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RESOLUTION NO. 5860
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ARCADIA APPROVING A CERTAIN DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BElWEEN THE
ARCADIA REDEVELOPMENT AGENCY AND ARCADIA
STEAK HOUSE, L.P. (OUTBACK STEAKHOUSE PROJECT)
WHEREAS, the Arcadia Redevelopment Agency (the "Agency" and the City
Council of the City of Arcadia (the "City") have by duly adopted ordinance approved
the Redevelopment Plan (the "Redevelopment Plan") for the Central Project Area (the
"Project"); and
WHEREAS, in order to implement the Redevelopment Plan. the Agency
proposes to sell pursuant to the terms and conditions set forth in that certain
Disposition and Development Agreement (the "DDA") by and between the Agency
and Arcadia Steakhouse, L.P. (the "Developer"), attached hereto as Exhibit "A",
certain real property as described in the DDA in the Project Area (the "Site"); and
WHEREAS, the Developer possesses the qualifications and financial resources
necessary to acquire and insure development of the Site in accordance with the
purposes and objectives of the Redevelopment Plan; and
WHEREAS, the Agency has caused the preparation of, and the City Council has
reviewed and considered a summary (the "Summary"), attached hereto as Exhibit "B",
setting forth the cost of the DDA to the Agency, the estimated value of the interest to
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be conveyed, and proposed purchase price, and has made the Summary available for
public inspection, all in accordance with Health and Safety Code Section 33433; and
WHEREAS, pursuant to provisions of the Health and Safety Code 33431 and
33433, the Agency and the City Council of the City of Arcadia have held a duly
noticed Joint Public Hearing on the proposed sale of the Site and the proposed DDA;
and
WHEREAS, the City Council has considered all terms of the proposed DDA and
has determined that the proposed sale and development of the Site pursuant to the
proposed DDA are in the best interests of the City and its residents and are in accord
with the purposes and provisions of applicable State and local law and the
Redevelopment Plan,
NOW, THEREFORE, THE ARCADIA CITY COUNCil OF THE CITY OF ARCADIA,
CALIFORNIA, DOES HEREBY RESOLVE AS FOllOWS:
SECTION 1. That the Summary attached hereto as Exhibit "B" is hereby
accepted and approved.
SECTION 2. That the consideration for the sale of the Site pursuant to the
DDA is determined to be fair reuse value.
SECTION 3. That pursuant to Exhibit "B", approval of the DDA will assist in
the elimination of blight in the Central Redevelopment Project Area.
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SECTION 4. That approval of the DDA is consistent with the Agency goals as
discussed in the Agency's Five Year Implementation Plan adopted by Resolution No.
ARA-175 on December 20, 1994.
SECTION 5. That the sale and proposed development of the Site are consistent
with the Redevelopment Plan.
SECTION 6. That the DDA attached hereto as Exhibit "A", is hereby approved
subject to minor modifications by the City Attorney.
SECTION 7. That the City Clerk of the City of Arcadia is hereby authorized and
directed to certify to the adoption of this Resolution
SECTION 8. This Resolution shall take effect upon adoption.
Passed, approved and adopt
ATTEST:
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APPROVED AS TO FORM:
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City Attorney
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STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS:
CITY OF ARCADIA )
I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certify that the
foregoing Resolution No. 5860 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 20th day of June, 1995, and that said Resolution
was adopted by the following vote, to wit:
AYES: Councilmember Chang, Kuhn, Young and Lojeski
NOES: None
ABSENT: None
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RECORDING,REQUESTED BY
AND WHEN RECORDED MAIL TO:
Arcadia Redevelopment Agency
240 West Huntington Drive
Arcadia, CA 91006
Attn: Executive Director
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement")
is entered into by and between the ARCADIA REDEVELOPMENT AGENCY, a
public body, corporate and politic ("Agency"), and ARCADIA
STEAKHOUSE, L.P., a California limited partnership, dba Outback
Steakhouse ("Developer").
This" Agreement is dated as of
for reference purposes only.
1995
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O..elopment $.....Ioe.
Economic Oevelepment Gi'.,:
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TABLE OF CONTENTS
Page(s)
ARTICLE I - SUBJECT OF AGREEMENT
1
section 1.0L Purposes of Agreement
Section 1.02. The Redevelopment Plan
Section 1.03. The Project Area.
Section 1.04. The site . . .
Section 1.05. Parties to the Agreement
1
1
1
1
2
Section 1.06. Prohibition Against Change in Ownership,
Management and Control of the Developer .... 2
Section 1.07. Franchise provisions and Right of
Developer To Assign This Agreement and Lease To
Franchisor . . . . . . 3
ARTICLE II - DISPOSITION OF SIT~ 4
Section 2.01. Lease and Disposition of Site
4
Section 2.02. Lease of site Prior to Developer's
Acquisition. .............
5
Section 2.03. Representations and Warranties
Regarding Ownership of site .....
Form of Deed
5
5
5
9
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. .. 9
11
Section 2.04.
section 2.05.
Section 2.06.
Section 2.07.
Section 2.08.
Section 2.09.
Section 2.10.
Documents
Consideration for Disposition of site
Escrow
Conveyance of Title
Condition of Title
Conditions for Close of Escrow
Time and Place for Delivery of
to Escrow . . . . . . . . . . .
12
Section 2.11.
Documents
Recordation of the Grant Deeds and Other
12
Section 2.12.
Title Insurance
12
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Section 2.13.
Taxes and Assessments . . . . . . . .
13
Section 2. 14 .
Approvals
Zoning of the site and Environmental
13
section 2.15.
Condition of the site .
13
section 2.16.,
Preliminary Work by the Developer
15
section 2.17. Submission of Evidence of Financing
commi tments . . . . . . . . . . . . . . . . .
15
section 2.18. Agency's Right to Drawings, Plans, Etc. 15
ARTICLE III - DEVELOPMENT OF THE SITE
16
section 3.01.
Development by Developer
16
section 3.02.
and r.iens
Taxes, Assessments, Encumbrances
. . . . . . . . eo . . . . . .
23
section 3.03.
Prohibition Against Transfer
Agency Subordination of Fee Interest
23
section 3.04.
24
section 3.05. Right of the Agency to Satisfy other
Liens on the Property . . . . . . . 25
section 3.06. certificate of Completion. .
26
section 3:07. Developer to Reimburse Agency for
Reduction of Property Tax Increment
27
ARTICLE IV - USE OF THE SITE
.
.
28
section 4.01. Uses
28
section 4.02. Maintenance of the site
28
section 4.03. obligation to Refrain from
Discrimination .........
. . . . . .
29
section 4.04. Form of Nondiscrimination and
Nonsegregation Clauses
29
section 4.05. Use Covenant
30
section 4.06. Effect and Duration of Covenants
31
ARTICLE V - DEFAULTS, REMEDIES AND TERMINATION
Section 5.01. Defaults - General
.
.
31
31
Section 5.02. Legal Actions.
32
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Section 5.03. Rights and Remedies are Cumulative
section 5.04. Notice of Default . . . . . . .
section 5.05. Remedies and Rights of Termination
section 5.06. Cross defaults
ARTICLE VI - GENERAL PROVISIONS . .
section 6.01. Notices, Demands and communications
Between the Parties . . . . . .
section 6.02. Conflict of Interest
section 6.03. Warranty Against Payment of
Consideration for Agreement . . . . .
section 6.04. Nonliability of Agency Officials
and Employees . . . . . . . . . . . . . . .
section 6.05. Enforced Delay; Extension of Time
of Performance . . . . ... . .
section 6.06. Inspection of Books and Records
section 6.07. Approvals.
. . .
section 6.08. Real Estate Commissions
section 6.09. Indemnification
Section 6.10. Attorneys' Fees
Section 6.11. Incorporation of Attachments
Section 6.12. Calendar Days; Section Headings
Section 6.13. Agreement Product of Mutual Drafting
Section 6,14. Binding on Successors and Assigns .
Section 6.15. Authority of Executive Director to
Execute Minor Amendments on Behalf of Agency
ARTICLE VII - ENTIRE AGREEMENT, WAIVERS AND AMENDMENT
Section 7.01. Entire Agreement
ARTICLE VIII - TIME FOR ACCEPTANCE OF AGREEMENT BY
BY AGENCY AND RECORDATION
Section 8.01. Execution.
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ARTICLE I
SUBJECT OF AGREEMENT
Section 1.01. Purposes of Aqreement. The purpose of
this Agreement is to further the Redevelopment Plan, as amended,
for the Southwest Corner Redevelopment Project by providing for the
lease, redevelopment and the acquisition by the Developer of
certain real property (the "Site") located within the area subject
to the Redevelopment Plan (the "Project Area"). The lease,
redevelopment and the purchase of the si te by the Developer
pursuant to this Agreement are in the best interests of the City of
Arcadia, California (the "city"), the Agency, and the health,
safety, and welfare of the city's residents. This Agreement
satisfies a public purpose and conforms to applicable federal,
state and local laws and requirements.
Section 1.02. The Redevelopment Plan and the Proiect.
The Redevelopment Plan was approved and adopted by the City Council
of the City of Arcadia by Ordinance No. 1490 dated December 26,
1973, as amended by Ordinance No. 1722 dated May 19, 1981, by
Ordinance 1847 adopted November 4, 19S6, and by Ordinance 2025
adopted November 1, 1994. This Agreement shall be subject to the
provisions of the Redevelopment Plan, as amended, which is
incorporated herein by this reference and made a part hereof as
though fully set forth herein. The uses and improvements to be
constructed on the site in accordance with the Scope of Development
attached hereto as Attachment 2 (the "Project") comply with the
terms and conditions of the Redevelopment Plan.
The Developer is required by this Agreement to lease,
develop and acquire the Site (described in Section 1.04Y). The
development plans for the site (as further described in this
Agreement and its attachments) shall constitute the "Project" and
the use of the term "Project" shall mean the planned development of
the site.
section 1.03 . The proi ect Area. The redevelopment
project area incorporated within the Redevelopment Plan (the
"Project Area") is located within the City, and the exact
boundaries of the Project Area are specifically described in the
Redevelopment Plan and in an instrument recorded on December 28,
1973 as Document No. 4927 of the Official records of Los Angeles
County of the State of California, which documents and instruments
are incorporated herein by reference and made a part hereof.
Section 1.04. The site. The site is legally described
in Attachment 1.
Y All further Section references shall be to Sections within
this Agreement unless otherwise stated.
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section 1.05. Parties to the Aareement.
(a) The Agency is a public body, corporate and politic,
exercising governmental functions and powers, and organized and
existing under Chapter 2 of the Community Redevelopment Law of the
State of california, Health and Safety Code section 33000, et sea.
The principal office of the Agency is located at 240 West
Huntington Drive, Arcadia, CA 91006, (818) 574-5400. As used in
this Agreement, the term "Agency" shall be deemed to include the
Agency and any assignee and/or successor to the Agency or to its
rights, powers and responsibilities under this Agreement.
(b) The Developer is Arcadia Steakhouse, L.P., a
California limited partnership, dba Outback Steakhouse. As used in
this Agreement, the term "Developer" shall be deemed to indicate
the Developer and any permitted assignee and/or successor to the
Developer as to its rights, powers and responsibilities under this
Agreement. The principal office of the Developer for purposes of
this Agreement is located at 13000 North Dale Mabry Highway, Tampa,
FL 33618, (813) 961-1040.
(c) For purposes of section 6.01, all notices, demands
or communications shall be sent to the above addresses. In
addition to the submission of notices, demands or communications to
the,parties as set forth above, copies of all notices, demands or
communications to any party shall also be sent to the following:
(if to the Agency)
Stephen P. Deitsch, Esq.
Best, Best & Krieger
800 N. Haven Ave., suite 120
ontario, CA 91761
I
T-Bird Restaurant Group
1250 Prospect Street, suite 305
La Jolla, California 92037
Attention: Chief Financial Officer
(if' to the Developer)
(d) The Agency and the Developer acknowledge and agree
that the city, is an intended third party beneficiary of this
Agreement. The city shall be entitled to all the rights and
remedies available to the Agency under this Agreement, but the City
shall not be bound by any of the obligations of the Agency
hereunder.
section 1.06. Prohibition Aaainst Chanae in Ownershio.
Manaaement and 'Control of the DeveloDer. The qualifications of the
Developer are of particular concern to the Agency. It is because
of these qualifications that the Agency has entered into this
Agreement with the Developer. No voluntary or involuntary assignee
or successor in interest of the Developer shall acquire any rights
or powers under this Agreement except as expressly set forth
herein.
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Except as otherwise provided in this section 1.06 or
section 3.04, the Developer shall not assign, without the prior
written approval of the Agency, which may be withheld in the
Agency's sole and absolute discretion, any of its rights or
obligations under this Agreement prior to the Developer's
acquisition of title to the site.
Notwithstanding the above, the Agency will allow the
assignment of this Agreement to a "Developer Affiliate." A
"Developer Affiliate" is a firm, partnership, corporation or other
legal entity (i) as to which the Developer is a Controlling Person
(defined hereinafter); (ii) which is a controlling Person as to the
Developer; or (iii) is the successor to Developer by merger or
other consolidation. A Controlling Person is a person or entity
that owns and controls more than fifty percent (50%) of all of a
person's or entity'S ("Subsidiary") voting shares, stock or other
indicia of ownership and voting rights such that the Controlling
Person, acting alone, may determine the outcome of any election,
resolution, decision or other proceeding taken by the Subsidiary,
to the extent requiring shareholder or ownership consent or
direction. The Agency may require the Controlling Person to
produce evidence satisfactory to the Agency that the Controlling
Person owns and controls more than a fifty percent (50%) ownership
and voting interest in the Subsidiary if, in the reasonable
exercise of its discretion, the Agency determines that it is
uncertain as to whether the controlling Person owns and controls a
greater than fifty percent (50%) ownership and voting interest in
such Subsidiary. The Agency may disapprove any assignation where
the Agency re:lsonably believes that the requirements of this
paragraph have not been met.
This Agreement may be terminated by the Agency if there
is any assignment of the Developer's interest in this Agreement
prior to the Developer'S acquisition of title to the site whether
voluntary or involuntary, that has not been approved in writing by
the Agency prior to the time of such sale, transfer, lease or
other assignment. The notice and cure provisions of Section 5.04
shall not apply to any Developer default under this Section 1.06.
Section 1.07. Franchise provisions and Riaht of
Develocer To Assian This Aareement and Lease To Franchisor. The
Agency acknowledges that Developer is also the Franchisee under a
franchise agreement ("Franchise Agreement") with Outback Steakhouse
of Florida, Inc., ("Franchisor").
(a) The Agency hereby agrees as follows:
(i) That the Agency shall allow the site to be
used only for the operation of an Outback Steakhouse, unless
otherwise approved in writing by Franchisor.
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. .. (ii) That the Agency consents to Developer's use
of such proprietary marks and signage as Franchisor may prescribe
for the restaurant, subject to the City's Municipal Code and other
lawful governmental regulation.
(Hi) That Developer may not sublease or assign all
or any part of its occupancy rights, or extend the term of or renew
the Lease (defined in section 2.02 below) except as provided in
this Agreement or the Lease, without Franchisor's prior written
consent.
(iv) That Franchisor shall have the right to enter
the site to make any modifications necessary to protect
Franchisor's proprietary marks or to cure any default under this
Agreement and the Lease or under the Franchise Agreement.
(v) That. the Developer's default under, or
termination of, the Franchise Agreement shall constitute a default
under this Agreement and the Lease.
'. (vi) That Franchisor shall have the option, but not
the obligation, to assume Developer's rights and obligations under
this Agreement and the Lease, and the right to sublease for the
remainder of the Lease term upon Developer's default under or
termination of this Agreement or the Lease or upon Developer's
default under or termination of the Franchise Agreement; provided,
however, that Franchisor, if it elects to exercise the option
described in this subparagraph (f), shall assume and faithfully
perform all of Developer's obligations under this Agreement and the
Lease.
(b) Notwithstanding anything in this Agreement to the
contrary, the Developer may assign all of its rights and
obligations under this Agreement and the Lease to the Franchisor
without the consent of the Agency; provided, however, that the
Developer shall provide thirty (30) days prior written notice of
its intent to assign; provided, further, that the Lease and this
Agreement must be assigned concurrently. Notwithstanding anything
in this Agreement to the contrary, the Franchisor may assign all of
its rights and obligations under this Agreement and the Lease to a
third party with the consent of the Agency, which shall not be
unreasonably withheld; provided, however, that the Franchisor shall
provide thirty (30) days prior written notice of its intent to
assign; provided, further, that the Lease and this Agreement must
be assigned concurrently. The assignment of this Agreement and the
Lease from the Developer to the Franchisor, or from the Franchisor
to a third party, as applicable, shall occur by means of contracts
or other documents reasonably acceptable to the Agency. At the
minimum, these contracts and documents shall provide that the
assignee. assumes liability for the performance of the Developer's
obligations under this Lease and the Agreement. The proposed
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contracts or other documents shall be provided to the Agency for
its review and reasonable approval when the Developer or Franchisor
(as applicable) provides the written notice of intent to assign as
described above.
ARTICLE II
DISPOSITION OF SITE
section 2.01. Lease and DisDosition of site. The Agency
hereby agrees to lease to and sell the site to the Developer, and
the Developer hereby agrees to lease from and acquire the Site from
the Agency, in accordance with the terms and conditions of this
Agreement.
section 2.02. Lease of site Prior to DeveloDer's
Acauisition. The Agency shall ground lease the Site to the
Developer , subject to the terms and provisions of that certain
ground lease ("Lease") attached hereto as Attachment 6 and this
Agreement. At the end of the Lease term as provided therein, the
Developer shall purchase the site from the Agency by means of the
escrow described in section 2.05, subject to the terms, conditions
and provisions of this Agreement. As more specifically set forth
in the Lease, rental payments for the term of the Lease shall be
the sum of Three Thousand Seven Hundred Fifty Dollars ($3,750) per
. month, payable as described in the Lease. Provided that Developer
has fulfilled all of its obligations under the Lease and this
Agreement and is not in default of either the Lease or this
Agreement, Three Thousand Three Hundred Thirty Three Dollars and
Thirty Three Cents ($3,333.33) of each rental payment shall be
credited towards the consideration due from the Developer for the
Developer's mandatory purchase of the site, as described in Section
2.04(ii); provided, however, that the maximum amount of credit to
which Developer may be entitled shall not in any event exceed the
sum of Two Hundred Thousand Dollars ($200,000).
The terms and provisions of this Agreement and the Lease
shall govern and control the Developer's possession and enjoyment
of the site .during the Lease term. In the event of any
inconsistency or conflict between the Lease and this Agreement, the
document imposing the greater obligation or imposing the more
stringent requirement shall control.
section 2.03. ReDresentations and Warranties Reaardina
OwnershiD of site. The Agency represents and warrants that it is
the owner of the site. The Developer represents and warrants that
it has the legal authority to lease and acquire the Site and to
perform all other acts required of the Developer under this
Agreement.
Section 2.04. Consideration for DisDosition of site.
The consideration to be furnished by the Developer to the Agency
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for the Agency's conveyance of title to the site to the Developer
("Purchase Price") shall consist of the following:
(i) A credit from Lease payments made as described in
section 2.02 avove, not to exceed the sum of Two Hundred Thousand
Dollars ($200,000) under any circumstances; and
(ii) A cash payment representing the difference between
Six Hundred Thousand Dollars ($600,000) and the amount of credit
determined pursuant to subsection (i) above.
Section 2.05. Escrow. The escrow instructions set forth
in sections 2.05 through 2.12 shall apply to the purchase and
conveyance of the site. The escrow shall be closed when all
conditions precedent to the close of the escrow as set forth in
this Agreement have been satisfied, including those set forth in
section 2.09.
(a) The Agency and the Developer agree to open an escrow
("Escrow") with First American Title Company of Los Angeles or
other escrow agent mutually agreed upon by the parties (the "Escrow
Agent") within the time set forth in the Schedule of Performance.
Title insuranca will be issued by First American Title Company of
Los Angeles or other title company mutually agreed upon by the
parties (the "Title Company"). The title insurance policies shall
insure that upon the close of the Escrow, the Developer owns fee
title to the Site, subject to only those exceptions expressly
permi tted under this Agreement or otherwise approved by the
Developer. If. the Title Company sets forth requirements for the
issuance of a title insurance policy applicable to the site other
than those requirements specifically set forth in this Agreement,
and such requirements are unacceptable to the Developer in its
reasonable discretion, then the Developer will have the right to
select another qualified licensed reputable title insurance company
and all times for performance of actions thereafter shall
automatically be extended for sixty (60). days. sections 2.05
through 2.12 .of this Agreement constitute the joint escrow
instructions of the Agency and the Developer. A duplicate original
of this Agreement shall be delivered to the Escrow Agent upon the
opening of the Escrow.
(b) :The Agency shall deliver to the Escrow Agent the
grant deed for the site. The grant deed shall be substantially in
the form attached hereto as Attachment 4. The Escrow Agent shall
record the grant deed in accordance with these escrow instructions,
provided that title to the site can be vested in the Developer in
accordance with the terms and provisions of this Agreement. Any
insurance policies pertaining to the site shall not be transferred.
(c) The Agency and the Developer shall provide and
execute such additional escrow instructions consistent with this
Agreement as shall be necessary. The Agency and the Developer
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shall deliver to the Escrow Agent all documents necessary for the
conveyance of title to the site in conformity with, within the
times, and in the manner provided in this Agreement.
(d) The Developer shall pay to the Escrow Agent the
following fees, charges and costs promptly after the Escrow Agent
has notified the Developer of the amount of such fees, charges and
costs:
1. One-half of the Escrow fee; and
2. The costs of recording all of the documents
required for the conveyance of the site; and
3. Pro rated ad valorem taxes, possessory
interest taxes and assessments, fees or
charges, if any, upon the site applicable to
any period prior to the conveyance of title
which are due and payable as of the close of
Escrow.
4. The difference in cost between an ALTA title
policy and a CLTA title policy if the
Developer desires an ALTA policy as provided
in section 2.12 hereof.
(f) The Agency shall pay to the Escrow Agent the
following fees, charges and costs promptly after the Escrow Agent
has notified the Agency of the amount of such fees, charges and
costs:
1. Costs necessary to place title to the site in
the condition for conveyance required by the
provisions of this Agreement; and
2. One-half of the Escrow fee; and
3.
The title insurance premium for an
Owner's title insurance policy for the
as set forth in Section 2.12(i); and
CLTA
site,
4. Any state, county or city documentary stamps
or transfer taxes applicable to the conveyance
of the site.
(g) The Escrow Agent is authorized to:
1. Pay and charge the Agency and the Developer
for any fees, charges and costs payable under
this Section 2.05. Before the close of the
Escrow, the Escrow Agent shall notify the
Agency and the Developer of the estimated
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amount of all the fees, charges and costs
necessary to clear title and close the Escrow;
and
2. Disburse funds and deliver the other documents
which are not to be recorded to the parties
entitled thereto when the conditions of the
Escrow have been fulfilled by the Agency and
the Developer. Such funds shall not be
disbursed and delivered by the Escrow Agent
unless and until the Escrow Agent has recorded
all documents required to be recorded as
conditions for the close of escrow, as set
forth in section' 2.09, including the grant
deed to the Site, and is prepared to deliver
.to the Developer a title insurance policy
insuring title and conforming to the
requirements of sections 2.08 and 2.12;
All funds received in the Escrow shall be deposited by
the Escrow Agent in an insured account with any state or national
bank doing business in the state of california, and such funds may
be combined with other escrow funds of the Escrow Agent. Such
funds may be transferred to any other such general escrow account
or accounts. Such funds shall draw the highest reasonable rate of
interest and l'luch interest shall accrue to the party to this
Agreement who shall have made the deposit thereof with the Escrow
Agent. Neither party shall be required to deposit funds until all
other conditions to closing are satisfied. Such funds of Developer
may be provided through the lender's escrow.
(h) If the Escrow is not in condition to close on or
before the time for conveyance of' title to the site established in
the Schedule of performance, subject to any and all extensions
authorized by this Agreement, either party who then shall have
fully performed the acts to be performed before the conveyance may,
in writing, demand the return of its money, papers or documents
from the Escrow Agent and/or the termination of this Agreement
under section 5.05(a) or (b), as applicable. No demand for return
of such money, papers or documents shall be recognized until ten
(10) days after the Escrow Agent shall have mailed copies of such
demand to the other party or parties by certified mail at the
address of its principal place of business as set forth in section
1.05. Objections, if any, must be raised by written notice
submitted to the Escrow Agent and to the other party within said
ten (10) day period, in which event the Escrow Agent shall hold all
money, papers and documents with respect to the site until further
instructed by a mutual agreement of the parties or, upon failure of
the parties to agree, by order or decree of a court of competent
jurisdiction; provided, however, such documents, money and papers
shall be returned upon termination of this Agreement pursuant to
sections 5.05(a) or 5.05(b) without the requirement of the
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.
foregoing procedures. If no demands are made, the Escrow shall be
closed as otherwise provided herein.
