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Home My WebLink AboutC-2293A TITLE(S) : This page is part of your document - DO NOT DISCARD �. 20071381303 Pages: i • W�,. 0651, Recorded /Filed in Official Records Recorder's Office, Los Angeles County, Fee: 0.00 California Tax: 0.00 06/07/07 AT 08:07AM Other: 0.00 Total: 0.00 I 768781 200706070010035 Mail i Assessor's Identification Number (AIN) To be completed by Examiner OR Title Company in black ink. — -F - - - . Number of AIN's Shown ® WHO THIS FORM IS NOT TO BE DUPLICATED EXEMPT FROM RECORDER'S FEES 06/07/07 Pursuant to Government Code §§ 6103 and 27383 Recording requested by and when recorded return to: City Clerk -"'r IJ81303 City of Arcadia 240 Huntington Drive Arcadia, CA 91066 (SPACE ABOVE FOR RECORDER'S USE) DEVELOPMENT AGREEMENT By and Between THE CITY OF ARCADIA, a California municipal corporation and SANTA ANITA ASSOCIATES, LLC, a Delaware limited liability company (a joint venture between SANTA ANITA ASSOCIATES HOLDING CO., LLC, a California limited liability company and SANTA ANITA COMMERCIAL ENTERPRISE, Inc., a Delaware corporation ) and THE SANTA ANITA COMPANIES, INC., a California corporation 1. 2. 3. 4. 5. 91 7 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20 21. 22. 23. 24. 25. 26. 27. 28. 29. • • TABLE OF CONTENTS Definitions........................................................... ............................... Binding Effect; Change in Developer Composition ............................. Negation of Agency ............................................. ............................... Reserved Powers ................................................ ............................... Acknowledgements, Agreements and Assurances on the Part of the Developer............................................................ ............................... Acknowledgements, Agreements and Assurances on the Part of the City...................................................................... ............................... Acknowledgements, Agreements, and Assurances on the Part of the Parties................................................................. ............................... PublicBenefits ...................................................... ............................... Cooperation and Implementation ........................ ............................... Compliance; Default; Termination; Modifications and Amendments.. Amendment or Modification ................................. ............................... Term of Agreement ............................................. ............................... Administration of Agreement and Resolution of Disputes ................... Transfers and Assignments 3 Page(s) .............4 .............7 .............7 .............7 ...........10 ...........10 ...........15 ...........16 ...........16 ...........18 ........... 21 ........... 21 ............................................. ............................... MortgageeRights ............................................................ ............................... Notices............................................................................ ............................... 22 24 25 28 Severability....................................................................... ............................... 29 Timeof Essence ................................................................. .............................29 Force Majeure /Enforced Delay; Extension Of Time Of Performance ..............30 Waiver................................................................................ .............................30 No Third Party Beneficiaries ............................................... .............................30 EstoppelCertificates .......................................................... .............................30 Attorney's Fees ................................................................ ............................... 31 ApplicableLaw ................................................................... .............................31 Authorityto Execute ......................................................... ............................... 31 Entire Agreement; Conflicts ................................................ .............................32 City Approvals and Actions ................................................ .............................32 Counterparts..................................................................... ............................... 32 Exhibits............................................................................. ............................... 32 30. Interpretation ........................................................................ ............................... 32 31. Copies of Existing Land Use Regulations and Existing Development Approvals......................................................................... ............................... 32 I Development Agreement This Development Agreement ( "Agreement ") is made in Los Angeles County, California as of Oliy► e- 1 , 2007, by and between the City of Arcadia, a municipal corporation and charter city (the "City"), and Santa Anita Associates, LLC, a Delaware limited liability company ( "SAA") (a joint venture between Santa Anita Associates Holding Co., LLC, a California limited liability company ( "Caruso ") and Santa Anita Commercial Enterprise, Inc., a Delaware corporation ( "SACE ")) and The Santa Anita Companies, Inc., a California corporation ( "Owner") (SAA and Owner are sometimes collectively referred to herein as the "Developer"). The City and the Developer shall be referred to singularly as a "Party" or collectively as the "Parties." Recitals. This Agreement is made with respect to the following facts and for the following purposes: A. The City is authorized, pursuant to its authority as a charter city over municipal affairs and pursuant to Government Code Sections 65864 - 65859.5 (the "Development Agreement Statute "), to enter into binding agreements with persons having a legal or equitable interest in real property located in the City for the development of such property in order to establish certainty in the development process, the City has adopted Resolution No. 6469 establishing policies for the consideration of development agreements under the Development Agreement Statute, the Parties hereto acknowledge that this Agreement has been considered and adopted in compliance with the Development Agreement Statute and Resolution No. 6469; B. Owner is the fee owner of an approximately 304 -acre site located in the City, legally described in Exhibit "A" attached hereto and depicted in the diagram attached as Exhibit "B" (the "Entire Property "). Caruso is managed by an experienced developer of pedestrian - oriented retail centers and, as stated above, is the joint venture partner of SACE in SAA. SAA has an option to ground lease certain land (the "Property") pursuant to a ground lease ( "Ground Lease ") that is a part of the CE zoned (under the Specific Plan, defined below) portion of the Entire Property. Exercise of the option to Ground Lease is conditioned on the satisfaction or waiver of certain conditions. SAA will develop on the Property the Commercial Entertainment Center (defined below). The CE Zone, as depicted in the Specific Plan, is legally described in Exhibit "A A =1" attached hereto and depicted in the diagram attached as Exhibit "B-1". C. The City has adopted the Santa Anita Park Specific Plan through the adoption of Ordinance No. 2226 (the "Specific Plan "), a comprehensive plan to guide the design and future development of certain portions of the Entire Property, which has been used historically as a horse racing facility known as the Santa Anita Racetrack. The Specific Plan provides for the development of the Property with a new commercial entertainment development including approximately 806,405 square feet (Gross Leasable Area as that term is used in the Specific Plan) of retail and commercial space, accompanying parking, as depicted in the Specific Plan, and the necessary infrastructure to serve such uses (collectively, the "Project," defined further below), as depicted on the site plan attached hereto as Exhibit "C" (the "Site Plan "); 0 0 D. The constituent entities of Developer have a legal or equitable interest in their respective portions of the Entire Property in accordance with the Development Agreement Statute. SAA desires to develop the Property with a high - quality commercial, restaurant, entertainment and retail development project, and they require substantial long -term planning, comprehensive design, significant investment by Developer in public and private infrastructure, and an assurance of stable land use entitlements in order to maximize the potential for Developer to finance and develop it. Accordingly, consistent with the Development Agreement Statute and Resolution No. 6469, Developer has requested that City enter into this Agreement to provide certain assurances that the Project will be permitted to proceed in accordance with, and subject to, the provisions set forth herein and in City's Existing Land Use Regulations (defined below), City's Existing Development Approvals (defined below), and the Future Development Approvals (defined below) to be obtained by Developer, all as more particularly set forth herein; E. The City has determined that the Project is consistent with, and satisfies, the relevant provisions of the Arcadia Municipal Code and the Specific Plan, including the goals and objectives of the City's General Plan, as amended. City has determined that development of the Project will provide significant benefits to the community and that the Project promotes the public health, safety, and welfare for the following reasons, among others: (1) the Project ensures the comprehensive planning of a high quality Project within the Speck Plan area that will enhance the image and stature of the City; (2) the Project will provide a long -term source of employment opportunities for residents of the City and the surrounding region; (3) the Project will revitalize the Santa Anita Racetrack by incorporating development in a manner that is complementary and respectful of the Racetrack's important and historic role in the community; (4) the Project will preserve historic portions of the Santa Anita Racetrack grandstand and other historic structures by maintaining architectural compatibility; (5) the Project will preserve public visual accessibility of the existing Santa Anita Racetrack grandstand such that the grandstand remains recognizable from within the Speck Plan area and from select locations along Huntington Drive; (6) the Project will attract new visitors to the Santa Anita Racetrack and increase its visibility to the general public; (7) the Project will establish a balance of land uses that benefits various segments of the community and creates a special place that blends the design heritage of the Santa Anita Racetrack into a new complex of uses and buildings; I • (8) the Project entertainment opportunities fo r environment; • 6 will offer both daytime and nighttime recreational and the community in a safe and reasonably secure (9) the Project will enhance the cultural fabric of the community by providing outdoor plazas, open space areas, as well as publicly accessible art work as articulated in the Specific Plan; (10) the Project will provide an expanded economic base for the City that maximizes property and sales tax revenue while balancing community design principles; (11) the Project will create a pedestrian- oriented open air commercial center with an emphasis on an open space network of landscaped pedestrian streets, sidewalks, paseos, promenades, and public space that will form an important gathering place for the Arcadia community; (12) the Project will ensure land use compatibility by creating a logical physical relationship to the adjacent Westfield Santa Anita mall, existing residential uses, and existing circulation infrastructure through vehicular and pedestrian links; (13) the Project will develop a unique open -air commercial entertainment center to attract retail uses; (14) the Project will utilize architectural design, lighting, signage, and landscape materials to give the Project a distinctive and pleasing appearance; (15) the Project will generate public tax revenues that can be utilized to provide police, fire, recreation and other essential and important public services to the community; and (16) the Project will put portions of the Entire Property to productive use consistent with the objectives of City's General Plan. In consideration for Developer's provision, in all material respects, of the foregoing public benefits, City has determined that it is appropriate to enter into this Agreement to provide assurances to Developer that the Project will be permitted to proceed in accordance with and subject to the provisions set forth herein and in City's Existing Land Use Regulations, City's Existing Development Approvals, and the Future Development Approvals to be obtained by Developer, all as more particularly set forth herein; F. In connection with its approval of the Project, the Final Environmental Impact Report No. SCH 2005031131 (the "Final Environmental Impact Report" or "FEIR ") was prepared by the City and certified by the City Council on April 17, 2007. The FOR analyzed potential adverse environmental impacts of full buildout for the Project; G. The City Council has found that the provisions of the Agreement are consistent with the relevant provisions of the Arcadia Municipal Code, the City's General Plan, as amended, and the Specific Plan; H. All actions taken by City have been duly taken in accordance with all applicable legal requirements, including those of the California Environmental Quality Act, Public Resources Section 21000 at seq. ( "CEQA"), and all other requirements for notice, public hearings, findings, votes and other procedural matters; I. On March 19, 2007, the Planning Commission of the City of Arcadia conducted a duly noticed public hearing concerning this Agreement, thoroughly considered this Agreement, and recommended adoption thereof to the City Council; J. On April 11, 2007, the City Council conducted a duly noticed public hearing concerning this Agreement, thoroughly considered this Agreement, introduced Ordinance No. 2228 approving this Agreement, and on May 1, 2007, the City Council conducted a second reading of and adopted said Ordinance; NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants and agreements contained herein and other good and valuable consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows: 1. Definitions. Capitalized terms used in this Agreement shall have the meanings set forth below, or if not defined in this Section 1, shall have the meaning ascribed thereto when such terms are first used herein. Other initially capitalized terms not specifically defined in this Agreement shall have the same meaning as set forth in the Specific Plan, or, if not defined therein, in the Arcadia Municipal Code: (a) The terms "Development," "development" and "develop" mean the improvement of certain portions of the Entire Property for the purposes of constructing and completing the structures, improvements and facilities comprising the Project as more particularly described in the Specific Plan, Existing Development Approvals, and Future Development Approvals including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Entire Property; the construction, demolition, reconstruction and redevelopment of buildings and structures; and the installation of landscaping; (b) The term "Development Approvals" means all land use, planning, zoning and building permits and entitlements subject to approval or issuance by City in connection with Development of the Project, including, but not limited to: parcel maps and/or lot line adjustments; subdivisions, tentative