HomeMy WebLinkAboutORD 4 (1991)ORDINANCE NO. 4 (1991)
WN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF DIAMOND BAR APPROVING THAT DOCUMENT
ENTITLED "DEVELOPMENT AGREEMENT NO. 91-2
(1991) CONCERNING PROPERTY GENERALLY LOCATED
AT AND IDENTIFIED AS 22000 GOLDEN SPRINGS
DRIVE, DIAMOND BAR, CALIFORNIA" AND
AUTHORIZING THE MAYOR TO EXECUTE THE SAME ON
BEHALF OF THE CITY OF DIAMOND BAR.
A. Recitals.
(i) California Government Code Section 65864 provides,
in pertinent part, as follows:
"The Legislature finds and declares that:
"(a) The lack of certainty in the approval
of development projects can result in a waste of
resources, escalate the cost of housing and other
developments to the consumer, and discourage
investment in and commitment to comprehensive planning
which would make maximum efficient utilization of
resources at the least economic cost to the public.
"(b) Assurance to the applicant for a development
project that upon approval of the project, the applicant
may proceed with the project in accordance with existing
policies, rules and regulations, and subject to
conditions of approval, will strengthen the public
planning process, encourage private participation in
comprehensive planning, and reduce the economic costs of
development. . . ."
(ii) California Government Code Section 65865 provides,
in pertinent part, as follows:
"Any city . . . , may enter into a development
agreement with any person having a legal or equitable
interest in real property for the development of such
property as provided in this article. . ."
(iii) California Government Code Section 65865.2
provides as follows:
"A development agreement shall specify the duration
-- of the agreement, the permitted uses of the property,
the density or intensity of use, the maximum height and
size of proposed buildings, and provision for
reservation or dedication of land for public purposes.
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The development agreement may include conditions, terms,
restrictions and requirements for subsequent
discretionary actions, provided that such conditions,
terms; restrictions and requirements for subsequent
discretionary actions shall not prevent development of
the land for the uses and to the density or intensity of
development set forth in the agreement. . ."
(iv) Attached to this Ordinance, marked Exhibit "A" and
incorporated herein by reference, is a proposed Development
Agreement No. 91-2 (1991), concerning that approximately 4.7 acre
parcel located the site generally addressed as 22000 Golden
Springs Drive, in the City of Diamond Bar, and as legally
described within the attached Exhibit "A." Hereinafter in this
Ordinance, that agreement attached hereto as Exhibit "A" is
referred to as "the Development Agreement."
(v) This City Council has heretofore adopted an
ordinance amending the zone designation for the subject property
from Light Industrial designation to Restricted Commercial. The
proposed developer of the property and the City desire to provide
through the attached Development Agreement specific development
options and controls on the site which will provide for maximum
-� efficient utilization of the site in accordance with sound
planning principles, all in accordance with the above -referenced
provisions of law.
(vi) On May 13, 1991, the Planning Commission of the
City of Diamond Bar held a duly noticed public hearing concerning
the proposed Development Agreement and has recommended to this
Council the adoption of the Development Agreement.
(vii) This Council has heretofore conducted a duly
noticed public hearing concerning the potential adoption of the
Development Agreement and said public hearing was concluded prior
to the adoption of this Ordinance.
(viii) All legal prerequisites to the adoption of this
Ordinance have occurred.
B. ordinance.
NOW, THEREFORE, the City Council of the City of
Diamond Bar does ordain as follows:
1. In all respects as set forth in the Recitals, Part
A, of this Ordinance.
-- 2. (a) The City Council of the City of Diamond Bar
hereby finds that a Negative Declaration was adopted with respect
to the project on May 13, 1991 which was prepared in compliance
with the California Environmental Quality Act of 1970, as
amended, and the Guidelines promulgated thereunder and that this
Council has reviewed and considered the information contained in
said Negative Declaration with respect to the project identified
in this Ordinance.
(b) The City Council hereby specifically finds
and determines that, based upon the findings set forth below, and
changes and alterations which have been incorporated into and
conditioned upon the proposed project, no significant adverse
environmental effects will occur.