(j) Any amendment to these escrow instructions shall be
in writing and signed by both the Agency and the Developer. The
Escrow Agent shall agree to carry out its duties as Escrow Agent
under any amendment at the time of the execution of any amendment.
(k) All communications from the Escrow Agent to the
Agency or the Developer shall be directed to the respective parties
at the addresses set forth in section 1.05 for notices, demands and
communications between the Agency and the Developer.
section 2.06. Convevance of Title. Subject to
satisfaction or waiver of the conditions set forth in Section 2.09
and elsewhere in this Agreement or the Lease, conveyance of title
to the site shall be completed on or prior to the date specified
for the close of the Escrow in the Schedule of Performance.
Notwithstanding anything else in this Agreement to the contrary,
the date set forth in the Schedule of Performance for the close of
Escrow may not (except as set forth immediately below) be extended
for any reason whatsoever including, without limitation, for any
reason set forth in Section 6.05 hereof. The Agency shall have the
right, in its sole and exclusive discretion, to grant extensions of
time for the close of Escrow, but any such extension shall be valid
only if approved in writing by the Agency. The Developer acknow-
ledges that any extensions of time for the closing. of Escrow may
result in the necessity for an extension of the term of the Lease.
The Agency agrees, that should it consent to the extension of time
for the closing of Escrow, it shall also consent to a corresponding
extension of the term of the Lease; provided, however, that
Developer shall pay, without right of offset, deduction or credit
against the Purchase Price, the sum of $125 per day as rental
during the extended term of the Lease. Developer further acknow-
ledges and agrees that should Agency elect not to extend the date
of closing of' the Escrow, then Developer's right to continued
possession of the site and its improvements shall terminate,. and
Developer shall surrender possession of the site and the improve-
ments thereon to the Agency in accordance with the Lease. .
The Agency and the Developer agree to perform all acts
necessary for conveyance of title to the site in sufficient time
for title to be conveyed in accordance with the foregoing provi-
sions. The Developer shall accept title of the site on the date
established therefor in this section 2.06.
The Escrow shall be deemed to be in a condition to close
at such time as the Agency can deliver and convey to the Developer
title to the Site, subject to satisfaction or waiver of the condi-
tions set forth in Section 2.09, and otherwise in accordance with
the provisions of this Agreement.
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Section 2.07. Form of Deed. The Agency shall convey to
the Developer title to the site by a grant deed substantially in
the form attached hereto as Attachment 4.
section 2.08. Condition of Title.
.
The Agency shall convey to the Developer merchantable and
insurable titl~ to the site free and clear of all recorded liens,
encumbrances, easements, public rights-of-way, assessments, leases,
taxes, conditions, restrictions and other defects, except for the
following ("Permitted Exceptions"):
1.
Those preliminary
contained in that
dated
Attachment 7; and
title report exceptions
preliminary title report
attached hereto as
,
2. Those matters which are set forth elsewhere in
this Agreement or included in the form of the
site grant deed attached hereto as Attachment
4; and
3 . Those matters and exceptions not created by
the Agency or the city arising after the date
of the preliminary title report identified in
paragraph 1 above.
Title to the site shall be subject to the exclusion
therefrom (to the extent now or hereafter validly excepted and
reserved by the parties named in existing deeds, leases and other
documents of record) of all oil, gas, hydrocarbon substances and
minerals of every kind and character lying more than five hundred
(500) feet below the surface for any purposes incidental to the
exploration for and production of oil, gas, hydrocarbon substances
or minerals from the site but without, however, any right to use
the surface of the site or any portion thereof within five hundred
(500) feet of the surface for any purpose whatsoever.
An updated preliminary title report shall be obtained
from the Title Company prior to the close of Escrow within the time
set forth therefor in the Schedule of Performance. The Developer
shall notify the Agency in writing of any objections to title
within fifteen (15) days after receipt of the updated preliminary
title report; provided, however, that Developer may not object to
any Permitted. Exception or to any exception which does not
unreasonably interfere with Developer's enjoyment and use of the
Site. If no valid objections are made, title should be deemed to
have been irrevocably approved. If Developer objects to any
exception of the preliminary title report as allowed and within the
time provided above, then:
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(i) if the objection is based upon an exception created
by or as a result of any action or inaction of the Agency, then the
Agency shall, at its sole cost and expense, either remove or cause
the removal of the exception or obtain a title policy endorsement
insuring title against the exception. All times for the
performance of acts hereunder shall be extended by the length of
time necessary to take and complete the above-referenced actions,
not to exceed sixty (60) days; or
(ii) If the objection is based upon an exception created
by or as a result of any action or inaction of the Developer, then
the Developer shall, at its sole cost and expense, either remove,
or cause the removal of, the exception or obtain a title policy
endorsement insuring title against the exception. If the Developer
cannot remove the exception or obtain a title endorsement within
sixty (60) days following its receipt of the updated preliminary
title report, then the Developer shall accept title to the site
subject to the exception. All times for the performances of acts
hereunder shali be extended by the length of time necessary to take
and complete the above-referenced actions, not to exceed sixty (60)
days.
section 2.09. Conditions for Close of Escrow.
(a) The Developer's obligation 'to accept title to the
site and the close of the Escrow shall be expressly conditioned
upon prior satisfaction by the Agency or waiver by the Developer of
each of the following:
1. The Agency shall have deposited into escrow
the grant deed for conveyance of the Site,
substantially in the form and substance of
Attachment 4; and
2. The Agency shall have deposited all sums
required to be deposited by it into the Escrow
pursuant to this Agreement; and
3. The Title Company shall have agreed to issue a
title insurance policy for the site in the
form required by Section 2.12.
(b) The Agency's obligation to convey the site to the
Developer and the close of the Escrow shall be expressly
conditioned upon satisfaction by the Developer or waiver by the
Agency of each-of the following:
1. The Developer shall have deposited into Escrow
all sums required to be deposited by it into
the Escrow pursuant to this Agreement; and
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2. The Developer shall have deposited into Escrow
the cash portion of the consideration for the
site described in Section 2.04(ii); and
3. The Developer shall be entitled to the credit
toward the Purchase Price described in
sections 2.02 and 2.04(i); and
4. The Lease shall not have been terminated by
the Agency as a result of an uncured material
breach thereof by the Developer; and
5.
The Developer shall
have been deemed
condi tion of title
2.08.
have approved, or shall
to have approved, the
as described in Section
6. Developer, at its sole cost and expense, shall
have merged the separate lots comprising the
site into a single parcel pursuant to the
applicable provisions of the California
Subdivision Map Act.
The Developer shall take all actions necessary to satisfy
conditions numbers 1,' 2, 5 and 6 above. Developer will be in
material breach and default of this Agreement and the Lease if
Developer fails to satisfy the above-mentioned conditions to
closing within the time set forth and in the manner provided in
this Agreement and Schedule of Performance.
section 2.10. Time and Place for Deliverv of Documents
to Escrow. Subject to any mutually agreed upon written extensions
of time or any extensions otherwise authorized by this Agreement,
the parties shall deposit with the Escrow Agent promptly at such
time as such documents have been fully prepared and executed, but
in no event later than five (5) days before the date established
for the close of Escrow, all documents to be executed by such party
and which are required in order for the Escrow to close.
section 2.11. Recordation of the Grant Deeds and Other
Documents. When the parties have deposited into the Escrow all
documents and funds required by this Agreement, and all conditions
for the close of the Escrow set forth in Section 2.09 have been
satisfied, the Escrow Agent shall promptly file for recordation
among the land records in the Office of the County Recorder for Los
Angeles County the grant deeds to the site in the form set forth as
Attachment 4. The Escrow Agent shall thereafter promptly provide
a copy of the r~corded documents to both parties and shall promptly
deliver to the Developer or Agency, as appropriate, the title
insurance policies in conformity with Sections 2.08 and 2.12.
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section 2.12. Ti tle Insurance. The Title Company shall,
conclirrently with recordation of the grant deed to the Site or
promptly thereafter, provide and deliver to the Developer an
Owner's CLTA'policy of title insurance issued by the Title Company
insuring that fee simple title to the Site is vested in the
Developer in the condition required by section 2.08 of this
Agreement. The title insurance policy shall be in the amount of
the purchase price of the site as described in section 2.04. The
Agency shall pay the title insurance premium for the title
insurance policy described in this section 2.12.
The Developer may request endorsements to the title
policy set forth above and it shall bear the full cost for each
such endorsement it requests. The 'Developer may request and
obtain, at its sole cost and liability, an ALTA title insurance
policy for the site. The Agency shall pay only for a CLTA policy.
section 2.13. Taxes and Assessments. All ad valorem and
possessory interest taxes and assessments and fees, if any, on the
site levied, assessed or imposed and which have accrued prior to
conveyance of title to the Site shall be borne by the Developer as
part of its obligations under the Lease. All ad valorem taxes and
assessments, if any, levied or imposed upon the site or which
accrue after the conveyance of the site shall be borne by the
Developer. All ad valorem taxes and assessments, if any, upon this
Agreement or any rights hereunder levied, assessed or imposed at
any time shall be borne by the Developer. The foregoing
obligations shall survive the closing of the Escrow and the
Developer shall indemnify the Agency for any liabilities incurred
by the Agency arising out of the Developer's breach of this section
2.13.
section 2.14. Zonina of the site and Environmental
Aoorovals. The Agency represents that, to the best of the Agency's
actual current knowledge, the Redevelopment Plan, the city's
General Plan, and the city's zoning ordinances permit the
contemplated development, construction and operation of the Site in
accordance with this Agreement, subject to the Developer obtaining
any and all conditional use permits, modifications or variances,
including those conditional use permits, modifications or variances
which may be necessary for height, parking, setbacks, landscaping,
signs and all other matters pursuant to the City's zoning
ordinances. The Developer shall apply for all necessary permits
and pay all fees applicable to the Project. Notwithstanding any
provision to the contrary herein, the Project shall meet all
parking and landscaping requirements set forth in the city's zoning
ordinances except insofar as the City, in its sole discretion, may
approve a modification or variance therefrom.
section 2.15. Condition of the site. The Site shall be
conveyed by the Agency to the Developer in an "As-Is" condition
with no warranty or liability, except as otherwise provided herein,
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express or implied on the part of the Agency as to the condition of
the soil, its geology or the presence of known or unknown faults or
defects.
It shall be the responsibility of the Developer, solely
at the Developer's expense, to investigate and determine' the soils,
environmental and seismic conditions of the site and its
suitability for the Project. It shall be the responsibility of the
Developer, solely at the Developer's cost, expense and liability,
to perform all work necessary to prepare the Site for development.
The Agency agrees that the Developer may enter upon the site and
conduct such tests, sampling and investigation as the Developer
determines are reasonably necessary to satisfy the Developer that
the soils, environmental and seismic conditions of the site are
suitable for the Project. All such sampling, testing and investi-
gation must be completed within thirty (30) days from the date of
the Agency's execution of this Agreement. If, within said thirty
(30) day period, the Developer discovers a soils, environmental or
seismic condition which the Developer reasonably concludes makes
the site unsuitable for development of the Project, then the
Developer may, at its option, either (i) terminate this Agreement
and the Lease in their entirety without ,cost, liability or obliga-
tion on behalf of either the Agency or the Developer, or (ii) take
whatever actions are reasonable and necessary, subject to the
Agency's right of reasonable review and approval, to remediate,
repair or otherwise put the site in the condition suitable for
development of the Project, all' at the Developer's sole cost,
expense and liability.
Developer acknowledges and expressly agrees that its
right to terminate this Agreement and the Lease for the reasons set
forth in the immediately preceding paragraph must be exercised by
written notice to the Agency delivered no more than thirty (30)
calendar days following the Agency's execution of this Agreement.
If Developer fails to provide notice of termination within said
thirty (30) day period, then Developer shall, at its sole cost,
expense and liability, take whatever actions are reasonable and
necessary, subject to the Agency's right of reasonable review and
approval, to place the soils of the site in a condition suitable
for development of the project.
All testing, sampling, investigation and remediation work
performed upon the site must be performed by reputable, licensed
contractors including, without limitation, licensed civil engin-
eers, registered environmental assessors and the like. Immediately
after written demand therefor by the Agency, the Developer shall
provide the Agency with copies of all reports, test results,
evaluations and other documents prepared by or for the Developer
pursuant to this section 2.15, without cost, expense or liability
to the Agency.' The Developer shall include a provision in all of
its contracts with such third party contractors that the Agency
shall be 'entitled to receive, upon written demand therefor, copies
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of all tests, inspections, reports, studies and the like relating
to the soils, environmental or seismic conditions of the Site,
without cost, expense or liability to the Agency. The Developer
shall include provisions to this effect in all of its contracts
with its subcontractors for work relative to the soils, environ-
mental and seismic conditions of the site.
The failure of the Develop'er to object to the soils,
environmental or seismic conditions of the site within the time
provided for above, shall be conclusively presumed to indicate the
Developer's receipt, review and approval of all soils reports,
environmental reports and all other reports referred to in this
section 2.15.
The Agency represents that to the best of the Agency's
actual current knowledge, there are no pending actions in eminent
domain or other litigation or proposed amendments to the City's
zoning ordinances or General Plan concerning or affecting the title
to the Site or the use of the site. The Agency represents that
there are no other agreements with any other developer or devel-
opers which have been entered into by the Agency or the City with
regard to the! development of the Site which are currently in
effect. .
The Developer may have access to all data in the posses-
sion of the Agency concerning the physical condition of the site.
section 2.16. preliminarv Work bv the Develooer. Prior
to the Developer obtaining possession of the site pursuant to the
Lease, representatives of the Developer may enter the site at
reasonable times for the purpose of obtaining data and making
surveys and tests necessary for the development of the Project.
The Developer shall defend, indemnify and hold the Agency and the
City, and their officers, employees and agents, harmless from all
injuries and/or damages, including attorneys' fees and litigation
costs, arising from any activity of the Developer and/or its
agents, officers, employees, consultants or contractors conducted
on the site pursuant to this section 2.16.
section 2.17. Submission of Evidence of Financina
Commitments. within the time provided therefor in the Schedule of
Performance, the Developer shall submit to the Agency evidence
reasonably satisfactory to the Agency that the Developer has
obtained or can obtain, as evidenced by a letter of intent or
similar instrument, sufficient loan financing for the construction
of the Project. In lieu of the foregoing, the Developer may submit
to the Agency evidence reasonably satisfactory to the Agency that
the Developer has sufficient funds of its own for construction of
the Project by means of submission of a certified financial
statement (or audit) and correspondence certifying that the
Developer has sufficient equity capital for construction or the
ability to obtain financing as described hereafter. As used in
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this Section 2.17, the phrase "letter of intent" means a letter
from a financial institution or lending source (reasonably accept-
able to the Agency) indicating that such institution or source has
received and,reviewed the Developer's application for financing for
the Project and has begun serious deliberations pursuant to the
usual and customary underwriting criteria of lending institutions
of like kind concerning the providing of the financing to the
Developer which is required by this section 2.17.
section 2.18. Aaencv's Riaht to Drawinas. Plans. Etc.
If the Agency terminates this Agreement as a result of
the Developer's default hereunder, then the Agency shall have the
right to receive, without' the payment of compensation to the
Developer or any oth!'lr party, all plans, drawings, schedules,
blueprints, grading plans, surveys, reports, and all ,other like
documents associated in any manner with the Developer's development
of the site. The Agency shall be entitled to receive these
documents whether they are in the possession of the Developer or
the Developer's employees, agents, consultants, contractors,
attorneys, engineers, architects or others. The Developer agrees
to include a provision concerning the Agency's right pursuant to
this' Section 2.18 in all contracts it enters into with any third
parties concerning the development of the site.
ARTICLE III
DEVELOPMENT OF THE SITE
section 3.01. Develooment bv Develooer.
(a) 'iScooe of Develooment. The site shall be developed
in accordance' with the Redevelopment Plan and the Scope of
Development, the Conceptual site Plan and the Concept Elevations
set forth in Attachments 2a, 2b and 2c, respectively. The use and
development of the site shall comply with the City's zoning
ordinances, including those related to parking, landscaping,
setback, signage and height requirements, and with the City'S
building codes and other building requirements. No action by the
Agency or the city with reference to this Agreement or related
documents shall be deemed to constitute a waiver of any City
parking, landscaping, signage, height or other requirements which
are applicable to the Project or to the Developer or any successor
in interest or tenant of the Developer, except by modification or
variance expressly approved by the City, in its sole discretion.
(b) Scooe of Develooment. Conceotual site Plan and
ConceDt Elevations. The scope of Development, Conceptual Site Plan
and concept Elevations are hereby approved by the Agency upon its
execution of this Agreement. , The project shall be developed and
completed in conformance with the approved Scope of Development,
Conceptual sito Plan and Concept Elevations and any and all other
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plans, specifications and similar development documents required by
this Agreement or the Lease, except for such changes as may be
mutually agreed upon in writing by the Developer and the Agency.
The Agency agrees to approve preliminary and final construction
plans and preliminary and final landscaping plans, if consistent
with the approved Scope of Development, Conceptual Site Plan and
Concept Elevations.
The approval of the Scope of Development, Conceptual site
Plan and Concept Elevations by the Agency shall not be binding upon
the City Council or the Planning commission of the city with
respect to any approvals of the Project required by such other
bodies. If any revisions of the Scope of Development, Conceptual
site Plan or ConGept Elevations as approved by the Agency shall be
required by another government off icial, . agency, department or
bureau having jurisdiction over the development of the Site, the
Developer and the Agency shall cooperate in efforts to obtain
waivers or approvals of any such revisions which have been made by
the Developer and have thereafter been approved by the Agency.
Notwithstanding any provision herein to the contrary, the Developer
understands and agrees that all conditions imposed upon the Project
by the city pursuant to the City's design review procedures shall
be deemed to be automatically incorporated into the Scope of
. Development, Concept and Site Plan and Concept Elevations and into
the terms and provisions of this Agreement.
Notwithstanding any provision to the contrary in this
Agreement, the Developer agrees to accept and comply fully with all
conditions of approval applicable to all permits and other
governmental actions affecting the Project;
(c) Landscaoina Plans. The Developer shall cause
landscaping plans to be prepared for the Project by a licensed
landscape architect. The Developer shall prepare and submit to the
Agency for its approval, preliminary and final landscaping plans
for the site. The Developer understands and acknowledges that the
Agency requires, and Developer agrees to install and maintain,
significantly enhanced landscaping on the Site, both as to quantity
and quality of flora (e.g., large specimens in 48" boxes). These
plans shall be prepared, submitted and approved within the times
respectively established therefor in the Schedule of Performance
and shall be consistent with the Scope of Development, the
Conceptual site Plan and the Concept Elevations.
(d) Submission of Develooment Plans. Construction
Drawinas and Related Documents. The Developer shall prepare and
submit, in accordance with the Schedule of Performance, development
plans, construction drawings and related documents for the develop-
ment of the site consistent with the Scope of Development,
Conceptual site Plan and Concept Elevations to the City and the
Agency for review and written approval; provided, however, that the
Agency shall not have the right or responsibility to approve
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development plans, construction drawings or related documents for
purposes of the issuance of a building permit or otherwise on
behalf of the city. The Agency may review and approve such plans,
drawings and'documents for purposes of (i) determining the propri-
ety of architecture and design of structures and the overall
,development of the Project in accordance with the Redevelopment
Plan, and (ii) determining the conformity of such plans, drawings
and documents with the terms and conditions of this Agreement. The
development plans, construction drawings and related documents
shall be submitted in two stages -- preliminary and final drawings
(i.e., construction drawings), plans and specifications. Final
drawings, plans and specifications are those which contain
sufficient detail necessary to obtain a City building permit.
The Agency's staff and the Developer's staff and
consultants shall hold regular progress meetings during the
preparation of all drawings and plans for the Project, to
coordinate the preparation by the Developer, and the submission to
and review by the City and the Agency of the construction plans and
related documents. The Agency's staff and the Developer shall
communicate and consult informally as frequently as is necessary to
ensure that any such plans and related documents submitted by the
Developer to the City and the Agency may receive prompt
consideration.
(e) Review bv Aaencv' and citv of preliminarv Plans.
Drawinas and Related Documents. The Agency may review and approve
building exteriors and the architectural features of the project.
The Agency may also review and approve all plans, drawings and
related documents pertinent to the development of the site in order
to ensure that they are consistent with this Agreement and with the
scope of Development, Conceptual Site Plan and Concept Elevations.
The Agency shall state in writing the reasons for any disapproval
of plans, drawings or related documents. The Developer, upon
receipt of notice of any disapproval, shall promptly revise and
resubmit such disapproved portions of the plans, drawings or
related documents in a manner that addresses the reasons for
disapproval no: later than fourteen (14) calendar days thereafter.
The Developer shall timely submit to the City for its
review and approval plans, drawings and related documents pertinent
to the development of the Site, as required by the City. The
Agency shall reasonably cooperate with the Developer in the
Developer's obtaining the city's approval of development plans,
construction drawings and related documents. Any failure of the
City to either approve or disapprove the plans within thirty (30)
days after their receipt by the City shall constitute an enforced
delay hereunder and the Schedule of Performance shall be extended
by that period of time beyond said thirty (30) day period within
which the City approves or disapproves the submitted plans. If the
City disapproves the submitted plans, the Developer shall revise
and resubmit such plans within fourteen (14) days after receipt of
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such disapproval in accordance with the City's requirements and so
as to reasonably address the City'S reasons for disapproval.
The Agency may approve any modified or revised plans,
drawings and related documents to which reference is made in this
subsection (e) ,as long as such revised or modified plans, drawings
and related documents are consistent with the Scope of Development,
the Conceptual Site Plan and the Concept Elevations and any other
plans which have been previously approved by the Agency. The
Agency may approve or disapprove such revised plans, drawings and
related documents in the same manner and within the same times as
provided in this subsection (e) for approval or disapproval of
plans, drawings and related documents initially submitted to the
Agency.
The Schedule of Performance shall be extended only once
for any additional period required (not to exceed 30 days) for the
submission to and review by the Agency and/or the City of
resubmitted plans, drawings or related documents, insofar as such
review exceeds the Schedule of Performance; provided, however, that
in order for the Schedule of Performance to be so extended, the
Developer shall address all reasons for disapproval and satisfy all
lawful requirements set forth by the Agency and/or the City
concerning the prior disapproval of any plans, drawings or related
documents. No matter once approved may be subsequently disapproved
unless otherwi3e mutually agreed'by the parties or unless allowed
or required by law or this Agreement. The Schedule ,of Performance
may not be extended more than once hereunder as a result of the
Agency's/City's disapproval of the Developer's drawings, plans and
specifications.
The Developer and Agency understand and acknowledge that
the Developer intends to design, construct and operate the Project
prior to November 17, 1995. Both parties will reasonably
cooperate to accomplish this result, consistent with all legal
requirements.
(f) Chanaes in Final Construction Drawinas. Plans and
SDecifications. The Agency may require the Developer to make new
changes in the final construction drawings, plans and specifica-
tions and related documents after their original approval by the
Agency and/or the City. The Agency shall notify the Developer in
writing of the changes which the Agency desires. The Developer
shall incorporate those changes and provide amended construction
drawings, plans and specifications within fourteen (14) days after
receipt of the written request from the Agency. The Developer
shall submit the revised construction drawings, plans and speci-
fications supporting the Agency-requested changes to the Agency
and/or the City for approval pursuant to subsection (e) above. The
Agency shall ,notify the Developer of approval or disapproval
thereof in writing within twenty-one (21) days after submission to
the Agency. The Agency shall use reasonable efforts to cause the
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Ci ty to review and approve or disapprove any such changes as
provided in subsection (e) above.
If' the Developer desires to make any material change in
the final construction drawings, plans and specifications and
related documents after their approval by the Agency and/or the
City, the Developer shall submit the proposed change in writing to
the Agency and/or the City for approval. The Agency shall 'notify
the Developer of approval or disapproval thereof in writing within
twenty-one (21) days after submission to the Agency. This twenty-
one (21) day period may be extended by mutual consent of the
Developer and the Agency. Any such change shall be deemed to be
rejected by the Agency unless approved by written notice to the
Developer within said twenty-one (21) day period, unless extended
as permitted herein. The Agency shall use reasonable efforts to
cause the City to review and approve or disapprove any such change
as provided in'subsection (e) above.
The Developer shall, upon receipt of a notice of disap-
provai by the Agency and/or the city, or if deemed rejected
pursuant to the immediately preceding paragraph, revise such
portions of the Developer-proposed changes in the construction
drawings, plans and specifications and related documents as are
rejected and shall thereafter resubmit such revisions to the Agency
and/or the City for approval in the manner provided in subsection
, (e) above. '
Notwithstanding any provision to the contrary herein, a
Developer-proposed change in plans, specifications or similar items
pertaining to the Project or the review, approval, or disapproval
by the Agency or the City of the Developer-requested changes shall
not alter the Schedule of Performance. Notwithstanding any
provision to the contrary herein, the Schedule of Performance shall
be extended for the additional period of time necessary (not to
exceed 30 days), for the Developer to prepare and submit (including
resubmission if necessary) drawings, plans and specifications and
related documents necessary to accommodate Agency-requested
changes.
