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HomeMy WebLinkAbout6176 ~ .... ~ .. ~ .- RESOLUTION NO. 6176 <, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING A NEGATIVE DECLARATION, AND APPROVING A CERTAIN DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE ARCADIA REDEVELOPMENT AGENCY AND WAKEN DEVELOPMENT, LLC (OFFICE 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, the City Transit Fund-owned parcels (APN 5773-8-905/909) (the "Site") at the southwest corner of North First Avenue and East SI. Joseph are currently vacant and are rarely used for parking; and WHEREAS, the City Council now believes that the design and construction of the "Blue Line" rail system or an alternative rail system at this location is, for budgetary, political, organization and legal reasons, very unlikely to occur in the foreseeable future, and that there is currently no funding (other than planning funds) for an extension of the "Blue Line" beyond Sierra Madre Villa in Pasadena and running through Arcadia to the east, and that such extension, when and if approved, will have to compete with other densely populated transportation corridors for limited future funding; and WHEREAS, the probability of such funding and the extension of the Blue Line or other rail transit system to the east within the next 10-20 years appears very unlikely, and the Site would therefore remain vacant or underutilized and consequently of little or no economic or aesthetic value to the City or the Redevelopment Project Area for an unreasonable period of time; and 1 6176 .. ~ ........ ~ ~_. WHEREAS, the corner location of the Site makes interim development of the privately owned "saw-toothed" western parcel adjacent to the Site unlikely by itself; and WHEREAS, the City Transit Fund or City itself has no other use for the Site; and WHEREAS, Health and Safety Code Section 33220 authorizes the City to sell the Site to the Agency to aid in redevelopment within the Project Area; and WHEREAS, the City (Transit Fund) Proposition C funds were used in 1996 to acquire the Site; and WHEREAS, the Proposition A and C Local Return Guidelines (FY99) from the Metropolitan Transportation Authority (MTA) require pursuant to Article IV, Paragraph H, that the sale price of the Site must be either the "purchase price or appraised value, whichever is greater"; and WHEREAS, the 1996 purchase price of the Site based upon an appraisal, was $162,000 for Parcel 909, and $141,000 for Parcel 905 (Total $303,000 $15.51 sq. ft.); and WHEREAS, the Agency obtained an opinion of value on April 4, 2000, from Anchor Pacific Company for the Site of $14.15 to $14.26 sq. ft. ($276,491 to $278,640), net of a proposed dedication of easement for public street purposes; and WHEREAS, the 1996 purchase price for the Site is therefore higher and shall then be required to be the sale price to the Agency; and WHEREAS, in order to implement the Redevelopment Plan, the Agency proposes to purchase the Site and then to sell the Site to Waken Development, LLC ("Developer") pursuant to the terms and conditions set forth in that certain Disposition and Development Agreement (the "DDA") dated June 6,2000, by and between the Agency and the Developer, attached hereto as Exhibit A; and 2 6176 , WHEREAS, the Agency has caused the preparation of, and the City Council has reviewed and considered, the summary report (the "Summary"), attached hereto as Exhibit B, setting forth the cost of the DDA to the Agency, the estimated value of the interest to 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 the California Environmental Quality Act ("CEQA"), the Agency has prepared an Initial Study of the proposed sale of land, the design of the building and the DDA, and a Negative Declaration (Exhibit C) has been prepared, all of which have been reviewed by the City Council; and WHEREAS, pursuant to provisions of the Health and Safety Code Sections 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, the Negative Declaration, and the proposed DDA; and WHEREAS, in accordance with Health and Safety Code Sections 33490, 33431 and 33433 and Government Code Section 6063, the Agency has caused to be published notices of a joint public hearing before the Agency and City Council for consideration of Amendment One to the 1999 Implementation Plan, for receipt and approval of the Negative Declaration for the Project by the Agency, and for receipt and approval of the DDA by the Agency and City Council; 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 3 6176 , with the purposes and provisions of applicable State and local law and the Redevelopment Plan. NOW, THEREFORE, THE 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 a full and fair public hearing having been held on the Negative Declaration prepared in connection with the Project, as stated in the recitals herein, as the lead agency under CEQA, the City Council approves the Negative Declaration for the Project as attached hereto as Exhibit D and incorporated herein by reference, and directs staff to file a Notice of Determination with the Los Angeles County Clerk in accordance with the City's CEQA Guidelines. SECTION 3. That the sale of the Site to the Agency is approved and that the consideration for the sale of the Site to the Agency for $303,000 ($15.51 sq. ft. ) which is the price the City Transit Fund paid in 1996 to acquire the Site, is the higher of the original purchase price and the recent opinion of value provided by Anchor Pacific Company ($278,649; $14,26 net sq, ft.), as is required by Metropolitan Transportation Authority Guidelines. SECTION 4. That for the reasons set forth in the Summary, approval of the DDA will assist in the elimination of blight in the Central Redevelopment Project Area. SECTION 5. That the sale price of the Site to the Developer as provided in the DDA is not less than the fair market value. 4 6176 -, . SECTION 6. 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-183 on December 7, 1999, and as amended by Agency Resolution 185. SECTION 7. That the two land sale transactions and proposed development of the Site are consistent with the Redevelopment Plan. SECTION 8, That the DDA attached hereto as Exhibit A, is hereby approved subject to such minor modifications as may be approved by the City Manager and by the City Attorney. The City Manager is further authorized to execute such other documents as may be necessary in order to effectuate the sale of the Site pursuant to this Resolution. SECTION 9. That the City Clerk of the City of Arcadia shall certify to the adoption of this Resolution. SECTION 10, This Resolution shall take effect upon adoption. Passed, approved and adopted this 6th day of June 2000. ATTEST: ' ' ~:&..~ May City 0 Arcadia ~-d " 't}t Clerk of the , APPROVED AS TO FORM: ~=r. City t\ orney !~T~ 5 6176 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6176 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 6th day of June, 2000 and that said Resolution was adopted by the following vote, to wit: AYES: Councilmember Chandler, Chang, Marshall, Segal and Kovacic NOES: None ABSENT: None .J 6 6176 EXHIBITA - EXHIBIT B . EXHIBIT C - COUNCIL RESOLUTION NO. CC.6176 Disposition and Development Agreement by and between the Arcadia Redevelopment Agency and Waken Development, LLC, dated June 6, 2000. (A complete copy of the DDA is Attachment No. 4 to the June 6, 2000, staff report.) Summary (Disposition Report) (A complete copy of the Summary is Attachment NO.5 to the June 6, 2000, staff report.) Environmental Information Form, Initial Study and draft Negative Declaration (complete copies of the above documents are located in Attachment 3 to the June 6, 2000, staff report.) 6 \ C7 /' RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: The Arcadia Redevelopment Agency , 240 W, Huntington Drive Post Office Box 60021 Arcadia, CA 91006-6021 Attn: Executive Director Exempt from Recording Fee per Government Code ~27383 (Space above for Recorder's Use) THE HALE/W AKEN OFFICE PROJECT DISPOSITION AND DEVELOPMENT AGREEMENT between THE ARCADIA REDEVELOPMENT AGENCY a California public agency and WAKEN DEVELOPMENT, LLC a California limited liability company [Dated as of June 6, 2000 for reference purposes only] RVPtID\DUI\570839 EXHIBIT "A" ARTICLE 1. EFFECTIVE DATE; PARTIES; DEFINITIONS. 1.1 Effective Date of Agreement. This HalelWaken Office Project - Disposition and Development Agreement ("Agreement") is dated June 6, 2000 for reference purposes only. This Agreement will not become effective until the date ("Effective Date") on which all of the following are true: (i) Following all legally required notices and hearings, this Agreement has been ' approved by the Agency's governing board and the City Council (acting as the Agency's legislative body) and deliver to the Developer; (ii) Three (3)' copies of this Agreement have been approved and properly executed by the appropriate authorities of the Developer, as defined in Section 1 .2.21, and all three (3) copies havebeen returned to the Agency together with the Developer Deposit (defined in Section 3.21); and (iii) This Agreement has been executed by the appropriate authorities of the Agency and delivered to Developer. If this Agreement has been approved by the Agency and delivered to the Developer as provided in (i) above, but the Developer fails to approve and/or deliver this Agreement and the Developer Deposit to the Agency as described in (ii) above by June 21,2000, then this Agreement shall not become effective and any prior signatures and approvals of the Parties will be deemed void and of no force or effect. This Agreement shall be recorded against the Property prior to the Close of Escrow (hereinafter defined). 1.2 Parties to Agreement. 1.2.1 The Agency. The address of the Agency is 240 West Huntington Drive, , Arcadia, California 91006-6021; telephone (626) 574-5414; facsimile (626) 447-3309; with copies to Best'Best & Krieger LLP, 3750 University Avenue, Suite 400, Riverside, CA 92501, Attention: Arcadia Redevelopment Agency Counsel; facsimile (909) 686-3083. All article and section references are to articles and sections of this Agreement unless otherwise stated, R VPUD\DLH\S'10839 -1- "Agency," as used in this Agreement, means THE ARCADIA REDEVELOPMENT AGENCY, a California public agency, and any nominee, assignee of, or successor to its rights, powers and responsibilities. Agency represents and warrants to Developer that, to the Agency's actual current knowledge: (i) The Agency is a public body, corporate and 'politic, exercising governmental functions and powers and organized and existing under the California Community Redevelopment Law (California Health & Safety Code Section 33000, et seq,) ("CRL"); (ii) The Agency has taken all actions required by law to approve the execution of this Agreement; (iii) The Agency's entry into this Agreement and/or the performance of the Agency's obligations under this Agreement does not violate any contract, agreement or other legal obligation of the Agency; (iv) The Agency's entry into this Agreement and/or the performance of the Agency's obligations under this Agreement does not constitute a violation of any state or federal statute or judicial decision to which the Agency is subject; (v) There are no pending lawsuits or other actions or proceedings which would prevent or impair the timely performance of the Agency's obligations under this Agreement; (vi) The Agency has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement has been duly authorized and no other action by Agency is requisite to the valid and binding execution, delivery and performance of this' Agreement, except as otherwise expressly set forth herein; and (vii) The individual executing this Agreement is authorized to execute this Agreement on behalf of the Agency, RVPUB\[)LH\510839 .-2- The representations and warranties set forth above are material consideration to the Developer and the Agency acknowledges that the Developer is relying upon the representations set forth above in undertaking the Developer's obligations set forth in this Agreement. The Agency's representations and warranties shall survive the Close of Escrow (as herein defined below) and shall not be deemed merged with the Grant Deed, The term "Agency's actual current knowledge" means, and is limited to, the actual current knowledge of the Agency's Executive Director as of the date of the making of the representation or warranty, without having undertaken any independent inquiry or investigation for the purpose of making such representation or warranty and without any duty of inquiry or investigation, All of the terms, covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the Agency and its nominees, successors and assigns, 1.2.2 The Developer. The Developer is WAKEN DEVELOPMENT, LLC, a California limited liability company. The address of the Developer for purposes of this Agreement is ISO N. Santa Anita Avenue, Suite 645, Arcadia, California 91006; telephone (626) 574-7430; facsimile (626) 574-5872. Developer represents and warrants to Agency that, to the Developer's actual current knowledge: (i) (ii) (iii) (iv) RVPUB\DLH\S70839 The Developer is a duly formed California limited liability company in good standing and lawfu1\y entitled to do business in the State of California and the City of Arcadia; The individual(s) executing this Agreement is/are authorized to execute this Agreement on behalf of the Developer; The Developer has taken all actions required by law to approve the execution of this Agreement; The Developer's entry into this Agreement and/or the performance of the Developer's obligations under this Agreement does not violate any contract, agreement or other legal obligation of the Developer; -3- (v) The Developer's entry into this Agreement and/or the performance of the Developer's obligations under this Agreement does not constitute a violation of any state or federal statute or judicial decision to which the Developer is subject; (vi) There are no pending lawsuits or other actions or proceedings which would prevent or impair the timely performance of the Developer's obligations under this Agreement; and (vii) The Developer has the legal right, power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance of this Agreement have been duly authorized and no other action by Developer is requisite to the valid and binding execution, delivery and performance of this Agreement, except as otherwise expressly set forth herein, The representations and warranties set forth herein are material consideration to the Agency and the Developer acknowledges that the Agency is relying upon the representations set forth above in undertaking the Agency's obligations set forth above. The term "Developer's actual current knowledge" means, and is limited to, the actual current knowledge of Matt Waken and Richard Hale, as of the date of the inaking of the representation or warranty without having undertaken any independent inquiry or investigation for the purpose of making such representation or warranty and without any duty of inquiry or investigation, All of the terms, covenants and conditions of this Agreement shall be binding on and shall inure to the benefit of the Developer and its permitted nominees, successors and assigns, Wherever the term "Developer" is used herein or therein, such term shall include any permitted nominee, assignee or successor of the Developer. The qualifications and identity of the Developer are of particular concern to the Agency, and it is because of such qualifications and identity that the Agency has entered into this Agreement with the Developer. No voluntary or involuntary successor-in-interest ofthe Developer shall acquire any'rights or powers under this Agreement except as expressly set forth herein, The RvrUB\DLH\570839 -4- Developer may not assign or transfer all or any part of this Agreement or the Property (hereinafter defined) without the prior written approval of the Agency, which may be given or withheld as provided in Sections 4,13 and 4.14, 1.2.3 Agency and Developer are sometimes individually referred to herein as "Party" and collectively as "Parties." ARTICLE 2. RECITALS ABOUT THE PLAN AND PROJECT. 2.1 The Redevelopment Plan and Project Area. The City Council of the City of Arcadia ("City") has approved and adopted a redevelopment plan ("Redevelopment Plan") for a redevelopment project area known as the Central Redevelopment Project Area ("Project Area"), This Agreement is subject to the provisions of the Redevelopment Plan as it now exists and as it may be subsequently amended. The Redevelopment Plan is incorporated by this reference. The Project Area is located in the City of Arcadia, California; its boundaries are specifically described in the Redevelopment Plan. 2.2 Purpose of this Agreement. This Agreement and the Exhibits attached hereto implement the Redevelopment Plan for the Project Area by providing for the disposition and development of real property in the City of Arcadia, together with related off-property improvements, as a two-story, approximately 20,000 square foot professional office building and parking lot ("Development"). The Development is more specifically described in the Scope of Development (Exhibit B) attached hereto, The Development of the Property pursuant to this Agreement is in the best interests of the City and Agency and the health, safety, morals and welfare of its taxpayers and residents and is in accordance with public purposes set forth in federal, state and local law and regulation.' Implementation of this Agreement will further the goals and objectives of the Redevelopment Plan and the City's General Plan by strengthening the City's land use and social structure and by alleviating economic and physical blight within the Project Area, RVPUB\DLH\5708J9 -5- ARTICLE 3. ACQUISITION AND CONVEYANCE OF THE PROPERTY. 3.1 Description of the Property. The "Property" consists of approximately 20,620 square feet and is located on the corner ofSt. Joseph Street and First Avenue and is more particularly described on the attached Exhibit A. The Property is currently owned by the City of Arcadia and is vacant. 3.2 Purchase Price for the Property. The "Property Purchase Price" is Two Hundred Ninety Four Thousand Forty One Dollars and 20/ I 00 ($294,041,20), which shall be paid in cash upon the Close of Escrow, 3.2.1 Good Faith Deposit and Liquidated Damages. Concurrently with the Developer's execution of this Agreement, the Developer shall pay into Escrow the sum of Ten Thousand Dollars ($10,000) ("Developer Deposit"), which shall be held by Escrow Holder in an interest bearing account in accordance with Section 3.4.8. The Developer Deposit and accrued interest shall be non-refundable (except as expressly set forth below) arid shall be credited against the Property Purchase Price upon the Close of Escrow. In the event of a failure to timely close Escrow due to a breach by Agency of the terms of this Agreement, or not due to the fault of either party hereto, the Developer Deposit shall be returned to Developer. In the event of a failure to timely close Escrow due to an uncured breach ~y. Developer of the terms of this Agreement, Agency shall be entitled to payment of the Developer Deposit as liquidated damages as set forth in the following paragraph. THE DEVELOPER STIPULATES THAT THE AGENCY WllL SUFFER, DAMAGES IF ESCROW FAILS TO CLOSE DUE TO AN UNCURED MATERIAL,DEFAULT OF THE DEVELOPER UNDER TIllS AGREEMENT. THE PARTIES AGREE THAT THE AMOUNT OF SUCH DAMAGES WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO QUANTIFY. IF ESCROW FOR THE SALE OF THE PROPERTY FAILS TO CLOSE BY THE OUTSIDE CLOSING DATE DEFINED IN SECTION 3.4.1.2 DUE SOLELY TO DEVELOPER'S UNCURED DEFAULT, AGENCY AND DEVELOPER AGREE THAT THE AMOUNT OF THE DEVELOPER DEPOSIT IS A REASONABLE ESTIMATE OF THE R.VPUB\DUI\S70839 -6- DAMAGES WHICH AGENCY WILL SUFFER. UPON THE OCCURRENCE OF ANY OF THE FOREGOING EVENTS, THE ESCROW HOLDER SHALL PAY THE DEVELOPER DEPOSIT TO THE AGENCY AS LIQUIDATED DAMAGES AND AS ITS SOLE AND EXCLUSIVE REMEDY. AGENCY'S INITIALS DEVELOPER'S INITIALS 3.3 (Reserved.) 3.4 Conveyance of the Property. In accordance with and subject to all the terms, conditions and covenants of this Agreement, the Agency agrees to convey fee simple defeasible title to the Property to Developer, and Developer agrees to acquire fee simple defeasible title to the Property, together with all rights, privileges and easements appurtenant thereto, including any development rights and air rights, from Agency pursuant to this Agreement, as set forth below. 3.4.1 Escrow. 