(c) The City Council finds that facts supporting
the above-specified findings are contained in the Negative
Declaration, the staff report and exhibits, and the information
provided to this City Council during the public hearing conducted
with respect to the project and the Negative Declaration.
Mitigation measures will be made a condition of approval of said
project and are intended to mitigate and/or avoid environmental
effects identified in the Negative Declaration.
3. This Council specifically finds that:
(a) The location, design and proposed uses set
`y forth in the Development Agreement are compatible with the
character of existing development in the vicinity;
(b) The Development Agreement will produce within
the project an environment of stable and desirable character, and
will not tend to cause traffic congestion on surrounding streets;
(c) The proposed development will be well
integrated into its setting;
(d) Provision has been designed in the proposed
development for both private and public open spaces at least
equivalent to that required by the Zone; and
(e) (1) There is a reasonable probability that
the land use proposed for approval hereby will be consistent with
the general plan proposal being considered;
(2) There is little or no probability of
substantial detriment to or interference with the future adopted
general plan if the proposed use is ultimately inconsistent with
the proposed general plan; and
(3) The proposed use complies with all other
applicable requirements of state law and local ordinances.
4. It is expressly found that the public necessity,
general welfare and good zoning practice require the approval of
the Development Agreement.
K
_ 5. This Council hereby approves the Development
Agreement attached hereto as Exhibit "A."
6. This Council hereby authorizes and directs the
Mayor and City Clerk to execute the Development Agreement on
behalf of the City of Diamond Bar forthwith upon,adoption of this
Ordinance.
7. The City Clerk shall certify to the passage of
this Ordinance and shall cause the same to be posted in three (3)
public places as specified by Resolution No. 89-6.
ADOPTED AND APPROVED this 20th day of August, 1991
Mayor
I, LYNDA BURGESS, City Clerk of the City of
Diamond Bar, do hereby certify that the foregoing Ordinance was
introduced at a regular meeting of the City Council of the City
of Diamond Bar held on the 6th day of August, 1991, and was
finally passed at a regular meeting of the City Council of the
City of Diamond Bar held on the 20th day of August, 1991, by the
following vote:
AYES: COUNCIL MEMBERS: Werner, Papen,
Mayor Pro Tem Kim and
NOES: COUNCIL MEMBERS: None Mayor Forbing
ABSENT: COUNCIL MEMBERS: Nardella
ABSTAINED: COUNCIL MEMBERS: None
ATTEST:
ty Clerk _gf,t_e_
City of biamcmd Samm-
3%1012\0RDDA912\D96.12
Recorded At the Request
Of And When Recorded
Mail To:
Lynda Burgess
City Clerk
City of Diamond Bar
21660 East Copley Drive, Suite 100
Diamond Bar, California 91765
DEVELOPMENT AGREEMENT NO. 91-2 CONCERNING PROPERTY
LOCATED AT 22000 GOLDEN 8PRING2 DRIVB,
DIAMOND BAA, CALIFORNIA
THIS AGREEMENT is made and entered into as of the
"Effective Date" set forth herein by and between BIG DIAMOND BAR,
a California Partnership, and TORAH DBVBLOPMBNT AND CONBTRUCTION,
a California Bole Proprietorship, ("Developer" hereinafter
collectively) and the CITY OF DIAMOND BAR, a municipal
corporation organized and existing under the laws of the State of
California ("City").
XXXXISAIII:
A. Recitals.
(i) California Government Code Sections 65864, et seq.
authorize cities to enter into binding development agreements
with persons having legal or equitable interests in real property
for the development of such property.
(ii) Developer owns all interest in and to that real
property located entirely within City, the common and legal
description of which is set forth in Exhibit "A", dated 7-31-91
attached hereto and incorporated herein by this reference and
hereinafter is referred to as "the Site."
(iii) The Site is now zoned C -2 -B-E (Neighborhood
Business, Billboard Exclusion Zone) pursuant to the provisions of
City's Zoning Ordinance and Zoning Map, as amended to date
hereof. Developer and City desire to provide through this
Development Agreement more specific development controls on the
Site which will provide for maximum efficient utilization of the
site in accordance with sound planning principles.