The Developer may make changes during the course of
construction concerning the interior of structures and "minor field
changes" without seeking the approval of' the Agency; provided,
however, that such changes do not affect the type of use to be
conducted within all or any portion of a structure. "Minor field
changes" shall be those changes from the approved final construc-
tion drawings, plans and specifications which have no substantial
effect on the improvements and which are made in order to expedite
the work of construction in response to field conditions. Nothing
contained in this Section 3.01 shall be deemed to constitute a
waiver of or change in the City'S building code requirements
governing minor field changes or in any approvals by the city
otherwise required for minor field changes.
I,
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(g) Costs of Construction. Environmental Costs and Other
Costs. The costs of developing the site and of constructing all
improvements thereon and adjacent thereto as set forth in the Scope
of Development shall be borne by the Developer. It is understood
and agreed by the parties that the Developer shall construct and
install, at its sole expense, all off-site improvements as provided
in the Scope of Development or otherwise applicable to the Site
under the ,city's codes.
The Developer shall, at its sole cost and expense, cause
to be prepared, and shall pay all fees pertaining to the review and
approval thereof by the City, all required construction, planning
and other documents pertinent to the development of the site,
including specifications, drawings, plans, maps, permit applica-
tions, land use applications, parcel maps, zoning modifications,
zoning applications and design review documents. The Developer
shall pay to the City such application, plan-checking, development
and other fees established by the City or the Arcadia Unified
School District, as applicable, which are generally applicable to
parties who require similar review, permits and/or approvals from
the City.
An Environmental Impact Report ("EIR") has been previ-
ously completed and certified by the Agency with respect to the
adoption of the Redevelopment Plan. The Agency has determined that
such EIR, together with a mitigated negative declaration or
negative decla'c-ation if adopted by the Agency at the time of
approval of this Agreement, is sufficient for purposes of develop-
ment of the site as required by this Agreement. If, due to
Developer-requested changes, the Agency determines, in its sole
discretion, that additional environmental impact studies are
necessary, then the Developer shall, at its sole cost and expense,
cause the preparation of any EIR, supplement to an EIR, addendum to
an EIR and any and all other documents required pursuant to CEQA by
consultants selected or approved by the Agency and/or the city.
The Developer shall pay all fees and costs imposed by the County of
Los Angeles for the processing of any environmental documents or
other permits or approvals applicable to the Site.
The Developer shall pay any fees and costs pertaining to
the design, construction, relocation and securing of permits for
utility improvements and connections, including sewers and sewer
lines, power lines and poles, water lines, gas lines, phone and
cable lines and related vaults, storm drains, catch basins and
vaults, traffic access ways, lighting poles and standards and
conduit, handicapped access ramps, construction of tree wells and
planting of trees and irrigation lines/meters.
(h) Schedule of Performance. The Developer shall
substantially complete all construction and development of the
Project within the time specified in the Schedule of Performance,
subject to extensions of time provided by Section 6.05, or within
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such reasonable extensions of time as may be granted by the Agency
in its sole and absolute discretion. The Schedule of Performance
may be revised from time to time if mutually agreed upon in writing
between the Developer and the Agency.
(i) Bodilv Iniurv and Prooertv Damaae Insurance. Prior
to the commencement of construction on the site and at all times
prior to the Agency conveying title to the site to the Developer,
the Developer shall furnish to the Agency duplicate originals of
policies or appropriate certificates of public indemnity and
liability insurance in the amount of Two Million Dollars
($2,000,000) combined single li~it, naming the Agency and the City
as additional insureds. Said insurance shall cover comprehensive
general liability including contractual liability, acts of subcon-
tractors, premises-operations, explosion, collapse and underground
hazards (if applicable); broad form property damage and personal
injury (including libel, slander and false arrest). In addition,
the Developer: shall provide to the Agency adequate proof of
comprehensive ~utomobile liability insurance covering owned, non-
owned and hired vehicles, combined single limit in the amount of
Two Million Dollars ($2,000,000) each occurrence, and proof of
workers compensation insurance. All insurance policies required
hereunder shall be obtained and maintained from insurance companies
admitted in the State of California and rated at least B+:VII in
Best's Insurance Guide. It shall be the Developer's responsibility
to insure that appropriate coverage from an approved carrier are
maintained at all times during' its construction of the Project.
All insurance polices shall provide that they may not be canceled
or the limits of liability reduced unless the Agency receives
written notice of cancellation or reduction at least thirty (30)
days prior to the effective date of cancellation. All insurance
obtained by the Developer hereunder shall be primary to any insur-
ance which the Agency and/or City may otherwise carry, including
self insurance, which for all purposes of this Agreement shall be
separate and apart from the requirements of this Agreement. Any
insurance pOlicies governing the site as obtained by the Agency
shall not be transferred to the Developer. All insurance required
hereunder shall be maintained and kept in force until the Agency
has conveyed title of the Site to the Developer.
If the Developer fails to maintain appropriate and
acceptable insurance, the Developer hereby irrevocably authorizes
the Agency to procure appropriate insurance policies on the
Developer's behalf. The Developer shall reimburse the Agency for
the costs of such policies within ten (10) days after demand
therefor by the Agency.
(j) Antidiscrimination Durina Construction. The
Developer, agrees that neither the Developer nor any agent,
contractor or employee of the Developer acting under Developer's
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direction will discriminate against any employee or applicant for
employment because of sex, marital status, race, color, religion,
creed, national origin, or ancestry. The Developer shall include
such anti-discrimination terms in all of its contracts with its
consultants, contractors, and subcontractors.
(k) Local. state. and Federal Laws. The Developer shall
construct the improvements on and off the site in conformity with
all applicable laws, including all applicable federal and state
labor standards and requirements, and in conformity with any
applicable laws regarding the payment of prevailing wages for the
construction and installation of public improvements.
(l) Aaencv Riahts of Access. Officers, employees,
agents and representatives of the Agency or the city shall have the
right of reasonable access to the Site, without the payment of
charges or fees, during normal construction hours during the period
of construction of the project. Any officers, employees, agents or
representatives of the Agency or the City who enter the site shall
identify themselves at the job site office upon their entrance onto
the site and shall at all times be accompanied by a representative
of the Developer while on the site. The Developer shall make a
representative available for this purpose at all times during
normal construction hours upon reasonable notice from the Agency.
The Agency shall indemnify and hold the Developer harmless from
injury, property damage or liability arising out of the exercise by
the Agency or the city of this right of access, other than injury,
property damage or liability relating to the active or passive
negligence or~illful actions of the Developer or its officers,
agents, contractors or employees. The Agency's right of access
shall not be deemed to permit Agency to interfere with construction
of the Project.
Section 3.02. Taxes. Assessments. Encumbrances and
Liens. The Developer shall pay prior to delinquency all real
property taxes, possessory interest taxes and assessments, fees or
charges assessed and levied on or against the Site subsequent to
the close of the Escrow. The Developer shall not place and shall
not allow to be placed on the site any mortgage, trust deed, deed
of trust, encumbrance or lien not permitted by this Agreement. The
Developer shall remove any levy or attachment made on the site or
shall assure the satisfaction thereof within a reasonable time, but
in any event prior to a sale of the Site or any portion. Nothing
herein shall prohibit the Developer from contesting the validity or
amounts of any tax assessment, encumbrance or lien or limit the
remedies available to the Developer with respect thereto.
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section 3.03. Prohibition Aaainst Transfer. The Devel-
oper shall no~, without prior written approval of the Agency or
except as oth~rwise permitted by section 1.06, (i) assign or
attempt to assign this Agreement, the Lease, or any rights therein
or (ii) make any total or partial sale, transfer, conveyance,
lease, leaseback, or assignment of the whole or any part of the
site or the improvements thereon prior to the Agency's conveyance
of title to the Site to the Developer. This prohibition shall not
apply to the reasonable grant of limited permits to facilitate the
development of the site.
The Developer covenants and agrees that neither it nor
its assigns or successors in interest to the site or this Agree-
ment, shall use or otherwise sell, transfer, convey, assign, lease,
leaseback or hypothecate the site or any portion thereof to any
entity or party for any use that is partially or wholly exempt from
the payment of real property taxes, or which would cause the
exemption of the payment of all or any portion of such real
property taxes during the time that the Redevelopment Plan (as it
exists and as it may be amended) is in effect.
Any sale, transfer, conveya"nce, lease, leaseback or
assignment of the Site in violation of this Agreement shall not
relieve the Developer from any of its obligations under this
Agreelllent. Any sale, transfer" conveyance, lease, leaseback or
assignment in violation of this Agreement shall not convey any
rights whatsoever.
section 3.04. Aaencv Subordination of Fee Interest. The
Agency agrees that it will, subject to the fulfillment of all
conditions precedent set forth in this section 3.04, subordinate
its fee interest in the site to the lien of any lender from which
Developer obtains construction financing for the Project. The
Agency's obligation to subordinate its fee interest is expressly
contingent upo'n complete satisfaction of each and all of the
following conditions precedent:
(i) The Developer shall have provided to the Agency, in
a form acceptable to the Agency's legal counsel, a standby
irrevocable le~ter of credit in the amount of no less than 125% of
the alllount of the financing to which the Developer is requesting
the Agency to subordinate its fee interest in the site.
This letter of 'credit shall provide, at a minimum, that it shall be
valid for an initial periOd of no less than five (5) years from the
date of its issuance, and that it shall, upon request of the
Agency, be extended for such additional time to insure that the
letter of credit is in full force and effect for the entire period
commencing from the effective date of the Agency's subordination of
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its fee interest to the time that the Agency conveys title to the
site to the Developer pursuant to this Agreement. The letter of
credit shall provide that it may be drawn upon demand by the
Agency's Executive Director or designee without notice to the
Developer, and shall be issued by one of the five largest banks in
California having a branch in the City. Partial drawings shall be
permitted. The letter of credit may ,be drawn upon if the Agency
receives notice from the lender that the Developer has defaulted
under any of its obligations to the lender, and that such default
is of a nature such that the lender may foreclose upon or otherwise
acquire the Developer's interest in the site or the Project. The
Agency may use the funds drawn from the letter of credit to satisfy
any and all obligations owed by the Developer to the lender and to
extinguish the lender's security interest in the Site; and
(ii) The Developer shall have given sixty (60) days
prior written notice to the Agency of its intent to acquire
financing and to request the Agency to subordinate its fee interest
to such financing, and the Agency shall have consented to such
financing. The Agency agrees it shall give its consent if the
proposed lender is a reputable financial institution, as reasonably
determined by the Agency, and the form of financing is reasonable
and customary when compared to financing for similar projects
within the City. The Agency shall have the right of reasonable
review and approval of the agreements, security instruments and
,other documents contemplated for use in the financing transaction.
At a miriimum, these documents shall provide:
(a) that the lender shall provide written notice to
the Agency of any default by Developer under any of its obligations
to lender, which default would enable the lender to foreclose upon
or otherwise acquire any interest in this Site, or the Project or
the improvemen.ts located thereon; and
(b) The lender's foreclosure or other acquisition
of any interest in the Site or the Project may not occur until at
least forty-five (45) days have elapsed since the Agency's receipt
of notice; and
(c) The Agency shall have the right, in its sole
and absolute discretion, to at any time satisfy any and all
obligations of Developer to lender, without prepayment or other
penalty, and to thereby extinguish lender's lien against or
interest in the site or the Project; and
(d) The Agency shall have no affirmative obligation
whatsoever to perform, satisfy, or guarantee any of Developer's
obligations to lender.
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(e) The Agency's fee interest in the Site shall be
subordinate only to the original amount of financing, and that no
additional increases in the principal amount of financing may occur
without the express written consent of the Agency, which the Agency
may give or deny in its sole and absolute discretion. The terms of
the agreements between Developer and lender shall require the
Developer to make, at a minimum, quarterly interest payments on the
unpaid principal amount owing at anyone time by Developer to
lender; negative amortization financing shall not be permitted.
Section 3.05. Riaht of the Aaencv to satisfv other Liens
on the Prooertv. The Agency may, after twenty (20) days prior
written notice to the Developer, satisfy any liens or encumbrances
upon the Site which are not permitted by this Agreement. The
rights of the Agency under this section 3.05 are in addition to all
other rights of the Agency under this Agreement. The Developer
shall reimburse the Agency for all costs and expenses incurred by
the Agency in satisfying such unauthorized liens or encumbrances
within ten (10) days after the Agency makes ,written demand
therefor. If the Developer fails to reimburse the Agency within
this ten (10) day period, the amount of such costs and expenses
shall be a lien upon the site pursuant to civil Code Sections 2881,
et sea.
[,
Prior to making any progress payments to any laborer,
contractor, subcontractor or material supplier, the Developer shall
obtain from each laborer, contractor, subcontractor or material
supplier a Mechanic's Lien/Stop Notice release and acknowledgement
of satisfaction for all amounts due and owing to said laborer,
contractor, subcontractor or material supplier as to the quantity
of work or materials for which the progress payment represents
compensation. Before making any final payment to any laborer,
contractor, subcontractor or material supplier, the Developer shall
require the laborer, contractor, subcontractor or material supplier
to execute a full Mechanic's Lien/ stop Notice release and an
acknowledgement of satisfaction of all amounts due and owing to
that laborer, contractor, subcontractor or material supplier under
its contract with the Developer related to construction of the
Project.
Section 3.06. certificate of ComDletion. The Agency
shall furnish the Developer with a certificate of Completion
following written request therefor by the Developer and the
completion of construction of the Project, including any offsite
improvements. The certificate of Completion shall be sUbstantially
in the fOrID set forth in Attachment 5. The Certificate of
Completion Shall be a conclusive determination of satisfactory
completion of all of the improvements required to be completed
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under this Agreement for the site and of full compliance by the
Developer with the terms of this Agreement with respect to the
development of the Project (other than covenants which survive the
issuance of a Certificate of Completion). The Certificate of
Completion shall be in such form as to permit it to be recorded in
the Los Angeles County Recorder's Office.
If the Agency refuses or fails to furnish a certificate
of Completion after written request from the Developer, the Agency
shall within fifteen (15) days of the written request -or within
three (3) days after the next regular meeting of the Agency,
whichever date occurs later, provide a written statement to the
Developer setting forth the reasons for the Agency's refusal or
failure to furnish a Certificate of Completion. The statement
shall contain the Agency's opinion of the actions the Developer
must take to obtain a Certificate of Completion. If the reasons
for such refus~l are confined to the immediate unavailability of
specific items or materials for construction or landscaping, the
Agency shall issue a Certificate of Completion upon the Developer's
posting of a bond or irrevocable letters of credit, reasonably
approved as to form and substance by the Agency's legal Counsel, in
an amount representing the fair value of the work not yet
completed, as reasonably determined by the Agency.
A Certificate of Completion will not constitute evidence
of compliance with or satisfaction of any obligation of the
Developer to any holder of a mortgage or any insurer of a mortgage.
A Certificate of Completion will not constitute a notice of
completion as referred to in civil Code Section 3093.
Section 3.07. Develooer to Reimburse Aaencv for Reduc-
tion of Prooertv Tax Increment. The Developer shall, within ten
(10) days following receipt of written request therefor from the
Agency, reimburse the Agency in the amount of any "Property Tax
Increment Reduqtion". For purposes of this Section 3.07, "Property
Tax Increment 'Reduction" means the difference between Fifteen
Thousand six Hundred Thirteen Dollars ($15,613) and the amount of
property taxes attributable to the Site and paid to the Agency
pursuant to Health & Safety Code Section 33670(b) for any fiscal
year (after the 1995-1996 fiscal year) which begins and ends prior
to the Agency's conveyance of title of the site to Developer. As
an example, if the property taxes attributable to the Site and paid
to the Agency for the fiscal year 1996-1997 is reduced to
Thirteen Thous~nd Dollars ($13,000) then Developer shall pay the
Agency the sum of Two Thousand six Hundred Thirteen Dollars
($2,613). The Agency and the Developer acknowledge and agree that
the intent and purpose of this section 3.07 is to assure the Agency
that it shall receive, from property taxes attributable to the
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'!
site and paid. to the Agency pursuant to Health and Safety Code
Section 33670(b), the Developer or a combination of both, no less
than Fifteen Thousand Six Hundred Thirteen Dollars ($15,613).
ARTICLE IV
USE OF THE SITE
Section 4.01. Uses. The Developer covenants and agrees
for itself and. its legal successors that during construction of the
Project and at all times thereafter, the Developer and its legal
successors shall devote the site and any portion thereof to the
uses permitted. thereon pursuant to the Redevelopment Plan and this
Agreement. The Developer further covenants and agrees for itself,
legal successors, and its Developer Affi~iates that the site shall
be used solely for the purposes set forth in the Scope of
Development or such other use as approved by the Agency in its sole
discretion.
Sect.ion 4.02.
citv Owned ProDertv.
(a) The Developer covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
site or any portion, that the Developer, its successors and
assigns, shall in perpetuity maintain in good condition the
improvements on the Site, shall keep the site free from any
accumulation (If debris or waste material, subject to normal
construction job site conditions, and shall maintain in a neat,
orderly, healthy and good condition the landscaping required to be
planted in accordance with the scope of Development, Conceptual
site Plan and Concept Elevations and approved building plans. The
covenants of this section 4.02(a) shall run with the site or any
portion in pe~petuity.
Maintenance of the site and Ad;oinina
(b) The Developer covenants and agrees for itself, its
successors, its assigns and every successor interest to the Site or
any portion, that the Developer, its successors and assigns shall,
at their sole cost and expense, maintain and keep in good repair,
free from any accumulation of debris or waste material, and shall
maintain in a neat, orderly, healthy and good condition any
landscaping and imp~ovements located thereon and any irrigation
systems therein, the approximately 6,000 sq. foot City-owned parcel
of land located immediately east of and adjacent to the site. This
obligation and. covenant shall include the maintenance of insurance
at all times, :including without limitation workers' compensation
and general liability insurance issued by an insurance company
rated by Best's Insurance Guide as B XII+ or higher, with policy
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limits approvea by the City Attorney from time to time, covering
all work performed by Developer, its successors and assigns here-
under. A map depicting the location of this city-owned parcel is
attached and incorporated as Attachment 8. The covenants of this
section 4.02(b) shall run with the site and any portion until such
time as the City-owned parcel is conveyed to a third party, other
than the Agency.
section 4.03. Obliaation to Refrain from Discrimination.
The Developer covenants and agrees for itself and its
legal successors, that there shall be no discrimination against or
segregation of any person, or group of persons, on account of sex,
marital status, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the site (or any portion); nor shall the
Developer or any person controlled by Developer, establish or
permit any such practice or practices of discrimination or segre-
gation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of
the site.
The covenants of this section 4.03 shall run with the
site or any portion in perpetuity.
section 4.04. Form of Nondiscrimination and Nonseare-
aation Clauses. The Developer covenants and agrees'for itself and
its legal successors, that the Developer and its legal successors
shall refrain from restricting the sale, lease, sublease, rental,
transfer, use occupancy, tenure or enjoyment of the site (or any
portion) on the ,basis of sex, marital status, race, color,
religion, creed, ancestry or natural origin of any person. All
deeds, leases or contracts pertaining thereto shall contain or be
subject to substantially the following nondiscrimination or
nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for
itself, its successors and assigns, and all persons claiming under
or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of sex,
marital status, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed, nor shall the
grantee itself or any person claiming under or through it, estab-
lish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subtenants, sublessees or vendees
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:{
in the land herein conveyed.
with the land."
The foregoing covenants shall run
(b') In leases: "The lessee herein covenants by and for
itself, its successors and assigns, and all persons claiming under
or through them, and this lease is made and accepted upon and
subject to the following conditions.: That there shall be no
discrimination against or segregation of any person or group of
persons, on account of sex, marital status, race, color, religion,
creed, national origin or ancestry, in the leasing, subleasing,
renting, transferring, use, occupancy, tenure or enjoyment of the
land herein leased, nor shall the lessee itself, or any person
claiming under or through it, establish or permit such practice or
practices of discrimination or segregation with reference to the
selection, location, number or occupancy of tenants, lessees,
sublessees, tenants, or vendees in the land herein leased."
(c) In contracts: "There shall be no discrimination
against or segregation of, any person or group of persons on
account of sex, marital status, race, color, religion, creed,
national origin or ancestry in the sale, lease, sublease, rental,
transfer, use, occupancy, tenure or enjoyment of the land or
through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
.sublessees,or vendees of the land."
The covenants of this Section 4.04 shall run with the site or any
portion in perpetuity.
section 4.05. Use Covenant. The Developer covenants and
agrees for itself, its successors and assigns that it shall con-
tinually operate an Outback Steakhouse, or substantially equivalent
restaurant operation as reasonably approved by the Agency, upon the
site for a period of no less than five (5) years from the date that
the restaurant first opens for business; provided, however, that
Developer may cease operations for no more than thirty (30) days no
more than once every thirty-six (36) months for the purposes of
refurbishing and/or repairing the restaurant or its fixtures or
equipment. The Developer specifically acknowledges and agrees that
the Developer's liability for a breach of the covenant of this
section 4.05 shall accrue regardless of whether the breach is due
to the Developer's fault, acts of God, or other causes outside the
Developer's control.
The Developer shall not be in breach of this section 4.05
if the failure to operate is due to fire or other catastrophic
casualty; provided, however, that the Developer must begin to
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rebuild or restore the restaurant within sixty (60) days from such
catastrophe and thereafter diligently pursue and complete the
repair 'or rebuilding within six (6) months from the date of
cessation of o?eration.
Developer hereby irrevocably stipulates and agrees that
should Developer breach this section 4.05, the Agency may recover
as damages (in addition to all other available remedies) the
product of "x" times "y" where:
"x" equals 60 minus the number of months that Developer
has continually operated the restaurant in accordance
with the provisions of this section 4.05; and
"y" equals the product of .01 times the amount of average
monthly gross sales generated by the restaurant in the
twelve (12) calendar months immediately preceding the
cessation of operation. If a breach of the covenant of
this section 4.05 occurs during the first twelve (12)
months following the date upon which the restaurant first
opens for business, then the sum of Two Hundred Seventy
Five ,Thousand Dollars ($275,000) is hereby stipulated and
agre",d by the parties as the average gross monthly sales
to be used in calculating "y."
Should the Agency institute any action or proceeding to
recover damages from the Developer for the Developer's breach of
this Section 4.05, the Developer hereby irrevocably waives any
defense in such action or proceeding which is based upon any
argument or legal theory that the damages sought to be recovered by
the Agency are speculative or that the provisions of this section
4.05 are too vague, ambiguous or uncertain to be enforced.
The covenants of this section 4.05 shall run with the
site or any portion.
section 4.06. Effect and Duration of Covenants. The
covenants established in this Agreement shall, without regard to
technical classification and designation, be binding on the
Developer and any successor in interest to the Site or any portion,
for the benefit and in favor of the Agency and the City, their
successors and;assigns. Such covenants shall remain in effect for
the time provided in the sections containing them or in the grant
deed conveying the site. The covenants are intended to and shall
run with the site or any portion.
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ARTICLE V
DEFAULTS. REMEDIES AND TERMINATION
Section 5. 01. Defaul ts - General. Subj ect to the
extensions of time set forth in Section 6.05, failure or delay by
either party to perform any material term or provision of this
Agreement shall constitute a material default under this Agreement,
subject to the notice and cure provisions of Section 5.04. .
Section 5.02. Leaal Actions.
(a) Institution of Leaal Actions. Either party may
institute legal or equitable actions to cure, correct or remedy any
default, to recover damages for any default, to compel specific
performance or to obtain any other remedy consistent with the
purposes of this Agreement or the Lease in addition to all other
rights or remedies. Such legal actions must be instituted in the
Superior Court of the County of Los Angeles or in any other
appropriate court in that County.
(b) Aoolicable Law and Venue. The internal laws of the
State of California shall govern the interpretation and enforcement
of this Agreement.
(C) service of Process. If legal action is commenced by
the Developer against the Agency, service of process on the Agency
shall be made by personal service upon the Executive Director or
Chairman of the Agency or in such other manner as may be provided
by law.
It legal action is commenced by the Agency against the
Developer, service of process on the Developer shall be made upon
Chief Executive Officer of Developer, hereby appointed as agent for
service of process by the Developer, or in such other manner as may
be provided by law, and shall be valid whether made within or
without the State of California.
Section 5.03. Riahts and Remedies are CUmulative. The
rights and remedies of the parties are cumulative and the exercise
by either party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any
other rights or remedies for the same default or any other default
by the other party.
Any failure or delays by either party in asserting any of
its rights and remedies as to any default shall not operate as a
waiver of any default or of any such rights or remedies. Delays by
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either party in asserting any of its rights and remedies shall not
deprive either party of its right to institute and maintain any
actions or proceedings which it may deem necessary to protect,
assert or enrorce any such rights or remedies.
section 5.04. Notice of Default and Oooortuni tv to Cure.