and final maps; conditional use permits, final development permits, architectural design reviews and approvals; variances; parking approvals and modifications; zoning changes; specific plan approvals or amendments; general plan approvals or amendments; substantial :l conformance and minor modification reviews and approvals under the Specific Plan; grading and building permits; demolition permits; and occupancy permits for buildings; (c) The term "Development Exaction(s)" means any requirement or precondition of City, whether or not in connection with or pursuant to any Land Use Regulations (defined below) or Development Approval, for the dedication of land, the construction of public improvements or public facilities, or the payment of Development Impact Fees; (d) The term "Development Impact Fees" means a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by the City to an applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to a development project, including, but not limited to "Quimby Act' fees specified in Government Code section 66477 and capacity charges, as those terms are defined in Government Code section 66013; provided however, that the tens Development Impact Fee does not include any of the following: (1) Filing or Processing Fees as defined herein; (2) fees or charges that are adopted and imposed by a public agency other than the City (even if collected by the City in connection with the Project); or (3) fees for water connections or fees for sewer connections, as those terms are defined in Government Code section 66013. (e) The term "Director" means the Director of the Development Services Department of the City of Arcadia; (f) The term "Existing Development Approvals" means all of the Development Approvals for the Project approved or issued prior to the Effective Date of this Agreement, and includes, without limitation, the following Development Approvals: (1) The General Plan of the City of Arcadia, as amended by Resolution No.6565; (2) The Specific Plan with Design and Sign Guidelines, as adopted by Ordinance No. 2226; (3) Zone Change Ordinance No. 2227 for the Entire Property; (4) Ordinance No. 2228 approving this Agreement, and this Agreement; (5) The Final Environmental Impact Report, the Mitigation Monitoring and Reporting Program adopted therefor, and the environmental findings adopted therefor pursuant to City Council Resolution No. 6564; and (6) Architectural Design Review for The Shops at Santa Anita Speck Plan. (g) The term "Existing Land Use Regulations" means all of City's Land Use Regulations (as defined in subsection (k) below) in effect as of the Effective Date of this Agreement, including, without limitation, the following: No. 6565; (1) The Arcadia General Plan, as amended by Resolution (2) The Specific Plan, as adopted by Ordinance No. 2226; (3) The City Charter of the City of Arcadia; and (4) The Arcadia Municipal Code, including the Zoning Code. (h) The term "Effective Date" means the date that Ordinance No. 2228 approving this Agreement becomes effective. (i) The term "Filing or Processing Fees" means those fees that are uniformly charged for all commercial projects in the City, which fees cover the administrative costs of, among other things, reviewing and analyzing permit applications and similar requests for ministerial and /or discretionary approvals. (j) The term "Future Development Approvals" means Development Approvals (other than the Existing Development Approvals), including any amendments or modifications thereto, required or requested subsequent to the Effective Date of this Agreement in connection with the Development of the Project and any portion of the Entire Property. (k) The term "Land Use Regulations" means all ordinances (including the Specific Plan), resolutions, codes (including the Arcadia Municipal Code, including the Zoning Code), rules, regulations and official written policies of City governing land use development, including, without limitation: the permitted use of land; the density or intensity of use; subdivision requirements; the maximum height and size of proposed buildings; Development Exactions; regulations regarding the rate, time or sequence of development; and the design standards applicable to the Development or any portion of the Entire Property. (I) The term "Municipal Code" means the Arcadia Municipal Code. (m) The term "Project" means (i) the commercial entertainment development to be constructed on the Property consisting of up to 830,000 square feet, calculated in accordance with the provisions of the Specific Plan (Gross Leasable Area as that term is used in the Speck Plan), of retail and commercial space (including offices, cinemas and restaurants), and accompanying parking as permitted by the Specific Plan (the "Commercial Entertainment Center"), (ii) the development of the necessary infrastructure to serve such uses, all as more particularly described in the Specific Plan and the Existing Development Approvals, and as depicted on the attached Site Plan. • 0 2. Bindina Effect: Change in Developer Composition. This Agreement, and all of the terms and conditions of this Agreement shall, to the extent permitted by law, constitute covenants that shall run with the land comprising the applicable portions of the Entire Property for the benefit thereof, and the benefits and burdens of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective assigns, heirs, or other successors -in- interest. Notwithstanding any provision of this Agreement to the contrary: (i) if prior to the expiration of the initial Term, the Ground Lease has not been fully executed by the Owner and SAA; or (ii) in the event that SAA is not the ground lessor under the Ground Lease prior to the grand opening of the Project (which shall be defined for purposes of this Section as the actual, lawful occupancy of at least fifty percent (50 %) of the square footage of the Commercial Entertainment Center); or (iii) in the event that Caruso no longer is the manager of SAA; or (iv) in the event that SAA does not have an equitable or leasehold interest in the Property, then all vested rights granted under this Agreement as to the Commercial Entertainment Center component of the Project shall terminate. In order to enable the City to determine compliance with this Section 2, SAA, Caruso, SACE, and Owner hereby agree to provide written certifications, provided under penalty of perjury, necessary for the City to determine compliance or non - compliance with this Section 2. 3. Negation of Agency. The Parties acknowledge that, in entering into and performing under this Agreement, each is acting as an independent entity and not as an agent of the other in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers, partners, agents of the other, or employer /employee. 4. Reserved Powers. Notwithstanding any provisions in this Agreement to the contrary, the City reserves the right through its Reserved Powers, as herein defined, to enact and apply to the development of the Project on certain portions of the Entire Property (or to deny or conditionally approve any Future Development Approval based on) the following laws, ordinances, regulations, and written official policies after the Effective Date (collectively, the "Reserved Powers"): (a) Filing or Processing Fees. Adjustments to existing Filing or Processing Fees, or new Filing or Processing Fees, by City to cover the direct, reasonable and actual costs of processing applications for Development Approvals or for monitoring compliance with any Development Approvals. Such Filing or Processing Fees shall be limited to those Filing Fees or Processing Fees that are imposed on all commercial projects within the City, and the City shall not impose any Filing or Processing Fee on the Project merely as a result of the fact that this Development Agreement has been entered into. (b) Procedural Regulations. Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure, applicable on a citywide basis, provided such regulations are consistent with and impose no greater requirements, economic burdens or time delays than the Existing Land Use Regulations, Existing Development Approvals and Future Development Approvals. 7 lb 0 0 (c) Engineering and Construction Standards. Provisions of building, engineering and construction standards and specifications applicable to comparable public and private improvements set forth in the California Building Standards Code in effect in the City at the time of the issuance of the building permit for a building or structure shall apply to the Entire Property and the Project, including without limitation the applicable provisions of the Uniform Building Code, Uniform Plumbing Code, Uniform Mechanical Code, National Electrical Code, and Uniform Fire Code. (d) Public Health and Safetv. Regulations that City determines are necessary because the failure of the City to adopt such regulations would place the occupants of the applicable portion of the Entire Property, or the occupants of the City, or both, in a condition dangerous to their health or safety, or both. (e) Consistent Future City Ordinances. Resolutions and Regulations. City ordinances, resolutions, regulations, and official policies governing development and building that are in furtherance of and not in conflict with this Agreement, the Existing Development Approvals, and the Existing Land Use Regulations and Future Development Approvals. (f) Consented to Ordinances. Resolutions and Regulations. Any ordinances, resolutions, regulations, and official policies, not set forth in this Section 4, that are in conflict with the Project, provided Developer has given written consent to the application of such regulations to the Project. (g) Overriding State and Federal Laws and Regulations. State and federal laws and regulations that are adopted or approved after the Effective Date of this Agreement that override or conflict with Developers vested rights set forth in this Agreement ( "Overriding Laws ") shall apply to the Entire Property and/or the Project, together with any Mandatory Implementing Regulations. For purposes of this subparagraph (g), the term "Mandatory Implementing Regulation" shall mean any implementing City ordinance, resolution, regulation, or written official policy that is necessary to enable City to comply with any Overriding Law and that overrides or conflicts with Developers vested rights set forth in this Agreement, but only if the failure of the City to adopt and implement any such ordinance, resolution, regulation or written official policy will result in the City losing then existing sources of revenue. Conversely, the City shall not apply to the Project any "Optional Implementing Regulation ". The term "Optional Implementing Regulation" shall mean any implementing City ordinance, resolution, regulation, or written official policy that is necessary to enable City to comply with any Overriding Law and that overrides or conflicts with Developers vested rights set forth in this Agreement, which, if adopted, would result in the City receiving a source of revenue that the City had not received as of the date of adoption by the City of an Optional Implementing Regulation City may adopt any such Optional Implementing Regulation and apply any such Optional Implementing Regulation, but the City may not apply such Optional Implementing Regulation to the Project, or any part thereof, or to the Entire Property, or any part thereof. Developer does not waive its right to challenge or contest, at Developer's sole cost and expense and at no liability to the City, the 1 validity of any such Overriding Law, Mandatory Implementing Regulation or Optional Implementing Regulation on its face or as applied to any portion of the Entire Property and /or the Project. In the event that any such Overriding Law (and/or any Mandatory Implementing Regulation undertaken pursuant thereto) prevents or precludes compliance with one or more provisions of this Agreement, such provisions of this Agreement shall be modified or suspended only as may be necessary to comply with such Overriding Law or Mandatory Implementing Regulation and, subject to the provisions of the following paragraph, this Agreement shall remain in full force and effect to the extent that it is not inconsistent with such Overriding Law and its Mandatory Implementing Regulation and that performance of the remaining provisions of this Agreement would not be inconsistent with the intent and purposes of this Agreement. In the event any Mandatory Implementing Regulation is being considered by the City for adoption, City shall use good faith efforts to provide the Developer with written notice of such fact; provided however, that nothing contained in this sentence shall impose any monetary liability on the part of the City, its officials, officers, employees or agents, nor shall any subsequently adopted Mandatory Implementing Regulation be affected by the failure of the City to actually provide such notice. City and Developer shall thereafter meet and confer in good faith concerning (i) the Overriding Law and /or Mandatory Implementing Regulation and the City's application or application of the same to the Entire Property, or any part thereof and /or the Project, or any part thereof, and, (ii) modification of this Agreement, if and as necessary, to comply with such Overriding Law and /or Mandatory Implementing Regulation. If, however, in the opinion of Developer, the Overriding Law and/or Mandatory Implementing Regulation at issue is inconsistent with the intent or objectives of this Agreement, or renders the remaining provisions of this Agreement for the benefit of Developer impractical or less profitable to enjoy and/or enforce, Developer shall have the option of either referring the matter for resolution pursuant to the provisions of Section 13 below, or shall have the right to terminate this Agreement upon thirty (30) days' advanced written notice to City. City agrees to cooperate with Developer in resolving the conflict in a manner that minimizes any financial impact upon Developer and that preserves, to the maximum feasible extent possible, the intent and objectives of this Agreement. City shall, at City's sole cost and expense, process Developer's proposed changes to the Project as may be necessary to comply with such Overriding Law and /or Mandatory Implementing Regulation and to process proposed Project changes in accordance with City procedures and findings. 5. Acknowledgements Agreements and Assurances on the Part of the Developer. In order to effectuate the provisions of this Agreement, and in consideration for the City entering into this Agreement and obligating itself to carry out the covenants and conditions set forth herein, the Developer hereby agrees and acknowledges that: (a) Construction of the Project. Subject to the provisions of Section 7(c) below, from and after the Effective Date, each constituent entity of Developer, in accordance with its sound business judgment, agrees to work towards development of the portion of the Project applicable to it in accordance with the Existing Land Use Regulations, the Existing Development Approvals, and the Future Development 1 0 0 p Approvals to be obtained pursuant hereto. Not by way of limitation of the foregoing, in connection with development of the Project, constituent entity of each Developer shall, with respect to the applicable portion of the Project, subject to the provisions of this Agreement, comply, in all material respects, with all conditions contained in the Existing Development Approvals and all valid conditions consistent with this Agreement that City may impose on the Future Development Approvals. (b) Other Governmental Permits. Subject to the provisions of Section 7(c) below, Developer shall apply in a timely manner for such other permits and approvals as may be required from other governmental or quasi - governmental agencies having jurisdiction over the Project for the development of, or provision of services to, the Project. As specified in Section 6(f), City shall cooperate with Developer in its endeavors to obtain such permits and approvals. 