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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
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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
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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
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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
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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
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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
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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.
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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]
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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,
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EXHIBIT" A"
Description of the Property
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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.
.
. - - - - - - - - - - . - -, . -. - .
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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,
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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.
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Draft EIR - Draft Environmental Impact Report prepared for the
Project under the California Environmental Quality Act.
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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
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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
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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.
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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
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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
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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
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.
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
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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.
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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-
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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)
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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;
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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
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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)
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EXHIBIT "C"
Development Agreement
[attached behind this page]
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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
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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
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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
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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
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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:
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(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
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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:
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(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,
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(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
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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
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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,
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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RVPUB\JBA LLlNGER1728681.2
EXHIBIT "e"
Site Plan
[attached as following page(s)]
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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
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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