If either party believes that other has defaulted under this
Agreement or :':he Lease, the party claiming the default shall
provide written notice of the claimed default to the party claimed
to be in default ("Defaulting Party")., The Defaulting Party shall
commence and cure such default within thirty (30) days after its
receipt of the notice of default or, if the default is of a nature
such that it cannot be cured within thirty (30) days, the Default-
ing Party shall commence to cure the default within thirty (30)
days and shall thereafter diligently proceed to completely cure the
default. The failure to satisfy a condition to closing of the
Escrow, unless wilful, shall not constitute a default. If the
Defaulting Party fails to complete the cure within thirty (30) days
or, if applicable, fails to commence the cure within thirty (30)
days and thereafter diligently proceed to completely cure the
default, then the non-defaulting party may exercise, in its sole
discretion, any legal or equitable remedies available to it under
statute, common law, the Lease or this Agreement. These remedies
include the institution of an action for monetary damages, specific
performance or,other remedies allowed under this Agreement or the
Lease. ,
The non-defaulting party must provide written notice of
the claimed default SUbstantially in the manner described in the
immediately preceding paragraph as a condition precedent to the
institution of any action or legal proceeding against the
Defaulting Party. The provisions of the immediately preceding
paragraph with respect to the thirty (30) day period to commence
and complete, or commence, cure of the alleged default shall not
apply to a default concerning payment of funds, deposits or bonds
required by this Agreement or the Lease. In that event, the
alleged default must be cured within ten (10) days after the
Defaulting Party's receipt of the written notice of default.
section 5.05. Remedies and Riahts of Termination.
(a) ~ermination bv the Develooer.
In addition to all other rights and remedies provided in
this Agreement; the Developer may terminate this Agreement if the
Agency does not (i) execute the Lease and tender possession of the
Site, or (ii) tender conveyance of title to and possession of the
site to the Developer in the manner and condition and by the date
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provided in this Agreement (or any and all extensions thereof as
authorized by this Agreement), after the Developer has given notice
and the cure period provided in section 5.04 has expired.
(b) Termination bv the Aaencv.
(i) In addition to all other rights and remedies
provided in this Agreement, the Agency may terminate this Agreement
if the Developer assigns this Agreement, or any right therein, or
sells, leases, transfers or conveys the whole or any part of the
Site or the improvements to be developed thereon in violation of
the terms of this Agreement.
(ii) In addition to all other rights and remedies
provided in this Agreement, the Agency may terminate this Agreement
if upon satisfaction of all conditions precedent and concurrent
therefor under ,this Agreement, the Developer does not (i) execute
the Lease and possess the site or (ii) take title to the site under
tender of conveyance by the Agency, after the Agency has given
notice and the cure period provided in section 5.04 has expired.
(iii) In addition to all other rights and remedies
provided in this Agreement, the Agency may terminate this Agreement
upon the Developer's default under the Lease after the Agency has
given notice and the cure period provided in Section 5.04 has
expired; Upon the Agency's 'termination of the Developer's
leasehold interest under the Lease, the Agency's - obligation to
convey the site to the Developer shall likewise terminate. The
Agency shall be entitled to retain, without offset, abatement or
deduction, all rental payments received from the Developer during
the term of the lease, in-addition to all other remedies available
to the Agency under this Agreement, the Lease or applicable statute
or judicial decision.
Section 5.06. Cross defaults. The Developer specific-
ally acknowledges and agrees that any Developer default under this
Agreement shall likewise constitute a default under the Lease, and
any Developer default under the Lease shall likewise shall
constitute a default under this Agreement. upon such default,
whether under this Agreement or under the Lease, the Agency may
exercise any and all rights and remedies available to it under this
Agreement, the-Lease, in equity or at law.
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KKR47647
EXECUTION COPT 06-15-95
ARTICLE VI
GENERAL PROVISIONS
section 6.01. Notices. Demands and Communications
Between the Parties. All notices, demands or communications
submitted by any party to another party pursuant to or as required
by this Agreement shall be proper if in writing and dispatched by
messenger for immediate personal delivery, or by registered or
certified United states mail postage prepaid, return receipt
requested, to the principal office of the Agency or the Developer,
as applicable; as designated in section 1.05(a) and section
1.05(b). Written notices, demands and communications may be sent
in the same manner to such other addresses as either party may from
time to time designate in writing. Any notice, demand or communi-
cation shall be deemed to be received by the addressee, regardless
of whether or when any return receipt is received by the sender or
the date set forth on such return receipt, upon receipt if it is
dispatched by messenger for immediate personal delivery, or three
(3) days after it is placed in the United States mail, as
applicable.
section 6.02. Conflict of Interest. No member, official
or employee of the Agency having any conflict of interest, direct
or indirect, related to this Agreement and the development of the
site shall participate in any decision relating to the Agreement.
.The parties represent and warrant that they do not have knowledge
of any such conflict of interest.
section 6.03. Warrantv Aaainst PaYment of Consideration
for Aareement. The Developer warrants that it has not paid or
given, and will not payor give, any third party any money or other
consideration for Obtaining this Agreement. For the purposes of
this Section, third parties shall not include persons or entities
to whom fees are paid for professional services if rendered by
attorneys, financial consultants, accountants, engineers,
architects, title insurers, escrow agents and the like.
Section 6.04. Nonliabilitv of Aaencv Officials and
Emolovees. No member, official or employee of the Agency shall be
personally liable to the Developer, or any successor in interest,
for any default or breach by the Agency, or for any amount which
may become due to the Developer or to its successor, or on any
obligations under the terms of this Agreement.
section 6.05. Enforced Delav: Extension of Time of
Performance. In addition to specific provisions of this Agreement,
either party hereunder shall not be deemed to be in default where
delays or defau~ts are due to war; insurrection; strikes; lockouts;
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KKR47647
EXECUTION COPT 06-15-95
riots; floods; earthquakes; fires; casualties; acts of God; acts of
the public en.emy; epidemics;, quarantine restrictions; freight
embargoes or ;lack of transportation; weather-caused delays;
inability to'secure necessary labor, materials or tools; delays of
any contractor, subcontractor or supplier; acts of the other party
other than as permitted or required by the terms of this Agreement;
or any other causes beyond the control or without the fault of the
party claiming an extension of time to ,perform. Any extension of
time for any such cause hereunder shall be for the period of the
enforced delay and shall commence to run from the time of the
commencement of the cause, if notice by the party claiming such
extension is sent to the other party within thirty (30) days of the
commencement of the cause. It is expressly agreed that the failure
or inability of the Developer to obtain financing necessary or
appropriate to develop the Project shall not constitute an enforced
delay and shall not entitle Developer to any extension of time to
perform its obligations. Times of performance under this Agreement
may also be extended by the written mutual agreement of the Agency
and the Developer.
Section 6.06. Insoection of Books and Records. The
Agency shall have the right at all reasonable times, at the
Agency's cost and expense, to inspect the books and records of the
Developer pertaining to the site and/or the development thereof as
necessary for the Agency, in its.reasonable discretion, to enforce
its rights under this Agreement. Matters discovered by the Agency
shall not be disclosed to third parties unless required by law or
unless otherwise resulting from or related to the pursuit of any
remedies or the assertion of any rights of the Agency hereunder.
This section 6.06 shall not require the disclosure of
documents protected from disclosure by the attorney-client
privilege, attorney work product doctrine, or similar statutes or
provisions.
Section 6.07. Aoorovals. Approvals required of the
Agency or the Developer shall not be unreasonably withheld unless
expressly provided to the contrary in this Agreement. Approval or
disapproval shall be given within the time set forth in this
Agreement or t~e Schedule of Performance or, if no time is given,
within a reasonable time.
Section 6.08. Real Estate commissions. The Agency shall
not be liable for any real estate commissions, brokerage fees or
finder fees which may arise from or are related to this Agreement
and which are, incurred, or result from agreements. to pay such
commissions or fees entered into, by the Developer. The Developer
shall not be liable for any real estate commissions, brokerage fees
-36-
KKR47647
EXECUTION COPT 06:15095
..
or finder fees which may arise from or related to this Agreement
and which are incurred, or result from agreements to pay such
commissions or fees entered into, by the Agency.
section 6.09. Indemnif ication. The Developer shall
defend, indemnify and hold the City and the Agency, and their
respective officers, employees, contractors and agents, harmless
from and against all damages, judgments, costs, expenses and fees
suffered and incurred by said indemnified parties and arising from
or related to' any wrongful or negligent act or omission of the
Developer or any agent of Developer. The Agency shall defend,
indemnify and hold the Developer and its officers, employees and
agents, harmle~s from and against all damages, judgments, costs,
expenses and fees suffered and incurred by said indemnified parties
and arising from or related to any wrongful or negligent act or
omission of the Agency and arising out of the Agency's breach of
this Agreement.
Section 6.10. Attornevs' Fees. If either party files
any action or brings any 'action or proceeding against the other
arising out of this Agreement or is made a party to any action or
proceeding brought by the Escrow Agent, then as between the
Developer and the Agency, the prevailing party shall be entitled to
recover as an element of its costs of suit, and not as damages, its
reasonable attorney's fees as fixed by the court in such action or
. proceeding or in a separate action or proceeding brought to recover
such attorney's fees.
Section 6.11. IncorDoration of Attachments. The
following Attachments are attached to and incorporated in this
Agreement and are incorporated by reference in their entirety
wherever reference is made in this Agreement to any such
Attachment: "
Attachments
1 Legal Description of the Site
2a Scope of Development
2b Conceptual site Plan
2c Concept Evaluations
3 Schedule of Performance
4 The Site Grant Deed
.'
.
-37-
KKR47647
EXECUTION COPT 06-15-95
5 Certificate of Completion
6 Ground Lease
7 prelimina~y Title Report for the site dated
8 Adjacent City Owned Parcel
section 6.12. Calendar Davs: section Headinas. Any
reference to "days" in this Agreement shall mean calendar days, not
business days, unless expressly stated to the contrary. If a date
for performance hereunder falls on a weekend or legal holiday, then
performance shall be deemed timely if made on the next business
day.
The various Article and. section headings provided in this
Agreement are only for the convenience of the parties. No Article
or section heading shall be used to determine the import or meaning
of the text of any Section, nor shall any Article or Section
heading abridge, modify or otherwise alter the express language
contained in any such section or Article.
section 6. 13 . Aareement Product of Mutual Draftina.
This Agreement'is the product of extensive mutual negotiations and
drafting by both the Agency and the Developer. Both the Agency and
the Developer have been represented by legal counsel throughout the
course of the drafting and preparation of this Agreement.
Accordingly, the judicial rule that ambiguities in a document are
to be construed against the drafter of such document shall have no
application to this Agreement.
section 6.14. Bindina on Successors and Assians. This
Agreement shall be binding upon the legal successors and assigns of
the Agency and the Developer to the extent and as provided herein.
This Agreement may not be assigned or transferred by the Developer
except in accordance with the provisions contained herein.
section 6.15. Authoritv of Executive Director to Execute
Minor Amendments on Behalf of Aaencv. The Agency's Executive
Director is hereby authorized, with the concurrence of the Agency's
legal counsel, to make minor technical and other non-substantive
amendments to ~his Agreement on behalf of the Agency without the
need of formal'action of the Agency's governing body.
-38-
KKR47647
EXECUTION COPT 06-15-95
ARTICLE VII
ENTIRE AGREEMENT. WAIVERS AND AMENDMENT
Section 7.01. Entire Aareement. This Agreement may be
executed in three (3) duplicate originals, each of which will be
deemed to be an original, but when taken together shall constitute
but one Agreement. This Agreement includes forty-one (41) pages
and eight (8) Attachments which constitute the entire understanding
and agreement of the parties.
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all negotia-
tions or previous agreements between the parties with respect to
all or any part of the site and the development thereof.
None of the terms, covenants, agreements or conditions
set forth in this Agreement shall be deemed to be merged with the
grant deeds conveying title to the Site, and this Agreement shall
continue in full force and effect ,before and after such conveyance
in accordance with its terms.
All waivers of the provisions of this Agreement and all
amendments hereto must be in writing and signed by the appropriate
authorities of the Agency and the Developer.
ARTICLE VIII
TIME FOR ACCEPTANCE OF AGREEMENT
BY AGENCY AND RECORDATION
Section 8.01. Execution. This Agreement and the Lease
shall first he executed by the Developer and then promptly
delivered by tile Developer to the Agency. This Agreement and the
Lease must thereafter be approved, executed and delivered by the
Agency to the Developer within sixty (60) days after the date of
receipt of the:executed copy of this Agreement and the Lease by the
Agency from the Developer. In the event that the Agency has not
approved, executed and delivered the Agreement and the Lease to the
Developer within the foregoing period, then this Agreement and the
Lease shall be deemed to be of no further force or effect unless
the time for such approval, execution and delivery is extended by
written notice from the Developer to the Agency. The parties
further agree that this Agreement and the Lease may be executed in
any number of counterparts, each of which shall be deemed to be an
original and all of which shall constitute one instrument. The
date of this Agreement and the Lease shall be the date when the
Agreement and the Lease shall have been approved by the Agency.
-39-
KKR47647
ExeCUTION COPT 06-15-95,
IN, WITNESS WHEREOF, the parties hereto have duly executed
this 'Agreement as of the dates set forth below.
[SIGNATURES ON FOLLOWING PAGE]
-40-
KlCR47647
EXECUTION COPT 06-15-95
Date:
(SEAL)
ATTEST:
By:
Agency Secretary
APPROVED AS TO FORM:
Best, Best & Krieger
Agency Special Counsel
Date:
Michael Miller
Agency Attorney
Date:
KKR47647
EXECUTION COPT 06-15-95
ARCADIA REDEVELOPMENT AGENCY
By:
Agency Chairman
By: Arcadia steakhouse, L.P., a
California limited partnership
By: T-Bird Restaurant Groups,
Inc. ,
a [ ] corporation
Its: General Partner
By:
Its:
ATTEST:
secretary
-41-
Attachment 1
The site Legal Description
Att. 1-1
EXHIBIT "A"
PARCEL "A" (EXHIBIT 'B")
LOT 25, OF BLOCK 72. OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA. COUNTY
OF LOS ANGELES. STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 25.
PARCEL "B" (EXHIBIT "S')
LOT 24. OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA. COUNTY
OF LOS ANGELES. STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 24.
PARCEL "C" (EXHIBIT "/3')
LOT 23. OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA. COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS. IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 23.
PARCEL "D" (EXHIBIT "6")
A PORTION OF LOT 22. OF BLOCK 72. OF THE ARCADIA SANTA ANITA TRACT. IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES. STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELlANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY. LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 22 WITH A LINE WHICH
IS PARALLEL WITH AND DISTANT 15 FEET SOUTHERLY FROM THE NORTHERLY LINE OF,SAID
LOT; THENCE EASTERLY ALONG SAID PARALLEL LINE. NORTH 90. 00' 00" EAST 45,05 FEET;
THENCE SOUTH eo. 00' 08" EAST 5,04 FEET TO THE EASTERLY LINE OF SAID LOT 22. SAID POINT
BEING 15,88 FEET SOUTHERLY FROM THE NORTHEAST CORNER OF SAID LOT,
J:\2200.092\EX,A
Attachment 1
PARCEL 'E' (EXHIBIT "B")
A PORTION OF LOT 21, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELlANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 21 WHICH IS 15,88 FEET
SOUTHERLY FROM THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH 800 00' 08' EAST
23,76 FEET TO A LINE WHICH IS PARALLEL WITH AND DISTANT 20,00 FEET SOUTHERLY FROM
THE NORTHERLY LINE OF SAID LOT 21; THENCE EASTERLY ALONG SAID PARALLEL LINE NORTH
90000' 00" EAST 121.63 FEET TO THE EASTERLY LINE OF SAID LOT 21,
PARCEL 'F" (EXHIBIT 'B')
LOT 20, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL 'G" (EXHIBIT "B")
LOT 19, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
PARCEL 'H" (EXHIBIT "B')
A PORTION OF SECOND AVENUE (60 FEET WIDE), AS SHOWN ON THE ARCADIA SANTA ANITA
TRACT, IN THE CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN THE FOLLOVVING DESCRIBED
LINE:
BEGINNING AT THE NORTHEAST CORNER OF LOT 21, OF BLOCK 72, OF SAID ARCADIA SANTA
ANITA TRACT, SAID POINT BEING ON THE WESTERLY LINE OF SAID SECOND AVENUE (60 FEET
WIDE); THENCE SOUTHERLY ALONG SAID WESTERLY LINE 20,00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE ALONG THE EASTERLY PROLONGATION OF A LINE WHICH IS PARALlEL
WITH AND DISTANT 20 FEET SOUTH!,RL Y FROM THE NORTHERLY LINE OF SAID LOT 21, NORTH
900 00' 00' EAST 30,00 FEET TO THE CENTERLINE OF SAID SECOND, AVENUE (60 FEET WIDE);
THENCE SOUTHERLY ALONG SAID CENTERLINE SOUTH 00001' 00" WEST 135,57 FEET TO A
POINT ON A NONTANGENT CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 31,00 FEET
AND FROM WHICH A RADIAL LINE BEARS SOUTH 24018' 30' EAST; THENCE WESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 20 10' 45' AN ARC DISTANCE OF 1,18 FEET TO
A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE NORTH, HAVING A RADIUS
OF 29.00 FEET AND FROM WHICH A RADIAL LINE BEARS NORTH 260 29' 15" WEST; THENCE
WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 260 29' 30" AN ARC DISTANCE
OF 13.41 FEET TO A TANGENT LINE; THENCE WESTERLY ALONG SAID TANGENT LINE NORTf1
J:\2200.092\EX,A
89.59"45' WEST 16.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID SECOND AVENUE,
SAID POINT ALSO BEING ON THE EASTERLY LINE OF LOT 19 OF SAID ARCADIA SANTA ANITA
TRACT, LYING 1,00 FEET NORTHERLY FROM THE SOUTHEAST CORNER OF SAID LOT 19; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID SECOND AVENUE NORTH 00.01' 00. EAST
,139,12 FEET TO THE TRUE POINT OF BEGINNING,
J:\2200,092\EX-A
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HUNTINGTON'" ... DRIVE
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Attachment 2a
o
Scope of Development
The Developer shall design, construct and cause to be operated at
his cost at 6,500 sq. ft. Outback steakhouse ori the Southwest
Corner property.
The development shall meet all City ordinances.
Att. 2-1
Attachment 2b
Conceptual Site Plan
Att. 2-2
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Att. 2-4
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Attachment 3
SCHEDULE OF PERFORMANCE
PRE DDA
Developer submittal of Environmental Information
Form to Agency
Developer submittal of Concept site Plan to Agency
Agency complete environmental check list
Comments on Concept site Plan to Developer from
Agency; begin preparation of Environmental Assessment
Developer submittal of CUP application, payment of
fees to City
Submittal of Draft DDA to Developer by Agency;
order prelim. title report; Agency begins
preparation of Disposition Report; initiate street
vacation process
Developer comments on draft DDA
Agency sends notice to sierra Madre News of
preparation of Negative Declaration and Public Hearing
date/time .
Revise DDA; resend to Developer
Publication of above in Sierra Madre News
Agency sends notice to sierra Madre News of
publication of availability of DDA, Disposition
Report; Notice of
Public Hearing
Publication of above in sierra Madre News
Execution of final DDA by Developer; submittal
to Agency with $10,000 Administrative Fee
City council considers street vacation, set
7/11/95 - Public Hearing
Developer submittal of plans to Building for plan
check; payment of fees to City
CUP hearing on Outback before Planning commission
Public Hearing - City Council/Redevelopment Agency
on proposed DDA and environmental documents
Att. 3-1
05/02/95
3/24/95
3/24/95
3/31/95
3/31/95
4/27/95
4/27/95
5/10/95
5/18/95
5/23/95
5/25/95
5/25/95
6/01/95
6/05/95
6/06/95
6/12/95
6/13/95
6/20/95
Note: The Agency Executive Director is authorized to make minor
adjustments to this schedule.
POST DDA
Public Hearing - city council & Redevelopme~t Agency
on proposed DDA, Design Review, and environmental
documents 6/20/95
City forwards corrections on building plans to Developer 6/30/95
Developer to submit $10,000 administrative processing
fee 6/30/95
Agency e~ecutes & records DDA 7/05/95
Developer submittal of proof of financing and
if subordination is requested, Letter of Credit to
Agency 7/12/95
City receives second submitted of building plans
from developer 7/14/95
city council Public Hearing on street vacation 7/18/95
Term of lease ~egins; payment of permit fees by
'Developer, issuance of building permit 7/21/95
Developer begins construction
7/31/95
Developer concludes construction, request of
certificate of Occupancy from City 11/15/95
Restaurant opens; Developer requests certificate
of Completion from Agency (If restaurant opens earlier,
first lease payment due 5 days from opening) 11/17/95
First lease payment due 11/21/95
Agency issues certificate of Completion 12/20/95
Lease Payments (per DDA Att. 6,
Ground Lease, section 2.1): Monthly
Escrow opens:
July 1, 2000
Escrow Closes;'payment by
Developer of amount specified in section 2.04
of DDA
November 21, 2000
Att. 3-2
Attachment 4
site Grant Deed
Recording Requested by:
Arcadia Redevelopment Agency
After Recordation, Mail to:
Mail Tax statements to:
rTo be sUDDlied bv Outback
Steakhousel
GRANT DEED
For valuable consideration, the receipt of which is hereby
acknowledged,
THE ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and
politic, of the state of California (the "Grantor"), acting to
carry out the Redevelopment Plan for the Southwest Corner
Redevelopment Project, as amended (the "Redevelopment Plan")
pursuant to and in accordance with the Community Redevelopment Law
of the State of California, hereby grants and conveys to Arcadia
Steakhouse, L.P., dba Outback steakhouse, a California limited
partnership (the "Grantee"), the real property (the "Site") legally
described in Exhibit "A" attached hereto and incorporated herein by
this reference, subject to the other terms and conditions of this
grant deed.
1. The site is conveyed subject to the Redevelopment Plan
and pursuant to that certain document entitled "Disposition and
Development Agreement" entered into between the Grantor and the
Grantee, dated as of ("Agreement") . The
provisions of the Agreement are incorporated herein by this
reference and shall be deemed to be a part hereof as if set forth
at length herein. All initially capitalized terms not defined
herein shall have the meaning set forth in the Agreement for such
terms. I
2. The Grantee covenants and agrees for itself and its legal
successors that prior to the expiration of the term of the
Redevelopment Plan (as it exists and as it may be amended), the
Grantee and its legal successors shall devote the site and any
portion thereof to the uses permitted thereon pursuant to the
Redevelopment Plan. The Grantee further covenants and agrees for
itself, legal successors, and its Developer Affiliates that the
site shall be used solely for the purposes set forth in the scope
of Development or such other use as approved by the Grantor in its
sole discretion.
Att. 4-1
3., The Grantee covenants and agrees for itself and its
legal successors, that there shall be no discrimination against or
segregation of any person, or group of persons, on account of sex,
marital status, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the site (or any portion); nor shall the
Grantee or any person controlled by Developer, establish or permit
any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees of the site.
The foregoing covenants shall run with the site or any
portion in perpetuity.
4. The Developer covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
site or any portion, that the Grantee, its successors and assigns,
shall in perpetuity maintain in good condition the improvements on
the Site, shall keep the Site free from any accumulation of debris
or waste material, subject to normal construction job site
conditions, and shall maintain in a neat, orderly, healthy and good
condition the landscaping required to be planted in accordance with
the Scope of Development, Conceptual Site Plan and Concept
Elevations and approved building plans. The covenants of this
section 4 shall run with site or any portion in perpetuity.
5. The Grantee covenants and agrees for itself and its
legal successors to the site or any portion, that the Grantee and
its legal SUCCEssors and assigns shall refrain from restricting the
sale, lease, sublease, rental, transfer, use occupancy, tenure or
enjoyment of the site (or any portion) on the basis of sex, marital
status, race, color, religion, creed, ancestry or natural origin of
any person. All deeds, leases or contracts pertaining thereto
shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
(a) In deeds: liThe grantee herein covenants by and
for itself, its successors and assigns, and all persons claiming
under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on
account of sex, marital status, race,. color, religion, creed,
national origin or ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the land herein conveyed,
nor shall the grantee itself or any person claiming under or
through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
(b) In leases: "The lessee herein covenants by and
for itself, its successors and assigns, and all persons claiming
under or through them, and this lease is made and-accepted upon and
subject to the following conditions: That there shall be no
Att. 4-2
discrimination against or segregation of any person or group of
persons, on account of sex, marital status, race, color, religion,
creed, national origin or ancestry, in the leasing, subleasing,
renting, transferring, use, occupancy, tenure or enjoyment of the
land herein leased, nor shall the lessee itself, or any person
claiming under or through it, establish or permit such practice or
practices of discrimination or segregation with reference to the
selection, location, number or occupancy of tenants, lessees,
sublessees, tenants, or vendees in the land herein leased."