(iv) On Anau:t 20 , 1991, City adopted its
Ordinance No. A U 491) , thereby approving this Development
Agreement with Developer and said Ordinance was effective on
September 20 , 1991.
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B. Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions. In this Agreement, unless the context
otherwise requires, the following terms shall have the following
meaning:
a. "City" is the City of Diamond Bar.
b. "Developer" is BIG DIAMOND BAR, a California
Partnership, and TORAH DEVELOPMENT AND CONSTRUCTION,
a California Sole Proprietorship, or any assignee
thereof.
C. "Development Plan" are those plans and specifications
attached hereto, marked as Exhibits "A-1", "A-2",
"A-3", 11B-1", "B-2", "C-1", "C-21#, "D-1", and "D-211,
and incorporated herein by this reference, and
comprised of the documents including, but not limited
to, landscape plan, a site plan and architectural
elevations, stamped "Dated, 7-31-91." The --
Development Plan attached hereto includes various
conditions of approval set forth in Exhibits "A-111,
"A-2"01 "A-3"11 "B-1", "B-2"01 "C-1"01 "C-2",
and "D-2", hereto which are not changed, altered or
modified by this Development Agreement unless
specifically set forth herein. The project also
includes the records of applications by Developer, the
proceedings before the Planning Commission and City
Council, and all such records and files in these
matters are incorporated herein by this reference as
though set forth in full.
d. "Project" is that development approved for the Site as
provided in this Development Agreement comprised of a
automated car wash, six bay automotive detail facility,
corporate offices for the developer and restaurant,
all as reflected in the Development Plans attached
hereto as Exhibits "A-111, "A-201 "A-3"1 "B-1", "B-2111
"C-1", "C-2", "D-1", and "D-2", and the conditions set
forth in Exhibits "E".
e. "Effective Date" shall mean the 318t calendar day
following adoption of the ordinance approving this
Agreement by City's City Council.
f. "Restaurant Pad" shall mean that portion of the Site
identified on the development plans.
E
2. Recitals. The Recitals are part of the agreement between
the parties and shall be enforced and enforceable as any other
provision of this Agreement.
3. Interest o1 ProRerty owner. Developer warrants and
represents that it has full legal title to the Site, that it has
full legal right to enter into this Agreement and that the
persons executing this Agreement on behalf of Developer are duly
authorized to do so and thereby bind DEVELOPER to the terms and
conditions of this Agreement.
4. Binding Effect gJ agreement. Developer hereby subjects the
Project and the land described in Exhibits "A-1", "A-2", "A-310,
"B�1", "B-2", "C-1", "C-2", "D-1", and "D-2", hereto to the
covenants, reservations and restrictions as set forth in this
Agreement. The City and the Developer hereby declare, represent
and warrant that their specific intent that the covenants,
reservations and restrictions as set forth herein shall be deemed
covenants running with the land and shall pass to and be binding
upon Developer's successors and assigns in title or interest to
the Project. Each and every contract, dead or other instrument
hereinafter executed, covering or conveying the Project or any
portion thereof shall conclusively be held to have been executed,
delivered and accepted subject to the covenants, reservations and
restrictions expressed in this Agreement, regardless of whether
such covenants, reservations and restrictions are set forth in
such contract, dead or other instrument.
City and Developer hereby declare their understanding
and intent that the burden of the covenants, reservations and
restrictions not forth herein touch and concern the land in that
the Developer's legal interest in the Project is rendered less
valuable thereby. The City and Developer hereby further declare
their understanding and intent that the benefit of such covenants
touch and concern the land by enhancing and increasing the
enjoyment and use of the Development by Developer and the future
occupants of the Project, the intended beneficiaries of such
covenants, reservations and restrictions, and by furthering the
public purposes for which this Agreement is adopted. Further,
the parties hereto agree that such covenants, reservations and
restrictions benefit all other real property located in the City
of Diamond Bar, provided, however, that only City shall be
entitled to enforce the provisions hereof pursuant to paragraph
16, below.
S. Relationship 21 parties. It is understood that the
contractual relationship between City and Developer is such that
Developer is an independent party and is not the agent of City
for any purpose whatsoever and shall not be considered to be the
agent of City for any purpose whatsoever.