3.4.1.1 Opening of Escrow. Within the time period set forth in the Schedule of Performance (Exhibit C), the Agency and Developer shall open an escrow ("Escrow") for the conveyance of the Property with Premium Escrow, 150 N, Santa Anita, Suite 110, Arcadia, California 91006 ("Escrow Holder"). For purposes of this Agreement, the Escrow shall be deemed , open on the date Escrow Holder shall have received a fully executed original or originally executed counterparts of this Agreement from Agency and Developer ("Opening of Escrow"), and Escrow Holder shall notify Agency and Developer, in writing, of the date Escrow is opened, Agency and Developer acknowledge and agree that the Opening of Escrow shall occur within five (5) business days following the Effective Date. Escrow Holder shall record this Agreement against the Property' within five (5) days following the Opening of Escrow. This Agreement constitutes the joint basic escrow instructions of the Agency and the Developer for the conveyance of the Property, and a notarized duplicate original of this Agreement shall be delivered to the Escrow Holder upon the Opening of Escrow. Agency and Developer agree to execute, deliver and be bound by any reasonable RVPUB\DLH\570839 -7- or customary supplemental or additional escrow instructions (" Additional Instructions") of Escrow Holder or other instruments as may be reasonably required by Escrow Holder in order to consummate the transaction contemplated by this Agreement. Any such Additional Instructions shall not conflict with, amend or supersede any portions of this Agreement unless expressly consented or agreed to in writing by Agency and Developer. 3.4.1.2 Close of Escrow, "Close of Escrow" or "Closing" means the recordation of the Grant Deed (defined herein below) in Los Angeles County Official Records, Close of Escrow is anticipated to occur on or before August 1, 2000 ("Outside Closing Date") unless such delay is expressly required or pennitted by this Agreement; provided, however, that Agency and Developer may, but shall not be obligated to, close the Escrow upon such earlier or later date as Agency and Developer mutually agree to in writing, The Closing shall be subject to the satisfaction or written waiver of all conditions precedent thereto, The Agency and the Developer agree to perform all acts necessary for the conveyance in sufficient time for title to be conveyed by the Outside Closing Date, Agency and Developer may mutually agree to change the Outside Closing Date by joint written notice to Escrow Holder.' If Escrow is not in a position to Close by the Outside Closing Date, then the Parties shall have those rights as set forth in Section 3.4,11 or Section 5.4, as applicable. 3.4.2 Condition of Title. It shall be a condition to the Close of Escrow for Developer's benefit that title to any portion of the Property conveyed to Developer pursuant to this Agreement shall be subject only to the f,!llowing conditions and exceptions to title ("Approved Condition of Title"): 3.4.2.1 A lien to secure payment of general and special real property taxes and assessments, not delinquent; 3.4.2.2 The lien of supplemental taxes assessed pursuant to Chapter 3.5 commencing with Section 75 of the California Revenue and Taxation Code, not delinquent; R VP1JBIDUf\S 70839 -8- 3.4.2.3 3.4.2.4 3.4.2.5 3.4.2.6 3.4.2.7 Matters affecting the condition of title created by or with the consent of Developer; All exceptions which are disclosed by the "Title Report" described in Section 3,6, which are approved or deemed approved by Developer as provided herein; All matters which would be shown by an accurate survey of the Property or by a physical inspection of the Property; Any and all easements, documents and/or memoranda which are recorded against the Property upon the Close of Escrow pursuant to the terms and conditions of this Agreement; and All applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relative to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Property. 3.4.3 Title Policy. Title shall be evidenced by the willingness of North American Title Company located at 520 North Brand Avenue, Glendale. California, 91203 ("Title Company") to issue its Standard Owner's Form Policy of Title Insurance ("Title Policy") in the amount of the Property Purchase Price, showing title to the Property vested in Developer, subject only to the Approved Condition of Title. Developer may, at its option, request an Extended Owner's Form Policy of Title Insurance ("Extended Policy") provided that the issuance of said Extended Policy or increase in coverage amount does not delay the Close of Escrow. Any additional costs including, but not limIted to, title and endorsement fees and survey fees incurred in connection with the issuance of such increased coverage and/or Extended Policy shall be Developer's sole responsibility. The issuance by Title Company of the Title Policy or Extended Policy in favor of Developer insuring fee title to the Property in the amount of the Purchase Price, subject only to the Approved Condition of R VPUB\DLH\570839 -9- Title, shall be conclusive evidence that Agency has complied with any contractual or statutory obligation, express or implied, to convey to Developer good and marketable title to the Property. 3.4.4 Conditions to Close of Escrow. 3.4.4.1 Developer's Conditions. Developer's obligation to accept title to the Property and pay the Purchase Price is subject to the satisfaction ofthe following conditions for Developer's benefit (or Developer's waiver thereof, it being agreed that Developer may waive any or all of such conditions) on or prior to the Outside Closirig Date: 3.4.4.1.1 3.4.4.1.2 3.4.4.1.3 3.4.4.1.4 R VPUB\I)UI\S70839 The Agency shall have. deposited into Escrow the, Grant Deed and all other documents and funds required of it under this Agreement; The Escrow Holder shall have received an irrevocable commitment from the Title Company to issue the Title Policy or an Extended Policy, as applicable, for the Property pursuant to this Agreement, subject only to the Approved Condition of Title; The City and the Agency shall have approved a preliminary conceptual, design plan ,for the Development in accordance with this Agreement and applicable local, state and federal laws and regulations including, without limitation, environmental approvals related thereto and applicable judicial and' administrative challenge periods have expired; The Agency and/or City, as applicable, shall have taken all actions and issued such approvals as legally -10- , 3.4.4.1.5 3.4.4.1.6 3.4.4.1.7 3.4.4.1.8 3.4.4.1.9 RVPUD\DLH\S70839 required pursuant to provisions of the California Environmental Quality Act ("CEQA") as pre- conditions to the approval of the Development and all applicable judicial and administrative challenge periods have expired; Developer shall have either: (i) obtained the City's approval of a parcel map ("Parcel Map") consolidating , the various parcels comprising the Property into a unitary parcel, in accordance with all City Municipal Code requirements, or (ii) executed a covenant ("Covenant") to hold the various parcels comprising the Property as one, in form and substance reasonably acceptable to City and Developer; The Developer shall have approved or been deemed to have approved the environmental condition and condition of title of the Property, as set forth in more detail in Section 3,6; All representations and warranties of the Agency hereunder shall be true as of the Effective Date and as of the Close of Escrow and shall continue thereafter for the full statutory period; The Developer shall have approved Escrow Holder's' estimated closing costs statement; Developer shall have furnished to the Agency satisfactory evidence, in the Agency's sole discretion, -11- 3.4.4.1.1 0 of the Developer's ability to finance the acquisition, construction and operation of the Development in a form approved by the Agency. The evidence of said financing may include, without limitation: (a) an irrevocable and binding letter of commitment from a reputable lending institution approved by the Agency pursuant to Section 4,] 4, evidencing that institution's agreement to loan funds to construct the , Development; and/or (b) evidence of the Developer's ability to self-finance the acquisition, construction and operation of the Development; and All conditions necessary for the Agency to acquire the Property' pursuant to the purchase and sale agreement with the City have been satisfied and escrow is in a condition to close thereon and Agency is in a position to convey the Property free of any possession or right of possession by any person except Developer. 3.4.4.2 Agency's Conditions. Agency's obligation to convey the Property is subject to the satisfaction of the following conditions for Agency's benefit (or Agency's waiver thereof, it being agreed that Agency may waive any or all of such conditions) on or prior to the Outside Closing Date: 3.4.4.2.1 RVPUB\DUf\S70839 The City and the Agency shall have approved a preliminary conceptual design plan for the Development in accordance with this Agreement and applicable local, state and federal laws and regulations including, without limitation, environmental approvals related thereto, and applicable judicial and -12- 3.4.4.2.2 3.4.4.2.3 3.4.4.2.4 3.4.4.2.5 R VPUB\DU 1\570839 administrative challenge periods with respect thereto shall have expired; Developer shall have furnished to the Agency satisfactory evidence, in the Agency's sole discretion, of the Developer's ability to finance the acquisition, construction and operation of the Development in a form approved by the Agency, The evidence of said , financing may include, without limitation: (a) an irrevocable and binding letter of commitment from a reputable lending institution approved by the Agency pursuant to Section 4.14, evidencing that institution' s agreement to loan funds to construct the Development; and/or (b) evidence of the Developer's ability to self-finance the acquisition, construction and operation of the Development; The Developer shall have tendered into Escrow all funds and documents required of it pursuant to this Agreement; The Developer shall have completed in a timely fashion all ofits obligations which are to be completed prior to the Close of Escrow as provided in this Agreement and the Schedule of Performance; The Escrow Holder shall have received a commitment from the Title Company to issue the Title Policy or an Extended Policy, as applicable, for the Property, subject only to the Approved Condition of Title; -13- 3.4.4.2.6 The Agency and/or City, as applicable, shall have taken all actions and issued such approvals as legally required pursuant to provisions of the California Environmental Quality Act CCEQA") as pre- conditions to the approval of the Development; 3.4.4.2.7 Developer shall have either: (i) obtained the City's approval of the Parcel Map and delivered the same to , Escrow Holder, or (ii) executed the Covenant and delivered the same to Escrow Holder; 3.4.4.2.8 All representations and warranties of the Developer hereunder shall be true as of the Effective Date and as of the Close of Escrow and shall continue thereafter for the full statutory period; 3.4.4.2.9 The Agency shall have approved Escrow Holder's estimated closing costs statement; and 3.4.4.2.10 All conditions necessary for the Agency to acquire the, Property pursuant to the purchase and sale agreement with the City have been satisfied and escrow is in a condition to close thereon and Agency is in a position to convey the Property free of any possession or right of possession by any person except the Developer. 3.4.5 Developer Payments and Documents, No less than one (1) day prior to Closing, the Developer shall payor tender (as applicable) to the Escrow Holder the following documents (in recordable form, as necessary), fees, charges and costs: RVPUB\DLH\570839 -14- 3.4.5.1 3.4.5.2 3.4.5.3 3.4.5.4 3.4.5.5 3.4.5.6 One-half (Y2) of the escrow fees, recording fees and notary fees attributable to the conveyance of the Property; The premium for the Extended Policy and any charges for surveyor other endorsements required by the Developer; The prorated amount of ad valorem taxes, if applicable, upon the Property with respect to the period subsequent to transfer of title; Any additional changes customarily charged to buyers in accordance with common escrow practices in Los Angeles County; Such other documents and instruments required by the Escrow Holder in the performance of its contractual or statutory obligations; and The Parcel Map or Covenant (as applicable), 3.4.6 Agency Payments and Documents, The Agency shall payor tender (as applicable) to the Escrow Holder the following documents (in recordable form, as necessary), fees, charges and costs promptly after the Escrow Holder has notified the Agency of the amount of such fees, charges and costs: 3.4.6.1 3.4.6.2 RVPUB\OlH\570839 One-half (Y2) of the escrow fees, recording fees and notary' fees attributable to the conveyance of the Property; The premium for the Title Policy to be paid by the Agency as set forth in Section 3.6 of this Agreement; -15- authorized to: RVPUB\DLH\S70839 3.4.6.3 3.4.6.4 3.4.6.5 3.4.6.6 3.4.6.7 The prorated amount of ad valorem taxes, if applicable, upon the Property with respect to the period prior to transfer of title; Any state, county or city documentary transfer taxes or stamps relating to the conveyance of the Property; Any additional costs and charges customarily charged to sellers in accordance with common escrow practices in Los Angeles County; A FIRPTA Certificate and California Form 590 RE, and such other documents and instruments required by the Escrow Holder in the performance of its contractual or statutory obligations; and The Grant Deed, 3.4.7 Escrow Holder Responsibilities. Upon the Closing, the Escrow Holder is 3.4.7.1 3.4.7.2 Pay, and charge the Agency and the Developer, respectively, for any fees, charges and costs payable under Sections 3.4.5 and 3,4,6 of this Agreement. Before such payments or charges are made, the Escro,w Holder shall notify the Agency , and the Developer of the fees, charges and costs necessary to' clear title and close the Escrow; Record the Grant Deed" and the Parcel Map or Covenant (as applicable); and -16- 3.4.7.3 Disburse such other funds and deliver conformed copies of all recorded documents to the Parties entitled thereto. 3.4.8 Deposit of Escrow Funds. All funds received in the Escrow shall be deposited by the Escrow Holder with other escrow funds of the Escrow Holder in an interest earning general escrow account. Such funds may be transferred to any other general escrow account or accounts. All disbursements shall be made by check of the Escrow Holder. All adjustments and prorations are to be made on the basis of a thirty (30) day month, 3.4.9 Amendment of Escrow Instructions, Any amendment to these escrow instructions shall be in writing and signed by the Agency and the Developer. At the time of any amendment, the Escrow Holder shall agree to carry out its duties as Escrow Holder under such amendment. 3.4.10 Notices, All communications from the Escrow Holder to the Agency or the Developer shall be directed to the addresses and in the manner established in Sections 1.2 and 6,6 of this Agreement for notices, demands and communications between the Agency and the Developer. ' 3.4.11 Parties Right to Terminate for Failure of Escrow to Close. If, for any reason (other than the Default of the Agency orthe Developer as defined in Section 5,3) Escrow does not close on or before the Outside Closing Date or such other date which has been mutually agreed upon by the Parties, then either the Agency or the Developer may terminate this Agreement without cost, expense or liability to either Party. Upon such termination, the Escrow Holder shall return all funds and documents to the Party depositing the same and the Escrow Holder shall return the Developer Deposit to the Developer. The Agency and the Developer shall each bear one-half of Escrow Holder's fees and expenses, 3.4.12 Grant Deed. Prior to the Closing Date, the Agency shall deposit with Escrow Holder a fully executed and recordable Grant Deed in the form attached as Exhibit D, RVpumOUN70839 -17- 3.5 [Reserve.) 3.6 Developer's Review of Title. The Close of Escrow shall be contingent upon Developer's approval or deemed approval of title to the Property pursuant to this Agreement. Prior to Developer's execution and delivery of this Agreement, Agency shall obtain and provide to Developer, a standard preliminary report from the Title Company with respect to the Property, together with the underlying documents relating to the Schedule B exceptions set forth in such report (collectively, the "Title Report"), At Developer's election, Developer may obtain, at Developer's sole cost, expense and liability, an AL T A survey ("Survey") of the Property; provided that Developer's election to obtain the Survey shall in no event delay the Close of Escrow. Developer shall have until June 21, 2000 ("Title Review Period") to give Agency and Escrow Holder written notice ("Developer's Title Notice") of Developer's disapproving or conditional approval of any matters shown in the Title Report, The failure of Developer to give Developer's Title Notice on or before the end of the Title Review Period shall be conclusively deemed to constitute Developer's approval of the condition of title to the Property. The Developer's Title Notice may be given prior to or concurrently with Developer's delivery of executed copies of this Agreement to the Agency in accordance with Section ,I, I (ii) , If Developer disapproves or conditionally approves in writing any matter of title shown in the Title Report, then Agency may, but shall have no obligation to; within ten (10) business days after its receipt of Developer's Title Notice ("Agency's Election Period"), elect to eliminate or ameliorate to Developer's satisfaction the disapproved or conditionally approved title matters by giving Developer written notice ("Agency's Title Notice") of those disapproved or conditionally approved title matters, if any, which Agency agrees to so eliminate or ameliorate by the Closing Date; provided, that, Agency shall have no obligation to pay any consideration or incur any liability in order to eliminate or ameliorate such disapproved title matters, If Agency does not elect to eliminate or ameliorate any disapproved or conditionally approved title matters, or if Developer disapproves' Agency's Title Notice, or if Agency fails to timely deliver Agency's Title Notice, then Developer shall have the right, upon delivery to Agency and Escrow Holder (on or before five (5) business days following the expiration of Agency's Election Period) of a written notice, to either: (1) waive its prior disapproval, in which event said disapproved matters shall be deemed unconditionally approved; RVPUB\DUf\S70839 -18- or (2) tenninate this Agreement pursuant to Section 3.4.11 and the Escrow created pursuant thereto. Failure to take either one of the actions described in (1) and (2) above shall be deemed to be Developer's election to take the action described in (I) above. If, in Agency's Title Notice, Agency has agreed to either eliminate or ameliorate to Developer's satisfaction by the Closing Date certain disapproved or conditionally approved title matters described in Developer's Title Notice, but Agency fails to do so, then Developer shall have the right (which shall be Developer's sole and exclusive right or remedy for such failure), upon delivery to Agency and Escrow Holder (on or before one (I) business day prior to the Closing Date) ofa written notice to either: (x) waive its prior disapproval, in which event said disapproved matters shall be deemed approved; (y) terminate this Agreement pursuant to Section 3.4,11 and the Escrow created pursuant hereto, or (z) at the Developer's election, allow the Agency an additional period of time, not to exceed thirty (30) days, to eliminate or ameliorate to Developer's satisfaction the disapproved or conditionally approved title matters described in Developer's Title Notice. If the Developer elects to proceed pursuant to (z) above, the Closing Date set forth in the Schedule of Perfonnance shall be automatically extended by the length of the additional time period which Developer provides to the Agency, Failure to take anyone of the actions described in (x), (y) and (z) above shall be deemed to be Developer's election to take the action described in (y) above. In the event that the Developer elects to proceed pursuant to (z) above and the Agency fails to eliminate or ameliorate to Developer's satisfaction the disapproved or conditionally approved title matters described in Developer's Title Notice prior to the expiration of the additional time period allowed to the Agency, then Developer shall have the right (which shall be the Developer's sole and exclusive right or remedy for such failure), upon delivery to Agency and Escrow Holder (on or before one business day prior to the Closing Date, as it may be extended pursuant to the preceding paragraph) of a written notice to either: (a) waive its prior disapproval, in which event said disapproved matter shall be deemed approved; or (b) terminate this Agreement pursuant to Section 3.4,11 and the Escrow created pursuant hereto, Failure to take either one of the actions described' in (a) and (b) above shall be deemed to be Developer's election to take the action described in (b) above, R VPUB\DLH\S70839 -19- 3.7 Review of