(c) In contracts: "There shall be no
discrimination against or segregation of, any person or group of
persons on account of sex, marital status, race, color, religion,
creed, national origin or ancestry in. the sale, lease, sublease,
rental, transfer, use, occupancy, tenure or enjoyment of the land
or through it, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the land."
The foregoing covenants shall run with the site or any portion in
perpetuity.
6. The covenants contained in this Grant Deed shall be
binding for the benefit of the Grantor or the City of Arcadia and
their successors and assigns, and such covenants shall run with the
land in favor of the Grantor for the entire period during which
such covenants shall be in full force and effect, without regard to
whether the Grantor or the City of Arcadia is or remains an owner
of any land or interest herein to which such covenants relate. The
Grantor, in the event of any breach of any such covenants, shall
have the right to exercise all of the rights and remedies, and to
maintain any actions at law or suits in equity or other proper
proceedings to enforce the curing of such breach as provided in the
Agreement or by law. The covenants contained in this Grant Deed
shall be for the benefit of and shall be enforceable only by the
Grantor, the city of Arcadia and their successors.
7. The Grantee covenants and agrees that neither it nor
its assigns or successors in interest to the site or the Agreement,
shall use or otherwise sell, transfer, convey, assign, lease,
leaseback or hyPothecate the site or any portion thereof to any
entity or party for any use that is partially or wholly exempt from
the payment of real property' taxes, or which would cause the
exemption of the payment of all or any portion of such real
property taxes during the time that the Redevelopment Plan (as it
exists and as it may be amended) is in effect.
8. The Grantee covenants and agrees for itself, its
successors and assigns that it shall continually operate an Outback
Steakhouse, or substantially equivalent restaurant operation as
reasonably approved by the Grantor, upon the site for a period of
no less than five (5) years from the date that the restaurant first
Att. 4-3
opens for business; provided, however, that Grantee may cease
operations for no more than thirty (30) days no more than once
every thirty-six (36) months for the purposes of refurbishing
and/or repairing or its fixtures or equipment. The Grantee
specifically acknowledges and agrees that the Grantee's liability
for a breach of the covenant of this section 4.05 shall accrue
regardless of whether the breach is due to the Grantee's fault,
acts of God, or other causes outside the Grantee's control.
The Grantee shall not be in breach of this section 8 if
the failure to operate is due to fire or other catastrophic
casualty; provided, however, that the Grantee must begin to rebuild
or restore the restaurant within sixty (60) days from such
catastrophe and thereafter diligently pursue and complete the
repair or rebuilding within six (6) months from the date of
cessation of operation.
Grantee hereby irrevocably stipulates and agrees that
should Grantee breach this Section 8, the Grantor may recover as
damages (in addition to all other available remedies) the product
of "x" times "y" where:
"x" equals 60 minus the number of months that Developer
has continually operated the restaurant in accordance
with the provisions of this section 8; and
"y" equals the product of .01 times the amount of average
gross monthly sales generated by the restaurant in the
twelve (12) months immediately preceding the cessation of
operation. If a breach of the covenant of this section
4.05 occurs during the first twelve (12) months following
the date upon which the restaurant first opens for
business, then the sum of Two Hundred Seventy Five
Thousand Dollars ($275,000) is hereby stipulated and
agreed by the parties as the average gross monthly sales
to be used in calculating "y."
Should the Grantor institute any action or proceeding to
recover damages from the Grantee for the Grantee's breach of this
section 8, the Grantee hereby irrevocably waives any defense in
such action or proceeding which is based upon any argument or legal
theory that the damages sought to be recovered by the Grantor are
speculative or that the provisions of this section 8 are too vague,
ambiguous or uncertain to be enforced.
The covenants of this Section 8 shall run with the site
or any portion';'
9. The title to the Site conveyed by this grant deed
excludes (to the extent now or hereafter validly excepted and
reserved by the parties named in existing deeds, leases and other
documents of record) and the Grantor hereby reserves all oil, gas,
hydrocarbon substances and minerals of every kind and character
Att. 4-4
lying more than five hundred (500) feet below the surface for any
purposes incidental to the exploration for and production of oil,
gas, hydrocarbon substances or minerals but without, however, (and
such reservation shall not include) any right to use the surface of
the site or any portion thereof within five hundred (500) feet of
the surface for any purpose whatsoever.
[SIGNATURES ON FOLLOWING PAGE]
Att. 4-5
11
IN WITNESS WHEREOF, the Grantor and Grantee have caused this
instrument to be executed on their behalf by their respective
officers thereunto duly authorized, this day of ,
19_
Date:
(SEAL)
ATTEST:
By:
Agency Secretary
Date:
APPROVED AS TO FORM:
Best, Best & Krieger
Agency Special Counsel
Date:
Michael Miller
Agency Attorney
Date:
ARCADIA REDEVELOPMENT AGENCY
By:
Agency Chairman
By: Arcadia Steakhouse, L.P.,
a California limited
partnership
By: T-Bird Restaurant Groups,
Inc. ,
a [ ] corporation
Its: General Partner
By:
Its:
ATTEST:
Secretary
Att. 4-6
SfATI! OF CALIFORNIA
}
}
}
COUNI'Y OF
On . 1995, bdore me, the undersigned notary public, pcnoaaUy
appeared . D pel500aUy known to me OR 0 pr'OYed to me oa the basis of
satisfactory evidence to be the persona wbOK names are subscribed to the within
instrument and acknowledged to me that they executed the same in their authorized
capacitics, and that by their signatures 011 the instrument the persons. or the entity
upon behalf of which the persons acted, executed the instrument.
~ my hand and official seal.
Signature of Notary
Att. 4-7
..____..__00___...__.
I CAPACI1YCLAIMEDBY I
! SIGNER: I
i, 0 Individual(l) !
I 0 Corporate I
I om"'r(&) I
o Partner(l)
o Attorney-in-Fact
. 0 TNltee(l) .
I I
I 0 Subscribing Witney I
o Guanlian/Conservator
I OOtber !
SIGNER IS,
REPRESENTING:
NAMB OF PBRSON(S) OR
I!NITI"Y(IES)
I
.
_..__..1
STATE OF CAUFORNIA
}
}
}
COUNrY OF
On . 1995, before me, the undersigned notary public, personaUy
.appeared .0 personally known to me OR 0 proved to me on tbe bU15 of
satisfactory evidence to be the penons wh05e names are subscribed to the within
instrument and acknowledged to me thlt they executed tbe same in their authorized
capacities, and that by their signatures on the instrument the pcrso~ or the entity
upon behalf of which the pel50ns acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
Att. 4-8
,j"......'.....'...-............-'..................'............'..'.........
i CAPACI'lYCLAIMEDBY
! SIGNER:
Ii [] Individual(.)
o Corporate
Officer(.)
! [] panner(.)
t 0 Attorney-in-Fact
I [] Trullee(.)
o Subscribing Witness
[] Guardian/Conservator
OOtber
i
i
I
i
i
I S I
i
i
OR I
I
--=---....-...-.--,.,......,....-..,..,\
SIGNER
REPRESENTING:
NAME OF PERSON(S)
ENITrY(IES)
STAlE OP CAUPORNIA
}
}
}
COUNIY OP
On . 1995, before me, the undersigned notary public. personally
appeared . Cl personally known to me OR a proved to me on tbe bail of
satisfactory evidence to be L1"c persons wb05C DalllCI are subscribed to the witbia
instrument and acknowledged to me tbat they executed the same in tbeir authorized
capacitics, and that by their signatures on the il15trument the penofll, or the entity
upon behalf of whicb tbe penol1l acted, executed the instrument. .
WITNESS my hand and official seal.
Signature of Notary
Att. 4-9
f...--.-.--..-..---.....-...........--.-j
i CAPACIlYCLAIMEDBY i
! SIGNER: i
, '
I a Individual(l) i
a Corporate I
Off=r(I)
a Partoer(l)
Cl Attorney-in-Fact
a TJUI.ee(I)
D Subscribing Witness
o Guardian/CoOSCMllOr
o Other
SIGNER
REPRESENTING:
NAME! OP PE!RSON(S) OR
I!NITIY(II!S)
.
,
I
I S I
I
i
,_ I
...-----------.......--.--..--...:
EXHIBIT "A"
PARCEL "A" (EXHIBIT 'BO)
LOT 25, OF BLOCK 72. OF THE ARCADIA SANTA ANITA TRACT. IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 25,
PARCEL "B" (EXHIBIT 'B")
LOT 24, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES. STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 24.
PARCEL 'C' (EXHIBIT "B')
LOT 23, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 23,
PARCEL '0' (EXHIBIT 06')
A PORTION OF LOT 22, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 22 WITH A LINE WHICH
IS PARALLEL WITH AND DISTANT 15 FEET SOUTHERLY FROM THE NORTHERLY LINE OF.SAID
LOT; THENCE EASTERLY ALONG SAID PARALLEL LINE, NORTH 90. 00' 00' EAST 45,05 FEET;
THENCE SOUTH 80. 00' 08' EAST 5,04 FEET TO THE EASTERLY LINE OF SAID LOT 22, SAID POINT
BEING 15,88 FEET SOUTHERLY FROM THE NORTHEAST CORNER OF SAID LOT.
J:\2200.092\EX-A
Attachment 1
PARCEL 'E' (EXHIBIT 'B')
A PORTION OF LOT 21, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES, STATE OF CAUFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELlANEOUS RECORDS. IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED UNE:
BEGINNING AT A POINT ON THE WESTERLY UNE OF SAID LOT 21 WHICH IS 15,88 FEET
SOUTHERLY FROM THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH 80.00' 08' EAST
23,76 FEET TO A UNE WHICH IS PARALLEL WITH AND DISTANT 20,00 FEET SOUTHERLY FROM
THE NORTHERLY UNE OF SAID LOT 21; THENCE EASTERLY ALONG SAID PARALLEL UNE NORTH
90.00' 00' EAST 121,63 FEET TO THE EASTERLY LINE OF SAID LOT 21,
PARCEL 'f' (EXHIBIT "B')
LOT 20, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CAUFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELlANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
PARCEL 'G" (EXHIBIT 'B')
LOT 19, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CAUFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
PARCEL "H' (EXHIBIT "B')
A PORTION OF SECOND AY:ENUE (60 FEET WIDE), AS SHOWN ON THE ARCADIA SANTA ANITA
TRACT, IN THE CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF CAUFORN.lA, AS PER
MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF MISCELlANEOUS RECORDS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN THE FOllOWING DESCRIBED
UNE:
BEGINNING AT THE NORTHEAST CORNER OF LOT 21, OF BLOCK 72, OF SAID ARCADIA SANTA
ANITA TRACT, SAID POINT BEING ON THE WESTERLY UNE OF SAID SECOND AVENUE (60 FEET
WIDE); THENCE SOUTHERLY ALONG SAID WESTERLY UNE 20,00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE ALONG THE EASTERLY PROLONGATION OF A UNE WHICH IS PARALLEL
WITH AND DISTANT 20 FEET SOUTHERLY FROM THE NORTHERLY UNE OF SAID LOT 21, NORTH
90. DO' 00' EAST 30,00 FEET TO THE CENTERUNE OF SAID SECOND AVENUE (60 FEET WIDE);
THENCE SOUTHERLY ALONG SAID CENTERUNE SOUTH 00.01' 00' WEST 135,57 FEET TO A
POINT ON A NONTANGENT CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 31,00 FEET
AND FROM WHICH A RADIAL LINE BEARS SOUTH 240 18' 30' EAST; THENCE WESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 20 10' 45' AN ARC DISTANCE OF 1.18 FEET TO
A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE NORTH, HAVING A RADIUS
OF 29,00 FEET AND FROM WHICH A RADIAL LINE BEARS NORTH 260 29' 15" WEST; THENCE
WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26029' 30' AN ARC DISTANCE
OF 13.41 FEET TO A TANGENT UNE; THENCE WESTERLY ALONG SAID TANGENT LINE NORTH
, '
J:\2200.092\EX-A
890 59' 45" WEST 16,00 FEET TO A POINT ON THE WESTERLY LINE OF SAID SECOND AVENUE,
SAID POINT ALSO BEING ON THE EASTERLY LINE OF LOT 19 OF SAID ARCADIA SANTA ANITA
TRACT. LYING 1.00 FEET NORTHERLY FROM THE SOUTHEAST CORNER OF SAID LOT 19; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID SECOND AVENUE NORTH 00001' 00" EAST
139.12 FEET TO THE TRUE POINT OF BEGINNING,
J:\2200,092\EX,A
Attachment 5
CERTIFICATE OF COMPLETION
We, , Chairman and
---------------------------~
, Secretary of the Arcad~a Redevelopment Agency
(the "Agency") hereby certify as follows:
By its resolution No. , adopted and approved
, 19 _, the Agency has resolved as follows:
section 1. The improvements required to be constructed in
accordance with that certain "Disposition and Development
Agreement" (the "Agreement") dated as of by
and between the Agency and Arcadia Steakhouse, L.P., dba Outback
Steakhouse, a limited partnership (the "Developer")
on that certain real property (the "Site") more-fully described in
Exhibit "A" attached hereto and incorporated herein by this
reference, have been completed in accordance with the provisions of
the Agreement.
section 2. This certificate of Completion shall constitute a
conclusive determination of satisfaction of the agreements and
covenants contained in the Agreement with respect to the obliga-
tions of the Developer, and its successors and assigns, to con-
struct and develop the improvements on the Site, and including all
buildings and all parking, landscaping and related onsite and
offsite improvements necessary to support or which meet the
requirements applicable to the building and its use and occupancy
on the Site, all as described in the Agreement, and to otherwise
comply with the Developer's obligations under the Agreement with
respect to the site and the dates for the beginning and completion
of the construction of improvements thereon under the Agreement;
provided, however, that the Agency may enforce any covenant
surviving this certificate of Completion in accordance with the
terms and conditions of the Agreement and the grant deed pursuant
to which the Site was conveyed under the Agreement. Said Agreement
is an official record of the Agency and a copy of said Agreement
may be inspected in the office of the Secretary of the
Redevelopment Agency of the City of Arcadia located at 240 West
Huntington Drive, Arcadia, CA during regular business hours.
Att. 5-1
section 3.
Completion pertains
hereto.
The site to which this. certificate of
is more fully described in Exhibit "A" attached
DATED AND ISSUED this
day of
, 19_
Chairman of the
Arcadia Redevelopment Agency
[SEAL]
ATTEST:
Secretary of the
Arcadia Redevelopment Agency
Att. 5-2
STAlE OF CAUPORNIA
COUNIY OF
}
}
}
On . 1995, before me, the undersigned notary public, penoaally
appeared i a pcl50DaUy known to me OR 0 proved to me on the basis of
iatWlClOry evidence to be tbe persons whC*: names are lubscribed to the witbin
instnlmcnt and aclcnowlcdged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the penon&, or the entity
upon behalf of which the persons acted, executed the iN:trumcnt.
WITNESS my hand and official seal.
Signature of Notary
Att. 5-3
I
j
;
;
;
L
EXHIBIT "A"
PARCEL "A' (EXHIBIT "B')
LOT 25, OF BLOCK 72, OFTHE ARCADIA SANTA ANITA TRACT. IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHEf'lLY 15 FEET OF SAID LOT 25.
PARCEL "B" (EXHIBIT "B')
LOT 24, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 24.
PARCEL 'C' (EXHIBIT "B")
LOT 23, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGelES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 23,
PARCEL "D' (EXHIBIT "B")
A PORTION OF LOT 22, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCElLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 22 WITH A LINE WHICH
IS PARALLEL WITH AND DISTANT 15 FEET SOUTHERLY FROM THE NORTHERLY LINE OF.SAID
LOT; THENCE EASTERLY ALONG SAID PARALLEL LINE, NORTH 900 00' 00' EAST 45,05 FEET;
THENCE SOUTH 800 00' 08" EAST 5,04 FEET TO THE EASTERLY LINE OF SAID LOT 22, SAID POINT
BEING 15,88 FEET SOUTHERLY FROM THE NORTHEAST CORNER OF SAID LOT.
J:\2200.092\EX.A
Attachment 1
PARCEL 'E' (EXHIBIT "B")
A PORTION OF LOT 21, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES. STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELlANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 21 WHICH IS 15,88 FEET
SOUTHERLY FROM THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH 80000' 08' EAST
23.76 FEET TO A LINE WHICH IS PARALLEL WITH AND DISTANT 20,00 FEET SOUTHERLY FROM
THE NORTHERLY LINE OF SAID LOT 21; THENCE EASTERLY ALONG SAID PARALLEL LINE NORTH
90000' DO" EAST 121,63 FEET TO THE EASTERLY LINE OF SAID LOT 21,
PARCEL 'F' (EXHIBIT 'B')
LOT 20, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
PARCEL 'G" (EXHIBIT 'B')
LOT 19, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL 'H" (EXHIBIT "B')
A PORTION OF SECOND A~ENUE (60 FEET WIDE), AS SHOWN ON THE ARCADIA SANTA ANITA
TRACT, IN THE CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF MISCELlANEOUS RECORDS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN THE FOLLOWING DESCRIBED
LINE:
BEGINNING AT THE NORTHEAST CORNER OF LOT 21, OF BLOCK 72, OF SAID ARCADIA SANTA
ANITA TRACT, SAID POINT BEING ON THE WESTERLY LINE OF SAID SECOND AVENUE (60 FEET
WIDE); THENCE SOUTHERLY ALONG SAID WESTERLY LINE 20,00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE ALONG THE EASTERLY PROLONGATION OF A LINE WHICH IS PARALLEL
WITH AND DISTANT 20 FEET SOUTHERLY FROM THE NORTHERLY LINE OF SAID LOT 21, NORTH
90' 00' 00' EAST 30,00 FEET TO THE CENTERLINE OF SAID SECOND, AVENUE (60 FEET WIDE);
THENCE SOUTHERLY ALONG SAID CENTERLINE SOUTH 00001' 00' WEST 135,57 FEET TO A
POINT ON A NONTANGENT CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 31,00 FEET
AND FROM WHICH A RADIAL LINE BEARS SOUTH 24' 18' 30' EAST; THENCE WESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 2' 10' 45' AN ARC DISTANCE OF 1,18 FEET TO
A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE NORTH, HAVING A RADIUS
OF 29.00 FEET AND FROM WHICH A RADIAL LINE BEARS NORTH 26' 29' 15' WEST; THENCE
WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26029' 30" AN ARC DISTANCE
OF 13,41 FEET TO A TANGENT LINE; THENCE WESTERLY ALONG SAID TANGENT LINE NORH!
J:\2200.092\EX.A
89. 59' 45' WEST 16,00 FEET TO A POINT ON THE WESTERLY LINE OF SAID SECOND AVENUE,
SAID POINT ALSO BEING ON THE EASTERLY LINE OF LOT 19 OF SAID ARCADIA SANTA ANITA
TRACT, LYING 1.00 FEET NORTHERLY FROM THE SOUTHEAST CORNER OF SAID LOT 19; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID SECOND AVENUE NORTH 00.01' 00' EAST
, 139.12 FEET TO THE TRUE POINT OF BEGINNING,
J:\22011.092\EX-A
Attachment 6
GROUND LEASE
by and between
ARCADIA REDEVELOPMENT AGENCY,
a publio body, corporate and politio
and
ARCADIA STEAKHOUSE, L.P., a California limited partnership,
dba OUTBACK STEAKHOUSE
Dated:
, 1995
Att. 6-1
GROUND LEASB
Preamble and Recitals
This Lease is entered into on 1995, by and between
the ARCADIA REDEVELOPMENT AGENCY, a public body, corporate and
politic, referred to in this Lease as "Landlord," and ARCADIA
STEAKHOUSE, L. P., "a California limited partnership, dba Outback
steakhouse, referred to in this Lease as "Tenant".
A. Landlord is the owner of certain real property in the
County of Los Angeles, state of California, described on Exhibit
"A" which is attached and made a part of this Lease (referred to in
this Lease as "the site").
B. Tenant desires to lease the site for the purpose of
constructing a steakhouse restaurant ("the Project"), appurtenant
parking areas and other related improvements (collectively referred
to in this Lease as "the Improvements") in accordance with the
agreement of the parties as set forth in this Lease and the
Agreement (defi.ned hereinafter).
C. Landlord and Tenant have contemporaneously with this
Lease entered into that certain document entitled "Disposition and
Development Agreement" of even date herewith ("Agreement"). The
Agreement is incorporated by this reference in its entirety as
though fully set forth hereat. The Tenant's possession of the site
and its rights, obligations and duties with respect thereto shall
be as set forth in this Lease and the Agreement. All initially
capitalized'terms used herein which are not defined in this Lease
shall have the meaning ascribed to them in the Agreement.
ARTICLB 1. LEASB OJ' SITB AND TERM
OJ' LEASB
Agreement to Lease
Section 1.1. For and in consideration of the rents to be paid
and covenants to be performed by Tenant under this Lease and the
Agreement, Landlord hereby agrees to lease the site to Tenant, and
Tenant agrees to lease the site from Landlord, on the terms and
conditions set forth in this Lease and the Agreement. Except as
expressly otherwise provided in this Lease, the "site" includes the
real property plus any appurtenances and easements described in
Exhibit "A" of this Lease, exclusive of any Improvements now or
hereafter located on the Site, notwithstanding that any such
Improvements mayor shall be construed as affixed to and as
constituting part of the described Site, and without regard to
whether ownership of the Improvements is in the Landlord or in the
Tenant.
Tenant and Landlord specifically acknowledge and agree that
the Tenant's use and enjoyment of the Site and its duties, rights
Att. 6-2
and obligation6 with respect thereto, are set forth in this Lease
and the 'Agreement. In the event of any conflict or inconsistency
between this Lease and the Agreement, the document imposing the
greater obligation upon Tenant or imposing the stricter requirement
shall control.
status of Title
section 1.2. Title to the leasehold estate created by this
Lease is subject to all exceptions, easements, rights, rights-of-
way, and other matters of record set forth on the Preliminary Title
Report issued by First American Title Company of Los Angeles, dated
[date], a copy of which is attached as Exhibit liB. II [Use
Exhibit 7 from DDAJ
Effeotive Date and Term of Lease
section 1.3. This Lease shall become effective commencing on
the date ("Effective Date") which is the earlier of:
(a) Thirty (30) days following approval of this Lease
and the Agreement by Landlord; or
(b) ,The date when both of the following are true;
(i) Tenant has provided evidence of satisfaction
financing commitment for the' Project in accordance with the
provisions of section 2.17 of the Agreement; and
(ii) Tenant has obtained the first building permit
for the Project.
The term of this Lease shall be for a period of five
years from and after the date on which the project first opens for
business; provided, however, that unless extended as provided in
section 2.06 of the Agreement and subject to the payment of rental
as provided therein, this term of this Lease may not, under any
circumstances other than those described in section 2.06 of the
Agreement, extend for a period greater than five (5) years and
four months from the Effective Date.
ARTJ:CLB 2. RB!IT
Rent
section 2.1. Tenant shall pay to Landlord the cash sum of
Three Thousand Seven Hundred and Fifty Dollars ($3,750) per month"
as rental for the site for the term of this Lease. The first
rental payment shall be due on the earlier to occur of the
following:
(i) November 21, 1995; or
Att. 6-3
(ii) Five (5) days after the restaurant to be constructed
'by Tenant upon the site first opens for business.
Further rental payments shall be due and payable on the same day of
each month following the first rental payment for the full term of
this Lease.
In addition to the rent provided by this section 2.1, if the
term of the Lease is extended is provided in section 2.06 of the
Agreement, then rental shall be paid as provided in section 2.06 of
the Agreement throughout the extended term of the Lease. All rent
required under this Lease or the Agreement shall be paid to
Landlord at 240 West Huntington Drive, Arcadia, California 91006,
or at any other place or places that Landlord may designate by
written notice to Tenant.
Provided that the Tenant has fulfilled all of its obligations
under this Lease and the Agreement and is not in default of either
this Lease or the Agreement, Three Thousand Three Hundred Thirty
Three Dollars and Thirty Three Cents ($3,333.33) of each rental
payment shall be credited towards the Tenant's mandatory purchase
of the site at the end of this Lease term, as more specifically
provided in Article II of the Agreement. If this Lease or the
Agreement is terminated prior to the expiration of the term of this
Lease due to an uncured material default of Tenant under either
this Lease or the Agreement, then Landlord may keep all rental
payments received and Tenant shall have no right of credit, off-set
reimbursement or deduction. The foregoing shall not in any way
limit any other remedies or damages available to Landlord under
this Lease, the Agreement, at law, or in equity.
security Deposit
[ReServed.]
No partnership or Joint Venture
Section 2.2. Nothing in this Lease shall be construed to
render the Landlord in any way or for any purpose a partner, joint
venturer, or associate in any relationship with Tenant other than
that ,of Landlord and Tenant, nor shall this Lease be construed to
authorize either to act as agent for the other.