6. Acknowledgements Agreements ano Assurances on the ran or me %ay. City hereby agrees that commencing on the Effective Date, and continuing during the entire remaining Term of this Agreement, Developer shall have the vested right to carry out and complete the Project in accordance with the express provisions of this Agreement, the Existing Land Use Regulations, the Existing Development Approvals and Future Development Approvals, and once the same have been obtained, the Future Development Approvals. In furtherance of such agreement and assurance, and pursuant to the authority and provisions set forth in the Development Agreement Statute, City further hereby agrees and acknowledges as follows: (a) General. The uses permitted on the applicable portions of the Entire Property hereunder, the density and intensity of development, the maximum height and size of buildings, and all other matters affecting land use and development of the Project shall be as set forth in the Specific Plan, the Existing Land Use Regulations, the Existing Development Approvals, and, once the same have been obtained, the Future Development Approvals. In addition, subject to the City's Reserved Powers as set forth herein, Developer's applications for Future Development Approvals shall be reviewed pursuant to the provisions of the City's Existing Land Use Regulations and the Existing Development Approvals. Project. City acknowledges that Developer may in the future desire to change or modify the precise location, configuration, size and height of the proposed buildings and develop a mix of proposed uses after the Effective Date of this Agreement based upon more precise planning, changes in market demand, changes in development occurring in the vicinity, and similar factors. In such event, City shall cooperate with Developer to review and take final action on such requested changes in accordance with City's Existing Land Use Regulations, the Existing Development Approvals and Future Development Approvals. No change to the Project (including Substantially Conforming Changes under Section 7(a)) that is consistent with the Existing Land Use Regulations, the Existing Development Approvals and Future Development Approvals shall require an amendment of this Agreement and, in the event any change in the Project proposed by Developer is approved by the City, the references in this Agreement to the Project or [to] applicable portion thereof shall be deemed to refer to the Project as so changed. In the I'+ event that any reduction by the Developer in the scale of the Project reduces the Gross Leasable Area of the Commercial Entertainment Center to less than Five Hundred Thousand (500,000) square feet, all vested rights under this Agreement shall automatically be deemed terminated. In addition, the Parties intend that if parcelization of the Entire Property, or any portion thereof, that is consistent with the development of the Project as contemplated under the Existing Development Approvals is, subsequent to the Effective Date of this Agreement, authorized and approved under the Subdivision Map Act and the Existing Land Use Regulations, no additional Development Exactions, beyond those contemplated by this Agreement, the Existing Development Approvals, the Existing Land Use Regulations and Future Development Approvals shall be imposed on any such parcelization. (c) Reservations and Dedication of Land for Public Purposes. Developer shall not be required to dedicate, convey, or transfer any interest in land or to construct or install public improvements or facilities in conjunction with the Project, whether on or off the Entire Property, except (i) as expressly provided for in the Existing Land Use Regulations, Existing Development Approvals or Future Development Approvals, or (ii) as expressly set forth in the provisions of this Agreement. If the scope of the Project is changed with the consent of the Developer in a manner that increases the Projects effect on the City s street, transit or utility facilities, in such case, any requirement for such additional dedication, conveyance, transfer, construction or installation shall be limited to that supported by a sufficient nexus and necessary to accommodate the Project change. Any necessary CEQA analysis shall be conducted to examine such incremental change. Developer shall also be entitled to credit and/or reimbursement for the reservation or dedication of land or the installation of public improvements, in accordance with any future written policy of the City concerning fee credits and /or reimbursements for the reservation or dedication of land and the installation of public improvements. Pursuant to Section 202 of Resolution No. 6469, the public improvements to be constructed and dedicated to the City in connection with the Project shall be those listed in Exhibit "F ", and the amount of Development Impact Fees that shall be deemed satisfied by such construction and dedication shall be approximately the amount set forth in Exhibit "G ". (d) Development Exactions. Except as otherwise expressly set forth in this Agreement and as authorized under the Existing Development Approvals, City shall not impose Development Exactions in conjunction with Developer's development of the Entire Property, or any part thereof or the Project, or any part thereof, excepting only those Development Exactions that are authorized by the Existing Development Approvals and Existing Land Use Regulations. A schedule of payment of Development Impact Fees applicable to the Project is attached hereto as Exhibit "D" and incorporated by reference herein. Pursuant to Section 202 of Resolution No. 6469, the amount of such Development Impact Fees shall not be increased, nor shall the City attempt to apply to the Entire Property, or any part thereof or the Project, or any part thereof, any new or different Development Impact Fees, during the first five (5) years following the full execution of this Agreement. Nothing contained in this Agreement 11 shall affect the ability of the City to collect Development Impact Fees that have been adopted and imposed by a public agency other than the City. (e) Future Environmental Review. The potential environmental impacts of the Project were analyzed in the FEIR. Future Development Approvals will be reviewed in light of the FEIR to determine if any additional environmental documentation will be required. The determination will be made consistent with the applicable provisions of CEQA and the State and local CEQA Guidelines. (f) Other Governmental Permits. After City has approved the Project, City shall cooperate, at no direct cost to City, with Developer in its efforts to obtain such additional permits and approvals as may be required by any other governmental or quasi - governmental agencies having jurisdiction over such portion of the Project; provided permits and approvals are consistent with City's approval(s) and are consistent with this Agreement. City does not warrant or represent that any other governmental or quasi - govern mental permits or approvals will be granted. (g) City Review of Applications for Future Development Approvais. All subsequent consideration by City of Developer's applications for Future Development Approvals for the Project shall be subject to the terms and conditions set forth in this Agreement. City shall not disapprove, condition, or delay the processing of any applications for any Future Development Approval for reasons inconsistent with the Existing Land Use Regulations, the Existing Development Approvals, or the express provisions of this Agreement. Upon satisfactory completion by Developer of all required preliminary actions and payments of then applicable Filing or Processing Fees, if any, City shall, in accordance with and subject to.Existing Land Use Regulations, Existing Development Approvals, Future Development Approvals and all other legal requirements, initiate, process, and complete all required steps, and act upon any approvals and permits necessary for the development of the Project by Developer in as prompt and diligent a manner as it performs such actions for other development projects and in accordance with this Agreement, including, but not limited to, (i) the processing of applications for and issuing of all discretionary approvals requiring the exercise of judgment and deliberation by City, including without limitation, the Future Development Approvals; (ii) the holding of any required public hearings; and (iii) the processing of applications for and issuing of all ministerial approvals requiring the determination of conformance with the Existing Development Approvals, Existing Land Use Regulations and Future Development Approvals. If City is unable to process any of Developer's applications for Future Development Approvals in a timeframe acceptable to Developer, Developer shall provide written notice to City requesting aid in such processing. Upon Developer's written request, City shall engage qualified outside consultants reasonably acceptable to Developer to aid in such processing, provided that Developer shall be required to reimburse to City, within thirty (30) days of invoicing by City, all reasonable and direct charges to be incurred by City for such outside consultants. In this regard, Developer, in timely manner, will provide City with all documents, applications, plans and other information necessary for City to carry out its obligations hereunder and will cause Developer's planners, engineers, and all other consultants to submit in a timely manner all required materials and documents therefor. The Term of this Agreement 12 shall be automatically extended for the time period commencing as of the receipt by City of Developer's written request for aid and ending on the date that such consultant actually begins work on the Project ( "Processing Delay'). (h) Vested Rights to Future Development. After the date that City approves an application for a Future Development Approval, Developer shall have the vested right to develop pursuant to said Future Development Approval to the same extent that Developer has the vested right to develop pursuant to the Existing Development Approvals and the Existing Land Use Regulations. Upon City approval of Future Development Approvals they will automatically become part of the Existing Development Approvals. (i) Conflicting Enactments. With the exception of those changes authorized by the Reserved Powers, any other change in the Existing Land Use Regulations or Existing Development Approvals, including, without limitation, any change in the General Plan, zoning, or subdivision law, adopted or becoming effective after the Effective Date, and adopted in any form by the City Council, the Planning Commission or any other board, commission or department of City, or any officer or employee thereof, or by the electorate (including, without limitation, by initiative or referendum), as the case may be, that would, absent this Agreement, otherwise be applicable to the Entire Property, or any part thereof, or the Project, or any part thereof, and that would either: (x) conflict in any way with the Existing Land Use Regulations or Existing Development Approvals (and, once issued, the future Development Approvals); or (y) be more restrictive, burdensome or costly to the Entire Property, or any part thereof or the Project, or any part thereof, than would be the case under the Existing Land Use Regulations and Existing Development Approvals (and, once issued, the Future Development Approvals) shall not be applied by City to any part of the Entire Property, or any part thereof or the Project, or any part thereof. In addition to the foregoing, unless provided for in the Existing Land Use Regulations or Existing Development Approvals or Future Development Approvals or except to the extent the Project is changed with the consent of the Developer thus necessitating any of the following, the following shall be considered in direct conflict with this Agreement: (a) Limits on Density and Intensity. Limiting or reducing the density or intensity of all or any part of the Project, inconsistent with the Specific Plan or this Agreement. (b) Location of Improvements. Limiting the location of or increasing or decreasing the size of buildings, or requiring grading, or other improvements for the Commercial Entertainment Center in a manner that is inconsistent with the Specific Plan or not required of other commercial projects in the City. (c) Discriminatory Application of Ordinances. Applying to the Project or the Entire Property any Land Use Regulations, or interpreting or enforcing any Land Use Regulation in a stricter or more demanding fashion than was theretofore applied anywhere else within City or in a 13 manner that is not uniformly applied on a City -wide basis to all development projects or project sites in City. (d) Exactions. Imposing any Development Exaction, requirement, condition, or other restriction on the Project that is not expressly contained within this Agreement, any Existing Development Approval (including the Specific Plan), or Existing Land Use Regulations. The above list of actions is not intended to be comprehensive, but is illustrative of the types of actions that would conflict with this Agreement. Notwithstanding the foregoing, this Agreement shall not preclude the application to the Project of rules, regulations, ordinances and officially adopted plans and policies in conflict with the Existing Land Use Regulations, Development Approvals, Future Development Approvals or Existing Land Use Regulations where such additional rules, regulations, ordinances and officially adopted plans and policies are mutually agreed to in writing by Developer and the City in accordance with this Agreement. Q) Permitted Conditions. Provided Developer's applications for any Future Development Approvals are consistent with the development of the Project under this Agreement, the Existing Land Use Regulations and Existing Development Approvals, City shall, subject to the Reserved Powers, grant the Future Development Approvals in accordance with the Existing Land Use Regulations, the Existing Development Approvals and this Agreement. City shall have the right to impose reasonable conditions in connection with Future Development Approvals provided, however, that such conditions shall not be inconsistent with this Agreement, the Existing Development Approvals or the Existing Land Use Regulations, or more restrictive, burdensome or costly to the Project than the Existing Land Use Regulations and Existing Development Approvals, or create delays for the development of the Entire Property, or any part thereof or the Project, or any part thereof,. (k) Time Period of Tentative Maas. To the extent permitted by law, the term of (1) any tentative map, parcel map, vesting tentative map or vesting parcel map that may be approved for the Project, (ii) any amendment (or reconfiguration) of any such map (including any lot line adjustment or merger of lots within such a map), or (iii) any other map for any part of the Property filed prior to the termination of this Agreement, shall automatically be extended for the Term of this Agreement. 