Documents and Materials, Prior to Developer's execution of this Agreement, Agency has made available to Developer for Developer's review the documents and materials, ifany, respecting the Property (collectively, "Documents and Materials"), provided (i) such Documents and Materials were in Agency's possession and control or were reasonably available to Agency, and (ii) Agency did and does not represent, warrant or certify the accuracy, adequacy or completeness ofthe Documents and Materials, Developer's execution and delivery of this Agreement shall be deemed to constitute Developer's approval of all the soils, environmental and reports and engineering data pertaining to the Property and any architectural studies, grading plans, topographical maps and similar data regarding the Property, Developer shall keep all information contained in the Documents and Materials confidential, as provided below, 3.7.1 Reliance Upon Documents and Materials, Developer acknowledges that: (i) The Documents and Materials were furnished to it solely for Developer's review in connection with its possible purchase of the Property; (ii) Developer used the Documents and Materials and relied on any information or conclusion contained in the Documents and Materials at its own risk, and Agency shall have no liability for any inaccuracies, omissions, errors or other matters which appear in the Documents and Materials; and (iii) Developer used the Documents and Materials solely in connection with its examination of the Property and for no other purpose whatsoever, 3.8 Developer's Representations and Warranties Re: Condition of the Property, In consideration of Agency entering into this Agreement and as an inducement to Agency to sell the Property to Developer, Developer makes the following representationsand warranties, each of which is material and is being relied upon by Agency: Developer represents and warrants that it is purchasing the Property based solely upon Developer's inspection and investigation of the Property and all documents related thereto, or its opportunity to do so, and Developer is purchasing the RVrUB\DUM70839 -20- Property in an "AS IS, WHERE IS" condition, without relying upon any representations or warranties, express, implied or statutory, of any kind except as expressly set forth in this Agreement. Without limiting the above, Developer acknowledges that neither Agency, except as expressly set forth in this Section 3.8 and Section 3.9, nor any other party has made any representations or warranties, express or implied, on which Developer is relying as to any matters, directly or indirectly, concerning the Property, including but not limited to, the land, the square footage of the Property, improvements and infrastructure, ifany, Development rights and exactions, expenses associated with the Property, taxes, assessments, bonds, permissible uses, title exceptions, water or water rights, topography, utilities, zoning of the Property; soil, subsoil, the purposes for which the Property is to be used, drainage, environmental or building laws, rules or regulations, toxic waste or Hazardous Materials or any other matters affecting or relating to the Property. Developer hereby expressly acknowledges that no such representations have been made, The Developer acknowledges that the Developer's approval and execution of this Agreement pursuant to Section I.I(i) shall be conclusive evidence that (1) Developer has fully and completely inspected (or has caused to be fully and completely inspected) the Property, (2) Developer accepts the Property as being in good and satisfactory condition and suitable for Developer's purposes, and (3) the Property fully complies with Agency's covenants and obligations hereunder. Developer shall have performed and relied solely upon its own investigation concerning its intended use of the Property, the Property's fitness thereof, and the availability of such intended use under applicable statutes, ordinances, and regulations. Developer further acknowledges and agrees that Agency's cooperation with Developer in connection with Developer's due diligence review of the Property, whether by providing the Title Report other documents, or permitting inspection of the Property, has not and shall not be construed as any warranty or representation, express or implied, of any kind with respect to the Property, or with respect to the accuracy, completeness, or relevancy of any such document. Furthermore, without limiting the generality of the foregoing, Developer hereby expressly waives; releases and relinquishes any and all claims, causes of action, rights and remedies Developer may now or hereafter have against Agency, the City, and their officials, officers, employees, and agents, whether known or unknown, with respect to any past, present or future presence or existence of Hazardous Materials on, under or about the Property or with respect to any past, present or future RvrUo\OU-{\570SJ9 -21- violations of any rules, regulations or laws, now or hereafter enacted, regulating or governing the use, handling, storage, release or disposal of Hazardous Materials, including, without limitation, (i) any and all rights Developer may now or hereafter have to seek contribution from Agency or City under Section ll3(f)(i) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S,c.A. S 9613), as the same may be further amended or replaced by any similar law, rule or regulation, (ii) any and all rights Developer may now or hereafter have against Agency or City under the Carpenter-Presley-Tanner Hazardous Substances Account Act (California Health and Safety Code, Section 25300, et seq,), as the same may be further amended or replaced by any similar law, rule or regulation, (iii) any and all claims, whether known or unknown, now or hereafter existing, with respect to the Property under Section 107 ofCERCLA (42 U.S,CA S 9607), and (iv) any and all claims, whether known or unknown, based on nuisance, trespass or any other common law or statutory provisions, Nothing in this paragraph shall operate as a release of any rights or remedies of the Developer against the Agency arising from the migration or release of Hazardous Materials from/on adjacent Property owned by the Agency. As used herein, the term "Hazardous Material(s)" includes, without limitation, any hazardous or toxic materials, substances or wastes, such as (A) those materials identified in Sections 66680 through 66685 and Section 66693 through 66740 ofTitle 22 of the California Administrative Code, Division 4, Chapter 30, as amended from time to time, (B) those materials defined in Section 255010) of the California Health and Safety Code, (C) any materials, substances or wastes which are toxic, ignitable, corrosive or reaetive and which are regulated by any local governmental authority, any agency of the state of California or any agency of the United States Government, (D) asbestos, (E) petroleum and petroleum based products, (F) urea formaldehyde foam insulation, (G) polycWorinated biphenyls (PCBs), and (H) freon and other chlorofluorocarbons, DEVELOPER HEREBY ACKNOWLEDGES THATIT HAS READ AND IS FAMILIAR ' WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 ("SECTION 1542"), WHICH IS SET FORTH BELOW: "A GENERAl" RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO RVPUD\DLH\57()SJ9 -22- EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERlALL Y AFFECTED HIS SETTLEMENT WITH THE DEBTOR," BY INITIALING BELOW, DEVELOPER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF TIlE FOREGOING WAIVERS AND RELEASES: Developer's Initials The waivers and releases by Developer herein contained shall survive the Close of Escrow and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed upon its recordation. 3.9 Agency's Representations and Warranties Re: Condition of the Property. In consideration of Developer entering into this Agreement and as an inducement to Developer to purchase the Property from Agency, Agency represents and warrants that pursuant to California Health and Safety Code Section 25359.7, to the actual current knowledge of the Agency, the Agency is not aware of the release or the presence of any Hazardous Materials on or in the Property. 3.10 Taxes and Assessments. Any assessments and ad valorem taxes on the Property levied, assessed or imposed for any period commencing prior to conveyance of title shall be paid by the Agency, All assessments, ad valorem taxes, possessory interest taxes and personal property taxes levied or imposed upon the Property or upon this Agreement or any right hereunder for any period after the Closing shall be paid by the Developer, The Developer shall pay all taxes and assessments, levied ~gainst the Property in a timely fashion, RVPUD\Dlll\S70839 -23- ARTICLE 4. DEVELOPMENT OF THE PROPERTY AND INCENTIVES. 4.1. Obligations Regarding Scope of Development; Schedule of Performance. The Developer shall perform its obligations with respect to the Development in accordance with this Agreement, including, without implied limitation, the Scope of Development and Schedule of Performance attached as Exhibits Band C, respectively, the Grant Deed to the Property and any additional plans provided by the Developer and approved by the Agency and the City pursuant to this Agreement. 4.2 Preparation of Concept and Site Plans and Related Documents. Within the time set forth in the Schedule of Performance, the Developer shall prepare and submit to the Agency concept and site plans and related documents for the Development, for the Agency's review pursuant to Section 4.3 of this Agreement. The concept and site plans and related documents shall be consistent with the Scope of Development. The Agency's staff and the Developer shall hold regular progress meetings to coordinate the preparation and submission of the concept and site plans and related documents, The Agency's staff and the Developer shall communicate and consult informally as frequently as is necessary to assure that theJormal submittal of any documents to the City receive prompt consideration, 4.3 Agency Approval of Concept Design Drawings. The Agency shall have the right of review and approval of all construction plans, drawings and related documents (collectively "Plans") for the Development of the Property, including any proposed changes thereto, The Agency shall review and reasonably approve or disapprove such Plans and any proposed changes thereto within twenty (20) days of its receipt of the Plans, Any disapproval shall state in writing the reasons for disapproval and the changes requested by the Agency to be made, The Agency shall approve the Plans provided that the Plans conform to this Agreement, The Developer, upon receipt of a' disapproval, shall revise such plans, drawings and related documents and shall submit them to the Agency within twenty (20) days after receipt of notice of disapproval, The Agency shall use reasonable good faith efforts to expedite the City's processing and review of the Developer's plans, in a manner consistent with statute, the City's Municipal Code and this Agreement. The Agency shall R VPlJB\DlJ [\570839 -24- approve or disapprove the Plans within twenty (20) business days from the date of their submission to the Agency. Failure by the Agency to either approve or disapprove within the time established in this Section 4,3 shall be deemed an approval. The foregoing notwithstanding, no matter shall be deemed approved unless the request for approval conforms with Section 6,6, Any changes to the Plans required by the Agency shall not operate to extend the time for performance of the Developer's obligations hereunder, unless such changes are necessary due to the Agency-initiated deviations from the Scope of Development. The Agency and the Developer shall confer in good faith regarding appropriate time extensions for the Agency-initiated changes, 4.4 Governmental Requirements. If any governmental official, agency, department or bureau having jurisdiction over the Development (including, without implied limitation, the City) requires material revisions or corrections of the Agency-approved concept and site plans, the Developer and the Agency shall cooperate in efforts to obtain waivers of such requirements or to develop a mutually acceptable set of alternative concept and site plans. With the exception of Section 4.5 below, the Developer shall, at its own expense, secure or cause to be secured, any and all permits, entitlements, or other approvals which may be required by or from the City or any other governmental agency with jurisdiction over the Development. The Agency shall provide reasonable goodJaith efforts to expedite the City's processing of permits and approvals, in a manner consistent with statute, the City's Municipal Code and this Agreement. The Developer shall carry out the construction of the Development in conformity with all applicable laws, including all applicable federal and state labor and safety standards. 4.5 Cost of Construction. Except as otherwise provided in this Section 4.5, the cost and expense of undertaking and completing the Development, including, without limitation, constructing all required on- and off-site improvements, and providing all utilities therefor, shall be borne by the Developer at its sole cost, expense and liability, 4.6 Construction and Development Schedule of Performance, The Developer shall begin and complete all construction and development within the times specified in the Schedule of Performance or such reasonable extension of said dates as may be granted by the Agency, In addition RVPlJB\DUflS10B39 -25- to extensions of time provided by express provisions of this Agreement, the Schedule of Performance may be revised from time to time as mutually agreed upon in writing between the Developer and the Agency, From time to time during the period of construction and as reasonably requested by the Agency, the Developer shall report to the Agency on the progress of construction. The reports shall be in such form and detail as may reasonably be required by the Agency and shall include construction photographs taken since the last report, 4.7 Grading, Paving and Landscaping Plans. The Developer shall prepare and submit to the City for its approval, preliminary and final, grading, paving and landscaping plans for the Property, These plans shall be prepared, sub~itted and approved by the City Engineer prior to the start of construction, The grading plans shall be prepared by a registered civil engineer. Developer shalkomplete installation of landscaping on the Property prior to the issuance of a certificate of occupancy, The landscaping plan, including plant materials and types, shall be subject to the City's, reasonable approval in accordance with applicable City ordinance and/or regulation, 4.8 [Intentionally Omitted.] 4.9 Right of Access. For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have reasonable right of access to the Development without charge, during business hours and after not less than twenty-four (24) hours prior written notice. Agency will use good faith efforts to minimize any interference that the Agency's entry may have upon the Developer's operations, The Agency shall indemnifY, defend, and hold harmless the Developer and Developer's officers, members, employees, and agents from any damage caused or liability arising out of the exercise of this right of access, to the extent such liability and damage is proximately caused by the City, the Agency or their employees, agents or contractors, 4.10 Indemnity, The Developer shall defend, indemnifY and hold the Agency and the City, and their officers, directors, agents, servants, attorneys, employees and contractors harmless from and against all liability, loss, damage, costs, or expenses (including reasonable attorneys' fees and court RVPUB\OUI\S70839 -26- costs) (all of the foregoing collectively, "Liabilities") arising from or as a result of the death of any person or any accident injury, loss or damage whatsoever caused to any person or to the property of any person and which shall be, or alleged to be, directly or indirectly, caused by any acts done thereon or any errors or omissions of the Developer or its officers, directors, agents, servants, attorneys, employees or contractors, The Developer shall not be responsible for (and such indemnity shall not apply to) any acts, errors or omissions directly or indirectly caused by the Agency or the City, or their respective officers, directors, agents, servants, attorneys, employees or contractors, The Agency and the City shall not be responsible for any acts, errors or omissions of any person or entity except the Agency and the City and their respective officers, agents, servants, employees or contractors, The Developer's obligations under this Section 4.10 shall survive the expiration or termination of this Agreement. 4.11 Insurance, Prior to the "Close of Escrow, the Developer shall furnish or cause to be furnished to the Agency duplicate originals and appropriate endorsements to the Developer's commercial general liability and automobile insurance policies in the amounts set forth below, naming the Agency and the City as additional or co-insureds: (a) $1,000,000 for any'one person; and (b) $3,000,000 for anyone occurrence; and (c) $1,000,000 for any property damage, The policies shall be "occurrence," not "claims made," policies and shall be primary and non- contribllting to any insurance that the Agency may elect to obtain. Such policies shall contain a full waiver of subrogation clause, The policies shall be issued by a carrier licensed to do business in California, with a then-current Best's rating of A: VIII or better. Said policies shall provide that they shall not be canceled or reduced in types of coverage or amount of coverage without at least thirty (30) days' prior written notice to the Agency and that such reduction or cancellation shall become effective until at least twenty (20) days after receipt by the Agency of the written notice thereof. The policy amounts set forth above shall not limit or define the extent of the Developer's indemnity liability pursuant to Section 4,10 or any other provision of this Agreement, or arising as a matter of law or at equity. RVPUD\DLH\S70839 -27- The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that any contractor with whom it has contracted for the performance of work on the Development carries workers' compensation insurance as required by law. The Developer shall also maintain, or cause its contractor to maintain, all-risk course of construction insurance, insuring the Developer, the Agency and the City against all risk (including earthquake) ofloss or damage to the Development. The obligations set forth in this Section shall remain in effect until a Certificate of Completion has been issued for the Development. 4.12 No Discrimination. The Developer, for itselfand its successors and assigns, agrees that the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry, and that the Developer will comply with all applicable local, state and federal fair employment laws and regulations. The Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property, or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Developer 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 of occupancy of tenants, lessees, subtenants, sublessee or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect in perpetuity. All deeds, leases or contracts relative to the Property , or the improvements constructed thereon shall contain or be subject to substantially the following nondiscrimination or non-segregation clauses, pursuant to California Health and Safety Code Section 33435 and 33436, 4.12.1 In deeds: The grantee herein covenants by and for himself, his heirs,' executors, administrators, 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 race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease; sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee RVPUBIJJU{\570839 -28- himself or any person claiming under or through him, 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 in perpetuity. 4.12.2 In leases: The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon the subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, 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 herein leased. 4.12.3 In contracts: There shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or ariy person claiming under or through him 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. 4.13 Prohibition Against Transfer. Prior to the issuance ofa Certificate of Completion, the Developer may not, except as permitted by this Section 4.13 or Section 4.14, assign or attempt to assign this Agreement or any right or obligation herein, or make any total or partial sale, transfer, lease, conveyance or assignment ofthe Property, or any portion thereof or the improvements, or any . portion-thereon, without prior written approval of the Agency, which may be given or withheld in the Agency's reasonable discretion. In determining whether to approve of such a partial sale, transfer, conveyance or assignment of the Property, or any portion thereof or the improvements thereon, the Agency shall evaluate: (i) the financial ability of the proposed transferee to own and operate the RVPUB\J)UI\570839 .