"
ARTZCLB 3. USB O~ SZTB
Permitted Use
.
section 3.1. Tenant shall use the Site solely for the
purposes set forth in the Agreement including, without limitation,
Att. 6-4
the Scope of- Development. Tenant may change the use of the site
only with the provisions of the Agreement.
Compliance with Laws
Section 3.2. Tenant shall, at Tenant's own cost and expense,
comply with all statutes, ordinances, regulations, and requirements
of all governmental entities, both federal and state and county or
municipal, including those requiring capital improvements to the
site or Improvements, relating to Tenant's use and occupancy of the
site ~hether those statutes, ordinances, regulations, and
requirements are now in force or are subsequently enacted. If any
license, permit, or other governmental authorization is required
for the lawful use or occupancy of the site or any portion of the
Site, the Tenant shall procure and maintain it throughout the term
of this Lease. The judgment of any court of competent
jurisdiction, or the admission by Tenant in a proceeding brought
against Tenant by any government entity, that Tenant has violated
any such statute, ordinance, regulation, or requirement shall be
conclusive as between Landlord and Tenant and shall constitute
grounds for teFmination of this Lease by Landlord.
Prohibited Uses
Section 3.3. Tenant shall not use or permit the Site or any
portion of the site to be improved, developed, used, or occupied in
any manner or for any purpose that is in any way in violation of
any valid law, ordinance, or regulation of any federal, state;
county, or local governmental agency, body, or entity.
Furthermore, Tenant shall not maintain, commit, or permit the
maintenance or commission of any nuisance as now or hereafter
defined by any statutory or decisional law applicable to the site
or any part of the Site.
ARTICLE 4. TAXES AND UTILITIES
Tenant to pay Taxes
Section 4~1. Tenant shall pay during the term of this Lease,
without abatement, deduction, or offset, any and all real and
personal property taxes, possessory interest taxes, general and
special assessments, surcharges, subventions, penalties and
interest, and all other fees or charges (including any increase
caused by a change in the tax rate or by a change in assessed
valuation) of any description levied or assessed during the term of
this Lease by any governmental agency or entity on or against the
Site, the Improvements located on the Site, personal property
located on or in the site or Improvements, the Agreement, and the
leasehold estate created by this Lease. '
Att. 6-5
"
,
separate Assessment of Leased site
section 4. 2 . Should the site be assessed and taxed with or as
part of other property owned by Landlord prior to commencement of
the term of this Lease, Landlord shall arrange with the taxing
,authorities to thereafter have the site taxed and assessed as a
separate parcel distinct from any other real or personal property
owned by Landlord. Should the site be assessed and taxed for the
year in which this Lease is to commence with or as part of other
property owned by Landlord, the share of the taxes, assessments, or
other charges for which Tenant is liable to pay pursuant to section
4.1 shall be determined as follows: Tenant shall pay an amount
equal to that portion of the taxes, assessments, and other charges
that bears the same ratio to the total of the taxes, assessments,
and other charges as the ground area of the Site bears to the
ground area of the total taxed property.
Payment Before Delinquency
section 4.3. Any and all taxes and assessments and
installments of taxes and assessments required to be paid by Tenant
under this Lease shall be paid by Tenant at least ten (10) days
before each such tax, assessment, or installment of tax or
assessment becomes delinquent. On the written request of Landlord,
Tenant shall deliver to Landlord the official and original receipt
evidencing the payment of any taxes, assessments, and other charges
required under this Article.
Taxes payable in Installments
section 4.4. Should any tax or assessment be levied on or
assessed against the site that may be either paid in full prior to
a delinquency date within the term of this Lease or paid in
installments over a period either within or extending beyond this
Lease, Tenant shall have the option of paying the tax or assessment
in installments. The fact that the exercise of the option to pay
the tax or assessment in installments will cause the site to be
encumbered with bonds or will cause interest to accrue on the tax
or assessment is immaterial and shall not interfere with the free
exercise of the option by Tenant. Should Tenant exercise the
option to pay any such tax or assessment in installments, Tenant
shall nonetheless be liable to pay all taxes, assessments,
penalties and interest thereon, levied or assessed during the term
of this Lease as provided in section 4.1 hereof.
Contest of Tax
Section 4.5. Tenant shall have the right to contest, oppose,
or object to the amount or validity of any tax, assessment, or
other charge levied on or assessed against the site or any part of
the Site; provided, however, that the contest, opposition, or
objection must be filed before the tax, assessment, or other charge
at which it is directed becomes delinquent and that written notice
of the contest, opposition, or objection must be given to Landlord
at least ten (10) days before the date the tax, assessment, or
Att. 6-6
other charge, becomes delinquent. Tenant shall be responsible for
and shall pay all costs and expenses in any contest or legal
proceeding instituted by Tenant. In no event shall Landlord be
subjected to any liability for costs or expenses connected to any
contest by Tenant, and Tenant agrees to indemnify and hold Landlord
harmless from any such costs and expenses. Furthermore, no such
contest, opposition, or objection shall be continued or maintained
after the date the tax, assessment, or other charge at which it is
directed becomes delinquent unless Tenant has either:
(i) Paid the tax, assessment, or other charge under
protest prior to its becoming delinquent; or
(ii) Obtained and maintained a stay of all proceedings
for enforcement and collection of the tax,
assessment, or other charge by posting- a bond or
other security required by law for such a stay; or
(iii) Delivered to Landlord a good and sufficient surety
bond in an amount specified by Landlord and issued
by a bonding corporation licensed to do business in
-,California, conditioned on the payment by Tenant of
ithe tax, assessment, or charge together with any
fines, interest, penalties, costs, and expenses
that may have accrued or been imposed thereon
within 30 days' after final determination of
Tenant's contest, opposition, or objection to the
'tax, assessment, or other charge.
Nothing in this Section 4.5 shall modify, amend or abridge tenant's
obligations under section 3.07 of the Agreement.
Tax Returns and statements
section 4.6. Tenant shall, as between Landlord and Tenant,
have the duty of attending to, preparing, making, and filing any
statement, return, report, or other instrument required or
permitted by law in connection with the determination,
equalization, reduction, or payment of any taxes, assessments, or
other charges that are or may be levied on or assessed against the
site, the Improvements located on the site, personal property
located on or in the site or Improvements, and the leasehold estate
created by this Lease.
Tax Hold-Harmless Clause
section 4.7. Tenant shall indemnify and hold Landlord and the
property of Landlord, including the site and any Improvements now
or hereafter located on the premises, free and harmless from any
liability, loss, or damage resulting from any taxes, assessments,
or other charqes required by this Article to be paid by Tenant and
from all interest, penalties, and other sums imposed thereon and
from any sales or other proceedings to enforce collection of any
such taxes, assessments, or other charges. The obligations of this
Att. 6-7
Section 4.7 shall survive the expiration or earlier termination of
this Lease.
utilities
section 4.8. Tenant shall payor cause to be paid, and hold
Landlord and the property of Landlord including the Site free and
harmless from, all charges for the' furnishing of gas, water,
electricity, telephone service, and other public utilities to the
site during the term of this Lease and for the removal of garbage
and rubbish from the site during the term of this Lease. The
obligations of this section 4.8 shall survive the expiration or
earlier termination of this Lease.
payment by Landlord
Section 4.10. Should Tenant fail to pay within the time
specified in this Article any taxes, assessments, or other charges
required by this Article to be paid by Tenant, Landlord may,
without notice to or demand on Tenant, pay, discharge, or adjust
that tax, assessment, or other charge for the benefit of Tenant.
In that event, Tenant shall within ten (10) days following on
written demand of Landlord, reimburse Landlord for the full amount
paid by Landlord in paying, discharging, or adjusting that tax,
assessment, or other charge together with interest thereon at the
"then-maximum legal rate from the date of payment by Landlord until
the date of repayment by Tenant. If this Article does not specify
the time within which Tenant must pay any charge required by this
Article, Tenant shall pay that charge before it becomes delinquent.
ARTICLE 5. CONSTRUCTION BY TENANT
Duty to Construct
section 5. 1. Tenant shall, at Tenant's sole cost and expense,
construct or cause to be constructed on the site the "project" as
defined in this Lease and more particularly in the"Agreement, in
accordance with all the terms, conditions and provisions of the
Agreement.
Requirement of Landlord's written Approval
section 5.2. No structure or other improvement of any kind
shall be constructed on the site unless and until the plans,
specifications, and proposed location of that structure or
improvement have been approved in writing by Landlord as provided
in the Agreement. Furthermore, no structure or other improvement
shall be constructed on the site that does not comply with plans,
specifications, and locations approved in writing by Landlord as
provided in the Agreement.
Preparation and Submission of Plans
Att. 6-8
section, 5.3. Tenant shall, at Tenant,' s own cost and expense,
provide such plans and specifications.relative to the development
of the site and the Project in accordance with the provisions of
section 3.1 of the Agreement.
Landlord's Approval or Rejeotion of Plans
section 5.4. The Landlord's rights to approve or reject the
plans and specifications for the Project shall be as set forth in
section 3.01 of the Agreement.
changes in Plans
Section 5.5.
Landlord shall be
Agreement.
Any changes 'in plans after their approval by the
subject to the provisions of section 3.01 of the
All Work on written Contraot
section 5.6. All work required in the construction of the
Project, including any site preparation work, landscaping work, and
utility installation work, as well as actual construction work on
the Project, shall be performed only by competent contractors
licensed under the laws of the state of California and shall be
performed pursuant to written contracts with those contractors.
Each such contract shall provide' that the final payment under the
contract due to the contractor shall be in an amount equaling at
least ten (lOt) percent of the full amount payable under the
contract and shall not be paid to contractor until whichever of the
following last occurs:
(i) The expiration of 35 days from the date of
recording by Tenant of a Notice of Completion for
the Project pursuant to California Civil Code
section 3093, Tenant agreeing to record that Notice
of Completion promptly within the time specified by
law for the recording of that notice; or
(ii) The settlement and discharge of all liens of record
claimed by persons who supplied either labor or
materials for the construction of the Project.
Performanoe and Lien Bonds
'~I
section 5.7. Each contractor engaged by Tenant to perform any
services for construction of the Project, including any
construction, site preparation, utility installation, landscaping,
or parking lot construction services, shall furnish to Tenant, who
shall deliver copies to Landlord, at the contractor's own expense
at the time of entering a contract with Tenant for those services:
(i) A bond issued by a corporate surety authorized to
issue surety insurance in California in an amount
equal to one hundred (lOOt) percent of the contract
Att. 6-9
-'
price payable under
faithful performance
contract with Tenant;
the
by
and
contract securing
the contractor of
the
its
(ii) A bond issued by a corporate surety authorized to
issue surety insurance in California in an amount
equal to fifty (50%) percent of the contract price
payable under the contract securing the payment of
all claims for the performance of labor or services
on, or the furnishing' of materials for, the
performance of the contract.
Compliance with Law and Standards
section 5.8. The Project shall be constructed, all work on
the site shall be performed, and all buildings or other
improvements on the ~ite shall be erected in accordance with all
valid laws, ordinances, regulations, and orders of all federal,
state, county, or local governmental agencies or entities having
jurisdiction over the Site; provided, however, that any structure
or other improvement erected on the Site, including the project,
shall be deemed to have been constructed in full compliance with
all such valid laws, ordinances, regulations, and orders when a
valid final certificate of Occupancy entitling Tenant and
subtenants of Tenant to occupy and use the structure or other
improvement has been duly issued by proper governmental agencies or
entities. All work performed on the site pursuant to this Lease,
or authorized by this Lease, shall be done in a good workmanlike
manner and only with new materials of good quality and high
standard.
Time for Completion
section 5.9. Tenant shall cause construction of the Project
to be completed and a Certificate of Completion issued therefor
within the ti;ne provide therefor. in the Agreement including,
without limitation, the Schedule of Performance attached thereto,
subject to all extensions of time as may be provided for in the
Agreement. without limiting any other provision of this Lease or
the Agreement, Tenant acknowledges that the failure of the Tenant
to meet its obligations under this section 5.9 shall constitute a
default under this Lease and the Agreement, and shall entitle the
Landlord to exercise all remedies available to it under this Lease,
the, Agreement, in equity or at law, including the right of
termination of this Lease and/or the Agreement.
Mechanics' Liens
section 5.10. At all times during the term of this Lease,
Tenant shall keep the site and all Improvements now or hereafter
located on the site free and clear of all liens and claims of liens
for labor, services, materials, supplies, or equipment performed on
or furnished to the site. Should Tenant fail to pay and discharge
or cause the site to be released from any such lien or claim of
Att. 6-10
lien within ,twenty (20) days after service on Tenant of written
request from Landlord to do so, Landlord may pay, adjust,
compromise, and discharge any such lien or claim of lien on any
terms and in any manner that Landlord may deem appropriate. In
that event, Tenant shall, on or before the first day of the next
calendar month following any such payment by Landlord, reimburse
Landlord for the full amount paid by Landlord in paying, adjusting,
compromising, and discharging that lien or claim of lien, including
any attorneys' 'fees or other costs expended by Landlord, together
with interest at the then-maximum legal rate form the date of
payment by Landlord to the date of repayment by Tenant.
zoninq and Use Permits
section 5.11. Should Tenant deem it necessary or appropriate
to obtain any use permit, variance, or rezoning of the site in
order to construct or operate the Project, any such permits,
variances, rezoning, or related environmental reviews and
approvals, shall be obtained at the sole cost and expense of Tenant
and Tenant agrees to protect and save Landlord and the property of
Landlord, including the Site, free and harmless from any such cost
and expense.
OWnership of Improvements
section 5.12. Ti tIe to all Improvements, including the
Project, to be ,constructed on the site by Tenant shall be owned by
Tenant until expiration of the term or earlier termination of this
Lease. All Improvements, including the Project, on the site at the
expiration of the term or earlier termination of this Lease shall,
without compensation to Tenant, then automatically and without any
act of Tenant or any third party become Landlord's property.
Tenant shall surrender the Improvements to Landlord at the
expiration of the term or earlier termination of this Lease, free
and clear of all liens and encumbrances, other than those, if any,
permitted under this Lease or otherwise created or consented to by
Landlord. Tenant agrees to execute, acknowledge, and deliver to
Landlord any instrument requested by Landlord as necessary in
Landlord's opinion to perfect Landlord's right, title, and interest
to the Improvements and the site.
Tenant hereby acknowledges and agrees that the provisions
of this section 5.12 are material consideration to the Landlord in
addition to the provision of rent and the performance of Tenant's
obligations hereunder. Tenant acknowledges and agrees th~t, but
for the provisions of this Section 5.12, Landlord would not have
entered into this Lease and Tenant hereby agrees that it shall not,
in any legal action or proceeding, contest the validity or
enforceability of this section 5.12 on the grounds that this
section constitutes- an unlawful forfeiture, is unconscionable,
that Tenant is" entitled to credit, offset or reimbursement for the
value of the Improvements, or upon any other ground whatsoever.
Att. 6-11
ARTICLB 6. ENCUMBRANCE OF SITE OR LEASEHOLD ESTATE
Tenant's Right to Encumber
section 6.1. Tenant may encumber the site or this Lease only
in accordance with section 3.04 of the Agreement.
ARTICLE 7. REPAIRS AND RESTORATION
Maintenance by Tenant
section 7.1. At all times during the term of this Lease,
Tenant shall, at Tenant's own cost and expense, keep and maintain
the Site, all Improvements, and all appurtenances (including'
landscaped and parking areas) now or hereafter on the site in a
first-class condition, in good order and repair, and in a safe
condition.
Requirements of Governmental Agenoies
Section 7.2. At all times during the term of this Lease,
Tenant, at Tenant's own cost and expense, shall:
(i) Make all alterations, additions, or repairs to the
site or the Improvements on the site required by
any valid law, ordinance, statute, order, or
regulation now or hereafter made or issued by an
federal, state, county, local, or other
governmental agency or entity;
(ii) Observe and comply with all valid laws, ordinances,
statutes, orders, and regulations now or hereafter
made or issued respecting the site or the
Improvements on the site by any federal, state,
county, local, or other governmental agency or
entity;
(iii) Contest if Tenant, in Tenant's sole discretion,
desires by appropriate legal proceedings brought in
good faith and diligently prosecuted in the name of
Tenant, or in the names of Tenant and Landlord when
appropriate or required, the validity or applica-
bility to the Site of any law, ordinance, statute,
order, or regulation now or hereafter made or
issued by any federal, state, county, local, or
other governmental agency or entity; provided,
however, that any such contest or proceeding,
though maintained in the names of Tenant and
Landlord, shall be without cost to Landlord, and
Tenant shall protect the site and Landlord from
Tenant's failure to observe or comply during the
contest with the contested law, ordinance, statute,
order, or regulation; provided that the foregoing
Att. 6-12
prov1s10n shall not
Tenant's obligations
Agreement;
modify, amend or
under Section 3.07
abridge
of the
(i V) Indemnify and hold Landlord and the property of
Landlord, including the Site, free and harmless
from any and all liability, loss, damages, fines,
penalties, claims, and actions resulting from
Tenant's failure to comply with and perform the
requirements of this section.
Tenant's Duty to Restore site
Section 7.3. If any time during the term of this Lease, any
Improvements now or hereafter on the Site are destroyed in whole or
in part by fire, theft, the elements, or any other cause not the
fault of Landlord, this Lease shall continue in full force and
effect and Tenant, at Tenant's own cost and expense, shall repair
and restore the damaged Improvements. Any restoration by Tenant
shall comply with original plans for the Improvements described in
Article 5, or except as may be otherwise modified by Tenant and
approved in writing by Landlord. The work of repair and
restoration shall be commenced by Tenant within sixty (60) days
after the damage or destruction occurs and shall be completed with
due diligence not later than six' (6) months after the work is
commenced. In all other respects, the work of repair and
restoration shall be done in accordance with the requirements for
original construction work on the Site set forth in Article 5 of
this Lease. TEmant's obligation for restoration described in this
section shall exist whether or not funds are available from
insurance p~oceeds.
Application of Insurance Proceeds
Section 7.4. Any and all fire or other insurance proceeds
that become payable at any time during the term of this Lease
because of damage to or destruction of any Improvements on the
site shall be paid to Tenant and applied by Tenant toward the cost
of repairing and restoring the damaged or destroyed Improvements in
,the manner required by section 7.3 of this Lease.
ARTICLE 8. IHDEMHITY AND INSURAHCE
Indemnity Agreement
section 8. 1. Tenant shall indemnify and hold Landlord and the
property of Lahdlord, including the site and Improvements now or
hereafter on the site, free and harmless from any and all
liability, claims, loss, damages, or expenses resulting from
Tenant's occupation and use of the Site, specifically including,
without limitation, any liability, claim, loss, damage, or expense
arising by reason of:
Att. 6-13
(i) The death or injury of any person, including Tenant
cor any person who is an employee, agent, invitee or
'customer of Tenant, or by reason of the damage to
or destruction of any property, including property
owned by Tenant or by any person who is an
employee, agent, invi tee or customer of Tenant,
from any cause whatever while that person or
property is in or on the site or in any way
connected with the site or with any of the
Improvements or personal property on the Site;
(ii) The death or injury of any person, including Tenant
or any person who is an employee or agent of
Tenant, or by reason of the damage to or
destruction of any property, including property
owned by Tenant or any person who is an employee or
agent of Tenant, caused or allegedly caused by
either (1) the condition of the site or some
building or improvement on the Site, or (2) some
act or omission on the site of Tenant or any person
in, on, or about the site with or without the
permission or consent of Tenant.
(i!i)
Any work performed on the site or
furnished to the site at the instance or
Tenant or any person or entity acting
behalf of Tenant; or
materials
request of
for or on
(iv) Tenant's failure to perform any provision of this
Lease or to comply with any requirement of law or
any requirement imposed on Tenant or the site by
any duly authorized governmental agency or
political subdivision.
The obligations of this section 8.1 shall survive the expiration or
earlier termination of this Lease.
Liability Insurance
section 8:2. Tenant shall maintain those insurance policies
upon the site as required by section 3.01(i) of the Agreement.
ll.RTICLB g. ASSIGNMENT AND SUBLEASING
No Assignment without Landlord's Consent
section 9. 1. Tenant, may not assign its interest in this Lease
or the Agreement except in accordance with the provisions of the
Agreement. For purposes of this Section 9.1, this Lease shall be
treated as if it were the "Agreement" for purposes of determining
whether this Lease may be assigned under the Agreement.
Att. 6-14
ARTICLB 10. DEPAULT AND RBKEDIBS
Continuation of Lease in Bffect
section 10.1. Should Tenant breach this Lease and abandon the
site prior to the natural expiration of the term of this Lease,
Landlord may continue this, Lease in effect by not terminating
Tenant's right to possession of the Site, in which event Landlord
shall be entitled to enforce all Landlord's rights and remedies
under this Lease, including the right to recover the rent specified
in this Lease as it becomes due under this Lease.
Termination and Unlawful Detainer
section 10.2. In the event of a Tenant default under this
Lease, Landlord may terminate this Lease by written notice to
Tenant and:
(i) Bring an action to recover from Tenant:
(1) The worth at the time of award of the unpaid
rent that had been earned at the time of
termination of the lease;
(2) The worth at the time of award of the amount
by which the. unpaid rent that would have been
earned after termination of the lease until
the time of award exceeds the ~mount of rental
loss that Tenant proves could have been
reasonably avoided;
(3) The worth at the time of award of the amount
by which the unpaid rent for the balance of
the term after the time of award exceeds the
amount of rental loss that Tenant proves could
be reasonably avoided; and
(4) Any other amount necessary to compensate
Landlord for all detriment proximately caused
by Tenant's failure to perform Tenant's
obligations under this Lease; and
(ii) Bring an action, in addition to or in lieu of the
action described in subsection (i) of this Section,
to reenter and regain possession of the site in the
manner provided by the laws of unlawful detainer of
the State of California then in effect.
Breach and Default ~y Tenant
Sec~ion 10.3. All covenants and agreements contained in this
Lease and the Agreement are declared to be conditions to this Lease
and to the te~ hereby leased to Tenant. Should Tenant fail to
perform any covenant, condition, or agreement contained in this
Att. 6-15
Lease or the,Agreement and the default not ,be cured as provided in
Section 5.04 of the Agreement, then Tenant shall be in default
under this Lease and the Agreement. In addition to Tenant's
failure to perform any covenant, condition, or agreement contained
in this Lease or the Agreement within the cure perIod permitted by
this section, ~he following shall constitute a default by Tenant
under this Lease and the Agreement:
(i) The appointment of a receiver to take possession of
the site or Improvements, or of Tenant's interest
in, to, and under this Lease, the leasehold estate
or of Tenant's operations on the site for any
reason, including, without limitation, assignment
for benefit of creditors or voluntary or
involuntary bankruptcy proceedings, when not
released within sixty (60) days;
(ii) An assignment by Tenant for the benefit of credi-
tors; or the voluntary filing by Tenant or the
involuntary filing against Tenant of a petition,
other court action, or suit under any law for the
purpose of (1) adjudicating Tenant a bankrupt, (2)
extending time for payment, (3) satisfaction of
,Tenant's liabilities, or (4) reorganization, dis-
'SOlution, or arrangement on account of, or to
prevent, bankruptcy or insolvency; provided,
'however, that in the case of an involuntary pro-
ceeding, if all consequent orders, adjudications,
custodies, and supervisions are dismissed, vacated,
or otherwise permanently stayed or terminated
within ninety (90) days after the filing or other
,initial event, then Tenant shall not be in default
under this section.
(iii) The subjection of any right or interest of Tenant
to or under this Lease to attachment, execution, or
other levy, or to seizure under legal process when
the claim against Tenant is not released within
ninety (90) days.
CUmUlative Remedies
section 10.4. The remedies given to Landlord in this Article
shall not be exclusive but shall be cumulative with and in addition
to all remedies now or hereafter allowed by law and elsewhere
provided in this Lease and the Agreement.
waiver of Breach
section 10.5. The waiver by Landlord of any breach by Tenant
of any of the provisions of this Lease shall not constitute a
continuing waiver or a waiver of any subsequent breach by Tenant of
either the same or a different provision of this Lease.
Att. 6-16
':'
Surrender of site
section 10.6. On expiration or earlier termination of this
Lease, Tenant shall surrender the Site and all Improvements in or
on the site to Landlord in as good, safe, and clean condition as
practicable, reasonable wear and tear excepted.
, ARTICLE 11. MISCELLANEOUS
I'orce Majeure
Section 11.1. The performances of the parties under this
Agreement are sUbject to the provisions of the Agreement pertaining
to enforced delays and extensions of time for performance.
Attorneys' I'ees
Section 11.2. Should any litigation be commenced between the
parties to this Lease concerning the Site, this Lease, or the
rights and duties of either in relation thereto, the party
prevailing in that litigation shall be entitled, in addition to any
other relief that may be granted in the litigation, to a reasonable
sum as and for that party's attorneys' fees in that litigation that
shall be determined by the court in that litigation or in a
separate action brought for that, purpose.
Hotices to the Parties
Section 11.3. Notices to the parties under this Lease shall
be given as provided in Sections 1.05 and 6.01 of the Agreement.