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6. Term 21 Agreement. The term of the Agreement shall commence
on the effective date and shall expire on December 31, 2016, so
long as Developer remains in material compliance with this
Agreement, as from time to time amended.
7. construction. Developer shall complete construction work
for the Project on the Site, and all phases thereof, including,
but not limited to, landscaping and all off-site improvements,
pursuant to a building permit or permits issued by City within
three (3) years following the Effective Date. Notwithstanding
any other term or provision of this Agreement, Developer shall
complete rough grading of the Site, in accordance with approved
grading plans, within eighteen (18) months of the effective date.
Subject to the provisions of paragraph 28 hereinbelow, the
failure to construct the Project shall cause this Agreement to be
void and of no further force and effect; provided, however, that
completion of the car wash portion of the Project, together with
all required off-site improvements and perimeter landscaping
requirements, and compliance with the terms of this Agreement
pertaining to the car wash portion shall not render this
Agreement void as to the car wash portion.
e. Transfers. Assia=ent AM ancusbran9". Developer shall
have the right to sell, lease, ground lease, mortgage,
hypothecate, assign or transfer all or any portion of this site
(as may be subsequently subdivided), to any person or entity at
any time during the term of this Development Agreement. Any such
transfer shall be deemed to include an assignment of all rights,
duties and obligations created by this Development Agreement with
respect to all or any portion of the Site. The assumption of any
or all of the obligations of Developer under this Agreement
pursuant to any such transfer shall relieve Developer, without
any act or concurrence by the City, of its legal duty to perform
those obligations except to the extent that Developer is in
default with respect to any and all obligations at the time of
the proposed transfer.
9. General Standards Wfi Restrictions pertaining Jt4 Develonaent
4� M! site. The following specific restrictions shall apply to
the use of the Sita pursuant to this Development Agreement:
a. Developer shall have the right to develop the Project
on the Site in accordance with the terms and conditions
of this Agreement and City shall have the right to
control development of the Site in accordance with
the provisions of this Agreement.
b. The density and intensity of use, the uses allowed, the
size of proposed buildings, provisions for the
reservation or dedication of land for public purposes,
the maximum height of proposed buildings and location
of public improvements, together with other terms and
4
conditions of development applicable to the Site, shall
be as set forth in this Development Agreement and the
attached -Development Plan.
10. Effect 21 city Regulations gn DeveloQaent 11 project.
Except as expressly provided in this Development Agreement, all
substantive and procedural requirements and provisions contained
in City's ordinances, specific plans, rules and regulations,
including, but not limited to, the Zoning Ordinance, in effect as
of the effective date of this Development Agreement, shall apply
to the construction and development of the Site.
a. The provisions of this paragraph 10 shall not preclude
the application to the development of the Site those
changes in City ordinances, regulations, plans or
specifications which are specifically mandated and
required by changes in state or federal laws or
regulations as provided in California Government Code
Section 65869.5 or any successor provision or
provisions.
b. The payment of fees associated with the construction
of the Project, including land use approvals,
development fees, building permits, etc., shall be
pursuant to those fees in effect at the time
application is made for such approvals or permits.
C. City may apply any and all new ordinances, rules,
regulations, plans and specifications to the
development of the Site after the effective date
provided such new rules and regulations do not
conflict with the terms of this Development
Agreement as of the effective date.
d. Nothing herein shall prevent the application of
health and safety regulations (i.e., fire,
building, seismic, plumbing and electric codes)
that become applicable to the City as a whole.
ii. Persitted Uses. Those uses allowed on the Site shall be as
follows:
a. Permitted Uses.
1. Sales,
Art Galleries.
Art supply stores.
Automobile service stations, limited to automobile
accessories and facilities necessary to
dispensing petroleum products only.
Automobile supply stores.
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Automobile washing, waxing and polishing, car
washes.
Bakery Shops, including baking only when
incidental to retail sales from the premises.
Bookstores.
Confectionery or candy stores, including making
only when incidental to retail sales from
the premises.
Delicatessens.
Florist shops.
Gift shops.
Hobby supply stores.
Ice cream shops.
Jewelry stores.