7. Acknowledgements Agreements and Assurances on the Part of the Parties. In order to effectuate the provisions of this Agreement, and in consideration for the Parties entering this Agreement and obligating themselves to cant' out the covenants and conditions set forth in Section 6 and Section 7 of this Agreement, the Parties hereby agree and acknowledge that: (a) Administrative Changes and Modifications. The Parties acknowledge that further planning and development of the Project may demonstrate that refinements and changes are appropriate with respect to the details and 14 performance of the Parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Project development and with respect to those items covered in general terms under this Agreement, the Existing Development Approvals, the Existing Lang Use Regulations, and, once issued, any Future Development Approvals. If and when the Parties find that "Substantially Conforming Changes," as herein defined, are necessary, desirable or appropriate, they shall, unless otherwise required by law, effectuate such changes or adjustments through administrative modifications executed by the Developer and the Director or his or her designee. As used herein, "Substantially Conforming Changes" are changes, modifications or adjustments that are those changes that are deemed to be in substantial conformance under the Specific Plan. Substantially Conforming Changes shall not be deemed to be an amendment to this Agreement and /or the Existing Development Approvals, and Substantially Conforming Changes shall not require prior notice or hearing by the Planning Commission or City Council. (b) Moratorium. Subject to the City's exercise of its Reserved Powers, no City- imposed moratorium or other limitation, relating to the rate, timing or sequencing of the development or construction of all or any part of the Project, whether imposed by ordinance, initiative, referendum, resolution, policy, order or otherwise, and whether enacted by the Council, an agency of City, the electorate, or affecting the rate, timing or sequencing of parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service approved, issued or granted within City, or portions of City, shall apply to the Project. (c) Timing of Development. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984) that the failure of the parties to provide for the timing of development allowed a later- adopted initiative that restricted the timing of development to prevail over the parties' agreement, it is the intent of Developer and the City to cure any such deficiency by acknowledging and providing that Developer shall have the right (without the obligation) to develop the Project and the Entire Property in such order and at such rate and at such time as it deems appropriate within the exercise of its subjective business judgment. 8. Public Benefits. The Parties acknowledge that significant public benefits will be derived from the following covenants of Developer: (a) Development Agreement Fee. Notwithstanding any provision herein to the contrary, SAA shall pay to City a development agreement fee totaling Two Million Dollars ($2,000,000.00) payable in cash, cashier's check or otherwise immediately available funds. Such payment shall be made by SAA to City as a condition precedent to the issuance of the first building permit associated with the Project. (b) Well Site. Notwithstanding any provision herein to the contrary, and notwithstanding that the City has no current plans to develop a municipal water well on any portion of the Entire Property and merely desires to reserve the right to do so, Owner shall cause to be dedicated, in fee simple, to the City a municipal water well site 15 0 of approximately Five Thousand (5,000) to Fifteen Thousand (15,000) (as determined by City, depending on whether water treatment capabilities are required) square feet, within an existing parking area and in such an area as to minimize any reduction in parking area, traffic impacts and in a location so as to not impact buildings proposed by the Project. The precise location of such well site shall be approved by Developer, in Developer's reasonable discretion. Such dedication shall be made by means of a recordable instrument, in a form approved by the City Attorney. Such instrument shall be delivered to City within thirty (30) days following Developer's receipt a written request for same by City. If the City ever determines to construct a municipal water well as provided above, any construction of a well on such well site shall be subject to compliance with CEQA, and the exterior design shall be consistent with the design guidelines of the Specific Plan. (c) Tenant Character and Quality. Notwithstanding any provision herein to the contrary, SAA covenants that, for the Term of this Agreement, the Commercial Entertainment Center shall meet the following criteria. The tenant mix shall be consistent with a first -class shopping center and shall include upscale tenants such as those tenants who occupy space at any one or more of the following regional shopping centers: Newport Beach's Fashion Island, Costa Mesa's South Coast Plaza, the Grove adjacent to the Farmer's Market, and Glendale's Americana on Brand. 9. Cooperation and Implementation. City and Developer agree that they will cooperate with one another to the fullest extent reasonable and feasible to implement this Agreement. Such cooperation shall include, but is not limited to, the following: (a) Further Actions and Instruments. Each Party shall cooperate with and provide reasonable assistance to the other Party to the extent necessary to implement this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings, including estoppel certificates, and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. (b) Approvals. Reasonableness. Except when this Agreement specifically authorizes a Party to withhold its approval or consent in its sole and absolute discretion, when either City or Developer shall require the approval or consent of the other Party in fulfilling any covenant, provision, or condition set forth herein, such approval or consent shall not be unreasonably withheld, conditioned, or delayed by the Party from whom such approval or consent is sought. (c) Processing During Third Party Litigation. The filing of any third party lawsuit(s) against City and/or Developer relating to this Agreement, the Existing Development Approvals, Existing Land Use Approvals, Future Development Approvals, or to other Development Approvals affecting the Entire Property, or any part thereof or the Project, or any part thereof, shall not, unless agreed to by Developer, delay or stop the development, processing or construction of the Project, or any part thereof, or of the Entire Property, or any part thereof, the approval of the Future Development Approvals, 16 0 0 0 or the issuance of ministerial approvals, unless the third party obtains a court order preventing the activity. City shall not stipulate to or fail to oppose the issuance of any such order. In the absence of such a court order, Developer shall have the right (without the obligation but at its sole risk) to develop the Project and the Entire Property in such order and at such rate and at such time as it deems appropriate within the exercise of its subjective business judgment, as provided for under Section 7(c). (d) Defense of Agreement and Development Approvals. In the event of any legal action instituted by a third party, including without limitation any other governmental entity or official, challenging the validity of this Agreement, any of the Existing Development Approvals, the Existing Land Use Regulations, or any Future Development Approval granted pursuant to this Agreement, or any element thereof or the proceedings, acts, or determinations taken, done or made prior to such matters, or the right of either Party to engage in the acts and transactions contemplated by this Agreement, upon the election of the Developer to defend against the lawsuit, the Parties agree to cooperate fully with each other in defending such action (including any actions reasonably requested to mitigate the impact of such action). Developer shall, at its sole cost and expense, indemnify, defend and hold harmless, the City, its officials, officers and employees for any damage or liability incurred by the same while acting within the scope of their official duties, as the result of the City's obligation hereunder to not stop the development, processing or construction of any portion of the Project, the approval of any Future Development Approvals, or the issuance of ministerial approvals. The City shall have the absolute right to retain such legal counsel as the City deems necessary and appropriate; provided however, that the City shall consult with Developer in the selection of such legal counsel. In the event of any such third party action or proceeding, Developer's counsel shall assume the lead counsel role in the defense of such action or proceeding, and the City's counsel shall assume a review and approval role. The lead counsel role shall include, without limitation, the following types of duties: gathering and organizing documents for the preparation of the administrative record, preparation of motions, briefs and other court pleadings, assuming the lead role in oral arguments and other court appearances, propounding and responding to any discovery requests if discovery is permitted pursuant to applicable law. The review and approval counsel role shall include, the following types of duties: reviewing and approving documents for the preparation of the administrative record, reviewing and approving motions, briefs and other court pleadings, attending (but not assuming the lead role in) oral arguments and other court appearances, reviewing and approving any discovery requests and responses to any discovery requests if discovery is permitted pursuant to applicable law. Developer shall be obligated to reimburse the City for only those reasonable legal fees and costs incurred in connection with the review and approvals of the City's counsel that are set forth in the immediately preceding sentence that are incurred in any such third party action or proceeding. To the extent this Section 9(d) is inconsistent with that certain reimbursement agreement entered into between the City and Caruso Management, Inc., dated June 15, 2005, the provisions of this Section 9(d) shall prevail. The duty of Developer to indemnify, defend and hold harmless the City shall not apply to the extent that any damage or liability is the result of the breach of this Agreement by, or the willful misconduct or gross negligence of, the City, its officials, officers or employees. In the event Developer chooses not to indemnify, defend and 17 9 0 hold harmless (or any combination thereof) as required by this Section, the City, its officials, officers and employees shall be under no obligation to indemnify any party, defend any such action, or hold harmless any party. 10. Compliance: Default. (a) Periodic Review. The City shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by Developer with the terms of the Agreement. Developer shall submit an Annual Monitoring Report, in substantially the form attached hereto as Exhibit "E ", within ten (10) days after written notice from the City Manager. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the actual reasonable and direct City costs of review of the Monitoring Report. (b) Special Review. A special review ( "Special Review ") of compliance with this Agreement may be made either by agreement of the Parties or by initiation in one or more of the following ways following the issuance of a Notice of Non - Compliance to Developer and an opportunity to cure any alleged breach pursuant to Section 10 (j): (1) Recommendation of the Development Services Department staff, (2) Affirmative vote of at least three (3) members of the Planning Commission: or (3) Affirmative vote of at least three (3) members of the City ,dal! (c) Procedure. During either a periodic review or a special review, Developer shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on Developer. (d) Upon completion of a periodic review or a special review, the Director shall submit a report to the Planning Commission setting forth the evidence concerning good faith compliance by Developer with the terms of this Agreement and his or her recommended finding on that issue. The Planning Commission shall consider such report at a public hearing. The City Manager or designee shall provide notice to Developer at least ten (10) days prior to the hearing by the Planning Commission. (e) If the Planning Commission finds and determines on the basis of substantial evidence that Developer has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded. (f) If the Planning Commission finds and determines on the basis of substantial evidence that Developer has not complied in good faith with the terms and conditions of this Agreement, the Commission shall state with reasonable specificity and if? 41 0 particularity the nature of the Developer's default and the facts supporting such determination and the Commission may recommend to the City Council to modify or terminate this Agreement. Developer may appeal a Planning Commission determination pursuant to this Section 10(f) pursuant to City's procedural rules for consideration of appeals in zoning matters then in effect; provided however, that any substantive rules shall be pursuant to the Existing Land Use Regulations. (g) Proceedings Upon Modification or Termination. If, upon a finding under Section 10(f), City determines to proceed with modification or termination of this Agreement, City shall give written notice to Developer and Mortgagee ( as defined in Section 15(b) and as provided in Section 15(d)) of its intention so to do. The notice shall be given at least ten (10) calendar days prior to the scheduled hearing and shall contain: (1) The time and place of the hearing; (2) A statement as to whether or not City proposes to terminate or to modify the Agreement; and, (3) Such other information that the City considers necessary to inform Developer of the nature of the proceeding. (h) Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination pursuant to Section 10(g), Developer shall be given an opportunity to be heard and Developer shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on Developer. If the City Council finds, based upon substantial evidence, that Developer has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the City. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure. (i) Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, Developer is found to be in compliance with this Agreement, City Manager or designee shall, upon request by Developer, issue a Certificate of Agreement Compliance ( "Certificate ") to Developer stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Director and City Council that: (1) this Agreement remains in effect; and (2) Developer is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. Developer may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or Developer, City shall not be bound by a Certificate if a default existed at the time of the Periodic or 19 Special Review, but was concealed from or otherwise not known to the Director or City Council. 