Governinq Law and Venue
Section 11.4. This Lease, and all matters relating to this
Lease, shall be governed by the laws of the State cf California in
force at the time any need for interpretation of this Lease or any
decision or holding concerning this Lease arises. Such legal
actions must be instituted in the Superior Court, of the County of
Los Angeles or in any other appropriate court in that County.
Bindinq on Heirs and Successors .
Section 11.5. This Lease shall be binding on and shall inure
to the benefit of the heirs, executors, administrators, successors,
and assigns of the parties hereto, but nothing in this section
shall be construed as a consent by Landlord to any assignment of
this Lease or any interest in the lease by Tenant.
Partial Invalidity
Section 11.6. If any provision of this Lease is held by a
court of competent jurisdiction to be either invalid, void, or
unenforceable, the remaining provisions of this Lease ,shall remain
in full force and effect unimpaired by the holding.
Att. 6-17
Integration
section 11.7. This instrument and the Agreement constitute
the sole and only agreements between Landlord and Tenant respecting
the Site, the leasing of the site to Tenant, the construction of
the Project on the Site, and the lease terms set forth in this
Lease, and correctly set forth the obligations of Landlord and
Tenant to each other as of its date. Any agreements or
representations respecting the Site, their leasing to Tenant by
Landlord, or any other matter discussed in this Lease or the
Agreement not expressly set forth in this instrument or the
Agreement are null and void.
Time of Essence
section 11.8. Time is expressly declared to be of the essence
of this Lease.
Memorandum of Lease for Recordinq
section 11.9. Landlord and Tenant shall execute a Memorandum
of Lease in a form substantially equivalent to that set forth as
Exhibit "C" to this Lease.
Environmental Proqrams
section 11.10. Tenant shall cooperate and comply with all
Landlord and City of Arcadia environmental mitigation programs,
such as the City'S recycling programs, ridesharing programs, mass
transmit programs, air pollution controls, and the like.
[SIGNATURES ON FOLLOWING PAGE]
Att. 6-18
EXECUTED on
1995, at
, California.
Arcadia Redevelopment Agency
LANDLORD
ATTEST:
Agency.Secretary
Approved as to form:
Dated:
Best, Best & Krieger
Agency Special Counsel
Dated:
Michael Miller
Agency Attorney
TENANT
By: Arcadia Steakhouse, L.P.,
a California limited
partnership
Date:
..
i
By: T-Bird Restaurant Groups,
Inc. ,
a corporation
Its: General Partner
By:
Its:
ATTEST:
Secretary
Att. 6-19
EXHIBIT "A"
PARCEL "A" (EXHIBIT "B")
LOT 25, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 25,
PARCEL "B' (EXHIBIT "B")
LOT 24, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, '
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 24.
PARCEL 'C' (EXHIBIT "S")
LOT 23, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 23,
PARCEL "D" (EXHIBIT "B")
A PORTION OF LOT 22, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 22 WITH A LINE WHICH
IS PARALLEL WITH AND DISTANT 15 FEET SOUTHERLY FROM THE NORTHERLY LINE OF,SAID
LOT; THENCE EASTERLY ALONG SAID PARALLEL LINE, NORTH 900 00' 00' EAST 45,05 FEET;
THENCE SOUTH SOO 00' 08" EAST 5,04 FEET TO THE EASTERLY LINE OF SAID LOT 22, SAID POINT
BEING 15.88 FEET SOUTHERLY FROM THE NORTHEAST CORNER OF SAID LOT,
"
J:\2200.092\EX.A
ACtachment 1
PARCEL 'E' (EXHIBIT 'B')
A PORTION OF LOT 21, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 21 WHICH IS 15.88 FEET
SOUTHERLY FROM THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH 80000' 08' EAST
23,76 FEET TO A LINE WHICH IS PARALLEL WITH AND DISTANT 20,00 FEET SOUTHERLY FROM
THE NORTHERLY LINE OF SAID LOT 21; THENCE EASTERLY ALONG SAID PARALLEL LINE NORTH
90000' 00' EAST 121,63 FEET TO THE EASTERLY LINE OF SAID LOT 21.
PARCEL 'F' (EXHIBIT 'B")
LOT 20, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
PARCEL 'G' (EXHIBIT 'B')
,
LOT 19, OF BLOCK 72, OFTHE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELlANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL "H' (EXHIBIT 'B")
A PORTION OF SECOND AVENUE (60 FEET WIDE), AS SHOWN ON THE ARCADIA SANTA ANITA
TRACT, IN THE CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALlFORN,IA, AS PER
MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN THE FOLLOWING DESCRIBED
LINE:
BEGINNING AT THE NORTHEAST CORNER OF LOT 21, OF BLOCK 72. OF SAID ARCADIA SANTA
, ANITA TRACT, SAID POINT BEING ON THE WESTERLY LINE OF SAID SECOND AVENUE (60 FEET
WIDE); THENCE SOUTHERLY ALONG SAID WESTERLY LINE 20,00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE ALONG THE EASTERLY PROLONGATION OF A LINE WHICH IS PARALLEL
WITH AND DISTANT 20 FEET SOUTHERLY FROM THE NORTHERLY LINE OF SAID LOT 21, NORTH
900 00' DO" EAST 30,00 FEET TO THE CENTERLINE OF SAID SECOND, AVENUE (60 FEET WIDE);
THENCE SOUTHERLY ALONG SAID CENTERLINE SOUTH 00001' 00' WEST 135,57 FEET TO A
POINT ON A NONTANGENT CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 31,00 FEET
AND FROM WHICH A RADIAL LINE 8EARS SOUTH 24'0 18' 30' EAST; THENCE WESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 20 10' 45' AN ARC DISTANCE OF 1.18 FEET TO
A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE NORTH, HAVING A RADIUS
OF 29.00 FEET AND FROM WHICH A RADIAL LINE BEARS NORTH 26029' 15' WEST; THENCE
WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26029' 30' AN ARC DISTANCE
OF 13.41 FEET TO A TANGENT LINE; THENCE WESTERLY ALONG SAID TANGENT LINE NORTI,!
J:\2200,092\EX.A
89059' 45' WEST ;6,00 FEET TO A POINT ON THE WESTERLY LINE OF SAID SECOND AVENUE,
SAID POINT ALSO BEING ON THE EASTERLY LINE OF LOT 19 OF SAID ARCADIA SANTA ANITA
TRACT,l YING 1,00 FEET NORTHERLY FROM THE SOUTHEAST CORNER OF SAID LOT 19; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID SECOND AVENUE NORTH 00' 01' 00' EAST
139.12 FEET TO THE TRUE POINT OF BEGINNING,
.
J:\22IlO.092\EX-A
EXHIBIT liB" TO GROUND LEASE
Preliminary Title Report
.
Att. 6-21
EXHIBIT "C" TO GROUND LEASE
Memorandum of Lease for Recordation
RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
City of Arcadia
Memorandum of Lease
Arcadia Steakhouse, L.P., a California limited
partnership, dba Outback Steakhouse, ("Tenant"), and the Arcadia
Redevelopment Agency , a public body, corporate and politic,
("Landlord") entered into a Ground Lease on the day of
, 1995, effecting certain real property located in
the City of Arcadia, County of Los Angeles, as more particularly
described as follows:
(the "property").
All the terms and provisions of said Lease are
incorporated herein by this reference, including the provisions of
that certain Disposition and Development Agreement entered into
between Landlord and Tenant on the day of
, 1995, which is incorporated by reference into
the Lease.
[SIGNATURES ON FOLLOWING PAGE]
Att. 6-22
EXECUTED on
California.
1995, at
[city] ,
LANDLORD
Arcadia Redevelopment Agency
ATTEST:
Agency Secretary
Approved as to form:
Dated:
Best, Best & Krieger
Agency Special Counsel
Dated:
Michael Miller
Agency Attorney
TENANT
Date:
By: Arcadia Steakhouse, L.P.,
a California limited
partnership
By: T-Bird Restaurant Groups,
Inc. ,
a corporation
Its: General Partner
By:
Its:
ATTEST:
Secretary
Att. 6-23
EXHIBIT "A"
PARCEL"N (EXHIBIT "B")
LOT 25, OF BLOCK 72, OFTHE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES. STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 25,
PARCEL "B" (EXHIBIT "B")
LOT 24, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 24,
PARCEL 'C' (EXHIBIT "B')
LOT 23, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY,
EXCEPT THEREFROM THE NORTHERLY 15 FEET OF SAID LOT 23,
-
PARCEL'D' (EXHIBIT "B')
A PORTION OF LOT 22, OF BLOCK 72. OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES. STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OFTHE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE WESTERLY LINE OF SAID LOT 22 WITH A LINE WHICH
IS PARALLEL WITH AND DISTANT 15 FEET SOUTHERLY FROM THE NORTHERLY LINE OF.SAID
LOT; THENCE EASTERLY,ALONG SAID PARALLEL LINE. NORTH 900 00' 00' EAST 45,05 FEET;
THENCE SOUTH 800 00' 08" EAST 5,04 FEET TO THE EASTERLY LINE OF SAID LOT 22, SAID POINT
BEING 15,88 FEET SOUTHERLY FROM THE NORTHEAST CORNER OF SAID LOT,
J:\2200.092\EX,A
AttachmenC 1
PARCEL 'E' (EXHIBIT "B")
A PORTION OF LOT 21, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF
ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK
15 PAGES 89 AND 90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, LYING SOUTH OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 21 WHICH IS 15,88 FEET
SOUTHERLY FROM THE NORTHWEST CORNER OF SAID LOT; THENCE SOUTH 80000' 08' EAST
23.76 FEET TO A LINE WHICH IS PARALLEL WITH AND DISTANT 20,00 FEET SO.UTHERLY FROM
THE NORTHERLY LINE OF SAID LOT 21; THENCE EASTERLY ALONG SAID PARALLEL LINE NORTH
90000' 00. EAST 121.63 FEET TO THE EASTERLY LINE OF SAID LOT 21.
PARCEL "F' (EXHIBIT "B')
LOT 20, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL "G' (EXHIBIT 'B")
LOT 19, OF BLOCK 72, OF THE ARCADIA SANTA ANITA TRACT, IN THE CITY OF ARCADIA, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 15'PAGES 89 AND
90 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL 'H' (EXHIBIT 'B")
A PORTION OF SECOND AVENUE (60 FEET WIDE), AS SHOWN ON THE ARCADIA SANTA ANITA
TRACT, IN THE CITY OF ARCADIA, COUNTY OF LOS ANGELES, STATE OF CALlFORN!A, AS PER
MAP RECORDED IN BOOK 15 PAGES 89 AND 90 OF MISCELlANEOUS RECORDS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY INCLUDED WITHIN THE FOLLOWING DESCRIBED
LINE:
BEGINNING AT THE NORTHEAST CORNER OF LOT 21, OF BLOCK 72, OF SAID ARCADIA SANTA
ANITA TRACT. SAID POINT BEING ON THE WESTERLY LINE OF SAID SECOND AVENUE (60 FEET
WIDE); THENCE SOUTHERLY ALONG SAID WESTERLY LINE 20.00 FEET TO THE TRUE POINT OF
BEGINNING; THENCE AlONG THE EASTERLY PROLONGATION OF A LINE WHICH IS PARALLEL
WITH AND DISTANT 20 FEET SOUTHERLY FROM THE NORTHERLY LINE OF SAID LOT 21, NORTH
900 00' 00. EAST 30,00 FEET TO THE CENTERLINE OF SAID SECOND, AVENUE (60 FEET WIDE);
THENCE SOUTHERLY ALONG SAID CENTERLINE SOUTH 00001' 00. WEST 135,57 FEET TO A
POINT ON A NONTANGENT CURVE CONCAVE TO THE SOUTH, HAVING A RADIUS OF 31,00 FEET
AND FROM WHICH A RADIAL LINE BEARS SOUTH 240 18' 30. EAST; THENCE WESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 20 10' 45. AN ARC DISTANCE OF 1.18 FEET TO
A POINT OF REVERSE CURVATURE WITH A CURVE CONCAVE TO THE NORTH, HAVING A RADIUS'
OF 29,00 FEET AND FROM WHICH A RADIAL LINE BEARS NORTH 260 29' 15' WEST; THENCE
WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 260 29' 30' AN ARC DISTANCE
OF 13,41 FEET TO A TANGENT LINE; THENCE WESTERLY ALONG SAID TANGENT LINE NORT':'
. J:\2200.092\EX,A
69. 59' 45" WEST 16.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID SECOND AVENUE,
SAID POINT ALSO BEING ON THE EASTERLY LINE OF LOT 19 OF SAID ARCADIA SANTA ANITA
TRACT, LYING 1.00 FEET NORTHERLY FROM THE SOUTHEAST CORNER OF SAID LOT 19; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID SECOND AVENUE NORTH 00. A" 00. EAST
139.12 FEET TO THE TRUE POINT OF BEGINNING.
J:\2200.092\EX.A
Attachment 7
Preliminary Title Report
AU; 7-1
"
Proposed Street
Vacation Parcel
TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN:
ARCADIA REDEVELOPMENT AGENCY, PUBLIC BODY, CORPORATE AND POLITIC OF THE
STATE OF CALIFORNIA.
THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED
BY THIS REPORT IS:
A FEE.
THE LAND REFERRED TO HEREIN IS DESCRIBED AS FOLLOWS:
(SEE ATTACHED LEGAL DESCRIPTION)
AT THE DATE HEREOF EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS
AND EXCLUSIONS CONTAINED IN SAID POLICY FORM WOULD BE AS FOLLOWS:
1. GENERAL AND SPECIAL TAXES, A LIEN NOT YET PAYABLE, FOR THE FISCAL YEAR
1995-1996.
1A. AN EXAMINATION OF THE LOS ANGELES COUNTY TAX ASSESSORS RECORDS SHOW NO
TAX AMOUNTS AS OF THE DATE OF THIS REPORT FOR THE FISCAL
YEAR 1994-1995.
1B. THE LIEN OF SUPPLEMENTAL TAXES AND/OR ADJUSTED TAXES, IF ANY, ASSESSED
PURSUANT TO THE CALIFORNIA REVENUE AND TAXATION CODE.
1C. THE REQUIREMENT THAT THIS COMPANY BE FURNISHED ALL TAX BILLS AFFECTING THE
SUBJECT PROPERTY PRIOR ,TO THE CLOSE OF THIS TRANSACTION.
2. AN EASEMENT FOR PURPOSES HEREIN STATED, AS SHOWN ON OR DEDICATED BY THE
MAP
OF: SANTA ANITA TRACT 15/89-90. MISCELLANEOUS RECORDS.
FOR: STREET.
AFFECTS: SAID LAND.
3. AFFECTS THIS AND OTHER PROPERTY.
THE FACT THAT SAID LAND IS WITHIN THE BOUNDARIES OF THE CENTRAL
REDEVELOPMENT PROJECT OF CITY OF ARCADIA REDEVELOPMENT AREA, AS DISCLOSED
BY A DOCUMENT,
RECORDED: JULY 16, 1975 AS INSTRUMENT NO. 3632.
4. AFFECTS THIS AND OTHER PROPERTY.
THE EFFECT OF: AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
DATED: APRIL 18,1989
EXECUTED BY: FALZONE DEVELOPMENT COMPANY, INC., A CALIFORNIA
CORPORATION ("SELLERj, AND THE ARCADIA REDEVELOPMENT
AGENCY, A PUBLIC BODY, CORPORATION AND POLITIC OF THE
STATE OF CALIFORNIA ("PURCHASERj
RECORDED: MAY 26,1989 AS INSTRUMENT NO. 89-861263
2
WHICH AMONG OTHER THINGS PROVIDES: AS MORE FULLY SET FORTH THEREIN.
5. NOTE: THE DESCRIPTION SHOWN HEREIN IS PROFORMA ONLY, AND IS SUBJECT TO'
APPROVAL BY ALL PARTIES.
6. THIS REPORT IS INCOMPLETE. WE WILL FOLLOW WITH A SUPPLEMENTAL REPORT ONLY
IF ANY OF THE MATTERS WE ARE NOW CHECKING ON THE NAME(S)
OF: VESTEE, AFFECTS THIS TRANSACTION.
7. NO POLICY OF TITLE INSURANCE HAS BEEN ISSUED ON THIS PROPERTY WITHIN THE LAST
FIVE YEARS. IF A POLICY IS ISSUED UNDER THE ABOVE ORDER, THE BASIC SCHEDULE
RATE WILL APPLY.
8. RIGHTS OF PARTIES IN POSSESSION OF SAID LAND BY REASON OF ANY UNRECORDED
LEASES.
PLEASE SUBMIT ANY SUCH LEASES TO THIS COMPANY FOR OUR EXAMINATION.
9. NOTE: WIRING INSTRUCTIONS FOR FIRST AMERICAN TITLE COMPANY OF LOS ANGELES-
TITLE DEPARTMENT.
ALL FUNDS WIRED FOR THIS ORDER ARE TO BE WIRED TO:
METRO BANK
21535 HAWTHORNE BOULEVARD
TORRANCE, CALIFORNIA 90503
ABA #122237353
ACCT #682-250909
PLEASE REFERENCE OUR ORDER NO.
3
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF THE WESTERLY 30 FEET OF 2ND STREET, (60 FEET WIDE), AS DEDICATED ON
THE MAP OF "A PART OF THE SANTA ANITA TRACr AS FILED IN BOOK 15 PAGES 89 AND 90 OF
MISCELLANEOUS RECORDS; BOUNDED NORTHERLY BY THE EASTERLY PROLONGATION OF THE
NORTHERLY LINE OF LOT 21 OF BLOCK 72 OF SAID TRACT; AND, BOUNDED SOUTHERLY BY THE
EASTERLY PROLONGATION SOUTHERLY BY THE EASTERLY PROLONGATION OF THE SOUTHERLY
LINE OF LOT 19 OF BLOCK 72 OF SAID TRACT.
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CONDOMINIUM
T..RACT~ NO. ~500~
A PART OF ARCADIA
M. B. 1087 - 7 - B
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SANTA ..ANITA. TRACT
M. R. 15-89 -90
,
Musson MAP
.toUNlY OF LOS ANGELES, CALIF.
"rlt A mericaft ntle Compan, 0/ Lot A.,ele.
THIS MAP MAY OR MAY NOT BE A Sl.IlMV 01 THf lANE
DEPICTED HEREON. YOU SHOULD NOT RELY UPON " fOR AHr
PURPOSE OTHER THAN ORIENTATION TO THE GENERAL loeA-
nON OF THE PARCEl OR PARCELS DEPICTED. FIRST AMERICN\.
EXPRESSLY DISCLAIMS ANY lIARlIlTY FOR ALLEGED lOSS O~
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ATTACHMENT NO.8
ADJACENT CITY OWNED PARCEL
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HUNTINGTON DRIVE
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AREA TO BE MAINTAINED BY DEVELOPER
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OUTBACK STEAKHOUSE PROJECT
DISPOSITION REPORT
The following Disposition Report is prepared pursuant to Health and Safety Code
Section 33433 and serves to describe the terms of a Disposition and Development
Agreement (the "DDA") between the Arcadia Redevelopment Agency (the "Agency")
and Arcadia Steakhouse L.P. (the "Developer").
1. GENERAL PROJECT DESCRIPTION
The DDA provides for the development of the Agency owned property located at 166
E. Huntington Drive (Location Map, Exhibit A) by the Developer. The Agency
proposes to lease and ultimately convey the land shown in Exhibit. A H to the
Developer for development.
The 53.788 square foot site is located at the southwest corner of Huntington Drive
, and Second Avenue. It is currently owned by the Agency. There are no
improvements on the site other than an access road which will be removed. The
eastern portion of the site (approximately 4,350 Sq. Ft.) is currently used for public
street purposes. This portion will be vacated and included as part of the site.
The Developer proposes to construct and operate a 6,392 square foot Outback
Steakhouse restaurant including parking and landscaping. The Developer shall lease
the property for $45,000 annually for the first five years. $40,000 of each annual
payment will be credited to the total purchase price of the site ($200,000), At the
end of that five year period, the Developer will buy the property from the Agency for
$600,000 ($11.15/Sq. Ft.), Deducting $200,000 credited toward the purchase price
through lease payments, a balance of $400,000 will be due at close of escrow.
A financial analysis completed by James D. Williams (the Agency's special
redevelopment consultant) has determined that the proposed disposition price of
$600,000 does represent fair reuse value for the site based upon the proposed
development (use type, square footage of improvements, construction and operating
expenses, expected revenue, development constraints, market conditions, etc.).
The development schedule in the DDA anticipates completing construction of the
restaurant prior to the Holiday Season, 1995.
1.
~ltB
2. COSTS TO THE AGENCY
A. Expenses to Date:
Land Acquisition $ 1,909,877
Relocation Benefits 86,976
Relocation Administration 7,821
Site Studies 71 ,201
(environmental phase I, asbestos, topographic,
traffic and circulation, financial, appraisals, etc.)
Legal Services 29,196
Site Clearance 19,350
Property Operations 6,567
Miscellaneous 2.048
Sub Total $ 2,133,036
B. Projected Expenditures:
Legal Services $ 10,000
Additional Site Clearance (Access Road) 5,000
Title Report 5,000
Miscellaneous 1.000
Sub Total Projected Expenses $ 21,000
TOTAL ESTIMATED PROJECT COST $ 2,154,036
C. Related Agency Costs
(Not attributable to the Outback Project)
Offsite improvements will be done as part of the Downtown 2000
Project in the area immediately adjacent to the Outback Site. These
include construction/installation of curbs, gutters, sidewalks, alley,
driveways, street lights, landscaping, street furniture and bowouts. The
estimated cost of this work in the area immediately surrounding the
Outback Site is from $30,000 to $35,000.
:l
3. FUTURE REVENUE
Ongoing government revenue will be generated as a result of the completion of the
proposed project on the site' in the form of sales taxes, tax increment, business license
fees, and utility user's taxes. Current estimates of such future revenue are provided
below and represent estimates of net increases in revenue above what is currently
being generated by the site. The following are estimates of annual revenue after
completion of the project (F.Y. 96-97).
Sales Tax to City $ 16,000 $ 30,000
Tax Increment to Agency 15,000 20,000
Business License Fees to City 650 ,900
Utility User's Taxes to City 500 750
Ongoing Annual Est. Revenue $ 32.150 to $ 51,650
Administrative fee $ 10,000 $ 10,000
Annual Lease Payment (1st 5 Yrs.) 45.000 45.000
to Agency
(Note - Only $40,000 is annually
credited to purchase price)
Annual Est. Revenue (1st 5 Yrs.) $ 87.150 to $106,650
6th Year Land Sale Proceeds to Agency
$ 400.000
Total purchase price - $200,000 + $400,000 = $600,000
4. ADDRESSING BLIGHT
The Agency's Five Year Implementation Plan, Fiscal Years 1994/95 through 1998/99
(adopted on December 20, 1995 by Resolution No. ARA-175) identifies several
blighting conditions which will be addressed by completion of this proposed
development. This report is on file and available for review in the Economic
Development Division Offices.
The Agency has already taken action to alleviate blight by assembling the
development site and preparing it for development. Prior to Agency involvement. the
site consisted of a number of substandard and unattractive structures housing
marginally profitable businesses which generated little revenue to the City and made
no substantial contribution to the community (provision of goods and. services and
employment opportunities). Prior subdivisions had created substandard lots (sizes and
3
'". .
configurations) and a fragmented ownership pattern. One of the properties making up
the site had been vacant for many years having previously been used as an auto sales
lot. By acquiring the individual parcels, relocating eligible tenants and demolishing the
dilapidated improvements, the Agency took positive steps to address blight.
Through the DDA negotiation and development process the Agency's goal of
eliminating blight on the site and in the downtown be fulfilled. The property is
currently vacant and does not contribute positively to the area. Development of the
site as proposed will result in a high quality, revenue generating business being
introduced to the area. The influence of this development will extend beyond the
, boundaries of the site itself. It should act as a catalyst for future private development
throughout the downtown. The completion and opening of this restaurant is planned
to coincide with the completion of the Downtown 2000 Streetscape Project. The
simultaneous opening will be a positive symbol of the revitalization of the Central
Redevelopment Project Area.
5. PROJECT BENEFITS
The benefits of this project go beyond the generation of revenue to the City and
Agency. This project also serves the purpose of meeting a number of goals as
outlined in the Redevelopment Plan for the Central Redevelopment Project. The goals
and benefits include:
A. An estimated 50 jobs will be created through construction on the site as
well as an estimated 70 jobs when the restaurant opens. Increased employee
payrolls will result in additional indirect tax receipts to the City due to
discretionary purchases in Arcadia stores.
B. The physical appearance of this very visible portion of the Project Area will
be improved through the elimination of blighting influences which currently
exist. The area will be made more attractive, and the image and reputation of
both the downtown and City improved.