-29- Development, or portion so transferred, and to meet the Developer's obligations under this Agreement; and (ii) the fitness and experience of the proposed transferee and its senior managerial personnel to Own and operate the Development or portion so transferred thereof The foregoing prohibition shall not apply to Sections 4. 13.1 or 4.13.2, provided the Developer shall first notify the Agency in writing of the proposed action. The actions to which this exception apply are: 4.13.1 The granting of easements or permits to facilitate the development of the Property; or 4.13.2 The assignment of all of the Developer's rights and obligations hereunder, or the sale, transfer or lease of the entirety of the Property and any improvements thereon to an entity formed for the purpose of constructing and operating the Development, provided that the majority voting and ownership interest in such entity is held by . Developer. Any such assignment, sale, transfer or conveyance pursuant to this Section 4.13.2 shall not relieve the Developer of liability for the timely and faithful performance of any assigned obligation, absent an express agreement between the Agency, the Developer and the third party transferee to the contrary. No unpermitted sale, transfer, conveyance or assignment or all or any portion of this Agreement or the Property shall be deemed to relieve the Developer or any other party from any obligation under this Agreement, nor shall any such. unpermitted sale, transfer, conveyance or assignment transfer any rights in the Property or this Agreement. 4.14 Permitted Encumbrances. Section 4.13 notwithstanding, Developer shall not, at any . time prior to the recordation of a Certificate of Completion, grant or permit any mortgage, deed of trust, sale and leaseback or any other form of conveyance or encumbrance in connection with the financing and/or development of the Property (a "Lien") other than a Permitted Encumbrance, as hereinafter defined. R VPUBIDLH\S70839 -30- For purposes hereof, a "Permitted Encumbrance" is any Lien which secures financing: (i) provided to Developer by a nationally or state chartered bank or any finance subsidiary thereof, an insurance company (or affiliate thereot) rated at least B+ XII by A.M. Best; (ii) providing sufficient funds to permit the construction of the Development; (iii) collateralized by the Property; (iv) with respect to which the Agency receives written notice prior to the recordation of any documentation recording such Lien; (v) with respect to which the lender agrees to give the Agency written notice, concurrently with notice to Developer, of any default under any of the financing documents pertaining to such Lien and the right to cure such default within any cure period afforded Developer by such lender or by law; and (vi) with respect to which the lender provides the Agency the right to purchase the lender's interest upon payment of all sums owed by Developer to such lender under the financing documents, which right may not expire any sooner than three (3) days prior to sale of the Property pursuant to power of sale or judgment in foreclosure. Nothing in this Agreement shall be deemed to obligate the holder of any Permitted Encumbrance to construct the Development or to guarantee such construction. Nothing in this Agreement shall be deemed to permit or authorize any such holder to develop the Property or construct improvements thereon except in strict compliance with this Agreement. Any right, title and interest in the Property (or any portion thereot) acquired by any means by any holder of a Lien, or by such holder's assignees or successors, shall be subject to the terms and provisions of this Agreement and the Grant Deed. The word "Lien" means all customary modes offinancing real estate acquisition, construction and land development. 4.15 Certificate of Completion. Upon the Developer's completion of the Development and all on- and off-site improvements in connection therewith, the Agency shall furnish to the Developer a Certificate of Completion upon written request therefor to the Agency, substantially in the form and substance as set forth in Exhibit E. The Certificate of Completion shall be a conclusive determination of satisfactory completion of all of the improvements required to be completed under this Agreement for the Development. A Certificate of Completion will not constitute: (i) evidence of compliance with or satisfaction of any obligation of the Developer to any party other than Agency, (ii) evidence of compliance with or satisfaction of any obligation of the Developer to any holder of RVPlJB\DL!f\S70839 -31- a mortgage or any insurer of a mortgage, or (iii) a notice of completion as referred to in California Civil Code Section 3093. 4.16 Covenant Running With the Land. 4.16.1 No Conveyance to Tax Exempt Entity. The Developer covenants and agrees for itself, its assigns and all voluntary and involuntary successors in interest to the Property or any part thereof, that, during all times that the Agency is permitted to receive property tax increments from the Project Area pursuant to California Health and Safety Code Section 33670 (as that statute may be substituted or amended), the Property and/or Development or any portion thereof, may not be used, transferred, conveyed, assigned, leased or lease-backed for any use that is partially or wholly exempt from the payment of real property. taxes or which would cause the exemption of all or any portion of such real property taxes. 4.16.2 Enfo'rcement of Covenants. The covenants set forth in Section 4.16.1 and Section 4.12 touch and concern the Property, and every part thereof, and constitute covenants running with the Property and every part thereof These covenants may be enforced by the Agency or the City (as an intended third party beneficiary), regardless of whether the Agency or the City currently or continue to own an interest in any property within the Project Area. The Developer irrevocably stipulates and agrees that breach of any of the covenants set forth in Section 4.12 or Section 4.16.1 will result in great and irreparable damage to the Agency and the City, will violate the public policy and the purposes of the CRL, and will result in damages to the Agency and the City which are either impracticable or extremely difficult to quantifY. Accordingly, upon the breach of any covenant set forth in Section 4.16.1 or Section 4.12, the Agency may institute an action for injunctive relief and/or for general and consequential damages attributable to such breach. The covenants set forth in Sections 4.12 and 4.16.1 constitute obligations of the owner of the Property or any portion thereof RVPUB\oUl\S70839 -32- ARTICLE 5. DAMAGES AND REMEDIES. 5.1 Civil Code Section 1542 Waiver. This Agreement provides, in some instances, for limitations on damages and for sole and exclusive remedies in lieu of certain other remedies which would otherwise be available to the parties for the uncured breach of an obligation under this Agreement. The Agency and the Developer acknowledge and agree that such limitations are material consideration for their entry into this Agreement and, in the absence of such limitations, neither the Agency nor the Developer would have entered into this Agreement. As to those breaches of obligations which are subject to the above"described limitations, the Agency and the Developer hereby waive, to the maximum legal extent, any and all other claims, remedies and causes of action for damages, liabilities, losses or injuries, whether known or unknown, foreseeable or unforeseeable. Both the Agency and the Developer are aware of California Civil Code Section 1542, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." The Agency and Developer waive any rights accruing to them under Section 1542 or other statute or judicial decision of similar effect. 5.2 Rights and Remedies; Rights and Remedies Not Exclusive. Unless prohibited by law or otherwise provided by a specific term of this Agreement, the rights and remedies of the Agency and the Developer under this Agreement are nonexclusive, and all remedies hereunder may be exercised individually or cumulatively. In addition to those remedies expressly granted herein, the Parties shall also have the right to seek all other available legal and equitable remedies, including, without implied limitation, general and consequential damages, unless otherwise expressly provided . to the contrary herein. 5.3 Notice and Opportunity to Cure. If either Party to this Agreement believes that the other Party has failed to perform any obligation of that Party in accordance with the terms of this RVPUB\DUM10839 -33- Agreement ("Default"), the Party alleging the Default shall provide written notice ("Default Notice") to the other Party, setting forth the nature of the alleged Default. Unless otherwise provided by a specific term of this Agreement, the Party claimed to be in Default shall have: (i) with respect to a Default involving the payment of money, ten (10) days after its receipt of the Default Notice to completely cure such Default, and (ii) with respect io any other type of Default, thirty (30) days from the receipt of the Default Notice to completely cure such Default or, if such Default cannot reasonably be cured within such thirty (30) day period, to commence the cure of such Default within the thirty (30) day period and diligently prosecute the cure to completion thereafter. If the Party alleged to be in Default fails to cure, or to commence to cure (if applicable), as provided in the preceding paragraph, the Party alleging the Default may exercise such rights and remedies as provided for in this Agreement. 5.4 Remedies for Breach Prior to Close of Escrow. 5.4.1 Developer's Breach. If the Developer breaches any obligation hereunder which is to be performed prior to the Close of Escrow, and fails to cure such breach as provided in Section 5.3, the following are the Agency's sole and exclusive remedies: 5.4.1.1 The Agency may terminate this Agreement and the Escrow without cost, expense or liability; and 5.4.1.2 The Agency may retain the Developer Deposit as liquidated damages in accordance with Section 3.2.2. 5.4.2 Agency's Breach. If the Agency breaches any obligation hereunder which is to be performed prior to the Close of Escrow, and fails to cure such breach as provided in Section' 5.3, the,following are the Developer's sole and exclusive remedies: 5.4.2.1 The Developer may terminate this Agreement and the Escrow without cost, expense or liability; or RVPUB\DLH\S70839 -34- 5.4.2.2 The Developer may institute an action for specific performance of the terms of this Agreement as to the conveyance of the title to the Property. 5.5 Remedies for Breach Subsequent to Close of Escrow, Prior to Certificate of Completion; Power of Termination. 5.5.1. Developer's Breach. If the Developer breaches any obligation hereunder which is to be performed subsequent to the Close of Escrow, but prior to the issuance of the Certificate of Completion, and fails to cure such breach as provided in Section 5.3, the following are the Agency's sole and exclusive remedies: 5.5.1.1 The Agency may terminate this Agreement without cost, expense or liability; or 5.5.1.2 The Agency may exercise the power of termination for certain events as described in Section 5.5.1.4; or 5.5.1.3 The Agency may, to the extent legally appropriate, seek specific performance or injunctive relief 5.5.1.4 Power of Termination. This Section 5.5.1.4 reserves to the Agency a power of termination in the Property, as such powers as described in California Civil Code section 885.010. et~. Notwithstanding anything else in this Agreement to the contrary (inclusive of Section 5.2), the Agency shall, upon thirty (30) days' written notice to the Developer, have the right, at its option and due to any cause set forth in this Section 5.5.1.4, and without compensation' whatsoever to the Developer, to terminate the estate in the Property granted to the Developer hereunder and take possession of all or any portion of the Property and all improvements thereon, and to revest in the Agency the Property conveyed to the Developer hereunder and to vest title to all R VPUB\oU{\S70839 -35- improvements constructed thereon, if after conveyance of the Property to the Developer, the Developer (or its successors in interest) shall: (i) Subject to force majeure delays as allowed by Section 6.4, not to exceed in any event twelve (12) months in the aggregate, fail to be entitled to a Certificate of Completion for the Development by June 30,2001; or (ii) Abandon or substantially suspend, or allow the abandonment or substantial suspension, of construction of all or any portion of the Development for thirty (30) days after written notice of such abandonment or suspension from ,the Agency; or (iii) Assign or attempt to assign this Agreement, or any rights or obligations herein, or transfer, or suffer any involuntary transfer, of the Property, the Development, this Agreement or any part thereof, in violation of this Agreement, and such violation shall not have been cured within thirty (30) days after of written notice thereof from the Agency; or (iv) Fail to cure within thirty (30) days after occurrence any default with respect to any financing secured by a deed of trust, mortgage or other security interest in the Property, the Development, or any portion thereof The thirty (30) day written notice specified in this Section 5.5.1.4 shall specify that the Agency proposes to take action pursuant to this Section 5.5.1.4 and shall specify which of the Developer's obligations set forth in subsections 5.5.1.4 (i) through 5.5.1.4 (iv) have been breached. The Agency may proceed with the remedy set forth herein only if the Developer does not cure such default within thirty (30) days following such notice. The Agency's power of termination shall automatically expire upon the earlier of the issuance of the Certificate of Completion or the accrual of the Developer's right to receive the Certificate of Completion. R VPlID\OLH\S10839 -36- The right of the Agency to reenter, repossess, terminate, vest and revest shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit any mortgage, deed of trust or other security interest required for any reasonable method of financing the construction ofimprovements on the Property and any other expenditures necessary to appropriately develop the Property under this Agreement (provided that the Agency has consented to such financing pursuant to Section 4.14) or any rights or interests provided in this Agreement for the protection of the holders of any such mortgage, deed of trust or other security interest. Any grant deed to the Property or any portion thereof conveyed or leased by the Developer to another party shall contain appropriate references and provisions to give effect to the Agency's rights as set forth in this Section 5.5.1.4. Upon the Agency's exercise of its rights and powers as provided in this Section 5.5.1.4, the Developer or its successors shall convey by grant deed to the Agency title to the Property and all improvements thereon in accordance with Civil Code Section 1109, as hereafter amended or substituted. Such conveyance shall be duly acknowledged by the Developer in a manner suitable for recordation. The Agency may enforce its rights pursuant to this Section 5.5.1.4 by means of an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction. Upon the revesting in the Agency of title to the Property by grant deed or court decree, the Agency shall use its reasonable good faith efforts to resell the Property at fair market value as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the Community Redevelopment Law and of the Redevelopment Plan, to a qualified and responsible party or parties (as reasonably determined by the Agency) who will assume the Developer's obligation to begin and/or complete the Development, or such other replacement project acceptable to the Agency in its sole and absolute discretion, in accordance with this Agreement and the Redevelopment Plan. Upon such resale of the Property (or any portion thereof), the proceeds thereof shall be applied as follows: (i) First, to'pay any and all amounts required to release/reconvey any mortgage, ' deed of trust, or other encumbrance required for any reasonable method of financing the acquisition of the Property or the construction of the Development, provided that such financing was approved by the Agency pursuant to Section 4.14; and R VPUBI.DUi\S10839 -37- (ii) . Second, to reimburse the Agency on its own behalf or on behalf of the City for all actual internal and third party costs' and expenses previously or currently incurred by the Agency and the City related to the Property or the Development, including, but not limited to, customary and reasonable fees or salaries to third party personnel engaged in such actions, in connection with the recapture, management and resale of the Property or any part thereof; all taxes, assessments and utility charges paid by the City and/or the Agency with respect to the Property or portion thereof; any payment made or necessary to be made to discharge-or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred by the Developer or the. Agency or the City with respect to the making or completion of the Development or any part thereof upon the Property; and amounts otherwise owing to the Agency by the Developer or its successors in interest to the Property or any part thereof pursuant to the terms hereof; and (iii) Third, to the extent that any and all funds which are proceeds from such resale and thereafter available, taking into account any prior encumbrances with a . claim thereto, to reimburse the Developer, or its successors in interest to the Property or any part thereof, equal to the sum of: (1) the Property Purchase Price; and (2) the third party costs actually incurred and paid by the Developer for the development of the Property, including, but not limited to, costs of . carry, taxes, and other items as set forth in the Developer's cost statement, which shall be subject to the Agency's reasonable approval; provided, however, that the Developer shall not be entitled to reimbursement for any expenses to the extent that such expenses relate to any loans or other encumbrances which are paid by the Agency pursuant to the provisions of subsections (i) or (ii) above, or which related to liens or other encumbrances' which are paid by the Agency pursuant to subsection (i) or (ii) above. Any portion ofthe resale proceeds remaining after the foregoing applications shall be retained by the Agency as its sole and its exclusive property. R VPUB\DUI\S70839 -38- IMMEDIATELY FOLLOWING THE THIRTY (30) DAY PERIOD SPECIFIED ABOVE, THE AGENCY, ITS EMPLOYEES AND AGENTS SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF ALL OR ANY PORTION OFIHE PROPERTY AND ITS IMPROVEMENTS WITHOUT PRIOR NOTICE OR COMPENSATION TO THE DEVELOPER. BY ITS INITIALS BELOW, THE DEVELOPER HEREBY EXPRESSLY W AlVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL RIGHTS WHICH IT MAY HAVE UNDER CIVIL CODE SECTION 791 AND CODE OF CIVIL PROCEDURE SECTION 1162, AS THOSE STATUTES ARE AMENDED OR SUBSTITUTED, OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. DEVELOPE~SINITIALS THE DEVELOPER ACKNOWLEDGES AND AGREES THAT THE AGENCY'S EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO THIS SECTION 5.5.14 SHALL WORK AFORFEITURE OF THE EST ATE IN THE PROPERTY CONVEYED TO THE DEVELOPER HEREUNDER. THE DEVELOPER HEREBY EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL EQUITABLE AND LEGAL DEFENSES THAT IT MA YHA VE TO SUCH FORFEITURE, INCLUDING, BUT NOT LIMITED TO, THE DEFENSES OF LACHES, W AlVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. THE DEVELOPER FURTHER EXPRESSL YW AlVES TO THE MAXIMUM LEGAL EXTENT ALL RIGHTS AND DEFENSES THAT IT MAYHA VE UNDER CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT. THE DEVELOPER ACKNOWLEDGES THAT THE PURCHASE PRICE HAS BEEN ADJUSTED TO REFLECT THE POSSffiILITY OF FORFEITURE HEREUNDER AND FURTHER ACKNOWLEDGES THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE ' CONSIDERATION FOR ITS W AlVER AND RELINQUISHMENT OF RIGHTS AND. REMEDIES. DEVELOPER'S INITIALS RVPUD\DUf\S70839 -39- 5.5.2 Agency's Breach. If the Agency breaches any obligation hereunder which , is to be performed subsequent to the G:lose of Escrow, but prior to the issuance of the Certificate of Completion, and fails to cure such breach as provided in Section 5.3, the following are the Developer's sole and exclusive remedies: 5.5.2.1 5,5.2.2 The Developer may, to the extent legally available, seek general damages, specific performance or injunctive relief; or The Developer may terminate this Agreement without cost, expense, or liability. 5.6 Remedies for Breach Subsequent to Certificate of Completion. 