0) Notice and Opportunity to Cure for Breaches. If at any time either Party reasonably concludes that the other Party (i) has not acted in reasonable prima facie compliance with this Agreement, and (ii) is out of compliance with a specific material term or provision of this Agreement, then that Party may issue and deliver to the breaching Party a written Notice of Non - Compliance, detailing the specific reasons of non - compliance (including references to sections and provisions of this Agreement that have allegedly been breached) and a complete statement of all facts demonstrating such non- compliance. The Parties shall also meet with each other as appropriate to discuss any alleged non - compliance. A Party shall have thirty (30) calendar days following its receipt of the Notice of Non - Compliance in which to cure said failure(s); provided, however, that if any one or more of the item(s) of non - compliance set forth in the Notice of Non - Compliance cannot reasonably be cured within said thirty (30) calendar day period, then the Party receiving such Notice shall not be in breach of this Agreement if it commences to cure said item(s) within said thirty (30) day period and diligently prosecutes said cure to completion. (k) Termination of Development Aareement as to Breaching Party. If Developer fails to timely cure any item(s) of non - compliance set forth in a written Notice of Non - Compliance issued pursuant to Section 100), then the City shall have the right, but not the obligation, to initiate proceedings under Resolution No. 6469 for the purpose of modifying or terminating this Agreement. Such proceedings shall be initiated by written notice to the Developer and Mortgagee. If the City determines to terminate this Agreement following a reasonable opportunity for the Developer to cure any non- performance, the City shall give Developer and Mortgagee written notice of its intent to so terminate this Agreement, specifying the precise grounds for termination and setting a date, time and place for a public hearing before the City Council on the issue, pursuant to Section 100). At the noticed public hearing, Developer and/or its designated representative shall be given an opportunity to make a full and public presentation to the City. If, following the taking of evidence and hearing of testimony at said public hearing, the City finds, based upon a preponderance of evidence, that the Developer has not demonstrated compliance with any material term of this Agreement, and that Developer is out of material compliance with a specific, substantive term or provision of this Agreement, then the City may (unless the Parties otherwise agree in writing) terminate this Agreement. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure. 11. Amendment or Modification. Except for Substantially Conforming Changes as defined under Section 7(a), or a modification following proceedings instituted pursuant to Section 10 hereof, this Agreement may be amended or modified from time to time only with the written consent of Developer and the City or their successors and assigns, and only upon approval of an amendment by the City Council after a public hearing pursuant to Government Code Section 65868. 20 • 12. Term of Agreement. This Agreement shall become operative on the Effective Date and the "Terre" of this Agreement shall end five (5) years after the Effective Date, unless this Agreement is terminated, modified or the Term is extended upon mutual written consent of the Parties hereto or as otherwise provided by this Agreement. The initial five (5) year term of this Agreement may be extended by the Parties for an additional three (3) years provided that: (a) Developer provides at least 180 days written notice to City prior to expiration of the initial term; and (b) at or before the expiration of the Term, as such Term may be extended as provided for in Section 6(g) for the period of any City Processing Delay, and as specified in Section 19 by the number of days equal to the delay caused by any Enforced Delay, at least one (1) building permit has been issued for a building included within the Project; and (c) Developer is not then in uncured default under the Agreement. For purposes of clause (b), above, the Parties hereby agree that any decision by the City Council to not extend the Term shall be conclusively deemed "reasonable" if the first building permit has not yet been issued as of the expiration of the initial Term of this Agreement, subject to the provisions of the final sentence of this Section. No notice or public hearing need be conducted prior to any such extension. Following expiration or termination of the initial Term and any extension thereof, this Agreement shall be deemed terminated and of no further force and effect. The Term, including both the initial Term and any extension, shall be extended as provided for in Section 6(g) for the period of any City Processing Delay, and as specified in Section 19 by the number of days equal to the delay caused by any Enforced Delay. 13. Administration of Agreement and Resolution of Disoutes. (a) Administration of Disputes. Subject to Sections 10(h) and 10(k), all disputes involving the enforcement, interpretation, or administration of this Agreement (including, but not limited to, decisions by the City staff concerning this Agreement and the Project or other matters concerning this Agreement that are the subject hereof and also including the adoption of any Implementing Regulation) shall first be subject to good faith negotiations between the Parties to resolve the dispute. In the event the dispute is not resolved by negotiations, the dispute shall then be heard and decided by the City Council within thirty (30) days following receipt of a written request by any Party therefor. Thereafter, any decision of the City Council that remains in dispute shall be appealed to, heard by, and finally resolved pursuant to the Alternative Dispute Resolution procedures set forth in Section 13(b) below. Nothing in this Agreement shall prevent or delay Developer or City from seeking a temporary or preliminary injunction in state or federal court if it believes that injunctive relief is necessary on a more immediate basis. (b) Alternative Dispute Resolution. After the provisions of Section 13(a) above have been complied with, subject to the provisions of the final sentence of Section 10(k), all disputes regarding the enforcement, interpretation, termination, modification or administration of this Agreement shall be heard and resolved pursuant to the alternative dispute resolution procedure set forth in this Section 13(b). All matters to be heard and resolved pursuant to this Section 13(b) shall be heard and finally resolved by a single arbitrator who shall be a retired judge from either the California Superior 21 Court, the California Court of Appeals, the California Supreme Court, the United States District Court or the United States Court of Appeals. This arbitrator shall be selected by mutual agreement of the Parties. In the event that the Parties are unable to agree upon the selection of an arbitrator within twenty (20) days following the expiration of the thirty (30) day time period for the City Council's action on the dispute in subsection (a) of this Section, then any Party may petition the Superior Court of Los Angeles County for the appointment of the arbitrator pursuant to the procedures specified in Code of Civil Procedure Section 1281.6. Upon appointment of the arbitrator, the matter shall be set for arbitration at a time not less than thirty (30) nor more than ninety (90) days from the effective date of the appointment of the arbitrator. The arbitration shall be conducted under the procedures set forth in Code of Civil Procedure Section 1280 at seq., or under such other procedures as are agreeable to both Parties, except that the provisions of the Califomia Code of Civil Procedure pertaining to discovery and the provisions of the California Evidence Code shall be applicable to such proceeding and either Party shall have the right to appeal the final decision of the arbitrator. The cost of the arbitrator shall be bome by the non - prevailing party (as that term is used in the Califomia Civil Code) as set forth in Section 23 of this Agreement concerning attorneys' fees and costs. (c) Injunctive Relief. Any Party to the dispute may, in addition to any other rights or remedies provided by this Agreement, seek to enjoin any threatened or attempted violation hereof, seek a stay pursuant to the provisions of Califomia Code of Civil Procedure Section 1094.5(g), or enforce by specific performance the obligations and rights of the Parties hereto, except as otherwise provided herein. (d) No Personal Liability. No board member, councilmember, official or employee of the City shall be personally liable to Developer in the event of any default or breach by the City for any amount that may become due to Developer or on any obligations under the terms of this Agreement. No board member, partner, member, manager, officer or employee of the Developer shall be personally liable to City in the event of any default or breach by the Developer for any amount that may become due to City or on any obligations under the terms of this Agreement. (e) Monetary Damages Limited. It is acknowledged by the Parties that neither Party would have entered into this Agreement if it were to be liable in an unlimited amount of monetary damages under this Agreement, or with respect to this Agreement or the application thereof. In general, each of the Parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement. Except as provided in this paragraph, neither Party shall be liable in damages to the other, or to any respective successor in interest of or to any other person, and both Parties covenants not to sue for damages or claim any damages: (1) For any breach of this Agreement or for any cause of action that arises out of this Agreement; or (2) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement (provided, however, 22 0 0 P,( that this provision shall not authorize any taking of property without payment of just compensation); or (3) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement; provided however, that the Parties may be liable to one another or their successors in interest, and the Parties may sue one another for damages, including attorneys fees and costs, of up to Two Million Dollars ($2,000,000). (f) Specific Performance. The Parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non - monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all Parties for the following reasons: (1) Unlimited money damages are unavailable as provided above. (2) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Entire Property, or any portion thereof, to its natural condition once implementation of this Agreement has begun. After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Entire Property or portions thereof. Developer has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money that would adequately compensate Developer for such efforts. 14. Transfers and Assignments. (a) Rights to Assign. Except as provided in Section 15(a), Developer may not assign or transfer its rights or obligations under this Agreement without the prior written consent of City. Notwithstanding the foregoing, Developer shall have the right to assign, transfer or otherwise convey its interests, rights or obligations hereunder: (i) in whole or in part, to an entity under common control with Caruso or its members; and (ii) in part, with respect to one or more building pads on the Property, to one or more subtenants for the purpose of constructing building(s) thereon in accordance with the Specific Plan, without approval or consent of the City, provided that Developer provides reasonable evidence thereof to City and gives thirty (30) days' prior written notice of the proposed transfer to the City Manager, and Developer provides City with notice of the name and address of the transferee within ten (10) days of the effective date of the transfer. A person or entity approved hereunder for a transfer of all or any part of the Developer's rights and obligations under this Agreement shall be known as a 'Transferee ". Upon the effective date of any sale, lease, sublease, or other transfer or assignment, the seller, lessor, sublessor, or other transferor or assignor 23 automatically shall be released from any executory obligations to City hereunder with respect to the portion of the Entire Property sold, leased, subleased, transferred or assigned; provided, however, that unless City releases the seller, lessor, sublessor, or other transferor or assignor in writing, it shall remain responsible to City for performance of any obligations as to which it was in default as of the effective date of the transfer. (b) Liabilities Upon Transfer. Upon the delegation of all duties and obligations and the sale, lease, sublease, transfer or assignment of all or any portion of the Entire Property to a Transferee, Developer shall be released from its obligations under this Agreement with respect to the Entire Property or portion thereof so transferred arising subsequent to the effective date of such transfer if (1) Developer has provided to City thirty (30) days' prior written notice of such transfer and (2) the Transferee has agreed in a writing, the form and substance of which has been reasonably approved by the Director, to be subject to all of the provisions and obligations hereof applicable to the portion of the Entire Property so transferred. Upon any transfer of any portion of the Entire Property and the express assumption of Developer's obligations under this Agreement by such Transferee, the Transferee becomes a Party to this Agreement with respect only to the portion of the Entire Property acquired by the Transferee, and the City agrees to look solely to the Transferee for compliance by such Transferee with the provisions of this Agreement as such provisions relate to the portion of the Entire Property acquired by such Transferee. Any such Transferee shall be entitled to the benefits of this Agreement and, except as otherwise provided in Section 15 below, shall be subject to the obligations of this Agreement, applicable to the parcel(s) transferred. Notwithstanding any provision in this Agreement expressly or impliedly to the contrary, no Transferee shall have the right to amend or modify this Agreement in any respect whatsoever with respect to that portion of the Entire Property that is not acquired by the Transferee. A default by any Transferee shall only affect that portion of the Entire Property owned, leased or subleased by such Transferee. Except as otherwise provided in Section 15 below, the Transferee shall be responsible for the reporting and annual review requirements relating to the portion of the Entire Property owned, leased or subleased by such Transferee, and any amendment to this Agreement between City and a Transferee shall only affect the portion of the Entire Property owned, leased or subleased by such Transferee. In the event that Developer retains its obligations under this Agreement with respect to the portion of the Entire Property transferred by Developer, the Transferee in such a transaction (a "Non - Assuming Transferee ") shall be deemed to have no obligations under this Agreement, but shall continue to benefit from all rights provided by this Agreement for the duration of the Term of this Agreement. Nothing in this Section shall exempt any Non - Assuming Transferee from payment of applicable fees and assessments or compliance with applicable permit conditions of approval or the Mitigation Monitoring and Reporting Program. 