2 EXHIBIT "G" Development Impact Fee Satisfaction List Developer is required to construct and dedicate certain public improvements as described in Exhibit F to this Development Agreement. Many of these improvements in Exhibit F pertain to traffic improvements. Pursuant to the City of Arcadia adopted Transportation Master Plan and Traffic Impact fee program, for Developer constructed traffic improvements listed in the Transportation Master Plan, Developer will receive a credit against the applicable Development Impact Fee based on the cost of these improvements. The actual amount of the Development Impact Fee to be satisfied is dependent on the ultimate size in square footage of the Project and the actual costs of the public improvements listed in the Transportation Master Plan that are constructed by Developer. R VPUB\JBALLlNGERI 728683.2 . ~- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ) ss. COUNTY OF LOS ANGELES ) On .2007 , before me, , D... Name And Title Of Oft"lC8r (e.g. 'Jane Doe, Notary PubliC") personally appeared , Name of Signer(l) D personally known to me - OR - 00 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Thou9h the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 Individual 0 Corporate Officer Title or Type of Document Title(s) Title or Type of Document 0 Partner(s) 0 Limited 0 General 0 Attorney-in-Fact Number Of Pages 0 Trustee(s) 0 Guardian/Conservator 0 Other: Date Of Document Signer is representing: Name or Person(s) Or Entity(ies) Signer(s) Other Than Named Above R VPUB\JBALLlNGERI 728683.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ) ss. COUNTY OF LOS ANGELES ) On ,2007 , before me, , Date Name And TIUe Of OffICer (e.g. . Jane Doe. Notary Public") personally appeared , NameofSigner(s) o personally known to me - OR - ~ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL ThoU9h the data below is not required by law, it may prove valuable to persons relyin9 on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 Individual 0 Corporate Officer Title or Type of Document Title(s) Title or Type of Document 0 Partner(s) 0 Limited 0 General 0 Attorney-in-Fact Number Of Pages 0 Trustee(s) 0 Guardian/Conservator 0 Other: Date Of Document Signer is representin9: Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above R VPUB\JBALLlNGERI 728683.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ) ss. COUNTY OF LOS ANGELES ) On .2007 , before me, , Deto Name And Tille Of Officer (e.g. "Jano Doe. Notary Public") personally appeared , Nama of Signer(!I) D personally known to me - OR - 00 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 Individual 0 Corporate Officer Title or Type of Document Title(s) Title or Type of Document 0 Partner(s) 0 Limited 0 General 0 Attorney-In-Fact Number Of Pages 0 Trustee(s) 0 Guardian/Conservator 0 Other: Date Of Document Signer is representing: Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above R VPUB\JBALLlNGERI 728683.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ) ss. COUNTY OF LOS ANGELES ) On .2007 , before me, , Dale Name And Title Of OffICer (e.g. "Jane Doe. Notary Publ~) personally appeared , Name of Signer{s) D personally known to me - OR - ~ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL ThoU9h the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 Individual 0 Corporate Officer Title or Type of Document Title(s) Title or Type of Document 0 Partner(s) 0 Limited 0 General 0 Attorney-in-Fact Number Of Pages 0 Trustee(s) 0 Guardian/Conservator 0 Other: Date Of Document Si9ner is representing: Name Of Person(s) Or Entity(ies) Signer(s) Other Than Named Above R VPUB\JBALLlNGERI72868l.2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ) ss. COUNTY OF LOS ANGELES ) On .2007 , before me, , Date Name And Till., Of OffICer (e.g. . Jano Doe, Notary Public") personally appeared , Name of Signer(s) o personally known to me - OR - ~ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 Individual 0 Corporate Officer Tille or Type of Document Title(s) Title or Type of Document 0 Partner(s) 0 Limited 0 General 0 Attorney-In-Fact Number Of Pages 0 Trustee(s) 0 Guardian/Conservator 0 Other: Date Of Document Si9ner is representing: Name Of Person(s) Or Entity(ies). Signer(s) Other Than Named Above R VPUB\JBALLlNGERI 728683.2 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Ordinance No. 2228 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 1 st day of May, 2007 and that said Ordinance was adopted by the following vote, to wit: AYES: Council Member Amundson, Chandler, Harbicht, Wuo and Segal NOES: None ABSENT: None City Clerk of the City of Arcadia 2228