5.6.1 Developer's Breach. If the Developer breaches any obligation hereunder which is to be performed subsequent to the issuance of a Certificate of Completion, and fails to cure such breach as provided in Section 5.3, and subject to any applicable limitation set forth in Section 6.4, 'the following are the Agency's sole and exclusive remedies: 5.6.1.1 5.6.1.2 The Agency may terminate this Agreement without cost, expense or liability; or The Agency may, to the extent legally available, seek general damages, specific performance or injunctive relief. 5.6.2 Agency's Breach. If the Agency breaches any obligation hereunder which is to be performed subsequent to the issuance of a Certificate of Completion, and fails to cure such' breach as provided in Section 5.3, the following are the D'eveloper's sole and exclusive remedies: 5.6.2.1 RVPUB\J)UI\570839 The Developer may terminate this Agreement without cost, expense or liability; or -40- 5.6.2.2 The Developer may, to the extent legally available, seek general damages, specific performance or injunctive relief ARTICLE 6. GENERAL TERMS. 6.1 Notices and Demands. All notices or other communications required or permitted between the Agency and the Developer under this Agreement shall be in writing, and may be (i) personally delivered, (ii) sent by United States registered or certified mail, postage prepaid, return receipt requested, (iii) sent by telecopier, or (iv) sent by nationally recognized overnight courier service (e.g., Federal Express), addressed to parties at the addresses provided in Article 1, subject to the right of either Party to designate a different address for itself by notice similarly given. Any notice so given by registered or certified United States mail shall be deemed to have been given on the second business day after the same is deposited in the United States mail. Any notice not so given by registered or certified mail, such as notices delivered by telecopier or courier service (e.g., Federal Express), shall be deemed given upon receipt of the same by the Party to whom the notice is given. 6.2 Nonliabi)ity of Agency or City Officials and Employees. No board member, official, contractor, consultant, attorney or employee of the Agency or City shall be personally liable to the Developer, any voluntary or involuntary successors or assignees, or any lender or other party holding an interest in the Property, in the event of any default or breach by the Agency, or for any amount which may become due to the Developer or to its successors or assignees, or on any obligations arising under this Agreement. 6.3 Conflict ofInterests. No board member, official, contractor, consultant, attorney or employee of the Agency or City shall have any personal interest, direct or indirect, in this Agreement . nor shall any such board member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she is directly or indirectly interested. R VPUBlJ)Uf\510li'39 -41- 6.4 Time Deadlines Critical; Extensions and Delays; No Excuse Due to Economic Changes. Time is of the essence in the performance of the Agency's and Developer's obligations under this Agreement. In addition io specific provisions of this Agreement, providing for extensions of time, times for performance hereunder shall be extended where delays or defaults are due to war; insurrection; any form oflabor dispute; lockouts; riots; floods; earthquakes; fires; acts of God or of third parties; third party litigation; acts of a public enemy; referenda; acts of governmental authorities (except that the failure of the Agency to act as required hereunder shall not excuse its performance); moratoria; epidemics; quarantine restrictions; and freight embargoes (collectively, "Enforced Delays") provided, however, that the Party claiming the extension notifY the other Party of the nature of the matter causing the default; and, provided further, that the extension of time shall be only for the period of the Enforced Delays. However, deadlines for performance may not be extended as provided above due to any inability of the Developer to obtain or maintain acceptable financing for the construction and/or operation of the Development. ANYTHING IN TillS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE DEVELOPER EXPRESSLY ASSUMES THE RISK OF UNFORSEEABLE CHANGES IN ECONOMIC CIRCUMSTANCES AND/OR MARKET DEMAND/CONDITIONS AND WAIVES, TO THE GREATEST LEGAL EXTENT, ANY DEFENSE, CLAIM, OR CAUSE OF ACTION BASED IN WHOLE OR IN PART ON ECONOMIC NECESSITY, IMPRACTICABILITY, CHANGED ECONOMIC CIRCUMSTANCES, FRUSTRATION OF PURPOSE, OR SIMILAR THEORIES. 6.5 Attorneys' Fees. In the event of the bringing of an arbitration, action or suit by a Party hereto against another Party hereunder by reason of any breach of any of the covenants or agreements or any intentional inaccuracies in any of the representations and warranties on the part ' of the other Party arising out of this Agreement or any other dispute between the Parties concerning this Agreement or the Property, then, in that event, the prevailing Party in such action or dispute, , whether by final judgment or arbitration award, shall be entitled to have and recover of and from the other Party all costs and expenses of suit or claim, including actual attorneys' fees. Any judgment, order or award entered in any final judgment or award shall contain a specific provision providing for the recovery of all costs and expenses of suit or claim, including actual attorneys' fees (collectively, RVPUD\I)Uf\S70839 -42- the "Costs") incurred in enforcing. perfecting and executing such judgment or award. For the purposes of this Section 6.5, Costs shall include, without implied limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (i) post judgment motions and appeals, (ii) contempt proceedings, (Hi) garnishment, levy and debtor and third party examination; (iv) discovery; and (v) bankruptcy litigation. This Section 6.5 shall survive any termination of this Agreement. 6.6 Submission of Documents and Other Actions for Approval. Except where such approval is expressly reserved to the sole discretion of the approving Party, all approvals required hereunder by either Party shall not be unreasonably withheld or delayed. Any requests for approval of documents submitted to the Agency shall contain the following all capitalized heading in no less than 12 point bold type on the first page of the request: ATTENTION EXECUTIVE DIRECTOR: THIS IS A REQUEST FOR AGENCY APPROVAL OF THE ATTACHED DOCUMENT. PLEASE REVIEW THE MATERIAL AND APPROVE OR DISAPPROVE IT IN WRITING WITHIN THE TIME ESTABLISHED THEREFOR IN THE AGREEMENT OR SCHEDULE OF PERFORMANCE. FAILURE TO DISAPPROVE WITHIN THE ALLOTTED TIME MAYBE DEEMED AN APPROVAL. 6.7 Amendments to This Agreement. The Developer and the Agency agree to consider reasonable requests for amendments to this Agreement which may be made by any of the Parties hereto, lending institutions, bond counselor financial consultants. Any amendments to this Agreement must be in writing and signed by the appropriate authorities of both the Agency and the Developer. The Agency's Executive Director is authorized on behalf of the Agency to approve and execute minor amendments to this Agreement, including, but not limited to, the granting of extensions' of time 10 the Developer. 6.8 Jurisdiction and Venue. Any legal action or proceeding concerning this Agreement shall be filed and prosecuted in the appropriate California state court in the County of Los Angeles, FtVPUD\DLH\S70B39 -43- California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The Agency and the Developer each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including, without implied limitation, federal district court, due to any diversity of citizenship between the Agency and the Developer, due to the fact that either the City or the Agency is a party to such action or proceeding or due to the fact that a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Developer and the Agency specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394. The Developer acknowledges that the provisions of this Section 6.8 are material consideration to the Agency for its entry into this Agreement, in that the Agency will avoid the potential cost, expense and inconvenience of litigating in a distant forum. 6.9 Interpretation. The Agency and the Developer acknowledge that this Agreement is the product of mutual arms-length negotiation and drafting and that each Party has been represented by legal counsel in the negotiation and drafting ofthis Agreement Accordingly, the rule of construction which provides the ambiguities in a document shall be construed against the drafter of that document shall have no application to the interpretation and enforcement of this Agreement. In any action or proceeding to interpret or enforce this Agreement, the finder offact may refer to any extrinsic evidence not in direct conflict with any specific provision of this Agreement to determine and give effect to the intention of the Parties. 6.10 Counterpart Originals; In~egration. This Agreement may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument. This Agreement, and its Exhibits, represerit the entire understanding of the parties and supersedes all negotiations, letters of intent, memoranda of understanding or previous agreements between the parties with respect to all or any part of the subject matter hereof 6.11 No Waiver. Failure to insist on anyone occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at anyone time RVPUB\lJLH\570839 -44- or more times be deemed a waiver or relinquishment of such other right or power at any other time or times. 6.12 Successors and Assigns. The terms, covenants and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and assigns. Except as provided in Section 4.14 upon the permitted sale, transfer or conveyance by an owner of the Property of its interest therein, such owner shall thereupon be relieved of its obligations under this Agreement from and after the date of sale, transfer or conveyance except with respect to any defaults in the performance of its obligations hereunder or thereunder which occurred prior to such sale, transfer or conveyance, and the transferee shall thereafter be solely responsible for the performance of all of the duties and obligations of Developer under this Agreement. 6.13 No Third Party Beneficiaries. The performance of the Agency's and the Developer's respective obligations under this Agreement are not intended to benefit any party other than the Agency or the Developer, except as expressly provided otherwise herein. No person or entity not a signatory to this Agreement shall have any rights or causes of action against any Party to this Agreement as a result of that Party's performance or non-performance under this Agreement, except as expressly provided otherwise herein. 6.14 No Effect on Eminent Domain Authority. Nothing in this Agreement shall.be deemed to limit, modify, or abridge or affect in any manner whatsoever the Agency's and the City's eminent domain powers with respect to the Property, the Development, or any other property owned by the Developer. 6.15 Survival of Representations and Warranties. The representations and warranties of the Parties set forth in this Agreement shall survive the recordation of the Grant Deed and the Close of Escrow and shall not be deemed merged into the Grant Deed upon its recordation. 6.16 Real Estate Commissions. The Agency and Developer each represent that it has not engaged any broker, agent or finder in connection with this Agreement. Neither Party shall be R VPUB\OLH\510839 -45- responsible, either directly or indirectly, for any broker's, agent's or finder's fees. Each Party shall indemnify, defend and hold the other Party and their officials, officers, employees and agents harmless for any actual or alleged claims, suits, damages or losses arising from the indemnifying Party's breach of the foregoing provision. RVPUBIDLH\570839 [Signatures on following pages] -46- SIGNATURE PAGE TO THE HALFJW AKEN OFFICE PROJECT - DISPOSITION AND DEVELOPMENT AGREEMENT AGENCY: THE ARCADIA REDEVELOPMENT AGENCY a California public agency By: William Kelly Executive Director ATTEST: Agency Secretary APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP B' " R VPUB\DUI\S70839 -47- RVPUB\!)llI\S70839 SIGNATURE PAGE TO THE HALE/W AKEN'OFFICE PROJECT - DISPOSITION AND DEVELOPMENT AGREEMENT DEVELOPER: WAKEN DEVELOPMENT, LLC a California limited liability company By: Matt Waken Its: Manager -48- STATE OF CAUFORNIA ) ) ) COUNTY OF On , 2000, before me, the undersigned notary public, personally appeared o personally known to me OR 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ..... is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUR\DlJf\S70839 -49- .........................-................................................. . . . . . . ! CAPACITY CLAIMED BY SIGNER: : , 0 IndivKlual(s) : o Corporate. Oflicer(s) o Pllrmer(s) o Attorney-in-Fact o Trustee(s) o Subscribing Witness o Guardian/Conservator OOlite, SIGNER IS REPRESENTING: NAME OF PERSON(S) OR EN1lTY(IES) STATE OF CALIFORNIA ) ) ) COUNTY OF On , 2000, before me, the undersigned notary public, personally appeared o personally known to me OR 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ..._. is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUB\DUI\570839 -50.. , ' ...............................................................n......... CAPACITY CLAIMED BY SIGNER: o Individual(s) o Corporate Officer(s) o Partner(s) o Auomey-in-Fact o Trustee(s) o Subscribing Witness o Guardian/Conservator o Other SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENllTY(lES) ........................................................................... . . . . . . i CAPACITY CLAIMED BY SIGNER: i ! Dlndividual(s) ! i 0 Corporote j ! Officer(s) ! I::: ~ ~::7.~m-FaCl : On ,2000, before me, the undersigned notary 0 Subscribing Wimcss bl' 11 d 0 Guardian/Conservator pu IC,' persona y appeare , .:.:.,',.'....DSIGOtheNER' IS REPRESENTING: o personally known to me OR 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are NAME OF PERSON(S) OR ENTITY(IES) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s); or the entity upon behalf of which the person( s) acted, executed the instrument. STATE OF CALIFORNIA COUNTY OF ) ) ) WITNESS m~ hand and official seal. Signature of Notary Public RVPUBIJJUJ\S70139 -51- EXHIBITS A-I AND A-2 TO THE HALE/W AKEN OFFICE PROJECT - DISPOSITION AND DEVELOPMENT AGREEMENT Legal Descriptions and Site Map of Property APN 5773-006-905 THE NORTH 10 FEET OF THE EAST 100 FEET OF LOT 13; THE EAST 100 FEET OF LOT 14 AND THE SOUTH 48 FEET OF THE EAST 100 FEET OF LOT 15, IN BLOCK 78, OF ARCADIA, 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 APN 5773-006-909 LOTS 15 AND 16 IN BLOCK 78 OF "APART OF 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 SOUTHERLY 48.00 FEET OF THE EASTERLY 100.00 FEET OF SAID LOT 15. ALSO EXCEPT THEREFROM THOSE PORTIONS OF SAID LOTS 15 AND 16 DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 16; THENCE SOUTHERLY ALONG THE EASTERL YLlNES OF SAID LOTS 15 AND 16 TO THE NORTHERLY LINE OF THE SOUTHERLY 48 FEET OF SAID LOT 15; THENCE WESTERLY ALONG SAID NORTHERLY LINE TO A LINE THAT IS PARALLEL WITH AND DISTANT 10.00 FEET WESTERLY FROM THE EASTERLY LINES OF SAID LOTS 15 AND 16; THENCE NORTHERLY ALONG SAID PARALLEL LINE TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 15.00FEET AND IT'S WESTERLY TERMINUS BEING TANGENT TO THE NOR THERL Y LINE OF SAID LOT 16; THENCE NORTHWESTERLY ALONG SAID CURVE TO THE POINT OF T ANGENCYWITH THE NORTHERL YLINEOF SAID LOT 16; THENCEEASTERL Y ALONG THE NORTHERL Y LINE OF SAID LOT 16 TO THE POINT OF BEGINNING. R VPUB\DLH\S70839 ExhibifA-l EXHIBIT B TO THE HALEIW AKEN OFFICE PROJECT - DISPOSITION AND DEVELOPMENT AGREEMENT Scope of Development The Developer shall at his sole cost design and develop a quality, architecturally attractive 19,500 sq. ft. professional office building, including all required parking, landscaping, lighting, trash areas, to code in accordance with the schedule of performance and consistent with the plans prepared by The Hale Corporation dated March 30,2000 (file date for GP Amendmenb); April 25, 2000 (4 pages; receipt dated); and the concept landscaping plan forwarded April 27 , 2000. To the extent reasonable, the Developer shall make a good faith effort'to incorporate the existing trees on site into the office development. All trees/shrubs near the building and drive entrances shall be at least 36 inch box specImens. RVPUB\DUM70139 Exhibit B EXHIBIT C TO HALErW AKEN OFFICE PROJECT - DISPOSITION AND DEVELOPMENT AGREEMENT Schedule of Performance Hale/City/Agency Development Schedule Pre-Disposition and Development Agreement (DDA) Developer City/Agency Due Date/Status Developer files for General Plan Completed Amendment (GPA), CEQA, Pay Fees Closed Session Councill Agency Set Completed Just Compensation/Agreement terms Forward Draft DDA to Developer Completed Developer submits Design, Completed Review package to Agency - 12 sets of Site Plan, Elevations, and ColorlMaterial Board; 6 sets to Planning for Architectural Design Review (ADR); pays fee Agency sends Notice ofDDAI Completed CEQA Hearing to Arcadia Weekly Agency publishes DDA Summary Completed Report; Planning staff comments on ADR to Developer Planning Commission Hearing on Completed GPA and CEQA Pos"t DDA-Schedule CC/ARA Public Hearing on DDAI Completed CEQA + Purchase Agreement; City Council Hearings on GPAlCEQA; ADR RvPUBIDUI\570839 Exhibit C-l RvrUD\OUflS10839 Exhibit C-2 RVPUD\DUl\570839 EXHillIT D TO THE HALEIW AKEN OFFICE PROJECT - DISPOSITION AND DEVELOPMENT AGREEMENT Grant Deed [attached behind this page] Exhibit D RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: [GRANTEE'S INFO] MAIL TAX STATEMENTS TO: GRANT DEED CONTAINING COVENANTS AND RESTRICTIONS AFFECTING CERTAIN PROPERTY CONVEYED For valuable consideration, receipt of which is hereby acknowledged, THE ARCADIA REDEVELOPMENT AGENCY, a California public agency, herein called "Grantor," acting to carry out the Redevelopment Plan for the Redevelopment Agency of the City of Arcadia's ("Agency") Central Project Area Redevelopment Project Area ("Project Area") (which plan is hereinafter referred to as the "Redevelopment Plan") under the Community Redevelopment Law of California, hereby grants to: Waken Development, LLC, a California limited liability company as "Grantee," the real property (hereinafter referred to as the "Property"), described on the attached Exhibit A. 1. The Property is conveyed subject to the Redevelopment Plan and pursuant to a Disposition and Development Agreement (the "Agreement") entered into by and between Grantor, and the Grantee dated June 6, 2000, which Agreement is incorporated herein by reference. The Agreement is a public record and a copy of the Agreement is available for public inspection and copying at the office of the Grantor, 240 West Huntington Drive, Arcadia, California 91006-6021. The Property is conveyed further subject to all easements, rights-of-way, covenants, conditions, restrictions, reservations and all other matters ofrecord. All initial capitalized terms used, but not otherwise defined herein, shall have the meanings ascribed to such terms in the Agreement. 2. The Grantee covenants and agrees for itself, its assigns and all voluntary and , involuntary successors in interest to the Property or any part thereof, that, during all times that the Grantor is permitted to receive property tax increments from the Project Area pursuant to California Health and Safety Code Section 33670 (as that statute may be substituted or amended), the Property or any portion thereof may not be used, transferred, conveyed, assigned, leased or lease-backed for any use that is partially or wholly exempt from the payment of real property taxes or which would cause the exemption of all or any portion of such real property taxes. RVPUBI..DUM70839 Exhibit D-l The covenants set forth in' Section 2 and Section 5 touch and concern the Property, and every part thereof, and constitute covenants running with the Property and every part thereof These covenants may be enforced by the Grantor or the City (as an intended third party beneficiary), regardless of whether the Grantor or the City currently or continue to own an interest in any property within the Project Area, The Grantee irrevocably stipulates and agrees that breach of any of the covenants set forth in Section 2 or Section 5 will result in great and irreparable damage to the Grantor and the City, will violate the public policy and the purposes ofthe CRL, and will result in damages to the Grantor and the City which are either impracticable or extremely difficult to quantifY. Accordingly, upon the breach of any covenant set forth in Section 2 or Section 5, the Grantor may institute an action for injunctive relief and/or for damages attributable to such breach. The covenants set forth in Section 2 and Section 5 constitute obligations of the owner of the Property or any portion thereof 3. Except as provided in the Agreement, the Grantee shall not, except as permitted by the Agreement, sell, transfer, convey, assign or lease the whole or any part of the Property or Development without the prior written approval of the Grantor. 