15. Mortgagee Rights. (a) Encumbrances on the Entire Property. The Parties hereto agree that this Agreement shall not prevent or limit Developer, at Developer's sole and absolute discretion, from encumbering the Entire Property or any estate or interest 24 0 0 R therein, including the leasehold interest in the Ground Lease, or any portion thereof, or any improvement thereon, in any manner whatsoever by one or more mortgages, deeds of trust, sale and leaseback, or other form of secured financing ( "Mortgage ") with respect to the construction, development, use or operation of the Project and parts thereof. (b) Mortgagee Protection. To the extent legally permissible, this Agreement shall be superior and senior to any lien placed upon any portion of the Entire Property, or any portion thereof, including the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value. Any acquisition or acceptance of title or any right or interest in or with respect to the Entire Property or any portion thereof, including the leasehold estate created by the Ground Lease, by the holder of a Mortgage (a "Mortgagee "), pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease or sublease termination or otherwise, shall be subject to all of the terms and conditions of this Agreement except that any such Mortgagee, including its affiliate and any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback who takes title to the Entire Property or any portion thereof, including the leasehold estate created by the Ground Lease, shall be entitled to the benefits arising under this Agreement provided Mortgagee complies with Section 15(c) below. (c) Mortgagee Not Obligated. Notwithstanding the provisions of this Section 15, Mortgagee will not have any obligation or duty pursuant to the terms set forth in this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that the Mortgagee and its successor, including any purchaser at a foreclosure sale, shall have no vested right to develop the Project without fully complying with the terms of this Agreement and executing and delivering to City, in a form and with terms reasonably acceptable to City, an assumption agreement of Developer's obligations hereunder. (d) Request for Notice to Mortgage. The Mortgagee of any Mortgage encumbering the Entire Property, or any portion thereof, including the leasehold estate created by the Ground Lease, who has submitted a request in writing to City in the manner specified herein for giving notices shall be entitled to receive written notification from City of any Notice of Non - Compliance by Developer in the performance of Developer's obligations under this Agreement. (e) Mortgagee's Time to Cure. If City timely receives a request from a Mortgagee requesting a copy of any Notice of Non - Compliance given to Developer under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the Notice of Non - Compliance to Developer. (f) Mortgagee Rlghts and Obligations. The Mortgagee of the Entire Property, or any portion thereof, shall, upon written request to City, be entitled to receive from City written notification of any default by Developer of the performance of 25 Developer's obligations under the Agreement which has not been cured within thirty (30)� days following the date of default, provided that the failure of City to provide such required notice shall not constitute a material breach of this Agreement nor shall it affect the status of such Developer default other than that the period of time for the Mortgagee's right to cure the default shall not begin to run until it receives such notice. (i) Right to Cure. Notwithstanding Developers default, this Agreement shall not be terminated by City as to any Mortgagee to whom notice is actually given and to which either of the following is true: (a) The Mortgagee cures any default by Developer involving payment of money within ninety (90) days after Mortgagee's receipt of written notice of default; (b) As to defaults requiring title or possession of the Entire Property, or any portion thereof, to effectuate a cure: (a) the Mortgagee agrees in writing, within ninety (90) days after receipt from City of the written notice of default, to perform the proportionate share of Developer's obligations under this Agreement allocable to that portion of the Entire Property in which the Mortgagee has an interest, conditioned upon such Mortgagee's acquisition of the Entire Property, or portion thereof, including the leasehold estate created by the Ground Lease, by foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback; (b) the Mortgagee commences proceedings to reacquire title to the Entire Property, or applicable portion thereof, including the leasehold estate created by the Ground Lease, within said ninety (90) days after receipt from City of the written notice of default and thereafter diligently pursues such proceedings to completion; and (c) the Mortgagee promptly and diligently cures such default after obtaining title or possession. Subject to the foregoing, in the event any Mortgagee records a notice of default as to its Mortgage, upon the Mortgagee's written request to assume Developer's obligations hereunder, City shall consent to the assignment of all of Developer's rights and obligations under this Agreement to the Mortgagee or to any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback, provided the Mortgagee or such purchaser executes and delivers to City an assumption agreement in a form and with terms reasonably acceptable to City, and Developer shall thereafter be released by City from liability hereunder with regard to the applicable portion of the Entire Property that is transferred in accordance with Section 14 above. Notwithstanding the foregoing, City shall not impose any terms on the Mortgagee or any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback which are inconsistent with the provisions of this Agreement. (ii) Extended Cure Period. Notwithstanding Section 15(f)i(i) above, if any Mortgagee or any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings, including by any process of injunction issued by any court or by reason of any action by any court having jurisdiction or any bankruptcy or insolvency proceeding involving Developer, the times specified in Section 15(f)(i) above for commencing or prosecuting foreclosure or other proceedings or curing 26 2 0 any default by Developer, but not including the payment of money as provided in J Section 15(f)(i)(a) above, shall be extended for the period of the prohibition. (iii) Superior Lien. The lien of any existing or future Mortgage recorded against all or any part of the Entire Property or interest therein, including the leasehold interest under the Ground Lease, shall be superior and senior to any lien created by this Agreement or the recordation thereof. At the request of any lender whose loan will be secured by a Mortgage on all or any portion of the Entire Property, including the leasehold estate created by the Ground Lease, City shall execute a subordination agreement, subordinating City's interest hereunder to the lien of such Mortgage, which subordination agreement shall be subject to the reasonable approval of City. Notwithstanding the foregoing: (i) at the option of the Mortgagee, any foreclosure of any such deed of trust shall not serve to extinguish or terminate this Agreement, provided that in no event shall any dedications or conveyances made by Developer to City be affected or reversed; and (ii) the lien of any real property bond or assessment shall be superior to the lien of any deed of trust and this Agreement. (iv) No Impairment of Lien. Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any existing or future Mortgage on the Entire Property, or any portion thereof, including the leasehold estate created by the Ground Lease, made in good faith and for value. (v) Election to Assume Obligations. Except as provided to the contrary in this Agreement, no Mortgagee or beneficiary shall have an obligation or duty under this Agreement to perform the obligations of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, and no Mortgagee shall be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title to the Entire Property or any portion thereof, including the leasehold estate created by the Ground Lease, and the execution of an assumption agreement as required by Section 15(c) above by such Mortgagee or their respective successors or assigns; except that to the extent any covenant to be performed by Developer is a condition to the performance of a covenant by City, the performance thereof shall continue to be a condition precedent to City's performance hereunder. In the event a Mortgagee or any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback elects to develop all or any portion of the Entire Property in accordance with the Existing Development Approvals, Future Development Approvals, Existing Land Use Regulations, the Mortgagee or any purchaser at a foreclosure, trustee's sale or deed in lieu of foreclosure, lease or leaseback shall be required to assume, in writing, and perform the obligations or other affirmative covenants of Developer under this Agreement pursuant to Section 15(c) above. (vi) Reguest to Modify. City acknowledges that the lenders providing financing for the Project may require certain modifications to this Agreement and City agrees, upon request from time to time, to meet with Developer and /or representatives of such lenders to negotiate in good faith any such requirement for modification. City will not unreasonably withhold its consent to any such requested 27 i • interpretation or modification, provided such interpretation or modification is consistent with the language, intent and purposes of this Agreement. To the extent that City Council action is required in order to lawfully adopt the requested modification to this Agreement, the City Council shall promptly and reasonably consider the request, without imposing any additional conditions or Development Exactions from Developer so long as such requested modification(s) do(es) not materially affect the terms of this Agreement. 16. Notices. All notices under this Agreement shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; (ii) on the date of delivery or refusal shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; (iii) on the date of delivery or refusal, when delivered by Federal Express or other commercial express delivery services providing acknowledgements of receipt; or (iv) on the date of delivery when delivered by facsimile providing verification of delivery and receipt. Such notices or communications shall be given to the Parties and their respective counsel at their addresses set forth below: To City: City of Arcadia 240 West Huntington Drive P.O. Box 60021 Arcadia, California 91066 Attention: City Manager FAX: (626) 446 -5729 With copies to: City Attorney, City of Arcadia 240 West Huntington Drive P.O. Box 60021 Arcadia, California 91066 Attention: Steve Deitsch, City Attorney FAX: (626) 574 -5407 To Developer: Caruso Affiliated 101 The Grove Drive Los Angeles, California 90036 Attention: Rick J. Caruso FAX: (323) 900 -8101 With copy to: Donfeld, Kelley & Rollman 11845 West Olympic Blvd, Suite 1245 Los Angeles, California 90064 Attention: Jeffrey Donfeld, Esq. FAX: (310) 312 -8014 Either Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a Party or an officer or representative of a Party, or to F-3 • • a 3 a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change. 17. Severability. If any provision of this Agreement is determined by the final judgment of a court of competent jurisdiction to be invalid or unenforceable, or if any provision of this Agreement is superseded or rendered unenforceable according to any law that becomes effective after the Effective Date, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 18. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 19. Force Maieure /Enforced Delave Extension Of Time Of Performance. In addition to specific provisions of this Agreement, performance by either Party hereunder shall not be deemed to be in Default, and all performance and other dates specked in this Agreement, including the Term, shall be extended, and all elements thereof where delays or Defaults are due to: third party litigation (until a final, non - appealable judgment has been obtained), or referendum or initiative challenging the validity of this Agreement, the Existing Development Approvals, the Existing Land Use Regulations, any Future Development Approvals, or any element thereof or the proceedings, acts, or determinations taken, done or made prior to or related to such matters, or the right of either Party to engage in the acts and transactions contemplated by this Agreement; inability to secure necessary fuel, construction or labor materials, or tools; actions in connection with the remediation of hazardous materials, including groundwater and soil contamination; withdrawal of financing not caused by any act or omission of Developer, war, insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; acts of terrorism; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; building moratoria; unusually severe weather; acts, delays, or omissions of the other Party; acts or failures to act of the City or any other public or governmental agency or entity; or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform ( "Enforced Delay"). The time for performance by a Party of its obligations under this Agreement under any Enforced Delay shall be extended by a number of days that is equal to the number of days that are caused by the delay, including the number of days it takes to repair or restore the damage or reposition idled contractors caused by any such Enforced Delay to the condition that existed prior to the occurrence of the Enforced Delay (the "Delay Period ") provided that the Party asserting a Delay Period has notified the other Party, in writing, within thirty (30) calendar days following receipt of written notification by the Party of the Enforced Delay. In addition, the Term, as extended, of this Agreement as set forth in Section 12 of this Agreement shall be extended by any Delay Period. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the City and /or Developer. 20. Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Parry against whom enforcement of a waiver is sought. 29 • 0 3 3 21. No Third Party Beneficiaries. This Agreement and all of its terms, conditions, and provisions, is made and entered into for the sole protection and benefit of the Developer and the City (and their respective successors and assigns), and not for the benefit of any other individual or entity. No other person shall have any right of action of any kind based upon any provision of this Agreement nor be deemed to be a third party beneficiary under this Agreement. 22. Estoppel Certificates. Either Party hereunder may, at any time, deliver written notice to the other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended or modified, or if so amended, identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligations set forth in this Agreement or, if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within a reasonable time following the receipt thereof. Developer shall pay City's reasonable costs, including attorney fees, incurred in complying with this Section. 23. Attorneys' Fees. If any Party commences any action for the interpretation, enforcement, termination, cancellation or rescission of this Agreement, or for specific performance for the breach hereof, the prevailing Party shall be entitled to its reasonable attorneys' fees, litigation expenses and costs arising from the action. Attorneys' fees under this Section shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any post - judgment proceedings to collect or enforce the judgment. 24. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any legal action or proceeding (other than any dispute heard pursuant to Section 13(b)) concerning this Agreement shall be filed and prosecuted in the appropriate California state court in the County of Los Angeles, California. Each Party hereto irrevocably consents to the personal jurisdiction of that court. The Parties each hereby expressly waive the benefit of any provision of federal or state law or judicial decision providing for the filing, removal, or change of venue to any other court or jurisdiction, including, without implied limitation, federal district court, due to any diversity of citizenship between the parties, due to the fact that either or both of the Parties is a party to such action or proceeding or due to the fact that a federal question or federal right is involved or alleged to be involved. Without limiting the generality of the foregoing, the Parties each specifically waive any rights provided to it pursuant to California Code of Civil Procedure Section 394. The Parties acknowledge that the provisions of this paragraph are material consideration to the Parties' entry into this Agreement, in that the Parties will avoid the potential cost, expense and inconvenience of litigating in a distant forum. 