Leather goods stores.
Notions or novelty stores.
Photographic equipment and supply stores.
Silver shops.
Sporting goods stores.
Stationery stores.
Tobacco shops.
Toy stores.
2. Services.
Barber shops.
Beauty shops.
Bicycle rentals.
Locksmith shops.
offices, business or professional.
Photography studios.
Shoe repair shops.
Tailor shops.
Watch repair shops.
b. Usas Aeggirinar Conditional jj Permft.
Restaurants and other eating establishments.
C. City Council A2 royal 21 Uses.
Each use which requires the approval of a
Conditional Use Permit shall, prior to City
acceptance of such application, be reviewed
and approved by the City Council. The
Council's review shall consider, among other
factors, the reputation of restaurant, the --
experience of the operator and the design of
the proposed facility.
12. IMM" ReVi . During the term of this Development
Agreement, City shall annually review the extent of good faith
6
compliance by Developer with the terms of this Development
Agreement. Developer shall file an annual report with the City
indicating information regarding compliance with the terms of
this Development Agreement no later than March 15 of each
calendar year.
13. indemnification. Developer agrees to, and shall, hold City
and its elected officials, officers, agents and employees
harmless from liability for damage or claims for damage for
personal injuries, including death, and claims for property
damage which may arise from the direct or indirect operations of
Developer or those of his contractor, subcontractor, agent,
employee or other person acting on his behalf which relate to the
construction and operation of the Project. Developer agrees to,
and shall, defend City and its elected officials, officers,
agents and employees with respect to actions for damages caused
or alleged to have been caused by reason of Developer's
activities in connection with the Project. This hold harmless
provision applies to all damages and claims for damage suffered
or alleged to have been suffered by reason of the operations
referred to in this Development Agreement regardless of whether
or not the City prepared, supplied Qt approved the plans,
specifications or other documents for the Project.
14. Amendments. This Agreement may be amended or canceled, in
whole or in part, only by mutual written consent of the parties
and then in the manner provided for in California Government Code
Sections 65868, et seq., or their successor provisions.
IS. Minor Amendments t& 2gvelotiment PJM. Upon the written
application of Developer, minor modifications and changes to the
Development Plan may be approved by the Director of Community
Development pursuant to the terms of City's Zoning Ordinance.
14. Enforcement. With the sole exception of the provisions set
forth in paragraph 28, in the event of a default under the
provisions of this Agreement by Developer, City shall give
written notice to Developer (or its successor) by registered or
certified mail addressed at the address stated in this Agreement,
and if such violation is not corrected to the reasonable
satisfaction of City within sixty (60) days after such notice is
given, or if not corrected within such reasonable time as may be
required to cure the breach or default if said breach or default
cannot be cured within sixty (60) days (provided that acts to
cure the breach or default must be commenced within said sixty
(60) days and must thereafter be diligently pursued by
Developer), then City may, without further notice, declare a
default under this Agreement and, upon any such declaration of
default, City may bring any action necessary to specifically
enforce the obligations of Developer growing out of the operation
of this Development Agreement, apply to any court, state or
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federal, for injunctive relief against any violation by Developer
of any provision of this Agreement, or apply for such other
relief as may be appropriate.
17. avant 21 Default. Developer is in default under this
Agreement upon the happening of one or more of the following
events or conditions:
a. If a material warranty, representation or statement
is made or furnished by Developer to City and is
false or proved to have been false in any material
respect when it was made;
b. If a finding and determination is made by City
following an annual review pursuant to paragraph 12
hereinabove, upon the basis of substantial evidence,
that Developer has not complied in good faith with
any material terms and conditions of this Agreement,
after notice and opportunity to cure as described
in paragraph 16 hereinabove; or
C. A breach by Developer of any of the provisions or --
terms of this Agreement, after notice and opportunity
to cure as provided in paragraph 16 hereinabove.