4. This Section 4 reserves to the Grantor a power of termination in the Property, as such powers as described in California Civil Code section 885.010, et sea. The Grantor, upon thirty (30) days' written notice to the Grantee, have the right, at its option and due to any cause set forth in this Section 4, and without compensation whatsoever to the Grantee, to terminate the estate in the Property granted to the Grantee hereunder and take possession of all or any portion of the Property and all improvements thereon, and to revest in the Grantor the estate conveyed to the Grantee here- under and to vest title to all improvements constructed thereon, if after conveyance of the Property to Grantee, the Grantee (or its successors in interest) shall: (i) Subject to force majeure delays as allowed by Section 6.4 of the Agreement, not to exceed in any event twelve (12) months in the aggregate, fail to obtain a Certificate of Completion for the Development by June 30, 200 I; or (ii) Abandon or substantially suspend, or allow the abandonment or substantial suspension, of construction of all or any portion of the Development for thirty (30) days after written notice of such abandonment or suspension from the Grantor; or (iii) Assign or attempt to assign the Agreement, or any rights or obligations herein, or transfer, or suffer any involuntary transfer, of the Property or any part thereof, in violation of the Agreement, and such violation sha}1 not have been cured within thirty (30) days after of written notice thereof from the Grantor; or RVPUBIDUI\S70839 Exhibit D-2 (iv) Fail to cure within thirty (30) days after occurrence any default with respect to any financing secured by a deed of trust, mortgage or other security interest in the Property or any portion thereof The thirty (30) day written notice specified in this Section 4 shall specify that the Grantor proposes to take action pursuant to this Section 4 and shall specify which of the Grantee's obligations set forth in subsections (i) through (iv) have been breached. The Grantor may proceed with the remedy set forth herein only if the Grantee does not cure such default within thirty (30) days following such notice. The Agency's power of termination shall automatically expire upon the earlier of the issuance of the Certificate of Completion or the accrual of the Developer's right to receive the Certificate of Completion. 4.1 The right of the Grantor to reenter, repossess, terminate, vest and revest shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit any mortgage, deed of trust or other security interest required for any reasonable method of financing the construction of improvements on the Property and any other expenditures necessary to appropriately develop the Property under the Agreement (provided that the Grantor has consented to such financing pursuant to Section 4.14 of the Agreement) or any rights or interests provided in the Agreement for the protection of the holders of any such mortgage, deed of trust or other security interest. Any grant deed to the Property or any portion thereof conveyed or leased by the Grantee to another party shall contain appropriate references and provisions to give effect to the Grantor's rights as set forth in this Section 4. 4.2 Upon the Grantor's exercise of its rights and powers as provided in this Section 4, the Grantee or its successors shall convey by grant deed to the Grantor title to the Property and all improvements thereon in accordance with Civil Code Section 1109, as hereafter amended or substituted. Such conveyance shall be duly acknowledged by the Grantee in a manner suitable for recordation. The Grantor may enforce its rights pursuant to this Section 4 by means of an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction. Upon the revesting in the Grantor of title to the Property by grant deed or court decree, the Grantor shall use its reasonable good faith efforts to resell the Property at fair market value as soon and in such manner as the Grantor shall find feasible and consistent with the objectives of the Community Redevelopment Law and of the Redevelopment Plan, to a qualified and responsible- party or parties (as reasonably determined by the Grantor) who will assume the Grantee's obligation to begin and/or complete the Development, or such other replacement project acceptable to the Grantor in its sole and absolute discretion, in accordance with this Agreement and the Redevelopment Plan. Upon such resale of the Property (or any portion thereot), the proceeds thereof shall be applied as follows: RVPUB\DUi\570839 Exhibit D-3 (i) First, to pay any and all amounts required to release/reconvey any mortgage, deed of trust, or other encumbrance required for any reasonable method of financing the acquisition of the Property' or the construction of the Developl11ent, provided that such financing was approved by the Grantor pursuant to Section 4.14 of the Agreement; and (ii) Second, to reimburse the Grantor on its own behalf or on behalf of the City for all actual internal and third party costs and expenses previously or currently incurred by the Grantor and the City related to the Property or the Development, including, but not limited to, customary and reasonable fees or salaries to third party personnel engaged in such actions, in connection with the recapture, management and resale of the Property or any part thereof; all taxes, assessments and utility charges paid by the City and/or the Grantor with respect to the Property or portion thereof; any payment made or necessary to be made to discharge or prevent from attaching or being made .any subsequent encumbrances or liens due to obligations incurred by the Grantee or the Grantor or the City with respect to the making or completion of the Development or any part thereof upon the Property; and amounts otherwise owing to the Grantor by the Grantee or its successors in interest to the Property or any part thereof pursuant to the terms hereof; and (iii) Third, to the extent that any and all funds which are proceeds from such resale and thereafter available, taking into account any prior encumbrances with a claim thereto, to reimburse the Grantee, or its successors in interest to the Property or any part thereof, equal to the sum of: (1) a portion of the Property Purchase Price which was paid to the Grantor; and (2) the third party costs actually incurred and paid by the Grantee for the development of the Property, including, but not limited to, costs of carry, taxes, and other items as set forth in the Grantee's cost statement, which shall be subject to the Grantor's reasonable approval; provided, however, that the Grantee shall not be entitled to reimbursement for any expenses to the extent that such expenses relate to any loans or other encumbrances which are paid by the Grantor pursuant to the provisions of subsections (i) or (ii) above, or which related to liens or other encumbrances which are paid by the Grantor pursuant to subsection (i) or (ii) above. Any portion of the resale proceeds remaining after the foregoing applications shall be retained by the Grantor as its sole and its exclusive property. 4.3 IMMEDIATELY FOLLOWING THE THIRTY (30) DAY PERIOD SPECIFIED ABOVE, THE GRANTOR, ITS EMPLOYEES AND AGENTS SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF ALL OR ANY PORTION OF THE PROPERTY AND ITS IMPROVEMENTS WITHOUT PRIOR NOTICE OR COMPENSATION TO THE GRANTEE. BY ITS INITIALS BELOW, THE GRANTEE HEREBY EXPRESSLY W AlVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL RIGHTS WHICH IT MAY RVPUB\I)Lll\570839 Exhibit D-4 HAVE UNDER CIVIL CODE SECTION 791 AND CODE OF CIVIL PROCEDURE SECTION 1162, AS THOSE STATUTES ARE AMENDED OR SUBSTITUTED, OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. GRANTEE'S INITIALS THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE GRANTOR'S EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO THIS SECTION 4.3 SHALL WORK A FORFEITURE OF THE ESTATE IN THE PROPERTY CONVEYED TO THE GRANTEE HEREUNDER. THE GRANTEE HEREBY EXPRESSLY WAIVES TO THE MAXIMUM LEGAL EXTENT ANY AND ALL EQUITABLE AND LEGAL DEFENSES THAT IT MAY HAVE TO SUCH FORFEITURE, INCLUDING, BUT NOT LIMITED TO, THE DEFENSES' OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. THE GRANTEE FURTHER EXPRESSL Y WAIVES TO THE MAXIMUM LEGAL EXTENT ALL RIGHTS AND DEFENSES THAT IT MA YHA VE UNDER CIVIL CODE SECTION 3275 OR ANY OTHERST ATUTEORCOMMON LAW PRINCIPLE OF SIMILAR EFFECT. THE GRANTEE ACKNOWLEDGES THAT THE PURCHASE PRICE OF THE PARCELS HAS BEEN ADJUSTED TO REFLECT THE POSSmILITY OF FORFEITURE HEREUNDER AND FURTHER ACKNOWLEDGES THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE CONSIDERATION FOR ITS WAIVER AND RELINQUISHMENT OF RIGHTS AND REMEDIES. GRANTEE'S INITIALS 5. The Grantee covenants by and for itself, its representatives, successors and assigns and all persons claiming under or through it (including, without limitation, all lessees ), that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use. occupancy, tenure or enjoyment of the Property, nor shall the Grantee itself or any persons 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 of occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the land. All deeds, leases, or contracts made relative to the Property, improvements thereon, or any part thereof, shall contain or be subject to substantially the following nondiscrimination., clauses: A. In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators, 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 race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or any person claiming under or through him, establish or permit any such practice or RVPUBIDUf\S70839 Exhibit D-S 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 himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon the subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account ofrace, color, creed, religion, sex, marital status, national origin or ancestry, in tt.'~ leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, 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, sub lessees or vendees of 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 race, color, creed, religion, sex, marital status, national' origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure' or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him 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." 6. No violation or breach of the covenants, conditions, restnctions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument expressly permitted by the Agreement; provided, however, that any successor of Grantee to the Property or parcels thereof shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 7. All covenants contained in this Grant Deed shall run with the land and shall be binding upon the Grantee and for the benefit of the Grantor its successors and assigns and such covenants shall run in favor of the Grantor and for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein 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 provided herein or otherwise available, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed shall be for the benefit of and. shall be enforceable only by the Grantor and its successors and assigns. 8. The covenants contained in this Grand Deed, without regard to technical classification or designation, shall not benefit or be enforceable by any person, firm or corporation, public or private, except Grantor and its successors and assigns and the City of Arcadia. RVPUB\DLH\570839 Exhibit D-6 9. In the event of any express conflict between this Grant Deed and the Agreement, the provisions of this Grant Deed shall control. 10. Grantee, its successors and assigns and all persons claiming under or through it (including, without limitation, all lessees) hereby covenants that the Parcels conveyed in this Grant Deed is to be developed compatible with the Redevelopment Plan and which is approved by the Grantor. Grantee further covenants to commence and complete construction of the Development on or before the date specified in the Agreement. Should Grantee fail to commence and complete construction by such date, the Gra.itor may exercise the rights under the Power of Termination in Section 4 ofthis Deed or exercise such other remedies allowed to the Grantor by the Agreement. IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed this _ day of ,2000. [Signatures on following pages) RVPUB\DUI\5708~9 Exhibit D- 7 SIGNATURE PAGE TO GRANT DEED CONTAINING COVENANTS AND RESTRICTIONS AFFECTING CERTAIN PROPERTY GRANTOR: Dated: THE ARCADIA REDEVELOPMENT AGENCY, a California public agency By: William Kelly Executive Director ATTEST: Agency Secretary APPROVED AS TO LEGAL FORM BEST BEST & KRIEGER LLP Agency Counsel R\rptn3~~570839 Exhibit D-8 Dated: SIGNATURE PAGE TO GRANT DEED CONTAINING COVENANTS AND RESTRlCTIONS AFFECTING CERTAIN PROPERTY GRANTEE: WAKEN DEVELOPMENT, LLC a California limited liability company RVPUB\DLID510lt19 By: Matt Waken Its: Manager Exhibit D-9 STATE OF CALIFORNIA ) ) COUNTY OF ) On , 2000, before me, the undersigned notary public, personally appeared o personally known to me OR 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUB\DLH\570839 Exhibit D- ] 0 CAPACITY CLAIMED BY SIGNER: o lndiyidual(s) o Corporate Officer(s) DPartner(s) o Attomey.in-Fact D TruslCe(s) o Subscribing Wimess o Guardian/Conservator DOmer SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(lES) ........................................................................... . . STATE OF CALIFORNIA) ! CAPACITY CLAIMED BY SIGNER: : ) ! 0 Individual(s) i COUNTY OF ) : 0 Corpon.. ! ! Officer(s) ! ! 0 Panner(s) : 1 0 Attorney-in-Fact l : 0 Trustee(s) : \ On , 2000, before me, the undersigned ! 0 Subscribing WibleSS ! i 0 Guardian/Conservator i notary public, personally appeared ! DOmer ! o personally known to me OR 0 proved to me on the basis, ! SIGNER IS REPRESENTING: ! of satisfactory evidence to be the person(s) whose name(s) l.... NAME OF PERSON(S) OR ENTI1Y(IES) .....: is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUBIDUf\S70839 Exhibit D-11 STATE OF CALIFORNIA ) ) COUNTY OF j On , 2000, before me, the undersigned notary public, personally appeared o personally known to me OR 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged 'to me that he/she/they executed the same in his/herltheir authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public RVPUB\DIIJ\570839 Exhibit D-12 CAPACITY CLAIMED BY SIGNER: o Individual(s) o Corporate Officer(s) D Partner(s) o Attorney-in-Fact D Truslee(s) o Subscribing Witness o Guardian/Conservator DOther SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTlTY(IES) RVPUB\DLH\S70839 EXHIBIT A TO GRANT DEED CONTAINING COVENANTS AND RESTRICTIONS AFFECTING CERTAIN PROPERTY Legal Description of the Property [to come) Exhibit A RVPUB\DUI\S70839 EXHIBIT E TO THE HALEfW AKEN OFFICE PROJECT - DISPOSITION AND DEVELOPMENT AGREEMENT Certificate of Completion [attached behind this page] Exhibit E RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Exempt from Recording Fee per Government Code ~ 27383 (Space above for Recorder's Use) CERTIFICATE OF COMPLETION I, William Kelly, Executive Director of The Arcadia Redevelopment Agency ("Agency"), certify as follows: By its Resolution No. [-.I, adopted and approved r resolved as follows: . I, the i\gency Section I. The improvements ("Development") required to be constructed in accordance with that certain Hale/Waken Office Project - Disposition and Development Agreement ("Agreement") dated as of June 6, 2000, between the Agency and Waken Development, LLC("Developer") on that certain real property consisting of the Property ("Property") described on the attached Exhibit A have been completed in accordance with the provisions of the Agreement. The Agreement was recorded on r ], as Instrument No. r ]. Section 2. Pursuant to Section 4.15 of the Agreement, this Certificate of Completion is a conclusive determination of the satisfactory completion of the Developer's obligations under the Agreement with respect to the completion of the Development, including all buildings and all parking, landscaping and related improvements necessary to support the Development and its use and occupancy upon the Property; provided, however, that the Agency may enforce any covenants and obligations surviving this Certificate of Completion in accordance with the terms and conditions of the Agreement. The Agreement is an official record of the Agency and a copy of the Agreement may be inspected in the office of the Secretary of the Agency, located at 240 W. Huntington Drive, Arcadia, California 91006-6021, during regular business hours. RVPUB\DUf\570839 Exhibit E-I DATED AND ISSUED this _ day of William Kelly Executive Director ATTEST: City Clerk RVPUB\DUflS70839 Exhibit E-2 ' EXHIBIT A TO CERTIFICATE OF COMPLETION Property Legal Description [to he inserted] RVPUB\DUM70839 Exhibit A HALE PROJECT DISPOSITION REPORT The following Disposition Report is prepared pursuant to Health and Safety Code Section 33433 and serves to describe the terms and conditions of a Disposition and Development Agreement (the "DDA") between the Arcadia Redevelopment Agency (the "Agency") and Waken Development, LLC (the "Developer"). 1. GENERAL PROJECT DESCRIPTION Summary: The DDA provides for the development of two City owned properties located at the southwest corner of First Avenue and St. Joseph Street (Location Map, Exhibit A) by the Developer. Parcel 1 - APN 5773-006-905; also 52-58 St. Joseph or 233 North First; Parcel 2 - APN 5773-006-909 also 219-223 North First. Under this development plan the City intends to sell the 2 parcels to the Agency; the Agency will then convey the 2 parcels to the developer. The developer will construct a 19,500 square foot 2-story office building (see Exhibit B) on these 2 parcels and on the 2 privately owned parcels totaling 50,000 +/- square feet to the south and west. Discussion: The two combined City owned parcels total approximately 20,620 square feet (including a 10 foot wide strip to be dedicated for public street and roadway purposes) at the southwest corner of First Avenue and St. Joseph Street. Both parcels are currently owned by the City Transit fund. Both parcels are improved as parking lots, with related landscaping and irrigation systems. The lots are in poor condition. Though currently owned by the City Transit fund, the parcels were initially acquired separately. Parcel 2 (905) was acquired in 1973 by the City using Water funds. Staff has been unable to locate files which would indicate why or how this parcel was acquired by the Water Department. The parcel was leased (along with Parcel 1 - 909) to the former Acapulco Restaurant owner whose restaurant was located across First Street at the southeast corner. The Acapulco Restaurant was severely damaged in the 1987 Whittier earthquake. The building was ultimately demolished in 1989 because the cost of rehabilitation was apparently too expensive. The parking lot lease with the City was then terminated. Parcel 1 was acquired from the estate of the former owner of the Acapulco Restaurant by the Agency in 1991. The Agency in cooperation with the City Council, determined in 1994 that they would designate the entire 51,230 square foot triangular shaped corner for a possible future mass transit station for the "Blue Line" or other mass transit systems. [XH\BIT. "B" As a result, the Agency and City (Water) sold their respective parcels to the City Transit fund in October, 1996 in order to "land bank" the property for a possible future mass transit (Blue Line) station. This policy was followed by the Agency in December 1999 when the Board adopted the "Five Year Implementation Plan and Housing Program (1999-2004). However, due to continuing political, organizational, legal, and budgetary problems with the Blue Line, the City Council has determined that construction of the Blue Line beyond Sierra Madre Villa in Pasadena in the foreseeable future is very doubtful. The parcels have no other use for the City and can be sold. The Agency therefore contemplates that it will amend the 1999 Implementation Plan and that the City will sell its 2 parcels to the Agency and the Agency will, through the proposed DDA, sell the parcels to the developer, Waken Development. The Developer proposes to construct a 19,500 square foot 2-story office building (see Exhibit B) on the entire 51,230 square foot triangular southwest corner of First Avenue and St. Joseph which includes the two City owned parcels as well as the privately owned "saw-toothed" parcel which the developer is buying. (See Exhibit A) The sales price of the parcel in 1996 when the City Water Fund and the Agency sold their respective parcels to the City Transit Fund was $15.51 per square foot (blended average). Parcel 1 - 909 (Agency owned) - $162,000 ($16.50 per s.f./9,820 s.f.) Parcel 2 - 905 (City Water owned) - $141,000 ($14.50/s.f.l9720 s.f.; net of 1080 s.f. easement. If the full 1 0,800 square foot site is considered, that is, including the 10 foot easement strip, the actual sales price per square foot is $13.05.) Total- $303,000 (19,540 s.f.; $15.51/s.f.) The property (Le., parcels 905 and 909 taken together) was appraised in March, 2000. The value as determined by Anchor Pacific Company was $276,491 to $278,640 ($14.15 to $14.26 per square foot), using the19,540 net square footage. The Agency however as part of negotiations with Mr. Waken, is requiring payment of $14.26 per square foot for all of Parcel 905 that is, a 10,800 square foot parcel (versus a 9,720 s.f. parcel), or $154,008. (This is equal to an actual net per square foot value of $15.84) The total of the two parcels is then, based upon the negotiated price with Waken, $294,041. Because the property was acquired by the City's Transit Fund using Proposition C money, the sale of the parcels must comply with the MT A Prop A and C Local Return Guidelines (FY99), specifically Article IV, paragraph H(pg. 27), which says: "General Guidelines for repayment are as follows: Land: Repayment of purchase price or appraised value whichever is greater" Because the 1996 purchase price is higher than the 2000 appraised value, the City Transit Fund must be paid $303,000. For this reason, the Agency is acquiring the property at the 1996 value ($303,000) and reselling it to the developer at the fair market value determined by Anchor Pacific Company, as negotiated ($294,041). The difference in the sales price is $8,559. The reason for the higher appraisal and consequently sales value of the parcels in 1996 was due to two major facts: 1) there were very few comparable sales in Arcadia for the area upon which the 1996 appraiser (Hjelmstrom) could base his opinion. As a result, he had to use numerous sales and make inferior/superior adjustments of comparability, 2) within the last 18 months there are several actual sales in the immediate geographic area of the site, including one immediately across First Avenue, and these sales are markedly comparable, although of lesser value than that estimated in 1996. The appraisal reports and related correspondence is available in the Economic Development Division offices, Development Services Department, City Hall, 240 W. Huntington Drive, Arcadia, CA 91006. (626-574-5408) The development schedule in the DDA anticipates completing construction of the new office building by June 30, 2001. 