C. New developmBnt will be encouraged in the area as a, result of this project
combined with others within the Project Area (e.g., Downtown 2000
Streetscape). Additional potential shoppers will come to the Downtown.
disrpt1.out
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LOCATION MAP
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Location of Proposed Development
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File No.:
CITY OF ARCADIA
240 WEST HUNTINGTON DRIVE
ARCADIA, CA 91007
CALIFORNIA ENVIRONMENTAL QUALITY ACT
NEGATIVE DECLARATION
A. Title and Description of Project:
Outback Steakhouse
Construction of 6,392 square foot restaurant on a 53,788 square foot site
along with 85 parking spaces (13 in excess of Code requirements).
B. Location of Project:
166 E, Huntington Drive, Arcadia, CA 91006
County of Los Angeles
C. Name of Applicant or Sponsor:
Fancher Development Services, Inc.
William D. Fancher, President
D. Finding:
This project will have no significant effect upon the environment within the
meaning of the California Environmental Quality Act of 1970 for the reasons set
forth in the attached Initial Study,
E. Mitigation measures, if any, included in the project to avoid potentially
significant effects:
Date: 6-20-95
Date Posted: 6-21-95
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Exhibit C
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fiLE NO, GlLP ~s -003
ENVIRONMENTAL INFORMATION FORM
A. Applicant's Name: rancher Development Services, Inc, (William D. rancher)
l\ddress: 1342 Eell Ave. Suite 3K, Tustin, Ca, 92680
13. Property Address (Location): 166 E. Huntington Dr. / S,W.C, of Huntinaton
& 2nd,
C General Plan Designation: Conrnercial
0, Zone Classification: C-2
E. Proposed Use (State exactly what use is intended for the property, I.e., type,
activities, employment):
The proposed project will be a 6392 sq. ft. full service restaurant servina
alcoholic beverages. It will employ approximatley 70 persons and operate betl;een
the hours of tOam to Midniah~ The maiority of business will be diner onlv, however,
11ln~h wi 11 hP. ~prvpd on R'[IPt'irtl ('){""("~~inn~ ~llrh r=I~ F::Ic::::tpl'" ;:\Inn nt-npr n01 ;n~yo::: 'T"hp
staff will becrin arriving one and one-half hour earlier. Additional Info Attached:
F.
Square Footage of Site:
53,788.033 so_ ft,
G. Square Footage of Existing 13uildings:
I. To Remain: -0-
2. To Be Removed: -0-
H. Square Footage of New Buildings: 6392 so, ft.
(, Square Footage of 13uildings to be Used for:
I. Commercial l\ctivities: 6392 sq. ft.
2, Industrial Activities: -0-
3. Residential l\ctivities: -0-
Number of Units: one
Environmental Information Form
- 1 -
'.
J.
Describe the following:
I, The environmental setting of the project site as it ex.ists.
The project site is a vacant lot that is flat. void of structures. and does not
have any distinguishable vegetation.
2. The proposed alterations to the project site.
The proposed proiect will consist of a 6.392so, ft. buildino and its associated
parkinq lot, See Attachment "A"
3. The use and development of the surrounding properties.
Uses to the North & East are commercial retail (carnet stor~. hair ~alnn. Rpal -
Estate Office. etc.). To the South exist MUlti-family residental. To ~hp l-le,;t
there is a railroad easement and more commercial retail.
Environmental Information form
-2-
K. Check the appropriate answers to the following questions:
Yes No
1.
Will the proposed project result in a substantial
alteration of ground contours and/or alteration
of existing drainage pattern?
-~
2.
Will the proposed project result in a change in
groundwater quality and/or quantity?
_x
3.
Will the proposed project result in an increase in
noise, vibration, dust, dirt, smoke, fumes, odor or
solid waste?
-2s..
4.
Will the proposed project result in the use or
,disposal of potentially hazardous materials?
_25
5.
Will the proposed project result in a substantial
increase in demand for municipal services
and/or energy consumption?
_ --2s...
Explain in detail any "YES" answers to the above questions on additional sheets.
L. . Provide any additional information which would elaborate on the potential
environmental consequences resultant from the proposed project,
M, Certification: I hereby certify that the statements furnished above and in the attached
exhibits present the data and information required for this initial evaluation to the best
of my ability, and that the facts, statements and information presented are true and
correct to the best of my knowledge and belief,
Date: S - I, q ,")
~
Environmental Information Form
-4-
,',
ATTACHMENT "A"
E, proposed Use
Hours of Operation:
The normal hours of operation will be 4:pm to midnight or as dictated by the local market.
Outback Steakhouse will open for lunch on special occasions and holidays but that will
also be dictated by the needs of the local market,
Breakdown of Seatin!l Area:
The restaurant will have seating capacity for 240 dinners with this proposal.
Bar Area: will be approx. 870 sq. ft, with seating for 96.
The Dinning Area: will be approx. 1960 sq. ft. with seating for 144.
J.2. The Proposed Alterations to the Site
The project consist of eight small lots and a portion of the 2nd St. right-of,way that is to
be abandoned. All lots will be consolidated into one and a 6392 sq. ft. building will be
constructed with 7,320 square feet of landscaping. The building will be setback from
Huntington Drive 21 .12 feet and 85 parking spaces, including 10 compact and 3 handicap
accessible spaces and one loading zone will make up the parking lot.
File No"
ENVIRONMENTAL CHECKLIST FORM
A. BACKGROUND
1.
Name of Proponent
Outback Steakhouse (T-Bird Restaurant Group)
2,
Address and Phone Number of Proponent
166 E. Huntington Drive (Site Address)
13000 Dale Mabry Highway, Tampa, FL
33618
B" ENVIRONMENTAL IMPACTS
(Explanations of all 'yes" and "maybe" answers are required on attached sheets.)
II. DhruptiOllI. .'\'aplac_nta, _
pac:t1_ air _ar_1l:1nt' of "h. 101U
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11. Popul.ClolI. w111 the propo.1t dtn'
t!!. 10eolt101l. dllttlbut1on. d'"I~ty.
Orqr_thut.oftJ'l.h_pupuj..-
tionof.lI.rall
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d~,"lnd tor .dd1t1an.1 l\oua1n91
13. ,r~r.s""rution Clll'cuhtlon. IoIIU
t . propo.. rllU n.
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tton.l vl1l1cullll' lIOVI_nt.?
b. Etfletlon u:1Itillq p.rll1n9
f..eilltuI ordl/l.nd tor "",plrIl:1IIq?
c. Sul)IUntla11~..ctupoll"h,ln,
tr4n,,,art.uon 'y't-.al
d. ^1tlntlonl to pra.llltp.t.tu"ft.
at c1rclIhtion at lIOV_lIt of paoclP1.
oInd/Or"ood"
.. A1Uutlon. to "'Utbonl'. r.i1
or ur tratHe?
t. Iller.... 111 trafUc 1I...rd,1 ,0
..corVlhlc1l.. blo:ycll.t. or
pedllulan.'
14. .1Ib11c lu'vie.l. Will the pn,pOII.l
n.Vlan .rr.ct. Upo". Oll' ~.ult 1".
n..d tor n_ or .1t.rld ,OWrTllMfIlt..l
..tv1e.. 1n In., of thl tOU_1",
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c. 5cllol1l1
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ti... 1nc:ludl"" roada?
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en'UOIl.ot.n a.athltlcallyoff.lld_
dt. Opall to public vl...?
1'. It.en.tion. 11111 tll. pnpe"1 r..ult
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Orprll!.l.tory?
b. Do.. the proj.ct h._ the pot.nUd
to lenl.v. Ihort-t.n1. to th. dll.dvUl.t.'iI'
ot lon'il.tlnI.nYlro~ntal'i'o.lal IA
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vhldl.n lAdIvidu.Uy lla1ud. bllt
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naourea. ..h.n tIl. l....et on ..dl
n.ourc. 1. tahUv.ly a..n. bllt "1I.r.
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.thct. vl'llcb..1l1 c.ua..ub.tant1'1
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dir.ctlr or IndIr.ctly?
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e. DlSClmafc:. Dr DYI_..,.At, rn.t.laTI"
See attached Section C discussion.
D. Dft:IDlIII'..lTIaI
(to 1M c~l.t.d by tJ'l. LI.d "'ancyl
Oe. tM bul. or thla InIU.l .v.luaUoa.
..Ll..t Und th. proPOlld proj.ct aJULD 'lOT lI.v. I uqniUe.nt
~ffaC't OIl the .nvlrO~nt. IIId . IIElOATIW DECt,,\AATIaI
..111 b. pr.p.arad.
01 f1ll.d th.t .1tho"'" !.h. propoa.d prOl'ct co"ld IIIV' .
dvalUcant. .ffact all t1I. lll"lrOlWlnt. th.r. _1.11 1I0t
1M . .lvalflelllt .fflCt In tll1l e... b.e"u.. tl'l. .niq.ti_
_........ d..cr1b1d 011 III att.d1ad aha.t II.... baa" .tid.d to
the projact. A MElOATIW DECLAaATI~ ifiLL .. 'lU:'IIoUD.
a I UIlod Ul. p..opolld. P"":Iact MY h._ , .1,,"lheallC .Hact
_ the l1I"'l~t. lid II DYI"'REII'T.l.L I19.lC'T U'OIlT 11
nqvJ.rad.
<P^L --R,P~r<4
(Signature)
-2-
"
SECTION C.
.DISCUSSION OF ENVIRONMENTAL EVALUATION
OUTBACK STEAKHOUSE
GENERAL DISCUSSION-
The following environmental evaluation takes into account the following
relevant information concerning the proposed development site located at
the southwest corner of Huntington Drive and Second Avenue:
. The site is zoned for commercial uses (C-21 and as such retains certain
development entitlements.
. Historically, the site has been developed. Earlier site improvements
include a paved auto sales lot, auto service station, professional office
space and miscellaneous retail buildings; These were demolished in
1991.
. The site lies in an urban area where development is expected.
. Adjacent land uses in the area are generally compatible with the
proposed use as it is allowed under the City land use plans.
1.
Earth - Will the proposal result in:
a. Unstable earth conditions or in changes in geologic substructures?
No. Development will require only a minor amount of surface grading
and trenching. This is a previously developed site where surface
disruption will be kept to a minimum.
b. Disruptions. displacements. compaction or overcovering of soil?
No. Development will require only a minor amount of surface grading
and trenching. This is a previously developed site where surface
disruption will be kept to a minimum.
c. Change in topography or ground relief features?
No. The development site is predominantly flat. The proposed
development will not result in any changes in this regard.
d. The destructian. cavering ar madificatian af any unique geolagic
ar physical features?
No.. No. unique gealagic or physical features are faund an the
develapment site.
e. Any increase in wind ar water erasian of sails. either an ar_ aff the
site?
No.. The site is currently vacant and contains no. vegetatian.
Develapment will actually reduce soil erosion and discharge into. the
starm drain system. Landscaping and graund caver will help hald sail
in place while ather currently exposed areas will be paved o.r
develaped with the restaurant impravements.
f. Changes in siltatian. depositian ar erasian which may madify the
channel af a river ar stream?
No.. Develapment will actually reduce sail erasian and discharge into.
the storm drain system. Landscaping and ground caver will help hald
.soil in place while other currently exposed areas will be paved or
develaped with the restaurant impravements. The existing
channelized washes and waterways faund in this urban setting will
nat be impacted.
g. Exposure af pea pie ar praperty to. geolagic hazards such as
earthquakes. landslides. mudslides. graund failure. ar similar
hazards?
No., The develapment site is in a fully develaped urban setting and is
no. more susceptible to these problems tl:1an any ather site in the City
afArcadia. The Raymand Fault lies to the Narthwest af the site.
2.
Air - Will the prapasal result in:
a. Substantial air emissians ar deteriaratian af ambient air quality?
No.. The propased land use is cansistent with uses allawed under the
zaning and daes nat generate a disproportianate amount af emissians
ar result in a substantial deteriaratian to. air quality.
b. The creation of objectionable odors?
No. The proposed land use is consistent with uses allowed under the
zoning and will not generate substantial objectionable odors.
Enforcement of City zoning, nuisance and County Health laws
governing property maintenance and restaurant operation will mitigate
any potential in this regard,
c. Alteration of air movement. moisture or temperature. or any
change in climate, either locally or regionally?
No. The size, scope and nature of this development will not result in
any of these impacts.
3.
Water - Will the proposal result in:
a. Changes in the currents or the course of direction of water
movements In fresh water?
No. The course and direction of fresh water will not be altered.
Fresh water flows from the site into existing concrete curbs and
gutters. and then flows into the urban storm drain system.
b. Changes in absorption rates, drainage patterns, or the rate and
amount'of surface runoff?
Maybe. Development will result in construction of improvements
(restaurant and paved parking) which will prevent water from being
absorbed on the site. This surface water will run off into the storm
drain system. The amount' of runoff generated through development
of this site is not significant and this site has not been established as
a groundwater recharge basin.
c. Alterations to the course or flow of flood waters?
. No. The existing storm water runoff system will remain intact.
Development of this site does not result in significant increases in
storm water flow.
d. Change in the amount of surface water in any body of water?
No. While runoff will be generated by the site, the amount is not
significant. Historically, the site has contributed runoff to the urban
storm drain system.
e. Discharge into surface waters, or in any alteration or surface water
quality, including but not limited to temperature, dissolved oxygen
or turbidity?
No. While runoff will be generated by the site, the amount is not
significant. Historically, the site has contributed runoff to the urban
storm drain system.
f. Alteration of the direction or rate of flow of ground waters?
No. Water tables will not be affected by development of this site.
g. Change in the quantity or ground waters, either through direct
additions or withdrawals, or through interception of any aquifer by
cuts or excavations?
No. This site is not part of a goundwaterrecharge basin. Any
recharge effect this site currently has on the water table is incidental.
h. Substantial reduction in the amount of water otherwise available
for public water supplies?
No. The Water Division advises that demands placed upon public
water supplies by this development will not be significant.
i. Exposure of people or property to water related hazards such as
flooding?
No. The site is not in a flood plain and poses no risk to people or
property with respect to flood exposure.
4.
Plant life - Will the proposal result in:
a. Change in the diversity of species, or number of any species of
plants (including trees, shrubs" grass, crops, microflora and
aquatic plants)?
No. The site is a vacant lot with no significant plants of any kind.
On a regular basis, the Agency's maintenance contractor scarifies the
site to clear it of weeds and other unwanted vegetation.
b. Reduction of the numbers of any unique. rare or endangered
species of plants?
No. The site is a vacant lot with no significant plants of any kind.
On a regular basis. the Agency's maintenance contractor scarifies the
site to clear it of weeds and other unwanted vegetation.
c. Introduction of new species of plants into the area. or result in a
barrier to the normal replenishment of existing species?
No. While the proposed development. will have landscaping per the
City Code requirements, none of the species proposed for these areas
are being newly introduced. Proposed species are widely used in
commercial applications throughout the area.
5.
Animal Life - Will the proposal result in:
a. Change in the diversity of species. or numbers of any species of
animals (birds. land animals including reptiles. fish and shellfish.
benthic organisms. insects or microfauna)?
No. The site is a vacant lot with no significant animal life of any kind.
b. Reduction of the numbers of any unique. rare or endangered
species of animals.
No, The site is a vacant lot with no significant plants of any kind.
c. Introduction of new species of animals into the area. or result in a
barrier to the migration of movement of animals?
No. No new species will be introduced. Migration of animals will not
be affected by development.
d. Deterioration to existing wildlife habitat?
No. The site is not a wildlife habitat.
6.
Noise - Will the proposal result in:
a. Increases in existing noise levels?
Yes. Any development on the Southwest corner site will result in
some increase in existing noise levels as the property is currently
undeveloped. Operation of a restaurant use in a manner consistent
with the required Conditional Use Permit and City Code requirements
will mitigate significant impacts, These standard operating conditions
will be made and enforced as a part of the Redevelopment Agency's
Disposition and Development Agreement (DDA),
b. Exposure of people to severe noise levels.
No. This use does not generate severe noise levels.
7.
light and Glare - Will the proposal produce new light and glare.
Yes. Any development on the Southwest corner site will result in
some increase in light and glare levels as the property is currently
undeveloped. Operation of a restaurant use in a manner consistent
with the required Conditional Use Permit and City Code requirements
will mitigate significant impacts. The restaurant will be oriented (and
the majority of the new light and glare will be directed) toward
Huntington Drive and away from the residential uses to the south.'
Additionally, parking lot light standards are limited to 15 feet in height
and will be focused on the development site. These standard
operating conditions will be" made and enforced as a part of the
Redevelopment Agency's Disposition and. Development Agreement
(DDA).
8. land Use - Will the proposal result in a substantial alteration of
the present or planned land use of the area?
Yes. The development site is currently an undeveloped vacant lot.
The proposed development is consistent with City land use
restrictions and long range plans for the area.
9. . Natural Resources - Will the proposal result in:
a. Increase in the rate of use of any natural resources?
,
No. This development is part cif the natural urban development
process and is consistent with long range development plans for the
area.
10. Risk of Upset - Does the proposal involve risk of an explosion
or the release of hazardous substances (including, but not limited to, oil,
pesticides. chemicals or radiation) in the event of an accident or upset
conditions?
No. This commercial use is not considered a generator of hazardous
waste. The risk of explosion is negligible.
12. Population - Will the proposal alter the location, distribution,
density or growth rate of the human population of the area?
No. This project will serve primarily the existing population and is not
considered growth inducing.
12. Housing - Will the proposal alter the existing housing, or create
a demand for additional housing?
No, This commercial development will not generate new housing
demand.
13. Transportation/Circulation - Will the proposal result in:
a. Generation of substantial additional vehicular movement?
Yes. Measurable traffic volume increases will occur as a result of the
. proposed project. However, this increase- is consistent with uses
anticipated for the site as a result of any commercial development for
which the property was formerly used and for which it is now zoned.
Measures taken to mitigate negative impacts on the environment
include construction of a dedicated right hand turn lane for eastbound
Huntington traffic turning south onto Second, 30 foot wide
driveways instead of Code required 25 feet, and not allowing
ingress/egress to the site closer than 150 feet to the Second Avenue
corner. Analysis of the Downtown 2000 project by Associated
Transportation Engineers (ATE) indicates that use of this site by a
20,000 Sq. Ft. retail user (a use more intense that the proposed
6,392 Sq. Ft. restaurant) was not significant. See page Table 3, Pg.
13 of the ATE report, This report is on file and available in the
Economic Development Division offices.
b. Effect on existing parking facilities or demand for new parking?
No. The proposed commercial development will provide parking in
excess of that required by the City Code. Current development plans
exceed City parking requirements by approximately 50% (6,392 Sq.
Ft. = 64 spaces required; provided - 85 spaces).
,
c. Substantial impact upon existing transportation systems?
No. However, measurable impacts to the transportation system will
occur as a result of the proposed project. These impacts are
consistent with uses anticipated for the site as a result of any
commercial development and not substantial. Measures taken to
mitigate negative impacts on the environment include construction of
a dedicated right hand turn lane for eastbound Huntington traffic
turning south onto Second, 30 foot wide driveways instead of the
Code required 25 feet, not allowing ingress/egress to the site closer
than 150 feet to the Second Avenue corner and relocation of the bus
stop from the southwest corner of Second and Huntington to the
southeast corner as part of the ongoing Downtown 2000 project.
d, Alterations to present patterns of circulation or movement of
people and/or goods?
No. No significant circulation pattern changes will take place as part
of this development. The corner of Second Avenue and Huntington
Drive is being reconfigured; however, the ability to make southbound
turn movements from Huntington will be maintained. There will be
some increase in the use of the alley to the south of the site (see
below).
e. Alterations to waterborne, rail or air traffic?
No. The development will not impact any of the modes ,described.
f. Increase in traffic hazards to motor vehicles, bicycles or
pedestrians?
No. The site is currently vacant and does not generate any
measurable activity which causes traffic hazards. The proposed
development will generate traffic (vehicular and pedestrian), light,
glare, noise and alter lines of sight. However, these impacts are
consistent with the uses allowed in this Commercial Zone. Hazards
will be mitigated by enforcement of State law and City codes. Design
of the site shall direct traffic safely into the alley (east/west) and
Huntington Drive. If traffic in the alley becomes excessive, the alley
can be made one-way.
14.' Public Services - Will the proposal have an effect upon, or
result in a need for new or altered governmental services in any of the
following areas:
a. ,Fire protection?
No, The Arcadia Fire Department has indicated that it has adequate
resources to service this development.
b. Police protection?
No. The Arcadia Police Department has indicated that it has adequate
resources to service this development.
c. Schools?
No. This development will not generate additional demand for school
services. However, the school district has established development
fees which are levied prior to the issuance of City Building Permits.
These fees are used by the Arcadia Unified School District to provide
school services.
d. Parks and other recreational facilities?
No. This development will not impact parks and recreation facilities.
e. Maintenance of public facilities, including roads?
No. A major public infrastructure upgrade is currently taking place in
the area know as the Downtown 2000 Project. This program
includes reconstruction of water, storm drain and gas lines as well as
resurfacing portions of Huntington. Upon completion, the City does
not anticipate the need for additional work of this type in the
foreseeable future.
The Agency anticipates vacation of the access road which lies along
the eastern edge of the site. This land will be incorporated as part of
the development's parking lot. The vacation will occur only after the
legally required hearings and notices have occurred. Utility
easements, if necessary, will be reserved.
f. Other governmental services?
No. All applicable governmental agencies have been noticed as part
of the review process. No comments have been received,
, 5. Energy - Will the proposal result in:
a. Use of substantial amount of fuel or energy?
No. While energy will be consumed. the amounts will be consistent
with this type of land use.
b. Substantial increase in demand upon existing sources of energy. or
sources of energy?
No. No substantial increase in demand will occur.
, 6. Utilities - Will the proposal result in a need for new systems. or
substantial alterations to the following utilities?
a. Power or natural gas?
No. Edison undergrounded and upgraded their facilities serving this
site within the last several years. The Gas Company is currently
replacing old lines with new as part of the Downtown 2000 Project.
These facilities will adequately serve the site.
b. Communications Systems?
No. The site is served by Pacific Bell. Service to the site is sufficient.
having been undergrounded and upgraded in the last several years.
c. Water?
No. The Arcadia Water Division is upgrading the water mains serving
this site as part of the Downtown 2000 Project. The service system
is adequate.
d. Sewer or septic tank?
No. Adequate capacity exists to serve this site.
.
e. Storm water drainage?
No. The Downtown 2000 Project calls for the construction of a new
storm drainage system to the west which will help alleviate problems
which currently exist in the area. Development of this site will not
cause additional demand for new facilities.
f, Solid waste disposal?
No. The City is served by several commercial haulers. These haulers
and their clients are subject to governmental regulation of the waste
stream. Measures imposed to limit refuse generation and control
collection activities will apply to this use as with all others in the area.
17. Human Health - Will the proposal result in:
a. Creation of any health hazard or potential health hazard (excluding
mental health)?
No. The proposed land use does not introduce health hazards.
b. Exposure of people to potential health hazards?
No. The proposed land use will not expose people to health hazards.
18. Aesthetics - Will the proposal result in the obstruction of any
scenic vista or view open to the public, or creation of an aesthetically
offensive site open to public view?
No. Development will be done with an emphasis placed on good
design and heavy landscaping. The project will undergo both
Redevelopment Agency and City Design Reviews.
19. Recreation - Will the proposal re'sult in an impact upon the
quality of existing recreational opportunities?
No. This development will incorporate the existing City .pocket park"
at the corner of Second and Huntington. This may result in increased
use of this passive recreational use.
20. ' Archeological(Historical - Will the proposal result in an
alteration of a significant archeological or historical site, structure, object
or building?
No. No known archeological or historical sites, structures, objects or
buildings are known to exist in the area. The site is vacant of any
improvements.
21. Mandatory Findings of Significance -
a. Does the project have the potential to degrade the quality of the
environment, substantially reduce the habitat of a fish or wildlife
species, cause a fish or wildlife population to drop below self-
sustaining levels, threaten to eliminate a plant or animal,
community, reduce the number or restrict the range or a rare or
endangered plant or animal or eliminate important examples of the
major periods of California history or prehistory?
No. The project site is vacant and undeveloped with no known
historic, archeological or biological sensitivities. Development will not
result in an impact to any of the concerns cited above.
b. Does the project have the potential to achieve short-term, to the
disadvantage of long-term environmental goals? (A short-term
impact on the environment is one which occurs in a relatively
brief, definitive period of time while long-term impacts will endure
well into the future)
No. Developments of this type and design tend to endure over an
extended period of time. The intent of the developer is to operate
this land use well into the future and has indicated this by negotiating
a five year lease with an obligation to buy the land after the lease
term is finished..
c. Does the project have impacts which are individually limited, but
cumulatively considerable? (A project may impact on two or more
separate resources where the impact on each resource is relatively
small, but where the effect of the total of those impacts on the
environment is significant).
No. The combined impacts generated by this project do not create a
significant cumulative impact.
'.
d. Does the project have environmental effects which will cause
substantial adverse effects on human beings, either directly or
indirectly?
No. This development and proposed land use is intended to provide a
direct service to people. No substantial adverse effects on human
beings is anticipated.