18. Ng waiver 21 Remedies. City does not waive any claim of
defect in performance by Developer if on periodic review City
does not enforce this Agreement. Nonperformance by Developer
shall not be excused because performance by Developer of the
obligations herein contained would be unprofitable, difficult or
expensive or because of a failure of any third party or entity,
other than City. All other remedies at law or in equity which
are not otherwise provided for in this Agreement are available to
the parties to pursue in the event that there is a breach of this
Development Agreement. No waiver by City of any breach or
default under this Development Agreement shall be deemed to be a
waiver of any other subsequent breach thereof or default
hereunder.
It. liggts gJ IMAgLM Under this Agreement. Should Developer
place or cause to be placed any encumbrance or lien on the
Project, or any part thereof, the beneficiary ("Lender") of said
encumbrance or lien shall have the right at any time during the
term of this Agreement and the existence of said encumbrance or
lien to:
a. Do any act or thing required of Developer under this
Agreement, and any such act or thing done or performed
by Lender shall be as effective as if done by
Developer;
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b. Realize on the security afforded by the encumbrance or
lien by exercising foreclosure proceedings or power of
sale or other remedy afforded in law or in equity or by
the security -document evidencing the encumbrance or
lien (hereinafter referred to as "a trust deed");
C. Transfer, convey or assign the title of Developer to
the Project to any purchaser at any foreclosure sale,
whether the foreclosure sale be conducted pursuant to
court order or pursuant to a power of sale contained
in a trust deed; and
d. Acquire and succeed to the interest of Developer by
virtue of any foreclosure sale, whether the fore-
closure sale be conducted pursuant to a court order
or pursuant to a power of sale contained in a trust
deed.
20. Notice t& Lender. City shall give written notice of any
default or breach under this Agreement by Developer to Lender (if
known by City) and afford Lender the opportunity after service of
the notice to:
a. Cure the breach or default within sixty (60) days
after service of said notice, where the default can
be cured by the payment of money;
b. Cure the breach or default within sixty (60) days
after service of said notice where the breach or
default can be cured by somethinq other than the
payment of money and can be cured within that
time; or
C. Cure the breach or default in such reasonable time
as may be required where somethinq other than
payment of money is required to cure the breach
or default and cannot be performed within sixty (60)
days after said notice, provided that acts
to cure the breach or default are commenced within
a sixty (60) day period after service of said
notice of default on Lender by City and are
thereafter diligently continued by Lender.
21. Action b2 I&Ad . Notwithstanding any other provision of
this Agreement, a Lender may forestall any action by City for a
breach or default under the terms of this Agreement by Developer
by commencing proceedings to foreclose its encumbrance or lien on
the Project. The proceedings so commenced may be for foreclosure
of the encumbrance by order of court or for foreclosure of the
encumbrance under a power of sale contained in the instrument
creating the encumbrance or
however, forestall any such
breach by Developer unless:
lien. The proceedings shall not,
action by the City for the default or
a. They are commenced within sixty (60) days after
service on Developer of the notice described herein-
above;
b. They are, after having been commenced, diligently
pursued in the manner required by law to completion;
and
C. Lender keeps and performs all of the terms,
covenants and conditions of this Agreement requiring
the payment or expenditure of money by Developer
until the foreclosure proceedings are complete or
are discharged by redemption, satisfaction or
payment.
22. Notice. Any notice required to be given by the terms of
this Agreement shall be provided by certified mail, return
receipt requested, at the address of -the respective parties as
specified below or at any other such address as may be later
specified by the parties hereto:
To Developer: BIG DIAMOND BAIL, a California
Partnership
c/o FRANK ARCIERO
ARCIERO & SONS, INC.
950 North Tustin Avenue
Anaheim, California 92807
TORAH DEVELOPMENT AND CONSTRUCTION,
a California Sole Proprietorship
23441 Golden Springs
Diamond Bar, California 91765
To City: City of Diamond Bar
21660 East Copley Drive, Suite 100
Diamond Bar, California 91765
Attention: City Manager
23. Attorneys-* lees. In any proceedings arising from the
enforcement of this Development Agreement or because of an
alleged breach or default hereunder, the prevailing party shall
be entitled to recover its costs and reasonable attorneys' fees
incurred during the proceeding as may be fixed within the
discretion of the court.
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24. Binding Effect. This Agreement shall bind, and the benefits
and burdens hereof shall inure to, the respective parties hereto
and their legal representatives, executors, administrators,
successors -and assigns., wherever the context requires or admits.