2. A. COSTS AND REVENUES TO THE AGENCY 1) Agency Expenses to Date: Expenses to Date: Land Acquisition - Purchase from former Acapulco owner estate - 1991 $225,000.00 Site Studies (environmental phase I, financial, appraisals, etc,) $4,250.00 Legal Services $2,222.80 $ 4,733.50 Title Services Miscellaneous (advertising, engineering, etc.) $3,028.14 Total - $239,234.44 2) Revenue to Agency - Sale of Parcel 909 to City Transit Fund - 1996 $162,000.00 B. COSTS TO THE CITY TRANSIT FUND -1996 Initial acquisition - Purchase of City Water Fund Property - 1996 $141,000.00 Maintenance Cost (City Transit Prop A funds used for special Metrolink Rose Bowl Train, 4 years) $4,000.00 $144,000.00 Sub Total Costs to the City Transit fund C. PROJECTED AGENCY EXPENDITURES FOR 2000 Legal SeNices - DDA, CEQA, Purchase & Sale Documents $5,000.00 Miscellaneous (escrow, title , seNices) Sub Total Projected Expenses $2,000.00 $7,000.00 3. FUTURE AGENCY REVENUE The Agency estimates the annual tax increment from the sale of the private parcel to the west, the sale of the Agency properties and the construction of the office building to be approximately $20,000 - $22,000. There will be some minor City revenues for the building permit and for annual business license fees. 4. ADDRESSING BLIGHT The Agency's Five Year Implementation Plan, Fiscal Years 1999/00 through 2004/05 (adopted on December 7,1999 by Resolution No. ARA 183), identifies blighted conditions which will be addressed by the completion of this proposed infill opportunity development. This report is on file and available for review in the Economic Development Division Office. In addition, the Agency proposes to amend its 1999 Five Year Implementation Plan to change the proposed use of this site from mass transit station to office project. Through the DDA negotiation and development process the Agency's goal of eliminating blight on this site will be fulfilled. The triangular shaped property is essentially vacant and does not contribute positively to the area. The addition of this project as proposed combined with other quality developments in the area such as REI, the Hilton and Marriott hotels, and the proposed Morris/Church of the Nazarene office building will have a positive influence on other development in the downtown area. Approximately 60 new permanent jobs will be brought to Arcadia and the project area. These employees will eat at the downtown restaurants and purchase goods at downtown stores, further benefiting the economic growth of the downtown project area. If in time the "Blue Line" or other transit mode using the MT A corridor comes to this location, there is vehicular access and land on the west side of the MT A line for a transit station. 5. PROJECT BENEFITS This project serves the purpose of meeting a number of goals as outlined in the Redevelopment Plan for the Central Redevelopment Project Area. The goals and benefits include: A. An estimated 100 jobs will be created through construction on the site as well as an estimated 60 permanent jobs when the office building opens. Increased employee payrolls will result in additional indirect tax receipts to the City due to discretionary purchases in Arcadia stores, restaurants, and hotels. B. The physical appearance of this portion of the Project Area will be improved through the elimination of a deteriorated parking lot and former rail yard. The area will be made more attractive, and the image and reputation of both the downtown and City improved. C. New development will be encouraged in the area as a result of this project combined with others within the Project Area. City Council of the City of Arcadia NEGATIVE DECLARATION 1. Name, if any, and a brief description of project: The Hale Office Project - Sale of 20,000:!:, sq. ft. of land to The Waken Development, LLC; design and construction of a 19,500:!:, sq. ft. two-story office building and related parking/landscaping on a 57,000 sq. ft. triangular property. / 2. Location: Southwest corner, North First Avenue and East St. Joseph Street 3. Entity or person undertaking project: A. B. ~ Other (Private) Waken Development, LLC, Matt Waken, Managing Member, 150 N. Santa Anita Ave., Suite 645, Arcadia, CA 91006 in cooperation with (1) Name: The Hale Corporation; Richard Hale, President (2) Address: 513 South Myrtle Avenue, Monrovia, California 91016 The City Council of the City of Arcadia and the Arcadia Redevelopment Agency Board of Directors, having reviewed the Initial Study of this proposed project, and relying also on the following environmental studies and documents in support of the project: July 9, 1973, EIR for the Central Redevelopment Project Area; March 1995 Expanded Initial Study and Mitigated Negative Declaration - Downtown 2000 Streets cape and Public Facilities Improvement Project; September 3,1996, Arcadia General Plan Update EIR; February 1998, O'Rourke Engineering Traffic Impact Analysis for the Fairfield Suites and Hilton Garden Inn, Arcadia, CA; March 5, 1991, Barton-Aschman Associates Traffic Impact Analysis for Proposed Mass Transit Station, Arcadia, CA; and the August 1989, Comprehensive Traffic Analysis for the Central Redevelopment Project Area, and having reviewed the written comments received prior to the public meeting of the City Council and Board of Directors, including the recommendation of the Staff, does hereby find and declare that the proposed project will not have a significant effect on the environment. A brief statement of the reasons supporting the City Council's and Board of Directors' findings are as follows: The project is consistent with the Zoning Ordinance and Redevelopment Plan; it is less dense than the site could otherwise permit; parking will be provided entirely on site; all utilities are available to the site; due to the Railroad R.OW., the office project will occur on a difficult to develop irregular shaped lot. The City Council and the Board of Directors hereby find that the Negative Declaration reflects its independent judgment. A copy of the Initial Study, and all other documents relied upon, may be obtained at: City Hall. Development Services Department, Economic Development Division, 240 West Huntington Drive. Arcadia, California 91006 Phone No.: 626-574-5408 Fax: 626-447-3309 The location and custodian of the documents and any other material which constitute the record of proceedings upon which the City and Agency based its decision to adopt this Negative Declaration are as follows: Development Services Department Director, City of Arcadia, City Hall, 240 West Huntington Drive. Arcadia, California 91066 Phone No.: 626-574-5414 Staff: Peter P. Kinnahan, Economic Development Administrator (626-574-5408) Date Received for Filing E". 'IG'T 'II"" ~I." 'I V "'n_.~~_ '.I.' ; . " ENVIRONMENTAL CHECKLIST FORM 1. Project Title: Disposition and Development Agreement dated June 6, 2000 2. Lead Agency Name and Address: City of Arcadia/Arcadia Redevelopment Agency Development Services Department (Economic Development Division) 240 W. Huntington Drive P.O. Box 60021 Arcadia, CA 91066-6021 2. Contact Person and Phone Number: Peter P. Kinnahan (626) 574-5408 Brian Saeki (626) 574-5409 Kenneth Phung (626) 574-5447 4. Project Location: 223 N. First Avenue (SW comer ofN. First Ave. and E. St. Joseph St.) 5. Project Sponsor's Name and Address: The Hale Corporation 513 S. Myrtle Avenue Monrovia, CA 91016 6. General Plan Designation: Industrial* 7. Zoning: *in process of amendment to Mixed Use Commercial/Industrial Commercial Manufacturing 8. Description of Project: (Describe the whole action involved, including but not limited to later phases of the project, and any secondary, support, or off-site features necessary for its implementation. Attach additional sheet{s) if necessary.): A Disposition Development Agreement (The Hale DDA) between the Arcadia Redevelopment Agency and the Hale Corporation for the sale of approximately 20,000 square feet of City owned land for the development of a 19,500+/- sq.ft. two-story office complex on a 50,000+/- square foot site, and an architectural design review of the proposal, Implementation Plan Amendment, and a General Plan Amendment to change the General Plan Designation of the 50,000+/- square foot site from Industrial to Mixed Use -- Commerciall Industrial (MU-C/l) for the subject property. Herein referred to as the "Hale Office Project". 9. Surrounding Land Uses and Setting: (Briefly describe the project's surroundings.) North: South: East: West: Industrial uses; zoned M-I Railroad tracks and commercial uses; zoned CBD Parking lot and industrial uses; zoned M-1 Railroad tracks and commercial offices/ REI; zoned C-2 10. Other public agencies whose approval is required (e.g., permits, financing approval, or participation agreement): City of Arcadia, Planning Division / City Engineering Division / City Public Works Services Department / City Water Division / Los Angeles County Engineer; Los Angeles County Sanitation District; Los Angeles County Flood Control District CEQAFORMS/CHECKLIST Page 1 of 4 06/07/00 Attachment 3 ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist on the following pages. - Aesthetics - Agriculture Resources Air Quality - Biological Resources Cultural Resources Geology 1 Soils - Hazards & Hazardous Materials Hydrology 1 Water Quality - Land Use 1 Planning Noise - Population 1 Housing - Mineral Resources - Recreation Transportation 1 Traffic - Public Services - Utilities 1 Service Systems Mandatory Findings of Significance DETERMINATION (To be completed by the Lead Agency): On the basis of this initial evaluation: X I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. - 1 find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. - I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. 1 find that the proposed project MAY have a "potentially significant or "potentially significant unless mitigated" impact on the environment, but at least one effect I) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. - I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required. 4/13/2000 Date ARCADIA REDEVELOPMENT AGENCY For Signature Peter Kinnahan Printed Name CITY /R VPUB/200020001546265 FORM "J" Page 2 of 4 EVALUATION OF ENVIRONMENTAL IMP ACTS: I) A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the infonnation sources a lead agency cites in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced infonnation sources show that the impact simply does not apply to projects like the one involved (e.g. the project falls outside a fault rupture zone). A "No Impact" answer should be explained where it is based on project-specific factors as well as general standards (e.g. the project will not expose sensitive receptors to pollutants, based on a project-specific screening analysis). 2) All answers must take account of the whole action involved, including off-site as well as on- site, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts. 3) Once the lead agency has detennined that a particular physical impact may occur, then the checklist answers must indicate whether the impact is potentially significant, less than significant with mitigation, or less than significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect is significant. If there are one or more "Potentially Significant Impact" entries when the detennination is made, an EIR is required. 4) "Negative Declaration: Less Than Significant With Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less than Significant Impact." The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from Section XVII, "Earlier Analyses," may be cross-referenced). 5) Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 1 5063( c )(3)(0). In this case, a brief discussion should identify the following: a) Earlier Analyses Used. Identify and state where they are available for review. b) Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. c) Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. 6) Lead agencies are encouraged to incorporate into the checklist references to infonnation sources for potential impacts (e.g. general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. CITY fR VPUB/2000/3l3 785 FORM "J" Page 3 of4 7) Supporting Information Sources. A source list should be attached, and other sources used or individuals contacted should be cited in the discussion. 8) This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions form this checklist that are relevant to a project's environmental effects in whatever format is selected. 9) The explanation of each issue should identif'y: a) the significance criteria or threshold, if any, used to evaluate each question; and b) the mitigation measure identified, ifany, to reduce the impact to less than significance. CITY/RVPUB/2000/3I3785 FORM "J" Page 4 of 4 INITIAL STUDY HALE OFFICE PROJECT Issues: 1. AESTHETICS. Would the project: a) Have a substantial adverse effect on a scenic vista? The Hale project is located adjacent to railroad tracks and snrrounded by indnstriaI and commercial uses. The proposal will be required to comply with local architectural standards and will not affect scenic vista. b) Substantially damage scenic resources, including, but not limited to, tress, rock outcroppings, and historic buildings within a state scenic highway? The Hale project is located adjacent to railroad tracks and surrounded by industrial and commercial uses. The proposal will not affect any of the above impacts. c) Substantially degrade the existing visual character or quality of the site and its surroundings? The Hale project is located adjacent to railroad tracks and snrrounded by industrial and commercial uses. The proposal will be required to comply with local architectural standards and will not affect any of the above impacts. d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? The proposal will be required to comply with City and Agency architectural standards and illumination limits. n. AGRICULTURE RESOURCES. In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the project: a)Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non-agricultural use? The proposed Hale project will not impact agricultural farmland. The snrrounding uses are commercial and industrial developments. CITY /R VPUBI200020001546265 Page 1 of 20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No ImpacI Impacl x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: b) Conflict with existing zoning for agricultural use, or a Williamson Act contract? The proposed Hale project will be consistent with snrronnding commercial and industrial developments. The Hale site is not located in area zoned for agricultural uses. c) Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non-agricultural use? The proposed Hale project will be consistent with surrounding commercial and industrial developments. The Hale site is not located in area zoned for agricultural nses. Ill. AIR QUALITY. Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? The proposed Hale project is for office purposes and will not expose sensitive receptors to pollutants, alter climatic conditions, or result in objectionable odors. The development of the site will be in accordance with State and City Building Codes, and local air quality regulations as administered by the South Coast Air Quality Management District. b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? The proposed Hale project is for office purposes and will not expose sensitive receptors to pollutants, alter climatic conditions, or result in objectionable odors. The development of the site will be in accordance with local air quality regulations as administered by the South Coast Air Quality Management District. CITY IR VPUB120002000/546265 Page 2 of 20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impacl Impact x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non- attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? The proposed Hale project is for office purposes and will not expose sensitive receptors to pollutants, alter climatic conditions, or result in objectionable odors. The development of the site will be in accordance with local air quality regulations as administered by the South Coast Air Quality Management District. d) Expose sensitive receptors to substantial pollutant concentrations? The proposed Hale project is for office purposes and will not expose sensitive receptors to pollutauts, alter climatic conditions, or result in objectionable odors. The development of the site will be in accordance with local air quality regulations as administered by the South Coast Air Quality Management District. e) Create objectionable odors affecting a substantial number of people? The proposed Hale project is for office purposes and will not expose sensitive receptors to pollutants, alter climatic conditions, or result in objectionable odors. The development of the site will be in accordance with local air quality regulations as administered by the South Coast Air Quality Management District. IV. BIOLOGICAL RESOURCES. Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. The proposal will not bave any impacts on biological resources. CITY /R VPUB/20002000/546265 Page 3 of20 Potentially Significant Impacl Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department ofFish and Game or U.S. Fish and Wildlife Service? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. The proposal will not have any impacts on biological resources. c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. The proposal will not have any impacts on biological resources. d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. The proposal will not have any impacts on biological resources. e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. The proposal will not conflict with any local policies or ordinances protecting biological resources. CITY IR VPUB/20002000/546265 Page 4 of 20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: t) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. The proposal will not have any impacts on biological resources. CITY /R VPUB120002000/5462 65 Page 5 of 20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: V. CULTURAL RESOURCES. Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined in S 15064.5? The proposed Hale project is within a popnlated area zoned for commercial and indnstrial uses in which similar projects have been developed. The proposal will not have any impacts on historical resources. b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to S 15064.5? The proposed Hale project is within a populated area zoned for commercial and indnstrial uses in which similar projects have been developed. The proposal will not have any impacts on archaeological resonrces. c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. None of the above resources have been identified at the subject area. d) Disturb any human remains, including those interred outside of formal cemeteries? The proposed Hale project is within a populated area zoned for commercial and industrial uses in which similar projects have been developed. None of the above resources have been identified at the subject area. VI. GEOLOGY AND SOILS -- Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury or death involving: While this entire region is subject to the effects of seismic activity, the subject location has not been determined to be especially susceptible to any of the above geological or soil problems. CITY IR VPUB120002000/546265 Page 6 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: i) Rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. While this entire region is subject to the effects of seismic activity, the subject location has not been determined to be especially susceptible to any of the above geological or soil problems. ii) Strong seismic ground shaking? While this entire region is subject to the effects of seismic activity, the subject location has not been determined to be especially susceptible to any of the above geological or soil problems. iii) Seismic-related ground failure, including liquefaction? While this entire region is subject to the effects of seismic activity, the subject location has not been determined to be especially susceptible to any of the above geological or soil problems. The site is essentially flat land, and is not within an area subject to inundation, subsidence, or expansion of soils. iiii) Landslides? While this entire region is subject to the effects of seismic activity, the subject location has not been determined to be especially susceptible to any of the above geological or soil problems. The site is essentially flat land, and is not within an area subject to inundation, subsidence, or expansion of soils. b) Result in substantial soil erosion or the loss of topsoil? While this entire region is subject to the effects of seismic activity, the subject location has not been determined to be especially susceptible to any of the above geological or soil problems. The site is essentially flat land, and is not within an area subject to inundation, subsidence, or expansion of soils. The proposal is for office purposes and will not necessitate extensive excavation, grading or filling. CITY IR VPUB/200020001 546265 Page 7 0[20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? While this entire region is subject to the effects of seismic actiyity, the subject location has not been determined to be especially susceptible to any of the aboye geological or soil problems. The site is essentially flat land, and is not within an area subject to inundation, subsidence, or expansion of soils. The proposal is for office purposes and will not necessitate extensiye excavation, grading or filling. No unique geological or physical features have been identified at the site. d) Be located on expansive soil, as defined in Table 18-1- B of the Uniform Building Code (1994), creating substantial risks to life or property? While this entire region is subject to the effects of seismic actiyity, the subject location has not been determined to be especially susceptible to any of the aboye geological or soil problems. The site is essentially flat land, and is not within an area subject to inundation, subsidence, or expansion of soils. e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water? While this entire region is subject to the effects of seismic activity, the subject location has not been determined to be especially susceptible to any of the above geological or soil problems. Waste water will be disposed of by the Arcadia sewer system. VII. HAZARDS AND HAZARDOUS MATERIALS. Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? The proposed Hale Project does not inyolve hazardous substances, nor will it create or expose people to health hazards. CITY IR VPUB/2000200015462 65 Page 8 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? The Hale project is for a two-story office complex and does not involve hazardous substances, nor will it create or expose people to health hazards. c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? The Hale project is for a two-story office complex and does not involve hazardous substances, nor will it create or expose people to health hazards. d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? The subject site has no known hazardous material pursuant to Government Code Section 65962.5. The site, a previous AT &SF railroad station and yard had minor hazardous waste deposits on the surface and in one location to a depth of 5-6 feet. This small area was the only area requiriug remediation per SCS Inc., and it was remediated by Dames Moore. e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? The Hale project is not located within an airport land use plan or, where such a plan has been adopted. d) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? The Hale project is not withiu the vicinity of a private airstrip. e) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? The Hale project will be in compliance with emergency access and fire safety regulations. CITY /R VPUB/200020001546265 Page 9 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: f) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? The proposed Hale Project is for a two-story office complex and wiII result in a land use designation change only. The proposal does not involve hazardous substances, nor wiII it create or expose people to health hazardous. The proposal wiII be in compliance with emergency access and fire safety regulations. Vill. HYDROLOGY AND WATER QUALITY. Would the project: a) Violate any water quality standards or waste discharge requirements? The proposal is for a two-story office complex, and wiII only change the existing absorption rate and the existing drainage pattern of the subject site. The project is designed to direct the new surface runoff onto the street in accordance with City's Code requirements, and to the satisfaction of the City Engineer. b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre-existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? The proposal is for a two-story office complex, and wiII only change the existing absorption rate and the existing drainage pattern of the subject site. The project is designed to direct the new surface runoff onto the street in accordance with City's Code requirements, and to the satisfaction of the City Engineer. CITY IR VPUB/200020001546265 Page 10 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off-site? The northeastern corner of the existing site is currently a parking lot. The proposal is for a two- story office complex, and will only change the existing absorption rate and the existing drainage pattern of the snbject site. The project is designed to direct the new surface runoff onto the street in accordance with City's Code requirements, and to the satisfaction of the City Engineer. d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off-site? The proposal is for a m'o-story office complex, and will only change the existing absorption rate and the existing drainage patter of the subject site. The project is designed to direct the new surface runoff onto the street in accordance with City's Code requirements, and to the satisfaction of the City Engineer. e) Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff? The proposal is for a two-story office complex, and will only change the existing absorption rate and the existing drainage patter of the subject site. The project is designed to direct the new surface runoff onto the street in accordance with City's Code requirements, and to the satisfaction of the City Engineer. f) Otherwise substantially degrade water quality? The proposal is for a two-story office complex, and will not degrade water quality. g) Place housing within a 100-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? The Hale project is located within an area surrounded by industrial and commercial uses and is not within a IOO-year flood hazard area. CITY /R VPUB120002000/546265 Page 11 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: h) Place within a I DO-year flood hazard area structures which would impede or redirect flood flows? The Hale project is located within an area surrounded by industrial and commercial uses and is not within a IOO-year flood hazard area. g) Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? The Hale project will not affect any of the above impacts. h) Inundation by seiche, tsunami, or mudflow? The proposed Hale project is for a two-story office complex, and will only change the existing absorption rate and the existing drainage pattern of the subject site. The project is designed to direct the new surface runoff onto the street in accordance with the City's Code requirements, and to the satisfaction of the City Engineer. IX. LAND USE AND PLANNING. Would the project: a) Physically divide an established community? The proposed Hale project will not disrupt or divide any established community. The surrounding uses are commercial and industrial developments; this is a vacant parcel. b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan,)ocal coastal program, or zoning ordinance) adopted' for the purpose of avoiding or mitigating an environmental effect? Following the planned amendment of the Agency Implementation Plan changing the project site from a proposed Mass Transit site to an office development, the proposed Hale project does not conflict with any other plans or policies adopted by the City or Agency. c) Conflict with any applicable habitat conservation plan or natural community conservation plan? The proposed Hale project would allow potentially different uses than the current designation, but this would not create a significant impact on the environment. X.MINERAL RESOURCES. Would the project: CITY /R VPUB/20002000/546265 Page 12 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: a) Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? There has been no evidence of mineral resources in the past; therefore the proposed Hale project would not result in the loss of available known mineral resources. b) Result in the loss of availability of a locally-important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? There has been no evidence of mineral resources in the past; therefore the proposed Hale project would not result in the loss of available known mineral resources. XI. NOISE. Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? There will be a short term increase in noise levels due to construction on the site. However, there are no residences within 215 feet +/- of the project site, and the project is for construction of a relatively small office building. Once the construction is completed the noise generated from the office building should not adversely impact any of the neighboring properties. b) Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels? There could be a short term increase in the generation of groundborne vibration due to construction on the site. However, there are no residences within 215 feet +1- of the project site, and the project is for construction of a relatively small office building. Once the construction is completed, the office building will not generate groundborne vibration. c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? There will be a short term increase in the ambient noise levels due to construction on the site. Once the construction is completed, it is anticipated that the addition of the office building should not generate adverse amount of ambient noise. CITY!R VPUB/20002000/546265 Page 13 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? There will be a short term increase in the ambient noise levels due to construction on the site. However, there are no residences within 215 feet +/- of the project site, and the project is for construction of a relatively small office building. e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? The proposed Hale project is not in an airport land use plan or within two miles of a public airport. f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? The proposed Hale project is not in the vicinity of a private airstrip. XII. POPULATION AND HOUSING. Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of road or other infrastructure)? The proposed Hale project is for a 2-story office building with approximately 60 permanent employees. The proposed project will not induce substantial population growth in the area. b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? The lot is presently vacant and is located in an area surrounded by commercial and industrial uses. No housing will be displaced due to the project. CITY /R VPUB1200020001546265 Page 14 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x FORM "J" . INITIAL STUDY HALE OFFICE PROJECT Issues: c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? The lot is presently vacant and is located in an area surrounded by commercial and industrial uses. No housing or people will be displaced due to the project. XIII. PUBLIC SERVICES. Would the proiect: a) Result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: Fire protection? The proposal is for a 2-story office building in a populated area zoned for office type uses in which such projects have already been developed. The building will be sprinklered per codeThe project will not create any significant impact upon public services. Police protection? The proposal is for a 2-story office building in a populated area zoned for office type uses in which such projects have already been developed. The project will not create any significant impact upon public services. Schools? The proposal is for a 2-story office building in a populated area zoned for office type uses in which such projects have already been developed. The project will not create any significant impact upon public schools. Parks? The proposal is for a 2-story office building in a populated area zoned for office type uses in which such projects have already been developed. The project will not create any significant impact upon public services. CITY /R VPUB/20002000/546265 Page 15 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: Other public facilities? The proposal is for a 2-story office building in a populated area zoned for office type uses in which such projects have already been developed. The project will not create any significant impact upon public services. XIV. RECREATION. Would the project: a) Increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? The proposal is for a 2-story office building in a populated area zoned for office type uses in which such projects have already been developed. The project will not create any significant impact upon recreational services. b) Does the project include recreational facilities or require the construction or expansion of recreational facilities which have an adverse physical effect on the environment? The proposed Hale project is a 2-story office building and does not propose the construction or expansion of recreational facilities which may have an adverse physical effect on the environment. XV. TRANSPORTATION / TRAFFIC. Would the project: a)Cause an increase in traffic, which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? The proposed Hale project will not substantially increase the existing traffic load and capacity. Parking will be onsite. Approximately 60 employees will work in the building. Approximately 6,300 cars a day use First Ave. Assuming 140 trips a day, this is only a 2.7% in traffic volume. CITY /R VPUB120002000/546265 Page 16 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? The proposed Hale project will not affect any of the above impacts. The project may be subject to mitigation measures should any traffic or parking related impacts arise. c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? The proposed Hale project will not affect any of the above impacts. d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? The proposed Hale project will not affect any of the above impacts. The project may be subject to mitigation measures should any traffic or parking related impacts arise. e) Result in inadequate emergency access? The proposed Hale project will not affect emergency access and will bave proper emergency access. The project may be subject to mitigation measures should any impacts arise. t) Result in inadequate parking capacity? The proposed Hale project will have sufficient parking to code. The project may be subject to mitigation measures shOllld any traffic or parking related impacts arise. g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? The proposed Hale project will not conflict with adopted policies or plans adopted by the City supporting alternative transportation. CITY /R VPUB/200020001 546265 Page 170[20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x x x FORM "J" INITIAL STUDY HALE OFFICE PROJECT Issues: XVI. UTILITIES AND SERVICE SYSTEMS. Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? The proposed Hale project is for a 2-story office building in a populated area zoned for office building type uses in which such projects have already been developed. The project will not create any significant impact upon utilities and service systems. b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? The proposed Hale project is for a 2-story office building in a populated area zoned for office building type uses in which such projects have already been developed. The project will not create any significant impact upon utilities and service systems. . c) Require or result in the construction of new stonn water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? The proposed Hale project is for a 2-story office building in a populated area zoned for office building type uses in which such projects have already been developed. The project will not create any significant impact upon utilities and service systems. d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? The proposed Hale project is for a,2-stor)' office building in a populated area zoned for office building type uses in which such projects have already been developed. The project will not create any significant impact upon utilities and service systems. CITY IR VPUB/200020001546265 Page 180[20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x x x x FORM "J" , INITIAL STUDY HALE OFFICE PROJECT Issues: e) Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? The proposed Hale project is for a 2-story office building in a populated area zoned for office building type uses in which such projects have already been developed. The project will not create any significant impact upon utilities and service systems. f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? The proposed Hale project is for a 2-story office building in a populated area zoned for office building type uses in which such projects have already been developed. The project will not create any significant impact upon utilities and service systems. g) Comply with federal, state, and local statutes and regulations related to solid waste? The proposed Hale project is for a 2-story office building in a populated area zoned for office building type uses in which such projects have already been developed. The project will not create any significant impact upon utilities and service systems. XVII. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat or 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 of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? The proposed Hale project is for a 2-story office building zoned for office uses in which such projects have already been developed. The project will not have any of the above mentioned effects or impacts. ' CITY IR VPUB/20002000/546265 Page 19 of20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impact Impact x X x x FORM "J" c INITIAL STUDY HALE OFFICE PROJECT Issues: b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current project, and the effects of probable future projects.) The proposed Hale project is for a 2-story office building zoned for office uses in which such projects have already been developed. The project will not have any of the above mentioned effects or impacts. c) Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? The proposed Hale project is for a 2-story office building zoned for office uses in which such projects have already been developed. The project will not have any of the above mentioned effects or impacts. CITY /R VPUB120002000/546265 Page 20 of 20 Potentially Significant Impact Less Than Significant With Mitigation Incorporated Less Than Significant No Impacl Impact x x FORM "J"