25. Authority to Execute. The persons executing this Agreement warrant and represent that they have the authority to execute this Agreement and represent that they have the authority to bind the Parties for which they are signing to the performance of the obligations hereunder. Developer represents and warrants to the City that it has 30 0 0 the power and authority to execute this Agreement and, once executed, this Agreement shall be final, valid, binding and enforceable against Developer in accordance with its terms. The City represents and warrants to Developer that (a) all public notices and public hearings have been held in accordance with law and all required actions for the adoption of this Agreement have been completed in accordance with applicable law; (b) this Agreement, once executed by the City, shall be final, valid, binding and enforceable against the City in accordance with its terms; and (c) this Agreement may not be amended, modified, changed or terminated in the future by the City except in accordance with the terms and conditions set forth herein. 26. Entire Agreement: Conflicts. This Agreement, including all Exhibits attached hereto, represents the entire agreement of the Parties with respect to the subject matter of this Agreement and this Agreement supersedes all previous negotiations or agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Should any or all of the provisions of this Agreement be found to be in conflict with any other provision or provisions found in the Existing Land Use Regulations, the Existing Development Approvals, or the Future Development Approvals, then the provisions of this Agreement shall prevail. 27. City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by the City, the Director, or his or her designee is authorized to act on behalf of City unless specifically provided otherwise or the context should require otherwise. 28. Counterparts. This Agreement may be signed in multiple counterparts, which, when signed by all Parties, shall constitute a binding agreement. This Agreement is executed in two (2) originals, each of which is deemed to be an original. 29. Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement: Exhibit "A" — Legal Descriptions of Entire Property and CE Zone. Exhibit "B" — Maps of Entire Property and CE Zone. Exhibit "C" — Site Plan showing Development of the Project. Exhibit "D"— Schedule of Development Impact Fees. Exhibit "E" — Annual Monitoring Report. Exhibit "F" — Public Improvements to be Constructed and Dedicated Exhibit "G" — Development Impact Fee Satisfaction List 30. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others 31 3A- • • s where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation." All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. This Agreement shall be interpreted as though prepared jointly by both Parties. 31. Copies of Existing Land Use Regulations and Existing Development Approvals. Prior to the Effective Date, the Parties shall prepare two (2) sets of the Existing Land Use Regulations and Existing Development Approvals, one each for the City and Developer, so that if it becomes necessary in the future to refer to any of the Existing Land Use Regulations or Existing Development Approvals, there will be a common set available to the Parties. [SIGNATURES ON NEXT PAGE] 32 0 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. CITY CITY OF ARCADIA, CALIFORNIA By: William R. Kelly, City Manager Date: 6A•pke APPROVED AS TO FORM: By: S� r Step en P. Deitsch City Attorney ATTEST: By: lieM I miyntL2 City Clek of the City of Ardadia DEVELOPER SAA Santa Anita Associates, LLC, a Delaware limited liability company By: CARUSO Santa Anita Associates Heldtmg Co., LLC, a California limit y ny By: Print name: Rick J. Caruso ffi. ... 33 3G 9 SACE Santa Anita Commercial Enterprise, Inc., a Delaware corporatign, Title: Date: By: 4 Title: Date: OWNER The Santa Anita a Cali By: � a core � f\ r .. REM, �.. Inc., Title: Date: C7 By: rint Name: /+04"ee Title: !/i- Date: J 34 31 3� EXHIBITS "A" AND "A-f Legal Descriptions of Entire property and CE Zone [attached as following page(s)] p VpUBV BALLINGBR \728687.2 3 EXHIBIT A RACE TRACK PROPERTY ENTIRE PROPERTY LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THOSE PORTIONS OF LOTS 1 AND 5 OF TRACT 949, IN THE CITY OF ARCADIA, AS SHOWN ON MAP RECORDED IN BOOK 17 PAGE 13 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL MAP NO. 4626, AS SHOWN ON MAP FILED IN BOOK 51 PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A POINT ON THE NORTH LINE OF HUNTINGTON DRIVE, 195.00 FEET IN WIDTH; THENCE ALONG THE EASTERLY AND NORTHEASTERLY BOUNDARY OF SAID PARCEL MAP AS FOLLOWS: NORTH 3 053'00" EAST 475.68 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 1200.00 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15 031'48" AN ARC DISTANCE OF 325.26 FEET; THENCE TANGENT TO SAID CURVE NORTH 19 024'48" EAST 534.43 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 350,00 FEET; THENCE NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 71022480 AN ARC DISTANCE OF 436.03 FEET; THENCE TANGENT TO SAID CURVE NORTH 51 °58'00" WEST 873.36 FEET; THENCE CONTINUING ALONG SAID BOUNDARY OF PARCEL MAP NO. 4626 NORTH 66 058'00" WEST 154.55 FEET AND NORTH 51 058'00" WEST 437.83 FEET TO THE MOST NORTHERLY CORNER OF SAID PARCEL MAP, BEING A POINT ON THE SOUTHEASTERLY LINE OF BALDWIN .AVENUE, 100.00 FEET IN WIDTH, THENCE NORTHEASTERLY ALONG SAID SOUTHEASTERLY LINE OF BALDWIN AVENUE, AS IT NOW EXISTS, TO THE INTERSECTION WITH THE WESTERLY PROLONGATION OF THE SOUTHERLY BOUNDARY LINE OF TRACT 15318 AS SHOWN ON MAP RECORDED IN BOOK 427 PAGES 34 AND 35 OF SAID MAPS, SHOWN THEREON AS HAVING A BEARING OF NORTH 88 057'33" EAST; THENCE NORTH 86 057'33" EAST ALONG SAID SOUTHERLY BOUNDARY LINE TO THE ANGLE POINT IN THE SOUTHERLY LINE OF LOT 38 OF SAID TRACT 15318; THENCE CONTINUING ALONG THE BOUNDARY LINE OF SAID TRACT 15318, AND THE SOUTHERLY BOUNDARY LINE OF TRACT 14940 AS SHOWN ON MAP RECORDED IN BOOK 350 PAGES 48 TO 50 INCLUSIVE OF SAID MAPS, NORTH 68 °46'53" EAST 2265.62 FEET TO THE MOST EASTERLY CORNER OF LOT 81 OF SAID TRACT 14940, BEING A POINT ON THE SOUTHWESTERLY LINE OF COLORADO PLACE; THENCE SOUTH 30 033'16" EAST 2171.20 FEET ALONG SAID SOUTHWEST LINE OF COLORADO PLACE, 80.00 FEET IN WIDTH, AS IT NOW EXISTS, TO THE BEGINNING OF TANGENT CURVE THEREIN, CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 756.78 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE 554.82 FEET TO THE INTERSECTION WITH THE CURVED NORTHWESTERLY LINE OF HUNTINGTON DRIVE, 80.00 FEET IN WIDTH, SAID CURVE BEING CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 995.37 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE 607.48 FEET; THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS, 2843.30 FEET TO THE BEGINNING OF A TANGENT .CURVE THEREIN CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 915.20 FEET; THENCE SOUTHWESTERLY AND WESTERLY ALONG SAID CURVE 883.99 FEET; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS TO THE POINT OF BEGINNING. TOGETHER WITH PARCEL 4 OF PARCEL MAP NO. 4626, AS SHOWN ON MAP RECORDED IN BOOK 51, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING WITHIN PARCEL 1 OF PARCEL MAP NO. 15852, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 179 PAGES 93 AND 94 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM THOSE PORTIONS OF THE ABOVE DESCRIBED PARCEL LYING WITHIN PARCELS 3 AND 4 OF PARCEL MAP NO. 23862, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 261 PAGES 91 THROUGH 95 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. SAID PARCELS ARE SHOWN ON EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. e W / T ( MERCADO\ �PLS, 3�7� * Ez NOt 26382 DB PATRICK R. ERCA S 6382 sfq EXHIBIT A -1 COMMERCIAL ENTERTAINMENT ZONE PROPERTY LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: THOSE PORTIONS OF LOTS 1 AND 5 OF TRACT 949, IN THE CITY OF ARCADIA, AS SHOWN ON MAP RECORDED IN BOOK 17 PAGE 13 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF PARCEL MAP NO. 4626, AS SHOWN ON MAP FILED IN BOOK 51 PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A POINT ON THE NORTH LINE OF HUNTINGTON DRIVE, 195.00 FEET IN WIDTH; THENCE ALONG THE EASTERLY AND NORTHEASTERLY BOUNDARY OF SAID PARCEL MAP AS FOLLOWS: NORTH 3 053'00" EAST 475.68 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE EAST AND HAVING A RADIUS OF 1200.00 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15 031'48" AN ARC DISTANCE OF 325.26 FEET; THENCE TANGENT TO SAID CURVE NORTH 19 02448" EAST 534.43 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 350.00 FEET; THENCE NORTHERLY AND NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 71 022'48" AN ARC DISTANCE OF 436.03 FEET; THENCE TANGENT TO SAID CURVE NORTH 51 °58'00" WEST 873.36 FEET; THENCE CONTINUING ALONG SAID BOUNDARY OF PARCEL MAP NO. 4626 NORTH 66 °58'00" WEST 154.55 FEET; THENCE NORTH 53 °00'43" WEST 42.12 FEET TO THE BEGINNING OF A NON - TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 90.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 53 000'43" WEST, THENCE EASTERLY AND NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 42 °09'04" AN ARC DISTANCE OF 66.21 FEET TO THE BEGINNING OF A REVERSING CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 169.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 30 024'38" WEST, THENCE NORTHEASTERLY AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 84 °29'41" AN ARC DISTANCE OF 249.23 FEET; THENCE SOUTH 35 054'57" EAST 134.95 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 481.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH 0 A CENTRAL ANGLE OF 16°40'55" AN ARC DISTANCE OF 140.05 FEET; THENCE TANGENT TO SAID CURVE SOUTH 52 035'52" WEST 150.00 FEET; THENCE SOUTH 55 013'59" EAST 142.20 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 300.00 FEET; THENCE SOUTHEASTERLY AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 28 038'52" AN ARC DISTANCE OF 150.00 FEET; THENCE TANGENT TO SAID CURVE SOUTH 83 052'52" WEST 32.57 FEET; THENCE SOUTH 87 125'14" WEST 171.59 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHWEST. AND HAVING A RADIUS OF 25.00 FEET; THENCE EASTERLY AND NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 51 007'50" AN ARC DISTANCE OF 22.31 FEET TO THE BEGINNING OF A REVERSING CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 115.00 FEET, THROUGH WHICH POINT A RADIAL LINE BEARS NORTH 48 033'04" WEST, THENCE NORTHEASTERLY AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48 °24'24" AN ARC DISTANCE OF 97.16 FEET; THENCE SOUTH, 89 051'19" WEST 6.06 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 50.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 85 057'34" AN ARC DISTANCE OF 75.01 FEET; THENCE NORTH 03 053'45" EAST 292.68 FEET; THENCE SOUTH 87 047'13" EAST 653.26 FEET THENCE SOUTH 73 009'27" EAST 563.47 FEET; THENCE NORTH 16 050'33" EAST 38.22 FEET ;; THENCE SOUTH 73 009'27" EAST 36.78 FEET; THENCE NORTH 16 "50'33° EAST 155.14_ FEET; THENCE SOUTH 73 009'27" EAST 521.61 FEET; THENCE SOUTH 52 027'43" EAST 424.98 FEET TO THE NORTHWESTERLY LINE OF HUNTINGTON DRIVE 80.00 FEET WIDE; THENCE SOUTHWESTERLY ALONG THE NORTHWESTERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS, 1,831.93 FEET TO THE BEGINNING OF A TANGENT CURVE THEREIN CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 915.20 FEET; THENCE SOUTHWESTERLY AND WESTERLY ALONG SAID CURVE 883.99 FEET; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID HUNTINGTON DRIVE, AS IT NOW EXISTS TO THE POINT OF BEGINNING. TOGETHER WITH PARCEL 4 OF PARCEL MAP NO. 4626, AS SHOWN ON MAP RECORDED IN BOOK 51, PAGE 50 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING WITHIN PARCEL 1 OF PARCEL MAP NO. 15852, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 179 PAGES 93 AND 94 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPT THEREFROM THOSE PORTIONS OF THE ABOVE DESCRIBED PARCEL LYING WITHIN PARCELS 3 AND 4 OF PARCEL MAP NO, 23862, IN THE CITY OF ARCADIA, AS PER MAP FILED IN BOOK 261 PAGES 91 THROUGH 95 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. SAID PARCELS ARE SHOWN ON EXHIBIT "B -1" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. PATRICK RAY MERCADO c.. 3 -%Q7 ((*Exp. 12/31/06 N0. 6382 2 rq, �s EXHIBITS WAND " &1" Maps of Entire Property and CE Zone (attached as following page(s)] RVPUBUBALLINGERV28683.2 9 0 XW� iwrc 4 r2aa L Ea � p d 6E G�h3 e� N �IiA I 7 Y�v9 EYEY vd J 1 n / HY AF e 15 & 13 &/ s pP YY G 2 9 p i 1 edP d 3 @Qa i� / ■5(�1 � � �e;3 Anotva �� as 1 d pPH tt b D \Q. o' K ��• !Pl d o" !e • • 0-1 EXHIBIT "C' Site Plan [attached as following page(s)] RV PUBVBALLINOBR\72B6&3.2 U 0 0 EXHIBIT "D" Schedule of Development Impact Fees The only Development Impact Fee that applies to the Project is the City's Traffic Impact Fee. The Traffic Impact Fee schedule is provided below: Land Use PM Peak Hour Trips Cost Per Unit General Retail 3.75 / KSF $ 5.851 SQ FT Restaurant 7.491 KSF $11.68 ! SQ FT Fast Food Restaurant 1 17.32 / KSF' I $27x2 / SQ FT Supermarket 7.32 / KSF" $11.42 ! SQ FT General Office 1.491 KSF $ 2.32 / SQ FT The Park and Recreation Facilities Fee only applies to residential projects and therefore is not applicable to this Project. The City has no other Development Impact Fees at the time of the Effective Date of this Agreement. R V P UB V BALLING ER \728683.2 0 R V PUBVBALLIN08R \728683.2 EXHIBIT "E" Annual Monitoring Report [attached as following page(s)] Development Agreement Annual Monitoring Report PROJECT PROPONENT INFORMATION (print or type) Applicant's Primary Contact: Address: Telephone No.: Applicant's Additional Contact (optional): Address Telephone No.: Fax No.: Fax No.: DEVELOPMENTAGREEMENT INFORMATION Development Agreement No.: (For staff use only) File Na: Related Flies: Submittal Date: Rec'd By: Fee Paid: $ Date of Original Development Agreement: (Month, Day, Year) Name of Party/Parties (Other than City) Subject to the Development Agreement: Date of Last Review: Day, DEVELOPMENT AGREEMENT STATUS PLEASE COMPLETE THE FOLLOWING QUESTIONS. ATTACH ADDITIONAL SHEETS IF NECESSARY. Has the Development Agreement been assigned to any other Party not listed above? If yes, who has the Development Agreement been assigned to and when did the assignment occur? R VPUBV BALLINGER5728683.2 Cfty of Arcakla �.' Development Services Post Office Box 60021 Ancadia, CA 91006 , «Phone: (626) 574 -5423 � Fax: (626) 447-9173 Development Agreement Annual Monitoring Report PROJECT PROPONENT INFORMATION (print or type) Applicant's Primary Contact: Address: Telephone No.: Applicant's Additional Contact (optional): Address Telephone No.: Fax No.: Fax No.: DEVELOPMENTAGREEMENT INFORMATION Development Agreement No.: (For staff use only) File Na: Related Flies: Submittal Date: Rec'd By: Fee Paid: $ Date of Original Development Agreement: (Month, Day, Year) Name of Party/Parties (Other than City) Subject to the Development Agreement: Date of Last Review: Day, DEVELOPMENT AGREEMENT STATUS PLEASE COMPLETE THE FOLLOWING QUESTIONS. ATTACH ADDITIONAL SHEETS IF NECESSARY. Has the Development Agreement been assigned to any other Party not listed above? If yes, who has the Development Agreement been assigned to and when did the assignment occur? R VPUBV BALLINGER5728683.2 Describe the current nature of proponent's project. the size of the project, where the project is locate d should take the proponent to complete development scope, timing of the project. RV PUBVBALLINaERW28683.2 The description should include a brief explanation of , what the proponent Intends to build, how long It of the project, and any changes In the nature, type, What development has occurred since the last review (either special or annual)? Include the entitlements that have been issued to date, including, discretionary entitlements, including architectural review, subdivisions, variances, etc., as well as ministerial permits, including, grading permits, building permits, certificates of occupancy that have been issued for the project. Include the percentage, if any, of the project that is completed and the percentage, if any, actually occupied. If any development has not occurred that was required or expected to occur, provide an explanation of why such development has not yet occurred. Please list all development exactions, dedications, development impact fees and public improvements that the developer has provided in connection with the project since the last review. Please describe any outstanding obligations of developer. Please provide a detailed explanation of why the proponent has not met an obligation and when total compliance is contemplated. If there are any Impediments that have prevented the project proponent from complying with the terms of the Development Agreement, please explain. Y RVPUBV BALLINCER1728683.2 Please provide, in detail, any periods of delay in performance by developer that developer believes are subject to any force majeure/enforced delay provisions of the development agreement. This list shall be cumulative of all such force majeure/ enforced delays since the adoption of the development agreement.'