25. Applicable Lu. This Agreement shall be construed in
accordance with and governed by the laws of the State of
California.
26. Partial Invalidity. If any provisions of this Agreement
shall be deemed to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions
hereof shall not in any way be affected or impaired thereby.
27. Recordation. This Agreement shall, at the expense of
Developer, be recorded in the Official Records of the County
Recorder of the County of Los Angeles within ten (10) business
days following the Effective Date.
28. Ron-Develooaent 21 Restaurant RM.
If the Restaurant Pad is not fully developed with a restaurant
which is actually operating and open -for business to the general
public on or before the date specified in Paragraph 7 herein,
then CITY may, at its sole option, require DEVELOPER to convey to
CITY an amount of monies equivalent to the reasonably estimated
tax revenues derived from such a restaurant use. The parties
recognize that estimation of such an amount is a difficult and
._impractical process and therefore desire to establish an agreed
upon amount. The parties agree that DEVELOPER shall annually
convey to CITY, without demand by CITY, an amount equivalent to
Fifteen Thousand Dollars ($15,000.00) per year if the restaurant
is not built within thirty-six (36) months from the effective
date of this Agreement. DEVELOPER shall dispatch such monies to
the CITY not less than ten (10) business days subsequent to the
date specified in Paragraph 7 herein.
In the event DEVELOPER fails to convey such monies as may be
due to CITY, on the date such monies are due, DEVELOPER shall pay
to CITY, in addition to the overdue amount, a late charge equal
to Bank of America's then prevailing prime rate of interest per
annum plus an additional three (3) percent over such prime rate
of said overdue amount from the date such payment was due until
paid. This provision is intended to compensate CITY for all
losses, including lost interest opportunities, legal costs, and
the administrative costs involved in this matter.
At such time as the monies due, including interest, are
calculated to be 90 days in arrears then, notwithstanding any
other provision of this Agreement, the DEVELOPER shall be
conclusively deemed to be in default upon this Agreement.
DEVELOPER agrees that, notwithstanding any other remedies
available to CITY pursuant to this Agreement, including paragraph
11
16, that DEVELOPER shall cease operating the carwash facility
until such time as all monies due CITY are paid, including
interest.
IN WITNESS WHEREOF, this Agreement has been executed by
the parties and shall be effective on the effective date set
forth hereinabove.
Dated:
Dated:
Dated:
ATTEST:
91
CITY OF DIAMOND BAR,
a municipal corporation
By
John Forbing, Mayor
Lynda Burgess, City Clerk
City of Diamond Bar
BIG DIAMOND BAR, a California
Partnership
By: FRANK ARCIERO, 1Kanaq nq
General Partner
TORAH DEVELOPMENT AND CONSTRUCTION,
a California Sole Proprietorship
By: GARY D. CLAPP
12
0
STATE OF CALIFORNIA
ss.
COUNTY OF LOS ANGELES
On 1991, before me, the undersigned, a
Notary Public in and for said County and State, personally
appeared John Forbinq and Lynda Burgess proved to me on the basis
of satisfactory evidence to be the persons who executed this
instrument as Mayor and City Clerk of the City of Diamond Bar, a
municipal corporation existing and organized under the laws of
the State of California, and acknowledged to me that the City of
Diamond Bar executed it.
Notary Public in and for said State
STATE OF
SS.
COUNTY OF
On 1991, before me, the undersigned, a
Notary Public in and for an d County and State, personally
appeared FRANK ARCIERO, Managing General Partner, BIG DIAMOND
BAR, a California Partnership, proved to mo on the basis of
satisfactory evidence to be the persons who executed this
instrument.
Notary Public in and for said State
STATE OF
ss.
COUNTY OF
On , 1991, before me, the undersigned, a
Notary Public in and for sa d County and State, personally
appeared GARY CLAPP, TORAH DEVELOPMENT AND CONSTRUCTION, a
California Sole Proprietorship, proved to as on the basis of
satisfactory evidence to be the persons who executed this
instrument.
N%1022%DA91-WZ%DZ 6.11D 13
Notary Public in and for said State