` CERTIFICATION I, , certify that I have used all reasonable diligence in preparing this report. I have reviewed all the information in the report and I certify that all information contained herein is true and correct. Date Signed Year) Signature Additional Comments/ Notes by developer /applicant: RV PUBVBA LLINGER \728683.2 EXHIBIT T" Public Improvements to be Constructed and Dedicated Bus Stop Locations - Currently, the MTA has four bus stops near the perimeter of the project site, located at Huntington Drive and Baldwin Avenue, Huntington Drive and La Cadena Avenue, Huntington Drive and Holly Avenue and Huntington Drive West and Centennial Way. Relocation of existing bus stops and the provision of additional bus stops should be considered to accommodate transit users at convenient locations, including possible new stops that would be internal to the site. ■ Restripe /reconstruct eastbound off -ramp to provide one shared through -left lane and one exclusive left turn only lane and one right turn lane that could allow right turns. Free cant' extra southbound lane along Baldwin Avenue to Gate 8. (Baldwin Avenue and 1 -210 Eastbound Ramps [partially controlled by Caltrans]) ■ Restripe the westbound approach lanes to provide dual right turn lane and a shared through left turn lane (north bound right turn lane). Extend southbound left turn pocket 200 feet farther to the north to accommodate left turning queues. (Baldwin Avenue and Gate 8) Also, install fiber optic cable /conduit. ■ Restripe /reconstruct northbound approach to provide an exclusive right turn lane. Reconstruct to provide dual north and south bound left turn lanes. (Rosemead Boulevard and Huntington Drive [County of L.A.]) • Restripe /reconstruct to provide eastbound and westbound dual left turn lanes. (Baldwin Avenue and Duarte Road) Also, install video detection /CCTV camera and a traffic monitoring station. • Add a second northbound left turn lane northbound. (Baldwin Avenue and Huntington Drive) Also, install video detection /CCTV camera and a communications hub. ■ Restripe /reconstruct approach (between the two one -way legs of Huntington Drive and Campus Drive) to provide left lane, shared through left lane and an additional northbound through lane. Restripe /reconstruct westbound approach to provide an exclusive right turn lane. Reconstruct southbound at Gate 3 to provide three through lanes and an exclusive right turn lane. (Holly Avenue —Gate 3 and Huntington Drive) Also, install a video detection /CCTV camera and a traffic monitoring system. Modify track parking entrance to Colorado Place, providing additional storage capacity, and route track ingress traffic to the north. Implement race -day traffic RV PUBVBALLINGER \728683.2 control. Restripe /reconstruct westbound movement to provide additional third through lane on Huntington Drive to the southwest direction. (West Colorado Place and Huntington Drive) Also, install video detection /CCTV camera. ■ Widen northbound approach to provide one left turn lane, two through lanes, two right turn lanes. Restripe /reconstruct westbound approach to provide three through lanes. (Santa Clara Street and Huntington Drive) Also, install a communications hub. • Reconstruct to provide dual northbound and southbound left turn lanes. (Santa Anita Avenue and Huntington Drive) Also, install a communications hub. ■ Restripe /reconstruct to provide a northbound exclusive right turn lane. Restripe /reconstruct to provide dual left turn lanes eastbound, one through lane and one right turn lane, modify signal phasing. (Santa Anita Avenue and Santa Clara Street) Also, install a communications hub. • Install traffic signal. (Centennial Way and Huntington Drive West) Also, install fiber optic cable /conduit. • Install traffic signal. Also widen to provide northbound exclusive left turn lane in addition to existing three through lanes. (Centennial Way and Huntington Drive East) ■ Change northbound /southbound phasing to permitted phasing. Restripe /reconstruct NB and SB lanes to provide one left turn lane, one through lane and one shared through -right lane. Restripe northbound lanes to provide right turn only lane. (Sunset Boulevard and Huntington Drive). Also, install fiber optic cable /conduit. ■ Reconstruct to provide dual southbound left turn lanes, and eastbound right turn only lane. (Santa Anita Avenue and Duarte Road) Also, install a video detection /CCTV camera and a traffic monitoring system. ■ Re- stripe /reconstruct to add dual left turn lanes to northbound, southbound, and westbound approaches. (Santa Anita Avenue and Foothill Boulevard) Also, install fiber optic cable /conduit, a video detection /CCTV camera, and a traffic monitoring station. • Restripe /reconstruct southbound approach to provide one left turn lane, one through lane and one shared through -right lane. (Michillinda Avenue and Colorado Street [partially controlled by County of L.AJ) • Restripe /reconstruct to provide northbound and southbound right turn only lanes. (Duarte Road at Rosemead Boulevard [County of L.A.]) RV PUBUBALLINGEM72868J.2 Add overlap phase for northbound right turn. (San Gabriel Boulevard and Huntington Drive [County of L.A. and San Marino]) ■ Re- stripe /reconstruct to provide eastbound right -tum -only lane and eastbound dual - left-tum lanes. (Sierra Madre and Huntington Drive [San Marino]) ■ The Developer shall post a bond in the amount of $300,000 to fund potential neighborhood traffic improvements for the locations identified under Impacts 4.13 -4 and 4.13 -12 that may be subject to potentially significant neighborhood impacts. It is anticipated that this amount shall be sufficient to implement one or more of the following measures to make local routes less attractive to through traffic: turn restrictions, chokers or narrowing of street widths, diverters or semi - diverters, cul -de -sacs or street closures, stop signs or other measures approved by the Development Services Director. Further, it is anticipated that this amount shall be sufficient to implement one or more of the following parking restrictions in conjunction with the affected residents on the streets impacted by parking or traffic intrusion. These measures may include, but are not limited to, the following: 1. Posting of parking restrictions in the residential neighborhoods on these streets or other streets that might be affected (such as parking for 1 hour only on street or no parking at certain times) 2. Implementation of permit parking district(s) in the residential neighborhoods (allowing only residents or guests or both to park on street with a permit) The neighborhood traffic control program will include outreach to and participation by all affected residents, with affected residents voting on the program elements and with a required 60 percent approval. The approved program then would be submitted to the City's Traffic Advisory Committee and then to City Council for final approval. • Construction of sidewalk, handicapped ramps and concrete pads for pedestrians at bus stops along perimeter of property along Huntington Drive. ■ Construction of improvements in public right -of -way at Gate 8. RV PUBV BALLINGER1728681.2 0 EXHIBIT "G" Development Impact Fee Satisfaction List Developer is required to construct and dedicate certain public improvements as described in Exhibit F to this Development Agreement. Many of these improvements in Exhibit F pertain to traffic improvements. Pursuant to the City of Arcadia adopted Transportation Master Plan and Traffic Impact fee program, for Developer constructed traffic improvements listed in the Transportation Master Plan, Developer will receive a credit against the applicable Development Impact Fee based on the cost of these improvements. The actual amount of the Development Impact Fee to be satisfied is dependent on the ultimate size in square footage of the Project and the actual costs of the public improvements listed in the Transportation Master Plan that are constructed by Developer. RVPUBUBALL[NGERV 28683.2 0 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT 0 (0() STATE OF STATE ) ss. COUNTY OF LOS ANGELES ) On `I1 Lg 2 , .2007 before m , y v E1T5i NOS 6 e kN , u orA &, .4 P Dab Nerve ME Tft Of Ofnwr Ia.a.'Jans Doe. N q Pudb') personally appeared 2,i CXn J G A /u'{ S o Name of Signer(.) $( personally known to me — OR — proved to me on the basis of satisfactory evidence to be the personal whose name(sy is /ara subscribed to the within instrument and acknowledged to me that he /sheAMre - executed the same in his /ha#4he4r- authorized capacity(ies), and that by his/her /their signature(s) on the instrument the YyElMOSE"4w person(s), or the entity upon behalf of which the person(s) Cofnmladon • 1424682 Notary PubBc•Calfa to acted, executed the instrument. Los Arown county QMV Conan . Explm Jul 12,2W7 WITNESS myuhand and official seal. �r OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ Individual ❑ Corporate Officer Tifle(s) ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Trustee(s) ❑ Guardian /Conservator ❑ Other: Signer is representing: Name Of Person(s) Or Entity(ies) RVPUBV BALLINGER1728687.2 DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document Title or Type of Document Number Of Pages Date Of Document Signers) Other Than Named Above CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ss. COUNTY OF LOS ANGELES ) • 0 On `h ta, , 130 .2007 before me, Moat -y M, R0BB1A)5, Nara,ey Auaur. Dab Name And Title Of Officer (e.g. 'Jane Doe, Notary Pubbe) personally appeared FZA,Je DE mA,acn !Z? Name N Stnerfe) 0 personally known to me — OR — 0 proved to me on the basis person($) whose name(p instrument and acknowl Factory evidence to be the subscribed to a within to me that he executed the me in is 'r authorized capacity(is&), and that by hi r signature(o) on the person($), or the entity upon behalf of which acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL instrument the the person() Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual Of Corporate Officer a _to . 8- Gaac� tam Szcf c.trn y a , ZZW � 'rifle eoYDocument Ti e(s} Title or Type of Document ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Trustee(s) ❑ Guardian /Conservator ❑ Other: y (FIFTY- ElGNT� Number Of Pages Date Of Document Signer is representing: Name Of Person(s) Or En6tty(les), Sigrier(s) Other Than Named ADOVe Qh C'adCRi`�[.L y `�zLr�tki R V pUBVBALLINGERV 28683.2 'CALIFORNIA ALL-PURPOSE STATE OF STATE ) ss. COUNTY OF LOS ANGELES ) 0 On .',nn.4 so 2007 before me, MOLLY M _ NnTAZV PUSC40 — , Dam Nam N Tale Of OMaar (e.g. 'Jana Doe, Notary Pubikn personally appeared FeAmi—, DE MAP-co, 2 , Nam of Signed,) 0 personally known to me — OR — 9 ;;/nor; \„ '77711113 i; proved to me on the basis of satisfactory evidence to be the person() whose name(, is ace subscribed to he within instrument and ackno ledged to me that he shefthey executed the aamh e iii s herftheif authorized capacity(ies), and that by i signature(s) on the instrument the person($), or the entity upon behalf of which the person($) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ Individual J� Corporate Officer Titles) ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Trustee(s) ❑ Guardian /Conservator ❑ Other: Signer is representing: Name Of Person(s) Or Entlty(ies). Sa w "ta, alu P- YQAi wxt ko . RV PUBV BALLINGER1728683.2 DESCRIPTION OF ATTACHED DOCUMENT ,Qeu�Gc7EZar -en.� �uvi,LVr�G Title or Type of Document or Type of Document 5V7 (FtFFV -er(,- La) Number Of Pages Date Of Document A4lC /�i0 ' � b i4 A/ Y�/t 2t�in i Signer(s) Other Than Named boys OneacGca. `&.sty `d lv, *E CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ss. COUNTY OF LOS ANGELES ) On 2007 before m4, MQL L-V Al RQZVR /.il5 NOTHRY Yagi -1 ' Deft Name AM Tide Of Oaker (e.g. 'Jam low, Notary Public') personally appeared kON c14,g&Li =s Name of Slants) personally known to me — OR — ❑D proved to me on the basis of atisfactory evidence to be the person(, whose name( is subscribed to the within instrument and ackngmodged to me that he executed the me in his erfiheir authorized capaclty(ies), and that by is slgnature(4 on the instrument the person(g), or the entity upon behalf of which the person(s) MOLLY M.ROBW acted, executed the instrument. ConarMplon � 1691 Z01 aitptr cameo _ WITNESS my hand and official seal. 1, OWN COU* 1grcoern. boom Adto. Zi a rt, gnature o 0 c OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ Individual 09 Corporate Officer 0 ... • ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Trustee(e) ❑ Guardian /Conservator ❑ Other: Signer is representing: Name Of Person(s) Or Entity(les) J Mr�R Q.wi�tl. �o4- rn„mi.t i >,tii /, tn^ =iat�, RV PUBV BALLINGEM728683.2 DESCRIPTION OF ATTACHED DOCUMENT bt�t.e_r t Q¢,�c'rx.vtt Tltte or Type of Document Title or Type of Document SS (Fi rTV-E IGHT) Number Of Pages 10M Of Document Slgner(s) Other, Than Named Above CzAefcaGca �<tiy Palc,ki CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT STATE OF STATE ) SS. COUNTY OF LOS ANGELES ) On .2007 before me, MOt_Lvm knLga,&)s A/&rAQy Deb Nmne Mtl Title Or Oec<r (e.g. 'Jane Doe, Notary nubile) personally appeared RQfJ CNAetfs Name of Slgmr(s) personally known to me — OR — xO proved to me on the basis of satisfactory evidence to be the person(, ) whose name(>{j is/ subscribed to a within instrument and ackn dged to me that he executed the mein is authorized capacity(ies), and that by is signature(,t;) on the instrument the M. person(f, or the entity upon behalf of which the person(s) c ,,#1591201 acted, executed the instrument. Notary Kdm - camondo a11Ano .carat' WITNESS my hand and official seal. Ma zo, 20 Signature o Wary Public OPTIONAL Though the data below Is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ Individual 0 Corporate Officer'� DD �icz Gap rn n ^� VA,,t.b ,Tcr.%n,n..,., rn.0 r,,,r O Title or Type of Document Tides) Title or Type of Document ❑ Partner(s) ❑ Limited ❑ General ❑ Attorney -In -Fact ❑ Trustee(s) ❑ Guardian /Conservator ❑ Other. Signer is representing: Name Of Person(s) Or Endty(iss) R V PUBUBALLINGEM728683.2 S$ (_Firr l- E IQa r) Number Of Pages —G' Date Of Document �lr�LCt -, .Q[,i f r�.Ciil �oG7.t.i�� P�fYVit nn ^ Sign�er1s) Other Than Named Above wLCRGLCA/ �l.(N('�a�(hIEJ CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT STATE OF STATE ) ss. COUNTY OF LOS ANGELES ) On bef( personally appeared pt personally known to me — OR — ❑O laUSAMNs Cennnlwee • 117117= LrNq le Courdit, lulfcanw=AW7.2011 proved to me on the basis of satisfactory evidence to be the person(aj whose name(( i are subscribed t the within instrument and acknowledged to me that khq sge/ttasy executed the same in hi /Her/t & authorized capaclty�ea , and that by his signature(lil on the instrument the personJe�"or he entity upon behalf of which the personfsf acted, executed the instrument. my tond and official seal. OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ Individual ❑ Corporate Officer Title(s) ❑ Partner(s) ❑ Limited ❑ General ❑ Attomey -In -Fact ❑ Trustee(s) ❑ Guardian /Conservator ❑ Other: Signer is representing: Name Of Person(s) Or EnBty(les) RV PUBVBALLINGER \728683.2 DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document Title or Type of Document Number Of Pages Date Of Document Signer(s) Other Than Named Above